New plant variety protection in China from the perspective of food security and environmental protection

• Author: ZHANG Jiyu
• Pages: 174-192

FRONTIERS OF LAW IN CHINA

VOL. 12 JUNE 2017 NO. 2

DOI 10.3868/s050-006-017-0012-6

FOCUS

FOOD SAFETY AND FREE TRADE

NEW PLANT VARIETY PROTECTION IN CHINA FROM THE PERSPECTIVE OF FOOD

SECURITY AND ENVIRONMENTAL PROTECTION

ZHANG Jiyu*

Abstract China is facing increasing challenges in food security and environmental

protection, and the plant breeding has made enormous contribution to solving the

problems. The legal protection of new plant varieties has the important function of

encouraging innovations in the field of plant breeding. However, the widely use of

modern biotechnology has caused great controversy in society, and some people propose

to limit the scope of plant variety right, especially for Genetically Modified Organisms

(hereinafter “GMOs”). When designing and interpreting the regulations on the

protection of new plant varieties, we should keep in mind that the plant variety right is a

private right aiming to encourage innovation, and take the principles and relationships in

the field of innovation into consideration. Proper regulation and incentives for

innovation are both the essential themes in the fields of modern technologies.

Intellectural property (hereinafter “IP”) laws should focus on encouraging innovation,

while the law system, including the Seed Law, the Food Safety Law and the

Environmental Protection Law, should provide systematic, scientific and strict

regulations on the research, propagation and marketing of new plant varieties. The

whole law system and the market can function together to guide the plant breeders to be

committed to breeding new varieties that meet the needs of food security, food safety

and environmental protection.

Keywords new plant variety protection, food security, food safety, environmental

protection, seed law

INTRODUCTION .................................................................................................................... 175

I. CONTRIBUTIONS AND CONCERNS OF PLANT BREEDING FOR FOOD SECURITY AND

ENVIRONMENTAL PROTECTION IN CHINA................................................................ 177

A. The Significance of Agriculture to China and the Main Challenges.................. 177

B. Contributions of Plant Breeding to Food Security and Environmental

* (张吉豫) Ph.D., Peking University, Beijing, China; Assistant Professor, School of Law, Renmin

University of China, Beijing 100872, China. Contact: zjy@ruc.edu.cn

Financial support from the National Social Science Foundation of China (Project No. 2015MzD042) and

the reviewers’ advice is greatly acknowledged.

2017] NEW PLANT VARIETY PROTECTION IN CHINA 175

Protection.......................................................................................................... 179

C. Main Controversy about the New Plant Breeding Technology.......................... 181

1. The Possible Negative Impacts to Agriculture and the Environment ............ 181

2. Fears of GM Food to Harm People’s Health .................................................181

3. The Potential Threat Posed by GURTs to Food Security and Ecological

Environment.................................................................................................. 182

D. Related Concerns on the Legislation of Protection of New Plant

Var ie ti es .............................................................................................................. 182

II. THE LEGAL DEVELOPMENTS OF CHINA’S PLANT VARIETY PROTECTION ............... 183

A. Stage 1: Farm-Saved Seeds as the Main Source of Seed Supply

(1949–1977)...................................................................................................... 183

B. Stage 2: Uniform Seed Supply by State-Owned Seed Companies

(1978–2000)...................................................................................................... 184

C. Stage 3: Market-Oriented Seed Supply Development (2000–Now).................. 185

III. SUGGESTIONS TO THE LAW SYSTEM ON NEW PLANT VARIETY PROTECTION ....... 188

A. The Role of New Plant Variety Protection ........................................................188

B. Systematic Regulations on the Research, Cultivation and Marketing of New

Plant Varieties ...................................................................................................190

CONCLUSION........................................................................................................................ 191

INTRODUCTION

Plant breeding describes methods for creation, selection and fixation of superior plant

phenotypes in the development of improved plant varieties suitable for needs of farmers

and consumers.1 The history of modern biotechnology is not very long,2 but plant

breeding can trace back to the dawn of human agriculture in more than 10,000 years ago,

when the Mesoamericans domesticated maize.3 The earliest farmers selected seeds from

the plants with the best visible characteristics, or phenotypes. Since the 20th century,

many scientists and plant breeders have studied and contributed to the genetic

improvements for generations of plants to meet people’s needs. With the development of

modern science and technologies, the population on the earth is increasing day by day,

but the area of arable land is decreasing in many countries and the ecological

1 Stephen P. Moose & Rita H. Mumm, Molecular Plant Breeding as the Foundation for 21st Century

Crop Improvement, 147(3) Plant Physiology, 969 (2008).

2 It is generally believed that in the 18th century, there were a number of research and development in

Europe constituting the early theoretical basis of plant breeding science. At the turn of the 20th century, the

fundamental discoveries of Darwin and Mendel established the scientific basis for plant breeding and genetics.

The plant breeding began to get rid of the initial stage of mainly relying on the experience and skills of people,

and gradually developed into an applied science with systematic theories and scientific methods. See LI Xiuli,

植物品种法律保护制度国际比较研究 (International Comparative Study on the Legal System of Protection of

Plant Variety), Intellectual Property Press (Beijing), at 1–2 (2014).

3 See History of Plant Breeding, available at http://cuke.hort.ncsu.edu/cucurbit/wehner/541/hs541hist.

html (last visited Jan. 5, 2017).