Establishment of Plant Breeders’ Rights System
In Tanzania: Achievements and Challenges
A Case Study
Under the Ministry of Agriculture Food Security and Cooperatives,
Tanzania -CAS-IP NPI Collaboration Project
Patrick Ngwediagi
Registrar of Plant Breeders’ Rights
Ministry of Agriculture Food Security and Cooperatives
Email: patrick.ngwediagi@kilimo.go.tz
Ministry of Agriculture Food Security and Cooperatives
P.O. Box 9192 DAR ES SALAAM,TANZANIA
Tel: +255 22 286420 Fax: +255 22 2861403
Email: psk@kilimo.go.tz Website: http: // www.kilimo.go.tz
Contents Acronyms 1 2 Acronyms Background and Justification for the Study Materials and Methods 2 3 3 3 4 5 Meaning and Importance of Intellectual Property Rights Plant Breeders' Rights, Farmers' Rights and Community Rights Plant Breeders' Rights Farmers' Rights Community Rights International Obligations for Tanzania OAU Model Law 3 5 7 TRIPS Agreements Convention on Biological Diversity (CBD) International Treaty on Plant Genetic Resources for Food and Agriculture (IT-PGRFA) UPOV Model and its Members 6 Establishment and Operationalization of Plant Breeders' Rights System Need for a Plant Breeders' Rights System PBR Legislation Institutional Framework 10 7 Plant Breeders Rights Development Fund Achievements and Challenges Participation of Stakeholders in the Administration of PBR Act Regional and International Collaboration Lessons Learnt and Recommendations 20 8 References 21 Acknowledgements 22
ASARECA Association for Strengthening Agricultural Research in Eastern and Central Africa
AU African Union
AVRDC Asian Vegetable Research and Development Centre
CAS-IP Central Advisory Services on Intellectual Property
CBD Convention on Biological Diversity
DUS Distinctness, Uniformity and Stability
FAO Food and Agriculture Organization
IPRs Intellectual Property Rights
ISF International Seed Federation
IT-PGRFA International Treaty on Plant Genetic Resources for Food and Agriculture
MAFC Ministry of Agriculture Food Security and Cooperatives
NPI National Partners Initiative
OAU Organization of African Unity
PBR Plant Breeders’ Rights/ Plant Breeder’s Right
PBRA Plant Breeders’ Rights Act
PBRO Plant Breeders’ Rights Office
PVP Plant Variety Protection
QDS Quality Declared Seed
TRIPS Trade-Related Intellectual Property Rights
UPOV International Union for the Protection of New Varieties of Plants
WIPO World Intellectual Property Organization
WTO World Trade Organization
1. Background and Justification for the Study
The Government of Tanzania has established a legal system for protection of plant breeders’ rights in order to put in place a mechanism for rewarding plant breeders and for the purpose of promoting plant breeding activities to stimulate and promote agricultural development. The system was put in place through enactment of the Plant Breeders’ Rights Act in 2002 which officially became operational in 2004 and based on the experiences and the outcome of implementing the system, there has been calls from stakeholders for the government to review the law governing the granting of plant breeders’ rights to make it more compliant to international systems of variety protection for the purpose of increasing local and foreign investment in plant breeding. In agreement with CAS-IP of Bioversity International, the Ministry of Agriculture Food Security and Cooperatives of Tanzania carried out a case study in 2008 in order to appraise the system and document experiences gained, lessons lent and challenges in the process of establishing and managing the Plant Breeders’ Rights Office in the country and make recommendations for improvement. The recommendations will also save as advice to other NPI member countries that are practicing or are in the process of putting in place similar system of plant variety protection.
This study seeks to review appropriateness of the current plant breeders’ rights system in Tanzania and its contribution to an effective sui generis (“of its own kind”) system, and attempts to formulate an appropriate model in line with the TRIPS Agreement. The study prepares a benchmark review of activities undertaken in Tanzania thus far towards the creation and operationalization of a sui generis system (covering developments in legislation, institutions, as well as studies and analysis carried out by the government, private sector and other stakeholders). The study will also assess Tanzania’s compliance with the Agreement on Trade-Related Intellectual Property and other international legal frameworks for the protection of plant variety. The findings will facilitate an identification of the areas (legislative, analytical and institutional) where follow up for reform is required. The study will also examine how farmer s’ rights are handled.
2. Materials and Methods
The study has reviewed and documented the whole process from what necessitated a decision on establishment of a plant variety protection system to development and implementation of the law, activities involved in the process of establishing the office and operationalization of the office including availability of necessary resources.
In order to achieve the objectives of the case study, all existing literatures and documents on the establishment and operationalization of the plant breeders’ rights system in Tanzania were collected and reviewed. Opinions from major stakeholders of the system who included officials of the Ministry of Agriculture Food Security and Cooperatives and Plant Breeders’ Rights Office, plant breeders in the field, seed producers, academicians and farmers/farmer groups were collected though individual interviews or though discussions in workshops and meetings. During the process the stakeholders’ views regarding the efficiency of the system and suggestions for improvement were sought. The stakeholders meetings were also used to establish the level of their awareness on the importance and benefits of the plant variety protection system so that means of raising their awareness could be recommended.
3 The Concept and Importance of Intellectual Property Rights (IPRs)
Intellectual property can be defined as that which is created by the human intellect (“ideas” or “thoughts”), often intangible unlike other forms of property. When the ideas or thoughts are converted to practice (for example, in appliances, drugs, books, new plant varieties etc), and the reduced-to-practice ideas are new (novel), they can be protected by government laws. These laws confer to the creator exclusive legal rights over the subject matter, which serve as a reward for their achievement and contribution to socio-economic progress as well as an incentive for further innovation.
Types of intellectual property rights include: - Industrial property: (patents, trade marks, special rights for integrated circuits, utility models, industrial designs, etc); and
- Literary and artistic property: (copyright, rights of performers, et. cetera).
- Plant variety protection (PBR): a sui generis system often excluded from lists of intellectual property categories
3.1 The Importance of IPRs to the Agricultural Sector
In Tanzania, over 80 per cent of the population lives in rural areas and depends on agriculture for their livelihood. This sector contributes about 26.5 percent to the GDP and comprises 54 percent of the nation’s foreign exchange earnings1. Agricultural development is therefore crucial to both national economic development and poverty reduction, but specifically, it stimulates local rural economies and may curb rural to urban migration. Strong Intellectual Property Rights’ (IPRs) play a significant role in attracting investment in agriculture, and enhance market growth, access and diversification as they provide incentive to breeders by assuring them that their expenditure and development will be protected. Adequate plant variety protection encourages investment in the plant breeding sector and opens a country’s door to overseas varieties where the protection of law is guaranteed. More often than not, new plant varieties render higher yield and quality product, as well as a greater resistance to disease rendering them a crucial aspect of production. Through these varieties the benefits of plant variety protection therefore extend to farmers, producers and to the national economy.
It is envisaged that Trade Marks, Patents and Plant Variety Protection will have some impact on the pace and direction of growth of the sector. Simply put, trademarks have an important role to play in the identification of agro-products, such as seeds, of a particular enterprise. They can also convey to customers an indication of the quality of the product. Patents and plant variety protection systems are likely to have greater influence on access to technology issues, such as seed of improved varieties. These latter two forms of protection share some commonalities: - They create incentives for investment in the research and development of new plant varieties. Holders have the opportunity to exploit their inventions and therefore recoup their investment costs free from the competition of those who have not made such investments and who would, in the absence of patent or plant variety protection, benefit unfairly;
- The rights are territorially limited and therefore apply only within the state, or the group of states, in which they are granted; and
- They represent a balance between the public interest and the private interest of the holder.
Despite these similarities between patents and plant variety protection laws, there are some principle differences between them. These are summarized in Table 1 below.
Table 1. A General Comparison of Patent And Plant Variety Protection Law Subject Patent Protection Plant Variety Protection Holder of Protection Inventor Plant Breeder Ease of making application Requires involvement of patent specialists/lawyers User friendly; breeder can make the application. Object of protection (Industrial) invention Plant Variety Documentary examination Required Required Field examination Not required Required Plant material for testing Not required Required Conditions for grant of rights a) Novelty b) Industrial applicability c) Non-obviousness (inventive step) d) Enabling disclosure a) Novelty b) Distinctness c) Uniformity d) Stability e) Appropriate denomination Determination of scope of protection Determined by the claims of the patent Fixed by the national legislation (by UPOV Convention in the case of UPOV member States) Use of a protected variety for breeding further varieties May require the authorization of the patentee. Does not require authorization of the right holder. Term of protection 20 years from date of application (as per TRIPS Agreement) 25 yrs for trees and vines, 20 yrs for other plants, from date of grant (1991 Convention)
Source: Wachira F. & Ngwediagi. A review of PVP Laws in Eastern African countries of Kenya, Uganda, Tanzania and Rwanda, submitted to ASARECA in 2006
Patents are granted for inventions (there must be evidence of an inventive step); the patenting of plants has always carried misconceptions and ambiguities. In Tanzania Patent Act, 1987 does not allow the patenting of life forms (section 7)2. The same prohibition exists under the European Patent Convention. Therefore, plant breeders in Tanzania can only protect their new plant varieties through the plant variety protection legislation.
1 MAFC Budget Speech made to the National Parliament in July 2008
4. Plant Breeders’ Rights, Farmers Rights and Community Rights
4.1 Plant Breeders Rights
Plant Breeders’ Rights (PBRs) are defined by UPOV3 as an exclusive right over the commercial production and marketing of the reproductive or vegetative propagating material of the protected variety. The creation of this category of rights as an alternative to patents was intended to provide incentives for the seed industry. Therefore the primary motivation behind such rights is profit-making; these rights attract investment from the private sector and stimulate research and development of stronger and more productive plant varieties.
The development of a new variety is usually a long and costly undertaking and therefore by allowing breeders to control commercialization of their variety, by enacting and implementing a plant breeders' rights legislation gives them a chance to recoup costs and profit from their breeding investment. This also motivates breeders to continue developing new varieties for the benefit of farmers and the society in general.
2 Tanzania Patent Act of 1987 3 UPOV Convention of 1991
4.2 Farmers’ Rights
In developing countries, seed supply requirements are met through exchanges between farmers, which operate alongside other more formal mechanisms. Farmers’ seed systems are largely based on traditional methods of selection between varieties as well as seed multiplication carried out on farms, but still involve modern varieties. Nevertheless there is no uniform interpretation of farmers’ rights in relation to IPRs on plant varieties. Farmers’ rights protection carries with it benefits such as the improvement of the livelihood of those farmers and their communities; environment conservation and the monitoring of resources; the prevention of rural migration; less dependence on foreign countries and the prevention of biopiracy by recognizing the contribution of local farmers.
The major difference between farmers’ rights and IPRs is that while the latter offers exclusive rights, the former is geared towards compensation and benefit sharing. Also, farmers’ rights do not readily define the title holder or subject matter, while they are clearly established for IPRs. Finally, IPRs are also of a limited duration while farmers’ rights are unlimited
Farmer’s rights are a counter-balance to PBRs in recognition of the farmer’s contribution to agricultural innovations, to promote the equitable sharing of genetic resources and in recognition of the importance of the conservation of such resources and traditional practices. The legal scope of these rights is still in debate. A whole spectrum of views has been put forward regarding the utility and place of farmers’ rights protection in the law. Some of these views include: There should be no relationship between farmers’ rights and IPRs; Farmers rights should be recognized in laws relating to plant breeders’ rights; A sui generis regime on farmers’ rights should be established separately from existing forms of IPRs and The existing definitions under plant breeders’ rights legislation should be extended to protect farmers varieties.
Part V of the Model Law developed by the African Union outlines farmers’ rights which include the right to save, use, and exchange seed produced on farms, and to use protected varieties in the development of new farmer’s varieties.
The importance of having a clear understanding of what should be regarded as farmers’ rights and their place in legal systems is less pronounced in developed countries but is relevant in the developing country context. Here, farmers are a primary source of seed supply through informal exchange arrangements. For example in Tanzania, 95 percent of seed management is carried out by farmers and the remaining 10 percent supplied by certified seeds sold on the market (these are generally much more expensive and are not easily available to many farmers in remote areas)4. The Plant Breeders Rights Act of 2002 recognizes this situation and therefore provides that farmers are privileges to save seeds of a protected variety as long as it is grown in their own holdings (farms). The Act also does not discriminate farmers in the definition of a breeder, meaning that a farmer can also develop and protect a new variety. However, the Act does not provide other forms of rights specifically for farmers but the government has initiated a process of enacting a law on access and use of plant genetic resources where all matters related to farmers rights will be captured.
In order to solve the problem of seed availability and affordability to small scale farmers, the Tanzanian government has initiated an on-farm seed production system known as Quality Declared Seed (QDS) System5. The QDS system allows small scale farmers (growing not more than 5 acres of seed) to produce seed on their own farms and declared the quality of their own seed and sell to nearby farmers within an administrative area known as a ward. The national seed certification agency may once in a while inspect these farmers but their involvement does not exceed 10 percent. The system has been operational since the year 2000 and has now been legalized by the new Seed Act of 20036.
4 MAFC Report to the National Variety Release Committee, December 2008 5 QDS Programme Launch Report, 2002 6Tanzania Seed Act of 2003
4.3 Community Rights
The sovereign rights of the state over its natural resources forms the basis of its negotiating position on the international plane and the right to develop policies appropriate for its national context. Community rights are those belonging to members of an identifiable
indigenous community, with each member entitled to use of the common property and any management issue pertaining to the property must have the consent of the entire community. A delineation of these rights is often difficult given that property rights are individualistic in nature, but this should not negate recognition of community rights which recognize their conservation role, to provide incentives and also to fulfill their human rights entitlements. Currently there is no specific law for the protection of community rights in Tanzania, and based on the current administrative structure in the country such law may be difficult to implement. As a way of strengthening national unity and cohesion, immediately after independence, Tanzania abolished village chiefdoms which existed along tribal boundaries and established new village boundaries and leadership that had little to do with tribal affiliations. It might therefore be difficult to distribute any benefits arising from the use of plant genetic resources which were obtained from areas originally belonging to a certain indigenous community.
5. International Obligations for Tanzania
5.1 OAU Model Law
A Model Law which outlines its sui generis system has been developed by the AU, formally, OAU. The law deals with access to biological resources, benefit sharing and the rights of farmers and breeders over their knowledge and resources. It rejects the exclusive appropriation of any life form, including derivatives. Communities can prohibit access to resources only where it would be detrimental to their natural heritage; also, at least half of the benefits derived from access must be directed back to the community. This framework provides a comprehensive definition of farmers’ rights, including protection of their traditional knowledge relevant to plant and animal genetic resources, the right of equitable share of benefits arising from the use of plant and animal genetic resources, the right to participate in making decisions on matters related to the conservation, exchange, and sale of farm-saved seed or propagating material, and the right to use a commercial breeder’s variety to develop other varieties. It also provides that where food security or nutritional or health needs are adversely affected, governments are allowed, in the public interest, to restrict the realization of the rights of breeders. Breeders’ rights are modeled after the UPOV Conventions, although article 43 of the Model Law provides broad exemptions to breeders’ rights including noncommercial use rights, sale of the plant material for food or sale within the specific geographical location where the plant material originated, and also use as an initial source for propagating another variety7.
Although the Organization unanimously approved the Model Law, very few members have enacted their PBR laws using the model law. This has brought the discussions on the need to revise the model law to meet the present needs of its member states.
5.2 TRIPS Agreement
The World Trade Organization’s Trade-Related Intellectual Property Agreement8 obliges its signatories to provide for such intellectual property protection in their laws, and sets out the minimum standards that must be contained therein. Plant variety protection is often excluded from lists of intellectual property categories. However, the adoption of the TRIPS Agreement has done more to encourage the legal protection of plant varieties than any other international agreement. As the Plant Variety Protection (PVP) debate has continued, a school of thought has evolved that considers it a form of industrial property right.
The TRIPS Agreement does not require that a specific system be put into place to secure intellectual property rights for plant varieties. The Agreement mandates its signatories to provide patent protection for any invention in all fields of technology, provided that the inventions are “new, involve an inventive step and are capable of industrial application”. Such protection for plant varieties is covered by Article 27.3 (b) of the Agreement which partly states the protection is to be provided “...either by patents, or by an effective sui generis system or by any combination thereof”. This means that the range of options is unlimited, provided some requirements are met. This also means that WTO member states, including
Tanzania are allowed to develop legislation that takes into account its unique features. Furthermore Article 27.3 (b) of the Agreement states that members may exclude from patentability “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological processes. Thus, as presently written, the TRIPS Agreement would permit WTO members to decline to protect plant varieties using the patent method provided they protect such varieties with an effective sui generis plant variety protection system. There is no guidance or agreed formulation as to what constitutes ‘effective’, nor what a sui generis system should entail at minimum. The International Seed Federation (ISF) recommends that countries envisaging the development of such sui generis systems ensure that as a minimum they conform to the requirements of the 1991 Act of the UPOV Convention,
A Case Study
Under the Ministry of Agriculture Food Security and Cooperatives,
Tanzania -CAS-IP NPI Collaboration Project
Patrick Ngwediagi
Registrar of Plant Breeders’ Rights Ministry of Agriculture Food Security and Cooperatives P.O. Box 9192 DAR ES SALAAM,TANZANIA ASARECA Association for Strengthening Agricultural Research in Eastern and Central Africa
AU African Union
AVRDC Asian Vegetable Research and Development Centre
CAS-IP Central Advisory Services on Intellectual Property
CBD Convention on Biological Diversity
DUS Distinctness, Uniformity and Stability
FAO Food and Agriculture Organization
IPRs Intellectual Property Rights
ISF International Seed Federation
IT-PGRFA International Treaty on Plant Genetic Resources for Food and Agriculture
MAFC Ministry of Agriculture Food Security and Cooperatives
NPI National Partners Initiative
OAU Organization of African Unity
PBR Plant Breeders’ Rights/ Plant Breeder’s Right
PBRA Plant Breeders’ Rights Act
PBRO Plant Breeders’ Rights Office
PVP Plant Variety Protection
QDS Quality Declared Seed
TRIPS Trade-Related Intellectual Property Rights
UPOV International Union for the Protection of New Varieties of Plants
WIPO World Intellectual Property Organization
WTO World Trade Organization
The Government of Tanzania has established a legal system for protection of plant breeders’ rights in order to put in place a mechanism for rewarding plant breeders and for the purpose of promoting plant breeding activities to stimulate and promote agricultural development. The system was put in place through enactment of the Plant Breeders’ Rights Act in 2002 which officially became operational in 2004 and based on the experiences and the outcome of implementing the system, there has been calls from stakeholders for the government to review the law governing the granting of plant breeders’ rights to make it more compliant to international systems of variety protection for the purpose of increasing local and foreign investment in plant breeding. In agreement with CAS-IP of Bioversity International, the Ministry of Agriculture Food Security and Cooperatives of Tanzania carried out a case study in 2008 in order to appraise the system and document experiences gained, lessons lent and challenges in the process of establishing and managing the Plant Breeders’ Rights Office in the country and make recommendations for improvement. The recommendations will also save as advice to other NPI member countries that are practicing or are in the process of putting in place similar system of plant variety protection.
This study seeks to review appropriateness of the current plant breeders’ rights system in Tanzania and its contribution to an effective sui generis (“of its own kind”) system, and attempts to formulate an appropriate model in line with the TRIPS Agreement. The study prepares a benchmark review of activities undertaken in Tanzania thus far towards the creation and operationalization of a sui generis system (covering developments in legislation, institutions, as well as studies and analysis carried out by the government, private sector and other stakeholders). The study will also assess Tanzania’s compliance with the Agreement on Trade-Related Intellectual Property and other international legal frameworks for the protection of plant variety. The findings will facilitate an identification of the areas (legislative, analytical and institutional) where follow up for reform is required. The study will also examine how farmer s’ rights are handled.
The study has reviewed and documented the whole process from what necessitated a decision on establishment of a plant variety protection system to development and implementation of the law, activities involved in the process of establishing the office and operationalization of the office including availability of necessary resources.
In order to achieve the objectives of the case study, all existing literatures and documents on the establishment and operationalization of the plant breeders’ rights system in Tanzania were collected and reviewed. Opinions from major stakeholders of the system who included officials of the Ministry of Agriculture Food Security and Cooperatives and Plant Breeders’ Rights Office, plant breeders in the field, seed producers, academicians and farmers/farmer groups were collected though individual interviews or though discussions in workshops and meetings. During the process the stakeholders’ views regarding the efficiency of the system and suggestions for improvement were sought. The stakeholders meetings were also used to establish the level of their awareness on the importance and benefits of the plant variety protection system so that means of raising their awareness could be recommended.
Intellectual property can be defined as that which is created by the human intellect (“ideas” or “thoughts”), often intangible unlike other forms of property. When the ideas or thoughts are converted to practice (for example, in appliances, drugs, books, new plant varieties etc), and the reduced-to-practice ideas are new (novel), they can be protected by government laws. These laws confer to the creator exclusive legal rights over the subject matter, which serve as a reward for their achievement and contribution to socio-economic progress as well as an incentive for further innovation.
Types of intellectual property rights include: In Tanzania, over 80 per cent of the population lives in rural areas and depends on agriculture for their livelihood. This sector contributes about 26.5 percent to the GDP and comprises 54 percent of the nation’s foreign exchange earnings1. Agricultural development is therefore crucial to both national economic development and poverty reduction, but specifically, it stimulates local rural economies and may curb rural to urban migration. Strong Intellectual Property Rights’ (IPRs) play a significant role in attracting investment in agriculture, and enhance market growth, access and diversification as they provide incentive to breeders by assuring them that their expenditure and development will be protected. Adequate plant variety protection encourages investment in the plant breeding sector and opens a country’s door to overseas varieties where the protection of law is guaranteed. More often than not, new plant varieties render higher yield and quality product, as well as a greater resistance to disease rendering them a crucial aspect of production. Through these varieties the benefits of plant variety protection therefore extend to farmers, producers and to the national economy.
It is envisaged that Trade Marks, Patents and Plant Variety Protection will have some impact on the pace and direction of growth of the sector. Simply put, trademarks have an important role to play in the identification of agro-products, such as seeds, of a particular enterprise. They can also convey to customers an indication of the quality of the product. Patents and plant variety protection systems are likely to have greater influence on access to technology issues, such as seed of improved varieties. These latter two forms of protection share some commonalities: Despite these similarities between patents and plant variety protection laws, there are some principle differences between them. These are summarized in Table 1 below.
Table 1. A General Comparison of Patent And Plant Variety Protection Law Source: Wachira F. & Ngwediagi. A review of PVP Laws in Eastern African countries of Kenya, Uganda, Tanzania and Rwanda, submitted to ASARECA in 2006
Patents are granted for inventions (there must be evidence of an inventive step); the patenting of plants has always carried misconceptions and ambiguities. In Tanzania Patent Act, 1987 does not allow the patenting of life forms (section 7)2. The same prohibition exists under the European Patent Convention. Therefore, plant breeders in Tanzania can only protect their new plant varieties through the plant variety protection legislation.
1 MAFC Budget Speech made to the National Parliament in July 2008
Plant Breeders’ Rights (PBRs) are defined by UPOV3 as an exclusive right over the commercial production and marketing of the reproductive or vegetative propagating material of the protected variety. The creation of this category of rights as an alternative to patents was intended to provide incentives for the seed industry. Therefore the primary motivation behind such rights is profit-making; these rights attract investment from the private sector and stimulate research and development of stronger and more productive plant varieties.
The development of a new variety is usually a long and costly undertaking and therefore by allowing breeders to control commercialization of their variety, by enacting and implementing a plant breeders' rights legislation gives them a chance to recoup costs and profit from their breeding investment. This also motivates breeders to continue developing new varieties for the benefit of farmers and the society in general.
2 Tanzania Patent Act of 1987 3 UPOV Convention of 1991
In developing countries, seed supply requirements are met through exchanges between farmers, which operate alongside other more formal mechanisms. Farmers’ seed systems are largely based on traditional methods of selection between varieties as well as seed multiplication carried out on farms, but still involve modern varieties. Nevertheless there is no uniform interpretation of farmers’ rights in relation to IPRs on plant varieties. Farmers’ rights protection carries with it benefits such as the improvement of the livelihood of those farmers and their communities; environment conservation and the monitoring of resources; the prevention of rural migration; less dependence on foreign countries and the prevention of biopiracy by recognizing the contribution of local farmers.
The major difference between farmers’ rights and IPRs is that while the latter offers exclusive rights, the former is geared towards compensation and benefit sharing. Also, farmers’ rights do not readily define the title holder or subject matter, while they are clearly established for IPRs. Finally, IPRs are also of a limited duration while farmers’ rights are unlimited
Farmer’s rights are a counter-balance to PBRs in recognition of the farmer’s contribution to agricultural innovations, to promote the equitable sharing of genetic resources and in recognition of the importance of the conservation of such resources and traditional practices. The legal scope of these rights is still in debate. A whole spectrum of views has been put forward regarding the utility and place of farmers’ rights protection in the law. Some of these views include: There should be no relationship between farmers’ rights and IPRs; Farmers rights should be recognized in laws relating to plant breeders’ rights; A sui generis regime on farmers’ rights should be established separately from existing forms of IPRs and The existing definitions under plant breeders’ rights legislation should be extended to protect farmers varieties.
Part V of the Model Law developed by the African Union outlines farmers’ rights which include the right to save, use, and exchange seed produced on farms, and to use protected varieties in the development of new farmer’s varieties.
The importance of having a clear understanding of what should be regarded as farmers’ rights and their place in legal systems is less pronounced in developed countries but is relevant in the developing country context. Here, farmers are a primary source of seed supply through informal exchange arrangements. For example in Tanzania, 95 percent of seed management is carried out by farmers and the remaining 10 percent supplied by certified seeds sold on the market (these are generally much more expensive and are not easily available to many farmers in remote areas)4. The Plant Breeders Rights Act of 2002 recognizes this situation and therefore provides that farmers are privileges to save seeds of a protected variety as long as it is grown in their own holdings (farms). The Act also does not discriminate farmers in the definition of a breeder, meaning that a farmer can also develop and protect a new variety. However, the Act does not provide other forms of rights specifically for farmers but the government has initiated a process of enacting a law on access and use of plant genetic resources where all matters related to farmers rights will be captured.
In order to solve the problem of seed availability and affordability to small scale farmers, the Tanzanian government has initiated an on-farm seed production system known as Quality Declared Seed (QDS) System5. The QDS system allows small scale farmers (growing not more than 5 acres of seed) to produce seed on their own farms and declared the quality of their own seed and sell to nearby farmers within an administrative area known as a ward. The national seed certification agency may once in a while inspect these farmers but their involvement does not exceed 10 percent. The system has been operational since the year 2000 and has now been legalized by the new Seed Act of 20036.
4 MAFC Report to the National Variety Release Committee, December 2008 5 QDS Programme Launch Report, 2002 6Tanzania Seed Act of 2003
The sovereign rights of the state over its natural resources forms the basis of its negotiating position on the international plane and the right to develop policies appropriate for its national context. Community rights are those belonging to members of an identifiable
indigenous community, with each member entitled to use of the common property and any management issue pertaining to the property must have the consent of the entire community. A delineation of these rights is often difficult given that property rights are individualistic in nature, but this should not negate recognition of community rights which recognize their conservation role, to provide incentives and also to fulfill their human rights entitlements. Currently there is no specific law for the protection of community rights in Tanzania, and based on the current administrative structure in the country such law may be difficult to implement. As a way of strengthening national unity and cohesion, immediately after independence, Tanzania abolished village chiefdoms which existed along tribal boundaries and established new village boundaries and leadership that had little to do with tribal affiliations. It might therefore be difficult to distribute any benefits arising from the use of plant genetic resources which were obtained from areas originally belonging to a certain indigenous community.
A Model Law which outlines its sui generis system has been developed by the AU, formally, OAU. The law deals with access to biological resources, benefit sharing and the rights of farmers and breeders over their knowledge and resources. It rejects the exclusive appropriation of any life form, including derivatives. Communities can prohibit access to resources only where it would be detrimental to their natural heritage; also, at least half of the benefits derived from access must be directed back to the community. This framework provides a comprehensive definition of farmers’ rights, including protection of their traditional knowledge relevant to plant and animal genetic resources, the right of equitable share of benefits arising from the use of plant and animal genetic resources, the right to participate in making decisions on matters related to the conservation, exchange, and sale of farm-saved seed or propagating material, and the right to use a commercial breeder’s variety to develop other varieties. It also provides that where food security or nutritional or health needs are adversely affected, governments are allowed, in the public interest, to restrict the realization of the rights of breeders. Breeders’ rights are modeled after the UPOV Conventions, although article 43 of the Model Law provides broad exemptions to breeders’ rights including noncommercial use rights, sale of the plant material for food or sale within the specific geographical location where the plant material originated, and also use as an initial source for propagating another variety7.
Although the Organization unanimously approved the Model Law, very few members have enacted their PBR laws using the model law. This has brought the discussions on the need to revise the model law to meet the present needs of its member states.
The World Trade Organization’s Trade-Related Intellectual Property Agreement8 obliges its signatories to provide for such intellectual property protection in their laws, and sets out the minimum standards that must be contained therein. Plant variety protection is often excluded from lists of intellectual property categories. However, the adoption of the TRIPS Agreement has done more to encourage the legal protection of plant varieties than any other international agreement. As the Plant Variety Protection (PVP) debate has continued, a school of thought has evolved that considers it a form of industrial property right.
The TRIPS Agreement does not require that a specific system be put into place to secure intellectual property rights for plant varieties. The Agreement mandates its signatories to provide patent protection for any invention in all fields of technology, provided that the inventions are “new, involve an inventive step and are capable of industrial application”. Such protection for plant varieties is covered by Article 27.3 (b) of the Agreement which partly states the protection is to be provided “...either by patents, or by an effective sui generis system or by any combination thereof”. This means that the range of options is unlimited, provided some requirements are met. This also means that WTO member states, including
Tanzania are allowed to develop legislation that takes into account its unique features. Furthermore Article 27.3 (b) of the Agreement states that members may exclude from patentability “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological processes. Thus, as presently written, the TRIPS Agreement would permit WTO members to decline to protect plant varieties using the patent method provided they protect such varieties with an effective sui generis plant variety protection system. There is no guidance or agreed formulation as to what constitutes ‘effective’, nor what a sui generis system should entail at minimum. The International Seed Federation (ISF) recommends that countries envisaging the development of such sui generis systems ensure that as a minimum they conform to the requirements of the 1991 Act of the UPOV Convention,
Email: patrick.ngwediagi@kilimo.go.tz
Ministry of Agriculture Food Security and Cooperatives
Tel: +255 22 286420 Fax: +255 22 2861403
Email: psk@kilimo.go.tz Website: http: // www.kilimo.go.tz
Contents Acronyms
1 2 Acronyms Background and Justification for the Study Materials and Methods 2 3 3 3 4 5 Meaning and Importance of Intellectual Property Rights Plant Breeders' Rights, Farmers' Rights and Community Rights Plant Breeders' Rights Farmers' Rights Community Rights International Obligations for Tanzania OAU Model Law 3 5 7 TRIPS Agreements Convention on Biological Diversity (CBD) International Treaty on Plant Genetic Resources for Food and Agriculture (IT-PGRFA) UPOV Model and its Members 6 Establishment and Operationalization of Plant Breeders' Rights System Need for a Plant Breeders' Rights System PBR Legislation Institutional Framework 10 7 Plant Breeders Rights Development Fund Achievements and Challenges Participation of Stakeholders in the Administration of PBR Act Regional and International Collaboration Lessons Learnt and Recommendations 20 8 References 21 Acknowledgements 22 1. Background and Justification for the Study
2. Materials and Methods
3 The Concept and Importance of Intellectual Property Rights (IPRs)
3.1 The Importance of IPRs to the Agricultural Sector
Subject Patent Protection Plant Variety Protection Holder of Protection Inventor Plant Breeder Ease of making application Requires involvement of patent specialists/lawyers User friendly; breeder can make the application. Object of protection (Industrial) invention Plant Variety Documentary examination Required Required Field examination Not required Required Plant material for testing Not required Required Conditions for grant of rights a) Novelty b) Industrial applicability c) Non-obviousness (inventive step) d) Enabling disclosure a) Novelty b) Distinctness c) Uniformity d) Stability e) Appropriate denomination Determination of scope of protection Determined by the claims of the patent Fixed by the national legislation (by UPOV Convention in the case of UPOV member States) Use of a protected variety for breeding further varieties May require the authorization of the patentee. Does not require authorization of the right holder. Term of protection 20 years from date of application (as per TRIPS Agreement) 25 yrs for trees and vines, 20 yrs for other plants, from date of grant (1991 Convention) 4. Plant Breeders’ Rights, Farmers Rights and Community Rights
4.1 Plant Breeders Rights
4.2 Farmers’ Rights
4.3 Community Rights
5. International Obligations for Tanzania
5.1 OAU Model Law
5.2 TRIPS Agreement