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2002
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
PLANT BREEDER'S RIGHTS AMENDMENT BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Agriculture, Fisheries and Forestry, the Hon Warren Truss MP)
PLANT BREEDER'S RIGHTS AMENDMENT BILL 2002
GENERAL
OUTLINE
The Plant Breeder's Rights (PBR) scheme encourages
innovation in plant breeding through the grant of a limited commercial monopoly
to breeders of new varieties. This monopoly is a negative right to exclude
others from doing certain acts relating to the breeder’s
innovation.
The amendments to the Plant Breeder's Rights Act
1994 (PBRA) clarify the rights of plant breeders in certain
circumstances where restrictions are imposed; enhance the access of breeders to
the PBR scheme; and improve the administration of the PBRA and of the PBR
scheme. All amendments commence after Royal Assent.
Clarifying the
Rights of Plant Breeders
The amendments are predominantly
administrative and include a significant clarification to the PBRA (section 18).
Section 11 of the PBRA establishes that the breeder has the right to
disallow acts of production, reproduction, conditioning, offering for
sale, sale, import, export, and stocking in relation to the above of the
propagating material of the plant variety. As an exemption to the provisions of
section 11, the current section 18 does not require the breeder's authorisation
for any action that enables propagating material to be used as either a
food/fuel or for any other purpose that does not involve
propagation.
Section 18 was designed to acknowledge public interest
concerns regarding the limitations that the breeder might place on the use of
their propagating material as, say, food (for example, it is not in the public
interest for a breeder to disallow bread making). However, some parties
interpret the current section 18 to allow normal commercial activities involving
propagating material (eg the trading of grain that eventually become food) so
that the breeder is denied any opportunity to exercise their right. This is not
the intent of the legislation, which is fundamentally aimed at ensuring that the
breeder has an opportunity to gain reward for their innovation. Deletion of the
current section 18 will clarify intent, remove the possibility of
misinterpretation, and better align the PBRA with Australia’s membership
of the International Convention for the Protection of New Varieties of Plants
1991 (UPOV 91), on which the PBRA is based.
In a separate
amendment a new provision is proposed (to be inserted as section 18) to the
effect that the breeder is able to exercise their right of authorisation for
acts under section 11, except where that right is restricted by other
Commonwealth, State or Territory legislation. When such legislation restricts
the breeder’s right and authorises a person to do an act that would
normally be subject to the breeder’s authorisation, equitable remuneration
must be paid to the breeder. This amendment will better align the PBRA with
UPOV 91 with the just outcome that the breeder is rewarded in such
circumstances (item 4).
Concurrent operation of legislation is common.
Legally enforceable Commonwealth, State and Territory legislation operate
concurrently with intellectual property rights such as PBR, producing a
desirable balance between the rights of the innovator and broader public
interest concerns.
PBR is a negative right to exclude
others from doing certain acts relating to the innovation, thereby providing the
PBR owner with the opportunity to gain a commercial reward. It is not, per
se, a positive right to do the acts. If concurrent legislation also
provides for the disallowance of an act which falls within the scope of the PBR
owner to disallow, then both legislations can operate although the act itself
cannot occur.
For example, a PBR owner in a cannabis variety may exercise
their (negative) right of disallowance, preventing everyone else from selling
the variety. However, a State/Territory may employ a concurrent law to prevent
the owner from selling the variety, because selling cannabis is a criminal
offence in the jurisdiction concerned. The state authority concerned has no
intention of selling the variety itself, the breeder has exercised their right,
no sales occur and no reward for the innovation is achieved. Similar situations
exist in respect of PBR and other Commonwealth legislation (for example,
quarantine laws).
In the above example, reward for the PBR owner is not
an issue, as the State/Territory does not intend to do the act that the PBR
owner would normally have the power to disallow. However, the PBRA does not
explicitly address circumstances where Commonwealth/State/Territory legislation
does intend that the act will be done, as opposed to simply preventing
it.
An illustration of this problem arises when the PBR owner in a major
export variety may exercise their right of disallowance, preventing everyone
else from exporting. However, State legislation may prevent the PBR owner from
exporting. The theoretical result is a ‘deadlock’ where no exports
occur.
The proposed new section 18 clarifies existing policy intent that
PBR should not be exercised contrary to the public interest, inter
alia, guarding against the possibility that exports cannot occur. This
is achieved by introducing an explicit restriction on the exercise of the PBR
owner’s right of disallowance (provided equitable remuneration is
negotiated and paid to the PBR owner) if the operation of concurrent legally
enforceable legislation empowers a third party to do an act, for example, to
export the variety.
Amendments to section 23 are linked to the amendment
to section 18 clarifying that the rights of the breeder are exhausted following
payment of equitable remuneration, except in those instances where the variety
is propagated through more than one generation (item 5).
Enhancing the
Access of Breeders to the Plant Breeder's Rights Scheme
Currently a
synonym is protected if the Plant Breeder's Right in the variety has been
granted in a UPOV contracting party other than Australia. In the interest of
equity, the amendment allows for protection of a synonym for varieties first
lodged in Australia, but not yet granted overseas (item 9).
Currently the
applicant must pay an examination fee no later than 12 months after the
application has been accepted. This is appropriate in most circumstances as the
applicant can defray the cost by commercialising the variety while completing
the PBR application process. The same opportunity is not available for
applicants whose varieties are in quarantine. For some species, quarantine may
last for several years and in extreme cases quarantine may be up to seven years.
In such cases, payment of the examination fee is a disincentive to the
introduction of elite overseas varieties and therefore detracts from one of
PBR’s objectives, that is ‘to increase access to the world’s
best varieties’. The amendment provides parity between local and imported
varieties by proposing that the time limit to pay examination fees on imported
varieties be deferred for a maximum of 12 months after the variety has been
released from quarantine (item 16).
Currently there is no authority to
require provision of propagating material for testing against other varieties,
although not to do so frustrates the orderly administration of the PBRA. The
amendment requires all relevant persons to supply minimum amounts of material to
an applicant. Some conditions are envisaged, ie supply of material should not
take longer than 2 years for trees and vines and 12 months for all other species
(items 18 and 19). Existing provisions require the return of all material once
the test growing has been completed.
The practice of testing varieties in
farmers' paddocks prior to application lodgment is widespread. Often farmers
exchange the use of their land for the residue of the harvest once the
experiment is completed and these (and other similar) practices may be thought
of as 'sales'. This leads to the possibility that eligibility of varieties for
PBR is endangered even though such 'sales' are related to development,
multiplication, research, etc. This amendment provides that materials derived
from testing/research/development activities are not considered as sales and
therefore do not limit a variety's eligibility for PBR (items 26). In addition,
the coverage of these provisions is extended beyond propagating and harvested
material to include products obtained from harvested material (item
28).
The PBRA is silent on who may initiate infringement actions. The
amendment empowers the grantee to initiate infringement action (item
33).
Improving the Administration of the PBRA
Amendments
protect commercially sensitive information on the application form from public
scrutiny and also provide for only a broad description of the names of parent
varieties to be publicly available (item 6).
Current provisions may not
be sufficiently explicit to prevent the possibility of the 'priority date' for
lodgement of an application for protection to stretch beyond twelve months from
the date of the original application. The amendment clarifies that the priority
date for lodgement of an application is calculated from the date of lodgement of
the original application made in another UPOV contracting party (item
13)
The amendment clarifies that costs should be recovered from the party
who has not proven their case in an objection/request for revocation (item
20).
In a number of circumstances there is limited discretion to notify
an applicant that protection has ceased. This includes when a description and
examination fee has been provided but an applicant then stalls the progress of
an application indefinitely, thereby avoiding the certificate and annual fees
but still enjoying provisional protection. The amendment increases the
Secretary's discretion to notify an applicant failing to complete the
formalities within 12 months of the publication of the variety's description
that protection will cease (items 21 and 22).
Currently the subject of an
application must be treated as a "variety of common knowledge" unless it is
“subsequently refused”. Many applications are withdrawn before
grant. Consequently they have not been “refused”, but neither have
they been confirmed as being new varieties. It is inappropriate that such
varieties should be considered as varieties of common knowledge because their
characteristics are not generally known. The amendment removes the mandatory
requirement of section 43 for treating “withdrawn” applications, or
any applications that do not fulfil the definition of a variety, as varieties of
common knowledge (item 27).
The current maximum renewable term for
membership of the Plant Breeder's Rights Advisory Committee is 2 years. This is
inconsistent with appointments made to other comparable bodies and does not
allow maximum utilisation of the competence developed by the Committee. A
period of 3 years is consistent with appointments in other comparable bodies and
will promote greater efficiency (item 35).
A number of the amendments are
of a minor nature. They make consequential changes from other amendments, make
language or cross-references explicit, correct transcription errors, make
definitions and simplify language. Such amendments are to be found under items
1, 2, 3, 7, 8, 10, 11, 12, 14, 15, 17, 18, 23, 24, 25, 29, 30, 31, 32, 34, 36,
37, and 38.
FINANCIAL IMPACT STATEMENT
There are no
foreseeable financial implications for the Commonwealth arising from the
amendments to the Plant Breeder's Rights Act 1994 other than any savings
from improvements to the program. Implications for the plant breeding industry
arising from amendments to section 18 are set out below in the Regulation Impact
Statement.
REGULATION IMPACT STATEMENT
AMENDMENTS TO THE PLANT BREEDER'S RIGHTS ACT
1994
INCORPORATED IN THE PLANT BREEDER'S RIGHTS AMENDMENT BILL
2002
1. Background
The granting of intellectual property rights
on living organisms is underpinned by international law. The International
Convention for the Protection of New Varieties of Plants 1991 (UPOV
91) establishes international intellectual property protection for breeders of
plant varieties. The Plant Breeder’s Rights Act 1994 (PBRA) was
enacted as a necessary step to Australia’s current membership of the 1991
Convention.
The PBRA establishes intellectual property rights for the
breeder, thereby giving the opportunity for commercialisation through right of
disallowance of specific activities in relation to new plant varieties,
essentially in the same way that patent legislation operates. However, it does
not mandate how, when, or to what extent that commercialisation should occur
other than that the public must have reasonable access to the protected
variety.
The scheme allows breeders to be granted rights through
application for registration of new plant varieties, subject to their meeting
certain strict conditions. Plant breeder's rights encourage the development of
new plant varieties by providing an opportunity for the breeder to recoup their
investment of time and money.
In this way the PBRA promotes investment in
plant breeding, secures access to elite varieties from overseas and speeds
technology transfer. PBRA underpins the competitiveness and sustainability of
Australian agriculture and performs an important function in relation to
Australia’s intellectual property development
aspirations.
Innovation in plant breeding serves the public interest.
For example, new varieties are created that are better suited to Australian
conditions or meet market needs. This leads to an efficient and competitive
agricultural sector providing higher yields, using fewer pesticides and
developing new and different products. Consumers and producers benefit and the
breeder is rewarded.
Like all intellectual property schemes, plant
breeder's rights are granted for a limited period of time, at the end of which
varieties become public property. The breeder’s right is balanced by
public interest considerations including: controls against possible abuse;
assurance that varieties are publicly available; no requirement for
authorisation of the plant breeder for the use of a variety for private,
non-commercial or research purposes, including its use in the breeding of
further new varieties.
The Australian plant breeder’s rights
legislation protects a wider range of species than comparable legislation in any
other UPOV compliant country (283 genera; 500+ species). Use of the PBR scheme
is entirely voluntary and registration costs are fully recovered from
application fees. The scheme is preferred for most plant breeders, being cost
effective and particularly suited to living matter. By contrast, only about 5
new varieties are patented each year in Australia.
Growth in
registrations under the PBRA since its enactment in 1994 has been impressive.
More than 3,300 applications for registration have been received with one new
variety added each day
• 317 new applications were recorded in 2000-01
(21% up on 1998)
• up to 100 new breeders enter the scheme each year
• approximately 60% of all applications are from
overseas
• most applications are from the private sector
• at least 20 new varieties in the major export crops category are
being registered per annum ~ with 680 new varieties of field crops and pastures
processed since the inception of the scheme.
The majority of amendments
contained in the Plant Breeder's Rights Amendment Bill 2002 are
administrative and have minimal impact. This Regulation Impact Analysis focuses
on the principal amendment to the PBRA (section 18).
2. The Problem
– Misinterpretation of Section 18
The problem in relation to
section 18 has been highlighted by two recent High Court actions. The cases
have been triggered by the interaction of the ‘export right’
provided under the PBRA and the ‘export and statutory marketing
powers’ of the state based Statutory Marketing Authorities (SMAs). The
first case was brought on behalf of the breeder to confirm the primacy of the
breeder's right of authorisation over that of commercial interests in respect of
food/fuel not used for propagation, (including commercial interests established
under state legislation). This case has been remitted to the Federal
Court. The second case, brought by a State Authority
as a direct response to the first action, questioned the validity of the PBRA.
The High Court has unanimously upheld the validity of the PBRA.
Section
11 of the PBRA establishes that the breeder has the right to disallow
acts of production, reproduction, conditioning, offering for sale, sale, import,
export, and stocking in relation to the above of the propagating material of the
plant variety
As an exemption to the provisions of section 11, the
current section 18 does not require the breeder's authorisation for any action
that enables propagating material to be used as either a food/fuel or for any
other purpose that does not involve propagation. Section 18 was designed to
acknowledge public interest concerns regarding the limitations that the breeder
might place on the use of their propagating material as, say, food (disallowing
bread making).
However, some parties misinterpret the current section
18 to allow normal commercial activities involving propagating material (eg the
trading of commodities that eventually become food) such that the breeder is
denied the opportunity to exercise their right. This was not the intent when
framing the legislation, which is fundamentally aimed at ensuring that the
breeder has the opportunity to gain reward for their innovation. This has led
to the situation where the breeder’s right to seek reward for their
innovation is not being recognised. While the possibility of misinterpretation
continues, further denial of the breeder’s right of authorisation and
non-payment for their innovation may continue. Moreover, further legal
challenges cannot be ruled out.
In a further amendment a new provision is
proposed (to be inserted as section 18) to the effect that the breeder is able
to exercise their right of authorisation for acts under section 11, except where
that right is restricted by other Commonwealth, State or Territory legislation.
When such legislation restricts the breeder’s right and authorises a
person to do an act that would normally be subject to the breeder’s
authorisation, equitable remuneration must be paid to the breeder. This
amendment will better align the PBRA with UPOV 91 with the just outcome that the
breeder is rewarded in such circumstances, and is entirely consistent with the
intent of the legislation.
3. Objectives
The aim of the
proposed amendments is to clarify existing legislation in a way which will
remove the scope for misinterpretation of the PBRA and which will create an
environment conducive to further investment in plant breeding in Australia
resulting in benefits for the broader community.
The focus is on removing
the possibility of misinterpretation of section 18 as permitting unauthorised
commercialisation of propagating material and on ensuring reward for the
breeder’s innovation in circumstances where their right is
restricted.
4. Options
The scope to implement a regulatory
solution is limited by the need for consistency with the principles of National
Competition Policy and with the obligations of the UPOV Convention. The
amendments maintain the balance between commercial and public interest, which is
a fundamental feature of the PBRA and better align the PBRA with the Convention.
The Attorney-General's Department has considered the proposed
amendments. The Office of Parliamentary Counsel has assisted in the development
of the proposed amendments and the Office of International Law has confirmed
that the amendments meet Australia's international commitments under UPOV
91.
5. Impact Analysis
Plant breeding is critical to
Australia's capacity to meet increasing world demand for food and fibre through
improved yields and quality characteristics. Statistics on investment in plant
breeding are not available. Since the introduction of the PBRA the number of
new plant varieties protected under the PBR scheme has increased with over
twenty new varieties being added each year in the category of major export
crops. However, this rate of increase is at risk because of the uncertainty
generated by the misinterpretation of section 18.
The value of the loss
of royalty payment to the plant breeder, in respect of the current legal dispute
in the Federal Court, cannot be specified at this time because it is the subject
of legal proceedings.
Estimates of what order of intellectual property
payments may be involved cannot be made. The number of varieties subject to
commercial arrangements is unknown and confidentiality of arrangements is a
barrier. Some idea of the dimension of the potential problem can be gleaned
from the following.
Typically, in the grains sector, the industry talks
in terms of royalty payments of around $1 per tonne, although this may vary
considerably, up or down, depending on the premium that the variety attracts.
The plant variety in question in the High Court actions is a barley variety.
Australian exports of barley are estimated at 3.9 million tonnes valued at
$1,029m in 2000-01.
If the uncertainty that currently exists is not
clarified, a precedent could be set, perhaps endangering payments on other
varieties, including on Australia's largest export crop, wheat, estimated to
total 23.8 million tonnes valued at $5.2 billion in 2000-01. If this were to
occur it would be a strong disincentive for future investment in Australia's
cropping industries and, eventually, would have an adverse affect on major
agricultural exports as innovative new varieties fail to come on to the
Australian market.
Investors in plant breeding are following the legal
dispute over the exercise of PBR closely, since the outcome will determine the
level of risk attached to current and to future investments. Potential
investors in new varieties (including representatives of major organisations who
are well aware of the problem) are unlikely to invest until the PBRA is
clarified. Approximately sixty per cent of applications for new varieties in
Australia derive from overseas interests. Thus the negative effects of the
section 18 issue impact directly on potential flows of investment linked to new
and improved varieties from abroad.
Who is Affected by the Problem – Key Stakeholders
The key
stakeholders likely to be affected by amendments to the PBRA
are:
(a) Breeders/Licensees and Investors.
Deletion of the current
section 18 will remove confusion and provide the right environment for breeders
to negotiate commercial contracts that build on the framework of the PBRA. The
new section 18 is unlikely to come into play often but does contain specific
provision for breeders to receive equitable remuneration when their
authorisation rights are restricted in the public interest in certain
circumstances. These changes will ensure just treatment for plant breeders and
provide inducement for future generations of innovative plant breeders in their
endeavours. It will also remove the disincentive to investment, which is
important, given that most innovative varieties are being developed/introduced
in conjunction with overseas investors.
(b) Farmers, Statutory Marketing
Authorities, Manufacturers, Processors and Exporters.
Growers, and
agencies that represent growers, will be clear that a royalty payment is
necessary for the use of the plant breeder's innovation. The access of growers,
manufacturers, processors, exporters and overseas customers to improved
varieties and to their harvested product will be enhanced as new varieties come
onto the market.
(c) Consumers.
Consumers generally will benefit
from the stimulus given to the creation and availability of a wider range of
plant varieties with designer characteristics arising from increased investment
in the plant industry. The main benefits are those of wider choice and enhanced
product.
(d) Commonwealth and State Governments.
The concurrent
operation of PBR legislation with that of other Commonwealth/State/Territory
legislation will be clarified.
(e) Other Government Agencies.
No
other Government agencies have expressed opposition to the amendments.
Costs of Implementing the Amendments
Minimal. Amendments
to the legislation should not add to the costs of the
Commonwealth.
6. Conclusions and Recommendation
The aim
of the proposed amendments is to clarify existing legislation in a way that will
remove the scope for misinterpretation of the PBRA. This will create an
environment conducive to further investment in plant breeding in Australia,
improvement in Australian competitiveness and benefit for the broad community.
In so doing it will reduce the potential for further conflict involving the
Commonwealth's PBRA and State legislation.
It is recommended that the
current section 18 of the PBRA be deleted. The proposed new section 18 is
modelled on Article 17 of UPOV 91, to the effect that
the plant breeder must receive equitable remuneration when the exercise
of their PBR right is restricted in certain
circumstances.
7. Consultation
The Department of
Agriculture Fisheries and Forestry has circulated the proposed amendments widely
reflecting the diversity of industries that utilise plant varieties as building
blocks as well as food producing industries. There has been widespread support
for the proposed amendments, including from the Standing Committee on
Agriculture and Resource Management Task Force, which surveyed a broad range of
representative organisations covering breeders, users and consumers.
The
proposed amendments also have the support of the Plant Breeder's Rights Advisory
Committee (PBRAC), which represents similar groups and provides advice to the
Minister for Agriculture Fisheries and Forestry. Representative organisations
that support the amendments are the ABB Grain Limited, Horticulture Australia
Limited, AWB Limited, Bureau of Sugar Experiment Stations, Grains Council of
Australia, National Agricultural Commodities Marketing Association Limited,
Pastoralists and Graziers Association, and the Seed Industry Association of
Australia.
Agricultural industry is anticipating the introduction of the
amendments positively as they will facilitate commercial arrangements based on
the PBRA, including through a system of end point royalties.
The limited
concerns that have been expressed are based on misunderstanding of the current
legislation and/or have been put forward by those who have been enjoying a
‘free ride’ at cost to investment in Australia’s plant
breeding industry and to Australian competitiveness.
8. Implementation
and Review
It is intended to introduce amendments to the PBRA as soon
as possible. The PBRAC will monitor the efficacy of amendments to the PBRA on a
continuing basis.
NOTES ON CLAUSES
Clause 1 - Short
Title
Provides, subject to this section, for the Act to be cited as
the Plant Breeder's Rights Amendment Act 2002.
Clause 2 -
Commencement
Provides that the Act commences on the day after it
receives the Royal Assent.
Clause 3 – Schedule
(s)
Provides that each Act that is specified in the Schedule is
amended or repealed as provided in the Schedule.
SCHEDULE 1 -
AMENDMENT OF THE PLANT BREEDER'S RIGHTS ACT 1994
Item 1
Subsection 3(1)
This item simplifies the definition of 'synonym' and
clarifies that a variety only has to be known or sold (not both) to qualify as a
variety of common knowledge.
Item 2 Subsection 3(1)
This
item defines test growing.
Item 3 Section 11
This item
makes explicit the existing links in the operation of sections 12, 13, 14 and 15
with section 11.
Item 4 Section 18
This item ensures that
the breeder is able to exercise their right of authorisation under section 11
except in circumstances when the breeder's right is restricted by Commonwealth,
State or Territory legislation. When that legislation authorises a person to do
an act that would normally be subject to the grantee’s authorisation,
equitable remuneration must be paid to the grantee.
Item 5 Section
23
This item effects consequential changes arising from the amendment
to section 18 clarifying that the rights of the breeder are exhausted following
payment of equitable remuneration except in those instances where the variety is
propagated through more than one generation.
Item 6 Paragraph
26(2)(g)
This item ensures that certain confidential information on
the application for protection is not available to the public and that only
broad descriptions of the parent varieties are available to the
public.
Item 7 Subsection 26(2)
This item effects a
consequential change arising from changes to paragraph 26(2)(g).
Item
8 Paragraph 27(2)(b)
This item deletes incorrect wording
consequential to changes in item 1, subsection 3(1).
Item 9
Subsection 27(3)
This item allows a synonym for varieties lodged in
Australia, but not yet granted overseas.
Item 10 Subsection
27(4)
This item tidies up superfluous wording and makes
cross-references consistent.
Item 11 Paragraph
27(5)(e)
This item updates the reference to the Trade Marks Act
1955 to the latest revision of that Act.
Item 12 Subsection 27(5)
(6) and (7)
This item parallels item 10 by tidying up superfluous
wording and makes cross-references consistent.
Item 13 Subsection
29(1) and (2)
This item explicitly prevents the possibility of the
'priority date' for lodgement of an application for protection stretching beyond
twelve months from the date of the original application made in another UPOV
contracting party.
Item 14 Subsection 29(3) and (4)
This
item makes consequential changes arising from item 12 changes under subsection
29(1) and (2).
Item 15 Paragraph 30(5)(b)
This item
corrects a transcription error.
Item 16 Section 34
This
item provides that the time limit to pay examination fees on imported varieties
be deferred for a maximum of 12 months after the variety has been released from
quarantine.
Item 17 Section 36
This item implements a
consequential change arising from changes under item 6 and clarifies who has
access to confidential information on the application.
Item 18
Subsection 37(1)
This item empowers the Secretary to notify all
relevant persons to supply minimum amounts of plant material for test growing to
an applicant.
Item 19 Subsection 37(2)
This item provides
for compliance in respect of the notification to supply material under items 18
and 21 and the time frames within which compliance should be undertaken. It
also cross-references this item with section 77 provisions for review by the
Administrative Appeals Tribunal (AAT).
Item 20 Paragraphs
37(5)(b) and (c)
This item clarifies that costs should be recovered
from the party who has not proven their case in an objection/request for
revocation.
Item 21 Paragraph 39(2)(a)
This item
increases the circumstances in which the Secretary has discretion to notify an
applicant that protection will cease.
Item 22 Paragraph
39(2)(b)
This item increases the Secretary's discretion to notify an
applicant that protection will cease in relation to the time that has elapsed
since publication of a description.
Item 23 Subsection 43(5) and
(6)
This item incorporates propagating, harvested material, or
products of harvested material of a variety under one-expression ‘plant
material’.
Item 24 Subsection 43(6)
This item makes
a cross-reference to the definition of the term
‘sell’.
Item 25 Subsection 43(7)
This item
incorporates propagating, harvested material, or products of harvested material
of a variety under one-expression ‘plant material’.
Item
26 Subsection 43(7)
This item provides that materials derived from
testing/research/development activities are not considered as sales and
therefore do not limit a variety's eligibility for PBR.
Item 27
Paragraph 43(8)(b)
This item recognises that the common practice of
withdrawal of an application for a variety, about which little may be known,
should not result in that variety being considered as a "variety of common
knowledge".
Item 28 Section 43
This item states that the
expression ‘plant material’ encompasses propagating material,
harvested material or products obtained from harvested material of the
variety.
Item 29 Paragraph 48(2)(c)
This item corrects
cross-reference errors.
Item 30 Subsection 49(1)
This
item clarifies that the Minister does not grant PBR but is empowered under
subsection (1) to impose conditions on existing and future
grants.
Item 31 Paragraph 50(2)(a)
This item makes
consequential changes arising from changes to section 37 under items 21 and
22.
Item 32 Subsection 53(1)
This item explicitly makes
the unauthorised use of a synonym an infringement.
Item 33 Subsection
54(1)
This item nominates the grantee as having responsibility for
initiating infringement action.
Item 34 Paragraph
63(2)(a)
This item clarifies that the Plant Breeder's Rights Advisory
Committee may provide advice on matters referred to them by the Minister under
relevant provisions.
Item 35 Subsection 64(4)
This item
extends the maximum renewable term of appointment for Plant Breeder's Rights
Advisory Committee members from 2 to 3 years.
Item 36 Paragraph
77(1)(a)
This item corrects cross-reference errors.
Item 37
Subparagraph 77(1)(b)(viii)
This item cross-references to item 22
changes under subsection 37(2) making a decision by the Secretary reviewable by
the AAT.
Item 38 Article 14(1)(a)(vii) of the Convention as set out
in Schedule 1
This item corrects a transcription error.