Canadian Food Inspection Agency
Plant Products Directorate
Plant Production Division
Plant Breeders' Rights Office

Plant Breeders’ Rights (PBR) Act Amendments Consultation update

This document is intended to clarify the role of the Canadian Food Inspection Agency (CFIA), the Farmers’ Privilege and the Seed Sector Review (SSR) as they relate to the PBR Act Amendments Consultation, which ended March 8, 2005.

• Consultation Discussion Paper

General Information:

Plant Breeders’ Rights (PBR) is a form of intellectual property rights, which allow plant breeders of new varieties the exclusive rights to produce and sell propagating material of the variety in Canada. There are many varieties available in the marketplace that are not protected under Plant Breeders’ Rights. Only varieties protected under the PBR Act would be affected.

Agricultural and horticultural varieties already in the marketplace, including heritage varieties do not qualify for PBR. In addition, a variety, must meet certain criteria to be eligible for plant breeders’ rights. The variety must be new (may not be sold in Canada prior to application), distinct (different from all other varieties on the market), uniform (variation from plant to plant is predictable and can be described by the breeder) and stable (remains true to description from generation to generation).

The CFIA administers the PBR Act in Canada. Approximately 80% of applications in the PBR Office are for horticultural crops and 20% of the applications are for agricultural crops. Anyone having bred a new plant variety, including farmers and growers, may make an application for rights, provided the variety meets the criteria listed above.

PBR Consultation:

The Canadian Food Inspection Agency’s (CFIA) consultation on the proposed amendments to the PBR Act ended March 8, 2005. The purpose of the consultation was to assess stakeholder views regarding the elements of a potential amendment package. If amended, Canada will be in conformity with the 1991 Convention of the International Union for the Protection of New Varieties of Plants (UPOV).

These amendments are being proposed to ensure that Canada’s PBR system can continue to offer the same incentives to plant breeding and the introduction of new varieties that are available to our key trading partners and competitors.

Role of the CFIA:

The CFIA administers the PBR Act in Canada. Enforcement of plant breeders’ rights is the responsibility of the holder of the right. CFIA inspection staff do not have any enforcement authority under the PBR Act.

The consultation and the associated discussion paper are the result of deliberations by the Plant Breeders’ Rights Advisory Committee, which includes representatives of plant breeders, farmers, growers, industry and other stakeholders. The role of the PBR Advisory Committee is to provide recommendations to the Minister responsible for Agriculture and Agri-Food (AAFC) and the CFIA on the administration of the Act, from a broad stakeholder perspective.

Farmers’ Privilege:

There are some questions in the public forum regarding the potential impact of the proposed amendments on farmers’ rights to save seed.

As with existing PBR legislation, the proposed amendments to the PBR Act would not affect farmers’ rights to save and use seeds of a protected variety. This is known as farmers’ privilege. The current PBR Act does not prohibit farmers from saving and using seed produced from a protected variety; however, this is not currently stated in the Act.

If Canada amends its legislation to comply with the 1991 UPOV Convention, it is proposed that the exemption allowing farmers to continue saving and using seed of a protected variety for their own use (farmers’ privilege) be explicitly stated in the PBR Act.

With respect to the cleaning (conditioning) of seed, the intent is not to prevent farmers from having their seed cleaned (conditioned) for their own use.

• Fact Sheet - Farmers Ability to Save Seed Produced from Protected Varieties

Seed Sector Review (SSR)

The Seed Sector Review and the PBR Act Amendments consultation are two separate and independent activities. The SSR was an industry-led assessment of the Canadian seed sector and Canada's seed regulatory environment in the global context. The Review was conducted in 2003 and 2004 and its recommendations reflect the views of the industry participants.

Suggestions for changes to Canada's PBR legislation were among the recommendations to stem from this review. The Government of Canada is supportive of the SSR participants’ efforts to encourage stakeholder debate and build consensus on seed sector issues.

Next steps:

The CFIA is reviewing comments and will seek the PBR Advisory Committee’s views on the feasibility of moving forward with the proposed amendments.