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.

NZ Grower - - Food Security -

Hort NZ is keen to hold an in­dus­try work­shop for grow­ers. If you are in­ter­ested in be­ing in­volved please con­tact Richard Palmer Richard.palmer@hortnz.co.nz.

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.

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