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09 June 2014
If enacted, Bill C-18 – now pending in the Canadian Parliament – will amend several statutes in order to implement various measures relating to agriculture. The bill makes significant amendments to the Plant Breeders' Rights Act, including changes to the novelty requirement and the duration and scope of breeders' rights, as well as exceptions from and exhaustion of those rights.
The bill, entitled the Agricultural Growth Act, brings the Plant Breeders' Rights Act into conformity with the 1991 Act of the International Convention for the Protection of New Varieties of Plants, which is a precondition to ratification of, or accession to, the 1991 act.
Under the current Plant Breeders' Rights Act, the sale of a variety in Canada by or with the concurrence of the breeder or its legal representative prior to the Canadian filing date is a bar to the grant of plant breeders' rights.
Bill C-18 amends the act to introduce a one-year grace period, such that the sale of a variety by or with the concurrence of the breeder or its legal representative is a bar to the grant of plant breeders' rights only if the sale occurred more than one year before the Canadian filing date.
The current act provides that the holder of plant breeder's rights respecting a variety has the exclusive right:
Bill C-18 redefines the scope of the breeder's rights, providing that the rights holder has the exclusive right:
Pursuant to Bill C-18, these exclusive rights are extended to harvested material, including whole plants or parts of plants, obtained through the unauthorised use of propagating material of the plant variety, unless the rights holder has failed to exercise its rights after reasonable opportunity to do so.
These rights are also extended to:
The current act specifies no exceptions to breeders' rights. The positive statement of the exclusive rights constitutes a complete code, and any exception (eg, a farmers' privilege as discussed below) can be inferred only on the basis that it is not expressly covered by the specified rights of the breeder.
Although the current act does not positively specify a farmers' privilege to save seed and plant it on the farmer's own land, the existence of a farmers' privilege appears inherent in the current legislation, because the saving of seed and planting of saved seed is not an exclusive right reserved for the breeder.
Bill C-18 introduces exceptions from the breeder's exclusive rights for acts done:
In addition, it codifies a farmers' privilege, providing that the exclusive right to produce and reproduce propagating material of the variety and to condition propagating material of the variety for the purposes of propagating the variety does not apply to harvested material of the plant variety that is grown by a farmer on the farmer's holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety.
Absent this exception, the practice of saving seed is inconsistent with the breeder's exclusive rights to produce and reproduce propagating material and to condition propagating material.
Notably, the farmers' privilege codified in Bill C-18 does not extend to an exception from the breeder's exclusive right to stock propagating material of the variety.
Bill C-18 also amends the act to provide that breeders' rights do not apply to acts done in relation to material of a plant variety after that material has been sold in Canada by or with the consent of the rights holder, unless the act involves further propagation of the plant variety or export, other than for consumption, to a country that does not protect varieties of that type.
This exhaustion of the breeder's rights aims to prevent 'double dipping' by collecting royalties more than once on a single cycle of propagating material.
The duration of the breeder's rights under the current act is 18 years from the date of grant, irrespective of the variety.
Bill C-18 increases the term of protection to 25 years from the date of grant in the case of a tree or vine, and 20 years in any other case.
Bill C-18 is a government bill that was introduced in the House of Commons by the minister of agriculture and agri-food. The first reading of Bill C-18 in the house has been completed. Further review and passage of the bill by the House of Commons and the Senate are required before the bill can become law.
For further information on this topic please contact David E Schwartz at Smart & Biggar/Fetherstonhaugh by telephone (+1 613 232 2486), fax (+1 613 232 8440) or email (email@example.com). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.
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