In the language of law, one of the most apt phrase is “ignorance is no bliss” is applicable to all, but India’s Protection of Plant Varieties and Farmers’ Rights Act (PPV & FR Act)-2001, has provision of protection of innocent infringement. This provision is opposite to the said phrase as “Ignorance is bliss” and provides special privilege only for farmers. Section 2 (k) of said Act defines farmers as any person who - (i) cultivates crops by cultivating the land himself; or (ii) cultivates crops by directly supervising the cultivation or land through any other person; or (iii) conserves and preserves, severally or jointly, with any other person any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties.
Section 42 of PPV & FR Act, 2001 provides protection of innocent infringement to farmers, which states that:
(i) a right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right; and
(ii) a relief which a court may grant in any suit for infringement referred to in Section 65 shall not be granted by such court, nor any cognizance of any offence under this Act shall be taken, for such infringement by any court against a farmer who proves, before such court, that at the time of the infringement he was not aware of the existence of the right so infringed.
I appreciate the efforts of law makers for making such a privilege to farmer. I would like to share the information received from one of reader, who was present in the Parliamentary Committee Meeting for said Act. He said that “the half day was lasted to define farmer” and implication of farmer word in the Act. There is an example, when a farmer won the case against a MNC. Because, he proved his ignorance about out crossing in Mustard. Hence there is instant exigency to understand the correct meaning and more clarity about farmer right.
If farmer fails to prove his unawareness about the right deemed to be infringed then farmer may be liable to be punished according to provisions in legislation, because in this particular case he will fall out of the scope of protection.
As the purpose of said Act, that is Protection of Plant Variety & Farmer Rights, but infringing proprietary rights of others and seeking relief on the basis of ignorance is not at all permissible. In the view of law all are equal then why this discrepancy is placed in the above said section.
If a person other than famer, is also not aware about the right established or infringed, in that case, does the same provision of “Protection of Innocent Infringement” will apply or not? This is open question and can be decided on case to case basis. I think, same privilege shall be granted to a person other than farmer.
Unawareness factor should be applicable to all, it shall not be restricted only for farmers. The responsibility of spreading awareness falls on the registered proprietor and Authority. If they takeover this responsibility seriously, then awareness can be created and subsequently proprietors will get the said protection against infringement.
It would be appropriate to say that Hon’ble Authority may also propose symbols for “application filed for registration” or “registered variety” to inform general public. It is also relevant to mention here that Trademark Registry of India has placed a system to create awareness about the trademark as “filing of trademark of application” and “registered trademark” is denoted by TM/® respectively.
Usually, a claim of innocent infringement is not a defense against infringement. An innocent infringer is liable for the infringement, but a court may reduce the amount of damages. This is common practice in copyright law in US. The heavy burden on defendant is to prove unawareness about the established right and deemed so infringed. Further, the defendant “must not only establish its good faith belief in the innocence of its conduct, but it must also show that it was reasonable in holding such a belief”. Use of the innocent infringer damage reduction appears to have been limited to cases where the defendant (often unsophisticated) proves that he was not aware about plaintiff’s Right and has immediately ceased its infringing conduct upon being made aware of plaintiff’s right claim.
In the law parlance the title of the said act itself is, the Protection of Plant Varieties & Farmers’ Rights Act, which promises to protect farmers and their rights from being exploited . If the farmer has no rights on a particular variety then he shall not be liable to get relief for an infringement suit. Protection to farmers under the act does not mean to provide liberty to infringe other’s rights on the basis of ignorance in that case does the farmer will be punished? I don’t have answer of this question. I have one appeal to court that farmers have to protect ultimately, whatever the means and way we adopt for this.
For further clarification is require, Please contact to:
Onkar Singh or Anuradha Varma
Comments
Post a Comment