The Possible routes being utilized by corporations to control seeds are:

1. Patent amendments that allow the patenting of genetically modified seeds. This also permits a company to use the best locally available seed, insert foreign genes into it and take control over the resulting variety, which then becomes the company's property.
2. Transnational companies are identifying the "genotypes" of the best traits available in traditional Indian varieties and transferring these traits to their variety, patenting the product and process.
3. Introducing insect resistance traits in seeds thereby increasing the vulnerability of all crops.
4. Introducing other genetic modifications like herbicide resistance in crops in India without understanding local agricultural needs and requirements.
5. Introducing genetic modifications in crops that have allergenic potential, thereby risking all agricultural exports. An example is the testing of the cry9c gene, a well-established potential allergen, in some vegetable crops in India.
6. Existing trade laws support the developed world. It is dangerous to talk of opening up Indian agriculture without addressing the tariffs and subsidies system followed by the West. ²

Intellectual Property Rights in Plant breeding

International: The agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organisation (WTO) requires that the member countries provide patents for any invention, whether process or product, in all fields of technology. For plant varieties, protection should be provided either by patents or by an effective sui generis (of its own kind) system, or some combination thereof. Since no criteria are established for an effective sui generis system, there is considerable variation among countries in protection of plant varieties.

The International Convention for the Protection of New Varieties of Plant (UPOV) serves as the basis for protection of plant varieties in a growing range of countries. UPOV was established in 1961 to harmonise the legal systems for the protection of plant varieties in Europe. Since then, UPOV has been revised three times (1972, 1978 and 1991) to successively strengthen Plant Breeders Rights (PBRs). Almost all UPOV members follow either the 1978 or 1991 convention. The 1991 convention introduces or extends several important restrictions. It allows the breeder to prohibit seed saving of protected varieties (unless the species is specifically exempted) and it excludes any possibility of seed exchange for protected varieties. It also extends the protection to any harvested material (if it has not been possible to exercise the rights on the planting material) and it extends the duration of protection (e g, from 15 to 20 years for field crops). By September 2005, 33 members followed the 1991 convention and 25 followed the 1978 convention. The community plant variety rights (1995) in Europe and the Plant Variety Protection Act (Amendment 1994) of the US conform with the 1991 UPOV convention, while most developing countries who are UPOV members have adopted some variant of the 1978 convention.

Norway recently decided against “upgrading” its law to the 1991- standards. In the US, plant varieties can also be protected by utility patents, whereas under the European Patent Convention, plant varieties per se are not patentable, but patent claims for broader plant groupings are allowable. A recent analysis of Plant Variety Protection (PVP) shows that most activity is still confined to industrialised countries; applications in high-income countries peaked in the early 1990s while there is still growth in the number of applications in upper-middle-income countries [Koo et al 2004]. While most developing countries do not object to the idea that some form of protection should be provided to new plant varieties, issues of seed saving and exchange, research exemption, and use of domestic genetic resources, particularly by MNCs, have been the major issues of contention. Public debate has brought increased sensitivity to these concerns, and providing an appropriate benefit-sharing mechanism for sustainable use of genetic resources and striking a balance between the commercial and farmers’ interests are major challenges faced by the policymakers. Countries do not have to join UPOV to meet the requirements of TRIPS and a number of countries (e g, Indonesia, Tanzania) have enacted acceptable PVP legislation but have chosen not to join UPOV.³

India: The government has enacted all the necessary legislation to comply with the requirements of the TRIPS agreement. For protection of plant varieties, the Protection of Plant Varieties and Farmers’ Rights Act (PVFR Act, 2001) and the authority to oversee its implementation are in place. The act provides protection to a new variety including an “essentially derived variety” (a variety derived from another variety while retaining expression of its essential characteristics) and a farmers’ variety of specified genera and species provided it conforms to the criteria of “novelty, distinctiveness, uniformity and stability (NDUS)”. The act also has a provision for protection of an “extant variety”– a variety already notified under the Seed Act, farmers’ variety, or a variety about which there is common knowledge or is in public domain. The act confers an exclusive right to the breeder or his successor, agent or licensee, to produce, sell, market, distribute, import or export the variety for a period of 15 years (18 years in case of trees and vines).2 The act has a unique provision of benefitsharing to recognise the rights and contributions of local communities and farmers to conserving genetic resources. Further, the act not only extends PBRs to farmers for developing a new variety, but also permits farmers to save, use, exchange, share, and sell unbranded seed of a protected variety. There is a researchers’ exemption also, allowing the use of a protected variety for developing a new variety. Although UPOV will no longer accept applications from new members under the 1978 convention, it has agreed to make an exception for India because India started the process of developing its law before the closing date. It remains to be seen if UPOV accepts some of the act’s unique characteristics as consistent with the 1978 convention. Some observers feel that the act’s requirements of disclosing the source of genetic material and depositing seed and parental lines of the protected variety with the national gene bank, along with extensive farmers’ rights to sell seed and compulsory licensing have diluted the “private” interest.

India has also amended the Patent Act (1970) for the third time in December 2004 (earlier amendments in 1999 and 2002) to allow both process and product patents in all fields of technology, including biotechnology.3 The patent granted under this act confers upon the patentee exclusive rights to prevent a third party from making, using, offering for sale, selling or importing for those purposes that product, or the use of a patented process, in India.

The term of every patent granted shall be 20 years from the date of filing of patent application. The act specifies a number of inventions which are not patentable, and for agriculture these are: “a method of agriculture and horticulture”, and “plants and animals in whole or any part thereof other than micro-organisms but including seed, varieties and species and essentially biological processes for production or propagation of plants and animals”. However, any process to control a plant disease or to increase economic value of plants or their products can now be patented. This provision, coupled with the scope for patenting of a microorganism which is not a naturally occurring organism, leaves the Indian Patent Act open to patenting of DNA sequences and gene products developed after substantial human intervention and conforming to the general conditions of patentability. It is quite likely that biotech companies will test the contours of the act in the court of law, and eventually may succeed in their pursuit to protect biotech product innovations such as genes. This will have important implications for the plant breeding industry in general, and biotech industry in particular. It is feared that broad and strategic patenting by biotech companies may erect formidable entry barriers in biotechnology, promoting monopolistic control over the seed industry. ⁴

A new Indian Seeds Bill in 2004 has been circulated by the government of India to overhaul the seed regulatory system. The stated objective of the proposed law is to regulate the seed market and ensure seeds of "quality". With the proposed changes the seed law would be harmonised with other seed laws around the world and ensure the Indian seed market is open to big business. It is going to make registration of all the seeds mandatory. The regulatory system governing GM crops is in the process of being revamped with the National Biotechnology Development Strategy. It is clear from the draft strategy that the government will be supporting the further introduction of GM crops. The new Seeds Bill follows this same line and does not prohibit the registration of GM seeds. Registration of transgenic seeds is however subject to environmental clearance under the Environment Protection law. However, in a gesture to keep critics quiet, the Seeds Bill does ban the use of Terminator seeds. ⁵

Protecting Farmers Rights

What Farmers Rights are depends to a large extent with whom you talk. A farmers’ organisation in the Philippines defines it as an issue of farmers’ control over their seed, land, knowledge and livelihoods, while an article in the Hindu Business Line describes it as the right for farmers to have access to transgenic crops. The International Seed Federation has little respect for the concept, saying that: “Farmers’ Rights were introduced rather emotionally, without careful consideration (…) and have led to endless discussions”. The Farmers Rights Information Service set up by the M.S. Swaminathan Research Foundation explains its existence on the grounds that indigenous groups and farmers also need to gain economic rewards from the exploitation of biodiversity along with commercial interests.

The official definition laid down in Article 9 of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture doesn’t help us much further. It says that countries should protect and promote Farmers Rights by giving farmers an equitable share in the benefits, and by letting them participate in decision-making. But these ‘rights’ are limited by the country’s “needs and priorities” and are “subject to national legislation”. Even the age-old right of farmers to save and exchange farm-saved seed is not clearly guaranteed, but made subject to “national law and as appropriate” ⁶

T. Ramanaiah, a cotton farmer from Andhra Pradesh, is currently fighting a case to get compensation for very poor yields in the District Consumer Court, an option which is by its very nature a tedious one without any guarantee of success. His struggle has inspired activists to put together a legal manual for farmers seeking compensation for failed yields. Often, even if a government recognises that farmers' need to be compensated, the company might not be ready to pay up. In the State of Andhra Pradesh when farmers suffered losses from cultivating Monsanto's Bt cotton, Monsanto was only willing to pay for failure to germinate and for absence of the genetic purity promised by the company, and not for yield losses. The Plant Variety Protection (PVP) law of India does make provision for farmers to claim, via a PVP Authority, compensation from the breeder of a variety if it does not perform as expected, though such a body has not yet been set up. Such a body, when formed, would only rule on varieties which are PVP registered and such decisions would be on a discretionary basis. ⁷

Competing with Multinational Seeds

So why don't farmers simply get their seeds registered? In this way, they could legally sell their home-grown varieties of seeds. However, under the proposed system it makes it impossible for farmers to register varieties. The process takes a long time, is extremely expensive for a farmer, and anyway farmers' seeds would probably fail to pass the required standards. A farmers' breeding criteria are very broad, incorporating ecological and social factors, rather than only yield; what is exchanged between farmers is determined by local needs and therefore farmers’ varieties are best regulated by farmers themselves. As a result, there are some in India advocating for a community certification process by, and for, small-scale farmers.

Farmers can, therefore, sell harvested seed which is a registered variety. But the problem here is that if the registered seed is also PVP-protected then the farmer is again prohibited by the PVP legislation from selling branded seed in the market.

As for farmers' varieties of crops, the very crops that they have been growing, exchanging and selling for many generations, evidence from around the world shows that these will die out. By following the letter of the law, there will be little incentive to grow and use farmer varieties and farmers will have no choice but to buy and use registered seed from a private company. On the other hand, many farmers are likely to ignore the law on the sale of seeds and indeed stopping the sale of farmers' seeds will be very difficult to enforce. Indeed, the very survival of farmers' varieties may be very dependent on farmers simply ignoring this aspect of the law and continuing to sell and buy their own farmer varieties. ⁸

Community Knowledge

The notion of IPR arose from interlocking western doctrines of commerce, science and law, integral to justifying and expanding colonisation. The idea that knowledge can be created, owned, bought or sold by a single inventor conflicts with many indigenous and non-western views that it is instead inextricably linked to culture, spirituality, identity and place; created communally; and refined, adapted, and developed incrementally over time.

Current IPR systems reward individual 'inventors' for products, processes, or innovations relating to genetic material derived from plants, animals, or organisms, but not communal knowledge. As far as plants are concerned, there are three main kinds of patents—on methods and processes, genes, and 'new' plant varieties. The patent criteria are innovativeness, industrial applicability and non-obviousness (i.e., some human intervention was necessary to 'create' or alter the variety). When genetic material is processed in labs, it is called an 'invention’ and may be patented, bestowing exclusive rights on its 'owner’. Broad patents are now being granted for plant varieties, covering ownership of 'traits' and 'characteristics'. Seed companies benefit greatly from this.⁹ The argument is on the ownership rights. It is not faire and just to give intellectual property rights to only one individual or a group of individuals who only make minor changes in the product or process. Specially the knowledge which has been created developed and protected from years by community as a whole. If an idea or a product has been modified or changed it can be a property of an individual who work on that idea. It is assume that many of the traditional knowledge, product and process will become private property soon.  

Developing countries and Patent issue

The developing countries, including India, which have proposed an amendment to the accord on trade-related intellectual property rights (TRIPs), to incorporate a bio-piracy prevention clause, can draw satisfaction from the endorsement that their move is receiving from different quarters, though final acceptance is not yet a given. The latest to back the move at the World Trade Organisation (WTO) Council's recent meeting in Geneva was the group of least developed countries. This support, of course, is not without reason. Like India, many of these countries are well endowed with biodiversity and traditional knowledge about the gainful uses of herbs and other natural bio-resources, which are now being sought out by the big international pharmaceutical and seed companies for commercial exploitation. India, of course, has been a major victim of bioplunder, requiring it to fight numerous legal battles to get patents revoked on products derived from Indian herbs and using the recipes outlined in its ancient texts. To avoid such international litigation in future, the proposed amendment seeks to make it mandatory disclosing the source (provider) and the country of origin of a biological resource or its associated traditional knowledge used for inventions put forth for patent protection.¹⁰

The relentless advance of private property

For the past three hundred years or so, industrialised societies (or at least the class of tangible property owners within them) have become increasingly preoccupied with property, its privatisation, and its ‘protection,’ meaning the accumulation of capital and control. The debate about property ownership has been framed as being between enclosure and commons, private property and public property. The ideology of personal (and now corporate) greed has become the unquestioned driver of the economy, with its assumption that humans are motivated only by the prospect of acquisition, and that progress results solely from increased production and consequent economic growth. Any semblance of a common/public property regime is simply a block, if not an enemy, to wealth and progress.

Over the past two decades many of us have criticised the concept and application of intellectual property rights (IPRs) on moral, spiritual and intellectual grounds. We have objected to the part they play, for example, in the relentless erosion of traditional practices of seed saving and medicine, accompanied by the theft of plant, animal and human genetic material, to say nothing of laying claim to the knowledge of indigenous peoples. All of this has been rationalised as reasonable activity by first conceptually reducing plants, animals and people to ‘genetic resources’ and then making this socially acceptable by labelling them ‘the common heritage of humanity.’

The corporate and governmental pirates engaged in this ‘resource’ exploitation claim that it is in the public interest that they do so on the grounds of the public benefits of the products – mostly drugs – they promise to produce from these ‘resources.’ While they demand extensive state intervention to protect what they regard as their ‘intellectual property,’ they do not appear to consider it unreasonable to demand increasing limitations on any state or community action in the public interest or for the public good.¹¹

Protection to Traditional Knowledge

Protection is very different things in intellectual property law and in ordinary usage. ‘Protection’ in the intellectual property sense means that the owner of a patent, a copyright, a trademark or some other piece of intellectual property has a legal right to exclude others from using or reproducing it. It is that specific piece of property which is protected, no more, no less.

In ordinary usage, ‘protection’ of course has a much broader sense. When developing countries speak about the need to protect Traditional Knowledge (TK), it is quite obvious that they mean ‘protection’ in the sense of safeguarding the continued existence and development of TK. As repeatedly pointed out by indigenous peoples’ organizations, this necessarily implies protecting the whole social, economic, cultural and spiritual context of that knowledge, something which simply is not possible to achieve with IPRs.

This conceptual confusion has been explicitly addressed in IGC documents (at least those in English), and the WIPO secretariat now systematically uses ‘protection’ only in the IPR sense and refers to the broader concept as ‘safeguarding’ or ‘preservation’. But this has not helped much, as almost everybody else continues to use ‘protection’ interchangeably in both senses. In the discussion about a sui generis IPR system for TK, the confusion has led to a complete mix-up between the two. Even though it is clear from WIPO’s own documents that creating IPRs over TK always requires that a limited piece of knowledge must be cut out from the community context and made into private property, the discussion in the IGC continues to be conducted as if IPRs could equally well be used to protect TK together with its context.

A similar confusion, with a similar outcome, has arisen over the terms “defensive” versus “positive” mechanisms for the protection of TK. Most people would think that you defend TK from IPRs. But through reams of paper and clever language, WIPO has managed to implant the idea that IPR is a form of defensive protection – against the wrong IPR holders! ¹²

Conclusion

Protection of Traditional knowledge definitely needs a system. And before talking about system we need to understand the need to protect traditional knowledge. The sharing of good seeds and sustainable agricultural methods were earlier done by farmers themselves. Farmers used to grow crops and share the good quality seeds among them. These seeds were suitable to the climatic condition of that particular region. This wide range of agricultural knowledge was developed since agriculture started. Biodiversity was the key of sustaining agriculture and increasing agricultural inputs.

With the industrialization of agriculture and with the theory of ownership and capitalization, we started looking at seeds, methods of farming and technical tools as property of our own rather than common property which is being developed over the period of time. This has given exclusive rights to those who claim that the property is their own. It has put limitation for the poor and resource less farmers who have no idea of claiming their rights to intellectual property. Small and resource less farmers have little knowledge about registration of their home grown varieties of seeds. Even when they are aware they do not have resources to claim their rights. It has also put question on mutual sharing of seeds and methods. Further it is very difficult to claim compensation for the loss of crops under transgenic variety of crops.

On the other hand big multinational companies have knowledge and resources to access traditional variety of seed. They have scope to modify traditional crops. They have capacity to get patent and establish market for their product and use it commercially. They also have power to restrict their property to farmers or claim high price for it. All these condition has put serious treat over biodiversity of Indian agriculture.

Legislation on intellectual property can become blessing if we have capacity to protect traditional knowledge in agriculture as well as can protect the rights of those communities who have developed this knowledge through ages.

¹ Buying life how MNCs gain control over our seeds by Dr. Ashesh Tayal, The Ecologist Asia, 01/07/2003
  [ C.eldoc1/g74a/01jul03eca5.pdf]

² Buying life how MNCs gain control over our seeds by Dr. Ashesh Tayal, The Ecologist Asia, 01/07/2003
  [ C.eldoc1/g74a/01jul03eca5.pdf]

³ Intellectual Property Rights in Plant Breeding and Biotechnology by SURESH PAL, ROBERT TRIPP, NIELS P LOUWAARS, ECONOMIC AND POLITICAL WEEKLY, 20/01/2007 
[ C.eldoc1/u10e/200107EPW231.pdf]

⁴ Intellectual Property Rights in Plant Breeding and Biotechnology by SURESH PAL, ROBERT TRIPP, NIELS P LOUWAARS, ECONOMIC AND POLITICAL WEEKLY, 20/01/2007 
[ C.eldoc1/u10e/200107EPW231.pdf]

⁵ India's new Seed Bill by Davinder Sharma, Seedling, 01/07/2005  [C.eldoc1/g74a/01jul05sdl1.html]

⁶ Good Ideas turned Bad? A glossary of rights-related terminology by Grain, 01/01/2004, Seedling, 01/01/2004    [C.eldoc1/u10e/01jan04sdl2.html]

⁷ India's new Seed Bill by Davinder Sharma, Seedling, 01/07/2005  [C.eldoc1/g74a/01jul05sdl1.html]

⁸ India's new Seed Bill by Davinder Sharma, Seedling, 01/07/2005  [C.eldoc1/g74a/01jul05sdl1.html]

⁹ Commodifying knowledge facilitating bio piracy by Aziz choudry, GeneNews, 01/03/07 U10a 
[ C.eldoc1/u10e/01mar07gene1.pdf]

¹⁰ Paying for bio-resources, Business Standard, 28 Nov 2007 U10e [C.eldoc1/u10e/28nov07bsb1.pdf]

¹¹ Redefining ‘property’: private property, the commons and the public domain by Brewster Kneen, Seedling, 01/01/2004
[C.eldoc1/u10e/01jan04sdl1.html]