Plant Variety Rights Act 1987 review: Options paper

Under the CPTPP, New Zealand can either accede to UPOV 91 or “give effect” to UPOV 91. Under either option, New Zealand can adopt any measures “it deems necessary” to meet its obligations under the Treaty of Waitangi. This means that, if we consider a particular measure necessary to meet our Treaty obligations and this measure is incompatible with UPOV 91, we can choose instead to “give effect” to UPOV 91. However, we can only deviate from UPOV 91 to the extent necessary to meet these obligations, not for any other reason.

Our analysis of our Treaty obligations (as set out in Part 5 of the Options Paper) leads us to the conclusion that meeting these obligations is incompatible with acceding to UPOV 91, and so our preferred option in relation to CPTPP is that we instead “give effect” to UPOV 91.

Our assessment of what it means to meet our Treaty of Waitangi obligations in the regime is based on:

• the general discussion on taonga species in Chapter 2 of the Wai 262 report
• the four specific recommendations relating to PVRs in the Wai 262 report, and
• what we heard from our engagement with Māori during the issues stage of the review.

The Options Paper presents a package of proposals, the main purpose of which is to encourage early and meaningful engagement between plant breeders and kaitiaki, where applicable. We propose providing for additional requirements and considerations in relation to kaitiaki interests at the application and decision-making stages of the PVR granting process. Specifically, the proposals address:

• Disclosure requirements: the information on kaitiaki relationships that must be provided by plant breeders when they apply for a PVR;
• Decision-making: how decisions are made in relation to kaitiaki relationship information provided in a PVR application;
• Decision-makers: who is involved in considering kaitiaki relationships in the PVR grant decision-making process, and how.

The key issue as far as UPOV 91 is concerned is how kaitiaki interests are considered in the PVR decision-making process, and we present three options for this.

Our conclusion is that providing genuine, mana-enhancing consideration of kaitiaki interests necessary for Treaty compliance requires decision-makers to have the power to decline to grant a PVR if it would adversely affect kaitiaki interests and mitigation of these impacts was not possible. This option is consistent with the Wai 262 recommendations and other intellectual property regimes (such as patents and trade marks).

This option is not consistent with UPOV 91 as it is not possible to include additional criteria for consideration when deciding whether to grant a PVR. It is for this reason that, in relation to the CPTPP, our preferred option is to “give effect” to UPOV 91, as opposed to acceding to UPOV 91.

While there are certain provisions of UPOV 91 that we have no choice but to implement (subject to Treaty of Waitangi considerations), there are a number of provisions where there remains considerable domestic policy flexibility as to how we implement them. Notable provisions are:

• Term of a PVR: our preferred option is to align with the minimum terms under UPOV 91, namely 25 years for woody plants and their rootstock and 20 years for all other plants.
• Essentially derived varieties: our preferred option is similar to the Australian approach which defines EDVs as derived varieties that add no significant features to the initial variety (as opposed to simply transcribing the UPOV 91 definition).
• Rights over harvested material: our preferred option is to align with the minimum requirements under UPOV 91, which is to extend rights to harvested material that comes from unauthorised use of propagating material when the PVR owner has not had the opportunity to assert their rights in relation to the propagating material.
• Farm saved seed: our preferred option is to implement the UPOV 91 exception so that farmers do not need the authorisation of the PVR owner to save seed to plant the following season’s crop. We also propose to provide that limitations on this exception can be placed in regulations if the case is made.

The Options Paper also discusses some changes to the provisions relating to compulsory licence and enforcement of infringements, but does not propose a significant departure from the current arrangements. The Paper also proposes removing the offence provisions as these are adequately addressed either in other legislation, or by other means in the PVR regime.