Overview
The Plant Breeders' Rights (PBR) Advisory Committee held its 2nd meeting on January 24, 2023, from 10:30 am to 2:30 pm EST. Committee members attended (sufficient for quorum), along with the Commissioner and members of the PBR Office, as well as a representative from Agriculture and Agri-Food Canada.
The objective of this meeting was to provide members with a deeper understanding of PBR in Canada, as well as background information and a status update on the PBR Office's activities.
Plant breeders rights in Canada
The chair, Ms. Deb Hart, opened the meeting and welcomed the committee members and PBR Office staff to the committee's 2nd virtual meeting. The chair invited any members absent at the first meeting to introduce themselves, followed by the members of the PBR Office. The chair asked for comments or edits to the Record of Proceedings from the last meeting. As there were none, it was considered approved. Next, The chair asked if anyone would like to propose changes or additions to the agenda. None were proposed.
Mr. Parker, Commissioner of the Canadian PBR Office, was asked by the chair to give a brief recap of the key messages presented by guest speakers at last meeting. In brief, PBR is critical for stimulating innovation worldwide and Canada needs to continue to take an active role in attracting additional investment, innovation, and access to new varieties into our country.
Next, the chair asked Mr. Parker to provide committee members with an overview of the PBR system in Canada. Plant breeding is the foundation of the agriculture, horticulture, nursery and ornamental sectors. He went on to explain that plant breeding, although important to these sectors and society at large, is also expensive and time consuming. The research and development costs are high, while reproduction costs are very low. New plant varieties can easily be stolen, reproduced and sold without permission or fair compensation to the breeder. This makes investment in plant breeding untenable, without effective intellectual property protection. PBR benefits society by ensuring breeders (public and private) have a mechanism to obtain fair compensation for their work while society also benefits by access to these new innovations.
Canada's Plant Breeder's Rights Act was passed in August 1990 based on UPOV'78. Amendments came into force on February 27, 2015 to conform to UPOV'91. The intent of the legislation is to stimulate investment in plant breeding in Canada, provide Canadian producers increased access to new plant varieties, and facilitate protection of Canadian varieties in other countries. The conditions to gaining PBR protection for a variety is that it must be new, distinct, uniform and stable (DUS), and have an appropriate denomination (one variety, one denomination rule internationally), as well as be published in the Plant Varieties Journal (public disclosure and opportunity for objection).
In Canada, we have what is called a breeder testing system. The breeders conduct the trials which are then examined by the PBR Office's examiners. The PBR Office conducts 250 to 350 DUS examinations every year to take observations, measurements and notes on the distinguishing characteristics and confirm that the reference varieties were appropriate (DUS examination).
The rights provided under the PBR Act are exclusive over the propagating material of the variety for the production and reproduction, import, export, sale (including advertisement), conditioning, stocking, royalty collection, authorizing conditionally or unconditionally any of the aforementioned (i.e. licensing agreements), and use of the denomination. The length of protection is 20 years, except for trees and grapevines where it is 25 years. The PBR Act also includes a breeder's exemption which provides an open mechanism of innovation, as well as a researchers' exemption for open access to information. A private/non-commercial exemption for use by hobbyists, and a farmers privilege allowing the ability to save and reuse seed on one's own farm. However Canada has not fully implemented the farmers privilege consistent with the legal concept; "within reasonable limits and subject to the legitimate interests of the breeder". Currently there is no fair and balanced mechanism for equitable remuneration back to the breeder on farm saved seed. The PBR Act also provides for a compulsory licence whereby a variety can be forced into the marketplace, with fair compensation to the breeder, under unique and extraordinary circumstances of public interest. Once rights expire (or are surrendered or revoked) the variety is considered public domain. It is up to the titleholder or licensee to enforce their rights in the case of infringement. The PBR Act provides them with the mechanisms to do this, legal remedies through the court system.
A breakdown of the proportion of applications received by sector by the PBR Office shows that the ornamental sector represents over half the total applications received, while the agricultural and horticultural sectors make up the rest. Notably, the potato industry is one of the largest users of PBR in Canada. Applications received by the PBR Office have been steadily increasing since the adoption of UPOV'91, in 2015. Over 80% of titleholders of PBR rights in Canada are foreign applicants, which provides Canadians better access to foreign varieties.
Reflections on value creation consultations
The chair asked the commissioner to debrief the members of the committee on past activities and consultations concerning "farm saved seed" (aka value creation) that occurred with respect to proposed regulatory amendments. The commissioner provided an overview of the strengths and weaknesses of previous consultative process, and the lack of consensus to advance a value creation model for cereal crops. There was a plurality of different views on the concept, depending on the organization, region, etc., etc. Members of the committee shared their views and recommendations for a path forward in future, and acknowledged that more time may be needed to advance this initiative. The chair asked that a discussion occur at the next meeting on the a suite of future proposed amendments to the Plant Breeder's Rights Regulations (not including value creation for cereals).
Committee work plan
The chair asked the commissioner to do a line by line review of the PBR Office work plan established by the previous PBR Advisory Committee. Topics included office funding, streamlining of PBR applications, use of the International Union for the Protection of New Varieties of Plant's (UPOV) online filing platform PRISMA, biomolecular potato capture project, essentially derived varieties, UPOV capacity building and training, among others. Consensus was reached and the work plan was approved by committee members.
The chair asked that the office to consider drafting a strategic business plan as well as an annual report for the committee to highlight the work being done by the PBR Office both domestically and internationally.
Next steps
The chair requested that another virtual meeting be held in the next couple of months with presentations on future proposed regulatory amendments, the concept of essentially derived varieties, and an update on the development of a strategic business plan for the office. The commissioner will send out a poll to determine member's availability.
PBR Office will commence working on a strategic business plan in spring 2023.