HL Deb 18 January 1983 vol 437 cc1347-55

7.5 p.m.

Report received.

Clause 1 [Period for which plant breeders ' rights are exercisable]:

Lord Beaumont of Whitley moved Amendment No. 1:

Page 1, line 5, at beginning insert— ("( ) In section 2 (conditions for grant of rights) of the Plant Varieties and Seeds Act 1964 (in this Act referred to as "the 1964 Act")—

  1. (a) in subsection (2) the words "or discovered" shall cease to have effect in both places where they occur; and
  2. (b) subsection (4) shall cease to have effect.").

The noble Lord said: My Lords, the more we look at this Bill the more some of us have come to see that there are very grave disadvantages and flaws in it. One of the major flaws is that of the serious problems which are caused by the establishment of breeders' rights in discoveries. In industrial patents, before a patent can be recognised a demand is made for an inventive step, without which the patent is not granted and is not valid. Anything which has the nature of just a fortuitous discovery which is not an inventive step does not get a patent.

If that is so in industrial matters, it seems to me how much more it should be so in the case of plants existing in the wild. There are vital and almost theological issues involved in the establishment of the idea of ownership and the protection of ownership of something which grows wild in many countries. It is this question which I presume to suggest that the Government have not fully plumbed to date and which I hope they will be able to comment on at this particular stage in the proceedings and see whether there is something they can do to improve the Bill.

The amendments which I propose fully grant the right to plant breeders to patent the plants they have produced through their own skill and hard work; but for the life of me I cannot see the case for patenting discoveries in the wild. To this extent I think the 1964 Act was wrong and, so far from extending it in this respect, we should correct it. Nor is it just a question of the basic principle of the matter. The developing countries are deeply concerned, as well they may be, about such developments. The great majority of these plants come from the third world and the steps which are now being taken will have the effect of taking from the third world some of the very few economic advantages they naturally have at this moment.

I am consistently appalled by the "rip-offs" to which these countries ae subject in the name of some kind of western advantage. Sometimes it is clothed, as it has been in the past, I admit, by my party in the beneficient name of free trade. Of course that is only when it suits us; this particular Bill does exactly the opposite. This is a Bill in restraint of trade. As a result, other countries are thinking of restricting trade with us, because there is no doubt that the developing countries feel extremely strongly on this matter.

Already, at the Food and Agriculture Organisation, developing countries have successfully called for that body to draw up a legally binding convention governing the exchange of plant genetic resources, and in this forum scientists and diplomats are speaking bluntly about an embargo upon the transfers of genetic material to countries with legislation of the kind which we are dealing with tonight. This already represents a threat to the long-term interests of plant breeding. Brazil, the Ivory Coast, Malaysia and Madagascar have already placed bans on the export of all, or some, materials.

Since the vast majority of new breeding material has its origin in the centres of genetic diversity, which are all in the third world, this emerging conflict will harm the free exchange of germ plasm throughout the world and could detrimentally affect future plant breeding and agricultural development in Great Britain and other parts of the world. I have a series of quotations here, which I shall not read at the moment, showing the great disturbance that there is in countries such as the Philippines, Ghana, Malaysia and other countries about these steps that are beginning to be taken.

I suggest that this Bill goes a lot too far at this moment, that it would be quite enough for this Bill and quite enough for the purposes for which it was originally brought forward if it confined itself to dealing with the patenting of plants which are truly bred by the efforts and inventiveness of plant breeders, and if it did not include this far wider concept, which probably has very little basis in either justice or equity. My Lords, I beg to move.

Lord John-Mackie

My Lords, when the noble Earl, Lord Ferrers, brought this Bill forward on Second Reading he explained very fully what was its purpose. Basically, it was to rationalise the EEC regulations on the number of years for which plant breeders can claim their royalties. The main object of the Bill was to amend the original Act to that extent. But the noble Lord, Lord Beaumont, has widened the Bill very considerably by his amendment. I have been lobbied by various people on the whole Bill, on what it does to developing countries and on the fact that it may be keeping back development of various genes that they have; although the noble Earl gave us an indication of the huge storage of genes that we have in this country.

I have in front of me a book written by Mr. Peter Mooney, who has produced all the arguments, which have a grain of truth here and there, but I think that they are grossly exaggerated. I ask the noble Lord, Lord Beaumont, to think of the tremendous advantage that it has been to this country in having people going abroad and discovering plants which have been brought back here and have been developed and multiplied to the benefit not only of this country, but of the countries from which they came, as well as others. It would be a huge mistake to inhibit people who do that sort of thing and I am certain that it would not help the countries concerned if people with the knowledge and the money to make these discoveries all over the world did not get some advantage from the work that they do. So I do not think that we can support this amendment, which goes a lot wider than the short Bill which we have before us.

7.15 p.m.

Earl Ferrers

My Lords, the noble Lord, Lord Beaumont, put a very persuasive case in moving this amendment. I could not agree with him that this is a Bill which restricts trade. It is, as the noble Lord, Lord John-Mackie, said, a Bill to protect the rights of those who have invested considerably in various forms of plant breeding, for which investment they are perfectly entitled to a return; otherwise, plant breeding will not continue.

I understand the sincere feelings which underlie the amendment of the noble Lord, Lord Beaumont, and his views on the importance of safeguarding the genetic resources of the world. But, after all, these genetic resources are a heritage of all mankind and I do not think the noble Lord was quite right when he referred to the "rip-offs" of other countries which have been carried out for the advantage of the west. It is true that some of the fundamental plant material which is used by breeders in Europe or North America is obtained from other countries, including those in the developing world, but this cannot justifiably be considered theft.

As a rule, great care is taken to ensure that only small samples are taken from an indigenous population of plants, and the national authorities and breeding institutions where they exist are usually involved. Therefore, this Bill does not, as I think the noble Lord said, give the discoverer ownership. Man has always transferred crops from one continent to another, and modern man is certainly no exception to that.

But, be that as it may, there is anxiety that genetic resources may be lost and, obviously, that must be prevented. A most effective means of prevention is to continue the establishment of a world network of gene banks, most of which, for the tropical crops, are held in international institutes which are located in third world countries. As I explained to your Lordships during the Committee stage, we in the United Kingdom play a very important role in that. One of the most effective safeguards against such loss is the existence of a progressive plant breeding industry, such as we have in the United Kingdom, which will naturally ensure that stocks of genetic material are properly maintained for the production of improved plant varieties in the future, many of which, as now and in the past, will be used to improve the agricultural productivity and food supply in developing nations.

Having said that, I must ask the House to reject this amendment, which would have the effect of depriving the United Kingdom plant breeding industry—which I would remind the noble Lord, Lord Beaumont, has made an immense contribution to the development of agriculture, not only in this country but in other parts of the world—of genetic material which has been available to it for literally hundreds of years. This would disadvantage our breeders, while allowing breeders in other countries to go ahead quite unfettered. It would rule out the plant breeders' protection not only of the commercially useful plants which are growing in the wild, but also of the genetic variant or "sport" which periodically occurs in the course of commercial or amateur plant cultivation.

It is rare that a wild species would alone be suitable for immediate exploitation. It is much more likely that it would be used as part of a commercial breeding programme, involving considerable cost to the breeder. It is the requirement for this heavy investment which has resulted in the development of indigenous plant species of the third world being undertaken to a very large extent by breeders in the developed nations. Had this not been so, valuable plant resources might have lain unused for many years, or would have been lost forever to the detriment, particularly, of the developing countries.

Where, rarely, a discovery in the wild or a chance mutant does occur, it is surely not unreasonable that the discoverer, who may have expended resources in exploration, who has imagination to spot the potential of a new plant and who is prepared to fund its development and wider distribution at great risk, should have the opportunity through grant of plant variety rights to share in the wealth which his discovery has created. Years before the introduction of plant breeders' rights in the United Kingdom it was the practice to bring into this country flowers, shrubs and trees from other countries. There are many examples. I think immediately of rhododendrons, azaleas, prunus. They are just a few of the obvious ones which had their origins in countries very far distant from ours. Every country with a market for flowers and shrubs does likewise, and I can see nothing wrong in their doing so. I do not see that to deny the genetic potential of these species would be of benefit either to the countries concerned or to mankind as a whole.

Lord Beaumont of Whitley

My Lords, the longer I stay in politics the more I should learn not to be amazed at anything, but I still am. I am always particularly amazed at the way in which efforts to gain commercial advantage of one kind or another can be wrapped up in high-sounding language. On this occasion, I am particularly amazed and rather distressed by the attitude taken by the Labour Front Bench. I can only hope that in the other place there will be another look at the matter. I cannot believe that the fine traditions of the Labour Party in dealing with the third world over matters of this kind are going to be treated in quite the way they have been treated tonight.

I do not intend to go over the arguments. I just want to make the point that it is the countries affected who are deeply concerned about this; namely, the countries where the plant germ plasm come from, which can expect in time to benefit most strongly from whatever the development of these plants may be. They are already putting pressure on those countries in the developed world which are behaving in the way that our country is behaving. Bills like this have been withdrawn in several countries as a result of pressure from the third world.

I will quote one of the sources which I refrained from mentioning in my previous speech. Mr. Adansi, the chief research officer of the Oil Palm Research Centre, Ghana, is just one of a number of spokesmen for the developing countries. He is utterly in favour of promoting an international network of genetic resource centres, to further collection, conservation, documentation, evaluation and use of plant germ plasm and thereby contribute to raising the standard of living and welfare of people throughout the world". Those are fine words which we all use. However, Mr. Adansi goes on to say: Patent protections can only jeopardise this lofty ideal, especially when breeders obtain gratis the germ plasm they use. This is the attitude of the developing countries. This is what they feel about what is happening. They are the source, so often, of the plants which we are talking about.

I am deeply disappointed by the Government's reaction, but I do not believe that it is worth pursuing the matter further tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Plant breeders' rights in special cases]:

[Amendment No. 2 not moved.]

7.25 p.m.

Lord Beaumont of Whitley moved Amendment No. 3: Page 2, line 21, after ("varieties") insert ("whose commercial value is based exclusively on their decorative qualities").

The noble Lord said: My Lords, this is a slightly different situation. The purpose of the clause and, to a certain extent, of the Bill, is the protection of the cut flower growers of the Channel Islands. The Government explained to various people interested in the matter, including international bodies, as late as October 1981 that that was one of the purposes of the Bill. There is a certain amount of sympathy for this aim. If the Bill only did that and did not do it in such a way as to damage other people, we should have no objection to it. Clause 5 covers the Channel Islands. Clause 2 opens the door to all sorts of protection of end products. In some ways one can say that this clause is even more horrifying than Clause 1.

The simple patenting of a plant can be extended by the Minister to the protection of any end product. If, therefore, I find a wild flower in Malawi, bring it to this country and discover that its seed is a useful product of some kind—for instance, a useful drug—I can embargo the sale by anybody else in Great Britain of that drug, even if it is produced easily in the wild in any other country. I suspect that that is wrong. Indeed. I am fairly certain that it is wrong. I suspect that the Government did not intend to do that. They were merely trying to extend plant patenting to cut flowers and Clause 2 was the simplest way of doing it. If, however, one follows the possibilities of Clause 2 through to the end, one sees that almost any end product of a plant could be patented and protected in this kind of way. This is rather absurd and I do not believe that it was intended.

I suggest that a simple solution is to limit the effect of this clause to the aim which was intended; namely, the protection of flower growers. Although I am prepared to admit that my amendment may not be drafted in the best way, I believe that it manages to do just that, and I beg to move.

Earl Ferrers

My Lords, the noble Lord, Lord Beaumont of Whitley, has an uncanny knack of lifting up stones and seeing what kind of slugs are underneath them. I am bound to say that this particular amendment of his is not necessary, since its effect is obtained by the provisions of Clause 2 of the Bill as it stands. One of the main purposes of the clause is to delete from the 1964 Act the provision which enables plant breeders' rights to be extended to the sale of end products such as blooms or fruit obtained by the seller from plants of protected varieties of plants which he has multiplied up in the United Kingdom. This provision has never been used, since it has been considered undesirable that a breeder should enjoy double protection. He should not be able to obtain royalties in respect of a product which has been obtained through the multiplying up of his variety as well as the royalties obtainable on the multiplication itself.

The provisions of paragraph 1 of Schedule 3 to the Act have applied since 1964 without difficulties of the kind which the amendment moved by the noble Lord is apparently designed to avert. But, even if Ministers were disposed to make a scheme extending breeders' rights to cover the production of plants for the sale of processed foods, medicines and so forth, there are fully adequate safeguards in Section 1 of the Act, which requires Ministers to consult representatives of interests concerned and then to proceed by way of statutory instrument subject to annulment by resolution in either House of Parliament.

The noble Lord, Lord Beaumont of Whitley, referred to the Channel Islands, and there may be some misunderstanding regarding the application of the Bill to the Channel Islands. Clause 5(2) does no more than enable the Bill's provisions to be extended to the Channel Islands by Order in Council, in the same way as the provisions of the Act may be so extended. So far, the Channel Islands have declined such extension. In any case, the problem of imported cut blooms and so forth is not confined to the Channel Islands; other countries in Eastern Europe and Africa are involved in the trade. The official record of the UPOV Council meeting—that awful abbreviation stands for the International Union for the Protection of New Varieties of Plants—to which reference was made, shows that the United Kingdom representative referred to: cut flowers from the Channel Islands, for instance, or from more distant regions". I hope that the noble Lord, Lord Beaumont of Whitley, will realise that his amendment and the worries with which it concerns itself are already covered by the Bill.

Lord Beaumont of Whitley

My Lords, I am grateful to the noble Earl for his explanation. I will go away and study it, and no doubt those who will have to deal with this Bill in another place will be doing the same. I was not entirely satisfied with the reassurance that the interests concerned will be consulted on this matter because I was making the point that the interests concerned are very often of such a nature that the Minister will be most unlikely to consult them. I suspect that the Minister will not be consulting any of the developing nations in whose land a number of these plants have their origin. The particular point about the development of the end product is a complex one, and whereas I believe we do need to look at it again—and by "we" I mean Parliament as a whole—I do not propose taking it any further at this time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved].

Schedule 1 [Amendments of the 1964 Act]:

Earl Ferrers moved Amendment No. 5: Page 4, line 16, leave out from ("section") to end of line 18 and insert ("the words "in connection with the registered name of a plant variety" shall be omitted and for the words from "other than" onwards there shall be substituted the words "if—

  1. (a) that mark or name and the registered name are juxtaposed; and
  2. (b) the registered name is easily recognisable.".").

The noble Earl said: My Lords, I beg to move Amendment No. 5 and speak to Amendment No. 6, which is consequential. At the Committee stage of this Bill the noble Lord, Lord Walston, tabled an amendment to Schedule 1 to the Bill, which he was good enough to withdraw later on the basis of my assurance that I would examine the point which he had made and, if necessary, incorporate it into the Bill. As that point is related to the one which is the subject of the current amendment, I should like, with your Lordships' permission, to deal with that point first.

The concern expressed by the noble Lord was, in essence, that the term "reproductive material" as defined in Section 15 of the Plant Varieties and Seeds Act 1964 could be interpreted as including any kinds of material—for example, cut blooms, apples, and other fruit or vegetables for consumption—which were capable of being used for reproductive purposes, whether or not they were commonly so used and regardless of whether or not the purchaser intended to use them in that way. Had the noble Lord's interpretation been correct, the implication was that all such material would have had to be labelled with the registered variety name. To use again the example which was given by the noble Lord, his fear was that the apple which was sold and known generally as "Crispin" would have had to be labelled with its registered Japenese name, which I am told is "Mutsu", when it was displayed for sale on the greengrocers' shelves. After consideration, I find that the noble Lord's fear is unfounded.

Interpretation of the law is, of course, a matter for the courts. However, I am advised that the term "reproductive material" can properly be applied, in the case of non-ornamental plants and parts of non-ornamental plants, only to material for reproduction and not to material for consumption or some other use. It follows that apples and other fruit—and potatoes and other vegetables which are obviously being sold for consumption—are not reproductive material.

In the case of ornamental plants and parts of ornamental plants, however, the term "reproductive material" is in addition applied to material of a type—and I emphasise the word "type"—which is used commercially for purposes of propagation in the production of ornamental plants and cut flowers. For example, if a person buys a rose bush to plant in his garden for ornamental pleasure, he is nevertheless purchasing material of a type which is used for propagation in commerce and, therefore, the label must contain the varietal name as well as the trade name. Therefore, rose bushes and other ornamental plants which are used as propagating material in the trade—but not cut blooms which are not used for that purpose—must be regarded as reproductive material, and so are subject to the requirements of the Act concerning the use of registered variety names. I think that it is desirable and proper, both for the holders of rights—whose interests deserve protection—and for the buyers of plant material, who are entitled to know what registered variety they are purchasing, that this should be the case.

With regard to the amendments themselves, perhaps I may remind your Lordships that subparagraph 2(2) was introduced, with other provisions, in order to enable the United Kingdom to comply with, and to ratify the revised text of, the International Convention for the Protection of New Varieties of Plants. The convention requires that where a trade mark or trade name is used in association with a registered variety name the registered name must nevertheless be easily recognisable. Sub-paragraph 2(2) was drafted in order to provide that the trade mark or trade name should be given no greater prominence than the registered name.

It has been represented to the Government by the industry that the provision in the Bill as now worded is unduly onerous, and it could even be confusing to the average purchaser who would have no means of differentiating between the two names if they were given equal prominence in a label or catalogue. We have taken careful account of the industry's views and consider that they are right. Hence the amendment which stands on the Marshalled List; and we suggest, therefore, that the two names be juxtaposed. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Repeals]:

Earl Ferrers moved Amendment No. 6: Page 6, line 8, column 3, after ("section 5A,") insert ("in subsection (4) the words "in connection with the registered name of a plant variety" and").

On Question, amendment agreed to.