Owner rights to the fore
Intellectual property protection over new plant varieties is being updated.
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.