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Aspects of Intellectual Property Protection in Relation to Seed Crops

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Aspects of Intellectual Property Protection in Relation to Seed Crops 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 Noluthando Netnou-Nkoana Thesis submitted to the Faculty of Veterinary Science, University of Pretoria, in fulfilment of the requirements for the degree of Philosophiae Doctor In the Phytomedicine Programme Department of Paraclinical Sciences Faculty of Veterinary Science University of Pretoria Promotor: Prof J.N. Eloff Co-Promotor: Prof L.J. McGaw December, 2016 © University of Pretoria DECLARATION The research presented in this report was carried out whilst employed as the Registrar: Plant Breeders’ Rights in the Department of Agriculture, Forestry and Fisheries under the supervision of Prof J.N. Eloff and co-supervision of Prof L.J. McGaw in the Phytomedicine Programme, Department of Paraclinical Sciences, Faculty of Veterinary Science, University of Pretoria. I, the undersigned Noluthando Netnou-Nkoana, declare that this thesis submitted to the University for the degree of Philosophiae Doctor, is the result of my own investigations except when the work of others is acknowledged. The views expressed are my own views and do not represent the views of my employers. This thesis has not been submitted to any other institution. ___________________________________ Noluthando Netnou-Nkoana ___________________________________ Prof J.N. Eloff (promotor) ___________________________________ Prof L.J. McGaw (co-promotor) ii © University of Pretoria ACKNOWLEDGEMENTS I am immeasurably indebted to the Department of Agriculture, Forestry & Fisheries for financial support and access to the department’s data and resources. I am grateful to my promotors, Prof Eloff and Prof McGaw, for their patience, guidance and encouragement throughout this study. Many thanks to everyone who has assisted in this study, without whom this study would not have been a success: The Head of Provincial Departments responsible for Agriculture in the Eastern Cape, Free State, Limpopo and Western Cape and their extension officers, Civil Society Organisations involved, farmers and their representatives, industry representatives, officials from Malanseuns Pleasure Plants and New Plant Nursery and all of our stakeholders are sincerely thanked for their valuable contributions. DAFF officials: Dr Julian Jaftha, Barry Beukes and Joan Sadie are thanked for their insightful discussions; Mabjang Dibiloane, Mashudu Mafenya, Malerotho Lekoane and Nompumelelo Mkhonza are thanked for lending their support. A special thanks to my mother, Nombuyiselo Netnou, who is my pillar of strength; my husband, Lephai Solomon Nkoana for continuous support and sense of humour, my two daughters Lufezo and Libonge and the rest of family for their encouragement and unconditional love. To all my friends and colleagues, thank you for being there when needed most. Nangamso!! This thesis is dedicated to the loving memory of my late father, Penny Arthur Netnou (14 February 1946-30 July 2014), my friend, my hero, my protector. Phumla ngoxolo mNgwevu, Zulu, Tshangisa, Snuka, Rhudulu ugqatso ulufezile. Makubenjalo!!. iii © University of Pretoria PUBLICATIONS The following publications have appeared from this work: Netnou-Nkoana, N & Eloff, JN. 2012. The South African floricultural industry and the Plant Breeders’ Rights Act: A short review. World Patent Information 34:224-228. Netnou-Nkoana NC, Jaftha, JB, Dibiloane, NA & Eloff, J. 2015. Understanding of the Farmers’ Privilege concept by smallholder farmers in South Africa. South African Journal Science 111 (1/2). Some of the proposed legislative amendments, in particular around the farmers’ privilege, were presented in the following workshops: a) National Stakeholder Workshop held in Pretoria on 22 May 2013. b) Plant Breeders’ Rights Bill and Plant Improvement Bill: Knowledge and Information Exchange Workshop held in Cape Town on 31 March-01 April 2015. iv © University of Pretoria 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. v © University of Pretoria 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 vi © University of Pretoria 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
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