PLANT BREEDERS RIGHTS BILL Department of Agriculture Forestry

PLANT BREEDERS’ RIGHTS BILL Department of Agriculture, Forestry and Fisheries Select Committee on Land Mineral Resources 24 January 2017 1

CONTENT q q q q Acronyms Background The need for Plant Variety Protection National Legislation International context Overview of the PBR System Conditions of protection Scope of a plant breeder’s right Exceptions to the scope of a plant breeder’s right Major shortcomings in current legislation Development of the PBR Bill Overview of the Plant Breeders’ Rights Bill Implementation 2

ACRONYMS DUS Distinctness, Uniformity, Stability PBR Plant Breeders’ Rights UPOV International Convention for the Protection of New Varieties of Plants 3

BACKGROUND v People breed new plant varieties for various reasons, e. g: q higher yields q better product quality q better resistance to plant pests and disease, etc. Nectarine - NALEDI v A plant breeder’s right (PBR): q is a form of intellectual property right; q granted to breeders of newly bred plant varieties Nectarine - SPLENDOR 4

EXAMPLES OF POTATO VARIETIES FIANNA This Dutch bred potato was introduced into the SA market as a specialty fry variety, until it was discovered by chefs who today refer to it as the ‘Chef’s preferred variety’ due to its versatility. It has a floury white flesh, smooth cream skin and longish oval shape with very few shallow eyes. It is perfect for home fries due to the fact that it does not absorb a lot of oil / fat. Ideally used for: French Fries, mashing, roasting LADY ROSETTA The Lady Rosetta potato is a Dutch bred variety which is extensively used by the crisping market. This potato is a very tasty option when looking for a baker. Lady Rosetta is an odd shaped potato and has a red skin. It has prominent eyes and a dark yellow floury flesh. This potato was recently nominated as one of the tastiest potatoes in Europe. Ideally used for: Mash & Bake MARIMBA This is a high yielding table variety with very good resistance to Common Scab. This variety is especially bred for the South African climate and market. It has a fairly short growing period of around 85 days from emergence to maturity. Tubers are oval to long with cream colored flesh. The texture of tubers are of the firm cooking type. 5 Ideally used for: Boil and Roast

THE NEED FOR PLANT VARIETY PROTECTION v Plant varieties are important for sustainable agricultural production: q Consequences of the absence of Plant Variety Protection: § Breeders reluctant to release plant varieties § Negative impact on farmer competitiveness v Economic benefits of new plant varieties: q New plant varieties contributes to increased agricultural productivity: § Higher yields § Better product quality ü Impact: address the higher demand for food due to increased population numbers higher value products with increased marketability ü better processing properties q Support publicly-funded research (Royalties can serve as a source of income) 6

THE NEED FOR PLANT VARIETY PROTECTION v Environmental benefits of new plant varieties q increased disease & pest resistance, drought tolerance q may limit agricultural environmental impact (varieties requiring lower inputs, water-efficient varieties) q minimizing harvesting of species from the wild (e. g. Proteaceae family) 7

NATIONAL LEGISLATION v In South Africa, plant breeders’ rights are protected under the Plant Breeders’ Rights Act, 1976 (Act No. 15 of 1976). v The Act provides for: q q the requirements for the grant scope of protection of plant breeders’ rights; the grant of licences; other matters 8

INTERNATIONAL CONTEXT v UPOV was established by the International Convention for the Protection of New Varieties of Plants. The Convention was adopted in Paris in 1961 and it was revised in 1972, 1978 and 1991. v South Africa became the 10 th member to join International Union for the Protection of New Varieties of Plants (UPOV) in November 1977. v South Africa is bound by UPOV 1978 Convention. v South Africa’s expertise in plant variety description well-recognised: q Chairmanship of two UPOV technical working parties q Lead experts in developing several UPOV Test Guidelines q Provide variety descriptions to UPOV members countries 9

OVERVIEW OF THE PBR SYSTEM Application received & Assessed Novelty/Variety denomination Information complete/ Applicable fees Accepted Rejected Applicant informed Publication 10

OVERVIEW OF THE PBR SYSTEM (cont. ) Accepted applications DUS Test & Trials Distinctness Uniformity Stability Denomination Possible Objection Approved Not Approved PBR granted PBR refused PBR certificate issued Applicant informed Publication Possible Appeal SECRET 11

OVERVIEW OF THE PBR SYSTEM (cont. ) Accepted applications DUS Test & Trials Distinctness Uniformity Stability Denomination Possible Objection Approved Not Approved PBR granted PBR refused PBR certificate issued Applicant informed Publication Possible Appeal SECRET 15

SCOPE OF A PLANT BREEDER’S RIGHT v Section 7: Protection given to the holder of plant breeders’ right (1) The protection given under this Act to the holder of a plant breeder's right is that prior authorisation has to be obtained for the duration of the plant breeder's right from that holder, by way of a licence granted or issued in terms of section 34 or section 35, by any person intending to undertake— (a) the production or reproduction (multiplication) of the protected variety; (b) the conditioning for the purposes of propagation of the protected variety; (c) the sale or any other form of marketing of the protected variety; (d) the exporting of the protected variety; (e) the importing of the protected variety; or (f) the stocking of the protected variety for any of the purposes referred to in paragraphs (a) to (e). 16

Exceptions to the scope of a Plant Breeder’s Right Breeding other varieties Breeder’s exemption Acts done for experimental purposed Amateur gardeners Acts done privately and for noncommercial purposes Subsistence farmers Farm saved seed Farmers’ privilege 17

MAJOR SHORTCOMINGS IN CURRENT LEGISLATION q The current Act dates from 1976 and does not cater for recent developments q Ambiguous administrative procedures q Protection offered to limited number of genera q Current prescribed penalties are inadequate to deter deliberate infringements q Limiting Farmers’ privilege provision q Lack of advisory body for the registrar q Structure of the Act 18

DEVELOPMENT OF THE PBR BILL v took into account: q the principal legislation: The Plant Breeders’ Right Act, 1976 (Act 15) q experiences/ constraints in the implementation of the PBR Act q other relevant national legislation, policies, strategies & programmes q relevant international obligations q available options to protect intellectual property rights concerning plant varieties (patents, plant breeders’ rights) v recognized: q the importance of new plant varieties to support sustainable agricultural production q the important role of breeders in developing new plant varieties q the importance of an effective plant variety protection system v acknowledges: q the considerable investments needed to develop a new variety q the need to provide incentives for breeders of new plant varieties q the importance of balancing the needs of farmers and breeders 19

DEVELOPMENT OF THE PBR BILL v Plant Breeders’ Rights Draft Bill q Cabinet approval: publication (September 2011) q Government Gazette Publication (October 2011) q National Workshop (March 2012) q Pre-certification by State Law Advisers (March 2013) q National Workshop (May 2013) q Competition Commission (June 2014) q Economic Cluster (August 2014) q Economic Cabinet Committee (December 2014) q Certification (February 2015) q Adoption by Portfolio Committee on Agriculture, Forestry & Fisheries (November 2016) q Adoption by National Assembly (17 November 2016) 20

OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL v v q q q Definitions Chapter 1: Registrar and Register of Plant Breeders’ Rights Section 2: Designation and functions of Registrar Section 3: Exercise of discretionary powers by Registrar Section 4: Register of plant breeders’ rights Section 5: Register to be evidence Section 6: Inspection of documents submitted in connection with an application for plant breeder’s right v q q q q Chapter 2: Plant Breeder’s Right Section 7: Protection given to holder of plant breeder’s right Section 9: Period of sole right Section 10: Exceptions to plant breeder’s right Section 11: Exhaustion of plant breeder’s right Section 12: Joint holders of plant breeder’s right Section 13: Transfer of plant breeder’s right Section 14: State bound by plant breeder’s right 21

OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL v Chapter 3: Application for plant breeder’s right q q q q Section 15: Varieties in respect of which plant breeders’ rights may be granted Section 16: Application for grant of plant breeder’s right Section 17: Priority and redating of applications Section 18: Provisional protection Section 19: Rejection of application Section 20: Acceptance and registration of application Section 21: Amendment of application Section 22: Objection to application for grant of plant breeder’s right 22

OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL v Chapter 4: Variety Denominations q Section 23: Denomination of variety q Section 24: Amendment of denomination q Section 25: Marking of labels and containers v Chapter 5: Examination of variety and Grant of Plant Breeders’ Rights q Section 26: Test & Trials q Section 27: Refusal to grant plant breeder’s right q Section 28: Grant of plant breeder’s right 23

OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL v Chapter 6: Hearing of objection q Section 29: Hearing of objection v Chapter 7: Obligations of holder of plant breeder’s right q Section 30: Payment of annual fees q Section 31: Maintenance of propagating material v Chapter 8: Enforcement of plant breeders’ rights q Section 32: Infringement of plant breeder’s right q Section 33: Remedies in respect of infringement of plant breeder’s right 24

OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL v Chapter 9: Licences q Section 34: Licences q Section 35: Application for a compulsory licence q Section 36: Hearing of application for and issue of compulsory license v Chapter 10: Termination of plant breeder’s right q Section 37: Expiry of plant breeder’s right q Section 38: Cancellation of plant breeder’s right q Section 39: Voluntary surrender of plant breeder’s right v Chapter 11: Plant Variety Journal q Section 40: Matters to be published in Plant Variety Journal 25

OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL v Chapter 12: Appeals q Section 41: Right to appeal q Section 42: Appeal board, composition and membership q Section 43: Investigation and consideration by the Board q Section 44: Consideration of appeal by Minister v Chapter 13: Advisory Committee q Section 45: Establishment of Advisory Committee q Section 46: Appointment of members of Advisory Committee and termination of membership q Section 47: Disclosure of interests of Advisory Committee q Section 48: Meetings of Advisory Committee 26

OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL v Chapter 14: General Provisions q Section 49: Entering premises for inspection, sampling and seizure of articles q Section 50: Request for test results by authority of another country q Section 51: Defect in form not to invalidate documents q Section 52: Correction of errors q Section 53: Disclosure of information q Section 54: Regulations q Section 55: Offences and penalties q Section 56: Jurisdiction of magistrate’s courts q Section 57: Prohibition of trafficking by officers q Section 58: Delegation q Section 50: Transitional provisions and savings q Section 57: : Repeal of amendments q Section 58: Short title and commencement 27

IMPLEMENTATION q National Authority to manage PBR system: in place, includes two evaluation farms situated at Roodeplaat and Stellenbosch. q Amendment of Regulations to give effect to the provisions (2017/18) q The appointment of an Advisory Committee will follow the process of calling for nominations and appointment by the Minister. q Awareness programme on the Plant Breeders’ Rights System 28

THANK YOU 29