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ausip:plant_breeders_rights [2019/09/08 12:55]
jessiej_87
ausip:plant_breeders_rights [2019/09/08 13:11] (current)
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 Article 27(3)(b) of the TRIPs Agreement Article 27(3)(b) of the TRIPs Agreement
  
-The TRIPs Agreement requires members of the World Trade Organization (WTO) to have some form of protection for plant varieties. While this is often in the form of PBR and/or patents this is not always the case. Specifically,​ Art. 27(3)(b) of TRIPs sets out an obligation for WTO Members to provide some form of protection for plant varieties, specially:+The TRIPs Agreement requires members of the World Trade Organization (WTO) to have some form of protection for plant varieties. While this is often in the form of PBR and/or patents this is not always the case. Specifically,​ Art. 27(3)(b) of TRIPs sets out an obligation for WTO Members to provide some form of protection for plant varieties, specially ​'​…[m]embers shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof ((TRIPs, Art. 27(3)(b) )).
  
-<​…[m]embers shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.((TRIPs,​ Art. 27(3)(b))) 
  
 The question of whether the UPOV Convention is ‘effective’ is a vexed one. The language of ‘effective’ is used by both UPOV and the TRIPs Agreement; although it is not necessarily used explicitly in the same context. The argument is that by providing intellectual property protection, in the form of a targeted and specific scheme such as PBR, plant breeders will be encouraged to develop new plant varieties. However, several countries – including India, Nepal and Sri Lanka – have not joined UPOV or implemented UPOV-compliant national PBR legislation. Instead, they have opted to provide ‘effective’ plant breeders’ rights in ways other than the UPOV Convention (though they have adopted some aspects of the UPOV Convention). The question of whether the UPOV Convention is ‘effective’ is a vexed one. The language of ‘effective’ is used by both UPOV and the TRIPs Agreement; although it is not necessarily used explicitly in the same context. The argument is that by providing intellectual property protection, in the form of a targeted and specific scheme such as PBR, plant breeders will be encouraged to develop new plant varieties. However, several countries – including India, Nepal and Sri Lanka – have not joined UPOV or implemented UPOV-compliant national PBR legislation. Instead, they have opted to provide ‘effective’ plant breeders’ rights in ways other than the UPOV Convention (though they have adopted some aspects of the UPOV Convention).
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 To be protected, a plant variety must have a breeder and be new, distinct, uniform and stable as defined by the UPOV Convention: To be protected, a plant variety must have a breeder and be new, distinct, uniform and stable as defined by the UPOV Convention:
  
-Breeder+|Breeder|A breeder is a person who has bred, or discovered and developed, a plant variety, or their employer or contractor who has commissioned the work, and their respective successors in title ((Art. 1(iv), ​//UPOV// 1991)).| 
-A breeder is a person who has bred, or discovered and developed, a plant variety, or their employer or contractor who has commissioned the work, and their respective successors in titleArt. 1(iv), UPOV 1991.+|New|A variety is generally considered new if it has not been sold (with the breeder’s consent) for a period specified in national law ((Art. 6(1), //UPOV// 1991)).| 
 +|Distinct|A variety is distinct if it is clearly distinguishable by one or more characteristics which can be clearly described from any other variety whose existence is a matter of common knowledge at the time of application ((Art. 7, //UPOV// 1991)).| 
 +|Uniform|The requirement that the variety be uniform means that a variety must be sufficiently consistent in those characteristics that make it distinct ((Art. 8, //UPOV// 1991)).| 
 +|Stable|A variety must remain true to description after repeated propagation or reproduction ((Art. 9, //UPOV// 1991)).|
  
-New: 
-A variety is generally considered new if it has not been sold (with the breeder’s consent) for a period specified in national law: Art. 6(1), UPOV 1991. 
  
-Distinct: +Plant varieties must also have a variety denomination in accordance with Article 20, //UPOV// 1991.
-A variety is distinct if it is clearly distinguishable by one or more characteristics which can be clearly described from any other variety whose existence is a matter of common knowledge at the time of application:​ Art. 7, UPOV 1991. +
- +
-Uniform: +
-The requirement that the variety be uniform means that a variety must be sufficiently consistent in those characteristics that make it distinct: Art. 8, UPOV 1991. +
- +
-Stable: +
- +
-A variety must remain true to description after repeated propagation or reproduction:​ Art. 9, UPOV 1991. +
- +
- +
-Plant varieties must also have a variety denomination in accordance with Article 20, UPOV 1991.+
 An important feature of the PBR system is the way in which the interests of breeders, growers, and researchers have been accommodated through exceptions or limitations to the scope of the breeder’s right. ​ An important feature of the PBR system is the way in which the interests of breeders, growers, and researchers have been accommodated through exceptions or limitations to the scope of the breeder’s right. ​
  
 Some key exemptions in PBR include: Some key exemptions in PBR include:
  
-  * **private or non-commercial purpose:** for example: subsistence farmers who propagate a protected variety to produce food for consumption (by the farmer and her family) is excluded from the scope of the breeder’s rightArt. 15(1)(i), UPOV 1991. +  * **private or non-commercial purpose:** for example: subsistence farmers who propagate a protected variety to produce food for consumption (by the farmer and her family) is excluded from the scope of the breeder’s right ((Art. 15(1)(i), ​//UPOV// 1991))
-  * **plant breeding:** this considers the nature of plant breeding and the importance of the continued development of new plant varieties and permits the use of protected plant varieties as an initial source of genetic variationArt. 15(1)(iii), UPOV 1991. +  * **plant breeding:** this considers the nature of plant breeding and the importance of the continued development of new plant varieties and permits the use of protected plant varieties as an initial source of genetic variation ​((Art. 15(1)(iii), ​//UPOV// 1991))
-  * **farm saved seed:** there is an ‘Optional Exception’ that allows national governments to permit, ‘within ‘reasonable limits and subject to the safeguarding of the legitimate interests of the breeder’, the saving of seed and other propagating material (to be used as propagating material, not sold, on their own holdings)Art 15(2), UPOV 1991 +  * **farm saved seed:** there is an ‘Optional Exception’ that allows national governments to permit, ‘within ‘reasonable limits and subject to the safeguarding of the legitimate interests of the breeder’, the saving of seed and other propagating material (to be used as propagating material, not sold, on their own holdings).((Art 15(2), ​//UPOV// 1991))
  
-## Concerns and Controversies+##Concerns and Controversies
  
 ### Are PBR needed? ### Are PBR needed?
  
 One of the persistent concerns over PBR is that it is, and perhaps has always been, unnecessary and obsolete. ​ One of the persistent concerns over PBR is that it is, and perhaps has always been, unnecessary and obsolete. ​
-As early as the 1980s, William Cornish argued that the changing nature of science and technology meant that plant breeders would attain more adequate and appropriate protection through patent law and ultimately questioned whether ‘the [PBR] regime had a viable future’ because it obstructed the ‘logical framework of protection’,​ namely the use of patents for the protection of plant material ((William Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (Sweet and Maxwell, 1989), ​p. 148 at note 37.)). +As early as the 1980s, William Cornish argued that the changing nature of science and technology meant that plant breeders would attain more adequate and appropriate protection through patent law and ultimately questioned whether ‘the [PBR] regime had a viable future’ because it obstructed the ‘logical framework of protection’,​ namely the use of patents for the protection of plant material ((William Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (Sweet and Maxwell, 1989), ​p148 at note 37)). 
  
 The claim that PBR is obsolete and outmoded tends to be expressed either explicitly or implicitly in the argument that PBR is rooted to a technological paradigm (e.g. phenotype: observable characteristics such as plant height and colour) while the science and technology of plant breeding is advancing (e.g. genotype: using molecular or genotypic information). Consequently,​ PBR has been labelled outmoded, a Neanderthal and obsolete by some scholars ((See, e.g., Cary Fowler, Unnatural Selection: Technology, Politics and Plant Evolution (Gordon and Breach, 1994), p. 152; Mark Janis and Stephen Smith, ‘Technological change and the design of plant variety protection regimes’ (2007) 82 Chicago Kent Law Review 1557)). ​ The claim that PBR is obsolete and outmoded tends to be expressed either explicitly or implicitly in the argument that PBR is rooted to a technological paradigm (e.g. phenotype: observable characteristics such as plant height and colour) while the science and technology of plant breeding is advancing (e.g. genotype: using molecular or genotypic information). Consequently,​ PBR has been labelled outmoded, a Neanderthal and obsolete by some scholars ((See, e.g., Cary Fowler, Unnatural Selection: Technology, Politics and Plant Evolution (Gordon and Breach, 1994), p. 152; Mark Janis and Stephen Smith, ‘Technological change and the design of plant variety protection regimes’ (2007) 82 Chicago Kent Law Review 1557)). ​
  
-In contrast, others have argued that to take PBR seriously we need to take the time to identify and analyse the various heterogenous elements and actors that have established and maintained PBR ((See, for example, Jay Sanderson, Plants, People and Practices: The Nature and History of the UPOV Convention (2017, Cambridge University Press))). In so doing, it becomes apparent that PBR serves an important function and embodies a level of richness, context and complexity that technological determinism (e.g. phenotype versus genotype) ignores: for instance, end-users of plant varieties are not particularly interested in the DNA sequence of their new wheat, rose or lettuce variety. Furthermore,​ PBR has achieved a great deal, and the PBR scheme informs and underpins the work of many actors including plant breeders, taxonomists,​ researchers,​ lawyers and advocates.+In contrast, others have argued that to take PBR seriously we need to take the time to identify and analyse the various heterogenous elements and actors that have established and maintained PBR ((See, for example, Jay Sanderson, Plants, People and Practices: The Nature and History of the UPOV Convention (2017, Cambridge University Press) )). In so doing, it becomes apparent that PBR serves an important function and embodies a level of richness, context and complexity that technological determinism (e.g. phenotype versus genotype) ignores: for instance, end-users of plant varieties are not particularly interested in the DNA sequence of their new wheat, rose or lettuce variety. Furthermore,​ PBR has achieved a great deal, and the PBR scheme informs and underpins the work of many actors including plant breeders, taxonomists,​ researchers,​ lawyers and advocates.
  
 ### Proof ### Proof
  
 PBR, like other forms of intellectual property, suffers from the problem of proof. As we have seen already, the purpose of the UPOV Convention is to ‘provide and promote’ effective plant variety protection and encourage the ‘development of new varieties of plants for the benefit of society’((Since 2000, UPOV has taken some initiatives to show the benefits of the UPOV Convention and the convenience of adopting a ready-made system of plant variety protection. See, e.g., Jay Sanderson, ‘Why UPOV is relevant, transparent and looking to the future: a conversation with Peter Button’ (2013) 8(8) Journal of Intellectual Property Law & Practice 615, 622; UPOV, Council: Forty-Seventh Ordinary Session, C/47/4 (12 August 2013))). ​ PBR, like other forms of intellectual property, suffers from the problem of proof. As we have seen already, the purpose of the UPOV Convention is to ‘provide and promote’ effective plant variety protection and encourage the ‘development of new varieties of plants for the benefit of society’((Since 2000, UPOV has taken some initiatives to show the benefits of the UPOV Convention and the convenience of adopting a ready-made system of plant variety protection. See, e.g., Jay Sanderson, ‘Why UPOV is relevant, transparent and looking to the future: a conversation with Peter Button’ (2013) 8(8) Journal of Intellectual Property Law & Practice 615, 622; UPOV, Council: Forty-Seventh Ordinary Session, C/47/4 (12 August 2013))). ​
-However, not everyone believes that it does this ((Niels Louwaars et al., Impacts of Strengthened Intellectual Property Rights Regimes on the Plant Breeding Industry in Developing Countries: A Synthesis of Five Case Studies (World Bank, 2005). See also Robert Tripp, Niels Louwaars and Derek Eaton, ‘Plant variety protection in developing countries: a report from the field’ (2007) 32 Food Policy 354)). And over the years, a number of countries – including India and Nepal – have not joined UPOV or implemented UPOV-compliant national, plant variety protection. ​+However, not everyone believes that it does this ((Niels Louwaars et al., Impacts of Strengthened Intellectual Property Rights Regimes on the Plant Breeding Industry in Developing Countries: A Synthesis of Five Case Studies (World Bank, 2005). See also Robert Tripp, Niels Louwaars and Derek Eaton, ‘Plant variety protection in developing countries: a report from the field’ (2007) 32 Food Policy 354)). And over the years, a number of countries – including India and Nepal – have not joined UPOV or implemented UPOV-compliant national, plant variety protection. ​
  
 It must be pointed out, however, that the problem of proof is not unique to PBR. Evidence in support of intellectual property is notoriously difficult to measure, distil and substantiate. ​ It must be pointed out, however, that the problem of proof is not unique to PBR. Evidence in support of intellectual property is notoriously difficult to measure, distil and substantiate. ​
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 As Merges states: As Merges states:
  
-<'​Estimating costs and benefits, modelling them over time, projecting what would happen under counterfactuals (such as how many novels or pop songs really would be written in the absence of copyright protection, and who would benefit from such a situation) – these are all overwhelmingly complicated tasks. And this problem poses a major problem for utilitarian theory. The sheer practical difficulty of measuring or approximately all the variables involved means that the utilitarian program will always be at best aspirational'​ ((Robert Merges, Justifying Intellectual Property (Harvard University Press, 2011), pp. 2–3)).+'​Estimating costs and benefits, modelling them over time, projecting what would happen under counterfactuals (such as how many novels or pop songs really would be written in the absence of copyright protection, and who would benefit from such a situation) – these are all overwhelmingly complicated tasks. And this problem poses a major problem for utilitarian theory. The sheer practical difficulty of measuring or approximately all the variables involved means that the utilitarian program will always be at best aspirational'​ ((Robert Merges, Justifying Intellectual Property (Harvard University Press, 2011), pp. 2–3)). ​
  
 ### Farmers and Biodiversity ### Farmers and Biodiversity
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 Table: ​ Table: ​
  
-|Has a breeder|See s 3(1) of the PBR Act for definition of breeder.| +|Has a breeder|See s 3(1) of the //PBR Act// for definition of breeder.| 
-|Is distinct| Varieties are distinct if they are clearly distinguishable from another variety that is a matter of ‘common knowledge’ at the date of filing the applications 43(2), PBR Act| +|Is distinct| Varieties are distinct if they are clearly distinguishable from another variety that is a matter of ‘common knowledge’ at the date of filing the application ​((s 43(2), ​//PBR Act//))
-|Is uniform| A plant variety is uniform if, subject to the variation that may be expected from the particular features of its propagation,​ it is uniform in its relevant characteristics on propagations 43(3), PBR Act.| +|Is uniform| A plant variety is uniform if, subject to the variation that may be expected from the particular features of its propagation,​ it is uniform in its relevant characteristics on propagation ​((s 43(3), ​//PBR Act//)).| 
-|Is stable| A plant variety is stable if its relevant characteristics remain unchanged after repeated propagations 43(4), PBR Act.| +|Is stable| A plant variety is stable if its relevant characteristics remain unchanged after repeated propagation ​((s 43(4), ​//PBR Act//)).| 
-|Has not been exploited or has been only recently exploited| See s 43(1)(5) and (6) of the PBR Act for the definitions,​ but generally this means that the variety has not been sold in Australia more than one year before the date of lodging the application;​ or outside of Australia: more than six years before that date (for trees and vines) or more than four years before that date (in all other cases).| ​+|Has not been exploited or has been only recently exploited| See s 43(1)(5) and (6) of the //PBR Act// for the definitions,​ but generally this means that the variety has not been sold in Australia more than one year before the date of lodging the application;​ or outside of Australia: more than six years before that date (for trees and vines) or more than four years before that date (in all other cases).| ​
  
 In addition to the above criteria, a new plant variety has to be named in accordance with s 27 of the //PBR Act//​. ​ In addition to the above criteria, a new plant variety has to be named in accordance with s 27 of the //PBR Act//​. ​
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 i. scientific name, which is governed by the international rules for naming plants; i. scientific name, which is governed by the international rules for naming plants;
 +
 ii. plant breeder’s rights (PBR) variety name, which is governed by the rules in domestic PBR laws; ii. plant breeder’s rights (PBR) variety name, which is governed by the rules in domestic PBR laws;
 +
 iii. branding or marketing name, which is governed by the rules in the trade marks law, common law rules relating to passing off, and rules imposed by consumer protection legislation relating to deceptive and misleading conduct; and iii. branding or marketing name, which is governed by the rules in the trade marks law, common law rules relating to passing off, and rules imposed by consumer protection legislation relating to deceptive and misleading conduct; and
 +
 iv. common name, which is used in everyday language instead of the more complex Latin scientific name or the brand name. iv. common name, which is used in everyday language instead of the more complex Latin scientific name or the brand name.
  
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