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TITLE: The Indian Seed Act and Patent Act: Sowing the Seeds of Dictatorship
AUTHOR: Vandana Shiva
PUBLICATION: Znet
DATE: 14 February 2005
URL: http://www.zmag.org/content/showarticle.cfm?SectionID=56&ItemID=7249
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THE INDIAN SEED ACT AND PATENT ACT:
SOWING THE SEEDS OF DICTATORSHIP
by Vandana Shiva
14 February 2005
Since the beginning of farming, farmers have sown seeds, harvested
crops, saved part of the harvest for seeds, exchanged seeds with
neighbours. Every ritual in India involves seeds, the very symbol of
life's renewal.
In 2004 two laws have been proposed -- a seed Act and a Patent
Ordinance which could forever destroy the biodiversity of our seeds
and crops, and rob farmers of all freedoms, establishing a seed
dictatorship.
Eighty per cent of all seed in India is still saved by farmers.
Farmers indigenous varieties are the basis of our ecological and
food security. Coastal farmers have evolved salt resistant
varieties. Bihar and Bengal farmers have evolved flood resistant
varieties, farmers of Rajasthan and the semi-arid Deccan have
evolved drought resistant varieties, Himalayan farmers have evolved
frost resistant varieties. Pulses, millets, oilseeds, rices, wheats,
vegetables provide the diverse basis of our health and nutrition
security. This is the sector being targeted by the Seed Act. These
seeds are indigenous farmers varieties of diverse crops -- thousands
of rices, hundreds of wheats, oilseeds such as linseed, sesame,
groundnut, coconut, pulses including gahat, narrangi, rajma, urad,
moong, masur, tur, vegetables and fruits. The Seed Act is designed
to "enclose" the free economy of farmers seed varieties. Once farmers
seed supply is destroyed through compulsory registration by making it
illegal to plant unlicensed varieties, farmers are pushed into
dependency on corporate monopoly of patented seed. The Seed Act is
therefore the handmaiden of the Patent Amendment Acts which have
introduced patents on seed.
New IPR laws are creating monopolies over seeds and plant genetic
resources. Seed saving and seed exchange, basic freedoms of farmers,
are being redefined. There are many examples of how Seed Acts in
various countries and the introduction of IPRs prevent farmers from
engaging in their own seed production. Josef Albrecht, an organic
farmer in Germany, was not satisfied with the commercially available
seed. He worked and developed his own ecological varieties of wheat.
Ten other organic farmers from neighbouring villages took his wheat
seeds. Albrecht was fined by his government because he traded in
uncertified seed. He has challenged the penalty and the Seed Act
because he feels restricted in freely exercising his occupation as
an organic farmer by this law.
In Scotland, there are a large number of farmers who grow seed potato
and sell seed potato to other farmers. They could, until the early
1990s, freely sell the reproductive material to other seed potato
growers, to merchants, or to farmers. In the 1990s, holders of plant
breeders' rights started to issue notices to potato growers through
the British Society of Plant Breeders and made selling of seed
potato by farmers to other farmers illegal. Seed potato growers had
to grow varieties under contract to the seed industry, which
specified the price at which the contracting company would take back
the crop and barred growers from selling the crop to anyone. Soon,
the companies started to reduce the acreage and prices. In 1994,
seed potato bought from Scottish farmers for £140 was sold for more
than double that price to English farmers, whilst the two sets of
farmers were prevented from dealing directly with each other. Seed
potato growers signed a petition complaining about the stranglehold
of a few companies acting as a 'cartel'. They also started to sell
non-certified seed directly to English farmers. The seed industry
claimed they were losing £4 million in seed sales through the direct
sale of uncertified seed potato between farmers. In February 1995,
the British Society for Plant Breeders decided to proceed with a
high profile court case against a farmer from Aberdeenshire. The
farmer was forced to pay £30,000 as compensation to cover royalties
lost to the seed industry by direct farmer-to-farmer exchange.
Existing United Kingdom and European Union laws thus prevent farmers
from exchanging uncertified seed as well as protected varieties.
In the US as well, farmer-to-farmer exchange has been made illegal.
Dennis and Becky Winterboer were farmers owning a 500-acre farm in
Iowa. Since 1987, the Winterboers have derived a sizeable portion of
their income from 'brown bagging' sales of their crops to other
farmers to use as seed. A 'brown bag' sale occurs when a farmer
plants seeds in his own field and then sells the harvest as seed to
other farmers. Asgrow (a commercial company which has plant variety
protection for its soybean seeds) filed suit against the Winterboers
on the grounds that its property rights were being violated. The
Winterboers argued that they had acted within the law since
according to the Plant Variety Act farmers had the right to sell
seed, provided both the farmer and seller were farmers.
Subsequently, in 1994, the Plant Variety Act was amended, and the
farmers' privilege to save and exchange seed was amended,
establishing absolute monopoly of the seed industry by making
farmer-to-farmer exchange and sales illegal.
Similar laws are being introduced in India. The entire country is
being taken for a ride with the introduction of the Seed Act 2004 on
grounds that the Act is needed to guarantee seed quality. However,
the Seed Act 1966 already performs the function of seed testing and
seed certification. Twenty labs have been declared as seed testing
labs under the 1966 Act in different States. Nine seed corporations
have been identified as certification agencies.
Under pressure from World Bank the Seed Policy of 1988 started to
dismantle our robust public sector seed supply system, which
accounted for 20% of the seeds farmers grow. Eighty per cent of the
seed prior to globalisation is the farmers' own varieties, which
have been saved, exchanged and reproduced freely and have guaranteed
our food security.
A License Inspector Raj for Seeds
The introduction of 2004 Seed Act needs to be assessed in the context
of the simultaneous introduction of the 3rd Patent (Amendment) Act.
Our 1970 Patent Law has been changed under the coercive pressure of
WTO in spite of the overdue mandatory TRIPS review. Patents will now
been granted for seeds, plants, micro-organisms, cells and even GMOs
and animals.
Quite clearly a monopolistic patent regime cannot be established as
long as farmers have the alternative of their own zero cost,
reliable, time tested high value seeds of their traditional
varieties of indigenous agro-biodiversity.
The Seed Act 2004 has one and only one objective of stopping farmers
from seed saving, seed exchange and seed reproduction.
In the objective the 2004 Act clearly states that it is aimed at
replacing farmers saved seeds with seeds from private seed industries.
The repeated reference to 'barter' in the Seed Act will prevent
farmer's exchange, a necessary aspect of maintaining high quality
seed supply at the community level.
Further the compulsory registration of seed combined with the power
of seed inspectors to enter and search premises (which now mean
farmers' huts and fields), the power to break open any container and
any door is tantamount to creating a 'Seed Police' to terrorize
farmers who are conserving biodiversity and practicing a sovereign
self-reliant agriculture. The fine for seed exchange and barter of
unregistered seed (thousands of farmers varieties has a fine of up
to Rs. 25000). While criminalizing farmers who consume biodiversity
and traditional varieties, the Seed Act fails to do one thing it
should have done, which is to regulate and hold liable private seed
industry for seed failure and genetic contamination from GMOs. For
example the failure of maize seeds in Bihar last year cost more than
1000 crores to Bihar farmers and the constant failure of Bt cotton
annually is costing more than a billion dollars to Indian farmers.
In the new Seed Act farmers can only claim compensation under the
Consumer Protection Act. This option is in any way is available to
the farmers presently and the brutal power of the Central Authority,
which acts to prevent farmers from growing own seeds, provides no
safety and remedy to our farmers from untested and hazardous seeds
MNCs are selling in the Indian market.
The Seed Act has also undermined the role of the State governments.
The Central Seed Committee in 1966 Act has representatives nominated
by the government of each State. Now only 5 States will be
represented in the Central Seed Committee and even these will be
nominated not by the State governments but by the Centre.
The 2004 Seed Act has nothing positive to offer to farmers of India
but offer a promise of a monopoly to private seed industries, which
has already pushed thousands of our farmers to suicide through
dependency and debt caused by unreliable, high dependency and
non-renewable seeds.
The 1966 Act has served the country well and should continue to
provide the framework for seed testing and seed certification.
Farmer varieties and indigenous agro-biodiversity is already been
registered by Local Biodiversity Committee through Community
Biodiversity Registers (CBRs). We do not need a Centralized Seed
Authority with police power which uses compulsory registration to
prevent farmers from growing, saving and exchanging their own seeds.
It is the MNC seed industry that need regulation and not the small
farmers of our country without whose seed freedom the country will
have no food sovereignty and food security.
Product Patent on Seeds
Methods of agriculture and plants were excluded from patentability in
the Indian Patent Act 1970 to ensure that the seed, the first link in
the food chain, was held as a common property resource in the public
domain. In this manner, it guaranteed farmers the inalienable right
to save, exchange and improve upon the seed was not violated.
But recently, two amendments have been made in the 1970 Patent Act.
The 2nd Amendment makes changes in the definition of what is NOT an
invention. This has opened the flood gates for the patenting of
genetically engineered seeds.
According to Section 3(j) of the Indian Patent Act, the following is
not an invention:
"Any process for the medical, surgical, creative, prophylactic or
other treatment of human beings or any process for a similar
treatment of animals or plants or render them free of disease or to
increase their economic value or that of their products."
In the 2nd Amendment however, the mention of "plants" have been
deleted from this section. This deletion implies that a method or
process modification of a plant can now be counted as an invention
and therefore can be patented. Thus the method of producing Bt
cotton by introducing genes of a bacterium thurengerisis in cotton
to produce toxins to kill the bollworm can now be covered by the
exclusive rights associated with patents. In other words, Monsanto
can now have Bt cotton patents in India.
The Second Amendment has also added a new section (3j). This section
allows for the production or propagation of genetically engineered
plants to count as an invention. Its status as an invention thus
deems it. But this section excludes as inventions "plants and
animals including seeds, varieties and species and essentially
biological processes for production or propagation of plants and
animals". Since plants produced through the use of new
biotechnologies are not technically considered "essentially
biological," section 3j has found another way to create room for
Monsanto. This loophole, couched in the guise of scientific
advancement, thus allows patents on GMOs and hence opens the flood
gate for patenting transgenic plants.
What is most concerning is how the language of section 3j is a
verbatim translation into India law of Article 27.3 (b) of TRIPS
Agreement. Article 27.3 (b) of TRIPS states:
"Parties may exclude from patentability plants and animals other than
micro-organisms, and essentially biological processes for the
production of plants or animals other than non-biological and
microbiological processes. However, parties shall provide for the
protection of plant varieties either by patents or by an effective
sui generis system or by any combination thereof. This provision
shall be reviewed four years after the entry into force of the
Agreement establishing the WTO."
As Monsanto had a hand in drafting the TRIPS agreement, it is not
surprising that the Monsanto Amendments have also made their way into
India's patent laws.
However, Article 27.3(b) is under review. The Government should have
insisted on the completion of the review, a commitment of the Doha
Round, instead of changing India's Patent Law. As a result of
sustained public pressure, after the agreement came into force in
1995, many Third World countries made recommendations for changes in
Article 27.3 (b) to prevent biopiracy. India, in its discussion
paper submitted to the TRIPS Council stated:
"Patenting of life forms may have at least two dimensions. Firstly,
there is the ethical question of the extent of private ownership that
could be extended to life forms. The second dimension relates to the
use of IPRs' concept as understood in the industrialized world and
its appropriateness in the face of the larger dimension of rights on
knowledge, their ownership, use, transfer and dissemination
"Informal systems, e.g. the shrutis in the Indian tradition and
grandmother's potions all over the world, get scant recognition. To
create systems that fail to address this issue can have severe
adverse consequences on mankind, some say even leading to
extinction."
"Clearly, we must re-examine the need to grant patents on life forms
anywhere in the world. As we continue to assess this situation, in
the meantime it may be advisable to:
"1. Exclude patents on all life forms.
"2. If (1) is not possible, then we must exclude patents based on
traditional/indigenous knowledge and essentially derived products and
processes from such knowledge.
"3. At the very least, we must insist on the country of origin to
disclose the biological source and associated knowledge, and obtain
the consent of the country providing the resource and knowledge, to
ensure an equitable sharing of benefits."
To prevent competitors from selling seeds and to prevent farmers from
saving seeds, Monsanto has now turned to the patent laws to get
monopoly rights. The Monsanto Amendments of India's patent laws are
a logical consequence of the clearance for the commercial planting
of GMOs in Indian agriculture, as we saw earlier with the March 26th
decision of the Indian government to allow Bt cotton.
Patents on seeds are a necessary aspect of the corporate deployment
of GM seeds and crops. When combined with the ecological risks of
genetically engineered seeds like Bt cotton, seed patents create a
context of total control over the seed sector, and hence over our
food and agricultural security.
Looking with closer analysis, there are three ways that the 2nd
Amendment and 3rd Amendment of the Indian Patent laws have
jeopardized our seed and food security, and hence our national
security.
Firstly, it allows patents on seeds and plants through sections 3(i)
and 3(j), as we saw above. Patents are monopolies and exclusive
rights which prevent farmers from saving seeds; and seed companies
from producing seeds. Patents on seeds transform seed saving into an
"intellectual property crime".
Secondly, genetic pollution is inevitable. Monsanto will use the
patents and pollution to claim ownership of crops on farmers' fields
where the Bt gene has reached it through wind or pollinators. This
has been established as precedence in the case of a Canadian farmer,
Percy Schmeiser, whose canola field was contaminated by Monsanto's
"RoundUp-Ready Canola," but instead of Monsanto paying Percy on the
basis of the pollute principle, Monsanto demanded $200,000 fine for
"theft" of Monsanto's "intellectual property". Thousands of US
farmers also have been sued. Will Indian farmers be blamed for theft
when Monsanto's GM cotton contaminates their crops? Or will the
government wake up and enforce strict monitoring and liability?
When combined with the 3rd product patents amendment, these changes
can mean absolute monopoly. A decision on a plant patent
infringement suit has set a new precedent for interpreting plant
patent coverage. In the case of Imagio Nursery vs. Daina Greenhouse,
Judge Spence Williams, for the U.S. District Court for the Northern
District of California, ruled that a plant patent can be infringed
by a plant that merely has similar characteristics to the patented
plant. When combined with the reversal of burden of proof clauses,
this kind of precedence based on product patents can be disastrous
for countries from where the biodiversity that gave rise to those
properties was first taken, more so, if the original donors of the
biodiversity are accused of 'piracy' through such legal precedence
in the absence of the prior existence of laws on traditional
knowledge that prevent the misuse of such legal precedence.
In countries, where plant patents are not allowed, patenting genes is
available as an opening for patenting properties and characteristics
of the plant, and hence having exclusive rights to those properties
and characteristics. This is how Monsanto was able to establish
monopolies on seeds through patents on genes in Canada, even though
Canada does not allow patents on life forms.
Patent protection implies the exclusion of farmers' right over the
resources having these genes and characteristics. This will undermine
the very foundations of agriculture. For example, a patent has been
granted in the US to a biotechnology company, Sungene, for a
sunflower variety with very high oleic acid content. The claim was
for the characteristic (i.e., high oleic acid) and not just for the
genes producing the characteristic. Sungene has notified others
involved in sunflower breeding that the development of any variety
high in oleic acid will be considered an infringement of its patent.
Corporate Rights vs Farmers Rights
The State is under siege. New Intellectual Property Rights (IPR)
legislation is being introduced in the area of plant genetic
resources (PGR) under pressure of the US government as well as the
requirements of the TRIPS agreement of the WTO while WTO gives a
five year transition period to introduce PGR legislation, the US
pressure was to introduce such legislation immediately. Further, the
US has been demanding monopoly protection for Transnational
Corporations (TNCs) which control the seed industry. On the other
hand people's organisations are fighting to protect farmers' rights
to their biodiversity and their right to survival as well as the
freedom of scientists to work for the removal of hunger rather than
corporate profits. Farmers organizations, biodiversity conservation
groups, sustainable agriculture networks and public interest
oriented scientists are trying to ensure that farmers' rights are
protected, and through the protection of farmers' rights, sovereign
control over our biological wealth and its sustainable use in
agricultural production is ensured. The conflict over PGR legislation
is a conflict between farmers and the seed industry and between the
public domain and private profits, between an agriculture that
produces and reproduces diversity and one that consumes diversity
and produces uniformity.
On January 29, 1996 at an address at the Indian Institute of
Agricultural Research, the Unite States Secretary of Agriculture, Mr.
Daniel Glickman directly addressed the issue of the protection of
seed Multinationals (MNCs). He said, "I hope our new legislation
will provide a responsible and reasonable protection to private seed
companies, which will encourage them to provide the best seeds
available for your farmers. There would be very few inventions of
anything, particularly in agriculture, without patent protection
because it is the fundamental fact of nature that people will not go
through the expense of development of new ideas just for the
altruistic benefit of the human race."
The US IPR orthodoxy is based on a fallacious idea that people do not
innovate or generate knowledge unless they can derive private
profits. However, greed is not a "fundamental fact of human nature"
but a dominant tendency in societies that reward it. In the area of
seeds and plant genetic resources, innovation of both the 'formal'
and 'informal' systems has so far been guided by the larger human
good. Norman Borlaug the scientist behind the Green Revolution and
the recipient of the Nobel Peace Prize, made this clear in his
statement at a Press Conference at the Indian Agricultural Research
Institute, New Delhi on 8th Feb 96. He expressed concern against
private companies and TNCs gaining control of plant genetic
resources and seeds and patenting plants. Prof. Borlaug said,
"We battled against patenting. I and late Glen Anderson (of
International Wheat an Maize Research Institute) went on record in
India as well as other fora against patenting and always stood for
free exchange of germplasm."
He saw IPRs in PGRs as a prescription for famine. Commenting on the
US demand for patents he said:
"God help us if that were to happen, we would all starve."
Besides using a fallacious essentialist argument about human nature,
Mr. Glickman also stressed the inevitability of farmers' dependence
on MNCs for seeds due to trade liberalization and its impact on
agriculture.
According to him,
"As income increases throughout Indian society, food needs will
change ? higher vegetable oil consumption, a shift from rice to
wheat in urban areas and some shifting from grain to poultry and
livestock products. Also, the needs of the new food processing
industries will change the types of crops demanded. Therefore,
farmers must have access to new crop varieties in order to meet
changing consumer preferences."
In other words, what the US government is coercing the Indian
government to do is introduce unhealthy fat and meat rich diets
through the expansion of US agribusiness, agroprocessing and fast
food industry. The proposal is to replace the small peasant and
farmer based agricultural economy of India with agribusiness
controlled industrial agriculture. This shift is associated with a
transformation of farmers as breeders and reproducers of their own
seed supply to farmers as consumers of propriety seed from the seed
industry. It is also a shift from a food economy based on million of
farmers as autonomous producers to a food system controlled by a
handful of TNCs which control both inputs and outputs. This is a
recipe for food insecurity, biodiversity erosion and uprooting of
farmers from the land.
It is often stated that IPRs will not stop traditional farmers from
using native seeds. However, the Seed Act 2004 is designed to do just
that. Further when it is recognised that IPRs are an essential part
of a package of agribusiness controlled agriculture in which farmers
no longer grow native seeds but seeds supplied by the TNC seed
industry, IPRs become a means of monopoly that wipe out farmers
rights to save and exchange seed. This leads to TNC totalitarianism
in agriculture. TNCs will decide what is grown by farmers, what they
use as inputs, and when they sell their produce, to whom and at what
price. they will also decide what is eaten by consumers, at what
price, with what content and how much information is made available
to them about the nature of food commodities.
IPRs are a significant instrument for the establishment of this TNC
totalitarianism. The protection of the rights of citizens as
producers and consumers needs the forging of new concepts and
categories, new instruments and mechanism to counter and limit the
monopoly power of TNCs in agriculture. Community rights are an
important balancing concept for protecting the public interest in
the context of IPR protection for corporations. In the field of food
and agriculture, farmers' rights are the countervailing force to
breeders rights and patents on seed and plant material. Farmers'
rights in the context of monopoly control of the food system become
relevant not just for farming communities, but also consumers. They
are necessary not just for the survival of the people but also for
the survival of the country. Without sovereign rights of farming
communities to their seed an plant genetic resources, there can be
no sovereignty of the country.
Farmers' rights are an ecological, economic, cultural and political
imperative. Without community rights, agricultural communities cannot
protect agricultural biodiversity. This biodiversity is necessary not
just for the ecological insurance of agriculture. Rights to
agricultural biodiversity is also an economic imperative because
without it our farmers and our country will loose their freedom and
options for survival. Since biodiversity and cultural diversity are
intimately linked, conservation of agricultural biodiversity is a
cultural imperative also. Finally, without farmers' rights, there is
no political mechanism to limit monopolies in agriculture and
inevitable consequence of displacement, hunger and famine that will
follow total monopoly control over food production and consumption
through the monopoly ownership over seed, the first link in the food
chain.
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