Loi de 2002 sur la protection des obtentions végétales (Droits des obtenteurs), République-Unie de Tanzanie

~,u,~~"

-

An Act to provide for the establishment of a registry of plant breeders' rights; promotion of plant breeding and facilitation of agricultural advancements through the grant and regulation of plant breeders' rights and for matters connected therewith.

[...........................................)

ENACTED by the Parliament of the United Republic ofTanzania.

PART!

PRELIMINARY PROVISIONS

Short title

1. This Act may be cited as the Protection of New Plant Varieties

and Com

(Plant Breeders' Rights) Act, 2002, and shall come into operation on mencesuch date as the Minister may, by notice in the Gazette, appoint. ment

2. In this Act, unless the context otherwise requires-^Interpretation

"Act" means Protection ofNew Plant Varieties (Plant Breeders' Rights)

Act, 2002, "Appeals Board" means the Appeals Board established under section 45; "ag~t", in relation to an applicant Q[,a holder ofplant breeder's rights,

means a person who is duly authorized by the applicant or holder to act, onbehalfofthe applicant or holder; "applicant" means a person by or on behalfofwhom an application for the grant ofplant breeder's rights is made pursuant to section 21; "assignee" means, in relation to a new variety

"breeder" means-

(a)

the person who breed or discovered and developed, a variety.

(b)

the employer of the person who breed, or discovered and developed the variety, if that person was employed for the purpose of such activity or otherwise commissioned to perfonn such work;

"breeding line" means an assemblage ofsexually reproductive individuals ofunifonn appearance propagated by seed, the stability ofwhich is maintained by selection to standard;

"clone" means unifonn material derived from a single individual and propagated entirely by vegetative means;

"cultivar" means an assemblage of cultivated individuals which, is designated by any characteristic, morphological, physiological, chemical, genetic or others, significant for the purpose of agriculture, and which, when reproduced sexually or asexually, retains its distinguishing feature;

"Fund" means the Fund established under section 48; "holder", in relation to plant breeder's rights, means

(a)

the person who is entitled to the plant breeders' rights respecting that variety granted under section 32; and

(b)

an assignee of, or other successor in title to the rights granted under section 32 in respect to that variety.

"hybrid" means the first generation progeny ofa cross producedundercontrolled pollination with parents sufficiently unifonn to pennit repeated production ofthe hybrid without change in uniformity or stability.

"legal representative" means

(a)

a liquidator or receiver ofa company;

(b)

the representative recognized by law ofany person who

(i)

has died;

(ii)

has become insolvent or bankrupt;

(iii) has assigned his estate;

(iv)

is an infant or minor;

(v)

is ofunsound mind; or

(vi)

is otherwise under a disability. "Minister" means the Minister responsible for agricultural matters; ''multiline'' means an assemblage of individual breeding lines in a stated

proportion; ''plant breeders' rights" means plant breeders rights granted in terms ofsection 32; "propagating material" means any reproductive or vegetative material for propagation, whether by sexual or other means, of a plant variety. and includes seeds for sowing and any whole plant or part thc.reoftbat may be used for propagation; "Register" means the Register of plant breeders' rights kept in terms of section 6;

"Registrar" means the Registrar ofPlant Breeders, Rights appointed in tenns ofsection 4; "reproductive material" means a plant orpart ofthe plant used to multiply the plant;

"sell" means to offer, advertise, keep, expose, transmit, convey, deliver orprepare for sale orexchange or dispose offor any consideration or transmit, conveyor deliver in pursuance ofthe sale;

''variety'' means

(a)

a botanical variety, cultivar, breeding line or clone which

(i)

is sufficiently homogeneous;

(ii)

can be differentiated from another ofthe same kind by one or more characteristics which are capable ofdefinition and recognition; and

(iii) is reasonably uniform and stable after repeated propagation; or

(b)

a hybrid; or

(c)

a multilane.
PART II

PLANT BREEDERS' REGISTRY

3. There is hereby established within the Ministry responsible Establish

ment of

for agriculture, a Government office, which shall be known as the Plant

Plant Breeders' Rights Registry. Breeders' Rights

Registry

4.-(1) The Minister shall, by notice in the Gazetle appoint or Appointment of

designate an officerto perform the functions conferred to or ilnposed on

Registrar

the Registrar ofPlant Breeders' Rights under this Act.

(2) The Minister shall appoint such deputies and other officers as may be necessary who shall, subject to the direction ofthe Registrar, assume some of the powers and privileges conferred to the llegistrar pursuant to this Act.

5. The functions ofthe Registrar ofplant breeders' rights shall beFunctions

of Reais

(a) to grant Plant Breeders' Rights, in its acronym PBR;

trar

(b)

to establish a documentation centre for the purposes ofdissemi
nation ofinformation on Plant Breeders' Rights ;

(c)

to maintain a register and provide infonnation onPlant Breeder's
Rights issued in Tanzania;

Register of plant breeders'rights

Correction ofthe register and registered information

(d)

to facilitate transfer and licensing ofPlant Breeders' Rights;

(e)

to collaborate with local and international bodies whose functions relate to Plant Breeders' Rights matters; and

(f)

to perform such other functions as are necessary for the furtherance ofthe objects ofthis Act.

6.-(1) The Registrar shall maintain an official plant breeders' rights register in which shall be entered all information required to be registered under this Act.

(2)

For each registered variety, information to be listed in the register shall include

(a)

species and denomination ofvarieties;

(b)

the full name and address of

(i)

the original breeder;

(ii)

any other holder ofplant breeders' right; and

(iii)each person to whom such right has been transferred or assigned;

(

c) the date ofinception ofthe plant breeders' rights;

(d)

all other matters which

(i)

are required by this Act or any other written law to be entered in the register,

(ii)

otherwise, affect the validity or ownership ofplant breeders' rights; and

(

e) any other information, which may be required by regulation.

(3)

The register shall be prima facie evidence ofany matter entered therein.

7.-(1) The Registrar may correct or authorize the correction ofany clerical error or any omission in the description ofa new variety, which appear in any application or other document lodged in terms ofthis Act or in the register.

(2)

A correction may be made either upon request in writing or without such a request.

(3)

Where the correction is proposed by the Rqistrar or any interested person other than the applicant, and the holder of the Plant Breeders' Rights is affected by the correction, the Registrar shall give a notice of one month to the applicant or holder or that other interested person ofhis intention to correct the error.

(4)

Any opposition to a proposal to correct or authorize the correction ofa document or the register shall be dealt with by the Registrar in such manner as he considers desirable in the interests ofjustice.

8.-(1) A certificate purporting to be signed by the Registrar Evidence ofcertain

and certifying that any entry under this Act, has or has not been made, or

entries

that any other requirement has not been fulfilled shall be prima facie _and evidence ofthe matter so certified.

documents

(2)

A copy of

(a)

an entry in the register or ofany document lodged in terms of this Act; or

(b)

an extract from the register or from any document lodged in

terms ofthis Act, which purports to be certified by the Registrar shall be admitted in evidence without further proof and without production ofthe original.

9.-(1) The register shall be open to inspection by any member inspection of register

ofthe public at all convenient times during business hours.

(2) A certified copy ofany entry in the register shall be given on payment ofthe prescribed fee to any person requiring it.

10.-(1). There is hereby established a standing committee to Establishbe known as the Plant Breeders Rights Advisory Committee, in its acro^mentand

composi

nymPBRAC.

tion of

(2) The Standing Committee shall be composed ofthe followPlant Breeders'

ing members who shall be appointed by the Minister

Rights

(a)

one representative from the Ministry, who shall be the Chair-Advisory Committee

man to the Committee;

(b)

one representative from plant breeders association;

(c)

one representative from seed traders association;

(d)

one representative from seed growers;

(e)

one representative offarmers;

(f)

one representative from a University or training institute dealing with plant breeding;

(g)

one representative from a Government Agency or Authority responsible for registration ofintellectual property t:ights;

(h)

one legally qualified person representing the Office of the Attorney General; and

(i)

the Registrar who shall be the secretary.

Functions

Powers

Specie to which Plant Breeders' Rights may apply

Recognition of

new variety

Novelty

11. The functions ofthe Plant Breeders' Rights Advisory Committee shall be

(a)

to advise the Minister on efficient enforcement ofthis Act;

(b)

to receive reports ofPlant Breeders' Rights applications from the Registrar;

(c)

to make expert consideration on the Plant Breeders' Rights reports and on the Registrar's tests results;

(d)

to advise the Registrar on the grant of Plant Breeders' Rights;

12. In. fulfilling its functions the Plant Breeders' Rights Advisory Committee shall have the powers

(a)

to make its own rules ofprocedure;

(b)

to give to the Registrar advice of specific and general nature;

(c)

to call applicants and other interested persons for hearing before the approval of a Plant Breeders' Rights applications.

PARTll

VARIETIES THAT MAY BE PROTECTED

1. New variety may be protected by application for Plant Breeders' Rights ifit is variety ofa specie or sub-specie that have been designated by regulations made under this Act.
2. Subject to section 13, a Plant Breeders' Rights may be granted with respect to any variety which is

(a)

new;

(b)

distinct;

(c)

uniform; and;

(d)

stable.

IS.-{l) A variety shall be deemed to be new for purpose of section 13 if

(a)

it has not been sold, or otherwise disposed of to other breeders within Tanzania for trade or otherwise with the consent of the breeders, except for recognized and necessary testing purposes, made earlier than one year prior to the date of the application' made under section 24; and

(b)

subject to section 22(e) and (t), the variety has not been sold or
otherwise disposed ofto other brieders in any other country with
the consent ofthe breeder, except for recognized and necessary
purposes, made earlier than four years before the date of the
application in respect of varieties other than trees of vine, for
which the effective period shall be six years before the date of
application.

(2)

The Minister may, by regulations, specify seed production activities that shall not be considered to be "disposal to others" for purpose of this section.

(3)

Notwithstanding subsection (I) a Plant Breeders' Rights shall not be refused or invalidated by reason ofthe fact that the new variety was made available to the public prior to the date ofapplication without the breeder's knowledge or consent, if the breeder proves that he applied for the grant or plant breeders rights with all reasonable diligence after learning ofthe variety's availability to the public or without knowing the fact.

(4)

The provision of subsection (3) shall not apply in relation to a variety that has been commercially grown prior to the date ofthe application for any purpose other than field trials.

16.-(I) A new variety meets the requirements ofparagraphs (b), (c) Presumption of

and (d) ofsection 14 ifit

qualifica

(a) is listed pursuant to the Seeds (Regulation of Standards) Act, tions Act No. 29

1973 as a variety ofseeds that may be sold in Tanzania;

of 1973

(b) is recognized as a new variety by a foreign Government which
shall enter into an agreement with the Government for the pro
tection ofbreeders' rights on a reciprocal basis, and is listed in
that Government's list ofvarieties that are authorized for com
mercial release in that country:

Provided that, the variety is

(i)

not listed under the Seeds (Regulation of Standards) Act, 1973; and

(ii)

clearly distinguishable from any other variety ofthe same species or subspecies listed in the variety list of Tanzania.

17. Notwithstanding the provisions ofsection 16 and after the Plant Plant

Breeders'

Breeders' Rights Advisory Committee recommendations, the Minister

Rightsmay direct the Registrar to register a variety in accordance to the provire&istration for

sions ofthis Act.

strategic purposes

..

Distinc

18.-(1) A variety shall be deemed distinct if it is clearly

tness

distinguishable from any other variety whose existence is common knowledge at the time ofthe filing ofthe application for the granting of Plant Breeders' Rights or for the entering of another variety in the official register ofvarieties in any country.

(2) The filing ofan application for the grant ofPlant Breeders' Rights or for entering ofanother variety in the official register shall be deemed to render that other variety a matter ofcommon knowledge from the date ofthe application, provided that, the right or listing applied for is ultimately granted.

Stability 19. A variety shall be deemed to be stable, if it is able to retain its distinctive characteristics with a reasonable degree ofreliability after repeated propagation or at the end ofa particular cycle ofpropagation.

Unifonnity 20. A variety shall be deemed uniform ifvariations within that variety are describable, predictable, and commercially acceptable.

PARTlY APPLICATION FOR PlANT BREEDERS' RIGHTS

Applica21.-(1). A breeder ofa new variety, his assignee or agent may tion for

apply for a Plant Breeders' Rights covering that variety.

Plant Breeders' Rights

(2) The Minister may apply with regard to varieties developed by the Government.

Contents 22. The application for Plant Breeders' Rights relating to a variofan

ety shall contain the following-

application

(a)

the name and address ofthe applicant;

(b)

ifthe applicant is an assignee or successor in title to the breeder

ofthe new variety

(i) proof of title or authority in the form and content satisfac

tory to the Registrar or as may be specified by regulations

establishing the existence and validity ofthe assignment or

succession; and

(ii)

the name and address ofthe breeder ofthe new variety;

(c)

the origin and denomination, along with other description of the characteristics and properties ofthe new variety, including whether it has been listed pursuant to section 16 ofthis Act or whether application for the listing has been made;

(d)

samples ofpropagation material in such quantities as the Registrar may require;

(e)

a list ofall countries in which application for Plant Breeders' Rights has been made or in which Plant Breeders' Rights have been granted, specifying the number title, the effective dates ofthe application and the status or the disposition;

(f)

a list ofall other countries in which the variety is listed or otherwise authorized for commercial.release;

(g)

a location at which plants ofthe new variety will be available for inspection pursuant to this Act at any time during business hours; and

(h)

any additional information that may be specified by regulations.

Name or

23.-(1) At the time ofapplication, the applicant shall propose

denomina

a name for the new variety, which shall be subject to the approval ofthe

tion ofthe Registrar. new

variety

(2)

After a name has been approved for a new variety, no other name or denomination may be used in connection with that variety, whether before or after the expiration ofthe plant breeder's rights with respect to that variety.

(3)

The breeder shall not assert any right with regard. to the denomination, which shall prevent or limit the right of another person to use the denomination in connection with the variety.

PART V CONSIDERATION AND DISPOSITION OF APPLICATIONS

24.-(1) The effective date of an application shall be the date Priority andre

that application was received by the Registrar.

dating of applica

(2)

For purposes ofthis section, an application shall be deemed tions received on the date that all parts ofthe application are received in the form that is sufficient for consideration under this Act.

(3)

The applicant, having duly filed an application, shall be accorded priority over all subsequent applications with respect to the same variety for one year from the effective date ofthe application.

(4)

Where, within twelve months prior to the effective date of its application under this Act, an applicant has filed an application for plant variety protection in any country that has entered into a bi-Iateral or multilateral agreement concerning mutual recognition of such protection, the applicant may, in the application, claim a right of priority, under which the effective date of the application shall be the date ofthe earlier application.

(5)

Any applicant who shall be prevented from obtaining a Plant Breeders' Rights by operation of subsection (4) of this section shall not claim any right against the Registrar or the successful applicant or any other person as a result ofthe disposition ofthe unsuccessful application.

Amend2S.-(1) An applicant may amend his application at any time

mentof

without affecting its effective date, so long as the amendment does not

application

extend the application beyond the matters initially contained in it.

(2) Ifany amendment ofan application occurs after publication ofa notice under section 26, the applicant shall be liable to pay the cost ofrepublication.

Publica26. The Registrar shall notify by a notice published in the ^{tion of} Gazette of every filed application that relates to a variety that satisfies

notice

the requirements ofsection 11 and the notice shall specify:

(a)

the name ofthe applicant;

(b)

the effective date ofthe application;

(c)

the proposed denomination ofthe variety; and

(d)

such information relating to the plant as may be necessary to describe the variety for purposes of public comment on the application, or as may be specified by regulations.

Objection 27.-(1) Any person within two months ofpublication ofa noto the tice under section 26 may lodge with the Registrar a written objection to

proposed

the matters specified in that notice.

grant of

Plant

Breeders'

Rights

(2)

The Minister, on behaif ofthe Government, may lodge an objection under this section.

(3)

A notice ofobjection made under this section shall

(a)

specify the grounds on which the objection is based;

(b)

include a statement of the facts alleged in support of the grounds stated under paragraph (a); and

(c)

if required by the Registrar, be supported by an affidavit or other proof.

28. An objection lodged pursuant to section 27, shall be based on allegations ofone or more ofthe following grounds

(a)

that the published notice is incomplete, or that it does not clearly describe the variety;

(b)

that the application does not comply with sections 21, 22 and 23 ofthis Act;

(c)

that the applicant infringes the rights ofan interest in the variety or otherwise not entitled to make the application;

(d)

that the applicant is not the owner ofan interest in the variety or otherwise not entitled to make the application;

(

e) that the application contains a material misrepresentation;

(t)

that the variety described in the application is not a new variety to which this Act applies within the meaning of sections 15 and 16;

(g)

that the plant concerned is not of a specie or a sub-specie designed by regulations made under section 13 ofthis Act;

(h)

that the proposed denomination should be rejected or altered;

(i)

that the variety has been reproduced by the repeated use ofthe reproductive material ofanothervariety for which Plant Breeders' Rights have been granted to or applied for by a person other than the applicant, without licence or permission or in violation thereof;

G) that any claim ofpriority based on an application for, or grant ofPlant Breeders' Rights under the law ofanother country is not valid or does not relate to the variety ofthe current application.

29.--(1) The Registrar shall notify the applicant ofthe filing of an objection under section 27 and shall provide a copy ofthe notice of objection and all supporting documents that are lodged with the objection within two weeks from the date offiting ofthe objection.

Grounds for objection

Notice to the applicant and replytoobjection

No. 22 Protection ofNew Plant Varieties (Plant Breeders I Rights)

Dispositionof applications

(2)

The applicant may respond to the allegations ofthe objector, in a written reply that shall be lodged with the Registrar, within one month or such further period as the Registrar may allow from the date ofnotification made under subsection (1) ofthis section.

(3)

The written reply shaH set out the facts or other grounds set forth in the objection and a copy ofthe reply shall be provided to the objector.

(4)

The Minister, on behalfofthe Government, may lodge a reply to any objection lodged under section 27.

30.-(1) Upon

(a)

completion ofthe notice requirements under section 26; and

(b)

the expiration of all time limits for objection and a reply under

section 26, the Registrar shall evaluate the application, based on the application itself, the objections, counter statements, ifany, and the results ofany tests and trials ofthe variety.

(2)

The Minister may appoint one or more persons to advise the Registrar in the evaluation ofapplications and those persons shall be selected based on their special knowledge in areas of

(a)

plant breeding; or

(b)

the legal aspects ofadministrative decision making.

(3)

If the Registrar concludes that

(a)

the application conforms to the requirements of this Act and the applicant is entitled to make the application;

(b)

the variety is a new variety;

(c)

no objection has been filed and;

(d)

there are no grounds for objection, and ifan objection has been filed the objection does not state an impediment to the availability ofPlant Breeders' Rights for the variety,

the Registrar shall grant the applicant a plant breeder's right in the new variety.

(4)

For each variety for which Plant Breeders' Rights is granted, the Registrar shall

(a)

issue a certificate ofregistration to the applicant;

(b)

enter the variety in the register as provided under section 6; and

(c)

publish a notice of the grant of Plant Breeders' Rights in the

Gazette.

(5) Ifthe Registrar cannot grant the applicant a Plant Breeders' Rights in the variety pursuant to subsection (3), he shall reject the application and provide the applicant with a written statement of reasons for the refusal to grant Plant Breeders' Rights within fourteen days.

PART VI
PROVISIONAL, FINAL PROTECTION AND HOLDERS' DUTIES

31.-(1) Subject to the provision of section 33 and relevant provi Provisional

protection

sions ofthe Seed (Regulation ofStandards) Act, 1973,during the period

Act No. 29 between the filing of the application and the froal disposition of the Of 1973 application, an applicant for Plant Breeders' Rights shall have the sole right to sell, produce, reproduce and multiply propagating material of the variety or to stock the variety for any ofthese purposes.

(2) Recovery for infringement ofthis right sh~ll be limited to equitable remuneration for the holder with regard to acts in violation ofthe right granted under this Act.

Rights of

32.-(1) Subject to the provisions of section 33 and relevant provi

holders of

sions ofthe Seed (Regulation ofStandards) Act, 1973, the holder shall,

plant during the term of that right have the sole right to sell, reproduce and breeders' rights

multiply propagating material ofthe variety, or to stock the variety for

Act No. 29 any ofthese purposes. Of 1973

(2) Where the holder of the Plant Breeders' Rights has not had a reasonable opportunity to exercise his right in relation to the propagating material, the holder may assert the same rights with respect to harvested material obtained through the unauthorized use of propagating material ofthe variety, and the products from it.

33.-(1) The provisions ofsection 31 and section 32 (2) shall apply ^Varieties

towhi"Ch a

to-

plant

(a) varieties that essentially are derived from the protected variety breeders' rights

where the protected variety is not itselfessentially derived from

apply

another variety;

(b)

varieties which are not clearly distinguishable wm the variety;
and

(c)

varieties whose production required the repeated use ofthe pro
tected variety.

Exceptions to plant breeders' rights

Duration ofplant breeding rights

Damage

for

lnfrinle

mentof

plant

breeders

rights

(2)

For purposes of this section, a variety shall be deemed to be essentially derived from another variety when

(a)

it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression ofthe essential characteristics that result from the genotype or combination ofthe genotypes of the initial variety;

(b)

it is not clearly distinguishable from the initial variety; and

(

c) except for the difference, Which result from the act ofderivation, it conforms to the initial variety in the expre&sion ofthe essential characteristics that result from the genotype or combination of genotypes ofthe initial variety.

34. The following acts shall not be infringements ofthe rights conferred under sections 31 and 32 namely

(a)

acts done privately for non -commercial purposes;

(b)

acts done for the purpose ofbreeding other varieties;

(c)

acts done for the purpose ofbreeding varieties, unless section 33 is applicable to those acts; and

(d)

acts done by farmers with the purposes ofpropagating, on their own holdings, the product of the harvest which they have obtained by planting the protected variety or a variety to which section 33 applies.

35.-(1) Except as set forth in Part VII, the plant breeders rights granted under this Act shall expirC"r

(a)

in respect oftree crops and vines, twenty five years from the date ofthe grant;

(b)

in respect ofother crops, twenty years from the date ofgrant.

(2). The term may be extended for an additipnal five years, by a written notice to the Registrar given by the holder ofthe Plant Breeders' Rights six months before the expiration ofthe oriJinal term.

36.-(1) A suit by the holder ofPlant Breeders' Rights against any person who infringes such rights may be broupt mJUly court ofcompetent jurisdiction.

(2) The court may in addition tathe cott"'the actiom, grant an injunction or damages or both, as it mayeppear to be reatonable in the circumstances ofthe case.

37.-(1) During the tenn of the Plant Breeders' Rights, the Registrar may at any time order the holder ofthat right to

(a)

produce propagating material which is capable of producing the variety, with the morphological and physiological and other characteristics which the variety possessed at the time the Plant Breeders' Rights was granted;

(b)

provide information, documents ormaterial for verifying the maintenance ofthe variety; and

(c)

satisfy the Registrar that the holder ofPlant Breeders' Rights is able to comply with a request under paragraph (a), including facilities for the inspection by or on behalf of the Registrar, of the measures taken for the preservation ofthe variety concerned.

(2)

Failure or inability to comply with an order ofthe Registrar made under this section shall be grounds for cancellation of the Plant Breeders' Rights.

38.-(1) Inorder to maintain the Plant Breeders' Rights, the holder shall pay an annual fee in advance, starting with the second year after the date offiling ofthe application.

(2)

The holder who fails to pay annual fees on the due date may, upon payment ofa surcharge, pay the fee at any time in the following six months without affecting the Plant Breeders' Rights.

(3)

If the fee is not paid within the period specified under sub-section (2), the Plant Breeders' Rights shall lapse, and the Registrar shall cancel the right pursuant to section 39.

(4)

At any time within twelve months following the expiration ofthe period specified in sub-section (2) the holder may petition to the Registrar for restoration ofthe Plant Breeders' Rights.

(5)

The Registrar may grant a request for restoration ofa Plant Breeders' Rights if he determines that the failure to pay was unintentional, and ifthe holder pays all annual fees and surcharges necessary to bring the Plant Breeders' Rights current.

(6)

If the Plant Breeders' Rights is restore9, the holder shall not bring any action for infringement ofthe right, where the infringement .arises out ofany action and event occurring after _lapse ofthe Plant Breeders' Rights and before the date of the ordorofresteration.

Maintenanceofa variety

Annual fees

Nullification or cancellation of Plant Breeders' Rights

PARTVTI
TERMINATION AND SURRENDER OF PLANT BREEDERS' RIoRTS

39.-{1) The Registrar shall, upon advice by the Plant Breeders' Rights Advisory Committee, nullify a Plant Breeders t Right, upon

(a)

discovery that the information submitted to the Registrar in the application for Plant Breeders' Rights was incorrect, and that, the disposition ofthe application would have been different ifthe correct infonnation had been known;

(b)

receiving infonnation invalidating the right orproving that it should not have been granted according to the terms of Part m of this Act;

(c)

being satisfied that the applicant was not entitled to the Plant Breeders' Rights, and that, another applicant should have been given priority for the grant in the same variety:

Provided that, termination shall be required where the Plant Breeders' Right is transferred to a person so .entitled.

(2)

The Registrar may cancel a Plant Breeders' Right, prior to the expiration ofits tenn, ifit appears to him that

(a)

the holder ofthose rights

(i)

has failed to comply with any o.rcler made under section 37;

(ii)

is no longer in a position to provid.e the propaaating material or information regard.ing the variety referred to in section 37;

(iii) has failed to pay fees pursuant to section 38 and 55 as necessary to keep his right in force;

(b)

the variety is no longcr capable of rnectma the standards of unifonnity and stability.

(3)

The Registrar shall notify the holder ofthe Plant Breeders' Rights and any licensee ofany decision made under subsecttoa (1) or (2) ofthis section and ofthe grounds for it.

(4)

Any person receiving notice under subIection (3) may contest the decision, by a written objection lodged with the Registrar within thirty days from the date ofthe decision.

(5)

The Registrar may hold, within a reasonable time after receipt of an objection, a hearing or may decide the matter based on written submissions ofall interested parties.

(6)

Ifthe Registrar terminates or cancels any Plant Breeders' Rights under this section, he shall publish the termination by a notice published in the Gazette, after expiration ofthirty days from the date ofthe decision or following a decision made under subsection (5).

(7)

The holder shall return to the Registrar, any certificate or the grant ofa Plant Breeders' Rights that has been terminated or cancelled under this section.

Surrender

40.-(1) Any holder of a Plant Breeders' Rights may, by notice in

of plant

writing to the Registrar, surrender that right.

breeders' rights

(2)

The Registrar shall publish a notice in the Gazette ofthe intent to surrender that right within one month of giving a notice under subsection (1). .

(3)

Any person aggrieved by the proposed surrender may, within two months from the date ofpublication, object to the surrender ofthe Plant Breeders' Rights, by a written notice.to the Registrar, specifying the grounds for the objection.

(4)

Ifthe holder is allowed to surrender that right, the Registrar, shall within one month ofthat decision, publish in the Gazette a notice ofthe revocation.

(5)

In the event ofan objection made under SUbsection (3), the Registrar shall decide whether the holder of Plant· Breeclers' Rights may surrender that right, and the Registrar shall revokeaarright so surrendered.

PART VIII

LICENCES AND ASSIONMEN;rs Granting of

41.-(1) The holder ofplant breeders ri~ts~ygrantto any per

licence

son, a licence to undertake any activity deSCttW:6r.referred to in sections 31 and 32. ' .

(2)

The licence may include conditiOJJlir~8·

(a)

the quantity ofpropagatinsma~:of tlae relevant variety to be supplied to the licensee and its price;

Compul

sory grant

of license

(b)

the royalties payable;

(c)

the infonnation to be furnished to the licensor regarding the licensee activities under the licence.

(d)

the duration of the licence, which shall not exceed the remaining tenn ofthe Plant Breeders' Rights;

(

e) any limitation on the licensees' ability to transfer all or any part ofhis rights under the licence, or to enter into sub~licence arrangements;

(f)

the effect offailure to comply with any condition or covenant ofthe licence; and

(g)

any other matter to which the parties may agree.

(3)

The licensor may grant permission to any third person to do, or may himself do, any activity described in sections 31 and 32.

(4)

Ifthe licence is exclusive, unless otherwise provided therein, the licensor may not grant such pennission to the licensed activities.

(5)

The existence of a licence shall not affect the decision of the Registrar regarding the granting, nullification, tennination, or restora~ tion of any Plant Breeders' Rights, or any other administrative action authorized under this Act.

42.-(1) At any time after three years following the grant of Plant Breeders' Rights , any person may petition to the Registrar to issue a compulsory licence on the ground that the holder~

(a)

unreasonably refuses to grant him a licence; Of

(b)

is imposing unreasonable conditions for the issue of such a licence, and that, on account of the refusal, the reasonable requirements of the public with regard to the new variety in question, are not being satisfied or will not be satisfied.

(2)

A petition under sub-section (1)

(a)

may be brought regardless of whether the holder has granted other licensees with respect to the variety;

(b)

shall set out the facts and allegations on which the petition is based and the Registrar may require the application to be substantiated by such proof as he may deem necessary.

(3)

The Registrar shall furnish the holder ofthe Plant Breeders' Rights, and any licensees ofthe holder, with a copy of1he petition and all annexes.

(4)

Ifthe holder of Plant Breeders' Rights wishes to contest the petition, he shall, within one month or such further period as the Registrar may allow, submit a counter statement setting out the grounds for his refusal to grant a licence or for the conditions imposed thereon, and the Registrar shall furnish the petitioner with a copy ofthe counter statement.

(5)

The Registrar shall hold a hearing to consider the petition and if the Registrar is satisfied that the holder is unreasonably refusing the licence or imposing unreasonable conditions for the issue ofa licence, and as a result the reasonable requirements ofthe public with regard to the new variety in question are not being satisfied or will not be satisfied, he may issue a compulsory licence, setting out the terms and conditions ofthe licence.

(6)

In setting the terms ofa compulsory licence, the Registrar shall endeavour to ensure that the propagating material ofthe variety in question shall be available to the public at reasonable prices, and that, the holder ofa Plant Breeders' Rights derives a reasonable advantage from it.

(7)

The terms ofthe compulsory licence shall not prevent the licensor from giving additional1icences for the variety to other persons.

43. No inter-vivos transfer or assignment ofa Plant Breeders' Rights shall be valid unless it is in writing, signed by the parties and notified to the Registrar.

44.-{1) Each licensee shall, in not more than thirty one days from the effective date ofthe licence, notify the Registrar of the transaction and furnish the Registrar with a copy of that licence.

(2)

The Registrar may prescribe the form and manner ofnotification to be made under this section.

(3)

Upon assignment or other transmission of all or part of a Plant Breeders' Rights, the assignee or recipient shall apply to the Registrar for the registration, in the register, of his title or interest in the Plant Breeders' Rights.

(4)

The Registrar shall, upon proofoflicences, assignment or other entitlement to his satisfaction, register such transaction or notice and the interest in title to the Plant Breeders' Rights conveyed or affected.

Assignments

Records in the register

Appeals Board

Appeals from decision of Registrar

Decision

of the

Appeals

Board

(5) Except for the purposes ofan application to rectify the register under the provisions ofthis Act, ifa document has not been entered in the register, no person may present that document as evidence ofthe title ofthat person to the Plant Breeders' Rights or a share ofor interest in Plant Breeders' Rights unless the Appeals Board or a court ofcompetent jurisdiction otherwise directs.

PART IX
APPEALS

45.-(1) The Minister shall appoint an Appeals Board, consisting of three members, including one expert in legal matters and administrative law and two experts qualified in agricultural science.

(2)

The Appeals Board shall have power to

(a)

prescribe its own rules ofprocedure;

(b)

order and secure the attendance ofwitness;

(c)

compel discovery and the production ofdocuments; and

(d)

administer oath or affirmation to any witness.

(3)

The Appeals Board shall keep record ofits proceedings.

(4)

The Appeals Board may appoint one or more persons with expert knowledge to serve the Appeals Board in an advisory capacity, either generally or with regard to a specific case or cases.

46.-(1) An appeal shall lie to the Appeals Board from the decisions ofthe Registrar made under this Act.

(2) A person who is aggrieved by any such decision may appeal to the Appeals Board by submitting a notice ofappeal within sixty days following the publication or of the receipt of the individual notice of such decision by the person whose interest is the source or subject ofthe appeal.

47.-(1) The Appeals Board may conduct investigation, if it deems it necessary to do so, and may hold a hearing of the appeal or make a decision based on written submissions.

(2)

The Appeals Board may confirm, set aside or vary any decision or action ofthe Registrar; and may order the Registrar to carry out the decision ofthe Appeals Board.

(3)

The Appeals Board shall give the reasons for its decision in writing, and copies thereof shall be furnished to the appellant, the Registrar and any other interested party.

(4)

Subject to the provisions of sub-section (5) a decision of the Appeals Board shall be fmal.

(5)

The Minister may order the Appeals Board to review a decision made pursuant to sub-section (3), ifhe is ofthe opinion that, ~auseof new evidence or developments the previous decision may change.

PART X

ESTABUSHMENTOF PLANT BREEDERS' RIGHTS FUND

48.-{1) The Minister shall, after consultation with the Minister responsible for Finance, establish a Fund to be known as the "Plant Breeders' Rights Development Fund" into which moneys realized under this Act shall be paid.

(2)

The sources ofmoney for the Fund shall include

(a)

Plant Breeders' Rights registration, maintenance and licence fees determined by the Minister for the purpose;

(b)

any donations or grants from Government or individuals.

(3)

The purpose of the Fund shall include financing the following activities

(a)

collection and dissemination of plant breeders' rights infoIma"tion;

(b)

maintenance ofnew plant varieties bank;

(c)

supporting any research or analysis on varieties before or after plant breeders' rights registration;

(d)

such other activities relating to the development and promotion ofplant breeders' rights.

(4)

In addition to the functions entrusted to it under section 10, the Plant Breeders' Rights Advisory Committee shall operate as the Fund Committee, whereby

(a)

The Registrar shall be a member of the Fund Committee and shall serve as Secretariat ofthe Fund.

Establishmentof Plant Breeders' Rights Development fund

Accounts and audit

Annual Reports to be submitted to Minister

Offences and penalties

(b)

The Fund Committee shall make rules and procedures fur the operations and management of the Fund, provided that, such tUles· and procedures shall not be operative unless approved by the Minister.

(5)

Separate proper books ofaccounts and other records in respect of the moneys ofthe Fund shall be kept properly and maintained and shall be subject to audit.

49.-(1) The Plant Breeders' Rights Registry shall cause to be kept and maintain proper books ofaccounts with respect to

(a)

all sums ofmoney received and expended by the Plant Breeders' Rights Registry and matters in respect ofwhich the receipt and expenditure take place;

(b)

all the assets and liabilities ofthe Plant Breeders' Rights Registry and the fund; and

(

c) the income and expenditure statement ofthe Plant Breeders' Rights Registry;

(2)

The financial year ofthe Plant Breeders' Rights Registry and the Fund shall end on 30th June of each year.

(3)

The books ofaccounts ofthe Plant Breeders' Rights Registry and the Fund shall be audited at the end ofeach fmaocial year by the Controller and Auditor General.

50.-(1) The Plant Breeders' Rights Registry shall, not later than six months after the end of each financial year, submit to the Minister. a copy of the audited accounts and annual report on the activities of the Plant Breeders' Rights Registry in respect of that year.

(2) The Minister shall, within a period ofsix months or such longer period, as the National Assembly may by resolution appoint, after the accounts have been audited, lay the audited accounts and audit report before the National Assembly.

PART XI

O~CEsANDPENALTre$

51.-(1) Any person who

<a> knowingly makes a false entry in the register..

(b)

knowingly makes a writing which falsely purports to be a copy of
an entry in the register or ofa document lodged with the Registrar;

(c)

knowingly produces or tenders a false entry ofcopy as evidence;

(d)

knowingly submits a false document or makes a false statement or
representation to the Registrar in regard to any action described
under this Act;

(e)

knowingly obstructs or hinders the Registrar or any officer in the
exercise of his powers or the carrying out of his functions under
this Act;

(t)

having been duly summoned to appear at any proceedings under
this Act, fails without lawful excuse to so appear;

(g)

having appeared as a witness at any proceedings under this Act,
refuses without lawful excuse to be sworn or to make affinnation
or to produce any document or answer any question which he may
be lawfully required to produce or answer;

(h)

falsely represents that propagating material sold by him for the
purpose ofpropagation or multiplication is propagating material of
a variety in respect ofwhich a plant breeders' right has been granted
under this Act, or that the propagation material originates from
such a variety;

(i)

at the sale ofpropagating material for the purposes ofpropagation
or multiplication

(i)

uses a denomination which is different from the variety in question; or

(ii)

uses the registered denomination of another variety of the same species or subspecies ofplant; or

(iii) uses a denomination which corresponds so closely to a registered denomination that is misleading;

G) gives false information in any application or makes any false state
ment in evidence; or

(k)

causes another person to take any action described in this section, commits an offence.

(2)

Any person who commits an offence underthis Act, and upon conviction, shall be liable to a fine not exceeding five million shillings or to an imprisonment for a term not exceeding one year or to both such fine and imprisonment.

PARTXll

MISCELLANEOUS PROVISIONS

52. Notwithstanding any other provision of this Act, the Registrar Collection shall assess and collect fees from the applicant or any other person filing offees

a document or requesting process of administrative action under this Act, for each application, extension, filing, inquiry or other administrative process or service.

Confiden-S3.-{1) The contents of any licence or assignment shall be confitiality dential unless both parties agreed to permit access thereto by third parties and only to the extent ofthe permission so granted.

(2)The applicant may declare some portion ofthe application to be confidential, and where declared so, the Registrar shall determine whether the application can be processed without publication or other violation ofthat confidentiality, and give the applicant the option ofaltering his statement ofconfidentiality or withdraw the application.

(3)

Except as otherwise provided for in this Act, any person who discloses any information made available under this Act, except to

(a)

the Minister, the Appeal Board, the Registrar or any other person for the purposes ofcarrying out his duties or the performance of his functions under this Act, or

(b)

a police officer for the purposes of an investigation or inquiry relating to the enforcement ofthe provisions ofthis Act; or

(c)

any other person when required to do so by any court or under any written law;

commits an offence, and upon conviction, shall be liable to a fine not exceeding two million shillings or to an imprisonment for a term not exceeding one year or to both such fme and imprisonment.

Action

54.-{1) Subject to the existing law on taking action against the

against

State, this Act shall be binding on the Government with regard to its

the State

applications for Plant Breeders' Rights and other interests acquired or given in Plant Breeders' Rights, to the same extent and with the same effect as it applies to any other person.

(2) No claim shall lie against the State, the Minister, the Registrar, or any other officer for anything done in good faith in the discharge of duties under the powers conferred by this Act.

Plant SS.-{1) Within twelve months from the date ofcommencement of breeders' this Act, the breeder ofan existing variety may apply to the Registrar in

right in

respect of respect ofthat variety.

existing varieties

(a)

a person who has derived his title to that variety directly or
indirectly from the breeder or owner by a sign writing or in
heritance or operation oflaw; or

(b)

a legal representative of such person;

(2)

Ifthe Registrar determines that the applicant effectively controls the availability ofthe variety to the public and that the provisions ofPart mare otherwise satisfied in respect of the variety, he may grant a Plant Breeders' Rights in respect ofthat variety.

(3)

Applications made under this section shall comply with the application procedure, including publication, as set in Part IV.

56. The Minister may enter into bilateral or multilateral agreement Agree

ments

with foreign Governments for the mutual recognition and protection of with _Plant breeders' rights. foreign

Governments

57.-(1) The Minister shall ensure that the implementation of this

Protec

Act shall not affect the fulfillment of the Government obligations per_{tion of} taining to the protection offarmers' rights to equitably share and access fanners to traditional cultivats and germplasm;national and international com^{rights and}

tradi

mitments towards sustainable use ofbiological diversity taking into ac

tiona]

count the human health.

cultivars

(2) The Minister shall, after consultation with the Minister respon^and

gcmtp1asm

sible for finance, direct that, a certain percent of the fees paid to the Registrar under this Act, be set aside for the benefits oftraditional farmers and the preservation oftraditional cultivars ofagricultural products.

58.-(1) Where a holder of plant breeders' rights is a non-resident Agents person or, in the case ofa corporation, does not have its registered office in Tanzania, the holder shall have an agent who is resident in Tanzania in respect ofthose rights.

(2) The Registrar may, for any gross misconduct or prescribed cause or any other reasonable cause considered by the Registrar to be sufficient, refuse to recognize, or to continue to recognize, uy person as authorized by an applicant or a holder ofplant breeder's rights to act in the capacity ofagent.

59.-(1) The Minister may make regulations prescribing anything which under this Act is to be prescribed and generally administer effectively and carry out the objects and purpose ofthis Act or to give force or effect to its provisions.

(2)

Without prejudice to the generality ofthe sub-section (1) , regulations made under this section may include-

(a)

the form of any notice, any licence or other transaction to be provided as a prerequisite for recordation of such transaction in the Register, and the certification or attestation ofthe validity of copies ofany document to be provided to the Registrar;

(b)

the form of any application, description, objection, petition, counter -statement or other document to be lodged with the Registrar and the attestation to be provided on such document;

(c)

the procedure to be followed in any proceedings before the Reg'istrar; _ •

(d)

specific parameters of the information and facilities to be provided, and ofthe propagating and other material to be submitted with respect to a variety;

(

e) the tests, trials, examinations and other steps to be taken with respect to a variety, by the applicants or by the Registrar and the time within which-any such steps are to be taken;

(f)

the records to be kept and the returns to be rendered relating to propagating material for sale, reproduction or export and the form and manner of such records and returns, and the time for filing.

(g)

the fees to be paid in respect of

(i)

applications for the grant ofplant breeders' rights, for extension ofits term and for restoration oflapsed rights;

(ii)

requests for administrative review, including objections to termination ofPlant Breeders' Rights, appeals from administrative decisions and other administrative actions;

(iii) the examination of samples of propagating material or any plant grown from;

(iv)

the recordation in the register or a notice oflicence, assignment, transfer or other transaction involving a Plant Breeders' Rights;

(v)

the inspection ofthe register or provision ofa certified copy ofany entry therein;

(h)

the rights and duties ofthe licensor with respect to licences granted under section 41 or 42, in connection with the institution ofaction for infringement ofthe licensor's plant breeders' rights where the licensor fails or refuses to institute such action;

(i)

requiring the publication injournals or newspapers ofprescribed particulars respecting applications, approvals and changes of denominations Plant Breeders' Rights; and

G) prescribing for anything that is to be prescribed under this Act.

Passed in the National Assembly on the 7th November, 2002 .

.......==A~........

Clerk ofthe National Assembly.