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.

The extension of the breeders’ right under PBR 91 to provide for compensation on harvested material means that grain buyers have new obligations when it comes to harvested material produced from PBR 91 protected varieties.

The purchase of harvested material of seed that was not obtained legally is an infringement of PBR 91, and grain buyers can be liable for damages if the breeder proves there is a breach. Compensation for damages caused by infringement can be much more than the lost royalty revenue. They 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 buying grain produced from 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 purchasing and know what the protection is on that seed. Ask for the invoice from the purchase of the seed used to grow the grain you are buying. If the seed was certified, the invoice will carry the variety name.
  • Know the protection on that variety. Is it protected by Plant Breeders’ Rights? Is it protected under 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. If you are purchasing harvested material (grain) of a PBR 91 protected variety that was not legally acquired, you may be liable for damages caused by the infringement.

For varieties protected by PBR 91

  • Make sure that you are purchasing grain (harvested material) that was produced from seed that was legally obtained from the Plant Breeders’ Rights holder. 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 and/or the invoice for the purchase of the seed used to grow the grain.

If the grain you are purchasing was produced from farm saved (common) seed, it is still important to be assured that the grain was produced from legally obtained seed. Since businesses are required to maintain purchase invoices for a number of years, it is still advisable to ask for the invoice and/or blue tag from the original seed purchase.

  • It is advisable that you include a farmer declaration in your purchase agreement. It should require the farmer to declare that all of the grain offered for purchase:
    • was produced from seed that was legally obtained from the rights holder
    • was produced from farm saved seed grown from legally obtained seed on the farmer’s own holdings

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

  • If you believe that you are being asked to purchase grain that may have resulted from an infringement of Plant Breeders’ Rights; for example, if the individual offering the grain for purchase declines to sign a declaration;  you may wish to decline to purchase the grain.