Okay, let’s debate.
Although on some level I’d like to agree, because it seems to me that breeders ought to be better compensated for their work, I simply cannot quite bring myself to feel the same way. Without knowing how some (such as the New Zealanders) are handling their new restrictions/rights, the kind of idea you propose seems like it would quickly become a nightmare. I’ll just throw this out as food for thought, but here are some arguments, thoughts, and hypothetical scenarios that came to me as I thought about this:
In order to prove that violations of these Rights have even taken place, I imagine that laboratory testing will be absolutely required, and in all likelihood this will obviate the need for expensive, designer genetic markers to be implanted in new varieties to eliminate the possibility of reasonable doubt. It follows that only large, wealthy breeding firms will be capable of protecting their work in such a fashion, not the small breeder. The breeding advantage will then be even more shifted towards those large firms since they can more or less freely use the essentially unprotected stock generated by amateurs and small breeders while their own lines are virtually untouchable. Perhaps there will be an underground market for the removal of designer markers for those willing to pay.
Also, like you said, where do you draw that line for compensation? Is a first generation hybrid deserving of compensation for the parent’s breeder, but a second generation immune to legal questioning? - and so on. It could get stickier, though, if you consider more than just the genes involved.
Isn’t it equally important, if not more so, to prove just how much influence the genes from a “protected” parent had on the physical qualities of the offspring? Given the current state of understanding genes and their expression, is that even possible? Will it ever be? One could argue, for instance, that the contribution of (‘Red Dawn’ x ‘Suzanne’) to the success of ‘William Baffin’ is minimal, or that it really constituted the bulk of its garden worth - it could go either way, really - how do you even begin to objectively assign relative value?
If Mr. Simonet truly deserved compensation for Explorers containing germplasm he developed, you might ask, why didn’t he perform those same crosses himself? Perhaps it is merely the creative moment of combining two parents’ genes at a given point in time, and the genius of selection that may follow, rather than the sum of all creative moments that led to that one (including countless “acts of God” or natural events and contributions from past breeders who cannot possibly receive compensation retroactively), that defines what is truly unique and compensation-worthy about any given plant. It seems to me that is the established treatment, anyway.
Even with a system of gene testing and lawsuits firmly in place for protecting varieties, the immediate result will likely be the increased withholding of parental information, especially by those who cannot afford the expensive protections mentioned earlier. Even varieties with nothing to hide, as it were, may well reveal absolutely nothing about their heritage in this possible future - or maybe the majority of plants will instead contain utterly misleading parental data to foil lawyers and confound breeders.
And what about the work of nature? When a bee (shamelessly) travels from a protected flower to an unprotected one in a breeder’s garden, and the breeder is delighted enough with that open-pollinated seedling’s performance to try and make a profit from it, what then? And on the flip side, since the proposed protection relies so heavily on the value of the hard work of breeders to create unique plants through breeding, would it be legally prudent to try to protect plants that arose from natural fertilization rather than the breder’s hand? Could the doubt over whether accidental pollination might have occurred stymie breeding efforts? Is the climate created by this potentially paranoid atmosphere conducive to the free and uninhibited advancement of new cultivars?
Another thing is, where will the increased costs of added protections be absorbed? By the consumer, in all probability. But raising the price of plants through the roof in order to benefit the breeder may not play very well with the public in the long run.
There are so many more arguments and dangerous questions that could be raised, far too many to comfortably agree to such heavy restrictions or “rights” as a system like that could well impose. Hopefully the kinds of worries this set off in my head are more science fiction than fact, but who can say for sure? What will happen if the worst of it comes to pass?
)))