The Plant variety Protection Act, 2020 (Act 1050) came into force on the 29th of December, 2020. The Act is to protect the rights of breeders of new varieties of plants and to promote the breeding of new varieties of plants in Ghana. The passage of the Plant Variety Protection Act, is of significant importance to the development of agriculture in Ghana, by prioritizing the protection of the rights of plant breeders by which scientist will be encouraged to deliver high yielding, disease and drought resistant varieties of plants while being recognized for their immense contribution to the agricultural sector.
Definition of variety
The Act defines Variety to mean a plant grouping within a single botanical taxon of the lowest known rank which grouping, irrespective of whether the conditions for the grant of a plant breeder right are fully met, can be defined by the expression of the characteristics resulting from a given genotype or combination of genotypes, distinguished from any other plant grouping by the expression of at least one of the characteristics that result from a given genotype or combination of genotypes and considered as a unit with regard to the suitability of the variety for being propagated unchanged. A variety is identified through denominations, and each variety must be designated with a denomination, which shall be considered to be the generic designation of the variety, a variety denomination may be a word, a combination of words, and numbers, a combination of letters and numbers.
Conditions for Protection
For a variety to be suitable for the purpose of the protection of a plant breeder right the act requires that the variety be ‘new, distinct, uniform and stable’. A variety is said to be new if earlier than one year before the date of filing an application for registration as a variety, the propagating or harvested material of the variety has not been sold or disposed of to any person by or with the consent of the breeder for the purpose of exploitation of the variety in Ghana. A variety is deemed to be distinct if it is clearly distinguishable from any other variety, A variety is uniform if subject to the variation that may be expected from the particular features of the propagation of the variety, that variety is sufficiently uniform in the relevant characteristics of the variety. Lastly a variety is said to be stable if the relevant characteristics remain unchanged after repeated propagation or, in the case of a particular cycle or propagation, at the end of that cycle.
Eligibility
For a breeder to be eligible for a plant breeder right, an application must be made in accordance with the Act, the application can be made by two or more persons who have jointly bred or discovered and developed a variety. Apart from applications for eligibility a plant breeder right may be acquired through succession, assignment or transfer. An assignment or transfer does not affect a right acquired by a third party unless the assignment or transfer is duly registered and published in the Gazette and varieties bulletin.
A license is however, not binding on a third party that has acquired a right in good faith unless the license was registered before the acquisition of the licence. The Registrar also has authority under the Act to grant a compulsory licence to an applicant where a holder has refused to grant the applicant a licence on reasonable terms among other factors, the licencee is required to pay the holder an equitable renumeration.
Duration and Termination of plant breeder right
A plant breeder right is not absolute, the breeder’s right in respect of varieties and of trees and vines has a duration of twenty-five years after the grant of the breeder right, whereas protection for all other genera or species has a duration of twenty years after the grant of the breeder right. The right of a holder maybe terminated by the holder before the expiration of the duration, where the holder renounces that right by a written notice or declaration submitted to the Registrar.
The right of a holder can also be nullified by the registrar on the advice of the plant breeder technical committee established under the Act or may cancel a plant breeder right if the conditions of uniformity and stability no longer prevail. A development fund is established under the Act to finance activities to protect the rights of breeders of new varieties and to promote the breeding of new varieties.
Maintenance of protected Variety
A plant breeder or holder is responsible for the maintenance of the protected variety during the period of protection, and at the request of the Registrar shall provide an appropriate quantity of samples of the propagating material of the protected variety necessary for the verification of the maintenance of the variety.
Offence
A person commits an offence under the Act, if that person willfully offers for sale, sells or markets a propagating material of a variety protected in Ghana or markets a propagating material of a variety protected in Ghana without the registered variety denomination or uses the registered variety denomination of a variety protected in Ghana for another variety of the same plant species or closely related species which is likely to cause confusion. Such a person is liable on summary conviction to a fine of not less than five thousand penalty units and not more than eight thousand penalty units or a term of imprisonment of not less than ten years and not more than fifteen years.
