Clearing the Air on UPOV ’91’s Impact on Farmers’ Privilege

With over 100 years of breeding new varieties at public institutions Drs. Keith Downey (Saskatoon AAFC Research Centre) and Bryan Harvey (University of Saskatchewan) are pleased to see the recently tabled Agricultural Growth Act (Bill C-18). It enshrines a farmer’s ability to save seed for his or her own use and protects against the capture or duplication of existing varieties through cosmetic changes.

As public plant breeders with Agriculture and Agri-Food Canada and the University of Saskatchewan for a combined total of over 100 years, we were pleased to see the recently tabled Agricultural Growth Act (Bill C-18). This Bill encompasses desirable amendments to the present Plant Breeders’ Rights (PBR) Act that will bring Canada into conformity with the 1991 convention of the International Union for the Protection of New Varieties (UPOV’91). Canada was a signatory to this convention back in 1992 but is just now bringing the amendments into force. Thus the amendments are not, as some detractors would have you to believe, something that has not been seen before. Indeed, Canada is a late adopter and has been long out of step with our major trading partners and competitors (U.S., E.U., Japan, Australia, South Korea, Russia, etc.) as well as many smaller and developing nations. Indeed Canada will probably need conformity with UPOV’91 as part of any future trade agreements.

The current legislation only permits a farmer’s use of farm saved seed by not expressly forbidding it. The new legislation specifically enshrines this privilege

One of the most important amendments to the present PBR Act is a new section that protects the producer’s right to save, store, condition and propagate the seed of a protected variety for his or her own use. It is termed the “Farmers’ Privilege “. The conditions are spelled out in Section 5.3 (2) of Bill C-18. The current legislation only permits a farmer’s use of farm saved seed by not expressly forbidding it. The new legislation specifically enshrines this privilege. Essentially this amendment allows a farmer, once he/she has purchased seed of a protected variety, to freely save and store the harvested seed, send that seed out to be cleaned and/or treated and to plant that saved seed on lands under his/her control, for as many years as desired. The amendments also make it clear that the farmer may sell the harvested grain into the domestic or foreign market for commercial consumption without paying any additional royalty, so long as he/she obtained the seed legitimately. These are the facts, despite the misleading claims of the NFU. However, the Act prohibits a farmer from selling or giving harvested seed from the protected variety to his neighbor or anyone else who may wish to plant or further multiply it without permission of the holder of the right. Selling seed of a PBR protected variety without authorization of the right’s holder is an infringement under the current Act (based on UPOV’78), and continues to be an infringement under the new Act. The Act also mandates that farmers will always have a position on the Minister’s PBR Advisory Committee.

It is true that there is a provision allowing a right’s holder to exercise rights (including a royalty) on a commercial crop but ONLY if propagating material has been obtained illegally or there has not been a reasonable opportunity for the right holder to collect royalties earlier in the sales chain. This has been called the “reach through provision”. Thus a right holder would normally collect royalties on the sale of seed or initial propagating stock but in the exceptional circumstance where this could not be done there is a provision for them to collect it later, but only once.

Opponents to Bill C18 claim, as they did when the original PBR act came into force in 1990, that producers will be held hostage to private seed companies. That has not happened nor is it likely to happen with the new legislation. CFIA data show that about 45% of Canadian PBR applications for agriculture crops come from public plant breeders and institutions. Royalties from these PBR protected varieties are a very important funding source for research and breeding at Canadian universities as well as provincial and AAFC research centres. Unfortunately that percentage will likely fall as the Federal Government continues to reduce funding and eliminate varietal release programs at its research centres. However, with the proposed changes to the Act, private sector investments in breeding are expected to increase and hold promise for additional funds to be channeled into public breeding and public/private partnerships.

There are also other important sections in the revised PBR legislation that breeders need, such as the “Research Exemption” and a “Breeder’s Exemption”. These are carried over from the existing legislation but are made more explicit in the amended version. The Research Exemption gives other researchers the freedom to conduct research and experimentation on the protected variety. In addition, The Breeders Exemption means that any breeder can use a PBR protected variety to breed a new variety. This allows other breeders to build upon the genetics of the protected variety and develop new superior varieties without the necessity of obtaining permission from the right holder. In other words the genetics of the protected variety are not locked up. However, there is also an important provision that plant breeders have asked for that prevents another breeder from essentially reconstituting the protected variety and claiming ownership. Thus a breeder could not make a minor change to a protected variety and then claim it as a new variety without taking into account the right holders right to the original variety.

Opponents of the revised PBR legislation claim that we are dealing with a zero sum proposition; if breeders gain something then farmers must lose something. The truth is that both the breeder and the farmer benefit. A strong and fair intellectual property framework ensures that Canada is a desirable place to invest in plant breeding, resulting more innovation, additional resources and superior varieties in the market place. Most western commodity groups (e.g. Partners in Innovation) believe the amended PBR legislation should benefit farmers with a more competitive plant breeding environment resulting in a greater choice of pest resistant, high yielding varieties with good agronomics to meet their needs for sustainable production and to compete in the global marketplace.

We would encourage those interested to read the amended PBR Act contained in Bill C-18. It is a short read and you can quickly pick out the areas of interest. We think you will find it well balanced with benefits for all parties (See http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6378152).

 

 

 

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One Comment

Dean Harder

Thanks for some added perspective of UPOV. I think your perspective on the seed research reads true as I read it. I am concerned that litigation could side step the intention of the bill at some point and cause those without the means to be able to fight such litigation from larger players.

I am also concerned that your article and your perspective is might be not looking at the whole picture on UPOV’91. The way you interpret the bill is quite deep but I need to ask where you get all your info from. For instance when I read the act it does not state clearly when a royalty on the seed is to be issued so it can be assumed that this royalty will come regularly at point of sale. But you assume, “ONLY if propagating material has been obtained illegally or there has not been a reasonable opportunity for the right holder to collect royalties earlier in the sales chain.” Where do you get this info because in reading the act it states under “Royalty, “(2) Without prejudice to any rights or privileges of the Crown, an authorization conferred under paragraph 1(h) may be subject to a condition to pay royalty to the holder of the plant breeder’s rights whether or not the holder is Her Majesty in right of Canada or a province.”

This is truly clear to me. It goes directly against the quote you made. Please explain where the “reasonable opportunity” prior to placing a royalty is mentioned. As I see it, when UPOV is passed we can slowly (or quickly) expect royalties to become the norm because I don’t see the provision you are suggesting.

Another issue is saving seed. In reality the saving seed “right” is not a “right” it is a privilege in this documentation. Are you not concerned that anytime you bring a seed to be sold that the farmer will have to pay a royalty on that seed? So, even though there is rhetoric saying a farmer CAN save seed, which is still technically the truth they still must pay for it every time they bring it to the elevator which isn’t truly or traditionally what we mean when we say “saving seed”. It is a way the current Conservative government is getting around talking about the truly nature of this bill, which is about control of the seed by larger companies.

Also, if we truly want ‘innovation’ why then is the government so keen to move the patent to 20 years? Doesn’t that create stagnation?

From what you read do you know ABSOLUTELY that a company can’t deregister a seed variety? Do you think they should be allowed that opportunity? Shouldn’t at some point it become public domain?

I would kindly suggest you discuss the concerns with a fuller picture in mind. I think all farmers should be investigating this bill rather than blindly let it happen without questioning the potential pitfalls.

I look forward to hearing your concerns.

P.S. – I’m sorry we didn’t get to talk directly at the CropConnect conference. Hopefully another time.

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