One of the most disturbing aspects of the debate or lack of debate on moving Canada’s plant breeder’s rights legislation to comply with UPOV 91 is how most farm groups have complacently accepted that we have to go down this path to access new crop varieties. Many have vigorously endorsed this. They are willing to lose control over seed in return for a transitory “farmers privilege” and the implied promise of increased investment from the private sector in varietal development. It is worth noting what plant breeders get in Bill C-18, which is now before the Senate. In Section 5 of the act, the holder of plant breeders’ rights has the exclusive right:
a) To produce and reproduce propagating material of the variety (seed and cuttings).
b) To condition propagating material (clean seed and treat).
c) To sell propagating material.
d) To export or import propagating material.
e) To make repeated use of propagating material (reseed).
f) In the case of an ornamental plant the use of any such plants or parts of those plants as propagating material.
g) To stock propagating material for the purpose of doing any act described in paragraphs a to f (binning, bagging, etc.).
h) To authorize, conditionally or unconditionally, the doing of any act described in paragraph a to g.
This is by anyone’s read total control over seed. There is, however, more for plant breeders. They will have the right to collect royalties anywhere in the seed and food system, known as a cascading rights, if they do not collect royalties at the time of seed sale. This makes the possibility of collecting end point royalties on the farmer’s whole crop a reality. Plant breeders will now have the possibility of holding patents and plant breeder’s rights on the same variety. They will have longer terms of protection (20 years). They also get a new right called essentially derived, whereupon the holder of an old variety can claim a new variety is essentially derived from the old and therefore claim rights over the new variety.
Farmers and citizens get a “farmers’ privilege” to save and reuse seed on their own holdings and to condition that seed, but this can be removed or modified at any time by regulatory change without introducing new legislation.
The object of UPOV 91 is to ultimately make farmers dependent on outside suppliers for all their seeds or have farmers pay for using their own seeds. This is already taking place in some European countries that have UPOV 91.
The whole question of rights is being inverted: the breeder is given an extensive list of exclusive rights and the farmer a privilege, which is conditional and could be revoked.
In addition, the question of farmers’ privilege is to be subjected to “reasonable limits,” which as our commissioner of plant breeders’ rights stated in a recent presentation “could be determined by the size of the holding, the type of variety, the number of cycles of reproduction, remuneration proportion of harvested material, etc.”
This bill is not about facilitating innovation but is about granting powerful new tools to extract wealth from farmers by an increasingly consolidating group of companies engaged and plant breeding and seed sales.
Let us look at canola where companies have used patents, which are in some ways similar to plant breeders rights to totally control seed. In Canada, more than 20 million acres are seeded to canola of which 97 percent is seeded with the requirement that farmers purchase the seed and not use any of following harvest for future seed. This results in seed sales of more than $1 billion dollars annually.
In 2012, about 80 million or eight percent was reinvested in varietal development leaving an even billion in private companies’ hands. What makes farmers believe that in crops where they have a privilege to save and reuse seed that private companies will invest substantially in varietal development given this example?
There is another way to innovate and that is to reinvest in public plant breeding, to use participatory plant breeding with farmers and plant breeders co-operating, and to look at the National Farmers Union document The Fundamental Principles of a Farmers Seed Act. It is only a small minority of countries in the world that have been suckered into UPOV 91. We have fought hard for years to stop Canada from going down this path.
Those who control seed, control the food system and ultimately control people. Do we want to let the largest seed, chemical and pharmaceutical companies in the world have that kind of power?
Terry Boehm is chair of National Farmers Union Seed and Trade committee and a former president of the NFU.
Next week, the Western Canadian Wheat Growers Association addresses the issue from its perspective.