Food, Agriculture and Natural Resources Policy Analysis Network (FANRPAN) Food, Agriculture and Natural Resources Policy Analysis Network (FANRPAN)

FANRPAN Economic Policy Research Study on status of plant variety protection in the SADC region
Country reports for South Africa, Angola, Malawi, Mozambique, Zambia and Zimbabwe

(Senior Partner, Agricultural Biotechnologies, FoodNCropBio)
10 November 2005
Wynand J van der Walt

Executive summary

This study into plant variety protection systems in target SADC countries, commissioned by FANRPAN, has as basic objective to establish an overview of status of legal protection of ownership of plant varieties, and experience, benefits and deficiencies in these systems. It was also attempted to quantify impact of adoption or non-adoption of plant variety protection systems.This review will serve as discussion document to develop policy proposals for SADC member states to comply with WTO-TRIPS and to find ways to assist members in the process.

The approach was to access regional and international documents, and to obtain update information by way of personal interviews and visits to relevant parties in South Africa, Malawi, Zambia, Zimbabwe and Mozambique. Information on Angola was sourced by way of e-mails. South Africa has had patent and trade mark legislation for a long time, and became UPOV member in 1978, and has also made extensive use of contracts and licensing. Also, it was easier to source South African information as the author has extensive personal contacts that provided collaboration, while government information could be obtained from websites. Therefore, much of the statistical contents of this review relates to South Africa.

The focus of the study was on plant breedersí rights but opportunities in patents, trade marks, contacts/licensing and geographic indications are also covered.. New plant varieties are eligible for intellectual property protection under plant breedersí rights provided in the UPOV convention, while protection also is available for patents on processes and products that involve innovative steps that are not natural biological processes. A plant variety per se is not patentable, but micro-organisms are eligible. Trade marks can be applied for special traits associated with plants, but such marks cannot be used as variety names. Contracts and licensing agreements are often used to allocate rights for production and marketing of varieties exclusively to one or a few parties. The potential for using geographic indications for varieties and their products having special values associated with their geographic origins, has as yet not been exploited. New attention is being focused at national and international levels on protection of land races and farmer varieties, as well as indigenous community knowledge associated with plants.

Several SADC countries have made use of contract production for cut flower exports, and of licensing agreements for national production and marketing of varieties. South Africa has made extensive use of PBR, trade marks on a few plant species, and patents on modern plant biotechnology. The system for licensing agreements for testing, seed production and marketing has been successfully used for public varieties released by the Agricultural Research Council. Seed varieties have been licensed via SANSOR and deciduous fruit trees through SAPO, while other species were handled directly or through nurseries and producer associations. Use of geographic indications and beneficiation on indigenous food crops remain unexploited in SADC. There is a growing awareness that public institutions also need to adopt IPR systems in order to add value to their research, control market introduction, maintain genetic integrity, and generate funds through royalties. Presently, public institutions make some use of material transfer agreements.

One objective of IPR studies of this nature is to evaluate the quantifiable impact that IP protection has had. All such previous studies had some difficulty to separate the effect of several factors, namely, a conducive government policy and regulatory framework for plant variety introduction, access to international germplasm, the opportunity to breed or introduce new varieties of OPs to extend product range of an enterprise, domestic or international market opportunities for varieties having specific traits, size of the agricultural industry, and availability and effectiveness of legal protection for breeders of new varieties. In SADC only Zimbabwe and South Africa have had long experience with PBR, which limits comparisons.

Botswana, Lesotho, and Swaziland, all having no PBR legislation or drafts, have between 2 and five active seed companies, from zero to 45 varieties on official lists, no plant breeding companies, and only Swaziland having five parties doing field trials.

Angola and Namibia have started with a first PBR draft and have four and five seed companies, respectively, 7 to 40 varieties on lists, only government doing breeding, while only Angola has some 6 parties doing trials.

Angola and Namibia have started with a first PBR draft and have four and five seed companies, respectively, 7 to 40 varieties on lists, only government doing breeding, while only Angola has some 6 parties doing trials.

Only Zimbabwe and South Africa have had PBR since the mid 1960s and varieties with PBR are some 50 in Zimbabwe and 1807 in South Africa. Number of active seed companies are 20 plus, listed varieties 214, breeding companies 11 parties, in Zimbabwe, while South Africa has 65 active companies, 1978 PBR varieties, and 22 companies, over 4 universities and 9 public institutions involved in plant breeding. An estimated total of 300 plus varieties are available to Zimbabwean farmers and 3500 plus to South Africans. Zimbabwe has a major seed industry, while the South African industry has a turnover of over $334 per year, the biggest in Africa. The latter includes exports worth about $80 million.

Many of the 3500 South African varieties are on official variety lists, while others are on industry lists, or unlisted. Since 1978 plant breedersí rights on new varieties have continued to grow and stood at 1807 varieties by end 2004. Some 39 per cent of these belong to South African private and public breeding institutions. Per crop group these PBRs number 236 varieties for 17 species of vegetables, 774 for 67 ornamental/flower species, 244 for 28 fruit species, 442 for 24 agronomic species, and 111 for 23 forage and pasture species.

Other PVP impacts that are not easy to quantify include:

Financial benefits: No data are available from country reports and feed-back, but some direct and indirect information is useful. Liberalization of seed industries lead to entry by private companies that have brought investment, as has happened in most SADC member states. The South African seed industry was driven by local companies and co-ops until the mid 1950s. Major foreign investment of tens of millions of dollars gained momentum during the last 15 years, bringing also advanced technologies and germplasm. IPR is an important pre-requisite for almost all companies before they invest.
Crop production efficiency: Plant breeding and access to improved varieties generally lead to increased yields per hectare. Average South African maize yields per hectare increase over five-fold, and wheat almost five-fold, from 1950 to 2005. Plant variety protection, though not quantifiable, strengthens investment in breeding.
Benefits for farmers: The farmer is generally the major beneficiary of improved varieties. In 1994 the added farmer benefit of increased South African maize yields due to breeding was estimated at $200 million per year. Locally bred peach, plum and apricot varieties protected under PBR contributed $160 to exports in 1993. The introduction of the protected Australian apple, Pink Lady, added direct profits of $10 million for farmers. In Zimbabwe, Zambia, Uganda and Kenya farmers benefit from export of cut flowers, all controlled under strict contracts. More opportunities can arise if protection is strengthened by PBR.
Export earnings: Most SADC countries can benefit from producing and exporting seed. Zambia has been exporting several thousand tons of seed in 2005, Zimbabwe has a long track record as a major exporter, and South Africa exported over 21 000 tons worth an estimated ZAR500 million ($80 million) in 2004. Most companies will not sell new varieties, or have seed produced, in countries where there is a danger of alienation of proprietary varieties. Biotech companies will not make available GM seed for testing or sales unless importing countries have biosafety systems and IPR in place. The potential for producing off-season seed for the northern hemisphere and for regional trade is substantial.

Although available data do not enable an adequate empirical analysis of the direct beneficial impact of plant variety protection systems, it is clear that PVR remains a major factor. The South African fruit industry is adamant that their multi-billion dollar exports are based on improved varieties and that access to these is underpinned by PVP. Breeders generally agree that PVP boosts investment in breeding. Seed companies interviewed have a policy that they will rarely make available seed of proprietary OP or self-pollinated varieties for testing and marketing in countries that do not provide protection. Therefore, even though breeding and marketing of new varieties require an enabling regulatory environment, it is the presence of efficient IPR that is a key factor in such development.

Recommendations can be summarized as follows:

  1. The message should be conveyed to senior policy makers and politicians that, although compliance with WTO-TRIPS requires an effective IPR legal system for plant varieties, it is in the interest of member states to protect their own innovations, plant genetic resources and community rights under legal systems, while improving access to new, improved varieties. Furthermore, that providing legal protection will stimulate further research, development and innovation, with concomitant benefits for the economy , while African varieties and indigenous food crops will remain be protected against piracy.

  2. While is it necessary to make provision for farmersí rights as required under the CBD, and for indigenous knowledge, these systems of protection rest on different legal bases and should be handled separately. At the same time one cannot strengthen one system of protection by weakening another. It should be acceptable that disclosure of use of farmer varieties, land races and indigenous knowledge in IP applications will strengthen benefit sharing.

  3. Requirements for production, certification and marketing are matters falling under seed trade regulation and management, and should not form part of requirements for IPR but can be handled separately.

  4. It is recommended that plant breedersí rights be modelled after the UPOV system as some 100 counties individually or as members of regional blocks such as OAPI and the EU that have adopted this model. There is no reason why SADC should develop systems that are at variance with those of the rest of the world.

  5. UPOV presents a global harmonized sui generis protection that dictates that convention members must extend the same protection to other members. It would be against this trend if SADC members develop PBR laws that are not harmonized regionally and internationally.

  6. Patent legislation should be modernized to include reference to plants and should harmonize with existing laws in most countries, while Trade Mark legislation should qualify that marks are eligible for protection, as long as such marks are not used as variety names.

  7. Provision for protection of land races, farmer selections and community/indigenous knowledge can only be implemented if documented and if plant selections are collected, described, catalogued, and maintained in gene banks. Where ownership is uncertain, government should act as custodian.

  8. It is proposed that a task team be established to collaborate with ARIPO in assisting national governments to expedite the legal process. At the same time such a task team can assist with capacity building in regulators, as well as public and private breeders. Ideally, ARIPO could be the regional secretariat to manage PBR, as in the case of OAPI. Especially important is the fact that a regional registrar (such as ARIPO) will significantly reduce UPOV membership fees impact for SADC.

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