Plants > Plant Breeders' Rights 

Farmers Ability to Save Seed Produced from Protected Varieties

The Canadian Food Inspection Agency is responsible for administering the Plant Breeders’ Rights Act ( http://laws.justice.gc.ca./en/P-14.6/fulltoc.html) and the Seeds Act (http://laws.justice.gc.ca./en/S-8/index.html).

Plant Breeders’ Rights Act

Canada’s PBR (PBR) system provides plant breeders with exclusive rights to produce in Canada for the purpose of sale and selling, propagating material of varieties (known as ‘seed’ for purposes of this document). PBR is a voluntary system in that plant breeders are not required to use the PBR system. Canada’s present legislation is in compliance with the 1978 Convention of the International Union for the Protection of New Varieties of Plants (UPOV).

A variety that has been granted rights under the PBR Act is known as a protected variety. The current PBR Act does not prevent plant breeders from using a protected variety for further plant breeding nor does it prohibit farmers from producing and using seed of a protected variety.

The current Act does not, however, allow farmers to sell seed produced from a protected variety without the authorization of the holder of the plant breeders’ right.

Under the existing legislation, ‘propagating material’ applies to all seed (both pedigreed and non-pedigreed or common seed).

If Canada amends its PBR legislation to bring it into compliance with the 1991 UPOV Convention, this will provide the opportunity for Canada to provide clarity to the legislation.

Clarifying the legislation would involve explicitly spelling out in the PBR Act that farmers could save seed produced from a protected variety and use it on their own farms (commonly referred to as farmer’s privilege). As with the existing legislation it would not, however, exempt farmers from obtaining authorization from the holder of the right before they sell seed produced from a protected variety as common seed for planting.

Seeds Act

The Seeds Act regulates the importing, exporting, advertising, packaging, labelling and selling of seed in Canada. The issue of whether seed is pedigreed versus non pedigreed (common) has no bearing on whether seed may be considered to be a variety.

Under the Seeds Regulations though, for certain crop kinds, there are restrictions which only allow for the advertising and labelling of packages with the name of the variety if the seed is pedigreed. (See subsection 10(3) and Schedule II of the Seeds Regulations). The main difference between pedigreed and non pedigreed (common) seed is that pedigreed seed is produced using a third party inspection system (crop/seed certification) and has higher mechanical purity (i.e. less weed seeds) than non pedigreed seed.

For more information visit the Canadian Food Inspection Agency website at www.inspection.gc.ca

• Proposed Amendments to the Plant Breeders' Rights Act to bring existing legislation into conformity with the 1991 UPOV Convention

P0396-04
December 2004