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March 23, 1998


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The Basmati task for the new government

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The seriousness of the A B Vajpayee government's swadeshi pledge will be tested by how it legislates to prevent such thefts as the one of Basmati rice by an American company.

India urgently needs a set of new laws for conserving biodiversity and controlling biopiracy, as indicated by the theft of Basmati and also intellectual protection legislations that conform to international laws.

For years, environment, food and patent experts have failed to impress upon successive governments the urgency of bringing in laws such as a plant protection act which could have prevented theft of the Basmati name by the US seed company RiceTec.

While the efforts of the Council of Scientific and Industrial Research has helped India get an earlier patent granted to turmeric revoked, Basmati presents an even greater challenge.

"The experience of getting the turmeric patent revoked is valuable but then it was a bad patent -- Basmati would require a coordinated effort by the inter-ministerial group set up for the purpose," said CSIR Director-General R A Mashelkar.

The Research Foundation for Science and Technology, a non-governmental organisation, has filed a petition in the Supreme Court seeking its intervention to prod the lethargic government to legislate.

Parties to the Foundation's petition include the Bharatiya Kisan Union and the Jindal Niryat Ltd, which represents rice traders organisations. Both are likely to be affected by the patent given to RiceTec which, if unchallenged, could swamp India's Basmati trade.

Foundation chief Vandana Shiva described the theft involved in the Basmati patent as a "theft of the intellectual and biodiversity heritage of Indian farmers, a theft from Indian traders and a deception of consumers."

It has, however, been pointed out that RiceTec took out a patent on Basmati only because of weak or non-existent Indian laws and the government's "philosophical" attitude that natural products ought not be patented.

Mashelkar thinks that the best strategy for India would be to dig out varieties similar or superior to that of RiceTec which the Indian Council of Agricultural Research may already have developed but failed to patent.

India could also challenge RiceTec on the geographical appellation clause in the Trade-Related Intellectual Property Rights under the World Trade Organisation, to which India is a signatory, according to Suman Sahai of Gene Campaign.

However, while under TRIPS, the laws on biodiversity, plants and microorganisms must be ready by the end of the 1999, India is yet to start legislating on it.

India has also not bothered with getting together a geographical appellation act which could have prevented RiceTec from using the name of Basmati which it claims is a generic name and not a trade mark.

Already Indian tea growers face a problem because tea growers from Sri Lanka and Kenya use the name 'Darjeeling' to sell their produce.

Such blatant hijacking would have invited severe legal action for people who sell ordinary whiskey under the name 'Scotch' or 'champagne' unless it actually came from Scotland or the Champagne district of France.

But the Indian government seems complacent about allowing multinationals to do what they please because of weak Indian laws, says Devender Sharma, chief of the Forum for Biotechnology and Food Security.

For example, the US seed company Monsanto recently was allowed to open a laboratory in the prestigious Indian Institute of Science campus in Bangalore, which would only facilitate biopiracy because adequate plant protection laws do not exist, claims Sharma.

Besides, experiments conducted by the Monsanto Laboratory could result in serious damage to the Indian environment, several environmentalists have pointed out.

Devender Sharma has, in a letter to Prime Minister A B Vajpayee, demanded cancellation of an order for one million tonnes of soya beans from the United States since the consignment is certain to have genetically engineered soya bean.

The US has been mixing genetically engineered soya bean with naturally produced ones and using countries like India Is 'guinea pigs' because these are not acceptable in their own country, Dr Sharma said.

Meanwhile, noted agriculture scientist Dr Suman Sahai said "if Champagne continues to remain a typical French wine and Scotch whisky Scottish, no amount of American arm-twisting will be able to snatch Basmati from India's lap."

After attending a seminar on biodiversity and biotechnology at the North-Eastern Hill University in Shillong, Dr Sahai said that the Americans would never dare call their whisky Scotch or label Californian wines Champagne fearing retribution from nations like the UK or France who would drag them to the World Trade Organisation dispute settlement court.

Sahai, who runs a NGO that is spearheading a movement for protecting the rights of the developing countries over their genetic wealth, said the case of India's Basmati rice was very similar to those like the Champagne or Scotch whisky as they represented geographical indications -- recognised as a form of Intellectual Property Right.

She said as per Article 22, 23 and 24 of Section 3 of the TRIPS chapter of the WTO/GATT agreement, geographical indication also was a form of Intellectual Property Right, specially conceived for protecting well-known speciality products associated with particular region.

Citing the example of Scotch whisky, she said no other whisky in the world, however indistinguishable in flavour and taste, could use the label as the name belonged exclusively to whisky producers of the Scottish highlands, who derived the advantage of selling their products at a price five times higher than that of the ordinary whisky.

Dr Sahai, citing a similar example of the brand Champagne over which France enjoyed the exclusive right, said India and Pakistan had "geographically indicated" right over Basmati rice, which could not be violated by the US Patent Office.

The US firm RiceTec's plea that Basmati was a 'generic' name and not a special one like Champagne or Scotch whisky was a "contrived argument," she said.

She termed the US move a "blatant infringement" on India's rights and property, and said the official decision to challenge the patent was marred by ignorance on the part of the officials.

Even as the government was collecting data on the local rice varieties and rice research stations were approached to list the characteristics of the Basmati rice, the issue of geographical indication was grossly undermined, she said.

She said on the whole question of Intellectual Property Rights on biological resources, the patentability of life forms, the importance of biotechnology to the Indian economy and other crucial issues, India was yet get its act together.

Those supposed to make policy decisions on these issues lacked understanding and no policy had been formulated, much less implemented. Bureaucrats with little interest and even less knowledge, only went junketing from Geneva to Jakarta, bungling up negotiations and compromising the national interest in our most crucial sector, she said.

Sahai said this ignorance on the part of bureaucracy led to a defeatist viewpoint currently doing the rounds in the ministries of the government of India. "The inexplicable view was being held out that we cannot do anything on geographical indication because we do not yet have a domestic law and nothing could be further from the truth," she said.

Dr Sahai said that a very strong defence of Basmati was possible given the nature of current trading practices which recognised India's rights over the particular rice variety. It would be preferable to have a law in place but its absence need not make us hesitate about asserting our claim," she added.

She stated India's geographically indicated rights are accepted and implemented by other nations, including Saudi Arabia and the UK. "The grain and food trade association in the United Kingdom, one of the largest importers of Basmati rice in the world, has stringent standards for using the term Basmati. Its traders can use this name only for the long grain, aromatic rice grown in India and Pakistan,'' she pointed out.

Similarly, Saudi Arabia, the largest Basmati importer in the world and one of the largest consumers of the variety, has labelling regulations that permits Basmati from only India and Pakistan to be labelled as such. "American and their aromatic, long grain rice are denied the use of this name in view of this clear recognition of our rights over the Basmati name," she said, "The coyness of the Indian government to use the geographical indication clause is difficult to understand."

Sahai said that India should take the US to the dispute settlement court of the WTO for violating its geographically indicated rights over Basmati. In addition to this, India should formulate a long-term strategy to protect its bioresources. It should mobilise the biodiversity owning countries of the world to demand that the two international treaties dealing with the use of biological resources be linked. "The Biodiversity Convention cannot have a particular framework for the use of bioresources and the WTO quite another, almost opposing one," she said.

"The US has refused to ratify the biodiversity convention which acknowledges the rights of rural and tribal communities and their ownership over bioresources but it is sparing no effort to push for compliance on the biotechnology industry-driven agenda in WTO," she said.

How India lost the Basmati patent

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