Our PBR framework is stronger than it was in 2015, but there is more work to do.
When you see Feb. 27 show up on the calendar this year, you will surely get the feeling that you ought to remember something significant. I’ll help you out: this year, today marks the 10-year anniversary of Bill C-18 receiving Royal Assent. C-18, “An Act to Amend Certain Acts Relating to Agriculture and Agri-Food (the Canadian Agricultural Growth Act)”, outlined amendments to Canada’s Plant Breeder’s Rights (PBR) legislation for compliance with the International Union for the Protection of New Varieties of Plants’ (UPOV) 1991 Convention.
For those unfamiliar, UPOV is an international initiative which seeks to harmonize the intellectual property rights framework for new plant varieties and the PBR Act is Canada’s legal framework towards this end.
The Pre-2015 Landscape: A System in Need of Reform
Despite Canada establishing its PBR legislation in 1990, while the ’91 Convention was being negotiated, our legislation prior to 2015 was only compliant with the previous ’78 Convention. Our PBR Act, already outdated nearly as soon as it was executed, left Canada in a bad spot when it came to attracting both domestic and international investment in plant breeding. Under the pre-2015 Act, some of the more impactful weaknesses included:
- Shorter maximum durations of protection
- No commercial sales permitted during the provisional protection period or prior to filing an application
- Scope of rights only included exclusive rights to seed propagating material and production of such material
- No rights extended to harvested material if material was obtained through unauthorized use
- No authority to limit or restrict farmers’ use of saved seed via regulation
The Path to UPOV’91 Compliance
Prior to the 2015 amendments, nearly the entire crop sector got together to advocate for strengthening Canada’s PBR framework. Led by the seed sector (then the Canadian Seed Trade Association and the Canadian Plant Technology Agency), the “Partners in Innovation” campaign launched as a coalition of 20 provincial, regional, and national organizations from across Canada.
With such overwhelming support, amendments were made to the Act, allowing Canada to be recognized as compliant with UPOV’91.
The Impact of UPOV’91 in Canada
The 2015 amendments paved the way for the application of royalties on farm-saved seed use, and national consultations were launched to determine how best to implement them. These consultations, led by the government, achieved little more than stirring up controversy and angst among various factions of the industry. Following the lack of consensus on a national approach, the seed sector was able to launch its own contract-based system to collect royalties on farm-saved seed use. The Variety Use Agreement (VUA), administered by Seeds Canada, is celebrating its five-year anniversary and now includes 27 varieties.
The Canadian Food Inspection Agency (CFIA) commissioned a report in 2023 to assess the impacts of Canada’s transition to UPOV ’91. The report shows that the impacts were positive, including increased production, yield, farm cash receipts, and export value.
The Challenges Ahead: Strengthening Canada’s PBR Framework
This is undoubtedly a good news story. But, once the celebratory hangover has cleared, we need to get back to work. Canada is far from finished when it comes to protecting plant breeding investment through our legal framework. With the 2015 amendments, we just barely crawled across the threshold for UPOV ’91 compliance. If we were just establishing our framework today, with our existing Act, we would not be eligible for membership in UPOV under the ’91 Convention, which is now the minimum international bar.
So, what is left?
In 2024, the CFIA launched a consultation for amendments to the PBR regulations. These recommended amendments, which focus on extending protection timeframes for certain plants and excluding specific plant types from the farmer’s privilege, are certainly improvements. Minister MacAulay is encouraged to move ahead with these amendments after strong support through the consultation.
But there is still more.
Within the UPOV’91 convention, there is a provision for optional exemptions to allow farmers to replant seed they harvested on their own holdings. UPOV’91 does not require this exception but does allow each contracting party to include it “within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder.” Canadian legislation includes this optional provision, referred to as the “Farmer’s Privilege.”
To recognize the “legitimate interests of the breeder,” UPOV recommends that the following factors be considered when implementing an optional exception, like the Farmer’s Privilege:
- Type of variety
- Size of holding / crop area / crop value
- Proportion or amount of harvested crop
- Changing situation and remuneration
Many countries require payment for the repeated use of innovation through farm-saved seed rights in their legislation, some even prescribing an amount.
The 2009 Explanatory Notes on Exceptions to the Breeder’s Rights Under the 1991 Act of the UPOV Convention suggest that the impact on breeding, as well as the impact on agriculture, should be considered when implementing the optional exception. Furthermore, evolving farming practices, breeding and propagation methodologies, and economic developments may require modifications to ensure optimal benefits from plant variety protection.
The Urgency for Change
If Canada is not already in a crisis regarding the sustainability of our variety development system for crop kinds like cereals, which are covered under the Farmer’s Privilege, we are on the cusp of one.
Within these crop types, farm-saved seed use is high, around 80%, and developers are not able to offset the high costs of breeding with user fees. While the Seed Sector’s VUA is an option, without a legal requirement to pay, the VUA is more of a consolation. Adding to the challenge, the absence of the most impactful breeder in small grains—the Canadian federal government—from the platform has restricted success. Meanwhile, public funding into variety development is trending downwards, as the federal government shifts investment toward climate-focused policy priorities and away from near-commercial research.
Looking to the Future
Our PBR framework must ensure that the Farmer’s Privilege exemption serves today’s agricultural community and variety development investment environment. By having no requirements placed on the exercise of the Farmer’s Privilege, such as a requirement to report use and remit a payment, the legitimate interests of plant breeders are not being safeguarded as UPOV intends. Plant breeders should be supported in enforcing their rights for the betterment of the crop industry, especially in the face of increasing environmental challenges that genetic innovation can help mitigate.
So, for future years, put a note down for Feb. 27. Our ratification of UPOV’91 in 2015 is still something worth celebrating. I am hopeful that our sector can unite again, as we did under Partners in Innovation, in safeguarding our production and investment by further strengthening our enabling legal frameworks. Let’s not let too many more anniversaries pass without implementing the changes needed to push Canada to the top.
