The registration, licensing and protection of plant breeders’ rights in South Africa is regulated by the Plant Breeder’s Rights Act, Act 15 of 1976 (the “Act”).
A plant breeder’s right is granted for a specified period of 20 (twenty) or 25 (twenty-five) years depending on the type of plant. In terms of section 21 of the Act, a period of 25 (twenty-five) years’ protection is granted for plants of a vine or tree variety, as opposed to a period of 20 (twenty) years which is granted in respect of all other types of plants. This period is calculated from the date on which the certificate of registration is issued to the holder of such rights.
It must be noted that the amendment Act i.e. the Plant Breeder’s Rights Act, Act 12 of 2018 (the “Pending Act”) provides for a period of 30 (thirty) years’ protection for certain varieties of plants. However, while the Pending Act has been signed and assented to, no date for commencement has been set.
The holder of a plant breeder’s right may license such right in return for the payment of royalties, which will allow the licensee to propagate and sell the propagating material. Once the period granted to the plant breeder i.e. 20 (twenty) or 25 (twenty-five) years ends, the said license will automatically lapse upon the termination of the plant breeder’s right. Upon termination of the plant breeder’s right, the specific variety of plant becomes public property and anyone may then propagate and sell it without paying royalties.
Any person who propagates and sells plants, which are protected by a plant breeder’s right, is infringing upon such right and may be liable to pay damages to the holder of such right. Thus, any person intending to propagate and sell plants must ensure that such plant is not subject to a plant breeder’s right.