3.9.1 Farmer-saved Propagating Material (eg seed, cuttings, tissue culture)
An Exemption with Limits

NOTE: In these chapters on Farmer-saved propagating material, reference to "seed" includes all other forms of propagating material as defined in the PBR Act 1994.

‘Farm saved seed’ is a commonly used phrase that refers to all propagating material (not just seed) kept by a farmer after the planting of a variety protected by Plant Breeder’s Right (PBR).

The Plant Breeder’s Rights Act 1994 (the Act) includes a farm saved seed provision that restricts the scope of the breeder’s intellectual property right. This section explains how this exemption works and the limitations for the grower.

Background: 1991 UPOV Convention
PBR schemes throughout the world seek to balance protection of the PBR holder’s right with the legitimate interests of other parties.

The farm saved seed exemption was made optional in the 1991 UPOV Convention (article 15(2)) to recognise the interests farmers have in keeping seed for reproduction. The UPOV 91 Convention stipulates that the exemption, if adopted by member countries, should include strict limits so that the PBR holder’s interests are safeguarded. It envisaged that member countries could allow farmers to use PBR protected propagating material as long as they did so on their own holdings for their own use.

Australian Law
In Australia Section 17 of the PBR Act has the farmer saved seed exemption, consistent with UPOV 91. It also makes provision for a regulation to declare particular taxa to which the exemption does not apply. By April 2005 there were no regulations under this section.

Section 17 allows a person who has legitimately purchased PBR-protected propagating material (eg seed) to keep the seed from the first growing onwards for the establishment of subsequent crops, if it is for the person’s own use.

The seed delivered to the purchaser is the original ‘first generation’ seed. Generally PBR is exhausted (does not apply) in relation to this seed and the produce from this first generation seed.

That means the first generation unplanted seed can be sold or planted and its produce gathered and sold without infringing the grantee’s rights. However once that first generation seed has been planted and new seed created, that seed obtained from the first growing is ‘second generation’ seed. The Act stipulates that PBR arises once again to protect that second generation seed. This is a strict limitation (ie there is no defence to a breach of this provision of the Act). See Diagram.

In summary, the farm saved "seed" exemption to PBR is limited in a number of important ways in order to balance the farmer's and the breeder’s interests. The limitations are summarised as follows:

• PBR generally extends to harvested material (Section 14) and products (Section 15) if the grantee has not had reasonable opportunity to exercise their PBR right over the propagating material (as is the case with farm-saved propagating material).
• As a result the second generation or subsequent generations of propagating material, or its product, may not be sold, given or exchanged without the grantee’s authorisation

The seed or other propagating material which is purchased with the authority of the breeder can be sown and the harvested material (first generation crop) can be sold. A farmer can save the seed (or other propagating material) from the first crop and use it to grow a second generation crop. The harvested product from it can only be sold with further authorisation from the grantee.

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