What are Plant Breeders' Rights?
A plant breeder's right is a form of Intellectual Property Right providing for the acquisition of legal rights in terms of the Plant Breeders' Rights Act, 1976 (Act No 15 of 1976), in order to obtain royalties as remuneration for efforts made during the breeding of a new variety of a plant. It therefore provides the owner of a variety the opportunity to obtain financial reward for his/her efforts, as the breeding and development of a new variety is expensive and time consuming. It is important to obtain new and improved plant varieties as there is a constant demand for better quality, higher yields, better processing properties and increased disease resistance.
A plant breeder's right is valid for a period of 20 or 25 years, depending on the kind of plant. During the first 5 to 8 years (period of sole right) the owner has the sole right to produce and market propagating material of the variety. During the next 15 to 17 years the holder is compelled to issue licenses to other persons who also wish to use and market such material. If the holder of the right refuses to issue licenses, these individuals may apply to the Registrar for a compulsory license. During the period of the right, the holder may continue to claim royalties from all licensees for any propagating material produced and sold. Only after the expiry of the full period of the plant breeder's right, does the variety become public property and anyone may then propagate and sell it.
The holder of a plant breeder's right must protect his/her own interests and ensure that the variety is not exploited illegally by any unauthorised person.
The breeder of a new variety must maintain the variety and guarantee that propagating material, which still conforms with the original description, is always available. If he/she fails to do this, the Registrar may cancel his/her rights.
The International Union for the Protection of New Varieties of Plants (UPOV) was established in 1961 and South Africa was accepted as the tenth member of UPOV in 1977. By the end of 2001 there were more than 50 member countries and the number is increasing each year.
The main aims of UPOV are to standardise laws on plant breeders' rights, to determine standardised procedures for the testing of new varieties and to promote co-operation between member countries. Membership of UPOV has the advantage that any person within a member country may apply for plant breeders' rights in any other member country.
Plant breeders' rights are only valid in the country where they were granted. However, plant breeders' rights can be granted to a variety in more than one country.
Foreign owners of varieties are not keen to supply propagating material to individuals in other countries if such material cannot be protected with plant breeders' rights. Therefore, very little foreign propagating material would be available in South Africa if we did not have a Plant Breeders' Rights system.
Plants for which Plant Breeders' Rights may be granted
Plant breeders' rights can only be granted to varieties of kinds of plants that are recognised by the Act. A list of these plants is available on request from the Registrar. At present, approximately 250 kinds of plants are included in this list. If a kind of plant does not appear on this list, a written request must be submitted to the Registrar for Plant Breeders' Rights.
Requirements for the granting of Plant Breeders' Rights
A variety may be considered as new and plant breeders' rights may be granted if the following requirements are met:
- Propagating material of a variety has not been sold in the Republic for longer than 1 year
- Propagating material of a variety of a tree or of a vine has not been available in another country, in trade or to the public for more than 6 years, or in the case of any other plant for more than 4 years
- Propagating material must comply with the DUS (distinctness, uniformity and stability) requirements:
- It must be clearly distinguishable from any other variety of the same species
- It must be uniform (homogeneous), i.e. all the plants in a planting must look similar and have the same characteristics
- It must be stable i.e. the plants of the particular variety must, after repeated cultivation still look like the original plants
- It must have an acceptable denomination.
An applicant for plant breeders' rights may apply to the Registrar of Plant Breeders' Rights for provisional protection of a variety. This means that the variety is protected for the duration of the evaluation period. The applicant gives a written undertaking not to sell (except for purposes of multiplication or testing) any propagating material of the variety in question until all tests have been completed and plant breeders' rights have been granted. Provisional protection is recommended for crops where tests take more than one year to be completed.