Overview
The Plant Breeders' Rights (PBR) Advisory Committee (AC) held its first meeting on November 22, 2022, from 10:30 a.m. to 2:30 p.m. EST. Thirteen members attended along with the PBR Commissioner and members of his office, as well as guest presenters Mr. Peter Button, Vice Secretary General, UPOV,
Dr. Edgar Krieger, Secretary General, CIOPORA and Dr. Marcel Bruins, Bruins Seed Consultancy.
The objective of this meeting was to provide an overview of intellectual property for plant varieties in a global context to the newly appointed and returning members of the AC.
Welcome and opening
Mr. Anthony Parker, Commissioner of the Canadian PBR Office, opened the meeting and welcomed the new and returning members of the PBR AC to the first virtual meeting of the Committee since its appointment in June 2022. It was proposed and accepted to move round table introductions to the afternoon in order to prioritize the presentations from the guest speakers participating from a different time zone.
Mr. Parker introduced the former chair of the PBR AC, Dr. Kofi Agblor and invited him to say a few words. Dr. Agblor welcomed the new Committee and spoke to the importance of the plant sector as a whole, and of the role of the PBR AC in particular, as a critical body in ensuring the effective administration of the PBR Act for a competitive plant sector. He encouraged members to be open minded and to seize the opportunity for cross-learning from their colleagues in order to better understand the role PBR plays in other parts of the plant sector, and wished them all well in their new roles.
International Union for the Protection of New Varieties of Plants (UPOV)
Mr. Peter Button, Vice Secretary General of UPOV, provided the PBR AC with an overview of the UPOV organization which currently has 78 members representing 97 countries. He updated the Committee on UPOV's Strategic Action Plan. UPOV's mission is to provide and promote an effective system of plant variety protection (PVP), with the aim of encouraging the development of new varieties of plants, for the benefit of society. This is supported by their three pillars: 1) Bring together stakeholders to help shape the UPOV system; 2) Provide information and guidance on the UPOV system; 3) Provide high quality services for UPOV members and users of the UPOV system.
Mr. Button emphasized that Canada is exhibiting strong leadership in all areas including: policy development, technical standard setting, training and capacity building (e.g. Senegal, Jamaica, and Trinidad and Tobago), adoption of the online filing system "UPOV PRISMA" (Canada is the 4th highest user). Mr. Button noted that Canada "punches well above its weight", with three Canadians currently holding leadership positions in UPOV: Anthony Parker, PBR Commissioner, Vice President of UPOV Council; Ashley Balchin, PBR Examiner, Chairperson of the Technical Working Party for Ornamental Plants and Forest Trees (TWO); and Renée Cloutier, PBR Examiner, Chairperson of the Technical Working Party for Agricultural Crops (TWA).
Mr. Button invited members to learn more about UPOV by visiting their website which provides a wealth of guidance documents, explanatory notes on important issues such as Essentially Derived Varieties, Harvested Material and Unauthorized use of Propagating Material, and Smallholder farmers in relation to the private and non-commercial use exception, as well as information on the benefits of UPOV membership and seminars offered like the Seminar on the role of plant breeding and plant variety protection in enabling agriculture to mitigate and adapt to climate change which was recently held in October 2022 in Geneva.
PBR in the ornamental and fruit sector
Dr. Edgar Krieger, Secretary General of CIOPORA, provided the Committee with an overview of PBR from the perspective of the breeders in the ornamental and fruit sector. CIOPORA is an International Community of Breeders of Asexually Reproduced Horticultural Varieties founded in 1961 (the same year as UPOV) which now has 150 members in 30 countries across 5 continents. According to Dr. Krieger, breeders of asexually reproduced horticultural varieties hold 2/3 of the world's PBR titles and the majority of these breeders are small and medium sized-breeding companies.
Dr. Krieger explained that breeders invest upfront to develop new varieties with traits beneficial to society at large such as disease resistance and drought tolerance, and should receive a return on their investment (ROI) because without this ROI, plant breeding is not sustainable as it takes years and many discarded selections before a new plant variety is created (e.g. the breeder of the Pink Lady® apple selected it from not less than 108 000 crossed seedlings over the course of many years of work).
He identified many areas of the UPOV system that were essential for breeders to secure effective protection, and ensure fair compensation for their innovations. He provided an overview of some of the more challenging policy issues faced in UPOV including: Essentially Derived Varieties (EDV's), Private/Non-Commercial Exemption, and definitions of Propagating and Harvested Materials. He identified strengths of the Canadian system, including a good definition of Propagating Material, but also several weaknesses, including the fact that the "Farmer's Privilege" should only apply to seed reproduced varieties, not asexually propagated varieties. At the next meeting of the Committee, the Commissioner agreed to elaborate on all these legal definitions so the members have a better understanding.
PBR in the agriculture and vegetable sector
Dr. Marcel Bruins, Editorial Director of Seed World and owner of Bruins Seed Consultancy, provided an overview of the PBR system globally and its impact on agriculture and vegetable crops. Examples were given of the contribution of PBR protection and plant breeding to economic growth and food security in the EU. Dr. Bruins also highlighted the positive impacts domestically of Canada joining UPOV '91 in 2015, most notably a higher availability of new varieties and more investment in plant breeding (51% increase).
He explained the cycle of innovation (i.e. that R&D leads to innovation, which needs to be protected by intellectual property (or PBR), which in turn generates ROI, which can then be invested back into R&D). He reinforced the need for a strong PBR system to ensure a return on investment, and further re-investment in R&D.
Dr. Bruins highlighted the need to ensure that molecular data is treated as confidential business information by PBR Offices internationally, and not disclosed without authorization. He recommended that PVP offices inform applicants of their national policy on the collection and sharing of molecular data. He also presented other recommendations in relation to broadening the definition of propagating material and ensuring the full scope of protection during the period of provisional protection as a key incentive for breeders to make their state-of-the-art varieties quickly available to the marketplace.
He pointed out weaknesses in the Canadian PBR system, most notably the lack of fair remuneration on farm saved seed and that the duration of protection, 20 years is too short, particularly for some crops kinds i.e. potatoes. Similarly to the representative from the ornamental and fruit sector, Dr. Bruins recommended further strengthening of the Canadian PBR Act.
Administrative items
After round table introductions, the Committee addressed several administrative matters. Ms. Deb Hart was elected as Chair of the PBR Advisory Committee, for a minimum of 1 year. Several Committee members supported her nomination, with testimony of her years of dedication, commitment, and unwavering support for the PBR regime in Canada. The Committee reviewed and approved changes to the Terms of Reference. The Committee quickly reviewed the proposed priorities of the PBR Office which included: a) Future release of an AAFC/CFIA Impact Study on Canada's move to UPOV'91, b) upcoming PBR regulatory amendments in winter 2024, and c) demand from stakeholders for resources and educational materials about PBR. The Chair requested that the Office review and update the workplan from the previous Committee, and identify potential meeting dates in late January 2023 to reconvene the Committee.
Next steps
Explain the legal definitions and concepts brought forward by Dr. Krieger and Dr. Bruins more in-depth, as a precursor for possible discussion concerning proposed regulatory amendments for winter 2024, at the next PBR AC meeting.
Provide a presentation to Committee members on the EDV concept, Canada's position and a debrief on discussions going on at UPOV.