Innovation Plant Variety Protection Traditional Knowledge

The Sustainable Seed Innovations Project: Supporting a Smooth Implementation of the Three-Pronged Approach to Sustainable Seed Innovation – Legal & Ethical Issues (Part III)

Supporting a Smooth Implementation of the Three-Pronged Approach to Sustainable Seed Innovation – Legal & Ethical Issues (Part III)

Mrinalini Kochupillai

(iii) Seed Certification, Safety and Efficacy: Re-distributing responsibilities and rewards

India’s Seeds Bill[1] that has been pending since 2004, aims to establish certain systems that can facilitate the emergence of regional, national as well as international markets for indigenous/heterogenous seeds. For example, the mandatory seed certification requirement can help farmers and farmer groups get their varieties quality tested and also help them get a brand/denomination for their locally unique seeds.[2] However, this mandatory seed registration requirement has been opposed by farmers and farmer groups because it can create a heavy bureaucratic and financial burden on them. Accordingly, the pending Seeds Bill, based on the recommendations of the last Standing Committee Report,[3] while seeking to make varietal registration mandatory, still excludes farmers’ varieties from mandatory registration and certification.[4]

Permitting farmer level (collective) branding of indigenous (local) seeds

However, the Bill then also bans farmers from selling branded seeds; farmer to farmer seed sales and exchanges can only take place in brown bags devoid of brands or other means of recognizing their source.[5] This mandate counters the ideal of traceability and also prevents the emergence of robust and profitable markets for heterogenous/indigenous seeds. It is also contrary to the recommendations of farmers and their representatives in the SSI 1.0 working groups, which recommended that all indigenous seeds get a unique name/brand, inter alia, to facilitate traceability to their source (see Annex 2 in the forthcoming position paper or the SSI 1.0 summary), and helping other farmers recognize trustworthy indigenous seed suppliers from among other farmers in the village or region.

Here again, therefore, to tackle the problem of affordability and feasibility of registration, while still giving farmers and farmers’ association the right to (collectively) brand and sell their seeds if they so desire, DLT/Blockchain solutions can be extremely beneficial. Such solutions support decentralization of the registration process, while also giving incentives to any/all persons with the requisite know-how to add ‘value’ to the chain of transactions and the underlying product, by conducting necessary tests and reporting/uploading the results on to the blockchain/Digital Ledger.[6] As discussed in Prong 3 (and in Annex 3 of the forthcoming Position Paper), such entities can be government agencies or private sector companies that are ‘nodes’ on blockchain architecture. Once they add ‘value’ to the indigenous seeds by conducting necessary tests on them to determine safety, quality etc., they can automatically be awarded tokens/points by the DLT/blockchain/smart contract system. These tokens/points can be exchanged for cash from the funds collected via the biodiversity tax, or from the Gene fund/biodiversity funds, or by trading on the open market (similar to carbon/emissions trading). In fact, blockchain applications are already being used to facilitate carbon trading.[7] It is noteworthy here that blockchain architectures adopted for providing these solutions need not trade in cryptocurrencies. Moreover, they also need not (and must not) be 100% private; governmental participation through all relevant and currently existing governmental authorities is mandatory to ensure a smooth, sustainable and legally accountable system.

In fact, the Seeds Bill, 2004 “requires every person in the value chain to keep track of the preceding person, so that a faulty lot can be withdrawn.[8]” In such situations, to eliminate any chance of corruption or human error, and also to increase accountability, DLT/Blockchain technologies are not only useful, but may be necessary to ensure meaningful and accurate traceability. At the same time, it is necessary for any established system to be first tested at a very small scale and then slowly expanded if pilot projects are found to be successful.

Re-thinking ‘uniformity’ and ‘genetic purity’ requirements under planned Seeds Act

It is also necessary that the registration requirement under any enacted law does not mandate standards of safety and efficacy (such as genetic purity) that are no more considered valuable in all circumstances, and especially not in marginal environments that do not utilize chemical inputs.[9] For example, to the extent that the Seeds Bill mandates “genetic and physical purity” of seeds and specific prescribed ‘limits of variability’, it is worth looking into emerging scientific evidence that recommends using genetically diverse seeds (rather than uniform varieties) for sustainable agriculture.[10] In this context, it is also relevant to note the provisions of the new EU Regulation on Organic Production and Labelling of Organic Products, adopted in 2018 (the new EU Organic Regulations or the EU Regulation). The EU Regulation permits and encourages, inter alia, the use in and marketing for organic agriculture of “plant reproductive material of organic heterogenous material.” Such heterogenous materials do not need to fulfil the registration and certification requirements under various EU laws.[11]

The EU Regulation clarifies that ‘heterogenous materials’, unlike current proprietary seeds, need not be uniform or stable, and notes based on “Research in the Union on plant reproductive material that does not fulfil the variety definition… that there could be benefits of using such diverse material… to reduce the spread of diseases, to improve resilience and to increase biodiversity.” Accordingly, the regulation removes the legal bar on marketing of “heterogenous materials” and encourages its sale for organic agriculture, thus clearing the way for more expansive use of indigenous varieties. As was stated elsewhere, “Once the delegated acts under the EU regulation are formulated, they will support the creation of markets, especially markets and marketplaces facilitating trade of heterogenous seeds, including by small farmers who are currently the most active in maintaining and improving such seeds in situ. Indeed, multimillion-Euro research and innovation projects being invited and funded by the EU already aim to make this diversity a more integral part of farming in Europe. And here they are talking only of the diversity within Europe.[12]

Needless to say, a market for ‘uniform’, non-variable varieties can continue to exist. What is necessary, however, is to permit, in parallel, ‘True Labels’ that declare the fact of heterogeneity and variability, together with the specific benefits and characteristics the cultivation of such seeds brings to farmers and the environment. Supported by digital traceability, distributed (rather than centralized) certification systems, and smart-contract based micro-payments and biodiversity token/points awards, the parallel emergence of a market for heterogenous materials can be facilitated, especially for use in organic or traditional agriculture, and for both environmental and economic benefits for small farmers. This would permit the emergence of healthy and diversified markets for heterogenous/indigenous seeds, managed by small farmers with the help of various ‘nodes’ in the DLT/Blockchain solution. Such facilitating solutions would encourage small farmers and farmer communities to become entrepreneurs, supporting the overall growth of the Indian agricultural economy, while also helping India become a world leader in providing indigenous, heterogenous seeds of high quality, adaptable to very diverse small farm conditions, to farmers all over the world.

[1] PRS India, (2004)

[2] Ranjan, (2009); Pal, Tripp, and Louwaars, (2007).

[3] Parliamentary Research Service India, (2004).

[4] Pal, Tripp, and Louwaars, (2007),  233; Peschard, (2014).

[5] Trademarks and brands support source recognition, which helps customers distinguish between good and bad sources. This helps customers choose which source to rely on for good quality products/services or for goods and services that meet their unique needs. Murdoch, Marsden, and Banks, (2000); Moschini, Menapace, and Pick, (2008).

[6] Kochupillai, (2019a); Kazan, Tan, and Lim; Zamani and Giaglis, (2018).

[7] Chokshi et al., 2018; ; Fu, Shu, and Liu, (2018); Khaqqi et al., (2018).

[8] Parliamentary Research Service India, (2004).

[9] Altieri and Nicholls, (2012),  42; Jovovic and Kratovalieva, (2015).

[10] See also discussion under Prong 1; Gruber, (2017); Thrupp, (2000); Esquinas-Alcázar, (2005); Jacobsen et al., (2013).

[11] European Parliament and the Council, (2018); Schmidt, (2019); Turpin, (2018); Fuss et al., (2018); Feher et al., (2019).

[12] Kochupillai, (2019); Wezel et al., (2018).

Please click here to view Part I and Part II of this four-part post.

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