PLANT BREEDERS’ RIGHTS POLICY

1. PLANT BREEDERS’ RIGHTS POLICY J.B. JAFTHA (D: Genetic Resources) N. NETNOU-NKOANA (Registrar: Plant Breeders’ Rights Act, 1976)

2. INTRODUCTION • World population continues to grow, arable land and other resources are becoming scarce. • Need for increasing food production: • Improved yield • Better resistance to plant pests and disease • Plant breeding in Agriculture: • Increases productivity and quality of plants • Increases domestic food production • Increases the marketability of crops in the global market • Plant breeding is expensive and time-consuming

3. Overview of SA Plant Variety Protection Plant Breeder’s Rights Act, 1976 (amended in 1996) Dual testing system Official Testing at Evaluation Testing Centres Breeder’s trials (as prescribed) Plant Variety Protection based on UPOV SA bound to 1978 UPOV Convention

4. PLANT BREEDER’S RIGHT (PBR) • A plant breeder’s right is a form of intellectual property right granted to breeders of newly bred plant varieties. • A plant breeder’s right therefore: • provides the holder with a means of gaining financial remuneration for his efforts • encourages breeders to continue with the breeding of new and better varieties • Duration: • 25 years in the case of vines and trees • 20 years in all other cases • Who can apply for a PBR? • The person who bred a variety • The employer of the person who bred the variety • The successor in title • Foreign applications can only be made through an agent residing in South Africa

5. SCOPE OF A PLANT BREEDERS’ RIGHT The following acts in respect of a protected variety require prior authorization of the breeder: production or reproduction (multiplication) conditioning for the purpose of propagation offering for sale selling or other form of marketing exporting importing stocking for any of the above purposes

6. EXCEPTIONS TO THE PLANT BREEDERS’ RIGHT The plant breeder’s right does not extend to: acts done privately and for non-commercial purposes; acts done for experimental purposes; acts done for the purposes of breeding other varieties; or a farmer who on land occupied by him uses harvested material obtained on such land from that propagating material for purposes of propagation. The harvested material must not be used for purposes of propagation by any person other than that farmer

7. SUBJECT MATTER FOR PROTECTION • Botanical Classification

8. ELIGIBILITY FOR PROTECTION Plant varieties, must be new, distinct, uniform, stable (DUS) and have an acceptable denomination (variety name) A variety is considered: New: if the propagating or harvested material of a variety has not been sold or otherwise been available: • in South Africa for more than 1 year, • any other country for more than 6 years in the case of trees and vines, or in the case of any other plant, for more than 4 years before the date of filing of the application for a plant breeder’s right. Distinct: if it is clearly distinguishable from any other variety of common knowledge; Uniform: if it sufficiently uniform in its relevant characteristics Stable: if the relevant characteristics of the variety remain unchanged after repeated propagation.

9. International Union for the Protection of New Varieties of Plants (UPOV) • SA bound to 1978 Convention • Uniform standard of PVP • Technical Working Party • Focus on specific crops • sets descriptions standards/ test guidelines • Guidelines over number of years

11. Impact of UPOV Membership Increase in the number of varieties Access to improved varieties (incl. foreign varieties) Increased domestic breeding activities (private & public) Types of Breeders: Farmer breeders Public/ Private partnerships • Countries: • Argentina • Kenya • China • Poland • Korea

12. SA involvement in UPOV Chairmanship of Technical Working Party on Fruit (2011) SA lead experts: Olives Agapanthus

13. TEST GUIDELINESFOR THE CONDUCT OF TESTSFOR DISTINCTNESS, UNIFORMITY AND STABILITY TABLE OF CONTENTS PAGE: 1. SUBJECT OF THESE GUIDELINES 2. MATERIAL REQUIRED 3. METHOD OF EXAMINATION 4. ASSESSMENT OF DISTINCTNESS, UNIFORMITY AND STABILITY 5. GROUPING OF VARIETIES AND ORGANIZATION OF THE GROWING TRIAL 6. TABLE OF CHARACTERISTICS 7. EXPLANATIONS ON THE TABLE OF CHARACTERISTICS 8. LITERATURE 9. TECHNICAL QUESTIONNAIRE

14. short medium long absent present TEST GUIDELINES: Comparison of characteristics Character 43: Fruit mucron# # Character 20: Inflorescence* length *group or cluster of flowers arranged on a stem

15. PROBLEM STATEMENT Farmer’s Rights Role in conservation & improvement of Plant Genetic Resources (PGR) Poor recognition of this contribution Relevant international instruments dictates resolution at national level Farmer’s varieties (landrace material) not DUS Poor protection of Traditional Knowledge Plant Variety Protection contributes to erosion of genetic diversity PVP encourages plant breeding Uniformity is requirement for granting of a PBR Increased reliance on commercial varieties Threat of disappearance of farmer’s varieties

16. PROBLEM STATEMENT Exploitation and Biopiracy of Indigenous Resources Access to GR key for R&D and breeding Access via in or ex situ collection orcommunities Laws for access, PIC and benefit-sharing poorly implemented UPOV limits: additional conditions for PBR Compulsory sharing of benefits

17. PROBLEM STATEMENT Skewed Ownership & Research Activities 70% foreign ownership of PBR Increased number of ornamentals PBR Limited focus on orphan crops Exclusive Rights Exclusive Rights = return on investment Contradicts social and economic seed & knowledge exchange system

18. PROBLEM STATEMENT Lack of awareness about the PBR Act & Infringements Poor awareness contributes to “innocent” infringement Infringement incl. unauthorised: production & sale of the protected variety under its real/ different name export to territories where there is no protection for the species in question. production outside the protected area and unauthorised import into the protected territory. the use of farm-saved seed without paying the fees due to the breeder.

19. PROBLEM STATEMENT Limited number of protected genera & species Currently: limited genera Contradicts Art 27.3 B of TRIPS Kinds of plants regulated by other legislation Narcotics plants Invasive plants

20. PROBLEM STATEMENT PBR on wild plants Applications on plants from wild Discovery not a “creation of mind” Filing of Applications Submission of required documentation prior expiration of novelty period Submission of plant material

21. PROBLEM STATEMENT Applications for GM Varieties Submission of varieties still under evaluation of the GMO Act, 1997. Variety Denominations (VD) VD important for identification of the variety globally Applicants submit breeders’ reference (BR) Request for change of BR Complicates publication and administrative fairness

22. PROBLEM STATEMENT Technical Requirements for granting PBR Human Resource Capacity: Limited trained staff members High mobility in Public Service (evaluation extends over at least two growth seasons) Genetically Modified Varieties Distinctness at the genotypic level Lack of formal advisory support to Registrar

23. PROBLEM STATEMENT Maintenance of Plant Material after expiry of right During validity period, PBR holder must maintain material Maintenance has a financial implication (esp. fruit crops) Important material for DUS test Compulsory licensing Registrar may intervene in: Unreasonable refusal to grant a license Unreasonable conditions attached to license Where PBR holder does not satisfy reasonable public demands No guidance to Registrar

24. POLICY OPTIONS: Broad philosophies Protect material interest of the inventor Broad range of exclusive rights Extended periods of protection Limits on mandatory licensing Narrow exceptions Reward the inventor, but also consider society’s welfare Limited scope of protection Conditional Access and Use of protected material

25. Options for Plant Variety Protection in SA Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS)/ Patents SA a signatory Must provide for patent protection for inventions in all fields of technology MAYexclude patents on plant-related inventions Protect plant varieties through: Patent law Sui generis system Combination of both Patents Act, 1978 excludes the patentability of plants

26. Options for Plant Variety Protection in SA Sui generis Def: “of its own kind” May include: Clear definition of what may be protected: Declared plants, New, DUS The scope of protection: Sales, propagation, import, exports Duration of protection: 20-25 years

27. Recommended Policy

28. POLICY INTERVENTIONS: Institutional Matters National Authority (NA): Registrar & Support personnel Collaboration with independent national & international experts, compliance to other legislation Material transferred to National Authority on terms of MTA DUS testing by NA or breeders (according to guidelines) Establishment of an Advisory Body

29. POLICY INTERVENTIONS Farmer’s Rights Exploitation and Biopiracy of Indigenous Resources Genetic Erosion Exclusive Rights

30. POLICY INTERVENTIONS: Farmer’s Privilege (UPOV & PBR Act) Use of protected varieties on own holding National Programme on Conservation & Sustainable Use of PGRFA Systematic collection, documentation and storage of landrace material On-farm conservation Indigenous Knowledge System Policy Stimulate & Strengthen the contribution of IKS to social & economic development Documentation of IKS International Treaty on PGRFA Parties must honor farmer’s rights at national level Access & benefit-sharing for farmers

31. POLICY INTERVENTIONS: Convention on Biological Diversity & Biodiversity Act, 2004 Management & Conservation of Global and SA’s biodiversity National Sovereignty over biological resources Management of bioprospecting: Access & Prior-Informed Consent (PIC) Fair & Equitable benefit-sharing Patents Act, 1978 [s25 4(b)] & TRIPS: No patenting of living organisms Sui generis system for PVP Patents Amendment Act, 2005 [s30]: Disclosure of the origin & use of indigenous genetic resources and IKS

32. POLICY INTERVENTIONS: Plant Breeders’ Rights Act, 1976 (as amended in 1996) Relevant administrative procedures Set periods for exclusive rights followed by compulsory licensing Scope of the rights Guidelines & Regulations on conditions for compulsory licensing (amendment Act) Patents Act, 1978 [s25 4(b)] & TRIPS: No patenting of living organisms Sui generis system for PVP Patents Amendment Act, 2005 [s30]: Disclosure of the origin & use of indigenous genetic resources and IKS

33. POLICY INTERVENTIONS: Skewed Ownership & Research Activities Technical requirements for granting PVP Infringements

34. POLICY INTERVENTIONS: Promoting & Increasing Plant Breeding activities at public institutions Publicly-owned PBRs allows government to set terms of protection, restrictions & exemptions PBR source of income to stimulate further research investment Human Resources development & Capacity Building Strengthening technical capacities for DUS testing Engaging relevant technical standard-setting bodies Support programme for new entrant plant breeders

35. POLICY INTERVENTIONS: Infringements Enforcement is a private responsibility National Authority cooperate with relevant local & international stakeholders on matters concerning enforcement.