1. PLANT BREEDERS’ RIGHTS BILL Department of Agriculture, Forestry and Fisheries 1

2. CONTENT  Acronyms  Background  Plant Breeder’s Rights and the International context  Overview of the PBR System  The need for Plant Variety Protection  Development of the PBR Bill  Overview of Plant Breeders’ Rights Bill  Implementation 2

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

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

5. EXAMPLES OF POTATO VARIETIES 5 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. Ideally used for: Boil and Roast

6. BACKGROUND  In South Africa, plant breeders’ rights are protected under the Plant Breeders’ Rights Act, 1976 (Act No.15 of 1976).  The Act provides for:  the requirements for the grant  scope of protection of plant breeders’ rights;  the grant of licences;  other matters 6

7. Plant Breeder’s Rights Bill and the international context  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.  South Africa became the 10 th member to join International Union for the Protection of New Varieties of Plants (UPOV) in November 1977.  South Africa is bound by UPOV 1978 Convention.  South Africa’s expertise in plant variety description well-recognised:  Chairmanship of two UPOV technical working parties  Lead experts in developing several UPOV Test Guidelines  Provide variety descriptions to UPOV members countries 7

8. THE NEED FOR PLANT VARIETY PROTECTION  Plant varieties are important for sustainable agricultural production:  Consequences of the absence of Plant Variety Protection:  Breeders reluctant to release plant varieties  Negative impact on farmer competitiveness  Economic benefits of new plant varieties:  New plant varieties contributes to increased agricultural productivity:  Higher yields  Better product quality Impact: address the higher demand for food due to increased population numbers higher value products with increased marketability better processing properties  Support publicly-funded research (Royalties can serve as a source of income) 8

9. THE NEED FOR PLANT VARIETY PROTECTION  Environmental benefits of new plant varieties  increased disease & pest resistance, drought tolerance  may limit agricultural environmental impact (varieties requiring lower inputs, water-efficient varieties)  minimizing harvesting of species from the wild (e.g. Proteaceae family) 9

10. DEVELOPMENT OF THE PBR BILL  Plant Breeders’ Rights Draft Bill  Cabinet approval: publication (September 2011)  Government Gazette Publication (7 October 2011)  National Workshop (1-2 March 2012)  Provincial Workshops (August-October 2012)  Eastern Cape  Free State  Limpopo  Western Cape  Pre-certification by State Law Advisers (March 2013)  National Workshop (May 2013)  Competition Commission (June 2014)  Economic Cluster (August 2014)  Economic Cabinet Committee (December 2014)  Certification (February 2015) 10

11. DEVELOPMENT OF THE PBR BILL  took into account:  the principal legislation: The Plant Breeders’ Right Act, 1976 (Act 15)  experiences/ constraints in the implementation of the PBR Act  other relevant national legislation, policies, strategies & programmes  relevant international obligations  available options to protect intellectual property rights concerning plant varieties (patents, plant breeders’ rights)  recognized:  the importance of new plant varieties to support sustainable agricultural production  the important role of breeders in developing new plant varieties  the importance of an effective plant variety protection system  acknowledges:  the considerable investments needed to develop a new variety  the need to provide incentives for breeders of new plant varieties  the importance of balancing the needs of farmers and breeders 11

12. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL Section 1: Definitions "breeder", in relation to a variety contemplated in section 15, means— (a)the person who bred, or discovered and developed, the variety; (b)the employer of the person contemplated in paragraph (a), if that person is an employee whose duties are such that the variety was bred, or discovered and developed, in the performance of those duties; or (c) the successor in title of the person contemplated in paragraph (a) or the successor in title of the employer contemplated in paragraph (b);  Breeder:An individual A farmer Researcher Public Institution Private Company 12

13. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 1: Registrar and Register of Plant Breeders’ Rights  Section 2: Designations and functions of Registrar  Section 3: Exercise and 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 breeders’ right (3)Notwithstanding subsections (1) and (2) but subject to subsection (4), a person may not— (a)inspect that part of the document in question that contains information in respect of the name of each variety used in the breeding program and in respect of the manner in which the variety was bred; (b)be furnished with a copy of the part of the document referred to in paragraph (a); or (c) inspect or be furnished with a copy of any other prescribed confidential information 13

14. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 2: Plant Breeders’ Right  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 33 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).  Section 8: Duration of plant breeders’ right  Section 9: Period of sole right  Section 10: Exceptions to plant breeder’s right 14

15. Exceptions to the scope of the Plant Breeder’s Right Breeding other varieties Breeder’s exemption Acts done for experimental purposed Amateur gardeners Acts done privately and for non- commercial purposes Subsistence farmers Farm saved seed Farmers’ privilege 15

16. FARMERS’ PRIVILEGE 1977 Farmers were allowed to continue their tradition of using a part of a year’s harvest as seeds for the next and also to exchange seeds with their neighbours 1996 Farmers allowed to use seed for propagating purposes on their own holding Prohibits any seed exchange of protected varieties among farmers Alleged abuse by commercial farmers to the detriment of some industries e.g. wheat 2015 2(a) In respect of subsection 1(d),the Minister must prescribe the— (i)category or categories of farmers who may use the protected varieties; (ii)category or categories of plants that may be used; (iii)uses to which the protected variety may be put; and (iv)where applicable, the— (aa) conditions for payment of royalties; and (bb) labelling requirements. (b) When the Minister acts in terms of paragraph (a), the Minister must ensure that the legitimate interests of the breeder are safeguarded 16

17. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 2: Plant Breeders’ 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  State 14: State bound by plant breeder’s right  Chapter 3: Varieties in respect of which plant breeders’ rights may be granted (1)A plant breeder's right may be granted in respect of any variety of all plant genera and species, excluding fungi and algae, if it is new, distinct, uniform and stable and has an acceptable variety denomination. 17

18. OVERVIEW OF THE PBR SYSTEM Application received & Assessed Accepted Applicant informed Publication Rejected Applicant informed Publication Novelty/Variety denomination Information complete/ Applicable fees 18

19. OVERVIEW OF THE PBR SYSTEM (cont.) Accepted applications Approved PBR granted PBR certificate issued Publication Possible Objection Not Approved PBR refused Applicant informed Publication Possible Appeal DUS Test & Trials 19 Distinctness Uniformity Stability SECRET

20. CONDITIONS FOR PROTECTION: Distinctness 20

21. CONDITIONS FOR PROTECTION: Uniformity 21

22. CONDITIONS FOR PROTECTION: Stability 22 SECRET

23. OVERVIEW OF THE PBR SYSTEM (cont.) Accepted applications Approved PBR granted PBR certificate issued Publication Possible Objection Not Approved PBR refused Applicant informed Publication Possible Appeal DUS Test & Trials 23 Distinctness Uniformity Stability

24. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 3:  Section 15: Varieties in respect of which plant breeders’ rights may be granted  Section 16: Application for grant of plant breeder’s right (6) In the event that a variety may not be used without prior approval in terms of other legislation, the application must be accompanied by the relevant permit or proof of general release for the variety issued in terms of such legislation.  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 24

25. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 4: Variety Denominations  Section 23: Denomination of variety  Section 24: Amendment of denomination  Section 25: Marking of labels and containers  Chapter 5: Examination of variety and Grant of Plant Breeders’ Rights  Section 26: Test & Trials (2)(a)The applicant must furnish the Registrar within the prescribed period with such material as may be prescribed. (b)The Registrar may grant an extension to the applicant from compliance with paragraph (a) for a period not exceeding the initial prescribed period.  Section 27: Refusal to grant plant breeder’s right  Section 28: Grant of plant breeder’s right 25

26. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 6: Hearing of objection  Section 29: Hearing of objection  Chapter 7: Obligations of holder of plant breeder’s right  Section 30: Payment of annual fees  Section 31: Maintenance of propagating material  Chapter 8: Enforcement of plant breeders’ rights  Section 32: Infringement of plant breeder’s right  Section 33: Remedies in respect of infringement of plant breeder’s right 26

27. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 9: Licences  Section 34: Licences  Section 35: Application for a compulsory licence  Section 36: Hearing of application for and issue of compulsory license (7)(a)The Registrar must issue a compulsory license if it has been established that— (i) the granting of a compulsory licence is in the public interest. (i)the holder of the plant breeder's right is unreasonably refusing a license referred to in section 34 or is imposing unreasonable conditions for the issue of such a license; and (ii)the reasonable requirements of the public with regard to the variety in question are not being satisfied or will not be satisfied as a result of such refusal or the imposition of such conditions. 27

28. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 10: Termination of plant breeder’s right  Section 37: Expiry of plant breeder’s right  Section 38: Cancellation of plant breeder’s right  Section 39: Voluntary surrender of plant breeder’s right A variety in respect of which a plant breeder’s right has been cancelled under this section vests, by operation of law, in the public domain and is not capable of registration in accordance with this Act.  Chapter 11: Enforcement of plant breeders’ rights  Section 40: Appeal against decision or action of the breeder  Chapter 12: Appeals  Section 41: Appeal against the decision or action by Registrar 28

29. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 13: Advisory Committee  Section 42: Establishment of Advisory Committee  Section 43: Appointment of members of Advisory Committee and termination of membership (1) The Minister must appoint as members of the Advisory Committee— (a) two persons who are appropriate persons to represent breeders of new plant varieties; (b) two persons who are appropriate persons to represent farmers; (c) one person who is an appropriate person to represent the interests of consumers of new plant varieties or of the products of new plant varieties; (d) one person to represent conservation interests in respect of new plant varieties and the potential impacts of new plant varieties on the environment; (e) one person to represent indigenous interests in respect of new plant varieties and the source, use and impacts of new plant varieties; and (f)one person with qualifications in respect, or experience of relevant fields, of law including but not limited to Intellectual Property Law and Administrative Law. 29

30. OVERVIEW OF THE PLANT BREEDERS’ RIGHTS BILL  Chapter 13: Advisory Committee  Section 44: Disclosure of interests by members of Advisory Committee  Section 45: Meetings of Advisory Committee  Chapter 14: General Provisions  Section 46: Entering premises for inspection, sampling and seizure of articles  Section 47: Request for test results by authority of another country  Section 48: Defect in form not to invalidate documents  Section 49: Correction of errors  Section 50: Disclosure of information  Section 51: Regulations  Section 52: Offences and penalties  Section 53: Jurisdiction of magistrate’s courts  Section 54: Prohibition of trafficking by officers  Section 55: Delegation  Section 56: Transitional provisions and savings  Section 57::Repeal of amendments  Section 58: Short title and commencement 30

31. IMPLEMENTATION 31  National Authority to manage PBR system: in place, includes two evaluation farms situated at Roodeplaat and Stellenbosch.  Amendment of Regulations to give effect to the provisions (2015/16)  The appointment of an Advisory Body will follow the process of calling for nominations and appointment by the Minister.  Awareness programme on the Plant Breeders’ Rights Act (to be developed by 2015/16)

32. SOME STATISTICS: ONLY PROTECTED VARIETIES TotalDomesticForeign/multinational AGRICULTURAL CROPS ARCOther Groundnut6600 Dry bean38131213 Potato9117074 VEGETABLE CROPS Pumpkin4013 Sweet potato21 00 Garden bean3301716 FRUIT CROPS Strawberry2800 Pear2513111 Nectarine113371165 ORNAMENTAL CROPS Aloe04700 Calibrachoa1200 Roses497051446 32

33. More stats: Plant Breeders’ Rights vs Variety Listing Crop Total Listed in Varietal ListWith PBRWithout PBR Oats221012 Soybean735518 Wheat987424 Maize599326273 33

34. ENKOSI 34