The New Zealand Plant Variety Rights (PVR) Act is being reviewed with a view to bringing it more in line with the corresponding Acts of many of New Zealand's trading partners, such as Australia, Canada, Europe, Japan and the US.
The present New Zealand PVR regime is based on the 1978 revision of the International Convention on the Protection of New Varieties of Plants (UPOV 78), whereas the regimes in many other countries are based on the 1991 revision (UPOV 91) which generally affords stronger protection to PVR holders.
Under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) New Zealand is obligated to either accede or "give effect to" UPOV 91 by 30 December 2021. New Zealand also needs a PVR regime that protect kaitiaki interests in indigenous plants consistent with te Tiriti o Waitangi / the Treaty of Waitangi.
The Ministry of Business, Innovation and Employment (MBIE) has now released an Options Paper setting out their preferred options for reforming the PVR regime, and asking for public submissions on these options. The Options Paper takes into account previous submissions on an earlier Issues Paper and other independent analysis.
In the Options Paper, MBIE proposes to "give effect to" UPOV 91, and produce a new Act which they consider would "look like UPOV 91 for over 90% of protected plant varieties, and close to UPOV 91 for varieties where there is a kaitiaki interest", thus allowing the necessary flexibility to meet obligations under the Treaty of Waitangi.
There are several compulsory changes required to "give effect to" UPOV91. But there are also some areas where there is policy flexibility at the domestic level. These include:
- rights over harvested material (fruit, berries, vegetables, grains, cut flowers, etc.)
- rights over products made from harvest material
- rights over essentially derived varieties (EDVs)
- rights over farm saved seed
- provisional protection
- the term of protection
- enforcement of PVR rights
- compulsory licences
If any of these, or the other issues discussed, are likely to be significant to you, or your clients, we recommend reviewing the Options Paper with a view to making a submission.
This will be the last opportunity to have a say, and potentially make a difference to future New Zealand PVR law and process, before the review becomes a parliamentary process.
Users of the New Zealand PVR system should certainly be informed because whatever the final outcome, there will be change, and this will likely impact their business.
MAKING A SUBMISSION
Anyone is welcome to make a submission before 5pm on Monday 9 September 2019. Please refer to the MBIE website for the consultation documents and details on how to make a submission. Providing evidence to support your views will likely give them more weight.
If you have any questions, please contact Humphrey Foote who specialises in protecting plant varieties and other plant-based innovations in New Zealand, Australia, and the rest of the world.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.