Wednesday 8 July 2020

An update on New Zealand’s Plant Variety Rights Act review

At the end of 2019, the Cabinet paper for the Plant Variety Rights (PVR) Act review was released. This paper sets out the policy decisions made by the Minister of Commerce (the Minister) for the new PVR Act following the consultation carried out by the Ministry of Business, Innovation and Employment (MBIE) during 2018 and 2019. As expected, most of the policy decisions reflect MBIE’s ‘preferred’ options from the options paper released mid-2019.

Overall, the Minister proposes adopting the minimum UPOV91 requirements, but using standalone legislation specific to New Zealand, as MBIE believes New Zealand is unable to ratify UPOV91 and maintain its obligations under the Treaty of Waitangi. New Zealand will officially remain a member of UPOV 78 and only ‘give effect’ to UPOV 91. This approach has created some concern among other UPOV members, and New Zealand risks appearing non-compliant with UPOV 78. A further concern is the narrowing of the scope of protection provided under UPOV 78 to species where it is clear there is no kaitiaki relationship. The Minister stresses this additional requirement does not mean that species with a possible kaitiaki relationship are not covered by PVR. Rather, these species will be subject to additional conditions for grant and, as such, are not officially covered by any UPOV convention. However, the nuances of New Zealand’s position are likely to be lost on the wider UPOV community.

The new PVR Act is the first piece of legislation to take into consideration the recommendations of the Waitangi Tribunal from the WAI262 claim. While the Government has announced a ‘whole of government’ response to the WAI262 recommendations, due to the time pressures created by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the PVR Act amendments can’t wait for that work to be completed.

MBIE has also decided not to act on some key issues raised during the consultation process, including defining the terms ‘kaitiaki’ and ‘taonga species’. The Minister notes that these terms have a far wider scope than the PVR regime, so the current legislation is not the place to set the definition for these terms. Instead, the Minister proposes to use the terms ‘indigenous species’ and ‘non-indigenous species of significance’ to indicate to breeders whether kaitiaki interests may be affected. It is appropriate for terms that have significance outside of PVR to be carefully considered, but it is unfortunate that even more terms need to be created and defined for the PVR Act.

The package of proposals for Treaty of Waitangi compliance also includes the following:

  • New disclosure requirements for breeders.
  • The ability to refuse grant if kaitiaki relationships are affected (and cannot be mitigated to a reasonable extent).
  • The Commissioner can refuse a name for a new variety if registration or use of that name would offend a significant section of the community, including Māori.
  • The establishment of a Māori Advisory Committee, with the Chair of the Committee sitting alongside the Commissioner when kaitiaki interests are involved. This is different to the way the Māori Advisory Committee functions in relation to patents and trade marks, where the Chair advises the Commissioner.

In relation to Essentially Derived Varieties, the Minister supports adopting the ‘preferred option’, which essentially provides another New Zealand-only solution. This is disappointing, as we believe that this option is no clearer than the UPOV approach and by creating a new scheme in New Zealand, we will be unable to leverage case law and lessons from other UPOV members. 

One area where the Minister does propose to depart from the options paper is in relation to compulsory licences. We are pleased to see that the Minister supports the addition of a public interest test for compulsory licences. This would allow the Commissioner to consider circumstances such as the availability of both produce and propagating material when deciding whether to grant a compulsory licence.

Pleasingly, the Minister has expressed a preference for the PVR Act to align with other New Zealand IP legislation, especially the Patents Act. Having consistency across the two Acts would allow for guidance on one Act to help with interpretation of the other.

There is a clear message in the Cabinet paper that the current PVR Act review is ‘for now’, and that further changes could be made after WAI262 work has been completed. However, in our experience, IP legislation review happens once in a generation. For example, the Patents Act 1953 was finally updated in 2013, yet we are still living with faults in the 2013 Act. Corrections to the Patents Act 2013 have been suggested, however, there is neither the political will nor the parliamentary time to advance amendment legislation. We understand that making minor changes to IP legislation isn’t going to make headlines or win votes, but this is why it is so important that the PVR legislation we pass now is the very best it can be.

Next steps

MBIE has recently advised that progress on the Bill has been delayed due to the COVID-19 situation. Consultation on two sets of outstanding issues (administrative matters and Treaty of Waitangi issues) was also put on hold, with consultation regarding these issues now expected in August 2020.

The new timeline means that policy decisions on these issues will now not be made until after the general election, with the introduction of a Bill to Parliament expected at the end of 2020. However, the new Act is still intended to be in place by the end of 2021.

We are concerned that the delays coupled with the fixed deadline for the new Act will have a negative impact on the public’s ability to make submissions.

We will continue to monitor the progress of the Bill and will report again once the Bill is published.