Editing Plant breeders' rights (section)

==International rights==
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In 1957, in France negotiations took place concerned with the protection of new varieties. This led to the creation of the [[International Union for the Protection of New Varieties of Plants|Union Internationale pour la Protection des Obtentions Végétales]] (UPOV) and adoption of the first text of the International Convention for the Protection of New Varieties of Plants (UPOV Convention) in 1961. The purpose of the Convention was to ensure that the member states party to the Convention acknowledge the achievements of breeders of new plant varieties by making available to them an exclusive property right, on the basis of a set of uniform and clearly defined principles.

The Convention was revised in [[Geneva]] in 1972, 1978 and 1991. Both the 1978 and the 1991 Acts set out a minimum scope of protection and offer member States the possibility of taking national circumstances into account in their legislation. Under the 1978 Act, the minimum scope of the plant breeder's right requires that the holder's prior authorization is necessary for the production for purposes of commercial marketing, the offering for sale and the marketing of propagating material of the protected variety. The 1991 Act contains more detailed provisions defining the acts concerning propagating material in relation to which the holder's authorization is required. The breeder's authorization is also required in relation to any of the specified acts done with harvested material of the variety, unless the breeder has had reasonable opportunity to exercise their right in relation to the propagating material, or if not doing so could constitute an "Omega Threat" situation. Under that provision, for example, a flower breeder who protects their variety in the Netherlands could block importation of cut flowers of that variety into the Netherlands from Egypt, which does not grant plant breeders' rights, because the breeder had no opportunity to exercise any rights in Egypt. Member countries also have the option to require the breeder's authorization with respect to the specified acts as applied to products directly obtained from the harvested material (such as flour or oil from grain, or juice from fruit), unless the breeder has had reasonable opportunity to exercise their right in relation to the harvested material.

The UPOV Convention also establishes a multilateral system of ''national treatment'', under which citizens of any member state are treated as citizens of all member states for the purpose of obtaining plant breeders rights.  It also sets up a multilateral priority filing system, under which an application for protection filed in one member state establishes a filing date for applications filed in all other member states within one year of that original filing date.  This allows a breeder to file in any one member country within the one-year period required to preserve the novelty of their variety, and the novelty of the variety will still be recognized when the filing is done in other member countries within one year of the original filing date. However, if the applicant does not wish to make use of priority filing, he or she has four years in which to apply in all other member states, excepting the United States, for all species except tree and vine species in which case he or she has six years to make application. More information can be obtained in Article 10 (1) (b) of Council Regulation (EC) No. 2100/94 of 27 July 2004. The trigger to start the four- or six-year period is not actually the date on which the first filing is made but the date on which the variety was first commercialized.

The UPOV Convention is not [[Self-executing right|self-executing]].  Each member state must adopt legislation consistent with the requirements of the convention and submit that legislation to the UPOV Secretariat for review and approval by the UPOV Council, which consists of all the UPOV member states acting in committee.  In compliance with these treaty obligations, the United Kingdom enacted the [[Plant Variety and Seeds Act 1964]]. Similar legislation was passed in the Netherlands, Denmark, Germany, and New Zealand. In 1970 the United States followed the lead of seventeen [[Western European]] nations and passed the [[Plant Variety Protection Act]] 1970 (US). This legislation provided protection to developers of novel, sexually reproduced plants.  However, the United States originally acceded to the UPOV Convention on the basis of the Plant Patent Act and did not bring the PVP Act into compliance with UPOV requirements until 1984 when the Commissioner of Plant Variety Protection promulgated rules to do so.  Since the 1980s, the US Patent Office has granted patents on plants, including plant varieties this provides a second way of protecting plant varieties in the United States.  Australia passed the Plant Variety Protection Act 1987 (Cth) and the [[Plant Breeders Rights Act]] 1994 (Cth). Australian patent law also permits the patenting of plant varieties.  In total, 65 countries have signed the UPOV Convention and adopted plant breeders' rights legislation consistent with the requirements of the convention.

The [[WTO]]'s [[Agreement on Trade-Related Aspects of Intellectual Property Rights]] (TRIPs) requires member states to provide protection for plant varieties either by [[patent]]s or by an effective ''sui generis'' (stand alone) system, or a combination of the two.  Most countries meet this requirement through UPOV Convention-compliant legislation.  India has adopted a plant breeders' rights law that has been rejected by the UPOV Council as not meeting the requirements of the treaty.

The most recent 1991 UPOV convention established several restrictions upon international plant breeders' rights. While the current legislature of the convention recognizes novel varieties of plants as [[intellectual property]], laws were formed concerning the preservation of seeds for future plantation, such that the need to buy seeds to use in subsequent planting seasons would be significantly reduced, and even potentially eliminated altogether.<ref name=":0" /><ref name=":2" /> In addition, the 1991 convention also concerns the method of instigating plant breeding by implementing pre-existing and patented plant species as contributor of vital genetic information in the creation of what would legally be regarded as a new variety of plant.<ref name=":0">{{Cite journal|last1=Fister|first1=Karin|last2=Fister|first2=Iztok|last3=Murovec|first3=Jana|last4=Bohanec|first4=Borut|date=2017-02-01|title=DNA labelling of varieties covered by patent protection: a new solution for managing intellectual property rights in the seed industry|journal=Transgenic Research|language=en|volume=26|issue=1|pages=87–95|doi=10.1007/s11248-016-9981-1|pmid=27567633|s2cid=20477905|issn=0962-8819}}</ref>

Constituent countries of the [[World Trade Organization]] are required to acknowledge the creation of new varieties of plants, and to uphold these creations within full recognition of intellectual property rights laws. A formalized legislature, exemplifying the manner in which such intellectual property rights can be conferred, is demonstrated by the 1991 UPOV convention, which declares such rights upon an individual breeder.<ref name=":0" /> This document further identifies a breeder as one who has found or created a plant variety, one who possesses legal authority for the contractual production of a new plant variety, or one who has inherited legal rights to this form of  intellectual property as it was derived under either of the two aforementioned conditions.

As a result of debate over the protection of [[Hybrid (biology)|hybrid]] plants as new varieties, the legal measure of double protection, as expressed within the current iteration of the UPOV, can be taken.<ref name=":0" /><ref name=":12">{{Cite journal|last1=Smith|first1=Stephen|last2=Lence|first2=Sergio|last3=Hayes|first3=Dermot|last4=Alston|first4=Julian|last5=Corona|first5=Eloy|date=2016-07-08|title=Elements of Intellectual Property Protection in Plant Breeding and Biotechnology: Interactions and Outcomes|journal=Crop Science|language=en|volume=56|issue=4|pages=1401|doi=10.2135/cropsci2015.10.0608|issn=0011-183X|url=http://lib.dr.iastate.edu/cgi/viewcontent.cgi?article=1579&context=econ_las_pubs}}</ref> Double protection mediates the overlap between plant breeders' rights and patents that exists within the purview of intellectual property rights law, by enabling the protections of both to be conferred upon a particular plant variety.<ref name=":0" />

Plant breeders' rights (sometimes referred to as ''breeders' privilege'') are contentious, in particular when analyzed in balance with other relevant international legal instruments, such as the [[Convention on Biological Diversity]] (and its [[Nagoya Protocol]]) or the [[International Treaty on Plant Genetic Resources for Food and Agriculture]] (Plant Treaty). The UPOV is often [[UPOV#Critics and public interest concerns|criticized on this basis]].