PLANT BREEDERS’ RIGHTS BILL [B11 – 2015]: Response by DAFF on the issues raised by the Parliamentary Legal Advisor 4 SEPTEMBER 2015

ACRONYMS DUS: Distinctness, Uniformity & Stability PBR: Plant Breeders’ Right UPOV: International Union for the Protection of New Varieties of Plants 2

CLAUSE 10(2)(A) CLAUSESUMMARY OF COMMENTS RESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 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) No restriction or problem created by Clause 10(2) (a) In agreement 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. 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) 3

CLAUSE 11 CLAUSESUMMARY OF COMMENTS RESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 11: 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. The protection and limitation in clause 11 does not extend to varieties that are already in the market. It also excludes breeders’ rights for varieties mentioned in clause 7(3) and that which are already in the market at the commencement of this Act In agreement. PBR does not extend to acts concerning the protected variety which has been sold or otherwise marketed by the breeder or with his consent. Exhaustion aims to prevent breeders from collecting royalties more than once 4

CLAUSE 15 CLAUSESUMMARY OF COMMENTS RESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 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 The Bill complies fullyIn agreement 5

CLAUSE 19 CLAUSESUMMARY OF COMMENTS RESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 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. How is the application of a plant breeder’s right rejected? 19 (1) provides for conditions that may lead to an application rejected, i.e. not considered for further processing in terms of DUS evaluations 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 determined 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. 19(2) provides for the Registrar to inform the applicant of the rejection and state the reasons thereof. 6

CLAUSE 21 CLAUSESUMMARY OF COMMENTSRESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 21: 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 Response from DAFF does not provide clarity in that they do not offer a way forward and this is a technical and policy concern Suggestion: Redraft clause to indicate that should an amendment affect the description of the variety, the filing date of application shall be the date the registrar accepts the amendment, and the registrar shall re-publish the application in amended form. 7

CLAUSE 52 CLAUSESUMMARY OF COMMENTS RESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 52: 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 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 deterrent What is the minimum and maximum monetary value of the fine? The intention is for fines to be aligned to the Adjustment of Fines Act (Act 101 of 1991). 51(3) A concern is whether Minister of Justice need not be consulted as well seeing that this is justice issue. Meeting scheduled with State Law Advisers for 03 September DAFF will be in a position to respond comprehensively during deliberations on 04 September

CLAUSE 51(3) READ WITH 52(1) CLAUSESUMMARY OF COMMENTS RESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 52: Offences and Penalties 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. Not in agreement that the clause is in conflict with Constitution. Not correct that the provisions are in conflict with national and international law. Trade Marks Act, 1993, Canadian Plant Breeders’ Rights Act, 1990 and the Australian Plant Breeders’ Rights Act 1994 have similar provisions. The Minister is legislatively empowered to set threshold penalty for the relevant authority who will be convicting and sentencing. In agreement 9

CLAUSE 52 CLAUSESUMMARY OF COMMENTS RESPONSE BY DAFF COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 52: Offences and Penalties 52(1)(b) makes infringement of PBR a criminal offence and requires government to police and enforce these rights. 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 52(1)(b) read with 52(1)(a) indeed create a statutory offence however the offence require no further policing capacity as suggested by the submission instead the contravention will easily be detected through appropriate administrative functions and taken through the prosecuting processes where necessary. In agreement 10

COMMENTS ON BILL: REQUIRE SOME RE-DRAFTING FOR CLARITY CLAUSESUMMARY OF COMMENTS COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF ‘breeder’ The word person be amended to person(s) to allow for plurality In drafting standards and the Interpretation Act a plural form equally refers to singular phrasing Agree not to amend the definition ‘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 Suggestion to insert ‘a disposal for some form of consideration’ Agree to amend the definition as suggested 11

COMMENTS ON BILL: REQUIRE SOME RE-DRAFTING FOR CLARITY CLAUSESUMMARY OF COMMENTS COMMENTS BY PARLIAMENTARY LEGAL ADVISOR RESPONSE BY DAFF 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 These two provisions convey the same message. They enable entry into premises without a warrant but with a consent of the owner or authorised person. This is lawful and constitutional. The two provisions are slightly different: Clause 46(6) provides for consent of PBR holder Section 24 (6) seems to provide for consent from the person who is competent to allow entry at the place to be searched(e.g. owner of the place to be searched) 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. Section 31 of the current Act amounts to expropriation. The expropriation Bill before Parliament is encompassing of such intentions as well as the current Expropriation Act. No need to repeat it in this Bill. In agreement 12

THANK YOU 13