Following on from the September 2018 Issues Paper, the July 2019 Options Paper and the August 2020 Outstanding Issues Paper, the Government has now introduced the Plant Variety Rights Bill 2021 to Parliament with the expectation of replacing the Plant Variety Rights Act 1987.
A new Act is effectively required by the need to make the PVR legislative regime compliant with the Treaty of Waitangi and to ‘give effect’ to the 1991 version of the UPOV Convention (UPOV 91) so that New Zealand can meet its obligations under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
The Bill attempts to give meaningful effect to the Treaty of Waitangi by recognising kaitiaki interests – in this context being Māori guardianship, protector or caretaker roles in relation to taonga species, being indigenous plants and non-indigenous plant species that came on the migrating waka, which are of special cultural significance and importance to Māori. The Bill provides for the establishment of a Māori Plant Varieties Committee. The Committee will consider all applications for a new variety, where that variety is wholly or partly derived from a taonga species and where the material from which that variety was derived was sourced in New Zealand. They will assess the effect of the grant of a PVR on kaitiaki relationships and, in contrast to the Māori Advisory Committees under the Trade Marks Act 2002 and the Patents Act 2013, will have the power to make decisions on whether the PVR application should proceed which are binding on the Commissioner. The Committee will also have advisory roles, providing non-binding advice to the Commissioner on: (1) whether use or approval of a proposed denomination for a plant variety is likely to be offensive to Māori; and (2) information relevant to the application of the novel, distinct, uniform, stable, and denomination criteria.
A kaitiaki relationship with a plant species can be claimed to exist in relation to a person, iwi, hapu or group. A PVR application cannot be opposed on the basis of an adverse effect on a kaitiaki relationship with a plant species. However, after grant any person can allege that the granted PVR is having an adverse effect on a kaitiaki relationship, or that the PVR holder has breached a condition or undertaking designed to mitigate an adverse effect on kaitiaki relationships with the plant species. The Commissioner will refer any such allegation to the Committee. If the Committee finds that the granted PVR is having an adverse effect on a kaitiaki relationship they can require the PVR grant to be nullified. If they find that a condition or undertaking designed to mitigate an adverse effect on kaitiaki relationships with the plant species has been breached by the PVR holder they can require the PVR grant to be cancelled. In both cases the PVR holder can retain the PVR grant if they make a further undertaking that is found acceptable by the Committee.
Recognition of kaitiaki relationships with plant species is outside the UPOV 91 framework and so prevents New Zealand from ratifying that convention. This was acknowledged during the negotiations that led to the CPTPP and New Zealand was exempted from the requirement to be a member of UPOV 91 provided they gave effect to UPOV 91 to the fullest extent possible while giving recognition to kaitiaki relationships. New Zealand has three-years from the CPTPP entering into force in New Zealand to give effect to UPOV 91, meaning the Bill needs to be enacted by 30th December 2021.
In order to transition from UPOV 78 compliance to being closer to UPOV 91 compliance some notable legislative differences are required. Alga will become eligible for PVR protection. Clause 9 of the Bill defines the term ‘breed’ and will have the effect that PVRs will no longer be obtainable from mere discovery of a plant in the wild. The scope of rights allowed for expands from being based on reproduction for sale to include a wider array of rights around the commercial exploitation of a variety, including the rights to import for non-reproductive purposes, export and authorise stocking of propagating material. Harvested material is also protected, but only if the rights holder has not had a reasonable opportunity to assert their rights in relation to the propagating material from which it is derived.
Protection will also be extended to provide protection to essentially derived varieties (EDVs) and dependent varieties. If the EDV was derived from a variety protected by a PVR or from another EDV of that PVR, then the EDV cannot be commercially exploited without the permission of the PVR holder. The definition of an EDV will likely require further clarification from the Courts as the line between an EDV and a new plant variety could be contentious. EDVs need to be predominantly derived from a variety protected by a PVR or from another EDV of that PVR and retain the essential characteristics that result from the genotype(s) of the variety protected by a PVR and not exhibit any important features that differentiate it while still being clearly distinguishable.
A plant variety qualifies as a dependent variety if either it (1) is not clearly distinguishable from the variety protected by a PVR while being clearly distinguishable from other plant varieties whose existence was common knowledge at the PVR grant date, or (2) cannot be reproduced without the repeated use of the protected plant variety or a dependent variety thereof. Permission of the PVR holder is required in order to exploit a dependent variety.
If a farmer is using lawfully obtained seeds they can save produced seeds for use on their own farm and are free to sell harvested material from that saved seed as long as it is not used for propagation. Regulations will be made that provide exceptions to the farm saved seed rule in relation to some varieties in order to better balance the interests of breeders and farmers.
It is not an infringement of a PVR and permission is not required to exploit a protected plant variety for: private or non-commercial purposes; experimental purposes; or breeding other plant varieties.
The term of protection for woody plants for which a PVR is obtained under the new Act will increase from 23-years to 25-years from the grant date. All other plant varieties will retain the 20-year term of protection.
Where a PVR is applied for under the current Act, but granted after the new Act enters into force the rights attaching to the grant will be those under the Plant Varieties Act 1987.
The Bill provides for certain other matters not directly related to UPOV 91, modernising the PVR regime to include—
- introducing a public interest test for compulsory licences:
- repealing the offence provisions in the PVR Act 1987, as these are adequately covered by other legislation:
- clarifying the infringement provisions and providing remedies consistent with other intellectual property regimes:
- clarifying that all applications for a PVR require a growing trial and empowering the Commissioner to direct the type of growing trial:
- introducing a general right to be heard whenever the Commissioner exercises a discretionary power under this Bill that might adversely affect a person:
- providing that, consistent with other intellectual property policy regimes, appeals against a decision of the Commissioner are to be heard by the High Court:
- clarifying procedural issues relating to the PVR regime, including aligning these with the processes in the Patents Act 2013 where appropriate.
It is intended that provision of the Act will commence in 3 stages—
- the Māori Plant Varieties Committee will be established following Royal assent so that its terms of reference can be finalised and work can commence on guidelines for breeders and kaitiaki:
- the bulk of the provisions will then commence by Order in Council once the new regulations are made:
- the provisions relating to consideration of applications by the committee will commence by Order in Council no less than 1 year (and no more than 2 years) after Royal assent to give breeders sufficient time to understand their new obligations to engage with kaitiaki (where relevant) prior to making their applications.