Rights of Breeders, Researchers, Farmers and Communities; Benefit Sharing

1. Breeders’ rights (section 28)

A certificate of registration confers an exclusive right on the breeder or his successor, agent or licensee to produce, sell, market, distribute, import or export the variety (section 28(1)). Points to note:

• For an extant variety, unless a breeder establishes his right, the Central Government (or the State Government for a variety notified for a State) is deemed the owner (proviso to section 28(1)).
• The breeder may authorise others to produce, sell, market or otherwise deal with the variety, subject to regulations (section 28(2)–(3)).
• Agents and licensees must register their title (section 28(4)–(5)); a registered agent or licensee may call on the breeder to sue for infringement and, if the breeder fails to act within three months, sue in his own name making the breeder a defendant (section 28(6)).
• An EDV registered under section 23 gives its breeder the same rights, but authorisation for an EDV derived from a farmers’ variety requires the consent of the contributing farmers (section 43).
• The right is enforced by a suit for infringement (sections 64–66) and protected by offences relating to false denominations (sections 68–73).

Compared with UPOV 1991, the right is narrower: it does not extend to harvested material or to products, and it is subject to the farmers’ rights in section 39.

2. Researchers’ rights (section 30)

Nothing in the Act prevents:

1. the use of any registered variety by any person for conducting experiment or research; or
2. the use of a variety by any person as an initial source of variety for the purpose of creating other varieties,

provided that the breeder’s authorisation is required where repeated use of the registered variety as a parental line is necessary for commercial production of the new variety (as with the parent lines of a hybrid). This is the breeders’ exemption of UPOV, framed as a right. It keeps the gene pool open and is the main difference from patent protection.

3. Farmers’ rights (Chapter VI)

Section 39(1), which operates “notwithstanding anything contained in this Act”:

1. a farmer who has bred or developed a new variety is entitled to registration and protection like any breeder;
2. a farmers’ variety is entitled to registration if the application contains the declaration of lawful acquisition of genetic material;
3. a farmer engaged in the conservation of genetic resources of land races and wild relatives of economic plants, and their improvement through selection and preservation, is entitled to recognition and reward from the Gene Fund, provided the material has been used as donors of genes in varieties registrable under the Act; and
4. a farmer is entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a protected variety in the same manner as before the Act, but not to sell branded seed, that is, seed put in a package or container and labelled in a manner indicating that it is of a protected variety.

Related rights:

• Compensation for non-performance (section 39(2)): the breeder must disclose the expected performance of propagating material sold to farmers; if it fails to perform under the given conditions, the farmers may claim compensation before the Authority.
• Disclosure of farmer contributions (section 40): the applicant must disclose use of genetic material conserved by tribal or rural families.
• Innocent infringement (section 42): a farmer who, at the time of infringement, was not aware of the right is not deemed to infringe, and no relief or cognizance of an offence may follow if he proves this.
• No fees for farmers or communities in any proceeding (section 44).
• Availability of seed: the compulsory licence in section 47 protects farmers where the reasonable requirements of the public for seed are not met or seed is not available at a reasonable price.

4. Rights of communities (section 41)

Any person, group, or governmental or non-governmental organisation may, on behalf of a village or local community, file a claim at a notified centre for the contribution of the people of that community to the evolution of a registered variety. If the centre, after verification, finds a significant contribution, it reports to the Authority, which, after hearing the breeder, may award compensation (within limits notified by the Central Government). The breeder deposits the compensation in the Gene Fund, and it is recoverable as arrears of land revenue.

5. Benefit sharing (section 26)

• When a certificate is issued, the Authority publishes its contents and invites claims of benefit sharing.
• Claims may be made by an Indian citizen or group, or by a firm, governmental or non-governmental organisation established in India.
• The breeder may oppose the claim; the Authority hears both sides.
• In deciding, the Authority considers (a) the extent and nature of the use of the claimant’s genetic material in developing the variety, and (b) the commercial utility and demand in the market of the variety.
• The amount is deposited by the breeder in the National Gene Fund and paid to the claimant from there.

6. The National Gene Fund (section 45)

Credited with benefit-sharing payments, the annual fee paid by breeders under section 35, compensation under section 41, and contributions from national and international organisations. It is applied to benefit-sharing payments, community compensation, conservation and sustainable use of genetic resources (in situ and ex situ, and strengthening the capacity of the Panchayat), and benefit-sharing schemes framed under section 46. The Plant Genome Saviour Community and Farmer awards are paid from it.

7. Assessment

• The Act creates the fullest statutory set of farmers’ rights anywhere and gives effect to Article 9 of the ITPGRFA.
• In practice benefit-sharing and community-compensation claims have been rare, because communities seldom know which registered varieties use their material, and passport data are often thin.
• The crop-failure compensation route under section 39(2) is little used; farmers whose seed fails more often turn to consumer fora or State seed laws.

How this is examined

The 2025 question is answered in four parts: breeders (s.28), researchers (s.30), farmers (s.39 with 40, 42, 44) and communities (s.41), followed by benefit sharing and the Gene Fund. Quote the four clauses of section 39(1) exactly; they carry most of the marks. For the short note on benefit sharing, use section 26 with the two factors and link it to the CBD and the Biological Diversity Act.