The first point I would make in relation to this Bill is that we are not obliged by EEC law to adopt this legislation. In other words, we are free to decide for ourselves as to whether we should have a Bill of this sort. One other member state, Luxembourg, has not yet enacted this type of legislation. In these circumstances, we should assess the Bill on its merits. The advantages of the Bill are twofold. First, it would enable Irish breeders of plants to be paid royalties on the sales of these plants abroad. The fact that there is not any such protection in existence is causing serious problems, especially for potato breeders who have developed some new and excellent varieties. Secondly, it would encourage foreign companies to come here and undertake plant breeding work in Irish conditions, thereby developing plants that would be suited specifically to Irish needs. This situation should attract resources from abroad in the area of plants.
Recognising these advantages, it is our intention to seek answers during the debate to some questions that we shall be putting in regard to other but less advantageous aspects of the Bill and to table amendments where necessary. However, it is not our intention to oppose the Bill at this stage but, in the light of the reaction we shall get to the amendments we shall put forward, we shall decide on what is to be our attitude to the Bill in its final form.
Basically, the Bill is giving a monopoly on the profits from the breeding of a new variety of plant to the person who devised that variety in order to encourage him to invest money and time in investigation and research in relation to the plant in anticipation of the profits he would receive afterwards. In that respect the Bill is similar to patent law, to copyright law and to trade mark law. But, internationally and especially in Canada, there are many who question the overall economic justification for this type of patent protection and who say that perhaps there are ways of rewarding an inventor without giving him an absolute exclusive right to use the results of his investigations. One example put forward is the example of inventors certificates whereby people are entitled, not to exclusive monopolies in respect of a new plant or invention, but to a right to charge reasonable royalties while allowing other people to use the invention. We should consider whether that might be a more appropriate way of providing an incentive to inventors in the plant-breeding area.
If we decide to give a monopoly, we are running three basic risks. First, a monopolist could charge in respect of a particular variety, a high rate of royalty to other people who might wish to use the fruits of the invention. Secondly, the person with the monopoly might use that situation to encourage or perhaps to force people who seek to use the variety of plant concerned to use other commodities which he produced—for instance, fertilisers and pesticides. Lastly, by virtue of his having a monopoly he might discriminate unfairly against certain categories of producers. People in the Third World in particular fear that a system of monopoly rights in the area of breeds of plants could be used to discriminate unfairly against them, to charge them higher prices than they might be charged otherwise or even to give them plants of a lesser quality than they might be given otherwise simply because of their being poor and, consequently, not having the information or the market power to enable them to demand better than they are being offered by the multi-nationals who might have the monopolies.
In order to meet these three basic objections to the Bill we shall be seeking to introduce amendments. The main area of protection that would be conferred by the Bill in regard to the abuse of monopoly power would relate to the provision in section 8 whereby a compulsory licence would be granted in an instance in which someone is either using his monopoly power unreasonably or is using it contrary to the public interest. He could be forced by reason of the terms of that provision to shed his monopoly and to allow other people to use the variety of plant in respect of which the monopoly had been enjoyed. To say the least, the grounds on which a compulsory licence can be sought are vague. They should be spelled out specifically in order to make clear the conditions in which a compulsory licence could be granted to someone to use a plant in respect of which somebody else had the monopoly already. There must be much stronger powers to ensure that compulsory licences are granted in certain circumstances and the onus of proof in respect of the non-abuse of monopoly power should rest with the monopolist and not with the person seeking a licence to use the commodity in question. It is not right that all the cards should be stacked on the side of the person who, after all, is being given a monopoly by the State.
In other countries there have been proposals put forward on the lines that I shall be following during the Committee Stage. If we can effect improvements in the compulsory licensing provisions we shall be going a long way towards remedying whatever defects there are in the Bill.
Another area in respect of which some concern has been expressed relates to the cost of the administration of the Bill. The Schedule sets out the various matters in respect of each individual application for a patent for a variety of plant which must be established in order to show that the plant is distinct from other types of plants and has not been commercialised previously in the country. It would have to be a uniform type of seed which would continue to produce the same type of seed each time it is used. These are all very difficult and technical questions in respect of any variety of plant. Consequently, the establishing of such criteria would absorb a good deal of highly-skilled staff time in examining each application. In this respect there are two questions. Will this mean that a very substantial number of staff will have to be employed in order to do the work necessary to satisfy the requirements of the legislation and will those staff be diverted from other more productive tasks such as helping farmers to develop new varieties of seed on their farms? Will such staff be removed from that sort of work in order that they might be engaged in legalistic sort of work to give certain people the monopoly in respect of plants? One can foresee the dangers both in regard to cost and in regard to the diversion of resources in this respect.
In my view the extent of the monopoly being granted is too great. Section 4 says that the person granted a monopoly in respect of a particular variety of plant shall have it for a minimum of 15 years, but there is no maximum period set. It seems unusual that a person should be given a monopoly for a minimum period and that no requirement should be inserted that at the end of, say, 20, 25 or 30 years the monopoly will cease. I should have thought it would be the other way round. This probably arises from the terms of the convention itself but, although we may be bound to the minimum of 15 years within the terms of the convention, there is nothing to stop us putting a maximum period in the Bill. I urge the Minister to set a period, say 20 years, after which the monopoly would have to be officially renewed, rather than leaving it there indefinitely.
Some numbers of the farming community expressed concern that the granting of this plant breeders rights legislation could lead to a higher price being charged for seeds sold to farmers. At the moment farmers are able to get seed without having to pay substantial royalties to the foreign companies which may have developed them. If we adopt this legislation we will be obliged by law, if we use seeds from any country which is an adherent to the convention, to pay royalties—sometimes very substantial royalties—to international companies. If higher royalties are paid to the sellers this will lead to higher prices being paid by the farmers. There must be a mechanism to ensure that these prices are not unreasonably increased. If there is evidence the person who has a monopoly power under this Bill is charging an unreasonably high price he should lose his monopoly.
Although we will be gaining some revenue from the sale of varieties, for instance potatoes, which we have developed here, on balance the net effect of the Bill may be that more royalties will be flowing out of the country than are coming in. The Minister should tell us how he sees this balance working out and he should insert a provision to ensure that the long-term effects of this legislation on the balance of payments should be assessed and the House should get a report telling exactly where the money is going and whether, as a country, we are net gainers or net losers.
I believe there is need to strengthen the powers whereby the office can require information from the person granted the plant breeders right about the prices he is charging for the seeds in respect of which he has a monopoly. It would be very wrong if a person patented a variety of seed here and was thereby entitled to charge Irish farmers substantially higher prices than those charged to farmers in England, France or any other country covered by the convention. There should be a clear understanding that he cannot discriminate against one country in favour of another.
If we are granting a patent for a particular seed we should be able to require that information about the prices being charged be given to the controller on a regular basis, every year, in respect of all countries where that seed is sold. We should also have information about the level of profits being made by the company which has the monopoly. Unless we have such information we will have no way of knowing whether the royalties received are reasonable, as is required in the provisions of the Act in regard to the granting the compulsory licences.
At the moment the provision for a compulsory licence, in the patents legislation where it already exists, has never been used in this country. That means it is not providing any protection. If this is not to happen in respect of the compulsory licence provision in this legislation, there must be a requirement that certain information be given to the controller and, through him, be made publicly available, so that people who believe, or have a hunch, that a particular seed with the protection of monopoly rights is being sold at an unreasonable price will be able to get the information necessary to prove the case and that the monopolist will be required to prove that he is not abusing the monopoly.
At the moment the burden of proof is on the person seeking the compulsory licence and very little, if any, on the person trying to defend his monopoly. The person seeking to get the monopoly overturned does not have the information necessary to prove his case because the person who has the monopoly is not obliged to disclose it. I believe there should be disclosure provisions in the Bill to ensure that anyone who has this type of monopoly must give this information so that not only can he not charge an unreasonable price for the monopoly product, but he must be seen not to charge an unreasonable price.
Concern has been expressed that this type of legislation may lead to concentration on the development of certain varieties of seeds by a small number of multinational companies and that they will allow other varieties, which may not be as productive in the short-term, to run down and perhaps to disappear completely. It has been suggested that in recent years, because of a concentration on uniform types of seed, a variety of cauliflower has become extinct. This might not seem to be a matter about which we should be very concerned but if it were happening that a variety of seed were disappearing off the map completely and we were relying on a smaller range of seed, we could run the risk of putting ourselves in a very vulnerable position. If diseases or other unforseen developments affected the varieties of seed we had, we would not be able to fall back on the traditional varieties which might have had resistance to that disease.
The development of what is known as a gene bank is very important. In other words, a reserve of all varieties, even those not now in commercial use, should be preserved in each country and, if it is found that varieties which are in common use have developed characteristics which make them no longer suitable or if diseases have developed to which they are prone, one can go back to the earlier varieties and redevelop new varieties from them which would be resistant to the diseases. That can only happen if banks of pre-existing varieties have been preserved. Hand in hand with this legislation the Government should be prepared to put money into the banks of seeds which are not in wide commercial use but which can be preserved for posterity in case they might be necessary in conditions which we cannot at the moment foresee. In the Third World there is great concern that this should be done: they are afraid that some of the new seeds being marketed progressively may not stand the test of time but that if they are adopted too widely and other existing varieties allowed to die out we will find ourselves in a worse position than we were before the new varieties were introduced.
It appears that under section 5 if one discovers a plant variety growing in the wild one may patent it and once it is patented one can become the owner of that plant. A plant discovered in the wild would appear to be public property and it does not seem right that somebody should be allowed to make a profit out of public property even if the plant had not been discovered previously. I think that would be going too far in the type of protection we are giving.
I suggest that as soon as this Bill becomes law an inquiry should be set up by the Restrictive Practices Commission to investigate how the Act has been operating and report at the end of the decade to the Minister on the way legislation has been operated by the controller. It is important that the legislation should not operate to give high profits to some people and we therefore need to have long-term investigation by an independent body.
We should also consider carefully the impact of the legislation on farmers in the Third World. I do not believe that the passage of the Bill will do much damage to the Third World, but the entire corpus of this type of legislation might give certain licence to multinational producers of seeds, fertilisers and pesticides and enable them to charge prices to people outside UPOV—most Third World countries are—which might not be fair and reasonable. We should be careful that anybody granted a monopoly under the Bill will not charge unreasonable prices to farmers in the Third World for their products.
We must try to ensure that they will develop varieties of plants which will not require massive amounts of fertilisers to achieve good returns. There is a fear that companies involved in fertiliser and pesticide production and who also produce plants may develop varieties of plants which will require enormous amounts of fertilisers. In a world in which energy costs are going up and fertiliser costs are increasing as a result, we must not allow agriculture to be dependent unnecessarily on large inputs of fertilisers. Therefore, we should try to ensure that plant breeding policy will not be dictated by people whose interests also lie in the production of fertilisers and pesticides.
I hope the Minister will be able to meet the suggestions I have made so that when we have put the Bill through Committee, and amended it where necessary, we will have a measure that will command universal approval.
