The Protection of Plant Varieties in Malaysia
Dr. Ida Madieha bt. Abdul Ghani Azmi
Assoc. Prof.
Private Law Department,
International Islamic University Malaysia.
Intro
The new government has restructured the previous Ministry of Agriculture into the
Ministry of Agriculture and Agro-based Industries. It looks clear from the restructuring
that Malaysia is set to embrace agriculture as an industry to generate income for our
national gross domestic production (GDP). This move is in tandem with the
government’s aspiration to build up the country’s biotechnological capacity to improve
the yield of agriculture and agro-based industries. The setting up of the Bio-valley is a
manifest demonstration of the government’s seriousness in this.
With regards to the creation of new plant varieties, since 1930’s, an informal breeding
system was already in place. Since then the Ministry of Agriculture started to register
new varieties of fruits for certification purposes. However, the informal system does not
bring about a formal protection for the creators of variety. As Malaysia is a signatory to
the TRIPS Agreement, she has been under a pressure to put in place a protection regime
for plant varieties. The proposed introduction of plant breeder’s right through the
promulgation of the New Protection of Plant Variety Bill 2003 (the Bill), would
constitute a step in the right direction.
In September 2003, a bill for the protection of plant varieties has been presented before
the Parliament for the first hearing. Because of time constraint, the full debate of the bill
was deferred to March session 2004. In March, the government dissolved the Parliament
to call for fresh election and the debate on the bill had to be further postponed. It was
only a couple of weeks ago that the first Parliamentary session of the new government
was convened and the Bill is among the first few that will be discussed in this session.
The Bill is expected to be read for the first time sometime at the end of June and is
expected to be endorsed by July this year.
The drafting of the bill has been done through consultation process with various relevant
ministries and other government agencies, research institutions and non-governmental
organisations including the Third World Network. Although the framework of the Bill is
substantially based on the UPOV Convention, interestingly that the Bill contains unique
stand on various issues such as traditional variety, farmers’, indigenous people and local
community’s right. This is reflected in the preamble of the Bill which, states the
objectives of the Bill to be:
(i)
to provide for the protection of the rights of breeders of new plant varieties,
(ii)
to provide for the recognition and protection of contribution made by farmers,
local communities and indigenous people towards the creation of new plant
varieties
1
(iii)
(iv)
to encourage investment in and development of the breeding of new plant
varieties in both public and private sectors
to provide for related matters.
It has to be noted at the outset that Malaysia has yet to be a member of the UPOV
Convention. Even if the political decision to accede to the Convention is reached in the
future, the process will not be a complicated one. After all, the current Bill can be said to
be 90 percent UPOV compliant.
This paper will address the proposed Protection of New Plant Varieties Bill 2003 and
discusses the framework of protection in comparison to the UPOV Convention.
The function of the Plant Variety Office.
One of the most important functions of the Plant Variety Office is to have a national
register of plant varieties. The same idea has been experimented in India with the setting
up of a National Register of Plant Varieties. This would enable the recording of existing
varieties, which is essential not only for recording purposes but also for the conservation
of the national biological diversity.
As mentioned earlier, the process of registration of variety has been ongoing since 1936,
though not for the purpose of protection. Since then more than 100 varieties of ‘durian’
has been registered, 200 of mangoes, 35 of jackfruits, 40 of ‘cempedak’ and other
varieties of fruit plants. This informal breeding system is part and parcel of the larger
current interest in recording the biological resources in the country as well as
documenting traditional varieties.
Plant Varieties Board
The Bill institutionalizes an oversight body known as the Plant Varieties Board that has
been vested with broad supervisory functions. The Board consists of all the major players
of the relevant governmental institutions1. The Board is responsible for the upkeep and
maintenance of the Register of New Plant Varieties.2 From the provisions of the Bill, the
Board is the one responsible for the approval of the application for registration.
1
The membership of the Board consist of: the Director General of the Department of Agriculture,
Peninsular Malaysia, the Director General of the Malaysian Agricultural Research and Development
Institute; the Director General of the Malaysian Rubber Board; the Director General of the Malaysian Palm
Oil Board; the Director General of the Malaysian Cocoa Board; the Director General of the Forest Research
Institute of Malaysia; the Director of Agriculture, Sabah; the Director of Agriculture, Sarawak; A
representative from the Ministry of Agriculture; a representative from the Ministry of Primary Industries; a
representative from the Ministry of Domestic Trade and Consumer Affairs; and a representative from the
Ministry of Science, Technology and Environment.
2
S 29 of the Bill.
2
However, it would appear that testing of samples would not be done in-house solely but
would be outsourced to relevant research centers.3 This is to avoid the problem of having
to build up sufficient in-house expertise and manpower to deal with examination. The
Board will determine who is the person ‘skilled in the art’ by analysing the denomination
of the variety. The identification of the relevant research centres would be done by the
Board at an ad hoc basis4.
Process of Application
Section 12 of the Bill specifies the information and supporting documents that needs to
be disclosed by the applicant for purposes of application. The relevant particulars and
documentations are:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
the name, address, nationality and other particulars of the
the method by which the plant variety is developed;
be supported by documents and information relating to the characteristics
of the plant variety from other plant varieties;
specify a plant variety denomination5 in accordance with section 16;
contain information relating to the source of the genetic material or the
immediate parental lines of the plant variety;
be accompanied with the prior written consent of the authority
representing the local community or the indigenous people in cases where
the plant variety is developed from traditional varieties;
be supported by documents relating to the compliance if any law
regulating access to genetic or biological resources; and
be supported by documents relating to the compliance of any law
regulating activities involving genetically modified organisms in cases
where the development of the plant varieties involves genetic
modification.
The categories of people who can apply for registration are spelt out in section 13. This
section reads:
Section 13(1)
An application for the registration of a new plant variety and grant
of a breeder’s right under section 12 shall only be made by(a)
a breeder;
(b)
the employer of the breeder;
(c)
the successor in title of the breeder;
(d)
a farmer or group of farmers, local community or indigenous people who
have carried out the functions of a breeder;
3
Such as MARDI, LGM, Guthrie, Golden Hope, MINT and the Ministry of Agriculture itself. The term
‘center’ has been defined as ‘any place approved by the Board for the deposit of any sample of seeds or
propagating material’.
4
Essentially, there are three types of examination: documentation examination, onsite examination and
growing test (only when appropriate).
5
“Denomination” means the name or identification for a plant variety expressed in letters or a combination
of letters and figures written in any language.
3
(e)
any government or statutory body which has carried out the functions of a
breeder.
From these categories, it looks clear that farmers, local community and indigenous people
are also allowed to apply for registration of varieties. The term ‘breeder’ in the Act goes
beyond those who develop a new variety for commercial purposes, but can also extend to
those who took it up for cultural purposes6. It also does not matter if a person were to
discover a variety, cultivate and preserve it. Here, the term ‘discover and develop’ is
further defined to mean ‘activities which lead to the desired phenotypic expression and
affect the crop genotype and which may or may not entail deliberate or artificial creation
of genetic variability.7’
Threshold of registrability
The new Bill adopted the UPOV system and mandates the threshold of registrability to
be:
(i) New,
(ii)
Distinct,
(iii)
Uniform, and
(iv)
Stable.8
A plant variety is new if on the filing date of the application for registration and grant of a
breeder’s right, the propagating or harvested material of the plant variety has not been
sold or otherwise disposed of on a commercial basis or with the consent of the breeder(i) within Malaysia, earlier than one year before the filing date of the application for
registration of a new plant variety and grant of a breeder’s right; and
(ii)
in other countries(a) earlier than six years before the filing date of the application for
registration of a new plant variety and grant of a breeder’s right
in respect of trees and vines; and
(b) earlier than four years before the filing date of the application for
registration of a new plant variety and grant of a breeder’s right
in respect of other plant varieties9.
Novelty is then assessed by establishing from the point of whether it is already marketed
within the relevant time. Once the plant variety is offered for sale or marketing, it
becomes common knowledge. The further requirement of consent limits the commercial
novelty requirement. Novelty is only destroyed if the commercial marketing takes place
with the consent of the breeder.
In s 3, the term “breeder” means a person who has bred or has discovered and developed any plant
variety.
7
S 3 of the Bill.
8
S 14(1) of the Bill.
9
S 14(3)(a) of the Bill.
6
4
From the earlier novelty requirement, commercial dealings of a variety within the grace
period is allowed and would not destroy novelty. However, such dealings may cause the
variety to be treated as one “whose existence is a matter of common knowledge at the
time when protection is applied for” and thereby disqualify it from protection for failure
to meet the distinctness criterion in Article 6(1)(a). This conclusion can be drawn from
section 14(3)(b) of the Bill that reads:
(b)
A plant variety is distinct if on the filing date of the application for
registration of a new plant variety and grant of a breeder’s right it is clearly
distinguishable from any other plant variety. The existence of which is a matter of
common knowledge
With regards to uniformity and stability; both the threshold of UPOV Convention are
adhered to. Thus, a plant variety is 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’. Whilst, a plant variety is stable if ‘its relevant characteristics
remain unchanged after repeated propagation or, in the case of a particular cycle of
propagation, at the end of each particular cycle’.
With the adoption of the NDUS requirement along the UPOV lines means that the
practice of examination of plant variety in Malaysia would be at par with international
practice.
The most important determination would be whether the samples given could be
characterized as a ‘variety’ or not. On this, the Bill defines a variety to mean:
“ A plant grouping within a single botanical taxonomy of the lowest known rank(a)
which can be defined by the expression of the characteristics resulting from a
given genotype or a combination of genotypes;
(b)
which can be distinguished from any other plant grouping by the expression of
at least one of such characteristics; and
(c)
which can be considered as a unit with regard to its suitability for being
propagated unchanged,
and includes propagating material and harvested material of the plant variety.10”
Whilst the term ‘plant’ has been defined to mean any living organism in the plant
kingdom but excludes any micro-organism’11. With the express exclusion of microorganism, the Bill manifestly restrict its application to plants only12. Currently, there is no
separate system of protection for animal variety in Malaysia.
10
S 3 of the Bill.
S 3 of the Bill.
12
Cf the definition of “plant” in The Plant Quarantine Act 1976 (Act 167) where “plants” have been
defined to mean “any species of plant or any part thereof whether living or dead and includes the stem,
branch, tuber, bulb, corn, stock, budwood, cutting, layer, slip, sucker, root, leaf, flower, fruit, seed or any
other product whatsoever of a plant whether severed or attached but does not include any plant product that
that has undergone a process of heat and drying treatment”.
11
5
Genetically modified variety
Traditionally, plant varieties are excluded from patentability and the express exclusion on
this can be found in section 13(2)(b) of the Patents Act 1983. The provision reads:
Section 13(2) …the following shall not be patentable:
(b)
plant or animal varieties or essentially biological processes for the
production of plants or animals, other than man-made living micro-organisms,
microbiological processes and products of such micro-organism processes.
The Malaysian stand is consistent with the TRIPs Agreement as enshrined in article 3(b).
The above exclusion relates only to plant variety but inventions involving plants would
be patentable. What remains unclear is whether genetically modified plants can be both
patentable as well as registrable under the plant variety system.
It would appear that the Malaysian stand on this would be consistent to that of
international practice. A genetically modified variety would not be patentable but a plant
invention that consists of genetically modified cell line would be. Whatever ways, a plant
invention can only be registered under the breeder’s system if it constitutes a variety.
Section 12(1) (e),(f) and (g) would be relevant here. Applicant must disclose information
pertaining to the genetic origin of the variety13 and must show proof of prior written
consent14 and compliance to any law regulating access to genetic or biological
materials15.
Non registrable subject matter.
The UPOV Convention does not provide for any exclusion to registrability. The
Malaysian Bill contains two grounds for the exclusion of registrability as enlisted in
section 15:
(a)
(b)
which may affect public order or morality; or
where there is reasonable ground to believe that the cultivation,
reproduction or any other use of that plant variety may produce a negative
impact on the environment.
Both grounds have a strong origin from the TRIPs Agreement in relation to the exclusion
from patentability. Both grounds have been vehemently fought for by the nongovernmental institutions, thus the insertion in the Bill.
13
(e) contain information relating to the source of the genetic material or the immediate parental lines of
the plant variety;
14
(f) be accompanied with the prior written consent of the authority representing the local community or
the indigenous people in cases where the plant variety is developed from traditional varieties
15
s 12(g) of the Bill.
6
Examination process
The examination process in Malaysia is unique in comparison to other countries. Each
application undergoes two stages of examination; preliminary and substantive. At the
preliminary stage, the examining authority would have to determine whether the variety
does not fall within the prohibition of registration and to ensure the correct denomination
of the plant variety has been claimed for16. Having the correct denomination is essential
to the application. As section 16(1) stipulates,
(1)
the denomination of a plant variety the registration of which by the Board
is applied for(a)
shall be the generic designation of the plant variety;
(b)
must enable the plant variety to be identified;
(c)
shall not exclusively consist of numerals; and
(d)
shall be different from other plant variety denominations which
identify an existing plant variety of the same plant species or a
closely related species.
At the substantive level, the examining authority would have to determine whether the
application complies with the threshold of registrability17.
All successful applications would be published in the Gazette to enable others to oppose
the application18. The notice of opposition must be filed by any interested party, within
three months from the date of publication of an application for registration19.
Several grounds of opposition have been identified in section 23. They include:
(a) that the person opposing the application is entitled to the breeder’s
right as against the applicant;
(b) that the application for the registration of the new plant variety and
grant of a breeder’s right does not comply with the requirements of
this Act;
(c) that the application for the registration of the new plant variety and
grant of a breeder’s right is contrary to the public order or morality;
(d) that the application for the registration of the new plant variety and
grant of a breeder’s right may produce a negative impact on the
environment.
From the above discussion, several questions need to be addressed. Why is the
examination process like patents and trade marks? Why is there two level of examination
like patents? What is the purpose of having an opposition proceeding? It is really unclear
16
S 19 of the Bill.
S 20 of the Bill.
18
S 22 of the Bill.
19
S 23(1) of the Bill.
17
7
why the process of examination must be as complicated as patents and trade marks when
the nature and scope of exclusive rights conferred to the breeder of plant varieties are
different. These requirements are unheard of in UPOV. In India, with the exception for
oppositions20, the examination process involves only one stage-process.
A validly registered plant variety can still be invalidated upon application by any
interested party21. The grounds of invalidation are more stringent than opposition. These
grounds are:
(a) the holder has furnished to the Board false or misleading information or
statement in respect of the application for registration of the new plant variety and
grant of a breeder’s right;
(a) the holder has not complied with the requirements of the Act; or
(b) the breeder’s right does not belong to the person to whom the breeder’s right
was granted.22
Scope of the breeder’s right
The kind of exclusive rights granted to the breeder is consistent to that of UPOV
Convention. As expressed in section 30(1) of the Bill:
A holder of a breeder’s right shall, in respect of the registered plant variety for which
the right is granted, have the right to carry out all or any of the following acts on a
commercial basis:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
producing or reproducing;
conditioning for the purpose of propagation;
offering for sale;
marketing, inclusive of selling;
exporting;
importing;
stocking the material for the purpose mentioned in paragraphs (a) to (f).
As made clear in the above provision, only acts of commercial exploitation would be
caught. Activities that borders on research, private use and farmer’s right would be
excepted. This part would covered in more detail later.
To clarify the scope of the right further, subsection 2 states:
(2)
The breeder’s right shall also extend to(a) any propagating material of the registered plant variety, harvested material
of the registered plant variety and the entire or any part of a plant variety
where the propagating material of that plant variety is obtained through
unauthorized means from the registered plant variety;
20
s 21 of the 2001 Bill.
s 39(1) of the Bill.
22
S 39(2) of the Bill.
21
8
(b) plant varieties which are essentially derived from the registered plant
variety, if the registered plant variety is not essentially derived from
another plant variety; or
(c) plant varieties which are not clearly distinguishable from the registered
plant variety; or
(d) the production of other plant varieties which require the repeated use of
the registered plant variety.
The above provision extends the exclusive rights of the breeders to that of plants that are
essentially derived from the registered plant variety. In section 3, the term “essentially
derived plant variety” has been defined to mean a plant variety which(a) is predominantly derived from the initial plant variety, or from a plant variety that
is itself predominantly derived from the initial plant variety, while retaining the
expression of the essential characteristics that result from the genotype or
combination of genotypes of the initial plant variety;
(b) is clearly distinguishable from the initial plant variety; and
(c) except for the differences which result from the act of derivation, conforms to the
initial plant variety in the expression of the essential characteristics that result
from the genotypes or combination of genotypes of the initial plant variety.
In other jurisdictions, essentially derived varieties are entitled for protection in their own
sake. In India, for example, section 23 of the 2001 Act allows the registration of
essentially derived variety.
What about products made directly from the harvested material of the protected variety?
The 1991 UPOV Convention mandates that the any use of the said harvested material
must be done with the consent of the breeder23. This provision which has been highly
criticized by others is not present in the Malaysian New Protection of New Plant Bill
2003.
What amounts to an infringement? The exclusive rights of the breeder would be offended
is any of the exclusive rights granted to him is performed by others without his
authorization.24
Research exceptions
To enable research on plants to continue, the Bill draws several limitations of breeder’s
right. Section 31(1) provides:
The breeder’s right shall not extend to(a)
any act done privately on a non-commercial basis;
(b)
any act done for an experimental purpose;
(c)
any act done for the purpose of breeding other plant varieties and any act
referred to in paragraphs 30(1)(a) to (g) in respect of such other plant
23
24
Article 14(3) of the revised UPOV Convention.
S 47 of the Bill.
9
varieties, except where such other plant varieties have been essentially
derived from the registered plant variety.
One of the concerns of breeders is whether they will be encumbered from researching on
the registered varieties with the intention of developing new ones. From subsection (c)
above, it can be inferred that this can be done. The same position can be found in the
Indian Act that enables the use of a variety by any person as an initial source of variety
for the purposed of creating other varieties.25
Duration of breeder’s right
Consistent with the UPOV Convention, the duration of protection is:
(i)
twenty years for a registered plant variety that is new, distinct, uniform
and stable; or
(ii)
fifteen years for a registered plant variety that is new, distinct and
identifiable26.
(iii) in respect of trees and vines, the duration is twenty-five years27.
It is not mentioned in the Bill whether the calculation commences from the date of
application or from the date of grant. This term is generally not extendable, except for
extenuating circumstances; i.e. national needs and interests28.
Compulsory licence
The Revised UPO Convention disallow any exceptions to the breeder’s exclusive right
except for public interest29. In such instances, the Contracting Party concerned is
mandated to take all necessary measures to ensure that the breeder receives equitable
remuneration30.
The Malaysian legislature takes a different stand. A compulsory licence can be sought
after the expiration of 3 years from the grant of a breeder’s right. The grounds in which
compulsory licence can be sought are laid down in section 36 which provides:
(i) if section 34 has not been complied with and the needs of the farming
community for the propagating material had not been met; or
(ii)
an excessive proportion of the registered plant variety offered for sale is
being imported.
Section 34 basically underlines the duty of the holder of propagating material. He must
ensure that not only that these materials are available in reasonable quantities within three
25
S 30 of the Act. Provided that the authorisation of the breeder of a registered variety is required where
the repeated use of such variety as a parental line is necessary for commercial production of such other
newly developed variety.
26
S 32(1) of the Bill.
27
S 32(2) of the Bill.
28
S 33 of the Bill.
29
Article 17(1)
30
Article 17(2)
10
years from the date of the application of registration of the new plant variety but they
must also be sold at a reasonable price.
The scope, conditions and termination of compulsory licence are similar to that of
patents. The Board has the power to determine the scope of the compulsory licence and
impose any necessary restrictions to ensure that it will not be abused 31. One major
limitation to compulsory licence is that it does not extend to the act of importation. The
breach of any of the terms would entail the termination of the compulsory licence32.
Traditional variety or variety developed by local community.
The Act allows local community or indigenous people to apply for the registration of
their traditional variety.33 The term “local community” has been defined under section 3
of the Act to mean ‘a group of individuals who have settled together and continuously
inherit production processes and culture or a group of individuals settled together in a
village or area and under an eco-cultural system’.
Whilst the term “indigenous people” has been defined to refer to person who fall within
the definition of the “aborigine” or “native” as defined respectively in Clause (2) of
Article 16034 and Clause (6) of Article 161A of the Federal Constitution.35 As the Bill has
practically adopted the Constitutional definition of ‘indigenous people’ which only
covers the natives of Sabah and Sarawak, there is a genuine concern that the natives of
the Peninsular Malaysia has been shortchanged. On the other hand, as the Bill also
confers special privileges to local community, perhaps the natives of the Peninsular
Malaysia could fall within this category.
31
Upon the granting of a compulsory licence to any person, agency or company, the Board shall
determine(a)
the scope of the compulsory licence and the right to carry out any of the acts referred to
in section 30 except that such right shall not extend to the act of importation;
(b)
the duration of the compulsory licence; and
(c)
the terms and conditions of the compulsory licence.
32
S 38(1) of the Bill.
33
s 13(1)(d) of the Bill.
34
“Aborigine” means an aborigine of the Malay Peninsula.
35
In this Article “native” means(a)
in relation to Sarawak, a person who is a citizen and either belongs to one of the races
specified in Clause (7) as indigenous to the State or is of mixed blood deriving
exclusively from those races; and
(b)
in relation to Sabah, a person who is a citizen, is the child or grandchild of a person of a
race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either
in Sabah or to a father domiciled in Sabah at the time of birth.
Another relevant provision is A161(7) which provides:
The races to be treated for the purposes of the definition of “native” in Clause (6) as indigenous to
Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Bisayahs, Dusuns, Sea
Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs
(including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanas, Punans, Tanjongs and
Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.
11
Section 13(3) further provides that in the case of local community and indigenous people,
the authority representing the local community or indigenous people can be the agent for
the purpose of registration. There is no requirement for a verification of the local
community’s claim through an organisation, unlike in India.36
The threshold of registration for traditional varieties is somewhat lower than the usual
UPOV like system. The usual criteria are new, distinct, uniform and stable. However,
with traditional varieties, the plant variety may be registered if it is new, distinct and
identifiable.
A plant variety is identifiable if:
(i)
(ii)
it can be distinguished from any other plant grouping by the expression of one
characteristic and that characteristic is identifiable within individual plants or
within and across a group of plants; and
such characteristics can be identified by any person skilled in the art37.
Both the requirement of uniform and stable is waived in relation to traditional variety.
Traditional variety enjoy a much shorter period of protection, i.e. 15 years.
Informed consent
Informed consent is compulsory for varieties developed from traditional ones. Section
12(1) contains a list of particulars that need to be submitted for the purpose of application
for registration. Information pertaining to the genetic origin of the variety appears in item
(e)38 whilst prior written consent appears in (f)39. Section 12 (g) further mandates
evidence of compliance of any law regulating access to genetic or biological resources. If
the plant were to involve genetically modified organisms, there must be evidence of
documents relating to the compliance of any law that regulates genetic modification. It
has to be noted that currently, there are no regulations that cover genetic modification.
All concerns pertaining to the contained use, import and export of genetic modification of
living materials would fall within the ambit of the proposed Biosafety Bill.
The Bill, also, does not address benefit sharing. This is because benefit sharing will be
dealt with in by the proposed Access to Genetic Material Bill. Both the proposed
Biosafety Bill and Access to Genetic Matreial Bill are in drafting process and not
accessible to the public.
36
See s 41 of the Indian Act.
S 14(e) of the Malaysian Bill.
38
(e) contain information relating to the source of the genetic material or the immediate parental lines of
the plant variety;
39
(f) be accompanied with the prior written consent of the authority representing the local community or
the indigenous people in cases where the plant variety is developed from traditional varieties
37
12
Farmer’s variety and special privileges
The Act allows a farmer to apply for the registration of their traditional variety. 40 This is
when the variety conforms to the requirements of newness, distinct and identifiable like
that of local community and indigenous people.
A “farmer” means any person who(a)
cultivates crops by cultivating the land himself;
(b)
cultivates crops by directly supervising the cultivation of land through any
other person; or
(c)
conserves and preserves, severally or jointly, with any person any traditional
variety of crops or adds value to the traditional variety through the selection
and identification of their useful properties41.
The waiver of ‘stability’ and ‘uniformity’ as a threshold of registrability for traditional
variety reiterates the policy objective of the Bill itself; i.e. to confer express recognition
and protection of contribution made by farmers in towards the national agricultural
industry. Though, the Indian ‘the Protection of Plant Varieties and Farmers’ Rights Act,
2001 has been identified as a model in the drafting of the Bill, the later do not have any
special threshold for traditional varieties.42 The Indian Act also allows farmers to register
traditional varieties, which can be done either by themselves or through an organisation
of farmers. The Indian government has even gone one step further by exempting fees and
conferring rewards to farmers through the Gene Fund.
To ensure that the farmers are not economically suppressed by the conferral of exclusive
rights over plants and propagating materials43, the Bill creates 3 special exceptions for
them:
(i)
(ii)
(iii)
any act of propagation by small farmers using the harvested material of the
registered plant variety planted on their own holdings;
any exchange of reasonable amounts of propagating materials among
small farmers; and
the sale of farm-saved seeds in situation where a small farmer cannot
make use of the farm-saved seeds on his own holding due to natural
disaster or emergency or any other factor beyond the control of the small
farmer, if the amount sold is not more than what is required in his own
holding44.
It has to be noted that such privileges can only be claimed by ‘small farmers’. A “small
farmer” means a ‘farmer whose farming operations do not exceed the size of holding as
40
s 13(1)(d)
s 3 of the Bill.
42
s 39 of the Indian Act, 2001.
43
“Propagating material” has been defined in s 3 of the Bill to mean ‘any material or plant, or any part of
the plant, used for multiplication or reproduction’.
44
s 31(d)-(f) of the Malaysian Bill.
41
13
prescribed by the Minister’. As no such regulation has been drawn up yet, it is not sure at
the moment what a small farmer would entail.
With these exceptions, the long held reservations against the perceived inequities that
farmers may suffer as a result of exclusive rights over plants and propogating materials
would diminish considerably.
The special privileges granted to the farmers accords with the UPOV Convention. Article
15(2) allows contracting parties ‘to restrict the breeder’s right in relation to any variety in
order to permit farmers to use for propagating purposes, on their own holdings, the
product of the harvest which they have obtained by planting, on their own holdings on
their own holdings of protected variety’.
The Malaysian provision, however, goes beyond the context of Article 15(2). Not only it
allows the propagation of harvested materials by the farmers, it also legitimizes the
farmers to exchange them among small farmers. In cases of emergency, the farmers are
even allowed to sell the farm-saved seeds to others.
Conclusion
The proposed introduction of a plant variety protection system in Malaysia is a
commendable step. It would make the Malaysian legislation one step further in its
compliance with the TRIPS Agreement.
Furthermore, as plant variety is excluded from patentability, the introduction of the sui
generis plant variety system would complement well with the whole IP eco-system in
Malaysia. Almost all subject matters of intellectual property rights can find its protection
in Malaysia once the proposed New Plant Varieties Protection Bill is endorsed by the
Parliament sometime this year.
14