The Impact of the International Union for the Protection of New Varieties of Plants (UPOV) Conventions on Plant Breeders' Rights in Canada - Questions and Answers

The Agricultural Growth Act is designed to modernize Canada's federal agriculture legislation and encourage innovation in the sector. Among the key changes implemented through this legislation are amendments to the Plant Breeders' Rights Act (PBR Act) to encourage increased investment in plant breeding in Canada and foster greater accessibility to foreign seed varieties for farmers. The amendments to the PBR Act came into force on February 27, 2015 and include provisions that bring it into line with the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 91).

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 abbr "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 enacted Plant Breeders' Rights Act in 1990, and was based on the 1978 UPOV Convention (UPOV 78). On February 27, 2015, as part of the Agricultural Growth Act, amendments to the Canada's Plant Breeders' Rights Act came into force, bringing it into conformity with UPOV 91.

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

Why did the federal government revise 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 encourages increased investment in plant breeding, giving Canadian farmers more access to new and innovative plant varieties which allows them to be more competitive in the global marketplace.

What are the steps 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),
  • receiving royal assent by the Governor General,
  • coming into force of the legislative amendments,
  • tabling of the UPOV 91 Convention in Parliament for 21 sitting days,
  • ratification of the UPOV 91 Convention, and
  • deposition of the instrument of ratification with the Secretary General of UPOV.

Did the government consult with stakeholders regarding the 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. Additionally, over 30 organizations representing the agriculture, horticulture, and ornamental sectors, as well as, livestock producers and seed dealers, provided expert witness testimony at the House of Commons – Standing Committee on Agriculture and Agri-Food and the Senate – Agriculture and Forestry Committee. The overwhelming majority of these stakeholders strongly supported legislative amendments to Canada's PBR Act to conform to UPOV 91. The feedback from national consultations and expert testimony in Parliament confirmed that impacted stakeholders are in favour of the legislative changes.

Will amendments to the Canadian Plant Breeders' Rights Act to conform to the 1991 UPOV Convention (UPOV 91) negatively affect Canadian farmers?

No. The amendments to Canada's Plant Breeders' Rights Act to conform to the 1991 UPOV Convention (UPOV 91) will 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.

Will amendments to 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, condition (clean and treat), and store 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 considered implicit in the PBR Act. The legislative amendments to the PBR Act to conform UPOV 91 make the "farmers' privilege" entrenched in legislation and explicit.

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

No. Even under the previous version of the 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.

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

No. Similar to the previous version of the 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.

Will 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.

Will 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.

Will 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.

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