Service on Intellectual Property Issues (Mar16/02)
Provisions in China’s Revised Seed Law
revised Seed Law was adopted on 4 November 2015 by the Standing
It should be noted that until this revision, new plant variety protection was in a separate set of regulations administered by the Ministry of Agriculture and the State Forestry Administration depending on the subject matter. The Seed Law enacted by the National People’s Congress dealt with seed verification for the purposes of marketing. In the revised Seed Law, a new chapter on PVP has been included in general terms and the existing PVP regulations continue to apply. China is a member of UPOV 1978 and there were strong concerns over the inclusion of some UPOV 1991 provisions in the earlier draft of the revised Seed Law.
The following are important aspects of the final revision:
1. Protection of germplasm resources
In the original Seed Law, there is no regulation on the circumstances where any entity or individual makes use of germplasm resources in cooperation with any foreign entity, organization or individual to conduct research and this has resulted in loss of germplasm resources of good quality. The revised Seed Law stipulates that the State has sovereignty over germplasm resources and any entity or individual who provides germplasm resources to any foreign entity, organization or individual in cooperation to conduct research, shall make an application and submit a national benefit sharing scheme.
2. Farmers’ selling and exchanging their seeds at rural fairs without license
In the original Seed Law, farmers may sell and exchange the remainder of conventional seeds propagated for their own use at rural fairs without license. But in the process of revision, this provision was deleted for the purpose of market regulation. Farmers’ groups were very much concerned at the deletion as their usual practice would be placed in a grey area of law if it is not explicitly permitted by the law.
In the adopted revised Seed Law, this provision has been kept but the venue of such sale and exchange is limited to “local” rural fairs.
However, there might be some issues in implementation of this provision. First, the Seed Law does not define the scope of “local”. Secondly, conventional seeds normally refer to non-hybrid seeds but the provision does not differentiate the category of conventional seeds that are harvested by farmers from the seeds bought from seed companies and the category that is cultivated by farmers themselves (farmers’ varieties). For the former, the seed companies usually prohibit farmers from saving seeds, but for the latter, farmers should be free to deal with their own seeds as their property as it would not be logical for a limitation on farmers to sell and exchange their own varieties.
3. Variety verification regime
The controversial variety verification regime remains in the revised Seed Law, but the scope of varieties to be verified is greatly narrowed down. For crops, only the main crop categories, i.e. rice, wheat, corn, cotton and soybean require variety verification. The varieties applied for verification shall meet the requirements of distinctness, uniformity and stability (DUS).
The variety verification regime has been established since the 1950s and it is an important regime in China’s seed administration system, governed by the Measures for the Verification of Main Crop Varieties. In this regime, what variety can be popularized (production and marketing in at the provincial level and nation wide) would be decided through verification conducted by the competent agricultural authorities. Under the variety verification regime, a crop variety developed by a seed company should first of all acquire certification of variety verification in order to carry out the regional test and production test; only after being verified by the verification committee can the variety be popularized and a license applied for production and marketing.
Some non-main crops are required for registration before popularization. As opposed to verification, there is only a review of documents, including documents on the crop category, name, source, features and breeding process as well as a DUS test report. The registration list of non-main crop categories is governed by competent agricultural authorities under the State Council. The applicant shall submit application documents with seed samples and he shall be responsible for authenticity, ensure traceability and be subject to monitoring and inspection. The seed variety to be registered shall undergo the DUS test before an application is made. It is assumed that traceability is required as a food safety issue.
4. Plant variety protection (PVP)
addition of a PVP chapter in the Seed Law is a controversial initiative
in this round of revision. In the early draft of the revision, the
whole text of the current PVP regulations was incorporated into the
Seed Law, with the addition of some significant provisions of UPOV
1991, such as those on essentially derived varieties (EDVs), which
sent out a message that China intends to change its standard of PVP
in its national legislation so as to take the UPOV 1991 approach.
But it had been confronted with opposition even among experts who
had been involved in the revision and one of the grounds is the inappropriateness
of merging seed administration and PVP regulation into one law.
5. Sale of genetic modified seed varieties shall be labeled
Article 51 of the revised Seed Law prescribes that sale of genetically modified (GM) seed varieties shall be labeled with clear characters and shall also indicate safety measures in their use. This is a good addition as some farmers indeed have concerns about how to distinguish GM seeds and non-GM seeds when purchasing seeds. The new provision imposes an obligation on the seed companies to make it clear and indicate the needed safety measures.