Plant Varieties Protection Law
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Considering:
(a) that the Republic of Indonesia is an agricultural country, whereby a developed, efficient and strong agriculture plays an important role in the national development objectives;
(b) that in order to develop a progressive, efficient and strong agriculture, it must be supported by, among others, the ready supply of distinct crops and plants;
(c) that germplasm resources which are the main plant materials, must be preserved and optimized as much as possible in the plan to obtain a superior crop or plant without any loss to the parties that are involved in the seedling industries;
(d) that in order to further increase the interest and role of an individual or corporate body to conduct cultivation activities in producing new and superior varieties, plant breeders or the Plant Variety Protection rights owner are given certain rights and legal protection;
(e) that in accordance with the international convention, plant protection act has to be legalized;
(f) that based on the considerations of sub-paragraphs (a),(b),(c),(d), and (e), it is deemed necessary to establish laws on the protection of plant varieties within the legal constitution.
In view of:
(1) Article 5 paragraph (1), Article 20, and Article 33 of 1945 Constitution of the Republic of Indonesia;
(2) Law No. 6 of 1989 concerning Patent (Official Gazette of 1989 No. 39, Additional Official Gazette No. 3398) as amended by Law No. 13 of 1997 (Official Gazette of 1997 No. 30, Additional Official Gazette No. 3680);
(3) Law No. 12 of 1992 concerning Plant Cultivation System (Official Gazette of 1992 No. 46, Additional Official Gazette No. 3478);
(4) Law No. 5 of 1994 concerning Confirmation of United Nations Convention on Biological Diversity (Official Gazette of 1994 No. 41, Additional Official Gazette No. 3556);
(5) Law No. 7 of 1994 concerning Confirmation of the Agreement of Establishing the World Trade Organization (Official Gazette of 1994 No. 57, Additional Official Gazette No. 3564);
(6) Law No. 23 of 1997 concerning the Management of Living Environment (Official Gazette of 1997 No. 68, Additional Official Gazette No. 3699);
(7) Law No. 41 of 1999 concerning Forestry (Official Gazette 1999 No. 169, Additional Official Gazette No. 3888).
Chapter 1 - General Provisions
Article 1
The terminology used in this Act shall have the following meanings:
(1) Plant Variety Protection, hereinafter abbreviated as PVP, is a specific protection, provided by the country, in this case represented by the Government and implemented by the Plant Variety Protection Office towards the variety of crops and plants produced by plant breeders through agricultural activities.
(2) Plant Variety Protection Rights are specific rights given by the country to plant breeders and/or Plant Variety Protection rights holder to exercise his given rights or give his consent to any parties or corporate bodies to use it for a specified period of time.
(3) Plant varieties, hereinafter referred to as varieties, refer to a group of crops/plants from one type or species that is denoted by its shape, growth, leaves, flowers, fruits, seed and its genetic characteristics or genetic combination that can be differentiated from similar types or species by at least one determining attribute and when reproduced do not experience any change.
(4) Plant breeding is a series of research activities and experiments or the discovery and development of a particular variety, in accordance with, standard methods for the production of new varieties while protecting the purity of the new seed that is produced.
(5) Plant breeders, hereinafter referred to as breeders, are those who carry out breeding activities.
(6) The PVP Consultant is a person or legal body which is listed in the Plant Variety Protection Consultant List at the Plant Variety Protection Office.
(7) Seeds of plants, hereinafter referred to as seeds, are plants and/or sections of which are used to multiply and/or propagate plants.
(8) The Plant Variety Protection Inspector is an officer appointed by the Minister to conduct substantial inspection and provide recommendation for Plant Protection Variety rights applications.
(9) The Plant Variety Protection Office is an organizational unit within the department that implements and has the authority in the field of Plant Variety Protection.
(10) Minister refers to the Minister of Agriculture.
(11) Department refers to the Department of Agriculture.
(12) Priority right is the right given to an individual or legal body that submits a Plant Variety Protection rights application in Indonesia after submitting the application for the same plant in another country.
(13) License is the permission given by the Plant Variety Protection rights holder to a party or another legal body to exercise the full or partial rights of the Plant Variety Protection.
(14) Compulsory license is a license given by Plant Variety Protection rights holder to the applicant based on decisions made by State Court
(15) Royalty is compensation with economic value given to the Plant Variety Protection rights holder in the issuance of the license.
(16) Public Register of Plant Variety Protection is the official register that records all the decisions and activities relating to Plant Variety Protection.
(17) The Plant Variety Protection Official Bulletin is the official communication medium for any activities relating to Plant Variety Protection and is published periodically by the Plant Variety Protection Office for the benefit of the general public.
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Chapter II - Scope of the Plant Variety Protection
Article 2
(1) Varieties that may be issued Plant Variety Protection include those plants or species that are new, distinct, uniform and stable and given a denomination.
(2) A variety is deemed as new when at the point of approval of the Plant Variety Protection rights application, the propagation material or the harvested products have not been traded in Indonesia or may have been traded for less than a year, or have been traded overseas for no more than four years for a seasonal plant and six years for annual plant.
(3) A variety is regarded as distinct when it may be differentiated clearly from other varieties which existence is already publicly known at the time of the approval of the Plant Variety Protection rights application.
(4) A variety is deemed as uniform when its main or important features are proven uniform although varied as a result of changes in planting method and environment.
(5) A variety is regarded as stable when its characteristics do not experience any changes after repeated cultivation or when multiplied in large quantities through specific reproduction cycles do not undergo change at the end of each reproduction cycle.
(6) Varieties that may be given Plant Variety Protection should be given a denomination based on the following provisions:
- (a) The denomination of the variety can still be used despite the expiry of the protection period;
- (b) The denomination should not cause any confusion about the characteristics of the variety;
- (c) The denomination is given by the applicant of the Plant Variety Protection rights and is registered at the Plant Variety Protection office;
- (d) If the denomination is not suitable in relation to sub-paragraph (b), the Plant Variety Protection office has the right to reject the denomination and request for another;
- (e) If the denomination of the variety has been used for other varieties, the applicant must replace it with another denomination;
- (f) The denomination of the proposed variety may be submitted as a trademark is in accordance with prevailing laws.
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Article 3
Varieties that cannot be given Plant Variety Protection are those that are used for purposes which conflict with prevailing laws, social order, ethics/morality, religious norms, health and the conservation of the environment.
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Article 4
(1) The duration of Plant Variety Protection shall be:
- (a) 20 (twenty) years for seasonal plants;
- (b) 25 (twenty-five) years for annual plants.
(2) The duration of Plant Variety Protection referred to in paragraph (1) begins from the date of the issuance of the Plant Variety Protection rights.
(3) An applicant is given temporary protection from the time the Plant Variety Protection Office receives a complete application until the application is approved.
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Article 5
(1) A Plant Variety Protection rights owner is a breeder, or any person or legal body or other parties that receive further rights from the previous rights holder.
(2) If a variety is produced based on a contract of employment, the employer is the Plant Variety Protection rights holder, unless it is agreed otherwise by both parties so long as the rights of the plant breeder is not compromised.
(3) If the variety is produced as a result of a commissioned work, the party commissioning the work becomes the Plant Variety Protection rights holder unless it is agreed otherwise by both parties so long as the rights of the plant breeder is not compromised.
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Article 6
(1) A Plant Variety Protection rights holder has the right to use and exercise the rights and give consent to any party or other legal body to use the varieties in the form of seeds and harvested products for the purpose of propagation.
(2) The provision referred to in paragraph (1) also applies to the following:
- (a) An essentially derived variety that originates from a protected variety or has been registered and given a denomination;
- (b) A variety that cannot be clearly distinguished from a protected variety as stipulated in Article 2 Paragraph (1);
- (c) A variety that is produced by repeatedly using a protected variety.
(3) The rights to use a variety as stipulated in Paragraph (1) include the following activities:
- (a) Production and multiplication of seeds;
- (b) Preparation for propagation purposes
- (c) Advertisement;
- (d) Offering;
- (e) Selling or trading;
- (f) Exporting;
- (g) Importing;
- (h) Preparation for any of the activities stipulated in sub-paragraphs (a), (b), (c), (d), (e), (f), and (g).
(4) The use of the harvested products for propagation purposes referred to in paragraph (1), which originates from a protected variety, must be with the consent of the Plant Variety Protection rights holder.
(5) The use of the essentially derived variety referred to in paragraph (2), must be with the consent of the Plant Variety Protection rights holder and/or the original owner of the variety provided:
- (a) the essentially derived variety originates from a variety that has received PVP rights or has been given a denomination according to prevailing regulations and is itself previously an essentially derived variety;
- (b) the variety basically maintains the essential features of the original variety but may be clearly distinguished from the original variety based on new characteristics that appear as a result of the reproduction process;
- (c) the essentially derived variety as indicated in sub-paragraphs (a) and (b) can be obtained through natural or induced mutation, somaclonal variation, individual crop selection, backcrossing and transformation from the original variety through genetic engineering.
(6) An original variety that is used to produce an essentially derived variety shall be given a denomination and registered by the Government.
(7) Provisions relating to the naming, registration and the use of the variety as the original variety for an essentially derived variety referred to in paragraph (5) and paragraph (6), as well as the agency that is given the task of implementation, shall be further regulated by the Government.
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Article 7
(1) Local varieties owned by the community shall be under the control of the State.
(2) The control of the State referred to in paragraph (1) shall be implemented by the Government.
(3) The Government is responsible for giving a denomination to the local varieties referred to in paragraph (1).
(4) Provisions relating to the denomination of the variety, registration, and the use of local variety referred to in paragraph (1), paragraph (2), and paragraph (3) as well as the agency that is given the implementation task shall be further regulated by the Government.
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Article 8
(1) The breeder who produces the varieties referred to in Article 5 Paragraph (2) and Paragraph (3) has the right to a fair compensation in consideration of the economic benefits that may be obtained from the said variety.
(2) The payment referred in paragraph (1) may be disbursed in the following manner:
- (a) In a specified amount and in one payment;
- (b) Based on a percentage;
- (c) A combination of a specified amount, in one payment with a gift or bonus; or
- (d) a combination of percentage plus a gift or bonus, the value of which is determined by the relevant parties themselves.
(3) The provisions referred to in paragraph (1) shall not affect the rights of the breeders to include his/her name in the Plant Variety Protection rights certificate.
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Article 9
(1) The Plant Variety Protection rights holder is responsible for:
- (a) implementation of his PVP rights in Indonesia;
- (b) payment of the annual PVP fee;
- (c) preparation and presentation of sample seeds of the variety that has been given the PVP rights in Indonesia.
(2) The owner is exempted from the responsibility referred to in paragraph (1) subparagraph (a) when the implementation of the said PVP is technically and/or economically not feasible in Indonesia.
(3) The exemption referred to in paragraph (2), may only be agreed by the PVP office once the written application from the PVP rights owner is forwarded together with grounds and evidence provided by an authorized agency.
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Article 10
(1) It shall not constitute a contravention or violation of the PVP rights when:
- (a) Part of the harvested crop of a protected variety is used for noncommercial purposes.
- (b) The protected variety is used for research activities, plant breeding and for constituting new variety.
- (c) The protected variety is used by the Government in the framework of the policy for the supply of food and medicines without infringing the economic rights of the PVP rights owner.
(2) Provisions for the use of the protected variety by the Government referred to in paragraph (1) sub-paragraph (c) shall be further regulated the Government.
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Chapter III - Plant Variety Protection Rights Application
Article 11
(1) A PVP rights application must be submitted to the PVP office in writing in the Indonesian language with the payment of specific costs as determined by the Minister.
(2) The PVP rights application letter has to include:
- (a) Date, month and year of the application;
- (b) Complete name and address of the applicant;
- (c) Complete name, address, and nationality of the plant breeders and their successor in title;
- (d) Denomination of the variety;
- (e) Full description of the variety, including the genealogy traits, morphology characteristics, and other important features;
- (f) Picture and/or photo of the features mentioned in the description to clearly illustrate the description.
(3) The PVP rights application is submitted by:
- (a) Any person or legal body, accompanied by a letter of authorization from the applicant, with the name and complete address of the authorized person;
- (b) the successor in title has to be proven through the proper documentation.
(4) In the case of a transgenic variety, the description shall include details of the variety’s molecular description and genetic stability of the proposed traits, the reproductive system of the original parent, existence of its wild relatives, compound content that can affect the environment and human health and the destruction methods in the event of any deviations; together with a declaration on the safety for human health and the environment from an authorized agency.
(5) The provisions pertaining to the PVP rights application shall be further regulatedby the Government.
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Article 12
(1) Each PVP rights application may be submitted for only one variety.
(2) A PVP rights application may be submitted by the:
- (a) Breeder;
- (b) Any person or legal body that employs or commissions the breeder;
- (c) Successor in title; or
- (d) PVP consultant.
(3) A PVP rights application that is submitted by the applicant referred to in paragraph (2) sub-paragraphs (a), (b), or (c) who is not domiciled or has a permanent residence in Indonesia, shall be submitted through a PVP Consultant in Indonesia acting as the authorized agent.
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Article 13
(1) The PVP Consultant as referred to in Article 12 Paragraph (2) sub-paragraph (d), shall be:
- (a) Registered at the PVP Office;
- (b) Safeguard the confidentiality of the variety and the entire PVP rights application document, until the date that the application is announced.
(2) Provisions on the conditions for the registration of a PVP consultant shall be further regulated by the Government.
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Article 14
(1) In addition to the terms and conditions of the PVP rights application referred to in Article 11, an application for priority rights shall fulfill the following criteria:
- (a) Submission within 12 (twelve) months from the receipt of the first submission of a PVP rights application made outside of Indonesia;
- (b) Accompanied by a copy of the first PVP rights application endorsed by an authorized party in the country in relation to sub-paragraph (a) no later than three months;
- (c) Supplemented by a certified copy of the documents for the first PVP rights application submitted abroad;
- (d) Supplemented by a certified copy of the rejection of the application in the event that the PVP rights had been previously rejected
(2) Provisions for the PVP rights application for priority rights shall be further regulated by the Government.
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Article 15
(1) A PVP rights application is deemed to be submitted on the date that the PVP office receives the application letter and all fees referred to in Article 11 paragraph (1) have been duly paid.
(2) The acceptance date of the PVP rights application letter referred to in paragraph (1) refers to the date the PVP office receives the said application letter and has complied fully with all the conditions stipulated in Article 11 and/or Article 14 paragraph (1).
(3) The date that a PVP rights application letter is accepted is recorded in the PVP Public Register at the PVP office.
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Article 16
(1) When any of the conditions are unfulfilled as stipulated in Article 11 and/or Article 14, the PVP office shall inform the applicant to comply within three months from the date that the PVP office sends out the notification letter to the applicant.
(2) Based on grounds agreed by the PVP office, the time period stipulated in paragraph (1) may be further extended to a maximum of three months at the request of the PVP rights applicant.
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Article 17
In the event that there are deficiencies as referred to in Article 16 paragraph (1), the acceptance date of the PVP rights application referred to in Article 16 paragraph (2) shall refer to the date when the PVP office finally receives a revised and complete application.
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Article 18
If the deficiencies of the application are not corrected within the specified time period provided in Article 16 paragraphs (1) and (2), the PVP office shall inform the applicant in writing that the PVP rights application is deemed withdrawn.
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Article 19
(1) When there is more than one PVP rights application received for the same variety with identical traits, only the first and complete application received shall be accepted.
(2) Where there is more than one PVP application as referred to in paragraph (1) submitted simultaneously, the PVP office shall issue a written letter notifying the applicants to hold a negotiation and thereafter decide which is to be submitted. The decision then needs to be made known to the PVP office no later than six months from the date of the said letter is sent from the PVP office.
(3) In the event there is no agreement or decision from the applicants or the negotiation cannot be held or if the decision is not made known to the PVP office within the stipulated time period indicated in paragraph (2), the PVP rights application is rejected and the PVP office shall then inform the applicant in writing accordingly.
(4) When a variety referred to in paragraph (1) relates to a variety that is submitted for priority rights, the date deemed as the acceptance date shall be the date of acceptance when the PVP rights application was first submitted abroad.
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Article 20
(1) A PVP rights application may be amended before and during the time of inspection.
(2) Amendments referred to in Paragraph (1) may mean more or less explanation/clarification on the traits of the variety applied.
(3) Amendments in the application as stated in Paragraph (1) are deemed submitted on the date of the re-application.
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Article 21
(1) An application for PVP rights may be withdrawn by submitting a written letter to the PVP office.
(2) Provisions relating to the withdrawal letter shall be further regulated by the Government.
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Article 22
While still bound officially on government duty a year after retirement or nonemployment for any reason, the PVP officer or any authorized individual carrying out the task for and on behalf of the PVP office is prohibited from applying or obtaining PVP rights or any rights related to it through any manner except for PVP rights ownership that is obtained as a successor in title.
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Article 23
From the date the PVP application letter is received, all staff of the PVP office are obligated to safeguard the confidentiality of the variety and the PVP rights application documents until the date the PVP rights application is announced.
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Chapter IV - Inspection
Article 24
(1) The PVP office shall make an announcement that a PVP application has fulfilled the provisions of Article 11 and/or Article 14 and has not been withdrawn.
(2) The announcement referred to in paragraph (1) shall be made at the latest:
- (a) 6 (six) months from the acceptance of a PVP rights application;
- (b) 12 (twelve) months from the acceptance of PVP rights applications for priority rights.
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Article 25
(1) The announcement referred to in Article 24 paragraph (2) is valid for six months and is carried out by:
- (a) using notification facilities that are convenient and clearly understood by the general public;
- (b) publication in the PVP Official Bulletin.
(2) The date of the first announcement shall be recorded by the PVP office in the PVP Public Register.
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Article 26
The announcement referred to in Article 24 paragraph (2) shall include the following:
(a) Complete name and address of the PVP rights applicant or the authorized agent;
(b) Complete name and address of the breeder;
(c) Date of the PVP application submission or the date, number and country where the PVP rights application was first submitted in the case of an application for priority rights;
(d) Denomination of the variety;
(e) Description of variety;
(f) Description that includes the information stipulated in Article 11 paragraph (4) for a transgenic variety.
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Article 27
The PVP office shall provide a designated space for interested members of the public the opportunity to examine the documents of the PVP rights application that have been announced.
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Article 28
(1) During the announcement period, any person or legal body may forward in writing any comments or objections towards the PVP rights application together with the grounds for objection.
(2) In the event that there are comments or objections referred to in paragraph (1), the PVP office shall promptly provide a copy of the said comments or objections to the applicant.
(3) The applicant has the right to file a response and provide further clarification regarding the objections or comments with the PVP office.
(4) The PVP office shall use the comments, objections, response, and clarification referred to in paragraph (1) and paragraph (2) as additional factors in the decision making process of the PVP rights application.
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Article 29
(1) An application for a substantive inspection on the PVP rights application shall be submitted to the PVP office in writing together with the fees payable, no later than a month after the announcement period expires.
(2) The fees for the substantive inspection shall be determined by the Minister
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Article 30
(1) A substantive inspection is conducted by a PVP Inspector and shall investigate whether variety is new, distinct, uniform and stable.
(2) In conducting the inspection, the PVP office may request for assistance from experts and/or facilities that may be required including information from other institutions from within the country or abroad.
(3) The PVP Inspector and the PVP office referred to in paragraph (1) and paragraph (2) shall maintain the confidentiality of the variety that is being inspected.
(4) Provisions relating to the manner of inspection, qualification of the PVP Inspector and the PVP office referred to in paragraph (1), paragraph (2) and paragraph (3) shall be further regulated by the Government.
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Article 31
(1) The status of the PVP Inspector is regarded as an administrative function that is supported by the Minister based on certain terms and conditions.
(2) The PVP Inspector enjoys administrative aid and support apart from other rights and privileges consistent with the prevailing laws.
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Article 32
(1) In the event that an inspection report finds that the information on the variety is ambiguous or incomplete and such information is considered to be important, the PVP office shall inform the applicant in writing accordingly.
(2) The notification of the findings of the inspection shall in a clear and detailed manner set out all matters that were earlier deemed unclear, uncertain or incomplete with a time frame for making corrections and amendments.
(3) In the event that an applicant fails to provide clarification or correct the deficiencies including making corrections or amendments to the application that were made known after the inspection referred to in paragraph (1) and paragraph (2), the PVP office has the right to reject the said application.
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Article 33
(1) The PVP office shall decide whether to accept or reject an application within 24 (twenty-four) months from the date of the substantive inspection referred to in Article 29 paragraph (1).
(2) Should there be a need for an extension of inspection period referred to in paragraph (1), the PVP office shall inform the applicant and state the grounds and explanation for the need of an extension.
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Article 34
(1) When an inspection report on a variety that is the subject of a PVP application complies with all the requirements, the PVP office shall officially inform the applicant of the approval of the PVP rights application.
(2) The PVP rights referred to in paragraph (1) is issued in the form of a PVP rights certificate.
(3) A PVP right that is approved is recorded in the PVP Public Register and announced in the PVP Official Bulletin.
(4) The PVP office may provide the public a copy of the PVP document on payment of a fee.
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Article 35
(1) In the event that a PVP application and/or the inspection reports by the PVP Inspector show that the application does not meet the requirements as stipulated in Article 2, Article 11 and/or Article 14, the PVP office shall reject the application and duly inform the applicant in writing.
(2) A rejection letter shall clearly state the grounds for rejection and shall be recorded in the PVP Public Register.
(3) The PVP office shall announce the approval or rejection and the basis for the decision to reject a PVP application in the same manner as the announcement of a PVP application is made.
(4) Provisions for the format and content of the approval or rejection of a PVP rights application shall be further regulated by the Government.
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Article 36
(1) An application for appeal may be submitted when a PVP rights application is rejected on the grounds and the basis of matters that are substantive as stipulated in Article 2, Article 28 and Article 32.
(2) An appeal shall be submitted in writing by the applicant or an authorized agent to the PVP Appeal Commission together with details of the objections no later than three months from the date that the rejection letter is mailed out with a copy to the PVP office.
(3) Grounds for appeal must not be the reasons for rejection of the PVP rights application.
(4) The PVP Appeal Commission is a specialized body headed by a Head of Department.
(5) The members of the PVP Appeal Commission shall total an odd number of at least three persons and constitute specialists in various fields and a senior PVP Inspector who did not conduct the substantive inspection on the PVP rights application in question.
(6) The head and members of the PVP Appeal Commission shall be appointed and terminated by the Minister.
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Article 37
When the period of appeal as stipulated in Article 36 paragraph (2) has lapsed without an application for appeal, an applicant is deemed to have accepted the PVP rights application rejection and the decision shall be recorded in the PVP Public Register.
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Article 38
(1) An application for appeal shall be investigated by the PVP Appeal Commission no later than three months from the date an appeal motion is received.
(2) Any decision of the PVP Appeal Commission is final.
(3) In the event that the PVP Appeal Commission grants the appeal, the PVP office shall execute the decision of the Appeal Commission and retract the rejection of the PVP rights application.
(4) When the PVP Appeal Commission rejects an appeal, the PVP office shall promptly inform the applicant of the said rejection.
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Article 39
Provisions for the PVP Appeal Commission’s organizational structure, its administrative system, procedure for application and investigation of appeal and its decisions shall be further regulated by the Government.
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Chapter V - Transfer of Plant Variety Protection Rights
Article 40
(1) PVP rights may transfer or be transferred in the following circumstances:
- (a) succession;
- (b) grant or bequeath;
- (c) will;
- (d) agreement through a notary; or
- (e) other reasons permissible by law.
(2) A PVP rights transfer referred to in paragraph (1) sub-paragraphs (a), (b), and (c) shall include the relevant PVP documents.
(3) Each PVP rights transfer shall be recorded at the PVP office and noted in the PVP Public Register with the fee payable duly paid, an amount of which shall be determined by the Minister.
(4) Provisions relating to conditions and procedure for transfer of PVP rights shall be further regulated by the Government.
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Article 41
A PVP rights transfer does not extinguish the rights of the breeder to add his name and other identification in the PVP rights certificate and his rights to compensation.
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Article 42
(1) A PVP rights holder has the right to issue a license to any person or legal body based on a license agreement.
(2) Unless otherwise agreed, a PVP rights holder may decide to exercise his rights or issue a license to a third party.
(3) Unless otherwise agreed, the scope of the license referred to in paragraph (1) includes one or several activities as stipulated in Article 6 paragraph (3), for the period of the duration of the license and is applicable in the entire Republic of Indonesia.
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Article 43
(1) A license agreement shall be recorded at the PVP office and included in the PVP Public Register with the fee payable duly paid, an amount of which shall be determined by the Minister.
(2) In the event that the license agreement is not recorded at the PVP office as stipulated in paragraph (1), the said license will not have any legal implication on third parties.
(3) Provisions for conditions pertaining to the license agreement shall be further regulated by the Government.
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Article 44
(1) Any person or legal may, after a period of 36 (thirty-six) months from the issuance of PVP rights, submit a request for a Compulsory license to the State Court to exercise the relevant PVP rights.
(2) An Compulsory license application may only be submitted under the following circumstances:
- (a) a PVP right has not been exercised in Indonesia as referred to in Article 9:
- (b) a PVP right has been exercised in a form or manner that has not benefited the public interest.
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Article 45
A Compulsory license is a license provided by the State Court after having heard confirmation from the relevant PVP rights owner and is non-exclusive.
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Article 46
(1) Apart from the circumstances stipulated in Article 44 Paragraph (2), a Compulsory license shall only be given when:
- (a) The applicant is able to provide convincing proof that he has the capability and capacity to exercise the PVP rights and has exhausted all other means to obtain a license from the PVP rights owner based on reasonable conditions but has failed.
- (b) The State Court is of the opinion that the PVP rights may be exercised in Indonesia and will be beneficial to the general public.
(2) The State Court shall conduct a hearing for Compulsory license application and hear the opinion of PVP officers and the relevant PVP rights owner.
(3) A Compulsory license is given for a time period that is not longer than a PVP right.
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Article 47
Based on evidence and opinion as stipulated in Article 46 paragraph (1) and paragraph (2), the State Court is of the opinion that the PVP rights owner has not had adequate time to exercise his rights commercially in Indonesia, the Court shall temporarily postpone the proceedings or completely reject the application.
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Article 48
(1) The implementation of a Compulsory license shall involve a royalty payment payable by the Compulsory license owner to the PVP rights owner.
(2) The amount of royalty payable and mode of payment shall be stipulated by the State Court.
(3) The quantum of the royalty shall be determined by observing the normal practice in license agreements or other similar agreements.
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Article 49
The decision of the State Court to issue the Compulsory license shall include the following matters:
(a) The reasons for granting the Compulsory license;
(b) Evidence that includes convincing explanations that form the basis for granting the Compulsory license;
(c) The duration of the Compulsory license;
(d) The amount of royalty payable and mode of payment to the PVP rights holder;
(e) The expiry terms of the Compulsory license and the factors that can lead to its cancellation;
(f) The Compulsory license is only used to meet the local market needs;
(g) Other matters that need to be considered to fairly protect the interests of the parties concerned.
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Article 50
(1) The Compulsory license holder shall have the Compulsory License registered at the PVP Office and the PVP Public Register.
(2) A Compulsory license that is registered shall be promptly announced by the PVP Office in the PVP Official Bulletin.
(3) A Compulsory license may only be implemented after it has been registered in the PVP Public Register and the royalty payable has been paid
(4) The implementation of the Compulsory license is deemed to be implementation of the PVP rights.
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Article 51
(1) The State Court may cancel the Compulsory license at the request of the PVP rights holder when:
- (a) The grounds for issuing the Compulsory license are no longer valid;
- (b) The recipient of the Compulsory license did not implement the Compulsory License or did not promptly take the necessary measures to implement it;
- (c) The Compulsory license holder no longer abides by the terms and conditions, including the obligation to pay royalties.
(2) The State Court shall hold a hearing to investigate the application for cancellation of the Compulsory license and hear the opinions of the officers of the PVP Office.
(3) In the event that the State Court decides to cancel the Compulsory license, no later than 14 (fourteen) days from the date of the decision, the Court shall forward a copy of the decision to the PVP Office for it to be recorded in the PVP Public Register and announced in the PVP Official Bulletin.
(4) The PVP Office shall after recording and making the announcement as stipulated in paragraph (3), inform the PVP rights holder, the holder of the Compulsory license that has been cancelled and the State Court that made the decision to cancel, no later than 14 (fourteen) days from the date that the PVP office receives a copy of the decision of the State Court.
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Article 52
(1) The Compulsory license shall expire when:
- (a) The time period for the license has lapsed;
- (b) It is terminated or in the case where a Compulsory license holder returns the license obtained to the PVP office before the end of the license period.
(2) The PVP office records the Compulsory license that has expired in the PVP Public Register, makes an announcement in the PVP Official Bulletin and informs the PVP rights owner as well as the State Court in writing.
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Article 53
The termination or expiry of the Compulsory license as stipulated in Article 51 and Article 52 is deemed to restore the rights of the PVP rights owner.
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Article 54
(1) A Compulsory license cannot be transferred unless it is done together with the transfer of activities or part of business activities that utilizes the relevant PVP rights or due to inheritance.
(2) A Compulsory license that is permanently transferred continues to be bound by the terms and conditions at the time of the award and shall be registered in the PVP Public Register.
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Article 55
Provisions relating to the Compulsory license shall be further regulated by the Government.
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Chapter VI - Expiration of Plant Variety Protection Rights
Article 56
A PVP right expires when:
(a) The duration of the time period expires;
(b) Cancellation
(c) Revocation
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Article 57
(1) A PVP right ends when the duration of the PVP right has expired as stipulated in Article 4.
(2) The PVP office records the expiration of the PVP right in the PVP Public Register and announces it in the PVP Official Bulletin.
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Article 58
(1) The Cancellation of a PVP right is executed by the PVP office.
(2) A PVP right is cancelled when:
- (a) Terms and conditions for renewal and/or the distinctness as stated in Article 2 paragraph (2) and/or paragraph (3) are not complied with at the time the rights were granted;
- (b) The conditions for uniformity and stability as stipulated in Article 2 paragraph (4) and/or paragraph (5) were not complied with at the time the rights were granted;
- (c) The PVP right was granted to party that is not entitled to the right.
(3) A PVP right shall not be cancelled for reasons other than those stated in paragraph (2).
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Article 59
(1) With the cancellation of a PVP right, all legal implications connected to the PVP right is cancelled as of the date the PVP rights were granted, unless determined otherwise by the State Court.
(2) The PVP Office records the official decision of the cancellation in the PVP Public Register and announces it in the PVP Official Bulletin
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Article 60
(1) The revocation of the PVP right shall be executed by the PVP Office.
(2) The PVP right may be revoked on the following grounds:
- (a) The PVP rights holder did not fulfill his obligations to pay the annual fees within 6 months;
- (b) The terms/characteristics of the protected variety have changed or are no longer in accordance with the conditions stipulated in Article 2;
- (c) The PVP rights holder cannot provide and prepare sample seeds for the said protected variety;
- (d) The PVP rights holder did not supply the seed for the said protected variety; or
- (e) The PVP rights holder submits a request to have his rights revoked, together with his grounds for doing so, in writing, to the PVP Office.
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Article 61
(1) When a PVP right is revoked, the PVP rights ends as of the date of the revocation.
(2) The PVP Office records the official decision to revoke the PVP rights in the PVP Public Register and announces it in the PVP Official Bulletin.
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Article 62
In the event that a PVP right is revoked as stipulated in Article 62, and the PVP rights holder has given a license or a Compulsory license to another party whereby the new party has paid all royalties to the PVP rights owner, the said rights owner shall return the royalties after taking into account the remaining time left for the utilization of the license or Compulsory license.
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Chapter VII - Fees
Article 63
(1) To ensure the execution of PVP rights, the rights owner must first pay the annual fees.
(2) Fees to be determined under this Act shall be paid for each submission of a PVP rights application, application for inspection, excerpt of the PVP Public Register, copies of the PVP letter, copies of PVP documents, registration of the transfer PVP rights, registration of the license agreement, registration of the Compulsory license and others.
(3) Provisions on the rates for the fees, conditions and procedure for payment as stipulated in paragraph (1) and paragraph (2) shall be determined by the Minister.
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Chapter VIII - The Management of Plant Variety Protection
Article 64
(1) The PVP Office is established for the purpose of managing PVP.
(2) The management of the PVP referred to in paragraph (1) is implemented with the expertise of other institutions under the prevailing laws.
(3) The PVP office manages the administration, documentation, inspection and information service of the PVP.
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Article 65
(1) In managing the PVP, the PVP Office is accountable to the Minister.
(2) The Minister forms a commission comprising of professionals whose functions are as temporary advisors in managing the PVP efficiently, meeting the need for the development of PVP.
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Chapter IX - Right to Claim
Article 66
(1) If a PVP right is given to a person or legal body other than those that have the right to the PVP as stipulated in Article 5, the said person or legal body shall have the right to file a claim in the State Court.
(2) The right to file a claim as stipulated in paragraph (1) is effective from the date the PVP rights certificate is issued.
(3) A copy of the decision as stated in paragraph (1) by the State Court Registrar shall be promptly relayed to the PVP office and thereafter recorded in the PVP Public Register and announced in the PVP Official Bulletin.
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Article 67
(1) A PVP rights owner or license holder or Compulsory license holder has the right to claim for damages through the State Court from anyone who deliberately and without the right commits the acts stipulated in Article 6.
(2) The submission of claim for damages for the acts stipulated in Article 6 paragraph (3) shall only be accepted when it is proven that variety used is the same as the variety that has been issued with PVP rights.
(3) The State Court’s decision on a claim referred to in paragraph (1) by the State Court Registrar must promptly be relayed to the PVP Office and thereafter recorded in the PVP Public Register and announced in the PVP Official Bulletin.
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Article 68
(1) To avoid increased loss to the party whose rights have been violated, the judge may order the party violating those rights, for the duration of the State Court‘s investigation, to temporarily cease all activities stipulated in Article 6 paragraph (3).
(2) The judge may order the delivery of the products of the violation of PVP rights to be implemented, when the judgement of the court has been executed and after the person or legal body sued pays compensation to the bona fide owner of the product.
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Article 69
The right to submit a claim provided for in this Chapter does not derogate from the right of the State to execute criminal charges for the violation of the PVP rights.
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Chapter X - Investigation
Article 70
(1) Other than investigation by the Police of the Republic of Indonesia, the office of certain state civil officers at the departments whose scope of work and responsibilities include PVP development by the prevailing legislation, can be given special authority as investigating officers as stipulated in Law No. 8, of 1981 concerning Law of Criminal Procedures to conduct criminal proceedings in PVP.
(2) An Investigating Officer as stipulated in paragraph (1) has the authority to:
- (a) Conduct an investigation on the authenticity of a report or information pertaining to criminal actions relating to PVP;
- (b) Conduct an investigation on a person or body that is suspected of having committed a criminal action relating to PVP;
- (c) Request for information and evidence from a person or body connected to the criminal incidents relating to PVP;
- (d) Conduct investigation on bookkeeping, recordings and other relevant documents pertaining to criminal actions relating to PVP;
- (e) Conduct investigation at specific locations that are suspected of containing evidence of bookkeeping, recording and other documents as well as confiscating sub-paragraphs that may be used as evidence in criminal proceedings relating to PVP;
- (f) Request for expert assistance in carrying out the investigation of criminal actions relating to PVP.
(3) An Investigating Officer as stipulated in paragraph (1) will inform the commencement of an investigation and subsequently present the investigation report to the Public Prosecutor through the Police Department of the Republic of Indonesia in accordance with Article 107 Law No. 8, of 1981 concerning Laws of Criminal Procedure.
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Chapter XI - Penal Provisions
Article 71
Anyone found to have deliberately committed an offence as stipulated in Article 6 paragraph (3) without the consent of a PVP rights owner, is subject to maximum imprisonment of seven years and a maximum fine of up to Rp 2.500.000.000,00 (2.5 Billion Rupiah).
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Article 72
Anyone deliberately not complying with the provisions referred to in Article 13 paragraph (1) and Article 23, is subject to a maximum imprisonment of five years and a maximum fine of up to Rp 1.000.000.000,00 (One Billion Rupiah).
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Article 73
Anyone found to have deliberately violated the provisions referred to in Article 10 paragraph (1) for commercial purposes, is subject to a maximum imprisonment of 5 years and a maximum fine of up to Rp. 1.000.000.000,00 (One Billion Rupiah).
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Article 74
Anyone deliberately not fulfilling the obligations as stipulated in Article 30 Paragraph (3), is subject to a maximum imprisonment of five years and a maximum fine of up to Rp 1,000,000,000.00 (One Billion Rupiah).
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Article 75
Criminal actions as indicated in this chapter refer to criminal felonies.
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Chapter XII - Closing Provisions
Article 76
These laws take effect from the date of enactment.
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