Plant Variety Act review
The Plant Variety Rights Act 1987 is being reviewed, and growers who are interested in how new and existing cultivars should be managed into the future – including the challenges of genome identification/editing – are being urged to get their ideas heard.
Hort NZ is keen to hold an industry workshop for growers. If you are interested in being involved please contact Richard Palmer Richard.firstname.lastname@example.org.
The Ministry of Business, Innovation & Employment (MBIE) has launched the review of the 1987 legislation looking at possible changes including breeding definition and distinctiveness, extension of rights to harvested material, compulsory licensing, farm saved seed and the International Union for the Protection of New Varieties of Plant (UPOV) 1991 convention.
A summary of these key issues at stake is presented here:
ISSUE 1: DEFINITION OF “BREEDING”
The PVR Act allows for grant of PVR [plant variety rights] where a variety is bred or discovered. There is a view from some quarters that ‘discovery’ is insufficient basis for such a grant. The process from discovery, through to application for PVR, does require variety development, in order to address the requirements for PVR, including propagation, testing et cetera. A key future challenge will be how such discovery and/or testing for uniqueness and distinctiveness may occur where important but visually indistinct variations in genetic makeup may be distinct or unique, and require PVR protection.
ISSUE 2: DISTINCTIVENESS
The PVR Act allows for grant of PVR where minor distinctions exist. There is a view from some quarters that minor distinctions are of no commercial value, and/or do not encourage ‘genuine innovation’. There are widely varied views on the nature and value of distinctiveness, the determination of commercial value is not something the grant of PVR considers, and incremental innovation can be viewed as equally as important as substantive change.
ISSUE 3: EXTENSION OF RIGHTS TO COVER HARVESTED MATERIAL
The PVR Act covers only rights over reproductive material (for example budwood or seed) not harvestable material (for example fruit). There is some suggestion that the PVR Act could be extended to include harvestable material, although there is no identified failure of other mechanisms (contract law) or specific policy failure that any such extension would seek to remedy.
ISSUE 4: ENFORCEMENT
There is concern from most quarters that the current enforcement of PVR provides neither sufficient deterrent to theft of PVR protected material, nor an agile and proactive mechanism to prevent physical loss, in particular across the New Zealand border to other jurisdictions. The enforcement of proprietary rights, often of considerable value, must be seen as important, and fundamental to the Act.
ISSUE 5: COMPULSORY LICENCING
The PVR Act provides for access for New Zealanders to PVR protected material through a variety of means, including non-commercial right of access. There are also compulsory licensing provisions, which appear at odds with the rights of PVR owners. There is concern that this provision overrides PVR owners’ rights, and may discourage New Zealand-led innovation, and/or discourage release of offshore PVR protected material into New Zealand. These competing viewpoints will need to be resolved as the PVR Act amendments are progressed.
ISSUE 6: SAVED SEED
This is a provision which allows farmers to save seed from PVR protected varieties and reuse it, without paying royalties. There is concern that this may be a barrier to accessing new, innovative varieties as PVR owners decline release into New Zealand due to limited access to future income.
ISSUE 7: UPOV 1991
There is concern that having not acceded to the International Union for the Protection of New Varieties of Plant (UPOV) 1991 convention – New Zealand follows the UPOV 1978 convention – New Zealand is losing out on access to new innovative varieties as our jurisdiction does not offer the protections PVR owners expect, and are provided for under UPOV 91. There is recognition that accession may bring other issues, and that the 1991 convention is now quite dated. A thorough examination of what current regulations lack, what protections are required for access to global innovation, and what Treaty of Waitangi obligations require, are part of this current review.