Misconceptions about the Plant Breeders’ Rights System

The debate is still on as to whether the Plant Breeders’ Rights Bill of Ghana as it stands now should be adopted and implemented. There has been various opinions and views shared on this issue. The reason for these very divergent opinions basically could stem from inadequate or lack of awareness and understanding of the spirit of the bill. This is my third paper on the Bill, after ‘Why Ghana must adopt the Plant Breeders’ Rights System and Plant Breeders Rights Bill of Ghana: What you are not told. This article in part seeks to clear some recent issues raised in the media concerning the Bill. Moreover, this article like the previous is part of my advocacy and awareness raising campaigns regarding how intellectual property rights system if well integrated into our national policies can contribute significantly to our economic advancement. For now, my focus has been on plant variety protection system, which is my area of interest.

There abound empirical evidences around the globe both developed and developing countries on the contribution of plant breeders’ rights/Plant variety protection (PBR/PVP) system to the development of agriculture. A recent study by Bortey and Mpanju (2015) and published in Journal of Intellectual Property Rights, revealed how countries like Kenya, South Africa and Tanzania have seen improvements in their agricultural sector following the adoption and implementation of the PBRs system. Of course, there are other factors that cannot be overlooked in these achievements. That notwithstanding, the role of PVP/PBR cannot be ruled out. Unfortunately, Ghana is yet to pass its Plant Breeders’ Right Bill into Law. The delay in its passage is due to myriads of misconceptions been churn out by Civil Society Organizations and some media outlets.

Misconception # 1
Unlike, patent (inventions), the Plant breeder’s interest in seeking protection over their varieties is to make sure their varieties are adopted and cultivated by farmers/growers. That is how he/she benefits from such protection and not to exclude others from its use as claimed. In this way, the PVP system is different from other industrial property rights such as patents for inventions, where companies can acquire patents for certain technologies they don’t intend to use as a strategy to keep their competitors out of market. In anyways, there is a provision available to governments or any person so interested to be issued a compulsory license, should a right holder decides to hold onto a variety, without allowing others to use it (3 years after grant). If licensing is used as a route to transfer the technology (variety), research institutes (public or private) usually insert a clause that will render the agreement null and void should the Licensee fails to commercialize the licensed variety within a certain agreed time period.

Misconception # 2
Again, people’s scepticism as to whether PBR Bill will favour foreign breeders against their local counterparts may either stem from lack of or inadequate understanding of the system. In fact, currently, the nature of plant breeding and variety development in Ghana and most part of Africa depends largely on germplasm/variety transfer between foreign and local national research institutions. Sometimes, these technologies even come in a state that may require no further development but are evaluated only for adaptability and release to farmers. With the current dynamics regarding IPRs regimes in most developed countries, the trend of free plant germplasm exchange may come with stringent clauses. Thus to ensure this system of exchange of germplasm and valuable technologies continue, countries are been encouraged to have systems in place that assures donors and guarantee the safety of their exchanged material.

In Kenya for instance, a French bean researcher working at Moi University developed a new successful commercial variety which was named “Line 10” on the basis of a variety “Amy” introduced from the Netherlands. This demonstrates how a new protected variety can then be used to enhance domestic breeding programs. Of course, it should be noted that this is not just a one-way street. Dutch breeders are also able to use Kenyan varieties for breeding, perhaps in order to develop their own improved varieties for the Kenyan market. Nationally, our research institutions have been able to developed most of its crop varieties through these collaborations. However, as indicated earlier, the dynamics are changing hence the need to put in place legal systems like PBR, will create a transparent and conducive environment for both foreign and local breeders to improve crop development and by extension food security.

Misconception # 3
“Farmers cannot have access to plant varieties because the PBR system will be patented by certain Multinational Seed Companies.” Absolutely false! It must be made clear that certain aspects of the PVP system is different from other industrial property rights such as patents, industrial designs, trademarks etc. thus, it is referred to as a sui generis, “of its own kind.” People should not confuse the technology transfer as related to industrial property like inventions (patent, utility models) with PVP. The main technology under PVP/PBR is the New/Improved Crop Variety. Of course in some jurisdictions where plant parts (e.g. genes) are patented, there could be concerns in cases where a patented gene is used in developing a variety (technology). Thankfully, both the PBRs Bill and Patents Act of Ghana (ACT 637) do not ‘patent’ Plant varieties. Section 2 of the Patents Act (ACT 637) excludes (e) plants and animals other than micro-organisms; (f) biological processes for the protection of plants and animals other than non-biological and micro-biological processes; and (g) plant varieties from patenting. If a farmer refines a variety and it meets the criteria for PBRs protection, he/she can apply and obtain a right on the same. In cases where the new variety was improved/refined by the local breeder by using a ‘substantial’ part of an already protected variety, which is technically referred to as Essentially Derived Variety (EDV), then it is morally prudent to seek authorization of the original owner/breeder. This authorization is required only if the new breeder wants to commercialize the new variety (EDV). However, if the intention is for research, private or non-commercial use, then no authorization from the original owner is required.

Misconception # 4
Furthermore, concerns have been raised to the effect that foreign companies are likely to register their varieties easier and faster than their local counterparts cannot be true. Practically, the process of registration of a variety as laid down in the PBR Bill as it pertains in other jurisdictions is transparent and fair to all parties. In fact, the criteria for accepting or granting a PBR do not lie in the speed with which you send materials for registration and apply for protection. Unlike patents, the criterion of Novelty (NEW) in PBR is not the case that your variety is not known to anyone but the Breeder (it is impossible due to how a variety is developed) prior to the application for protection. It rather connotes; the Breeder applying for right on that variety has not commercially exploited (sold) himself or with his consent that variety in (a) Ghana, earlier than one year before the date of filing the application or (b) in a foreign country, earlier than (i) 4 years or (ii) 6 years for tree and vines. That means both foreign and local breeders all have equal opportunity to seek protection for their developed varieties. The variety must just meet the four criteria of being New, Distinct, Uniform and Stable.

The scientific community in the past has not been successful in commercializing their technologies; however, there is a paradigm shift. The Council for Scientific and Industrial Research (CSIR) for instance is in the process of developing an IP Policy to push its commercialization drive and encourage more local plant breeding activities by giving incentives to its plant breeders. That is the new way of sustaining public agricultural research institutions especially those involved in plant breeding/crop development and we must back it.

Concluding remarks
It is surprising, however, that we on one hand want to ensure food security, increase productivity of farmers but do not want farmers to invest in their farming business (esp. buying seeds of improved varieties). In fact, the cost of seed to the total cost of crop production is infinitesimal. The cost of fertilizers and chemicals purchased by farmers could be 200% times higher than the cost of the needed quantity of seed to be used on the same area of production. Several evidence abound that the use of good quality seed of improved crop varieties alone, without the other components like fertilizer etc. has the potential of increasing yields 20-30%. NGOs and CSOs must encourage our farmers to adopt and use improved crop varieties which are on the market to increase their productivity, income and livelihoods. The PBR Bill in no way seeks to prevent farmers’ access to their seeds; it rather provides farmers with an array of improved crop varieties for planting. PBR Bill only seeks to protect NEWLY developed crop varieties; the royalties to be paid by seed companies to Breeders are just a token to say “thank you” for giving us higher yields and income. Farmers can afford and willing to buy if they only have access, let’s encourage systems that promote crop variety development and make these varieties accessible to farmers/growers. Let our farmers see farming as business and as such invest in it to grow. It is possible, others around the sub-region are doing it and “our farmers can.”

Lastly, we are all seeking for the interest of Ghana. Remember, local Plant Breeders, Seed producers or companies and farmers are all Ghanaians. We all need each other (developed and developing countries) to develop our economies. In the end, it is development in the atmosphere of transparency, fairness and equity we seek. Let’s support the passage of the Plant Breeder’s Rights Bill of Ghana!

Respectfully submitted,
Hillary Mireku Bortey (Mr.)
Research Scientist &
Intellectual Property Rights Advocate