Following Agriculture, Forestry and Fisheries Minister Senzeni Zokwana’s January announcement that he intended to introduce the Plant Breeders Rights (PBR) Bill in the National Assembly, public hearings were held in Parliament in May to discuss the amendments required for the PBR Amendment Bill.

Local law firm Spoor & Fisher partner David Cochrane explains that the 2015 Amendment Bill seeks to amend the PBR Act of 1976 to comply with the provisions of the International Union for the Protection of New Variety Convention of 1991, besides others, by extending protection to all genres and species of flora.

The Bill will also change the laws regarding the so-called ‘farmers’ privilege’. In terms of the current law, a farmer is entitled to use harvested material, for example farmed-saved seed produced on his or her farm, from a protected variety obtained legitimately from a PBR title holder, to plant his or her own fields without any obligation to the PBR titleholder.

Cochrane explains that the intention of the farmers’ privilege is to protect subsistence farmers from having to buy seed every year, as it enables them to save some of the initial seed given to them by the PBR owners and to use it to grow crops.

He notes that PBR owners have expressed concern that this system is being abused by large commercial farming operations to evade paying the yearly rights for using the seed provided by the PBR owners. “The plant breeders want the law to be amended to stop that alleged abuse,” says Cochrane.

What is of concern is that the 2015 PBR Amendment Bill seeks to criminalise the infringement of PBRs. Cochrane explains that, under the current PBR Act, the infringement of a plant breeders right is not a criminal offence. In the 2015 Bill, an infringer can face a fine or imprisonment for a period not exceeding ten years. The reason for including the criminal provisions is to make it easier for PBR holders to enforce their rights.

Although this is a sound motivation, it also negatively impacts on farmers who do not have the means to challenge the validity of the PBR. The major flaw in the criminalisation of infringing a PBR is that the PBR is not necessarily valid. A plant breeders 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 – such as a prior sale of the variety – or the registrar makes a mistake when granting the right, then the right, although granted, could actually be invalid. Poor farmers will not have the means to challenge the validity of the right, and could end up being found guilty of a criminal offence on the basis of a PBR that is not, in fact, valid.

“Infringement of PBR should not be a criminal offence. It is a private right and enforcement should be through civil procedures, such as penalty damages, and not through the criminal prosecution system,” he argues.

Meanwhile, the 2015 PBR Amendment Bill will also provide for the amendment of administrative requirements, including the documents required to secure a filing date, the tabling of realistic periods for submission of plant material for testing and trials, and the delineation of what constitutes confidential information.

Cochrane concludes that the main intention of the 2015 PBR Bill is to strengthen the protection of South African PBRs and to support South Africa’s legislation by abiding by the International Union for the Protection of New Variety Convention of 1991, and that the criminal offence should be removed.