Issues Paper on Plant Variety Rights Act 1987 Released

The Ministry of Business, Innovation and Employment (MBIE) has released an Issues Paper on the Plant Variety Rights Act 1987...

The review seeks to formulate PVR legislation that can fulfil the main objectives of:

1.  promoting innovation and economic growth by incentivising the development and dissemination of new plant varieties while providing an appropriate balance between the interests of plant breeders, growers and society as a whole;
2.  being compliant with New Zealand’s international obligations; and
3.  being consistent with the Treaty of Waitangi.

Currently, New Zealand’s Plant Variety Rights Act (PVR Act) is compliant with the 1978 version of the International Union for the Protection of New Varieties of Plants (UPOV 1978), but not the most recent version (UPOV 1991). In order to meet obligations under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) New Zealand must either ratify UPOV 1991 or put in place a regime that gives effect to it, within three years of the CPTPP coming into force. The CPTPP is likely to come into force for New Zealand in late 2018 or early 2019. This means updated PVR legislation would need to be in place by late 2021 or early 2022. Following the consultation and review phase a Bill to amend the PVR Act is planned to be introduced to Parliament in the second quarter of 2020.

Making New Zealand’s PVR Legislation UPOV 1991 compliant will result in a strengthening of the exclusive rights of rights holders and would also extend to harvested material or products made directly from harvested material and to new varieties that are ‘essentially derived’ from their protected varieties. Further, the current exception that allows reproduction and use of a protected variety for non-commercial purposes would be further narrowed by requiring the use to be both non-commercial and private.

In meeting its CPTPP obligations to become UPOV 1991 compliant the New Zealand government can adopt any measure that allows it to also meet its obligations under the Treaty of Waitangi. Following its enquiry into the Wai 262 claim the 2011 report of the Waitangi Tribunal recommended the following changes to the PVR legislation.

(a) that the Commissioner of Plant Variety Rights (the Commissioner) be empowered to refuse a PVR that would affect the kaitiaki (guardianship) relationship;
(b) that the Commissioner be supported by a Māori advisory committee in his/her consideration of the kaitiaki interest;
(c) to clarify the level of human input into the development of a plant variety for the purposes of PVR protection; and
(d) to enable the Commissioner to refuse a proposed name for a plant variety if its use would be likely to offend a significant section of the community, including Māori.

Currently less than 1% of New Zealand’s indigenous plant species have had PVR’s derived from them.

Currently farmers do not need the PVR owner’s permission to save and use seeds from the produce they grow from a protected variety, although they cannot produce for sale, offer for sale or sell that seed without the PVR owner’s permission. PVR owners can obtain royalties from the sale of seeds of a PVR either at the point of sale of the seeds (seed point royalties) or according to the amount of produce resulting from the seed (end point royalties). If a farmer uses farm saved seed and pays an end-point royalty to the PVR owner the PVR owner will effectively receive a royalty on that farm saved seed.

The strengthened rights available under UPOV 1991 effectively give PVR owners’ rights to royalties in relation to farm saved seeds, although a specific exception allows contracting parties to permit farmers to use harvested material as propagating material provided that the legitimate interests of the breeder are safeguarded. Contracting countries have generally either allowed this exception to be royalty free or subject to a reduced royalty.

MBIE seeks feedback by Friday 21st December 2018 on the 40+ questions raised in the issues paper, which mostly relate to the following issues: fulfilment of the above noted main legislative objectives; whether farm saved seeds should be exempt; assessment of distinctness and whether and how an ‘essentially derived’ test should be introduced; whether the rarely used compulsory licence, infringement and enforcement provisions are adequate; whether a disclosure of origin requirement should be introduced; and whether mere discovery is insufficient to make a claim of ownership.

Author: Quinn Miller

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