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4-Patents: Implementing a sui generis system of protection in Zambia

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TITLE:  Implementing a sui generis system of protection in Zambia
DATE:   May 31, 1999

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by Edward D. Zulu [2], Rosemary M. Makano [3], Anessie Banda[4]

May, 1999 - Lusaka, Zambia Paper presented at the UPOV-WIPO-WTO
Joint Regional Workshop on "The Protection of Plant Varietiesunder Article 27.3(b) of the TRIPS Agreement", Nairobi, 6-7 May 1999



2.1	Patent Legislation and its Scope
2.2	Revision of the Patent Act
2.3	Protection of Plant Varieties under the Patents Laws
2.4	The TRIPS Agreement on Article 27.3(b)
2.5	Implications of Patenting Plant Varieties and Life Forms
2.6	The Sui Generis System
2.7	Africa Regional Initiatives in the Sui Generis System of

3.1	Status of the Plant Variety Protection in Zambia
3.2	Membership to UPOV

4.1	The Informal and Formal Seed Sector
4.2	Seed/Variety Quality Control and Certification
4.2.1	Variety Release
4.2.2	Seed Certification
4.2.3	Crop Breeding
4.2.4	Seed Production and Marketing
4.2.5	Plant Genetic Resources Conservation





Zambia is a member of the World Trade Organisation (WTO) and
actively participates in its meetings as per WTO's membership
requirements. Zambia is also party to various international
conventions and agreements that promote sustainable management of
biodiversity and their sustainable use. In particular, and to
mention but a few, Zambia is party to the Convention on
Biological Diversity (CBD), the Convention on International Trade
in Endangered Species (CITES), and the International Undertaking
on Plant Genetic (IU).

2.1 Patent Legislation and its Scope

The Zambian Patent Law, Cap 400 of the laws of Zambia, shares a
lot of things in common with the British Patent Act. The Act
regulates the grant of protection for inventions in Zambia and
does not exclude any field of technology. However, the Registrar
is given powers under this Act to deny protection to inventions
deemed to be contrary to public morality or law. Further,
substances used as food or medicine which are mere mixtures ofknown ingredients, or a process for obtaining such mixture are excluded from patentability (Section 38 herein refers).

Specifically, the Act excludes from patenting the following:
(i)   Any discovery, scientific theory or mathematical method;
(ii)  A literary, dramatic, musical or artistic work or any other
      aesthetic creation;
(iii) A scheme, rule or method for performing a mental act,
      playing a game or for doing business or a computer
(iv)  The presentation of information;
(v)   The patenting of any variety or animal or plant or any
      biological process for the production of animals or plants,
      not being a microbiological process or the product of such
      a process;
(vi)  Any invention whose exploitation may encourage offensive,
      immoral or anti-social behaviour.

The Zambian Patent Act further gives the Registrar of Patents
discretionary powers to refuse to patent any invention which
falls in the following categories:

- one which is frivolous as it claims as an invention a substance
  which is obviously contrary to well-established natural laws;
- the use of which would be contrary to law or morality;
- one which claims as an invention a substance capable of use as
  food or medicine which is a mixture of known ingredients
  possessing only the aggregate of those ingredients' properties,
  or claims as an invention a process for producing such a
  substance by mere mixture.

2.2 Revision of the Patent Act

Areas requiring amendments have been identified, but the actual
process of amending this legislation has not resumed. Since the
exercise is just at the stage of identifying sections requiring
amendment, this task in being undertaken by the Patent Office.
Naturally the process of this review will be co-ordinated by the
Patent Office, under guidance from the Ministry of Commerce,
Trade and Industry. As per national legislative review
requirements, all the relevant stakeholders will be involved in
this process. Amendment of the Patent Act would entail some
substantial changes in its content and focus. At the moment it
may appear that enforcement is not very strict and once the
Trade-Related Intellectual Property Rights (TRIPS) Agreement is
implemented in full it will require adjustment in the conduct of
business activities.

2.3 Protection of Plant Varieties under the Patent Laws.

As indicated earlier, the Patents Act allows the Registrar, on a
discretionary basis, to refuse certain classes of applications
for a patent. However, the Act is not very clear on plant variety
protection. Therefore, by interpretation, it is possible for the
Registrar to grant a patent for a plant variety, but only if it
can meet the criteria for an invention and if the complete
specification "fully described the invention and the manner in
which it is to be performed". Under such circumstances the
question of obviousness and reproducibility would need to be

The difficulty with protecting plants under the patent laws is
that they confer property rights which are private in nature.
This means that under this law, once a patent is granted the
owner enjoys exclusive rights to his or her invention. Therefore,
the grant of a patent for a plant variety would mean "to grant to
the patentee, subject to the provisions of the Act, full power,
sole privilege and authority by himself or herself, their agents
and licensees during the term of the patent, to make use,
exercise and vend the invention within Zambia in a manner that
would ensure that he/she enjoys the whole profit and advantage
accruing by reason of the invention during the term of the

This would mean that the patentee would be empowered to control
in total, the use of his/her plant varieties, including the
saving of seed and its re-use on farms. The legislation does not,
therefore, provide for "farmers privilege". To date, there have
been no applications for patents on biological material or
biotechnological processes and as such no patents have been
granted for such. Equally, there has been no variety protection
granted under this Act and presently the Plant Breeders' Rights
Act is being formulated to address the issues of plant variety
protection. See details in Section 3 of this paper.

2.4 The TRIPS Agreement on Article 27.3 (b)

Article 27.3(b) of TRIPS states that:
27.3 "Members may also exclude for patentability. (b) plants and
animals other than micro-organisms, and essentially biological
processes for the production of plants or animals other than non
biological and microbiological processes. However, members shall
provide for the protection of plant varieties either by patents
or by an effective sui generis system or by any combination
thereof The provisions of this subparagraph shall be reviewed
four years after the date of entry into force of the WTO

By interpretation, this article may be understood to provide
inter alia that plants, animals and essentially biological
processes for the production of plants or animals are patentable,
but these may be excluded from patentability, depending on a
country's preference. However, members are obliged to provide
protection for plant varieties either by patents or by an
effective sui-generis system or by a combination thereof.

2.5 Implications of Patenting Plant Varieties and Life Forms

Article 27.3 (b) has been viewed as one that will make developing
countries lose control over their own biodiversity and the
benefits they derive therefrom if patenting of plant varieties
and life forms is permitted. Developing countries are endowed
with rich biodiversity and allowing monopolies over these
resources through patenting will curtail the enjoyment of these
benefits by communities. Opting to extend the patent laws to
plant varieties will be setting up a system of private rights for
certain individuals and to prevent others from making, using or
selling the protected variety or any product that might have
patented genetic information. Consequently, farmers will not to
be able to freely access or re-use their seed, nor will they be
able to save and, or exchange seed.

Patenting of plant varieties does not provide for benefit sharing
as this will be a private right of the patentee to the exclusion
of anybody else. Major companies will have monopolies and secure
ownership of plant varieties which contain genetic information
obtained from the farmers' own fields in the developing
countries, which would then be sold back to them with a royalty
charge added thereto.

2.6 The Sui-Generis System

Article 27.3 (b) also provides for the protection of plant
varieties through an "effective sui-generis system". This term
has, however, not been defined sufficiently. It is difficult to
determine what an effective sui generis system for plant
varieties will entail.

It appears most likely that it might be on the lines of the
International Union for the Protection of Plant Varieties (UPOV)
inspired system. However, the sui generis system that allows
developing countries like Zambia to provide for the protection of
plant varieties should be developed and this should, in addition,
accord recognition to innovations of indigenous peoples and local
communities. In terms of definition, such a statute should define
innovation to include any inventive input done collectively,
accretionally, inter-generationally and over a period of time, in
relation to genetic resources. The intellectual ownership rights
of farmers and indigenous peoples over their plant varieties and
seeds should be recognised and rewarded.

2.7 Africa Regional Initiative on the Sui Generis System of

Delegates to the "Africa Regional Workshop on Understanding
Biodiversity-Related International Instruments" that was held in 
Lusaka, Zambia from 11-15 January 1999 set up a Task Force to
draft an African Model Sui Generis Protection System for
biological resources, indigenous knowledge and innovations
embodying the lifestyles of indigenous peoples and their local
communities. The Draft African Model Sui Generis Protection
System will be discussed at an African Regional Meeting later
this year, under the auspices of the Organisation for African
Unity (OAU), where it shall be adopted by the African countries.


The Zambian agricultural industry has in general undergone a
remarkable transformation evolving from a highly centralized and
government controlled to one that is liberalized. These
liberalization policies have stimulated investment in the seed
sector where the private sector and non-governmental
organisations (NGOs) have taken an active role in seedproduction, marketing and distribution. These changes have signif
cantly influenced the thinking and the direction of the seed
industry in general and have in turn initiated policies related
to Plant Variety Protection.

In Zambia, plant variety protection was not a common subject for
discussion in agriculture until about 1991 when policies of
economic liberalisation were introduced. As a result of these
policies, many seed companies opened businesses in Zambia.

As these new investors started operating, they noticed that
Zambia did not have mechanisms to protect their varieties from
being 'stolen' by other companies. The Ministry of Agriculture,
Food and Fisheries (MAFF) also became concerned that its
varieties stood a high risk of bio-piracy from some seed
companies, some of whom did not have superior materials at the
time and were interested in gaining access to the Zambian public

Arising from these fears and the resulting pressure from
industry, it was decided that a suitable piece of legislation be
put in place to address the various concerns.

Currently, plant variety protection is formally recognised as an
essential tool in the development of the agricultural sector, and
the seed industry in particular, because the system provides the
following benefits:
- Encouragement of investment in plant breeding.
- Attraction of foreign varieties and technologies.
- Multiplication of foreign varieties in the country.
- Development of varieties adapted to specific conditions of each
- Maintenance of varieties.- Protection of own varieties against   appropriation by others
- Disclosure of technologies.

3.1 Status of the Plant Variety Protection in Zambia

Currently, Zambia is in the process of enacting law on plant
breeders' rights to address issues related to the protection of
plant varieties. To this effect, the MAFF has drafted a Plant
Breeders Act which has yet to take legal effect. In line with
government procedures on formulation of legislation, the DraftAct is receiving public input from all the relevant stakeholders

The draft had a fair input from UPOV and the comments given were
often timely and useful. The draft is mainly based on 1978 Acts
of the UPOV Conventions on the protection of new plant varieties,published by UPOV in 1996. This model law was very
useful an has still remained a useful reference material.

Some of the major concerns expressed by the public were that the
Draft Act did not comprehensively protect community owned
landraces (farmers' varieties) and other plants of various uses,
which the communities have kept for generations. It was felt that
the Act was also more biased towards cultivated plants and made
little or no reference to other useful plants. It was further
noted that the Draft Act seems to have narrowed its scope and
placed more emphasis in protecting the rights of individuals,
mainly breeders and seed companies, and remained silent oncollective community knowledge and intellect. It was no wonder
that the Draft Act was called the "Plant Breeders' Rights Act".
The Actdoes not seem to recognize the intellectual rights of
communities and, with the current government policy on the
promotion of the informal seed sector, clearly this was found not
to be in harmony with government policy and, therefore, require
to be re-visited.

As a result of the above concerns, the Draft Act on Plant
Breeders Rights has briefly been put on hold in order to allow
for wider consultations to take place. Furthermore, this delay
also gives Zambia an opportunity to incorporate, into the Plant
Breeders Act, the recommendations from the Lusaka Task Force and
the OAU Draft Models on Sui Generis Protection Systems. It is
expected that inputs from all these sources would assist to
adequately take into account the aspirations of communities and
their cultures so that their collective intellectual and
ownership rights are protected.

3.2 Membership to UPOV

Zambia's understanding of the UPOV Convention of the 1991
provisions is that it introduces a somewhat patent system in a
way which will give exclusive and private ownership rights on
plant materials. This would, in turn, prohibit farmers from
growing protected varieties and exchanging seeds on a non
commercial basis. The system would, in addition, require that
farmers pay royalty fees for every seed they purchase. Further,
according to this Act, farmers using a protected variety without
paying royalty fees could lose their produce as the breeder or
originator could claim ownership.

Unless our interpretation of these provisions are wrong, Zambia
fears that if the 1991 Acts are left in their present form, it
might be difficult for Zambia to achieve the goals of integrating
the formal and informal seed supply systems which is the current
government direction. It is further feared that with this Act,
government's commitment to the Convention on Bio-Diversity (CBD)
might be compromised.

Another point requiring consideration is the cost of becoming a
member of UPOV and the subsequent fulfillment of its obligations
which Zambia, and perhaps many developing countries, might not
easily afford. There is no doubt that the benefits of being a
member of UPOV abound, but UPOV may wish to reconsider
incorporating some of the provisions of 1978 Act into the 1991
Act to make the conditions a bit more acceptable,

Given the above scenario, Zambia has no immediate plans to become
a member of UPOV. The country is currently developing an informal
seed supply system which places emphasis on the on-farm seed
production and farmer to farmer seed exchange. There are fears
that membership to UPOV might affect the efforts directed at
promoting the informal seed production and rural seed
entrepreneurship. The deadline of April, 1999 regarding closure
to further accession to UPOV 1978 Acts in favour of the 1991 Acts
needs a careful thought before making attempts to join.

Zambia will, at the moment, cautiously follow these developments
and would decide to join UPOV at the appropriate time when her
concerns are cleared.


Zambia's seed production and supply system essentially comprises
the informal and formal sectors and it has been a matter of
government policy to promote an integrated seed provision system.
The informal seed sector is therefore being promoted following
the failure by the formal seed sector to adequately supply seed
to remote parts of the country.

A number of reasons have been advanced for the failure of the
formal seed sector to supply seed to remote parts of the country.
The formal sector prefers trading in hybrid seeds which have an
in-built assurance for repeated sales. In addition, the formal
sector has found it difficult to operate in the rural areas due
to poor road infrastructure. Because of the high prices
associated with hybrid seeds, small scale farmers are also unable
to afford them.

In order to address this problem, government is now promoting on
farm seed production by the farmers themselves, either
individually or through community groups. It is envisaged that
on-farm seed production would ensure availability of seeds either
through barter or cash transactions, or free exchange among the
farmers themselves. The system is expected to evolve with the
development of village seed entrepreneurs who would take the lead
in seed marketing within their rural communities.

The government of Zambia recognizes, as a matter of policy, that
it will recognize and support an integrated seed supply industry
comprising the informal and formal sectors in complimenting each
other to achieve crop diversification and household food

4.1 The Informal and Formal Seed Sectors

The informal sector is characterized by use of traditional
varieties (farmers' varieties) and, to some extent, recycled
improved seed which may have earlier been certified. This system
accounts for well over 70% of national seed provision especially
for non hybrid varieties. This sector is mainly driven by farmer
communities and NGOs. Seed quality control in this sector is not
as stringent as the one operative in a formal seed sector.

The seed classes moving in this sector are mainly those of
Quality Declared (QD) which are generally lower than certified
seed classes.

The formal sector has been dominated by the use of improved and
certified varieties, especially hybrids. Supply systems under
this sector accounts for about 30%. The major suppliers have been
seed companies who have marketed the seed through a network of
seed stockists, agencies and NGOs who are scattered throughout
the country. The system is more organized than the informal seed
sector and quality control is quite stringent than in the other

4.2 Seed / Variety Quality Control and Certification

Seed / Variety quality control and certification is controlled
under the Seeds Act which provides regulations regarding the
release of varieties, testing of seeds, inspections and imports
of seeds. It also gives conditions for sale of seeds in the
country. Under this act, only varieties that have been adequately
tested under the Zambian conditions and are entered into the
official variety list are eligible for marketing in the country.

Seed quality control and certification was until recently done by
the government. The private sector was not allowed to
participate. Following the liberalization of the economy, the
Seeds Act was amended to allow for participation of seed
companies in this activity by licence. The certification scheme
recognizes voluntary and compulsory certification. Hybrid
varieties fall in the compulsory category of certification and
the implication is that seed can not be sold from such varieties
unless it is certified.

4.2.1 Variety Release

According to the Act, only released varieties can enter seed
production. A variety will normally require two seasons of
independent testing before it can be released. There is a Variety
Release Committee which decides on whether a variety can be
released or not, The Committee also sets the release procedures
and recommends varieties for removal from the list if found to be

4.2.2 Seed Certification

Field inspections are done for all seed crops and the intensities
will differ on whether the crop is hybrid or open pollinated. All
the seed allowed to be traded on the Zambian market is tested for
germination, physical purity, moisture, weed content and other
parameters. The tests are done in compliance with the
International Seed Testing Association (ISTA) rules.

4.2.3 Crop Breeding

Crop / plant breeding has mainly been in the hands of the public.
The majority of crop varieties available on the Zambian seed
market are all bred from government research institutions. These
varieties are in turn forwarded to Zambia Seed Company (ZAMSEED)
Limited which was given the sole right to commercialize the

Foreign companies, except one private local Zambian company, have
not established variety development and improvement programmes in
Zambia. All their varieties are bred outside the country. Most
foreign companies are merely trading in seeds and do not
undertake research and development in Zambia.

4.2.4 Seed Production and Marketing

Seed production is mainly done by the private sector, financed by
seed companies and to some extent NGOs. Government does not
participate in seed production but has an interest in the
strategic seed reserves which it finances through ZAMSEED
Company. Similarly, marketing is done by seed companies through a
network of seed stockists and agents.

4.2.5 Plant Genetic Resources Conservation

The National Plant Genetic Resources Centre (NPGRC) was
established in 1989 charged with the following specific
- To gather, through exploration and collecting missions carried
  out in different ecological zones, information and materials of
  plant genetic resources of all indigenous and adapted exotic
  crops, their wild relatives as well as useful or potentially
  useful wild species.
- Characterization and evaluation, rejuvenation, maintenance,
  multiplication and documentation of collected and stored
  material in collaboration with the Regional SADC Plant Genetic
  Resources Centre (SPGRC).
- Preserve, through in situ conservation, other useful wild plant
- Maintain active collections under short to medium term storage
  for indigenous and adapted plant genetic resources.

The in situ management of wild plant populations is spear-headed
by other institutions such as the Forestry Department, National
Parks and Wildlife, National Heritage Conservation Commission,
and the National Institute for Scientific and Industrial Research
(formerly NCSR - National Council for Scientific Research). The
NPGRC collaborates closely with these institutions.


Zambia has no specific legislation to regulate the collection,
conservation and use of plant genetic resources. This is taken
care of under the various pieces of legislation that regulate the
management and use of Zambia's biological resources such as the
Forests Act, the Natural Resources Conservation Act, the National
Parks and Wildlife Act, to mention but a few.

With respect to international agreements, Zambia is party to the
CBD and the IU pursued under FAO. Zambia also shares the
intention and aspirations of the FAO Draft International Code of
Conduct for plant germplasm collection and transfer, an
administrative draft document which has been put in place. This
document, although not legally binding, seeks to provide the

- To regulate the collection, conservation and use of plant
  genetic resources in ways that respect the environment, local
  traditions and cultures.
- To avoid over harvesting of germplasm that may lead to
  permanent loss of genetic resources.
- To promote safe exchange of plant genetic resources as well as
  related information.
- To provide standards of conduct and define obligations of
  collectors and others handling plant genetic resources.
- To bring recognition, incentives and respect of local
  communities who manage and make available plant genetic
- To ensure all collection activities and transfer of germplasm
  are officially sanctioned by the National Plant Genetic

Zambia is actively participating in the negotiations for the
revision of the IU which is envisaged to become a protocol under
the CBD. Zambia is, therefore, anxiously awaiting for the
conclusions of the negotiations and the revised IU.

In the absence of the revised IU, Zambia will follow the
provisions of the CBD in its handling of issues on genetic
resources. In this regard, Zambia supports the African position
on farmers' rights, access and benefit sharing issues being
discussed under the IU.


Zambia is not in favour, and does not support the use of patent
laws to protect plants and animals, including patenting of all
life forms. Instead, the country will remain committed to
protecting plants and animals using a well designed and effective
sui generis system which will be broad based as to recognize the
rights of farmers and communities at large, who have over the
years conserved various plants and animals.

Considering that Article 27 of the TRIPS Agreement hinges on
matters that concern both the enhancement of trade on one hand,
and conservation and preservation of the environment on the
other, it is imperative that the review of Article 27.3(b) of the
TRIPS Agreement takes into account the protection of the rights
of the custodians of the knowledge base, who have worked
consistently and sacrificed to conserve these biological

As a country whose rural community depend solely on agriculture
the following concerns are expressed as regards the TRIPS
Agreement in its present state:

- lack of recognition of indigenous knowledge within the
  provisions of the TRIPS Agreement.
- No clear explanation of the provisions of Articles 27.3(b) on
  the conservation and sustainable use of biological materials.
- No clear definition of what constitutes the sui-generis system
  of protection.

In view of the above 'grey' areas, there is need to provide for a
clear understanding of the coverage of the sui-generis system;
whether indigenous knowledge and ecosystem protection fall within
its coverage.

Since most least developed countries depend much on farming there
is need to recognise the contribution of farming and indigenous
communities to genetic resource conservation and enhancement. The
right to compensation for the commercial use of their materials
should be provided.

In view of the foregoing concerns, reviewing of Article 27.3(b)
in favour of patenting will undermine the very existence of
small-scale farmers who form the majority of the Zambian


As the world integrates and calls for equitable sharing of
benefits derived from the global trading system, and as it calls
for the conservation and sustainable use of the biological
resources, countries world over are faced with a number of
challenges to attain these objectives.

Considering that Article 27.3(b) of TRIPS hinges on matters that
concern both the enhancement of trade and development on one
hand, and the conservation and preservation of the environment on
the other, it is imperative that the review of Article 27.3(b)
takes into account these world concerns.

As a country whose population is solely dependent on agriculture,
our concerns still hinge on:
- The double standards that Article 27.3(b) wishes to pursue in
  relation to conservation, equitable sharing and sustainable use
  of biological resources contrary to the spirit and aspirations
  of the CBD;
- Lack of clarity on the content and provisions of Article
- Lack of recognition of indigenous knowledge with respect to the
  management of biological resources.

As rapid changes take place in plant varieties, much of the
diversity contained in landraces and farmers' varieties are under
threat of being replaced by new varieties. It should be noted
that genetic engineering and its products in food has its own
consequences whose full impact on the health of human beings is
not yet fully assessed. These posses the danger of causing
unrepairable damage of which many developing countries may not
have the capacity to handle.

Zambia is looking forward to agreeing on a system that does not
deprive farmers and communities of their rights over the
biological resources. In this respect, Zambia is in favour of
recognizing the contribution of farmers and local communities to
genetic resources conservation and enhancement, and protecting
their intellectual rights accordingly.


[1] A Country Status Paper presented at the UPOV-WIPO-WTO Joint
    Regional Workshop on The Protection of New Plant Varieties.
    06-07 May 1999, Nairobi, Kenya.
[2] Chief Seeds Officer, Ministry of Agriculture, Food and
    Fisheries. Seed Control and Certification Institute. PO Box
    350199, Chilanga, Zambia. Telefax: (+260 1) 2781336; Cell
[3] Principal Planning Officer, Ministry of Environment and
    Natural Resources. Planning and Information Department, PO
    Box 34011, Lusaka, Zambia. Tel: (+260 1) 229410; Fax: (+260
    1) 229420 / 228595; Email:
[4] Assistant Registrar, Patents and Companies Registration
    Office. PO Box 32020, Lusaka, Zambia. Tel. (+260 1) 225660;
    Cell: 704054; Fax: (+260 1) 227225

-| Hartmut Meyer
-| Co-ordinator
-| The European NGO Network on Genetic Engineering
-| Reinhaeuser Landstr. 51
-| D - 37083 Goettingen
-| Germany
-| phone: #49-551-7700027
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