The agricultural industry is one of the most significant fields to understand and analyze the context of intellectual property rights due to the significant developments in law and policy in the past decades.

The conservation, use, and commercial exploitation of plant varieties by farmers, commercial breeders, governments, and international organizations are a part of plant variety management. One area within this broad field that concentrates on only the information that can be used commercially is plant variety protection. Plant variety protection refers to intellectual property rights over plant varieties that grant holders exclusive commercial rights for a set amount of time.

Rapid changes in the international regime governing genetic resources are having a significant impact on the framework of agricultural development in developing nations. The requirement of WTO Members to extend intellectual property protection (IPP) in agriculture by shielding improved varieties of plants through an efficient sui generis system of protection is a key component of this change, in addition to the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR). This is just one of many requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which has a significant impact on how many developing nations protect their intellectual property.

Historical Background:
The Paris Convention of 1883 was the first multilateral agreement for harmonizing IP laws.[1] It not only extended protection to industrial property but also applied to agriculture and extractive industries. Following this, many European countries made attempts to extend the protection of intellectual property to the field of agriculture. However, the USA made the first attempt to recognize the intellectual property right of a plant breeder by enacting the Plant Patent Act in 1930.

The act aimed to protect asexually propagated plants by patents. On the other hand, the enactment of the act fueled debate on the extension of IPR protection to agriculture. Experts opined that patent protection should be extended to plants whereas sui generis protection should be extended to recognize the rights of the plant breeders.

The Convention on the Unification of Certain Points of Substantive Law on Patents for Invention was adopted by several European nations. The convention provided for the exclusion of plant or animal varieties or essentially biological processes for the production of plants and animals from the definition of patentable subject matter.

Later, in 1973, the European Patent Convention adopted these exceptions in its Article 53, and the TRIPS Agreement, 1995, adopted the same language in Article 27.3. (b). The 1970s settled the dispute regarding the adoption of IP protection in agriculture. However, it was in 1995 that the developing nations agreed to it with the adoption of the TRIPS agreement.

The Convention on Biological Diversity was adopted in 1992. It acknowledged the sovereign rights of a nation over its biological resources. Article 8 (j) of the convention acknowledged the role of the local communities and indigenous people in the preservation and conservation of biological resources along with a fair and equal share of the advantages brought about by the use of such knowledge.[2] Later, it was recognized that this benefit-sharing was a crucial element in the realization of farmers' rights.

With the establishment of the World Trade Organization, the TRIPS Agreement stipulated that by 1995, intellectual property in agriculture should be protected by either patent or by effective sui generis protection, or both.[3] This implied that both developed and developing WTO members would extend some sort of protection to agriculture. Additionally, the provision for extending the sui generis protection gave the right to defend farmers' rights and strike a balance between breeders' and farmers' rights. Additionally, it allowed for the extension or restriction of farmers' rights based on the requirements of the relevant country.

Status Quo:
The Protection of Plant Varieties and Farmers' Rights Act was passed by India by TRIPS regulations. The Act takes a comprehensive approach to dealing with plant varieties protection and farmers' rights. It has advanced the idea of farmers' rights and genuinely addresses the concerns of farmers as breeders, innovators, conservers, etc. The sui generis system in India is unmatched in the entire world. To meet the needs of farmers, it has attempted to combine elements of UPOV and ITPGRFA with some unique features of its own.

According to Section 39 of the PPV&FR Act of India, farmers have several rights. The legal systems of other Asian nations' definitions of farmers and further protections for their rights can be contrasted with those of India. [4]

The act specifically lays down the rights of the breeders and the farmers. The breeders have the exclusive right to produce, sell, market, distribute, import, or export the protected variety. They can also appoint an agent/licensee and exercise their civil remedies in cases of infringement.

On the other hand, the farmers who have evolved or developed new varieties of plants are entitled to their registration and protection in the same way as the breeder of a variety is. Similarly, they are eligible for recognition and rewards for the conservation of Plant Genetic Resources of landraces and wild relatives of economic plants. The act provides for various other rights for the farmers.

On the international front, most of the international IPR obligations are adopted in the UPOV Act. The act provides for the eligibility requirements, exclusive rights, national treatment, terms of protection, and exceptions and limitations to exclusive rights.

Article 58 of the 1978 act provides any person who engages in (i) production for commercial marketing, (ii) the offering of sale, and (iii) marketing concerning a protected variety's reproductive or vegetative propagating material, must obtain the prior authorization of the breeder.

These exclusive rights come with two major exceptions and limitations. These include:
Breeders' exemption:
The exemption under article 5(3) precludes member states from granting to breeders of protected varieties, the right to authorize or refrain from authorizing other breeders seeking to use the protected variety to create new varieties or to market those new varieties. States are allowed to grant such an authorization right only if the repeated use of the protected variety is necessary for the commercial production of the new variety. According to the International Association of Plant Breeders and the International Seed Federation, this breeders' exemption "is essential for continued progress from plant breeding."

Farmers' Privilege:
According to the 1978 Act on commercial exploitation of protected plant varieties, seeds, and propagation materials may be used for non-commercial purposes without the prior consent of the breeder. The most frequent beneficiaries of this implicit non-commercial exception are farmers who buy seeds from protected varieties.[5]

The introduction of new technologies and the ability to discover and incorporate exotic genetic material into commercial products, has accelerated the pace of change in the industry and IP systems. The future will be decided by the extensive economic exploitation of genetic variety driven by research and development for obtaining IPR.

The transition phase for the developing countries is coming to an end. The timescale has been insufficient due to the lack of capacity and limited financial assistance from developed countries. Some people have to still fulfill their responsibilities whereas others have adopted ready-made models from the industrialized world in response to time constraints.

Opinions and Suggestions:
The current international legal framework is still partly inconclusive concerning the type of agricultural management that it seeks to promote. The PGRFA treaty seems to be more practical because it aims to foster a free flow of plant genetic resources while accepting the validity of intellectual property rights claims over transformed material, in contrast to the TRIPS Agreement, which generally seeks to encourage private appropriation of inventions. This demonstrates that there is no inherent reason to emphasize on improving IPR protection.

There are several treaties with the same mandates that lack coordination mechanisms in their provisions, possibly as a result of the decentralized nature of international law. The TRIPS Agreement and the biodiversity convention are in a relationship of equality since they were negotiated separately by the member states and have the same legal weight. No environmental treaty is mentioned in the TRIPS Agreement, and any potential overlaps are not acknowledged. Although there is a general IPR provision in the Biodiversity Convention, there is no mechanism in place in the event of a conflict.

It is critical to conclude that intellectual property protection in agriculture and sustainable development are indeed integrated into the light of the fragmented position of international law. It is impossible to separate the introduction of intellectual property rights from the preservation of agrobiodiversity, the general protection of traditional knowledge, and the reach of life patenting which influences the advancement of genetic engineering.

Sound international decisions are key to maintaining the delicate balance between the complex aspirations and vulnerabilities of the present. The only way to address the shared needs of the North and the South is to harmonize the fragmented body of international law.

Conclusion:
Sui generis protection for IP in agriculture has helped countries in incorporating rights for plant breeders and farmers. However, the understanding of farmers' rights lacks a clear definition and is vague. The ITPGFRA has made an effort to provide a unified concept, but the elements of farmers' rights differ from nation to nation as nations are free to choose their methods based on their priorities and resources.

The countries in South and Southeast Asia have given significant attention to the rights of the farmers. The sui generis protection tool has been used extensively in India to strike a fair balance between the rights of farmers and plant breeders. However, many other Asian nations have used it to defend the rights of plant breeders rather than those of farmers.

The sui generis protection provided by WTO enables the member nations to adopt laws that satisfy their needs while safeguarding their interests. Nevertheless, it is up to the countries to determine how to recognize and address the benefits and/or shortcomings of the current IPR system.

End-Notes:

1. WIPO Intellectual Property Law Handbook, Policy, Law and Use, (last visited Jul. 18, 2022).
2. Convention on Biodiversity, Article 8, (last visited Jul. 17, 2022).
3. TRIPS Agreement, Article 27.3.(b), (last visited Jul.17, 2022).
4. Rohan Dang and Chandni Goel, Sui Generis Plant Variety Protection: The Indian Perspective, 4, American Journal of Economics and Business Administration, 303-312 (2009).
5. Leskien & Flitner, 1997, p. 61.