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A review of the Plant Variety Rights Act 1987 is under way

December 19, 2018

Contacts

Partners Richard Watts
Special Advisors Sarah Chapman
Senior Associates Raymond Scott

Intellectual property Māori business

More than thirty years after it was introduced, New Zealand’s Plant Variety Rights Act 1987 (PVR Act) is being reviewed by the Ministry of Business, Innovation and Employment (MBIE). MBIE has published an Issues Paper, and has invited the public to make submissions on issues for the review by 21 December 2018.

Why now?

The PVR Act provides a regime for granting exclusive commercial rights to propagate new plant varieties. To be eligible for a Plant Variety Right (PVR), a variety must be new, sufficiently uniform and stable as well as distinct from commonly known varieties. The regime under the PVR Act is based on UPOV 78, an older version of the International Convention for the Protection of New Varieties of Plants. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) requires New Zealand to give effect to, or accede to, a newer convention, UPOV 91.

UPOV 91 generally provides stronger protection for rights owners than UPOV 78. Many of New Zealand’s major trading partners, including Australia, have adopted UPOV 91. However, adoption of UPOV 91 has not been without controversy. For example, Norway rejected the adoption of UPOV 91 in 1995.

What are the key issues for the review?

MBIE is aiming to better understand how the PVR regime functions in practice, how Māori interests are protected, and the issues and opportunities for change. A key part of the review will be assessing how New Zealand should implement its obligations under the CPTPP. Below is a summary of some of the particular issues and questions raised in MBIE’s Issues Paper:

  • Farm-saved seed: Unless restricted contractually, farmers are not restricted under the PVR Act from saving seed harvested from their crop to sow next season’s crops. Should farmers have to get permission from PVR owners before sowing farm-saved seed of protected varieties?
     
  • Harvested material: The focus of the regime under the PVR Act is on rights over propagating material (ie seeds and cuttings). The PVR Act currently provides limited rights over harvested material, such as fruit and cut flowers. Are there problems with the current scope of rights over harvested material?
     
  • Distinctiveness and similar varieties: Are there problems with the current approach for assessing distinctiveness? Should varieties which have close similarity to an existing variety, known as ‘essentially derived varieties’ under UPOV 91, be eligible for protection?
     
  • Compulsory licences: Interested parties are able to apply for compulsory licences for protected varieties in certain circumstances. Are there problems with the functioning of the current compulsory licence scheme? Does there need to be more clarity about what the Commissioner must and may consider when considering the grant of a compulsory license?
     
  • Enforcement: As PVRs are proprietary rights they can be protected by pursuing civil claims against those who infringe them. The PVR Act also provides for a range of offences. Do the infringement provisions operate as sufficient deterrent under the PVR Act and are PVR holders able to enforce their rights effectively?
     
  • Wai 262 Report and the Treaty of Waitangi: The Waitangi Tribunal’s Wai 262 report made recommendations relating to the treatment of genetic and biological resources of taonga species and mātauranga Māori. The Waitangi Tribunal found that the current PVR regime did not provide sufficient protection for kaitiaki - the concept of Māori guardianship of sky, sea and land. As such, the Waitangi Tribunal recommended the establishment of a Māori advisory committee to advise the Commissioner of PVRs on kaitiaki interests. How does the PVR Act impact the kaitiaki relationship? What role could a Māori advisory committee have in supporting the Commissioner?

Where to from here?

Once the public consultation period closes on 21 December 2018, MBIE will review the submissions received and then develop an options paper. That paper will be used to consult on possible options for change to New Zealand’s PVR regime. MBIE has indicated that the options paper may be released in mid-2019.

Contributors georgia.fishwick@simpsongrierson.com