The Minister is not here.
Plant Varieties (Proprietary Rights) Bill, 1979: Committee Stage (Resumed).
Question again proposed: "That section 1, as amended, stand part of the Bill."
We can go ahead. I am a practical farmer, you know.
I noticed before progress was reported that the Taoiseach was interested in the points being made. Because of the great complexity of this Bill and the points so far raised on Committee Stage, it seems clear that the Bill should go to a Special Committee of the House so that every aspect of it could be teased out with the committee members being able to get a full and informed opinion on its terms. I will be making suggestions to the Minister that the Bill be sent to such a committee who could examine all its implications and who could call before them people who could give their expert advice and opinions on the effects of the Bill. Many people outside have indicated much concern about the provisions of the Bill.
Is the Deputy suggesting that the Bill be sent to a Select Committee on one or more of its Stages?
I suggest that this be done immediately because the way in which we are dealing with it is not the most suitable way. Here we had not the opportunity to get evidence or advice and suggestions from people outside who are interested in the Bill.
I appreciate Deputy O'Keeffe's difficulties with the Bill. This is, indeed, a complex piece of legislation but I suggest that it is no more complex than many other Bills brought into the House during the Opposition time in Government. There is nothing in this Bill which is not already included in the legislation enacted by the other 12 UPOV countries. The Bill attempts, as I outlined in my speech on Second Stage, to set up an organisation which, while granting rights to breeders, will ensure that those rights are not abused and that breeders granted rights do not act against the public interest. While the Bill itself may appear complex, the work which it sets out to do is relatively simple. What we are doing here is adding a further dimension to our patent law—a dimension, I might add, which exists in most developed countries.
Even though there might be difficulties in sorting out some of the technical details of the Bill, with a little bit of patience we can overcome any problems that might arise and deal with them satisfactorily here in the House.
I take it that the Minister does not accept my suggestion and that he feels that the best way to deal with the Bill is in the format in which it is now before the House?
I think so, yes.
I accept the Minister's decision but express some disappointment with it. There are very broad implications to this Bill, apart from the technical angles. Outside advice would be helpful from those involved in the plant breeding field, farmers, and those involved in the Third World situation, many of whom could offer very informed views on the Bill and the different provisions in it. Such advice would be very helpful to us in coming to a final decision on it. I must express my disappointment that the Minister has not accepted my suggestion. One should bear in mind that, not just in this country but in the other countries in UPOV, similar discussions did take place. There were people in the United States Department of Agriculture who expressed reservations on the Bill and there was a strong lobby in Canada on a similar type Bill before the House. Not to carry on this point much longer, it perhaps goes beyond the terms of this Bill and indicates that the whole procedure of the House on legislation is becoming more complex and might need to be looked at from the point of view of having more informed legislation.
The Deputy has discussed that point sufficiently. There is no need for further discussion on it. We shall proceed now to discuss section 1, as amended.
I understand that we are now beyond the stage of referring this back to anybody, and must forge ahead with this Bill. Certainly, it would not be my idea to hold up this legislation. It is long overdue. If we are to encourage plant breeders into the game of experimentation and into spending a lot of money, this Bill is a matter of extreme urgency. The Minister has not had time to look at a few questions raised. However, he might clarify an aspect with which I am not happy. We might be doing something here, with an idea in mind, with a genus or species and someone else in another country might, unknown to us, be doing exactly the same thing with a different end in view. We might find that our product could not be marketed. There is that bit of uncertainty about the Bill. If two independent authorities in their own different ways were to work on a new variety, if one person comes out with his variety at 5 p.m. on Friday evening and the other at 9 a.m. on Monday morning, all the work of the second person is in vain. That seems to be an aspect of the Bill. I see no reason why both groups of people, if they produce a first-class article, cannot both be entitled to breeders' rights.
Again, we are working under the rules of UPOV. There is nothing in this Bill which is contrary to these regulations. We are merely complying with the regulations laid down under this convention which has been adopted by the other European countries which are members of UPOV. There is nothing to worry about.
I accept what Deputy Hegarty is saying, that it will be hard luck on somebody whose variety comes out a little later than sombody else's and who does not get plant rights, but we are in an international convention. Naturally enough, there will be competition for our Irish breeders; that has to be accepted. As far as I can see from my study of the Bill, there is no real danger at all to Irish breeders. We can accept this convention. In fact it will be an advantage to the country in the long term and an advantage to our plant breeders to have this legislation.
The Minister did not answer some questions that he was asked earlier, including some of mine. I asked him to explain the meaning of the terms in the definition of a variety. I asked him if the extension of the protection of the legislation to varieties of plants discovered in the wild is necessary under the UPOV convention. I also asked him, as did Deputy Hegarty, to make it quite clear that breeding a plant, which in every other respect was similar, to resist a particular disease, would be creating a new and distinct variety within the meaning of the legislation and that that would be seen as giving protection to that new development, not preventing it from being marketed by virtue of the fact that a previous person had a patent for a variety of seed which was in every other respect similar but did not have the disease-resistant characteristics of the new plant. In fairness to the House, the Minister should answer these questions specifically at this stage.
The problem here is perhaps with the definition of the word "distinct". Indeed, I would have no objection to widening the definition, if it makes it easier to understand. Deputy Hegarty was concerned about the variety Midas which might be more disease-resistant than another variety. The position here is that if anybody can produce a variety which is more disease-resistant than, say, a variety which has been produced in France, that variety will certainly have different characteristics and will be deemed to be a new variety.
On a point of order, this is precisely what I want to hear. Does that mean that if our colleagues, say in Scotland, are doing work on a different tangent on the one species that we are operating on here——
That is correct.
——and using different methods, our variety, having emerged as a new and wonderful barley which is now disease free will be recognised as such?
Of course it will.
Even though we are using the same parent stock as is being used in Scotland?
There will be no problem at all about that. If you can produce a variety which is disease resistant, it will certainly be distinct. We do not have to mention Midas or any other variety. That is just one. There are about 200 EEC varieties, I believe. There are about 23 different varieties of barley, on our national catalogue, perhaps six on a short list which are recommended as the principal varieties. That is the position. If Deputy Hegarty, or anybody else for that matter, can produce a variety which is disease-resistant, that is acceptable.
Regarding plants discovered in the wild, this legislation is necessary under UPOV. What we are doing here is merely complying with regulations laid down. It is not a very important matter but may be of benefit to the country commercially if somebody takes up a variety from the wilds and develops it. It could be very useful. We are merely trying to comply with UPOV regulations in doing this.
I find it hard to understand how the Minister can argue that we are required by the UPOV convention to include protection for plants grown in the wilds and which have been growing in the wilds for some years, and which are discovered by someone who patents them. They may have been discovered many thousands of times before by someone who did not patent them. The only new element is the fact that somebody who has discovered the plants has patented them. I find it difficult to accept the Minister's contention that we are required under UPOV convention to extend this protection to wild plants. I have the convention here. It is entitled "International convention for the protection of new varieties of plants". A wild plant that has been in existence is not a new plant. The convention does not say it is for the protection of plants, merely for the protection of new varieties of plants. Article 1 of the convention states:
The purpose of this Convention is to recognise and to ensure to the breeder of a new plant variety or to his successors in title, both hereinafter referred to as the breeder, a right under the conditions hereinafter defined.
The convention specifies that what is involved is a new variety of plant and protection is given to the breeder. Discovering a plant in the wild is not breeding. I cannot see how the protection of the UPOV convention can be extended to wild plants within the understanding of the terms of the relevant article.
If somebody gets a plant breeder's rights in respect of a variety of plant that has been discovered in the wild, that could be, and I am sure it would be, of commercial value to the country at some stage. In order to get those rights the breeder would have to have spent a considerable amount of money on the undertaking and he would have had to satisfy certain conditions laid down by the controller. The plant must be distinct from any other variety in existence. Unless the person can fulfil the necessary conditions he cannot get plant breeder's rights. This is the practice in other countries who have adopted the UPOV convention and generally the reason we are trying to do it under this legislation is to be in line with those other countries.
I do not want to be difficult about this. Probably there is a reasonable explanation for what the Minister is proposing but it should be put on record. My reading of the convention is that it is concerned with new varieties of plants and giving protection to breeders. Discovering a plant in the wild does not mean that it is a new variety and the person who discovers it is not a breeder. If the Minister is contending that protection for wild plants must be included in the Bill because of the UPOV Convention, I do not think he has a sound basis for so doing. On the face of it the UPOV Convention does not extend to wild plants. If the Minister is arguing that we need to give protection to people who discover wild plants, that is a different ball game. Perhaps he has a case, but it should be argued separately.
There is also the possibility that useful varieties long used by people in the country of origin may be registered here, possibly by a multi-national company, without any compensation to people in the area who may even have discovered the plants themselves and who have been using them. There might be the situation that ultimately the plants would be re-exported on the basis of royalty payments to the countries of origin. While we are concerned with protecting our own people here, at the same time we must not exploit a Third World country where the plant originated. If there is no requirement in the UPOV Convention to provide protection for discovered varieties, I do not think the Minister should provide such protection here.
The Chair would like to point out that we are dealing with the interpretation section of the Bill. There has been much discussion on hypothetical matters, of what might or might not happen if and when the Bill becomes an Act. There are 24 sections in the Bill and there is ample scope for discussion on them rather than discussing all matters on the interpretation section which usually deals only with definition.
The interpretation section defines the scope of the Bill.
Discussions on what might or might not happen in different matters later on is not relevant here.
Perhaps the Minister has an answer?
I do not know why Deputy Bruton and Deputy O'Keeffe are so worried. The position is that a wild plant is not a variety that has been described before; so, in effect, it is a new variety. The other countries party to the UPOV Convention have the same options. We are merely trying to dovetail our legislation to comply with what is happening in other countries. That is as far as I can go on the matter.
Is the Minister saying we need to put in this provision about wild plants in order to comply with the UPOV Convention?
I am saying other countries have the same option as this country has if they want to use it.
Is it the case that we are not required under the UPOV Convention to have this provision?
I suppose we are not required to do so, but in such a case we are not giving support to our people——
Our people are not going to New Guinea to get plants.
The Chair would like to draw the attention of Deputies to subsection (5).
That is what we are talking about.
Interpretations should be self-explanatory. The Chair thinks we are having a lot of irrelevant discussion on the interpretation section.
We are trying to get an answer to our question.
Are Deputies advocating the deletion of wild plants from the Bill?
The Minister is proposing the inclusion of wild plants, apparently on the grounds that that is necessary to comply with the UPOV Convention. It is up to him to justify the inclusion of wild plants. It is not for us to advocate either the removal or the inclusion of the provision. The Minister has not yet given us in my view an adequate justification. He has not established that it is necessary for compliance with UPOV. The only reference to the actual text of the UPOV Convention has been made by myself and it would seem to suggest that it is not necessary. The Minister has not said yes it is, or no it is not necessary. If he does not know I am surprised that he has not got categoric advice on the subject. He should have such advice. I believe it is not right to enable people to get a monopoly in something growing wild, which the Lord gave us, just because the person who allegedly discovered it knows how to get a patent while the people who have been using it for years do not know. Suddenly the "discoverer" has a monopoly and is charging a royalty for propagating the plant if people need to buy the plant from him.
I note that subsection (5) not only says "a plant variety growing in the wild or occurring as a genetic variant, whether such variant is artificially induced or not". Presumably that means whether it is in the wild or not, so that in fact this means that if there is any plant growing anywhere that has not yet had a patent granted under this legislation, it is possible to apply for a patent for it. It does not even have to be a wild plant because of the alternative "wild or occurring as a genetic variant". That is really going too far and if the Minister proposes to go that far he should be able to justify it.
The position is that if you do not include this in the Bill you are depriving your own nationals of rights that the other UPOV countries have. This is covered by UPOV in their definition of distinct. On page 44, article 6, section (a) states:
Whatever may be the origin, artificial or natural of the initial variation from which it has resulted the variety must be clearly distinguishable by one or more important characteristics from any other variety whose existence is a matter of common knowledge at the time when protection is applied for.
It goes on to say that the breeders shall benefit from the protection provided for in this convention when the following conditions are satisfied, and it sets out those conditions.
But that is in respect of its origin. The wild plant does not have an origin: it is extant already. What the Minister has read applies to some new varieties developed from wild plants. We would all accept that protection should be given to new varieties developed from and having their origin in wild plants but we object to giving protection to something that is already there before the discoverer or developer comes along, such as wild plants or plants already in use but not patented in respect of which the discoverer does no breeding.
I cannot give any further explanation.
This leads to another aspect of the matter, that those who have not scientific qualifications find difficulty in knowing exactly the scope of some of these provisions and indeed of the convention. It is important that we know the terms of reference in dealing with this Bill. Could the Minister explain the distinction or difference between the various items mentioned under the definition of variety? What is the distinction between a clone, a line, a hybrid and a genetic variant? Could the Minister clarify that definition?
A clone is cutting; a line is an inbred and a hybrid is a cross of two or more lines or varieties and a genetic variant is a mutant.
Thank you.
I am not satisfied with the answer the Minister has given about the inclusion of wild plants in subsection (5). The provision seems to go too far. The Minister says it is necessary to give the protection to Irish people that other people abroad have, presumably implying that it is not necessary within the terms of UPOV. Nothing that he has read from the UPOV Convention so far proves that it is necessary to protect people who discover wild plants. Is the Minister suggesting that people might discover wild plants here and want to patent them or that Irish people might discover wild plants abroad and want to patent them? Is it that which makes this necessary?
Yes, if you do not have it you can deprive your own nationals of a right that other UPOV members have. They certainly can patent those plants if they find them.
I think the best thing is to say that I intend to put down an amendment for Report Stage to remove this provision. Perhaps between now and then the Minister will investigate the matter further. I should like him to consider particularly the danger that this sort of provision might be used to pick up material in Third World countries, occurring in the wilds where people do not have the legal knowledge or the legal instruments to get a monopoly although they have been using these plants for years. Irish people could avail of this section to get protection not only in Ireland but in all UPOV countries for that wild variety which really was not new in anything beyond the legal sense determined by legislation. In that way Irish companies could be involved in exploitation of people in the Third World. I should like the Minister to investigate that to see if he could give us an assurance that such is not the case. That would be our main consideration.
I should like the Minister also to consider that it is highly unlikely, almost improbable, that any Irish person here would seek that kind of protection, that any person in this country would bring back a plant from New Guinea or anywhere in the Third World and seek protection here. The likelihood is that it is the major multi-nationals who are gaining more and more control in the world of plant varieties and who are the people to whom we are gratuitously offering protection, a protection apparently which we do not even have to offer under the UPOV Convention. I should strongly urge the Minister to look into that further.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I think this allows the Minister to agree to conventions of all sorts, not just the UPOV Convention. I wonder at the wisdom of giving carte blanche to the Minister to adhere to any international convention or agreement for the protection of plant varieties or plant breeders' rights. Would it not be more appropriate, if there is a new convention, to come back here with the legislation? It would probably be a very brief Bill, considering that all the basic work has been done in this Bill, saying “We further ratify and incorporate into our legislation the following provisions arising from the new convention”. This would be preferable to giving the Minister this right by use of an order under subsection (5) to adhere to a convention. The US Senate guard very jealously their treaty-making power in the US Constitution. So far as the making of treaties is concerned here, we in the Dáil should protect our rights and not delegate them to any executive member to bring into our substantive law as well as simply to ratify the provisions of international treaties.
Perhaps I could make one point. I do not accept personally a view which has been represented to me as held by some people concerned with the Third World, that rather than adhere to the UPOV Convention, which is a multi-national one, where we need varieties from some country and cannot get them because the people in that country will not let them in here because they will not have protection, we should enter into some sort of bilateral agreement with those countries to give that protection to them without getting involved in the entire mechanism of UPOV where people can come in and evade our legislation. Whether it is in our interest that we should do so, it has been suggested that the Minister has powers under this legislation to enter into bilateral arrangements with individual countries rather than get into UPOV. Has the Minister considered this possibility? Probably he is right to ratify UPOV, nonetheless people concerned about this other option should have an answer from him.
Yes, the House can be assured that no treaties and so forth will be entered into lightly. It would be impracticable to take up the time of the House on all such occasions. The proposal would make implementation of the legislation increasingly restrictive. We have worked on this arrangement before when we did not have the legislation proposed here today. We had arrangements with individual countries, but now that this legislation is being introduced consultations will be mainly with UPOV countries in blocks.
Have we had bilateral arrangements with some countries already?
With breeders only.
Not with countries?
No.
The answer to my objection might be to change the procedure here whereby the orders may be made. At the moment if the Minister is proposing to adhere to a particular convention he is not required to have it discussed in the House under the Bill. All he is required to do is lay the order before the House and, unless some Deputy decides to put down a motion to annul the order which contains the ratification and implementation of the treaty, it is never discussed. Perhaps the appropriate way of meeting this case which I am making, where we are entering into an international agreement, would be to amend section 26 to require that the orders must be approved positively by the House before they take effect. I ask the Minister to consider that matter between now and Report Stage.
I am sure that we can consider this. We will follow the usual practice carried out under previous legislation. We can consider the amending of section 26 if that is necessary. It may not be.
I appreciate that every little order being made would not require this. It might not be appropriate to have every order made under the Bill requiring this positive approval, but where we are entering into an international agreement—we will not be doing this very often and UPOV has been amended only once or twice—the orders we would be proposing to have approved in this way would not be frequent, perhaps one in ten years. It would not be any harm to let the House affirmatively agree to them. In giving occasion for debates in the House it would also provide an opportunity for Deputies to review this legislation and see how it has worked in practice and whether it has turned out as well as was hoped.
I do not think that there will be any problem in that area. It might be a good thing to review the situation after a certain time.
Question put and agreed to.
SECTION 3.
I move amendment No. 2:
In page 6, subsection (9), lines 20 to 25, to delete paragraph (a) and substitute the following:
"(a) The Minister may, with the consent of the Minister for the Public Service, as soon as may be make and carry out according to its terms a scheme for the granting of a pension, gratuity or other allowance to or in respect of persons to whom this subsection applies, who are required by their conditions of appointment to devote the whole of their working time to the duties of the office of Controller, on their ceasing to hold the office of Controller.".
The proposed amendment makes provision for remuneration of a person appointed as controller who is employed full time in that capacity. The original section did not make it sufficiently clear that the superannuation arrangements apply to a person employed full time as controller. Part-time service is not normally reckonable for superannuation purposes in the public service.
Will the office of controller be filled by open public competition?
Yes, it will probably be done by somebody working in the Department.
If that is the case it would not be by open public competition. If it is to be an officer of the Minister who is going to be appointed to the job, it will be only somebody working in the office of the Minister who will be capable of applying for the job. Members of the public who might be equally well qualified scientifically would be precluded from applying. If that is so, I would be doubtful about its wisdom.
It would naturally fall in line with what the general seed workers do in the Department. If the Minister wished he could have somebody appointed from outside the Department.
If this is to be a part-time job it is probably a good idea to use an officer of the Department for the purpose as there is no point in appointing somebody from outside who will have no other function and would be wasting a lot of his day. But if it is a full-time job it would be more appropriate to appoint a qualified person through open competition. Where it is intended to hold an open competition it is usually specified in legislation that the post will be filled from an open competition. I remember having a long argument in respect of the post of Director of Consumer Affairs and at that time Deputy O'Malley was pressing from these benches that the post be filled from an open competition. That is the way it should be done; it should not be confined to any class of people.
If the position is to be permanent, perhaps open competition is the best way to fill it in the same way as we fill other appointments in the Civil Service. This will not create any problem, but at the start perhaps the people best qualified to do the job are the people already in the Department who are involved in this kind of work.
Are we on amendment No. 2?
We are on section 3.
We are speaking on the section at the moment but we should dispose of the amendments first.
Amendment agreed to.
I move amendment No. 3:
In page 6, subsection (9), between lines 36 and 37, to insert the following new paragraph:
"(e) No pension, gratuity or other allowance shall be granted to the Controller nor shall any other arrangement be entered into for the provision of a pension, gratuity or other allowance on his ceasing to hold office, other than in accordance with a scheme submitted and approved of under this section."
This is an addition to the subsection and it precludes any superannuation arrangements for the controller other than those in accordance with a scheme submitted and approved of under this section.
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
Will this be a full-time post?
Initially it will not be a full-time post.
Would it be appropriate to provide in the section that if it becomes a full-time post it will then be open to public competition?
It is not very likely to be a full-time post for a long number of years and it would not merit the appointment of a full-time officer as there would not be enough work for him.
If that is the case I accept that it is best not to have an open competition. Is there any proposal to create something similar to the European patent in respect of plants? The European patent people, instead of having to apply to all of the individual patent officers for protection for an invention in all member states, can apply direct to the office in Munich and once they are approved there they automatically get protection from all of the states in the convention area. I signed this convention on behalf of Ireland in 1976 and I just wonder if there is any proposal to extend such a system in respect of plant varieties.
This is being discussed at the moment by UPOV and there is a possibility that that may emerge.
That would tend to terminate the life of the controller here and it certainly diminishes his importance.
It would make his job much easier.
Much less significant too.
Question put and agreed to.
SECTION 4.
I move amendment No. 4:
In page 8, subsection (5) (a), line 10, to delete "for reproduction or propagation".
The words it is proposed to delete are superfluous. Reproductive materials sold as such are subject to plant breeders rights. Seeds sold simply to produce a crop for human or animal consumption is excluded in subsection (7).
Will the Minister explain that a bit more?
The amendment in page 8, subsection (5) (a), line 10, deletes "for reproduction or propagation".
The purpose of the amendment is basically to restrict the amount of protection granted?
Yes.
Amendment agreed to.
I move amendment No. 5
In page 8, subsection (5) (d), lines 17 and 18, to delete "and to attach to any such authorisation such conditions as the holder may specify".
The amendment is considered necessary and desirable because the breeder's right to assign conditions to the authorisation is provided for and in more detail in subsection (6).
Amendment agreed to.
I move amendment No. 6:
In page 9, subsection (10), line 29, to delete "plants of other".
This amendment is simply to improve the drafting of the subsection. The words it is proposed to delete are considered superfluous and the intent of the subsection is not changed in any way.
Amendment agreed to.
I move amendment No. 7:
In page 9, subsection (13), line 52, to insert "of a variety" after "material".
The amendment is necessary in order to make it clear that the proviso to article 2 of the First Schedule applies to a variety rather than to plants or materials.
Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."
This section is in a sense the nub of the Bill. It not only gives the person who gets protection under the Bill the right to demand royalties from anyone who uses the variety but it goes much further. It gives him exclusive rights to market it himself. There is a strong case for saying this is going too far.
I can understand that a person should be able to get some financial return for the tremendous financial investment put into developing the new variety. The concept which allows a person simply to get royalties, but not to have the further right of saying that he alone shall have a monopoly for using it, is known as the inventor's certificate. Under the inventor's certificate system, which is used in a number of countries, the inventor of a new plant variety or some mechanical contrivance is entitled to get royalties on any sales of the item, but he is not entitled to be the only person who can market the invention.
So far as I see, under this section the holder of the invention will have the exclusive right to produce the seeds in question, or to sell, or offer for sale, or to export or import the material. Even on paying generous royalties to the person in question, on one would have the right to sell, or offer for sale, or export the item unless he gets permission. I can see very readily why it is necessary to have some provision so that the inventor can get some financial return for the development of the item. I do not quite see why it is necessary to confer a total monopoly in respect of not only the royalties but also the use of the item.
In the past when somebody had the patent rights of a particularly good spray and one importer retained to himself the marketing of that spray, the price went out of all proportion. When an importer of sprays got a monopoly of a particular spray which was vital to the farming economy, he could charge the earth for it. I see no justification for that situation arising here. Some clever importer could be working hand in hand with a person who might be a plant breeder from overseas. He could get hold of the rights and because the variety of barley, or what have you, was capable of yielding that bit extra, he could charge the limit.
This year some of us who are obliged to grow basic seeds find that we have to pay £450 per ton for seed as against £220, which would be the normal price. That is fair enough. That is something we have to accept because of the difficulty in producing the seed at first. If a person is growing basic seed, and probably does not get a whole lot more for his product, and is prepared to pay that amount to stay in a particular line of farming, he could be charged the earth if there were not that bit of competition to which Deputy Bruton referred.
So far as I can see, the granting of exclusive protection is required under the UPOV Convention. To that degree my criticisms are directed not solely at the Bill but perhaps at the terms of the convention which may go too far in granting protection. At the same time, we are being asked as a sovereign state to consider this for the first time and it is only right that we should ask that question. I note from the relevant article of the UPOV Convention, Article 5, that the right which the breeder must be granted shall be the right that his prior authorisation will be required for production purposes of commercial marketing, offering for sale, or the marketing of the reproductive or vegetable propagating material. It goes on to say that a member state may, if it wishes, in its law grant more extensive rights than those.
The provisions in our legislation go somewhat beyond the provisions in the UPOV Convention in one respect. Subsection (5) (c) provides that, in the case of a plant variety which is an ornamental plant variety, the prior authorisation of the holder of the right shall be necessary to propagate the variety in the course of commercially producing ornamental plants or cut flowers. I wonder whether that prior authorisation is necessary. I understand that right is not required in respect of other than ornamental plants and that people are entitled to propagate a variety without prior permission. That may be so. I am wondering why it is necessary to insert subsection (5) (c) as it does not seem to be contained in the UPOV Convention.
Section 4 is a major section whose main provisions empower the controller to grant proprietary rights called plant breeders' rights in respect of any botanic species prescribed by regulations. It is the intention, initially, to apply the Act to the principal agricultural crop species used in Ireland—wheat, oats, barley, rye, grass, potatoes, white clover—and to extend these species as far as possible over the years as required by the convention.
There is a time limit on the rights granted. Generally the duration of the rights is such as to be just about sufficient to give the breeder a fair and reasonable return for his work. We know that some varieties have a relatively short life. This is mainly what is involved here.
We very much appreciate this. The precise purpose of the Bill is that the breeder should get remuneration for his investment. The problem I see is that he should not be allowed to deal with one customer, as it were, in a particular country. If he decides, as has happened in the past in the case of sprays, to deal with one customer exclusively, an abuse can arise. That customer, in turn, can charge the limit. If the breeder were obliged to supply the trade here, then one would have the obvious element of competition.
The safeguard is the compulsory licence. If the breeder abuses his privilege in any way, the controller has the option of issuing a compulsory licence and laying down the conditions. I do not think any plant breeder would like to see that happen. It certainly would not be in his best interests. It is a very safe weapon to have. If he is not fulfilling his obligations, the controller has this option of issuing the compulsory licence to someone else.
I wish to raise a few points on this crucial section. In the granting of plant breeders' rights referred to in subsection (1), what is the position in regard to rights which have been granted in other countries to a particular variety? When we set up a register here, will all the rights granted in other countries be automatically recognised here or will the breeders need to reapply here? Will anybody who wants to apply here to register a variety, perhaps a home breeder, be stopped from getting the protection of this legislation if there is a prior registration in any other country which is a signatory to the UPOV Convention?
This is covered in the First Schedule. The position is that if a plant is registered in another country we could not register it as a new plant.
Does this indicate that there is some kind of international register? Would an Irish breeder who developed a type of potato be stopped from getting rights under this legislation if somebody in Holland had already registered that variety?
Yes, It would have to be distinct from the other variety.
I am trying to cover the possibility of piracy. There does not seem to be any requirement under this Bill or under the UPOV Convention that somebody should prove that he or she developed that variety. Say somebody in Ireland produced a special variety of potato, if somebody in Holland pirated that variety and registered it there, will the Irish breeder be stopped from registering it here and getting protection? I am raising an international question. Do we have to recognise all varieties which have been registered in other countries who are signatories to the UPOV Convention and who have ratified it and set up their own registers?
The answer here is common knowledge. If it is new as far as common knowledge is concerned, then it is a new variety and could be given rights, but if it is registered it cannot be given rights here.
Does the Minister not see an opening here for uisce faoi thalamh? It appears that an applicant for registration need not prove that he actually developed the variety. There does not seem to be any protection against piracy of varieties from people who breed here or in other countries.
This would be covered by section 5 (a) which states:
that the applicant is the person who bred or discovered the plant variety to which the application relates, or the successor in title of such person, or a person to whom the right to make an application under this section as regards such plant variety has been duly assigned.
It is covered very clearly there.
How far can one go with this situation? Will the applicant need to provide proof that he developed a variety here which was registered in Holland by somebody else?
We are introducing this legislation to give protection to that type of person.
Will the applicant be required to prove his bona fides? I am thinking now of piracy——
I can understand that.
——and the protection which may exist in other UPOV countries which could deny people here their rights in the future, if we have to recognise all varieties registered on the UPOV registers.
They would have to recognise ours as well.
We do not have one at the moment.
One of the many purposes of the Bill is to protect the genuine operator from the fly-by-night. If the Bill does not do that, then we are wasting our time. The major genuine Irish breeders are crying out for this Bill. The Minister might let me know if this is correct. I believe the genuine people in the business make known to the relevant agricultural authorities what they are doing. They tell their agricultural authorities the type of varieties they are using if they are introducing a new hybrid, and the various Departments of Agriculture are in close contact with each other on these matters. As far as the genuine breeder is concerned, there is no danger of anybody stealing another person's seed potatoes and trying to persuade all and sundry that he produced them.
When I was chairman of the Sugar Beet Growers Association we were taken on a visit to Sweden and freely shown their seeds. We could have filled our pockets with seeds if we wanted to, for all the good that would have done. I believe there is a very strict code between reputable seed breeders. Is that a fact?
We are trying to protect the genuine producers. That is the purpose of this legislation. At the moment we have certain rights under UPOV because they realise we are putting this legislation through the Houses and we have consulted with them. We have certain rights but we have no firm control over what might happen to our breeders and this legislation is intended to give us that control. We have no interest in the fly-by-nights. Consultation has taken place on this subject with the other UPOV countries and we are merely trying to dovetail the legislation into the type of legislation in existence in those other countries and which they are allowing us to be party to until such time as we have our own legislation.
Is the procedure to be that when this legislation is enacted applications will be made in respect of all the varieties that have been registered in other countries or do we automatically recognise everything that has been registered in each of the other UPOV countries to date?
The people concerned could apply to be registered in this country is they so wished.
This is a very important point in terms particularly of the scope of the register. I am sure that in the 12 to 15 years since the terms of the convention have been in operation a huge number of items have been registered. Is the Minister sure that the people who hold these patents would have to apply for registration here?
That is so. They would have to apply here to have their rights registered here. Only those people who would be selling their plants on a commercial basis would be interested in applying for registration here and I do not think there would be a great number of those but they would be entitled to apply for registration if they wished to secure royalties and so on.
In this country?
Yes.
What Deputy O'Keeffe seems to be concerned about is the type of situation in which an Irish person may be working on the development of a plant but where, by fair means or foul, somebody else manages to get a sample of that plant and rushes off to another country, say, South Africa, to have it registered. Subsequently, if the Irish person who had been developing the plant, wished to have it registered in South Africa, would be not be prevented from doing so by reason of the fact that it had been registered already by somebody else? Deputy Hegarty made the point about there being a kind of informal code of practice between these countries but there is the possibility that there will be people who will not adhere to any code of practice which does not have the force of law. Would it be possible to provide that somebody who is developing a plant could apply after four or five years for protection by way of giving formal notice to the controller that the plant was in the process of development? Such procedure might prevent somebody else from getting ahead of him. So far as I can ascertain from reading the Schedule the relevant constraint is previous commercialisation, that one cannot get protection for something which has been sold either in the State or in a country or territory other than the State. I am sure somebody has thought of this point before. We are not all that original but we should have answers, if possible, to the questions I have raised.
While the Minister is thinking about that I should like to refer back to the question I asked at the outset. This was whether we should not have agreed simply to a system of inventors' certificates whereby all the inventor is entitled to are royalties and not necessarily the exclusive right to market the product, a system which leads to abuse in the area of pricing. If we are bound to ratify the convention we should ask simultaneously the Restrictive Practices Commission, under the 1972 Act, to investigate the operation of this legislation in order to ensure that the exclusive right granted under the legislation is not used in any case to charge higher prices for a product than would be charged if the exclusive right had not been granted.
One of my regrets is that during my term as Parliamentary Secretary in the then Department of Industry and Commerce, I did not ask the Restrictive Practices Commission to examine the whole corpus of patent legislation in order to ascertain whether it was being used to charge prices greater than the prices which would be charged if there were not the monopoly, exclusive rights situation but merely a right-to-royalties situation. I would ask the Minister to right that situation now and to request the Restrictive Practices Commission to carry out such an investigation.
The points raised by Deputy Bruton are covered mainly in paragraphs (a) and (b) of subsection (1) of section 5 which provide that the application must satisfy the following conditions:
(a) that the applicant is the person who bred or discovered the plant variety to which the application relates, or the successor in title of such person, or a person to whom the right to make an application under this section as regards such plant variety has been duly assigned.
(b) that the plant variety to which the application relates satisfies each of the conditions contained in the First Schedule to this Act and is named in accordance with regulations under section 12 of this Act which are for the time being in force.
In short, in order for a breeder to have his product registered in, say, South Africa, he would have to satisfy the controller that he himself had bred the plant.
That is the point. The normal plant-breeding process is a 12-to-13 year job and if it can be established that a person had been engaged in the breeding process in respect of any plant for that period of time, we should be happy about his registration.
Does the same apply in the legislation of other countries in which the UPOV convention has been adopted and ratified? I am advised that there are some differences in respect of Acts which have been put through in other countries. While one bears in mind the possibility of multi-nationals and others applying and registering here if we are to have this type of legislation at all I would be concerned that the question of piracy of an Irish product be prevented in other countries. If somebody was registered or about to be registered here and an application was lodged in Holland or South Africa about the same time is the Minister satisfied that the same kind of proof would be needed to entitle that person to registration in that other country?
The same type of proof would apply. There would have to be uniformity between all countries covered under this convention.
The controller's office would have to be a substantial one and the controller would have to have a lot of scientific expertise available together with catalogues and a library. Can the Minister give any indication as to the type of fee that might be the order of the day? What charges are made in other countries?
The question of the fee will be dealt with under section 25. The controller will have an important and onerous task. All the facilities required will be made available in the line of technical advice or catalogues to enable the controller to do his job.
There are references in the different subsections to periods of time during which the protection will run, 18 years for one type and 15 years for another, and there are references in some cases to maximum terms and in others to minimum terms. What is the position in other countries which are covered by the UPOV Convention? What are the terms of this order?
We must accept the UPOV minimum. The maximum is a matter for ourselves to establish.
What is the minimum specified by the UPOV convention?
The minimum is 15 and 18 years.
Are we taking 15 and 18 years as being the minimum and the maximum?
No. We can fix the maximum ourselves but we must accept the UPOV minimum. It is 15 for some varieties and 18 for others.
Will the maximum term be settled by way of regulation?
Yes.
Bearing in mind that the Minister is establishing legal proprietary rights for people I should like to know if the Minister gave any consideration to establishing maximum terms in the Bill beyond which a plant breeder could not go? One is creating a monopoly situation and leaving the situation open. We are specifying a minimum term of years for such a monopoly but not specifying any maximum term. It seems dangerous to have the protection period so open-ended.
We cannot fix a maximum period so easily because certain plant varieties will need different periods as applies at present in UPOV countries. It would not be safe for us to lay down any specified maximum period in the Bill. When that is fixed by regulation I am sure each case will be dealt with on its merits as it arises.
I asked the Minister about inventors' certificates, rather than exclusive rights, as a possibility and I should be obliged if he would deal with that matter. I am aware that the UPOV Convention is based on the idea of exclusive rights and that we could not have inventors certificates and still adhere to that Convention but the Minister should tell us why it is necessary to go as far as giving the person who develops a plant the exclusive right to market it, sell it and not just have the right to royalties.
The main point is that he has responsibilities also. The breeder is responsible for maintaining his variety and must ensure that the variety is at all times multiplied so that it retains its essential characteristics.
How is that assured? What checking is carried out on whether a person is maintaining the variety?
If he is not complying with the regulations the controller would have the power to issue a compulsory licence. That is the main control over plant breeders. They would not wish that a compulsory licence be issued against them and for that reason they would be very careful.
Are we compelled by UPOV not to provide a maximum period for perfection?
No. We are not compelled but it would be difficult to set a maximum period because different plants need different periods of years.
Will the controller set maximum periods or will he give open-ended grants?
I expect the controller will set maximum periods in respect of each variety.
Is that not at variance with what the Minister told me earlier? I understood he would be introducing regulations to specify the maximum period.
The maximum period will be fixed by regulations.
Would the controller set a figure on the certificate of the granting of the proprietary rights which would be at or more than the minimum period and up to a maximum set by regulations?
Yes.
Question put and agreed to.
SECTION 5.
I move amendment No. 8:
In page 10, subsection (1) (b), lines 33 to 35, to delete "and is named in accordance with regulations under section 12 of this Act which are for the time being in force".
The part of the subsection which it is proposed to delete is considered superfluous. The obligations and so on concerned with naming of varieties are covered in section 12. It is not necessary to refer to them specifically in this section.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
It occurs to me that in respect of an application there should be some requirement on the applicant—perhaps I am missing it; it may be included in some of the Schedules—to produce evidence of the costings involved to him of developing a particular variety. This would be of great relevance from a number of points of view. It would be of relevance in the context of the length of the protection period which the controller should allow because, if the costing is very small, it would seem that a lengthy protection period would not be justified. This is of particular relevance to the agricultural sector who, over a lengthy period, might be paying royalties to somebody who did not spend a whole lot on the development of that particular variety. Therefore details of the costings would be a relevant factor which should be produced on application to the controller.
I am sure such figures can be furnished. An even more important factor is that there be some discipline on the plant breeder, from the time the initial stock leaves his cereal station or whatever, to ensure that reputable people only be allowed grow the basic stock, and the second and third varieties of seed before it is propagated. I wonder is the Minister satisfied that there is sufficient discipline. I know the Department of Agriculture did tremendous work on that type of operation in the past. So far, by and large—and I say this with some reservation—we have partially controlled the spread of wild oats in cases where there was a lot of laxity in the past, when UK seed in particular found its way into this country, probably again from fly-by-night plant breeders and when we found ourselves literally sowing wild oats, causing real problems on our farms, to the extent that some of these farmers have since been ruled out for all time as growers of seed at considerable loss to themselves. One has only to visit the United Kingdom at present to see the problems they encounter with wild oats in their sugar beet crops and so on. In the follow through from the plant breeder I wonder if we have sufficient safeguards to ensure that reputable people only be allowed to grow the seed for the eventual grower.
This section sets out the conditions the applicant must meet in order to get his rights. It does not state that he must submit his costings. It states merely that the variety must meet the requirements as to distinctness, novelty, uniformity and stability. Those are the stipulations. It would be very difficult to verify costings submitted by an applicant. In ordinary circumstances the controller would not be involved in setting the level of royalties unless the level of royalties was so high as to bring about an application for a compulsory licence.
Deputies will see the difficulties involved in trying to include costings in the conditions. A plant breeder might be working on hundreds of different varieties and might get rights for one variety only, when it would very difficult for him to itemise the costing of that particular variety.
Then on what basis would the controller exercise discretion in regard to the protection period? There are minimum periods, as was clarified a moment ago. The Minister may set a maximum period or periods. The controller then will grant it either at the minimum or for some higher number of years——
Or half way between the two.
Surely the whole purpose of the Act is to provide protection, encouragement and return for plant breeders. The question of costings must therefore be relevant, as to what period of time a breeder will have that protection and monopoly.
There is a difference here between what is being sought by Deputy O'Keeffe and by Deputy Hegarty.
If I might interrupt the Minister, I am less concerned about the whole question of costings. I fully appreciate the problem of the plant breeder who might very well produce 25 or 30 varieties that might prove abortive after three or four years on the ground. I would be less concerned about that because that variety will have to stand its ground price-wise and yield-wise with a lot of other varieties and there would be no compulsion on anybody to grow the particular variety.
There is another aspect in all of this, which is not generally known, that once one produces a variety that is not the end of it; one must rejuvenate that variety every so often and revert to the variety markets; it is an on-going process. I am growing one this year, one that has come straight from the Department of Agriculture and Fisheries in Scotland. It is an on-going process to keep the variety fresh and vigorous. I am concerned that the controller or Department be obliged to maintain discipline. I would be afraid the plant breeder might be able to short-circuit the Department in any new legislation. I should like to see the Department having the same control it has had down the years.
What Deputy Hegarty is saying is correct because practically all agricultural crop seeds must be certified and therefore must meet certain standards laid down in EEC directives. Otherwise they cannot be marketed. Therefore we have and will have control.
Just a point of information, this section relates to the details to be furnished by an applicant. The applicant must satisfy the controller that the conditions set out in the First Schedule are satisfied. Therefore, is it at this stage that we deal with the First Schedule, or do we treat that as a separate item?
The First Schedule would appear to come in here and there during the discussion on the various sections but we will discuss the Schedule on its own when we reach it.
I feel that the controller should have some way of monitoring royalties which are being charged in respect of varieties for which protection is being granted to prevent abuse and excessive charges. Under the legislation it does not seem that there is any duty on the controller to monitor this. I would ask the Minister to consider bringing in amending legislation to ensure that someone does keep an eye on this issue.
The position here is that this is a commercial transaction and the controller would have no say in the setting of royalties unless the plant breeder was charging fees so high that he was completely out of bounds. In that even the controller has the option of issuing a compulsory licence or threatening to issue a compulsory licence. That is the only safeguard he has.
The main safeguard is the one referred to by Deputy Hegarty, that a variety is going to be competing with other varieties and anyone who is charging too high a royalty will price himself out of the market. It is possible that someone could develop something which was unique. The question then of whether someone else could develop a competing product depends entirely on whether he could develop something based on the research already done by the first party but which still meets the criteria of being distinct within the terms of the Act. There should be some mechanism for having an on-going look at this legislation to ensure that there are no monopoly profits being obtained by people over and above what is really just in the market place. I would ask the Minister to consider some means such as I have suggested, to involve the Restrictive Practices Commission in an on-going investigation of the working of this legislation.
I can have that considered. I am sure that it would be in all our interests and in the interests of both breeders and the controllers and everybody else concerned to have a review of the situation from time to time. I do not know how this could be done. Perhaps when regulations are laid before the House it will give an opportunity to the House to discuss the situation and if any changes are necessary they can be made at that time or if there is anything happening that is not in accordance with our wishes or is not in the best interests of the country perhaps a change can be made at that stage. It is something I would be sympathetic towards.
We, in the House, are not experts, as is evident. This legislation should be looked at by an independent body such as the Restrictive Practices Commission and I would ask the Minister to consider that agency.
I will certainly do that.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill".
We have referred to the question of priority in the past between people applying here and people developing something in another country and/or registering in another country. Can the Minister give any indication as to the probabilities of two people independently breeding the same variety? Is this something which is likely to occur very often or is it something that would be very rare indeed?
The possibility of two persons competing for rights in the same variety could arise but if we go back to the discussion we had earlier it is whoever is first past the post who gets the rights unless it can be proved that there is a distinction between the two varieties.
The question I was putting to the Minister was, is this something that is likely to happen or unlikely to happen or is it virtually impossible? Is it something we should be seriously concerned about?
It could happen but it is not something that happens every day of the week. It could happen once in a life time.
If two people develop the same thing and apply simultaneously in different countries for protection does that mean that one person has protection in one part of the UPOV area and another person has protection in another?
No.
Going back to the breeding of monohil sugar beet, in the past two countries did in fact work more or less on the same lines and ended up with a similar project but they just called them by different names as far as I can remember.
Under these regulations they have to be distinct and they have to be distinguishable as well. Another point is that there are no plant breeders rights for sugar beet.
Let us take the example of grain. We are talking about a 10- or 12- or 15-year operation. If two cereal stations were operating along the same lines, the chances are that they would call whatever they produced by a different name anyway. It would be very difficult for anybody to say at the end of the day that the product was identical even by looking at it. At the moment there are some spring varieties that are, as far as I can see, identical in every way.
They must be distinct in some important characteristic. That is the important thing we must bear in mind.
If what Deputy Hegarty says is true, there is some defect in the administration of the legislation in the countries in question.
This is going back to a point we raised earlier and which is appropriate to this Bill, because from what Deputy Hegarty says from his own experience in this field, it seems that what we thought was a remote possibility is more than a possibility and is something that would have to be safeguarded against and provided for. The point that concerns me is that within this country there can be a priority organised and arranged. But what is the situation in regard to plant varieties developed in other countries that have already been registered there or are in the course of being registered there and for which applications have been lodged or are being lodged? What will be the position of our controller here? Will he have knowledge of this or will he be operating solely in the dark about seeds registered in other countries?
He will have knowledge of those if they apply under the priority rule.
Does this mean in effect that registrations and details of applications for registration in each of the UPOV countries are or have to be or should be notified to the registrars in each of the other countries?
Yes. That is the situation. A list of applications is published in every UPOV country.
I see. There is a reference in this Bill to a journal. Is the situation then that the journal from each of the UPOV countries is studied and that the registrars have, as it were, judicial notice of what has taken place in other countries?
This is something that concerns each individual country and I expect that there would be full consultation between the UPOV countries on those matters. We would know what was happening in the other countries and they would know what was happening here.
Can the Minister see any difficulty arising between somebody who applies here and somebody who applies at the same time in another UPOV country, for example, in Holland, for the same type of plant variety which they possibly have developed independently?
Section 6 (3) covers that and we will be coming to that later on.
We are in section 6 at the moment.
Subsection (3) deals with that.
That relates to the year after.
Progress reported; Committee to sit again.