International Union for Protection of New Varieties of Plants; Plant Improvement and Plant Breeders’ Rights Bills [B8 & 11 – 2015] redrafting

Agriculture, Land Reform and Rural Development

11 May 2016
Chairperson: Ms M Semenya (ANC)
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Meeting Summary

The Department of Agriculture, Forestry and Fisheries (DAFF) briefed the Committee on the  work of the International Union for the Protection of New Varieties of Plants (UPOV). It also outlined the clauses that required to be redrafted, in the Plant Improvement Bill and Plant Breeders’ Rights Bill. The Department’s legal advisors and Committee Members had previously raised concerns on these bills and the present briefings notified the Members of how it had been decided to address and correct those concerns. The Department explained how the work of the Organisation for Economic Cooperation and Development (OECD) was relevant to South Africa and the Plant Improvement Bill. UPOV had been designed to provide a universal system, to promote an effective system of plant variety protection, with the aim of promoting the development of new varieties of plants, which would be critical to sustainable agriculture. It had 74 members but not all held exactly the same status. Two of the sub-groups were described, as well as its governance structure, with a council that is the ultimate decision making body, and consultative, technical, legal and administrative committees. It was noted that the Plant Breeders’ Rights Act and the amendment Bill now being presented were aligned to previous Conventions around protection of rights and granting of licences. South Africa has been an active participant and offered expert opinion.

The Plan Improvement Bill had been redrawn, in conjunction with the State Law Advisors and Parliamentary Legal Advisors. Amendments were now proposed to clauses 38(2),  38(8) (which the DAFF agreed to remove because it seemed tautologous), and clause 43(3), which seemingly could conflict with clause 19. The Committee was, however, now agreed that clause 19 applied to exemption from registration, and clause 43 deals with temporary authorisation for non-compliance in line with conditions set by the Registrar. Clause 47 dealt with appeals and was to be aligned with other provisions in different sets of legislation, specifically the Performing Animals Protection Act, and the Plant Improvement Bill, and would also be subdivided for greater clarity. Clause 49(10), also was questioned, and the involvement of the Minister of Finance was required. All the law advisors present noted that these clauses had been worked on in consultation, and there were no other issues that any of them wanted to raise.

A brief presentation was given on the Plant Breeders’ Rights Bill. A concern, raised at the public hearings, was made on the definitions of “breeder” but the parties saw no reason to change the clause. There were also other concerns about “breeder” and plurality of persons. Some definitions here were also questioned. The proposals on clauses 15, 17 23, 25 and 46 were outlined and discussed. Members were not sure whether the Department was asking them to adopt this Bill now, or later, once the full A list and B Bill were produced. They asked whether it was necessary to have one person dedicated to this work alone, and Members indicated that they would be happy to adopt the Bill in the following week.

In relation to the Plant Improvement Bill, the DAFF noted the key duties and involvement of the Registrar who was to actively engage and represent the country in the International Seed Testing Association (ISTA), and its affiliation with two other international organisations, who aimed to adopt a public procedure for the testing and sampling of seeds moving in international trade. Membership provided a basis for ensuring trade of quality seed, a platform for research and cooperation and guarantee harmonised testing. The specific aims and objectives of the Plant Improvement legislation were outlined. Members asked if South Africa was a signatory to the 1991 agreement, what the membership fee was based upon, and whether all states paid the same, and asked what would happen when the rights came to an end, and where a seed breeder would be protected. Members asked for lists of those holding rights. Although a question on genetically modified corn was raised, it would not be answered in this meeting, as it had not been raised in the presentation.

Meeting report

Chairperson's opening remarks
The Chairperson noted the apologies of the Minister and Deputy Minister. She expressed condolences and asked all to observe a moment's silence on the passing of Dry Sonata, a senior member of the Department of Agriculture, Forestry and Fisheries (DAFF or the Department). She noted that Mr. C Maxegwana (ANC) had recently been appointed as Chairperson of the Portfolio Committee on Communication and noted that the present committee would miss him. She further noted and congratulated Mr P Mabe (ANC) on his new appointment as Chief Whip of the Finance Committee.

Department of Agriculture, Forestry and Fisheries briefings
The Chairperson reminded Members that in a previous meeting, concerns were raised by the Department's legal team, and by some Members, about the new legislation pending before the Committee. The DAFF would speak to that and related issues.

The International Union for the Protection of New Plant Varieties: DAFF briefing
Dr Julian Jaftha, Chief Director: Plant Production and Health Unit, DAFF noted that he would brief the Committee on the International Union for the Protection of New Plant Varieties (UPOV) because this entity of the Organisation for Economic Cooperation and Development (OECD) is relevant to the Plant Improvement Bill (the PI Bill). The OECD agreement is key to the Plant Improvement Bill. UPOV is an international system that provides for the protection of new plant varieties. It was formed as an intergovernmental organisation, dating back to December 1961, with revisions in 1972, 1978 and 1991. The mission of UPOV is to provide a universal system to promote an effective system of plant variety protection. with the aim of promoting the development of new varieties of plants, which would be critical to sustainable agriculture, for the benefit of society. UPOV currently has 74 members, with some having different status from others. Eighteen states, including South Africa, were bound to the 1978 version of UPOV. 53 states were bound to the 1991 version, as well as two organizations, namely; the Community Plant Variety Office (CPVO) a creation of the European Union, and the African Intellectual Property Organization (OAPI), mainly made up of representatives from African countries.

He explained that UPOV operates through a council which is the ultimate decision making body, and its consultative committee receives inputs from the technical committee, as well as the administrative and legal committee. The technical committee is arguably the most important instrument of UPOV, because this is the level at which the standards for the description of new varieties are being developed with different technical parties for different crops.

South Africa became a member of UPOV in 1997. The Plant Breeders’ Rights Act is aligned to the 1978 and 1991 UPOV Convention, and the Act provides for protection and the granting of the rights and the granting of licenses. South Africa has been an active member in the participation of the UPOV system with an annual contribution of R680 532.63 as part of the members' obligations, as well as giving active participation in the Conventions’ technical working parties. South Africa has leading experts in the creation and development of technical guidelines for fruit crops such as olives and apples and vegetable crops such as pumpkin.

Plant Improvement Bill
Ms Joan Sadie, Registrar, The Plant Improvement Unit, DAFF, noted that this Bill was re-drawn in some respects, after consulting and coming to an agreement with the State Law Advisors and Parliamentary legal advisors. The following clauses were specifically highlighted:

- Clause 38(2): DAFF has proposed an amendment to the wording, and plans to substitute “evaluate” for “investigate”
 In relation to clause 38 (8), the Parliamentary Legal Advisors had raised a concern that repeating an investigation will be a waste of time. The DAFF agreed to remove clause 38(8) as it is covered in clause 38(1)
- In relation to clause 43(3) the Parliamentary Legal Advisor raised a concern of an apparent contradiction between clauses 19 and 43. DAFF had agreed that clause 19 deals with the exemption for registration of types of business, and Clause 43 deals with temporary authorisation for non-compliance with some requirements, based on motivation by the applicant and conditions set by the Registrar. The wording remains the same in the Bill.
- In clause 47, which deals with appeals, the Parliamentary Legal Advisor suggested an alignment of appeal provisions between different sets of legislation, and the DAFF agreed that the legal team should redraft clause 47 in accordance with the Performing Animals Protection Act, and in the context of the Plant Improvement Bill. The clause will be divided into four clauses to provide clarity on the process and requirements to appeal. This would then cause consequential changes in the numbering of the clauses and the Table of Contents.
- In clause 49(10), which involves the appointment of the Advisory Committee, there was a concern with the remuneration of the advisory committee and the DAFF agreed to the amendment of the wording, to note that it would be “”prescribed after consultation with the Minister of Finance”.

Ms Sadie then asked the Chairperson to approve the amendments.

The Chairperson asked for the input from the State Law Advisors, Committee members and Parliamentary legal advisors.

Mr Alan Small, State Law Advisor, mentioned that all that had been presented had been discussed with all the legal teams prior to the presentation. The State Law Advisors were overall in agreement with the DAFF and would be happy to assist on any matters where they could.

Plant Breeders’ Rights Bill: DAFF briefing
Dr Jaftha highlighted that his presentation would be mostly a response to comments raised by the Parliamentary Legal Advisors, and some other concerns that emanated from the public hearings.

The first concern, during the public hearing, related to the definition of the word “breeder”, and also referred to the plurality of persons in the definition. It was agreed that the clause did not need to be re-drafted.

There was a concern around the definition of “cell”, which was felt to be too broad. DAFF had responded that this would be referred back to the drafters, to consideration of wording that would cover and close off any administrative loopholes. The definition was now considered to be sufficiently broad.

Clause 15 deals with the technical requirements for the granting of plant breeders’ rights, and clause 15(4) clarifies the issue around “common knowledge” which is referred to in subsection 2(b). The proposed clause aims to bring clarity to the issue of common knowledge.

Clause 17, which deals with the Priority and Re-dating of Applications, is to be amended by the DAFF as the meanings and requirements of section 17(3) are unclear. This, however, would be merely for clarification and would be represent a substantive change. The DAFF had also provided for the Registrar to allow the applicant to submit the relevant information and material if he or she still wanted to have a priority claim.

Clause 23 dealt with the denomination of a variety. The DAFF and other legal advisors had now clarified the process. The Registrar would consider whatever a Plant Breeders’ Rights holder is submitting in terms of the name, and the Registrar will then make a decision whether the name that is proposed for the variety is acceptable or not.

Clause 35 contains a provision that a person can apply for a compulsory license if the Plant Breeders’ Rights holder unreasonably refuses to grant him a license. The main concern here was that it was not specified what the standard for “unreasonably” would be. There was an agreement that the standard can be determined through a very clear court process.

Clause 46 deals with the entering of premises by the Registrar. It was agreed that the current version of the clause gives the Registrar power to simply enter premises. It is now proposed that this should revert to the wording used on the last version of the Act, which stipulates that the Registrar may enter such a premises without a warrant if he or she has the competency to give such permission or consent.

Ms A Steyn (DA) asked why is it necessary to have a Registrar for this legislation. She wondered if the duties of the Registrar could not be taken on by someone who is already a member of the Department, instead of creating a specific and new position.

Dr Jaftha replied that the Registrar’s duties are to look after the overall administrative duties of the application of the Plant Breeders’ Act, and the Department has recognized that the administration of some of these specific pieces of legislation becomes very burdensome if this is handled by a senior member of the Department who already has other duties to perform. If the person is over-stretched, there is a danger of inadequate oversight over the legislation.

The Chairperson invited Committee members, the Parliamentary Legal Advisor and State Law Advisor for their input in the discussion.

Mr Small said the State Law Advisors had discussed the legislation and what had been presented here was something already agreed to. The State Law Advisors would be happy to continue assisting the Department where necessary.

The Parliamentary Law Advisor confirmed that she had no problems with what had been presented.

The Chairperson then asked if that meant that the Committee Members could now accept the amendments to the Bill.

Mr Small said that he spoke to the Committee Secretary earlier on and had ascertained that a meeting was scheduled for next week, on Tuesday and Wednesday, to hold further deliberations. The Department proposed that it should now work on the Bill to draw up the A-list, circulate it and then work through it in the Committee sessions with the DAFF and Parliamentary legal advisors.

Ms Steyn said there seemed to be some confusion whether Members should be deliberating now, or adopting the proposals. She assumed that at this stage they were merely being discussed although she did not think that Members were unhappy with what had been presented. She also assumed there would be further discussion clause by clause once the A-list and B-Bill were printed.
Mr Small said that there were costs involved in the printing, and he would therefore suggest that what was in the presentation before the Members could be discussed and accepted in principle without having to go through a dual printing process; once the Bills were presented as printed the decision could be taken. Members would have to be quite clear that this did reflect what they wanted before accepting the proposals.

The Chairperson asked the Committee members if they accepted the amendments to the Bill and would then deliberate next week.

Members agreed on this approach.

Plant Improvement Bill: Relationship with international organisations: DAFF briefing
Ms Sadie noted that she was the Registrar under the Plant Improvement Bill, and in this capacity she would actively engage and represent the country in the International Seed Testing Association (ISTA) as well as in the relevant standard setting body of the Organisation for Economic Cooperation and Development (OECD).

She noted that the DAFF was affiliated with two international organisations in relation to the PI Bill: the International Seed Testing Association (ISTA) and the OECD.  ISTA provides the foundation of the Plant Improvement legislation on quality seed, and the vision is to develop and adopt a public procedure for the testing and sampling of seeds, and to promote a uniform application of those procedures for the evaluation and testing of seeds that were moving in international trade across borders. South Africa has been a member of the organisation since 1955 and was now paying an annual contribution of R96 348. One of the benefits of membership is that it provides the basis for ensuring the trade of quality seed by developing standard seed testing methods. Membership also provides a platform for research and cooperation between seed scientists worldwide, and guarantees worldwide harmonised and uniform seed testing through the Accreditation, Proficiency Test and Auditing Programmed.

The OECD is involved in a huge number of different aspects and specifically the Seed Schemes. The objective of the Seed Schemes is to provide an international framework for certification of agricultural seed moving in international trade, promoting the use of agricultural seed of a consistently high quality. The participation in the Seed Schemes authorizes the use of labels and certificates for seeds produced and processed for international trade, according to the agreed principles in the different countries. There are currently 58 participating countries.  South Africa has been participating since 1961, with an annual contribution of roughly R65 042. The requirements for contribution are similar to UPOV’s scale, which is based on the GDP of the country and is quite a small amount compared to other countries. The benefits for membership of the Seed Schemes include the fact that South African certified seed will then be accepted and recognized internationally, and the produced seed that is certified may be exported under the OECD label. The OECD Seed Schemes form a general framework for all Plant Improvement Act certification schemes.

Lastly, Ms Sadie highlighted UPOV’s relation with the Plant Improvement legislation, which used s UPOV requirements for examining plant varieties for varietal listings such as distinctness, uniformity, stability and variety denomination. The UPOV test guidelines which are compiled by the typical working groups of UPOV are used for plant variety examinations for varietal listing.

Ms Steyn asked why the DAFF had not signed the 1991 UPOV agreement, pointing out that many countries had signed it. She asked what the benefits of signing up to that agreement would be.

Mr Z Mandela (ANC) also raised the question of what benefits a country could expect to receive after signing the UPOV agreement.

Dr Jaftha said that South Africa had indeed signed the 1991 convention, but the full instrument of accession was never delivered. The legal advisors had likened this to people getting to the point of engagement but never to marriage.

Mr C Maxegwana (ANC) asked what determined the fee that a member country must pay, and why South Africa was paying so much. .

Ms Z Jungled (DA) also asked what the membership fee was based on and whether all states bound to the 1978 Convention pay the same membership fee.

Dr Jaftha repeated that the fee was calculated according to the level of development of the member state. He noted that DAFF is one of the lowest contributors in the system, given the level of the country’s development. He assured the members that even though South Africa was at the lower end of contributions, it did still benefit from being a member.

Ms Steyn pointed out that the Plant Breeders’ Rights amendments were finite, and thus asked what happened when the protection, which lasted for a minimum of 20 to 25 years, came to an end.

Dr Jaftha said that after the protection period it is something open to all. However, a rights holder would still be able to give up rights during the protection period, and could also still ask for royalties during the protection period.

Ms Jongbloed asked a hypothetical question – what would happen if a South African based breeder took her seed to Australia, and whether there would be protection.

Dr Jaftha replied that there would be protection in Australia, but only once that had been applied for, and it would make no sense for a breeder to release a seed in a territory where it would not enjoy protection.

Members agreed to adopt the amendments in principle, as raised and queried above, and adopt them formally at the next meeting

Ms Sadie made a note that the initial development of the SADC harmonized system was to facilitate trade of seed among the different countries, to speed up the moving of seeds required by a country and to ensure sufficient supply of seed.

The Chairperson reminded Dr Jaftha that the Committee still wanted to get the list of companies, schools and other entities of plant breeders that held rights.

Dr Jaftha said that the DAFF had indeed submitted a summarised breakdown but would also now send an updated version.

Ms Steyn asked about the importation of the genetically-modified corn a while back.

The Chairperson noted that this was not something that arose out of the briefings today. She should really be asking that question of DAFF outside of this meeting. be discussed in today’s meeting.

The meeting was adjourned.

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