PVR Law Reform Update - Dec 2015

Executive Summary

  1. Since late 2014 NGINZ has been working with the NZ Grain and Seed Trade Association (NZSTGA) to advocate PVR Law Reform - specifically NZ’s adoption of UPOV91 and other improvements to NZ's PVR legislation.
  2. Key issues at hand
    1. UPOV91's extension of breeder's rights and protection of their interests.
    2. Improved appeal mechanisms.
    3. Ease of enforcement and compliance.
  3. The project was initiated by NZSTGA who strongly support reform, independent of, but recognising TPPA's adoption mandates UPOV91.
  4. A PVR Law Reform Steering Group (NZSTGA, NGINZ, cut flower and fruit tree sector interests) was formed in August 2015, and has met with Commerce Minister Hon Craig Foss and MBIE officials.
  5. The Steering Group has been very ably aided by law firm Franks Ogilvy - Steven Franks is a constitutional law specialist and former MP.
  6. NGINZ seeks co-funding support (circa $10,000) in order to meet a share of Franks Ogilvy expenses.

What We’ve Been Doing

Early in 2014 NZSTGA began work to advocate for PVR law reform.  Aware that a successful TPPA outcome would mandate NZ adopting UPOV91, NZSTGA was strongly of the view that it was important for industry’s views to be represented at the early stages of policy reform.  In addition even if TPPA was not successful (and it has been), PVR law reform was well overdue.  The NZSTGA approached NGINZ early in these discussions and we’ve been working with them.

In mid-August 2015 a number of interested parties met with Steven Franks (Franks Ogilvy) to assist with an argument and a policy paper to inform advocacy with MBIE and IPONZ and the Minister of Commerce.   Steven Franks is an acknowledged constitutional and law reform expert, and as a former MP, is well-versed with parliamentary process and policy influencing processes.

A PVR Law Reform Group was formed and a Steering Group comprising NZSTGA, NGINZ, cut flower and fruit tree sector interests, Steven Franks and Pam McMillan (Franks Ogilvy) was formed.  Legislative and other issues have been identified and last week the group met with Commerce Minister Hon Craig Foss and MBIE officials to seek their guidance, ascertain their interests and inform them of our work.

Franks Ogilvy’s assistance has been invaluable – in particular in collating the exemplary components from the PVR legislation from other jurisdictions who have had experience of UPOV91 over a 23 year period – for example the UK, the EU, Sweden, Netherlands, Canada and Australia.  All provide valuable insight into UPOV91, its advantages and pitfalls.  We can draw upon these experiences to improve the NZ system.  Additionally Franks Ogilvy have incorporated components from NZ’s two (abandoned) attempts to progress UPOV91 to date – 2002 and 2005.
 
Now that TPPA has been agreed, and accepting there is a process before it is signed, PVR law reform is inevitable – TPPA requires signatories to adopt UPOV91.  However, there is still much that we can influence, and the earlier in the process the better – the timing of the reform, and that industry interests are incorporated, particularly with provisos for appeal of PVR decisions and ease of enforcement of compliance.

What are the Potential Reform Issues?

UPOV91 provides for far stronger rights for breeders – and consequently their agents and licensees. 

Extended breeder rights over the use of plant material - UPOV78, upon which current NZ legislation is based addresses only the “exclusive right to produce for sale …”   That is, the rights of the breeder are constrained to the control of production when the plant is sold.  This, for example, facilitates people using the growing the plant for their “own use” where a sale is not recorded – it can be argued no sale has taken place, and that the plant’s use is not subject to PVR.   

UPOV91 on the other hand, enables the PVR owner to authorise

  • Production and reproduction (multiplication)
  • Conditioning for the purpose of propagation
  • Offering for sale
  • Selling or other marketing
  • Exporting
  • Importing
  • Stocking for any of the above purposes

No longer does there need to be a “sale”.   Breeders, their agents and licensees are significantly advantaged.

The inclusion of importing and exporting is also significant.  UPOV78 does not allow the breeder to control either the export of a protected variety to another PVR jurisdiction or the import of their variety into another jurisdiction.  That way, PVR’d plants can be shipped around the (non-UPOV91) world and grown without reference to the breeder in jurisdictions where they are not protected.

Essentially Derived Varieties – Much breeding activity “tinkers” with a variety making only small changes, enough to pass the novelty test, but still very much a “me-too” or “look-a-like”.  UPOV91 provides mechanisms for the initial breeder to retain some rights under these circumstances.  This, for example, has been of concern to some breeders in the arable sector (grasses and grains) whereby they have been reluctant to send new varieties to UPO78 jurisdictions for fear that they will be used in “me-too” breeding projects.  

Improved definitions – not necessarily headline making matters, but UPOV91 (and the Steering Group’s work) include improved, more precise and/or wider encompassing definitions of a variety, breeder, propagating, reproductive and harvested material …

An issue of concern to the arable sector is that of royalty payments and collection on farmer saved seed.  PVR legislation worldwide makes provision for farmers to save seed from a crop produced from PVR’d seed, and for the farmer to sow those harvested seeds on their own property in future years.  NZSTGA advocates for the retention of this right, but argue for improved royalty collection and compliance mechanisms.  

Steering Group work has also identified that two other NZ processes need strengthening and strong advocacy.

  1. Consideration needs to be given to improved mechanisms for the appeal of PVR decisions – ideally with a component of independence.  Other jurisdictions provide such models, though admittedly they jurisdictions are far larger than NZ, so the “size” of such a mechanism is important.
  2. Enforcement is an issue – or at least the difficultly and cost of enforcement and compliance are issues.  Some options have been discussed by the Steering Group and an important outcome of the law’s reform will be to ensure a course of action protects the interests of both parties, is fit for purpose, efficient and cost effective.

Funding

As always, industry members and the representatives of industry organisations around the table give freely of their time.  But, and frankly (no pun intended) Franks Ogilvy’s invaluable time and expertise comes at some cost, and NGINZ, reasonably, is expected to meet it share. 

To that end, NGINZ seeks contributions from those who will potentially benefit from a “fit for purpose” outcome.   I implore those reliant upon PVR - breeders, agents and licensees - to please consider contributing financially to this work, and contact John Liddle, john@nginz.co.nz.

What’s Next?

The Steering Group will continue with the development of its discussion and policy papers and to liaise with MBIE and IPONZ officials to ensure that we are ready to work with officials as they are drafting policy and amending or replacement legislation.  It’s important that we are influential in the policy formation stages – it’s far easier to influence legislation as it is being developed than once it has been drafted.

The Steering Group also want to hear comments and/or of experiences from members of NGINZ’s PVR User Group which will help us build a stronger PVR system.  Information to John Liddle, john@nginz.co.nz.

21-Dec-2015