All varieties protected by Plant Breeders’ Rights after February 27, 2015 will be protected under the new legislation (PBR 91). This legislation expands the breeders’ authority to include harvested material if the breeder was not able to exercise his/her rights (including the collection of a royalty) on the propagating material (seed). In other words, if the harvested material was produced from illegally obtained seed, the holder of that harvested material can be liable for compensation.

However, the legislation provides an exception for farmers to save grain produced from seed of PBR protected varieties, store/stock and condition it for use as seed on their own farms, provided that the seed was acquired legally in the first place.

The extension of the breeders’ right under PBR 91 to include stocking and conditioning (cleaning and treating) means that seed conditioners have new obligations when it comes to those varieties. Stocking and/or conditioning seed that was not acquired with the authority of the breeder is an infringement of PBR 91, and seed processors can be liable for damages if the breeder proves there is a breach. Compensation for damages caused by an infringement of Plant Breeders’ Rights can be much more than the lost royalty revenue. It can include compensation for lost markets, damages to markets and court costs.

It is important to know your obligations and to take steps to ensure that you are processing legally obtained seed.

Here are some things you can do to make sure you are not breaking the law:

  • Know the varieties that you are processing. If it is first generation seed, ask for the invoice or the blue certified seed tag from the original purchase of seed. The variety name is on both. If it is farm saved (common) seed, ask for the invoice or the blue certified seed tag from the original purchase of seed.
  • Know the intellectual property protection. Is the variety protected by Plant Breeders’ Rights? Is it protected by PBR 78 or PBR 91? You can find the lists of varieties protected by PBR in the Plant Varieties Journal, and in Provincial seed guides. Remember: If you are processing seed of a PBR 91 protected variety that was not legally acquired, you will be liable.

For varieties protected under PBR 91 (all varieties granted protection on or after February 27, 2015):

  • Make sure that you are processing legal seed. For first generation seed, the best way to be assured that the seed was lawfully obtained from the rights holder is to ask for the blue certified seed tag.

If you are processing farm saved (common) seed, you should still be satisfied that it was produced from legally obtained seed. Again, the best way to know is to ask for the blue certified seed tag from the original seed purchase.

  • It is advisable to include a farmer declaration in your service agreement or work order. It should require the farmer to declare (and sign) that all of the seed delivered for processing:
    • was produced on the farmer’s own holdings
    • will be used solely for planting on the farmer’s own holdings
    • was produced from seed that was legally obtained from the rights holder

If a rights holder discovers a PBR infringement by a customer, this will assist you to transfer the liability to the customer who is in breach.

  • If you believe that you are being asked to undertake an activity that may be an infringement of PBR 91, for example:
    • If you are asked to process seed for which the individual delivering the seed for processing declines to sign a declaration;
    • If you are asked to process seed and distribute the processed seed to individuals other than the customer who originally delivered the seed for processing;

You may wish to decline to process the seed.