Frequently Asked Questions: The Impact of the International Union for the Protection of New Varieties of Plants (UPOV) Conventions on Plant Breeders' Rights in Canada

Note: For the purposes of this document, the holder of a plant breeders' right is referred to as "the breeder." However, in many cases, the holder of a right is not the individual breeder of the variety but is the employer. Or, in some cases, the holder of the right may be a third party who has legally acquired the right to the variety by an assignment or succession.

What is the International Union for the Protection of New Varieties of Plants (UPOV)?

Since 1991, Canada has been a member of the International Union for the Protection of New Varieties of Plants. The Union is commonly known by its French acronym "UPOV."

This organization's mission is to provide and promote an effective system of plant variety protection which will encourage plant breeders to develop new varieties of plants, for the benefit of society.

With its formation in 1961, UPOV established the very first Convention, UPOV 61. Since that time, there have been three revisions in 1972, 1978 and 1991. Canada's present Plant Breeders' Rights Act is based on the 1978 UPOV Convention (UPOV 78).

To learn more about the International Union for the Protection of New Varieties of Plants, please visit the UPOV website.

Why is the federal government considering revising the existing Canadian Plant Breeders' Rights Act to conform to the 1991 UPOV Convention?

The 1991 UPOV Convention (UPOV 91) contains some new elements that provide stronger protection for plant breeders than any of the previous conventions.

An effective plant breeders' rights system is intended to create an environment that encourages and supports the development of new plant varieties. In fact, amending the Plant Breeders' Rights Act could encourage an increased investment in plant breeding, potentially giving Canadian farmers more access to new and innovative plant varieties thus allowing them to be more competitive in the global marketplace.

What would be required for Canada to conform to the 1991 UPOV Convention (UPOV 91)?

To change existing law and amend a federal act, such as the Plant Breeders' Rights Act, a bill must go through a formal process. This includes several steps, such as:

  • being introduced and read in Parliament,
  • being debated in Parliament (which usually includes being referred to a standing committee for study), and
  • receiving royal assent by the Governor General.

Has the government consulted with stakeholders regarding the proposed changes to the Canadian Plant Breeders' Rights Act?

Yes. From November, 2004 to March 2005, the Canadian Food Inspection Agency (CFIA) conducted a public, web-based consultation to determine stakeholders' opinions regarding potential changes to the Plant Breeders' Rights Act to conform to UPOV 91. The CFIA heard from plant breeders, farmers, horticulturalists, seed dealers and other interested citizens. The feedback confirmed that Canadian stakeholders generally support the proposed changes.

Would amending the Canadian Plant Breeders' Rights Act to conform to the 1991 UPOV Convention (UPOV 91) affect Canadian farmers?

No. The amendments to have Canada's Plant Breeders' Rights Act conform to the 1991 UPOV Convention (UPOV 91) would not change what farmers are allowed to do with respect to protected plant varieties.

The amendments contain new elements which are intended to facilitate a breeder's ability to enforce his/her rights on protected plant varieties.

Would amending Canada's Plant Breeders' Rights Act to conform to the 1991 UPOV Convention (UPOV 91) eliminate the "farmers' privilege"?

No. The amendments brought forward by the 1991 UPOV Convention (UPOV 91) would make it possible for Canada to explicitly lay out in the Plant Breeders' Rights (PBR) Act that farmers would be allowed to save seed produced from a protected plant variety, and use it for replanting on their own farms.

This is known as the "farmers' privilege" and is currently implicit in the PBR Act.

Would the 1991 UPOV Convention (UPOV 91) create more restrictions for farmers in buying and selling seed?

No. Even with Canada's current Plant Breeders' Rights (PBR) Act, a farmer is restricted from buying or selling either pedigreed or common seed, or any other type of propagating material of a protected variety, without the permission of the breeder.

Would the 1991 UPOV Convention (UPOV 91) change the responsibility for the burden of proof in infringement cases?

No. As with Canada's current Plant Breeders' Rights (PBR) Act, in an infringement case it is up to the breeder (holder of the plant breeders' rights) to provide sufficient evidence to prove that someone has committed acts which constitute an infringement of the breeder's right.

Would the 1991 UPOV Convention (UPOV 91) place greater liability on farmers when harvesting grain from seed of protected varieties?

No. If farmers are obtaining seed of a protected variety legitimately, then there will be no increased liability. In other words, if a farmer purchases seed of a protected variety from someone authorized by the breeder to sell it, the breeder will not be able to exercise his/her rights on the grain.

UPOV 91 provides breeders the opportunity to exercise their rights on the grain only if there was no reasonable opportunity to exercise their rights on the initial seed.

Would the 1991 UPOV Convention (UPOV 91) create more liability for seed cleaners?

The 1991 UPOV Convention (UPOV 91) extends the scope of the breeder's right to include the following with respect to a protected variety

  • importing,
  • exporting,
  • stocking, and
  • conditioning reproductive material (such as seed).

This means that activities such as seed cleaning (conditioning) of a protected variety will require the permission of the breeder, unless the seed being cleaned is for planting on the grower's own land (that is, farm-saved seed).

Where necessary, seed cleaners will need to be aware of which varieties have been granted rights, so that proper authorization has been obtained before cleaning seed of a protected variety.

Would the 1991 UPOV Convention (UPOV 91) affect grain processors?

The 1991 UPOV Convention (UPOV 91) allows a breeder to exercise their rights on harvested grain, providing they did not have a reasonable opportunity to collect their royalties on seed from which the grain being processed was produced.

Grain processors may be liable if the seed of a protected variety, from which grain was produced, was obtained from someone not authorized by the breeder to sell seed of the variety.

Grain processors may need to implement verification measures to reduce the chance of liability, if they are contracted to process grain that, unknown to them, may be produced from illegitimately obtained seed of a protected variety.