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Article Excerpt
[Taking the Plant Breeder's Rights Act 1994 (Cth) as its focus, this article explores the notion that plant breeder's rights are out-of-date and unnecessary: To do so, this article adopts both descriptive and empirical approaches to examining a number of issues including: the nature of and investment in, Australian plant breeding; biopiracy and enforcement; legal disputes and processes; and the use of the Australian plant breeder's rights system. This review shows that the Australian plant breeder's rights scheme is well used, has been progressively amended and extended, and is just one element in a suite of measures geared to stimulate plant-related innovation. As a consequence, future research needs to take into account the heterogeneous character of plant breeding and complementary government initiatives, identify the many reasons why the plant breeder's rights scheme is seen as viable (or why not) and consider the interrelationships between these elements.]
CONTENTS I Introduction II The Emergence of Plant Breeder's Rights in Australia III A Descriptive and Empirical Assessment of Plant Breeder's Rights A The Nature of, and Investment in, Australian Plant Breeding B Public Tensions and Controversies C Legal Disputes and Processes D An Empirical Assessment of Plant Breeder's Rights in Australia, 1987-2007 1 Overall Trends in Australian Applications 2 Plant Industry Sectors Seeking Plant Breeder's Rights 3 Domestic and Foreign Applications 4 Public and Private Sector Applications IV Conclusion V Appendix A Methodology 1 Overall Applications 2 Industry Sectors 3 Domestic and Foreign Applications 4 Private, Public or Joint Funding
I INTRODUCTION
The plant breeder's rights (1) scheme has been criticised by some commentators as being out-of-date and unnecessary. (2) A recurring theme in these criticisms is that advances in science, as well as the availability of alternative forms of protection (notably, patents and trade marks), mean that a sui generis scheme of plant breeder's rights is no longer effective. (3) Most recently, it has been argued that plant breeder's rights have become ill-suited to plant innovation because the scheme is temporally situated within a phenotypic paradigm. (4) In particular, Professor Mark Janis and Dr Stephen Smith argue that the requirements of grant (which generally relate to 'characteristics' and 'features') (5) are no longer relevant as plant breeding moves towards a genotypic approach, utilising genetic modification and molecular breeding techniques. (6)
In addition to the concerns over advances in science and technology, there have been a number of other criticisms levelled at the plant breeder's rights scheme. Central to this dissatisfaction is the idea that the natural copying mechanism inherent in plants poses a major protective risk for those involved with developing new plant varieties. (7) As a consequence, it has been suggested that the plant breeder's rights scheme does not provide adequate incentive for the development of new plant varieties. (8) Tension and controversy also exist over issues such as biopiracy, compliance and enforcement. Furthermore, the practice of farm-saved seed (whereby farmers retain propagating material from one harvest for the purpose of replanting, trading or exchanging) has been a persistent concern for the owners of plant breeder's rights. (9)
While such criticisms may seem axiomatic, they are based on the suppositions that law cannot keep pace with science and that plant breeding is a homogeneous activity. They neglect to consider plant breeder's rights in detail and are therefore problematic since this approach is disconnected from the practice of plant breeding and the use of plant breeder's rights. The truth is that the impact of plant breeder's rights has proven difficult to ascertain. This is particularly the case when attempting to determine ramifications for farming practices, plant breeding and economic development. (10)
The difficulty arises primarily because of the problem of proof. It is impossible to analyse the impact of a scheme such as the plant breeder's rights scheme as there is no 'control' to measure what would have happened if the system had not been introduced. (1l) Also, it is difficult to separate out the effects of other economic and policy considerations such as alternative protection mechanisms, market size, profitability and other government initiatives geared to stimulate plant industries by encouraging research and development.
That said, in 2005 the International Union for the Protection of New Varieties of Plants ('UPOV') published a report on the quantitative impacts of plant breeder's rights in Argentina, China, Kenya, Poland and the Republic of Korea ('UPOV Report'). (12) The UPOVReport showed an increase in the total number of applications, as well as an increase in the number of applications for foreign plant varieties, particularly in ornamental flowers. (13) Importantly, though, the UPOV Report concluded that the impact of plant breeder's rights varies on a country-by-country and crop-by-crop basis. The aim of this article, therefore, is to examine the operation of the plant breeder's rights scheme in Australia, a demographic different to those examined in the UPOV Report and one which, despite the social and economic importance of plant breeding to Australia, has received very little attention. (14)
To address this deficit, both a descriptive and empirical approach is adopted in the assessment of the Australian plant breeder's rights scheme. (15) This affords a basis for debate about the scheme, rather than relying on the anecdotal and piecemeal accounts that have tended to pass for analysis in this area. (16) Part II begins by describing the emergence of plant breeder's rights in Australia. By examining the history of plant breeder's rights, we are able to clearly set out the scheme's aims and objectives as well as identify the major forces behind its development and implementation. In so doing, the context for assessing the plant breeder's rights system is provided.
Part III responds to a number of criticisms levelled at the plant breeder's rights scheme by descriptively and empirically examining a range of issues: first, the nature of, and investment in, Australian plant breeding; secondly, public tensions and controversies; thirdly, legal disputes and processes related to plant breeder's rights; and, fourthly, the use of the Australian plant breeder's rights system. By graphically presenting the number of applications, the types of industries seeking plant breeder's rights protection, the number of domestic and foreign applications, and the number of private and public applications, we can begin to assess trends in the use of plant breeder's rights in Australia and start to offer possible grounds for these trends.
In Part IV, the article concludes that the criticisms directed at plant breeder's rights are problematic or, at the very least, oversimplified. A careful analysis of the scheme's aims and objectives--combined with an examination of the nature of plant breeding, public controversies, legal process and the number (and type) of applications as a whole--begins to reveal the true impact of plant breeder's rights. Future research must acknowledge the heterogeneous character of plant breeding, the availability of conjunctive (not necessarily alternative) protection strategies, as well as other market considerations and government incentives. Finally, the methodology for the empirical analysis is briefly explained in Part V (the Appendix). (17)
II THE EMERGENCE OF PLANT BREEDER'S RIGHTS 1N AUSTRALIA
Since 1987, plant breeders have been able to protect new varieties of plants under Australian plant breeder's rights legislation. (18) However, in the 1970s it was suggested that a plant breeder's rights scheme was outside the legislative power of the federal government, and that the implementation of such a scheme should be left to the states. (19) This view gained momentum in 1972 when the Australian Agricultural Council's Standing Committee on Agriculture decided that plant breeder's rights should, in fact, be left to the states. (20) Along with this apparent hurdle, there was political, social and economic debate as to whether Australia needed a plant breeder's rights scheme. (21)
For the proponents of plant breeder's rights, there were two significant issues. First, it was argued that plant breeder's rights would facilitate access to overseas varieties by providing similar protection to that offered in other countries. (22) Secondly, the scheme was seen as a way of enhancing profits for plant breeders and therefore stimulating plant breeding in Australia, particularly by the private sector. Other proposed benefits included the stimulation of exports of Australian native plants, the development of Australia's export seed growing industry and improved quality of produce for consumers. (23)
Opponents of the scheme argued that plants, particularly food crops, were a public resource that should not be owned. (24) It was also felt that property rights over plant varieties would have a negative effect on plant breeding and that plant breeder's rights were unnecessary because overseas seed and plant material was readily available to Australian growers. (25) Furthermore, lobby groups objected to intellectual property protection for plants and seeds based on the fear of increased seed costs, as well as concerns that stocks of valuable seeds would be lost with the introduction of protected varieties (as public plant breeding research was reduced and food production was 'monopolised' by multinational companies). (26)
In addition to the social and policy considerations, there were also questions over the substance of a plant breeder's right. For many years, the debate centred on the (in)appropriateness of patent law to protect plant innovations by focusing on a number of historical reasons as to why plant breeders had their patent applications rejected. First, patent law requires an inventive step and for a long time it was felt that plant breeding did not meet this requirement because 'nearly all the procedures were well known and obvious'. (27) Secondly, it was felt that the requirements for disclosure and reproducibility were 'invalidated' by the variability of sexually reproducing varieties. (28) Thirdly, a plant variety was not considered a 'manner of manufacture' as required by the Statute of Monopolies. (29)
As the debates intensified, the Plant Variety Rights Bill 1982 (Cth) was introduced in the Senate and was referred to the Senate Standing Committee on Natural Resources, which commissioned Professor Alec Lazenby to investigate the needs of plant breeding in Australia. (30) In recommending that plant breeder's rights legislation be adopted, Lazenby was of the view that, 'on balance, the benefits for Australia stemming from a [plant breeder's rights] scheme ... considerably outweigh any possible adverse effects which have been ascribed to it.' (31) It was not until I May 1987 that the Plant Variety Rights Act 1987 (Cth) came into force. (32)
Broadly speaking, the aim of the new plant breeder's rights scheme was 'to provide a significant boost to Australian agricultural industries and to allow our farmers and nurserymen to compete more effectively on world markets.' (33) It was anticipated that an effective system of plant breeder's rights protection would provide an important step in encouraging the development of new varieties of plants, help keep Australian plant industries globally competitive and provide a mechanism for plant breeders to receive adequate remuneration when they marketed and sold the propagating material of those improved varieties. (34) The original policy justifications behind the scheme's introduction were:
to stimulate plant breeding effort in Australia and to encourage the development of new varieties of plants for our domestic industries and for export. An important added benefit for Australian farmers and horticulturists is expected to be an improvement in their access to new varieties from overseas. (35)
It is also necessary to consider what plant breeder's rights were not. The plant breeder's rights scheme was to be 'complementary to the government's policies geared to promote innovation...
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