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Policies Toward GM Crops In India cont.,

II. IPR Policy in India

While GM crop critics in India have focused most heavily on possible biosafety risks, they have also attempted to block the technology by voicing strong objections to what they describe as the disadvantageous IPR implications of GM crops. To the extent that GM crops come with stronger IPR conditions attached, it is not surprising to hear voices of objection raised in India, a nation without a strong IPR policy tradition, least of all in the area of animals and plants. And to the extent that private multinational seed companies are the holders of so many of these IPRs, India's misgivings are that much easier to understand, given the culture of mistrust toward international companies that has long pervaded both India's government and its civil society. India's IPR policies toward GM crops, in part for these larger social and cultural reasons, have thus been extremely weak. As of 2000, India's Parliament still had not enacted even a basic plant variety protection law.

For decades India could get along without a strong IPR policy in the area of farm crops because it relied so exclusively on its own public sector scientists and government extension agents, rather than private investors or international private companies, to stimulate innovation in the area of agriculture. During the 1960s and 1970s, agricultural R&D in India was almost exclusively the business of the Indian Council of Agricultural Research (ICAR), a vast network of government institutes, directorates, research centers, and public universities. The private sector was effectively excluded through tight controls over germplasm exchange, technology imports, seed trade regulations, and restrictions on investment (Selvarajan, Joshi, and O’Toole 1999). In this environment, innovation was stimulated through public expenditure, rather than through the offering of IPRs to plant breeders. India operated without a plant variety protection law, and its 1970 Patent Act specifically excluded patenting of life forms such as plants (Mishra 1999).

This system served India well enough in the early years of the green revolution, and in some respects it continues to work well, as marginal economic rates of return to agricultural research in the state-dominated Indian system have remained high (Evenson, Pray, and Rosegrant 1999). By its own count during the 1992-96 Eighth Plan period, ICAR developed and released more than 2300 high yielding varieties and hybrids, including 452 new varieties of field crops ready for general cultivation. Yet by the 1980s, overall state support for agricultural research in India had begun faltering, and scientists in India began looking for ways to seek greater rewards through the private sector. Government attitudes toward the private sector also became less hostile. Starting in the early 1980s, the Government decided to provide its own breeder seed to private companies for multiplication and duplication. Foreign investment rules were relaxed, and in 1988 a New Seed Policy liberalized industrial licensing policies. As a result multinational seed companies began making significant investments, through India's own private sector companies. From the mid 1980s to the mid 1990s, 24 companies representing roughly 17 percent of all private seed concerns in India initiated technical or financial collaboration with foreign companies.

These liberalizations brought pressures in India to enact a basic plant variety protection law. Officials in the agricultural research establishment had concluded by 1991 it was necessary and prudent to move India’s IPR policies closer to international standards. By 1993 a draft plant variety protection act (PVPA) was ready for submission to Parliament, one which measured up to the UPOV 1978 standard by creating relatively weak PBRs and by preserving the farmer's privilege to replant and exchange saved seed. The drafting of this basic PVPA preceded final negotiation of the TRIPS agreement in WTO, but when India formally ratified TRIPS in 1994 these issues became linked, since India now had an international obligation to have basic IPR protections in place for plant varieties by January 2000.

This Government decision to move toward a conventional plant variety protection law in the context of TRIPS triggered a surprisingly emotional debate in India's Parliament. The first draft of the PVPA was criticized by the private seed industry for being too weak, but NGOs claiming to represent farmers groups warned it was far too strong and would lead to a private expropriation of farmers' rights. Revised drafts were produced in 1996-97 in order to address the farmers rights issue, and Cabinet approval for a revised draft was secured in October 1997, but under still more NGO criticism Parliament continued to stall, and still more redrafting was initiated. The version of the PVPA that was working its way through Parliament in 2000 was a version produced in December 1999.

These PVPA debates in India would have been contentious even if GM crop technologies had never been invented. In India, the experience of colonization was an especially bitter one and sensitivities toward foreign ownership of any part of the national economy - especially by foreign companies - remain high. Foreign corporate ownership of genetic resources in India - GM or otherwise - is an especially emotional issue. Advocates of the PVPA have argued that IPR guarantees for plant breeders will stimulate useful new innovations in India, bring in foreign capital and technology, and at the same time provide for improved protection for the 150,000 accessions and samples of crop germplasm in the hands of India’s own National Gene Bank. Existing plant varieties that are already in the "public domain" will also not be affected by the law. Yet critics highlight what they describe as the danger of a foreign corporate takeover of India’s own national seed industry, or the private use of IPR options to gain controlling ownership of the plant genetic resources on which India’s farmers depend. An Indian NGO calling itself the Gene Campaign argues prominently that foreign multinational companies would be able to appropriate and exploit India’s genetic material without adequate compensation if western-style IPRs in this area were ever to be permitted (Sahai 1999).

Fueling these fears after 1991 was the increased presence of international companies staking ownership claims within India's food economy. Between 1987 and 1995, even though a PVPA had not yet been passed by Parliament, the share of private seed sales in India made by firms with foreign ownership increased from 10 percent up to 33 percent (Pray et al 1991; Pray and Kelley 1998). Several IPR actions taken outside of India were also represented as threats to national genetic sovereignty. In 1992 the W.R. Grace company secured a patent in the United States for a distinctive chemical formulation of a naturally occurring pesticide from neem trees. Anti-corporate activists in India began asserting that international companies such as Grace were planning to use such patent protections to appropriate for themselves the locally developed folk-knowledge that had long been available to India’s farmers and rural communities for free. Grace argued that this charge was unfounded, since the patent was on a new chemical formulation implying that it did not prevent traditional farmers all over the world from continuing to use neem extract as they always had. Nonetheless the neem case enflamed popular anxieties regarding the foreign appropriation of local knowledge, and led to an international struggle by environmental NGOs to remove the patent. In May 2000, the European Patent Office did revoke Grace's 1995 patent in Europe for the neem oil extraction process, but litigation against the patent in the United States was sure to prove more difficult.¹

Some of India’s most respected leaders in the area of agricultural research have shared the concern that patent protections for plants, or even a national move toward a conventional PBR system, might leave the nation's poor farmers at a disadvantage. Rural communities in India have for thousands of years employed their own on-farm seed selection practices to breed a highly diverse stock of plant varieties nicely attuned to local conditions. Under a PBR system, why should IPR protection go only to the professional breeders (working either within international companies or national institutes) who routinely use these already improved local varieties as the basis for their breeding programs? Arguing that indigenous knowledge systems are similar to general scientific information, in that they are a valuable part of public knowledge, Dr. M.S. Swaminathan, India’s most acclaimed agricultural scientist and the first winner of the World Food Prize, has helped popularize the notion that communities of farmers are as entitled to IPR protections for their efforts as professional breeders. Largely in response to his leadership, and as early as 1989, the FAO Conference in Rome adopted his concept of Farmers Rights.

Swaminathan also saw to it that India's own draft PVPA law would incorporate a farmers' rights provision, in the form of a institutional mechanism designed to ensure the rights of farming communities to financial compensation for any earlier contributions they might have made to the plant varieties that will finally be protected under the act. The 1999 draft of India’s PVPA (in Chapters X and XII) thus certifies the rights of villages and local communities to claim contributions to the evolution of plant varieties, and to then receive appropriate financial compensations paid from a centrally managed National Gene Fund (Government of India 1999). In anticipation of this provision coming into effect, the Government of India began compiling a formal register of the geographic origins of all plant genetic resources that have been or might be used by professional breeders. Registering this indigenous germplasm also puts it in the public domain, thus preempting private bioprospectors from subsequently using the PVPA to take commercial advantage of this germplasm without compensating local communities.

1. A second case of alleged biopiracy is the 1997 patent granted in the United States to a Texas-based firm, RiceTech Inc., for basmati rice grains and lines and their breeding and cooking methods. Since March 1998 the Indian Government has taken steps to challenge this patent. APBN Vol. 4, No. 10 2000, p. 200).