Upcoming changes - Plant Variety Rights in Aotearoa New Zealand
As a signatory to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), New Zealand is required to update its Plant Variety Rights regime by 30 December 2021. The new Plant Variety Rights Bill ("the PVR Bill") had its first reading on 19 May.
Background - the PVR Act
New Zealand's Plant Variety Rights Act is over 30 years old and is based on the 1978 International Convention on the Protection of New Varieties of Plants (UPOV Convention). Unlike the majority of our main trading partners, New Zealand has not joined the new version of the UPOV Convention (UPOV 91) which strengthened plant breeders' rights.
Photo by James Yarema
The Plant Variety Rights Bill
The purpose of the PVR Bill is twofold; firstly, to give effect to UPOV 91 (clause 3a), and secondly, to allow the Crown to fulfil its obligations under the Treaty of Waitangi ("the Treaty"), (clause 3b).
Key aspects of the PVR Bill which address UPOV 91 requirements include:
- Introducing the concept of an essentially derived variety (EDV) into New Zealand law;
- Extending the term of protection for woody plants from 20 to 25 years;
- Clarifying that where a plant variety rights holder has not had a reasonable opportunity to assert their rights in relation to the plant propagating material, their rights are extended to the harvested material;
- Clarifying that plant variety rights do not extend to farm-saved seed (regulations may limit this exemption in the future).
Rather than use the UPOV 91 definition for an EDV, the PVR Bill echoes the definition from Australian law, stating an EDV "does not exhibit any important (as distinct from cosmetic) features that differentiate it" from the variety from which it is derived.
The Treaty of Waitangi is New Zealand's founding document. Part 5 of the PVR Bill addresses the Treaty obligations. A discussion of some of the terms used in the PVR Bill (kaitiaki, mātauranga Maori, tāonga) can be found here. Key aspects of the PVR Bill which address Treaty obligations include the establishment of a Māori Plant Varieties Committee, which will
- issue engagement guidelines and provide advice to applicants;
- consider PVR applications referred to it by the Commissioner;
- advise the Commissioner whether the use or approval of a proposed plant variety name (denomination) is likely to be offensive to Māori.
Importantly, the Commissioner must refer any PVR application concerning "indigenous plant species" and "non-indigenous plant species of significance" to the Māori Plant Varieties Committee. The non-indigenous plant species of significance will be defined in a list. For those applications, the decision to grant a PVR will lie with the Māori Plant Varieties Committee rather than the Commissioner. In contrast, for the use of denominations the Māori Plant Varieties Committee only advises the Commissioner.
The PVR Bill has been referred to the Economic Development, Science and Innovation select committee for consideration. Given the December deadline the select committee process has a shortened time frame. Submissions relating to the bill have now closed. If you would like further information, please contact us.
Penny Walsh - June 2021