Seed Act And Patent Act: Sowing The Seeds Of Dictatorship
By Vandana Shiva
15 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 lifes 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
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
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 farmers exchange,
a necessary aspect of maintaining high quality seed supply at the community
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
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
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 State 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.
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
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
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
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 W.T.O.
As Monsanto had
a hand in drafting the TRIPS agreement, it is not surprising that the
Monsanto Amendments have also made their way into Indias patent
As Monsanto had
a hand in drafting the TRIPS agreement, it is not surprising that the
Monsanto Amendments have also made their way into Indias patent
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 Indias 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:
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
e.g. the shrutis and in the Indian tradition and grandmother's portions
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
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
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.
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 Monsantos Round up Ready
Canola, but instead of Monsanto paying Percy on the basis of the
pollute principle, Monsanto demanded $200,000 fine for theft
of Monsantos intellectual property. Thousands of U.S.
farmers also have been sued. Will Indian farmers be blamed for theft
when Monsantos 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
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 U.S. 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.
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 U.S.
government as well as the requirements of the TRIPS agreement of the
W.T.O. while W.T.O. gives a five year transition period to introduce
PGR legislation, the U.S. pressure was to introduce such legislation
immediately. Further, the U.S. has been demanding monopoly protection
for Transnational Corporations (TNCs) which control the seed industry.
On the other hand peoples 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 U.S. 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.
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 for a against
patenting and always stood for free exchange of germplasm.
He saw IPRs in PGRs
as a prescription for famine. Commenting on the U.S. demand for patents
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 U.S. government is coercing the Indian government to do is
introduce unhealthy fat and meat rich diets through the expansion of
U.S. 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
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.
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.