Bill C-18: Reply from the Honourable Gerry Ritz, Minister of Agriculture and Agri-Food

Ms. Diana Bronson
Executive Director
Food Secure Canada

Dear Ms. Bronson:

Thank you for your letter on behalf of Food Secure Canada regarding amendments to Canada’s Plant Breeders’ Rights Act(PBRA) to conform to the 1991 Convention of the International Union for the Protection of New Varieties of Plants (UPOV 91). I appreciate your bringing your concerns to my attention.

To support the agricultural sector, on December 9, 2013, the Government of Canada tabled Bill C-18, the Agricultural Growth Act, which includes amendments to the PBRA to bring it into conformity with UPOV 91.

One of the key criteria for obtaining plant breeders’ rights (PBR) is that an applicant must demonstrate that his or her variety is a new one. Accordingly, heritage/heirloom varieties do not meet the definition of “new” as defined by the PBRA and are therefore ineligible for protection. It is also important to note that the protection period of PBR varieties is limited, and when these rights are surrendered or expired, the variety is considered “public domain” and can be used without authorization.

I would also like to emphasize that farmers will always have choice in the varieties they use. Just as plant breeders can voluntarily choose whether to protect their new varieties under the PBR framework, farmers can also choose not to use PBR-protected varieties.

Furthermore, the strengthened rights offered to plant breeders under an amended PBRA will have no negative impact on Canadian farmers who have obtained their seed legitimately. The proposed amendments explicitly include the “farmer’s privilege,” which allows farmers to continue saving and conditioning (cleaning, treating, etc.) seed of protected plant varieties for replanting on their own land. The amendments will also curtail infringements such as selling “brown bag seed,” which is the practice of selling protected varieties without authorization of the rights holder. Selling brown bag seed is an infringement under the current PBRA, and it will continue to be so under the proposed amendments.

It is also important to note that Bill C-18 contains several restrictions to the breeder’s right intended to balance interests and ensure benefit sharing. The proposed amendments specifically allow anyone to have unrestricted access to protected varieties for the purpose of breeding other, new varieties. This is known as the “breeders’ exemption.” Unrestricted access to a protected variety is also allowed for conducting research and experimentation, and is known as the “research exemption.” Finally, individuals may propagate protected varieties for private or non‑commercial purposes (such as by home gardeners, hobbyists, subsistence farmers, etc.), without seeking authorization from the rights holder.

Regarding your concerns about a reduction in biodiversity, numerous scientific studies have shown that there has been no loss of genetic diversity or narrowing of the genetic base as a result of plant breeding. Amendments to the PBRA to conform to UPOV 91 will encourage foreign plant breeders to bring their varieties into Canada and will increase the diversity of varieties and crop species available to Canadian producers, including the organic sector. Additionally, due to the “breeders’ exemption,” varieties brought into the Canadian marketplace will be an important source of genetic diversity for Canadian plant breeders in developing new and improved plant varieties for Canadian farmers and consumers.

The amendments also clarify that plant breeders may only collect royalties once on the initial sale of a particular cycle of propagating material. If a breeder is denied a reasonable opportunity to collect royalties on the sale of propagating material, the breeder may exercise rights on the harvested material (e.g. grain). This ensures that breeders are fairly remunerated if their variety is used without their authorization. It is not accurate that the proposed amendments would allow royalties to be collected anywhere in the food system.

Amending the PBRA will stimulate investment and foster innovation in breeding new plant varieties. Bringing new and improved plant varieties into the marketplace is an important means of increasing agricultural productivity and sustainability and of improving food quality and marketability. It also ensures that Canadian farmers remain competitive internationally, as almost all other developed nations, including our major trading partners, have ratified UPOV 91.

In terms of corporate agricultural interests, Canada has laws and regulations in place that are designed to ensure that the Canadian marketplace is both fair and competitive. All businesses involved in the production or sale of products, whether large corporations or small businesses, are subject to the same laws and regulations.

With respect to publicly funded crop breeding, Budget 2012 reaffirmed the federal government’s commitment to innovation and to the investments needed to enable a thriving and competitive economy.

Again, thank you for writing on this important matter.

Sincerely,

Gerry Ritz, PC, MP