Tuatara: Volume 29, Issues 1 and 2, August 1987
Plant Variety Rights: Some Implications for Conservation
Plant Variety Rights: Some Implications for Conservation
The issue of Plant Variety Rights and legislation has generated much acrimonious debate. This paper briefly looks at “wild discoveries”, definitions, and ownership, particularly in relation to the 1986 Plant Variety Rights bill. There are some legitimate causes for concern with respect to conservation and the Plant Variety Rights bill. However the biggest single issue may be lack of effective communication between interested parties.
Keywords: conservation, genetic resources, legislation, plant variety rights.
Plant Variety Rights are a means of recompensing discoverers and breeders of new plant varieties for their efforts, including the bulking up and marketing of products. They provide some protection for those entering the commercial field with a plant of potential economic value. Unfortunately, the issue of plant variety rights as it relates to plant genetic resources in Third or “South” World countries, has become part of a vigorous and sometimes confused debate on plant genetic resources in general. There are accusations that, on the one hand, developed countries are supporting such matters as plant variety rights to promote a hold on the international control of genes, while on the other hand, some third world nations are using the debate to promote a move towards a new economic order. Some of the debate at the international level at least, has passed into the arenas of politics and ethics.
In New Zealand, much of the debate has centred around the appropriateness of plant variety rights for discoveries of wild novelties, where the main expense may be in “bulking up” of a variety and its subsequent distribution. It has been suggested that rights have the potential to work against conservation as suggested in the following news item:
“Patents for native plants have been opposed by the Nature Conservation Council and the Maori Council of Churches… If patents were allowed for these species unscrupulous people could destroy a wild population to gain maximum commercial advantage for their patented species. Scientific study would then depend on the good will of the patent holder…. His council was keen to see rare and endangered plants grown and appreciated in gardens, but he believed that providing the sole rights for commercial exploitation of a rare species could put wild populations at risk… The main intention of the Plant Variety Rights Bill was to protect the investment made by plant breeders into intensive breeding programmes to develop bigger, brighter, higher-yielding, or more disease-resistant plants, Sir Holmes said. These rights should not extend to species which were part of New Zealand's natural heritage and had evolved over millions of years.”
“The Press”, Christchurch, 26 November 1985.
Although the Plant Variety Rights Bill 1986 has undergone substantial revision, it is doubtful that it goes all the way towards alleviating such concerns.
In real life, few significant discoveries are likely to be made haphazardly. Instead, page 14 they are likely to be the result of deliberate surveys of wild genetic resources, concentrating on regions and plant taxa which are thought to have qualities suited to agriculture and horticulture. Prescott-Allen and Prescott-Allen (1984) have given a review and outlined an action plan for conservation of wild genetic resources. This involves not only intensive field surveys but also laboratory and experimental garden back-up to determine what plants have useful alleles and where they occur. Potentially useful genotypes are brought from the field and assessed by chemical, physiological, genetic and morphological studies.
There is, in some quarters, a strong body of opinion that wild discoveries should be excluded from plant variety rights. First, it has been argued that whereas traditional inventions require an intellectual path from idea to invention before a patent can be issued, rights and patents do not. In the case of patents it can also be argued that this represents a bargain negotiated between society and the inventor. In return for monopoly protection, the inventor gives society something from which others may build to achieve yet other inventions.
However, plant variety rights are not patents, at least as envisaged in New Zealand. Although the intention may be similar, the details are very different. For example, a protected cultivar in New Zealand must be made available to the public and be able to be used as a parent for crossing purposes. In the case of an industrial patent the improvement may be patentable but this would probably not be marketable without approval of the original patent holder. Also a patent can be held, but there is normally not a requirement to make that patented item available.
A further argument for not accepting plant variety rights for wild plants is that the right may give the discoverer a monopoly on breeding, bulking up, distribution and sale of a variety. In the extreme, this may result in an unscrupulous horticulturalist deliberately destroying all of a wild population of a rare plant retaining only his breeding stock. In a less extreme situation the horticulturalist monopolises sale of the plant and inflates its price, thereby discouraging its wider entry into horticulture. Both scenarios do not serve the interests of conservation.
It may be argued that no one would deliberately destroy plants in the wild in order to increase the value of stock held in their garden. However, Mooney (1982) cites the case of U.S. Patent 551 awarded some years ago to someone who, “…found the rare flowers on a stroll in Guatemala. He scooped up all he could find and hot-footed it back to his New England home where he grew out the seeds — kept the best and destroyed the rest of the natural diversity to avoid competition.” Mooney considers that this has potential to seriously disadvantage the genetic diversity of Third World Countries. At the least it leads to mistrust and suspicion.
The current Plant Variety Rights Bill clearly intends to exclude or minimise horticultural monopolies. Section 19 deals with compulsory licences and sales. It requires in 19(1) that:
“Any person may at any time after the expiration of 3 years from the making of a grant, on payment of the prescribed fee request the Commissioner to consider whether or not reasonable quantities of reproductive material of a reasonable quality of the variety concerned are available for purchase by members of the public at a reasonable price”.
The Registrar can issue a compulsory licence or can order that reproductive page 15 material be sold to the person making application, or both. This is intended to prevent people being granted a right and then monopolising availability of the variety. However, the objectors must pay a fee to gain what they feel is justice, and there is likely to be criticism of the three year time delay, which is presumably to allow the grower to bulk up plants. This three year period during which plant material may not be available could act against the conservation interests of a plant, especially one represented in the wild by only a few individuals. It is conceivable that urgent genetic enrichment of a species may require making use of all known genetic material including that registered under plant variety rights legislation. This appears to be an area where botanical advice should be required, and not just optional.
The 1986 Plant Variety Rights bill requires that a variety for which rights are applied be:
“new, distinct, homogenous and stable” [subsection 9(2)(d)]
|(4)||“(a) Subject to subsection (5) of this section [which deals with arrangements made to increase stock, or evaluate and test a variety] a variety is new if there has been no sale of that variety with the agreement of any relevant owner of the variety:
|(b)||A variety is distinct if it is distinguishable by one or more characteristics from any other variety whose existence was a matter of common knowledge when the application concerned was made.|
|(c)||A variety is stable if, in its essential characteristics it remains true to its description:
The bill has no definition of homogenous but the Shorter Oxford English Dictionary defines this as:
“Of the same kind of nature; alike, similar, congruous. Of uniform nature or character throughout.”
How “distinct” does the variety have to be? Taken to the extreme, one could argue that only an individual is truly homogenous, for every individual differs from every other in at least a slight degree. The end point of this argument is that a variety right should be issued for only a single individual and not even for its progeny. Clearly, this is not the intention of legislation. Another problem is that of the inevitable genetic drift which occurs once a variety is under cultivation. This problem has been recognised by plant breeders organisations. The difficulty of maintaining relatively unvarying lines in cultivation is similar to the somewhat opposite problem of maintaining genetic variability in gardens because some individuals from a single population sample survive better than others under uniform conditions of cultivation (Cranston and Valentine, 1983).
This probably means that (even despite international standards) there are no page 16 hard and fast rules for setting the limits of distinctiveness, stability and homogeneity. Clearly, the criteria cannot be so narrow that they allow only individuals to be registered. But can they be so wide as to encompass a whole population or group of populations in the wild? This possibility has been anticipated in section 2 of the 1986 bill which defines variety as:
“Variety means a cultivar, or cultivated variety, of a plant to which this Act applies; and includes any clone, hybrid, stock line, of such a plant; but does not include a botanical variety of such a plant.”
Nevertheless, there are problems even with this definition. There is no universal agreement on what is a botanical variety in precise terms, and successive editions of the International Code of Botanical Nomenclature have steadfastly refused to provide one. Another point is that various interpretations of these words could allow “variety” to either exclude or include other botanical taxa such as forma, subspecies, and even species, as these are not varieties in the botanical sense.
A further question arises regarding the use of the word “new”. This is defined in the sense of commercial newness and sale in subsection 4(a) of the 1986 bill. It is not defined in the sense of “a matter of common knowledge” although these words are used elsewhere in the bill, for example, in assessing distinctiveness by comparison with other varieties, “whose existence was a matter of common knowledge” (subsection 4(b)). Thus a “new” variety in the commercial sense could be known previously to botanists and even the public, and be already present in herbaria and gardens.
It is unlikely that formally described taxa would be subject to plant variety right applications. However, it is considered that about 10% of the New Zealand flora is still undescribed (A.P. Druce, pers. comm.) and many of these plants will be rare and local. One cannot totally exclude the possibility, remote though it may seem, that rights might be sought for undescribed varieties which are populations or groups of populations of rare taxa. A determined horticulturalist aided by astute legal counsel might force the registration of plants to the detriment of their conservation. This might be particularly the case with entities known only from a single wild individual, or from very few (perhaps genetically “homogenous”) individuals such as the recently described Metrosideros bartlettii (Dawson, 1985).
It may seem that this is legal nit-picking. However, the revised plant variety right system will be enshrined in law. Therefore its operation is a legal matter even if some of the consequences are distasteful to breeders and conservationists alike. People and agencies can object to applications for rights and the Registrar can, and does obtain expert opinion. But decisions cannot be made on the sole basis of expediency, scientific evidence, conservation needs, or even common sense. They can only be made on the basis of plant variety right and associated legislation, and legal precedents.
Perhaps an instructive example of this is in the decision of the High Court to quash a conviction for taking of undersized paua (“The Press”, Christchurch, 21 August 1986, p.5). The conviction was made under the Fisheries Act 1983 which makes it an offence to take paua below a certain size. However, the same Act also states that:
“nothing in this act shall affect any Maori fishing rights”.
Counsel argued successfully that such fishing rights are set out in the Treaty of Waitangi signed in 1840, and that provided the person acted in a Maori way in page 17 taking the shellfish, nothing in the Fisheries Act could negate those rights. A European man with the offender was fined $400 for the same offence. What this case demonstrates is that the precise wording of legislation and its provisions require very careful analysis if their full import is to be appreciated.
The 1986 bill defines owner as:
“in relation to any variety, means a person who bred or discovered that variety, and includes a successor to that person.”
Wild plants are owned by someone even if growing on the roadside or in a forest remnant. Thus, a “discovery” will belong to someone before collection by the person who recognises it as a discovery. It seems reasonable to assume that unless there is clear transfer of ownership, the ownership remains vested in the original owner rather than the discoverer.
This has implications for wild discoveries. Increasingly, in order to adequately conserve plants and genetic resources, agencies are asserting such rights of ownership. Collecting permits are now frequently given on condition that what is collected remains the property of the person or agent issuing the permit. An increasing number of countries are claiming ownership of animals and plants, and prohibiting collection without permits. These permits contain mandatory conditions, even though herbaria, gardens, scientists and breeders may operate with the material as though they owned it. It is reasonable to assume that government should claim a royalty on any profits made as a result of such collections especially if made on government land. Further, a government might claim that it owned the actual genes used, so that royalties could be claimed even if specific genes were subsequently transferred to other species. It is conceivable that royalties could, and one might argue that they should, be used for further conservation of wild genetic resources.
Ownership of actual genes is a contentious issue but is more than just academic argument. Patenting of genes is a real possibility with the increasing role of genetic engineering and its application to plant breeding (Doyle, 1986). Also, there are complex issues being raised regarding relative gene flows between First and Third World countries. This involves such questions as whether there is a greater flow into developed First World countries, with genetic depletion of the biologically diverse but lesser developed Third World. Consequently, future discussion of plant variety rights may have to consider more closely whether it is the plants or the genes which are most important, and whether the plants as we see them simply act as vehicles for the genome.
Communication is a crucial issue. Much of the heat of the current genetics debate could be dissipated by greater dialogue between various proponents. This reflects a long-standing dichotomy between the more “pure” and “applied” branches of biology. Most botanists not involved in agricultural botany or forestry are probably unaware of current plant variety rights procedures or even the existence of the New Zealand Plant Varieties Journal. On the other hand, breeders and agricultural scientists may be not fully aware of viewpoints and concerns page 18 within the spheres of conservation, ecology and systematics. There is even lack of concurrent viewpoints regarding the value and use of rights among horticultural plant breeders and nurserymen.
Some of the communication problems can be attributed to the tendency for sensitive issues to be dealt with “in house” with key documents not being available to the public. In his analysis of international wildlife law, Simon Lyster (1985) points out that opening up of formerly closed meetings on international conventions to observers from non-government organisations, and publication of formerly confidential matters has had a generally healthy effect on the formulation and application of such conventions.
Attempts for plant breeders to gain reasonable recompense for their work are legitimate. However, there are potential problems in plant variety rights legislation which rightly concern botanists and conservationists. Ultimately, we must go back to the legislation as the final authority and mandate. The interests of all would be better served by more effective dialogue between botanists, horticulturalists, breeders, foresters, geneticists, conservationists and the public. This is providing all concerned will come together to understand — to not just talk but also listen.
Cranston, D.M. and Valentine, D.H. 1983: Transplant experiments on rare plant species from Upper Teesdale. Biological Conservation 26: 175-191.
Dawson, J.W. 1985: Metrosideros bartlettii (Myrtaceae), a new species from North Cape, New Zealand. New Zealand Journal of Botany 23: 607-610.
Doyle, J. 1986: Altered Harvest. Penguin Books, New York. 502 pp.
Lyster, S. 1985: International Wildlife Law. Grotius Publications, Cambridgee, England. 470 pp.
Mooney, P.R. 1982. Switching off the gene machine. New International 108: 12-13.
Prescott-Allen, R. and Prescott-Allen, C. 1984: In Situ Conservation of Wild Plant Genetic Resources: a status review and action plan. Report for IUCN (International Union for Conservation of Nature and Natural Resources) on behalf of FAO.