A Synopsis of the Plant Variety Protection Act 2021

CONTRIBUTED LILIAN EKU

INTRODUCTION

The Nigerian agricultural sector has been described as a resilient one, which has, over the years, defied infrastructural neglect and inadequate regulation.^[1] Thus, it continues to be one of the major contributors to the economic growth of the nation apart from being the principal determinant of food security and the health and well-being of the nation as a whole. The importance of agriculture to human society is underscored by the fact of continual increase in human population making food demand higher than the available supply.^[2] Thus, agricultural innovation is needed to cater for the perpetual food demands of man. One important and innovative aspect of the sector is Plant Breeding. Plant Breeding is the ‘science of maximising plants’ positive genetic traits to produce desirable effects.’^[3] The existence of food varieties depends on the work of plant breeders.^[4] They work to develop new varieties which will concomitantly impact food safety and security. However, owing to the intricate, capital and labour-intensive nature of breeding, with some processes taking as much as 15 to 20 years, intellectual property protection is afforded as an incentive for their contribution to sustainable progress in agriculture, horticulture and forestry. Plant breeding is not novel in Nigeria. However, the existence of a legal and regulatory framework for the protection of the rights of breeders is relatively nascent. In 2021, Nigeria enacted the Plant Variety Protection Act to provide for the protection of plant varieties,z to encourage investment in plant breeding and crop variety development and to establish a plant variety protection office for the promotion of increased staple crop productivity for smallholder farmers in Nigeria, among others.^[5]

The principal objectives of the Act are the promotion of an increased staple crop productivity for smallholder farmers in Nigeria and encourage investment in plant breeding and crop variety development; the promotion of increased mutual accountability in the seed sector and the protection of new varieties of plants.^[6] This article will examine its salient provisions as well as its impact since its enactment.

ESTABLISHMENT, POWERS AND FUNCTIONS OF THE PLANT VARIETY PROTECTION OFFICE

Section 3 of the Act establishes the Plant Variety Protection Office with its domicile in the National Agricultural Seeds Council with powers to,

1. grant breeder’s rights;
2. maintain a register and provide information on plant breeders’ rights issued in Nigeria;
3. facilitate transfer and licensing of plant breeder’s rights;
4. collaborate with local and international bodies whose functions relate to plant breeders’ rights matters;
5. perform other functions as are necessary for the furtherance of the objects of this Act^[7]

The Registrar^[8] is mandated to maintain a breeders’ rights register, which is to contain the following:^[9]

1. The species and denomination of a variety;
2. The full name and address of an applicant or holder of a breeder’s right and the person who bred, discovered and developed the variety where different from the applicant or holder of the right;
3. The date and time of the commencement of the breeders’ right;
4. Such other information either required by the Act or other written law which may affect the validity or ownership of plant breeder’s rights or information required by any regulation made under the Act.^[10]

PROTECTION OF PLANT VARIETIES UNDER THE ACT

A breeder’s right is an intellectual property right or protection granted to a person who breeds, discovers, or develops new varieties of plants.^[11] The protection of varieties provided by the Act extends to all classes, species and forms of plants.^[12]

The right is statutorily granted in respect of a plant variety that is new, distinct, uniform and stable.^[13] These essential characteristics must all be ascertained at the time of the application for the grant. In considering these features, the Act provides salient guidelines and standards for their ascertainment.^[14]

When is a variety new?

A plant variety will be considered new where the proliferating material of the variety or its produce has not been sold or disposed of in any manner, by or with the consent of the breeder for exploitation purposes, either in Nigeria, more than a year before the filing of the application; or outside Nigeria earlier than four years (or six years in the case of a tree or vine).^[15] However, the novelty of a variety will not be considered lost, where the trial does not involve a sale or disposal for exploitative purposes or in the case of a sale or disposal, under any of the following circumstances:

1. Where the sale or disposal is shorn of the breeder’s consent;
2. A sale or disposal to a person who is a party to an agreement for the transfer of rights to the successor-in-title;
3. A sale or disposal to a party under an agreement for the multiplication of the variety’s propagating material on behalf of the breeder, provided that the proprietary interest reverts to the breeder and the result of the process is not used for the production of another variety;
4. A sale or disposal to a party under an agreement for the conduct of field tests, clinical and laboratory trials or small-scale processing for the evaluation of the variety;
5. A sale or disposal to a person in fulfilment, wholly or in part, of a statutory or administrative obligation relating to biological security or for adding varieties to an official list for commerce;
6. Where a product of the variety is sold or disposed, in any manner, for consumption purposes without the identification of the variety;
7. A sale or disposal to a person at or in consequence of an official exhibition.^[16]

Distinctness, uniformity and stability of a variety

A variety will be regarded as distinct if it can be explicitly distinguished from another variety, the existence of which is commonly known at the time of the filing of an application.^[17] In ascertaining common knowledge, recourse is to be had to the filing and grant of an application for either the grant of a breeder’s right or the inclusion of the variety in an official catalogue in any country.^[18]

A uniform variety is one, which is satisfactorily uniform and unvarying in all relevant features, and characteristics, subject to any variation as may be reasonably expected in the course of its propagation.^[19]

A stable variety is one whose peculiar features and properties are constant, undeviating and remain unchanged after series of proliferations or proliferation cycles.^[20]

APPLICATION FOR THE GRANT OF A BREEDER’S RIGHT

A breeder of a new plant variety may submit an application,^[21] for the grant of a breeder’s right, containing the following information:^[22]

1. The name and address of the applicant,
2. Where the applicant is a successor in title to the breeder, the proof of title and authority in the prescribed form and the name and address of the breeder;
3. The proposed denomination and description of the characteristics of the variety as may be required;
4. Samples of the propagating material in required quantities
5. Such other information or material as may be required by the Regulations.

PROTECTION AFFORDED BY THE GRANT OF A RIGHT.

The protection afforded under the Act may be provisional or final depending on the stage of the procedure for grant. Upon the publication of an application for grant by the registrar, an equitable interest inures to the applicant from any act over which the authorisation of the applicant would have been required if the right had been granted, as at the time the act was carried out.^[23] Moreover, as from the time of the grant of a breeder’s right, any use, production or reproduction, offering for sale, importation or exportation, conditioning for the purpose of propagation or any other dealing with a protected variety or its propagating material or product must be carried out with the consent of the breeder.^[24] The holder of the right is also at liberty to subject his consent and authorisation to terms, conditions and limitations, as he may legally desire. A person who violates a breeder’s right or the free exercise of same commits an offence under the Act and is liable to a fine of at least 1 million naira, or a prison term of at least one year in the case of a first offender, or at least 2 million naira, or a term of at least 2 years or both for subsequent offenders.^[25] It is however noteworthy that the exercise of this right must be timeous and a protected variety that is subject to these rights must not be an essentially derived variety.^[26] Nevertheless, the right does not extend to an act carried out for experimental, private and non-commercial purposes, or for breeding any other variety subject to the provisions of the Act.^[27] Moreover, with respect to certain crops, a breeder’s right does not extend to a farmer who, within reasonable limits and having regard to the legitimate interests of the holder as may be specified by the Regulations, uses the product of a harvest derived from his holding after planting the protected variety or its derivative.^[28] Furthermore, where a derivative of a protected variety has been sold or marketed in Nigeria by or with the breeder’s consent unless the act involves further propagation of the variety or export of its material for purposes other than final consumption.^[29]

EXPIRATION OF THE RIGHT.

The exercise of a breeder’s right, other than in respect of trees and vines, is to be for a period of 20 years extendable for another 5 years upon a notice to the Registrar 6 months before the expiration of the initial term. With regards to an exercise, in respect of trees and vines, a holder is entitled to 25 years, which is also extendable for 5 years upon a 6-month prior notice.^[30] The right granted by the Act is protected by civil and criminal measures provided by any written law in Nigeria and a suit may be brought against any person who infringes on a breeder’s right by the holder.^[31]

NULLITY, CANCELLATION AND SURRENDER OF RIGHT.

A right granted may be declared null if it is discovered that the variety does not comply with the essential features of the grant i.e. newness, distinctness at the time of the grant; or in a situation where the grant was based essentially on information and documents supplied by the applicant, it was discovered that the variety lacks uniformity and stability or the right is granted to a person not entitled to same.^[32]

A right may be cancelled where the uniformity and stability of a plant can no longer be fulfilled or ascertained, or where within the stipulated period a holder fails to provide information for the verification of the maintenance of the variety, fails to pay the prescribed fees for the retention of the right or fails to propose another denomination for the variety where the registered one is cancelled after the grant.^[33]

A notice of nullification or cancellation is to be sent to the holder accompanied with the grounds for the notification. A written objection to same may be sent within 30 days and a hearing may be held or the matter decided, within a reasonable period, based on submissions made by interested parties. A notice of nullification or cancellation will also be published in the federal gazette or two national dailies after 30 days from the date of cancellation or upon a decision made on any objection submitted and the certificate of grant is to be returned by the holder.^[34]

A holder of the right is also at liberty to surrender his right by a written notice to the Registrar and the right shall be terminated within one month of receipt and a notice of same published in the federal gazette or two national dailies.^[35] A holder of a right may authorise or assign the exercise of a right in relation to the protected variety to any person^[36] and the free exercise of the right under the Act is not to be restricted unless as otherwise provided by law or in matters of public interest.^[37] In case of a restriction and a third party is directed to do an act for which the authorisation of the breeder is required, equitable remuneration is to be given to him.^[38]

A person authorised by a breeder is to notify the registrar within 60 days from the effective date of such authorisation and in the case of an assignment or transmission of a breeder’s right, the recipient or assignee is to notify the registrar to make changes in the register.^[39]

IMPACT OF THE ACT ON THE AGRICULTURAL SECTOR

The Act is arguably, relatively new and its full implementation is still in the early stages. However, several benefits have been projected to inure from the effective implementation of same. Some of these benefits include increased innovation in the agrarian sector, enhanced investment, especially the private sector and foreign investment, which will concomitantly impact the nation’s economy, increased international trade and economic relationships improving the global competitiveness of Nigerian breeders, etc.^[40]

Nevertheless, a cursory look into the Nigerian society particularly the agricultural sector will reveal that the Act has influenced the sphere. It is undeniable that the Act has increased the level of awareness of the intellectual property protection afforded breeders of new plant varieties. Having generated discussions and public opinion in this wise, the Act will, unequivocally, stimulate investment and improve output in the sector.

Moreover, prior to the enactment of the Act, no legal or regulatory framework existed for plant breeder’s right protection in Nigeria. What is more, Nigeria was, at that time, not a signatory to the 1999 International Union for the Protection of New Varieties of Plant (UPOV) Convention, and the WTO’s TRIPS Agreement^[41] only enjoined members to protect plant varieties by patent or ‘an effective sui generis system’ or both.^[42] Thus, the Act provides a legal system, which motivates the development of new varieties leading to the development of superior plant varieties with high yield potentials.^[43]

In addition, in compliance with the provisions of the Act, a Plant Variety Protection Office domiciled within the National Agricultural Seeds Council has been established for the receipt and processing of applications for the grant of the right and other related duties.

However, several concerns have been raised in relation to the provisions of, and the implementation of the Act. First is the validity of the provisions of Section 43(2) of the Act, which purports to oust the jurisdiction of the Courts in deciding the validity of the decisions of the Registrar.^[44] Moreover, in determining the extent of the exercise of the right, the Act provides that with respect to certain crops, a breeder’s right does not extend to a farmer who, within reasonable limits and having regard to the legitimate interests of the holder as may be specified by the Regulations, uses the product of a harvest derived from his holding after planting the protected variety or its derivative.^[45] However, determining which derivative is which, may be a challenge in matters of evidence.

In addition, there is still a dearth of readily available information on the procedures and processes for the enforcement of the provisions of the Act. This has negatively impacted the surge of awareness of the benefits proffered by the Act.

It is also expected that relevant stakeholders be equipped with the necessary skill set to implement the provisions of the Act.

CONCLUSION

Three years down the line, the Act still struggles with effective implementation. Ironically, the success of its provisions hinges primarily on the monitored observance and fulfilment of the obligations imposed by the Act. It is thus, expected that the Act begins to receive the needed attention to foster a robust economy for the nation. Public awareness crusades need to increase to enable industry players to understand their rights, duties and obligations under the Act.

1. Ifeanyi E. Okonkwo, Blessing Udo and Kayode Ikumelo, Overview of Nigeria’s Plant Variety Protection Act 2021 and the Impact of Section 43 (2) on Plant Breeders’ Social Sciences Research Network; 2021 available at https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3928965_code3624217.pdf?abstractid=3928965&mirid=1 accessed on the 16^th of March 2024. ↑
2. Food and Agricultural Organisation, ‘The Future of Food and Agriculture- Trends and Challenges’ Rome, 2017 available at https://www.fao.org/3/i6583e/i6583e.pdf accessed on the 18th of March 2024. ↑
3. The Nigerian Economic Summit Group ‘Plant Variety Protection Act 2021 Fact Sheet’, 2021 available at https://www.google.com/search?client=opera&q=Factsheet_1627539725.pdf&sourceid=opera&ie=UTF-8&oe=UTF-8 accessed on the 18^th of March, 2024 ↑
4. World Intellectual Property Organisation UPOV: ‘The Impact of Plant Variety Protection’ (WIPO Magazine;2006) available at https://www.wipo.int/wipo_magazine/en/2006/04/article_0004.html accessed on the 13th of March, 2024. ↑
5. See the Long Title to the Act. ↑
6. Section 1 of the Act. ↑
7. Section 5 of the Act. ↑
8. In charge of the Office. See section 4 of the Act. ↑
9. Section 6 (1) & (2). ↑
10. Section 6 (2). ↑
11. ‘Breeders’ Right’ (UN Environment) available at https://globalpact.informea.org/glossary/breeders-right accessed on the 18th of March 2024. ↑
12. Section 12 of the Act. ↑
13. Section 13 (1) of the Act ↑
14. Sections 14, 15 and 16 of the Act. ↑
15. Section 14(1). ↑
16. Section 14(2) of the Act. ↑
17. Section 15(1). ↑
18. See section 15(2). ↑
19. Section 16(a) of the Act. ↑
20. Section 16 (b) of the Act. ↑
21. Section 17. ↑
22. Section 18. ↑
23. Section 28 of the Act. ↑
24. Ibid. section 29 ↑
25. Section 47 of the Act. ↑
26. Ibid. ↑
27. Section 30 ↑
28. See section 30 (2) & (3). ↑
29. Section 31 ↑
30. Section 32 of the Act. ↑
31. Section 33 of the Act. ↑
32. Section 35 of the Act. ↑
33. Section 36 of the Act. ↑
34. Section 37. ↑
35. Section 38 of the Act. ↑
36. Section 39 of the Act. ↑
37. Section 40. ↑
38. Ibid. ↑
39. Section 41. ↑
40. See Ifeanyi E. Okonkwo, Blessing Udo and Kayode Ikumelo, op cit. fn. 1 ↑
41. To which Nigeria is a signatory. ↑
42. See Article 27 (3). ↑
43. See The Nigerian Economic Summit Group ‘Plant Variety Protection Act 2021 Fact Sheet’ op cit. fn.3 ↑
44. See Ifeanyi E. Okonkwo, Blessing Udo and Kayode Ikumelo, op cit. fn. 1 ↑
45. See section 30 (2) & (3). ↑