유럽연합 식물신품종보호제도에 대한 고찰

Study on the Plant Variety Protection System in European Union

Community Plant Variety Rights (CPVR) system was introduced in 1995 in European Union. This right guarantees the exclusive exploitation rights for a plant variety and is effective in 28 EU member states through a single application to the Community Plant Variety Office (CPVO). The legal basis for the CPVR system is found in the Council Regulation (EC) No 2100/94 (the Basic Regulation). The scope of protection in the Basic Regulation is extended in the same way in UPOV 1991 convention. However, the protection of harvested material is not sufficiently well-defined in the Basic Regulation resulting in uncertainties and loopholes in the CPVR. By exceptions to the breeder’s right provision, farmers may save seed for some species provided that they pay an appropriate royalty to rights’ holder which is lower than that of equivalent certified seed. CPVR holderscurrently find it difficult to obtain royalties for farm saved seed (FSS) use, in part due to the difficulty in requesting information from farmers. The provision for ‘Essentially Derived Varieties’ (EDVs) helps to protect against plagiarism of plant varieties that are too similar to one another. However, there is no standardized protocol or threshold developed by CPVO to determine EDVs. The CPVR law provides a harmonized intellectual property regime for plant varieties at EU level, but enforcement varies widely in practice in Member States. And in some cases dispute resolution mechanisms are not easily accessible. This is considered to be one of the biggest problems inhibiting an effective EU-wide plant variety rights system.