style) whereas others are silent on this. The provision may have implications for sale for seed from harvested crops or subsequent sale of variety after it has been put into the market by the right holder. Most importantly, so far as farmer rights are concerned, India provides very comprehensive rights which encompass saving, sowing, resowing, exchanging, sharing or selling his/her farm produce including seed of a protected variety provided that farmer is not entitled to sell branded seeds of a protected variety. A farmer in India is also entitled to registration of his newly developed variety like a breeder and for reward under the Gene Fund for conservation of genetic resources of landraces and wild relatives of economic plants. But, most other countries have not granted rights to farmers. Further, India and Pakistan also safeguard farmers against sold variety failing to perform but no other country has such provision. Most countries have compulsory licensing of a protected variety provision in public interest. Indian law also prevents terminator technology. Further, only Bangladesh, India and Thailand provide for community rights and benefit sharing and common gene fund (Kumar and Sahai, 2003).
Also, implementation of TRIPS can have a negative impact of farmers' access to AKST. Article 27.3 (b) of TRIPS is a major driving force of the biotechnology industry and provides the legal protection for the development of GMOs, which are patented. Furthermore, countries like the United States allow patents on plants and animals and there is enormous pressure on developing countries to adopt similar standards for IPRs. All these have implications for farmers around the world. Patented seeds cost more and threaten farmers' rights to save, reuse, exchange and sell seeds, or even access to the seeds. This is already evident in the case of Bt cotton seed in India as discussed below.
Monsanto-Mahyco Biotech Limited is charging rupees (Rs.) 1250 per 450 gram packet of Bt cotton seed from its licensees as trait value of seed which is nothing but royalty for transfer of Bt technology to about 20 Indian seed companies, for which it has a patent under the TRIPS regime. It also collected Rs. 50 lakh from each of its sub-licensees as non-refundable fee which is illegal as per MRTP commission that monitors trade practices in India. MRTP has already initiated investigations against the company for overcharging for Bt cotton seed, which is considered an unfair trade practice by a monopoly as the company is the only Bt cotton seed seller in India. In US, it charges a royalty of only Rs. 573 per acre (Janaiah, 2006). The real cost of seed is said to be Rs. 500. The company on its own reduced the trait value fee to Rs. 900 per packet after the initiation of the case, but in US, the company charges only Rs. 108 per packet which is much lower than its rate for India (Times of India, New Delhi, April 21, 2006). The Bt cotton seed costs only Rs. 550 per packet per acre in China, Rs. 250 in South Africa and Rs. 1000 in Mexico. Only in India and Argentina, it is priced very high, i.e., Rs. 1800 and Rs. 1900 per acre respectively (Janaiah, 2006). The company has its patented technology based Bt seed being sold in India with the help of many licensees. Thus, TRIPS has already become a barrier due to high price of the Bt cotton seed so far as poor farmers are concerned.
There are conflicting reports on the performance of the new seed in India and it has been banned in Andhra |
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Pradesh for three years due to poor performance. It is due to this prohibitive high price of Bt seeds that some farmers in India have resorted to illegal and spurious Bt cotton seeds being sold by local traders and farmers, especially in Gujarat where the so called Bt seed is available for Rs. 300-800 per packet. Thus, a large proportion (50%) of total Bt cotton area in India is under illegal and spurious varieties. The Supreme Court of India has recently asked the company to bring its trait value to levels which it charges in China within a month. Thus, Monsanto may have to slash its trait value fee to Rs. 40 per packet from Rs. 900 per packet of 450 grams of Bt cotton seed. But, the company is likely to appeal against the order.
In several developed countries, patenting of plants, plant varieties and traditional knowledge associated with their use is already taking place and has been accelerating since TRIPS. In that process, "biopiracy" or the misappropriation of biological resources and traditional knowledge is taking place, as plants and seeds originating in developing countries are being patented, usually without the knowledge or consent of these countries of origin.
Between 1985 to 1999, about 11,000 patents on plants had been registered in the US (ActionAid, 1999). In the European Union, patent law has been extended to microorganisms and genes of plants, animals and humans. The biotechnology industry is racing to map the genomes of the world's staple food crops with a view to patenting the vital and most interesting genes. The farmers of developing countries that developed the world's food crops would have no effective rights over the varieties, due to the patenting being carried out by the transnational companies. Only 10% of seed in the developing world is purchased commercially with some poor farmers buying seed only once in five years; hence patents pose a threat to farmer livelihoods and global food security (ActionAid, 1999).
There is no system of informed consent to notify communities involved of the intentions of genetic collectors even if the "invention" relies upon the knowledge and insight of local people. In some of those countries where there are patents on plant varieties, farmers are being prosecuted for alleged violation of IPRs. These developments could be reproduced in developing countries in the future.
3.3.3 Public and private sector research and development
How have IPRs, especially the availability of IPRs for living organisms affected public and private research and development in AKST? Plant breeding has shifted from the public to the private sector since the early 1980s for soybean, wheat, and cotton; 75% of the plant biotechnology patents originate in the private sector (Atkinson et al., 2003; Gepts, 2004). There is evidence the shift occurred with the introduction of TRIPS. The shift coincided with the consolidation of agribusinesses controlling agrochemicals, seeds and bio-tech traits (Lesser and Mutschler, 2002; UNCTAD, 2005). For agrochemicals, the three leading corporate groups alone are estimated to represent approximately half of the market. For seeds, four corporations have about 30% of the market share, but the figures may mask much stronger market concentration for major crops in specific regional markets. The figures obscure the outstanding degree of consolidation in |