Plant breeder's rights

Plant breeder's rights (PBR), formerly Plant Variety Rights (PVR), gives plant breeders ownership of a newly bred plant variety for a specific period. This includes exclusive rights to:

• produce or reproduce the plant material
• condition the plant material for the purpose of propagation (cleaning, coating, sorting, packaging and grading)
• offer the plant material for sale
• sell the plant material
• import and export the plant material
• stock the plant material for any of the purposes described above.

The PBR scheme protects plant breeders and gives them a commercial monopoly for a period of time. This encourages plant breeding and innovation, and means that a large and growing pool of new plant varieties is freely available to anybody when the protection periods lapse.

Protection is determined by distinctiveness, uniformity and stability. Merit is not a factor.

Establishment of PBR in Australia

Globally, protection of new plant varieties is covered by the International Union for the Protection of New Plant Varieties (UPOV), based in Geneva, Switzerland. The International Convention was adopted in 1961 and revised in 1972, 1978 and 1991. The mission of UPOV is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society.

When the law was proposed for Australia in 1971 by the Commonwealth Plant Breeders Conference, plant variety rights had already had a long history in Europe, Canada and America. At that time, 28 countries either had a PBR/PVR law or were in the process of developing one at that time. It was to be 15 years, after this introduction was proposed, before the Commonwealth Government passed a Bill for PVR.

The plant breeder's proposal was forwarded to the Standing Committee on Agriculture which appointed a working party to examine the possible benefits and problems of PVR in the Australian context. AF Tideman, then Chief Agronomist, represented South Australia on the working party. Subsequently, with assistance from ED Higgs, a senior plant research officer, they were responsible for ensuring all stakeholders were involved in expressing their views.

The working party met in November 1976. It recommended unanimously that the Commonwealth Government establish a PVR scheme in Australia and that horticulture crops be given priority.

This recommendation was dampened by doubts raised in Canberra that the Constitution would allow the Commonwealth to legislate over all the Australian jurisdictions. Five years were to elapse before the Attorney General ruled that the Commonwealth could deal with PVR.

Opposition

When discussions began, cereal and pasture breeders working at Roseworthy Agricultural College, at the Waite Campus of the University of Adelaide and in the Department of Agriculture were strongly opposed to the introduction of PVR. They were opposed on three counts presented in a paper by Dr DA Sparrow, a barley breeder at the Waite Institute. They claimed their work was well funded and resourced by their institutions and the cereal industries with levies that were matched by the Commonwealth Government. Why would the governments continue to fund cereal breeding, if private money became available through PVR?

Secondly, they argued that breeding programs were long term, seven or eight years to produce a new variety. If commercial interests were encouraged to take up breeding programs protected by PVR then, breeding for profit, they could be tempted to release 'cosmetic varieties'. Varieties bred relatively quickly with characteristics as near as possible to an already successful one which would add costs to the farmer without producing discernible benefits.

Thirdly, they warned that a flood of new private varieties could complicate the marketing of wheat and barley which were bought on the basis of special needs such as the correct protein level for bread.

The horticulturalists saw only benefits and strongly supported the introduction of PVR. Although many crop improvement programs were in progress some were constrained from obtaining breeding material because the overseas breeders were fearful of losing control of their rights.

The Department of Agriculture made its views clear in September 1985 when they advised the Bannon Government (Frank Blevins was the Agriculture Minister) to support the introduction of a PVR scheme and give horticulture priority. This was contrary to the earlier views of the Hon BA Chatterton who, as Minister of Agriculture (in the Dunstan Government) between June 1975 and September 1979, strongly opposed his Department's participation in the debate. In August 1981, Chatterton, then in Opposition, presented a detailed speech to the Legislative Council strongly advising the Government to oppose a Commonwealth PVR scheme.

The wider community in South Australia for over a decade debated every aspect of PVR, often with passionate views. The South Australian Nature Conservation Society, Freedom from Hunger, The Uniting Church, the Soils Association and the Workers Education Association held public meetings which all opposed PVR. Their views were best summarised by the Society for Growing Native Plants which stated it was morally wrong to give proprietary exploitation of genetic material into private hands. It would narrow the genetic base of the world food supply. Not surprisingly the South Australian Seed Producers, the Nurserymen's Association and the United Farmers and Stockowners supported the proposal.

The plant breeder’s rights scheme was eventually established under the Plant Variety Rights Act 1987. Seven years later, in 1994 Parliament passed the Plant Breeder's Rights Act to conform with changes in the 1978 and 1991 revision of the International Convention. The main changes related to essentially derived varieties, derived varieties and farm save seed.

Opportunities

One of the opportunities afforded by the PBR legislation is for the owner of a variety to collect a royalty. The royalty collected is usually reinvested in the breeding program with the total amount collected being seen as an indication of the success of the breeder or owner of the variety.

Royalties are collected in the most efficient way possible. Usually the royalty is either applied at the time of sale of seed/propagated plant (called a seed royalty or plant royalty) or on delivery of the end product, such as grain, hay or a horticultural crop (called an end point royalty). End point royalties (EPRs) are usually in the order of $3-5 per tonne of produce delivered, however for higher demand varieties the end point royalty may reach $10 per tonne.

At 2018 the national PBR list contains varieties protected by plant breeder's rights for some 534 agricultural species commonly grown in South Australia. Within the key species of crops and pastures protected in South Australia alone there are some 124 varieties. That is approximately one quarter of the varieties protected by PBR are bred in South Australia.

PBR varieties from 1989 to 2017

The approximate number of pasture and crop varieties accepted for PBR protection in Australia are summarised in the table below.

The following South Australian varieties were protected under the PBR legislation.

SA programs and the impact of PBR

The following has occurred to the breeding programs in South Australia since 1975.

Wheat

The wheat breeding programs led by Hollamby and Rathjen, from Roseworthy and the Waite, continued as public breeding programs until 2002. The public wheat breeding programs across Australia were then restructured into a number of wheat breeding companies. The public programs in SA and Victoria were transferred into the company, Australian Grain Technologies (AGT).

The early stage evaluation and the grain quality laboratory testing were transferred from SARDI into AGT at the same time.

The durum wheat breeding program continues to be based at the University of Adelaide.

EPRs on wheat varieties cover the full cost of the breeding programs and has allowed AGT to invest in other programs such as barley, durum wheat and lupins.

Barley

Barley breeding and improvement were continued by the University of Adelaide, at the Waite, until 2017, when the university decided to exit this work. Much of the cost of the breeding program is met from EPRs.

Some of the germplasm has been acquired by AGT for evaluation and commercialisation.

Oats

The early oat breeding program conducted out of the Department of Agriculture's Northfield Research Centre produced many excellent varieties which were not protected under the PBR arrangements. Progressively SARDI expanded the program to become the National Oat Breeding Program, covering both milling and export hay end uses.

Varieties released have PBR protection, collected either:

• by the Australian Exporters Company (AEXCO) in the case of export hay varieties
• through an end point royalty collected by bulk handlers
• by grower declaration to commercial partners.

Royalties collected meet part of the total cost of the oat breeding program, with GRDC and SARDI also funding the program.

Pulses and vetch

SARDI maintains an important role in evaluating new pulse lines for the nationally coordinated Pulse Breeding Australia field pea, chickpea and lentil breeding programs. SARDI also conducts the Australian National Vetch Breeding program.

Pastures

SARDI maintains the Medicago germplasm collection and undertakes breeding and selection for lucerne, medics and other pasture varieties. There are also private pasture breeders in SA, Seed Technology and Marketing and Pristine Forage Technologies.

Royalties are placed on seed at the point of sale and contribute to the overall cost of the programs. Other sources of funding are research and development corporations and in-kind contributions from agencies.

Horticultural crops

Horticultural breeding and evaluation programs were conducted in SA at the time the breeder's right legislation was introduced, including:

• Cherry breeding and evaluation – this program operated out of the Lenswood Research Centre for around 20 years. Six varieties were protected by the PBR legislation and released: Sir Don (1998), Sir Tom (1998), Dame Roma (2001), Dame Nancy (2002), Sir Hans (2002) and Sir Douglas (2002).
• Apricot breeding and evaluation – this program commenced around 1980 at Loxton Research Centre. Some material has been released to the fresh fruit industry.
• Vine, apple and pear, and potato evaluation – These programs were conducted out of Nuriootpa, Loxton and Lenswood Research Centres over many decades. As the material was not part of SA based breeding programs, no varieties were protected under the legislation.

Thirty years on

Over 30 years since the legislation was passed, amidst views from both perspectives, its impact was felt in:

• the ability of breeding companies to protect their varieties and apply various funding mechanisms
• Australian industries to access international varieties and germplasm.

Crops

Prior to PVR, within SA and generally across the country, the crop breeding programs were well funded by governments and to some extent industry. There was strong opposition from most breeders to protect varieties and generate additional funding from the sale of new seed varieties, or to apply end point royalties.

The grains industry, through the Grains Research and Development Corporation, led a negotiation to place the state-based wheat breeding programs into commercial structures. This occurred primarily to drive competitiveness between breeding programs and to note the State Government's commencement to reduce funding of primary industries research and development. This commenced around 2000 and resulted in three companies being established as corporate entities.

There have been changes in ownership since 2000 and also the withdrawal of government funding from wheat breeding has led to new breeding companies establishing in Australia. For at least a decade there has been little or no government funding of wheat breeding. Most wheat varieties being grown have an end point royalty applied.

The remaining crop breeding programs have seen a progressive trend towards recovering a proportion of the cost via royalties on seed or application of end point royalties. Recently the barley breeding programs have been transferred to fully commercial arrangements, mostly by inclusion in the companies breeding wheat varieties.

Pastures

There is little if any breeding of new medic varieties occurring and a small program on selection of subterranean clover and high rainfall pasture species. This is because the demand for pasture seed has declined significantly, following fundamental changes to farming systems, particularly continuous cropping.

The lucerne breeding program continues funded primarily on royalties on the sale of seed.

Horticultural crops

Very few breeding programs have continued in SA or nationally. With the exception of pink lady apples, the demand for new varieties by Australian producers is too small to sustain a viable breeding program. Industry, primarily via the nursery business, has preferred to introduce varieties from overseas.

Further information

Authors: Arthur Tideman and Don Plowman
Date: February 2018.

Further information on plant breeder's rights can be found at the following sites:

• International Union for the Protection of New Varieties of Plants
• IP Australia.