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Lord Skelmersdale moved, as an amendment to Amendment No. 11, Amendment No. 12:

Line 14, leave out from ("proved") to end of line 15.

The noble Lord said: I should declare an interest in that I am a director of a family horticultural firm. Doubtless your Lordships will take what I am about to say with your customary pinch of salt because of that declaration of interest. However, borrowing from a Downing Street declaration, I have as of this moment no selfish strategic or economic interest in the Bill.

I could hardly be unaware of the long-running sore in the horticultural industry which is characterised by a diverse and open market at all levels of production and sale. As the noble Lord, Lord Carter, almost said, any unscrupulous person can purchase a plant at retail level and from that plant multiply up commercial quantities for resale. The breach of plant breeders' rights is only discovered when a protected variety, cut flowers, foliage, or whatever, is offered for sale as a finished product. That event is obviously some distance from propagation. The breeder cannot show unauthorised use of propagating material or whether he had enjoyed a reasonable opportunity before the harvested material was obtained to exercise his rights in relation to the unauthorised use of the propagating material. Thus the drafting of Clauses 6(3) and 6(4) turns on itself to defeat the plant breeder. I therefore congratulate the noble Lord, Lord Carter, on introducing the new clauses, marked as Amendments Nos. 11, 13 and 14 on the Marshalled List today, recognising as they do that the person best placed to know the source of the harvested material is the person who is offering that harvested material for sale.

The new clauses propose that a plant breeder submit a limited questionnaire in a form to be laid out by Ministers in regulations. Incidentally, the last time, during debate on an earlier clause, the noble Lord mentioned matters prescribed under regulations I think I heard him say that the ministry did not intend to make any prescription. Perhaps he can confirm that on this occasion prescription will take place.

Assuming that it will take place, if the breeder does not receive a straight answer, the burden of proof in relation to the unauthorised use of propagating material should shift on to the person offering the harvested material for sale. That simple adjustment provides a

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plant breeder with the opportunity of making an application to the civil court seeking to exercise his rights in relation to that harvested material. The person who has offered for sale the harvested material would have a right to defend such action and the opportunity of proving that either the harvested material had not been obtained through unauthorised use of propagating material or that the plant breeder had had reasonable opportunity to exercise his rights at a higher stage of production. I hope I have interpreted the new clauses, which are to say the least rather complicated, correctly.

I further assumed that the information provided by the first person approached would enable the plant breeder to serve a similar questionnaire on the person who had been the supplier to that person, and so on, until the chain was established. This shift in the burden of proof, which of course is not in itself final and which is subject to the ruling of the court in which any proceedings are tried, would underpin fair competition between enterprises in the horticulture sector. That is what we all want. So all well and good. However, there is a worry.

The worry is that one part of the first new clause potentially drives a coach and horses through an admirable protection for the plant breeder. A defence is given in lines 14 and 15 of Amendment No. 11 which allows the grower to show,

    "that he had a reasonable excuse for not supplying the information",
to the breeder. What does the Minister mean by "reasonable"? Would he, for example, find it reasonable for the dealer to refuse to give information to the breeder on the grounds that the information was commercially confidential? Could the argument be that since the dealer in plants had found a cheap source he would not want his competitors to know that source? In this context it may be relevant that some of the large plant breeding firms also grow and sell their own crop. Another excuse that springs to mind rests on the fact that plans are often sold at auction, particularly in Holland, in large quantities, sometimes with no accompanying documents. Would that be a reasonable excuse? I beg to move.

Baroness Anelay of St. Johns: I should make it clear from the beginning that we support the objective behind Amendments Nos. 11, 13 and 14. The major problem of enforcement of rights is peculiar to ornamentals and is of equal concern to both breeders and licensed growers. The British association representing breeders has some 300 nursery firms licensed to produce protected ornamental varieties. I am grateful to that organisation for the information it provided on this matter.

My noble friend Lord Skelmersdale has clearly outlined the problems facing BARB in enforcing breeders' rights. I do not propose to repeat those. I merely endorse them. In moving his amendment he has raised some reservations with regard to the phrasing of the government amendment. I listened with care to the points raised by my noble friend. I shall be interested to hear the Minister's response to them.

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4.45 p.m.

Lord Carter: Before I respond to Amendment No. 12 perhaps I may correct a statement I made about car boot sales. It has just occurred to me that car boot sales are for money. So a breeder might want to take action against a seller there and could therefore serve an information notice.

Amendment No. 12 seeks to remove the provisions in Amendment No. 11 which provide that the burden of proof in infringement proceedings is not reversed if the defendant shows that he had a reasonable excuse for not supplying the information. We would say that it is for the courts to decide what constitutes a reasonable excuse. The kind of circumstances where a defendant might be able to rely on the provision are, for example, if his premises have been burgled and his records have been destroyed in the process. Without it the presumption would operate and the defendant would have no way of displacing it. This kind of defence is very common in UK law. I believe that it is right that it should be available in respect of information notices.

The noble Lord asked me to confirm that regulations will be made. The answer is yes. With that explanation I hope that the noble Lord will feel able to withdraw his amendment and that the Committee will then accept my amendment.

Lord Skelmersdale: I shall of course consider further what the noble Lord has said and in a moment ask leave to withdraw my amendment. Before doing so, perhaps I may say that the whole object of the exercise is surely to avoid going to court if it is possible. That is my instant reaction. Therefore, the clearer the Bill can be to avoid that, the better. I beg leave to withdraw the amendment.

Amendment No. 12, as an amendment to Amendment No. 11, by leave, withdrawn.

Amendment No. 11 agreed to.

Lord Carter moved Amendment No. 13:

After Clause 13, insert the following new clause--

Presumptions in proceedings relating to products made from harvested material

(" .--(1) This section applies to any proceedings for the infringement of plant breeders' rights as respects any product made directly from harvested material.
(2) If, in any proceedings to which this section applies, the holder of the plant breeders' rights proves, in relation to any product to which the proceedings relate--
(a) that it has been the subject of an information notice given to the defendant by or on behalf of the holder, and
(b) that the defendant has not, within the prescribed time after the service of the notice, supplied the holder with the information about it requested in the notice,
then, as regards the product in relation to which the holder proves that to be the case, the presumptions mentioned in subsection (3) below shall apply, unless the contrary is proved or the defendant shows that he had a reasonable excuse for not supplying the information.
(3) The presumptions are--
(a) that the harvested material from which the product was made was obtained through unauthorised use of propagating material,
(b) that the holder did not have a reasonable opportunity before the harvested material was obtained to exercise his rights

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in relation to the unauthorised use of the propagating material, and
(c) that no relevant act was done, before the product was made, as respects the harvested material from which it was made.
(4) An act is relevant for the purposes of subsection (3)(c) above if it is mentioned in section 6(1) above and is--
(a) done with the authority of the holder, or
(b) one in relation to the doing of which he has a reasonable opportunity to exercise his rights.
(5) The reference in subsection (2) above to an information notice is to a notice which--
(a) is in the prescribed form,
(b) specifies the product to which it relates,
(c) contains, in relation to that product, a request for the supply of the prescribed, but no other, information, and
(d) contains such other particulars as may be prescribed.
(6) In this section, "prescribed" means prescribed by regulations made by the Ministers.").

The noble Lord said: I spoke to this amendment with Amendment No. 11. I beg to move.

On Question, amendment agreed to.

Clauses 14 to 31 agreed to.

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