Suggested alternative legislation

APBREBES, Berne Declaration, Norwegian Development Fund, SEARICE and Third World Network suggest alternative legislation and provide a tool to implement it.

Available alternative legislation

• The African Union has developed an African Model Law for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, which aims to achieve a balance between the protection of breeders and the preservation of local farmers’ rights in the interest of the sustainable use of biodiversity (see pdf file below).
• When India enacted the Protection of Plant Varieties and Farmers Rights Act in 2001, it protected plant varieties, while at the same time enabling farmers to save, resow, exchange and sell new plant varieties developed by farmers and breeders (see pdf file below).
• There are several other countries with national PVP legislation including articles on the scope of breeders' rights, on farmers' rights or benefit-sharing which are not in line with the UPOV 91 Act.

   

Some features of non-UPOV legislation

Farmers' rights: Under Indian law, farmers are entitled to -without paying license fees - save, exchange and sell seeds of protected varieties from their harvest, though not under the registered brand name.

Permission to use landraces: It acknowledges the role of rural communities as contributors to breeding landraces, which are essential for the creation of commercially valuable new varieties. Breeders who want to use landraces to create what is legally called an “essentially derived variety” (EDV) need the permission of the farmers affected.

Benefit-sharing: The Indian law has provisions for benefit-sharing when farmer varieties are used in breeding. A share of profits made from new varieties is required to be paid into the National Gene Fund. For this to happen, farmers’ landraces need to be registered. The Indian law allows any person, governmental or non-­governmental agency to register a community’s claim and have it recorded at an official centre.

Terminator ban: Indian law also prohibits breeders from using sterile seed technologies. Breeders have to submit an affidavit that their variety does not contain Genetic Use Restriction Technology (GURT or terminator technology).

Fee waiver: Farmers are exempt from paying fees if they wish to examine PBR-related documents and papers or receive copies of rules and decisions made by various authorities. Fees, however, are applicable to everyone else.

Prosecution waiver: Farmers cannot be prosecuted for infringement of rights specified in the Act if they can prove in court that they were unaware of the existence of that rule. For example, farmers are protected from punishment if they can prove that they only accidentally sold seed under a breeder’s registered name.

Disclosure of origin: Farmers’ rights are also protected in the so-called “passport data”, which people have to submit when applying for a breeders’ certificate. Passport data contain a host of information, including the parentage of the new variety and the names and locations of landraces used. Breeders certificates will be cancelled if such information is found faulty.

see also: Africa Biosafety Center (November 2012) Harmonisation of Africa’s seeds laws: a recipe for disaster