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The Permacultivator - Journal of Cool Climate Permaculture
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Plant Variety Breeder’s Rights

a Conference review by Anne Pidcock

David Godden, a self-confessed "maverick" economist, enlightened those attending the 1994 Seed Saver’s Conference with a history of attempts to introduce "plant breeder’s rights" in Australia.

Plant Variety Breeder’s Rights involves recognition for the "breeder" of the right to a new variety that has been bred to be distinct, uniform and stable. This recognition involves the granting of a certificate to guarantee or patent the rights to that variety.

Since 1965 commercial seed producing companies have been lobbying the Australian government to introduce legislation to "protect" their seed breeding interests. The first Bill was drawn up in 1975, followed by a Senate Standing Committee enquiry. Cereal farmers strongly opposed the proposed legislation and a "compromise" Plant Varieties Act was introduced in 1987. This Act stated that no species was to actually be eligible for Plant Varieties Rights unless it was specially included under the Act.

In the 1990’s a radical amendment was proposed so that everything was included unless it was specifically excluded under the Act! The 1994 proposed amendment, known as the Breeder’s Rights Bill, even dropped all references to "plants"! In theory this could have made it legally possible to patent genetically derived human life forms. The churches strongly opposed the wording of the amendment and another compromise Act resulted.

The 1994 Act left the commercial breeders in a far stronger position than ever before. In the 1987 Act rights were only guaranteed for a maximum of 16 years. In the 1994 Act a period of 20 to 25 years with an extension "in consultation with industry" was proposed. This "extension" could effectively give breeders indefinite rights. A Plant Breeder’s Rights Advisory Committee (representing the commercial seed companies) would decide on the appropriate duration of rights. This clause has serious implications especially, as David Godden pointed out, as no other intellectual property rights legislation guarantees rights in perpetuity.

The 1994 Act includes all activities involved in the production of plants so that not just seeds but all harvested material is now "protected". It also broadens the scope of activities controlled by the Act , includes organisms such as algae, fungi etc and allows transgetic varieties to be included. The new Act removes the "public interest" provisions included in the 1987 Act and effectively makes seed saving a "privilige" and not a "right". Farmers can no longer save and reproduce seeds of a declared species. Under the 1987 Act seed companies could take farmers to court as a civil action. Under the 1994 Act the government itself will prosecute farmers for breaching the Act. Infringing penalties will be expensive as claims for damages will include harvested material as well as seeds.

Under the new legislation Plant Breeder’s Rights could also be applied to discoveries of new indigenous species or species evolved from them. Once a Plant Varieties Right has been granted the species is no longer in the public domain. The dangers of the new legislation is that it encourages less public breeding, less varieties to be available and less opportunities for non-commercial production.

It will be interesting to watch for the first challenge to the new legislation.