Plant Breeders' Rights Policy amendments: briefing by Department of Agriculture, Forestry & Fisheries

Meeting report

Opening Remarks
The Chairperson remarked that the momentum of work for the Committee was expected to increase in the coming weeks. Members would be expected to do a great deal of reading and research on the issues that would come before them.  He outlined the following week’s programme, which would include a briefing by the Minister, and public hearings on transformation in the agricultural sector.

The Chairperson noted apologies from the Director-General, Department of Agriculture, Forestry and Fisheries, and two Members who were away on an oversight visit with the Portfolio Committee on Correctional Services.   

Department of Agriculture, Forestry and Fisheries. Plant Breeders’ Rights Policy. Overview
Dr Kabi Mogajane, Deputy Director-General: Production and Resource Management, Department of Agriculture, Forestry and Fisheries, introduced her delegation. She mentioned that Mr Faisal Daniels, from the Ministry, was present. She said that the day’s focus would be the Plant Breeders’ Rights Act 1976.

Dr Mogajane said that plant breeders’ rights had nothing to do with genetically modified organisms. Plant breeders’ rights were managed under genetic resources and had much more to do, internationally, with the World Intellectual Property Organisation (WIPO).

Dr Mogajane said that one of the main objectives of plant breeding in agriculture, horticulture and forestry was to increase productivity and quality of plants by developing varieties with improved yield and better resistance to plant pests or diseases. Breeders of new plant varieties were granted plant breeders’ rights for protection of their varieties against exploitation without their permission. A plant breeder’s right, therefore, provided the holder with the means of gaining financial remuneration for his efforts, and encouraged breeders to continue with the breeding of new and better varieties.
The implementation of plant breeders’ rights in South Africa has been a major stimulus for the plant breeding industry. It gave local plant breeders and producers access to high quality new varieties from foreign countries. Foreign owners were not keen to supply propagating material to individuals in other countries if plant breeders’ rights could not protect such material. The objective of the Plant Breeders’ Act of 1976 was to provide a system through which plant breeders’ rights relating to varieties of certain kinds of plants might be granted and registered for the requirements which had to be complied with for the granting of such rights.
After the introduction of the plant variety protection system, there has been an increase in the number of varieties developed and in foreign varieties introduced in South Africa as evidenced by the increase in the number of applications and more foreigners being holders of valid plant breeders’ rights, respectively.

Department of Agriculture, Forestry and Fisheries. Plant Breeders’ Rights Policy. Presentation
Dr Julian Jaftha, Director: Genetic Resources, Department of Agriculture, Forestry and Fisheries, mentioned that plant breeding in agriculture increased productivity and quality of plants; increased domestic food production; and increased the marketability of crops in the global market. However, the process of plant breeding was very expensive and time-consuming. Regarding tests and trials, he stated that South Africa had a dual testing system. For seed crops and most ornamentals, the trials were established at one of the three National Evaluation Centres and all Distinct, Uniform, Stable (DUS) tests were performed at these centres. For fruits and some ornamentals, the breeder or his agent had to establish the trials on their premises according to the prescripts provided by the National Authority. The official DUS examiners would visit these sites during the growing cycle to perform the DUS tests. Once the tests had been completed and the variety was found to be distinct, uniform and stable, a plant breeders’ right was granted and a certificate issued. The breeder of the new variety must maintain the variety and guarantee that propagating material which had to conform to the original description. If he failed to do this, the Registrar would cancel his right.

An applicant for a plant breeder’s right might apply to the Registrar of Plant Breeders’ Rights for provisional protection of a variety. The applicant had to give a written undertaking not to sell, except for purposes of multiplication or testing, any propagating material of the variety in question until all tests had been completed and a plant breeder’s right had been granted. This meant that for the period that it took to complete the tests and until the plant breeder’s right was granted, the variety was protected.

Duration
A plant breeder’s right was valid for a period of 20 years for non-woody plants and 25 years for woody plants, commencing from the date on which the right was granted. The holder of the right might surrender that right at any time before that period expired, notifying the Registrar of the Plant Breeders’ Rights of such a decision. During the first five to eight years the owner had the sole right to produce and market propagating material of the variety. After 15 or 17 years the holder was compelled to issue licences to other persons who also wished to use and market such material. When the holder issued a licence to another person, he might continue to claim royalties for any propagating material produced and sold. It was only after the expiry of the full period of a plant breeder’s right that the variety became public property and anyone might then propagate and sell it. If the holder of the right refused to issue licences, these individuals might apply to the Registrar for a licence.

Exceptions
Exceptions to the breeder’s right were the use of the variety privately and for non-commercial purposes, experimental purposes, and for breeding other plant varieties. A protected variety could be used for these acts without the authorization from a plant breeder’s right holder. Farmers were also allowed to use for propagating purposes, on their own holdings, the product of the harvest that they had obtained by planting on their own holdings the protected variety.

Eligibility for protection
Plant varieties must be new, distinct, and uniform, stable (DUS) and have an acceptable denomination (variety name). A variety was considered:
New – if the propagating or harvested material of a variety had not been sold or otherwise been available;
Distinct – if it was clearly distinguishable from any other variety of common knowledge;
Uniform – if it was sufficiently uniform in its relevant characteristics;
Stable – if  the relevant characteristics of the variety remained unchanged after repeated propagation.

Problems associated with Plant Breeders’ Rights, amongst others:
It is acknowledged that farmers played an important role in conserving, improving and making available the genetic resources used in modern breeding. Farmers’ Rights consisted of the customary rights that farmers have had as stewards of agro-biodiversity since the dawn of agriculture to save, grow, share, develop and maintain plant varieties. Furthermore, farmers’ breeding activities were often a collective effort, and participatory breeding programs by definition involved different actors sharing tasks. The highly collective and informal nature of the farmers’ breeding efforts was not recognized in intellectual property rights systems. Traditional knowledge was usually shared and even the holders of such knowledge did not have the right to commercialise it for personal gain.

Intellectual Property and Sustainable use of biodiversity
The Convention on Biological Diversity (CBD) aimed to encourage the conservation of biological diversity as well as their sustainable use and the sharing of benefits arising out of their use. It was thought that plant variety protection would contribute positively to plant genetic diversity over time. The threat was that the traditional varieties might disappear if not properly collected and maintained and made available for breeding.

Exploitation and Biopiracy of Indigenous Resources
Access to existing genetic resources was an important consideration for breeding, research and development. Such access can be obtained via in situ and ex situ collections of seeds and plant propagating material. Access to genetic resources was regulated by national laws which were consistent with the Convention on Biological Diversity. Where access was granted, agreed benefit-sharing mechanisms also became relevant. The International Convention for the Protection of New Varieties of Plants (UPOV Convention) required that the breeder’s right should not be subject to any further or different conditions from the ones required to obtain protection. Under this Convention there was no provision for holder of a plant breeder’s right on claims involving biological resources or related knowledge to share benefits with the state or communities in countries of origin.

Skewed ownership and research activities
In South Africa, 60% of plant breeders’ rights holders were foreigners who were largely based in Europe and North America. This was not unique to SA as a developing country. A sizable share of the protected varieties was ornamentals which might indicate a slowdown in investment in agricultural research and development, especially research targeted to orphan food crops.

Lack of advisory body to support the Regulatory Officers
The Registrar and support personnel did not have expertise in all the areas affecting the administration of the Act and might from time to time need advice from various experts.

Lack of awareness about the Plant Breeders’ Rights Act
Not all sectors of the community were aware of the Plant Breeders’ Rights Act. This might lead to innocent infringements of plant breeders’ rights for certain varieties, and farmers who had developed new varieties not protecting their intellectual property.

Exclusive Rights
The holder of the plant breeder’s right had the authority to exclude all third parties from engaging in activities that the right covered during the period of sole right to allow the holders to obtain a return on their investment. This exclusionary right might, however, have the effect of preventing the free exchange of knowledge, products of the knowledge and their use or production.

Compulsory Licences
If any person was of the opinion that the holder of a plant breeder’s right unreasonably refused to grant him a licence under section 25 of the PBR Act or that such holder imposed unreasonable conditions for the issue of such a licence, he or she might apply to the Registrar for issuance of a compulsory licence. However, it was not clear what would constitute “unreasonable refusal”, “unreasonable conditions” as well as “reasonable requirements of the public”.

Policy to address the problem
The first approach protected the moral and material interest of the inventor which resulted from his or her intellectual efforts. Robust intellectual property protection was afforded which included broad and expansive range of exclusive rights, extended periods of protection, and limits on mandatory licensing and narrow exceptions.

The second approach involved a legal protection which was offered not only to reward the intellectual efforts of the inventor, but also because such products aimed to increase society’s welfare. This approach included limited scope of protection and conditions under which users might access and use the protected material for socially valuable purposes.

Policy recommended to address the problem
Patents and the sui generis Plant Breeders’ Rights system differed greatly. In the case of sui generis systems, the eligibility requirements were less onerous but the scope of rights was rather narrow, whilst the eligibility requirements for patents were high and difficult to achieve. The sui generis system was considered most appropriate when considering the developmental context of South Africa.

Policy Instruments
Patents Act 1978 (Act No.57 of 1978)
In terms of this Act, a patent might be granted for any new invention which involved an inventive step and which was capable of being used or applied in trade, industry and agriculture. The current Patent Act did not allow for “search and examination” as provided for in other international intellectual property rights (IPR) legislation.

Plant Breeders’ Rights Act 1976 (Act No.15 of 1976)
The objective of this Act was to provide for a system through which plant breeders’ rights relating to varieties of certain kinds of plants might be granted and registered. This Act might not fully accommodate the developmental needs due to specific requirements of distinctness, uniqueness and stability.

The Indigenous Knowledge Systems (IKS) Policy
The IKS Policy of the Department of Science and Technology aimed to stimulate and strengthen the contribution of indigenous knowledge to social and economic development in South Africa. The IKS Policy included, amongst other things, the affirmation of African cultural values in the face of globalization – a clear imperative given the need to promote a positive African identity, and practical measures for the development of services provided by IK holders and practitioners, with a particular focus on traditional medicine, but also including areas such as agriculture, indigenous languages and folklore.

Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement
This agreement aimed to protect and enforce intellectual property rights in order to promote technological innovation, the transfer and dissemination of technology to the mutual advantage of producers and users in a manner that was conducive to social and economic welfare and to balance rights and obligations.

Institutional Arrangements
National Authority on plant breeders’ rights
A plant variety had to register before the protection could be granted. This required the National Authority to examine applications and decide on such applications. The National Authority would comprise the Registrar together with adequate support personnel. Where required, the National Authority might cooperate with relevant experts and institutions to perform DUS tests or consider additional relevant information.

Establishment of an Advisory Body
An Advisory Body would be established to advise the Registrar on any technical matter relevant to plant variety protection. This body would include individuals with competence in breeding industry, consumer protection, conservation, and sustainable use of plant genetic resources and indigenous knowledge matters.

Recognition of the contribution of farmers to plant genetic diversity
The first approach involved situating the traditional practices of farmers as exceptions to the exclusive rights of plant breeders under existing IPR laws. The second approach involved acknowledging farmers through benefit sharing mechanisms such as financial payments and technology transfers. The third approach was to develop plant variety protection regimes which recognized their heterogeneous plant varieties.

Promoting and increasing plant breeding activities at public institutions
The development of a new plant variety required significant investment in research. If such development was undertaken at public research institutions, Government might determine the terms of protection, the conditions of restrictions and exemptions. Plant variety protection might be a source of income for public research institutes involved in plant breeding.

Human resources development and capacity building
It was important for the Department to maintain an adequate level of expertise in the field as well as provide the required legal support for new entrant plant breeders, particularly those previously excluded from economic activity, because developing countries were increasingly challenged to engage coherently with the various international bodies focusing on intellectual property rights.

Implementation Strategy
Consultation on the draft Plant Breeders’ Rights Policy would proceed through sourcing of comments from the interested and affected parties. This would include two provincial workshops. Expression of the policy through relevant legislation would include the amendment of the Plant Breeders’ Rights Act 1976 and the regulations to the Act. Other policy initiatives to support the sustainable use and conservation of plant genetic resources were already in place. Various international conventions and agreements were also relevant to the protection of plant varieties.

Discussion
The Chairperson said that the Department had dealt with some very important matters concerning the safety and security of food for South Africa and concerning the role of bodies which set standards of quality.

Ms M Mabuza (ANC) commented that she disagreed with Dr Mogajane when she stated more foreigners were having breeders’ rights than the local because there was a lack of expertise in various areas and lack of awareness. She said that local farmers were deprived of this information because the Department failed to market this Act so that local farmers could know what the Department was offering. Secondly, she wanted to know how tensions around food security and bio-diversity were going to be dealt with. Thirdly, she asked what was the Department doing to ensure traditional farmers were taken seriously. Lastly, she wanted to find out how was the Department going to correct skewed ownership and research.

Dr Mogajane explained that the Department would forward a thorough written explanation to the Committee regarding Ms Mabuza’s the first question on why foreigners were having breeders’ rights than the locals. This was because the issue was around administrative procedures introduced by Thailand when it invited countries to make submissions on plant health matters.

Dr Miranda Visser, Chief Director: Agricultural Production, Department of Agriculture, Forestry and Fisheries, and a specialist in plant pathology, said, with regard to food security and bio-diversity, that 2010 had been announced by the United Nations (UN) as the year of bio-diversity because there was so much tension between the food security and bio-diversity. The training of food security at national level for most industrial countries came, sometimes, at a cost to the environment, bio-diversity and other issues. So announcing it as the year of bio-diversity was to produce food in a sustainable manner, taking care of the environment and natural resource management but also taking care of biological resource management. One needed to produce in a sustainable manner, taking care of the air, water and the land and biological resources, plants and animals.  At all times we needed to promote production in a sustainable manner that took care of the natural and biological resources.

Dr Mogajane added that as South Africans we had not done much to promote our own crops. The country did not have a forum to promote its own food, locally and overseas. The country had not defined what South African food was. But the establishment of such a forum was on the cards. She also said that the Department could not prevent the imports of other products because South Africa had got people of other nations on her soil, and those people would come and request for some of their products to be imported. That was the challenge, but an effort to promote our own food would be made. On the issue of skewed ownership and research, she said that more money has been pumped into research in order to change the research agenda. The Department would start talking to scientists about things it needed to be done, rather than scientists telling the Department what to do.

Dr Jaftha, responding to the issue of foreign ownership, explained that the number of ownership and breeders had to be separated. The breeder was not necessarily the rights holder, and that foreign ownership did not limit access. When a variety was released it was to the benefit of the rights holder to ensure that people had access to it so that he or she could gain royalties to it. In an attempt to address skewed ownership, what the Department was saying was that it had to support the national agricultural research system so as to produce more breeders. That was the intervention put in place in terms of the policy. In terms of the lack of participation of farmers, there had been an infringement because people were not aware of their rights granted to right holders. The Act did provide protection when the farmers used it in their own holdings. There was no infringement, but it became a problem when there were sales. When a person or farmer bought a protected variety, the labelling prescripts that were covered in the piece of legislation would tell them that this was a protected plant variety. There was no way a farmer could not know it was a protected plant variety in terms of sales. However, capacity would be increased in creating awareness. On promotion of traditional varieties developed by traditional farmers, he stated that there was a programme on conservation of generic resources for food and agriculture in the policy. That was a way of conserving traditional varieties. The Department had identified certain regions where it collected indigenous material and those had been stored in the gene bank of the Department in Pretoria. Part of this has also got to do with the collection of indigenous material associated with local species. Once this had been documented, and if it was found later that community no longer had that species, it was repatriated. That was to make sure that landrace material was conserved.  In terms of the exploitation of indigenous knowledge, the document policy covered that area. If that was documented, and there was enough evidence that that community had that particular knowledge, the affected community could use that document in court proceedings.

Mr R Cebekhulu (IFP) asked why the Department in its implementation strategy was focusing on two provincial workshops.

Dr Mogajane replied the Department was limited by the available resources. But she assured the Committee that input from farmers would be sourced.

Ms Noluthando Netnou-Nkoana, Registrar: Plant Breeders’ Rights Act 1976, Department of Agriculture, Forestry and Fisheries, explained to the Committee about compulsory licensing. She stated that it was identified as a challenge. In terms of the Act, the Registrar would issue licences. However, there were no guidelines for the Registrar in issuing these licences.

Dr Mogajane explained the policy aimed to give guidelines on how to manage plant breeding, and the Department would work collaboratively with various stakeholders. Input from the Committee would be taken into consideration when consulting with other stakeholders.

Mr N Du Toit (DA) said that it was wise for the Department to conduct consultations, as it had indicated, and involve other organisations, including universities. He hoped that publication of the policy for comments would not be left until December. He said that it was desirable to avoid having to resort to law suits. Legal opinion should be sought on certain issues.   

The Chairperson said that the issues were straightforward. He considered the day’s briefing a preliminary one. Members would consider the details after the meeting. The meeting had assisted Members in taking them forward to the next stage in amending the legislation as the Department was proposing.

The meeting was adjourned.