I must confess to facing some difficulty in coming to a conclusion about the appropriateness of this Bill for Irish conditions. I say that having had fairly extensive consultations with people who are in favour of and against the Bill. Indeed, a Bill of this nature which is very complex and is concerned with abstruse points of law concerning intellectual property and also requiring very detailed knowledge of the scientific position in relation to the evolution of plant breeding in the world, is one which legislators here face great difficulty in coming to conclusions about. It is a very convincing argument for the type of proposal which my party put forward in relation to the consideration of such pieces of legislation by a Committee of the House which would take evidence in public from the various interested groups, those for and against, and crossexamine such groups on their views. We should have had an opportunity in a Committee of the House to hear the arguments put forward by the plant breeding interests, the Agricultural Institute and individuals who are interested in plant breeding, all of whom are in favour of the Bill, and an opportunity of hearing evidence from the Irish Commission on Justice and Peace, a commission of the Irish Episcopal Conference who expressed strong views if not outright opposition to the Bill and Comhlamh, a body which represents the interests of those who worked as volunteers in the Third World. The latter body expressed similar reservations to those of the Irish Episcopal Conference about the Bill.
If we could have heard the opinions of those for and against the provisions of the Bill, we would have been able to deal with this matter more appropriately and with greater assurance than we can now. The evidence of those interests must be obtained privately and without the assistance of the resources of the House. I notice that the Bill was prepared after the circulation of a discussion document to the various Irish interests concerned and that discussions were held where requested. It surprises me that the Bill was prepared without those discussion documents being circulated to Members of the House. It seems anomalous that individuals or groups outside the House should receive advance notice of the Bill and material in respect of the arguments for and against its provisions without the people who have the responsibility for enacting the Bill receiving a similar courtesy. I know that this is not the first time such a procedure was adopted by the Department of Agriculture. It was a discourtesy to the House that other people should receive written communications in respect of proposed legislation before the people responsible for enacting it, Members of this House, received it. It is possible that agreements were entered into in respect of the contents of the Bill outside the House before we were made aware that the legislation was contemplated. That is a serious matter which should not be allowed to happen again. We must ask ourselves the fundamental question as to what the House is being asked to do in enacting plant breeders legislation. We are being asked to create a situation whereby a monopoly can be conferred on certain individuals in respect of the propagation of certain varieties of seed. It is my view that in the case of anybody seeking to establish a monopoly the case for the monopoly must be made out by the person seeking to establish it. There is always a prima facie case against a monopoly of any description. We must look carefully through the Minister's speech to see if he has established a case which is sufficiently strong to justify us creating a new type of monopoly in our law which did not exist hitherto. This type of monopoly is analogous, though not exactly the same, to the monopoly which already exists in respect of patents in regard to industrial and material inventions. The difference is that in this case we are seeking to create a monopoly in respect of a naturally occurring species of natural life whereas in the case of a patent one establishes a monopoly in respect of something which is not naturally occurring but is the result solely of mechanical contrivance by a human being.
One could argue that there is possibly a greater case for a monopoly in the case of patents than in this case but that is something we must decide in the course of the next few weeks. In this context it is worth quoting what has been said in other countries about the whole concept of the granting of patents, whether they are in respect of plants or mechanical inventions. The Canadian Department of Consumer and Corporate Affairs established a commission to consider the entire field of intellectual property, in particular patent law. The Commission, chaired by a person called Ostry, reported to the then Minister for Consumer and Corporate Affairs of Canada, the Hon. Bryce Mackasey, in June 1976. I should like to quote the commission's conclusions about the validity of patent law in Canada because I believe the arguments adduced on that occasion in respect of patent law of which Canada had considerable experience can be applied to the creation of a new type of patent in our law in respect of plant varieties. I hope the House will bear with me while I quote extensively from this document, as I understand that it is not otherwise available in this country. In their conclusions to a very lengthy review, comprising almost 100 pages, of all the arguments for and against having patent legislation, the commission said that on the basis of the review and analysis contained in the first part of the working paper, it was evident that Canada should give serious consideration to the possibility of abandoning the continued maintenance of a patent system in any form. However, they go on to say that they are not convinced that they would be in a position there and then to recommend such a radical step as the entire abandonment of patent law. As a compromise they proposed that a revised law should be enacted in respect of patents and they said that as an essential feature of such proposed revision, the Canadian patent system should be submitted to a 10-year trial period during which time a case for or against the system should be developed in a definitive and rational manner. They said that to facilitate this review they were proposing that, subject to the approval by order in council and the associated public scrutiny inherent in this political process, patentees would be required to supply such fundamental and essential information as they had in their possession which would reflect on the actual operation of the patent system in Canada.
Their basic reason for putting this case was their belief that there was not available sufficient information as to who was benefiting from the existence of a patent system because most of the relevant information as to the utilisation or otherwise of particular inventions, as to whether they were being used to the full or as to whether their use was leading to the optimum use of resources then in existence in Canada, was not available publicly but was in the hands of the people who held the patent monopoly and they alone know whether these patented inventions were being used to the full and in the best manner possible and whether the existence of such patent protection was the key determinant as to whether these inventions would be effective.
The commission were of the opinion that the only way one could reach a decision as to whether there was a need for a patent system at all, was to have a system whereby those companies who had been granted the patents would make available publicly the information which they had solely at their disposal privately. Therefore, the commission proposed that the legislation should contain specific requirements for the disclosure of all information on certain defined subjects to an authority who, at the end of a 10-year period of the operation of the legislation, would be in a position to reach a balanced decision in respect of the merits or otherwise of having a patent system. They could not do this in the situation of paucity of information then available to the public.
The commission went on to say that the essential factors which must be evaluated ultimately in determining whether the patent system should be continued included the following, and I quote:
...the extent to which the patent system actually performs as an meentive to research, disclosure and innovation; the costs entailed in the system, including costs arising through misallocation of resources and restraints on the use of new technology; and the ultimate impact and benefit to Canada arising from the participation of foreigners in our national patent system.
I might mention in that respect that it is important to note who will be likely to benefit from the new scheme of patents that we are to institute here in respect of plant varieties. If the experience of our existing legislation in relation to patents for industrial inventions is anything to go by, the bulk of the people who will be receiving patents under this legislation will not be Irish people. Of all the patents granted last year by the Patents Office here, only 2 per cent were granted to Irish inventors while the remaining 98 per cent were granted to foreign inventors. These figures represented 16 Irish patented inventions out of a total of 1,271 patented inventions. It is likely that the bulk of those who will be applying for and obtaining rights under this new legislation will be distributed on a similar basis. Perhaps not 98 per cent but a figure approaching that percentage of those who will be protected under the legislation will not be Irish people. The granting of that protection will imply that if we are to use the varieties of plants that these people will now be able to patent under our legislation, Irish users of these varieties of plants will find themselves in the position of having to pay royalties to people outside the country. At present there is not any legal requirement on them to pay such royalties but one effect of the legislation could be to create a situation in which more money would be flowing out of the country by way of royalties for the use of plant varieties than is the case at present.
However, matters are not as simple as that because it is not all that easy to go abroad and pick up a variety of plant to bring back here and begin to use without paying royalties because many of these varieties are in the possession of very large companies. The position at the moment is that if an Irish farmer, for instance, picks up a variety of barley in Sweden while on holidays in that country and wishes to bring back the plant for propagating here, the Swedes are not in a position to demand royalties from him because of our not being a member of the UPOV Convention but if this legislation were in operation, the situation would be different and an Irish farmer using Swedish grain would have to pay royalties on it. This is a situation which must be borne in mind and, like the Canadians, we must ask ourselves whether on balance the situation created by such legislation is warranted. I might mention that the situation in Canada was found to be that 95 per cent of those holding patents were not Canadian. Therefore, we are not the only country facing that difficulty.
Under the general heading of issues that had to be considered, the commission said that the other matters to be looked at were the extent to which patents supported licensing arrangements, in other words, that people wishing to use a particular invention could do so only on the basis that they paid not only a fee but a share of the profits to a foreign owner of the patent. The extent to which foreign ownership in Canada affects the decisions of industry to exploit new technology, is a question which should be answered only once details of authoritative data have been published.
If that has been the experience of patents in another country larger than ours, Canada, there are prima facie grounds for questioning whether we should create a new system of patent protection here. It is in that spirit that we on the Opposition benches approach this legislation. I do not think we have the knowledge to say we can oppose or that we do not need this legislation, but we have the right and the duty to ask certain questions which have not so far been answered. In his speech the Minister said:
Those then are the compelling reasons for this legislation—protection tion and encouragement for Irish breeding interests, and continued access to foreign varieties of importance to us agriculturally.
I would like to discuss how compelling are the reasons he cited. I will take the second reason first. He said:
Furthermore, we depend greatly on foreign varieties for our main agricultural crops such as cereals and grasses. Most of the new valuable varieties of these species are protected under the UPOV system, and until now we have been able to use them under commercial marketing arrangements involving royalties....
Up to now we have been able to get royalties although we are not a signatory to the UPOV Convention. The Minister is saying that we have been able to get them up to now but if we do not pass this legislation we will not be able to get them in future.
This convention has been in existence since 1961. If it were to be impossible to get these varieties as the Minister said, it is surprising that it has not happened so far and, on the Minister's own admission, it has not happened. He goes on to say:
However, there are grounds for concern that, in the absence of a rights system here and the legal protection which it affords, some foreign breeders may not continue to be so accommodating in allowing us the use of their varieties.
The Minister described "some foreign breeders may not continue to be so accommodating" as a compelling reason. That does not seem to be a very compelling reason because it is only a supposition about something which could have happened in the last 20 years, but which has not happened, and only may happen in the future.
The first point he made has a greater degree of substance. He said:
In recent years there has been constant pressure from Irish interests, particularly those concerned with plant breeding, that we should establish a rights system in accordance with the convention. Our own plant breeding interests certainly need protection against infringement of rights on plant varieties which they may release for export, but this presents certain problems in the absence of a rights system here which could ensure reciprocal arrangements in the spirit of the convention.
I am aware that we have been active and very successful in developing varieties of seed potato which can be propagated in warmer countries, such as Cyprus and Egypt, but there is a danger that one or two notable Irish breakthroughs in the breeding of potatoes are likely to be stolen by countries which are signatories to the UPOV Convention. For example, people have been able to walk around the fields in Egypt, pick up potatoes and bring them back to their own country—Holland—where they develop them and they will be able to use them as their own varieties. Because Ireland is not a member of the UPOV Convention there is nothing we can do to stop this happening. That argument has considerable force and is one of the reasons why I should be hesitant to oppose this legislation. I know the very great work which is being done here in potato breeding. Notwithstanding that, other questions about the general tenor of the legislation have to be answered.
The Minister's second argument about not having access to foreign varieties has not yet been proved. Where one is seeking to create a monopoly, as this Bill does, the burden of proof is on the people proposing the monopoly, not on those opposing it. In this case the Minister has not discharged the burden of proof and I believe he must do so.
I note that Ireland and Luxembourg are not yet signatories to the convention. Why is Luxembourg not a signatory? Is it simply that they have not got round to enacting legislation or do they have reservations? If so, we should have access to the information they have available to them.
Under this legislation a person who obtains a plant breeder's right will have the exclusive right to use the variety for 16 years. Does the Minister consider it necessary to give that exclusive right? As he said, these people will not only be given the right to obtain royalties from anyone who later uses these plant varieties, but they will have this exclusive right for 16 years. A person who patented a plant should be satisfied that anybody who uses that variety in the future would be required to pay a substantial amount of reasonable royalties. That should ensure a sufficient financial reward, but this Bill goes further. It says that not only does he have a right to financial reward but for 16 years he will have the right to say that he, and he alone, shall have the right to market that particular variety of plant, but that prohibition on the use of that plant applies to all countries in the UPOV Convention, and that in itself gives a right to multi-national companies, because they are the only people likely to have the ability to use that right throughout a large number of countries who adhere to UPOV.
Take the case of the exclusive right to propagate a new variety of potato. Those concerned might not have marketing arrangements with signatories to UPOV. The only way they could use their exclusive right in full would be to enter into an agreement with multi-national companies which have a marketing arm in UPOV countries. The creation of an exclusive right could only be exercised, therefore, through multi-national companies and I question whether in our legislation we should deliberately encourage such multinationalisation, if I may use the word, in this or any other business. I also question whether it would be sufficient simply to give a right to royalties to the inventor, if that is the proper description, of a new plant without also giving him a right to the exclusive use of that plant for a number of years.
The Minister did not make that case in his speech. I agree a person who invents a plant variety must invest much time and money and therefore he is entitled not only to have that time and money adequately compensated for by those who benefit from the fruits of his labour but he is entitled to a good deal extra in large royalties. Why should he get only royalties? Why should he not also get the exclusive right to use the commodity?
It seems to me there should be a situation in which a person who wishes to use a variety which has been patented by somebody should be entitled to use it if he is prepared to pay a reasonable royalty, but under this legislation, no matter how big a set of royalties you offer to somebody who has patented a variety of plant, the person can say simply: "I will not let you use it no matter how much you offer me". There is no procedure through which he can be prohibited from doing that.
There is a procedure called "compulsory licensing" which is concerned, as stated in the Explanatory Memorandum, with empowering the controller to grant compulsory licences for the propagation of a protected variety in cases where the holder of the rights imposes unreasonable conditions on persons seeking licences to use the variety or where such action is considered necessary in the public interest.
On the face of it one would have thought that that provision in section 8, by which the controller can force a person to grant the right to someone else to use the variety in certain circumstances, would be sufficient protection. But there has been sad experience in respect of compulsory licensing under our patents legislation. Our patents legislation dates from 1963 and it contains compulsory licensing procedure under which if a person has an invention and if he unreasonably refuses the right to others to use it in certain circumstances he can be sued or the controller can require him to grant a licence to someone else.
That legislation has existed since 1963 but not once has it been used. Not a single compulsory licence has been granted to anyone. I do not know why that is so but I imagine that the burden of proof that has to be carried by the person seeking ing the licence is so great that nobody has bothered and I foresee that it will be exactly the same in regard to this legislation. It will be so difficult to get a compulsory licence that nobody will bother and the situation will continue whereby people will have an exclusive monopoly for the full 16 years in regard to plant varieties, whether they are making use of them or not. I do not know whether that is a good thing.
I am seeking information about what will be done with the fees obtained by the controller of plant varieties. It seems to me that determination of whether a plant variety is new or not will be a matter for very detailed technical analysis. It will require a large input of skills which are in very limited supply in this country. If the controller has to employ seven or eight people with specific skills in regard to plant breeding in order to enforce this legislation and to ensure that individual applications will be dealt with in a serious way, it is quite likely the controller's office will absorb a large proportion of the people in this country suitably qualified for this work and that people who might otherwise be engaged in more productive activities will be absorbed in that office going through inventions submitted by people in foreign countries in order that people in those countries can get protection for their inventions in the Irish market.
Is that the best possible use of the limited number of people in this country with particular competence in plant breeding? Is putting them into an office like this the best way we could use them or should we have them out doing other work? We may be told the existing staff of the Department of Agriculture will be used, who are at present involved in plant breeding activities, that new staff will not be required. If they are to spend a lot of their time in future examining applications for patents, who will do the work they are doing now? Will that work suffer as a result of this legislation? I do not think the taxpayer should have to subsidise plant breeders' rights.
There should be no net cost to the Exchequer. The fees obtained by this office should cover the costs completely of the office. I would not accept that there would have to be a subsidy. As I have said, probably about 98 per cent of the people obtaining these patents will be foreigners. Why should the Irish taxpayer have to pay the cost of granting them protection? I know 2 per cent of the Irish people will be able to get benefits abroad as a result of getting their patents here but, on balance, this office should pay for itself.
I have already referred to section 4 (5) and asked why exclusive rights should be given rather than just rights to royalties or the system of inventors' certificates which is used in other countries as against outright patents. I wonder also why the period of protection is 15 years for most plants and 18 years for trees and vines. I know it is 15 years in some other countries which are involved in the UPOV Convention. Would we be prevented from adhering to the convention if we did not provide 15 years too? Are we satisfied that 15 years is the necessary period?
There are arguments that, given the rapid rate at which seeds can be propagated now, and the rapid turnover of new varieties, one could get one's return, and a very adequate return, from the development of a new variety of plant in far less than 15 years. It would seem that the rate at which new varieties are replacing old varieties in agriculture is so great at the moment that a new variety can replace an old variety in the space of four or five years. Deputy Donegan will know far better than I whether that is so, and he will be contributing to the debate later.
Granting protection for 15 years when a new invention might be exhausted as far as its usefulness was concerned in four or five years seems to be creating a situation in which nobody will ever use that variety, except the person who invents it. By the time the 15-year period is up, disease problems, or whatever, will have arisen in respect of that variety, and it will not be usable and nobody will want it at the end of 15 years. It seems odd to me that 15 years should be the chosen period.
I know it is 16 years in respect of industrial patents. Did we take the figure for industrial patents and transfer it to plants without regard to the different characteristics of plants as against industrial patents? Industrial inventions are not subject to disease or immunities. A new type of refrigerator does not get a particular disease which makes it unusable after a certain period. Why should we take the same period straight from the patents legislation and put it into the plant varieties legislation without regard to the very different characteristics of plants? I do not know. We were not told in the Minister's speech why he chose 15 years, and he certainly has not proved his case.
I am somewhat concerned about analogous legislation adopted by the EEC. I refer the Minister to an article in The Irish Times on Thursday, 7 December 1978 headed “EEC Threat to Vegetable Strains” in which it is claimed that the EEC have adopted legislation concerning common catalogues of agricultural and vegetable varieties and strains. It says that strains which are not listed in this common catalogue will be phased out after 1981, with penalties, including fines of up to £100, to discourage farmers and gardeners from planting them. It says that the catalogue will also name firms chosen to maintain the remaining legal varieties.
The whole idea is that, in future, you will not be able to sell a variety of potatoes, even if it is an old traditional variety, if it is not approved by the EEC. They will try to narrow down to a limited number of uniform types of varieties the plants which can be sold on the market. They will give a monopoly in respect of those individual types of plants to certain companies who will have the right to say who shall or shall not have use of those varieties.
It was claimed in the article that the result of the adoption of common catalogues in tandem with breeders' rights legislation would be to create a vice out of which individuals who wanted ted to develop individual types of plants, and use them, would not be able to escape. It would create a complete monopoly and, between the plant breeder's rights legislation and the EEC common catalogues, they would have the whole thing completely tied up. The article went on to say the result would be that the price of seeds would be likely to rise as the big companies who would have the monopoly would use their market power to ask for the highest possible price.
Even if the people in charge of the multi-national companies who would have these patents were saints—and I am not claiming that they are saints—when they knew they were the only people who had a certain variety, and that nobody else could use it without their permission, the temptation for them to jack up their price above what they would normally charge on the basis of their real costs and reasonable profits would be very great indeed. Even if they were saints, I doubt that they would charge a reasonable price. Yet we are enacting legislation which gives them the potential to charge more than the reasonable price for using a particular variety.
Concern was also expressed that the common catalogue legislation would lead to greater uniformity and that there would be a lesser number of varieties of plants in use and, if a disease developed it was more likely that it would sweep through the entire crop in the entire country and perhaps in the entire Community than it would be if there were a large variety, some of them good and some of them bad. Some of them would be resistant to whatever new disease was introduced and the entire crop would not be wiped out in the entire country. If an entire crop were wiped out there could be something like the potato famine which occurred in 1846 and 1847. One of the reasons why that potato famine occurred was that, in order to get high yields to feed the excessively large population which existed at that time, they had to concentrate on the highest yielding varieties of potatoes. The concentration on the smaller number of varieties apparently facilitated the development of blight which led to the famine.
I am not saying the plant breeders' rights legislation will lead to that sort of situation in Ireland again but, on the face of it, there are arguments that if you tend to concentrate on a smaller and smaller number of varieties, the danger of disease sweeping through the entire crop is increased. The larger the number of varieties you have, the lesser is the likelihood of this happening, because some at least of the varieties in use will probably be resistant to whatever disease is introduced.
I should like to ask the Minister if he considers that plant breeders' rights legislation is necessary at all in respect of hybrid varieties of plants. The nature of hybrid varieties is that many of them cannot re-produce themselves; some hybrid plants can re-produce but others cannot. I think barely is one. If one develops a hybrid barley it cannot reproduce. If a particular company already has the rights in respect of the parents of this hybrid and the hybrid itself cannot reproduce it seems likely—if one is using hybrids—one must go back to the person who owns the parents if one wants to produce more of the hybrid. On the face of it would seem that there is not a great need for patent protection in that situation because one cannot reproduce the hybrid anyway in a pirate fashion unless one has not only the hybrid variety but also the parents of the hybrid.
A hybrid plant is basically a sexless plant—it is like a mule—it cannot reproduce. There is no point in charging stud fees for a mule. Therefore there is not much point in having plant varieties legislation for a hybrid plant. That is the argument I am endeavouring to put to the Minister—whether he believes these mules need the protection he proposes so generously to give them. I do not know whether or not he has really met that case. I understand that a lot of varieties in use at present, if not the bulk of them, are hybrid varieties. It would not seem to me to be necessary to have plant breeders' legislation in respect of hybrids.
Another argument advanced by a number of people in favour of the legislation is that there is insufficient activity in Ireland to develop new varieties of plant specifically suited to our conditions, that what we need to do is to attract more breeders here to develop plants specifically suitable to Irish conditions. It is further advanced that, at present, because we have a rather weak plant-breeding industry here, we are left in the position in which instead of developing varieties specifically suitable to our conditions we have to borrow varieties from abroad and develop them for conditions that are not ours. The argument is further advanced that often what happens is that we take a variety which is, say, developed in Sweden, which is not suitable for Swedish conditions but which happens, simply by accident, to be suitable to ours, when we find out about it and start to propagate it here. I understand that the situation in respect of many of the varieties in use in this country is that they were developed in foreign countries, could not be used there but can be used here. The fact that the are in use here is purely accidental. They were not developed specifically for Irish conditions. Therefore, essentially we are using second best. The reason more people are not developing plant varieties specifically for Irish conditions is that if they did they would not have the protection of plant breeders' rights legislation for getting royalties and the exclusive right to use their inventions.
One of the expected results of the enactment of this Bill is that foreigners will be attracted here and, instead of breeding their plants, say, in Holland or Sweden and selling us their second best—if they happen by chance to be useful to us—they will actually come in here and breed the plants specifically for Irish conditions, when we would get better value. I have no doubt that that is a very valid argument. However, it raises the question: does this mean that plant breeding in this country—which up to now has tended to be the preserve either of the Agricultural Institute or Irish owned plant breeders—on the enactment of this Bill will lead, on the one hand, to many foreigners applying to patent inventions here and, on the other, to many more foreign companies coming in seeking to develop seeds here, thereby possibly putting the Irish seed merchants out of business by subjecting them to much more severe competition than they can withstand at present? Probably such people coming in here would have resources available to them because of their being engaged in active work in practically all of the countries at present complying with the UPOV Convention, enabling them to spread their costs over the entire market. Under the terms of this Bill they will be enabled to come in here and, by utilising money they will have made elsewhere, will be able to undercut and put Irish seed merchants out of business, taking over the entire market. Of course, they would be coming in to do something very fruitful, which we want them to do, namely, develop Irish seed varieties specifically suitable to our conditions, using their resources to do so, resources we want to see brought in here, using expertise which likewise we want to see brought in here, and which the legislation will attract, but also in the process perhaps putting Irish seedsmen out of business.
One firm with which I have had some dealings has been taken over in the last few weeks by a foreign company. Whereas it was an Irish firm a month ago it is now Dutch. I understand that this is happening at quite a rate in anticipation of the enactment of this Bill. While there is for and against, the for is that we will have perhaps more efficient plant breeding, the against is that native Irish breeding will be disadvantaged.
A situation could develop in which more and more of our seed business would be under the control of people coming in from abroad—as a result of this Bill—because it will afford them protection they would not have had heretofore. We must ask ourselves: is that a good thing? Perhaps it is not. Perhaps, if the immediate benefits are considered, when they are in the process of taking over the market they would be offering us far better value than we would be getting otherwise from existing Irish seed breeders who have not the resources available to them to serve the market sufficiently. When these new companies come in initially they will be of considerable benefit to us because they will be importing expertise we have not got at present. But it is argued that in the longer run it will be to our disadvantage because once they have established themselves in the market they will then control it, charging whatever prices they like for seeds we seek to use here. It is also argued that we will be involved in the process of facilitating the creation of a monopoly by people outside this country. We must look at the matter in that sort of long perspective. One cannot look at this Bill and say it will bring us benefits in the first two or three years and therefore we should enact it. In this type of legislation we must look ahead at least 20 years and ask ourselves what will be the situation in 20 years' time? It is quite possible that although the immediate impact of this Bill will be highly beneficial to us, in the long run it might not be all that beneficial. Indeed, there are strong arguments for looking at foreign countries to assertain whether or not those countries that have had patent legislation have benefited more than those that have not.
There is one country that does not bother with copyright legislation at all and that is Taiwan. Taiwan has one of the most dynamic economies in the world. It has a more rapid growth rate than any other country. They have been able to take inventions from anywhere, pay no royalties and flog them to the full anywhere they can sell them. When Henry Kissinger brought out his memories, which he proceeded to try to sell to the rest of the world at a high price, within a short time Taiwan brought out an edition of his book which they sold at about one-quarter of the price. They paid no royalties whatever to Henry Kissinger and were able to make a good profit for themselves in the process. It has a dynamic economy and is able to do so by not having this kind of legislation in respect of copyright. We should ask whether or not we might be able to have benefits of that kind if we had a similar position. That is open to argument. It might not work out that well, but on the other hand it might.
One result of the introduction of this legislation will be the winding down of publicly-funded plant breeding programmes. As more and more private companies enjoy the monopoly afforded by plant breeders' rights legislation more and more of them will become involved in this activity. Gradually public authorities will find that all the work they were doing is being done more efficiently by private concerns. As Governments are usually stuck for money every four or five years the immediate temptation for the Government of the day will be to say that there is no point in putting money into plant breeding operations when the work is being done by private concerns. The result will be that the entire plant breeding operation will be carried out by private concerns and there will be no publicly supported plant breeding programme. Once such a programme has been abandoned it is hard to get it back. Irish farmers would have no specific protection as far as the development of varieties here are concerned.
Foreign companies, who will probably become very dominant in the seed breeding market, will have it all their own way and be able to charge whatever price they like for the varities of plant they sell here. That would not be a desirable situation. There should be a commitment in this legislation by the Minister to maintain or increase the present level of public funding of plant breeding so as not to allow a situation where, as a result of the advantages created by this legislation for increased private plant breeding, public plant breeding programmes would be phased out. Admittedly, this is in the realm of speculation. It is like one of the two compelling reasons given by the Minister for advancing the legislation. My argument against it is no more compelling. It is something that could happen and we should have an answer to it.
Another suggestion which has been made—I do not know whether it is possible or valid—is that, instead of adhering to the UPOV Convention and enacting all the legislation which is required by the convention, we should seek some form of external association with individual countries so that if we want to get certain varieties of Dutch wheat, for example, we would enter into agreement with the Dutch whereby we would have the right to use some of their varities of wheat and in return for that they would, in respect of any use they made of varities of certain commodities we had developed, pay us royalties or give us exclusive rights to propagate or sell those varities. Rather than adopt the whole convention holus bolus without knowing where we are going we would take it on a case by case basis and where it was necessary for the development of plant breeding we would enter into agreements and seek specific protection in respect of specific varities of plant we are interested in in return for giving specific concessions to the people from whom we are seeking compensating concessions. There is power under section 2 of the Bill whereby the Minister can enter into such agreements and possibly that would cover the case. If we had such bilateral agreements in respect of individual areas of plant breeding that would afford us sufficient protection without necessarily getting into the area of plant breeders' rights legislation to cover all varities. I doubt if that argument is true. It probably would not work like that but it is an argument that has been put to me and should be answered by the Minister.
Another point I should like to make is the impact of this kind of legislation on the Third World. Whether or not this Bill is enacted it will not create a situation where any more people will or will not starve in the Third World than might otherwise do so. There are people who have questioned the whole ethos of plant breeders' rights on the grounds that they endanger the continued healthy life of people in the Third World. By adhering to this legislation, although we may not be making a material contribution to the problem, we will be lending our moral prestige as a country which is nonaligned at least in the sense that we are not part of any military bloc, and to a system which, it is argued, does not help the Third World. I should like to explain why people in the Third World have reservations about plant breeders' rights generally. The Minister should allay these fears, in justification of the convention which he is seeking to ratify, not only in so far as it applies to Ireland, but in so far as it applies to the entire world.
One argument is that by creating these monopolies in respect of the development of particular types of plants, the people who avail of these monopolies will tend to be large multi-national companies and these multi-national companies also sell fertilisers and pesticides. It is argued that they will have the temptation, first of all, to promote these varieties which will obviously have initial benefits but that conditional on their being used will be a requirement also to use pesticides and fertilisers sold by the same company. The company will not have the same incentive to develop and sell to poor countries varieties which do not require that, as well as using their seed, they must also use their fertilisers and pesticides. The result of that will be that, although in the short-run the producer in the Third World may get increased yields, he will get them at the cost of having to use far more fertilisers and pesticides imported from the same multi-national company that sold him the seed.
While in the initial period this may be very attractive and the price of the fertilisers and pesticides will be kept reasonably low by the company supplying them in order to get them hooked, so to speak, onto the use of this new variety, gradually, once the producer has become hooked and has no way but to use these particular varities because the varieties of plant he was using previously, perhaps not specifically developed at all but traditional—which did not need so much fertiliser or pesticide but which also did not give half the yield—will have died out or may not be available in sufficient quantities for propagating quickly by seed. The multi-national company will then be in a position to raise the price of their products as much as they like, since the farmer in the Third World will have no option but to continue using the varities with this dependence, because no alternative varieties without a similar dependence are available. It is argued, in respect of this legislation, that, by encouraging such an international monopoly, one will allow that sort of bind to be created for the farmer of the Third World. I do not think the enactment of this legislation here in Ireland will make much difference, one way or the other, to the growth or otherwise of international seed companies and consequently to whatever difficulties the people in the Third World face, but it is something we should consider.
It has also been said, in contradiction of that argument that, in fact, since the oil crisis, the price of fertiliser has risen considerably and the international companies have switched to developing varieties of seed which are not so dependent on fertilisers, that they do not operate in the way I have described and that they try to develop varities which will not have this requirement. Although the evidence, one way or the other, is not conclusive, this point has been raised by a number of responsible bodies here including the Irish Commission for Justice and Peace which is sponsored by the Catholic bishops. It is a point which should be answered by the Minister.
Basically, this legislation should be enacted because it is probably inevitable and necessary to allow protection to people who are breeding such plants here, but it must be enacted with sufficient safeguards. The necessary safeguards, which are not present in this Bill are, firstly, to ensure that in no circumstances will people be allowed to unreasonably continue to withhold the availability of particular varieties of plants under this legislation from people here. There must be stringent powers, with the burden of proof appropriately distributed, to allow the controller to intervene and, if he or anybody feels that someone with a patent is not making it adequately available, the controller will be able to step in quickly and do something about it. The powers will have to be far stronger than those contained in the patents legislation which manifestly has not worked. We must consider very carefully whether or not it is necessary to give, under this legislation, the exclusive right to use the plant for 15 years, whether or not that period is too long—I would argue that perhaps it should be reduced to about half that period—and, furthermore, whether or not an exclusive right should be granted at all, or whether it should be sufficient simply to allow the person who developed the variety to get royalties from it.
I would also ask that the legislation be subject to review after a period of five years and that the provisions for such a review be contained in the Bill in the form of amendments to it. In other words we would set up amendments in the legislation whereby an independent body would be established which would have the right to demand any information it thought fit in respect of the operation of the legislation during the five year trial period. At the end of that period it should be required by law to give a report to this House as to whether this legislation had worked in the manner in which it is expected it would, whether it had encouraged more plant breeding, whether, if it had done so, that had worked to the benefit or otherwise of the farming community and the community as a whole, or whether there was evidence to suggest that the protection contained in the legislation had, in fact, resulted in higher prices for plant varieties, rather than lower. At the end of that five year period, the committee which I propose should be set up would report to this House in a predetermined formal manner and the House would then decide at the end of that period whether the legislation would continue.
We should consider whether the legislation should be of limited duration rather than creating indefinite commitment to legislation. Whether that would meet the terms of the UPOV Convention is something I cannot say. It possibly would not do so. This is, however, something we should consider carefully. We do not know at present whether, on balance, this legislation will work, in the long run, to the benefit of this country. I do not believe the Minister is convinced or that most people in the country are convinced of this. They feel that, on balance, on the available evidence it is probably something we need but nobody can be sure it is something that we should have.
