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Plant Breeders Rights in Canada under UPOV ‘91

Plant Breeders’ Rights (PBR) is a type of “intellectual property” similar to a patent, where the developers of new plant varieties claim ownership over the variety. Countries can recognize this type of ownership by creating laws that define PBRs and give PBR- holders authority over seed and propagating material (such as tubers and cuttings) that, among other things, requires growers to ask permission and pay royalties before planting them. UPOV ’91 is the most restrictive form of PBR law. It enhances the rights of seed companies such as Bayer, Syngenta, Corteva and BASF at the expense of farmers.

Canada’s Plant Breeders Rights Law

The International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organization that has created model PBR laws. Canada joined UPOV and adopted its 1978 model law with the Plant Breeders’ Rights Act in 1990. On February 27, 2015 the amended PBR Act came into force which brought Canada under UPOV ’91. The new rules apply to all new varieties granted rights after that date. Varieties that were already on the market continue to be dealt with under UPOV ’78 rules.

Canada’s current PBR law includes a “farmers’ privilege” clause (Section 5 (2) of the Act)that allows farmers to condition (treat) and use harvested seed from a UPOV ’91 variety to plant a future crop on their own holdings. The original wording of the farmers’ privilege would have left the right to stock (store) seed exclusively in the hands of the PBR-holder. The NFU pushed for and obtained an amendment that adds “stocking” seed to the farmers’ privilege. However, the new law enables government to diminish farmers’ privilege by regulation in the future (Section 75 (l.1) and (l.2))

Your seed-saving rights

For more information about how the current law affects your seed-saving rights, please see the article, Seed saving under the amended Plant Breeders Rights Act in the November 2015 edition of the NFU Newsletter. To find out whether the varieties you grow are under UPOV ’91, UPOV ’78 or in the public domain, visit the Canadian Seed Trade Association’s database.

UPOV ’91 interacts with other parts of Canada’s seed regulatory system and trade agreements. For example, CETA and the CPTPP expand enforcement measures to help PBR-holders sue for infringement. Recent changes to the variety registration system make it easier for seed companies to withdraw older varieties from the market, limiting farmers’ ability to choose royalty-free seed.

Implications of UPOV ’91 for Farmers

Corporate demands for royalty payments, along with potential future restrictions on farm-saved seed, have negative implications including higher per-acre cost of production due to higher seed prices;fewer and larger farms because reduced profitability will drive larger-scale production; loss of independent seed cleaning businesses; increased litigation as PBR holders seek to maximize royalty revenues; loss of rural wealth transferred from local farmers to distant, often foreign, PBR-holders.

When the amended PBR Act came into force, NFU President Jan Slomp said:

“Restrictions on farmers’ seed saving, and the massive transfer of wealth from farmers to seed companies that will follow, are not necessary for the development of useful new varieties. It is a shame that Canada’s government has decided to pass a law that will enrich some of the wealthiest and most powerful global corporations at the expense of Canadian farmers and the biodiversity of Canada’s food system.”

Summary

Public DomainUPOV ’78UPOV ’91 (varieties granted rights after Feb 27, 2015)
No restrictions.Moderate restrictions for 18 years.Severe restrictions in effect for 20 years.
The variety is not covered by Plant Breeders’ Rights because it has been on the market for over 18 years; it is a heritage variety; or the PBR holder has voluntarily given up its rights to the variety.Farmers are free to save, reuse, select, exchange, and sell seeds without paying royalties.PBR holders can sue someone who sells seed or propagating material of a PBR- protected variety, uses it to produce hybrids or uses plant parts to commercially produce a PBR-protected variety without permission.Farmers are free to use harvested seed to plant future crops without restriction.PBR holders of varieties protected after February 27, 2015 can sue someone who sells, reproduces, conditions, stocks, imports, exports, repeatedly uses to create a hybrid or uses plant parts to commercially produce plants of a PBR-protected variety without permission.
The “farmers’ privilege” allows farmers to reproduce, condition and store UPOV ’91 seed varieties for use as seed on their own holdings.
If royalties were not collected when seed is sold, the PBR-holder can demand payment later, such as when the crop is sold. Also known as End Point Royalties or EPR’s.
Government can restrict or remove the “farmers privilege” by passing regulations
The PBR holder can sue for damages and can ask the judge to order the convicted infringer to stop any further infringement, fine the infringer if they continue to infringe, and to dispose of the seed in question.The PBR holder can sue for damages and can ask the judge to order the convicted infringer to stop any further infringement, fine the infringer if they continue to infringe, and to dispose of the seed in question.