April 29, 2015
By Micheline Gravelle and Teresa MacLean
Canada’s Plant Breeders’ Rights Act (PBRA) has recently been amended in order to strengthen the protection of plant varieties in Canada and to bring the PBRA in line with international plant breeding standards. Significant amendments have been made to the nature and scope of plant breeders’ rights, the term of protection, and the requirements for novelty.
The PBRA was amended in Bill-C-18 along with various other Acts related to agriculture, including the Feeds Act, the Seeds Act and the Plant Protection Act. This omnibus bill, entitled the Agriculture Growth Act, received Royal Assent February 25, 2015. The amended provisions of the PBRA came into force by an Order in Council dated February 27, 2015.
The PBRA also stipulates that regulations may be made in respect of the Act, which will undoubtedly affect the rights of holders of registered varieties. It is currently unclear what these regulatory changes will include or when they will be made.
Key changes to the PBRA include:
Sale within Canada
The amended PBRA has introduced a new grace period which allows applicants to sell a plant variety within Canada for up to a year prior to the date an application is accepted for filing at the Plant Breeders’ Rights Office (section 4(3)(a)). This will allow prospective applicants to test the market, advertise or increase stock without losing the novelty associated with a new plant variety. The grace period given for sales outside Canada is six years for tree or vine varieties or four years for all other varieties (section 4(3)(b)).
Increased term of protection
The term of the grant of exclusive PBRA rights has been extended from 18 years to a period of 25 years for trees, vines, or categories that will be specified by the regulations, or a period of 20 years for all other varieties (section 6(1)).
Changes to the nature and scope of plant breeders’ rights
The amendments have also extended the nature of the exclusive rights provided to plant breeders’ rights holders. The PBRA now provides the exclusive right to reproduce propagating material of the variety, the right to condition propagating material of the variety for the purposes of propagation, the right to export or import propagating material of the variety, and the right to stock propagating material of the variety for the purpose of exercising any other right (section 5(1)). These rights are in addition to exclusive rights already provided such as the right to sell and to produce propagating material of the variety and the right to authorize others to exercise these exclusive plant breeders’ rights.
These rights apply in respect of any harvested material, including whole plants or parts of plants, obtained through the unauthorized use of propagating material of the plant variety (section 5.1). The rights will also apply to any other plant variety that is essentially derived from the plant variety if the plant variety is not itself essentially derived from another plant variety; any other plant variety that is not clearly distinguishable from the plant variety; and any other plant variety whose production requires the repeated use of the plant variety (section 5.2(1)).
Additionally, applicants are now provided with automatic provisional protection for their variety as of the filing date without the need to apply for a protective direction.1 This protection provides an applicant with the same rights in respect of a variety as he or she would have if his or her plant breeders’ rights application were granted (section 19(1)). This entitles an applicant to equitable remuneration for the period between the filing and grant of rights from any person who carries out acts requiring an applicant’s authorization as long as that person is notified in writing by the applicant that rights have been filed in respect of a plant variety (section 19(2)). The provisional protection is extinguished if the application is withdrawn by the applicant, or if it is rejected, refused or deemed abandoned (section 20(1)).
Limits on rights and Farmers Privilege
The amended Act carves out certain exceptions to the exclusive rights provided for under the PBRA. These rights do not apply to acts done privately and for non-commercial purposes, for experimental purposes, or for the purpose of breeding other plant varieties (section 5.3(1)). These rights are also exhausted after the propagating or harvested material of a registered plant variety has been sold once in Canada by the rights holder or with the holder’s consent. This applies unless there is further propagation of the plant variety or the propagating material is exported, for purposes other than consumption, to a country that does not protect varieties of that type (section 5.4).
The amendments also introduce the concept of “Farmers’ Privilege” as an exception to the PBRA rights (section 5.3(2)). Farmers’ privilege allows a farmer to produce and reproduce propagating material of protected varieties grown on his or her holdings without the need for authorization from the plant breeders’ rights holder as long as the propagating material is used for the sole purpose of propagating the plant variety on his or her holdings. This captures the practice of saving seed of protected varieties for growing subsequent generations of crops. The class of farmers or plant varieties to which this exemption will apply are currently unclear as the regulations have yet to be amended.
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1 The definition of protective direction has been repealed from section 2, and section 19 has been amended to remove references to protection directions and the requirements surrounding it.
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