Plant breeders' rights

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Plant breeders' rights, also known as plant variety rights (PVR), are intellectual property rights granted to the breeder of a new variety of plant.

These laws typically grant the plant breeder control of the propagation material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety and the right to collect royalties for a number of years. This can provide income for the breeder to cover the costs of research and development. The purchase of protected varieties gives farmers the benefits of superior varieties. In return, farmers are expected to pay a small royalty, included in the purchase price, and not sell the seed that they produce. Farmers may store the production in their own bins for their own use as seed, but further sales for propagation purposes are not allowed without the written approval of the breeder. Violations of Plant Breeders' Rights can result in litigation and court-ordered restitution to the breeder.

Plant breeders' rights contain a wider array of exceptions than the general regime of patent law. Commonly, there is a defence for farm-saved seed. However, this does not necessarily extend to brown-bag sales of seed. There is also a breeders' exemption - in respect of research and experimentation on new varieties of plants. There is also scope for compulsory licensing to allow public access to new varieties.

There is much tension over the interaction between patent law and plant breeder's rights. There has been much litigation in Australia, the United States, and Canada over the overlap between such rights. See: Matthew Rimmer. "Franklin Barley: Patent Law And Plant Breeders' Rights", Murdoch University Electronic Journal of Law, December 2003, Vol. 10, No. 4, URL: http://www.murdoch.edu.au/elaw/issues/v10n4/rimmer104.html

[edit] International rights

In 1957, the French Government held a conference in Paris concerned with the protection of new varieties. This led to the International Convention for the Protection of New Varieties of Plants 1961. The purpose of the Convention was to ensure that the member states party to the Convention acknowledge the achievements of breeders of new plant varieties by making available to them an exclusive property right, on the basis of a set of uniform and clearly defined principles.

The Convention was revised in Geneva in 1972, 1978 and 1991. Both the 1978 and the 1991 Acts set out a minimum scope of protection and offer member States the possibility of taking national circumstances into account in their legislation. Under the 1978 Act, the minimum scope of the plant breeder's right requires that the holder's prior authorisation is necessary for the production for purposes of commercial marketing, the offering for sale and the marketing of propagating material of the protected variety. The 1991 Act contains more detailed provisions defining the acts concerning propagating material in relation to which the holder's authorisation is required. Exceptionally, but only where the holder has had no reasonable opportunity to exercise his right in relation to the propagating material, his authorisation may be required in relation to any of the specified acts done with harvested material of the variety.

In response, the United Kingdom enacted the Plant Variety and Seeds Act 1964 (UK). Similar legislation was passed in the Netherlands, Denmark, Germany, and New Zealand. The United States of America had passed the Plant Patent Act 1930 (US). This provided a special form of protection, which was limited to asexually reproduced varieties of plants which did precisely reproduce themselves and called a plant patent. In 1970 the United States followed the lead of seventeen Western European nations and passed the Plant Variety Protection Act 1970 (US). This legislation provided protection to developers of novel, sexually reproduced plants. Since the 1980's, the US Patent Office has granted patents on plants, including plant varieties: this provides a second way of protecting plant varieties in the USA. Australia passed the Plant Variety Protection Act 1987 (Cth) and the Plant Breeders Rights Act 1994 (Cth).

The WTOs Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires member states to provide protection for plant varieties either by patents or by an effective sui generis (stand alone) system, or a combination of the two. The International Union for the Protection of New Varieties of Plants also regulates plant breeders' rights internationally.

The Rio Convention on Biological Diversity was signed in June 1992. While the Convention was not directly concerned with patent standards or plant breeder's rights, it heralds a new approach to the way biological resources are used.

One of the three objectives of the Convention on Biological Diversity, as set out in its Article 1, is the "fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding". A framework for the implementation of this third objective of the Convention with regard to access to genetic resources is provided in Article 15 of the Convention. In addition, Article 8(j) contains provision to encourage the equitable sharing of the benefits arising from the utilization of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for conservation and sustainable use of biological diversity.

These provisions are also linked to the provisions on access to, and transfer of technology (Article 16), exchange of information (Article 17), technical and scientific cooperation (Article 18), the handling of biotechnology and distribution of its benefits (Article 19, paragraphs 1 and 2), and financial resources and financial mechanism (Article 20 and Article 21).

The FAO International Undertaking on Plant Genetic Resources is a non binding agreement that provides for unrestricted access to plant genetic resources. The revised undertaking attempts to maintain relatively unrestricted access to specified crop species under the control of governments in the public domain while securing reasonable benefits, particularly for developing countries which provide significant sources of agricultural biological material for development and research in developed countries. The Undertaking stipulates the payment of benefits into an international account by recipients who commercialise research based on material covered by the undertaking. Material in public ex situ collections is expected to be free of charge.