New legislation on plant breeders' rights in South Africa: key changes to be aware of

Introduction
Duration and sole right
Exceptions to plant breeders' rights
Applications for plant breeders' rights
Distinctness, uniformity and stability tests and trials
Payment of annual fees

Introduction

The new South African Plant Breeders' Rights Act(1) was assented to on 27 March 2019 and published in the South African Government Gazette on 29 March 2019.

Although the Act has been assented to, it is not yet in force. It will only come into force once it has been proclaimed and regulations have been promulgated.

Draft regulations to the Act were published on 24 June 2022. The deadline for submitting comments on the draft regulations to the Department of Agriculture, Land Reform and Rural Development was 31 August 2022.

The publication of the final regulations is awaited. At this stage, the new Act and regulations will come into effect.

This article sets out the key changes that the new Act and the draft regulations will introduce.

Duration and sole right

Table 2 of the proposed regulations lists the kinds of plants and the period of the sole right, and the period of the plant breeders' rights:

• For trees and vines, the period of the sole right is five years and the duration of the plant breeders' right is 25 years from the date of grant.
• For all other plants, the period of the sole right is three years and the duration of the plant breeders' right is 20 years from the date of grant.

Although the Act makes provisions for durations of 20, 25 and 30 years, no plants have yet been afforded a duration of 30 years.

Exceptions to plant breeders' rights

Section 10(1)(d) read together with section 10(2) of the Act provides that the minister will prescribe regulations for:

• the category or categories of farmers who may use the protected variety;
• the category or categories of plants that may be used;
• the uses to which the protected variety may be put; and
• where applicable:
  • conditions for payment of royalties; and
  • labelling requirements.

These are provided in regulations 5 and 6 of the proposed regulations.

For the purposes of section 10(2)(1), farmers are categorised into the following categories, reflecting different types of producer in South Africa:

• vulnerable household producers – producers that produce primarily for household consumption to meet their daily dietary needs and that have limited resources and skills to operate a market-oriented production system. This category includes:
  • vulnerable women and young people;
  • child-headed households;
  • persons with disabilities;
  • farm dwellers; and
  • households that are producing in communal land and commonages that are registered as indigents or meet the criteria for registration as indigents with their municipality;
• subsistence household producers – producers that produce primarily for household consumption to meet their daily dietary needs who are not classified as indigents by their municipalities and do not meet the criteria to be registered as indigents by their municipalities. They may market limited surplus production;
• smallholder producers – ventures undertaken by individuals or business entities for the purpose of household consumption and that derive a source of income from agriculture activities along the value chain. They are usually new entrants in the agricultural sector;
• medium-scale commercial producers – ventures undertaken by individuals or business entities for the purpose of deriving a source of income from agriculture activities along the value chain. They are established enterprises producing for market to make a profit; and
• large-scale commercial producers – ventures undertaken by individuals or business entities for the purpose of production and sale of agriculture products to make a profit. They are established enterprises producing for market to make a profit.

Under the proposed regulations, plant breeders' rights shall not be infringed where a farmer included in sub-regulation 2(a), (b) and (c):

• produces the prescribed maximum quantities of protected varieties of kinds of plants listed in regulation 6; or
• saves on their own holding, or exchanges with other farmers within their category, propagating material of such protected varieties for propagating purposes.

The exchange of seed does not appear to fall within the exceptions provided for in article 15(2) of the International Union for the Protection of New Varieties of Plants (UPOV) Convention 1991.

The UPOV website states that:

Within the scope of the breeder's right exceptions provided under the UPOV Conventions, UPOV Contracting Parties have the flexibility to consider, where the legitimate interests of the breeders are not significantly affected, in the occasional case of propagating material of protected varieties, allowing subsistence farmers to exchange this against other vital goods within the local community.

Although there is no direct reference in the UPOV Convention 1991, it would appear that exchanges may be condoned in the circumstances mentioned above.

Under the proposed regulations, a farmer included in sub-regulation 2(d) and (c), and any other farmer who produces quantities of protected varieties for the kinds of plants listed in regulation 6 in excess of the prescribed maximum quantities, may save for propagation purposes, on their own holding, the product of the harvest that they have obtained by planting on their own holding the protected variety of a kind of plant listed in regulation 6, provided that such a farmer:

• has legitimately obtained propagating material of the protected plant variety concerned;
• notifies, in writing, the breeder or the holder of the plant breeders' right of the protected variety concerned as to the volume of saved propagating material thereof;
• pays the breeder or the holder of the breeders' right of the protected variety concerned a reasonable remuneration for using the saved propagating material thereof, in compliance with market conditions. Such an amount may be considerably lower than the level of remuneration of the purchased propagating material of the same variety in South Africa. The breeder or holder of the plant breeders' right and the farmer must agree on the remuneration payable through a written licence agreement in accordance with section 34; and
• preserves the identity of the protected variety at all times by clearly indicating the following information on the label of any container in which saved propagating material of a protected variety is stored:
  • the name of the kind of plant (crop);
  • the variety denomination (name) approved in terms of the Act; and
  • the name and address of the producer of the propagating material.

The exception to a plant breeders' right under section 10(1)(d) does not apply to protected varieties of ornamental plants, or to any protected varieties of any kind of plant not listed under regulation 6.

For any of the kinds of plants listed in regulation 6, the relevant industry or commodity group may apply to the minister responsible for agriculture for a statutory levy, as may be applicable.

The categories of plants to which section 10(2)(a)(11) applies are listed in the table below. A farmer included in categories in sub-regulation 2(a), (b) and (c) is a farmer who produces quantities not exceeding the prescribed maximum quantities for each kind of plant.

Applications for plant breeders' rights

Under proposed regulation 8(2), an applicant who is not domiciled or resident in South Africa can only submit an application through a local agent. Under proposed regulation 9(2), an applicant may secure a filing date by submitting copies of the application electronically to the registrar – a welcome change.

The original documents must be submitted within three months. Under the old regulations, a third party could object to a plant breeders' right application within six months of its publication. Under proposed regulation 14(1), this period is reduced to 60 days.

Distinctness, uniformity and stability tests and trials

Proposed regulation 18(1) provides that material for tests and trials in accordance to section 26 must be provided to the registrar as follows:

• In the case of potatoes, trees and vines, the required amount of plant material must be made available for tests and trials within five years from the filing date and the applicant or agent must deliver the material to the office of the registrar or inform the registrar of the location of the material as applicable.
• In the case of all other crops, the required amount of plant material must be delivered to the office of the registrar within 24 months from the filing date.
• The specific of amounts of material to be submitted is obtainable from the office of the registrar.

Under proposed regulation 9(1), it is possible to apply for an extension of a period that does not exceed the initial period stipulated in subsection 18(1). In the event of imported material, the application must be accompanied with a sworn affidavit as proof that the plant material has been imported into South Africa.

Under the old regulations, there was no limit on extensions of time to provide plant material for testing. The new limitations will make it more onerous for applicants that need to import material from outside of South Africa – foreign applicants in particular will need to take note.

Payment of annual fees

Under proposed regulation 21, an annual fee is payable to keep a granted plant breeders' right in force. If the annual fee is not paid, the plant breeders' right will be cancelled under section 38(1)(d)(ii) of the new Act. As with the old Act and regulations, there are no provisions for the restoration of a cancelled plant breeders' right.

Under the old Act and regulations, the deadline for paying the annual fee was 1 January with an automatic extension of time until 31 January. Under the new Act, the annual fee must be paid by 31 March each year, with a six-month extension of time available.

For further information on this topic please contact David Cochrane at Spoor & Fisher by telephone (+27 12 676 1111) or email ([email protected]). The Spoor & Fisher website can be accessed at www.spoor.com.

Endnotes

(1) No. 12 of 2018.