The Plant Variety Rights Bill 2021 – what do we know so far
The opportunity for making public submissions on The Plant Variety Rights Bill 2021 (Bill) has now passed and the Bill is currently before Parliament for its second reading.
The Bill was introduced in May 2021 to modernise the outdated Plant Variety Rights Act 1987 (Act). The Bill is intended to:
- give effect to the increased international rights for Plant Variety Rights (PVR) holders under the International Convention for the Protection of New Varieties of Plants; and
- fulfil New Zealand’s obligations under the Treaty of Waitangi.
On a broader level, the Bill aims to increase intellectual property rights for breeders of plant varieties and thereby encourage the growth of more effective pest-resistant and disease-resistant, food-producing, medicinal and decorative plant varieties in New Zealand for agricultural and consumer benefit.
What is a Plant Variety Right?
A PVR is an intellectual property right which gives breeders a number of exclusive rights including the right to produce, export and sell the seeds or cuttings of the new variety they have developed for a specified timeframe.
Under the Bill, a breeder will be eligible for a PVR if the plant variety they have developed:
- has not been distributed within New Zealand in the preceding 12 months, or in any other territory for between 4 to 6 years;
- has at least one distinguishable characteristic; and
- has all of the core components of the original variety.
Under the regime, farmers are able to purchase the seeds and cuttings of new plant varieties to grow their crops and a licence from the PVR holder to distribute and sell these crops.
Changes introduced under the Bill
The Bill will introduce a number of changes to the Act including:
- provisions relating to the Crown’s obligations under the Treaty of Waitangi;
- reference to “farm-saved seed”; and
- extended rights for PVR holders.
Treaty of Waitangi Obligations
Due to the lack of consultation with Māori under the previous Act, the Bill provides for the establishment of a Māori Plant Varieties Committee (MPVC).
The MPVC will have the power:
- to consider breeders’ applications to develop new varieties from indigenous and non-indigenous species with a specific kaitiaki connection (where an iwi or hapū are the guardians of that variety); and
- to decline or approve an application with specific conditions.
In response to the concern that the MPVC’s decision would be final, the Select Committee has proposed to allow applicants to appeal a decision of the MPVC in limited circumstances.
The Bill provides that farmers may harvest seeds from the plants originally obtained from the PVR holder to store for future use, without needing to obtain the PVR holder’s consent, provided that the original seeds were lawfully obtained from a PVR holder.
The Bill currently allows for legislators to introduce additional regulations to alter this exception in the future if necessary to protect breeders’ rights.
The Select Committee has proposed that the Bill be amended to clarify that farmers may only propagate “farm-saved seed” for use on their own farm holdings.
The Bill provides that if a PVR holder can prove that they have not had a fair opportunity to exercise their rights over the propagating material (such as seeds and cuttings) of their variety, they may have an explicit right over the harvestable materials it produces. This has proven controversial in the agricultural sector, with it argued that an extension of these rights could cause severe impacts to farmers’ seasonal profits by removing their right to decide who to sell their produce to and by disregarding the resources farmers expend towards growing a successful crop.
The Bill also introduces a new public interest test, which will prevent breeders from taking advantage of those wishing to purchase the varieties, and allow applicants to apply to the Commissioner for the grant of a compulsory licence where a PVR holder has failed to make the propagating material of the variety publicly available on reasonable terms. Successful applicants will then be required to pay the PVR holder a royalty fee for the licence.
The Select Committee has proposed that the public interest test should be broader to prevent the issuing of a licence which would infringe on a PVR holder’s rights if for example a PVR holder has made other aspects of the variety, such as the harvested material, publicly available.
The Bill is anticipated to benefit the agricultural sector by encouraging overseas breeders to introduce their varieties into New Zealand and this will give farmers access to a wider range of seeds to enhance their crops for increased profits. Conversely, a number of the proposed changes have attracted criticism from members of the farming sector.
Parliament is currently reviewing the Select Committee’s recommended changes to the Bill as part of its second reading. We will keep you updated on the Bill as it makes its way through Parliament.
PDF version: here.
This article was included in Edition 5 of our rural newsletter – Rural. which you can read here.