Sri Lanka is currently in the process of drafting a new law on plant variety protection (PVP). This is being done with the participation of all stakeholders including representatives from government, industry, and academia. The proposed Act helps Sri Lanka to fulfill an important TRIPs commitment: The TRIPs Agreement (Trade-Related Intellectual Property Rights Agreement) allowed member states to exclude PVP from their legislation on Intellectual Property (IP), but mandates that some other system should be provided. While plant variety protection legislation is a long time in the offing in the Sri Lankan context (the revised Intellectual Property Act was passed in 2003), it is not without its fair share of controversy. This article strives to evaluate the probable effects of the proposed legislation, with a view to clarifying misconceptions that may have arisen in this regard. 

Rationale for plant variety protection in Sri Lanka

Sri Lanka is a nation rich in bio-diversity. It is home to a large number of endemic species and many wild relatives of crops that are being grown for agricultural purposes. As a net food importer, Sri Lanka should increase its domestic food production in order to face the global food crisis as well as conserve valuable foreign reserves. In the modern context, given the scarcity of arable land and water, the extremity of weather conditions and the increase of other threats to crops, new plant varieties and high quality seed are vital for human sustenance. However, in Sri Lanka, innovation with regard to plant varieties has taken place either very slowly, or not at all. Currently, only state-run research agencies (and a few privately-owned companies) are engaged in research related to crop diversification. We may expect that innovation related to plant varieties will increase due to the presence of legislation regulating the subject; hence the efforts taken to promulgate the Protection of New Plant Varieties (Breeders’ Rights and Farmers’ Rights) Act.

From a utilitarian aspect, agricultural crops mark an important transition in man’s evolution, from hunter-gatherers to farmers. Technology has always played a part in improving farming methods so as to maximize the yield, and this is true even today. The only notable difference between plant breeding then and now is the type of technology used. Since genetic modification is increasingly being used in agriculture, concerns are being raised about plant breeding. This does not mean that humankind is opposed to the idea of plant breeding altogether.

Status of plant breeding in Sri Lanka

Sri Lanka has traditionally and essentially been an agricultural economy. For years, its main exports have been primary agricultural products such as tea, rubber and coconut. The state has its own research centres for the development of breeding of tea, rubber, coconut, rice, certain vegetables and fruit. Apart from this, a few private companies are also engaged in doing agro-biotechnical research. The government centres are engaged in research solely for the public benefit, and very often, the new strains developed by them are given to the farmers free of charge, to promote the agricultural productivity of the country.

Protection options available to Sri Lanka

As a member of the World Trade Organization, Sri Lanka became a party to its agreement on trade-related intellectual property rights (TRIPS). At that time, Sri Lanka did have some legislation on intellectual property, but it was not very comprehensive. The TRIPS agreement called on members to provide patent protection for any new invention provided the given criteria were met. However, it allowed members to exclude plants and animals from patentability, provided a sui generis or other satisfactory system could be put in place (Article 27 (3) (b)). Sri Lanka enacted the Intellectual Property Act No 36 of 2003 in order to fulfill its commitment under TRIPS. The IP Act specifically excludes plants and animals (which is permissible under TRIPS) from the scope of its application. Hence, it became important to provide for this protection through another mechanism. This proposed law is discussed next.

Proposed law for PVP in Sri Lanka

The proposed law is entitled “Protection of New Plant Varieties Act”. This law also seeks to encourage the development of new varieties of plants and protect the rights of farmer, breeders and researchers.

Interpretation

Part 2 of the draft defines a ‘breeder’ as ‘a person or government department, university, statutory body or public funded agricultural institute that has bred or discovered and developed a variety’. This is quite a comprehensive definition.
In addition, the draft has recognized both owner-farmers and tenant farmers, as farmers. Further, according to the draft, ‘farmers’ variety’ means a variety which has been traditionally cultivated and evolved by the farmers in their fields; or is a wild relative or land race of a variety about which the farmers possess common knowledge;
The ‘common knowledge’ element is important in the Sri Lankan context, as traditional knowledge possessed by farmers, though at a high level, is not adequately recognized, recorded or rewarded in Sri Lanka. It is noteworthy that the draft attempts to define it as such, so that farmers could get the benefits of their knowledge.

Register and Registry of new plant varieties

The draft also provides for the creation of a Registry known as the National Registry of New Plant Varieties. This will exist for the collection and maintenance of information on extant varieties and the reception and maintenance of technical data and samples of new plant varieties.

Treatment of genetically modified varieties

The general tone of the draft seems to be that genetically modified varieties are registrable subject to certain conditions. The draft does not permit plant varieties involving terminator or other genetic use restriction technology (GURT) to be registered.

There is an implication that such technology is injurious to the life and health of human beings, animals or plants.
The proviso to Section 15 (1) states that when an application is made for the registration of any new plant variety, if the variety has been developed through GM technology, it should first be cleared through a bio safety mechanism established by the government of Sri Lanka.

Farmers’ rights and rights of indigenous communities

There has been a lot of debate about the rights of farmers and indigenous communities. In Sri Lanka, which is still largely an agricultural economy, many are subsistence farmers, who have to depend on government subsidies of fertilizer to make ends meet. Indeed, there have been high numbers of suicides reported from the farming sector, when those farmers are unable to make sufficient profits on their crops to even repay the loans they have taken to plant the buy seed, fertilizer, and plant the crops. The draft makes many concessions to farmers, but at the same time there are some provisions that may cause problems in the future.

Rights of farmers

The draft permits a farmer who has bred or discovered and developed a new variety to be entitled to the registration and other protection in like manner as a breeder (Section 34 (i)). Farmers are also entitled to save, use, sow, re-sow, exchange, share or sell their farm produce including seed of a variety protected under the legislation in the same manner as they were entitled to, prior to the legislation coming into force (Section 34 (ii)).

Section 35 (i) provides that ‘any right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right’, and Section 35 (ii) provides that ‘a relief which a court may grant in any suit for infringement referred to in section 41 shall not be granted by such court, not any cognizance of any offence under this Act shall be taken, for such infringement by any court against a farmer who proves, before such court, that at the time of the infringement he was not aware of the existence of the right so infringed’. It is heartening that such protection has been given to the farming community, as many of them will not even be aware of the existence of the new law when it does come into operation, and they should be shielded from unnecessary prosecution, which is not unlikely to happen.

Curtailing rights currently enjoyed by farmers

In terms of the new draft, farmers are not entitled to sell branded seed that is protected under the legislation. This has caused some controversy, with some writers being totally opposed to such a prospect. The full impact of this provision will be seen only when the law comes into operation.

Researchers’ rights

The draft also includes a section on researchers’ rights. In terms of this section, all researchers are given the exception to use registered varieties for experimentation and research, or as an initial source of variety for the purpose of creating other varieties: provided that the authorization of the holder of the rights to the registered variety is required where the repeated use of such variety as a parental line is necessary for commercial production of such other newly bred variety.

The draft further provides that ‘Where a variety has been bred in any public agricultural research institute or public university and is commercialized, the breeders who have actively contributed to the breeding of the variety shall receive an honorarium from the commercialization price as decided by the Minister under regulations……..’

From the viewpoint of the public research institution, this is a very welcome move. Previously, research in these institutions had to be done almost for altruistic purposes. Even where a new plant variety was created, the creator, quite apart from not being able to have the satisfaction of seeing it registered under his/her institution’s name, would have to suffer the mortification of seeing it un-owned, or exploited freely by someone else. This would obviously not be good for the morale of the researcher, and would lead to a dwindling in research interest. It is anticipated that the new Act will give a much-needed boost in the arm to the public sector research agencies, and will in turn create the competitive environment that would allow private players to thrive, thereby making the market very competitive.

Suggestions, conclusions and recommendations

One of the biggest criticisms related to the draft has nothing to do with its substance, but rather, with the inordinate delay that is taking place with regard to implementing it. If the legislation is delayed very much more, it may very well be outdated when it is finally passed, and as such it will not be of much use to the country.

It is the opinion of this author that the time taken to convert this draft to law could be effectively utilized to create greater public interest in, and awareness of, the new legislation, so that resistance to it could be minimized. Since the law deals with topics that arouse the sensitivities of the public, who are already wary of protection regimes due to the negative publicity surrounding bio-piracy, it is vitally important to educate and inform the public. Otherwise the time, efforts and resources, both human and material, spent on this exercise would have been in vain.

(The writer is a lecturer in Intellectual Property Law at the Faculty of Law,
University of Colombo)