Bill C-18, entitled the Agricultural Growth Act,
received Royal Assent on February 25, 2015, and will come into
force on a day to be fixed by order of the Governor in Council.
The Bill amends several statutes in order to implement various
measures relating to agriculture, and makes significant amendments
to the Plant Breeders' Rights Act, bringing it into
conformance with the requirements of the 1991 Act of the
International Convention for the Protection of New Varieties of
Plants (UPOV 1991).
Details of the amendments to the Plant Breeders' Rights
Act are provided in our
May 26, 2014 IP Update. Significant changes include:
Introduction of a domestic "grace period" such
that sale of the variety in Canada 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.
Introduction of new exclusive rights of the holder of plant
to reproduce propagating material of the plant variety;
to condition the variety's propagating material for the
purposes of propagating the variety;
to export or import propagating material of the variety;
to stock propagating material of the variety for the purpose of
exercising any of the plant breeders' rights; and
to exercise plant breeders' rights for:
harvested material obtained through the unauthorized use of
propagating material of the plant variety, unless the breeder had a
reasonable opportunity to exercise rights in relation to the
propagating material and failed to do so;
"essentially derived" varieties;
varieties not clearly distinguishable from the protected
varieties whose production requires the repeated use of the
Introduction of positive exceptions from the breeder's
exclusive rights for acts done:
privately and for non-commercial purposes;
for experimental purposes; or
for the purpose of breeding other plant varieties.
Codification of 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
Notably, the Bill, as passed, includes an amendment by the
House of Commons Standing Committee on Agriculture and Agri-Food to
clarify that this farmers' privilege includes the right to
store and stock seeds as well as produce, reproduce and
condition seeds. This was missing from the Bill as originally
introduced in Parliament.
Introduction of an "exhaustion" principle, such that
the rights of the breeder 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
breeders' 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.
An increase in the term of protection from 18 years from grant
for all varieties to 25 years from the date of grant in the case of
a tree or vine, and 20 years in any other case.
We will report again when further information is available
concerning the coming into force of the Bill.
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
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