Proposed Amendments to the Plant Breeders’ Rights Act to Enhance Intellectual Property Rights

On December 9, 2013, the Government of Canada introduced Bill C-18, An Act to amend certain Acts relating to agriculture and agri-food (The Agricultural Growth Act). The Bill contains proposed amendments to multiple Acts designed to further investment and progress in Canada’s agriculture sector, and to enhance its competitiveness in the global markets. This bulletin will focus on the potential amendments to the Plant Breeders’ Rights Act (the Act).

The Act grants exclusive rights to breeders of new plant varieties. Among the key changes being proposed in Bill C-18 are amendments to certain of these rights such as their scope and duration, in order to provide increased protection to plant breeders. The amendments are designed to bring the Actin line with the International Union for the Protection of New Varieties of Plants of 1991 (i.e., UPOV’91) which would update Canada’s legislation from the outdated UPOV’78.

First, in addition to the protections currently offered in the Act, Bill C-18 would also grant the breeders of a plant variety the exclusive right to:

• reproduce propagating material of the variety;
   
• condition propagating material of the variety for the purposes of propagating the variety;
   
• import or export propagating material of the variety; and
   
• stock propagating material for any of the above purposes or purposes listed in the current act.

Second, Bill C-18 proposes to increase the duration of protection of plant breeders’ rights. Under the current Act, protection is offered to the plant breeder for a period of 18 years. Bill C-18 would prolong the duration of protection to a period of 25 years for a tree, vine or other category specified by regulation, or 20 years for all other instances.

In addition to modifying the scope and duration of plant breeders’ rights, Bill C-18 enumerates certain exceptions to the application of such rights. The most significant of these is the Farmers’ Privilege exception, which would be an expressed exception if Bill C-18 becomes law. Under Farmers’ Privilege, a farmer may use the seeds from their own crops to further propagate a plant variety without being subject to the plant breeders’ rights.

Bill C-18 also expands the definition of "plant variety" and "essentially derived varieties", to give greater rights to rights holders.

Bill C-18 has not yet been passed, and must proceed through various steps before the House of Commons and the Senate before becoming law.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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