Introduction
The protection of varieties, breeders' royalty payments and the marketing of stock material are all laid down in legislation on plant breeding. The regulations are a consequence of developments in the plant breeding sector.
In the early 1930s, the trade in seed and plant stock in the Netherlands grew, as did the need to reward breeders' work according to a system of breeders' rights. Breeders' rights gave breeders exclusive rights for propagation and marketing, while at the same time requiring them to provide enough seed and plant stock - at a reasonable price - to meet demand. However, to be granted breeders' rights more was required than a general description of characteristics and a label on seed packaging. Next to the name of the variety, a description had to be given of the morphological and physiological characteristics. This was laid down in the 1941 Plant Breeders' Decree, replaced in 1967 by the Seeds and Planting Materials Act.
In legal terms, a variety is defined as:
A group of plants which are part of a cultivated crop, which form an indivisible whole, which have distinct characteristics and which can be reproduced in the normal manner for that crop.
Similar legislation applies in other countries. The Paris Convention (International Treaty on the Protection of Breeding Products) was drawn up in 1961 to ensure that national legislation on plant breeding stimulates rather than impedes the international marketing of breeding products. The countries which ratified the Paris Convention are united in the International Union for the Protection of New Varieties of Plants (UPOV).
In some countries, such as the United States, plant varieties are protected by breeders' rights as well as by patent rights. Currently, a fierce debate is being held on the question of which form of legislation best protects the rights of ownership of plant stock. At the moment, it looks as if breeders' rights will continue to be the generally accepted way to protect the rights of ownership with respect to varieties. However, where individual genes are concerned, these will continue to be protected through patents. The European Patent Office has thus far rejected patent applications for plant varieties. Patenting varieties would have far-reaching consequences for the availability of genetic source material and for farmers' privilege. Patented varieties or varieties containing patented genes may not be used freely in breeding or propagation, even when the result is for personal use. Breeders' rights do allow such use.
The Dutch Varieties Register (Rassenregister) and the Dutch National List of Varieties (Rassenverkeerslijst)
In the Netherlands, agricultural varieties may only be propagated and marketed when they are entered in the Varieties Register. The Register includes varieties protected by Dutch breeders' rights as well as those protected by European breeders' rights. All varieties which can be protected qualify for inclusion in the Register, as do varieties which cannot be protected (so-called special breeding products) and old varieties which are still considered of value.
Most vegetable varieties have been designated by the Minister of Agriculture, Nature Management and Fisheries for the Dutch National List of Varieties. An application for breeders' rights was not made for these varieties.
Three main criteria must be fulfilled if varieties are to be registered with the National Varieties List or the Varieties Register:
distinctness: the variety must differ in one or more important characteristics from all other existing varieties at the time of application;
uniformity the variety must be sufficiently uniform, taking into account the propagation method;
stability: the variety must not undergo any marked alteration in subsequent propagation or growing cycles.
In addition to the above three criteria, new agricultural varieties must also have an agricultural value which is at least equal to that of other existing varieties. This criterion does not apply to vegetable crops. Varieties protected by breeders' rights may be propagated only by licenceholders. Unprotected varieties may be propagated freely, provided that plant and seed stock for trade meets all legal requirements.
Breeders' rights
To qualify for breeders' rights, a new variety must meet the above criteria, must not previously have been offered for sale or trade in the Netherlands and must not have been marketed for more than four years in any other country (the novelty requirement). In the Netherlands, breeders' rights usually last twenty years, 25 years for crops with a long propagation cycle (such as potatoes, fruit trees and avenue trees).
Through breeders' rights, commercial propagation and marketing are reserved exclusively for the breeder or the breeder's representative. Conversely, the breeder is required to market sufficient material at regular intervals against reasonable prices. Protected varieties may be used freely in cross-breeding or in scientific reserach, but not for the production of hybrids.
Breeders' rights are national rights of ownership. A separate application for breeders' rights must be submitted to other UPOV associated countries. European breeders' rights may also be applied for.
Owners of protected varieties must ensure their rights are maintained themselves. In a case of suspected violation, the National Inspection Service of the Ministry of Agriculture, Nature Management and Fisheries must be informed.
Breeders' rights must be paid for. At the time of application, administration and research fees are charged; after breeders' rights have been granted, an annual levy of Dfl. 700 must be paid.
For some crops, breeders can make use of farmers' privilege, i.e. they may produce seed and plant stock for their own use, as long as it is not marketed. The breeder holding breeders' rights must be reimbursed. Small farmers (less than 92 metric tonnes of cereals per year) are exempted from payment.
The Recommended Varieties List (Rassenlijst)
In accordance with the Seeds and Planting Materials Act and complementary legislation, arable farming varieties and other varieties are placed on the Recommended List when the crop is considered to be of significant national importance. This designation is based on user value research.
In addition, a Varieties List has also been in use in the Netherlands for some years now which complies with EU criteria on cultivation and user values. The varieties are categorised per crop in the following classes:
A -variety recommended for all-round cultivation;
B -variety suitable for limited cultivation or for special purposes;
N -new, recommended variety;
T -new, authorised variety with sufficient cultivation and user values;
O -variety of little or limited local significance;
UB -variety primarily for export purposes, although domestic trade is allowed;
R -variety allowed in the Netherlands because it is placed on the common EU Varieties List.
The Recommended Varieties List contains a selection of varieties from the National List. These are usually A, B or N class varieties. Organic growers are also interested in varieties in these classes. However, varieties in the O and T classes may be more important for a niche market or for traditional regional specialities. The introduction of a National List and a Recommended Varieties List, which have replaced the Descriptive Varieties List of former years, has made the inclusion of 'speciality' varieties on the National List easier to achieve and/or maintain.
A slightly different situation applies in vegetable growing. Vegetable crops for marketing must be included on the National or European Varieties List. Vegetable varieties which are entered in the Varieties Register because of breeders' rights automaticallyapply for the National List of Varieties. A voluntary descriptive list for vegetable varieties is also used, with one list for field vegetables and one for greenhouse vegetables. The voluntary descriptive list includes varieties from the Varieties Register and/or Varieties List which have been assessed favourably in user value tests. As with arable crops, vegetable varieties are classed in categories, in this case only A, B, O and N. The classes have the same definition as for arable crops.