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Trade, Treaty obligations come to fore in plant variety rights review

Monday 17th September 2018

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A review of intellectual property protection for new plant varieties will grapple with requirements of trade agreements and recommendations the Waitangi Tribunal has made on Māori guardianship. 

The government has launched a 13-week consultation to help update 30-year-old legislation governing the intellectual property of plant breeders. A review of the law started in the 1990s but was put on hold twice, first to cater for the Wai 262 claim and then again during trade and investment negotiations for the Comprehensive and Progressive Trans-Pacific Partnership.

The Ministry of Business, Innovation and Employment notes several issues in the current regime including: whether there should be a mechanism for rights owners to collect a royalty when farmers and growers save and use material grown themselves; how far rights over harvested material should extend; how far rights are extended to similar varieties; whether compulsory licensing is fit-for-purpose; and how to appropriately enforce the regime. 

Commerce and Consumer Affairs Minister Kris Faafoi said a robust regime is needed to encourage the development of new varieties without breaching international and Treaty obligations. 

"Ensuring the plant variety rights regime includes adequate protection and recognition of Māori interests in the regime will be an important outcome of this review," he said. 

The government hasn't formally responded to the Waitangi Tribunal's 2011 Wai 262 report which recommended widespread reforms that would give greater recognition to kaitiaki interests and Māori roles in decision-making, and would shift Crown-Māori relations to one of partnership. 

MBIE used the Wai 262 report to structure the plant variety rights discussion, and balancing Treaty with international obligations is a key issue for the review, Faafoi said in a Cabinet paper. New Zealand has to meet the International Convention for the Protection of New Varieties of Plants within three years of the CPTPP coming into force. 

The government also wants feedback on how to engage with Māori in the review and plans regional hui in November and December to discuss the substantive issues for Māori. That separate consultation will also consider whether to expand the plant varieties rights review to other taonga species issues, such as requiring patent applicants to provide information on the origin of genetic resources or traditional knowledge used. 

"Disclosure of origin is a key proposal to protect indigenous rights and interests in genetic resources and traditional knowledge being discussed in several international forums," the MBIE paper said. "The Waitangi Tribunal also recommended that a disclosure of origin requirement be incorporated."

Faafoi plans to seek Cabinet agreement on policy for disclosure of origin by early 2019 and to release an options paper on the plant varieties law review in the first half of next year. 


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