Infringement Crimes under the Act (Section 74)

Intellectual Property rights are normally enforced through civil action taken by the grantee to enforce their own position in the market place.

The offence must be proved ‘beyond reasonable doubt’. In contrast, civil actions are decided on the ‘balance of probabilities’. Also, prosecution of a criminal offence by the Government is at the discretion of the Commonwealth Director of Public Prosecutions.

Section 74 of the Plant Breeder's Rights Act 1994 provides that it is a criminal offence for a person to do an act listed in section 11 in relation to propagating material of a plant variety in which PBR has been granted if such an act would, under section 53, infringe PBR in the variety.

To prove an offence the prosecution must establish the following:

1. A person does one of the actions set out in section 11 (eg. stocking the material for sale) (conduct);
2. The person intended to do one of the actions set out in section 11 (mental element);
3. PBR had been granted in respect of that plant variety (circumstance);
4. The person was reckless as to whether PBR had been granted in respect of that plant variety (mental element);
5. Under section 53 PBR in the plant variety has been infringed (circumstance; strict liability applies).

All these elements must combine at one point in time to form a prosecutable offence.

It should also be noted that not all infringements of PBR result in criminal offences under the Act.

Go to Section 6.8 Practical Steps.

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