PepsiCo has recently sued few Gujarati farmers, asking them to pay ₹1.05 crore each as damages for ‘infringing its rights’ by growing the potato variety used in its Lays chips.
Gujarat and Rajasthan farmers have been cultivating FC-5 variety of potato which has been registered by PepsiCo under the Protection of Plant Varieties and Farmers’ Rights Act 2001 (PPVFRA) — for their own use. The FC-5 variety, used to make Lay’s chips, is grown under a contract farming deal, by 12,000 farmers in Gujarat’s Sabarkantha district.
PepsiCo Arguments :
- PepsiCo has invoked Section 64 of the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001 to claim infringement of its rights.
- Under this—who, not being the breeder of a variety registered under this Act or a registered agent or a registered licensee of that variety, sells, exports, imports or produces such variety without the permission of its breeder or within the scope of a registered licence or registered agency without permission of the registered licensee or registered agent, as the case may be.
Farmers Arguments :
Under the PPV&FR Act, 2001 following Rights have been provided to farmers:
- Farmer who has bred or developed a new variety shall be entitled for registration and other protection under PPV&FR Act, 2001 in the same manner as a breeder of a variety.
- Farmer who is engaged in the conservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and preservation shall be entitled in the prescribed manner for recognition and reward from the Gene Fund provided that material so selected and preserved has been used as donors of genes in varieties registered under this Act.
- Farmer shall be entitle to save, use, sow, re-sow, exchange and share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act. (Section 39)
What is National gene fund under PPVFR Act?
As per the Protection of Plant Variety and Farmers Rights Act, 2001 Section 45 “National Gene Fund” has been constituted to receive contributions from:
- benefit sharing received from the breeder of a variety or an essentially derived variety registered under the Act, or the propagating material of such variety or essentially derived variety, as the case may be;
- annual fee payable to the Authority by way of royalty;
- compensation deposited by breeders and
- contributions from any National and International organizations and other sources
The Gene Fund to be applied for meeting:
- any amount to be paid by way of benefit sharing
- the compensation payable under sub-section (3) of section 41;
- the expenditure for supporting the conservation and sustainable use of genetic resources and for strengthening the capability of the Panchayat in carrying out such conservation and sustainable use;
- the expenditure of the schemes relating to benefit sharing framed under section 46.
Different between International Union for the Protection of New Varieties of Plants) 1991 and Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001
UPOV 1991 gives breeders the right to monitor all aspects of a farmer’s activity, shutting out scope for farmers to re-use seeds without their permission, the PPVRA rules this out. Section 39 (iv) says: “A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.” The seeds, it would appear, were not sold as branded seeds. Likewise, Section 42 says: “A 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.”
- A farmer who has evolved or developed a new variety is entitled for registration and protection in like manner as a breeder of a variety;
- Farmers variety can also be registered as an extant variety;
- A farmer can save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 in the same manner as he was entitled before the coming into force of this Act provided farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001;
- Farmers are eligible for recognition and rewards for the conservation of Plant Genetic Resources of land races and wild relatives of economic plants;
- There is also a provision for compensation to the farmers for non-performance of variety under Section 39 (2) of the Act, 2001 and
- Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act.