PLANT BREEDERS’ RIGHTS BILL: RESPONSE BY THE DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES TO THE PUBLIC HEARING COMMENTS 11 AUGUST 2015 PORTFOLIO

PLANT BREEDERS’ RIGHTS BILL: RESPONSE BY THE DEPARTMENT OF

AGRICULTURE, FORESTRY AND FISHERIES TO THE PUBLIC HEARING COMMENTS

11 AUGUST 2015

PORTFOLIO COMMITTEE ON AGRICULTURE, FORESTRY AND FISHERIES

ACRONYMS

• ARIPO: African Regional Intellectual Property Organization

• OAPI : African Intellectual Property Organization

• PBR: Plant Breeders’ Right

• UPOV: International Union for the Protection of New Varieties of Plants

• WTO: World Trade Organisation

• TRIPS: Trade Related Aspects of Intellectual Property Rights

2

INTRODUCTION

• The hearings for the Plant Breeder’s Bill were held on 15 May 2015.• Comments received from:

3

CLAUSES COMMENTED ON:

CLAUSES•Definitions (section 1: the definition of “breeder” and “sell”)•Protection given to holder of plant breeder’s rights (section 7)•Period of Sole Right (section 9)•Exceptions to plant breeder’s right (section 10)•Exhaustion of plant breeder’s right (section 11)•Transfer of a plant breeders’ right (section 13)•Priority and redating of applications (section 17)•Provisional protection (section 18)•Rejection of an application (section 19)

•Amendment of application (section 21)•Denomination of a variety (section 23)•Amendment of denomination (section 24)•Examination (section 26)•Grant of plant breeder’s right (section 28)•Payment of annual fees (section 30)•Remedies in respect of infringement of plant breeder’s right (section 33)•Application for compulsory licences (section 35)•Offences and Penalties (section 52)•Jurisdiction of the Magistrate’s Courts (section 53).

4

COMMENTS : CLAUSE BY CLAUSE

CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFFDefinition: ‘Convention Country’

The definition of “Convention Country” should be amended to “Agreement Country” to recognize Zimbabwe (which is not yet a member of UPOV) and South Africa’s agreement in terms of PBRs with this country.

‘Convention Country’ is only for those countries which are also members for specific UPOV matters e.g. recognition of priority.

DAFF not aware of agreement between Zimbabwe and South Africa on PBR.

Other clauses include, ‘any other country’

6:Right to apply for PBR

It is not clear who is entitled to apply for a PBR. Addressed in 16(1) read with definition of applicant and breeder

7: Protection given to holder of plant breeder’s rights

7(3)(b)(i) suggest to add, a variety, which includes a sport or mutation, must be regarded as essentially derived variety (EDV)

Inclusion of examples may exclude EDVs obtained in other ways.UPOV Council has adopted Explanatory Notes on Essentially Derived Varieties to guide member countries

8 (2): Duration of plant breeder’s right

Kind of crops per period should be specified. Currently this is vague and leave room for periods being altered at any stage

8(2) states that these will be prescribed in the Regulations. Reason to keep in regulation was precisely to be able to alter as per industry needs e.g industry requested potatoes and fruit trees to carry 30 years.

5


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF9: Period of Sole Right

Does not specify who will prescribe how long the sole right will be. Regulations are prescribed by the Minister; but regulations are consulted with stakeholders before submitted to the Minister

Anti-competitive practice and not in the national interest Legal opinion from the Competition Commission favours the inclusion of this clause

10: Exceptions to plant breeder’s right

Request that flowers fruit and flowers be specifically excluded It is envisaged that all exceptions will be covered in the Regulations (after extensive consultations with all stakeholders)

Minister is empowered to decide on a royalty which may be different to that charged by the owner

Intention is for Minister to prescribe conditions for payment of royalties and not the amounts

Minister must be clear about definitions held within the Bill that speak to smallholder farmer and be clear in allowing farmers to save and exchange seed. Bill must give specific guidelines on this provision and include a clause that states that no contract or other agreement can annul these exceptions. The law is skewed too much in favour of the breeder

Categories of farmers, crops, and uses will be defined in the Regulations (after extensive consultations with all stakeholders)

10(2)(a) not keeping with UPOV 1991 Act South Africa not bound by UPOV 1991; exceptions attempt to cater for South African circumstances 6


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF11: Exhaustion of plant breeder’s right

Clause should make it clear that legislators do not wish to exclude an owner from charging a per plant plus a production royalty and other fees as appropriate

This is relevant in relation to the notion of “sold or otherwise marketed by the breeder or with his consent” The right is not exhausted when material of the variety has been sold or otherwise marketed without the breeder’s consent.

13: Transfer of a plant breeders’ right

•Licensees should be given notice of assignment. •The onus of informing the Registrar of an assignment should rather be on the assignee. •Section 13 should include a clause stating that “unless an assignment is recorded it shall not be valid, except as between the parties thereto”.•Section 13(2) does not contain a provision similar to provision 29(1)(b) of the 1976 Act, to the effect that it must be proved that notice of the transfer of a PBR has been served on every person licensed in respect of the PBR.

•Onus of informing licencee is with the PBR holder.•Licence: private contract between breeder and licencee•Registrar not in a position to ‘police’•Registrar mainly deals with PBR holder.•Provision for compulsory licences

15: Varieties in respect of which plant breeders’ rights may be granted (varieties of recent creation)

UPOV Act 1991 Art 6(2) provides for novelty in regard to varieties of recent creation, which should also be included in the Bill. i.e. in the case of a plant genus or species which was not previously included for protection by the PBR Act the novelty requirement will be satisfied even where the sale or disposal to others took place earlier than the time limits defined in 15(2)(a).

This Bill offers protection in respect of any variety of all plant genera and species. Also see 56(3)(a)-transitional provisions

7


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF16: Application for grant of a plant breeder’s right

“application being returned to the applicant” is unclear. Should be replaced with “application being rejected”.

•Not rejected, as in clause 19, per se. The application is returned to applicant not to clog the system.• It is up to the applicant to re-submit the application once all outstanding documents become available, as long as such application still complies with the requirements of the Act, e.g. novelty.

18: Provisional protection

Provisional protection weakened compared to 2013 draft. Can the vegetatively and asexually propagated species not be subject to a strong and effective provisional protection?/ vegetatively and asexually propagated species should also feature under provisional protection

•18(2) was inserted to clarify that infringement proceedings may only be instituted only after a plant breeder’s right has been granted

19: Rejection of an application

Sections 11 (g) and (i) of the 1976 Act have been omitted. These sections should be retained

Not included because these sections deal with matters the Registrar cannot verify before tests and trials are concluded.

The term “misrepresentation” is too onerous. It is not fair for a breeder to lose rights in the situation where he/she was not aware that an incorrect representation had been made or where the incorrect representation is not material. Should be amended to: “a material misrepresentation that the applicant was aware of at the time of filing the application”.

It would be impossible for the Registrar to determine that the applicant was not aware of the misrepresentation. At this stage there are no breeders’ rights to lose as it is at an application stage. If the Registrar rejects due to misrepresentation an applicant will be informed. 8


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF21: Amendment of application

The requirement that the description of the variety may not be amended is too onerous. Provision should be made for the correction of obvious errors.

If an amendment of an application affects the description of the variety, it creates uncertainty around the true identity of the variety concerned

24: Amendment of denomination

There are situations where it is necessary to amend a denomination after grant. Section 24(3) should refer to “before or after the grant”.

•Provision is made for amendment of denomination by Registrar in 24(1).•24(3) refers to when amendment is requested by the applicant. •This must be only before the grant as the denomination is the unique identity for the variety concerned. Currently applicants change denominations up to three times after the grant of a plant breeder’s right, confusing farmers and consumers regarding the identity of such a variety. •Also, we are not aware of any other PBR law that allows for a change of denomination after a PBR has been granted.

9


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF26: Examination 26 (2) should be amended to provide that it is possible to obtain

further extensions of time ‘on good cause shown’ as on number of occasions plant material has died in quarantine due to no fault of the applicant

•This clause was discussed extensively during public consultations.• It was agreed that initial periods will be realistic enough to cater for instances where material dies in quarantine and therefore instead of the current 12 months initial periods can for example be 5 years and extended for another 5 years. •The aim is to address the current practice where, in some instances, plant material is submitted 15 years after the application was lodged. •Also, ‘on good cause shown’ is open to different interpretations.

28: Grant of plant breeder’s right

Section 27 should mention that the Registrar must publish the grant of an application

•Section 27 deals with refusal to grant a plant breeder’s right.

•All publications will be dealt with in terms of clause 40.

10


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF30: Payment of annual fees

Section 30 must be amended to make provision for the restoration of a lapsed application where the non-payment of a renewal fee was unintentional and the holder makes an application for restoration with no undue delay after becoming aware of the non-payment.

•Cancellation of a Plant Breeder’s Right due to non-payment of fees is one of the conditions prescribed in the UPOV Convention (article 10 of UPOV 1978 and Article 22 of UPOV 1991). •We are not aware of any country that provides for a restoration of a PBR once it has been cancelled due to non-payment of fees.

32: Essentially derived varieties

b) The wording should read ‘...contemplated to 6(1), read with section 6(2) and section 6(3)

•Clause 6 refers to inspection of documents. Reference to clause 7 in the Bill is correct.

36: Hearing of application for and issue of compulsory licence

36(10) It should be clarified that the payment will not be less than that paid by other licencees

DAFF is satisfied with the provision in current form as it refers to ‘equitable compensation’

11


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF52: Offences and Penalties

Holder of PBR should be allowed to calculate royalties in three ways: Ordinary licence fee, Actual damage, Actual profit of the infringer

The intention is for fines to be aligned to the Adjustment of Fines Act (Act 101 of 1991).

52(1)(b) It is suggested that any fine needs to take this into account the economic and to the infringer and loss to the PBR holder in order to be a deterrentWhat is the minimum and maximum monetary value of the fine?52(1)(b) makes infringement of PBR a criminal offence and requires government to police and enforce these rights.

•Not in agreement that the clause is in conflict with Constitution. Section 22 of the Constitution provides that practice of trade, occupation or profession may be regulated by law.•Not correct that the provisions are in conflict with national and international law. Performers Protection Act, 1967; and Trade Marks Act, 1993, Canadian Plant Breeders’ Rights Act, 1990 and the Australian Plant Breeders’ Rights Act 1994 have similar provisions.•Prosecutions are instituted by the National Prosecuting Authority. Prosecutions will only be instituted if there is sufficient evidence of such alleged offence.•Also the clause protects those breeders who may not be able to go the civil route due to the expensive nature of civil cases

Sections 51(3) and 52(1) as proposed, we submit, are fundamentally flawed and out of kilter and in conflict with fundamental human and constitutional rights, national and international intellectual property legislation. These Sections could result in the prosecution of poor sustenance farmers who at first glance appear to infringe PBR registrations (for example by selling farm-saved seed), but who do not have the financial resources to defend an action for infringement. This would result in these farmers potentially being guilty of an offence

12


CLAUSE SUMMARY OF COMMENTS RESPONSE BY DAFF53: Jurisdiction of the Magistrate’s Courts

Section 53 gives the Magistrate’s Court jurisdiction. Given the complexity of PBR cases and the high fines and sentences, it is not suitable to limit jurisdiction to the Magistrate’s court. The High Court should have jurisdiction.

This clause does not propose that a magistrate’s court has exclusive jurisdiction in respect of hearing of offences under the Bill; if the National Prosecuting Authority (NPA) decides to institute a prosecution in respect of an offence in a magistrate court, the clause empowers that magistrate’s court to impose any penalty provided for in the Bill in respect of the offence even if it exceeds the jurisdiction of a magistrate’s court in respect of punishments contemplated in section 92 of the Magistrate’s Courts Act. The NPA may decide to institute a prosecution in respect of an offence under the Bill in the regional court or a high court if the circumstances dictate.

Chapter 14 General provisions

Bill should not criminalise farmer practices, such as saving seed they bought for replanting

•No clause criminalises seed saving in the Bill

13

COMMENTS ON BILL: REQUIRE SOME RE-DRAFTING FOR CLARITY

CLAUSE SUMMARY OF COMMENTS

‘breeder’ The word person be amended to person(s) to allow for plurality‘sell’ ‘expose for sale’; this is extremely wide and can introduce grounds for a legal dispute

Also includes exchange or otherwise dispose of to any person in any manner; too wide this phrase should be followed with ‘excluding testing purposes’

15: Varieties in respect of which plant breeders’ rights may be granted

The current wording of Section 15(4) means that an applicant’s own PBR application in another country will invalidate an application in SA, if the 1 year Convention deadline is missed.

17: Priority and re-dating of applications

The meaning and requirements of Section 17(3) are unclear. This sub-section needs to be reviewed.

23: Denomination of a variety

The wording of section 22(1) should be redrafted to “An applicant for the grant of a plant breeder’s right must propose a denomination complying with the prescribed requirements and which shall be examined by the Registrar and approved if the denomination so complies.” The current wording does not reflect the true intention of the legislature.

30: payment of annual fees

Grace period should be extended to 6 months as in current ActIf payment is due in March will the cases filed under old act still fall under 1 January? If not, what provision for protection will be provided between January and March once the Act comes to force?

Permissive wording used in relation to late payments falling within the mentioned three months post annuity deadline should instead be changed to mandatory wording. Alternative uses of the word “shall” and accompanying phrase “in order to” should disabuse any reader of any apparent ambiguity in the wording of the section in so far as it may disagree with the intent of the legislature this section.

14

COMMENTS ON BILL: REQUIRE SOME RE-DRAFTING FOR CLARITY


35: Application for compulsory licences

Provides some guidance as to the intention of the phrases ‘unreasonably refuses’, reasonable requirements of the public, ‘available at reasonable prices consistent with the holder of a plant breeder’s right deriving a reasonable advantage there from.

33: Remedies in respect of infringement of plant breeder’s right

Add 33(5) that allows PBR holder or licence holder to demand that the plant breeders’ right remove the infringing plants within 30 days or such reasonable longer periods as the courts may determine

Section 46: Entering premises

46(6) allows Registrar to search any premises, with consent from a PBR holder. Replace with 24A(6) of the 1976 Act

56: Transitional Provisions Section 56(2)(b) appears to be in conflict with Section 56(2)(a) and the term “this Act” in Section 56(2)(b) should perhaps be replaced with the term “the 1976 Act”.

General comment Section 31 of the 1976 Act has been omitted. Section 31 of the 1976 Act may become important for food security or in the public interest in the future and it is submitted that this section should be included in the Bill.

15

COMMENTS ON INTERNATIONAL AGREEMENTS

ISSUE SUMMARY OF COMMENTS RESPONSE BY DAFFFarmers’ Rights Instead of giving in to pressure to join UPOV,

our government should recognise farmers’ rights and put measures in place to enhance and conserve genetic diversity in their field.

•South Africa has been a member of UPOV since 1977.•Rights to seed saving and exchange addressed in clause 10 of the Bill.•DAFF has programmes on conservation and sustainable use of Plant Genetic Resources for Food and Agriculture.•Development of National Plan for the conservation and sustainable use of Plant Genetic Resources for Food and Agriculture is DAFF’s strategic output for 2016/17.

The International Treaty on Plant Genetic Resources in Food and Agriculture (ITPGRFA)

In Africa, only Botswana, the Gambia, Mozambique, Somalia and South Africa have not signed. This means that South Africa does not recognise Farmers’ Rights, a situation that must be urgently addressed.

•South Africa has been a keen participants in the process leading up to the adoption of Treaty.•Keeping an eye on benefits to member countries.•National Consultation on South Africa acceding to the Treaty

UPOV 1978 and UPOV 1991

South Africa is currently a member of UPOV 1978 and is under no obligation to join UPOV 1991.UPOV 1991 is problematic in that it restricts re-use of protected seed.

•Clause 10 of the Bill is meant to provide for flexibility in regarding farmers’ practices to re-use seed.•There are stakeholders who support South Africa joining UPOV 1991.•National consultations on South Africa’s accession to UPOV 1991 not yet initiated.

16

COMMENTS ON INTERNATIONAL AGREEMENTS

ISSUE SUMMARY OF COMMENTS RESPONSE BY DAFF

WTO/TRIPS obligations

Article 27.3.b of TRIPS obliges members to provide for the protection of plant varieties either by patents or by an effective sui generis system or by combination of both.

SA as a member of WTO is not obliged to join either UPOV Conventions (1978 or 1991).

SA will still be in compliance with its obligations to WTO/TRIPS it adopted a sui generis regime of PBRs that fully recognises the importance of heterogenous and adaptability of plant varieties to changing conditions.

•UPOV is the recognized sui generis system that gives confidence to breeders to release their varieties into territories that have UPOV membership.

•Membership: 72 countriesFour African: namely Kenya, Morocco, Tunisia and South Africa. One African organization, namely the African Intellectual Property Organization (OAPI) with UPOV membership.African Countries started the process of joining: Egypt, Zimbabwe, ARIPO

•Not clear which UPOV alternative is proposed.

•Protection of heterogenous varieties would need:Own conditions for protectionClarity on ownership of such varietiesClarity on issues around Traditional KnowledgeClarity on kind of protection required by the farmers

17

THANK YOU

18

PLANT IMPROVEMENT BILL:

RESPONSE BY THE DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES TO THE PUBLIC

HEARING COMMENTS

19

ACRONYMS

• DUS: Distinctness, Uniformity, Stability

• PBR: Plant Breeders’ Right

• SADC: Southern African Development Community

• UPOV: International Union for the Protection of New Varieties of Plants

• VCU: Value for Cultivation and Use

20

INTRODUCTION

• The hearings for the Plant Improvement Bill were held on 15 May 2015.• Comments received from:

21

STAKEHOLDER

African Centre for Biodiversity (ACB) Civil Society Organizations

Stargrow Cultivar DevelopmentSouth African Nursery Association (SANA)

Breeder/Breeder representative/Nursery



RESPONSE BY DAFF

2. Application of the Act

No mention that ornamental plants are exempt from the Bill

In Clause 2 it is stated that the Bill is applicable to the kinds of plants for agricultural, industrial and forestry production as the Minister may declare. Therefore the specific kinds of plants will be listed in the Regulations and there will be a specific indication that ornamental plants of the declared kinds, if such do exist, will be exempted from this legislation, e.g. ornamental plum trees and seed of grasses intended for recreational purposes such as sports fields and golf courses.

2222

23



RESPONSE BY DAFF

22. Requirements relating to sale of plants and propagating material

Reference to Regional Varietal List should either be removed or explained

The National Varietal List and the Regional Varietal List have been defined in the definitions to distinguish between them. The only other place in the Bill mention is made of the Regional List, is in Clause 22 and Clause 43 respectively where it is indicated that varieties of which the plants and propagating material is sold in or imported to South Africa, must either be in the national list or the regional list. This provision provides for the SADC Harmonised Seed Regulations to enable South Africa’s participation in this system. The comment as made by the stakeholder refers to the previous draft of the Bill where there was a section on the Regional list.



RESPONSE BY DAFF

35. Tests and trials

Detail is required regarding tests and trials conducted on varieties.

The tests and trials to be undertaken are to determine compliance of the variety to distinctness, uniformity and stability (DUS) as described in Clause 27. Detail such as the guidelines and characteristics used to determine DUS, can be communicated to the stakeholder.

38. Evaluation of a variety for value, cultivation and use

Removal of this clause, because VCU is the responsibility of the parties involved in cultivation of plants, it is not the purpose of the Bill.

VCU is not a requirement for varietal listing in South Africa, but in many other countries, including our neighbouring countries in the SADC Region, it is a requirement. Therefore the Bill does not require VCU, it does provide that in case of any doubt, the Registrar may request such evaluation. The reason being that in case of a variety that is harmful to society or the country, it be removed from the varietal list and not allowed to be traded or cultivated. 24



RESPONSE BY DAFF

43 Import of plants and propagating material

Removal of 43(1)(a)(i) to allow for importing for testing and evaluation

What responsibility does a buyer have to prove that the importer has correct documents?

Provision is made in 43(3) for granting of authorisation by the Registrar in cases where one or all of the requirements cannot be met, provided importer submit an application.

The responsibility for import documentation lies on the importer who has to present all required documentation at the point of entry. However, in any case of doubt or for confirmation, the buyer may request the importer or seller of the material for proof of legal import.

2525



RESPONSE BY DAFF

44. Export of plants and propagating material

The term “minimum requirements” has not been defined in the Bill. Removal of this clause is requested, because importing countries have import requirements, the Bill does not have to regulate exports.

Minimum requirements will be specified in the Regulations.

Importing countries only specify phytosanitary requirements for plants and propagating material, not physical requirements. The purpose of the clause is to ensure that the physical quality of plants and propagating material is at least compliant with South African standards, because plants or propagating material may comply with phytosanitary requirements in that it is free from diseases and pests, but the physical quality, e.g. germination of seed can be very low or the roots of the plants may be under -developed, causing the seed or plants to be unsuitable for cultivation.

2626

COMMENTS : CLAUSE BY CLAUSE (clause 44 continues)


RESPONSE BY DAFF

It is in South Africa’s interest to ensure that good quality plants and propagating material be exported, because it is a market we want to maintain as well as ensuring that our neighbours in SADC rather import from South Africa instead of other counties on other Continents to minimize the risk of introduction of foreign diseases to our Continent. Especially in SADC the import conditions of our neighbours are not always clear or specific.

The current Plant Improvement Act requires export certificates for 6 seed crops, but based on experiences during the past few years, there is need for a general requirement relating to the quality of material for export and only in cases where the quality is non-compliant, the exporter must apply for a certificate, which does not prevent him from export, but requiring the agreement from the buyer to accept such material.

2727



RESPONSE BY DAFF

45. Establishment of Schemes

Certified seeds are not useful in a multi-cropping agro-ecological system farming environment

This clause provides for certification schemes as well as other schemes, where provision has been made for new types of schemes, e.g. the Participatory Guarantee Schemes which can be established in terms of this Bill.

Regarding the farmer’s seed and varieties that do not comply with the DUS requirements for listing of a variety, provision for exemption to the requirements of the Bill has been made in Clause 23(1)(d) and 23(2), for the varieties of the kinds of plants declared in terms of this Bill.

48. & 49. Advisory Committee

How will the representatives for all the interested and affected parties be identified?

Clause 49(2)(a) states that the Minister will call for nominations by means of a notice in the appropriate media for members of the Advisory Committee.

2828

THANK YOU

2929

Documents

PLANT BREEDERS’ RIGHTS BILL: RESPONSE BY THE DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES TO THE PUBLIC HEARING COMMENTS 11 AUGUST 2015 PORTFOLIO