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Dáil Éireann debate -
Wednesday, 21 Oct 1998

Vol. 495 No. 5

Plant Varieties (Proprietary Rights) (Amendment) Bill, 1997: Report and Final Stages.

I move amendment No. 1:

In page 6, between lines 7 and 8, to insert the following:

"(2) Plant breeders' rights shall not apply to a variety containing a terminator system, where the inclusion of such a system inhibits the use of seed defined under the ‘farm saved seed exemption' referred to in section 19(1)(d) of the Plant Varieties (Proprietary Rights) (Amendment) Act, 1998.".

The seed industry worldwide accounts for about $40 billion in sales annually. The commercial value of seed used by farmers globally has been estimated at between $60 billion and $75 billion. The difference in these values is due to the widespread farm practice known as plant back or farmers' privilege. Farmers often plant seed saved from a previous year's harvest for next year's production instead of purchasing certified seed from a seed company.

This practice is particularly common in the major field crops of high commercial value such as wheat and soya bean. To a lesser extent, it is common in some production regions for cotton and for potatoes in this country. Because these crops are over-pollinated parent plants transfer traits uniformly through seed to the progeny plants. Thus, for these crops, as long as the farmer is satisfied at the performance of the previous year's crop, there is a limited incentive to purchase seed.

Generally, the price of over-pollinated seed is a small premium over the commodity value of this seed. The premium is based on the cost of cleaning and conditioning the seed plus a charge to offset breeding of improved varieties. Only the hybrid crops, where progeny segregate into nonuniform populations with varying traits relative to their parent plants, is a practice of plant back selection found. The yield loss associated with these dissimilar field populations eliminates any economic incentive to plant with saved seed. However, with the onset of the new terminator gene technology, companies can prevent second generation progeny from the non-hybrid seed germinating. The economic climate of this new technology must also be noted. It comes at a time when many of the larger seed companies are being acquired by major multi-national agrochemical companies. The recent multi-million pound takeover by Monsanto of Delta and Pine Land See Company, producing an agribusiness giant which wholly controls the new seed sterilising technology is worrying. Again, it is not the science but the economic appliance of the science which caused major concern.

We have a unique opportunity to strengthen our farmer privilege as outlined in section 19 and to include this proposed amendment so as to legislate for this terminator technology, which was commercially announced on 11 May this year. The many areas and sections of gene technology must be legislated for in a case by case fashion. In this case, the amendment outlined will, in a forward thinking manner, allow for such effective legislation.

Recently, the director general of CIMMYT in Mexico, an international maize and wheat improved centre which develops sustainable maize and wheat systems for the poor countries, announced in Ottawa that this centre would refuse to use terminator technology. Since this organisation is the world's premier maize and wheat developer, it must at least raise questions over this technology's effect on farmers' privilege.

This newly patented technique that genetically alters seed so that it will not germinate if replanted a second time could jeopardise the food security of 1.4 billion people as these resource poor farmers in the southern hemisphere depend on farm saved seed. These farmers are responsible for feeding between 15 per cent and 20 per cent of the world's population.

Unlike hybrid seeds introduced earlier this century, the terminator technology brings to date relatively little agroeconomic benefits to the farmer. It is simply a mechanism to physically reduce the frequency of plant back practices and hence tighten up loss making in the market. This amendment will ensure farmers are guaranteed their rights to farm saved seed under section 19 of the Bill. Section 19 allows farmers to use for prorogation on their own holdings seed obtained from crops harvested on that farm. Without the protection of this amendment which copperfastens this right in relation to terminator gene technology, section 19 will be defunct because the use of terminator technology in plants, exempted under ministerial order, will stop the seed from producing a second crop.

Terminator technology is a powerful tool to control the propagation and reproduction of any crop. The principle of the Bill is to balance the rights of the breeder with that of the farmer to use farm saved seed. I remind the Minister of the historical background to the farm saved seed section. The right of the farmer to save seed to grow a second crop is historically based in threat of famine. It allowed the farmer to grow this subsequent crop to stave off starvation and ensure the survival of his family. Today, we do not have that risk in Ireland; but there is such a risk in other parts of the world and while this legislation will not impact outside this country, it will set down a principle in the Statute Book and leave the door open for less developed countries to follow suit. For a country which has prided itself on helping others facing famine, it would strengthen that position.

I draw the Minister's attention to the goal of genetic engineering in food production, which is to ensure food is produced cheaply and in large quantities to avoid the recurrence of famine. Genetic engineering claims to feed the world, but terminator technology in this situation may end up controlling food production.

Another aspect to this matter is nearer to home. Companies with this technology can hold farmers to ransom in relation to what they can charge for this seed. A copperfastened farm seed guarantee gives the farmer a bargaining chip to negotiate a more realistic price for his seed. At present in the US, one of the biggest seed producers in the world, Monsanto, is negotiating with the US Government for sole rights to the terminator gene technology patent. If this happens, we can be sure that this company will introduce this technology in all its seed products.

I am aware of the need for the introduction of terminator genes in genetically engineered plants as this prevents their proliferation in the environment. However, without the amendment section 19, which allows farmers to use farm safe seed, will be obsolete in the future. From speaking to officials in the Department, I have been informed that, following legal advice from the Office of the Attorney General, the Government does not intend to accept the amendment.

I wish to highlight a number of points in that regard. First, the UPOV Convention was signed in 1991. At that stage terminator gene technology was not an issue because people did not know about it. Second, the amendment does not conflict with the UPOV Convention or Council regulations as neither of them prohibit the inclusion of such an amendment and both allow for the inclusion of a farm safe seed exemption. This exemption is worthless without the amendment. Will the Minister clarify the legal advice he received? Did it state that the breeder has an overriding right over that of the farmer or do both have equal rights? The amendment would only secure farmers' rights to farm safe seed and has no additional implications.

Under Article 6 of the EU Directive on Biotechnology, genetic engineering inventions can be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality. This Article gives the Minister scope to accept the amendment on the grounds of morality. Nobody would believe that it is morally right to have control of seed production in the hands of a small number of multinational companies.

Many countries and humanitarian organisations in the EU and elsewhere are now realising the full implications of this technology. The Dutch Parliament recently moved to oppose the European patent directive by appealing it to the European Court of Justice. The terminator patent was one of the key issues that prompted it to renew its objections to the patent directive. Rural Advancement Foundation International has launched an international campaign to stop negotiations between the US Government and a subsidiary of Monsanto regarding the rights to the terminator gene patent.

I urge the Minister to accept the amendment and leave power in the hands of farmers, not solely in the hands of a small number of multi-national companies. The amendment guarantees farm safe seed for farmers. This legislation which has been debated on a number of occasions will be obsolete in the future because multinational companies will not need it to protect their rights. They will have terminator technology which will inhibit the reproduction of plants for a second and subsequent generations. Without the amendment the Bill will be completely obsolete in a number of years because of terminator gene technology.

It is crucial to set a precedent and to state that we are not willing to let multinational companies dictate to farmers what they can or cannot do. Genetic engineering is supposed to be of benefit to farmers and consumers. However, the way this technology is used in the future will create the opposite effect and control seed production worldwide. This is of immense concern to many countries which have poorly developed economies. I ask the Minister to reconsider the amendment and accept it because it is a crucial issue. The amendment foresees the problems which will arise in the future in relation to the legislation. I urge the Minister to accept the amendment.

Will the Minister clarify the advice given by the Attorney General? Given the detailed discussion on this matter, I do not understand why the amendment would not be accepted. As Deputy Naughten said, it will not affect the current position, but it will be necessary in the future. I have learned much about terminator technology recently and the more I hear about it, the more afraid of it I become.

I initially understood that terminator technology was not a blunt instrument. However, a crop of barley, corn, wheat or oats is only given one year to grow and dies after that. It cannot be used the second year. This is a frightening concept and we as legislators must take a close look at it. I do not understand why the amendment cannot be accepted. It gives a clear signal regarding developments in plant technology. It is likely that similar debates will take place in parliaments around the world over the next few years. I do not understand why the Minister cannot accept the amendment given the circumstances.

It would be a good provision, unless I am missing something. I understand Deputy Naughten has discussed it at great length with departmental officials and we are grateful for their co-operation. However, given the circumstances, I do not understand why the amendment cannot be accepted. It is a fundamental aspect of the legislation. The Bill initially appeared to be innocent, but anything relating to plant breeding technology is far from straightforward. There is no valid reason for not accepting the amendment in its current format.

I support the points made by my colleagues. If the amendment is not accepted, multinational companies will be in a position to interfere with the usual reproduction of seeds the following year. Companies will attempt to tie up the market for certain seeds. For generations, farmers and those involved in husbandry have resown seeds and future developments will be a total interference with the natural cycle of nature for commercial reasons. If there is a good variety of seeds and a company can tie them up and ensure that they cannot regenerate the next year, only that company can supply more seed the following year. This is contrary to natural justice and the law of nature. Why is this possible?

Undoubtedly, farmers and gardeners should have the option of regenerating from safe seed. If it starts with one variety and continues with others, there is a great danger that certain crops would be exclusively controlled by the company using the terminator gene technology. It has more far reaching consequences than suggested by the Bill and I am glad our spokespersons have highlighted this serious possibility.

Deputy Naughten is correct to argue that terminator gene technology will make farmers more dependent on multinationals. However, gene technology in general will make farmers more dependent on these companies. This was the argument I put forward when we last discussed this issue in the House. Perhaps there would be more common ground between Fine Gael and the Green Party if Deputy Naughten also made this argument.

Cost reduction is the perceived benefit of genetically engineered crops, either as a result of higher yield or the reduced use of herbicides and pesticides. However, this theory is flawed for a number of reasons. In a number of countries, revenue for farmers using genetically engineered crops fell when compared to conventional crops. US farmers using genetically engineered soya beans are obliged to pay a technology fee and a premium seed price to Monsanto, the controversial company conducting sugar beet trials in Ireland. Contracts in the US stipulate that farmers use Monsanto's brand of weedkiller. This illustrates that, in general, gene technology makes farmers more dependent on multinationals. I urge Deputy Naughten to extend his argument. He is correct when he speaks about terminator genes, but we must examine the entire issue of gene technology and recognise the dangers it entails.

Deputies Naughten and Connaughton have pointed out that debates are taking place worldwide. People in Britain are rightly seeking a three year moratorium. The British Government has reneged on a pre-election promise to introduce such a measure.

Another U-turn.

Instead, it has published a document which outlines the benefits of gene technology. The British Government has now embraced companies such as Monsanto and other multinationals who have been given carte blanche to do what they like in Ireland. The net effect will be to ruin our image abroad. We are still seen as a green country with a clean environment. I do not know if this is true but that is our international image. We are in danger of losing a unique opportunity to promote organic agriculture. If this amendment is not accepted we are getting nearer to the point where our image will be gone forever.

I thank Deputies Naughten and Connaughton for their comments about the officials who met them and discussed this matter. However, having given serious consideration to this amendment and sought the advice of the Attorney General's office, the amendment cannot be incorporated into the Bill. Plant breeders enjoy comprehensive rights under the International Convention for the Protection of New Varieties of Plants, UPOV, agreed on 19 March 1991. Under Council Regulation 2100/94, which came into operation in April 1995, those rights constitute a Community plant variety right. The use of farm saved seed is not a right but a limited derogation from the Community plant variety right. Ireland has an international obligation to implement plant breeders' rights but this amendment would abrogate that right in order to protect the derogation. The State has not authority to do so.

The primary purpose of the UPOV Convention is the protection of the rights of the plant breeders, thereby establishing the identity of a variety's inventor and the protection of the plant breeder's exclusive right to reproduce and sell reproductive material of the variety, and to authorise others to do so. Article 5 of the UPOV convention is clear. There shall apply to the plant breeder's rights no conditions for protection other than those specified. No provision is made for the exclusion of a variety with a terminator gene.

The use by farmers of farm saved seed is an optional exception under the convention from the plant breeder's right. The option is exercised in Ireland under the authority of Article 14 of Council Regulation 2100/94 on Community plant variety rights, which prescribes the conditions on which the derogation may be given effect. It does not include the exclusion of varieties containing terminator genes as among the conditions to give rise to the derogation on the use of farm saved seed. The derogation finds expression in section 19 of the Bill, which includes the use by a farmer of farm saved seed among the acts exempted from the requirement of an authorisation from the plant breeder.

This amendment would authorise taking away the rights of the plant breeder in order to protect farmers from having to purchase new seed each year. This conflicts with international obligations and Ireland is not permitted to legislate in this manner. The UPOV and EU agreements must be implemented as they stand.

Article 5 of the UPOV Convention does not reach decisions on whether a variety is good or bad, but only on whether it is distinct from other varieties and is sufficiently uniform and stable. Other legal regulations decide whether a variety may or may not be marketed. Varieties of agricultural crops cannot be marketed in the EU unless it can be shown that they have value in cultivation and use, VCU. I have no doubt that the emerging issues relating to new technology in the plant world will be fully examined and debated at political and technical level within international and EU fora.

Deputies Naughten and Connaughton asked for the comments of the Attorney General. In summary, he said that the amendment is antiUPOV and EU legislation. The right is accorded to the breeder and the use of farm saved seed is a limited derogation from that right. EU marketing directives may be the venue to prevent the sale of varieties which include the terminator gene. That would seem the way forward.

Deputy Naughten also referred to the rights of the breeder and the farmer being equal. They are not equal. The breeder is accorded the right; the farmer's privilege is a derogation from that right. The conditions of the derogation are detailed in Article 14 of the EU legislation on breeders' rights. They cover up to about 37 acres of land from derogation. Otherwise farmers have to pay. That is the case with all rights, such as music rights. We have to respect the rights of other countries and inventors. I was surprised that Deputy Naughten used the word "morality". I acknowledge his expertise but he knows that we will get nowhere if research and development, and the cost of such work, are not protected.

I thank the Minister for his reply. He is correct to state that we have to examine the issue of the funding of research and development which is vitally important for the development of agriculture. However, we must ensure that farmers also have rights. I accept that Minister's assertion that farmers only have derogations in this legislation and that the overwhelming right belongs to breeders. However, breeders should not have all of the rights while farmers are only given a small derogation.

This amendment will not affect breeders' rights but will underline the rights of farmers to this derogation. I am sure the officials will agree this is the only implication of this amendment. I am not trying to deny the rights of breeders. We are only discussing one aspect of this issue — terminator technology. This legislation does not define a new plant or species by including a terminator gene. We are not affecting the rights of breeders but trying to protect the farmers' derogation.

I accept we have missed the boat on this matter but I urge the Department to go back to the European Commission on it. We must address this serious issue now, not when it is too late.

Is the Deputy replying now because two other Deputies are offering to come in?

I am replying to the Minister.

The Deputy may speak for two minutes now and may make a full reply later.

On a point of order, if the Deputy is replying now, it excludes other Deputies from speaking.

That is correct. Perhaps Deputy Naughten should resume his seat and I will call on him to make a full reply later.

The Minister said that research and development is necessary, which of course it is. I point again to the nuclear industry analogy as I have often compared that industry to the gene technology one. If one compares the levels of research and development carried out in the nuclear industry, one will note that the advertising budget of Sellafield alone is far greater than the research and development budget into alternative energy sources. The research and development budgets of Monsanto and the multinational, Novatis, are absolutely gigantic compared to the research and development budget into organic agriculture. I agree that research and development is necessary but let us carry out research and development into organic agriculture rather than pouring vast amounts of money into gene technology. Deputy Naughten used the word "immoral"——

"Morality" was the word he used.

We are talking about issues of morality here. The terminator gene technology is immoral in my view. When we talk about patenting the bio-wealth of the Third World, we are talking about total suppression of farmers there, not to mention farmers in Ireland. Agriculture is now being sucked into huge conglomerates and farming has become a huge agri-business. More and more farmers are finding it difficult to make ends meet as they are becoming more and more dependent on huge multinationals.

The Minister referred to the UPOV Convention and spoke about Ireland's international obligations. We are entering a post-political and postdemocratic age because we find that the multilateral agreement on investment, GATT and so on supercede our best efforts in this House.

Does the right to impose a termination gene only attach to a completely new variety of seed or can this multinational company eventually take over other varieties and attach the same rights to them? That would be an extremely serious development. How did this multinational company get the right to apply a termination gene in this variety which means that farmers cannot save seed and re-sow again?

This certainly is a moral issue. Our Lord told the parable of the farmer sowing seed, some of which fell among the rocks and briars and failed to germinate. In the light of modern technology a new line could be added, namely, that some seed fell into the hands of the multinationals and was not allowed to germinate. It is very serious if one company can tie up the right to insert a termination gene into a plant variety and prevent anyone else from repropagating it. Is the right confined to one new plant variety or are the powers more widespread?

This issue is something which Ireland has signed up to and must pass legislation on. The rights conferred will apply equally to Irish people who bring seed outside the country. The seed potato industry has great potential in Ireland; the Deputy will be aware that farmers in north Connacht are moving into that area. The terminator system can be inserted into any variety which meets the criteria of being distinct, uniform and stable.

That is even more serious than I thought.

We must look at the wider picture. Huge research and development is being carried out in this area and we must respect the right of the breeder to continue to recover the cost of such research and continue carrying it out. I welcome the Deputy's biblical reference but we must consider the other types of research and development which are ongoing throughout the country. The Deputy will be aware that a huge amount of research and development is carried out in the computer industry in Galway. The rights and protection of such research and development must be paid for through the price of the product. Otherwise, it will not be possible to continue carrying it out.

If this were a new invention, I would allow people every right to protect it.

These measures are being implemented in order to produce better crops which will be more profitable for the farmer. Rights are available under international law to everybody who invents something and those rights must be protected.

These measures will not be more profitable for farmers.

We have discussed morals and morality in the Chamber this morning so at least we have done something useful. The Minister referred to international obligations. The Dutch Parliament has opposed the European Patent Directive because of the implications of terminator gene technology. We must take a stand on this issue in Ireland too and the Minister has the opportunity to do that.

This measure will have serious implications for many small farmers. At present potato and grain producers can sow up to 40 hectares of land and re-use the seed the following year. That gives small producers the opportunity to make some money. With the new terminator technology, their right to do that will be prohibited. We must look at the issues involved and seek to achieve a balance between the rights of the breeder and those of the farmer. The farmer has only one derogation in this regard and it should be cemented into the legislation. The only way that can be done is through acceptance of this amendment. I urge the Minister to reconsider his decision on this crucial issue which will arise again and again.

Amendment put.
The Dáil divided: Tá, 46; Níl, 63.

  • Barnes, Monica.
  • McCormack, Pádraic.
  • Barrett, Seán.
  • McGahon, Brendan.
  • Bell, Michael.
  • McGinley, Dinny.
  • Belton, Louis.
  • Mitchell, Gay.
  • Boylan, Andrew.
  • Mitchell, Jim.
  • Browne, John (Carlow-Kilkenny).
  • Mitchell, Olivia.
  • Burke, Ulick.
  • Naughten, Denis.
  • Connaughton, Paul.
  • Noonan, Michael.
  • Cosgrave, Michael.
  • Ó Caoláin, Caoimhghín.
  • Creed, Michael.
  • O'Sullivan, Jan.
  • Currie, Austin.
  • Penrose, William.
  • D'Arcy, Michael.
  • Perry, John.
  • Deasy, Austin.
  • Rabbitte, Pat.
  • Deenihan, Jimmy.
  • Reynolds, Gerard.
  • Dukes, Alan.
  • Ring, Michael.
  • Durkan, Bernard.
  • Sargent, Trevor.
  • Farrelly, John.
  • Shatter, Alan.
  • Ferris, Michael.
  • Shortall, Róisín.
  • Finucane, Michael.
  • Spring, Dick.
  • Fitzgerald, Frances.
  • Stagg, Emmet.
  • Gilmore, Eamon.
  • Upton, Pat.
  • Gormley, John.
  • Wall, Jack.
  • Higgins, Jim.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Hanafin, Mary.
  • Ahern, Dermot.
  • Harney, Mary.
  • Ahern, Michael.
  • Haughey, Seán.
  • Ahern, Noel.
  • Jacob, Joe.
  • Ardagh, Seán.
  • Keaveney, Cecilia.
  • Aylward, Liam.
  • Kelleher, Billy.
  • Brady, Johnny.
  • Kenneally, Brendan.
  • Brady, Martin.
  • Killeen, Tony.
  • Brennan, Matt.
  • Kirk, Séamus.
  • Briscoe, Ben.
  • Kitt, Michael.
  • Byrne, Hugh.
  • Kitt, Tom.
  • Carey, Pat.
  • Lawlor, Liam.
  • Collins, Michael.
  • Lenihan, Brian.
  • Coughlan, Mary.
  • Lenihan, Conor.
  • Cowen, Brian.
  • McCreevy, Charlie.
  • Cullen, Martin.
  • McDaid, James.
  • Daly, Brendan.
  • McGuinness, John.
  • Davern, Noel.
  • Moffatt, Thomas.
  • Dempsey, Noel.
  • Molloy, Robert.
  • Doherty, Seán.
  • Moloney, John.
  • Ellis, John.
  • Moynihan, Michael.
  • Fleming, Seán.
  • Ó Cuív, Éamon.
  • Foley, Denis.
  • O'Dea, Willie.
  • Fox, Mildred.
  • O'Donnell, Liz.
  • O'Donoghue, John.
  • Ryan, Eoin.
  • O'Flynn, Noel.
  • Smith, Brendan.
  • O'Hanlon, Rory.
  • Treacy, Noel.
  • O'Keeffe, Ned.
  • Wade, Eddie.
  • O'Malley, Desmond.
  • Wallace, Mary.
  • Power, Seán.
  • Walsh, Joe.
  • Roche, Dick.
  • Woods, Michael.
  • Wright, G. V.
Tellers: Tá, Deputies Barrett and Stagg; Níl, Deputies Power and D. Ahern.
Amendment declared lost.
Agreed to take Fifth Stage now.
Bill reported without amendment, received for final consideration and passed.

I thank the Minister and his officials for the patience they have shown during the passage of this Bill through the House.

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