A critical appraisal of farmers’ rights in the plant variety protection law of Bangladesh: reflections from international and Indian legal regimes

Abstract

Intellectual property (IP) protection for plant variety and plant innovations has posited some critical challenges to the traditional approach to farmers’ rights. Traditionally, farmers have freely exercised their rights in using, re-using, sowing, re-sowing, saving and exchanging their farm-produced crops or seeds with other farmers. Thus, it is critical to look into why many countries around the world, including developing countries (such as Bangladesh) have adopted IP-type protection for plant variety and plant innovations which potentially disadvantages the farmers? Is it due to ‘hard factors’ (the formal legal obligations under bilateral or plurilateral systems) and/or because of ‘soft factors’ (informal pressures of the various actors, including agri-business industry)? In crafting the domestic legal framework, it may be asked: how should an agriculturally dependent country (like Bangladesh) strike a balance between its domestic needs and international legal obligations? Precisely on the farmers’ rights, how far are such domestic legal provisions capable of striking a balance between the plant breeders’ rights and farmers’ rights? What lessons, if any, could be learnt from other jurisdictions which have already implemented legal regimes on plant variety? Should the approach be legal transplantation or legal transformation? Against such backdrops, this contribution critically appraises the outstanding questions and controversies on farmers’ rights as reflected in the Plant Varieties Protection Act (PVP) 2019 of Bangladesh. In doing so, it highlights the current overlapping and conflicting international laws on plant variety and plant innovations. Finally, it particularly draws some insights from the legal rules and implementing experiences of the Protection of Plant Varieties and Farmers’ Rights Act 2001 of India.