Plant Breeders' Rights

As of February 27, 2015, all new PBR-protected varieties are protected under the legislation that conforms to the UPOV 1991 convention, bringing Canada in line with the rest of the world, and opening opportunities for increased investment to make new varieties available to Canadian farmers. It brings opportunity, but also brings new obligations for the value chain. This updated legislation ensures continued investment in new and improved seed varieties for Canadian farmers. 

For more information, and to access the latest Plant Breeder’s Rights legislation and updates, please visit our fast facts sheet.

Information for Farmers

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.

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 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.

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.
  • 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.
Information for Seed Retailers

Seed retailers play a critical role in the effort to inform and educate.

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 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. 

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.

The updated Plant Breeders’ Rights in Canada have 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.

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.

Under the previous legislation (PBR 78), the breeder’s authority is required to sell seed of protected varieties or to produce seed for sale. The updated 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.

Information for Conditioners

It is important to know your obligations and to take steps to ensure that you are processing legally obtained seed.

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). If the harvested material was produced from illegally obtained seed, the holder of that harvested material can be liable for compensation.

However, the legislation provides an exception for farmers to save grain produced from seed of PBR protected varieties, store/stock and condition it for use as seed on their own farms, provided that the seed was acquired legally in the first place.

The extension of the breeders’ right under PBR 91 to include stocking and conditioning (cleaning and treating) means that seed conditioners have new obligations when it comes to those varieties. Stocking and/or conditioning seed that was not acquired with the authority of the breeder is an infringement of PBR 91, and seed processors can be liable for damages if the breeder proves there is a breach. Compensation for damages caused by an infringement of Plant Breeders’ Rights can be much more than the lost royalty revenue. It can include compensation for lost markets, damages to markets and court costs.

Know the varieties that you are processing. If it is first generation seed, ask for the invoice or the blue certified seed tag from the original purchase of seed. The variety name is on both. If it is farm saved (common) seed, ask for the invoice or the blue certified seed tag from the original purchase of seed.

Know the intellectual property protection. Is the variety protected by Plant Breeders’ Rights? Is it protected by 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. Remember: If you are processing seed of a PBR 91 protected variety that was not legally acquired, you will be liable.

Make sure that you are processing legal seed. For first generation seed, 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.

If you are processing farm saved (common) seed, you should still be satisfied that it was produced from legally obtained seed. Again, the best way to know is to ask for the blue certified seed tag from the original seed purchase.

  • It is advisable to include a farmer declaration in your service agreement or work order. It should require the farmer to declare (and sign) that all of the seed delivered for processing:
    • was produced on the farmer’s own holdings
    • will be used solely for planting on the farmer’s own holdings
    • was produced from seed that was legally obtained from the rights holder

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

  • If you believe that you are being asked to undertake an activity that may be an infringement of PBR 91, for example:
    • If you are asked to process seed for which the individual delivering the seed for processing declines to sign a declaration;
    • If you are asked to process seed and distribute the processed seed to individuals other than the customer who originally delivered the seed for processing;

You may wish to decline to process the seed.

Information for Grain Buyers

It is important to know your obligations and to take steps to ensure that you are buying grain produced from legally obtained seed.

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). 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.

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.

  • 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.
PBR Resources
Still Have Questions?

Please contact Manager of Intellectual Property, Mel Reekie at mreekie@seeds-canada.ca if you have any further questions.