They are the rock stars of the food world, the next “big things” that will change what people eat, but a royalty dispute could mean they never hit the table. 

Unlike the copyright disputes of famous musicians, there are more than riffs and lyrics at stake if the billion-dollar food fight is not resolved.

A flaw in Australia’s plant-breeding rights system could mean fruits, vegetables, and grains needed to feed the world and combat climate change are never developed.

And without them, future food security is at risk.

What are plant breeders’ rights?

In a greenhouse in the Netherlands, a competition not unlike Australia’s Got Talent is unfolding.

But the key contestants are plants, not singers.

Scientists are busy assessing the performance of a tomato spicier than the hottest chilli, a seedless capsicum, and other vegetables that are resilient in the face of climate change.

It’s run by global agtech company Syngenta, the same company that introduced a purple tomato to Australia four years ago.

But unlike the relative overnight success of a viral pop star, the head of the company’s Europe, Africa and Middle East value chain, Jérémie Chabanis, says it can take 20 years to produce a hit.

“During all these years you need to put millions on the table to pay our staff to invest [in breeding plants],” he says.

When the hit happens — say a drought-tolerant wheat variety, or the country’s most popular apple — plant breeders’ rights mean the company that invested in developing the seed gets the pay day.

Or at least it should.

Scientific yet artistic

Getting recognition and reward for the investment in plant development was a key topic of discussion the first time the global seed industry came together in London in 1924.

A century later, the International Seed Federation represents the breeders and traders responsible for new varieties designed to entice consumers, but also to overcome some of the world’s greatest challenges — food insecurity and climate change.

The federation’s intellectual property manager, Szonja Csörgő, says plant breeding companies protect their innovation and creativity through registering intellectual property (IP).

“Each and every breeder is different and will bring his or her own intellect into creating a new plant variety.”

The system differs in every legal jurisdiction.

In Australia, it is administered by the federal government agency IP Australia.

Nathan Madsen, who is the registrar of plant breeders’ rights, says protections generally last up to 20 years for most plant species and 25 years for some certain trees and vines.

“Currently there are about 2,600 plant varieties that are protected by a plant breeders’ right in Australia … a further 1,700 have provisional protection,” Dr Madsen says.

Millions lost

That protection means that when someone such as a farmer uses the seeds to make money, just like if a song is used in a movie, the rights holder is entitled to some of the profit through a royalty payment.

But Australian Seed Federation chief executive officer Katherine Delbridge, who represents the breeders, says increasingly royalties are not being paid.

“They want assurance that they are getting the return on investment for creating that seed for farmers.”

She says the lack of compliance is a disincentive for seed companies to invest in developing plants for Australian farmers and the challenges they face.  

The federation estimates that wheat alone can cost the sector as much as $16 million annually and for barley about $12 million.

Ms Delbridge says less than half of growers in some regions are complying.

Rather than a set fee, the amount the farmer owes is calculated based on how much crop is harvested, which they are required to report to the rights holders.

GrainGrowers policy manager Sam Nelson says reporting is cumbersome and requires growers to repeatedly submit paperwork throughout the year to a system that has not kept up with modern technology.

“Our industry needs a more streamlined system that can make it easy for growers to report and pay the end-point royalties as they are required,” he says.

Ms Delbridge agrees the system needs to be simpler to improve compliance, which is necessary if Australia hopes to convince international companies to bring their breeding operations here.

“It’s a great system, we just need it to be able to work for everyone.”

Under review

It is not just at the payment end that the system struggles.

IP Australia estimates new plant varieties add about $1.5 billion to the Australian economy each year but registering to get the rights can take more than two years.

In 2021 it started a review of the system, which requires written applications and lengthy growing trials to prove the new variety is uniform, stable, and distinct from existing ones.

“It’s fundamentally a holistic look at the system,” Dr Madsen says.

The research work concluded in March but no clear timeline has been set for any changes.

“We’re working through the issues and potential solutions,” he says.

Dr Madsen says public consultation on any potential policy change could happen as soon as mid-next year, and royalty compliance is being looked at.

Mr Nelson says grain growers want a system that is simple for everyone to use.

“We need to make sure that there’s continued reinvestment in plant breeding so that the breeding pipeline can continue and growers can get access to the varieties that they need,” he says.

Breeders’ exemption

Back in the greenhouse in the Netherlands, innovative solutions have been found for some of the issues with which Australia is grappling.

They include speeding up the application process so plants that are resilient to rising temperatures and drought, as well as being resistant to pests and diseases, are available sooner.

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A breeders’ exemption offered by the International Union for the Protection of New Varieties of Plants allows researchers to use existing rights-protected varieties to quickly develop new cultivars without breaching or putting their own rights at risk.

“Where there are new challenges coming all the time and there are new solutions which are needed quickly, we cannot afford to go back all the time to the beginning and redo only innovation,” the International Seed Federation’s Szonja Csörgő says.

She says the intergovernmental organisation based in Geneva, Switzerland, has encouraged the introduction of between 3,500 and 4,000 new varieties to the European market every year.

“It shows that there is a big use of that exemption,” she says.