Laws and Regulations under TRIPS Art. 63.2 - View details of the document

Draft Law related to Breeder Protection Rights for New Plant Varieties
The Draft Law has been prepared by taking the 1991 text of the UPOV Contract. The purpose of this Draft, which covers the whole plant varieties, is to encourage the development of new plant varieties, and to provide the prevention of breeders rights. At the same time, it also aims the protection of the rights of the real and legal persons of the nationals of the States which provide legal or actual protection to the citizens of the Republic of Turkey in accordance with the reciprocity principle. The plant varieties indicated in this Draft Law which have novelty (5), distinctness (6), uniformity (7) and stability (8) conditions; in case they have not been sold for the purpose of usage or if they are not offered to public, for one year inside country, four years abroad, for six years for trees and grapevines, beforehand, do make use of within the framework of this Draft Law, provided that they are named (9) and the affection of the payment of the fee (34). Article 10: The period of protection is 20 years. This period is 25 years for trees and grapevines. Article 14: The breeder right belonging to new plant varieties belongs to the breeder himself or his legal successors, and monopoly rights are given to the owner of the right for production or reproduction, offering for sale or to the market, to prepare for the purpose of reproduction, to export or to import, and to store for all these activities that do not have commercial purposes, are outside the authorization. Article 17: The plant varieties which are taken into farmers exception have been determined by counting them, it is made possible that the farmers to make use of the production they make in their own fields, and the reproduction material of the protected varieties again in their own fields, for production. Those farmers who have fields to produce 92 tons of grains or less, will make use of farmer exception. Article 18: The obligatory license conditions are determined in the Draft, and the right of application for the obligatory license have been given. It has also been stated that the obligatory license will only be given when public advantage is existent, and what the public advantages are. Article 19: The situations of the exhausting of the breeder rights are indicated. In the Draft, the breeder right conditions (21) are determined, the use of the priority right (22) is made possible in the application, the investigation way of the application (23) is determined, and the reasons of rejection (30), and objection to the application (25) situations are counted. Article 31: In case the variety is found to be in accordance with Article 4 of the Draft as a result of the investigations and the owner of the application has performed the processes indicated in the law, then the breeder right is registered. Article 33: It has been made possible to make objection to the registering on the grounds that there would be lacking points in the processes, by third persons. Article 34: The Draft states two types of fees. The first one is related to certain transactions (i.e. registration, application, issuing copies) made by the Institute; the second one is charged annually. Article 35: The obligation undertaking of keeping and counting of the protected variety or its genetic parts, during the validity period of the right to the owner of the right, in the Draft Law. Article 37: Within the jurisdiction of this legislation regarding the application or registration for one variety, can by natural right be transferred or transferred by inheritance means. These rights can be realised by death dependant transactions. Article 38: It has been stated in the Draft that the right of use which arises from the registering, may be subject to a monopolized or non-monopolized license contract, in such a way to be effective in the borders of the country. Article 40: It has been specified in the Draft in cases where novelty, distinctness, uniformity and stability conditions have not been realized by the date of the application or when it is understood that the application has been made in the name of an unauthorised person; the breeder right will be counted as invalid by the court. It has been stated that the demand for invalidity (41) would be requested by anybody who has interest, and the effect of the invalidity (42) will be retroactive. Article 43: It has been specified that in the situations of termination of the registered breeder right, the giving up by the owner of his right, and not affecting the annual payments within the determined periods, the right will end. It has been determined in the Draft Law: the situations which are considered as violation of the right (44), the demands (45) of the owner of the right in case of violation of the right (45), and the courts which are authorized in the legal lawsuits. Apart from these, it has been made possible that the owner of the right may open lawsuits of amount, lawsuit of determination (50), and demand for precautionary measures. Enforcement-sanctions: Article 54: The cases of violation of the right are counted in the Draft Law and it is determined that those who commit the acts stated in subparagraphs (a), (b), (e) and (f) of Article 44 on purpose are fined with a sentence of imprisonment from thirteen months to two years or they will be sentenced to pay a heavy fine from five billion liras to ten billion liras or they will be sentenced to both, and it will be decided to close down the work places of those who deal with commerce for a period of not less than one year and they will be prohibited from trading for the same period. Those who violate subparagraphs (c), (d) and (g) on purpose, will be sentenced to pay a fine of five billion liras. Those who announce themselves as the owner of the right, which is against reality, these persons will be sentenced to pay a heavy fine of five billion liras. In case acts mentioned in subparagraphs (a), (b) and (c) of Article 54 are committed by the employees of a facility, directly by themselves or by order while they were performing their services, then the employees and the owner of the facility who does not avoid the committing of the act, his representative or administrator or the person who manages the facility under whatever name it might be, will also be fined in the same way. In case any of the acts stated in Article 44 is committed, while the works of a legal person are being made, then the legal person is also jointly responsible for the costs and sanctioned by a fine. Article 56: It is determined that the authorised courts for all of the lawsuits related to this Draft Law are the specialized courts. A register (58) has been created by this Draft Law which covers the register of breeder right. Apart from this, it has been decided in the Draft Law that a breeder right bulletin (59) will be published that will cover the points mentioned in the Draft Law. Maintenance and Acquisition: Articles 60-84: A new organization is established by the Draft Law under the name of Turkish Variety Register Protection and Seed Certification Institution for the application of this Draft, which is well-organised, with a perfect infrastructure, which can conduct the administrative processes, having the necessary equipment and trained personnel, and in compliance with international standards. Additionally, for the maintenance of the right, Article 34 obliges the right owner to pay an annual fee. Concerning acquisition, see Article 14.