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Postscript to the article in the Autumn 2010 edition
New plants I have noticed this year' by Jennie Maillard
In the Autumn newsletter, Jennie suggested that it is possible to propagate and 'give away' plants that are protected by Plant Variety Rights (PVR)' As a practitioner in this field, I urge members to exercise caution! European PVR law states that there is an exemption for 'acts done privately and for no-commercial purposes'. In his book on the subject, Martin Ekvad (head of legal affairs for the Community Plant Variety Office - so he should know!) says that 'production or reproduction...shall not be an infringing act if it has been done for one's own private garden or glasshouse'. In other words, if you propagate a PVR-protected plant to make the patch in your own garden bigger, that's fine. If you propagate the same plant to provide patches for your neighbours and friends, then you are breaking the law - although I don't think anyone would ever Prosecute!
As Jennie rightly points out, a plant costs just a few pounds and, I think we would agree, offers better value than a bunch of cut flowers, a bottle of plonk or a packet of cigarettes, all of which are around the same price. When you buy a PVR-protected plant, the (very small) royalty element of the price goes back to the breeder and helps to reward and fund their efforts to provide us all with exciting new garden plants. That must surely be a price worth paying.
Graham Spencer DipM MCIM Plants for Europe Ltd (Past chairman Sussex HPS) |
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WHO OWNS NATURE?
Nurseryman Michael Wickenden assesses the impact of plant patenting.
At first sight this looks like an absurd question. Surely the whole idea of owning nature is ridiculous, it ‘belongs’ to humanity in general and, indeed, humanity belongs to it. However, over the last few years this has become a very real question for those of us who propagate plants for sale and for the public who buy them at nurseries and garden centres. The plants in your garden still belong to you but the right to propagate them for sale, in some cases, does not. This became possible when nature, including garden plants, became ‘intellectual property’. Copyright is a more familiar form of intellectual property; you can own a copy of a book but not the right to reprint it for sale. Clearly, a book is the product of someone’s intellect whereas a plant is a product of nature. This begs a question - why should one person rather than another be able to patent something they did not invent? The answer from those pushing Plant Breeders’ Rights (PBR) has always been that the enormous amount of work involved in breeding a plant justifies the right to patent it. This was fair enough in the early days when PBR was only available for agricultural crops that were usually the result of expensive breeding programs but in June 1997 the scheme was opened up to all plants. To get PBR there was, and still is, no requirement to show that you have done any actual breeding work and there is no definition of what plant breeding is. In official publications and elsewhere the words ‘breeder’, ‘raiser’, ‘developer’, ‘finder’, ‘discoverer’ and even ‘creator’ are interchangeable - profitable confusion reigns and they all get PBR. The inevitable result is that many of the ornamental plants currently bearing PBR were simply found by chance or collected in other countries. The public are being charged royalties (that are added to the cost of plants they buy) for plant breeding that, in many cases, has never taken place. Anybody who wants to find out how this happened can turn on their computer and look up the 24th June 1997 parliamentary debate in Hansard, vol. 296, columns 729/730. The Minister of State for Agriculture promised a concerned MP that only expensively bred plants would get PBR, a promise that seems to have been forgotten as soon as it was made. PBR and the public. We hear a lot about choice these days but the public can not choose to avoid patented PBR plants and the royalties because there are no enforced rules on labelling – you can not tell what is covered. PBR plants that are labelled as such are often marked, ‘propagation illegal’ which is misleading. It is propagation for sale that is prohibited. There have been questions to BBC Radio 4’s Gardeners’ Question Time from members of the public wondering if they really were not allowed to propagate these plants for their own garden or as presents for friends. A parliamentary question from Norman Baker MP asking if the government would amend the labelling regulations received a simple reply – no. If your garden is open to the public you are not even allowed to propagate ‘large quantities’ of your own plants for your own garden if they are patented, because you are deemed to be getting a commercial advantage. The dominant PBR-orientated wholesale nurseries tend to drop worthy old garden varieties in favour of similar ‘new’ ones that attract a royalty. The public are beginning to notice that many retailers offer similar ranges, because it is easier to buy in young plants from these wholesalers than to try to find out what is patented and grow their own. PBR and nurseries. Having spent 25 years sourcing and propagating new varieties for my customers (including many nurserymen who want to propagate them) I have had to curtail this because even buying in non-PBR new varieties is now a problem; under one of the most dubious aspects of this system they can be released to test the market and then granted PBR later on. If I buy and propagate one of these plants in the meantime I will not be allowed to sell the results of my work. Some nurseries simply rename PBR plants to avoid the royalties; others rename old varieties to get PBR. This lack of regulation has attracted a new breed of ‘marketing consultants’ into horticulture. Their advertisements encourage the public to bring them any exciting new plants they have ‘found’, (no pretence here that any breeding has taken place.) They obtain PBR and market the plant, for a percentage. I am sorry that it is my generation of nurserymen who have embraced, or at least quietly gone along with, these measures. We enjoyed the right to propagate what we wanted when we were starting out but now wish to deny young growers the same advantage. Things could have been very different. Growers who source, propagate and sell plants have a direct relationship with nature that is unusual in the developed world. They could have used these insights to inform the general public about the implications of priceless natural genetic resources, which have evolved over millions of years with no help from anyone, becoming private ‘intellectual’ property. This is not just a problem in the little world of horticulture. It affects food, medicine, science and much else besides. A more detailed version of this article is available at www.callygardens.co.uk
Michael Wickenden, 16.9.2010.
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Cally Gardens, info@callygardens.co.uk Gatehouse of Fleet, Castle Douglas, 20.2.2011 DG7 2DJ.
Dear Mr & Mrs McCutchan,
Graham Spencer’s article on Plant Breeder’s Rights (Plant Variety Rights) on page 10 of your spring newsletter needs some explanation.
He says that ‘you are breaking the law’ if you propagate and give away PBR (PVR) plants. This is quite wrong – it is only a problem if you sell them, as confirmed by the quote from Mr Ekvad of The Plant Variety Office that appears in the article. Perhaps Mr Spencer, whose company Plants for Europe Ltd depends on PBR, is worried that resourceful gardeners may get round the system by giving plants away and thereby reduce his profits.
He then goes on to repeat the central fallacy of PBR, that it exists to reward hard working plant breeders. The fact is that you do not have to do any actual plant breeding to get PBR. There is no official definition of what plant breeding is and the public are paying royalties on plants that were simply found by chance or collected in other countries.
Anybody who wants to find out how this came about can read my article ‘Who Owns Nature’, commissioned by The Royal Horticultural Society’s ‘Plantsman’ magazine, at www.callygardens.co.uk
I do hope you will print this, to balance the highly misleading piece in the spring issue.
Yours sincerely,
Michael Wickenden. |
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Extract from Autumn 2010 Newsletter.
One of the trends of recent years is for plants to be protected by a breeders licence which makes propagating them for sale illegal, so nurseries have no choice but to 'buy in' if they want to offer them, making the plants a lot more expensive. However you are able to propagate them yourselves for your own garden, or to 'give away' ,just don't sell their. I would recommend you all read the 'mission statement' by Michael Wickenden of Cally Gardens, http://www.callygardens.co.uk/thenursery.html as well as the article commissioned by the RHS on http://www.callygardens.co.uk/pbr_article.html. If you don't have access to a computer and the Society is interested I might ask Michael if I could reproduce the article in a future newsletter.
Jennie Maillard (Usual & Unusual Plants)
Autumn 2010 |