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Plant Breeders' Rights Act, 2018 (Act No. 12 of 2018)

Chapter 2 : Plant Breeders' Right

7. Protection given to holder of plant breeder's right

 

(1) The protection given under this Act to the holder of a plant breeder’s right is that prior authorisation has to be obtained for the duration of the plant breeder’s right from that holder, by way of a licence granted or issued in terms of section 34 or section 36, by any person intending to undertake—
(a) the production or reproduction (multiplication) of the protected variety;
(b) the conditioning for the purposes of propagation of the protected variety;
(c) the sale or any other form of marketing of the protected variety;
(d) the exporting of the protected variety;
(e) the importing of the protected variety; or
(f) the stocking of the protected variety for any of the purposes referred to in paragraphs (a) to (e).

 

(2)

(a) The undertaking of any activity referred to in subsection (1)(a) to (f) in respect of harvested material obtained through the unauthorised use of propagating material of the protected variety also requires the authorisation of the holder of the plant breeder’s right concerned, unless that holder has had reasonable opportunity to exercise his or her right in respect of that propagating material.
(b) For the purposes of paragraph (a), ‘‘harvested material’’ includes an entire plant, any part of such plant or any product made directly from harvested material of such plant.

 

(3)

(a) Subsections (1) and (2) also apply to a variety—
(i) that is essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety;
(ii) that is not clearly distinguishable from the protected variety in accordance with section 15(2)(b); or
(iii) whose production requires the repeated use of the protected variety.
(b) For the purposes of paragraph (a)(i), a variety must be regarded as being essentially derived from another variety if—
(i) it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety;
(ii) it is clearly distinguishable from the initial variety; and
(iii) 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 except for the differences which result from the act of derivation.