I move amendment No. 9a:
In page 13, after line 52, to add the following subsection:
"(11) The Controller shall grant a compulsory licence under this section if he is satisfied that—
(a) a demand for the plant variety is not being met on reasonable terms as to price or other considerations, or
(b) that by reason of the refusal of the holder to grant an authorisation on reasonable terms the development of agricultural or commercial activities in Ireland is being unfairly prejudiced, or
(c) the terms on which the holder is prepared to offer an authorisation are more onerous than the terms being offered by him in respect of the same variety in another country, or
(d) the terms as to royalty payments imposed by the holder in respect of the grant of an authorisation are unduly burdensome on the applicant, seriously impairing his ability to compete with the holder, where the holder through prior licence royalties and profits from exploitation of the variety has more than recovered the costs allocable to Ireland of the development of the variety.".
This is another amendment which is designed to ensure that a monopoly granted under this legislation is not abused and that the compulsory licensing provision will be used. Deputy O'Keeffe asked if the Minister had experience of these compulsory licensing provisions being used elsewhere. As I said earlier, the compulsory licensing provisions under our existing patents law have not been used even though the legislation has been law since 1960. My information is that the compulsory licensing provisions in the British plant varieties legislation, which has been in operation since 1968, have not been used either. This clearly indicates that these provisions do not have much value as at present drafted.
I also asked the Minister on Second Stage to obtain information on why these compulsory licensing provisions have not been used in other countries. I would be interested to know the results of these inquiries. In the absence of satisfactory information, and we have not had it yet, it seems the provisions are ineffective.
I already pointed out that the American Farmers' Union commenting on similar legislation said they felt that since the legislation was passed the price of seeds has risen more rapidly than the cost of living and other agricultural costs. This places the onus on the Minister to prove that this legislation does not have that effect. My amendment says that the controller shall grant a compulsory licence under this section if he is satisfied that the demand for the plant variety is not being met on reasonable terms as to price or other considerations, or that the refusal of the holder to grant an authorisation on reasonable terms to the development of agricultural or commercial activities in Ireland is being unfairly prejudiced; or that the holder of the licence is behaving in an unfair fashion in that while he is offering favourable terms for the use of his variety in one country he is offering more generous terms in Ireland; or that the royalty payment imposed by the holder on people selling on his behalf, with authorisation, is so severe that it interferes with the purchasers' capacity to compete—in other words, that excessive profits are being garnered.
Lest the Minister thinks that this amendment is simply concocted out of my head or that it is something I imagined one day when I was feeling in a particularly bloody-minded mood and wanted to make life awkward for him by putting forward amendments, I would like to point out that this amendment is based on a proposed amendment to Canadian patent law which was recommended by the working party on patent law revision which reported to the Department of Consumer and Corporate Affairs in Canada in June 1976. My amendment is modelled on the Canadian amendment and therefore, is reasonably well drafted. It is not a simple invention of my mind.
The purpose of compulsory licensing is to do precisely what this amendment sets out, namely, to prevent unreasonable prices being charged, to prevent the licensing system being used as a means of imposing disadvantageous terms on this country, preventing agricultural development or leading to excessive royalties being charged to Irish people. In other words, this amendment will impose terms to ensure that the controller will grant a compulsory licence in any case where there is a need to grant such a compulsory licence in the interests of preserving, developing and protecting our agriculture. This amendment should be accepted. Again I want to point out that it is adequately drafted and would achieve what we would all like to see.