Owner rights to the fore

In­tel­lec­tual prop­erty pro­tec­tion over new plant va­ri­eties is be­ing up­dated.

The Orchardist - - >>Plant Variety Rights - By Anne Hardie

More than 30 years af­ter it was first passed, the Plant Va­ri­ety Rights Act is un­der re­view and many in­dus­try play­ers hope it will im­prove the rights of the owner.

The act, which reg­u­lates in­tel­lec­tual prop­erty pro­tec­tion over new plant va­ri­eties, has only had mi­nor amend­ments over the years and the plant breed­ing in­dus­try has changed sig­nif­i­cantly. In that time, the ma­jor­ity of New Zealand’s trad­ing part­ners have be­come mem­bers of the In­ter­na­tional Union for the Pro­tec­tion of New Va­ri­eties of Plants (UPOV 91) which has strength­ened plant breeders’ rights and it’s time to catch up.

Nel­son’s Waimea Nurs­eries de­vel­op­ment man­ager Bruno Simp­son said the cur­rent act is very vague about the rights of the owner and en­force­ment is com­pany to com­pany with the mech­a­nisms for do­ing that not well es­tab­lished.

“It doesn’t al­low peo­ple to gather in­for­ma­tion and they have to prove whether some­one has com­mit­ted an of­fence,” he said.

“We’re cer­tainly hop­ing that will be stronger; some im­prove­ment in the rights of the owner would be use­ful.”

New Zealand Plant Breed­ing and Re­search As­so­ci­a­tion gen­eral man­ager Thomas Chin said the max­i­mum fine of $1000 for an in­fringe­ment un­der the cur­rent act is akin to a slap with a wet bus ticket. He said it’s not a dis­in­cen­tive, while Plant Va­ri­ety Rights (PVR) own­ers some­times have to hire pri­vate in­ves­ti­ga­tors to gather in­for­ma­tion against the in­fringer.

“You could spend any­where from $50,000 to $100,000 to amass ev­i­dence, for the in­fringer to get a $1,000 fine,” he said. “There are in­fringe­ments go­ing on and some of the big­ger cases go to court and there is an out­come, but there are oth­ers that are set­tled out of court.”

He said en­force­ment is a bit like Easter trad­ing, where busi­nesses flout the law be­cause the fine isn’t a dis­in­cen­tive and ac­cept the fine as part of the cost of do­ing busi­ness.

Simp­son would also like to see clearer per­sonal use pro­vi­sions and how they re­late to the in­di­vid­ual. It’s an area not well de­fined and some peo­ple in­ter­pret per­sonal use to be any­thing ‘not for profit’ in­clud­ing prop­a­gat­ing with­out pay­ing for a li­cence be­cause it’s not for pub­lic good.

The other area of the act that needs work is the com­pul­sory li­cenc­ing pro­vi­sion, he said. Un­der the law, a per­son who

doesn’t have ac­cess to the va­ri­ety can make a case for ac­cess when a va­ri­ety hasn’t been made avail­able to the pub­lic at a rea­son­able price and rea­son­able terms. Chin said this has the po­ten­tial to be quite dam­ag­ing to ex­ist­ing agree­ments around that va­ri­ety.That could be a prob­lem if done with­out the right in­ten­tion. There was an in­stance in the past cou­ple of years that was re­solved be­fore it went any fur­ther.

Catch­ing up with those coun­tries that have be­come mem­bers of UPOV 91, which in­cludes Aus­tralia, the United States, Ja­pan, Euro­pean Union and Canada, is nec­es­sary and Simp­son said the cur­rent act is po­ten­tially a dis­in­cen­tive for for­eign breeders to work with NZ. In the arable and pas­toral sec­tor, Chin said the stand­out is­sue with the act is the abil­ity for farm­ers and grow­ers to save seed from crop to grow the next crop which means breeders miss out on roy­al­ties. For ex­am­ple, a farmer can buy a tonne of wheat seed, sow a pad­dock and at har­vest re­tain a tonne to use the fol­low­ing sea­son with­out buy­ing any more.

“The plant breeder misses out on rec­om­pense of that seed,” he said.

“UPOV 91 en­ables the charg­ing of a roy­alty of that por­tion of seed that is saved.There are sys­tems in place over­seas that we would model our­selves on. Farm­ers and breeders agree that a roy­alty needs to be paid on seed and ev­ery­one un­der­stands the roy­alty is to fur­ther foster and en­cour­age re­search and de­vel­op­ment.”

He said it can take eight to 10 years to de­velop a new cul­ti­var in the arable and pas­toral sec­tor – and just as lengthy pe­ri­ods in hor­ti­cul­ture – at a cost of $1 mil­lion or more. Yet it’s es­ti­mated a cou­ple of mil­lion dol­lars is not col­lected in roy­al­ties across about 40 dif­fer­ent crops. Roy­al­ties go to­ward fur­ther re­search and de­vel­op­ment which ul­ti­mately im­proves pro­duc­tiv­ity and prof­itabil­ity, he said.

The plant breed­ing in­dus­try is not just over­seas com­pa­nies ei­ther, Chin said, with many lo­cal breeders, pri­vate com­pa­nies, or­gan­i­sa­tions and en­ti­ties in­volved.

Pub­lic con­sul­ta­tion on the law be­gan in Septem­ber and closes on De­cem­ber 21. At the start of the con­sul­ta­tion process, Com­merce and Con­sumer Af­fairs Min­is­ter, Kris Faafoi, said the cer­tainty of those rights en­cour­ages the de­vel­op­ment and

“Farm­ers and breeders agree that a roy­alty needs to be paid on seed and ev­ery­one un­der­stands the roy­alty is to fur­ther foster and en­cour­age re­search and de­vel­op­ment.”

dis­sem­i­na­tion of new plant va­ri­eties which is good for plant breeders, those us­ing the plants and seeds, plus con­sumers who have a wider choice of prod­ucts.

It has to strike the right bal­ance though, be­tween those with plant va­ri­ety rights, M-aori, farm­ers, grow­ers, con­sumers and the wider econ­omy to gain max­i­mum ben­e­fit while meet­ing in­ter­na­tional and Treaty of Wai­tangi obli­ga­tions. Part of that will be a M-aori com­mis­sioner on the panel that ap­proves PVRs as well as the abil­ity to re­ject a PVR that is con­sid­ered in­sen­si­tive to M-aori, such as the use of na­tive plants and names. It will also con­sider the M-aori rights with in­dige­nous flora and fauna and one of the ob­vi­ous species that is al­ready un­der the spot­light is manuka with higher unique manuka fac­tor (UMF) for honey.

A re­view of the act be­gan in the late 1990s but was put on hold while it waited for the re­lease of the Wai­tangi Tri­bunal’s re­port on the Wai 262 in­quiry. Then it was de­layed again by the Com­pre­hen­sive and Pro­gres­sive Agree­ment for Trans-Pa­cific Part­ner­ship (CPTPP) ne­go­ti­a­tions. Within three years of the CPTPP com­ing into force in NZ, likely late this year or early next, NZ has to ei­ther ac­cede to UPOV 91 or im­ple­ment a PVR regime that gives ef­fect to UPOV 91.

“By virtue of sign­ing up to the CPTPP the NZ Govern­ment has been forced to re­view it,” Chin said.

“Some would say adopt­ing this leg­is­la­tion will pe­nalise grow­ers be­cause the penalty regime will go up and there’s po­ten­tially some new re­quire­ments and prac­tices. But my re­but­tal would be, if you don’t do the crime, you don’t have to do the time. If peo­ple have spent time and money de­vel­op­ing cul­ti­vars, they de­serve to be pro­tected.”

“If peo­ple have spent time and money de­vel­op­ing cul­ti­vars, they de­serve to be pro­tected.”

Thomas Chin – a bit like Easter trad­ing.

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