Wednesday, 21 May 1980
Dáil Eireann Debate
Mr. Bruton: Section 9 provides that where people have had a licence or a monopoly in respect of a plant they can apply to the controller who, if he feels they did not get enough money out of the plant during the period of their original monopoly, can extend the monopoly for a longer period. The Minister said we should not worry about this being abused because people could almost perpetuate their monopoly. Subsection (2) provides that the controller shall not be allowed to extend the monopoly beyond the overall period prescribed under section 4 (10). That sounds a very persuasive answer until you read section 4 (10) which prescribes no limit whatever on the length of a monopoly. It prescribes a minimum period for the monopoly and says that the monopoly shall be granted in the case of certain types of plants for not less than 18 years and in respect of other types of plants for not less than 15 years. No upper limit whatever is placed on the overall period which should be allowed for a monopoly. For the Minister to say an extension cannot be granted for anything greater than the upper limit is of no value when the upper limit is not set and can be indefinite as it is open to be under section 4 (10).
Minister of State at the Department of Agriculture (Mr. Hussey): Section 4 (10) states quite clearly: “Regulations under this section shall prescribe the maximum period for which plant breeders' rights are to be exercisable pursuant to a grant under this section provided that as respects fruit trees, forest trees, ornamental trees and grape vines (including in each case their rootstocks) the period so prescribed shall be not less than eighteen years, and that as respects other plants of other genera and species the period so prescribed shall be not less than fifteen years”.
Mr. Bruton: The Minister argued earlier that there was not much of a problem in relation to this power because there is an upper limit. No upper limit is provided. A minimum period is provided but no maximum.
Mr. Bruton: There is no guarantee that the maximum will not be extremely long. I castigated the British legislation earlier and I do not suggest that we should copy it slavishly, but they have an upper limit of 25 years in respect of this provision. In no case may the extension lead to a monopoly being granted for more than a total of 25 years. I cannot see why there should not be a similar upper limit in our legislation, perhaps not 25 years but some other period.
Mr. Bruton: Why not have that in the Act? We are making legislation by regulation and that leaves the House in the dark about what will be done. It would be far better to provide for it in the Act without going behind doors to make legislation by regulation. SECTION 10.
This is designed to delete the words “is no longer in a position,” and to leave the words “has failed”. The original drafting was considered to be imprecise and subjective. The wording proposed would make the thing precise.
“(e) the Controller is satisfied that the holder is operating the plant breeders right in such a way as to hold the level of prices being charged for the variety in Ireland above the level which would be justified as remuneration for the  costs associated with developing and marketing the variety,”.
We were discussing earlier the compulsory licensing provision whereby if an individual felt that a monopoly was being abused he could apply for a licence. In the absence of an application by somebody for a compulsory licence, the controller can decide to revoke the monopoly. I am proposing that the controller be required to revoke the monopoly if he is satisfied the holder of the licence is operating in such a way as to hold the level of prices being charged for the variety in Ireland above the level which would be justified as remuneration. We feel that this Act should not be allowed to operate to increase unreasonably the price of seeds being charged to Irish farmers, to disadvantaged Irish agriculture, and that the power in the Act to revoke licences should be precise and fully used. At present the section only provides that the revocation may take effect in certain cases, such as the non-payment of fees or failure to maintain a variety. It does not take into account the situation in which the monopoly may be operated in such a way as to lead to excessive prices. I feel that such an extension of the revocation grounds should be provided for.
Mr. Hussey: Article 10 of the convention clearly sets out the reasons for which licences may be revoked and it excludes all reasons not specifically included. The article would not allow revocation for the reasons suggested in the proposed amendment and for that reason I cannot accept it.
Mr. Bruton: The grounds on which revocation may take place include failure to provide information, failure to supply the controller with reproductive material, failure to pay fees. I understand that failure to maintain a variety is one of the grounds on which the grant may be  revoked. I should like some information as to what is involved, what are people required to do to maintain a variety, what sort of evidence must they supply and how often must it be supplied?
Mr. Hussey: Before revoking the licence the controller must follow certain procedures. For example, he must give notice to the holder and give general notice, probably by publication in the journal, of his intention to revoke. He must consider any representations or objections, and in the case of non-payment of fees he must allow a reasonable time for repayment. Then, the holder may appeal to the High Court within a certain period. Section 16 of the Bill covers the matter of maintenance of a variety.
Mr. Bruton: I am puzzled by this. The explanatory memorandum states that the controller is empowered to revoke licences for certain reasons—for example, non-payment of fees and failure to maintain a variety. I cannot see anything in the section about failure to maintain.
Mr. Bruton: I should like to be told something about the composition of the Appeal Committee. Which categories are excluded if a licensee is not satisfied with the controller's decision? How does the section affect the provisions of section 8, where in the case of a compulsory licence the licence cannot be granted by the controller except with the consent of the Minister?
I note that section 8 is mentioned among the sections to which this appeal procedure applies. Is it envisaged that one can appeal to the Appeal Committee against the decision of the Minister in the case of a grant of a compulsory licence  or would one be able to appeal to the Minister against a decision of the Appeal Committee? Which comes first in the case of the granting of a compulsory licence under section 8?
Mr. Hussey: I am considering whether the period of 30 days mentioned in these sections within which a notice of appeal must be served might be increased to 60 days and I may have an amendment on this matter on Report Stage. Under this section all the main decisions to be made by the controller on the grant, refusal or revocation of plant breeders' rights may be appealed by any person feeling aggrieved by such a decision. For the purpose of determining an appeal the Minister would appoint an Appeal Committee of not less than three persons of whom one must be a barrister. The determination of the Appeal Committee would be final except as in subsection (2) (a) which relates to a compulsory licence where the Minister's consent would be necessary. We expressed reservations about the Minister's responsibility in this matter and that aspect will be considered also.
Mr. Hussey: No. The determination of the Appeal Committee would be final except as in subsection (2) (a) which relates to a compulsory licence and in such case the Minister's consent would be necessary.
Mr. Bruton: What are the procedures for publication of the decision of the controller to ensure that people have the opportunity of lodging an appeal within 30 or 60 days? If the controller makes decisions and the public has not adequate means of knowing them within the period specified it may be too late to appeal
Mr. Bruton: A person would not know he was aggrieved until a decision was taken. A person might discover that the controller had granted a monopoly in a particular case but he might not hear about it until the journal was published, perhaps 100 days after the decision had been made, and at that stage it would be too late to appeal. Unless the journal is published within 60 days of all decisions, a person would not know that he had cause to appeal to the Appeal Committee.
Mr. Hussey: If the journal was not published often enough we could put some provision in the Bill to say the controller would have to publish this in the national press so that the aggrieved person would have an opportunity of knowing the situation.
Mr. Bruton: I do not know if publishing in the national press would be the best way of dealing with the matter. Not everybody reads the national press every day, but subscribers to a journal would read that publication more  thoroughly. I should have thought the answer would be to ensure that the journal would come out with such frequency that every decision made would appear within 20 or 30 days. In that event there would always be a further 30-day period within which a person would have the opportunity of lodging an appeal.
Mr. Bruton: I should like more information regarding the materials about which the Minister might make regulations. I take it the legislation will not take effect until all the relevant regulations have been made under this section?
Mr. Hussey: I move amendment No. a.11b:
In page 18, subsection (2), line 42, to delete “morphological and physiological and other significant”.
This is simply to improve the drafting of the section.
Amendment agreed to.
 Question proposed: “That section 16, as amended, stand part of the Bill”.
Mr. Bruton: I was asking the Minister earlier if he could give some more information on how to meet the requirements of maintaining a variety.
Mr. Hussey: Under this section holders of plant breeders' rights will be required throughout the period of protection to maintain the variety true to the characteristics by virtue of which the rights were granted. To enable the controller to ascertain that this has been done, holders will be required to afford the controller: (a) reproductive material establishing trueness of two characteristics; (b) other information and facilities requested by the controller, including facilities to inspect the holders' maintenance measures.
If the holder fails to maintain the variety, or to provide the required facilities and so on, the controller may terminate the rights, but before doing so he must give notice to the holder and others concerned and give them an opportunity of being heard.
Mr. Bruton: Must the maintenance of the plant be within Ireland? Is it required that the holder maintain stock of the variety within this state?
Mr. Hussey: All he has to do is to deliver the samples to the controller.
Mr. Bruton: This section contains a provision whereby the controller shall have the right to inspect the actual place where the material is being maintained, is that right?
Mr. Hussey: Facilities where it is practicable, otherwise he sends a sample. In some cases the breeder might not have land in this country, so the controller could not inspect.
Mr. Bruton: I can see considerable difficulty here. If someone is maintaining a variety in some part of the world far distant from here, the controller would not have the opportunity to inspect it  over there. He would not have any power to go over and inspect it in situ. I do not know very much about this question of characteristics of plants, but one of the conditions under which a variety might be deemed to be a new one would be that it would have characteristics which would enable it to survive in Irish conditions. If it is not being maintained in Ireland but, let us say, it is being maintained in Canada and all that the controller is entitled to get is a dead plant sent from Canada to satisfy him that the plant is being maintained in Canada, it might be possible that the plant might have evolved in the interim period while in Canada to such an extent that, while it would survive in Canada, it would no longer survive in Irish conditions because the characteristics which it had when the breeder originally got the grant for it in Ireland no longer obtained.
If these characteristics had been bred out of it by continued breeding in Canada, it would seem in that event that the requirements that it be maintained in Canada to satisfy Irish regulations would not be sufficient to meet the spirit of the Act. Has the Minister considered that possibility?
Mr. Hussey: All that the breeder would have to do here is to prove that the plant was distinct, uniform and stable.
Mr. Bruton: Yes, but the whole idea, as I understand it, of maintenance of a variety and of giving a person the monoply here is to ensure that the variety will be available to people here if they want to use it for further breeding. That is the idea of including maintenance of the variety as one of the basic conditions under which one obtains the licence in the first place.
If the variety is being maintained outside this country but in such a way that, although it might be available to the people it would no longer survive here because it had evolved in a different fashion, or had not been treated in the proper way, all that the controller is entitled to get is a dead specimen of the plant and he would not be able to establish  if this is the case. Am I correct in believing that what the controller must be able to get, to satisfy himself that the plant is being maintained, is something that would be in a form fresh enough to be capable of being planted here to see if it could survive in Irish conditions, as had been originally the case when the application was granted?
Mr. Hussey: The plant, of course, does not have to survive here. Section 16 (3) sets out quite clearly what is to be done here.
It shall also be the duty of every holder to afford to the Controller all such information and facilities as he may request for the purpose of satisfying himself that the holder is fulfilling his duty under subsection (2) of this section, including facilities for the inspection by or on behalf of the Controller of the measures taken for the maintenance of the relevant plant variety and if the Controller is satisfied that a holder has failed to comply with the request under this subsection he may, if he thinks fit, terminate, with effect on and from such day, as the controller shall specify the period during which the plant breeders' rights under the relevant grants under section 4 of this Act are exercisable......
That, as far as I can see, sets out in fairly clear terms, what has to be done.
Mr. Bruton: I would be satisfied if, in line 41, after “variety” the words “in Ireland” could be inserted. What I am concerned about is the possibility that the variety may be maintained in conditions abroad which would not enable it to be reproduced here. Of course, maintaining something abroad which cannot be reproduced here would not be meeting the spirit of the section.
Mr. Hussey: There is nothing to prevent one from getting the controller of the other country to inspect on behalf of the controller here.
Mr. Bruton: What I am worried about is the difference in climatic conditions. Perhaps, I am completely off the line here because I do not know enough about the subject. The difference in climatic conditions could be such that the particular variety might be capable of being produced and surviving in Canada, but not here.
Mr. Hussey: Yes.
Mr. Bruton: Whereas that might not have been so when the original grant was given. If, through the effuxion of time the evolution of the variety, and the way in which it has been maintained it has lost its characteristics and would not be able to survive here, getting the Canadian controller of plant varieties to satisfy himself that it is being maintained in Canada would not meet the requirements of the Act as far as surviving in Irish conditions was concerned and would not satisfy the requirement of maintenance as far as Ireland was concerned.
Mr. Hussey: It does not have to. It is quite possible that rights would be granted here for varieties which would not survive here. The criteria are that they should be distinct, uniform and stable.
Mr. Bruton: I can understand that. However, what I am worried about is that the breeder might be granted the right in the first place when the plant varieties were in a condition that they were capable of surviving here but subsequently might be maintained in Canada in a manner which would lead them to lose the characteristic that enabled them to survive in Ireland. In other words, they would be stable to that extent. They would be stable in every other respect but not in their capacity to survive here. The Canadian controller would not necessarily be aware of the change of the characteristics which might lead them to be no longer capable of surviving in Irish conditions.
Mr. Hussey: The position is that it is required only to maintain them true to type. If they do not thrive here the  breeder would probably ask to surrender his rights here and save his annual renewal fees.
Question put and agreed to.
Question proposed: “That section 17 stand part of the Bill”.
Mr. Bruton: I take it that assignments under section 17 can be sold for whatever price the holder feels he can negotiate with someone else. Is that right?
Mr. Hussey: Yes, the same as any other property.
Mr. Bruton: There is a point at issue here. It is not a very good idea to have people being capable of selling something which they would not have were it not for the protection conferred on them by the State so far as this matter is concerned. An example is public house licences which can be sold for quite a high price and they would not exist if it were not for the fact that the State introduced the licensing system and otherwise there would be no property of that sort capable of being sold. There should be some provision for the State recovering some share of the sale price when a licence granted by it under the section is sold.
Mr. Hussey: The breeder has already spent a lot of money in trying to develop this species and he would be entitled to any remuneration that would accrue.
Question put and agreed to.
Question proposed: “That section 18 stand part of the Ball”.
Mr. Bruton: This is a case of what action the holder can take against other people who are infringing his patent. I take it that these will be civil proceedings.
Mr. Hussey: Yes.
Mr. Bruton: What is the position taken in the Irish courts? I take it that if a person has protection in a number of countries and it has been breached in a number of countries he would have to take separate legal proceedings in each jurisdiction. He would not be capable of taking just one case in one country.
Mr. Hussey: Yes, he would have to take separate proceedings to establish his rights.
Question put and agreed to.
Mr. Bruton: I move amendment No. 11b:
In page 21, subsection (1), between lines 4 and 5, to insert the following paragraph:
“(g) the number of plant breeders rights held by each holder, the identity of the ultimate owner of each right, the price at which seeds of each variety in respect of which rights have been granted are being sold in Ireland and in all other convention countries, and all other information available to him that would be relevant to determining whether reasonable prices are being charged for the plant varieties in respect of which plant breeders rights have been granted by him,”.
Section 19 is concerned with publication of a journal by the controller on the operation of the legislation. The amendment that I propose requires that additional information be given in the journal from time to time. The information that I would like to see given would be the number of plant breeders' rights held by each holder, the identity of the ultimate owner of each right, the price at which seeds of each variety in respect of which rights have been granted are being sold in Ireland and in other convention countries, and all other information available to him which would be relevant to determining whether reasonable prices are being charged for the plant varieties in respect of which plant breeders' rights  have been granted by him. The idea is that there should be some system for monitoring publicly the effect of this legislation. We have argued here already that in that the Bill confers a monopoly it does confer on some people the possibility of charging a higher price than otherwise would be charged for certain services. I would be afraid that this right might be abused.
There is also a strong feeling in many circles that this legislation may benefit a few companies who, by virtue of the very heavy investment involved in plant breeding, will tend to have the control of a large number of varieties of plants because only large multi-national companies will possibly be capable of making the type of investment necessary to develop new varieties of plant. The concentration of these monopoly rights in the hands of a small number of large multi-national companies could pose a danger to the farming community in all parts of the world. Particularly concern has been expressed about the effect that legislation like this in the developed world could have on the availability of new varieties of plants to people in the Third World or the poorer parts of the world.
This amendment provides that the controller would be required in the journal from time to time to give information as to who really owns these monopolies that are being granted under our legislation. Is it a few large companies or is it a large variety of different people? Are the prices being charged fair and reasonable or are they excessive? If the controller is required to publish this information in the journal it will mean that he will have to keep a close watch on the development of the legislation. This amendment may go too far in that some of the information would be very difficult to collect. However, there should be some requirement on the controller to ensure that some definite information is given in the journal regularly on the development and use of the monopoly powers being conferred.
Mr. Hussey: The information  proposed to be published periodically in the journal would be on lines similar to those of other convention countries and is based on a model UPOV journal which all member states are advised to follow. This would not include the amendment proposed and, therefore, I do not propose to accept it. In any event, the number of rights held by a holder keep changing because of deletions and new rights. The price of seed is under the control of merchants and varies depending on market conditions. Royalties would come to only about five per cent of the retail seed price.
Mr. Bruton: I do not accept that the fact that UPOV has not recommended in its model journal a provision along these lines in itself is a sufficient reason for our not doing it. We are a sovereign country and we are free to decide whether to adhere to UPOV and, having adhered to UPOV, we are not bound to accept their advice or recommendations in a matter like this. We are bound to adhere to the terms of the convention but there is nothing whatever in the convention which would prevent us from ensuring that information of the nature that I have mentioned is contained in the journal. The Minister should consider requiring that some such information is contained in the journal because otherwise we will have no way of knowing whether this legislation is causing excessive prices to be charged.
Mr. Hussey: Even though we are a sovereign independent state and can make up our minds on these matters I think it is important that there should be some uniform system and for that reason, since we hope to join UPOV, it is important to try to fit in with their requirements. From the beginning, lists will be given in the journal of all rights given and so those interested will have a good indication of who got the rights and how many each got.
Amendment, by leave, withdrawn.
Question proposed: “That section 19 stand part of the Bill”.
Mr. Bruton: Earlier we were discussing the possibility that the journal containing decisions taken by the controller would not be published in time for a person aggrieved by those decisions to appeal against them within the time limit. There should be a specific requirement that the journal be published with such frequency that all decisions be published in it no less than 30 days prior to the expiry date of the period within which an aggrieved party may appeal to the appeals committee against a decision. Would the Minister draft an amendment on those lines?
Mr. Hussey: I shall certainly do that.
Question put and agreed to.
Question proposed: “That section 20 stand part of the Bill.”
Mr. Bruton: I take it this register will be available to anybody who wants to inspect it. Will any fee be charged for the inspection?
Mr. Hussey: Yes, the register must be available for inspection at a place directed by the Minister and extracts from it supplied on payment of a fee to be prescribed.
Mr. Bruton: Will it be capable of being inspected independently of whether you want to take a copy or not? Will there be a charge for inspecting it or will the charge be just for copies?
Mr. Hussey: There will be no charge for inspection.
Mr. Bruton: I suppose it will be in Dublin?
Mr. Hussey: I think it will.
Question put and agreed to.
Question proposed: “That section 21 stand part of the Bill.”
Mr. Bruton: What is the need for this section?
Mr. Hussey: The High Court is empowered by the section, on application by a person aggrieved by an entry, non-entry, error etc. in the register to direct the controller to make any amendment necessary in it. In an application to the court the controller may be directed to appear, or unless otherwise directed by the court, he may submit a signed statement which shall form part of the evidence in the proceedings. In case of fraud in registration and so on the controller himself may apply to the court. An applicant under this section may make his application to the controller whose decisions may be appealed to the High Court.
Question put and agreed to.
Section agreed to.
Question proposed: “That section 23 stand part of the Bill.”
Mr. Bruton: It strikes me that there is no real relationship between the maximum fine of £100 and the imprisonment for a term not exceeding three months. It seems that a fine of £100 is a mere nothing to many of the people who may be involved in this business whereas being locked up for three months could be quite serious. The maximum fine should bear some relationship to the alternative term of imprisonment. I should have thought £2,000 or £3,000 would be more appropriate as the maximum fine if the maximum term of imprisonment is three months. This seems an odd combination.
Mr. Hussey: I agree to a certain extent with what the Deputy says. The fine of £100 seems very small. There is no problem in increasing that if we wish to do so. For the type of people involved in this kind of business it could certainly be increased to £500 or £1,000.
An Leas-Cheann Comhairle: That would be a matter for Report Stage.
Mr. Bruton: I am glad the Minister is prepared to increase the fine substantially. It is probably unlikely that we shall have a Plant Varieties Bill again for some time and if inflation continues at the present rate, even the new figure the Minister will set will tend to become irrelevant as time passes. I should like him to bear that in mind.
Mr. Hussey: It could be subject to periodic review.
Mr. Bruton: I do not know if the Minister would get away with that. He might have to bring in a new Bill each time. Inflation will tend to reduce the maximum limit considerably.
Question put and agreed to.
Question proposed: “That section 24 stand part of the Bill.”
Mr. Bruton: I should be glad if the Minister would give us some more information about the effects of this section as regards the onus of proof. One should be wary about any shifting of the onus of proof in criminal proceedings.
Mr. Hussey: Subsections (1) and (3) are standard provisions as to trial of offences. Subsection (2), read in conjunction with sections 12 (3) and 23 (3) has this effect: if it were alleged that a person failed to use the registered variety name after the expiration of protection then in proceedings for this offence it must be assumed that protection did not exist at the time of the offence unless sufficient other evidence to raise a doubt is adduced.
Mr. Bruton: I take it this section does not apply to civil proceedings where, say, there is a dispute in respect of a compulsory licence or in respect of a breach of the terms of a monopoly, where the holder is taking an action against somebody else. The provisions  regarding the onus of proof do not apply in civil cases, only in criminal cases?
Mr. Hussey: Yes, I take it that is the position.
Mr. Bruton: Is there need to make similar or any provision in respect of the court proceedings which might be taken in a civil dispute? Is the Minister satisfied that the proceedings will in all cases be equitable? Why is it only in criminal cases that there is specific provision in the Bill about the trial and sentence and onus of proof?
Mr. Hussey: The legal advisers have assured us that this is necessary only in criminal cases.
Question put and agreed to.
Mr. Hussey: I move amendment No. a.a. 11e:
In page 23, subsection (1) (b), line 49, to insert “or any information obtained by the Controller in relation to any such application,” after “application,”.
The proposed amendment is necessary to allow the controller to charge a fee for any service he affords an applicant, for example, acquiring the results of tests carried out on a variety in another UPOV member country.
Amendment agreed to.
Mr. Hussey: I move amendment No. a11c:
In page 24, subsection (1), lines 1 and 2, to delete paragraph (c) and substitute the following:
“(c) such fee in respect of the issue by the Controller of a certificate under section 4 (3) of this Act,
(d) such periodical fees payable by persons holding plant breeders' rights,
(e) such other fees,”.
 This amendment makes provision for the controller to collect a fee on the issue of a certificate of plant breeders' rights. The proposed new paragraph (d) is merely reproducing one fee in the original draft. The proposed insertion of paragraph (e) would allow the controller to charge fees in relation to any other services given for plant breeders' rights—for example, a fee for granting a compulsory licence.
Mr. Bruton: I am sorry when I hear the Minister talking about yet another obstacle being placed in the way of people looking for compulsory licences. Not only have they to satisfy the controller and the Minister but they are now to be charged a fee. I cannot see that that is very fair. Has the Minister considered that?
Mr. Hussey: I have. This just goes to show that compulsory licences are not easily come by.
Mr. Bruton: It seems to be already difficult to get a compulsory licence. But, having gone to considerable expense to prove all that has to be proved—and a person might be acting primarily in the interests of the consumer rather than himself because of overcharging—now the Minister says this person has to pay a fee as well. That is unfair. I do not see why a fee should be charged.
Mr. Hussey: I do not think it is unfair because having been granted a licence it is only reasonable to expect that the expenses incurred by the controller in granting the licence would be recouped from the licence. I do not think there would be any great objection to that.
Mr. Bruton: I do not agree, because the compulsory licensing procedure in this legislation is not so much as a protection for the potential applicant or other merchants as for the consumer against overcharging. This is the case the Minister was making all along when he said that the safeguard against the abuse of a monopoly was the compulsory licence. If that is so, it seems that somebody when applying for a compulsory  licence is trying to do the public a favour as well as himself. It does not seem to be fair that he should be asked to pay a fee which, from what the Minister says, would cover the entire cost of the operation of the examination of the compulsory licence application by the controller's office. This bears out my suspicions that there is no intention that the compulsory licensing procedure will be used and that it will be made impossibly difficult for people to get compulsory licences.
Mr. Hussey: I do not accept that the imposition of this fee would create any great problem, because it would be very small. We must accept that we are attempting to make the whole business self-sufficient. It is important that we make a reasonable charge for any services rendered by the controller.
Mr. Bruton: Is it not the case that the fee will bear a close relationship to the cost of the investigation? Obviously the fee to be charged for somebody who wanted a copy of an entry in the register would be very small, but if the Minister is going to ask people who apply for a compulsory licence to pay the full cost of the investigation I imagine it could be very considerable in many cases.
Mr. Hussey: It would not be necessary to charge the applicant the full cost of any investigation carried out. The proper procedure would be to have a fixed fee for the issue of those licences. There might be more investigating involved in one case than another and for that reason it is important that there be some uniformity and that there be a set charge.
Mr. Bruton: How will the fee be set? By regulation?
Mr. Hussey: Yes.
Mr. Bruton: Can the Minister give me a definite assurance that the fee for a compulsory licence will be standard and reasonable and will not be such as to create any disincentive?
Mr. Hussey: I will give that assurance. I see no problem there.
An Leas-Cheann Comhairle: Is the amendment agreed?
Mr. Bruton: I am still very unhappy about the idea that anyone should be charged for a compulsory licence. There is a principle involved here. The person applying for a compulsory licence is not doing himself as much a favour as he is doing the public a favour and he should not be charged a fee for doing that. Therefore I oppose this amendment.
Amendment put and declared carried.
Section, as amended, agreed to.
Mr. Bruton: I move amendment No. 11c:
In page 24, line 19, after “the Controller” to insert “, representatives of the farming community, representatives of plant breeders, representatives of distributors of seeds and plants”.
This amendment deals with the consultations the Minister must enter into before making a regulation. The Bill as it stands says that the Minister should consult the controller and representatives of such interests as appear to him to be concerned. As of right and automatically the farming community, representatives of plant breeders and representatives of distributors of seeds and plants should be guaranteed by law the right to be consulted before regulations of this nature are made. I realise the Minister probably intends to consult them, but in view of the fact that there will be a very large number of highly technical regulations made under this Bill and that the Bill will have little effect without all the regulations which will have to be made as they will contain the meat of the new legislation, it is important that they be made available to the various interests who can give their comments in time and that should be statutorily guaranteed. I ask the Minister to accept that.
Mr. Hussey: I do not consider it necessary to specify the interests to be consulted. The Deputy can be satisfied that in suitable cases all groups who have a genuine interest will be consulted before regulations are made. Where appropriate the Deputy's suggestions will be included in the consultations, but it would not necessarily be appropriate in every case to consult all or any of them. Many regulations will need to be made under the legislation and to place an obligation to consult specific organisations in all cases would be wasteful and would slow up progress unnecessarily.
Amendment, by leave, withdrawn.
Mr. Hussey: I move amendment No. a. 11d.:
In page 24, subsection (3), line 29, to insert “be” before “after”.
This amendment is necessary because the word “be” was inadvertently omitted in the original draft of the Bill.
Amendment agreed to.
Mr. Bruton: I move amendment No. 11d.:
In page 24, between lines 34 and 35, to insert the following subsection:
“(4) Any regulation or order made under section 2 of this Act shall only take effect after its terms have been approved by resolution passed by both Houses of the Oireachtas.”.
The normal procedure is that orders made under this Bill shall be on the table of the House for 21 days and if any Member of the House feels that they are in any way objectionable he has the power to put down a motion to annul that regulation. I have objection to that procedure in this case. I object on a general basis to the idea that one can only annul them and not amend them because it is a sort of inertia selling. Unless a Member is industrious enough to go to the Library and dig out all the regulations and read them in full, these regulations are never scrutinised at all; but that is another day's work.
 In this case the idea of making law by that means is especially objectionable because section 2 of the Bill is concerned with giving the State power to enter into new international treaties in respect of plant varieties. Any treaty being made by the State should have the affirmative approval of this House. No matter how esoteric the subject matter of the treaty it is still an international treaty binding on this country and no Government should have the power to incorporate a treaty into domestic law by means of a regulation which is never discussed here in this House. In 999 cases out of 1,000, regulations made under the normal procedure of lying on the table of the House for 21 days are never discussed. That is no way to make a treaty. Therefore I propose that in the case of any regulations made giving effect to international agreements under section 2 there be a definite requirement that those regulations not be allowed to take effect until they have been approved by vote in this House. I recollect that when we were discussing section 2 the Minister seemed quite sympathetic to the case I was making and I hope he will be able to accept the amendment now.
Mr. Hussey: I am afraid that I cannot accept the amendment because I consider that it would be unnecessarily restrictive. It is not normal procedure to require the prior approval of the Oireachtas for such regulations or orders.
Mr. Bruton: This is not just any order. This is a convention. This enables the Minister to bring into effect further conventions or agreements in respect of plant varieties. For instance, it may well be decided that the terms of the UPOV Convention will be radically altered to make it much more restrictive than it now is or a new convention concerned with plant varieties of a much more restrictive character may be proposed. Under section 2 the Minister has the power to adhere to that convention and make it the law of the land without the need to do what he has to do on this occasion in relation to the bringing of the  existing UPOV Convention into force here, namely, introduce a Bill and have it properly discussed here in this House. It seems very wrong that an international treaty of this nature, which could be quite wide-ranging in its effect, should be capable of being introduced into the law of this country without having had the definite affirmative approval of this House. This is a point of fundamental principle as far as parliamentary democracy is concerned.
Mr. Hussey: I am still of the opinion that this amendment would be unnecessarily restrictive. Deputy Bruton's argument is perhaps of a more general nature and might be more properly put to the Committee on Procedure and Privileges. The provisions of this section are no different to similar provisions in many of the Bills passed by this House before and I do not think they ever had to comply with what this amendment proposed by Deputy Bruton sets out to make them comply with.
Mr. Bruton: If this power had already existed under existing law there would not have been any discussion on this Bill at all here today. In other words, the Minister is saying that he would prefer never to have this sort of discussion again on any new convention concerning plant varieties. He wants the power to be able to dispense with all of this charade of the last four or five days with amendments and approving the legislation so that he can say that it is all right, that he did not have the power the last time. This UPOV Convention existed and unfortunately he had to go through this bother of discussing the matter and accepting a few amendments, but that in future he is going to make sure that he does not have to discuss it at all because he is going to take the power to ensure that he will be able to adhere to any new conventions made on this subject without any of this bother of having parliamentary discussion on the thing or any other time-wasting exercises. That seems to be the type of attitude that the Minister is, although not intentionally, adopting if he is going to refuse to accept  the amendment I am putting forward. I would remind him that this provision in section 2 is not concerned solely with the existing UPOV Convention. It says:
For the purposes of enabling any international convention or agreement for the protection of plant varieties and plant breeders' rights to which the State is a party to be carried into effect, the Government may by order declare one or more foreign countries, which foreign country, or each of which foreign countries, shall be one whose government or any of whose departments of state is a party to the convention or agreement, to be a convention country for the purposes of this Act, and for so long as the order remains in force any foreign country which is one specified in the declaration contained therein shall be a convention country for the purposes of this Act.
Unless I am mistaken, that really is giving the Minister very wide powers.
Mr. Hussey: I have nothing further to add to what I have already said. The present discussion is really on setting up a new system and any further discussion after this would be adding on to that new system.
Mr. Bruton: Let us suppose that the terms of the UPOV Convention are changed considerably and a number of substantial alterations are made in the text. Would it be possible now under section 2, as referred to in the section we are now discussing, for the Government to make those new changes in UPOV effective in Irish law by means of the powers conferred by this section to introduce them by regulation?
Mr. Hussey: It would.
Mr. Bruton: So what I am saying is correct that whereas in this case we have had to discuss the rules in great detail here in this House, in future and by virtue of the powers now being taken, if a new UPOV Convention is being made  there will be no need to bother with any of this discussion here in the House? It will simply become law by means of ministerial regulation. Is that correct?
Mr. Hussey: If a new UPOV Convention meant changing the basic system we would probably have to come back to the Dáil to make some alterations.
Mr. Bruton: Probably?
Mr. Hussey: Yes.
Mr. Bruton: Can the Minister not be more precise on that?
Mr. Hussey: I cannot.
Mr. Bruton: On the face of it—and my understanding of section 2 may be limited—the Minister is taking very wide powers under section 2.
The Minister should be more definite and be able to give a positive assurance that a change in the UPOV Convention of a fundamental character will have to be approved by the House and that it will not be possible to change it by order.
Mr. Hussey: A change of a fundamental character of the UPOV Convention will certainly have to come back to the Dáil.
Mr. Bruton: That is not clear in the Bill before us because section 2 does not refer to the UPOV Convention but to any international convention. Presumably, this enables us to bring into our law any new conventions which may be made. There may be a new convention entirely, independent of the UPOV, about plant varieties. Ireland has now signed the UPOV Convention and I should like to know if section 2 only allows us to make the effect of signing the UPOV Convention and not for giving statutory effect to it? To give it statutory effect it would have to have a substantive Bill. Is it simply the case that section 2 gives us the full power to make the new convention, whatever it may be, effective here?
Mr. Hussey: Section 2 would give us that power. It might be better if we had a look at this before Report Stage. I have some doubts about it.
Mr. Bruton: I feel strongly about this and I would be upset if the House was prevented by such a provision from having another discussion on this sort on a matter of equal importance in the future. On the assurance that the Minister will give serious consideration to this I withdraw my amendment. Had the Minister not given that assurance I would have put my amendment to a vote.
Amendment, by leave, withdrawn.
Section 26, as amended, agreed to.
Question proposed: “That section 27 stand part of the Bill.”
Mr. Bruton: Will there be a new subhead in the Vote for this?
Mr. Hussey: There will.
Mr. Bruton: Is there any provision in this year's Estimate?
Mr. Hussey: No.
Mr. Bruton: The Bill will not take effect until next year, presumably?
Mr. Hussey: It will probably be next year.
Mr. Bruton: I move amendment No. 11 (e):
In page 24, before section 28, to insert the following section:
“28.—The Minister may by order make regulations to prevent the import of potentially deleterious seeds or to prevent injurious cross pollination affecting crops of seeds, where such regulations are necessary and after consultation with the appropriate interests.”.
 It possibly is the case that we already have power under some other legislation to deal with this matter. Basically, I am seeking to make provision to allow the Minister to make regulations to prevent the importation of dangerous seeds which may lead to the spread of disease or lead to injurious cross-pollination affecting crops of seeds. If this power does not already exist it should be included in this legislation because we should not be allowing seeds to be brought in here which would do damage to existing seed types in use here. The Minister should have some power in that direction. It may be that the Minister already has this power but a section like this was not incorporated in the British legislation.
Mr. Hussey: I consider that the proposed amendment is unnecessary as the importation of potentially deleterious seeds is already prevented by existing legislation. Our regulations on the marketing of agricultural and vegetable seeds introduced to comply with EEC directives lays down the conditions under which these may be marketed. In general, we are obliged to allow the marketing of all seeds that meet EEC requirements, irrespective of whether the seed is produced in the EEC or in certain Third World countries benefiting from equivalents from the EEC for seeds. However, in all seed regulations there is a saver which provides for what the Deputy has in mind. The wording, generally, is as follows: “Nothing in these regulations shall be construed as affecting a provision of any statute, whether passed before or after the making of these regulations, which is a provision for the protection of human life or health, animal life or health, plant life or health or industrial or commercial property”.
Amendment, by leave, withdrawn.
Mr. Bruton: I move amendment No. 11 (f):
In page 24, before section 28, to insert the following section:
“29.—On the commencement of this Act the Minister shall request either the National Prices Commission or the Restrictive Practices Commission to report to him within five years as to whether any provisions of the Act have led in any case to unreasonable prices being charged for seeds or plant varieties in Ireland and as to the amendments to the Act which would be necessary to prevent such unreasonable prices being charged.”.
We have had a discussion on practically all sections on the possibility that the Bill which does confer a monopoly might lead to excessive prices being charged. This amendment proposes that an independent body such as the National Prices Commission or the Restrictive Practices Commission would be asked to report on the operation of this Act within five years of its having become law. I am suggesting that they inquire as to whether in any case the Act has led to unreasonable prices being charged for seeds or plant varieties in Ireland and to make recommendations for amendments to the Act which might be necessary to prevent any abusively high prices being charged. The amendment does not in any sense tie the Minister's hands. It is merely requiring him to ensure that an investigation is undertaken. It is quite possible that an investigation of this nature might be undertaken anyway in respect of applications for increases in price by seedsmen to the National Prices Commission. It would be a useful guarantee against any abuse of this legislation if people knew there was an independent body such as the NPC or the Restrictive Practices Commission undertaking an independent overview of the legislation with a view to reporting in five years' time its findings and any changes they might consider necessary.
Mr. Hussey: I may allay the Deputy's fears here. The terms of the Restrictive Practices Act will apply in the ordinary way to this legislation. In addition, my Department will keep an overall eye on  developments. If any amendment should turn out to be necessary it will be implemented.
Mr. Bruton: I am not happy with that because I know from bitter experience that the restrictive practices legislation here is almost entirely ineffective. It does not work because of the very cumbersome administrative machinery that is there for the investigation of complaints. The examiner has to carry out an investigation. He has not got the staff or the power to investigate properly. Until he has completed his investigation, the case is not referred to the Restrictive Practices Commission. When they have completed their investigation an order has to be made to give effect to the regulations they feel are necessary to prevent whatever abuses they have found.
It has been the experience that the regulations which have been made under the Restrictive Practices Act in most cases, perhaps, have been unenforceable. I have a particular case in mind about restriction on collusion in respect of drink prices in public houses. Extensive regulations have been made under the 1965 Order which have proved to be totally unenforceable. I do not feel the Minister's assurance that the existing procedures under the Restrictive Practices Act will operate in this case is worth anything, because I do not believe that Act is working. I am proposing something different from the application of that Act. An overall investigation should be undertaken of the Act by the Restrictive Practices Commission not with a view to the introduction of specific anti-monoply measures under the Act, which is what the Minister has in mind, but the publication of a general report on the Act. By virtue of its coming from an authoritative source such as the Restrictive Practices Commission, it would have an informative and moral effect in preventing abuses of monopolies.
If a report came out from the Restrictive Practices Commission or the Prices Commission saying they felt that in three or four cases overcharging had occurred,  the publication of that report would tend in itself to highlight the abuse and lead to abuse not taking place. The knowledge that such an investigation was under way would have a similar effect. The Minister would lose nothing by accepting this amendment. It does not tie him to any particular action. I would ask him to consider accepting. It would not cost very much and it would ensure that somebody was looking constantly and independently at the matter.
Mr. Hussey: I still do not see the need for this amendment. I do not feel the Bill should attempt to infringe on the ground of the restrictive practices legislation. Any defect or deficiencies in the restrictive practices legislation should be followed up, but building in a separate provision here would be unsatisfactory.
Amendment put and declared lost.
Section 28 agreed to.
Mr. Hussey: I move amendment No. 11g:
In page 25, Article 1, lines 3 to 8, to delete paragraph (1) and substitute the following:
“1. (1) (a) Whatever the origin, be it natural or artificial, of the initial variation from which a plant variety to which an application under this Act relates has resulted, for the purposes of this Act the variety shall be regarded as being distinct if, and only if, by reference to one or more important characteristics, it is clearly distinguishable from any other plant variety whose existence is a matter of common knowledge at the time when the application is made.
(b) The distinguishing characteristics must in all cases be capable both of precise description and of recognition.”
As I have already mentioned, I will be proposing an amendment on Report  Stage to the effect that section 1 (5) be dropped altogether from the Bill. While the specific reference to a plant variety growing in the wild, therefore, will no longer appear if this amendment is agreed, the Bill must still provide that rights may be granted in respect of a plant variety whatever its origin, natural or artificial. This is a requirement of the UPOV Convention.
Amendment agreed to.
Mr. Hussey: I move amendment No. 12:
In page 25, Article 2, line 16, to insert “, with the consent of the applicant or his predecessor in title,” before “been”.
This is to highlight the fact that the grant of rights depends on no consent having been given previously for commercialisation either by the applicant or by his precedessor in title except as specifically provided for. This would cover the breeder against all his work being nullified by some unlawful sales, for example, following the theft of the breeding material.
Amendment agreed to.
Question proposed: “That the First Schedule, as amended, be the First Schedule to the Bill.”
Mr. Bruton: This concerns a requirement for accepting a variety as being one for which a patent should be given. It must not be previously commercialised, and it must be distinct and uniform. As I mentioned earlier, at the moment there is a discussion in the United States of America on a similar Bill. It is running into a lot of controversy in the House of Representatives. The main fear being expressed there is rather different from the one we have been discussing. It is that this type of legislation runs the risk of leading to a reduction in the total number of varieties of plants available. The argument is that by requiring that the variety be uniform, in order to ensure that people comply with the terms of the Act and that there are no other variations  in a particular type of plant, if a plant is slightly different in some of its characteristics it is thrown away. It is argued that this has encouraged the destruction of varieties of plants. For example, in America it has been argued that about 200 plants become extinct every year and about 25,000 of varieties are in danger of extinction. There are fears also that by promoting plants which are uniform one may tend to reduce the number of varieties that exist and that this may make the danger of an epidemic which would wipe out a whole countryside of plants more likely. If one did not have the requirement to maintain different varieties of plants and if disease broke out within one variety it would not affect them all because some might be slightly resistant, whereas if one opts for varieties which are absolutely uniform, if one variety catches the disease it will eliminate the lot. I will quote briefly from the submission of Mr. Woodrow Wilson to the US House Committee on Agriculture on 22 April last:
The widespread use of uniform seeds with less resistance can result in a disaster like the epidemic of Southern corn leaf blight which destroyed much of the United States' corn crop in 1970.
He also said that there had been a study by the Office of Technology Assessment in regard to the operation of legislation in the US. He said:
Many of the new varieties certified by the major seed companies during the ten years since the passage of the Plant Varieties Protection Act produced higher yields but are more vunerable to pests and disease.
I feel strongly that there must be some means to ensure that we do not have an undue concentration on too small a range of plant varieties which are uniform because otherwise we would be vulnerable to the type of disaster I have mentioned.
Therefore it is essential that the State should take on itself the duty of preserving  a bank of varieties which are slightly different from those patented because otherwise, because they are not commercial at the moment, they may be allowed to become extinct. Definitely there is a danger of this happening and if the State does not do something about it is likely that the commercial firms will not do it because their only concern is with varieties of plants from which they can get an immediate return in the market as it obtains. They are not concerned about whether the varieties they are marketing will be vulnerable to a disease that might break out in 15 years. If they make enough profit between now and then they will be quite happy about that, whereas the State must be prepared to take a longer view and to preserve varieties of plants which might not be very marketable at the moment but which would be very useful in the event of some disease breaking out as a stock from which to build up new varieties which would be resistant to new diseases. If the only varieties available are those which are in constant commercial use and if a disease breaks out which affects all of them, we would be left without any stock from which to draw to build up new varieties which would be disease resistant.
I do not believe the commercial companies will have a sufficient financial incentive to maintain gene banks of plant varieties which are not immediately marketable. The State must do this because otherwise there is the danger that this legislation could lead to this eventuality. I realise there is substantial disagreement among people as to whether what is leading to this increasing uniformity in plants has anything to do with this Bill, that it may be other factors that are causing it——
An Leas-Cheann Comhairle: The Deputy is making a very long statement. Does the Minister wish to come in on this?
Mr. Hussey: This schedule lays down the conditions of the UPOV Convention which a plant variety must satisfy in order to be regarded as new, and therefore  to qualify. It must be distinct in one or more important characteristics: it must not have been previously commercialised in the State at any time or in any other country, prior to a period of six years in respect of vines, forest trees, fruit trees and ornamental trees, or four years for other species; it must be uniform or homogeneous to meet standards and criteria specified by the controller; it must be stable, that is, it must remain true to its description after repeated reproduction; it must be given a name to be specified by the applicant and approved by the controller as provided in section 12.
Deputy Bruton said that the State had a duty to preserve plant varieties. Most states are now establishing gene banks and we will do our best within our capabilities in this respect. A link has not been established between the existence of plant breeders' rights and the decline in some countries of the number of plant varieties available. Just because rights are granted does not mean that people must use these varieties. People are still free to choose as before, and presumably they will use the varieties best suited to their needs. During the Second Stage I said that there is a greater variety of plants now available to growers than ever before.
Mr. Bruton: Would the Minister be more specific as to what he means by our doing our bit as far as gene banks are concerned?
Mr. Hussey: If there is a need to preserve any variety or if there is a danger of a variety becoming extinct, I take it the State would ensure that this would not happen.
Mr. Bruton: Unless there is some means of knowing that a variety is in danger of becoming extinct it might be too late. I am afraid we would only miss something after it had gone. I should like an assurance from the Minister that he would establish a gene bank to preserve these varieties. Is that being done to any extent?
Mr. Hussey: Yes.
Mr. Bruton: Which varieties, and is there any intention to expand the programme?
Mr. Hussey: I understand it is being done for potatoes.
Mr. Bruton: What about grain?
Mr. Hussey: Only in respect of some varieties.
Mr. Bruton: I appreciate there is not a lot of point in Ireland preserving varieties which are being preserved elsewhere, and of course there is a need for an international division of labour in this respect, but can the Minister say if he has had contacts with other countries to ensure an availability to us of a comprehensive bank of all varieties that are not commercially used at the moment? This might be taken up at EEC level, that it would be appropriate for the EEC to decide that individual countries would be responsible for preserving different varieties. This would not cost very much, it might not be very useful but in certain circumstances it could be extremely useful and almost vital.
Mr. Hussey: We have been in touch with some countries and we will maintain these contacts.
Question put and agreed to.
Mr. Hussey: I move amendment No. 13:
In page 26, Article 2, lines 29 to 34, to delete paragraphs (b) and (c) and substitute the following:
“(b) the holder of the relevant grant of plant breeders' rights (if he is not the applicant),
(c) any person by whom a notice has been duly given in relation to the application pursuant to regulations under section 15 of this Act.”.
 The proposed amendment provides that the holder of rights is entitled to be heard on the hearing of an appeal either to the controller or to the Appeal Committee, no matter what the grounds of appeal. Under the original provision in section 2 (c) of the Second Schedule this was limited to sections 21 or 22. The proposed provision in section 2(c) is merely reproducing section 2(b) in the original draft.
Amendment agreed to.
Mr. Hussey: I move amendment No. 14:
In page 26, Article 3, line 35, to delete “for an order”.
The proposed amendment is to improve the drafting of Article 3.
Second Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Tuesday, 27 May 1980.
|Last Updated: 14/09/2010 12:44:30||Page of 45|