NOTICE: Hard copies of the Australian New Crops Newsletter are available from the publisher, Dr Rob Fletcher. Details of availability are included in the
Advice on Publications Available.[The following remarks have been extracted principally from the Executive Summary of the above report by Dr Donald Loch. Full details of the report are included in the New Crop Publications section]
The basic aim of Plant Breeder's Rights (PBR) is to protect and reward creativity in the breeding of new plant cultivars. Its implementation has the potential to transform 'seed' in the commercial domain from a relatively undifferentiated low profile commodity into a range of proprietary products (cultivars) marketed actively by different companies and individuals.
The key to such a change is the exclusivity that comes with proprietary ownership of a new cultivar and the control this allows over the production and marketing of seed of that cultivar. By safeguarding the interests of plant breeders and their licensees in this way, PBR provides an incentive for private investment in breeding and marketing.
The attraction of PBR for government lies in the opportunity to divest itself of breeding and promotional activities that could be carried out by private enterprise, thereby releasing public funds for other activities.
Private breeding, however, can never be a complete substitute for public breeding programmes. It is profit-oriented and hence concentrates on major species where economies of scale and greater profits can be achieved.
Public programmes instead are better able to follow a broader and longer term approach to breeding, including less profitable lines of research.
In the public interest, a balance between private and public breeding activity is therefore required. This will ensure that minor species, especially forages, are adequately covered. Public programmes also fill other complementary roles by conducting basic research, providing training for new plant breeders and developing new sources of germplasm.
The return of royalties by licensing publicly-bred cultivars under PBR is increasingly being seen as an additional source of funds by public institutions faced with budgetary constraints.
This also helps to finance public plant improvement programmes, providing additional incentive and perhaps rewards for those involved, depending on how such funds are disbursed.
In this context royalty earnings are
really of secondary importance compared with the issue of technology transfer.
Seed is widely recognised as the main vehicle for the transfer of new technology embodied in a new cultivar. The primary objective is therefore to ensure that seed of any new cultivar is disseminated commercially as quickly and as widely as possible.
Licensing under PBR enables the public breeder to involve commercial firms in promotion and extension activities which previously were the province of public institutions.
Royalty earnings should be viewed as 'spin-offs' from the transfer of new technology, rather than the primary purpose for developing new cultivars.
This needs to be more overtly recognised by public research institutions in Australia. Rather than looking to how much can be earned in royalties, they should be looking at how to re-invest those earnings both in supporting research to maximise the efficiency of technology transfer and in ongoing plant improvement programmes to complement private sector activities.
Proprietary rights to particular cultivars granted through PBR are only as good as their enforcement, which is an area that could be improved in Australia.
To date, matters such as licensing, the collection of royalties, and infringements by endusers and other parties have mostly been handled by the breeder or breeding organisation who inevitably face competing demands on their time.
This has led in some cases to delays in the payment of royalties owing and to under-performance on the part of
licensees.
A more effective system is for a national third-party organisation to manage and defend individual rights on behalf of a number of breeders (as in Europe and Argentina), leaving the breeders to concentrate on what they do best.
In Australia, the formation of AUSTSEED was an early attempt to move in this direction, but it has been a much less active and much less successful in its representation of breeders than the comparable overseas models. AUSTSEED has suffered from a lack of critical mass.
The collection of royalties on farm-saved seed must be resolved, possibly through a levy on the end product rather than on the seed per se.
Seed companies exercise day-to-day operational control over production and marketing, and so are central to the success of a proprietary system.
For this to work more effectively in Australia, there is a need for seed companies to complete the change from a commodity mentality (where seed is sold mainly on price) to a more segmented approach to marketing. Such an approach would involve a differentiated range of proprietary products backed by effective promotion.
At the same time, there is a need to build more effective working relationships through the production and distribution chain. Contracts to cover these activities are essential; ideally, the signatories are able to act as partners in, not parties to, a contract.
The major concerns currently facing Australian seed growers are the high risks associated with seed production, coupled with low returns. The use of participatory contracts would be a positive move because both risks and returns could then be shared more equitably.
Leakage of seed, either as farm-saved seed or as seed without a cultivar name attached, leads to the loss of royalties (by breeders) and to a dilution of the necessary control (by licensees) over seed production and marketing.
Recent moves in southern Australia to restrict the use of cultivar names only to certified seed are a retrograde step that would simply exacerbate this problem.
Instead, cultivar names should be required under labelling regulations on all seed sold, certified and uncertified, to hasten the change to a segmented product-based seed market.
Similarly, as the remaining public cultivars are phased out, this will gradually remove another source of commodity style competition, based on price.
Seed for end-users in Australia should not simply be a matter of price but a matter of quality - both genetic quality and physical quality.
End-users in other industries will benefit from using better cultivars developed and promoted under PBR and from using improved cultivars sooner if the use of farm-saved seed also declines (e.g. cereals).
Seed-users will also benefit from more reliable supplies and physical quality of seed produced by a more professional seed industry. There will also be a more knowledgeable support base to supply their needs.
PBR is not just the key to a better seed industry in Australia; it is the key to better agriculture overall....................
Applications for PBR require details of the new cultivar's origins and breeding history. What constitutes 'breeding'? The legal definition of breeding casts a much wider net than traditional biological concepts of breeding.
For the purposes of PBR, breeding is an act of discovery and development (as stated in the Australian Plant Breeder's Rights Act 1994). Hence, it can be extended to certain wild material.
At a practical level, each case varies, depending on the species and its stage of commercial development.
Breeding does not automatically infer that physical hybridisation has been carried out by the breeder.
For a new crop species, evaluation of existing material (or comparison between lines) is a logical starting point from which to produce a cultivar of a new economic species.
Hence, selection from within wild populations and subsequent stabilisation of cultivars could be termed breeding. Wind pollination among selected grass plants in a breeding nursery is usually acceptable under PBR, but the current interpretation in South Africa is that pollen must be physically and deliberately removed from one plant and placed on another to constitute an eligible act of breeding.....................................................
The concept of 'essential derivation' (introduced under the 1991 Act of UPOV) also influences the way that an act of breeding is rewarded under PBR.
A new cultivar regarded as essentially derived from a protected cultivar cannot be exploited without authorisation from the previous breeder. This is aimed at rewarding the breeder of the original cultivar when only minimal changes are made to that cultivar.........
Any claims made by authors in the Australian New Crops Newsletter are presented by the Editors in good faith. Readers would be wise to critically examine the circumstances associated with any claims to determine the applicability of such claims to their specific set of circumstances. This material can be reproduced, with the provision that the source and the author (or editors, if applicable) are acknowledged and the use is for information or educational purposes. Contact with the original author is probably wise since the material may require updating or amendment if used in other publications. Material sourced from the Australian New Crops Newsletter cannot be used out of context or for commercial purposes not related to its original purpose in the newsletter
Contact: Dr Rob Fletcher, School of Land and Food, The University of Queensland Gatton College, 4345; Telephone: 07 5460 1311 or 07 5460 1301; Facsimile: 07 5460 1112; International facsimile: 61 7 5460 1112; Email:
r.fletcher@mailbox.uq.edu.au[
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GK; latest update 6 June 1999 by: RF