 Hello and welcome to NewsClick. Today we have with us Shalini Bhutadi, legal expert, though she doesn't like the word expert, and a researcher, policy analyst. Shalini, good to have you with us. You've been following this issue about so-called intellectual property law as it applies to farmers for a number of years. We now have a number of cases, of course, the most important being the PepsiCo case against Gujarat farmers on potatoes. Can you tell us what exactly is PepsiCo arguing against the farmers, demanding one crore rupees per farmer and then threatening with this threat, trying to get them to a sort of understanding by which they surrendered to PepsiCo? Right. Thank you, Prabir Rao. Yes, this is clearly a case in which U.S. multinational law is asserting what it calls are legally granted plant breeder rights under a national legislation, and that's really the story where it's pegged, is that we have a domestic law which is called the Protection of Plant Varieties and Farmers' Rights Act, which are very clear chapter on farmers' rights, which is retrofitted into it at the time of drafting, to be able to balance intellectual property rights given to plant breeders, whether in the public sector or the corporate sector. And this plant breeders' rights really came from the TRIPS negotiations where it is either you give them patents or you have a serious generous protection as it is called, which you can give them other forms of protection. That's how this plant plant breeders' rights and farmers' rights got merged into this legislation. Absolutely. That's important to trace that history because in 1995, when India became a founding member of the World Trade Organization, in the TRIPS agreement there was a requirement that we bring our intellectual property laws in line with what the WTO was prescribing. And clearly at that point because the farmers at that time were saying that we don't believe we are not a society or a culture that believes in privatizing life forms, which means seeds and planting material, which farmers have shared over millennia cannot be now privatized, commodified and bought and sold. And therefore there was a very strong movement against the TRIPS agreement particularly when the Uruguay Round was being negotiated. And India at that time had taken very strong positions saying no patents on life and in fact no IPR in life. And I would say that the protection of plant varieties and farmers' rights act is a political masterstroke because at one level you say that this is TRIPS compliant because we opted not to provide for patents on plants. In fact, even in the Indian Patent Act there's very clear... Position against life form patents. Absolutely. And against patenting of traditional knowledge as well. And so since we opted for the Sui Generous Root, we designed a plant variety protection law which is unique in the world. And it's unique because it has provisions to protect farmers. And this case now is an actual test of how pro-farmer it really is. Because this is what I think you've written about already in the section 39 says that the farmers can do anything with the seeds or the products as long as they do not claim the nomenclature of the plant breeder variety. Otherwise the same thing they are allowed to do and this is a farmer's right as opposed to a breeder's right. Absolutely. It's section 39 and the freedoms that it gives to farmers and recognises all the activities that they have been doing around seeds will continue as before. And it has a starting point which is notwithstanding anything else in that. Very strong, very clear legal language on that. And so there is no legal basis on which this case should be allowed for the company. And PepsiCo's threat about for one crore damages and so on which unfortunately the trial court has said by MFAC there is a case. All of this is what would be different language would be called using law as a war against farmers. Would you term it? I mean I think this is fit case. There's something to be said about law. They say it's like a spider web. It will catch the weak and the poor but the rich and powerful can just shred it apart. So it's really about who has the power to get what legal provisions enforced. And it's really now for the farming community to also show its strength that since we do not believe in this and supposedly there is a national law that's protecting our freedoms around seeds. Then all those who are responsible to have those implemented and enforced should do what they're meant to do. Is it the first case of its kind trying to use the plant's freedom rights against the farmers? In India it is the first. It's the first. But there have been similar cases and other jurisdiction in other countries, Canada, USAIDs, Monsanto is notorious for suing farmers to pursue. Even if seeds have blown across the fences. Accidentally. Accidentally even then the farmers have been sued. But they at least have a plan. They actually allow patenting. Some of them. They have the UPOV, which is the more sue generation protection which gives a lot of rights to plant breeders but very little to the farmers. And as you said the Indian Act is really unique. So would you say now that this poses a new challenge for the farmers and the peasant organizations, farmer organizations and groups like yours, other like-minded people who should really get together on this? Absolutely. I think we partly anticipated that this would happen because even at the time when the law was conceived there were concerns that you have brought in the farmers themselves into the IPR system because a whole constituency which was saying we are against intellectual property right were now offered that we are going to give you similar breeders rights. We are recognizing farmers as breeders as well. So you are also entitled to seek IPR. And in a sense that also created a division amongst farmers groups of whom would like to get their varieties registered under a specific category called farmers varieties which are not available in any other law in any other country. So we have registered a lot of farmers varieties but no farmers potato varieties. Okay. But this would still be shall we say a debate which can continue what the farmers should do, what are the kind of rights they should enforce or not enforce. Right. That's one way of looking at it. But there is no question that enforcing plant breeders rights on farmers. Yes. In this particular case is a violation of the Indian law and Indian law is crystal clear on that. Absolutely. I don't think we should have any doubt on that. So that's how we get together people to fight for the farmers really the issue that the farmers as well as others friends of theirs have to work out. Absolutely. The other question, there is also a case which is even shall we say more onerous in intellectual property terms are famous or infamous friends, who have now argued that they have life form patent effectively the way they have argued for BT cotton seeds. Right. The seed is a patent. Seeds can be patented and they have invention. Not in India. Yes. Invention, same. We thought that they knew that farmers could not be proceeded against under the plant varieties act. Right. So similarly here that this is something which is should have been tested long back, but actually one son to never try to enforce it. Yes. Now it's trying to enforce it. What makes this possible that they're trying to test what are the protection given under law? Do you think it's really the fact that the United States doesn't really bother about international law anymore and it's wanting to use its economic, political and even military power to enforce its laws of the whole world? You've said it in so many words and clearly there is a design there. We should be able to see through it by now. There's a long history of our relationship with the United States and how we've across the table have to deal with them at the WTO multilateral fora, how they have brought in their standards in their own intellectual property rights and now are in fact pulling out, you know, trying to pull out of the WTO and make that system collapse and suggesting that there be a higher WTO trips, you know, a next generation trade and economic relation between. Very simple one, not even trips plus. Just use the US law, that's it. Correct. And without any allegiance to any other multilateral environmental agreements like the Convention on Biological Diversity because under that we have made a domestic law called the Biodiversity Act which allows us protection of local knowledge of seeds and farmers and also access and benefit sharing arrangements with local communities. But now clearly their emphasis is how to enforce intellectual property rights and look at the timing of this. Just a day after the case hearing the United States trade representative announces its annual 301 special report which puts India on a priority watch list for having an unfavorable intellectual property climate in the country. So clearly the fight is not over. It used to be only a pharma. Now it appears that it's not only health or shall we say ill health. It's pharma plus pharma. That is that we are really talking about. And I think there have been a lot of cross learnings from that from other sectors as well because there have been other non-IPR approaches that are being taken to fight this and to push back as well as to also keep the sharing alive on what are otherwise material and knowledge which is being brought under exclusions and different forms of inclusions. Exclusions or what I would call enclosures. This is really what the property laws do. They exclude some, include some. And of course it's a property class that then benefit. Those who have more property benefits more. We will come back to this discussion, Shalini, again. And I think this is a much larger discussion which we can also look at other forms of enclosure. In the areas that I am interested in also intellectual property rights and digital fora, data, software. All of these are today also issues. So it would be interesting to have a larger discussion on that. But I think this is something that is moving at the moment and thank you for being with us. Thank you. Pleasure to be at NewsClick. This is all the time we have at NewsClick today. Do keep watching NewsClick and also do visit our website.