Breeders’ rights bill protects producers

As long-time public plant breeders, we were pleased to see the tabling of Bill C-18. It contains desirable amendments to the present Plant Breeders’ Rights Act, which will bring Canada into conformity with UPOV 91.

Canada is a signatory to this convention but is just now bringing the amendments into force. Thus, the amendments are not something that has not been seen before.

Canada is behind our trading partners and competitors: the United States, the European Union, Japan, Australia, South Korea, Russia, and many others.

Indeed, Canada will probably need conformity with UPOV 91 as part of future trade agreements.

An important amendment protects the producer’s right to save and grow the seed of a protected variety for their own use: Section 5.3 (2) of Bill C-18.

The current legislation only permits a farmer’s use of farm-saved seed by not expressly forbidding it, but the new legislation specifically enshrines this privilege.

This allows farmers, once they have bought seed of a protected variety, to save, store, clean, treat and plant 
it indefinitely on land under their control.

The amendments allow farmers to sell the harvested grain into the commercial market without paying additional royalties, so long as they obtained the seed legitimately.

However, the act prohibits a farmer from transferring harvested seed from the protected variety to anyone else to plant or further multiply it without permission of the right holder.

Unauthorized seed sales of a protected variety are an infringement under the current act and continues to be under the new act.

A provision allows a rights holder to exercise rights on a commercial crop but only if seed has been obtained illegally or there has not been a reasonable opportunity to collect royalties earlier in the sales chain.

Thus, a right holder would normally collect royalties on the initial sale of seed. However, in exceptional circumstances where this could not be done, there is a provision for later collection, but only once.

Opponents of Bill C-18 and the original act claim that producers will be held hostage to private seed companies. That has not happened nor is it likely with the new legislation.

More than 45 percent of Canadian PBR crop applications come from public plant breeders. Royalties on varieties are a key funding source for breeding at public institutions.

That will likely fall as the federal government continues to reduce funding and eliminate varietal release programs.

However, investments in breeding are expected to increase with the proposed amendments, and channeling additional funds into public breeding and public-private partnerships is expected.

The research and breeder’s exemptions are other important sections in the revised PBR legislation. They are carried over from the existing legislation but made more explicit.

The research exemption gives other researchers the freedom to conduct research on a protected variety.

The breeder’s exemption means that any breeder can use a PBR protected variety to build upon its genetics and develop superior varieties without obtaining permission from the right holder.

However, plant breeders have also asked for an important provision that prevents another breeder from re-constituting the protected variety and claiming ownership.

Thus, a breeder could not make a minor change to a protected variety and then claim it as a new variety without taking into account the right holder’s right to the original variety.

Opponents claim that if breeders gain, then farmers must lose. We believe both will benefit.

A fair intellectual property framework ensures that Canada is a desirable place to invest in plant breeding, which will result in more innovation and superior varieties.

Most western commodity groups believe the amended PBR legislation should benefit farmers. A more competitive plant breeding environment will result in a greater choice of pest resistant, high yielding varieties with good agronomics to meet their needs for sustainable production and to compete in the global marketplace.

We encourage those interested in this issue to read the amended PBR Act contained in Bill C-18. We think you will find it well balanced with benefits for all parties.

To find the act, visit www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6378152.

Keith Downey is a retired plant scientist with Agriculture Canada, and Bryan Harvey is a plant scientist with the University of Saskatchewan.

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