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• Draft PVR Amendment Bill

• How Does UPOV 91 Differ from the Plant Variety Rights Act 1987
• Scope of the PVR
• Exceptions to the PVR
• Date and Term of Grants
• Questions

How Does UPOV 91 Differ from the Plant Variety Rights Act 1987

38. UPOV 91 made a number of changes to the earlier UPOV 78 Convention upon which the PVRA 87 is based. Many of these changes were intended to clarify the wording of UPOV 78 and will not be dealt with in this document. In the discussion that follows, only the substantive changes incorporated into UPOV 91 will be considered. A table comparing the provisions of the PVRA 87 and UPOV 91 is attached as the Appendix.

Scope of the PVR

39. Under s 17(1)(a) and (b) of the PVRA 87, PVR owners are given the exclusive right to produce for sale, and to sell, reproductive material of the protected variety. Under the Plant Variety Rights (Grantees' Rights) Order 1997, PVR owners also have the exclusive right to propagate the protected variety, for the commercial production of fruit, flowers or other products, where the protected variety is a vegetatively propagated ornamental, or fruit or vegetable producing variety. Sections 17(5) and (6) of the PVRA 87 effectively prohibit the importation into New Zealand of propagating material of a protected variety without the PVR owner's consent.

40. Article 14(1) of UPOV 91 provides that the PVR owner has the right to authorise the following acts in respect of the propagating material of a protected variety:

• production or reproduction (multiplication);
• conditioning for the purpose of propagation;
• offering for sale;
• selling or other marketing;
• exporting;
• importing;
• stocking for any of the purposes mentioned above.

These rights of authorisation also apply to harvested material and products made directly from harvested material where these were obtained through the unauthorised use of propagating material of the protected variety (Article 14(2) and (3)).

41. Article 14(5)(i) of UPOV 91 extends the rights provided in Article 14(1) to varieties which are "essentially derived" from the protected variety, where the protected variety is not itself an essentially derived variety. A variety is deemed by Article 14(5)(b) to be "essentially derived" from an initial variety if:

• it is predominantly derived from the initial variety and retains the essential characteristics of the initial variety;
• it is clearly distinguishable from the initial variety; and
• except for differences that result from the act of derivation, it conforms to the initial variety in the essential characteristics that result from the genotype of the initial variety.

Exceptions to the PVR

42. Section 18 of the PVRA 87 allows for some exceptions to the exclusive rights provided for in s17. Section 18(a) of the PVRA 87 allows any person to propagate, grow or use any protected variety for non-commercial purposes. Under s18(b) any person may produce and sell a hybrid or new variety from a protected variety as long as it does not require repeated use of the protected variety. Section 18(c) also allows any person to use reproductive material (such as fruit or grain) from a protected variety for human consumption or other non-reproductive purposes.

43. Farmers also have the right to save some of their harvested product for growing future crops, as this product has not been produced for sale. This saved product is usually seed, and so is often referred to as "farm saved seed."

44. Article 15 of UPOV 91 provides for some exceptions to the exclusive rights provided for plant breeders in Article 14. Article 15(1) provides that the breeder's right shall not extend to:

• acts done privately and for non-commercial purposes;
• acts done for experimental purposes; and
• acts done for the purposes of breeding other varieties (but not the commercial exploitation of those varieties).

45. For the purposes of Article 15, a "private" act is one that is not carried out in public. For example, the propagation of protected varieties in a public space such as a botanic garden, while not done for commercial purposes, would not be regarded as "private". On the other hand, the use of a protected variety by a subsistence farmer or home gardener, which is also non-commercial, is "private" and not subject to the breeder's exclusive right. This also means that such people may use farm saved seed without infringing a PVR.

46. The expanded rights granted under Article 14(1) would not allow farmers to save seed of a protected variety without the breeder's consent. Article 15(2), however, allows members of UPOV 91 to restrict the plant breeder's right so that farmers can use their saved seed of a protected variety to grow future crops on their own land. Any use of farm saved seed under this provision must be within reasonable limits, and the legitimate interests of the plant breeder must be safeguarded. This provision is optional, so that if New Zealand were to ratify UPOV 91, New Zealand would not be required to make any change to our existing provisions relating to farm saved seed.

47. Under Article 16(1), the sale or use of any material (including propagating material) of a protected variety which has been sold or marketed by or with the consent of the breeder is a form of exception to the breeder's exclusive right to sell or market propagating material. Once material of the protected variety has been placed on the market by or with the breeder's consent, the breeder's rights are said to be "exhausted." This only applies if the material is not used for further propagation of the variety.

48. It would not normally be necessary to obtain the breeder's consent for the sale or use of material such as fruit, vegetables or grain for human or animal consumption or for any other use that does not involve growing the protected variety. That is, breeders have no general rights over the produce of their protected varieties. This is consistent with the present provisions of the PVRA 87.

Date and Term of Grants

49. Under s 14 of the PVRA 87, the term of a PVR is 23 years in the case of a woody plant or its rootstock and 20 years for all other plants. The term runs from the date of grant of the PVR. An annual grant fee must be paid to keep the PVR in force. If the fee is not paid, the grant will be cancelled (s16(2)(g) of the PVRA 87).

50. Article 19 of UPOV 91 specifies that the breeder's right shall be granted for a minimum period of 20 years from the date of grant. For trees and vines the period is a minimum of 25 years from the date of grant.