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Plants, Copyright and Wine — This Month’s Degustation

04 August 2017 - By Doug Calhoun

Plant Variety Rights Act Review – Not Before Time

The least well-known of our IP statutes, the Plant Variety Rights Act 1987, is now undergoing a full review. Its two main objectives are to expand the bundle of rights protected to conform to UPOV 1991 (the governing international treaty) and to address the recommendations made by the 2011 Wai 262 (the flora and fauna claim) Report of the Waitangi Tribunal. While they are at it, the Ministry of Business, Innovation and Enterprise (MBIE) might also have a look at the shortcomings of the existing law.

The UPOV convention sets out the principles of sui generis legislation establishing rights for breeders in new plant varieties. UPOV has gone through three generations: in 1961, 1978 and 1991. New Zealand was an early member of UPOV 1961 with its Plant Varieties Act 1973. It was quick off the mark in signing up to UPOV 1978. However, the 1987 Act has still not been upgraded to UPOV 1991.

Kiwifruit orchard

The delay has been largely due to uncertainty (since 1991) in the outcome of the Wai 262 inquiry. An abortive attempt resulted in a draft bill in 2005, but that was called off to await the 2011 Wai 262 Report. Since then the delay has been attributed to negotiations over the Trans Pacific Partnership IP standards. Now, it seems, it is finally time for action.

The UPOV 1978 exclusive rights are limited primarily to the reproduction for sale and the sale of reproductive material of a protected variety. In one example the rights are in a kiwifruit vine – but not the kiwifruit produced from that vine, even though the “distinctness” of the variety is in the fruit. UPOV 1991 rights include rights in several other activities in respect of reproductive material and rights downstream in the value chain, ie, rights in harvested material and, optionally, products of harvested material. In addition, the rights for a protected variety extend to a variety essentially derived from a protected variety. The new legislation could well do with some examples to allow readers new to PVRs to get their heads around these concepts.

The Wai 262 Report has been out for six years – without a response from the government. Trying to reconcile the Wai 262 claims with PVR law is a round hole/square peg exercise.

The Wai 262 report suggested three applicable principles:

  • The kaitiaki relationship with taonga species should be respected,
  • The provisions put in place must protect that relationship, and,
  • The interests of IP holders, the public good in research and development, knowledge itself and species is also important.

Not surprisingly, negotiations between MBIE and iwi, hapu and the wider Māori community are continuing.

There are few, if any, procedural provisions in the 1987 Act and 1988 Regulations to guide parties or the commissioner in resolving disputes. The grounds upon which a third party can apply to revoke a PVR grant are not matched by the grounds upon which the commissioner can revoke a PVR grant. These examples suggest that the Act and Regulations could well stand a thorough coherency review while MBIE is on a roll.

Although MBIE has outlined the next steps, they have not indicated their timing.

Copyright Act Review – At Last

Following on from their Copyright and the Creative Sector study (LawTalk 906, May 2017), MBIE has announced a sweeping review of the copyright regime. The objectives of the review are to:

  • Provide incentives for the creation and dissemination of works,
  • Provide reasonable access to works for use, adaption and consumption,
  • Ensure effectiveness and efficiency, clarity and certainty while maintaining integrity and respect for the law, and,
  • Meet New Zealand’s international obligations.

A mix of lofty aspirational goals, but they had to start somewhere – and these objectives are not set in stone.

The creative sector study may assist MBIE in determining what incentivises creators and disseminators. But will copyright rules be able to balance the power relationships between those who create works and those who disseminate them?

The reasonable access objective will bring into focus whether New Zealand should maintain its fair dealing provisions or move to American-style fair use.

The Australian Productivity Commission’s recent critical review of Australia’s IP laws came down in favour of fair use in Australia, but the Australian government has yet to respond to that report.

The third objective is the mandatory motherhood affirmation.

That particular objective begs the question: which international obligations? Does New Zealand retain the sweeping changes made in 2016 to comply with the TPP standards?

The next step in the review will be an issues paper in early 2018.

A pinot noir toast to the GI Act debut

After a long and convoluted fermentation (LawTalk 903, February 2017) the Geographical Indications (Wine and Spirits) Registration Act 2006 came into force on 27 July.


Doug Calhoun doug.calhoun0@gmail.com is a member of the NZLS Intellectual Property Law Committee. He is a former partner of AJ Park, where he worked from 1974 to 2006.

Last updated on the 4th August 2017