Protecting Plant Varieties in Canada

Protection for new plant varieties has been available for just over twenty years in Canada. As new technologies are sought for increasing and improving crop production, Plant Breeders’ Rights help to encourage such innovation by rewarding plant breeders with exclusive rights to sell, and to produce for sale, the reproductive material of their new plant variety.

Plant Breeders’ Regime in Canada - Differences

Canada is a member country of the International Union for the Protection of New Varieties of Plants (UPOV). Plant breeders and applicants should be aware, however, that Canadian laws do not currently follow the latest version of the UPOV Convention and therefore there are some differences in the protection afforded to plant varieties in Canada.

First, there is no grace period for disclosure of the reproductive, or propagating, material of plant varieties. To obtain a grant of a Plant Breeders’ Right in Canada, the propagating material of a new plant variety must not have been previously sold in Canada before filing the application with the Plant Breeders’ Rights Office. The definition of “sell” under the Plant Breeders’ Rights Act is rather broad and includes:

“agree to sell, or offer, advertise, keep, expose, transmit, send, convey, or deliver for sale, or agree to exchange or to dispose of to any person in any manner for a consideration.”

In addition, the Act defines “advertise”, in relation to a plant variety, even more broadly to include bringing to the notice of the public any communication with the intention of promoting the sale of the propagating material of the plant variety.

If the plant variety was sold outside of Canada, then there is a six- year grace period for woody plants and their rootstocks, while other varieties have a four-year grace period before filing.

Secondly, the Plant Breeders’ Right lasts for eighteen years from grant.

Furthermore, the protection afforded in Canada does not extend to conditioning (cleaning and seed treating) and stocking (saving, storing or possessing) the propagating material.

Eligibility for Protection and Filing Requirements

In order to be eligible for protection in Canada, the new plant variety must be distinct, uniform and stable. A variety is distinct if it has one or more characteristics that are measurably different from all other varieties which are known to exist within common knowledge at the time of filing the application. A variety is uniform when the relevant characteristics are homogeneous, allowing for variation that is predictable and commercially acceptable. Finally, a variety is stable when it is true to its description over successive generations.

The plant breeder, its employer, or a legal representative of same can apply for a Plant Breeders’ Right, provided they are citizens or residents of a member country of the UPOV. Foreign applicants filing into Canada will need to appoint a Canadian agent. In either case, an assignment and/or an authorization form must accompany the application.

Other requirements for the application include a description of the origin and breeding history of the plant variety, the manner in which the propagating material will be maintained, a description of the variety, and a statement regarding the uniformity and stability of the variety. The plant variety must be associated with a proposed name, or denomination, as chosen by the applicant and approved by the Examiner. Apart from vegetatively propagated crops, samples of the propagating material are required. Documents supporting the distinctness of the variety, such as photographs and a detailed description of the characteristics, are needed. The results of comparative tests and trials to demonstrate that the plant variety is a new variety are also required.

Procedural Considerations to Obtain Protection

The examination process involves a formal review for compliance with the Plant Breeders’ Rights Act and Regulations, and a site examination of trial results comparing the variety with reference varieties. Trials must be done in Canada and scheduling for the site examination begins every May 1 for the tests taking place during the summer of that year. It may be possible to have this testing completed through the purchase of foreign tests and trials from Plant Breeders’ Rights Offices in UPOV member countries if accepted by the Canadian Office.

Publication of the description of the variety in the Plant Varieties Journal allows for third parties to oppose. If there is no opposition, then a Certificate of Registration is issued. Maintenance fees are due annually following the grant of the Plant Breeders’ Right.

Consider Plant Breeders’ Rights

Although there may be differences in the extent of protection in Canada under the Plant Breeders’ Rights regime, with Canada’s agricultural tradition, Plant Breeders’ Rights should not be dismissed as an option to provide the benefits of access to foreign varieties and the development of Canadian innovation.

By Susan Chao 

No Excuses. Canada Must Deliver New Copyright Legislation To The International Community

Now that Stephen Harper has achieved majority with an unexpected May 2nd win, there is no reason why the long awaited amendments to Canada’s Copyright legislation should not be passed into law. Calls for the reintroduction of the legislation that died with the dissolution of the 40th Parliament have come from many quarters including from John Manley, President of the Canadian Council of Chief Executives. In his recent letter to the Prime Minister, the former Liberal Deputy Prime Minister urges the new government to “expeditiously” get on with the task. Readers will recall that the issue of modernization of Canada’s Copyright regime was a top of the list issues for US President Obama when he met with the then minority government leader Harper in February of this year. The American concern was that Canada was seen as a copyright pirate’s lair responsible for vast sums being lost to the U.S. entertainment industry. Canada’s advanced communications capacity, its sophisticated technology and the integrated North American English speaking market where cultural creation and its consumers know no borders present a significant challenge to our legislators. The pressure from the Americans has not abated and the expectations are for fast action.

The Conservative government should not succumb to the temptation of rushing Parliament to a solution to make the pain go away. No matter what solution is advanced, they will not be able to satisfy everyone. Indeed efforts to change the law, which began under a Liberal administration more than a decade ago, have all been unsuccessful. As the Minister of Industry, Tony Clement, said when he introduced the latest attempt in the last Parliament, the main challenge is finding an equitable balance “between consumers who want access to material and artists and innovators who want to be and should be rewarded for their creativity”. That balance is difficult to achieve and for Canada the difficulty is made more acute because of the need to protect Canadian artists as well as Canadian consumers while answering American concerns.

The new majority government should take as much time as they need to bring forward progressive legislation in a field that is perhaps the most dynamic and fast changing of any in the generation of intellectual value added. The long legislative process to which amendments to the existing legislation has been put should not be seen as a negative. On the contrary, a lot of thought has gone into amending the Copyright Act from the very beginning and we should take full advantage of the wisdom that the process has produced. Surely the evidence before the parliamentary committee in three attempts at passage will have provided many nuggets of wisdom.

Having trailed our major trading partners in the development of modern copyright laws for many years, we are in a position, if we are wise and judicious in our choices, to set the new standard of international copyright law. In doing so we will be serving the national interest through the encouragement of Canadian cultural product while satisfying our international obligations including answering American concerns.

By the Hon. Jean Jacques Blais, P.C., Q.C.