What we heard report: Amendments to the plant breeder's rights regulations

On this page

• Introduction
• The engagement process
• Key findings
• Detailed responses
  • Farmers' privilege: Horticulture and ornamental crop kinds
  • Farmers' privilege: Hybrid varieties
  • Extending the period of plant breeders' rights protection for potatoes, asparagus and woody plants
  • Narrowing the concept of sale for filing a plant breeders' rights application
  • Adding a UPOV PRISMA filing fee
• Additional comments
  • Value creation
  • Other
• Next steps

Introduction

Plant breeders' rights (PBR) are a form of intellectual property (IP) rights that allow plant breeders to protect new varieties of plants, similar to the way an inventor uses a patent to protect a new invention. The public policy objective of PBR is to incentivize and reward investment in plant breeding, encouraging free and fair competition, and the release of new and improved plant varieties into the marketplace. An effective PBR IP regime is critical for encouraging growth, innovation, and competitiveness in Canada's agriculture, horticulture, and ornamental sectors.

On February 27, 2015, legislative amendments to the Plant Breeders' Rights (PBR) Act came into force, updating Canada's IP regime for plant varieties to the most current international version, the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV'91). The legislative amendments included a new regulation-making authority, which provides the opportunity to further strengthen PBR IP rights in targeted sectors and crop kinds.

Although a significant improvement to the PBR Act, the 2015 amendments were the minimum required for Canada to join UPOV'91. Other like-minded jurisdictions such as the European Union, Japan, United Kingdom, and Australia, offer stronger IP rights for plant breeders. Additionally, the United States offers not only plant variety protection, but also stronger and more restrictive plant patents and utility patent for new varieties. As a result, these jurisdictions may have a competitive advantage in attracting investment and innovation in plant breeding.

In support of the continued innovation in the agriculture, horticulture, and ornamental sectors, the Canadian Food Inspection Agency (CFIA) initiated a review of the PBR Regulations to determine where changes could be made to further improve the IP regime for plant varieties. Modernizing Canada's plant variety IP regime is a key element in growing and diversifying Canada's production and trade of agricultural and horticultural commodities, both domestically and internationally.

The engagement process

The Canadian Food Inspection Agency (CFIA) ran the consultation Share your thoughts: Strengthening the Plant Breeders' Rights Regulations, which described the proposed amendments to the PBR Regulations in detail. The proposed amendments include:

• limiting the scope of "farmers' privilege" only to those crop kinds where it has been a long-standing customary practice of farmers to save and reuse seed
• extending the duration of PBR protection to 25 years for crops that take longer periods to breed and gain market acceptance
• narrowing the concept of sale for filing a PBR application, and
• adding a new reduced PBR application fee to encourage filing of electronic applications through UPOV's PRISMA tool

The online consultation was open from May 29, 2024, to July 12, 2024. In total, 109 responses were received from various stakeholders, including but not limited to: national producer groups representing the agriculture, horticulture, and ornamental sectors, provincial producer groups, commodity specific producer groups representing crops such as potato, wheat and canola, groups representing the organic sector, international horticulture and ornamental growers, individual producers, plant breeding and seed companies, seed growers, seed retailers and distributors.

Key findings

The overwhelming majority of respondents wrote to support the proposed amendments, with many noting the benefits that the regulatory amendments would provide. Support was consistent across almost every sector that provided input, with nearly all submissions backing each individual amendment. A strong majority of respondents felt that the proposed amendments would support further innovation and investment in the Canadian agriculture, horticulture and ornamental sectors. Several respondents also remarked that the proposed amendments would put Canada on even footing with its international competitors.

A select few of the submissions (approximately 10%) raised concerns, particularly regarding the proposed changes to farmers' privilege and the perceived impact on farmers' rights. In light of this, a thoughtful and balanced approach to PBR IP protection is required so that stakeholders with anti-PBR views also have choice and continued access to unprotected plant varieties available in the marketplace.

Detailed responses

Farmers' privilege: Horticulture and ornamental crop kinds

This section asked respondents to provide input on whether Canada should better align with similar jurisdictions, such as the United States of America and the European Union, by clarifying that the farmers' privilege does not extend to the saving and reusing of propagating material (for example, cuttings, budding, grafting, seeds, etc.) of PBR protected fruit, vegetable, and ornamental varieties.

Horticulture and ornamental growers largely supported the proposal. A provincial group representing fruit growers strongly endorsed the proposed amendment, indicating that the farmers' privilege should not extend to asexually reproduced ornamental and fruit varieties. Another respondent expressed concerns that the language of the existing Regulations hinders research and innovation, and the proposed amendment would dramatically improve the situation. A group representing the Canadian ornamental and horticulture sector suggested that the amendment would reassure both foreign and domestic breeders about the quality and strength of IP protection in Canada, improving access to unique ornamental plant cultivars. International horticulture groups also endorsed the amendment, arguing that applying the farmers' privilege to vegetatively reproduced ornamental and fruit varieties undermines IP protection and contravenes the intent of UPOV'91. Many submissions also proposed including cannabis in the amendment.

Respondents from the seed sector were unanimous in their support, noting that the proposal would better align Canada with foreign jurisdictions and facilitate the introduction of new and/or improved varieties from international breeders. They observed that Canada's domestic breeding capacity for fruits, vegetables, and ornamentals is limited, necessitating reliance on foreign-developed genetics. They further argued that the amendment would strengthen Canada's IP framework and enhance the sector's access to foreign varieties. A group representing the Canadian seed sector emphasized that UPOV'91 intended the farmers' privilege exception to only apply to crops such as cereals where it is an established tradition for farmers to save and reuse seed. The open-ended text of the current Regulations is not appropriate for fruits, vegetables, and ornamentals. As such, the proposed amendment would better align the Regulations with the intent of UPOV'91 and other international jurisdictions. A large, international seed company wrote that due to the relative inadequacy of IP protection for horticulture and ornamental crops in Canada compared to the European Union and the United States, breeders have less ability to re-capture the value of their investment. Therefore, plant breeders have less incentive to innovate, develop, and introduce new varieties for the Canadian market.

A joint submission was received from a group of organic growers and one farm organization opposed to PBR IP rights. They argued that that even if seldom used, or used by only a few farmers, closing the door on the use of farm-saved seed and other propagating material for farmers, growers, horticulturalists, and orchardists takes away their freedom and weakens their autonomy. They further argued that farmers' privilege also ensures farmers, growers, horticulturalists, and orchardists have access to propagating material in the event of severe supply chain disruptions that could prevent access to imported seed. However, as another respondent noted, excluding crops from the scope of the farmers' privilege does not in any way block production, as farmers are always free to use non-protected varieties, which often represents the majority of varieties available in the marketplace.

Several individuals provided varied perspectives. A group of academics supported the amendments, suggesting that given the relatively small market size of the Canadian horticulture and ornamental sector, the current open-ended farmers' privilege serves as a barrier to increased investment. Conversely, some individuals argued that the amendment could disadvantage growers in less agriculturally favourable regions and primarily benefit corporate interests.

Farmers' privilege: Hybrid varieties

This section asked respondents to provide input on whether the PBR Regulations should be amended to clarify that the farmers' privilege does not apply to the saving and reusing of propagating material (for example, cuttings and seed) of PBR protected hybrids, and protected parental inbred varieties used in hybrid combinations.

Groups representing grains and oilseeds producers supported the amendment, arguing that saving and reusing hybrid seeds is rare and generally inadvisable as it can be damaging to the sectors. A group representing wheat growers from a Canadian prairie province noted that hybrid vigour and performance diminish when reusing seed from hybrids which can have negative effects. This can include the loss of beneficial characteristics such as disease and pest resistance. A large group representing canola growers concurred, stating that reusing hybrid seed can result in reduced vigour, loss of uniformity, unpredictable traits, adverse economic impacts, increased susceptibility to diseases and pests, and decreased agronomic performance. However, other respondents stressed the importance of retaining farmers' privilege for pulse and cereal varieties, with concerns that the amendment might erode farmers' rights.

The seed sector also supported the amendment, citing similar concerns about saving and reusing hybrid seeds. Several seed companies argued that reusing hybrid seed could harm their businesses. One large international seed company noted that saving hybrid seed devalues the variety and could damage the original breeder's reputation. Another pointed out that reduced performance affects Canadian agricultural productivity and environmental impact. A submission was received from an international breeding company stating that the amendment would foster innovation and investment in hybrid crop breeding in Canada.

A joint submission from a group of organic growers and one farm organization opposed to PBR IP rights, raised concerns about the amendment. They argued that the rationale for the amendment disregarded farmers' seed saving and production knowledge. They also pointed out that some farmers who choose to save hybrid propagating material do so to further adapt that variety as an open-pollinated variety for their own farms.

Extending the period of plant breeders rights protection for potatoes, asparagus, and woody plants

This section asked respondents to provide input on whether the period of PBR protection for potatoes, asparagus, and woody plants, should be extended from 20 to 25 years to encourage domestic breeding efforts and support greater access to new international varieties.

The potato sector strongly supported this amendment. A national group representing potato growers noted that that it is a long process to bring a new potato variety to market, beginning with the breeding process, through to growing multiple generations and bulking-up enough propagating material to begin commercial production. They argued that extending protection would keep Canadian breeding programs competitive with other UPOV countries and attract international breeding programs due to longer period of IP protection. An individual potato farmer supported the amendment, stating that an additional five years would help breeders recoup their investments and sustain research and development efforts.

Other directly affected sectors also supported the amendment. An asparagus grower and breeding organization pointed out that asparagus is a perennial crop, and a well-cared for asparagus field can be harvested for over 20 years. Therefore, the current 20-year protection window is insufficient to provide the needed protection for this crop. A group representing the outdoor ornamental horticulture sector noted that extending PBR protection to 25 years would benefit Canadian nurseries and enhance access to new and unique woody plant varieties. A large number of respondents also suggested extending the protection period to 30 years. However, an extension of protection to 30 years could not be accomplished through regulatory amendments and would require a change to the PBR Act.

The seed sector was unanimously in favor, with one international seed company stating that the extension could facilitate the introduction of international varieties, levelling the playing field with countries offering longer protection periods. Another company saw the extension of PBR protection as a good practice to strengthen breeding incentives for these crops.

A joint submission from a group of organic growers and one farm organization opposed to PBR IP rights, raised concerns about the amendment. The group noted that it is unclear how extending the period of protection on potatoes, asparagus, and woody plants, would encourage greater domestic breeding or greater access to international varieties, as many international varieties are already introduced into Canada. The submission also noted that increased funding for domestic public breeders could overcome the challenges that this amendment is seeking to address, rather than encouraging investment from private breeders.

Narrowing the concept of sale for filing a plant breeders' rights application

This section asked respondents to provide input on whether the concept of "sale" for the purposes of filing a PBR application should be narrowed, by excluding advertisements.

The seed sector supported this proposal. A large international seed company noted that narrowing the definition of "sale" aligns with international interpretations. Another wrote that the current definition is inadequate and that companies may choose not to bring plant varieties to Canada that have been advertised for sale elsewhere. The company stated that this has happened to them recently. They stated that the current concept of sale for filing inhibits farmers' access to varieties in Canada, which hinders competitiveness in a global market. Consequently, the proposed amendment represents a significant improvement.

A seed company also clarified that it supports a bi-furcated definition for the concept of "sale". That is, for the purposes of filing a PBR application, the concept of "sale" should exclude advertising; however, for the purposes of enforcement, the broader concept of "sale" or "sell" (which includes advertising) should remain. The company suggested that maintaining the broader definition of "sale" or "sell" for the purposes of enforcement is important to help deter the advertisement of illegal farm-saved propagating material and therefore protect the original breeder's investment in the variety.

Several domestic horticulture and ornamental groups wrote that they support the amendment, as it would ensure novelty is more easily maintained for new varieties being introduced into the market. A number of international horticulture and ornamental companies also wrote in support of the amendment, noting that in order to avoid confusion because of different legal understandings of "sales", the triggering point for the start of the grace period should be linked to the physical transfer of propagating material for commercial purposes, and advertising should be excluded. Several producer groups representing the crop sector also wrote in support of this amendment.

A joint submission from a group of organic growers and one farm organization opposed to PBR IP rights, expressed concerns about the amendment. This submission stated that it is reasonable for breeders to continue to refrain from advertising new varieties until they are in a position to apply for PBR protection within 12 months. In their opinion, plant breeders operating internationally have the ability to restrict the geographies where their advertising is conducted to avoid promoting a variety prematurely in Canada. The respondents argued that removing advertising from the definition of sale would effectively extend the PBR protection period in Canada, particularly for varieties that have already been introduced in other jurisdictions.

Adding a UPOV PRISMA filing fee

This section sought feedback on introducing a new application fee with a significantly reduced price for using the International Union for the Protection of New Varieties of Plants's (UPOV) PRISMA tool compared to the standard PBR fee, to encourage use of electronic applications.

In general, respondents welcomed a potential lower fee structure and the incentives to use the UPOV PRISMA system. One seed company noted that it currently does not use the UPOV PRISMA system due to the added cost, but a reduction in fees would make the system more appealing. Another noted that they see the advantage of an electronic system that streamlines the application process across jurisdictions, and that this amendment would likely lead to them use this function whenever possible. A group representing the potato sector agreed and added that the benefits of using the UPOV PRISMA system will make it easier for both registrants and PBR Office staff.

Additional comments

A number of respondents chose to provide comments and suggestions for changes that were not proposed in the consultation document.

Value creation

While the consultation document was clear that the proposed amendments did not include the Value Creation concept (for example, placing conditions on the farmers' privilege to pay fair compensation in the form of an end-point royalty or trailing royalty on farm saved seed), several respondents chose to write and voice their support for government to take action in this area. They pointed to the lack of incentives to invest in plant breeding for cereals crops, such as wheat. One international seed company wrote that the current funding model, where public sector breeding, which is heavily subsidized by taxpayers, does not have to solely rely on royalties to fund their activities. This creates a monopoly and an unfair marketplace putting private sector breeders at a significant disadvantage. It also prevents foreign breeders from entering the market. They stated that if the current royalty model were addressed, they would consider entering the Canadian market with a multi-crop breeding program.

A group representing the seed sector in Canada wrote in support of the government taking action on Value Creation. They noted that the "Variety Use Agreement" (VUA), a contract-based system to collect royalties on planting of saved seed via farmer declaration, was introduced by the seed sector and provides an adequate mechanism to encourage competitive plant breeding in crops such as cereals. However, they state that the absence of the Canadian federal government (Agriculture and Agri-Food Canada) participation, which is the largest cereals breeder in Canada, in the VUA system has restricted its success.

However, as noted in the online consultation document, there is a lack of consensus on Value Creation within the sector. For example, two large groups representing crop sector producers wrote to voice their opinion that pulse and cereal varieties would not be affected by the proposed amendments to farmers' privilege, and that they strongly support farmers' ability to use farm-saved seed for these types of crops.

Other

An agriculture research services company wrote with several additional suggestions, including updating the PBR guideline documents, as they feel that they are a bit challenging to use, and posting the test guidelines documents online for more crop species. The company also noted that they are concerned that common seed is being used as an end-run around PBR, and that the idea of common seed needs rethinking.

A research and consulting company noted that for plants such as blueberries which do not begin to exhibit their traits fully until the plants are closer to being mature or in full production, the period of examination should be extended. In their view, examinations should not take place for at least three years following the year of planting. According to them, this would prevent varieties being rushed through the examination process before their true characteristics became apparent.

A Canadian plant breeding company wrote to suggest that in addition to the changes to being proposed, there should also be new provisions requiring basic disclosure by farmers who exercise their rights under the farmers' privilege provision in the PBR Act. They argued that due to the private nature inherent in the exercise of farmers' privilege, the rights holder cannot track these activities, and that this would be consistent with other jurisdictions where disclosure requirements exist.

A Canadian patent agent supported all the amendments under consultation, but also suggested other potential changes, including:

• removing the requirement to submit certain original signed paperwork to the PBR Office to support an application. They noted that this requirement does not appear to have a basis in the PBR Act, and that this requirement is onerous for applicants and is out of alignment with corresponding filing requirements for patents and trademarks.
• reducing the reliance on field testing in Canada. They note that field testing in Canada is burdensome to arrange for foreign applicants, and Canadian PBRs would be more attractive if the possibility of relying exclusively on foreign DUS test results was available in principle for all candidate varieties.
• distinctness based on standardized chemical/molecular characteristics. They note that there is increasing interest in plant varieties bred primarily for chemical or molecular characteristics, which are more easily standardized and assessed with modern technologies. They argue that these criteria should be acceptable primary points of distinctness for a new variety.
• relaxing the requirement to record an assignment of a PBR within 30 days of its effective date. They note that this timeframe is very short, particularly considering that executing and recording an assignment involves multiple parties, including the assignor, the assignee, foreign counsel, and the local agent in Canada.
• removing prior sale of harvested material from the novelty provision. They note that the PBR Act requires that harvested material of a candidate variety cannot be sold for certain prescribed periods before filing an application. They argue that they have encountered situations in which it was necessary for the originator of a new variety to test both market and consumer acceptability of harvested fruit (harvested material). In their view, this creates a barrier to PBR protection in Canada.

Next steps

Based on the overwhelming support for the proposed amendments gathered during the consultation process, the CFIA will proceed with advancing the necessary regulatory changes to the PBR Regulations. These changes reflect the feedback received from a wide range of stakeholders, including representatives from the horticulture, ornamental, seed, and agricultural sectors. The amendments aim to foster greater innovation, encourage domestic and international investment, and better align Canada with its global counterparts by enhancing IP protection and improving market access for new plant varieties.

While most respondents backed the proposed changes, some concerns were raised, particularly in relation to the farmers' privilege and its potential impact on farmers' rights. The CFIA will take these concerns into careful consideration, ensuring that a balanced approach is adopted. This includes ensuring stakeholders continue to have access to unprotected varieties in the marketplace, particularly to meet the needs of small-scale and organic farming.

The next step will involve the formal publication of the proposed regulatory amendments in the Canada Gazette, Part I, allowing for a final public review and feedback period. This will give stakeholders and the broader public another opportunity to provide input on the amendments before they are finalized. After this consultation period, the CFIA will work towards finalizing the Regulations, ensuring that Canada remains competitive in plant variety innovation while balancing the interests of all parties involved.