Friday, 16th November, 2018

New Zealand Plant Variety Rights (PVR) Act under review

The review 

The current New Zealand PVR Act is over 30 years old, and is being reviewed with a view to bringing it more in line with the corresponding Acts of many of New Zealand’s trading partners.

The current 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 1991 revision (UPOV 91), which generally affords stronger protection to PVR holders.

The review aims to strike an appropriate balance between strengthening plant breeders’ rights to encourage development and importation of new varieties of plants, and preserving the interests of growers, consumers and New Zealand as a whole.

Issues paper

The Ministry of Business, Innovation and Employment (MBIE) has released an Issues Paper and invites submissions from interested parties on various issues relating to the NZ PVR regime.

Making submissions

Submissions should be made using the submission template  by 5.00pm on Friday 21 December 2018.  Interested parties can make submissions on one of more of the issues discussed in the Issues Paper, or on other issues.  Details of the review process and timing can be found on page 2 of the Issues Paper. 

Issues of potential interest

The Issues Paper includes discussion of the following issues.

  • Farm-saved seed (page 27)
    • Saving seed to grow future seasons’ crops is not prohibited under the current PVR Act, although it may be controlled contractually.
    • Should a new Act place restrictions on use of farm-saved seed?
  • Rights over harvested material (page 31)
    • The rights under the existing PVR Act relate mainly to propagating material of the variety.
    • Should rights of PVR holders to harvested materials (eg, fruit, grain, cut flowers, vegetables) be strengthened?
  • Rights over similar varieties (page 35)
    • Is the current approach for assessing the distinctiveness requirement appropriate?
    • Should protection be extended to cover ‘essentially derived varieties’?  Eg, should protection cover new varieties developed from a PVR-protected ‘initial’ variety with only minor changes over the initial variety?
  • Compulsory licences (page 42)
    • Under the current regime, interested parties can apply for a compulsory license at least three years after grant of a PVR, if they consider that PVR owner has not made reasonable quantities of the protected variety’s propagating material available to the public at a reasonable price.
    • Should these provisions be updated/amended?
  • Enforcement: infringement and offences (page 46)
    • There is arguably some lack of clarity with respect to infringement, action PVR owners can take, and remedies against infringers (among other things) in the current Act.
    • Should these provisions be updated/amended?
  • Plant variety rights and the Treaty of Waitangi (page 54)
    • The Crown’s obligations to Māori under the Treaty of Waitangi in the PVR regime are a key component of the review.
    • Discussion includes consideration of Wai 262 recommendations, including the importance of kaitiakitanga and the kaitiaki relationship between Māori and mātauranga Māori, and taonga species in particular.

Need help?

If you would like assistance in making a submission, or to discuss this further, please contact Helen Bellchambers by email at helen.bellchambers@ajpark.com.