Proposed Amendments to the Plant Breeders’ Rights Act Expand Scope of Rights and Codify Exceptions

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Plant breeders’ rights allow breeders to protect new plant varieties by imposing restrictions on their commercial use by others when registered under the Plant Breeders’ Rights Act (the “PBRA”). The PBRA is primarily based on the 1978 Convention of the International Union for the Protection of New Varieties of Plants (“UPOV”).

An owner will be granted a registration if the variety is new, distinct, stable and uniform, thus providing the owner with the exclusive right to produce and sell the variety in Canada, use it to commercially produce another variety, and license others to do any of these things.

The two main implied exceptions to these exclusive rights at present are the “farmer’s privilege” (allowing a farmer to plant seed produced from a protected variety to grow additional crops on that farmer’s land without the permission of the registrant), and the research exception (allowing use for breeding and development purposes, also without permission).

In 1991, changes were made to the UPOV Convention (“UPOV 91″), providing clarification on exceptions and strengthening registrant rights. The federal government recently tabled Bill C-18 to bring the PBRA into conformity with UPOV 91. This Bill will introduce new rights and expand several existing rights.

The proposed amendments include:

  • Extension of exclusive rights to not just production and sale, but to reproduction of seed for commercial purposes.
  • Codification of the farmer’s privilege and the research exception.
  • Varieties sold for up to one year prior to application (allowing market testing) will still be considered “new” plant varieties.
  • Extension of protection from 18 to 25 years for trees and vines, and to 20 years for all other varieties.

Bill C-18 also extends these rights to harvested material obtained via the unauthorized use of propagating material. Thus, if a farmer uses a variety as seed without paying a royalty or obtaining authorization, the registrant can collect a royalty on the crop harvested from that seed, or claim the right to sell the crop harvested from that seed. This provision does not prevent a farmer from selling harvested grain into commercial channels without payment of a royalty where propagating material has been obtained or used legally, but rather, seeks to prevent a farmer from doing so if the seed from which the grain was produced was obtained or used illegitimately.

Bill C-18 has undergone Second Reading in the House of Commons and has been referred to a Standing Committee on Agriculture and Agri-Food. We will continue to follow the progress of this Bill and post updates.