APPENDIX I

Detailed references and explanatory notes, and recitals of our reasons

i/ To add to Section 9 (3):

Section 9

(3) of the Bill currently reads as:

(3) The application for a plant breeder right

(a) is subject to the payment of the prescribed fee; and

(b) shall contain the following details:

(i) the name and the address of the applicant,

(ii) the name and address of the person that has bred or discovered and developed a variety if it is different from the applicant,

(iii) the identification of the botanical taxon and the Latin or common name,

(iv) the generic designation proposed for the variety or a provisional designation,

(v) a technical description of the variety, and

(vi) any information, document or material required for the purposes of examination. Our proposed amendment seeks to add to Clause 9

(3) The application for a plant breeder right:
– shall be accompanied by an affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology;
–shall contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location from where the genetic material has been taken and all such information relating to the contribution, if any, of any farmer, village community, institution or organization in breeding, evolving or developing the variety;
–contain a declaration that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired;
Reasons for our amendment: • The first proposal is to ensure that no variety with terminator technology is granted protection. This technology is currently banned in the context of the Convention of Biological Diversity, to which Ghana is a party of.
The second and third points are to ensure that the applicant discloses the origin of the genetic material used in the development of the variety. This is important particularly to ensure that if the genetic material is from Ghana, the applicant engages in fair and equitable benefit sharing.
Disclosure of origin is important to ensure that the access and benefit sharing rules in Ghana are complied with. If the applicant fails to make the above declaration, the application for plant breeders’ rights should not be processed.

ii/ To delete Clause 10 on presumption of protection. Clause 10 of the Bill currently reads as: 10.

(1) An applicant shall in the absence of any proof to the contrary, be presumed to be entitled to the protection of a plant breeder right under this Act.

(2) Where the application is made by the successor in title of the applicant, the applicant shall support the application with proof of the successor’s title.the Plant Variety Protection office or the Registrar-General that the right holder does not deserve protection. Actually the onus should be on the right holder to prove that its application meets the substantive and formal criteria. Reasons why Clause 10 should be deleted: This clause is flawed and erroneous because it wrongfully puts the onus of proof on the Plant Variety Protection office or the Registrar-General that the right holder does not deserve protection. Actually the onus should be on the right holder to prove that its application meets the substantive and formal criteria.

iii To amend Clause 16 to extend the period for objections.
Clause 16 of the Bill currently reads as: Objection 16.

(1) A person may object to the grant of a plant breeder right within sixty days after the publication in the Gazette or the Varieties Bulletin.

(2) The objection shall be made in writing and supported by the grounds of objection. Reason why Clause 16 is to be amended 90 days or even six months grace period seem fairer for the purpose, as fairness ought to be a priority.
iv/ Amend Clause 20

(1) to limit the scope of breeders’ rights production for commercial marketing, offering for sale and marketing of seeds and propagation material.

Clause 20 of the Bill currently reads as:

(1) Subject to sections 21 and 22, the following acts in respect of propagating material of a protected variety require the authorisation of the breeder:

(a) production or reproduction;

(b) conditioning for the purpose of propagation;

(c) an offer for sale;

(d) sale or marketing;

(e) exportation;

(f) importation; and

(g) stocking for any of the purposes mentioned in paragraph

(a) to

(f). Explanation: The amendment is proposed to limit the scope of breeders’ rights. As this is the first time Ghana is putting in place a PBR legislation, it is unaware of the impacts of the PBR legislation. Thus it is important to begin slowly and to initially limit the scope of breeders’ rights. As the proposed amendment is limits the scope of breeders rights to commercial activities, it also give more flexibility to farmers to conduct its activities.

v/ Delete Clause 20 (3), (4) and (5)

Clause 20 (3), (4) and (5) of the Bill currently read as:

(3) Subject to sections 21 and 22, the acts referred to in subsection

(1) as regards harvested material, including the whole of a plant and part of a plant obtained through the unauthorised use of the propagating material of the protected variety, shall require the authorisation of the breeder, unless the breeder has had a reasonable opportunity to exercise the right in relation to the propagating material.

(4) Subsections (1) and (2) apply in relation to the following:

(a) varieties which are not clearly distinguishable from the protected variety in accordance with section 5;

(b) a variety which is essentially derived from the protected variety where the protected variety is not itself an essentially derived variety; and

(c) a variety, the production of which requires the repeated use of the protected variety.

(5) For the purposes of subsection (4) (b), a variety shall be deemed to be essentially derived from another variety being the initial variety if it

(a) 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 genotypes of the initial variety;

(b) is clearly distinguishable from the initial variety; and

(c) except for the differences which result from the act of derivation, 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) An essentially derived variety may be obtained for example by the selection of a

(a) natural mutant or induced mutant,

(b) somaclonal variant, or

(c) variant individual from a plant of the initial variety, back crossing or transformation by genetic engineering. Explanation: The above deletion is proposed as it unnecessarily limits the use of the protected variety, for further breeding. The addition below to Clause 20 is proposed as it allows the use of protected varieties as an initial source of variety for further breeding. Authorization of the breeder is only required when “repeated” use of the protected variety is necessary for commercial production.

vi/ To add to Clause 20 the following: Nothing contained in this Act shall prevent –

(a) the use of any variety registered under this Act by any person using such variety for conducting experiment or research; or

(b) the use of a variety by any person as an initial source of variety for the purpose of creating other varieties; Provided that the authorization 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.

vii To add to Clause 20: Notwithstanding anything contained in this Act, no registration of a variety shall be made under this Act

(a) which may affect public order or morality; or

(b) 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, human, animal and plant life.

(c) No variety of any genera or species which involves any technology which is injurious to the life or health of human beings, animals, plants or the environment shall be registered under this Act.

vii/ to delete Clause 21
(c) and 21 (3)

Clause 21
(c ) is to be deleted as it refers to parts of Section 20 which are also proposed for deletion. Clause 21

(3) limits farmers rights. It only allows farmers to use farm saved seed on their own holdings and this also may be subject to payment of royalty since the section speaks of safeguarding the legitimate interests of breeders. It does not allow farmers to freely exchange or sell.

ix/ To add Clause 21 to expand farmers rights.
– a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed or propagating material of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act : Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act. Explanation: For the purposes of clause

(iv), “branded seed” means any seed put in a package or any other container and labelled in a manner indicating that such seed is of a variety protected under this Act. Explanation: This addition is proposed to balance breeders and farmers rights. So farmers can continue their traditional practices including selling and exchanging seed. The only restriction is that the farmer cannot brand the seed claiming that the seed is a variety protected under the PBR Act. So it is only the commercial breeder that can brand the seed.

ix/ Delete Section 23 on Measures regulating commerce.

“A plant breeder right shall be independent of any measure taken by the Republic to regulate within Ghana the production, certification and marketing of material of a variety or the importation or exportation of the material.” Reasons: The rights of the plant breeder, or any other business activity for that matter, must end where issues of public health and the environment begins. This clause is fundamentally problematic as it calls on Parliament to legislate away the right to take “measures to regulate within Ghana the production, certification and marketing of material of a variety or the importation or exportation of the material”, even where there are compelling reasons to do so on behalf of public health or the environment. There is no reason why our Parliament must be called upon to cede what they are obliged under oath to systematically, diligently, and directly, whenever this is needed. What this law does is that it only provides an avenue for these giant corporations to raid our Treasury with judgement debts, under the bizarre pretext of “loss of business opportunity”. It is not only the possibility of systematic suits whenever we need to control our environment or public health that makes this law dangerous. There is really no reason for our Parliament to cede this right to unelected business executives of multinational corporations of doubtful intentions and abilities. We must not forget that Monsanto Corporation, the largest of the six giant corporations which control 90% of the market, has a strange history of producing dangerous materials. For instance, “Monsanto’s dirty dozens”, provides thirteen examples of the ability of these companies to cause harm, if they could be left alone without any controls. These dangerous products from Monsanto alone include Saccharin, polychlorinated biphenyls (PCBs), Polystyrene, Atom bomb and nuclear weapons, Dioxin, Aspartame (NutraSweet/Equal), Bovine Growth Hormone (rBGH), etc, etc.”

Here is a quote that should tell our Parliamentarians that Ghana is safer when Parliament retains the right of oversight of any commercial venture on our territory:

“In 1944, Monsanto became one of the first manufacturers of the insecticide DDT to combat malaria-transmitting mosquitoes. Despite decades of Monsanto propaganda insisting that DDT was safe, the true effects of DDT’s toxicity were at last confirmed through outside research and in 1972, DDT was banned throughout the U.S.”

Here is another:

“During the early 1960s, Monsanto was one of the two primary manufacturers of Agent Orange, a[n[ [sic] herbicide/defoliant used for chemical warfare during the Vietnam War. Except Monsanto’s formula had dioxin levels many times higher than the Agent Orange produced by Dow Chemicals, the other manufacturer
(which is why Monsanto was the key defendant in the lawsuit brought by Vietnam War veterans in the United States).”

Read more: Monsanto’s Dirty Dozen: The 12 Most Awful Products Made By Monsanto

Why should Ghana be required to cede our sovereignty over public health issues to corporations with a track record marketing dangerous products? What type of business proposal is this one?

This entry was posted in National Campaign Against UPOV/ Plant Breeders Bill, News, Our Campaigns, Press Releases and Statements on November 24,