Plant Variety Protection Act 2021.
See sample direct excerpts below.
Explanatory Memorandum
This Act protects plant varieties, encourages investment in plant breeding and crop variety development and establishes a Plant Variety Protection Office for the promotion of increased staple crop productivity for smallholder farmers in Nigeria.
An Act for the protection of plant varieties, to encourage investment in plant breeding and crop variety development, to establish a plant variety protection office for the promotion of increase staple crop productivity for smallholder farmers in Nigeria; and for related matter.”
Commencement.
Enacted by the National Assembly of the Federal Republic of Nigeria.
Objectives of the Act
Section 1, Plant Variety Protection Act, 2021.
(a) Promote increased staple crop productivity for smallholder farmers in Nigeria and encourage investment in plant breeding and crop variety development.
(b) Promote increased mutual accountability in the seed sector.
(c) Protect new varieties of plants.
Varieties to be Protected and Conditions for Protection
The protection of varieties under this Act shall apply to all plant genera and species.
The breeder’s right shall be granted with respect to a variety which is
new, distinct, uniform and stable.The grant of the breeder’s right shall not be subject to any further or
different conditions, provided that the:(a) variety is designated by a denomination in accordance with the provisions of section 19 of this Act; and
Sections 12 and 13, Plant Variety Protection Act, 2021.
(b) applicant complies with the provisions of this Act and that he pays the fees prescribed in the Regulations made under this Act.
Novelty: Condition for Protection
The variety is deemed to be new if, at the date of filing of the application for a breeder’s right, propagating or harvested material of the variety has not been sold or otherwise disposed of to any person with the consent of
Section 14, Plant Variety Protection Act, 2021.
the breeder, for purposes of exploitation of the variety in:
(a) Nigeria, earlier than one year before the date of filing the application; and
(b) a territory other than Nigeria earlier than:
(i) four years, or
(ii) six years before the said date in the case of a tree or vine.
Distinctness: Condition for Protection
A variety is deemed to be distinct where it is clearly distinguishable from any other variety whose existence is a matter of commoknowledge at the time of the filing of the application.
Section 15, Plant Variety Protection Act, 2021.
(2) For purposes of subsection (1), the filing of an application for the granting of breeder’s right or for the entering of another variety in the official register of varieties in any country, is deemed to render that other variety a matter of common knowledge from the date of the application, provided that the application leads to the granting of breeder’s right or to the entering of the said other variety in the official register of varieties.
Uniformity and Stability
A variety is deemed to be:
Section 16, Plant Variety Protection Act, 2021.
(a) uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics; and
(b) stable, where its relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
Scope of the Breeder’s Right
Breeder’s rights include the following (See Act for further details).
(a) production or reproduction(multiplication);
(b) conditioning for the purpose of propagation;
(c) offering for sale;
(d) selling or marketing;
(e) exporting;
(f) importing; and
(g) stocking for any purposes mentioned in paragraphs (a) – (f).Essentially Derived Varieties.
Section 29, Plant Varierty Protection Act, 2021.
Exceptions to the Breeder’s Right
Exceptions to the breeder’s rights include the following (See Act for further details).
The breeder’s right shall not extend to any act carried out:
(a) privately and for non-commercial purposes;
(b) for experimental purposes; and
(c) for the purpose of breeding any other varieties.Limited exception for farmers: for the list of agricultural crops specified by the Minister, the breeder’s right shall not extend to a farmer who, within reasonable limits and subject to the safeguarding of the legitimate interests of the holder of the breeder’s right, uses for propagating purposes on his own holding, the product of the harvest which he has obtained by planting on his own holding, the protected variety.
The reasonable limits and the means of safeguarding the legitimate interest of the holder of the breeder’s right shall be specified in the regulations made under this Act.
Section 30, Plant Variety Protection Act, 2021.
Duration of a Plant Breeder’s Right
The breeders’ rights granted shall expire after 20 years from the date of the grant except for trees and vines whose breeders’ rights shall expire after 25 years from the date of grant.
The Registrar may extend the duration referred to above for an additional five years where he receives a six month written notice from the holder of the breeder’s right before the expiration of the original term.
Section 32, Plant Variety Protection Act, 2021.
Protection and Damages for Infringement of a Breeder’s Right
A breeder’s right is protected by both civil and criminal measures stipulated in any written law.
A suit by the holder of breeder’s right against any person who infringes the breeder’s right may be brought to the court.
Section 33, Plant Variety Protection Act, 2021.
Appeals
An appeal from the decisions of the Registrar made under this Act shall lie to the Minister.
A person who is aggrieved by any of the decisions of the Registrar may appeal to the Minister by submitting a notice of the appeal within 60 days following the publication, or of the receipt, of the individual notice of such decision by the person whose interest is the source or subject of the appeal.
Section 42, Plant Variety Protection Act, 2021.
Decisions of the Minister on Appeals
The Minister:
(a) may conduct an investigation, if he deems necessary to do so, and may hold a hearing of the appeal or make a decision based on written submissions;
(b) may confirm, set aside or vary any decision or action of the Registrar and may order the Registrar to carry out his decision; and
(c) shall give the reasons for his decision in writing, and copies of the decision shall be given to the appellant, the Registrar and any other interested party.Subject to the provisions of this section, a decision of the Minister shall be final.
Section 43, Plant Variety Protection Act, 2021.
Some academics, activists and civil society organisations, including HOMEF (Health of Mother Earth Foundation), have raised concerns about the Act. See Petition: Nigerians Reject the UPOV-91 Based Plant Variety Protection Law.
The CSOs denounce the adoption of a UPOV-91 based Plant Variety Protection (PVP)law in Nigeria. They demand that Nigeria withdraws the law and adopt a sui generis law based on the peculiar agriculture system in the country.
The provisions of the Act at section 43(2) contravenes the Constitution of Nigeria and its validity is already challenged in the law court. The Registered Trustees of Health of Mother Earth Foundation supported by over 50 organisations filed a lawsuit challenging the undemocratic process and the inconsistency of the UPOV based PBR law with the Nigerian constitution and have sought an order of perpetual injunction restraining the Ministry of Agriculture and Rural Development by themselves, their agents, servants, workmen or otherwise whatsoever from carrying out any activity or further activity pursuant to section 43(2) of the Plant Variety Protection Act 2021. The lawsuit seeks a declaration that section 43(2) of the Plant Variety Protection Act 2021 is illegal, invalid, null and void and contrary to the letters and spirit of Sections 6 and 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2011).
Nigerians Reject the UPOV-91 Based Plant Variety Protection Law.
The lawsuit: FHC/ABJ/CS/815/2021, suing the Federal Republic of Nigeria, the Attorney General of the Federation, and the Honourable Minister of Agriculture and Rural Development was filed at the Federal High Court Abuja.
