Key exemptions to the breeder’s right

The UPOV 1991 Convention contains key exemptions to the “breeder’s right” intended to balance interests and ensure benefit sharing. The mandatory exemptions to the breeder’s right include:

(i) acts done privately and for non-commercial purposes, 

(ii) acts done for experimental purposes 

(iii) acts done for the purpose of breeding other varieties

Acts done privately and for non-commercial purposes: This provision allows amateur gardeners to use propagating material for use in their own garden without seeking authorization so long act is private and non-commercial. Additionally, a farmer can propagate a protected variety to be used exclusively for the production of a food crop to be consumed entirely by that farmer and his/her dependents (i.e. subsistence farming).

Acts done for experimental purposes: The breeder’s right does not extend to the use of a protected variety for experimental purposes. This means that a researcher or scientist can conduct studies on a protected variety, and publish results of those investigations, without seeking authorization from the right’s holder. This is an important provision which encourages contribution to the body of scientific knowledge about various plant varieties.

Acts done for the purpose of breeding other varieties: This is a fundamental element of the UPOV system, ensuring that no restrictions can be placed on protected varieties for the purpose of breeding new plant varieties. This means that breeders can always use protected varieties in their breeding program to contribute to developing improved varieties which benefit farmers and society in general.

Farmer’s Privilege: The UPOV Convention contains an optional provision which allows member countries to further restrict the breeder’s right, permitting farmers to use propagating material obtained from their own holdings, to subsequently grow crops. This exemption to the breeder’s right is often known as the “farmer’s privilege”.