Interface between IPRs, Plant Breeders' Rights, Farmers' Rights, Indigenous Peoples' Rights and Community Rights
Law of Intellectual Property and Biodiversity · Unit III · Topic 10 of 14 · 7 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. The five kinds of rights
| Right | Holder | Main sources | Nature |
|---|---|---|---|
| IPRs (patents, GIs, trade marks) | Inventor, applicant, registered proprietor or producer group | TRIPS; Patents Act 1970; GI Act 1999 | Exclusive, time-limited (except GI), tradable |
| Plant breeders’ rights (PBRs) | Breeder of a new or extant variety | UPOV; TRIPS 27.3(b); PPV&FR Act s.28 | Exclusive right to produce, sell, market, distribute, import, export the variety |
| Farmers’ rights | Farmers as cultivators, conservers and breeders | ITPGRFA Art. 9; PPV&FR Act s.39 | Mostly use rights and rights to recognition and reward |
| Indigenous peoples’ rights | Indigenous peoples and tribal communities | UNDRIP 2007; ILO 169 and 107; Fifth and Sixth Schedules; PESA 1996; Forest Rights Act 2006 | Collective; land, resources, culture, self-determination |
| Community rights | Local communities (not necessarily indigenous) | CBD 8(j); Nagoya Arts. 6(2), 7, 12; BDA; PPV&FR Act s.41 | Collective; consent, benefit sharing, compensation, custodianship |
2. Points of conflict
- Private v. collective. IP and PBRs reward an identifiable inventor or breeder; the knowledge and landraces from which they draw were developed collectively over generations and have no single owner. Kloppenburg’s First the Seed (1988) describes how farmers’ seed was treated as free “raw material” while breeders’ varieties became property.
- Exclusivity v. customary use. A PBR or patent restricts saving and exchange of seed; farmers’ rights protect them.
- Novelty v. tradition. TK fails novelty and becomes prior art, open to all, so communities cannot own it under IP law but cannot stop others from building on it either.
- State v. community. The CBD vests sovereignty in the state; communities argue that they, not the state, hold the knowledge and resources. Under the BDA the NBA negotiates benefit sharing on the BMC’s behalf (section 21(1) as amended).
- Indigenous v. local. India does not recognise a separate legal category of “indigenous peoples” in international law; it voted for UNDRIP in 2007 on the basis that all Indians are indigenous, and it uses the constitutional category of Scheduled Tribes. India has ratified ILO Convention 107 (1957) but not ILO Convention 169 (1989).
3. Where they support each other
- Benefit sharing uses IP as a vehicle: royalties and joint ownership of IP (section 21(2)(a) of the BDA) pay communities from the profits of protected products.
- Farmers’ varieties as PBRs: the PPV&FR Act lets farmers register their own varieties and so hold the same exclusive rights as breeders.
- GIs and collective marks give producer communities a collective IP right tied to place and tradition.
- Disclosure requirements in patent and PBR law (Patents Act section 10(4); PPV&FR Act disclosure of source) make benefit sharing traceable.
4. Farmers’ rights in Indian law
Section 39 of the PPV&FR Act recognises the farmer as breeder (who may register a farmers’ variety), as conserver (entitled to recognition and reward from the National Gene Fund for conserving landraces and wild relatives used as gene donors), and as cultivator (entitled to save, use, sow, resow, exchange, share or sell farm produce including seed of a protected variety, but not branded seed of a protected variety, under section 39(1)(iv)). Section 42 protects innocent infringement. These go beyond what UPOV 1991 allows. The PepsiCo FL-2027 potato dispute (suits against Gujarat farmers in 2019, the revocation of PepsiCo’s registration in 2021 and the Delhi High Court Division Bench in 2024) is the leading example of PBRs and farmers’ rights colliding (see the Plant Varieties paper).
5. Indigenous peoples’ rights
The UN Declaration on the Rights of Indigenous Peoples (2007), Article 31, declares that indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, TK and traditional cultural expressions, including human and genetic resources, seeds, medicines and knowledge of the properties of fauna and flora, and to maintain, control, protect and develop their IP over these. Articles 26 and 32 deal with lands and resources and with free, prior and informed consent for projects affecting them. UNDRIP is not binding but has wide influence.
In India, the Forest Rights Act, 2006 recognises, in section 3(1)(k), the right of access to biodiversity and the community right to IP and TK related to biodiversity and cultural diversity. PESA (1996) gives Gram Sabhas in Scheduled Areas ownership of minor forest produce. In Orissa Mining Corporation v. Ministry of Environment and Forest, 2013 INSC 267, (2013) 6 SCC 476, the Supreme Court held that the Gram Sabhas of the Dongria Kondh and other forest dwellers in the Niyamgiri hills must decide whether bauxite mining would affect their religious, cultural and community rights under the Forest Rights Act; the Gram Sabhas rejected the project.
6. Community rights
- BDA: benefit claimers (section 2(aa)); consultation of BMCs on decisions about resources in their area (section 41(2)); collection fees (section 41(3)); exemption of local people, communities, growers and cultivators, vaids and hakims from section 7; People’s Biodiversity Registers documenting local resources and knowledge; benefit-sharing money for the areas from which resources were accessed (sections 27 and 32).
- PPV&FR Act, section 41: a village or local community may claim compensation for its contribution to the evolution of a registered variety, paid into the National Gene Fund.
- Defensive protection: section 3(p) and the TK opposition grounds of the Patents Act, and the TKDL.
7. Comparative models
- Peru, Law 27811 (2002): a sui generis regime for the collective knowledge of indigenous peoples connected with biological resources, with registers, licence contracts and a fund.
- Costa Rica, Biodiversity Law (1998): recognises “sui generis community intellectual rights”.
- African Model Law (OAU, 2000) for the protection of the rights of local communities, farmers and breeders and for the regulation of access to biological resources: treats community rights as inalienable and gives communities a right to refuse access.
- Andean Decision 391 (1996): access contracts must include an annex with communities when their knowledge is involved.
8. How Indian law reconciles them
India runs the rights side by side, with bridging rules: NBA approval or registration before grant of IP based on Indian resources (BDA section 6); exemption from that approval for plant variety applicants, since the PPV&FR Act has its own benefit sharing (sections 6 and 59A); benefit sharing under both Acts; disclosure of origin in patents; and community exemptions from access rules. The weakness is fragmentation: a single seed may involve the PPV&FR Authority, the NBA, the Patent Office and the Forest Rights Act, each with a different idea of who the “community” is. The 2023 exclusion of codified TK from benefit claimers for Indians also narrows community rights over knowledge recorded in classical texts, which communities often continue to practise.
The Divya Pharmacy v. Union of India decision (Uttarakhand High Court, 2018) held that an Indian company using biological resources commercially must share benefits with local communities, since benefit sharing under the Act is owed to communities and not only demanded of foreigners. That reasoning supports community rights against domestic industry; the 2023 exemptions limit it for AYUSH firms.
How this is examined
Likely long questions. “Discuss the interface between intellectual property rights, plant breeders’ rights and farmers’ rights.” “Examine the protection of the rights of indigenous peoples and local communities over biological resources and traditional knowledge in India.”
Likely short notes. Farmers’ rights; community rights under section 41 of the PPV&FR Act; Article 31 of UNDRIP; Kani–Jeevani model; People’s Biodiversity Register; section 3(1)(k) of the Forest Rights Act.