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Questions abound on issues of rights, royalties and seeds. For Canada, will the tale of UPOV 91 end happily ever after?


 It’s a story 23 years in the making, and it’s not over just yet.

Way back in 1991, Canada joined the International Union for the Protection of New Varieties of Plants—an organization better known by its French acronym, UPOV. UPOV’s mission is to craft an international framework for plant breeders’ rights (PBR), a system to ensure those who develop new plant varieties can protect and profit from their work.

“This is not about innovation at all. It is just another way for consolidated multinational agribusiness to maximize the dollars they extract from farmers.”– Terry Boehm

Within a year of joining, Canada signalled its intent to bring Canada’s Plant Breeders’ Rights Act in line with the organization’s 1991 round of revisions, or “UPOV 91.”

Now, after more than two decades, it looks as if that’s finally about to happen. On December 9, the governing Conservatives tabled an agriculture omnibus bill that includes amendments to strengthen Canada’s PBR Act. Agriculture and Agri-Food Canada (AAFC) Minister Gerry Ritz hopes to see changes to UPOV 91, contained within Bill C-18, the Agricultural Growth Act, passed and implemented by Aug. 1, 2014.

Most Canadians have completely overlooked this story—and, assuming you’ve managed to stay awake this far into the article, you might understand why. We’re talking about compliance versus non-compliance with a highly technical and complex international agreement—not exactly the stuff of tabloid headlines.

But, to many farmers and plant breeders, the move towards UPOV 91 marks a turning point for Canadian agriculture, for better or for worse. Some say it sacrifices Canadian farmers at the altar of huge multinational corporations. Others argue it secures our country’s rightful place at the forefront of innovation.

UPOV Secretary-General Francis Gurry sees plant breeders’ rights as a key to our very survival.

“We are facing a situation in which food security is increasingly a global challenge,” he said by phone from UPOV headquarters in Geneva, Switzerland.

Gurry argued that UPOV is essential in an increasingly urbanized world—a world that may contain more than nine billion people by the year 2050.

UPOVThe International Convention for the Protection of New Varieties of Plants was es- tablished in 1961.

“We’re going to have to improve agricultural productivity by roughly 70 per cent over current levels. We think plant breeding has a very important contribution to that improved productivity.”

Canada is now about to step into line with UPOV—even if it’s stepping very carefully.

“Canadian farmers want to see growth and innovation being fostered,” said Ritz in a written statement to GrainsWest. “That is why our government is encouraged by the ongoing farmer- and industry-led discussions with respect to adopting and implementing UPOV 91.

“Any update to legislation will come before Parliament for a full debate.”

Anthony Parker, commissioner of the PBR Office of the Canadian Food Inspection Agency (CFIA), is pleased to see the changes moving ahead.

Parker believes the new legislation will spur domestic investment in plant breeding, because it gives companies here the same protection being provided by our major trading partners. He also thinks it will encourage foreign plant breeders to bring their varieties into Canada. In the long run, Canadian farmers should benefit as well, he said.

“The net result of having an increased level of investment in Canadian plant breeding, as well as more varieties coming into the Canadian marketplace, hopefully spurs on innovation and gives farmers more choice in accessing varieties that are in demand by the market.”

UPOV acknowledges that farmers may end up bearing some of the cost, said Gurry.

“There, the question we have to ask is, ‘How are you going to finance innovation? How are you going to finance the development of new and useful varieties?’ Because that development costs human and financial resources. You have to have a way of compensating that. And that’s the purpose of the plant breeders’ rights.”

In return, said Gurry, new plant varieties will then become available for further breeding and experimentation.

“We think it’s a good balance between encouraging the necessary investment in innovation on the one hand, and making available the social benefit of the innovation on the other hand.”

Gurry had expected that Canada would soon change its legislation to conform to UPOV 91.

“We don’t understand that there are any really substantive obstacles,” he said. “But any matters concerning agriculture, or any matters concerning innovation, tend these days to attract a certain amount of public interest, if not controversy.”

UPOV 91 is certainly attracting controversy at the National Farmers Union (NFU). In a Nov. 15, 2013, media release, former NFU president Terry Boehm slammed the pending deal in no uncertain terms.

“Yet again Gerry Ritz is proving himself to be the Canadian agriculture minister most hostile to farmers ever by giving a choice plum to the biggest corporations in the world: the right to exploit farmers through UPOV 91,” he said.

“Ritz is pretending that the only way we will get innovation is to [hand] control of our seed sector to huge corporation and plant breeders,” Boehm continued. “At the end of the day, however, this is not about innovation at all. It is just another way for consolidated multinational agribusiness to maximize the dollars they extract from farmers. UPOV 91 gives these companies all the tools they need—and more.”

One of the NFU’s main complaints is that UPOV 91 opens the door to end-point royalties—the option for plant breeders to collect fees based on the final harvest, rather than on the seeds provided.

“Farmers should be very aware that this regime will allow breeders to collect royalties on the entire crop—not just on the seed as allowed under our current Plant Breeder’s Rights legislation,” Boehm said.

Not all farmers agree with Boehm, however.

Kent Erickson, chairman of the Alberta Wheat Commission (AWC), said, “We’re generally supportive of updating to UPOV 91.”

Erickson sees plant breeders’ rights, including end-point royalties, as a way to increase investment in cereals and wheat in Western Canada. Also, given the fact that most other developed countries conform to UPOV 91, he believes it only makes sense for Canada to keep pace.

Bill C-18,
the Agricultural Growth Act, was introduced December 9, 2013 in the House of Commons.

“Having said that,” continued Erickson, “we do have three conditions that we feel are critical in the implementation stage of UPOV 91.”

First, Erickson said the AWC wants assurance that Canada’s legislation will state that farmers have the continued right to save their own seed, clean it and use it on their own farms.

“Under UPOV 91, what we understand is that it has to be explicit in the implementation that farmers are able to use farm-saved seed,” he pointed out. Early indications suggest that the government’s proposed legislation will include this so-called “farmers’ exception” which is part of UPOV 91, guaranteeing their right to save seed from their own crop, and to clean and condition it for use on their own land.

Second, the AWC worries that a new emphasis on the private sector will weaken AAFC’s role in plant development.

“Farmers know that the only way they’re going to get new varieties is if we have the kind of environment that investors and breeders need”
– Patty Townsend

“We don’t want [AAFC] to see this as a way out,” Erickson said. “We want to see Ag Canada still maintaining funding in basic breeding and pre-breeding. We still think there’s a public good to Ag Canada, and there’s still a role for the public and the taxpayers to support agriculture through Ag Canada.”

Finally, Erickson said the AWC expects the government to protect the long-term investment farmers and taxpayers have already made in plant breeding.

“We want to see something recognizing that producers have put money into those programs in the past, and we don’t want to lose that in the future.

The CFIA has spent several years trying to allay farmers’ concerns regarding UPOV 91. On its website, an FAQ page addresses issues including farm-saved seed and end-point royalties.

“Would amending the Canadian Plant Breeders’ Rights Act to conform to the 1991 UPOV Convention (UPOV 91) affect Canadian farmers?” the page asks. Its answer begins with a one-word sentence: “No.”

The CFIA doesn’t have to promote its message to Canada’s plant breeders—a group that, not surprisingly, has consistently pushed for new PBR legislation.

Bob Mastin has been a pedigreed seed grower in Sundre, AB, for 35 years. About eight years ago, he started acquiring and distributing varieties from research stations. He chuckles when UPOV critics raise the spectre of greedy multinational corporations—“I’m probably one of the smallest seed-distribution companies in Canada,” he pointed out.

If Canada fails to conform to UPOV 91, Mastin argued, Canada’s plant breeders will eventually lose access to top genetic materials from elsewhere in the world. Once they start to fall behind, so will Canada’s farmers.

Patty Townsend, CEO of the Canadian Seed Trade Association, is relieved to see the legislation moving forward. In recent years, she has seen warning signs related to Canada’s outdated legislation.

“It creates an uncertain environment for breeders, particularly private-sector breeders, to invest in Canada,” she said. “Just as important, or even more importantly, it makes it more difficult for us to attract international investments.”

Townsend explained that her concerns were more than mere speculation.

“We had a letter from the European Seed Association saying very clearly that European seed companies would not send their varieties to Canada until we are compliant with UPOV 91,” she said.

Like Mastin, Townsend said plant breeders werent’t the only ones negatively impacted by the wait.

“It was hurting farmers,” she said. “The provisions included in this new bill will give Canadian breeders more confidence to develop new varieties here, and it will also give international breeders and developers the confidence to provide their advanced varieties to farmers in Canada.”

Many of the arguments against UPOV 91 are simply wrong, said Townsend.

She doesn’t believe that stronger PBR legislation will weaken the research activity of governments and universities—institutions that tend to focus on open-pollinated crops rather than hybrids and genetic modification.

“Plant breeders’ rights are used more by the public sector than by the private sector,” she said. “All the varieties that are developed by Agriculture and Agri-Food Canada, universities, provincial researchers—they’re the ones that use plant breeders’ rights.”

According to Townsend, opinions of UPOV 91 are often shaped more by preconceptions than by reality.

“I think people have read the legislation without being really objective about it,” she said. “And UPOV language isn’t simple. It’s legal text.”

She’s not persuaded when people forecast doom and gloom.

“I think a lot of people have used this as a way to say the multinationals are going to take over, or farmers are going to be put at a disadvantage. They said that when we put plant breeders’ rights in in the first place. The 10 year review of PBR showed that none of the predictions for higher seed prices and negative impacts on farmers came to be.”

Despite some lingering (and occasionally forceful) pushback, Townsend believes the government can expect wide support on UPOV 91.

“I think that most farmers understand that they need those new varieties,” she said. “Canada is not as competitive, particularly in cereals, as the other main wheat producing and exporting countries. And farmers know that the only way they’re going to get new varieties is if we have the kind of environment that investors and breeders need.”

At the CFIA, Parker believes that criticism of UPOV 91 will continue to fade once the new legislation is in place. Before long, he said, Canada should begin to enjoy the benefits already evident elsewhere in the world.

“With many other countries that have moved to UPOV 91, there have been increases in the number of varieties available in the marketplace; there have been increases in the diversity of the varieties that occur in the marketplace; there have been cited increased levels of investment, not only privately, but also publicly and in private–public collaboration.”

In other words, when it comes to the long story of canada and upov 91, parker predicts a happy ending.


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