Introduction
Intellectual property rights (IPR) are a type of legal rights which are made use of to provide protection to intellectual property (IP) or property created from intellectual activities of the brain such as creating literary works, sculpting idols, painting pictures, researching on scientific field etc. There are several kinds of IPR in India and the world like, copyright, patents, trademarks, trade secrets, geographical indications etc.
In India, majority of the population is employed in the agricultural sector; but initially, Indian agricultural sector did not employ IPR to protect the intellectual property which was often employed by the farmers. As time went by and more research were conducted to improve agricultural growth in India, the agriculturalists started coming up with more and more intellectual properties related to the field of agriculture, even biotechnology was being employed hence, came the need to protect these IPs. The legal way of providing protection through Intellectual property rights and the types of IPRs seen to be useful in the agricultural industry are patents, geographical indications (GIs) and trade secrets. They are used to protect the rights of farmers’, plant breeders and agriculture engineers. These IPRs provide protection against misappropriation of the IP and provides remedy in cases or IP infringement or unauthorised access by third party.
Legislations to Protect IP in the Indian Agricultural Sector and their Impact
The first piece of legislation enacted in India for the protection of different unique plant varieties created through breeding and the right of framers and breeds in relation to the plant varieties was the Protection of Plant Varieties and Farmers’ Rights Act, 2001. India is one of the few nations who had signed and then ratified the TRIPs Agreement in form of the 2001 Act.
Before the 2001 Act came into the picture, Indian Patent Act, 1970 was used to protect novel agricultural machinery and chemical based inventions pertaining to the agricultural sector. There was also need for modifications and amendments required in the Protection of Plant Varieties and Farmers’ Rights Act, 2001 and they helped in protections of breeders, producers, farmers and aided in agricultural conservation. Under the PPVR&FR Act farmers are entitled to save, sow, re-sow, exchange, share or sell their farm produce and also seeds belonging to protected plant varieties. Farmers’ who have made significant contribution to crop improvement and helped to come up with genetic resources which helped in development and growth of new plant varieties receive recognition and remunerations from the national gene fund set up by section 45 of the Act. This fund was established in order to fund conservation and sustainable use of genetic resources. It gives privileges, benefits and protection to breeders which in turn encourage them to come up with more plant varieties. Unless such protection is provided by law to breeders it is very easy to replicate the plant varieties by reproducing them once a third party gets to access the genetic material. Once the third party replicates such a plant variety they can easily pass off as their creation, this is exactly why protecting the breeders’ exclusive right was of utmost most importance. As for farmers’ rights they are protected in such a through the 2001 Act that it benefits in both agricultural development and IPR protection. It protects and preserves the traditional knowledge of the Indian farmers.
There is an important instance that has to be mentioned in this juncture. Turmeric a spice which has been cultivated in India since a long time is used for its medicinal purpose in case of skin infections, cold and certain other health disorders. In 1995, the United States Patent Office granted a patent on the healing properties of turmeric to the University of Mississippi. The healing properties of turmeric have been discovered and used by ancient Indians and is a traditional knowledge of the country. The University of Mississippi holding a patent for it meant that Indian would have to pay royalty to them to use their own traditional knowledge and the indigenous people dependent on such traditional knowledge would feel deprived. The Indian Council for Scientific and Industrial Research (CSIR) went ahead and objected to the patent granted and provided evidence of the fact that the healing properties of turmeric were a traditional knowledge in India. There were 35 references of turmeric or haldi having healing properties found in Indian languages like Sanskrit, Hindi etc. The United Stated Patent Office was well satisfied with these evidences and revoked the patent granted to the University of Mississippi and stated that the healing properties of turmeric were obvious and nothing novel. [1]This is an example were the noting down of the traditional knowledge based on an agricultural product being cultivated in India was protected. This is why the Indian government has developed the Traditional Knowledge Digital Library (TKLD) which aids in finding out existing Traditional knowledge so that no one accidentally or maliciously patent it and unfair commercial monopoly over it.
The next piece of legislation that has to be mentioned is the Biological Diversity Act, 2002 (CBD). It is a law which was introduced to preserve the biological diversity of India and securing the traditional knowledge of indigenous people all the while equitably sharing benefits arising out of such biological or genetic material and traditional knowledge. The CBD promotes sustainable use of biological resources, promote conserving of genetic resources and encourages equitable sharing of the benefits which arise out of the use of biological materials and the traditional knowledge of indigenous people in relation to the resources. CDB blocks the misappropriation of intellectual property arising out of biological diversity. Theft of traditionally developed expertise on genetic material derived from biological diversity is also termed as bio-piracy and this is the activity that the CBD, mainly tries to minimise. Bio-piracy and misappropriation of traditional knowledge would render indigenous people poorer than they already are as their traditional knowledge which they use to earn their livelihood often gets used by industrialists for monitory gains; they also get passed off as discoveries made by the foreign bodies. However, with the aid of CBD such activities can be controlled and indigenous farmers, horticulturists etc now have a way to protect the traditional knowledge which they use to form pesticides, fertilisers etc. Nowadays, CBD is also used to help prevent environmental harm.
Geographical Indications or GI’s are a type of IPR which is a sign or name that is registered to indicate the origin of a particular product as the product is unique to that particular place. GI’s help to protect products by identifying it as the product of a particular place and made by a particular community of agriculturists, craftsmen etc. Geographic Indications are mostly found on agriculture based products, handicrafts and industrial products like food products sarees, wines and similar products. TRIPS Agreement under Articles 22 to 24 and Articles 1 (2) and 10 mentions the provision for geographical indications and India is a signatory of both. Thus, India had to ratify them by introducing and enforcing the Geographical Indication of Goods Act, 1999. Products marked with geographical indications can be termed as intangible assets of the area they belonged to and to the community of people they are produced by. A registered GI under the Geographical Indications of Goods Act, 1999 cannot be used by a third party without the consent of the owner of it. This prevents third parties from manufacturing copies and making commercial gains out of it while the original producing community suffers loss of income and livelihood. Agricultural products like Darjeeling tea, Banaganapalle mangoes, Gobindobhog rice and Nagpur oranges are some popular GI’s in India which has been registered and protects their producing farmers from anyone else from misappropriating their products. All of these products possess certain characteristics which make them stand out for other products of the same nature. An example is the Gobindhobhog rice which has a unique aroma which differentiates it from other varieties of rice. It is a registered GI from the Indian state of West Bengal which means that the hard-work by Gobindhobhog rice farmers is being protected by a form of IPR and in case there is a third party who is trying to sell off fake products as Gobindhobog rice they can be sued for infringement of GI. Infringement of GI is an act which occurs when a non-authorised third party or someone who does not own a GI tries to use the GI tag to confuse customers into purchasing their products by thinking they are authentic products having the GI tag. There are both civil and criminal remedies available in case of GI infringements. GI tags on products help to ensure good quality of the product thus, purchasers are willing to make premium payments for products carrying GI tags. This is how GI tags on products help the farmers and producers of such GI tagged products to earn economic benefits. They can also import their products without having to worry about GI infringement, the occurrence of which could now be solved through legal remedies under the Indian law. GI’s also protect Traditional knowledge which indigenous farmers or agriculturalists may employ in order to formulate the unique features of their products. Linking the name of the farm or farmers union with the GI will aid in providing them with commercial benefit arising from the tagged product.
Trade secrets, which are protected by signing of non-disclosure agreements in India as there is absence of any specific legislation for its protection, can be used to protect hybrid plants, different techniques or formulas employed to formulate special fertilisers or come up with plant or crop growth remedies by farmers, agriculturalists, horticulturalists, agriculture engineers etc. If there are any commercial secrets Trade Secrets need protection as they are commercial secrets of a company , commercial body or person which is a piece of information that is not widely known by the public and helps in commercial benefit of the owner.
Even Trademarks can be used to protect agricultural products. Agricultural products tagged with trademark help the consumer know the origin of it. When a trademark is registered under the Trade Marks Act, 1999 it gets protection from being infringed or misappropriated by an unauthorised person. Registration of a trademark in India prevents it from getting copied by someone else. In case a trademark is not registered then even though it will still be indicating which brand the product it is embossed on belong to, if it is copied the proprietor of the trademark would be left without any legal remedy. Trademarks help farmers to sell their seeds or crops under their names or their brand names and after a while when their brand creates a goodwill customers guided by the trademark will purchase the same products without hesitation which will help farmers again economically and in case the trademark is infringed and it is a registered one then they can get legal remedy.
Conclusion
In conclusion of this paper it can be made out that, intellectual property rights like patents, geographical indications, trade secrets and trademarks find use in the agricultural sector to provide protection to the intellectual properties created by farmers, agricultural engineers, scientists, researchers, breeders and people employed in such other activities. IPR provides these individuals with monopolistic exclusive right to enjoy commercial benefit from the products over their labour. IPR in agriculture sector prevents third parties from misappropriating the produce coming from farmers, breeders etc and gaining unfair commercial benefits by providing legal protection and remedies in case of violation of the rights granted to the actual owners. India’s Protection of Plant Varieties and Farmers’ Rights Act, 2001 is a unique piece of legislation that aims to and extends protection to both farmers and breeders. It recognizes the hard-work of farmers to conserve and improve plant genetic materials and the efforts of breeders of plant varieties to cure diseases in plants and coming up with new varieties of plants which help in the growth of the agriculture sectors of India. The law has provisions to encourage the farmers and breeders by rewarding with order such as the Plant Genome Saviour “Farmer Reward etc, such awards help them feel encouraged to continue their efforts. This law is exemplary in demonstrating how developing nations especially those dependent on agriculture, like India, should protect the IP related rights of their farmers and breeders. The other IPR laws in the country, like that Trade Marks Act, 1999, Conservation of Biological Diversity Act, 2002, and the Geographical Indications of Goods Act, 1999, are also quite efficient in protecting intellectual property in the agricultural sector.
[1] Raj Chengappa, Patents: India wins a victory over turmeric but the war is on, India Today, Sept. 08, 1997, Updated on May. 14, 2013 at 12:03 IST
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