It won’t be long before seed of new, more innovative crop varieties will be available to you and your farm businesses. Many of these new varieties will be protected under Canada’s new Plant Breeders’ Rights legislation (PBR 91). At the same time, you will still have access to your tried and trusted varieties. If they are protected by Plant Breeders’ Rights, the protection will be under the previous legislation (PBR 78).

It is very important that you know and understand your obligations when you purchase, grow, save, store, clean and perhaps use the grain you produce as seed.

First of all, it has never been legal to sell farm saved seed of varieties protected by Plant Breeders’ Rights (and any other intellectual property protection tools). If you have been “brown bagging seed” (selling illegally acquired seed or farm saved seed of PBR protected varieties as common seed), you have always been in breach of Plant Breeders’ Rights. You are essentially selling stolen property that is the result of massive investments of time, expertise and money. You are denying the breeders that made those investments the returns they need to invest in delivering newer varieties to you and to farmers all across the country.

Because the breeders’ rights are expanded in PBR 91, it is now also an infringement to buy farm saved (brown bagged) seed. So not only is the seller of brown bagged seed liable for damages they are causing to plant breeders, but buyers are also liable. And really, why would you want to buy brown bagged seed? You would never consider buying a stolen car would you?

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

  • Know the varieties that you are buying. The easiest way to know that is to purchase certified seed. The Canadian Seeds Act prohibits the use of a variety name on invoices, tags, advertisements etc. unless the seed is certified. Look for the blue certified seed tag. Keep the tag and invoices/bills of sale in your records. This is your proof that you acquired the seed with the authority of the breeder.
  • If you decide to save the grain you produce from that seed to plant in subsequent years (farm saved seed), you can clean it, store it and plant it on your farm. However, you may be asked to prove that the seed was acquired legally. The blue tag from the initial purchase is your easiest proof.  Also be aware, that as has always been the case, if the seed is of a variety that carries other intellectual property protection, such as patents or use agreements,  they may prohibit seed saving.

Some scenarios you can consider:

  • Farmer A purchases certified seed and saves, stores and conditions some of the harvested material to use as seed on the farm in subsequent years.

This is completely allowed by PBR 91. Remember to keep proof that the seed used to produce the grain was acquired with the authority of the breeder.

  • Farmer A purchases certified seed and saves and stores some of the harvested material to use as seed on the farm next year, but gives some of it to Farmer B to use as seed in exchange for other products or services.

This is a breach of both PBR 78 and PBR 91. Both Farmer A and Farmer B would be in breach.

  • Farmer A purchases certified seed of a PBR protected variety and saves/stores some of the harvested material to use as seed on the farm in subsequent years. The farmer takes the farm saved seed to a commercial cleaner, but doesn’t take it all back to use on the farm, leaving some with the cleaner in exchange for services.

Just like if the seed is traded to a neighbour, leaving farm saved seed with the cleaner in exchange for services is considered a sale and puts the farmer in breach of PBR 78 and PBR 91.

In this situation, the cleaner would be in breach of PBR 91. If the cleaner sells that seed, the cleaner is in breach of both PBR 78 and PBR 91.

  • Farmer B acquires farm saved seed of a PBR protected variety from Farmer A and takes it to cleaner/conditioner to get it ready to use as seed in subsequent years.

Farmer B and Farmer A and the seed cleaner are all in breach of PBR 91, and all are liable for damages if the breeder proves the breach.

  • Farmer B acquires farm saved seed of a PBR protected variety from Farmer A and sells the grain produced from that seed.

Farmer B and Farmer A and the grain buyer are all in breach of PBR 91, and all are liable for damages if the breeder proves the breach.

  • Farmer A buys grain produced from seed of a protected variety from a grain buyer (elevator company, feed mill, feed lot etc.) and uses it as seed on his/her farm.

Farmer A and the grain buyer are both in breach of PBR 91 and are both liable for damages if the breeder proves the breach.

Additionally, if Farmer A sells that seed, both Farmer A and the purchaser are in breach of both PBR 91 and PBR 78. The grain buyer is likely in breach of PBR 91.