Criminal Plants – New Plant Breeders’ Rights Bill

Posted on Feb 18, 2015

Criminal Plants – New Plant Breeders’ Rights Bill

Editor: Among the various pillars of the intellectual property law, perhaps the most esoteric is that of plant breeders’ rights. Despite its significant scientific and economic role, this peculiar and highly specialised field is unfamiliar to most outside the field of IP law. It is therefore with pleasure that the Chair of IP Law reproduce here a post on the Plant Breeders Rights Bill of 2015, which first appeared here on the website of Spoor & Fisher. Most appropriately, this insightful review of the Bill is written by David Cochrane, author of the chapter on plant breeders’ rights in the new textbook on South African IP law Dean & Dyer Introduction to Intellectual Property Law. Students of both specialised IP Law programmes at Stellenbosch University also have the benefit of instruction on this field of law directly from David in his capacity as fellow lecturer of the module on Patents, Registered Designs, Technology Transfer and Plant Breeders’ Rights. 

The Plant Breeders’ Rights Bill was published in 2013. The public was given an opportunity to comment on the 2013 Bill, and the Department of Agriculture held workshops with interested parties.

On 23 January 2015, the Minister of Agriculture, Forestry & Fisheries gave notice that he intends to introduce the Plant Breeders’ Rights Bill, 2015 in the National Assembly shortly. A copy of the 2015 Bill can be found here.

According to the Notice, the 2015 Bill seeks the amendment of the current Plant Breeders’ Rights Act of 1976, in order to provide for: extension of protection to all genre and species; administrative matters including documentation requirements to secure a filing date, realistic periods for submission of plant material for testing and trials, provision for what constitutes confidential information; revised conditions for issuing of compulsory licences, empowering the Minister to make regulations on application and limits of farmers privilege, and fines to be determined in terms of the adjustments of Fines Act.

Infringement, Offences and Penalties

The PBR Bill intends to make the infringement of a Plant Breeder’s Right a criminal offence.  Section 50(1) of the 2013 Bill provided that any person convicted for the infringement of a Plant Breeders’ Right is liable to a fine not exceeding 5 million rand or to imprisonment for a period not exceeding 10 years, or both.  In the 2015 Bill, the reference to the fine not exceeding 5 million rand has been removed, but the liability for a fine or imprisonment for a period not exceeding 10 years remains.

The infringement of a Plant Breeder’s Right should not be a criminal offence.  A Plant Breeder’s Right is a private right, and enforcement should be through civil procedures and not through the criminal prosecution system.

The major flaw in the criminalisation of a Plant Breeder’s Right is that the validity of a Plant Breeder’s Right is not absolute. A Plant Breeder’s Right is granted on the basis of information available to the Registrar when the Right is applied for and granted. If there is information that the Registrar is not aware of (for example a prior sale of the variety) or the Registrar makes a mistake, then the right although granted could actually be invalid. If an infringer does not have this information or the financial resources or ability to attack the validity of a Plant Breeder’s Right, it is possible for a person to be convicted of a criminal offence on the basis of a right that is invalid.

It is recognised that there is a need to have serious consequences for the infringement of a Plant Breeders’ Right, but this could be done in other ways, for example making a provision for penalty damages in the event of wilful infringement of a Plant Breeder’s Right.

The criminal offence for the infringement of a Plant Breeder’s Right must be removed from the 2015 Bill.

A new Section 52 dealing with innocent infringement has been included in the 20115 Bill.  In terms of this Section, a court may refuse to award damages against a person in the action of the infringement of a Plant Breeder’s Right in the court is satisfied that at the time of the infringement, the person was not aware of and had no reasonable grounds of suspecting the existence of the right.  This Section does not assist with the problem of criminal liability because it deals only with civil liability.

Section 51 of the 2015 Bill provides that the Magistrates Court has jurisdiction to impose any penalty prescribed by the Act. An action for infringement of a Plant Breeder’s Right will usually include a counterclaim for the revocation of the right. Given the complexity, these matters would best be heard in the High Court.

Section 31(c) of the 2013 Bill, which sought to make breach of a licence granted under a Plant Breeder’s Rights Bill an act of infringement, has been deleted in the 2015 Bill.  This amendment is welcome.

Compulsory Licences

An application for a compulsory licence will be heard by the Registrar of Plant Breeders’ Rights. There will be guidelines for the granting of compulsory licences.

A new Section 34(1)(b) in the 2015 Bill provides that a compulsory licence may only be issued by the Registrar in the event that the Registrar is of the opinion that the granting is in the public interest.  This complements Section 35(7)(a)(ii) that in order for a compulsory licence to be issued it must be established that the reasonable requirements of the public with regard to the variety in question are not being satisfied.

State may take over a Plant Breeder’s Right

Section 31 of the current Plant Breeders’ Rights Act of 1976 which provides that the State may take over a Plant Breeder’s Right, with payment of compensation to the rights holder, has been omitted from the Bill. The 2015 Bill should include a section that provides for this when it is in public interest, and in particular food security.

Access to Information

It is good to note that Section 5 of the 2015 Bill has been amended to remove the requirement that an application in terms of the Promotion of Access to Information Act 2000 is required to inspect documents submitted in connection with an application for a Plant Breeder’s Right.  This is amendment is in the public interest because the documentation relating to a Plant Breeders Right must be made available to the public so that the public can know what is protected and be able to challenge the information and thus the right if necessary.  Plant Breeders’ Rights applicants are still able to request that limited information, which relates to the breeding program used for developing the new variety, remains secret.

Restoration of a Plant Breeders’ Right

The 2015 Bill does not have any provision for the restoration of a Plant Breeders’ Right in the event that an annual renewal fee was not paid. It is possible for a renewal fee not to be paid unintentionally, and restoration provisions need to be included.

David Cochrane