Farm Saved Seed in The

Farm saved seed in the

Czech Republic

1. Variety Owners' Co-operative

The Variety Owners' Co-operative was founded in December 2001 by the holders of the breeding rights – for the plant varieties developed by the Czech companies, and by the authorised representatives – for the foreign varieties.

The reason for establishing the Co-operative was to form a joint organisation which would collect information and remunerations for the use of farm saved seed the plant protected varieties.

The inaugural meeting adopted the articles memorandum of the Co-operative. Based on the articles, the Co-operative is an association of legal entities and individuals representing the owners and representatives of the plant varieties registered in the Czech Republic. Membership of the Co-operative is eligible for those registered in the National Variety Book as the keepers or holders of the breeder's right or their representatives in the Czech Republic. The Co-operative's activity is managed by a five-member board. According to the Co-operative's memorandum, the board is elected to comprise at least 3 representatives of the breeding companies which are demonstrably engaged in breeding new varieties. The routine activities are managed and organised by the Director.

The Variety Owners' Co-operative has its registered office in Troubsko. At present, the Co-operative has three full-time employees, 27 members and four contractors. With certain exceptions, the Co-operative associates all holders of the breeders' rights or their representatives in the Czech Republic covering the varieties of species where the utilisation of farme saved seed is permitted. Apart from the issues concerning farm saved seed, the Variety Owners' Co-operative is authorised and appointed to represent and defend the interests of the breeders' right holders based on the legal protection of plants. In addition, the Co-operative offers its members a service of collecting the licence fees for sale of certified seeds. The Co-operative is a full member of the Czech Seed Trade Association. The Co-operative's director is a member of the ESA Task Force on Farm Saved Seed.

2. System for collection of information and remunerations for utilisation of farm saved seed in the Czech Republic

Rights to the plant varieties in the Czech Republic were initially governed by Act No. 408/2000 Coll., On Protection of Rights to the Plant Varieties. This Act also specified the conditions and requirements for conferring the rights to the varieties, proceedings concerning the protective rights, their scope and imposing the penalties for violation of or failure to obey the duties set out by the same Act. The Act conferred an exclusive right on the holders of the breeders' rights to the protected variety to exploit the propagating material of such variety in the following ways:

a) Production or propagation

b) Processing for the purpose of propagation

c) Offering for sale

d) Sale

e) Market introduction for Member States and export to third countries

f) Market introduction from Member States and import from third countries

g) Stocking for the purposes indicated in letters a) to f) above

Other persons may use the protected variety in any of the aforementioned fashions on the exclusive basis of a written licence contract. For utilisation of certified seeds, the farmer is not requested or obliged to claim the utilisation of the protected variety or to pay the licence fee. The licence fee is paid by the concessionary (license holder) – seed producing organisation which concluded a licence contract with the breeder. Possible utilisation of the protected variety by the farmer in the form of farm saved seed, i.e. without the licence contract, is an exception to the title of the breeder's right holder the protected varieties. This exception allowed the farmers – who are capable of process the seeds by themselves or process the seeds at any other entity at a specified charge – to reasonably utilise the protected varieties from the less expensive propagating materials than the certified seed. In 2005, an amendment to the Act was prepared and adopted concerning the protection of rights. The amended Act came into force in December 2005. The amendment brought forth significant changes in the relations to farm saved seed, the intention of which was to adjust the Czech legislation and unify it with the EU's rules and regulations. The reason for the amendment was that the foreign plant varieties, which enjoy the EU legal protection and are put onto the market, are protected by the EU legislation based on the Council Directive No. 2100/94 On the Variety Rights in the EEC. The majority of changes were focused on the reinforced enforceability of breeder's rights to the varieties.

The system for collection of information and remuneration for use of farm saved seed in the Czech Republic System was based on the following facts and circumstances arising out of the national act on the protection of rights to the plant varieties:

1) The entrepreneur in agricultural production (hereinafter referred to as "the farmer") is authorised without the prior consent of the breeder's right holder to utilise the legally protected variety of his own harvest. This reproductive material may be used exclusively for his own need to grow the plants on arable land owned, leased or sub-leased by the same. Such propagating material should come from the certified material, either immediately or as a result of repeated reproduction.

2) The term "potato farm saved seed" refers exclusively to the propagating material of the legally protected variety gained immediately from growing the certified propagating material.

3) The farmer may utilise only the following plant species in the form of farm saved seed and protected variety planting:

a) Cereals:

- Oat

- Barley

- Rye

- Triticale

- Wheat (common, durum, spelt)

b) Fodder plants

- Yellow lupine

- Lucerne

- Field pea

- Alexandrian and Persian clover

- Field bean

- Common vetch

c) Potatoes

d) Oil and fibre plants

- Swede rape

- Turnip rape

- Linseed (except flax)

4) Upon request of the breeder's right holder, the farmers and the processors are obliged to inform the former in writing of their name, place of business/registered office, registration number, scope of application of farm saved seed, including the utilisation of the certified propagating material for the variety concerned.

4) Upon request of the breeder's right holder, the farmers are obliged to submit to the former the written data about the processor, unless the farmer process farm saved seed by themselves.

The system for collection of information is based on the aforementioned provisions, written notices and the farmers' obligation to disclose information about utilisation and non-utilisation of farm saved seed.

Twice a year, all the farmers who grow plants on arable land with an area above 22 hectares are sent a questionnaire to indicate all the information concerning the utilisation of farm saved seed:

- As of 31.12. in the year of winter crops

- As of 15.07. in the year of spring crops

The questionnaire requests only the information which the breeder's right holders are authorised to in accordance with the legislation.

The questionnaire also includes a list of protected varieties for which the Co-operative is authorised to collect the remunerations, a price list, and a copy of power of attorney granted by the breeder's right holders.

6) The farmer is obliged to pay the breeder's right holder for the utilisation of the protected variety at 50% of the usual price of the certified propagating material licence within 6 months of the effective date of such obligation.

7) The obligation to pay the remuneration does not apply to small farmers. The term "small farmer " refers to each farmer who manages and grows plants on arable land with an area not exceeding 22 hectares.

8) Upon request, the breeder's right holders are obliged to inform the farmer about the usual price of the certified seed licence fees for the variety concerned applicable in the relevant calendar year.

The Co-operative draws up a list of varieties and a relevant price list on the basis of the written authorisation granted yearly by the breeder's right holders. The amount of remuneration is determined per one hectare of area under crops.

The written authorisation also includes a list of certified seed licence fees and their amounts for particular varieties in the relevant year. This data is not included in the price list and is communicated to the farmer upon their written request only.

The farmers may return the filled in questionnaire to the Co-operative by mail or in the form of electronic mail (via Internet).

The farmers are also obliged to announce the non-utilisation of farm saved seed in the reported period.

If farm saved seed are used, the farmer should remit the calculated remuneration to the Co-operative's bank account.

The Co-operative's database holds approximately 5000 farmers.

9) The breeder's right holders are entitled to require information from the listed state authorities (State Phytosanitary Administration, Ministry of Agriculture, Central Institute for Supervising and Testing in Agriculture concerning the production, processing or utilisation of farm saved seed. The authorities may refuse to disclose such information in the following cases:

- information cannot be obtained within routine procedures and activities of the authority concerned

- information would be obtained only with extra costs incurred

- disclosure of the information would violate Act No. 101/ 2000 Coll., On Protection of Personal Data

The state authorities are not involved in the collection of information and remuneration for utilisation of farm saved seed. The Co-operative asks the state authorities to disclose only the information concerning the utilisation of farm saved seed, e.g. list of the farmers in the Czech Republic is requested from the Ministry of Agriculture.

If violation of any provision set out in the Act on Protection of Rights to the Plant Varieties is suspected, the Co-operative initiates the administrative action at the Central Institute for Supervising and Testing in Agriculture which is authorised by law to impose penalties for such violation. Such collected penalties are channelled to the national budget.

Damages claimed by the breeder's right holders in relation to the violation of their protected varieties may only be settled before a court of law. The Co-operative has not litigated such dispute yet.

The Co-operative has only taken legal actions against the farmers, who did not accept to or failed to pay remunerations. Such cases occur sporadically.

10) The processor is obliged to inform the breeder's right holder – upon the latter's request – about quantities of farm saved seed supplied to the former for further processing, resultant quantity after such conditioning, information about date and place of the processing, and name of the entity for which the processing was carried out.

11) Propagating material of the protected variety should not be removed from the farmer for further processing without the prior consent in writing by the breeder's right holder. Such consent is not required if farm saved seed is transferred for further processing to the processor incorporated in the List of Processors at the Central Institute for Supervising and Testing in Agriculture.

12) The processor who is to process the seeds of protected varieties must inform the Central Institute for Supervising and Testing in Agriculture about such activity in advance. The List of Processors is published and updated on an annual basis in the Journal.

Twice a year, the Co-operative distributes among all the processors an application for disclosure of necessary information which the Co-operative is authorised to obtain according to the legislation.

The information disclosed by the processors is used by the Co-operative to check and verify the authenticity of data provided by the farmers.

The Co-operative's database holds approximately 250 processors.

13) The breeder's right holders are not entitled to disclose the information concerning the utilisation of farm saved seed to a third party without the prior permission of the provider of such information or to use the information for purposes other than those related to the exercise of rights granted by the aforementioned Act.

14) Upon written request of the breeder's right holder, the farmers and the processors are obliged to produce a document which confirms the information disclosed by the latter concerning farm saved seed.

By virtue of the amended Act on Protection of Rights to the Plant Varieties (2005), the breeder's right holders were authorised to request from the farmers and the processors the documents confirming the authenticity of information disclosed by the latter. Based on this authorisation, the Co-operative designs a system for random inspections of the authenticity of data disclosed in the questionnaires. All discrepancies will be resolved with respect to their particular nature either by initiation of administrative action filed with the Central Institute for Supervising and Testing in Agriculture or before a court of law.

15) The breeder's right holders are entitled to request from the farmers and the processors the information on the utilisation of farm saved seed /including the documents confirming the authenticity of the information provided by the latter/ for the current calendar year and for three preceding years.

The amended act also governs the cases where the farmer or the processor commits an administrative tort. The administrative tort may be penalised by the administrative action up to an amount of CZK 500,000. Pursuant to § 22, a case of administrative tort include the following:

For the processors and the farmers, a failure to provide the breeder's right holder – upon his request with:

- Identification data

- Document confirming the authenticity of information provided

For the processors, a failure to inform the Central Institute for Supervising and Testing in Agriculture about the processing of the protected varieties, and a failure to inform the breeder's right holder about quantities of farm saved seed supplied to the processor for further processing, and about identification data of the entity for which the processing was carried out.

for the farmers, a failure to provide the breeder's right holder – upon his request – with:

- Data about the scope of utilisation of farm saved seed

- Data about the scope of utilisation of the certified material of the variety concerned

- Data about the processor who prepared the seeds

For the breeder's right holder, a failure to inform the farmer - upon his request - in writing about the amount of remunerations and usual price of the certified propagating material licence fees in the relevant calendar year.

The Co-operative shall inform the breeder's right holders – at regular intervals stipulated in the contract – about the amounts of remuneration collected in the relevant period, itemised by the farmer, species, variety and area under crops (in hectares). The Co-operative shall also transmit all remuneration collected to the relevant breeder's right holder.

The Co-operative charges its members and contractors are for such activity on the basis of the amount of remuneration actually collected.

The entire system for collection and registration of information, statistic and invoices is processed electronically.

Ing. Vojtech Dukát