Intellectual Property Rights and Food: Is the TRIPS Agreement in India’s Favour?

Every year since 1989, the Office of the United States Trade Representative (USTR), in its annual report reviewing the state of intellectual property (IP) protection and enforcement in US trading partners around the world, has identified potential trade barriers to US companies from what it sees as inadequacies to IP protection in other countries. In its 2019 report, India was placed on the “priority watch list” for its alleged poor enforcement of IP regulations. 

Referring to India as one of the world's most "challenging major economies" in terms of IP protection and enforcement, India’s feature in the list comes as no surprise given that both countries have had a difficult relationship when it comes to IP protection frameworks and the resulting trade barriers. While the US has historically always upheld an IP framework that was beneficial for US-based multinational companies (MNCs), India’s policies have shifted from the “common heritage” framework, which emphasised public interests, to a more US-style IP framework owing to increasing internationalism and the opening up of trade borders.

In February 2020, preceding the state visit by the US President Donald Trump, a memorandum of understanding (MOU) was signed between the two countries, allowing changes to India’s IP administrative processes and including protections in excess of that which is required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (or the TRIPS Agreement) prescribed by the World Trade Organization (WTO). However, the move came under criticism from various groups who stated that the USTR’s targeting of India in its reports, as well as the MOU itself, covered attempts to push India into changing its IP framework into one that is more suitable for US companies, and therefore US trade. This then raises concerns over India’s sovereign interests as well as its changing outlook towards IP rights. 

In this reading list, we explore the EPW archives and chart out the history of India’s patent policies, and whether international legislations, such as the TRIPS Agreement or the International Undertaking on Plant Genetic Resources (IU), truly hold India’s best interests or not. 

Setting Up of India’s Patent Practices

Anitha Ramma states that India’s patent policy has historically emphasised public interest over monopoly rights, but saw a tilt towards greater protection of intellectual property rights since the emergence of the TRIPS Agreement housed in the WTO. The TRIPS Agreement has largely been viewed as essential by the industrialised nations who viewed intellectual rights as comparable to the right of physical property, whereas India and other developing nations have seen it “fundamentally as an economic policy question.”

The US began in the late 1980s and 1990s to exert pressure on developing nations to increase patent protection. India was one of the main targets of US policy. Intellectual Property Rights (IPRs) were included in the Uruguay Round of Negotiations under GATT and formally became a part of the WTO. India initially resisted the inclusion of IPRs in the WTO but ultimately signed the agreement. India did so because the WTO was a take it or leave it agreement (either a member accepts all the agreements or none, leaving no scope for partial agreement), and India hoped to gain concessions in textiles and agriculture in exchange for giving in on IPRs.

The impact of TRIPS in India has most prominently been felt in agriculture and pharmaceuticals, wherein it was a subject of controversy. Particularly with respect to the former, the debate on the implications of the TRIPS Agreement has revolved around plant variety protection, another form of intellectual property rights, rather than patents. This is because TRIPS allows for exclusions of plant varieties from patents.

Intellectual Property Rights and Protection of Plant Genetic Resources

As Shaila Seshia observes, TRIPS entered into force on 1 January 1995 and expanded the scope of Intellectual Property Rights (IPRs) in plant varieties. With increasing commercialisation and commodification, TRIPS called for an IPR protection regime which would allow MNCs to operate in developing countries without running the risks and uncertainties associated with research and development. In particular, Article 27.3 (b) of the TRIPS Agreement outlines the obligations of the WTO member states with respect to plant variety protection and asks them to respectively set up an “effective sui generis system” to achieve this end. Two other significant regulations in terms of intellectual property rights in plant genetic resources (PGRs) have been the IU and the Convention on Biological Diversity (CBD). Adopted by the FAO Conference in 1983, the IU is the first international agreement to address issues relating to access and proprietary claims to PGRs for food and agriculture. 

The undertaking, non-binding on its members, recognised PGRs as the common heritage of mankind and endorsed that it be made freely available across states. The CBD largely enshrined the same principles, with the exception of being binding to member states. Though both the CBD and IU pay heed to the essentiality of local and traditional systems of knowledge, they are largely viewed with respect to their contribution to the conservation of biodiversity, rather than from a viewpoint of “intellectual contribution.” It is these legislations that have influenced and informed India’s own domestic legislation towards the protection of the PGR. 

A number of provisions and concepts in TRIPs, UPOV [International Union for the Protection of New Varieties of Plants], the IU and CBD broadly inform, or directly constitute, key elements of India’s draft legislation. As touchstones of the Indian legislation, they connect global agreements and national law-making processes. Indeed, India uses the sui generis option to construct legislation that establishes Plant Breeders’ Rights based on the UPOV model, and articulates a concept of Farmers’ Rights that derives from the IU. But, the bill does not simply import these concepts unchanged. Rather, they are translated through the drafting process, then assembled and configured uniquely in the text of the legislation itself.

With the signing of the TRIPS Agreement, India abandoned the common heritage framework. Anitha Ramanna notes that India’s Protection of Plant Varieties and Farmers’ Rights Act allowed for breeders or farmers to claim IPR for their varieties, provided as long as they met the criteria of novelty, distinctness, uniformity and stability. India’s step away from the common heritage framework, which viewed plants and seeds as free resources rather than commodities to be owned, was largely because it was argued to enable biopiracy. That is, resources from India could be freely accessed by firms from more advanced countries, who could then use it to make patentable products, thus reaping profits at the behest of Indian resources and labour. Moreover, it is argued that communities and farmers in India are the rightful owners of the country’s resources and should be able to claim compensation for any use of these resources.

Drawbacks of the TRIPS Agreement and Potential Backlash for India 

However, Ramanna argues that the disposal of the common heritage framework could potentially be harmful to India’s position. This is because agricultural crops have been spreading across the world for centuries, due to which it would be difficult to identify the origin of a crop or even to determine its rightful owners for compensation. This situation is exacerbated by the fact that over the years, many resources have been collected and placed in international gene banks. Thus, those wishing access would have to negotiate with several countries, and would thus find that they are not the sole suppliers. India’s position itself is not merely of a supplier. As a recipient of genetic material from other countries, India would need to negotiate for materials required to meet its demands. Thus, the overall financial and legal resources spent on tracking and proving cases for IPRs would prove to be a biglogistical hindrance. Instead, Ramanna asserts that India should lead the efforts for conceptualising a new system that retains the common heritage framework’s fundamentals with respect to food security, and simultaneously avoids the costs of a privatised bilateral system. 

Considering the interdependent nature of the current global agricultural system, it is clear that a single national legislation on farmer’s rights or community rights would be inadequate. Companies could just refuse to access the resources from and/or invest in India, and could perhaps obtain the materials from countries that don’t have a similar system of rights. Although the farmer’s rights concept is still weak as it is currently stated in the International Treaty, India and other developing countries could use the negotiations to establish an international concept of farmer’s rights. India could strengthen its own legislation in this regard by coordinating its efforts with other countries. OAU’s model law, for instance, provides interesting features of the farmer’s rights concept.

Moreover, Suman Sahai notes that the core of the TRIPS Agreement ignores the fundamental right to food security by being callous towards rural and tribal communities, and their livelihoods. Sahai recommends that TRIPS should be compliant with the CBD, which acknowledges the role of local communities and traditional systems of knowledge in contributing towards biodiversity. Without this, a universal right, such as access to food security, would remain a reality only preserved for the privileged few. 

Developing countries have either willingly, or under pressure lowered their trade barriers, sometimes even removing them, reduced their tariffs and have been forced to open their economies. On the other hand, WTO, specially TRIPS supports agricultural growth that is far from sustainable. Patents on biological materials strike at the root of self-reliance in agriculture, denying rural and tribal communities the ability to even earn their livelihoods. The food sources of the poor are threatened, their access to bioresources, the mainstay of their subsistence economy is being cut off as corporations corner these resources to fuel their biotechnology industry. The share of trade, far from increasing and becoming a vehicle of development, has decreased.

Read More:

Temporary Reprieve | EPW Editorials, 2001

Legal Factors in TRIPS | Nilima Chandiramani, 2002

Patents for Biotechnology Inventions in TRIPs | C Niranjan Rao, 2002