Aspects of intellectual property protection in relation to seed crops, floriculture and medicinal plants that may impact on policy and legislative developments in South Africa

Abstract

The Plant Breeder’s Right (PBR), also known as Plant Variety Protection (PVP), is a form of intellectual property afforded to breeders of newly bred plant varieties. In South Africa, intellectual protection of new plant varieties is afforded through the Plant Breeders’ Rights Act, 1976 (Act No. 15 of 1976) as amended in 1996.

The writer has been Registrar: Plant Breeders’ Rights since November 2007. Over the years the writer has interacted with several stakeholders with interest in plant breeders’ rights, including breeders, farmers, patent attorneys, growers, plant breeders’ rights administrators from other countries and civil society organisations. Although South Africa has had Plant Breeders’ Rights legislation since 1976, it has been observed that this piece of legislation is relatively unknown and often misunderstood even by the users of the system. In engagements with various stakeholders, it has been established that there are conflicting views amongst the stakeholders on pertinent issues related to the plant breeders’ rights system. There are views, among others, include: that the plant breeders’ rights system is only relevant and benefits breeders from big multinational companies such as Monsanto and farmers can never benefit in such a system; that the Plant Breeders’ Rights Act is synonymous with genetically modified organisms; that indigenous plants are neglected, and that the system only promotes protection of foreign varieties. The most contentious issue is however around the impact of plant breeders’ rights on the tradition of farmers to save, sell and exchange seed.

Very little is documented on the South Africa plant breeders’ rights system, more so from the administrator’s perspective. This study explored some aspects of the plant breeders’ rights system that may need policy interventions and legislation amendments, such as matters around the plant breeders’ rights system in relation to farmers’ rights, possible dual protection of Genetically Modified varieties in terms of the Plant Breeders’ Rights Act 1976 and the Patents Act 1978, as well as the participation of indigenous ornamental crops in the plant breeders’ rights system.

On the issue of the farmers’ rights: results of this work show that the current provision in the Plant Breeders’ Rights Act deals with Farmers’ Rights in a narrow sense, i.e. with the rights of farmers to save seed. It was established that this provision is inadequate for both the breeders and the farmers. A survey was also conducted among smallholder farmers from four provinces, namely Eastern Cape, Free State, Limpopo, and Western Cape. The interesting finding was that although there is so much debate around the impact of the plant breeders’ rights system on farmers’ rights, the majority of the farmers from this study group have never heard of the Plant Breeders’ Rights Act. There are farmers who are continuing with the practice of seed saving; however some farmers have indicated that they do not save seed they believe that this practice lowers yield. Those who do save seed mostly save their traditional seed, i.e. locally adapted seed lacking formal crop improvement as opposed to modern commercial seed. Some farmers have indicated that they do develop varieties through their own selections and believe that their varieties could qualify for protection in terms of the Plant Breeders’ Rights Act. It is evident that both government and the civil society organisations need to do more to educate smallholder farmers about laws and policies that impact their livelihood. Based on this study, a proposal was made to have the farmers’ privilege provisions in the current Plant Breeders’ Right Act amended to allow the Minister responsible for Agriculture to prescribe among others: the crops in which this provision will apply; the category or categories of farmers that would benefit; the circumstances under which royalties should be paid. This proposal was welcomed by most stakeholders and has since been incorporated in the draft Plant Breeders’ Rights Bill. It is envisaged that specific details around these factors will be included in the Regulations to the Act after extensive consultations with all relevant stakeholders.

There is a gap in policy and legislation with regard to the recognition of Farmers’ Rights as envisaged in the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). As such there are calls from some stakeholders including the civil society organisations that legislation on plant breeders’ rights must address these gaps and/or an alternative sui generis (of its own kind) system should be explored as the International Union for the Protection of New Plant Varieties (UPOV) system is not tailored for developing © University of Pretoria vii countries. In South Africa, legislation dealing with some aspects pertaining to Farmers’ Rights is spread over different government departments, e.g. Department of Agriculture, Forestry & Fisheries dealing with intellectual property protection only in as far as plant breeders’ rights; Department of Trade & Industry being custodians of intellectual property laws in South Africa and administrators of, among others the Patents Act; Department of Environmental Affairs dealing with Access and Benefit Sharing matters; Department of Science and Technology dealing with Indigenous Knowledge Systems and intellectual property protection emanating from publicly funded research institutions. More discussions are needed on South Africa becoming a member of the ITPGRFA as these will pave the way for further discussions and policy interventions addressing Farmers’ Rights in a broad sense.

As far as the Genetically Modified Organisms are concerned, South Africa has approved only three Genetically Modified (GM) crops for commercialization in terms of the GMO Act, 1997, namely cotton, maize, and soybean. This is contrary to some statements made by members of the public that much more crops, including pumpkin, potato, banana and tomato are genetically modified. In terms of intellectual property protection, of the total number of GM varieties protected by plant breeders’ rights per crop: 60% of varieties are GM for cotton, 61% for yellow maize, 34% for white maize and 63% for soybean. Currently there are no GM events used in these crops protected in terms of the Patents Act 1978, which effectively means that there is currently no dual protection for these crops. Dual protection is however one of the most hotly debated issues because of the impact it might have on the rights of farmers to save seed. It has been argued that in South Africa dual protection is possible. Scrutiny of the Plant Breeders’ Rights Act 1976, the Patents Act 1978 and the draft National Policy on Intellectual Property shows that all are silent on the issue of dual protection of plant varieties. The Departments of Agriculture, Forestry & Fisheries together with the Department of Trade and Industry need to initiate discussions around dual protection as well the use of Technology Agreements, between technology holders and technology users, in protecting GM varieties and the impact thereof for all role players in the value-chain in order to come up with the country position in this regard.

This study showed that ornamental plants attract the highest number of plant breeders’ rights applications. Of the applications received between 2000 and 2010 about 20% are of varieties developed from indigenous plants. Of plant breeders’ rights in ornamental plants, 84% are owned by foreign entities. Of the 16% owned by local entities, 12% are privately owned and 4% are owned by public research institutions. Some of the challenges facing this industry include the fact that there is inadequate turnover to allow for breeding programs and research initiatives; this is exacerbated by plant breeder’s rights infringements which lead to further revenue losses. Other challenges the industry face include high labor costs and lack of market information. The national Department of Agriculture, Forestry and Fisheries together with the other relevant departments, e.g. the Department of Labour and the Department of Trade and Industry need to engage more with the floricultural industry stakeholders to discuss the challenges facing the industry and come up with policies that would be conducive for the further development of the industry in order for South Africa to benefit from its unique biodiversity. Literature study has also established that breeders are keen on developing varieties of medicinal plants that are uniform and stable. This would call for domestic legislation on intellectual property protection that is aligned with legislation on Biodiversity and Access and Benefit-Sharing.

This study highlights the importance of engaging stakeholders from both the formal and informal sector and brings attention to gaps in our policies and legislation. This study has already made a major contribution in the draft Plant Breeders’ Rights Bill through the inclusion of the revised provision on farmers’ privilege. This revision is aimed at ensuring that the legitimate interests of the breeder are protected whilst the rights of the farmers are recognized. It is hoped that this study will make a positive contribution to future policy developments and will lay a foundation for future studies pertaining to the plant breeders’ rights system and its impact in the agricultural sector.