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Civil Protection for New Agricultural Varieties: a Comparative Study

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Civil Protection for New Agricultural Varieties: a Comparative Study REVIEW OF INTERNATIONAL GEOGRAPHICAL EDUCATION ISSN: 2146-0353 ● © RIGEO ● 11(4), WINTER, 2021 www.rigeo.org Research Article Civil Protection for New Agricultural Varieties: A comparative Study Mothana Abdulkadem Mashaf1 Ahmed Hashim Abed2 College of Law, University of Misan, Iraq College of Law, University of Misan, Iraq [email protected] [email protected] Abstract The vital role that new agricultural varieties play in the food fields or in the pharmaceutical industry made them vulnerable to piracy and abuse of the contriver's rights. Therefore, it is necessary to give civil protection to agricultural varieties. For a variety to be protected, it must meet certain conditions that are subjective and procedural conditions. If as long as these conditions are met, the breeder of this variety is granted a certificate of protection that gives him/her an exclusive and moral right to confront all. The matter should not stop at this point, but conservative measures and special rules for compensation in this field must be established to protect agricultural varieties in order to enable the contriver to maintain his/her exclusive and moral right throughout the period of legal protection. Keywords New agricultural varieties, temporary protection, precautionary measures, permanent protection, compensation. To cite this article: Mashaf, M, A.; and Abed, A, H. (2021) Civil Protection for New Agricultural Varieties: A comparative Study Review of International Geographical Education (RIGEO), 11(4), 1365-1374. doi: 10.48047/rigeo.11.04.130 Submitted: 20-03-2021 ● Revised: 15-04-2021 ● Accepted: 15-05-2021 © RIGEO ● Review of International Geographical Education 11(4), WINTER, 2021 Introduction. The new agricultural varieties are those varieties reached in a non-biological way as a result of introducing improvements or modifications in the genetic makeup of a biological plant, through selection and crossbreeding, such as some modification in the composition of the plant gene to become more resistant to insects and pests, as well as leading to improved agricultural varieties. The production exceeds that of the traditional or inherited agricultural varieties (Al- Fatlawi, 2006: p. 132). There is no doubt that obtaining a new agricultural variety requires a long time and great effort, which requires a period of time ranging between 7 to 13 years during which the contriver collects a large number of samples and then examines a sample in the first year and selects it in the following year and so on until it reaches the variety that contains all the genetic traits that the contender wants and conceive of as an innovative image of the variety (Badawi, 2006: p. 168). Therefore, these agricultural varieties are considered forms of intellectual property that the UPOV Convention assured their protection on the basis that creativity in the field of new agricultural varieties is an intellectual property according to which the contriver of this kind has an intellectual property that must be protected in order to prevent aggression on the one hand and to encourage the contrivers to provide more creativity on the other hand. The UPOV agreement was not the only agreement concerned with protecting agricultural varieties. It was followed by other international agreements that took care of these varieties. Among the most important of these agreements was the TRIPS Agreement. Some countries have also issued special laws to protect new agricultural varieties, based on the provisions of the UPOV agreement. The Jordanian legislators issued Law No. (24) for 2000 regarding the protection of new agricultural varieties using the designation of a new plant variety. Likewise, the Egyptian legislators issued the Intellectual Property Law No. (82) for 2002 using the term plant breeders. As for the Iraqi legislators, they organized new agricultural varieties through the order issued by the Coalition Provisional Authority No. (81) for 2004. Due to this order, the Iraqi Patent Law No. (65) for 1970 became including, in addition to Patent and industrial designs, undisclosed information, integrated circuits, as well as agricultural varieties. Articles (51) - (79) organized them and referred to the owner of the agricultural variety by “the plant breeder”. These articles were canceled according to Article (18) of the Registration and Accreditation Law and Protection of Agricultural Varieties No. (15) of 2013. This law referred to the producer of the agricultural variety using the term cultivator. The Broblem of Study. In view of the vital role that the new agricultural varieties play in the food fields or in the pharmaceutical industry, which made them vulnerable to piracy and abuse of the contriver's rights, many questions arose: 1. What are the conditions that must be met in the new agricultural variety in order to possess protection? 2. What are the means for protecting this variety? 3. What is the extent of the adequacy of this special regulation established by the Iraqi legislators under the Law of Registration, Approval and Protection of Agricultural Varieties No. (15) of 2013 and the comparative laws to provide civil protection for new agricultural varieties? The Aims of Study. The current study aims at: 1. Explaining the conditions for granting protection to new agricultural varieties and the rights that prove to those who devote these varieties during the protection period. 2. Clarifying the Iraqi Registration Law No. (15) of 2013 for approval, registration, and protection for new agricultural varieties and the extent of its adequacy to provide effective protection for these Varieties to encourage the contriver to continue to be creative in devising new varieties. 1366 Abees, Prof. Dr, S, R.; Rahman, P, A.; and kadhim, S, J. (2021) The Relationship of The Center of Gravity of … The Significance of Study. Reading the texts of the UPOV Agreement and the Egyptian Intellectual Property Law No. (82) for 2002 and comparing them with what is included in the Law of Registration, Approval and Protection of Iraqi Agricultural Varieties No. (15) for 2013 to show the extent of the feasibility of the protection provided by the Iraqi legislators for agricultural varieties to ensure the contender a minimum level of care and attention to encourage him/her to continue to develop new agricultural varieties. The Design of the Present Study. The above questions will be answered according to the comparative analytical method by studying and analyzing the legal texts contained in the UPOV, TRIPS, and the national legislations of countries that have enacted special legislations to protect new agricultural varieties. This will be done by dividing the present study into a number of sections to show the problem of the present study. Legal Conditions for the Protection of New Agricultural Varieties. Most national legislations and international treaties required, in order to grant protection to new agricultural varieties, that a set of subjective and procedural conditions be met. These conditions will be described successively: Subjective Conditions for the Protection of New Agricultural Varieties. In order to protect the new agricultural variety, there should be a set of self-conditions in this category, including those related to the same variety, and these are the substantive conditions that are supposed to be available in the new agricultural variety, in addition to the formal conditions stipulated in the Iraqi Agricultural Varieties Registration and Certification Law No. (5) for 2013 for the purpose of protecting this variety from others. These conditions will be described successively: The Objective Conditions for the Protection of New Agricultural Varieties These conditions relate to the description of the new agricultural variety as novel. This variety should be homogeneous, distinct, and characterized by persistence (Article (3/3) of the Iraqi Agricultural Varieties Registration, Certification and Protection Law No. (15) of 2013). These conditions will be described successively: A. The agricultural variety is considered new if it has not been previously extracted and has not been approved by others for offering it for circulation or use in any way, i.e. whether it was a direct method through the use of the variety itself or was indirect if it used propagation materials to produce other varieties or was introduced in Other synthetic materials, such as medicines, in the country in which the application was filed for a period of more than a year before the filing date, or in the territory of any other country other than the country in which the application was deposited for a period of more than four or six years if the request for protection was focused on trees or grapes (Article (6/1): UPOV). The burden of proof falls on the contriver of the new agricultural variety, as he/she is the stakeholder in proving that the specified period of time has not expired. The contributor of the new agricultural variety can prove in all ways of proof, the most important of which is to provide evidence of the date of the first circulation, offering, or exploitation of the variety (Ashour, 2019: p 285-299). B. The new agricultural variety must be distinct and different from other agricultural varieties known publicly at the date of filing the application in at least one capacity, such as length, size, weight, color, or smell. This difference should be clear, apparent, and can be easily discovered. The new variety should preserve this characteristic at its reproduction. Accordingly, the agricultural variety that does not have one of the characteristics distinguishing it from publicly known agricultural varieties at the time of application; if the distinctive characteristic could not be 1367 © RIGEO ● Review of International Geographical Education 11(4), WINTER, 2021 retained by the cultivar during reproduction, it does not reach the degree of excellence that qualifies it for protection by law Intention (Abdul Majeed, 2005: p. 142). C. The characteristics of the new agricultural variety must be homogeneous. There should not be any variation or difference in these characteristics.
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