Introduction:
The governing law is the PLANT VARIETY PROTECTION ACT, 2021 with its main objectives listed as being to:
(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; and
(c) protect new varieties of plants.
The Act is stated as being applicable to:
(a) a breeder; and
(b) any plant genera and species.
In the ever-evolving landscape of agriculture, the protection and promotion of plant varieties has become major concerns. As the global population continues to burgeon and environmental challenges loom large, the agricultural sector faces the formidable task of not only producing sufficient food but also ensuring the diversity, resilience, and sustainability of crops.
The protection of the intellectual property elements inherent in the proceeses for achieving the required results plays a critical role in encouraging investment and safeguarding advancement in plant breeding and crop variety development that would enable developments of areas such as plant patents, plant breeders’, open-source seed initiatives and patents for genetically modified organism (GMOs). It is a domain where scientists, breeders, farmers, policymakers, and legal experts converge to strike a balance between fostering innovation and ensuring equitable access to the genetic resources that sustain our world.
The Act establishes the Plant Plant variety Protection Office and PVP Advisory Committee with members from the Ministry of Agriculture, Breeders’ Association, Seed Association, Farmers Association, University, Attorney General’s office, NOTAP, Quarantine, Biosafety Management, Biotech Development, Crop Variety Release, Registrar of Trademarks, Patents and the PVP Registrar. As per section 5 of the PVP Act 2021, the mandate of the office includes:
(a) grant breeder’s rights;
(b) maintain a register and provide information on plant breeders’ rights issued in Nigeria;
(c) facilitate transfer and licensing of plant breeder’s rights;
(d) collaborate with local and international bodies whose functions relate to plant breeders’ rights matters; and
(e) perform other functions as are necessary for the furtherance of the objects of this Act.
Section 12 of the Act provides that the protection of varieties under the Act shall apply to all plant genera and species, while section 13 (1) provides that a breeder’s right shall be granted with respect to a variety which is new, distinct, uniform and stable.
Section 14 provides that novelty applies 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 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.
Under sections 29 and 29, the Act provides for provisional protection and scope of the breeder’s right respectively. These section provide thus:
(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).
(2) The holder of the breeder’s right may give his authorisation subject to conditions and limitations.
(3) Subject to the provisions of sections 30 and 31 of this Act, the acts referred to in subsection (1) (a) – (g) in respect of:
(a) harvested material, including entire plants and parts of plants, obtained through the unauthorised use of propagating material of the protected variety, shall require the authorisation of the holder of the breeder’s right, unless the holder of the breeder’s right has had reasonable opportunity to exercise his right in relation to the said propagating material; and
(b) products made directly from harvested material of the protected variety falling within the provision of paragraph (a) through the unauthorised use of the said harvested material, shall require the authorisation of the breeder, unless the breeder has had reasonable opportunity to exercise his right in relation to the said harvested material.
(4) The provisions of subsections (1) – (3) shall apply to a variety:
(a) that is essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety;
(b) which is not clearly distinguishable in accordance with section 15 of this Act from the protected variety; and
(c) whose production requires the repeated use of the protected variety.
(5) For the purposes of subsection (4) (a), a variety shall be deemed to be essentially derived from another variety when:
(a) it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotype of the initial variety;
(b) it is clearly distinguishable from the initial variety; and
(c) except for the differences which result from the act of derivation, 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.
(6) For the purpose of this section, an essentially derived variety may be obtained through:
(a) the selection of a natural, induced mutant or of somaclonial variant;
(b) the selection of a variant individual from plants of the initial variety; and
(c) backcrossing, or transformation by genetic engineering.
While section 30 list out the exception to the Breeder’s right as follows:
30. (1) 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 variety, and, except where the provisions of section 29 (4) – (6) of this Act apply, any act referred to in section 29 (1) – (3) in respect of such other varieties.
(2) 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 or a variety referred to in section 29 (4) (a) or (b) of this Act.
(3) 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.
The Act provides for priority for a maximum period of 12 months and limits tbe initial breeder’s rights granted to 20 years from the date of grant except for trees and vines whose breeders’ rights shall expire after 25 years from the date of grant. Section 32(1)
There is a provisio under section 32(2) permiting the Registrar to extend the duration referred to in subsection (1) 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.
The Nigeria PVP Office is still in its infant stage of establishment and Nigeria is not a member of the International Union for the Protection of New Varieties of Plants (UPOV).