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Baroness Trumpington: As the Committee heard, at the Second Reading of this Bill on 18th July I raised the question with the noble Lord, Lord Prys-Davies, of older varieties, particularly in regard to their exemption. At that time the noble Lord, Lord Carter, undertook to discuss this matter with me and with others. He recognised that there was a problem. He did indeed hold a meeting. He put forward today a solution which is very agreeable to those interested parties with whom I have been in contact. On their behalf I should like to express my appreciation. Charm does work sometimes! As it is my birthday, I give the noble Lord full permission to call me "Grandmummy" in the future if he so wishes.

Earl Howe: Perhaps I may briefly express my welcome for the announcements made by the noble Lord, Lord Carter, this afternoon. The whole issue of farm-saved seed has been the subject of painstaking and patient negotiation between breeders and farmers over an extended period, as I well remember from my time at the Ministry of Agriculture. The balance eventually struck was one which it would have been unwise to upset, particularly that part of the agreement relating to older varieties which do not enjoy protection under the European scheme.

I am pleased that the Government felt able to recognise the arguments put forward at Second Reading by my noble friend Lady Trumpington and others. We should now have a secure basis for the trade agreement to operate in the future.

Clause 9, as amended, agreed to.

Clause 10 [Exhaustion of rights]:

4.30 p.m.

Lord Carter moved Amendment No. 8:

Page 6, line 10, at end insert (", or
(b) is derived from material which has been so sold or otherwise marketed.")

The noble Lord said: In moving Amendment No. 8 I will speak also to Amendment No. 9, which is grouped with it.

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These amendments correct the drafting of Clause 10 which is concerned with the exhaustion of the breeder's rights. They do not change the policy in any way but simply ensure that the clause as drafted is effective.

It has always been the intention that the breeder should be able to exercise his rights only once in a cycle of propagation. If a farmer buys wheat seed to produce milling wheat, then the breeder's right obviously should be exhausted at the point of sale of the seed. The right of propagation to produce the commercial crop will be authorised in the sale and the breeder will have no rights over the subsequent crop of the milling wheat.

The breeder's right will not be exhausted, nor will he have authorised any propagation after this initial propagation. In other words, the breeder's right is not exhausted where there is further seed production. If, for example, some first generation wheat seed is sold and used to produce certified second generation wheat seed, then the breeder's right applies to the second generation of seed. Clause 10, as amended, will reflect that position.

There is a complicated drafting point about which I know the noble Baroness was concerned. The amendment introduces subsection (1)(b) and one quickly asks "Where is (a)?" I have a long note of explanation from the Public Bill Office. It relates to the printing of the Bill and I am assured that it is correct. If the amendment is accepted--which I am sure it will be--Clause 10(1) will read:

    "(1): Plant breeders' rights shall not extend to any act concerning material of a variety if the material--

    (a) has been sold or otherwise marketed in the United Kingdom by, or with the consent of, the holder of the right, or

    (b) is derived from material which has been so sold or otherwise marketed."

I beg to move.

Baroness Anelay of St. Johns: I am not rising to frighten the Minister into thinking I am opposing this amendment but merely to thank him for circulating the technical note. I am still learning after being here for under a year, but this really did fox me as to why there was a (b) and no (a). I am grateful to the noble Lord for his assistance and explanation. We support the amendment.

On Question, amendment agreed to.

Lord Carter moved Amendment No. 9:

Page 6, line 12, leave out from ("variety,") to ("or") in line 14.

The noble Lord said: This amendment has been spoken to with Amendment No. 8. I beg to move.

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Duration]:

Lord Carter moved Amendment No. 10:

Page 6, line 35, after ("period") insert (", not exceeding--
(a) in the case of paragraph (a), 35 years, and
(b) in the case of paragraph (b), 30 years,").

The noble Lord said: Amendment No. 10 meets the commitment I gave at Second Reading to restrict the period for which Ministers may extend rights for particular species or groups to five years in total.

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Rights for trees, vines and potatoes may therefore be extended to a maximum of 35 years and rights for other species or groups may be extended to 30 years in total. I beg to move.

Baroness Anelay of St. Johns: This amendment addresses the points raised on Second Reading by my noble friend Lord Lucas (col. 1136 of the Official Report.) He pointed out that Clause 11(2) allows for the extension of plant breeders' rights beyond 25 or 30 years, apparently without limit. This would give the Government the power to decide upon any extension period without limit or a requirement to consult before taking such action.

My noble friend stated then that we would like to see the requirement for prior consultation to take place if such a wide-ranging power were to remain in the Act. The alternative he proposed was that the power should be limited to five years contained in the EC directive. In those circumstances, he made it clear that we would not require prior consultation.

I welcome and support the amendment because it meets fully the objections raised by my noble friend Lord Lucas.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Clauses 12 and 13 agreed to.

Lord Carter moved Amendment No. 11:

After Clause 13, insert the following new clause--

Presumptions in proceedings relating to harvested material

(" .--(1) This section applies to any proceedings for the infringement of plant breeders' rights as respects harvested material.
(2) If, in any proceedings to which this section applies, the holder of the plant breeders' rights proves, in relation to any of the material 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 material 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 material was obtained through unauthorised use of propagating material, and
(b) that the holder did not have a reasonable opportunity before the material was obtained to exercise his rights in relation to the unauthorised use of the propagating material.
(4) The reference in subsection (2) above to an information notice is to a notice which--
(a) is in the prescribed form,
(b) specifies the material to which it relates,
(c) contains, in relation to that material, a request for the supply of the prescribed, but no other, information, and
(d) contains such other particulars as may be prescribed.
(5) In this section, "prescribed" means prescribed by regulations made by the Ministers.").

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The noble Lord said: In moving Amendment No. 11 I will also speak to Amendments Nos. 13 and 14, which are grouped with it. The noble Lord, Lord Skelmersdale, will be moving Amendment No. 12 to Amendment No. 11 and I will deal with that after he has spoken to it.

Amendments Nos. 11, 13 and 14 address the particular problems that breeders of vegetatively propagated ornamental plants face in enforcing their rights.

Ornamental plants are traded to the public through a wide range of retail outlets, including garden centres, supermarkets and by mail order. Ornamental plants, by their very nature, are easy to multiply through, for example, taking cuttings or using modern tissue-culture techniques. The products--for example, rose bushes or pot plants--which have been produced legitimately and on which royalty has been paid, can easily be diverted from their proper end use and used for further propagation, without the breeder's authority, as they are traded through a chain to the final consumer.

Illicit propagation, where no royalty is paid, enables less scrupulous traders to undercut those who are operating legitimately and gives them an unfair advantage. Plants which have been produced through illicit propagation are the same as those produced by authorised propagation--it is, after all, a condition of protection that plants reproduce true to type. A plant breeder cannot therefore identify infringing material by looking at the plants. He needs to know the source of the plants on sale.

If the seller refuses to provide information on where he obtained the plants--and those who knowingly trade in illicitly-produced protected varieties will almost certainly refuse to do so--then the breeder is left with a strong suspicion that his rights are being infringed, but nothing more.

The new clauses provide for plant breeders to issue information notices, in a form prescribed by Ministers in regulations, to people trading in plants or directly made products of protected varieties. Where the trader refuses to provide the information requested within a period specified in the regulations, without reasonable excuse the clauses require the courts to presume that the material or directly made products to which the notice relates were obtained in circumstances which infringed the breeder's right, unless the defendant can show otherwise. In effect, therefore, the burden of proof is reversed in these very carefully defined circumstances.

The information to be provided will not be onerous. I envisage that it will basically be details of the supplier and the amount of material supplied by him. It is reasonable to suppose that anyone selling plants, for example, will know who he bought them from and how many he bought.

The breeder must treat the information obtained in a notice as confidential, except where he uses it to establish whether his rights have been infringed, or in infringement proceedings. If the breeder breaches this obligation of confidentiality, the person who supplied the information will be able to bring an action for breach of a duty of confidentiality.

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I must emphasise, of course, that I expect plant breeders to use these provisions in a proportionate and sensible way in respect of transactions which are in the normal course of business. There should be no question of plant breeders laying siege to local church fetes and bring-and-buy sales--and presumably car boot sales--demanding information on the source of plants on the plant stall. That would be Big Brother. I also emphasise that the clauses do not permit plant breeders to serve notices on private individuals growing plants in their own gardens, for their own private and non-commercial purposes.

I know ornamentals breeders, and their customers who trade in legitimately produced material, will welcome these amendments. I beg to move.

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