Page 41 - Msingi Afrika Magazine Issue 15

Community

Any individual who knowingly commits an proof ”. This means that those who
act which constitutes an infringement of plant accuse farmers of infringement do
breeder’s right, ... shall be guilty of an offense not need to present strong proof
punishable by a fine of between 5 million Riels of such infringement, while farmers
and 20 million Riels [1250 – 5000 USD], must bear an increasing part of the
or by a period of imprisonment of one to five burden of showing that they have
years, or by both a fine and a period of impris-
onment. Re-offenders shall have their previous variety, in addition to the fine and prison not infringed the law. In order to
sentences doubled. Law on Seed Management sentence, the propagating materials obtained, do so, they must keep records of
and Plant Breeder’s Right, Cambodia44 and the materials and equipment used in the the seeds they use, buy and sell, and
process of propagating the variety illegally, shall must accept inspections of their
Any person who has infringed a breeder’s right be confiscated. Law on Protection of Breeder’s premises, fields and books when
or an exclusive exploitation right shall be Rights for Varieties of Plants, Dominican they keep them. This is in direct
punished by imprisonment with work for not Republic48 conflict with the Universal Decla-
more than ten years or by a fine of not more ration of Human Rights that states
than 10,000,000 yen, or combination thereof. d) Some of the latest draft laws that everyone must be considered
The Plant Variety Protection and Seed Act – clearly under the pressure of innocent until proven guilty.
(Act No. 83 of May 29, 1998) as amended industry – have included provisions
by Act No. 49/2007, Japan45 that would allow someone to be For the purposes of claiming the remuneration
banned from farming if these laws [for the use of privatised seed] ... any farmer
b) If a farmer uses privatised seeds are infringed. who... may be deemed to have performed an ex-
without the permission of the ploitation [of that seed] ... is obliged to deliver
owner of that variety (for example, There shall be created, under the jurisdiction of ... data to the holder – upon his request...... If
if he or she got the seed from a the National Institute of Seeds: (…) b) The the authenticity of the data provided is disput-
neighbour, or bought seed one year “National Registry of Seed Users,” in which ed, the burden of proof shall be on the farmer.
and then kept part of the harvest any physical or legal person who uses seeds shall Act XXXIII of 1995 on the Protection of
to use the next season), their crop be registered (...) Section 44. — Where the Inventions by Patents, as last amended by Act
can be seized and destroyed, as well offences defined in section 45 are committed, XXVII of 2009. Part V. Protection of
as their harvest and the products the National Institute of Seeds shall sanction Plant Varieties, Hungary50
obtained from their harvest. This the perpetrators with (...) e) temporary or per-
manent suspension from the relevant registry;
kind of sanction can be imposed f) temporary or permanent disqualification. Using this logic, the new legislations
even before the farmer accused is (...) Section 45. — The National Institute sanction or punish farmers and
actually declared guilty, as was the of Seeds shall, as prescribed in section 44, peasants before they are proven
case in Colombia, where tons of sanction anyone who: a) infringes the provisions guilty or before they are even in-
farmers’ seeds have been confiscat- of sections 9 [inadequate signage associated formed they have been accused. For
ed and destroyed based on suspicion with seeds exhibited, sold, or exchanged],18 example:
of infringement.46 last paragraph [distributing an unregistered
variety] or 29 [giving privatized seed in any a) Peasants’ houses and other
2) The holder of a breeder’s right or the holder manner]; (...) i) fails to register in the Na- buildings and vehicles in a farm can
of an exclusive exploitation right, ...may tional Registry of Seed Users as prescribed by be searched without a court order,
demand the destruction of the propagat- regulation. Draft Seed and Plant Variety Act based on suspicion
ing material, the harvested material or the (presented by the government of Argentina in
processed products which is a component of the 2012 and later withdrawn due to widespread An Inspector may, a) At any reasonable
act of infringe ment, or the objects used in the resistance)49 time, enter any place, premises or vehicles or
commission of the act of infringement, or other
measures necessary for the prevention of such 5. Guilty by suspicion
infringement. The Plant Variety Protection If sanctions are harsh, the legal
And Seed Act (Act No. 83 of May 29, procedures imposed by the new reg-
1998) as amended by Act No. 49/2007, ulations are a giant step backwards
Japan47 in the evolution of human and
social rights. The UPOV 91 laws, as
c) Tools and machinery used to well as other laws related to seeds or
manage the crops or the seeds can granting property rights over plants,
be seized as well. have increasingly imposed what is

called a “reversal of the burden of
In the case of illegal reproduction of the

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