PLANT BREEDER’S RIGHTS ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
ADMINISTRATION

   3.   Designation of plant variety protection authority

   4.   Functions of Institute

   5.   Registrar of Institute

PART III
PLANT BREEDER’S RIGHTS

   6.   Protection of plant breeder’s rights

   7.   Rights of plant breeder

   8.   Exemptions to rights of breeder

   9.   Nature of plant breeder’s rights

   10.   Assignment of plant breeder’s rights

   11.   Duration of plant breeder’s rights

   12.   Restrictions to plant breeder’s right

   13.   Exhaustion of plant breeder’s rights

PART IV
REGISTRATION OF PLANT BREEDER’S RIGHTS

   14.   Application for plant breeder’s rights

   15.   Plant variety denomination

   16.   Priority of application

   17.   Priority dates arising from foreign application

   18.   Acceptance or rejection of application

   19.   Amendment of application

   20.   Withdrawal of application

   21.   Publication of notice

   22.   Objection to application for plant breeder’s right

   23.   Hearing of objection

   24.   Inspection of application and objection

   25.   Plant variety trials

   26.   Uniformity testing and assessment procedures

   27.   Characteristics of plant varieties originating from outside Zambia

   28.   Provisional protection

   29.   Registrable plant varieties

   30.   Grant of plant breeder’s rights

   31.   Joint holders rights

   32.   Genera and species to be protected

   33.   Register

   34.   Publication of grant of plant breeder’s right

   35.   Payment of annual fee

   36.   Effect of grant on certain persons

   37.   Plant genetic resource centres

   38.   Supply of propagating material

   39.   Infringement of right

   40.   Revocation of plant breeder’s right

   41.   Surrender of plant breeder’s right

   42.   Transfer of plant breeder’s rights

PART V
LICENSES

   43.   Licensing of plant breeder’s right

   44.   Application for compulsory license

   45.   Grant of compulsory license

   46.   Royalty

   47.   Condition of license

   48.   Duration of compulsory license

   49.   License not transferable

   50.   Revocation of compulsory license

   51.   Surrender of license

   52.   Publication, grant, renewal, etc

   53.   Appeals against decision of Registrar or Institute

PART VI
APPEALS

   54.   Appeals Board

PART VII
GENERAL

   55.   Offences and penalties

   56.   Regulations

AN ACT

to provide for the protection of plant breeder’s rights; the registration of plant varieties; and for matters connected with or incidental to the foregoing.

[31st August, 2007]

Act 18 of 2007.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Plant Breeder’s Rights Act.

2.   Interpretation

In this Act, unless the context otherwise requires—

“Appeals Board” means the Appeals Board established under section 55;

“assignee” in relation to a variety, means a person who has derived a title to the variety, directly or indirectly, from a breeder or owner thereof, or the legal representative of that person;

“breeder” in relation to a protected variety means—

      (a)   the person who or organisation which has bred, discovered and developed the plant variety;

      (b)   the employer of the person referred to in paragraph (a) if that person is an employee whose duties are such that the variety was bred, discovered and developed in the performance of the employee’s duties; or

      (c)   the successor in title of the person referred to in paragraph (a) or the employer referred to in paragraph (b);

“denomination” means the name of a variety in relation to an approved variety;

“derivative” means a product developed or extracted from a plant genetic resource;

“essential characteristics” in relation to a plant variety, means heritable traits that are determined by the expression of one or more genes, or other heritable determinants, that contribute to the principal feature, performance or value of the variety;

“farmer” means—

      (a)   any person who cultivates crops for subsistence or commercial purposes, directly or through another person; or

      (b)   any person who conserves or reserves, severally or jointly with any person, any wild species or traditional variety or adds value to any wild species or traditional variety through the selection or identification of their useful properties;

“genera” means any small group of plants which have in common many fundamental features;

“genetic material” means any material of plant, animal, microbial or other origin containing functional units of heredity;

“genetic resource” means any genetic material of actual or potential value;

“genotype” means the combination of genes that a plant possesses;

“grantee” in relation to a plant breeder’s right in a plant variety means—

      (a)   the person currently entered on the Register as the holder of the right in the variety; and

      (b)   where the plant variety is declared to be an essentially derived variety of another plant variety, the person currently on the Register as the holder of the right in relation to that other variety;

“holder” in relation to a plant breeder’s right means a person to whom a right has been granted in terms of section 30;

“Institute” means the Seed Control and Certification Institute;

“kind” in relation to a plant, means a related species, sub-species or variety of any plant which is known by a common name;

“license” means a license issued under Part V of this Act;

“National Biosafety Authority” means the National Biosafety Authority established under the Biosafety Act, 2007;

“owner” in relation to a variety, includes any person having for the time being the possession of that variety;

“plant” includes any fungi and algae but does not include any bacteria, bacteroid, mycoplasma, virus, viroid or bacteriophage;

“plant breeder’s right” means a right granted in terms of section 7;

“plant genetic resource” means any material of plant origin and the reproductive propagating material that contains functional units of heredity of actual or potential value to food and agriculture;

“propagation” in relation to a living organism or its components, means the growth, culture or multiplication of that organism or component whether by sexual or asexual means;

“propagating material” in relation to a plant of a particular plant variety, means any part or product from which, whether alone or in combination with other parts or products of that plant, another plant with the same essential characteristics can be produced;

“protected variety” means a variety in respect of which a grant of a plant breeders’ right is made;

“Registrar” means the Registrar of the Institute appointed under section 5;

“royalty” means the amount of money, in Kwacha equivalent, payable for the utilisation of a plant breeder’s right;

“seed” means the part of a plant, customarily referred to as a seed, intended for planting and includes a seed potato;

“sell” includes to exchange, barter, offer, hire, advertise, keep, expose, transmit, convey or deliver for or in pursuance of a commercial purpose;

“species” means a natural plant grouping that is capable of breeding within itself but does not interbreed with a member of another plant species;

“successor” means—

      (a)   in relation to a breeder of a plant variety, a person to whom the right of the breeder to make an application for a breeder’s right in the variety is assigned or transmitted by will or by operation of law; and

      (b)   in relation to a grantee of a plant breeder’s right, a person to whom the right has been assigned, or transmitted by will or by operation of law;

“taxonomy” means a classified group of plants; and

“variety” means a plant grouping that is contained within a single botanical taxon of the lowest known rank and that, irrespective of whether the conditions for the grant of a breeder’s right are fully met—

      (a)   can be defined by the expression of the characteristics resulting from the genotype or combination of genotypes;

      (b)   can be distinguished from another plant grouping by the expression of at least one of the characteristics; and

      (c)   can be considered as a functional unit because of its suitability for being propagated unchanged.

PART II
ADMINISTRATION

3.   Designation of plant variety protection authority

The Seed Control and Certification Institute within the Ministry responsible for agriculture is hereby designated as the plant variety protection authority and shall be responsible for the administration of this Act.

4.   Functions of Institute

The functions of the Institute are to—

      (a)   register plant varieties;

      (b)   promote and encourage the development of new plant varieties;

      (c)   protect the rights of plant breeders with respect to varieties of plants;

      (d)   document the characterisation of varieties;

      (e)   maintain catalogues of registered varieties of plants, seeds and germplasm;

      (f)   issue licenses in accordance with this Act;

      (g)   compile and maintain statistics with regard to plant varieties, seeds and germplasm; and

      (h)   do all such things connected with or incidental to the foregoing.

5.   Registrar of Institute

   (1) There shall be a Registrar of the Institute who shall be a public officer and who shall be responsible for the carrying out of the provisions of this Act.

   (2) There shall be a Deputy Registrar who shall be a public officer and who shall exercise such functions and duties as are delegated to the Deputy Registrar by the Registrar.

PART III
PLANT BREEDER’S RIGHTS

6.   Protection of plant breeder’s

The Institute shall recognise and protect the plant breeder’s rights enumerated under this Part.

7.   Rights of plant breeder

   (1) A plant breeder’s right in respect of a plant variety is the exclusive right, subject to the other provisions of this Act, to do, or to license another person to do, any of the following acts in relation to propagating material of the variety—

      (a)   produce or reproduce the material;

      (b)   condition the material for the purpose of propagation;

      (c)   offer the material for sale;

      (d)   sell the material;

      (e)   import the material;

      (f)   export the material; or

      (g)   stock the material for any purposes described in paragraphs (a) to (f).

   (2) The provisions of sub-section (1) shall apply to—

      (a)   any variety which is essentially derived from the protected variety, where the protected variety is not in itself an essentially derived variety;

      (b)   any variety that is not clearly distinguishable from the initial variety;

      (c)   any variety that cannot be reproduced except by the repeated use of the initial variety or of a variety referred to under paragraph (b).

   (3) A variety shall be deemed to be essentially derived from another variety if—

      (a)   it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of the genotypes of the initial variety;

      (b)   it does not exhibit any important features that differentiate it from that other variety;

      (c)   it is clearly distinguishable from the initial variety; and

      (d)   except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.

   (4) An essentially derived variety may be obtained by the selection of a natural or induced mutant or of a somaclonal vanant, the selection of any variant individual from any plant of the initial variety, back crossing, or transformation by genetic engineering.

8.   Exemptions to rights of breeder

   (1) Notwithstanding the existence of a plant breeder’s rights in respect of a plant variety, any person or farmer may—

      (a)   propagate, grow and use any plant of the variety for purposes other than commerce;

      (b)   sell any plant or propagating material of the variety as food or for another use that does not involve the growing of the plant or the propagation of that variety;

      (c)   sell within a farm or any other place at which any plant of the variety are grown, any plant or propagating material of the variety at that place;

      (d)   use any plant or propagating material of the variety as an initial source of variation for the purposes of developing another new plant variety except where the person makes repeated use of the plant or propagating material of the first mentioned variety for the commercial production of another variety;

      (e)   sprout the protected variety as food for home consumption or for the market;

      (f)   use the protected variety for further breeding, research or teaching; and

      (g)   obtain, with the conditions of utilisation, the protected variety from a gene bank or plant genetic resource centre.

   (2) A farmer may save, exchange or use pal of the seed from the first crop of a plant which the fanner has grown for sowing in the fanner’s farm to produce a second and subsequent crop.

   (3) Any act done in relation to a plant variety covered by a plant breeder’s right that is done for any of the following purposes does not infringe any plant breeder’s right—

      (a)   privately and for a non-commercial purpose;

      (b)   for any experimental purpose; or

      (c)   for the purpose of breeding another variety.

9.   Nature of plant breeder’s rights

   (1) A plant breeder’s right is personal property and. subject to any conditions imposed under this Act, is capable of assignment or of transmission by will or by operation of law.

   (2) An assignment of a plant breeder’s right does not have effect unless it is in writing, signed by or on behalf of the assignor.

   (3) If a grantee of a plant breeder’s right in a plant variety gives another person a license in that right, the license binds any successor in title to the interest of the grantee to the same extent as it bound the grantee.

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