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Plant Breeders Rights not so simple

New regulations give PBR regs more teeth, but breeders still want you to follow the law out of self-interest, not fear

When Plant Breeders Rights (PBR) got a major facelift two years ago, the seed trade in Canada responded with information campaigns saying that all was for the best. Upgrades in intellectual property protection weren’t a cash grab, farmers were told. Instead, they showed the international community that Canada takes property protection very seriously.

That recognition, its backers said, would lead to more research and to new varieties, new markets and new premiums that would benefit our farmers as well as downstream users.

Now, a couple of years later, the general feeling among those in the seed trade is that while grower support for the new PBR legislation is improving, there’s still a considerable amount of work to do.

In the world of government regulations, PBR is tied to the UPOV 1991 convention, an international agreement that protects the intellectual property of plant breeders as they develop new varieties “for the benefit of society.”

UPOV 91 is the most recent update of the convention, and Canada’s recent round of PBR updates brings the country’s regulations up-to-date with most other countries around the world.

The big difference between PBR 91 and its predecessor is that in addition to providing new opportunities for breeders and farmers, it also creates new obligations for the entire value chain. For instance, elevators and processors can still purchase the harvested product from saved seed, but may take on financial liability if the breeder can prove they weren’t fairly compensated due to illegal sale or use of the seed.

By the numbers

Currently, 669 agricultural (non-ornamental) varieties are registered under PBR regulations in Canada: 294 (or 44 per cent) are protected under the UPOV 78 convention, with varieties that still exist in the system. There are also 116 varieties (17 per cent) protected under the latest upgrades — UPOV 91.

Another 259 (39 per cent) are in the system, pending approval under the revised UPOV 91 legislation.

In Canada, the public breeding sector is the biggest user of PBR, with the University of Guelph, the University of Saskatchewan and Laval University as the biggest applicants. That’s worth knowing.

The idea that PBR mainly helps multinationals is a misconception, says Anthony Parker, commissioner with the Plant Breeders’ Rights Office with the Canadian Food Inspection Agency (CFIA). He says it’s also a tool to support breeding through Agriculture and Agri-Food Canada (AAFC), through the provinces and universities, and through small- and medium-sized enterprises as well.

“Taxpayers and farmers contribute money in the development of those varieties, and that’s the most compelling reason to protect them,” says Parker. “It’s also about creating a perception that we have a strong intellectual property environment here in Canada to attract foreign varieties. There’s no reason why we shouldn’t benefit from varieties from other countries.”

The fact that most PBR varieties in Canada are public also frames it in a different context. Public breeding in Canada usually translates to the development of cereal varieties (although there have been — and still are — some outstanding soybean varieties to come out of public-sector programs).

Brent Derkatch, past president of the Canadian Seed Trade Association (CSTA), points to differences between Eastern and Western Canada, and the impact this can have on the uptake of PBR. Cropping demands and markets are two of the larger factors, he says. In the East, corn hybrids and traited soybean varieties require the use of certified seed. The infrastructure in the East is also geared towards production of those crops.

In the West, there’s a traditional reliance on cereal varieties, and subsequently, a tendency to rely on saved (bin-run) seed. Canola hybrids require certified seed, and there’s a growing migration of soybean and even corn production in Western Canada. Yet old habits die hard.

“There’s a long history — generations of farmers — who are familiar with the practice of saving and reusing, or even trading seed with their neighbours,” says Derkatch, who is director of operations and business development for Canterra Seeds. “It’s hard to say for sure if there’s a significant difference in the West versus the East as it relates to understanding PBR. The markets are very different in the two regions, so there are a lot of factors at play.”

Transgenic corn and soybean crops require the use of certified seed, meaning PBR is less prominent in those sectors.

Derkatch credits farmers for knowing how products perform on their farms. What’s harder is to identify how much yield is coming from genetics versus other agronomic practices, since there have also been important gains through precision agriculture, fertilizers and fungicides.

It’s also why Derkatch believes the understanding of PBR at the farm level is quite low, and why the industry needs to continue to communicate that intellectual property protection is important for everyone. Genetic improvement is one of many important tools producers need to remain competitive on a global scale.

Phil Bailey also advocates for continuing education on plant breeders’ rights. Earlier in 2017, he toured Quebec with Lorne Hadley, executive director of the Canadian Plant Technology Association (CPTA), visiting with most of the primary seed companies in the province, explaining PBR and UPOV 91, and their implications.

Unlike other provinces, notes Bailey, Quebec growers are required to plant certified seed in order to get crop insurance. It’s almost as though there hasn’t been a need to protect varieties in Quebec using PBR, because crop insurance is doing the job.

“But what we’re finding now is that slowly, and it’s still not anywhere near what the West or even Ontario sees — there are some cracks in the armour where larger farmers are not taking out crop insurance on 100 per cent of their acres,” says Bailey. “And they’re starting to do a little bit of this farm-saved or custom-cleaning, so it’s extremely important for us as an industry to start educating them on PBR and UPOV 91.”

Plant breeding is a long and expensive process, Bailey says. Farmers investing their hard-earned money today in the form of check-offs or seed royalties through certified seed purchases aren’t going to realize a return on that investment in one or two years. Improvements through modern plant breeding technology will undoubtedly help shorten the time for variety development, yet it still requires a long-term commitment — and patience.

More teeth in new law

It turns out the 2015 upgrade also has more teeth when it comes to dealing with growers, elevators or processors who use seed illegally. For example, SeCan is conducting an education program at the same time that it has also taken legal action when it feels its PBR rights aren’t respected.

Todd Hyra, SeCan’s business manager for Western Canada, has been the point person for dealing with two interests in Saskatchewan — one a grower and the other a grain broker. In both cases, the violators agreed to a cash settlement, and one of the businesses agreed to a proactive education plan to avoid future transgressions.

Interestingly, the Western Grain Elevators Association has created a system where the person delivering the grain states they acquired the seed legally. Hyra says this has been a major step for the grain handlers, and not all were onside since they didn’t want customers to be taking that responsibility. Yet it raises that discussion with their customer.

“Seed and grain sometimes don’t mix, and it may not have been a blatant infringement in the West, but sometimes there was confusion or a lack of familiarity with seed regulations and requirements from a grain perspective,” says Hyra. “We talk about the need to educate, and that’s still front and centre.”

Not every transgression becomes a showdown either, and that’s where open discussion and understanding the regulations’ impacts are so important, notes Hyra. He had one grower contact him recently, conceding he’d violated the rules under PBR and UPOV 91. That led to a productive, non-aggressive conversation with the grower, who willingly signed a declaration, acknowledging what he’d done wrong, and in doing so, avoided legal proceedings.

“It was such a nice process to have it all done between the two of us, and it cost a little bit of my time, and was no cost to him,” says Hyra.

Where next?

For Derkatch and Parker, the course ahead for PBR under UPOV 91 is simple: continued diligence in spreading the word across the country.

“With the modernization of our PBR Act under UPOV 91 rules, Canada becomes a more attractive place for companies to invest and to complement the great variety development work that’s also done within the public sector,” says Derkatch.

“I’d rather farmers understood the reason why it’s important, rather than viewing it as a penalty or a disincentive,” says Parker. “We want to encourage positive behaviour.”

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