Background to the Plant Variety Rights Act review

This page provides background to the current review of the Plant Variety Act 1987.

About the Plant Variety Rights Act 1987

The Plant Variety Rights Act (PVR Act) was passed in 1987 to bring New Zealand’s PVR regime into line with the 1978 version of the International Convention on the Protection of New Varieties of Plants (UPOV Convention).

The UPOV Convention is the principal international agreement relating to intellectual property protection over plant varieties.

The PVR Act is now over 30 years old and has only had minor amendments since it was first passed. In addition, a new version of the UPOV Convention strengthening plant breeders’ rights was agreed in 1991 (UPOV 91). The majority of our main trading partners (including Australia, the United States of America, Japan, the European Union and Canada) are members of UPOV 91.

Aligning with UPOV 91 may encourage investment in New Zealand’s plant breeding industry, as well as the importation of new varieties into New Zealand. However, strengthening plant breeders’ rights needs to be balanced against the interests of farmers/growers, Māori, consumers and other interested groups, to achieve a net benefit to New Zealand as a whole.

Review of the Act began in 1990s

A review of the PVR Act began in the late 1990s. It mainly focused on the issue of whether New Zealand should accede to UPOV 91. However this was put on hold in anticipation of the release of the Waitangi Tribunal’s report on the Wai 262 inquiry (Wai 262).

Reviewing the PVR Act was then further delayed because of the Trans-Pacific Partnership Agreement (TPP) negotiations. This was because a requirement to accede to UPOV 91 was being negotiated.

Current review began in 2017

In 2017, the current review of the PVR Act was launched. It was agreed that consideration of the Wai 262 recommendations on the PVR regime would form part of the review.

Following the withdrawal of the United States from the TPP, on 8 March 2018 the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) was signed. This retains the obligations relating to UPOV 91 that were negotiated in the TPP.

These require New Zealand to either accede to UPOV 91 or implement a PVR regime that gives effect to UPOV 91 by 30 December 2021, three years from when the CPTPP came into force in New Zealand.

When implementing either option, the Crown can adopt measures it deems necessary to fulfil its obligations under the Treaty of Waitangi.

As a result, UPOV 91 and the Wai 262 report have strongly informed our approach to the current review.

Cabinet papers

Some redactions have been made under the Official Information Act 1982.

Current review to date

We began the review of the Act in February 2017 with 2 rounds of targeted, technical workshops with industry experts and Māori with expertise in plant variety rights and intellectual property. The workshops helped refine our understanding of the issues in the PVR regime. In our second workshop with Māori, we also discussed how to best engage with Māori on the review.

This pre-consultation engagement contributed to the development of the Issues paper and Māori engagement plan for the Issues stage. The Issues stage focused on issues with the PVR regime, and the Māori engagement plan set out our planned engagement with Māori throughout the review. Consultation on the Issues paper closed in December 2018.

On 9 July 2019 we released an Options paper for consultation which set out options for change to the PVR regime. Submissions closed on 9 September 2019.

On 18 November 2019 Cabinet agreed to make change to the PVR Act. These changes give effect to our obligations under the Treaty of Waitangi and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

A discussion document exploring a small number of outstanding policy issues opened for consultation on 10 August 2020 and closed on 5 October 2020. These include Treaty of Waitangi compliance issues and operational issues relating to the PVR Office. Cabinet made policy decisions in relation to these in March 2021.

The Plant Variety Rights Bill (the Bill) was introduced to Parliament on 11 May 2021 and completed its first reading on 19 May 2021. The bill replaces the Plant Variety Rights Act 1987 by modernising the regime and implementing the Crown's obligations under the Treaty of Waitangi in relation to the plant variety rights regime and New Zealand's obligations under the CPTPP.

A discussion document setting out our proposals for regulations to support the new PVR regime opened for consultation on 14 July 2021 and closed on 1 September 2021. During this time we engaged with industry stakeholders at a PVR Technical Focus Group meeting and also held an online hui to discuss the proposed list of non-indigenous species of significance under the new regime.

The Bill was reported back to Parliament on November 19 2021, following consideration at select committee. The select committee commentary, which includes the revised version of the Bill, and the advice provided by officials can be found on the Parliament website.

Plant Variety Rights Bill(external link) – New Zealand Parliament website

Key changes to the PVR Bill

The key changes to the Bill recommended by the select committee following consideration of submissions are as follows:

  • Revisions to the purpose clause and the inclusion of a separate Treaty of Waitangi provision to better reflect the intent of the Bill and the Crown’s Treaty obligations (clauses 3 and 3A)
  • Deletion of definition of ‘harvested material’ (clause 5)
  • Alignment of definition of ‘essentially derived varieties’ with wording in UPOV 91 (clause 7)
  • Clarifying that a farmer can only use farm saved seed on their own holdings (clause 15)
  • Extending the term of a PVR for potatoes to 25 years and reverting to wording of ‘woody plants and their rootstock’ instead of ‘trees and vines’ (clause 18)
  • Clarification that certain acts are not novelty destroying (clause 31)
  • Denomination no longer required with the application, but within a prescribed time period after the application (clause 36)
  • Provision that certain information relating to kaitiaki relationships must not be made publicly available if this is recommended by the Māori Plant Varieties Committee (clause 45)
  • Requirement for consultation with Te Puni Kōkiri before making appointments to the Māori Plant Varieties Committee (clause 55)
  • Provision of a general right of appeal to decisions of the Māori Plant Varieties Committee to the Māori Appellate Court (clauses 68A-D and Schedule 1A)
  • Removal of licences from registration requirements (clauses 72-73)
  • Compulsory licence provisions amended to apply to availability of harvested material as well as propagating material (clause 103)
  • Requirement that compulsory licences include any conditions agreed under clause 64 following consideration by the Māori Plant Varieties Committee (clause 108)
  • Removal of provision abolishing the Plant Variety Rights Office (Schedule 1, clause 7).

Next steps

Consultation on an exposure draft of the new PVR regulations opened on 13 April 2022 and closed on 20 May 2022. Over the same period, IPONZ consulted on PVR fees to support the new regime.

Following consultation on the exposure draft of the PVR regulations, we will provide advice to Ministers if any changes are needed.

Following consultation on the proposals for PVR fees, IPONZ will provide advice to Ministers and seek policy decisions later in 2022.

It is anticipated that the new regulations will come into effect, along with the majority of the provisions of the Bill, in mid-2022.

Last updated: 26 May 2022