The scope of breeders rights are restricted with law and international agreements. The most significant restriction is Period of Protection. Breeders' rights are subject to period of protection which holds on 25 years from registration. The period is regulated 30 years for trees, vines and potatoes. Anyone can dispose over the variety freely after the period.
Actions that has personal purpose are becoming significant in general restrictions. Personal actions above material of variety is not accepted as infringement of rights. Persons can generate the material they obtained with or without a charge for personal needs. However the basic restrictions in this generation are legitimate rights of breeder and normal usage of persons. The generation can not be harmful to legitimate rights of breeder and exceed the normal usage.
Persons can conduct an activity above materials of varieties with experimental purposes. Exhaustion of breeders rights, compulsory licence and farmers privilege are in the scope of breeders rights.
The most asked question is "Is the creation of new variety with conventional and biotechnologic techniques from protected varieties without permission of breeder constitute an infringement of breeders rights?"
In accordance with sub-paragraph "c" of the Article 16 of "Law on the Protection of Plant Breeders' Rights for New Plant Varieties"(Law no. 5042) "Breeders' rights shall not extend to the acts done for experimental purposes." The law allows to usage of materials of varieties which protected by this law for generate other varieties. The commercial purpose of usage of protected varieties' matierals is generation of new varieties. The reason of this freedom is limited plant gene sources and requirement for generation new plant varieties.(Boztosun, 2006) Yet, the permission of breeder is necessary if and to the extent the generated varieties are derived from protected variety, generated varieties are not different than protected variety and protected variety is hybrid.
The generated variety has to be completely different than protected variety, should not be derived variety from protected variety and can be generated without necessity of protected variety.
Main objective of such exceptional provisions in Turkish intellectual property law is to protect the statutory rights of owner of the variety. Because every individual has right to food and gene sources are limited, obtaining new plant varieties can not be disrupted. However the new variety should be completely different and clearly distinguishable from previous variety. The new variety must carry the novelty, distinctness, uniformity and stability requirements.
When it is considered that persons invest in effort, capital and time and aim to generate an income from that variety, it would be not fair that allow to infringement of rights of variety owners through being added very few value to owners' variety. Hence persons can use the protected variety for improvement by adding unique and valuable qualities to it. (Derzko.162;Janis/Kesans.752; transferred by Tüysüz, 2007)
It does not make any difference that usage of controversial or biotechnological process to generate a new variety from protected variety. These varieties are protected by law. The rigths above breeders' rights are not entitled pursuant to the type of process.(McCabe/Kevin, p.60; transferred by Tüysüz, 2007)
The primary aim of Intellectual Property Law is protect the works which are created with intellectual efforts and attempts. Besides, one of the aims of IP Law is to pave the way for new works. Because there will be always need for improvements and innovation in breeders' rights and other areas. Persons must benefit from accumulation of knowledge in the course of this improvement and innovation process. This exceptions are brought for these processes. It is essential that obey to rights and limits, generate a new and distinctive variety, not to violate the rights of previous works and behave in contrary to their legitimate interests when enjoying these freedoms.
