Ethiopia: New legislation for plant breeders’ rights
The Plant Breeders’ Rights Proclamation, No. 1068/2017, has been published. This proclamation sets out the substantive aspects of the protection that will exist for Plant Breeders’ Rights (PBRs). The procedural aspects still need to be finalised.
The proclamation covers various issues, including:
Application: The Proclamation will apply to all genera and species of plants throughout the country, with the exception of those excluded by directives issued by the Ministry of Agriculture and Natural Resources.
Criteria for protection: The criteria are distinctness, uniformity, stability and novelty - there are less stringent requirements for farmers’ or pastoral community’ varieties (a defined term). The Ministry can recognise distinctness, uniformity and stability obtained for the particular variety in other countries with equivalent testing procedures. The Ministry may also allow registration of PBRs already registered abroad if it is deemed to be in Ethiopia’s national interest, with the duration then being limited to that of the first registration.
Scope: Registration of a PBR entails the exclusive right to sell or permit others to sell, or to produce or permit others to produce, the protected seed or propagating material. The right further extends to the following: essentially-derived varieties of a protected variety; varieties that are not clearly distinguishable from the protected variety; and varieties whose production required repeated use of the protected variety.
Farmers’ or pastoral communities’ rights: There are exemptions regarding the non-commercial storing, use and exchange of protected varieties by small-holder farmers and pastoral communities.
Public interest restrictions: The Ministry can impose restrictions on PBRs where demand is not met, or where the exercise of the right adversely affects food supplies or public health. In cases like this notification is to be given and compensation is to be paid. Such restrictions must be lifted when the conditions improve.
Compulsory licensing: There are provisions for compulsory licensing in the public interest and in cases where the holder of the right is not producing and selling the seed in sufficient quantities. Remuneration must be determined and the order can be cancelled on good cause.
Duration: A PBR lasts 20 years from grant in the case of annual crops, and 25 years in the case of trees, vines and other perennial plants.
Eligibility: Ethiopians or foreigners can apply for PBRs for new plant varieties that are either bred locally or abroad. There is provision for joint ownership. In the case of a farmers’ or pastoral communities’ variety any person representing the community can apply. Ethiopia has a first-to-file system.
Variety denominations: Variety denominations must not be similar to others or cause confusion. Anyone who sells seed of a protected variety on a commercial scale must use the denomination, and this must be clear and distinguishable.
Administrative / Procedural aspects: The Ministry will be responsible for registration; registration will commence with a written application (details to be announced later); the registration process will involve a sworn statement relating to origin or source of the genetic resources, lawful acquisition of the seed, and compliance with an Ethiopian bio-safety law; there will be a preliminary determination within 14 days; there will be publication for opposition purposes; there will be a requirement to deposit samples; there will be a requirement to maintain the essential characteristics of the variety.
Transfer and revocation: Transfer of PBRs will be possible and recordal will be required; revocation will be possible on various grounds.
Infringement: Any act for which the authorisation of the holder is required and done without that authority will be an infringement; complaints of infringement must be lodged at the Ministry, but these can be moved up to a court if the Ministry does not respond within 30 days; a court can issue an injunction and damages; there will also be criminal liability for infringement.
Repeal: The proclamation repeals Proclamation No. 481/2006 on Plant Breeders’ Rights.
The next step is for the procedural aspects of the registration process to be finalised.
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