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Baroness Anelay of St. Johns moved Amendment No. 2:

Page 3, line 23, leave out from ("may") to end of line 24 and insert ("impose reasonable conditions when giving authority for the purposes of subsection (1) above.").

The noble Baroness said: I begin by thanking the noble Lord, Lord Carter, for his welcome to me in my new position. Whether it will be a baptism of fire will be apparent by the end of today.

Under Clause 6(1) a holder of plant breeder's rights is entitled to prevent anyone doing any of the acts listed in the subsection as respects the propagating material of the protected variety without his authority. Subsection (2) makes it clear that any authority granted by the holder for one of those acts may be given with or without conditions or limitations. The purpose of this amendment is to ensure that where the holder decides to give authority for such an act then any conditions which he, or indeed she, attaches thereto, should be reasonable. In other words, we are trying to avoid a technical grant of authority with conditions which are so unreasonable that the authority is thereby rendered useless to the person seeking the holder's permission. We are trying to achieve a fair balance between the parties.

Some might of course argue, and the Minister may do so, that such a change would be a recipe for litigation in the courts on what was reasonable. But I am assured that it is believed that in practice such a provision would act as guidance to holders to behave responsibly and that court proceedings should be an unlikely outcome.

I also notice that the Government are not themselves against using the definition "reasonable" in the context of this Bill as a matter of principle since that is the term used in their own Amendment No. 11 to Clause 13. I hope, therefore, that the Minister will be able to accept this amendment today. I beg to move.

Lord Carter: The very first amendment I moved in this House was in 1987 on an agricultural Bill, and it was accepted on behalf of the Government by the noble Baroness, Lady Trumpington. Unfortunately, I shall not be able to offer the same courtesy to the noble Baroness.

As she said, Clause 6(2) provides for plant breeders to give authority to others to use protected varieties, with or without conditions or limitations. It is this provision which establishes the basis for the licensing system whereby plant breeders control the use of their intellectual property and obtain a return on their investment, through royalties.

The proposed amendment would restrict the breeder's right in the commercial interests of individual farmers and seedsmen. In other words, it would limit the breeder's ability to conduct his business as he sees fit. It would also lead to the courts acting as arbitrators in determining whether a breeder was imposing reasonable conditions in a licence issued to a particular individual.

If the amendment is made, the licensing provisions would lead to situations such as the following. A breeder would issue a licence, which would be accepted by an

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individual grower or seedsman, who would then decide that one or more of the licence conditions were not "reasonable". The grower or seedsman would then decide not to comply with the conditions he believed were unreasonable. Court proceedings would ensue and it would be up to the courts to decide who was right in what was essentially a business dispute.

I do not believe that this Bill should attempt to set the terms on which a plant breeder must do business with individual customers, and I therefore oppose the amendment. That is not to say that the breeder should be able to do just as he likes. If he acts against the public interest, Clause 15 provides for a compulsory licence to be issued. But the public interest is not the same as the interests of an individual farmer or seedsman.

The UPOV Convention is also clear that the breeder should be able to conduct his business as he wishes. The Convention is quite specific. It states:

    "no Contracting Party may restrict the free exercise of a breeder's right for reasons other than of public interest."
Clauses 6(2) and 15, as drafted, reflect that position, as does the Community regime of plant breeders' rights.

I hope that that explanation will enable the noble Baroness to withdraw her amendment.

Baroness Anelay of St. Johns: I thank the Minister for his explanation. I would like time to consider the points he made. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 3:

Page 3, line 37, leave out from ("unless") to end of line 39 and insert ("subsection (4A) below applies.
(4A) This subsection applies if, before the product was made, any act mentioned in subsection (1) above was done as respects the harvested material from which the product was made and either--
(a) the act was done with the authority of the holder of the plant breeders' rights, or
(b) the holder of those rights had a reasonable opportunity to exercise them in relation to the doing of the act.").

The noble Lord said: Clause 6(4) provides for the breeder's right to extend to directly made products prescribed by Ministers, where the breeder's right has been infringed at an earlier stage in the production cycle, in circumstances where the breeder has not been able to take action against the earlier infringement. The current drafting, mistakenly, provides that Clause 6(4) can only come into play if the product is obtained from harvested material by committing an act which requires the breeder's authority. These acts are listed in Clause 6(1).

It is, however, quite possible for a product to be made from harvested material to which the breeder's rights extends without committing any of the acts in Clause 6(1). In these circumstances, Clause 6(4) should provide that where rights are infringed in respect of the harvested material and the breeder has not been able to act against that infringement he can use Clause 6(4) to act against the directly made product whether or not one of the acts in Clause 6(1) is committed to produce the product.

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My brief adds, "I hope you have found this explanation enlightening." The nub of the matter is that the amendment corrects the drafting of Clause 6(4) and brings the Bill into line with the UPOV Convention and the Community regime. I should also remind the Committee that extension of the breeder's right to directly made products only comes into play if Ministers make regulations prescribing those products. The Committee will be glad to hear that we have no plans to prescribe any products at present. I beg to move.

Baroness Anelay of St. Johns: My note to myself says that this amendment makes the clause more comprehensible. I am not too sure what time of night I wrote my note.

I observe that the Government have retained the overall objective within this clause. It is one that we can support, and therefore we support the amendment.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 agreed to.

Clause 8 [General exceptions]:

Lord Carter moved Amendment No. 4:

Page 4, line 38, leave out (", or other") and insert ("and").

The noble Lord said: The 1991 UPOV Convention exempts from the breeder's right acts done for private and non-commercial purposes. This is to ensure, for example, that amateur gardeners may continue to take cuttings of protected varieties for their own private use.

The Bill as drafted refers to private or other non-commercial use. It could be interpreted as permitting the multiplication of large quantities of protected varieties for public use, rather than private use, provided it is done for non-commercial purposes, for use, perhaps, in public parks or something similar. That is not what UPOV intended. The amendment therefore brings Clause 8 into line with the UPOV Convention and the corresponding provision in the Community plant variety rights regime by making clear that an act must be both private and non-commercial to fall within the exemption. I beg to move.

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Farm saved seed]:

Lord Carter moved Amendment No. 5:

Page 5, line 20, after ("date") insert ("after 30th June 2001").

The noble Lord said: The Committee will know that farmers who have saved seed of a protected variety before the Bill comes into force are exempt from paying farm saved seed "royalty" on that variety until such time as Ministers discontinue the exemption by order (see Clause 9(5) and (6)). The Community plant variety regime includes a similar "prior use" exemption, which continues until at least 30th June 2001 and may be extended beyond that date.

Ministers have made clear that they do not intend to end the UK "prior use" exemption until the Community exemption ends. The farming unions were nevertheless

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concerned that the Bill as drafted does not identify 30th June 2001 as the earliest date for discontinuing the "prior use" exemption.

At Second Reading I undertook to address those concerns. The amendment gives effect to that undertaking by providing that Ministers may only make an order discontinuing the "prior use" exemption on a date after 30th June 2001. I beg to move.

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