India: Effects of Tariffs and Nontariff Measures on U.S. ... - USITC

BOX 9.1 The UPOV System for Plant Variety Protection
UPOV was established by the International Convention for the Protection <strong>of</strong> new varieties <strong>of</strong> plants (the UPOV
Convention). The UPOV Convention was originally adopted in 1961, with the objective <strong>of</strong> encouraging the
development <strong>of</strong> new varieties <strong>of</strong> plants by granting IPR to plant breeders. UPOV grants plant breeders rights over a
variety that is “distinct, uniform, <strong>and</strong> stable” (the DUS criteria) for a defined number <strong>of</strong> years. Breeders can bring
suit to enforce their rights <strong>and</strong> obtain damages for infringement.
The UPOV Convention was revised in 1972, 1978, <strong>and</strong> again in 1991, with the 1991 revision providing stronger
protection to plant breeders than earlier conventions. For example, the 1991 UPOV Convention makes it optional
rather than m<strong>and</strong>atory for a member state to recognize a farmer’s privilege to use <strong>and</strong> exchange saved seeds <strong>of</strong> a
protected variety. Moreover, the farmer’s privilege is more narrowly tailored in the 1991 UPOV Convention.
Although members joining UPOV generally are required to join under the latest version <strong>of</strong> the UPOV Convention,
<strong>India</strong> received a dispensation that would permit it to join under the 1978 UPOV Convention. Although <strong>India</strong> has
applied to join UPOV, to date UPOV has not granted <strong>India</strong>’s application, at least in part because <strong>of</strong> the broad
farmer’s privilege in <strong>India</strong>’s law (discussed below).
Sources: Dhar, “Sui Generis Systems,” April 2002, 8–16; World Bank, Intellectual Property Rights, 2006, 16; <strong>and</strong>
industry representative, telephone interview by Commission staff, June 10, 2009.
<strong>India</strong> enacted its own unique legislation in 2001, the Protection <strong>of</strong> Plant Varieties <strong>and</strong>
Farmers’ Rights Act, 2001 (PPV&FR law). Major differences between the <strong>India</strong>n law <strong>and</strong>
U.S. law, which follows the 1991 UPOV Convention, are highlighted below (table 9.1).
The most significant difference stems from <strong>India</strong>’s attempt to safeguard the interests <strong>of</strong>
farmers by broadly permitting them to save, use, sow, exchange, share, <strong>and</strong> even sell
protected seed. U.S. <strong>and</strong> other global seed firms state that this broad farmer’s privilege is
a significant disincentive to their introduction <strong>of</strong> new technologies in <strong>India</strong>. 20 The only
limitation on the farmers’ privilege is a prohibition on the sale <strong>of</strong> “br<strong>and</strong>ed seed.” Even
br<strong>and</strong>ed seed is <strong>of</strong>ten protected only in theory: the practice <strong>of</strong> “brown bagging,” where
farmers <strong>and</strong> others sell repackaged br<strong>and</strong>ed seed or seed <strong>of</strong> unknown origin in brown
bags in village markets, is widespread in <strong>India</strong>. 21
20 Industry representative, telephone interview by Commission staff, March 30, 2009; industry
representatives, interviews by Commission staff, New Delhi, <strong>India</strong>, May 4, 8, 2009; <strong>and</strong> industry
representative, e-mail message to Commission staff, June 19, 2009.
21 As several industry representatives noted, it is virtually impossible to sue farmers in <strong>India</strong>. Industry
representative, interview by Commission staff, New Delhi, <strong>India</strong>, May 5, 2009; industry representative,
interview by Commission staff, Mumbai, <strong>India</strong>, May 12, 2009; <strong>and</strong> industry representative, telephone
interview by Commission staff, June 10, 2009. For additional information on brown bagging <strong>and</strong> illegal seed,
see box 9.3.
9-4