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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Canterra Seeds and French farmer co-operative Limagrain on Thursday announced they would further tie up their wheat variety commercialization work through a new joint seed breeding and development business.

The two companies said their new cereal breeding and development partnership, to be named Limagrain Cereals Research Canada, will be based in Saskatoon.

Limagrain — which has already worked with Canterra since 2012, through an exclusive license deal for commercialization of wheat varieties — also said Thursday it will buy a minority stake in Canterra, including rights to name representatives to Canterra’s board of directors.

Both deals are expected to be completed by the end of September, subject to conditions such as the usual due diligence — and a requirement “that there be no changes to Bill C-18,” Canada’s federal Agricultural Growth Act.

“There is no understating the importance of this deal to Canadian agriculture,” Canterra CEO David Hansen said in a release.

Passed in February, C-18 — which, among other things, tightened up Canada’s Plant Breeders’ Rights (PBR) legislation — “has opened up a whole new world of wheat,” he said.

“Our farmers can now buy and grow varieties that they couldn’t access before. For us as seed marketers, this is obviously an opportunity, but the opportunities are much greater for our customers, the producers.”

The Limagrain Cereals j.v. is expected to bring “significant added value” to the Prairie grain sector through development of new varieties of cereals, with a specific focus on wheat and use of “the most advanced technologies currently available.”

Passage of C-18 earlier this year, and Ottawa’s recent related move to ratify UPOV 91 (the 1991 International Convention for the Protection of New Varieties of Plants), puts Canada “finally on a level playing field with the rest of the international plant breeding community,” Hansen said in a separate federal government release.

France’s Limagrain already bills itself as the fourth largest seed company in the world and a top player in wheat and other cereals.

“Western Canada’s expertise in cereal breeding is globally recognized,” Bruno Carette, Limagrain Field Seeds’ CEO, said in the two companies’ release Thursday.

“We are proud to bring our cereal breeding expertise to Saskatoon — a hub for cereal development in Canada — and work collaboratively to breed advanced wheat genetics for farmers in Western Canada.”

“Today’s partnership announcement is a great example of how the Agricultural Growth Act is delivering for Canadian producers,” federal Agriculture Minister Gerry Ritz said at the j.v. announcement Thursday.

“Bringing Canada’s seed regulations up-to-date has created opportunities for new investment in crop breeding in Canada,” Rosetown, Sask. farmer Jim Wickett, chair of the Western Canadian Wheat Growers, said in a separate release Thursday.

The planned Canterra/Limagrain venture “demonstrates the value of creating a policy environment that encourages investment,” he said. “Prairie wheat growers will be the main beneficiaries.” — AGCanada.com Network

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Canada’s representatives to the World Trade Organization, on Friday in Geneva, deposited the government’s “instrument of ratification” for the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV ’91).

Agriculture Minister Gerry Ritz said Monday the move finalizes one of the main measures of the government’s Agricultural Growth Act, which was passed this spring and brought Canada’s plant breeding legislation in line with the UPOV ’91 Convention.

“With the ratification of UPOV ’91, plant breeders have more protection and farmers have better access to a wider variety of seeds,” the government said in a release Monday.

The treaty, the government said, “encourages increased investment in plant breeding and brings Canada in line with trading partners, allowing Canadian farmers to be more competitive in the global marketplace.”

“We have been operating under the UPOV ’91 Convention since February, but now it has been announced to the world,” Canadian Seed Trade Association president Dave Baute said in a separate release.

“After 22 years of hard work, Canada’s formal ratification of the 1991 UPOV Convention places the agricultural sector solidly on the world stage and confirms that the door is open for international and domestic collaboration and innovation.”

Since the Act was passed in late February, the CSTA and other crop commodity groups said Monday, “new varieties of wheat, oats, flax, and potatoes, that would never have come to Canada without the updates to Canada’s Plant Breeders’ Rights (PBR) legislation, have become available.”

PBR is federally-mandated intellectual property protection for plant breeders who develop new plant varieties and want to sell and collect royalties from the sale of seed or plant genetics.

Canada, the government said Monday, has already seen a 20 per cent increase in the number of PBR applications since the Agricultural Growth Act came into force this year.

Formal UPOV ’91 ratification, the groups said, “confirms to the world that Canada supports an agricultural sector that is sustainable and competitive and that investment is welcome domestically and internationally.”

“Stronger intellectual property rights have proven to provide greater incentives to increase investment in research and development for Canada’s crop sector, giving our farmers greater access to the newest crop varieties,” Ritz said.

Critics of UPOV ’91 such as Canada’s National Farmers Union have said the treaty will make it “much more difficult” for farmers to save and reuse seed, forces them to pay more for seed and consolidates control over seed with the “world’s largest agribusiness corporations.”

Bringing PBR in line with UPOV ’91, the government said, doesn’t change what farmers are allowed to do with respect to protected plant varieties, but is meant to “facilitate a breeder’s ability to enforce his/her rights on protected plant varieties.”

The government has also said Canada’s UPOV-based PBR legislation enshrines the “farmers’ privilege,” allowing farmers to save, clean, treat and store seed produced from a protected plant variety and use it for replanting on their own farms.

“If farmers are obtaining seed of a protected variety legitimately, then there will be no increased liability.” — AGCanada.com Network

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Immediately after the bill received royal assent Wednesday, Agriculture Minister Gerry Ritz tabled a treaty in Parliament to ratify the UPOV 91 Convention (the 1991 Convention of the International Union for the Protection of New Plant Varieties), the international standard for plant breeders’ rights (PBR).

Being party to UPOV 91 will encourage more plant breeding in Canada and bring in more plant germplasm, resulting in higher yields and bigger profits for farmers, Ritz said Friday at a separate event celebrating the legislation, at Canterra Seeds in Winnipeg.

Proponents of Ritz’s package of legislative amendments, which will align Canadian PBR with UPOV ’91, hail the legislation as offering opportunities for increased investment and delivery of new varieties both from plant breeders operating in and outside of Canada.

Partners in Innovation, an umbrella group of ag commodity groups backing the amendments, said Friday the new law will ensure farmers have access to “new and improved varieties developed in Canada and internationally.”

“Many Prairie farmers have benefited from private investment in canola, corn and soybeans,” Mike Bast, Manitoba vice-president of the Western Canadian Wheat Growers Association, said at the Winnipeg event.

“I’ve seen those benefits firsthand in each of these crops. We now have an opportunity to see similar benefits from new investment in the breeding of wheat, barley and other crops.”

The legislation has the support of all “relevant” farm organizations, Ritz said. The list includes the Canadian Canola Growers Association, Alberta Wheat Commission, Canadian Federation of Agriculture, Grain Growers of Canada, Western Canadian Wheat Growers and Cereals Canada.

“Rights and responsibilities”

The legislation will also “further enhance the contribution of Canadian fresh fruit and vegetable growers to healthy diets for Canadian families,” Keith Kuhl, president of the Canadian Horticultural Council, said in Partners in Innovation’s release.

Fruit and vegetable growers, he said, will be able to “access new and innovative crop varieties developed internationally while encouraging domestic plant breeding and the development of Canadian varieties that can compete in international markets.”

The Canadian Seed Trade Association also supports the act, adding Friday it plans to run an outreach and education campaign “to make sure everyone understands their rights and responsibilities” under Ritz’s amendments.

The National Farmers Union (NFU) has long opposed the legislation, fearing it will allow seed companies to charge farmers more and restrict farmers from saving grain from their own crops for seed.

“I cannot stress enough that amendments to the plant breeders’ rights act allow for farmers to retain the right to save, clean, and store seed for their own operations,” Ritz said. “There seems to be some confusion around that.”

UPOV’91 will not result in Canadian farmers getting access to more varieties and higher yields, according to Terry Boehm, chair of NFU’s seed and trade committee.

“With increased rights to plant breeders we will only see increased costs to farmers and even greater domination by the giant seed companies that are so inefficient that they need enhanced plant breeders rights to stay in business,” he wrote in an email.

“Farmers will rue the day when they see their so-called privilege diminished over time.”

Keystone Agricultural Producers (KAP) president Dan Mazier said in an interview he hopes farmers will get a major say in developing the regulations under the act.

The Manitoba farmers’ group, he said, “feels if you’re not at the table, you’re on the menu.”

Ritz told reporters farmers and other “industry stakeholders” will be consulted on the regulations.

Among other groups, the Alberta Wheat Commission hailed the bill’s passage, but noted its support to PBR amendments is on three conditions.

Farmers, the commission said Friday, must maintain the ability to use farm-saved seed, and federal government funding of pre-breeding and genetic research must be maintained.

Thirdly, the commission said, the “farmer and public equity stake in Canada’s proprietary genetic material for cereals developed over the past 100 years continues to be recognized.”

— Allan Dawson is a reporter for the Manitoba Co-operator based at Miami, Man. Includes files from Co-operator reporter Shannon VanRaes in Winnipeg, Commodity News Service Canada and AGCanada.com Network staff.

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