As you may know the Canadian Food Inspection Agency has announced a consultation process on specific issues dealing with Plant Breeders’ Rights. The consultation period has been extended through early March.
The OFA will be working with its fellow members at the Canadian Federation of Agriculture to ensure we deliver a strong and consistent message to the CFIA about how significant the issues are for Canadian farmers and how the PBR Act should reflect farmers’ needs and concerns.
Please review the attached document, which is a critical portion of the entire consultation issue. We would like to hear your thoughts on the issues posed by the CFIA so we can reflect member concerns in our submission through the CFA.
Thanks for your assistance.
~Ron Bonnett~
President, Ontario Federation of Agriculture
Plant Breeders’ Rights – CFIA Consultation
Plant Breeders” Rights (PBR) are a form of intellectual property rights enabling breeders of new varieties of plants to have the exclusive right to produce and sell propagating material of their new plant varieties. The Plant Breeders’ Rights Act, which is the legislation establishing PBR in Canada, came into force August 1, 1990. The existence of a PBR system in Canada is broadly viewed as an important stimulus to varietal development and the introduction of new plant varieties to the Canadian marketplace.
The current PBR Act conforms to the 1978 International Union for the Protection of New Varieties of Plants, known as UPOV. Canada ratified the 1978 Convention just prior to the revision and amendment of the UPOV Convention in 1991. On March 9, 1992, Canada signed the amended Convention signifying our intent to ratify. However, to enable the ratification process, amendments are required to the PBR Act. If given effect in legislation, the adoption of the 1991 Convention would increase incentives for the introduction of new varieties to the Canadian marketplace.
The necessary amendments to the PBR Act to enable Canada”s ratification of the 1991 UPOV Convention were included in a previous legislative initiative, which died on the order paper at the closing of the Fall 1999 session of Parliament. Stakeholder interest in seeing PBR Act amendments reintroduced has gained momentum since June 12, 2002, when the Ten Year Report on the impacts of the PBR Act was tabled in Parliament. The Report concluded that the PBR Act has contributed to both an increase in investment in plant breeding, and an improvement in access to foreign varieties in both the agricultural and horticultural sectors.
The full consultation document is available at:
http://www.inspection.gc.ca/english/plaveg/pbrpov/pbrpove.shtml
The OFA is interested in hearing from member’s on three particular areas of PBR suggested for amendment by the CFIA.
Particular areas of concern are as follows:
8. SCOPE OF THE BREEDER’S RIGHT
The 1978 Convention provides for the scope of the breeder’s rights to include the breeder’s prior authorization for the production for the purposes of commercial marketing, the offering for sale, and the marketing of the reproductive material of the variety. The right of the breeder also extends to ornamental plants, normally marketed for purposes other than propagation, when they are used commercially as propagating material in the production of ornamental plants or cut flowers. The 1991 Convention extends the rights:
a) in propagating material to cover production or reproduction (multiplication), conditioning for the purpose of propagation, offering for sale, selling or other marketing, exporting, importing and stocking. It provides for a cascading right in harvested material, i.e. the right will extend to harvested material if the breeder has not had an opportunity to exercise his right in relation to the propagating material. States may extend the protection to the product from harvested material and other additional acts. b) to apply in relation to essentially derived varieties. A variety is considered to be essentially derived when it is predominately derived from the initial variety, or from another essentially derived variety, whilst retaining the expression of the essential genotypical characteristics of the initial variety, and when it conforms in all other respects to the initial variety (Article 14).
The 1991 Convention also provides that the breeder may make their authorization subject to conditions and limitations.
The 1991 Convention applies to:
i) varieties which are essentially derived from the protected variety, where the protected variety is not itself an essentially derived variety; ii) varieties which are not clearly distinguishable from the protected variety; and iii) varieties whose production requires repeated use of the protected variety. The current PBR Act (Section 5) lists the basic rights of the breeder. They include:
a) only the holder may sell, advertise for sale and produce in Canada for the purpose of selling propagating material of the variety; b) only the holder may make repeated use of propagating material of the variety in order to commercially produce another variety (e.g. an inbred constantly used in a cross to produce a hybrid); c) only the holder may make repeated use of propagating material in the production of ornamental plants or cut flowers; and d) the holder may license others to do any of the above.
The PBR Act would have to be amended to include the production, conditioning, exporting, importing and stocking of propagating material to be part of the breeder’s rights. The PBR Act would also be amended to give the breeder the right to make their authorization subject to conditions and limitations.
To bring the current PBR Act into conformity with the 1991 Convention, it would also have to be amended to extend rights to include harvested material (e.g. the grain, the fruit, cut flowers, etc.), including entire plants and parts of plants, obtained through the unauthorized use of propagating material. By extending protection to the harvested material, breeders of all crops would be provided protection for their varieties when they are propagated without their consent and the harvested material is sold. Presently, propagation of a protected tree fruit variety for non-sale purposes and the subsequent sale of the fruit is not an infringement. There is an optional provision in the 1991 Convention to extend the holder’s rights to products of harvested material (e.g. flour from the grain, juice from the fruit, perfume from the flower, etc.). However, it is not required that this provision be adopted to conform to the 1991 Convention.
Please specify whether you support extending the holders’ rights to products of harvested material or not.
There is no clause in the current PBR Act concerning “essentially derived varieties”. To bring the current Act into conformity with the 1991 Convention, it would have to be amended to incorporate the “essentially derived” principle.
9. EXCEPTIONS TO THE BREEDER’S RIGHT (including farmer’s privilege)
The 1978 Convention does not limit the use of a protected variety for the purpose of breeding new varieties, nor does it specifically mention the “farmer’s privilege”, i.e. allowing farmers to save and use their own seed. The 1991 Convention contains compulsory exceptions to the breeder’s right, in that it does not extend to (i) acts done privately and for non-commercial purposes; (ii) acts done for experimental purposes; or (iii) acts done for the purpose of breeding other varieties. It also provides member States with an option to limit the breeder’s right by permitting farmers to save and use their own seed, i.e. farmer’s privilege (Article 15).
The current PBR Act does not prohibit using the variety for further breeding work nor does it prohibit farmers from saving and using their own seed of a protected variety. It is an infringement if harvested material such as ornamental plants or plant parts are used as propagating material in the production of ornamental plants or cut flowers. However, the propagation of propagating material of fruit trees for non-sale purposes and the subsequent sale of the harvested product, i.e. the fruit, is not an infringement. Farmer”s privilege was allowed in the current PBR Act because support for the legislation from some farm organizations was conditional on allowing farmers to retain the right to save and use their own seed. The PBR Act would have to be amended to incorporate the compulsory exceptions of the 1991 Convention. However, the 1991 Convention allows for adopting the farmer”s privilege as an exception to the breeder”s right. If this provision is adopted, producers would be able to save propagating material of a protected variety for use on their farm. If not adopted, it would be an infringement for producers to save propagating material of a protected variety and use it on their farm.
Please advise: (1) whether you support the concept of farmer’s privilege or not; (2) if you do support the concept of farmer’s privilege, do you feel it should be limited to certain crops, e.g. cereals only, potatoes, fruit crops, etc.?
11. DURATION OF THE BREEDER’S RIGHT
The 1978 Convention has a minimum period of protection of 15 years for all varieties except vines, forest trees, fruit trees, and ornamental trees, including their root stocks, which are allowed 18 years. The 1991 Convention increases the minimum periods of protection to 20 and 25 years (Article 19).
The PBR Act [Subsection 6(1)] presently allows protection for a period of eighteen (18) years. The PBR Act would have to be amended to grant rights to at least meet the new minimums of twenty (20) years for all varieties except vines, forest trees, fruit trees, and ornamental trees, including their root stocks, which are allowed a minimum of twenty-five (25) years.