Two new proposed Indian legislations will please the World Trade Organisation. But will they protect the rights of Indian farmers over the country's agricultural biodiversity?

(Credit: RAINER HORIG)IN AN attempt to combat global 'piracy' of biodiversity, the government of India has formulated two new laws. The Geographical Indications of Goods (Registration and Protection) Act, 1999, (giga) is awaiting notification into law. The Protection of Plant Varieties and Farmers' Rights Bill is still in its draft stage and awaits the report of a committee, expected in May 2000. Both are requirements of the 1995 Trade-Related Intellectual Property Rights (trips) agreement for World Trade Organisation (wto) members. They are also meant to protect India's commercial export interests, and to help it compete in the international arena.

GIGA follows TRIPS almost to the letter, and goes one stage better by extending the higher protection offered to wines and spirits by Article 24 to cover all goods. But how does it help Indian exporters protect their goods from piracy by foreign firms?

Atul Kaushik, deputy secretary in the Indian ministry of commerce, says geographical indications have traditionally been protected in India by two means: common law decisions and certification (or trademarks). The latter come under the provisions of the 1958 Trademark Act (now being reworked in line with TRIPS). Darjeeling tea, for example, applied for a certification mark under the Trademark Act. As Kaushik explains, GIGA will provide a third and additional means of protection, bringing India in line with international law.

The current global agreement on geographical indications is contained in Articles 22-24 of Section 3 of the trips Agreement, which oblige all wto members to provide two domestic levels of protection for their own goods before cases can be brought internationally. That is, a general legal means preventing indications which mislead the public as to the geographical origin of the goods, and specific legislation barring 'misleading' trademark registration.

The Indian government will secure the first level of protection this year, when its newly-drafted giga becomes law. The act is designed to cover products as diverse as Alfonso mangoes, Darjeeling tea and Kanchivaram silk saris from being misrepresented in the global export market by similar products with similar names. It proclaims four objectives:

- Prevent unauthorised persons from misusing geographical indications;

- Protect consumers from deception;

- Add to economic prosperity of the producers of such goods; and

- Promote goods bearing Indian geographical indications in the export market.

But, as Subhash Chandra, deputy secretary of the department of industrial development, ministry of industry, explains, the rules pertaining to the use of the Act are yet to be formalised. This will be done by the end of this year.

How far does the domestic legislation answer its own aims? Kaushik describes the new Indian legislation as " trips plus". That is, while the legislation is based on trips, it goes one step further, extending the higher level of protection offered to wines and spirits by Article 24 of trips to all goods. But according to Kumar and Sagar Associates, the law firm that helped the draft the Act, the registration of a geographical indicator under the domestic Act does not automatically prevent their wrongful use or registration as trademarks abroad. Proving statutory protection the domestic registration of geographical indications speeds up matters when the case is being fought abroad, but it is merely one element of the complicated legal shenanigans of fighting a case in a foreign court of law.

Battle for basmati
It is basmati rice, indispensable element in Indian cuisine, which has caused the greatest hue and cry in the transatlantic battle for intellectual property rights (IPR). Basmati means 'aromatic'. The term denotes the scented long-grained rice grown in the sub-Himalayan region of India and Pakistan. Basmati cannot be grown anywhere else in the world, claim Indian rice growers.

The us Patent and Trademark Office (USPTO) challenged this prerogative, when in September 1997 it granted a patent on basmati rice lines and grains to a Texan firm called RiceTec Inc. us Patent number 5663484 relates specifically to rice lines whose plants produce rice grains having characteristics similar or superior to those of good quality basmati rice. The strain produced by RiceTec crosses traditional basmati and semi-dwarf varieties, is designed to be grown in the Americas, and is sold as 'Texmati', the name suggesting the grain's dual ancestry of Texas and the sub-Himalayan region of India and Pakistan.

Indian agriculturalists, rice exporters and environmentalists denounced the patent as flawed on a number of counts, including inability to prove 'novelty', misuse of a time and culture honoured geographical appellation, and violation of the Convention on Biological Diversity (CBD) that grants countries rights over their domestic germplasm. But the variety of claims has caused a certain amount of bureaucratic confusion. On what grounds and through which means should RiceTec Inc be fought?

Name or strain?
The RiceTec case has challenged the Indian government's capacity to deal quickly and efficiently with domestically pertinent matters of international trade. The dillydallying that has taken place in the various ministries, largely stems from the difficulty in defining exactly how and where to deal with RiceTec's erroneous claim. For RiceTec's patent neatly intertwines two entirely separate but frequently confused matters of Indian sovereignty: the 'biopiracy' of the basmati strain, and thieving of basmati's name.Although recently joined at the hip by RiceTec's piratic double-whammy, the two issues are dealt with under separate international mechanisms and separate domestic bureaucracies.

The naming issue is a TRIPS affair, and has recently been handed over to the department of industrial development (DID); the question mark hanging over the 'stolen' rice strain devolves from a conflict of interest between the WTO's legislation on sovereignty over germplasm and that laid down by the cbd, and is handled domestically by the department of commerce. But neither department appears to be entirely clear as to the nature of the case at hand, the appropriate forum it should be addressed at, or the precise point of the various actions and acts being undertaken by the government to clear up the matter.

Relay of responsibility
Kumar and Sagar Associates, argue that it is not the basmati patent itself that is at fault. According to them there is nothing illegal or even underhanded about taking a genetic basmati strain from India, producing a crossbreed and coming up with rice that is similar to basmati but can be grown in the Western hemisphere, and they will not be fighting RiceTec on these grounds. All their work, they explain, has gone into tackling the case from the point of view of geographical indications, and proving that RiceTec Inc is wrong to register their crossbreed by the name basmati.

imageChandra, meanwhile, was adamant that the RiceTec case is a patent issue which has nothing to do with geographical indications. True enough, the secretary in charge of patents, Sohan Lal, is also working on the RiceTec case. But in direct contradiction to the message given by the law firm, Lal says that the basmati issue is being tackled from the point of view of RiceTec's patent, which he promised "we will demolish very soon". Evoking the success of the famous turmeric patent reversal, he stressed that a "re-examination petition will be filed to the USPTO as soon as possible".

According to Rajinder Kumar, senior partner of the law firm, the right to use a geographical indication belongs to the sellers operating from a specific region, and it is the government of India that is "the rightful custodian of these collective rights". These rights cannot be patented and turned into private property. Kaushik, with whom Rajinder Kumar worked while on the case, has a different point if view. In his opinion, the onus is on the basmati rice exporters to pursue the case, as it is in their private economic interest to ensure proper use of the name they trade under. Lal, meanwhile, said that such cases are very expensive, but was unable to say whether the government, its organisations, or private firms would act as litigants.

Pravin Gupta, general manager of the Agricultural and Processed Food Products Export Authority (APEDA), revealed that due to the costs involved in fighting the RiceTec case, apeda has been forced to levy a "collection fee" of 100 rupees per metric tonne of basmati rice exported from India. This fee was first levied in 1995 at the rate of Rs 10, and has slowly increased along with the costs.

Stalling for time
Kumar and Sagar have been involved in two claims against RiceTec Inc. One is in Greece, where the case against the sale of Kasmati, is now in appeal. The other is in the uk, where RiceTec Inc withdrew their defence due to intransigence of the British Grain and Feed Trade Association (GAFTA) to recognise anything other than rice from India or Pakistan as basmati.

But to date, the firm has not actually attempted to sue RiceTec Inc in the us. Indeed, it appears that nothing is being done to counteract sale of rice grown in the Americas and sold as basmati. Daunted by RiceTec Inc's "vast resources", and hypersensitive to the manner in which "basmati has become an issue of national honour", Kumar and Sagar have chosen to deliberately delay confrontation of RiceTec Inc until they have gathered enough 'ammunition' from the smaller basmati cases being fought elsewhere. There are 19 smaller cases currently being fought worldwide, each of which applies to the registration of the word basmati (or words similar to it) as a trademark for goods such as coffee and fruit.

Can these innocuous non-basmati cases help the plight of the Indian rice grower? With the Greek case in appeal, exactly how long will it take for the lawyers to 'gather ammunition' while RiceTec Inc continues to peddle pseudo-basmati rice in the us? There are two major problems with Kumar and Sagar Associates's present legal strategy:

- Because registration of a word as a trademark is not obligatory under international law, challenging a trademark cannot prevent non-registered trademark misuses of the word basmati. Stopping RiceTec Inc from registering synonyms of basmati as trademarks does not actually stop them selling rice under names which have not been registered.

- The majority of the 19 cases where the word basmati is being used to denote goods other than longgrained aromatic rice, are in fact irrelevant to the crucial economic issue of mis-representation. That is, Indian rice growers are not adversely financially affected by the sale of a coffee called basmati. Whereas they are by a fake basmati rice.

So why the delay? Kaushik vaguely believes that India has moved slowly over this issue because "the us promised the Indian government that Indian geographical indications would be protected in the us-even without domestic Indian legislation". Chandra had never heard of such a promise. Biswajit Dhar, of the New Delhi-based Research Information Systems for Non-Aligned and Other Developing Countries, who has closely followed the geographical indications case, believes that the government is hesitating for a number of good reasons. Firstly, he points out that at present there are two ways of challenging RiceTec Inc: via domestic legislation or the wto. Dhar argues that it would be better for the Indian government to take up the rice issue multilaterally through the wto dispute mechanism rather than bilaterally by challenging RiceTec in an American court of law. Through the multilateral dispute mechanism third parties can lend their support to the litigant; Pakistan, for example, could join India in challenging the us firm's dubious claim.

Secondly, Dhar argues, the Indian government is pressing for a review of the level of protection offered by the original trips agreement, that is, a general level for all goods, and a higher level for wines and spirits. The higher level bars the addition of qualifiers such as 'like' or 'type' to the title of goods, forbidding such getaway clauses as 'Scotch-like whisky' or 'Champagne-type sparkling wine'. The government had expected an extension of this level to cover all goods during the wto ministerial meeting in Seattle last November. As a result of the protests, it has been shelved until the Council review.

Thirdly, Dhar doubts the security of the patent case on regional specificity. He points out that in the modern age it is both more difficult either to prove that something as subjective as aroma is caused by something as variable as cool air from mountain streams, or that these effervescent qualities cannot be perfectly replicated elsewhere. And, he adds, who owns basmati anyway?

Place of birth
This, indeed, is the contentious question at the heart of the battle for basmati. The Pakistan press recently claimed that the original basmati came from the Pakistani part of Punjab; while Indian basmati rice growers from India contest that pukka basmati must be grown in Dehradun. Basmati exporter Commander Kumar says that there are only 500 sq km in the whole world where basmati can be grown -- 30 km by 17 km in the sub-Himalayan foothills. As a farmer with a yearly basmati crop, Kaushik is adamant that basmati "cannot physically grow outside this region!" Like Kumar, he attributes a mix of factors such as the fertility of the soil, the climate and the time of ripening to basmati's uniqueness.

Scientists at the pusa Institute in Delhi concur with Kaushik. Their tests have proved that when grown in conditions other than those experienced along the foothills of the Himalaya, the basmati rice strain does not maintain the same aroma as pukka basmati. On the other hand, it is still possible, according to the institute's director P K Singh, to find those conditions elsewhere such as in hilly regions of Thailand.

Luckily, there are other legal means of proving geographical specificity. Kumar speaks for all true basmati growers and exporters when he says that basmati is basmati not just because of the region it comes from, but also because of the ancient wealth of traditional breeding techniques and knowledge that have nurtured its growth. Local knowledge is a condition of geographical indications recognised under eu law.

What a strain
Or will the collective forces of the government and India's rice exporters, in fact, have more luck contesting the patent on the grounds of stolen germplasm? Vandana Shiva of the New Delhi-based Research Foundation for Science and Technology and Ecology (RFSTE), went to the Indian Supreme Court in 1999, to argue that the RiceTec's patent is technically flawed in the following ways:

- It does not fulfill the 'novelty' and 'invention' criteria of patents, as Indian 'prior art' proves that RiceTec Inc's new variety of basmati owes much to the breeding techniques of Indian farmers;

- Under Indian law, life forms such as rice strains -- cannot be patented.

- Basmati is in fact a non-generic geographical indicator of a particular region in India and Pakistan;

- RiceTec Inc used a basmati strain which is kept in the gene bank of the Consultative Group on International Agricultural Research. Under the law of the un's Food and Agriculture Organisation of which both India and the us are members, varieties kept in this bank cannot be patented.

RFSTE maintains that through the logical extension of the "functional equivalents" clause of the us patent, the rights of the traditional Indian growers of basmati could be encroached upon. They argue that should us pressure be brought to bear on domestic Indian patent legislation via the wto and trips, and RiceTec Inc granted the global rights over use of the term basmati, Indian rice growers would effectively be restricted from selling their rice as basmati.

Too many cooks
What is clear from the amount of confusion in the ranks, is that there is as yet no coherent structure in India, let alone the world, to accommodate the various overlapping and often conflicting legislative bodies. As Dhar points out, there needs to be a systematic and comprehensive plan for the entire framework.

Until governmental bureaucracy wakes up to wider implications of what is happening to India's agricultural biodiversity, this country's rights will continue, bit by bit, region by region, to be trapped and confiscated forever in the net of patent and trade mark sophistication.

With inputs from Deepali Gaur

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