Amendments Nos. 1 and 2 are related and may be discussed together.
Plant Varieties (Proprietary Rights) Bill, 1979: Report stage.
I move amendment No. 1:
In page 4, to delete lines 31 to 34.
This amendment will have the effect of omitting any reference in the Bill to wild plants. It will be recalled that a number of Deputies had reservations here particularly since the UPOV Convention contains no specific reference to wild plants. I indicated on Committee Stage that I intended to delete this subsection from the Bill.
As the Minister has acknowledged Deputies from this side of the House felt that it was not right that it should be possible for anybody, by virtue of lodging an application for a patent, to get a monopoly in the propagating of a plant which is already growing in the wild, that nobody should have the opportunity of simply discovering something and making it his exclusive property because he discovered it first, even if he had done no work to develop it in any way. I am glad to say that the Minister has accepted the case we made, hence this amendment which we welcome. The Minister's amendment goes further than my amendment and, therefore, I will withdraw my amendment in favour of the Minister's.
Amendment agreed to.
Amendment No. 2 not moved.
Amendments Nos. 3 and 14 are related and may be debated together.
I move amendment No. 3:
In page 9, to delete lines 24 to 30, and insert the following:
"(10) The maximum period for which plant breeders' rights are to be exercisable pursuant to a grant under this section shall be twenty five years:
Provided that, as respects fruit trees, forest trees, ornamental trees and grape vines (including in each case their rootstocks), the said period shall be not less than eighteen years and, as respects other genera and species, the said period shall be not less than fifteen years.".
I am proposing that the specify Bill both the maximum and minimum periods for which plant breeders' rights may be held. As originally drafted, the Bill specified the minimum period and the maximum period was to have been fixed by regulation. This amendment changes that.
This is a very reasonable amendment as it now provides for the first time for a maximum period for the exercise of a monopoly and I welcome it. My amendment is identical to the Minister's amendment. It was put down first and within a very short time the Minister introduced an amendment which has identical effect but is perhaps more professionally drafted. I naturally defer to this version of the same proposal.
Amendment agreed to.
I move amendment No. 4:
In page 11, line 27, to delete "or discovered".
This amendment is really consequential on what we have already agreed. We agreed that plants in the wild should not be capable of becoming the subject of a monopoly under the Bill. It seems to me, therefore, to be irrelevant to have the words "or discovered" in section 6. Subsection (1) of this section states:
Where a plant variety is independently bred or discovered by two or more persons, subject to subsection (2) of this section, the first of those persons by or in relation to whom an application is duly made under section 4 of this Act shall be the person entitled to a grant of plant breeders' rights as regards the variety.
I understand it will no longer be possible to take out a patent in respect of the discovery of a plant in the wild.
One will now only be concerned with plants which have been consciously bred as a result of scientific work by a plant breeder. I feel that the words "or discovered" should be deleted from this section. I have not gone through the Bill with a fine comb to find out if there are other places where the words "bred or discovered" are used. If there are, I feel the words "or discovered" should be deleted in every case where they appear. As we have already decided that only plants which are consciously bred may be patented and not plants which are merely discovered in the wild, I should think that those words should be deleted wherever they appear. That is sensible drafting and it is possible that those words could create misunderstanding. I urge the Minister to remove them.
In my opinion the proposed amendment would be too restrictive. It would have the effect of limiting the scope of protection in that only varieties bred in a conventional manner would be eligible for protection. The convention stipulates that whatever the origin, artificial or natural, of the initial variations from which the plant variety has resulted, the breeder shall be in a position to obtain rights. As I have stated earlier, no reservations to the convention are permitted. Accordingly, I must reject the amendment.
I know that the Minister cannot come back on this. What sort of cases does he have in mind that would not be covered by "bred", would be covered by "discovered" and are not discoveries in the wild which he has already excluded? Could he give some examples of the type of case he has in mind?
This does not concern specifically plants in the wild. It concerns new varieties discovered anywhere. For example, a new wheat variety resistant to disease discovered in a wheatfield is just as valuable as a variety bred in the conventional manner.
It would hardly get into the wheatfield if it had not been bred in the first place.
We are on Report Stage. Deputy Bruton to conclude.
I do not understand how you could have a variety in a field which had not been bred in the first place and planted in the field. Therefore, I do not see how you would find one just like that that was not a wild plant, unless in the one wheatfield where you had sown a number of seeds of the same variety some of them for some reason developed a slightly different characteristic in the course of growing in a particular place. The slight change which occurred from being grown in that environment could determine them to be a new variety. I cannot understand that. Obviously, this Bill is concerned only with new varieties which are distinct from previous varieties. I cannot understand how you could have discoveries which are not simply discoveries of something in the wild. Given the restrictions of the format of this debate, I realise that I cannot cross-question the Minister on this. If I did cross-question him for long enough I would find out that there is a reasonable explanation for his attitude.
A new plant can occur as a mutation.
Amendment, by leave, withdrawn.
Amendment No. 5 is in the name of the Minister. Amendment No. 6 in the name of Deputy Bruton is an alternative to amendment No. 7 also in the name of Deputy Bruton. Amendments Nos. 6, 7 and 8 are related and may be debated together with amendment No. 5.
I move amendment No. 5:
In page 12, line 52, to delete "may" and substitute "shall".
I consider the word "shall" preferable. If the controller has satisfied himself that a compulsory licence is called for then, of course, he should issue such a licence.
We are discussing these amendments together. On a point of order, does that mean that I may speak only once because the Minister has moved his amendment first even though I had three others?
It does.
Surely that is most unfair. I have three amendments and the Minister has only one. Because he got in first, you are now saying, Sir, that he may speak twice and I may speak only once even though I have three times as many amendments as he has. With all due respect to you, surely the fact that you have called the Minister first to move his amendment does not give him the opportunity of speaking twice where I may speak only once.
The Chair cannot do anything about that. That is in the Standing Orders of the House. Once a group of amendments are related in the one family, so to speak, are put down together and must be taken together, then the Deputy has only the one opportunity of debating them.
On a point of order, Sir, why did you decide to call on the Minister to speak first, thereby allowing him——
Because No. 5 was the first amendment of the group and the first amendment of the group must be proposed. It is the only one that can be proposed. The others can be debated with it and proposed afterwards.
On what basis can one decide that simply because the Minister's amendment appeared first in the list, he should be able to speak twice and I would be able to speak only once?
Amendment No. 6 would be related to a later part of the Bill and that is why amendment No. 5 is first. The Chair cannot do anything about this. The Chair must abide by the Seanding Orders and precedents.
The Chair decided to put these two amendments together. If the Chair had allowed these four amendments to be debated separately there would be no problem. The Chair decided to have all of them debated together and by so doing, in view of the order in which these amendments appear, the Chair effectively has ruled me out from proposing my amendments and replying to the Minister's comments. I do not impute any motives other than the highest to the Chair, but I regard that as most unfair and I record my strong protest.
If the amendments are related and interwoven together they must all go together, otherwise the debate could be repeated on each of them.
I should be allowed to speak twice.
The Chair is not going to be difficult on the Deputy if he wants to raise any matters urgently, but I must conduct the debate according to the rules of the House. There is no other way that I can do it.
That satisfies me and that is why I raise this. I do not accept the Minister's amendment as being sufficient. The Minister's amendment says that the controller shall grant a compulsory licence if he is satisfied that the applicant is financially or otherwise in a position to exercise the right in a competent manner, whereas up to now, even if the controller had been satisfied that the person applying for a compulsory licence was capable of exercising it in a competent manner, he still did not have to grant a compulsory licence. Obviously, the substitution of the word "shall" for "may" in that sense is an advance in that at least we know that if all the requisite conditions are met a compulsory licence will be granted.
However, I do not believe that that is sufficient by any means, and in order to support my case I must say that I believe that these provisions in section 8 which we are discussing now concerning compulsory licences are central to the entire Bill, and this is a most important aspect of the Bill. Under this Bill people are going to be allowed to get a monopoly in relation to the selling of varieties of a particular plant that they have developed. The only safeguard in the entire Bill against this monopoly—which may, as we have agreed, last up to 25 years—against, for instance, the person who has the monopoly refusing unreasonably to allow other people to use the plant in which he has the monopoly or charging unreasonably high prices or failing in any other way to engage in fair trade practices in the use of the monopoly that he has—this argument has been used by the Minister throughout this debate any time we raised this question as to whether the monopoly could be abused—was the safeguard of a compulsory licence. Under the compulsory licence procedure it is open to any other individual who feels that he is being abused by the person who has the monopoly, to apply for a compulsory licence. If this is granted, there will be two people with the monopoly, instead of one. The second person, to get the monopoly, must prove that he has been unreasonably treated and that it is contrary to the public interests that the monopoly should remain with only one person.
Furthermore, he must prove that he is financially in a position to make use of the monopoly if he gets it. We believe that the conditions imposed by the section are unduly restrictive and, as they at present stand, will have the effect of ensuring that no one uses the compulsory licence procedures effectively, although they are the only protection against abuses of a monopoly. In support of what I am saying I draw the House's attention to the fact that, although in British legislation on the statute books for 12 years or more, exactly similar licence procedures exist, in no case has a compulsory licence yet been granted in Britain under the provisions obtaining there, which clearly indicates that those procedures are inadequate. I am certain that there were cases in Britain in which excessive prices have been charged for seed, but in no case has anyone yet been able to get a compulsory licence because the terms of the Act in regard to the conditions which must be complied with to get a compulsory licence are too severe.
The three amendments in my name seek to relax those conditions in such a way as to ensure that—in Ireland, at least—it will be possible to get compulsory licences and that people who have monopolies will know that that is the case and as a result will not engage in any practices which would be unfair or unreasonable or in any sense lead to unduly high prices being charged to farmers for seed. The ultimate result of an abuse of the monopoly powers being conferred in this Bill in relation to the use of plant varieties will be unduly high prices being charged to farmers. Our amendments are directed at ensuring that that does not happen.
Our first amendment, No. 6, is to delete the words contained in the section which is the conditions that only a person can get a compulsory licence if the controller is satisfied that the applicant is financially and otherwise in a position, and intends, to exercise rights in a competent manner which would be conferred by such an authorisation.
In other words, the person applying for the authorisation even though he proves that there is an abuse of the monopoly must go on and prove to the satisfaction of the controller that he is in a position to use the monopoly if he gets it and in a position to maintain the variety, which is an expensive process, if he gets it and that he intends to exercise it. He will have to prove as well as the abuse of the monopoly that he has the money, the ability and the intention to use the monopoly himself if it was granted to him, alongside the person who already has a monopoly. If it is an individual who is applying, perhaps a farmer who feels that he is being sold seed at too high a price, if he got the compulsory licence there would be no doubt that the banks would give him credit and enable him to have the money to exercise the compulsory licence effectively. However, he must prove before he gets the compulsory licence that he has the money to do it. In most cases banks would not be prepared to lend money to an applicant to the off-chance that he might get a licence and because he is applying. The only circumstances in which they would be prepared to grant him a loan is when he has actually got the licence under his belt. The Act requires him to prove this in advance, which is unduly onerous and will result in many people simply not being able to apply because they would not be able to prove to the satisfaction of the controller that this is the case.
Let it be said that of course these proceedings will be contested by the monopolist who will use every means at his disposal to prove that the person is not financially competent. He will probably be able to afford barristers and solicitors. In many cases it will be an international company with substantial resources which will be able to pay for the best legal advice and defence to prove that the applicant has not got the necessary financial competence. On the other hand, the applicant may be a relatively poor man who cannot afford a team of barristers and solicitors to prove his side of the case. The wording of the section, in my view, will put anyone applying for a compulsory licence at an unfair disadvantage. For that reason I would argue that those words should be removed.
I am also proposing, in amendment No. 7, to change the words that the controller, "if he is satisfied" that the applicant is financially or otherwise in a position to exercise this monopoly to the words "if it has been demonstrated to his satisfaction". These are more appropriate words. "If he is satisfied" is a subjective thing and what would satisfy one man might not satisfy another, as we all know in any number of different contexts. It is basically a subjective judgment as to whether one is satisfied or not in a particular case. If the words I am proposing "if it has been demonstrated to his satisfaction" were accepted, this would perhaps be more objective. One could argue about that, but it is not a very major amendment. If the Minister says the insertion of the words proposed would not make any difference, I would accept that.
In amendment No. 8, I shall be proposing that the words "financially and otherwise" be deleted from this subsection. I could not agree with Deputy Bruton's proposal to delete the additional words as it is imperative to ensure that in granting a compulsory licence the controller must have regard to the legitimate interests of the holder of plant breeder's rights. He must ensure in granting a compulsory licence that the applicant will (a) be in a position to pay the royalties fixed by the controller or holder of the rights, (b) multiply the variety in such a manner that it remains true to its description, (c) exploit the variety in a competent manner so that valuable seed is not wasted and the value of the plant breeder's rights to the holder is not impaired.
As regards amendment No. 7, I am unable to accept this proposed amendment. It is the duty of the controller to satisfy himself that the recipient of a compulsory licence is in a position to exercise in a competent manner the rights conferred on him. That is to say, the controller himself must be satisfied. The proposed amendment would have the effect of making this requirement somewhat less specific. I consider that the original words used here are more satisfactory and I could not agree to Deputy Bruton's proposed amendment.
I promised Deputy Bruton a minute or two if he wished to avail of them in view of the debate we had earlier, but just a minute or two.
There should be a procedure whereby a compulsory licence can be obtained even in cases where the persons obtaining them are not necessarily able to prove that they are going to use them. There may be abuses in cases which should be checked, even where the persons seeking to check them will not necessarily be able to use the monopoly if he gets it. Perhaps the compulsory licensing procedure is not the best way of doing this. But, as the Minister has said already, it seems to be the only way we can check abuse. I feel that my amendment by removing this requirement would have made the compulsory licence more likely to be availed of.
Amendment agreed to.
I move amendment No. 6:
In page 12, line 53, and in page 13, lines 1 and 2, to delete "if he is satisfied that the applicant is financially and otherwise in a position, and intends, to exercise rights in a competent manner which would be conferred by such an authorisation.".
Is amendment No. 6 withdrawn?
No, Sir.
Does the Deputy wish me to put it?
Yes, please.
Question: "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 12, line 53, to delete "financially and otherwise".
This amendment has already been discussed.
Amendment agreed to.
Amendment No. 9 in the name of the Minister. Amendments Nos. 10, 11 and 18 are related, No. 10 in the name of Deputy Bruton, No. 11 in the names of the Minister and Deputy Bruton and No. 18 in the name of the Minister.
I move amendment No. 9:
In page 13, lines 12 and 13, to delete "may, with the consent of the Minister", and substitute "shall".
It is not necessary to provide for ministerial consent before the controller issues a compulsory licence. Once the controller is satisfied that such a licence should be issued he should be in a position to proceed. On reflection I consider that the approval of the Minister should not be necessary.
I am very pleased that the Minister has adopted the attitude he has in regard to these amendments. I should like some clarification from him on amendment No. 18 because he did not explain very fully what is implied. The amendment says that the appeal committee in confirming a decision of the controller to grant a licence under section 8 (2) of this Bill may modify any of the terms or conditions of the licence. I wonder what difficulties could arise from a licence being granted by the controller and then the appeal committee modifying it. If they modify it is that the final word on it, or does it go back to the controller and is there some sort of exchange between the two of them as to which will be the final form of the licence?
As originally drafted the Bill specified that the appeal committee would have to obtain ministerial approval before confirming the controller's decision to grant a compulsory licence. The proposed amendment would allow the appeal committee to modify a decision of the controller without recourse to the Minister. Therefore the Minister will not come into it at all.
Amendment agreed to.
Amendment No. 10 not moved.
I move amendment No. 11:
In page 13, to delete lines 16 to 18.
Amendment agreed to.
I move amendment No. 12:
In page 13, after line 52, to add the following:—
"(11) The Controller shall grant a compulsory licence under this section if he is satisfied that—
(a) a demand for the plant variety is not being met on reasonable terms as to price or other considerations, or
(b) that by reason of the refusal of the holder to grant an authorisation on reasonable terms the development of agricultural or commercial activities in Ireland is being unfairly prejudiced, or
(c) the terms on which the holder is prepared to offer an authorisation are more onerous than the terms being offered by him in respect of the same variety in another country, or
(d) the terms as to royalty payments imposed by the holder in respect of the grant of an authorisation are unduly burdensome on the applicant, seriously impairing his ability to complete with the holder, where the holder through prior licence royalties and profits from exploitation of the variety has more than recovered the costs allocable to Ireland of the development of the variety.".
The purpose of this amendment is to introduce new grounds on which a compulsory licence may be granted. Basically what we are saying here is that, if there is any of these four grounds of evidence of abuse of the monopoly, a compulsory licence shall be granted. Lest the House might think that this amendment has been drafted in a most unprofessional fashion I would point out that its precise wording is based on the wording contained in a Canadian Bill concerned with the amendment of patent law in Canada which was published in 1976. I am using the terminology chosen specifically by the Canadian legal draftsmen in determining grounds on which compulsory licences should be granted in Canada in the case of an abuse of the monopoly. As the compulsory licence is the only protection against the abuse of monopolies which this House is conferring on plant breeders, I feel that monopoly should be struck down if unreasonable prices are being charged, if a person is using the monopoly to engage in unfair competition with someone else, or if the terms on which the royalties are being charged are higher in Ireland than in some other country. If, for instance, a person has a monopoly which applies to Britain, Ireland and France and is charging much higher prices in Ireland for the use of the plant in respect of which he has a monopoly than are being charged in France or Britain, that should constitute grounds on which a compulsory licence should be used to strike down the monopoly as it applies in Ireland if Ireland is being unfairly prejudiced by the method by which the monopolist is setting his price.
Obviously the holder should be able to settle a royalty level which allows him recover the costs of developing the plant which are applicable to Ireland. Therefore we are making that exception in the amendment to allow that be done. But so long as that is being done we do not believe there should be complete freedom to charge any price one likes for the ability to use a plant. Certainly the price should not be either higher in this country than is applicable in other countries or so pitched as to allow a breeder to engage in unfair competition or exploitation of the consumer.
This amendment is relevant not only to plant breeders' rights but to the whole area of patent legislation. I understand that we shall have a Patents Bill in the near future concerned with other forms of monopoly in the matter of intellectual property. Therefore I feel an amendment along these lines is appropriate not only to this Bill but to others of that nature. I hope the Minister will see his way to accepting this amendment.
I am satisfied that the grounds for granting a compulsory licence as proposed by Deputy Bruton in subparagraphs (a), (b) and (c) of his proposed amendment are covered adequately by the existing provisions of section 8 of the Bill.
As regards sub-paragraph (d) of his amendment, as I said previously, it would be impossible to set specific figures in relation to allowable costs for developing a variety because such figures would not be available to the controller. Breeders usually work with many varieties, the majority of which never reach the market. Even a breeder would have difficulty in estimating the cost of developing a particular variety. I feel that the grounds for the granting of a compulsory licence are sufficiently wide to cover all reasonable grounds for issuing such a licence. I do not accept this amendment. However, Deputy Bruton may agree that in my earlier amendments to the section I have gone some considerable way to meeting some of those points already made by him.
As regards the specific amendment suggested by Deputy Bruton, section 8 already provides that compulsory licences may be granted where unreasonable terms are set by a person holding the rights. This includes price and other considerations. Accordingly, precisely what Deputy Bruton is seeking has already been covered in section 8. Subparagraph (b) of his amendment is already covered by the public interest consideration contained in section 8, which in my view is sufficiently widely based to cover any possible difficulties. When all is said and done we must rely on the judgment and discretion of the controller.
On subparagraph (c), the levels of royalty payments are often different from one country to another. Many considerations, including size of market, inflation rates and so on, account for this. Royalties charged here are usually the same as Britain. If the royalty terms here were significantly higher than in other UPOV states it would be open to an agreed party to apply for a compulsory licence on the ground of unreasonable terms. I have already covered sub-paragraph (d) in my opening remarks.
In my view the words "contrary to the public interest" are far too vague. As anyone who studied political science knows, it is notoriously difficult to define "the public interest". The public interest for a socialist is very different from the public interest for a capitalist. Public interest is whatever you want it to be. Putting the words "public interest" into a Bill means that whoever is the controller at a given time will be able to impose his view of what the Irish public interest might be. If he is a man of a particular point of view, not necessarily a political point of view, about the development of agriculture, he might adopt a completely different stance from a controller who had a different, subjective point of view.
Our amendment sets down more specific guidelines which, I would remind the Minister, are based on a Canadian proposal under which the controller must grant a compulsory licence if the case meets the objective conditions set out in the amendment. It is better legislation to give a controller specific, definite, guidelines as to how he is to act in granting a compulsory licence rather than leaving it to him to determine whether the exercise of monopoly is in his view in the public interest. The vagueness of the terminology in this Bill is more likely to lead to litigation and people being dissatisfied with the controller's decision and taking the matter to the courts than would be the case with my amendment, which sets down specific, objective and definable criteria on which compulsory licences should be granted. In my view my amendment is a much better formulation of the situation than the Minister's rather vaguely termed public interest provision. Therefore, I would like to press my amendment.
Amendment put and declared lost.
I move amendment No. 13:
In page 14, line 5, after "rights" to insert "and it is in the interest of the advancement of agriculture in Ireland".
The section as it stands reads that "Subject to Subsection (2) of this section, if on an application made in that behalf by or on behalf of a holder the Controller is satisfied that....” an extension of the period for which the holder has been granted a licence should be extended, the controller may grant it subject to the conditions he might apply. This amendment seeks to say that the extension of the grant should only be given where the controller is satisfied that it would be in the interest of Irish agriculture. In requiring that additional assurance we are doing something sensible. We do not want grants to be extended simply because the controller feels that it would be a good idea or that he likes the fellow applying for it. He must be satisfied that not only has the breeder not been adequately remunerated, but that it would be in the interest of Irish agriculture that this extension be granted. I do not believe the failure of the licensee to get an adequate profit out of the monopoly is, on its own, a ground for giving him an extension. He was given a gift when he was granted the monopoly. If in the rather generous period in which he had the monopoly—a minimum of 15 years—he has not been able to make enough profit, on the face of it that was his own fault. The fact that he can prove he did not make enough profit is not sufficient ground for giving him an extension of the monopoly unless it can be shown that such an extension would be in the interest of Irish agriculture. I believe that additional provision is a useful one.
The section already provides that the controller may if he decides to grant the application apply to the extension of rights such restrictions or other conditions as he may specify. Also, any extension would be limited as to duration up to a maximum of 25 years. In my view this is a sufficient safeguard for what Deputy Bruton has in mind. I can assure him that extensions will not be given lightly. The onus will be on the applicant to prove his case and extensions will be the exception rather than the rule.
This section deals simply with the remuneration the breeder received, whether it was adequate or otherwise. The question of protection of the public interest is provided for in section 8. If after receiving an extension the breeder acts against the public interest, it is open to an aggrieved party to apply for a compulsory licence. I might also mention that in time rights will likely be granted here to plant varieties other than strictly agricultural varieties. In the circumstances the amendment would not be appropriate. I am afraid I am unable to accept it.
Debate adjourned.