Statement of Feasible Options that May Constitute Viable Means for Achieving the Desired Objective
Status Quo
Under the PVRA, PVR owners only have the exclusive right to produce for sale, and to sell, reproductive material of their protected varieties.
Plant breeders consider that these rights are not adequate to provide an incentive for the development of new varieties. There is a risk that local breeders may cut back on their breeding activities, and that foreign plant breeders may be reluctant to allow their new varieties to be exploited in New Zealand.
An owner is defined as a person who "bred or discovered" a variety. The granting of PVRs over discovered indigenous varieties might not be consistent with the Crown's obligations under the Treaty of Waitangi.
The rights granted to PVR under the PVRA owners do not place any restrictions on the ability of farmers to use saved seed of protected varieties. Some farmers have indicated that they would be willing to pay royalties for the use of saved seed of certain protected varieties, but there is no provision in the PVRA that would allow for this.
There is currently no explicit requirement for the Commissioner of Plant Variety Rights to refuse a denomination if its use would be likely to offend a significant section of the community. The lack of such a requirement may lead to doubt as to the Commissioner's power to refuse to accept denominations on this ground.
Preferred Regulatory Measures
The regulatory options set out below constitute the preferred options. No other options were considered for achieving the desired objectives.
PVR owners will have the exclusive right to produce or reproduce, condition for the purposes of sale, offer for sale, sell, export, import, or stock for any of these purposes reproductive material of their protected varieties. These rights would also be extended to harvested material obtained through unauthorised use of propagating material of a protected variety, and to products made from such harvested material. These rights will also be extended to varieties "essentially derived" from a protected variety.
These provisions are based on those provided for in1991 Convention of the International Union for the Protection of New Varieties of Plants (UPOV). This convention provides an internationally recognised framework for protection of plant varieties.
The "owner" of a plant variety right will be defined as a person who bred the variety.
Provision will be made for regulations to be made that would specify those plant species where farmers cannot use saved seed without seeking the permission of the PVR owner, and paying a royalty. It is unlikely that such regulations would be made unless a substantial proportion of the growers of the varieties concerned was prepared to pay a royalty. No actual regulations are being proposed at this stage.
The Commissioner of Plant Variety rights will be required to refuse to accept as a denomination a name whose use or registration that the Commissioner considers would be likely to offend a significant section of the community, including Māori. The grounds for refusing a denomination will be the same as the grounds for refusing to register a trade mark under s17(1)(b)(ii) of the Trade Marks Act 2002.
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