Canada’s failure to comply with UPOV 1991 is having a negative effect on innovation—putting breeding programs across the country at a disadvantage when compared with other countries.
With new traits and opportunities on the horizon, the Canadian seed industry is still struggling with its biggest challenge—generating a return on investment through intellectual property protection. Canada is one of the only developed countries in the world in which Plant Breeders’ Rights legislation doesn’t comply with the most recent international convention, UPOV 1991.
PBR is one of the intellectual property protection mechanisms companies use to protect their inventions of new plant varieties and generate the revenue they need to reinvest in the development of new varieties, explains Patty Townsend, executive vice-president of the Canadian Seed Trade Association.
The World Trade Organization’s Intellectual Property Agreement requires that all countries have forms of intellectual property protection in place. Canada implemented its PBR act in 1990, and the legislation complied with UPOV 1978. That legislation was revised in 1991, and despite the fact that Canada has signed UPOV 1991, signalling its intention to ratify the agreement by amending its PBR legislation, those amendments have still not been made.
Hindering Innovation
A recent survey completed by the CSTA of its members revealed that the private sector collectively invests 27 per cent of its combined operating budget in plant breeding and research, says Townsend, noting this investment is larger than that of almost any other sector in Canada.
This investment has been climbing every year for crops such as canola, corn and soybeans, but not in cereals, says Townsend, and consequently fewer new varieties of cereals are appearing on the market.
Don McClure, a soybean breeder with Syngenta Seeds Canada, says moving to UPOV 1991 will promote further investment in plant breeding, while not making the move puts Canadian breeders at a disadvantage with respect to their counterparts in other countries, particularly the United States. The United States has ratified UPOV 1991 and has different rules under its Plant Variety Protection Act, which allows breeders more freedom than we have in Canada, he says.
An example of one constraint placed on Canadian breeders is the filing date legislation for new varieties. Under UPOV 1978, breeders have to apply for new variety PBR protection before they make any sales, explains McClure. However, under UPOV 1991, breeders are allowed to apply for PBR protection for up to one year after sales. This means Canadian breeders end up spending time and money applying for varieties that are still in the experimental stages and may not reach the marketplace, he says.
Lorne Hadley, executive director of the Canadian Plant Technology Agency, agrees. He says Canada is part of an international market for varieties, and if a company has a good variety but can’t get adequate intellectual property protection in this country, it may choose not to market the variety here, and Canadian farmers lose out. “The base standard for IP protection in the world is UPOV 1991, so that’s where we need to be if we want to have the best varieties,” he says.
As a result, Canadian producers are missing out on new plant varieties that could increase productivity and competitiveness, says Townsend. “As our member companies look for new germplasm to bring into Canada, they’re finding that developers in other countries are refusing to send their germplasm to Canada because it can’t be protected here the way it can be protected in other countries,” she says.
Hadley says the most successful technique in IP enforcement is “a simple tactic companies put into their sales techniques, where they say, ‘If you don’t plan on living up to the IP agreement that we have, please don’t buy our product.’ And by doing that, they’re saying, ‘This is of value to you, we’re selling it to you at a good price and we expect you to honour the contracts and agreements we have.’”
Of course, a conversation on IP doesn’t go very far without discussing return on investment because that is, after all, the real issue behind IP. Hadley says the bottom line is the industry must increase the percentage of certified seed that is sold. “We need to take actions like the pedigreed seed tax credit, encouraging farmers on an agronomic basis to use more pedigreed seed, and with pedigreed seed purchases they will pay royalties, which will flow back to the breeding institutions, whether they are private or public,” he says.
