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PLANT BREEDER'S RIGHTS ACT 1994 - SECT 19

Reasonable public access to plant varieties covered by PBR

             (1)  Subject to subsection (11), the grantee of PBR in a plant variety must take all reasonable steps to ensure reasonable public access to that plant variety.

             (2)  Reasonable public access to a plant variety covered by PBR is taken to be satisfied if propagating material of reasonable quality is available to the public at reasonable prices, or as gifts to the public, in sufficient quantities to meet demand.

             (3)  For the purpose of ensuring reasonable public access to a plant variety covered by PBR, the Registrar may, on behalf of the grantee, in accordance with subsections (4) to (10), license a person whom the Registrar considers appropriate:

                     (a)  to sell propagating material of plants of that variety; or

                     (b)  to produce propagating material of plants of that variety for sale;

during such period as the Registrar considers appropriate and on such terms and conditions (including the provision of reasonable remuneration to the grantee) as the Registrar considers would be granted by the grantee in the normal course of business.

             (4)  If, at any time more than 2 years after the grant of PBR in a plant variety, a person considers:

                     (a)  that the grantee is failing to comply with subsection (1) in relation to the variety; and

                     (b)  that the failure affects the person's interests;

the person may make a written request to the Registrar to exercise a power under subsection (3) in relation to the variety.

             (5)  A request must:

                     (a)  set out the reasons why the person considers that the grantee is failing to comply with subsection (1); and

                     (b)  give particulars of the way in which the person considers that the failure affects the person's interests; and

                     (c)  give an address of the person for the purposes of notifications under this section.

          (5A)  An address given under paragraph (5)(c) must be an address in Australia or New Zealand.

Note:          After the time specified in regulations made for the purposes of subsection 3(2), the address may be an electronic address: see subsections 3(2), (5) and (6).

             (6)  The Registrar must:

                     (a)  give the grantee a copy of the request; and

                     (b)  by notification to the grantee, invite the grantee to give the Registrar, within 30 days after giving the request, a written statement of the reasons the Registrar should be satisfied that the grantee:

                              (i)  is complying with subsection (1) in relation to the variety; or

                             (ii)  will so comply within a reasonable time.

             (7)  The Registrar must, after considering the request and any statement given by the grantee in response to the invitation under paragraph (6)(b):

                     (a)  decide whether or not to exercise the power concerned; and

                     (b)  within 30 days after so deciding, notify the grantee, and the person making the request, of the decision.

Note:          A decision under this subsection is reviewable by the AAT under section 77.

             (8)  If the Registrar proposes to exercise a power under subsection (3) in relation to a plant variety, the Registrar must give public notice:

                     (a)  identifying the variety; and

                     (b)  setting out particulars of any licence the Registrar proposes to grant; and

                     (c)  inviting persons to apply in writing to the Registrar, within 30 days of the publication of the notice, to be granted that licence.

             (9)  The Registrar must not grant any such licence unless:

                     (a)  the Registrar has considered all applications made in response to the invitation; and

                     (b)  at least one month before granting any such licence, the Registrar has:

                              (i)  notified each such applicant of the name of the proposed licensee; and

                             (ii)  given public notice of the name of the proposed licensee.

           (10)  If the Registrar:

                     (a)  has granted a person a licence to produce propagating material of plants of a particular variety; and

                     (b)  is satisfied that the person will be unable to obtain such propagating material at a reasonable price or without charge;

the Registrar may, on behalf of the grantee, make that propagating material available to the person from material stored at a genetic resource centre.

Note:          A decision under this subsection to make propagating material available is reviewable by the AAT under section 77.

           (11)  This section does not apply in relation to a plant variety in respect of which the Registrar certifies, in writing, at the time of the grant of PBR, that he or she is satisfied that plants of that variety have no direct use as a consumer product.

Note:          A decision under this subsection is reviewable by the AAT under section 77.



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