The root of the problem: equitable remuneration for use of a plant variety
The IPKat doesn't know the background to the reference. The questions referred for the preliminary ruling were however as follows:
"(a) Must the reasonable compensation which a farmer must pay to the holder of a Community plant variety right in accordance with Article 94(1) of the CPVR Regulation because he has used propagating material of a protected variety obtained through planting and has not fulfilled the obligations laid down in Article 14(3) of the CPVR Regulation and Article 8 of the Community Planting Regulation, be calculated on the basis of the average amount of the fee charged for the licensed production of a corresponding quantity of propagating material of protected varieties of the plant species concerned in the same area, or must the (lower) remuneration which would be payable in the event of authorised planting under the fourth indent of Article 14(3) of the CPVR Regulation and Article 5 of the Community Planting Regulation be taken as a basis for the calculation instead?
(b) In the event that only the remuneration for authorised planting must be taken as a basis for the calculation: in the circumstances described above, may the holder, in the event of a single intentional or negligent infringement, calculate the damage for which he must be compensated in accordance with Article 94(2) of the CPVR Regulation as a lump sum based on the fee for the grant of a licence for the production of propagating material?
(c) Is it permitted or even required, when assessing the reasonable compensation due under Article 94(1) of the CPVR Regulation or the further compensation due under Article 94(2) of the CPVR Regulation, for the special monitoring costs of an organisation which protects the rights of numerous holders to be taken into account in such a way that double the compensation usually agreed, or double the remuneration due under the fourth indent of Article 14(3) of the CPVR Regulation, is awarded?".Frustratingly, the Opinion is available in 15 languages of the European Union, including Maltese, but not in English. According to Google Translate (as tweaked by this Kat), the Advocate General has advised the CJEU as follows:
"The equitable remuneration which, under Article 94(1) of Regulation 2100/94 the farmer is obliged to pay the holder of a right to Community plant variety protection for using propagating material of a protected variety obtained by culturing without fulfilling the obligations laid down in Article 14(3) of Regulation 2100/94 and Article 8 of Regulation 1768/95 (as amended), must be calculated based on the average amount charged for the licensed production of propagating material of protected varieties of the plant species concerned in the same region. Because, first, calculating the amount of equitable remuneration on the basis above puts the holder back in the position before the breach and reparation for the consequences of infringing his rights, and, further, the costs of monitoring and surveillance should be considered as having been included by the licensee in the licence fee, payment of these fees may be charged by the owner to the extent that it is extra-litigation or litigation related to the review of a particular case of infringement for which reimbursement may be required under and subject to the conditions provided for in Article 94(2) of Regulation 2100/94".The IPKat appreciates that not every reader of this weblog is excited by Community plant variety rights and that they are something of a minority interest. He feels however that it is important to know what is happening in some of the less prominent areas of IP since the livelihood of many business and traders is affected by them. He is also conscious of the possibility of transplanting the reasoning of the CJEU with regard to the payment of reasonable remuneration from an obscure field such as this to more prominent areas of IP such as copyright and to the calculation of damages under the IP Enforcement Directive. Accordingly he invites readers who know a bit about the background to this reference to share their knowledge with the rest of us.
