CHOICE membership

Plant breeders' rights

Be careful who you give cuttings to. The comments are at least as interesting as the article.

This is unclear to me. The author clarifies in the comments that giving a cutting to somebody is not in itself an issue.

"For example, in Australia, the PBR law allows third parties to use a protected variety without the breeders’ authorisation privately and for non-commercial purposes. "

“…it is likely that you could give a cutting to someone else without risking infringement. However, if that person planned to commercialise the plant variety without consent from the PBR owner, then he would risk infringement.”

Other references are not so clear in some cases suggesting that even for non commercial purposes might be limited.


There are a number of uses which are excluded from Plant Breeders Right (PBR), these include use of a variety:

  • privately and for non-commercial purposes
  • for experimental purposes
  • for breeding other plant varieties.

So receiving a cutting from say a friend or neighbour of a PDR protected plant at growing it at home for domestic consumption is okay, but using the cuttings to grow plants at a commercial scale for either selling of plants or its produce isn’t.

If anyone whats to know that PBR are and also what they mean, the Australian Government has a website dedicated to PBR…

I would refer to this website rather than relying on secondhand information on a media website.

Though if a particular gene expression in a plant was copyrighted then even for breeding another plant variety may infringe the copyright if that gene was the reason or part of the reason for using the plant. This was part of the US problem of Soy Bean (Roundup resistant) spreading to non GM Soy crops and the Non GM crop farmers then having to pay royalties for the GM spread.

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That may be so but you are not describing named cultivars protected under the PRB system. The author is at pains to distinguish PBR from patents.


It becomes tangled due to gene copyright. A PBR covered plant may include copyrighted GM and thus sharing may breach Copyright even though the intent was not to do so or formed part of the intent.


I find it difficult to view gene copyright as anything but theft of common property. Getting a bit off-topic, even some human genes are effectively someone’s property.

Is this a hypothetical or are there known examples?

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Sort of hypothetical but also acknowledged as a concern/situation:

" Related IP rights

Plant varieties can also be covered by other types of IP rights such as patents and trade marks. A new variety developed by genetic transformation may be protected by PBR, while the transformation technique, the gene, plant cells containing the gene, and the resulting plant variety itself might also be protected by patent.

A patent will protect any invention arising out of plant research and innovation, such as a new therapeutical or industrial use of the plant or an extract from it. Although the name of a plant variety cannot be registered as a trade mark, plant varieties can be marketed under a particular brand or trade mark.

We can work with plant breeders and researchers to develop the best strategy for protection, both domestically and internationally."

"• There is no onus on an IP holder to use the invention except under limited circumstances eg the PBR Act (Section 19) requires reasonable quantities to be made available at a reasonable price, but the Patents Act does not

• If the rights holder does allow others to use the protected material, the holder can determine conditions of use, eg conditions relating to royalties, non-propagation, not to be used for research and refusal to allow its use with additional material from competitors are all valid. This does raise an interesting issue in Australia which has not yet been tested under PBR and that is whether this ability to ‘contract out’ of the national interest exemptions is against public policy. At this stage the view is that if someone enters into a contract then they are aware of the specific provisions and ‘contract out’ knowingly."

So if an IP holder of a gene doesn’t want that gene to be propagated or used with additional material eg to make a new breed or variety they can withhold that right. So even a backyard propagator or one who passes it on to a friend to use in propagation would be infringing those rights ie be in breach.