Plant breeders’ rights may expand

The federal government has begun work aimed at amending Canada’s plant breeders’ rights legislation. 

“We’ve begun discussions and we’ve begun the work that’s required with industry … to move to that end, but those discussions have just begun,” said agriculture minister Gerry Ritz.

He said recent changes to the Canadian grain industry, including elimination of single desk grain marketing and removal of the kernel visual distinguishability system have helped create an environment more conducive to private sector investments in plant breeding.

Updating Canada’s Plant Breeders’ Rights Act, which was passed in 1992, will improve the investment climate and ensure Canada’s breeders’ rights protections are equivalent to those in other countries, he said.

Ritz’s comments prompted an angry response from the National Farmers Union.

NFU president Terry Boehm said amendments to the existing act could be a significant infringement on farmers’ rights.

“At the end of the day, we’re going to be shifted to a place where farmers will increasingly be unable to save and reuse their seed and their costs are going to go up significantly,” Boehm said.

Canada’s Plant Breeders’ Rights Act gives plant breeders the right to collect royalties on PBR protected seed varieties for 18 years.

It also prohibits the unlicensed sale of PBR protected varieties as seed, but allows producers to save and reclean their own harvested material to replant on their own farms.

Amending PBR legislation to conform with the most recent template established by the International Union for the Protection of New Varieties of Plants, UPOV 91, would extend breeders’ rights to a minimum of 20 years.

It would also expand breeders’ rights to include exclusive control over cleaning, conditioning and storing PBR protected seed.

It is has yet to be determined if new legislation would uphold the farmers’ right to save and clean harvested material for replanting on their own farms, a concept known as farmer privilege.

The UPOV 91 template gives member countries the option of maintaining or waiving farmer privilege in domestic legislation.

Ritz said discussions regarding farmer privilege are underway. 

“That’s the nature right now and we’ll continue to work to that regard.”

New legislation will be aimed at serving the best interests of farmers, he added.

The Saskatchewan government has also indicated support for updating federal PBR legislation.

At a recent grain industry meeting in Ottawa, the manager of Saskatchewan Agriculture’s crops branch said updating PBR protections to conform with UPOV 91 is a priority.

Penny McCall said expanding plant breeders’ rights is a polarizing issue, but improvements to PBR protections are necessary to ensure plant breeding investments are optimized.

McCall said Saskatchewan would like to ensure that farmers’ privilege to use farm-saved seed remains intact.

Ottawa proposed similar legislative amendments to breeders’ rights in 1999 as part of Bill C-80.

Parliament was prorogued shortly after the amendments were introduced and the bill died.

Boehm was critical of arguments that promote PBR amendments as necessary to attract more investment. He said current PBR legislation fulfills all of Canada’s international obligations pertaining to intellectual property protection.

Existing mechanisms allow canola seed companies to extract hundreds of millions of dollars per year from farmers’ revenues, he added.

Boehm said a further erosion of farmers’ rights will present greater opportunities for private sector companies to extract more money from primary producers.

The concept of farmer privilege is a critical consideration, he added.

Farmer privilege is not explicitly defined in the original UPOV 78 template but is defined in UPOV 91.

“The shift to defining a farmers’ privilege means that a government can decide on a crop by crop basis whether or not you can save and reuse seed,” Boehm said.

“So something that’s (considered) a fundamental practice in agriculture now becomes a privilege bestowed upon farmers by the government of the day and … with this government, that’s a huge worry.”

Anthony Parker, commissioner of the Canadian Food Inspection Agency’s Plant Breeders’ Rights Office, said upgrading PBR legislation to conform with UPOV 91 standards would give plant breeders more opportunities to collect royalties on PBR protected varieties and improve returns on plant breeding investments.

It would also give them more control over protected varieties and increase their ability to prevent PBR infringements.

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