Updating the Plant Breeder's Rights Regime in Canada
Development of a new seed variety requires a substantial
investment of time and money. The quest to discover new
traits and improve plant performance can be highly unpredictable,
particularly in traditional (non-transgenic) breeding, as the
process of cross-pollination of related species can lead to random
results. A breeder will sort through large numbers of crosses
to attempt to select the seed lines that show the most promise, and
will then enter what appear to be the best lines into trials.
A seed line may undergo several years of trials before the
developer seeks to register it as a variety. Even after what
could amount to ten or more years of development and trials work,
many varieties will not end up being profitable.
In light of that large investment before development work turns
into a variety that can be sold commercially, every seed company
wants to ensure that it receives the commercial return from the
varieties that it develops.
The highest profile court cases involving protection of
proprietary seed have involved Monsanto and its Roundup Ready
varieties. In those cases, Monsanto has relied heavily on the
patents protecting plants containing its genetically modified
genes. Patent rights are powerful in this context, as they
prevent the commercial use of the patented process or material by
any party who does not have a license. As planting and harvesting
of a crop is a commercial use, Monsanto has been able to obtain
remedies from courts against growers with whom it has no
Notwithstanding the Monsanto cases, most plant breeders do not
rely on patents to protect their varieties. Rather, breeders
in Canada have used a combination of contracts and registrations
under the Plant Breeders' Rights Act (PBRA) (S.C.
1990, c. 20) to prevent others from making commercial use of their
proprietary seed. Plant breeders' rights are a form of
intellectual property that restricts the ability of others to use
registered seed varieties. Contracts and plant breeders'
rights have been the best tools available to most seed companies,
but they nonetheless have limitations.
Plant breeders' rights are not unique to Canada.
Similar intellectual property protections exist around the
world. The International Union for the Protection of New
Varieties of Plants (UPOV) was created in 1961, and over sixty
countries have passed legislation that conforms in some fashion
with the Acts of the UPOV Convention. The most recent Act of
the UPOV Convention was passed in 1991, and is commonly known as
Now the Canadian government is seeking to amend the PBRA.
The amendments are being introduced through Bill C-18, which also
will amend several other Acts governing agriculture in
Canada. Bill C-18 was introduced in the House of Commons in
December 2013 and received second reading on March 3, 2014.
Agriculture Minister Gerry Ritz has stated that he hopes the
legislation will be in force by August 1, 2014.
One of the federal government's stated objectives in
amending the PBRA is to bring it into compliance with UPOV
91. The United States, European Union, Japan and Australia
already have legislation meeting the requirements of UPOV 91.
The proposed amendments to the PBRA are not without
controversy. The National Farmers Union is strongly opposed,
arguing that the amendments will shift too much control of the seed
supply to plant breeders and take money from the pockets of farmers
and shift it to the seed companies.
The scope and detail of the amendments go beyond what can be
covered within a single blog entry, so over the coming weeks and
months we will assist our readers by tracking the progress of Bill
C-18 and by providing analysis of the potential effects that may be
felt by the seed industry and primary producers. Stay
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