Have you been reading articles about UPOV ’91, Plant Breeder’s Rights or Bill C-18 over the last several months? Does all the jargon leave you confused? Angry? Ambivalent?
Considering the number of my fellow farmers who tell me that they bought some new variety of seed from their neighbour, I suspect that a lot of people don’t really understand the existing rules behind Plant Breeder’s Rights. If people don’t understand what’s currently in the legislation, it’s hard to make sense of the changes, and it’s easy to believe that something new and terrible is being imposed upon farmers, when in fact, not a whole lot is going to change if you’re already following the rules.
- From the Manitoba Co-operator: Canola growers debate UPOV ’91
The rules today
So what are the rules? In Canada, if a plant breeder has been granted plant breeders’ rights on a new variety of grain, then farmers must pay a royalty, usually embedded in the purchase of certified seed. Farmers are allowed to save and clean the seed produced for use on their own farms, but they can’t sell or trade it to another person. This form of intellectual property rights protects the investment of the company or public institution that invested time and money into developing this variety. Most newer varieties (with the noted exception of pulses coming out of the Crop Development Centre at Saskatoon) are protected.
As a seed grower I have to be familiar with which varieties are protected because I have to remit royalties to the breeder, be it a private company or a public institution like Agriculture Canada or the CDC. When you buy certified seed, somewhere between $0.80 and $1.50 per bushel (depending on the variety) goes back to the plant breeder.
People don’t usually advertise their illicit activities, so when a neighbour tells me that he sold bin run seed to the guy down the road or I see someone on Twitter who I know is not a seed grower advertising winter wheat seed for sale (true story), I’m guessing that they don’t know these rules. People who are aware of the law and flout it anyway tend to keep a lower profile.
Bill C-18, which is currently being debated in the House of Commons, will, among other things, amend the current Plant Breeders’ Rights legislation to bring it in line with UPOV ’91. UPOV is an international convention that protects the intellectual property rights of plant breeders. Most of our trading partners and competitors conform to the 1991 convention, while Canadian legislation conforms to the now outdated 1978 version.
One of the big changes to the law is that buyers of “brown bagged” seed, as in “common” seed of a protected variety, will now have some liability. Currently, only the person producing and selling brown bagged seed could face punishment, but now, if a buyer is caught procuring seed without paying a royalty, there will be a legislative basis for the breeder to collect compensation (royalty and damages) on the harvested material instead (i.e. grain). The law is saying: if it’s wrong to sell protected varieties of seed, it should be wrong to buy it as well.
If you’re already abiding by PBR legislation and only using certified seed, your own seed or seed from a non-PBR protected variety, things aren’t going to change for you.
I’m fully supportive of the provision in this bill that says that the exclusive rights of plant breeders (and their authorized distributors) to produce, condition, sell or export their variety does not apply to harvested material of the plant grown by a farmer on his own farm for his own use (Section 5.3 of the bill if you want to look it up). This is known as the farmer’s privilege. While there have been some articles saying that farmers won’t be able to save their own seed, I think this clause makes it pretty clear that they can.
This system isn’t perfect, but it attempts to balance the needs of farmers and plant breeders. A majority of my fellow Alberta seed growers agree. At our last AGM we passed a resolution supporting the changes to PBR legislation, as long as it included the clause that allowed farmers to save their own seed.
When some of my customers want to try a new variety of seed they’ll come for 40 acres worth. I know they’ll clean a bin of that first generation production and use it for several years and I wouldn’t change that. You might be thinking, “You’re a pedigreed seed grower, of course you want to make it harder to buy common seed.” While I do want to sell more seed, I know the vast majority of farmers aren’t going to buy my seed, but please, if you’re thinking of trying a new variety, buy 40 acres worth from a seed grower, not your neighbour. Then some royalties will be going back into the system to fund further plant breeding.
Because that’s really the crux here — how will innovation in plant breeding be funded? I found it ironic that around the same time as the would-be winter wheat salesman was trumpeting his wares on Twitter, he was also raving about how well his new variety of feed barley — one developed at the University of Saskatchewan — was yielding. I really wanted to ask him, do you think new varieties fall out of the sky? These advancements take money and if we circumvent the means for paying for them, we will soon be without.
To those farmers who would never dream of using brown bagged canola seed, but do it all the time with wheat and barley, I ask: how would you like to sign a TUA and pay a technology fee on all your cereal seed? Because I honestly think that is what will happen if we continue to restrict cash flow to public and small private plant breeders. Biotech giants will step into the fill the space those entities can no longer afford to occupy, but they will be a lot more forceful about extracting a return on their investment.