January 9, 2024
Dear Minister MacAulay and Mr. Anthony Parker,
The Plant Breeders' Rights Advisory Committee is an industry group enshrined within the Plant Breeders' Rights Act to provide advice to the Plant Breeders' Rights (PBR) Commissioner of Canada. By the means of this letter, the committee would like to highlight several improvements that are necessary for the continued success of the intellectual property (IP) framework in Canada. These improvements have been identified through discussion and consultation with industry stakeholders, and their necessity reinforced through various government commissioned reports.
According to the Innovation, Science and Economic Development Canada report "Innovation for a Better Canada: What we heard," (PDF) Canada is in a global innovation race. Innovation is key to Canada's economic growth and competitiveness; however, innovation must be cultivated. IP rights are critical to incentivizing innovation and the ingenuity and creativity of Canadians. Plant breeders' rights are a unique form of IP that allow plant breeders to protect new varieties of plants, fueling our agriculture, horticulture, and ornamental industries, among others. Innovation in this space is more important now than ever before, given the need to adapt to and mitigate climate change, while continuing to ensure food security. The potential unlocked by plant breeding is staggering.
While Canada has a strong IP framework for varieties, having amended our PBR Act in 2015 to comply with the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV), there is further work to be done to unlock Canada's potential in the face of an ever-changing environment. The recent report "Assessing impacts of the 2015 legislative amendments to Canada's Plant Breeders' Rights Act and UPOV'91 ratification" highlights the successes of our PBR framework in enabling innovation in the plant space since the last major amendments. This report, which includes an examination of statistics and stakeholder opinions, as well as specific case studies, also points to what should be seen as future opportunities to further elevate Canada's position as a nation that encourages and respects innovation. The report reveals specific opportunities in extending the length of protections for certain crop types that have a more extensive breeding process and a longer timeline of marketplace adoption, the exclusion of certain crop types, like fruit trees, berry fruit and ornamentals from the "farmer's privilege" and a National Value Creation System for the collection of royalties on farm saved seed or harvested grain. Based on the preceding comments, the committee presents the following remarks and recommendations for immediate consideration by yourself and the Commissioner of the PBR Office.
Funding of the Plant Breeders Rights Office
The committee recommends maintaining the existing fee structure as prescribed in the PBR Regulations, subject to the Service Fees Act annual inflationary increases. Any fees that are no longer applicable, resulting from the 2015 PBR Act amendments, should be repealed from Schedule II of the PBR Regulations. The direct costs of delivering the IP regime should be funded through budgetary allocations, derived from fees collected by the CFIA for PBR services. Non-direct costs including corporate overhead, internal services, and back-office functions, should continue to be borne by the Government.
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As communicated by the committee in previous letters of advice, from the inception of the PBR Office in 1990, funding from fees for service was intended to support delivery of the IP regime. In fact, the committee provided the initial advice to Government over 30 years ago on fee setting and funding structure and recently (2022), that the office reported revenue to the Canadian Food Inspection Agency (CFIA) for PBR services was sufficient to cover the direct pay and non-pay costs to deliver the IP regime. We commend Government on its ability to effectively deliver the PBR IP regime with fees that have remained relatively static, with only inflationary increases applied in the last few years. However, the committee holds the opinion PBR fees for service must remain competitive with other international jurisdictions to attract investment and innovation to Canada. The committee acknowledges IP rights are "private rights," however the overwhelming evidence shows they deliver substantial public benefits and policy outcomes as noted in the 2002 and 2023 Impact Studies:
- 10-year review of Canada's Plant Breeders' Rights Act (PDF)
- Assessing the Impacts of 2015 PBR Act Legislative Amendments and UPOV 91 Ratification
Therefore, the committee views the funding and successful delivery of the PBR IP regime as a shared responsibility between Government and users/beneficiaries of the system. With this in mind, we recommend the direct costs of PBR delivery (salary and operating) should be funded from revenue paid to the CFIA from fees for PBR services. Non-direct costs, including corporate overhead, internal services, and back-office functions, should continue to be borne by the Government. This type of funding model has not only proved successful here in Canada for the past 30 years, but also in other jurisdictions.
Regulatory amendments
With the objective of strengthening the PBR IP regime to attract innovation and competition, the committee recommends the CFIA launch an online consultation during winter 2024 and publish a subsequent "What we Heard" report, with the objective to advance amendments to PBR Regulations to the Canada Gazette I by late Fall 2024/early winter 2025. The online consultation should be focused on extending the duration of protection for specific crop kinds and specific varieties, as well as clones and other propagating material, where warranted, and excluding certain types of varieties from the "farmers' privilege" exemption, where it is not a long-standing customary practice of saving and reusing seed.
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Amendments to the PBR Regulations continue to be included as a priority for the CFIA, as identified in the Forward Regulatory Plan. However, the committee notes these proposed PBR amendments have been a standing item on the plan for some time, and our view is these amendments must now be advanced in the very near future to support greater investment and innovation in plant breeding. Not only will this benefit innovators but will ultimately bring greater competitiveness and prosperity to Canadian farmers and producers, as well. The committee and industry continues to reiterate their support to extend the duration of PBR protection to 25 years for crop kinds that take longer periods to breed and gain market acceptance, such as potatoes, asparagus, woody plants. The committee also supports limiting the scope of the "farmers' privilege" only to those crop kinds where it has been a long- standing customary practice of farmers to save and reuse seed, in crops such as cereals and pulses. As such, the "farmers' privilege" exemption should not apply to; hybrids, inbred parental varieties, and asexually propagated varieties (excluding potatoes). The current Canadian PBR Act and Regulations afford weaker IP protection than offered in many like-minded jurisdictions, who are also our competitors in attracting investment in plant breeding and accessing new plant varieties.
Streamlining the efficiency and accessibility of the PBR application process
The committee recommends the PBR Office, promote and encourage applicants to use the UPOV PRISMA system as the preferential means to file applications. To accomplish this objective, the committee recommends adding a new fee to Schedule II of the PBR Regulations, offering a substantially lower fee to use UPOV PRISMA when compared to paper-based filing.
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As mentioned in previous advice from this Committee, many other jurisdictions such as Australia, the European Union, New Zealand, South Korea, and the United States, have implemented electronic web-based systems for filing PBR applications. We commend Canada for adopting the UPOV PRISMA system for e-filing and the e-PVP system for data exchange between UPOV members. However, based on the information shared by the PBR Office, the majority of applications submitted to the PBR Office continue to be paper-based. A paper-based system of filing creates administrative and monetary burden for both domestic and foreign applicants and reduces the overall efficiency and timeliness of the PBR Office in processing applications. Over 70 countries internationally are now using the UPOV PRISMA system, which provides a low cost and effective alternative to individual countries building and maintaining individual systems. Utilizing the PRISMA system for domestic applications facilitates easier access and application in other jurisdictions, as well.
Active participation and leadership in international standard setting
The committee recommends the PBR Office continue to play a strong and active role in international standard setting in areas of strategic and technical interest for Canadian plant breeders and farmers, including the UPOV Council, Consultative Committee, Administrative and Legal Committee, and Technical Committee, as well as the UPOV technical working groups for agricultural crops, fruit crops, ornamental plants and forest trees, vegetable crops, and testing methods and techniques.
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The committee remains supportive of the Government's commitment to international standard setting and capacity building as it relates to UPOV. The committee is pleased to learn the PBR Commissioner has been recently elected as Vice-President of the UPOV Council, and two PBR examiners have just finished serving as chairs of technical working groups. It is critical to Canada's success that we continue to attract investment in plant breeding and the release of innovative new varieties into our marketplace. To this end, Canada must have a strong and ongoing presence in UPOV, ensuring that international multilateral standards remain effective for our plant breeders and farmers.
The committee also urges Government to consider hosting the 55th Session of the UPOV Technical Working Group for Agriculture Crops in Saskatoon, Saskatchewan, in 2026.
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In 2018, Canada signaled its intention to host the 49th Session of the UPOV technical working group for agricultural crops in Saskatoon, Saskatchewan, from June 22 to 26, 2020. Regrettably, the global Covid-19 pandemic necessitated the cancellation of an in-person session, and the meeting was moved to a virtual venue. Consequently, Canada missed an important opportunity to showcase our world class public and private plant breeding institutions, and the direct relationship of investment and innovation to a strong UPOV-based intellectual IP framework. The committee urges government to consider hosting a UPOV technical working group in the near future.
In closing
In closing, on behalf of members of the committee, who recently met in person in Ottawa on December 13th and 14th, 2023, I would like to express our sincere appreciation for the continuous opportunity to provide advice that, once implemented, will strengthen Canada's IP framework for plants, ultimately supporting growth and competition in the agriculture, horticulture, and ornamental sectors.
Yours sincerely,