The Nature and Magnitude of the Problem and the Need for Government Action
The grant of Plant Variety Rights (PVR) under the Plant Variety Rights Act 1987 (PVRA) provides plant breeders with the exclusive right to sell seed or reproductive material of their new varieties for a limited time. This gives plant breeders an opportunity to make a return on their investment in breeding new plant varieties, and provides an incentive for such investment. It also provides an incentive for foreign plant breeders to allow their new varieties to be exploited in New Zealand. About 120-130 new PVRs granted each year.
Rights Granted to PVR Owners
The rights (described above) provided for under the PVRA for PVR owners are relatively limited compared with the rights provided in other developed countries. Plant breeders argue that this reduces the incentive for local plant breeders to develop new varieties, or for foreign breeders to allow their new varieties to be exploited in New Zealand. Local plant breeders have submitted that because of the relatively limited protection provided for new plant varieties in New Zealand many are considering reducing or ceasing their breeding activities, or moving offshore.
Given the importance of agriculture to New Zealand's economy, any reduction in the availability of new plant varieties to New Zealand farmers and growers could place them at a competitive disadvantage to their counterparts in our major trading partners.
Definition of "Owner"
Section 2 of the PVRA defines the "owner" of a new plant variety as a person who "bred or discovered" that variety. This means that it is possible for a person to obtain a PVR for a plant variety that they have discovered, that is, a variety that occurs naturally rather than being the result of human intervention. The granting of PVRs over discoveries may conflict with what Māori see as their rights under Article II of the Treaty of Waitangi. The WAI 262 claim alleges (among other things) that by granting intellectual property rights over indigenous plants, the crown is in breach of its obligations under Article II. Most of New Zealand's major trading partners will not grant PVRs for mere discoveries. It is not possible to quantify the number of PVRs granted for mere discoveries, although it is likely to be relatively small percentage of the total number of PVRs granted.
Farm Saved Seed
The use, by farmers, of saved seed of varieties protected by PVRs does not infringe the rights granted to plant breeders under the PVRA. That is, farmers may freely use saved seed of protected varieties and do not have to pay a royalty. While many farmers and growers strongly object to paying royalties for the use of saved seed of protected varieties, there are some who would be prepared to do so because they feel that this would assist in the development of new varieties. At present there is no provision in the PVRA for requiring the payment of royalties for those varieties where a substantial proportion of those varieties are prepared to pay a royalty. Although farmers are free to pay royalties voluntarily, this would put such farmers at a disadvantage compared to those farmers who chose not to, so there is little incentive for voluntary royalty payments.
Denomination
Before a PVR can be granted, it is necessary for the PVR applicant to propose a "denomination", a name for the variety. Although only 2-3% of all denominations contain Māori words, for some varieties 10-20 % of the denominations contain Māori words. The use of Māori words as denominations may be offensive to Māori. The recently enacted Trade Marks Act 2002 requires the Commissioner of Trade Marks to refuse to register a trademark if the Commissioner considers that use or registration of the mark would be likely to offend a significant section of the community, including Māori. This provision is intended to go some way towards meeting Māori concerns regarding the commercial exploitation of Māori words and imagery.
At present, denominations must comply with international standards relating to the naming of plant varieties. One of these standards provides that a proposed denomination may be refused if it is contrary to public policy. One reason why a denomination might be contrary to public policy is if it is offensive. There is, however, no explicit requirement or obligation for the Commissioner of Plant Variety Rights to refuse a proposed denomination on the grounds that it may be offensive to a significant section of the community. This leaves some doubt as to whether a denomination can be refused on such grounds.
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