Amidst the richness of local cuisines present nationwide, “daal-bhat” remains the staple food common to the overall Nepali taste. In this context, the ban on the export of non-Basmati white rice by India on July 20 has raised grave concerns over the security of the regular diet of the Nepali people. Every year, Nepal imports billions worth of agricultural products to meet the deficit in the domestic production. Nepal’s food security has long been under peril as a result of this excessive dependence on foreign countries for food. Time and again, policies such as export ban, border shutdown, and blockade by our neighbor has pervasively threatened the availability and prices of food within Nepal.

There is a growing need for the economy to become self-reliant and self-sufficient in the area of domestic food production. Moreover, India has also marketed itself throughout the rich western nations as the authentic source of Basmati rice securing geographical indication rights which diminishes our ability to capitalize on it. Our complacency in utilizing available legal regimes is causing significant monetary loss to our economy. One of the many policy changes that need to come through to mitigate the risks of food insecurity is to strengthen the intellectual property (IP) law regime in Nepal.

Why intellectual property law?

The agricultural production chain includes a list of actors – farmers, plant breeders, researchers among others, who need legal impetus to effectuate an efficient production system. In this light, the realm of IP law offers a wide array of legal mechanisms – mainly patent and plant variety protection (PVP), including traditional knowledge, trade secret and geographical indication, whose effective implementation can bring about adequate agricultural production to ensure food security in the country.

The involvement of the private sector in research and development (R & D) for improved agricultural technologies and food production methods can be incentivised through patents. To provide an example for illustration, the MNCs in India own agro-based patents through which they are making large investments in R & D of agricultural biotechnology that purports to serve the growing needs of the agricultural sector. Development and breeding of new varieties of climate-resilient crops is also secured through PVP methods, also prevalent in India. Furthermore, a strong base of IP rights also encourages agriculture-based technology and knowledge transfer to developing countries, which can facilitate advanced farming techniques and increased yield.

This may be a bitter pill to swallow but there is a lesson here for us.  We must also be cognisant in striking a balance between IP laws that protect plant breeders’ and farmers’ rights, to achieve sustainable agricultural practices like our neighbor. Plant breeders’ rights include exclusive commercial rights relating to production, marketing and distribution of the breeder’s plant varieties. An extensive protection of breeders’ rights for agricultural commercialization and increased production may lead to encroachment of farmers’ customary rights, like their traditional agricultural knowledge and seed-saving practices. This is particularly harmful for a developing country as the majority of their agriculture is dominated by farmers who rely on traditional agrarian practices.

Some flexibility is provided by international law to resolve the contention. The Trade Related Aspect of International Property (TRIPS) agreement provides a solution to the member countries where they are free to protect, inter alia, new plant varieties either via patent protection or through an effective sui generis protection or a combination of both. The sui generis protection allows countries to tailor IP rights over the plant varieties as per their needs and priorities. This is particularly important to accommodate the complexities of modern plant breeding and traditional farming systems for countries like Nepal, which is traversing in the development stage with agricultural productivity and food security goals.

Status quo

The National Intellectual Property Policy, introduced by the Government of Nepal in 2017 has integrated protection of plant variety and genetic resources under IP rights. The IP Policy has committed to make legal arrangements for a sui generis law for IP protection within two years of promulgation of the policy. However, the parliament has not passed any such laws till date and so, the agricultural sector relies on outdated laws that only accords bare minimum protection.

The Seeds Act 1988 is the only relevant legislation that seeks to increase the production of different crops in Nepal. The Act, however, merely states under responsibility of the National Seeds Board that a new variety of seed can be registered and ownership can be granted to the breeder. The board has imposed stringent procedural requirements, like the necessity of an MSc degree for applicants for registration, etc., making it difficult for local farmers to qualify their seeds for certification, creating a bar in their agricultural productivity. Furthermore, the Act does not provide exemptions to farmers vis-à-vis saving, using, exchanging, or selling their seeds, which is extremely important because Nepal has a high population of small-scale farmers depending on such practices. Consequently, the informal seed system still dominates the farming practice in Nepal.

In the discussion of integrating plant variety protection into the commercial agricultural system in Nepal, it is useful to mention the best practices of other developing countries. The Protection of Plant Varieties and Farmers’ Rights Act passed by the Indian parliament in 2001 is a laudable piece of sui generis law mentioned in the TRIPS, which has incorporated principles from both the Convention on Biological Diversity 1992 and International Treaty on Plant Genetic Resources for Food and Agriculture 2001. The Act provides the registration requirement for new plant varieties of both the breeders and farmers on an equal footing. Not only does the Act recognize farmers’ traditional rights to save and re-use seeds from their harvest, but also rewards them for their role in conservation of varietal development of plants, something missing in the Nepali law.

Urgency of an integrated intellectual property law

The spirit of food security lies not only in adequate supply of food but mainly in adequate supply of culturally appropriate food. Access to culturally adequate food can be secured in Nepal by capitalizing the intellectual property law regime in a manner that sustainably supports agricultural production. Culturally adequate food also requires us to protect our local crop varieties, like Samundraphinj, Bayerni and Ramani that are on the verge of extinction via the suitable IP tools. Broadly, this means drafting an integrated IP law pursuant to the TRIPS requirements, which would protect our crop heritage, as well as suit both the commercial agricultural and traditional farming interests. Hence, a comprehensive IP law that encompasses a balanced approach for attaining greater agricultural yield to combat the ever-increasing problem of food security is an urgent need of time.

 
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