Section 26 and the Gene Fund

In one line

The second benefit sharing scheme in Indian law, run by a different authority, on different criteria, into a different fund.

In exam wording: section 26 of the Protection of Plant Varieties and Farmers' Rights Act 2001 provides that on receipt of a copy of the certificate of registration the Authority shall publish its contents and invite claims of benefit sharing in the prescribed manner; that a claim may be submitted only by a person or group of persons every one of whom is a citizen of India, or by a firm or governmental or non-governmental organisation formed or established in India; that a copy of the claim goes to the breeder, who may oppose it; that the Authority disposes of the claim after an opportunity of being heard and shall explicitly indicate in its order the amount of benefit sharing, taking into consideration the extent and nature of the use of the genetic material of the claimant in the development of the variety and the commercial utility and demand in the market of that variety; that the amount is deposited by the breeder in the National Gene Fund; and that it is recoverable as an arrear of land revenue by the District Magistrate within whose jurisdiction the breeder resides; and section 45 constitutes the National Gene Fund, states what is credited to it and the four purposes for which it is applied.

Section 26, step by step

Step one: the trigger. On receipt of a copy of the certificate of registration under section 23(8) for an essentially derived variety, or section 24(2) for any other variety, the Authority publishes such contents of the certificate and invites claims of benefit sharing in the prescribed manner.

The process starts by itself. Nobody has to know about the variety in advance; the Authority advertises it.

Step two: the claim. Any person, group of persons, firm, or governmental or non-governmental organisation may submit a claim in the prescribed form, within the prescribed period, with the prescribed fee.

The nationality condition. A person or group may claim only if that person, or every person constituting the group, is a citizen of India. A firm or organisation may claim only if it is formed or established in India.

Step three: opposition. The Authority sends a copy of the claim to the breeder, who may submit his opposition within the prescribed period and manner.

Step four: disposal. The Authority disposes of the claim after giving an opportunity of being heard to the parties, and shall explicitly indicate in its order the amount of the benefit sharing, if any, to which the claimant is entitled.

Step five: the two criteria. In doing so it shall take into consideration: