Plant variety protection (PVP) was discussed in Brazil for the first time in 1976 with the intention of drafting a law that would regulate intellectual property concerning plant breeding since the Brazilian Patent Law never permitted and until now it does not permit protection for any kind of plant. At that time, the matter was restricted only to the people that worked in the Ministry of Agriculture, without greater involvement of the Government and social sectors.
Some years after, due to the advance of the used techniques for planting and the increased investment in agricultural researches, new vegetable species and improved seeds were obtained. In view of this, there was a real need in establishing a regulation that would guarantee some benefit to the breeder/creator to continue investing in this area. Within this context, the Cultivar Protection Law (LPC) was created and promulgated entering into force on April 25, 1997. On this date, Brazil ratified its option by using a sui generis protection mechanism, promulgating the first legislation that ensured the rights to the breeders – Law No. 9456 (Plant Variety Protection – LPC), regulated by Decree No. 2366 of November 5, 1997. In addition to the implementation of the LPC, the National Congress approved, through Legislative Decree No. 28 of 19 April 1999, the text of the International Convention for the Protection of New Varieties of Plants, as Act of 1978. Then, the President of the Republic promulgated the Convention by Decree No 3109 of 30 June 1999, confirming the Brazil’s accession to the International Union for the Protection of New Varieties of Plants (UPOV). Subsequently, the National Plant Variety Protection Service (SNPC) was created and the responsible body for the management of administrative and technical aspects related to this theme became the Ministry of Agriculture, Livestock and Food Supply (MAPA). In summary, from that date on vegetable varieties have been protected in Brazil as cultivar.
Cultivars are species of plant that have been improved by changing or by artificial introduction of features that the plant previously did not have and based on their productive characteristics, appearance or other that make it interesting for cultivation. The used technique for plant breeding encompasses from traditional techniques of crossing and selecting between plants until the use of genetic engineering. For granting protection, it does not matter whether the method of obtaining a plant involved rudimentary, conventional or modern and complex techniques. The most important is the result itself, i.e., the emergence of a new cultivar, which accredits the breeder to require its protection.
More specifically, the Brazilian LPC defines that it is liable of protection a novel plant variety or a plant variety essentially derived from another cultivar provided that they meet the conditions of novelty.
The cultivar is considered novel if it has not been offered for sale in Brazil for over twelve months of the date of the request of protection and that; with due regard to the term for commercialization in Brazil, has not been offered for sale in other countries, authorized by the breeder, for over six years for trees and vine species and for over four years for any other species. In other words, the applicant has until one year counted from the first sale in Brazil to request the protection and four or six years if the first sale has been carried out abroad. This first date of trading is a decisive factor for defining whether the cultivar is novel or not.
The cultivar should further present as characteristic distinctness, homogeneousness (uniformity) and stability (DUS).
A cultivar is considered distinct if it presents any characteristic that clearly distinguishes it from other similar plants of the same species. The cultivar should present in culture and should maintain, during the process of propagation, a single set of characteristic that clearly distinguishes it from other similar plants of the same species.
The cultivar is considered homogeneous if when used in planting, on a commercial scale, it presents a minimum degree of variance as to the descriptors, which identify the same. That is, the set of plants used in planting cannot present discrepant characteristics among themselves.
The cultivar is considered stable when reproduced on a commercial scale, maintains its characteristics preserved throughout successive generations.
Once the plant variety meets the requirements explained above (novelty and DUS), protection is granted. The protection of intellectual property rights regarding plant varieties is performed through the granting of a PVP certificate, which is considered a commodity for all legal purposes and it is the only form of protection for plants in Brazil. The cultivar protection generally takes fifteen years counted from the date of granting of the Provisional Certificate of Protection, except for grapevines, fruit trees, and ornamental trees, including in each case, the rootstock thereof, for which the term of protection is eighteen years.
The protection ensures its owner the right to market reproduction in the Brazilian territory, being prohibited third parties, during the period of protection, of producing for commercial purposes, offering for sale or commercialization the propagation material of the plant variety, without authorization of the owner. That means, currently, the scope of protection of a plant variety falls upon the reproduction or vegetative multiplication material of the whole plant (seeds, seedlings, tubers, cuttings, sprouts and clones). The Brazilian cultivar law also guarantees the rights to small producers (farmers). This right is already internationally established, allowing the guard, exchange and use of seeds for the next harvest, which ensures a minimum autonomy for small producers.
Nevertheless, the cultivar definition presupposes the possibility of the plant varieties are multiplied by successive generations. Once available in the market, a protected cultivar is liable to be easily reproduced without the knowledge of its owner.
It is common knowledge, for example, that to produce a new violet seedling, one should only plant a leaf on the ground and water it. In this way, we can create identical seedlings to the plant from which the leaf was removed. However, if the initial plant was a protected cultivar and the obtained plants were intended for trade, the planting moment of the leaf would already be considered a clear violation of right owner protection. If the plants were kept only on the domestic sphere, however, this situation would be considered an exception that would not hurt the right owner.
Owing to Brazil’s size, it is very difficult to control and eliminate seeds piracy. It has been a hard task. With the objective of reducing the vulnerability of the protected species that has its reproduction based on vegetative propagation, the Brazilian Congress has discussed a proposal for amending the cultivar law extending the protection to the whole plant and not only until its reproductive structures. In this case, the property right would be extended to any activity with the protected plant (production, marketing, exportation or storage of part or the whole plant) as well as would prohibit the marketing of the harvested products without authorization of the owner of the protection rights. The only exception to this rule would be the members of traditional groups, communities, family and small farmers who make use in their own establishment and donate or exchange between themselves with the only intention of subsistence.
Another important point under discussion is the term of protection. The proposal suggests that grapevines and trees in general have protection for 25 years and the other species for 20 years instead of 18 and 15 years as today. The extension of the protection term is justified by the fact that the current term would not reward the years of researches and spent investments in the project of a new variety since certain plants have a long growth cycle and the gain of the owner after the granting would be small since the cultivar would fall into the public domain quickly.
The new proposal also mentions that any vegetable specie could be protected and not only the species that have their respective minimum descriptors disclosed by the SNPC.
The enforcement of the LPC regarding sanctions on violation of the established rules is also a big concern for agents involved in the seed production system. There is only one article of the LPC that mentions administrative, civil and penal sanctions, limiting understanding and applicability of the provisions. LPC does not establish criminal sanctions or penalties for those who violate breeders’ right. In order to strength those rights, the proposal under discussion splits this article so as to better define the administrative, civil and criminal offenses and establish penalties to be applied.
All these changes in the Cultivar Protection Law are important to rectify the divergent themes indicated above through refinement of the control systems and improvement of the technical and administrative provisions, strengthening the Brazilian PVP system and maintaining high levels of incentive for technological innovation so as to bring benefits to all the sectors involved. Moreover, all these changes provide the country with important instruments to insert the agriculture into the global economy context, thereby increasing the technologic interchange with developed countries and the diverse economic blocks.