The new Plant Breeders’ Rights Act, 2018 (Act 12 of 2018) marks a significant shift in how intellectual property is managed in South African agriculture. While it brings the country in line with international conventions and promises to drive innovation, its impact on commercial farming practices – especially where the saving of seed is concerned – will likely spark further debate. Ensuring that small-scale producers remain protected while also encouraging private-sector breeding will be key to the Act’s long-term success.

Years in the making

After several years of deliberation, the National Department of Agriculture (NDA) announced  in June that the new Act had officially commenced. President Cyril Ramaphosa signed the proclamation following the approval of the regulations by minister of agriculture, John Steenhuisen. The Act replaces the Plant Breeders’ Rights Act, 1976 (Act 15 of 1976).

Revisions in the new Act include the following:

•   Streamlined administrative processes.

•   Scope of plants eligible for protection extended to all genera and species.

•   Periods of protection revised to up to 30 years in the case of fruit trees, vines, sugar cane, and potatoes, and 25 years for all other crops.

•   Categories of producers, crops, and quantities in relation to farm-saved seed defined.

•   The establishment of an advisory committee, including representation from a wide range of stakeholders such as breeders, producers, and intellectual property law specialists.

Rights for innovation

The NDA added that this Act will contribute to the South African government’s objectives and priorities by promoting innovation in plant breeding and agriculture. Through the protection

of new plant varieties, the Act plays a vital role in enhancing food security, increasing agricultural productivity,  and supporting rural development.  Additionally, the new Act will encourage  investment in plant breeding, foster job creation, and support economic development.

The publication of the Act was welcomed by the country’s seed breeders. Dr Mieke Human, science and policy manager at the South African National Seed Organisation (Sansor) said: “South Africa has a long history of variety protection.  This has resulted in producers having excellent choices when deciding which crops and cultivars to plant.

“The new Act positions South Africa very well internationally and continues to support innovation. Intellectual property protection  is the foundation from which innovation becomes possible. The seed industry in South Africa has been able to grow because of the variety protection put in place by the NDA.”

Balancing act: Small scale vs commercial

Dave Cochrane, a partner at leading African intellectual property law firm, Spoor & Fisher, said the updated legislation strengthens protection for plant breeders and encourages agricultural innovation  while also balancing the rights of subsistence, vulnerable, and small-scale producers. “This law supports South Africa’s producers and plant breeders by protecting investment in new and improved plant varieties. It also  ensures that South Africa complies with the international UPOV 1991 Convention, promoting innovation and trade in the agricultural sector.”

According to Cochrane, a few changes introduced by the new Act that users must take note of, include:

•   Stronger protection for plant breeders: The term of protection for registered plant varieties has been extended to 30 years for certain crops such as fruit trees, vines, sugarcane, and potatoes, and 25 years for all other crops.

•   Limits on commercial use of protected seeds: The ‘farmer’s privilege’ – which allows producers to save and use seeds from protected plants – now only applies to smallholder, subsistence, and vulnerable household farmers. Larger commercial producers must now obtain permission and pay royalties to breeders when saving seed from protected varieties.

•   Criminal penalties for infringement: Unlawfully using protected plant varieties is now a criminal offence, with penalties including fines, imprisonment for up to ten years, or both.

•   Sole rights period extended: The Act increases the period during which breeders have exclusive rights to their variety – up to eight years for specific crops such as fruit trees and sugarcane, and five years for others. 

 By Susan Marais, Plaas Media for Agbiz Grain