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Agricultural Growth Act: Updating the Plant Breeders' Rights Act in Canada

The Agricultural Growth Act is a bill designed to modernize Canada's agriculture legislation and encourage innovation in the sector. Among the key changes being proposed in this bill are amendments to the Plant Breeders' Rights Act (PBR Act) to encourage investment in plant breeding in Canada and foster more accessibility to foreign seed varieties for farmers.

What are plant breeders' rights?

Plant breeding is an intensive process that requires significant time and investment, often taking 10 to 12 years to bring a new variety to market. Plant breeders' rights (PBR) are a form of intellectual property protection for plant breeders who develop new plant varieties and want to sell and collect royalties from the sale of reproductive material from those varieties (i.e., seeds, cuttings, budwood, runners). It is a voluntary process that allows plant breeders to have exclusive control over the sale of propagating material for a specified length of time (currently 18 years in Canada).

What is the Plant Breeder's Rights Act (PBR Act)?

The PBR Act is administered by the Canadian Food Inspection Agency (CFIA), Plant Breeders' Rights Office, and provides legal protection to plant breeders for new plant varieties.

What changes are being proposed to Canada's PBR Act?

The proposed changes to the PBR Act will strengthen the rights of breeders and improve accessibility to protection by:

• extending plant breeders rights to include reproduction, import, export, conditioning (clean, treat), and stocking for the commercial purposes of propagating, in addition to the current system that already allows for the sale of propagating material and the production of propagating material intended for sale;
• allowing plant breeders to sell a variety in Canada for up to one year before applying for PBR protection in order to test the market, advertise, or to increase stock;
• providing automatic provisional protection for a new plant variety from the date of filing, which would allow applicants to exercise their rights while applications are pending "grant of rights" (no legal action in respect of provisional protection could be initiated until after the rights are granted);
• extending the protection period from the current 18 years to 25 years (for trees, vines or any specified categories) and 20 years for all other crops, unless the breeder terminates them earlier; and
• clarifying that plant breeders may only collect royalties once on the initial sale of a particular cycle of propagating material (i.e., a breeder does not get to "double dip" or collect again unless the protected variety is reproduced further). If a breeder is denied a reasonable opportunity (e.g. cases where protected seed is stolen or illicitly shared) to collect royalties on the sale of propagating material, he/she may exercise rights on the harvested material (e.g. grain).

Under the proposed changes, what would be the eligibility requirements for PBR protection of a plant variety?

To be eligible for PBR protection in Canada, a variety would need to be:

• new, meaning it may not have been sold for more than one year in Canada prior to the filing date of the application, and it may not have been sold outside of Canada for more than four years before the filing date of the application (six years in the case of trees and vines);
• distinct from all other varieties of the same plant species;
• uniform in its relevant characteristics; and
• stable so that its characteristics do not change after repeated propagation over several generations.

How will these changes help Canadian farmers?

These changes will encourage increased investment in plant breeding in Canada and encourage foreign breeders to protect and sell their varieties here. As a result, Canada's farmers will benefit from improved access to innovative new varieties that have been bred to enhance crop yields, improve disease and drought resistance and meet specific market demands. Canadian farmers can expect access to higher yielding varieties that will thrive in the Canadian agricultural environment.

How would these changes support Canadian plant breeding programs?

Canada's plant breeding industry will benefit from a more stable, modern intellectual property environment that is in line with international partners. The proposed PBR Act amendments will strengthen protection for new plant varieties and foster a positive business environment for private investment in Canadian research and plant breeding programs.

The proposed amendments specifically allow anyone to have unrestricted access to protected varieties for the purpose of breeding other, new varieties. This is called Breeders' Exemption. Unrestricted access to a protected variety is also allowed for conducting experimental research or for propagating protected varieties for private or non-commercial purposes (such as by home gardeners, hobbyists, subsistence farmers, etc.). Individuals can use a PBR-protected variety for any of these activities without seeking authorization from the right's holder.

Have stakeholders been consulted on the proposed changes?

Yes. The CFIA held a national public consultation and received feedback from plant breeders, farmers, horticulturalists, seed dealers and the general public. The feedback confirmed that affected stakeholders are generally supportive of the proposed changes.

Will farmers continue to be able to save seed from their crop and use it on their land?

Yes, this is referred to as Farmer's Privilege. The Farmer's Privilege for farm-saved seed remains firmly in place and is explicitly stated in the Act. The bill allows farmers to continue saving and conditioning (clean, treat, etc.) seed of PBR-protected plant varieties for replanting on their own land.

UPOV 91

What is UPOV 91?

The International Union for the Protection of New Varieties of Plants (commonly known by its French acronym "UPOV") sets the international standard for plant breeder rights. Over 70 countries are members of UPOV. Membership in UPOV allows a country to fulfill its obligations for protecting plant varieties under the World Trade Organization (WTO).

Over the years, there have been several updates to the UPOV requirements for plant breeder rights protection. Canada's current legislation meets the requirements of the 1978 update. The most recent update was in 1991 (UPOV 91) and the proposed changes in the Agricultural Growth Act would bring Canada in line with UPOV 91. Most UPOV members are already meeting UPOV 91 requirements, including many of our key trading partners, such as Australia, the European Union, Japan, South Korea and the United States.

How would meeting UPOV 91 requirements encourage foreign breeders to protect and sell their varieties in Canada?

Plant breeders must apply for protection rights in each country and are subject to the level of protection legislated in that country. Many plant breeders only sell their new plant varieties in countries that meet the level of protection provided by UPOV 91.

Farmer's Privilege

What is Farmer's Privilege?

Farmer's Privilege is an exemption to the breeder's right that allows a farmer to save, condition (clean and treat), store, and reuse seed of a PBR-protected variety for replanting on their own farm. Canada adopted the Farmer's Privilege as part of the suite of UPOV 91 amendments in order to allow farmers to continue this practice of saving and reusing seed.

What does this new bill mean for farm-saved seed (Farmer's Privilege)?

The Farmer's Privilege for farm-saved seed remains firmly in place.

Could additional restrictions be placed on farm-saved seed in the future?

Any future changes to Farmer's Privilege would follow regulatory processes and be based on the following principles:

• extensive consultation with all affected stakeholders on a crop-by-crop basis;
• research to examine best practices and approaches in UPOV 91 countries that already have farm-saved seed conditions in place;
• clear research priorities and needs defined by farmer/producer organizations and the agricultural industry; and
• a regulatory amendment process that includes another opportunity for comments and feedback before any changes would be finalized.

Furthermore, should changes to farm-saved seed be applied in the future, these would follow the Government's commitment to transparency, predictability and low administrative costs for farmers to implement.

What are the international practices related to farm-saved seed?

Many of Canada's trading partners have conditions on farm-saved seed in order to stimulate investment in certain under-funded sectors (e.g. wheat, barley, oats, etc.). Some have implemented royalty collection mechanisms on farm-saved seed (i.e., United Kingdom) or end-point royalties on harvested grain (i.e., France and Australia).

Will changes to the PBR Act have an impact on "heritage" or "heirloom" varieties?

No. Heritage or heirloom varieties tend to be freely available in the public domain and, in most cases, would not be eligible for protection by a plant breeder's right because they are not "new".