Beefed-up plant breeders’ rights

Plant breeders’ rights may not be at the top of your need-to-know list, but taking a few moments to acquaint yourself with the new regulations could save a lot of grief in the long run.

Todd Hyra, SeCan Business Manager for Western Canada

Todd Hyra, SeCan Business Manager for Western Canada
photo: Supplied

Todd Hyra, SeCan’s business manager for Western Canada, explains what plant breeders’ rights (PBR) are all about and why this is important for the feed grain, forage and beef industries.

Plant breeders’ rights are a type of intellectual property rights, similar to a patent or copyright, in that the holder of PBR on a variety has exclusive say over who may use the material, in this case, seed and other propagation material. When a person, company or organization breaches the rights, the Plant Breeders’ Rights Act allows the breeder to take legal action to claim the royalties owed.

For varieties protected under the amended act, PBR 91, in effect since February 27, 2015, plant breeders could go after royalties on harvested grain if the crop was grown with illegally obtained PBR 91-protected seed. This differs from the original act, PBR 78, which allows breeders to seek compensation only on the seed used to grow the crop.

It all sounds a bit intimidating, but really not a lot has changed at the farm level. “Farmers’ privilege” still stands, in that you can save, clean and treat PBR-protected seed for planting on your own farm with authorization from the breeder. Authorization is as simple as purchasing certified seed from a grower or company that has rights from the breeder to sell the seed. The original blue certified-seed tags and receipts of purchase naming the variety are proof that you have authorization.

“The breeder pays several thousands of dollars to obtain protection for a variety under PBR but that’s protecting the tens-of-thousands if not millions of dollars invested in developing the variety,” Hyra explains. “It’s very important to any breeding program but particularly to public breeding programs because they don’t have other ways such as use-agreements and contracts to protect their investments.”

SeCan, for example, might support a breeding program by contributing directly to the research or tendering on new varieties. If the breeder licenses the variety to SeCan, then SeCan members can legally do the seed production, multiply and sell seed for that variety. The member collects the royalty on each sale and funnels it through SeCan back to the breeder to invest in developing new varieties.

The idea behind strengthening Canada’s PBR to bring the act in line with other developed nations that adhere to UPOV 91 is to give Canadian and foreign breeders added confidence that they will receive royalties owed. This in turn should encourage breeding of new varieties in Canada and foreign plant breeders to invest in plant breeding here or bring their products developed in other countries to the Canadian marketplace.

Hyra gives CDC Haymaker as one example of how PBR supports development of varieties with beef producers in mind. This is a new forage oat variety bred by the Crop Development Centre at the University of Saskatchewan and released to SeCan. It’s one of SeCan’s first products protected by the breeder under provisions of PBR 91.

As a forage oat variety it has a greater impact across the value chain than a grain oat variety, but the market potential isn’t as broad, Hyra explains. Without the opportunity to put PBR protection on a new variety to ensure royalties can be captured, the CDC or any other breeding program may not be interested in making the investment to develop varieties with limited market potential.

The Plant Breeders’ Rights Act is administered by the Canadian Food Inspection Agency’s Plant Breeders’ Rights Office in Ottawa. If a breeder chooses to protect a new variety, a fee is paid upon application with supporting data at which time the variety is considered protected while the application, seed examination, and granting process plays out. The breeder pays annual fees to maintain the protection for up to 20 years and can withdraw a variety from the program at any time.

UPOV 78 and UPOV 91

UPOV member countries choose to design their own legislation around the provisions of UPOV’s 1978 or 1991 convention acts. Canada’s original Plant Breeders’ Rights Act of 1990 was based on UPOV 78. Starting way back in 2004, the CFIA followed the usual protocol that requires consulting with stakeholders to update the act to UPOV 91 standards.

It’s a real mixed ball of wax out there because breeders can only apply for PBR protection on new varieties that have been on the market less than a year. Varieties released before 1990 and varieties that breeders chose not to protect don’t have any restrictions on seed use. Those protected under PBR 78 retain that level of protection and new varieties may or may not be protected under PBR 91.

You can find out about a variety’s PBR status from the grower or retailer, or easily find it in the Canadian Seed Trade Association’s new database created for this purpose at www.pbrfacts.ca.

One important difference between PBR 78 and PBR 91 is that farmers’ privilege to save PBR-protected seed from a harvested crop for own use is now enshrined in legislation. Under PBR 78, it was taken for granted because the act didn’t prohibit it.

Brown bagging, or selling seed of PBR-protected varieties to someone else as common seed for the purpose of growing a crop, has always been illegal. The same goes for trading PBR-protected seed for other products or services, such as grain cleaning or custom seeding.

It’s important to know whomever is selling PBR 91-protected seed to you has legitimate authority from the breeder to be selling it because under PBR 91, the purchaser as well as the seller are breaking the law. Only the seller can be held liable under PBR 78.

UPOV 91 and Canada’s PBR 91 extend liability to seed conditioners and grain buyers, including feed mills and feedlots. The holder of harvested grain needs to be sure that it was grown from legally purchased seed. Don’t be surprised if a seed cleaner or grain buyer asks for proof by way of your original certified seed tag or receipt naming the variety for grain grown from certified seed or saved seed, or asks you to sign a declaration.

Only the breeder or the breeder’s representative can provide authorization to clean, condition, stock, sell, export or import a PBR-protected variety as seed.

If a breeder initiates legal action and it’s proven in the courts that a farmer, retailer, seed conditioner or grain buyer has breached PBR 91, then the breeder can collect royalties on the harvested crop and seek compensation for lost or damaged markets.

The pbrfacts.ca website covers some real-life scenarios that put all of this into perspective in a nutshell. You’ll also find links to other resources including the PBR office of the CFIA and UPOV.

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