Perspective
Plant breeders' rights.

Since 1987 Australia has had a new form of intellectual property. Like authors of books or designers of inventions, plant breeders can claim ownership of new and distinct plant varieties that they have bred. Claims of ownership are dealt with by the Plant Breeders' Rights office in Canberra which makes 'grants' to applicants.

In principle this is supposed to encourage inventiveness and creativity by ensuring that people who breed new plant varieties are rewarded for their efforts. In practice it means that anyone wanting to grow and sell PBR'd varieties has to get permission from the breeder and pay a fee. Each grant lasts for 20 years. Then the variety becomes part of the 'public domain'.

Many people completely disagree with the idea of PBR or 'plant patenting'. They think it is immoral and abhorrent. They don't think anyone should be able to claim ownership over the DNA of living organisms. For them the question is, "Do humans really have the right to dominate, control and own nature?" This is an ethical and moral perspective. It is one that plant breeders and scientists rarely examine: it is one I have a lot of sympathy with.

However the Australian Parliament has already decided to allow this type of 'property'. That being the case I think the law should be implemented strictly so that if any varieties are to be PBR'd, they really are new, distinct and stable plant 'inventions'. They should not be varieties from the 'public domain' converted into private property. In fact Australian law strongly supports this principle. Section 10 of the Plant Breeders' Rights Act states: "Nothing in this Act requires or permits the granting of PBR in a plant variety unless.....the breeding of the plant variety constitutes an invention....." Anyone applying for a PBR has to prove that the variety they have bred is 'novel', 'distinct', 'uniform', and 'stable'.

Unfortunately we have discovered quite a few plant varieties which have been PBR'd that are not inventions. Staff at the Rural Advancement Foundation International, (RAFI) in Canada discovered this in December. Looking through the PBR office's own web site, RAFI found that the Centre for Legumes in Mediterranean Agriculture (CLIMA) at the University of Western Australia, had lodged PBR's for two land race varieties of chickpeas from Iran and India. CLIMA got the seed from ICARDA, an international germplasm centre in Syria. Two weeks after RAFI issued a press release presenting this information, CLIMA 'abandoned' the applications. But in the meantime RAFI staff had looked further and found 20 or so other doubtful PBR applications.

Spurred on by this information I began checking independently through the Plant Variety Rights Journal. I quickly found yet more varieties where PBR claims seemed very doubtful. Currently we believe that 107 varieties (with approximately 37 being Australian native species) have been wrongly granted ownership rights by the Plant Breeders' Rights Office in Canberra. In all these cases there is no cross pollination involved, no mutation from an original variety. In each case a variety has simply been grown out and selected.

Almost all the applications come from government agencies: the CSIRO, Departments of Agriculture in Queensland, South Australia, and Western Australia, and publicly funded University based agricultural research bodies like CLIMA. Some New Zealand research bodies have also PBR'd varieties in Australia that are doubtful.

An example may help to illustrate what has happened. Seed of a land race millet variety was bought by USA agricultural research scientists in North Pakistan in 1954. It was trialed by the USA Department of Agriculture and given the number 'PI 219608'. Later it was given the international accession number 'CPI 108621'. At some point agricultural scientists at the CSIRO at St Lucia in Queensland obtained some seed. They trialed the millet and did some selecting. In November 1993 the CSIRO applied to the Plant Breeders' Rights Office for a PBR grant over this variety under the name 'Indus'. A PBR grant was issued by the office in August 1995.

But why has the PBR Office allowed this to happen? In the example of the Pakistani millet the Office should have required the CSIRO to grow and trial 'Indus' with CPI 108621. This would have shown that 'Indus' and CPI 108621 were the same variety. The PBR Office did not make this simple request. Instead 'Indus' was grown out with, and compared to, two totally different millet strains from Siberia and Japan! Now mistakes do happen. But 107 times! It appears as if the PBR Office has either co-operated in this bio-piracy by other Australian government agencies, or been unable to adequately assess the evidence.

Another related major issue here is why almost all these doubtful applications have come from government or publicly funded bodies. I think that government cutbacks to Australian agricultural research bodies over the past 10 years may be the underlying reason. They are expected to be increasingly self funding. Royalties from selling of PBR'd varieties are helping to achieve this. However perhaps our agricultural research staff are being tempted to lodge inauthentic PBR ownership claims to generate these funds.

Heritage Seed Curators Australia

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