Implications for New Zealand of Extending the Rights Granted to Breeders
Scope of Plant Variety Rights
13. Many of the submitters who supported ratification of UPOV 91 considered that there would be benefits to New Zealand from extending the scope of the rights granted to breeders that would outweigh any costs. The benefits claimed included greater incentives for the development of new varieties and for foreign breeders to release their varieties here, and greater opportunities for collaboration with foreign breeders. Enzafruit submitted that the extension of rights to cover exporting is important to protect New Zealand's legitimate horticultural exports.
14. Greenpeace, however, submitted there could be significant disadvantages in extending the scope of plant variety rights. These were stated to include increased costs to commercial users and farmers, restrictions on the freedom of farmers and other growers to innovate, and monopolistic practices and "price gouging" by multinational businesses. It was argued by Greenpeace that the type of commercially directed "innovation" encouraged by UPOV style legislation is at the expense of diversification, sustainability and choice.
Farm Saved Seed
15. It has long been traditional for farmers to save seed from their harvests for sowing subsequent crops. This seed is known as "farm saved seed". Under the Plant Variety Rights Act 1987, farmers may use saved seed from protected varieties without obtaining the permission of the plant variety right owner or paying a royalty.
16. On this subject, the submissions from PVR owners and supporters advocated that farmers should be required to seek the plant variety rights owner's permission, and pay a royalty before sowing saved seed of a protected variety. The general tenor of these submissions was that allowing the free use of saved seed of protected varieties reduced the income of plant breeders, which had the effect of reducing the incentive for investment in new varieties. Trees and Technology suggested that farmers could pay a reduced royalty for farm saved seed
17. The PBRA and the Grains Council of Federated Farmers submissions contained a joint proposal for the management and control of farm saved seed. They proposed that a royalty should be paid for the use of saved seed for all protected varieties, with a reduced royalty being paid on certain specified species. A statutory body would be set up to co-ordinate and/or manage any regulations controlling farm saved seed. They also suggested that defined "small farms" could be exempted from any restrictions on farm saved seed, but noted that there could be problems defining a "small farm".
18. Apart from the submission received from the Grains Council of Federated Farmers, there were no submissions from growers or farmers. Two of the submissions (from Wrightson and Pyne Gould Guinness) described problems that these submitters had encountered in persuading growers and farmers to pay royalties on farm saved seed. The problems described suggest that there may be significant opposition from some farmers and growers to any requirement for royalties to be paid on saved seed of protected varieties.
19. Environmental groups were opposed to any restrictions being placed on the use of farm saved seed of protected varieties. Preventing farmers from saving seed of protected varieties, or requiring them to pay a royalty for saved seed was seen as increasing farmer's costs and reducing biodiversity.
Compulsory Licenses
20. Section 21 of the Act provides for the grant of a compulsory license if a PVR owner does not make reasonable quantities of reproductive material of the protected variety available for purchase by members of the public at a reasonable price.
21. PVR owners and supporters were strongly opposed to the compulsory license provisions in the Act and wanted them removed. These submitters considered that the existence of such provisions reduced their ability to make a return from their breeding activities and made it more difficult to exercise control over the exploitation of their protected varieties.
22. The submission from the Grains Council of Federated Farmers expressed concern that the removal of the compulsory license provisions of the Act would remove growers' ability to sell their produce to the highest bidder. Growers would regard this as a loss of control over their own businesses. The Council was prepared to accept removal of the compulsory license provisions only if the Act contained provisions providing that certain "common" grain varieties were freely available to growers without restriction.
23. Greenpeace was opposed to any weakening of the compulsory license provisions. They submitted that the compulsory license provisions should ensure that the monopoly inherent in the grant of a Plant Variety Right does not result in unacceptable barriers to access. Such barriers were seen as reducing competition and consumer choice and increasing the cost of food.
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