A decade of improved Plant Breeders' Rights

Ten years ago, Canada’s Plant Breeders’ Rights (PBR) legislation was amended to align with UPOV 91, a globally accepted framework. The PBR Act sets rules for the sale and use of seed and allows for exchange of genetics between researchers. It’s intended to allow breeding innovation to proliferate.

In October, Agriculture and Agri-Food Canada released a report on the effects of the updated framework. It states the update made it easier for plant breeders to profit from their work, and this has led to the hoped-for increase in production of new crop varieties.

Lauren Comin, Seeds Canada director of policy and former Alberta Grains director of research, closely follows PBR developments. The 2015 update was controversial as it was perceived as having the potential to restrict user rights, said Comin.

However, Partners in Innovation anticipated positive results. The industry coalition included producer groups such as the Alberta Wheat Commission and Alberta Barley. “They recognized the amendments as necessary to increase investment in plant breeding in Canada and to access foreign genetics. When a country lacks strong intellectual property rights that protect investment, an investor is unlikely to bring their innovation to that country for fear it will be misused and lost.” Also popular, the update enshrined “farmers’ privilege” to use saved seed.

The report confirms the group’s prediction, said Comin. “There was an increase in plant breeders’ rights applications submitted, meaning more breeders wanted to make their innovations available in Canada.” Case studies cited in the report illustrate these positive outcomes. Limagrain, a farmer-owned, international wheat breeding company, invested in the launch of Limagrain Cereals Research Canada, its first such Canadian initiative.

“The amendments also reignited a conversation about investment and fair remuneration for the use of intellectual property,” said Comin.

While the Canadian crop value chain ultimately did not agree upon a universal saved-seed royalty scheme, the Canadian Seed Trade Association and the Canadian Plant Technology Association, now amalgamated as Seeds Canada, developed an industry-led solution: the variety use agreement known as VUA. Since 2020, 14 varieties have entered the platform, which requires documentation of saved seed use and payment of a fee. “More varieties are entering the platform for the upcoming season based on the value demonstrated and the need for greater investment in variety development,” said Comin.

The Canadian PBR system does have shortcomings that fellow UPOV 91 compliant countries are quick to point out, added Comin. “Although the regulations allow specific crops to be listed as requiring payment for saved seed, which would be a condition placed on farmers’ privilege, this is not entrenched universally in the act,” she said. “This means breeding organizations don’t need to require payment of a royalty on farm-saved seed. This makes it difficult to compete for rights holders who do institute a royalty.”

Another area of difference between Canada’s PBR framework and that of certain other countries is enforcement. In Canada, the sale or purchase of common seed is illegal if that variety is protected. Conditioners, cleaners and grain purchasers are even liable for infringement. The right’s holder must conduct their own enforcement. This includes identifying an infringement and, hopefully, rectifying it. In some countries, the government actively promotes compliance.

The Canadian Plant Breeders’ Rights Office is quite active internationally, said Comin. “This ensures our industry can stay apprised of proposed changes at the UPOV table.” An industry advisory committee comprised of experts in numerous crop areas advises the Office on policy and regulation.

“Plant Breeders’ Rights create benefits and opportunities for everyone,” said Comin. “Without them, we would have very little, if any, investment in innovation and our ability to compete would be non-existent.”