Vol. 320 No. 3
I move amendment No. 1:
In page 3, subsection (1), line 24, to delete "by the Additional Acts done" from the definition of "the Convention".
This is simply a technical amendment. The revised convention was adopted following a diplomatic conference and the definition is therefore more correctly given in the proposed amendment.
It is only a drafting matter, but could the Minister clarify the situation a little further? What is meant by the words "by the Additional Acts done"? What is the effect of those words and, secondly, what is the effect of their deletion?
The position is that UPOV have told us that this is the correct way of describing this. It is in accordance with their wishes, and they are the responsible body.
The section seems to be an amending section in the drafting.
Does it mean that the words are superfluous?
Yes, I think so.
I want to say a few words here. This section includes the words:
"variety" in relation to plants includes any clone, line, hybrid or genetic variant of any plant.
Perhaps the Minister could explain the meanings of those terms and the definitions. There is also a question here of what is reproductive material. I notice that the section includes "whole plants as well as parts of such plants, where such whole plants or parts may be used as reproductive material." I do not know that much about reproduction in the context of plant life, but there would appear to be a possibility that this definition could include, in addition to the prohibitions as to sale, items which are not intended for reproduction at all, but merely for sale—for instance, for consumption. The legislation could conceivably be interpreted as including a wider range of items. Is the Minister satisfied that the definition is clear enough? I do not know anything about plant reproduction, or whether it is possible that some items sold for consumption purposes could also be used for reproductive purposes and that prohibition might extend wider than intended.
It is only when used as propagating material that it will be recognised as reproductive material.
At the point of sale, one does not necessarily know what it is intended to be used for and it is used for a particular purpose after it is sold. I am wondering is it possible that one could use a cutting from a plant for two purposes, either, for instance, as a decoration for the house in a flower pot or as a means of reproducing plants of a similar character? You are selling these cuttings from plants which have this dual use, either ornamental or reproductive, and the prohibition applies in so far as they are intended for reproductive use but at the time of sale you do not necessarily know how they are going to be used. This is an academic point to a great extent, in that it is hardly likely that the Department are going to go around prosecuting people who are selling things as the intention would be clear as to what they are selling them for. At the same time, if a dispute were to arise and people were to introduce the defence that they were intending to sell the items only for ornamental purposes and the section was drawn as widely as it is, there might be a possible area of legal uncertainly.
It is really up to the breeder to decide whether they are used for ornament or propagation.
Take the case where I am selling parts of plants which have two possible uses in that those parts are capable of being used either to reproduce plants or for consumption, for ornament, for food or something like that. The breeder feels that I should not be allowed to sell them and he prosecutes me or complains to the——
Controller.
——Controller and I say that I do not intend to have these used for reproduction at all, yet he says that the people who buy them from me might use them for that purpose. I have no guarantee as to what the people who buy them from me are going to use them for. Presumably, his action would be against the person selling, not the person buying or using them? There should be an answer to that.
Again, this is a matter for the breeder. If the breeder finds that the plants are being used for propagation, he can take action if he wants to.
Yes, I know. He takes action against the person selling the part of the plant but the person who is selling does not use them; it is the buyer who uses them. The question whether they are being used for reproductive purposes can be determined only after they have been sold. The breeder may take an action against the seller but he can claim innocence that he does not know whether they will be used for ornamental or reproductive purposes. The seller is not commiting an offence because he is selling them innocently.
Action can be taken against the person who propagates the material rather than against the seller.
Subsection (5) deals with the question of discovery of a plant variety. I want to question the purpose of including reference to the discovery of a plant variety. I understand that basically this Bill is to provide plant breeders' rights to somebody who breeds a special plant. For instance, if somebody discovers a variety of plant in New Guinea and brings it back here, can he obtain plant breeders' rights in respect of that discovery? This is an important point. The basis on which this Bill has been promoted is that if somebody goes to the trouble of breeding a new variety he should have patent protection for that variety but if it is a question of somebody discovering a wild variety, perhaps in a Third World country, I think it is questionable whether plant breeders' rights should be given to him merely because he registered that discovery. I could envisage a situation where the woods, forests and mountains of Third World countries would be combed by western countries who are members of the international body UPOV and where the wild varieties could be registered with rights following registration of the discovery. Are we going to give plant breeders' rights to people who do that kind of thing? I would not approve of providing protection in that area.
The position is that to apply for plant breeders' rights a person would have to be in a position to submit a quantity of the reproductive material, anything from one to five kilos depending on the species. If rights were granted in respect of a wild plant, propagating material previously not available would be on sale to the public.
Is it the case that if somebody brings back a wild variety of plant from a Third World country he can establish an exclusive monopoly on that variety without having made any input into the breeding of the plant?
He would have to be in a position to submit a quantity of the reproductive material.
Is it a case that the only onus on somebody attempting to secure patent rights in respect of such a plant is that he should produce a quantity of it?
Yes, but he would have to prove that it was distinct, uniform and stable. That is one of the conditions.
Are we then in a position that the Minister wants to give plant breeder's rights to somebody who has not actually bred a plant but who has found it in the wilds merely on condition he can prove it is distinct and that he can produce a sufficient quantity? I question whether we should be party to any such arrangement. I have some fundamental reservations about this Bill but I can see the point regàrding the protection of some of our people here and our institutions who go to the expense and trouble of developing a new variety but in the case of a person who discovers a variety abroad I do not see any justification for giving him an exclusive patent on such a discovery.
The position is that if a person applies for and is subsequently granted plant breeders' rights in respect of a wild plant, all it means is that the person has rights in respect of its commercial propagation. It does not mean that others can no longer enjoy the plant. They can continue to take samples with the view to propagating it. The only thing they cannot do is to propagate it commercially. That is the important point.
Why should we give exclusive rights to somebody just because he is the first to register it? The people living in the area where the plant was discovered know about it already and use it. We may have a situation that those people may end up having to pay for the right to continue using the plant in the years afterwards. I would ask the Minister to examine this point before Report Stage. There does not seem to be justification for the inclusion of rights in the case I have mentioned.
Of course the person will have a considerable amount of expense in propagating it. It will be a long time before it will be of any commercial value to him.
I do not see that as justification to include such a person.
How much difficulty will the person have to register it, apart from getting a sufficient quantity?
The first thing the person has to do is to apply for registration and he has to prove that the plant is distinct, stable and uniform. Then he has to try to get people to buy it. In that process he will be involved in a considerable amount of expense and it will be some years before it is of any commercial value.
Does he have to get people to buy it before registration?
Yes.
He will have it registered and he will have a monopoly created before he gets somebody to buy it but that is not an argument for saying he has to go to great difficulty before registering it. Frankly, I am not happy with the idea that it is correct to create a monopoly of something that is naturally occurring in the wilds. As Deputy O'Keeffe rightly said, this has probably been discovered thousands of times before by other people living in the area but because they are not aware of the address of the controller of plant breeders' rights and possibly cannot read, they are not capable of acquiring an international monopoly in the matter but somebody from the western world, who is well up on plant breeders' law can come along and do no more than the local people have done as far as discovering is concerned—indeed the people resident in the Third World may know a lot more about the qualities of the plant than somebody coming in from another culture—but this person coming from another culture simply uplifts it, takes it away and has it registered in one of the UPOV countries which are the major trading countries in the world and he then has protection. If the person in the Third World wants to propagate that plant and sell it within the UPOV countries he will be prevented from doing so because of the monopoly acquired by the other person.
Possibly where material is discovered in the wilds, even though it may have no immediate use, I imagine that such shrewd people would apply for a monopoly and get it straight away in a whole range of plants which they may have no immediate intention of using so that they will be covered against any eventuality. If the particular plant becomes useful subsequently they will have the monopoly. I know the Minister will say that if they are not using it somebody can apply for a compulsory licence but the experience has been that these licences are not used. I have some reservations about the idea of wild plants being subject to a monopoly. Could the Minister tell us if we have to allow wild plants specifically to be capable of becoming a monopoly in order to comply with the terms of the UPOV Convention?
The position is that rights granted also carry with them duties. If rights are abused the Bill provides protection in the public interest in the form of compulsory licences so that if somebody has been granted a plant breeder's licence, certain conditions are laid down. He has to prove that the plant is distinct and uniform. I think there are sufficient provisions there to protect everybody.
This is a matter that has to be solved. Are we really saying in this Bill that in regard to any variety of any type of seed, that once somebody decides to develop that seed—take Midas barley—and decides to work on that and produces a very perfect sample and puts it on the market, that prevents somebody else, even within the State, from doing the same thing? That would be a very dangerous situation?
Yes, the position is that the first person Deputy Hegarty mentioned has gone to the trouble of getting plant breeders' rights and has taken on the responsibility of producing that particular variety. Then nobody else can get those rights.
This could lend itself to some complications in the future. Take green peas. It may well be that in the south of Ireland we may be endeavouring to do something to prevent mildew. You might have somebody in France working on the same variety but with altogether different ideas, breeding towards a larger pea output and better tonnages. Suppose our institute or a private company is spending a great deal of money to produce a product, a new product, something we have been working on in our cereal stations, a completely new product but bred for a purpose, for the control of mildew which is the big problem in the coastal areas. The man in France is working on exactly the same material but with a different aim. He does not care about mildew which does not affect him. Does it mean that if he is out before us with his product we are prevented from putting ours on the market?
If the person who is producing the pea abroad is producing the same type of pea as the Deputy's friend in Cork, the man who is in first gets the rights. That is established patents law.
That could have very serious consequences for people involved in that type of operation in Ireland. Take feeding barley. We had some French experts here and they are breeding varieties that have not proved at all successful here. Even over the winter they have caused all sorts of problems with disease and so on. It now seems as if our breeders of winter barley in future will have to go on different lines from their colleagues in France. I am talking of new winter varieties which have been disastrous to date. Does this mean that in the case of Powers of Waterford and people who are now prepared to spend millions of pounds literally in producing something for the Irish market, for our foggy winters and so on, if the other people are on the market before them all their work is in vain? In other words, we may not breed to meet a certain type of situation. If this is the case I would oppose the Bill. The effect would be disastrous.
So long as it is different from what is already promoted in France there is nothing to stop us from going ahead. It has to be distinct. That is the important point.
We would be working on pioneering varieties but we would be working towards a different end. Probably we would be varying the crosses.
The important thing is that we do not have to buy their variety if we can produce a variety more suitable for our country and climate.
That is the point I am trying to get at. If we take their varieties and do something with them—
You do not have to.
But we may have to because of their high yielding genetic qualities. We will have to take their varieties—that is the point—if we are talking about four ton yields in the future.
Am I correct in thinking that the answer to this problem is to be found in the First Schedule to the Bill where distinctness is defined? The question really is whether it can be established that the variety Deputy Hegarty is concerned about is distinct within the terms of this Schedule which says:
1. (1) The plant variety to which the application relates must be clearly distinguishable by one or more morphological, physiological or other important characteristics from any other plant variety whose existence is a matter of common knowledge at the time when the application is made. The distinguishing characteristics must in all cases be capable both of precise description and of recognition.
As the Deputy said, this matter could more relevantly be discussed on the First Schedule.
We should stop the Bill at this stage.
The question really is whether breeding winter barley for mildew resistance, for instance, would give more clearly distinguishable morphological, physiological or other important characteristics. The terms "morphological" and "physiological" relate to the texture of the plant and they might be the same. The question is whether disease resistance would be in the category of other important characteristics on which one could base a claim that this is a distinct variety. The point that Deputy Hegarty has raised is of such importance that the Minister should give us a clear indication whether what he has in mind comes within the criteria of distinctness set out in the Schedule.
We could use the French variety to breed a new variety. Section 4(7) of the Bill states:
(7) The permission of a holder shall not be required for the use of the relevant plant variety either as an initial source of variation for the creation of new plant varieties or for the sole purpose of producing a crop for human or animal consumption.
I do not think that we have anything to worry about.
Would what we call a variety bred as being resistant to one disease to which the existing material was not resistant be a distinct variety within the meaning of the section? That is the key issue.
I accept that it is.
Does the Minister say it would?
It would. The question of whether a variety is separate or distinct would be taken by the controller on technical opinion. He would have an opportunity of deciding whether that variety is distinct.
We are making the law. The controller will be bound by the law. He can have any technical opinion he likes but the law determines his decision. If the law is not clear enough to say that this characteristic would be covered he might have a problem. If, for instance, it had been presumed that this is so but others in the interpretation of the words "other important characteristics" did not allow disease resistance to be one of the things to be covered, he would have great difficulty if we did not examine it in order to get over the problem. We should get something into the Bill to cover this.
The Minister knows well that we are talking here about people who are about to spend a lot of money. We could be talking about millions of pounds literally in some cases. Nobody in the commercial game, semi-State or otherwise, is going to attempt anything unless it is quite clear at the end of the day that the product is going to be saleable and even then the game is a gamble. People could spend a lot of money and still end up with nothing. It is a risky operation for commercial people to undertake and we should not put anything in their way. They have plenty of problems already. I can say from my small experience of growing some new varieties that they have been frustrated because the thing turned out to be so hopeless and they spent a lot of money. We should not cause any problem to them. Everything we do today while this Bill is in the House should be to help the genuine operator to produce the right article. Anything we do should not be of any hindrance to these operators.
I find myself very confused by some of the issues that have been raised here and Deputy Hegarty as a working farmer has put his finger on the very serious aspects from the agricultural point of view. Many other aspects in this Bill give rise to a lot of concern on the part of many people and it is clear that the Bill itself is very complex. Even the definition referred to in the First Schedule, "morphological, physiological or other important characteristics" is difficult for somebody who is not a botanist or a scientist to understand and I find it difficult to understand what is there. Would the Minister consider as a solid, constructive suggestion that this Bill on Committee Stage would be referred to a select committee of this House and that select Committee could examine and tease out all these issues and could call before them experts of different viewpoints who have an interest in this Bill and examine on it? I am suggesting seriously to the Minister that unless we take that step, now we will be letting through this house complex legislation which will not be understood fully by all Members of this House, which will not be tested fully and which we will regret in the years to come. This is an unusual suggestion which I am making to the Minister, but this is an unusual Bill. I am asking him to think it over and to consult with his colleagues. We have been sitting here for the last three-quarters of an hour trying to tease out words, get explanations and solve the problems. Without following this suggestion we could be here till Kingdom come and not have the matter solved. I am making the suggestion to the House and to the Minister that the Government establish a select committee to examine this Bill closely in Committee and that they would have the power to call before them witnesses or anybody else interested in the Bill so that it could be examined.
