All varieties protected by Plant Breeders’ Rights after February 27, 2015 will be protected under the new legislation (PBR 91). The new legislation expands the rights of breeders, giving the holders of Plant Breeders’ Rights more authority over the use of their material.

All of the stakeholders along the value chain need to be aware of the obligations that come with expanded Plant Breeders’ Rights. Those of us in the seed sector have a responsibility to provide all possible opportunities for stakeholders to understand the impact of the changes to Plant Breeders’ Rights, and to take steps to ensure that they are not infringing those rights.

As a seed retailer, you play a critical role in the effort to inform and educate. Here’s how you can help.

Help to explain the benefits of Plant Breeders’ Rights.

Plant Breeders’ Rights have delivered tremendous benefits to farmers and economies in Canada and around the world.

  • In Canada – Plant Breeders’ Rights enabled the development and introduction of wheat varieties that are tolerant to wheat midge. Estimates are that midge tolerant varieties have a $40 million annual economic impact.

Plant Breeders’ Rights also gave Canada’s potato producers access to internationally developed varieties, resulting in an 18% average increase in Canadian potato production.

Updated Plant Breeders’ Rights in Canada have already contributed to the expansion of cereal breeding in Canada; and to increased access to internationally developed varieties.

  • In the United Kingdom – access to new varieties of wheat, oats and barley as the result of Plant Breeders’ Rights, resulted in a large increase in production and helped to transform the UK from a net importer of cereals to a net exporter.
  • In the United States – Plant Breeders’ Rights resulted in an exponential growth in the number of plant breeders and breeding companies.

Understand the changes in the new legislation

  • After February 27, 2015, varieties protected by Plant Breeders’ Rights will be protected under the new legislation (PBR 91). All varieties protected before that date are protected by the old legislation (PBR 78). You will need to know which varieties are protected by PBR 78 and which are protected by PBR 91. Look for the symbols beside the variety names in seed guides, advertising and other information.
pbr-logo If this symbol is associated with the variety, it is protected by PBR 78.
logo If this symbol is associated with the variety, it is protected by PBR 91.
  • Under the old legislation (PBR 78), the breeder’s authority is required to sell seed of protected varieties or to produce seed for sale. The new legislation (PBR 91) expands the rights of breeders. The authority of the breeder is required to sell, produce, reproduce, stock, condition, import and export propagating material (seed).
  • PBR 78 is silent on farm saved seed. Farmers can save seed only because it isn’t prohibited. PBR 91 establishes in legislation, making clear the ability of farmers to save harvested material of protected varieties, condition and store/stock it to use as seed on their own farms.
  • Neither PBR 78 nor PBR 91 establish an end point royalty or provide for the collection of a royalty anywhere but on the propagating material (seed). However, PBR 91 does allow for breeders to be compensated on harvested material (grain) if the seed used to produce that grain was acquired illegally.

Make sure you are not infringing Plant Breeders’ Rights when you sell seed, and help your customers to understand their obligations when they buy 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 and/or your customers 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 re-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.
  • The expanded authority means that additional stakeholders can be liable for infringements of Plant Breeders’ Rights.

For example, if you are custom treating seed for producers, you need to be sure that the seed was legally acquired and grown or you will be participating in an infringement of PBR 91 and can be liable for damages.

If seed conditioners clean seed that was not acquired legally, the conditioners can be liable for damages from the infringement.

If grain buyers (millers, maltsters, feed manufacturers, grain elevators etc.) purchase grain that was produced from seed that was not acquired legally, the grain buyers can be liable for damages from the infringement.

  • If the breeder proves an infringement, the compensation can be much higher than lost royalty revenue. It can include market loss, lost market opportunity and court costs.

Use the tools that will help you be informed.

This website will help you to present the right information, and answer questions knowledgeably. Use the fact sheets, counter cards and other material that is available. Participate in webinars and information sessions. And if you still have questions, contact info@PBRfacts.ca