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Mr. Tam Dalyell (Linlithgow): Has my hon. Friend any idea who will represent the United Kingdom in future?
Mr. Rooker: My hon. Friend is predictable. Earlier this morning, because the matter was not covered in the briefings, I asked my officials about the devolution aspects of the Bill. On the basis that the controller of plant variety rights represents the United Kingdom, the Ministry of Agriculture, Fisheries and Food covers the budget.
To the best of my knowledge, and subject to discussion on other legislation, the controller will continue to represent the United Kingdom. This may or may not be a devolved matter, but it seems inconceivable that it would be in future. Basically, this is a United Kingdom issue. The United Kingdom is a member of UPOV and will continue to be. I am grateful to my hon. Friend for raising that point, because I had raised it in any event and we need clarity; needless to say, it will come in future legislation.
Technology has moved on since 1964 and it was the driving force behind the revisions in 1991. Israel, Denmark and the Netherlands have already ratified the 1991 revisions. When the Bill receives Royal Assent and once we have ratified the convention, we shall be the third member of the European Union to ratify it. It is worth taking a lead in Europe and setting an example. Against that background, it is essential to provide UK plant breeders with the additional protection of the 1991 convention, to provide a secure basis for future investment in breeding in this country.
It is highly desirable that we bring our national system of protection in line with that of the Community regime, which is already based on the 1991 convention. Plant breeders have a choice between national systems of protection and the Community system, which offers a right that is valid in all 15 member states. The Community regime is, however, more expensive than the national systems. A breeder who intends to commercialise his variety in one or two EU countries will find it more economic, therefore, to opt for national protection, provided the protection is as good as that offered by the Community regime. That is an important aspect of the Bill.
If the national regime is aligned with the Community regime, plant breeders will be able to obtain the same standards of protection more cheaply if they intend to confine commercialisation of a variety to the UK or perhaps to one or two other EU countries. However, it will also put an end to the confusion that can arise when two systems that are different, but have the same users--plant breeders, farmers and seed processors--operate side by side.
In broad terms, the main changes in the Bill compared to the Plant Varieties and Seeds Act 1964 are, first, that the possibility of protection is extended to all genera and species; secondly, that the rules on prior exploitation in advance of an application for rights are relaxed to allow breeders, if they so wish and are prepared to take the risk, to test the market in the UK for their varieties before
seeking protection; thirdly, that a simplified system of provisional protection pending a grant of rights is introduced; and, fourthly, that the breeder's right is strengthened and extended in several areas.
We are also taking the opportunity to extend the period during which proceedings may be taken for contravention of seed regulations from six to 12 months in Great Britain. That mainly affects what I might call, in my language, the seed potato scams in Scotland. That provision is contained in clause 44.
When one compares the Bill to the 1964 Act, one finds that perhaps the most fundamental changes are in clause 6 and 7; I shall concentrate on those and on references to clause 9.
Clauses 6 and 7 set out the scope of plant breeders' rights. The basic right in the 1964 Act is the exclusive right to sell propagating material of a protected variety or produce propagating material for sale. The Bill changes the nature of the breeder's right from the right to do to the right to prevent others from doing certain things with propagating material of a protected variety. This brings plant breeders' rights closer to patent rights, but the change in itself is, and will be, thought to have little practical effect.
Clause 6 sets out the extent of the breeder's rights in a protected variety. The key change is the much wider scope of things that the breeder can prevent others from doing without his authority, including, for example, any production or reproduction of propagating material, conditioning--by which I mean preparing for planting--import, export and so on. Taken together, provisions in clause 6 give the breeder control of all the things necessary to exploit a variety. That includes the use of farm-saved seed, which I shall come to when I discuss clause 9.
Mr. Tim Boswell (Daventry):
Does it also include the breeder's right to constrain the use by others, in varieties that have already been developed, of genetic manipulation, and the apportionment of the rights in those cases? I raise that point now for later consideration.
Mr. Rooker:
I do not want to repeat myself, but I guarantee that I shall refer to that later--if not on Second Reading, in Committee.
In normal circumstances, the breeder's right is exhausted once propagating material is disposed of with his consent to produce a commercial crop. For example, he cannot exercise control of wheat seed sold to produce a crop of milling wheat and used for that purpose. In other words, the breeder has no control of the production or use of consumption crops.
However, the ability of the breeder to take action against infringement of his rights has been strengthened by extending his rights to harvested material that has been obtained from the unauthorised use of propagating material, in circumstances where the breeder has not had a reasonable opportunity to exercise rights against the material before it is harvested.
The Bill includes an optional provision from the 1991 convention that allows Ministers to extend rights, by regulation, to specific products made directly from harvested material of particular types of varieties that have been obtained through unauthorised use of propagating and harvested material, where the breeder has not had a reasonable opportunity to exercise his rights at an earlier stage. That is a crucial part of the changes.
The extension of rights to enable the breeder to act against harvested material and, where provided for in regulations, directly made products, is known as the "cascade" principle. I emphasise that it does not give plant breeders a choice between acting against propagating or consumption material. The breeder must always act against infringement of his rights at the earliest possible stage. He must, therefore, act against unauthorised use of propagating material right up to the point of harvest, if he can reasonably do so. If he knows of an infringement of his rights before harvest of the infringing material, he must act at that point--he cannot decide to wait until after harvest and act against the consumption crop.
The most obvious instance where a breeder might not have the opportunity to exercise rights at an earlier stage is unauthorised use of propagating material outside the United Kingdom, in a country that does not offer protection to it, followed by the import of harvested material or, possibly, of a product made directly from the harvested material. An example would be the import of cut flowers that have been created from that earlier material. The breeder would have no opportunity to act because the flowers would be created outside the UK and the breeder would not know about it beforehand, but the import of the product of that seed is the point at which he can take action.
Clause 7 implements the extension of the breeder's right in a protected variety to encompass a second variety dependent on it, which is a new provision in the 1991 convention.
There are two types of dependency. The first, which is already recognised in the 1964 Act, occurs when a dependent variety can be obtained only as a result of repeated use of a protected variety. The most common example is that of hybrid varieties that can be obtained only by returning constantly to the parent line. In practical terms, that shift of emphasis is unlikely to have a substantial effect on the current use and production of hybrids, especially as parent lines and dependent hybrids are commonly "owned" by the same plant breeder.
The second type of dependency recognised in the Bill--essential derivation--represents a more fundamental change, introduced to address developments in plant breeding technology. Protected varieties may freely be used in plant breeding programmes. The free use of germplasm to develop new varieties is, and has always been, a fundamental principle of UPOV. However, where the resultant change is very small--typically, one characteristic--but sufficient to make the second variety distinct from the initial variety, and in all other respects the second variety expresses the same characteristics as the initial variety, it may be essentially derived from the initial variety. In other words, there is no cop-out. The plant breeder's rights are protected.
Clause 7 extends the umbrella of protection in the initial variety to cover the essentially derived variety. It is possible, with modern technology, for people to try to find ways around these protections; but tracing back to the original variety is also now possible. It is important to protect the intellectual rights of the breeder--hence this important part of the Bill.
The consequence of this change is that the breeder of the initial variety has the right to prevent anyone from doing any of the acts in clause 6 in respect of the
essentially derived variety--in other words, he can prevent its commercial exploitation. The essentially derived variety may or may not be protected in its own right. If it is protected by a different person from the one with the initial variety, then the authorisation of both is required to enable it to be exploited. If it is not protected, authorisation is required only from the holder of rights in the initial variety.
This enables the breeder of a protected variety to obtain a fair return on his investment. Such investments are made over many years and yield an uncertain return. In practical terms, those working on a breeding programme that may result in an essentially derived variety can be expected to reach agreement on its commercialisation with the owner of the initial variety--otherwise, there would be little point in their work. This is not a matter on which the Government should take a stand; it is a matter for commercial negotiation between the people concerned, and they have the right to insist on such negotiations.
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