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02.09.2015 Feature Article

Plant Breeders’ Rights Bill Of Ghana: What You Are Not Told

Plant Breeders Rights Bill Of Ghana: What You Are Not Told
02.09.2015 LISTEN

Plant Breeders’ Rights is one of the links in the plant variety development chain and an important tool for governments to support agricultural development and food security. Unfortunately, the Plant Breeders’ Right Bill (PBB) of Ghana is one of the bills that has suffered vicious attacks especially from civil society organizations (CSOs). In my personal view, this may be due to lack of adequate and accurate information on the PBB in the public domain.

This article seeks to correct some erroneous impression created by some CSOs on the Bill as part of my awareness raising campaigns and public education on the PBB.

First and foremost, a Plant Breeders’ Right is an intellectual (private) property right of Plant Breeders like other private rights such as copyrights for Artistes (Musicians, Performers, Song writers etc.), patents for inventors, trademarks/trade names for Business and Enterprise to distinguish their products from that of others. It is natural and economically justifiable that people who invest time, energy, capital and intellect in developing a product, invention, creation, plant variety, which in various ways enhance livelihoods of mankind be given reasonable compensation for these efforts. It also serves as a motivation to improve on what has been created or developed to address future challenges of man.

The plant breeders’ right is not different. Plant breeders invest heavily in plant breeding activities to develop new plant varieties that possess characteristics needed to address numerous challenges of agriculture, particularly addressing the challenge of population growth and food demand in the face of climate change. The ultimate aim of the PBB of Ghana is to ‘establish a legal framework to protect the rights of plant breeders of NEW varieties of plants or plant groupings and to promote the breeding of NEW varieties of plants aimed at improving the quantity, quality, cost of food, fuel, fibre and raw materials for industry’.

These newly developed and improved plant/crop varieties have the potential of increasing farmers’ productivity and incomes as well as increasing foreign earnings of the country through exports (ornamentals, fruits and vegetables). Thus, the passage of the PBB of Ghana is hugely supported by local plant breeders and national research institutions contrary to views expressed by some CSOs. In fact, with the drastic decline of public investments in agricultural research, particularly planting breeding, an adoption of a PBB will serve as an incentive to encourage private sector participation in crop development for food security.

To address some specific claims made by various CSOs, it is absolutely inaccurate that plant breeders could just take some seeds from Ghana or anywhere in the world, use traditional or genetic engineering to transfer it into a new variety and acquire a right to register it under PATENT law as his or hers and control its use. The truth is that Section 2 of the Patent Act, 2003 (Act 657) of Ghana states categorically matters that are excluded from patent protection. Section 2 excludes (e) plants and animals other than micro-organisms and (g) plant varieties from patent protection.

This means no person, Ghanaian breeder or foreign breeder can protect a plant variety under Patent Law and control it as claimed. In fact, the interest of any Plant Breeder is to see his/her newly developed variety adopted and used by farmers. Again, most often people who oppose the protection of plant varieties under a very liberal system like the UPOV sui generis try to link genetic engineering technologies like ‘Terminator gene’, which was not commercialized to PBB. The truth is that the ‘terminator gene’ technology was never commercialized and does not have any link to hybrid seeds. The reason why farmers who use hybrid seeds are advised to always buy new seeds is that, hybrid seeds naturally loose vigour (low yield) after first and second planting of the same seed and this does not mean, it has in it ‘terminator gene’. This claim is indeed a fallacy. There is also a deliberate attempt to link the PBB and GMO issues.

The PBB seeks to protect newly developed crop varieties either GM or conventionally developed seeds/planting materials. Moreover, there exist a clause in the PBB that can prevent the commercialization of a GM crop seed if the country so desire and the Biosafety Act, 2011 (Act 831) addresses such issues. Clause 23 (of Ghana’s PBB) states that “A plant breeder right shall be independent of any measure taken by the Republic to regulate within Ghana the production, certification and marketing of material of a variety or the importation or exportation of the material.”

This simply means, the fact that a plant breeder has been given a right to a newly developed variety does not automatically guarantee him/her the right to commercialize, produce or market the seed/plant material of that crop/plant in Ghana. If there exist other laws that does not allow the commercialization, production or marketing of that variety, even though the plant breeder has a right (because the variety met the criteria of being Novel (New), Distinct from other varieties, Uniform, and Stable), he cannot exercise his/her right in Ghana.

One other misconception consistently spewed by some CSOs is that PBB will stop or prevent farmers from planting their own crop varieties. On the contrary, the UPOV system or PBB only protects NEWLY developed crop/plant varieties. That means farmers whether small or commercial still have the choice of growing their own local varieties or landraces if they so desire. They can also exchange and save seeds of these local materials which are not protected under a PBB. Even under the UPOV system/PBB of Ghana, there is a farmers’ privilege concept created therein, where smallholder farmers can save seeds of a protected crop variety to plant on his/her own farm of about 5ha in size (ARIPO Protocol).

Moreover, under this system, there is also the Breeders’ exception clause, which allows local plant breeders to use protected foreign varieties for breeding locally adapted crop varieties for local farmers, without the need to seek authorization from the foreign breeder. Thus local breeders will have access to foreign varieties and technologies.

Farmers equally will have access to more crop varieties to choose from including their own local materials. I hope this piece has improved your understanding on the Plant Breeders’ Rights Bill. Our food and seed security is more ensured under this system, Lets support it.

Hillary Mireku Bortey
Research Scientist (Seed Technologist) & MIP Graduate [email protected]

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