Bill C-18: Updating Canada’s Agricultural Legislation And The Plant Breeders’ Rights Act

Bill C-18, titled the Agricultural Growth Act (the Bill), received royal assent on February 25, 2015 and will come into force upon an order by the Governor In Council (date to be determined). The Bill will amend nine pieces of federal legislation – seven under the oversight of the Canadian Food Inspection Agency, and two under Agriculture and Agri-Food Canada, including the Plant Breeders’ Rights Act (the Act).

Plant breeders’ rights (PBRs) are a form of intellectual property protection for new plant varieties. When a new variety of plant is bred, the breeder or their legal representative may apply for the grant of PBRs, which provide exclusivity over the propagating materials (eg. seeds, cuttings, etc.).

The amendments to the Act seek to strengthen protection of plant varieties in Canada while balancing the interests of farmers and other producers. Ultimately, the purpose of this part of the Bill is to bring the Act into conformance with the requirements of the 1991 Act of the International Convention for the Protection of New Varieties of Plants (UPOV 1991).

Changes to the Act include:

• introducing new exclusive rights to reproduce, import, export, condition, and stock propagating materials (the current system only protects the sale of propagating material and the production of propagating material intended for sale);
• allowing plant breeders to sell a plant variety in Canada for up to one year before applying for PBR protection (this allows the breeder to test the market, advertise, or increase stock);
• providing automatic provisional protection for a new plant variety from the date of filing (this would allow applicants to exercise their rights while applications for PBRs are pending);
• extending the protection term from 18 years to (i) 25 years, for trees, vines or any specified categories; and (ii) 20 years for all other crops (unless the breeder terminates their PBRs earlier); and
• introducing a clear “exhaustion” principle so that a breeder may only collect royalties once on a single generation of propagating material. This means a breeder cannot “double dip” and collect another royalty on the resale of that same propagating material. However, royalties may be collected again on the sale of second generation seeds (e.g. if the first generation seed is planted, grown, harvested, and its seeds are sold) or if the propagating material is exported, other than for consumption, to a country that does not protect varieties of that type.

The Bill also introduces exceptions to infringement of PBRs for acts done (1) privately and for non-commercial purposes (such as for home gardeners); (2) for experimental purposes; or (3) for the purpose of breeding other new plant varieties.

So-called “Farmers’ privilege” – the right of a farmer to save, condition, and use seeds collected from crops they have planted – will also be codified in the Act, though with limits. Farmers can save and condition seed from PBR-protected plant varieties, but only to use for replanting on their own land.

Additional information on the upcoming changes to the Act are posted on the Canadian Food Inspection Agency website, here.