Intellectual Property Law and Food Security
Research Project

End point royalties for novel plant innovations

Under most systems for plant breeder’s rights (PBR), royalties on protected varieties are paid via a premium on the purchase of propagating material. Alternatively, within certain agricultural industries in Australia—namely grains, pulses, cotton, and some tree crops—royalties for plant breeder’s rights protected varieties sometimes are paid as a portion of the sale of the harvested material, a system otherwise known as end point royalties. In the 1990s, end point royalties were introduced in the hope that changes in the ways that intellectual property rights were put to work could generate revenue for the plant breeding sector at the same time that such changes could make accessing PBR-protected varieties easier and more equitable for farmers. The rationale was that not only could end point royalties encourage widespread adoption of protected varieties and reduce revenue losses due to farmer seed saving—thereby generating much-needed funds for breeding research—but they could eliminate upfront seed costs for growers and split the risk of crop failure between farmers and PBR owners.

The implementation of EPRs has been dependent upon the creation of new types of institutional and contractual relations among growers, owners, and marketers—not only for the collection of royalties but, in some cases, for the transaction of seed between growers (as with some PBR protected wheat varieties) and the creation of new market relations that make collection of royalties more feasible (as with the closed-loop marketing systems used in some mango production). The contractual agreements accompanying EPRs have reorganised the ways that different actors interact with protected germplasm. In some cases, contracts around EPR varieties enable new (sometimes) non-commercial routes to protected varieties for growers, while in other cases contracts may delimit “reasonable public access” to germplasm as required under the Plant Breeder’s Rights Act 1994. In turn, the shift toward collecting royalties on the sale of harvested material via contract has raised a suite of new challenges for the enforcement of PBR and patent rights, particularly regarding the traceability and monitoring of protected varieties across the production chain.

The aim of this project is to explore the interaction between plant variety protection, the creation of new types of contractual relationships for its enforcement, and concerns about traceability of germplasm that have arisen as a consequence. First, the project explores how the implementation of EPRs has invoked and/or reshaped plant variety protection, both in terms of the ways that these arrangements come to bear on broader ideas about “property” and in how they rework the pathways of access to protected germplasm. Second, it looks at how new types of social relations, institutions, contracts, and technologies have been invoked to solve the problems of enforcement and traceability that arose in the shift to EPRs. To meet these aims, this project traces the development of end point royalties in the market for the Calypso mango, a PBR-protected variety developed in Queensland that has been commercialised through a closed-loop marketing system.