If a person or organisation intends to take certain actions relating to a plant variety, they must first request authorisation from the owner or title holder of that Plant Variety Right (PVR). It is generally the title holder’s discretion on whether or not to grant this authorisation.
In some situations where a party is not able to obtain authorisation from the title holder, that party may request the Commissioner to issue a compulsory licence for the variety.
What is a compulsory licence?
A compulsory licence authorises a person or entity to undertake one or more restricted acts regarding propagating material of a variety. For example, if a commercial nursery has found it impossible to obtain a variety to propagate at that nursery, they may request a compulsory licence for that variety.
A compulsory licence is issued by the Commissioner, and may require the PVR title holder to supply propagating material to the compulsory licence applicant. This must be done under conditions set out in the licence.
A compulsory licence is not exclusive, only applies in New Zealand, and can have limitations as the Commissioner considers appropriate.
A compulsory licence acts as if it were a licencing agreement for that variety, entered into by agreement between the title holder and the compulsory licence applicant. In all instances, the Commissioner will require the person granted a compulsory licence to pay a specified royalty to the PVR title holder.
Legislation
Part 7 of the Plant Variety Rights Act 2022 and Subpart 6 of the Plant Variety Rights Regulations 2022 set out the requirements of a compulsory licence application, and the process for their review and/or grant.
Part 7 of the Plant Variety Rights Act 2022 — New Zealand Legislation
Subpart 6 of the Plant Variety Rights Regulations 2022 — New Zealand Legislation
Making an application
A compulsory licence is a ‘last resort’ to obtain access to a protected variety. Every effort should be made to obtain authorisation for use of the protected variety before making a compulsory licence application.
The Commissioner may grant a compulsory licence only if at least 3 years have elapsed from the date the PVR was granted. Any applications for a compulsory licence should therefore take this 3-year period into account.
A compulsory licence application should include the following requirements:
- The applicant will need to demonstrate why they have been unable to obtain authorisation from the PVR title holder for the restricted acts they wish to undertake.
- The applicant will need to provide evidence that it is in the public interest that the compulsory licence should be granted. This explanation and evidence should be substantive: Support documentation from at least one other party is recommended.
The application for compulsory licence must also be accompanied by payment of the prescribed fee.
Granting a licence
As part of its decision whether or not to grant a licence, the Commissioner will consider the protected variety’s availability to the public (or a sector of the public), including harvested material. The Commissioner will take into account the kind of plant material involved, its method of propagation, any persons who are already using the variety, the quantity and quality in use, and the cost of the plant material. The Commissioner may also consider any other relevant matters.
The Commissioner is required to give the title holder of the protected variety, the applicant, and any other licensees the opportunity to be heard and to take all submissions into account before a decision is made. The Commissioner will share any submissions with both sides, may request specific information from the applicant, and will set timelines for filing of evidence and the response process.
After considering the request, the Commissioner may choose to issue a compulsory licence to the person who made the application. A compulsory licence will clearly set out its provisions, and can be amended or revoked by the Commissioner.
Any decision of the Commissioner can be appealed as provided for in the Plant Variety Rights Act 2022.