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Union for the Protection of New Varieties of Plants (UPOV) |
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UPOV 78 vs UPOV 91
While UPOV 78 is still valid, a much tougher version was adopted in 1991, to better suit a breeding world divided between conventional breeders & biotechnologists. In essence, the 1991 revision brought PBR closer to their more restrictive IPRs cousins: patents.
The most important change in UPOV 91 was the virtual elimination of both the farmers privilege and breeders exemption. Member countries who sign the 91 rules `may' permit farmers to keep seeds and other propagation material from protected varieties for use on their own farms, but it will no longer be an automatic right. At the same time, breeders face new restrictions in the free use of genetic material, since the holder of a variety may now limit the right of another breeder to develop, produce, sell, stock or simply use any variety which is "essentially derived" from a previously protected variety.
This is already leading to dependency genetics and to the concentration of commercial breeding in the hands of ever bigger companies. Other important changes are introduced into UPOV 91 which lead to further erosion of the free exchange of agricultural genetic material. The ban against double protection has been eliminated, and countries may now provide for simultaneous PBR & patents on everything from genes to entire crops.
Another important change is that UPOV 91 rights now extend to the import and export of protected varieties, and to control of the harvest produced from those varieties without breeder authorisation.
Under UPOV 91 breeders may now reach all the way unto the farmers field, and follow production from places without compatible PBR if imported into UPOV countries. Finally, UPOV protection has been extended up to 25 years in some cases and to new genera.
NEW ZEALAND Perspective
The New Zealand Plant Variety Act (PVRA) of 1987 requires that four criteria be established prior to the grant of protection for a plant variety; the owner must demonstrate:
1) novelty
2) distinctness
3) stability
4) denomination
Novelty means the variety cannot have been marketed with the breeder’s consent for more than one year in New Zealand or for four years outside New Zealand. Therefore, unlike the context in which novelty is used with regard to other forms of intellectual property (such as patents), novelty in this case does not necessarily require that a plant variety be “new” or innovative, but only that the creation of the plant variety occurred within a certain time period.
Distinctness means the characteristics of the variety must be obviously different from all preexisting varieties; ie. It must have characteristics which allow a particular plant variety to be distinguished from others. Those distinguishable characteristics of the protected variety must be stable, and the variety must be made identifiable by a denomination.
The owner of a PVR has the right to produce for sale and to sell the reproductive material of the protected variety and to reproduce the variety for the commercial production of fruits, flowers, or other products.
Section 2 of the PVRA defines the owner of a plant variety as the person who “bred or discovered” it. Therefore, much unlike many other forms of intellectual property protection (most notably, patents), a PVR may be granted to the person who discovers a naturally occurring plant. The grant of a PVR does not prevent others from producing the protected variety for a noncommercial purpose, from using the plant for human consumption or another non-reproductive purpose, or from using the variety for planting breeding. Although others may use the protected variety for breeding purposes, a person who is not the owner may not use the protected variety for continued production of first-generation hybrid seed over a long period of time; thus effectively limiting the potential for a non-owner to derive any economic benefit. The protection afforded by the PVRA extends for a period of twenty years from the granting of protection for non-woody plants and twenty-three years for woody plants
Similar to the intellectual property protection awarded by New Zealand’s PVRA is the International Union for the Protection of New Varieties of Plants (UPOV), of which New Zealand is a member. The 1978 version of UPOV (UPOV 78), the version which New Zealand has ratified and is thus a party, is the statute upon which New Zealand’s PVRA is based.
In 1991, the UPOV Convention revised its agreement to provide a more extensive series of rights to plant breeders than its 1978 predecessor. Upon the proposal of the 1991 modifications (UPOV 91), New Zealand elected not to ratify and has not yet done so.
The rights provided to plant breeders under the PVRA, as supported by UPOV 78, are not nearly as extensive or exclusive as those rights which might be afforded to plant breeders were New Zealand to adopt UPOV 91. The rights under the current PVRA are comparatively limited in scope
Under the unreformed PVRA regime, farmers & growers were not deemed to be infringing the rights of plant breeders when they save and use the seed of protected varieties without paying any royalty to the breeder, a so-called “farmer’s exception.” Although some farmers voice fierce objections to the prospect of accruing royalty payments in the absence of such an exemption, there are others who are prepared to pay royalties with each new purchase of seed for the reason of encouraging the development and introduction of new varieties and the introduction of new varieties into New Zealand’s primary sector.
The drafted amendments awaiting enactment are directed at increasing the exclusive rights of plant breeders and, in so doing, increasing their incentives to create new and innovative plant varieties. However, because the drafted amendments stop short of a full ratification of UPOV 91, there is doubt to whether or not those amendments to the PVRA will be sufficient to both provide incentives to New Zealand’s plant breeders to invest in the development of new varieties and to encourage foreign plant breeders to release their varieties in New Zealand.
Another perceived problem of stopping short of full ratification of UPOV 91 is that the PVRs awarded by the amended PVRA will be applicable only in New Zealand, while UPOV 91, as the internationally recognized standard for award of PVRs gives the protections to plant breeders beyond national borders. For as long as New Zealand remains a non-party to UPOV 91, the member countries of UPOV 91 including Australia, Japan, USA, and the UK, are not obligated to provide the enhanced protection UPOV 91 brings to New Zealand breeders.
Another substantial change which would be realized under UPOV 91 is the right of the PVR owner to export the propagating material. Under the PVRA, the permission of the PVR owner is not required to export propagating material of a protected variety. Provisions of UPOV 91, however, require the PVR owner to consent if that material is to be used for further propagation following export. This provision of UPOV would make much easier policing the export of protected varieties, and thus to guard against infringement on an international level
Those attempting to export and potentially internationally pirate protected varieties developed in New Zealand would need to first obtain authorization by the owner. Supporters of this right cite examples like visiting scientists attempting to procure cutting from apple trees or the finding of “Pacific Rose” apples being illegally grown in Chile as evidence for the necessity of this right.
Although there appear to be economic incentives which encourage the ratification of UPOV 91, New Zealand, because of its unique situation with regard to rights of traditional knowledge held by Maori, may be preempted from doing just that. If that is the case, New Zealand faces the risk of losing the economic benefits which a more thorough series of rights in plant varieties could potentially produce.
If New Zealand wishes to compete in a global market while refusing to implement UPOV 91, it must look to other ways to encourage PVR owners to invest their resources in New Zealand and thus reap the benefit of those varieties.
Reference
- http://www.med.govt.nz/business/intellectual-property/pdf-docs-library/plant-variety-rights/review-of-the-pvra-1987-pdf
- http://www.grain.org/article/entries/321-upov-getting-a-free-trips-ride
- jay.law.ou.edu/faculty/kershen/IPRLM/Protecting Plant Varieties in New Zealand.pdf (2008)
- UPOV website http://www.upov.int/portal/index.html.en
Compiled by Andy Warren, BLOOMZ New Zealand, October 2012 www.bloomz.co.nz
