Canada: Bill C-18 Modernizes The Plant Breeders’ Rights Act

Last Updated: May 28 2014
Article by David Schwartz

Bill C-18, now pending in the Parliament of Canada, if enacted, would amend several statutes in order to implement various measures relating to agriculture. The Bill makes significant amendments to the Plant Breeders' Rights Act, including changes to the requirement for novelty, the duration and scope of breeders' rights, as well as exceptions from and exhaustion of those rights.

The Bill, entitled the Agricultural Growth Act, brings the Plant Breeders' Rights Act into conformance with the requirements of the 1991 Act of the International Convention for the Protection of New Varieties of Plants, which is a precondition to ratification of, or accession to, the 1991 Act.


Under the current provisions of the Plant Breeders' Rights Act, sale of the variety in Canada by or with the concurrence of the breeder or his legal representative prior to the Canadian filing date is a bar to the grant of plant breeders' rights.

Bill C-18 amends the Act to introduce a one-year "grace period" such that sale of the variety by or with the concurrence of the breeder or his legal representative is only a bar to the grant of plant breeders' rights if the sale occurred more than one year before the Canadian filing date.

Scope of the breeder's rights

The current Act provides that the holder of the plant breeder's rights respecting a variety has the exclusive right: 

  1. to sell, and produce in Canada for the purpose of selling, propagating material, as such, of the plant variety;
  2. to make repeated use of propagating material of the plant variety in order to produce commercially another plant variety if the repetition is necessary for that purpose;
  3. where it is a plant variety to which ornamental plants or parts thereof normally marketed for purposes other than propagation belong, to use any such plants or parts commercially as propagating material in the production of ornamental plants or cut flowers; and
  4. to authorize, conditionally or unconditionally, the doing of an act described in paragraphs (a) to (c). 

Bill C-18 redefines the scope of the breeder's rights, providing that the holder of the plant breeder's rights respecting a plant variety has the exclusive right:

  1. to produce and reproduce propagating material of the variety;
  2. to condition propagating material of the variety for the purposes of propagating the variety;
  3. to sell propagating material of the variety;
  4. to export or import propagating material of the variety;
  5. to make repeated use of propagating material of the variety to produce commercially another plant variety if the repetition is necessary for that purpose;
  6. in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants or parts of those plants as propagating material for the production of ornamental plants or cut flowers;
  7. to stock propagating material of the variety for the purpose of doing any act described in any of the paragraphs (a) to (f); and
  8. to authorize, conditionally or unconditionally, the doing of any act described in any of paragraphs (a) to (g). 

Pursuant to Bill C-18, these exclusive rights are extended to harvested material, including whole plants or parts of plants, obtained through the unauthorized use of propagating material of the plant variety unless the holder of the rights has failed to exercise his rights after reasonable opportunity to do so. 

The breeder's rights under (a) to (h) above are also extended to: (1) "essentially derived" varieties; (2) varieties which are not clearly distinguishable from the protected variety; and (3) varieties whose production requires the repeated use of the protected variety. 

Exceptions to the breeder's rights

The current Act does not specify exceptions to the breeder's rights. The positive statement of the exclusive rights of the breeder constitute a complete code, and any exception (such as a farmers' privilege as discussed below) can only be inferred on the basis that it is not expressly covered by the specified rights of the breeder.

Although the current Act does not positively specify a "farmers' privilege" to save seed and plant it on their own land, the existence of a farmers' privilege appears inherent in the current legislation, because the saving of seed and planting of saved seed is not an exclusive right reserved for the breeder. 

Bill C-18 introduces exceptions from the breeder's exclusive rights for acts done (1) privately and for non-commercial purposes; (2) for experimental purposes; or (3) for the purpose of breeding other plant varieties. 

In addition, it codifies a farmers' privilege, providing that the exclusive right to produce and reproduce propagating material of the variety and to condition propagating material of the variety for the purposes of propagating the variety do not apply to harvested material of the plant variety that is grown by a farmer on the farmer's holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety. 

Absent this exception, the practice of saving seed is inconsistent with the exclusive rights of the breeder to produce and reproduce propagating material and to condition propagating material.   

Notably, the farmers' privilege codified in Bill C-18 does not extend to an exception from the breeder's exclusive right to stock propagating material of the variety.

Exhaustion of the breeder's rights

Bill C-18 also amends the Act to provide that the breeder's rights do not apply to acts done in relation to material of a plant variety after that material has been sold in Canada by or with the consent of the holder of the plant breeder's rights unless the act involves further propagation of the plant variety or export, other than for consumption, to a country that does not protect varieties of that type. 

This "exhaustion" of the rights of the breeder aims to prevent "double dipping" by collecting royalties more than once on a single cycle of propagating material.

Duration of the breeder's rights

The duration of the breeder's rights under the current Act is 18 years from the date of grant, irrespective of the variety.  

Bill C-18 increases the term of protection to 25 years from the date of grant in the case of a tree or vine, and 20 years in any other case.


Bill C-18 is a government bill that was introduced in the House of Commons by the Minister of Agriculture and Agri-food. First reading of Bill C-18 in the House has been completed. Further review and passage of the bill by the House and the Senate are required before the bill can become law. 

For further information, please contact David Schwartz or another member of our firm's Life Sciences group.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Schwartz
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.