Harvey Marcil of Pasqua Farms near Moose Jaw, Sask., has also agreed to stop making unauthorized seed sales and was expelled from SeCan’s membership, Todd Hyra, SeCan’s business manager for Western Canada, said in an interview.

The previous highest settlement for unauthorized seed sales of SeCan varieties was $120,000 in 2013.

“By enforcing (PBR) and letting people know that we’re enforcing we’re sending two messages,” Hyra said. “One is those that if they are going to infringe we’ll do our best to catch them.

“But more importantly we want to let our plant breeders know that if they are willing to invest in Canada that will do our best to support their efforts and ensure they get paid for their innovation.”

SeCan started its investigation into Marcil’s activities in January 2014. The settlement announced this week relates to unauthorized sales of two SeCan PBR-protected varieties, CDC Bethune flax and AC Strongfield durum.

What makes the breach even more troublesome is that Marcil is a seed grower and was a SeCan member, Hyra said.

“When someone has demonstrated they know the rules and is willing to break them then we need to make sure we show we are willing to enforce and protect our plant breeders’ rights seriously,” he said.

Moreover, Marcil’s unauthorized sales of flax seed could have compromised efforts to flush Triffid-contaminated flax seed from the system, Hyra said. Reconstituted flax seed, certified free of the unregistered GMO variety Triffid, was released in 2012.

“All SeCan members agreed to switch over to the new seed stocks and get rid of all past seed stocks,” Hyra said. “Someone selling old stock could’ve caused harm and prolonged the issue for us.”

In this case both varieties were protected under the previous UPOV’78 international protection protocol. New rules apply to varieties protected under UPOV’91, which took effect last year.

When SeCan’s right are breached it seeks to get what it’s owed in royalties, plus other costs, including legal fees, Hyra said.

Watch for more on this story in the Feb. 25 issue of the Manitoba Co-operator.

— Allan Dawson is a reporter for the Manitoba Co-operator at Miami, Man. Follow him at @AllanReporter on Twitter.

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Canterra Seeds and French farmer co-operative Limagrain on Thursday announced they would further tie up their wheat variety commercialization work through a new joint seed breeding and development business.

The two companies said their new cereal breeding and development partnership, to be named Limagrain Cereals Research Canada, will be based in Saskatoon.

Limagrain — which has already worked with Canterra since 2012, through an exclusive license deal for commercialization of wheat varieties — also said Thursday it will buy a minority stake in Canterra, including rights to name representatives to Canterra’s board of directors.

Both deals are expected to be completed by the end of September, subject to conditions such as the usual due diligence — and a requirement “that there be no changes to Bill C-18,” Canada’s federal Agricultural Growth Act.

“There is no understating the importance of this deal to Canadian agriculture,” Canterra CEO David Hansen said in a release.

Passed in February, C-18 — which, among other things, tightened up Canada’s Plant Breeders’ Rights (PBR) legislation — “has opened up a whole new world of wheat,” he said.

“Our farmers can now buy and grow varieties that they couldn’t access before. For us as seed marketers, this is obviously an opportunity, but the opportunities are much greater for our customers, the producers.”

The Limagrain Cereals j.v. is expected to bring “significant added value” to the Prairie grain sector through development of new varieties of cereals, with a specific focus on wheat and use of “the most advanced technologies currently available.”

Passage of C-18 earlier this year, and Ottawa’s recent related move to ratify UPOV 91 (the 1991 International Convention for the Protection of New Varieties of Plants), puts Canada “finally on a level playing field with the rest of the international plant breeding community,” Hansen said in a separate federal government release.

France’s Limagrain already bills itself as the fourth largest seed company in the world and a top player in wheat and other cereals.

“Western Canada’s expertise in cereal breeding is globally recognized,” Bruno Carette, Limagrain Field Seeds’ CEO, said in the two companies’ release Thursday.

“We are proud to bring our cereal breeding expertise to Saskatoon — a hub for cereal development in Canada — and work collaboratively to breed advanced wheat genetics for farmers in Western Canada.”

“Today’s partnership announcement is a great example of how the Agricultural Growth Act is delivering for Canadian producers,” federal Agriculture Minister Gerry Ritz said at the j.v. announcement Thursday.

“Bringing Canada’s seed regulations up-to-date has created opportunities for new investment in crop breeding in Canada,” Rosetown, Sask. farmer Jim Wickett, chair of the Western Canadian Wheat Growers, said in a separate release Thursday.

The planned Canterra/Limagrain venture “demonstrates the value of creating a policy environment that encourages investment,” he said. “Prairie wheat growers will be the main beneficiaries.” — AGCanada.com Network

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Canada’s representatives to the World Trade Organization, on Friday in Geneva, deposited the government’s “instrument of ratification” for the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV ’91).

Agriculture Minister Gerry Ritz said Monday the move finalizes one of the main measures of the government’s Agricultural Growth Act, which was passed this spring and brought Canada’s plant breeding legislation in line with the UPOV ’91 Convention.

“With the ratification of UPOV ’91, plant breeders have more protection and farmers have better access to a wider variety of seeds,” the government said in a release Monday.

The treaty, the government said, “encourages increased investment in plant breeding and brings Canada in line with trading partners, allowing Canadian farmers to be more competitive in the global marketplace.”

“We have been operating under the UPOV ’91 Convention since February, but now it has been announced to the world,” Canadian Seed Trade Association president Dave Baute said in a separate release.

“After 22 years of hard work, Canada’s formal ratification of the 1991 UPOV Convention places the agricultural sector solidly on the world stage and confirms that the door is open for international and domestic collaboration and innovation.”

Since the Act was passed in late February, the CSTA and other crop commodity groups said Monday, “new varieties of wheat, oats, flax, and potatoes, that would never have come to Canada without the updates to Canada’s Plant Breeders’ Rights (PBR) legislation, have become available.”

PBR is federally-mandated intellectual property protection for plant breeders who develop new plant varieties and want to sell and collect royalties from the sale of seed or plant genetics.

Canada, the government said Monday, has already seen a 20 per cent increase in the number of PBR applications since the Agricultural Growth Act came into force this year.

Formal UPOV ’91 ratification, the groups said, “confirms to the world that Canada supports an agricultural sector that is sustainable and competitive and that investment is welcome domestically and internationally.”

“Stronger intellectual property rights have proven to provide greater incentives to increase investment in research and development for Canada’s crop sector, giving our farmers greater access to the newest crop varieties,” Ritz said.

Critics of UPOV ’91 such as Canada’s National Farmers Union have said the treaty will make it “much more difficult” for farmers to save and reuse seed, forces them to pay more for seed and consolidates control over seed with the “world’s largest agribusiness corporations.”

Bringing PBR in line with UPOV ’91, the government said, doesn’t change what farmers are allowed to do with respect to protected plant varieties, but is meant to “facilitate a breeder’s ability to enforce his/her rights on protected plant varieties.”

The government has also said Canada’s UPOV-based PBR legislation enshrines the “farmers’ privilege,” allowing farmers to save, clean, treat and store seed produced from a protected plant variety and use it for replanting on their own farms.

“If farmers are obtaining seed of a protected variety legitimately, then there will be no increased liability.” — AGCanada.com Network

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Immediately after the bill received royal assent Wednesday, Agriculture Minister Gerry Ritz tabled a treaty in Parliament to ratify the UPOV 91 Convention (the 1991 Convention of the International Union for the Protection of New Plant Varieties), the international standard for plant breeders’ rights (PBR).

Being party to UPOV 91 will encourage more plant breeding in Canada and bring in more plant germplasm, resulting in higher yields and bigger profits for farmers, Ritz said Friday at a separate event celebrating the legislation, at Canterra Seeds in Winnipeg.

Proponents of Ritz’s package of legislative amendments, which will align Canadian PBR with UPOV ’91, hail the legislation as offering opportunities for increased investment and delivery of new varieties both from plant breeders operating in and outside of Canada.

Partners in Innovation, an umbrella group of ag commodity groups backing the amendments, said Friday the new law will ensure farmers have access to “new and improved varieties developed in Canada and internationally.”

“Many Prairie farmers have benefited from private investment in canola, corn and soybeans,” Mike Bast, Manitoba vice-president of the Western Canadian Wheat Growers Association, said at the Winnipeg event.

“I’ve seen those benefits firsthand in each of these crops. We now have an opportunity to see similar benefits from new investment in the breeding of wheat, barley and other crops.”

The legislation has the support of all “relevant” farm organizations, Ritz said. The list includes the Canadian Canola Growers Association, Alberta Wheat Commission, Canadian Federation of Agriculture, Grain Growers of Canada, Western Canadian Wheat Growers and Cereals Canada.

“Rights and responsibilities”

The legislation will also “further enhance the contribution of Canadian fresh fruit and vegetable growers to healthy diets for Canadian families,” Keith Kuhl, president of the Canadian Horticultural Council, said in Partners in Innovation’s release.

Fruit and vegetable growers, he said, will be able to “access new and innovative crop varieties developed internationally while encouraging domestic plant breeding and the development of Canadian varieties that can compete in international markets.”

The Canadian Seed Trade Association also supports the act, adding Friday it plans to run an outreach and education campaign “to make sure everyone understands their rights and responsibilities” under Ritz’s amendments.

The National Farmers Union (NFU) has long opposed the legislation, fearing it will allow seed companies to charge farmers more and restrict farmers from saving grain from their own crops for seed.

“I cannot stress enough that amendments to the plant breeders’ rights act allow for farmers to retain the right to save, clean, and store seed for their own operations,” Ritz said. “There seems to be some confusion around that.”

UPOV’91 will not result in Canadian farmers getting access to more varieties and higher yields, according to Terry Boehm, chair of NFU’s seed and trade committee.

“With increased rights to plant breeders we will only see increased costs to farmers and even greater domination by the giant seed companies that are so inefficient that they need enhanced plant breeders rights to stay in business,” he wrote in an email.

“Farmers will rue the day when they see their so-called privilege diminished over time.”

Keystone Agricultural Producers (KAP) president Dan Mazier said in an interview he hopes farmers will get a major say in developing the regulations under the act.

The Manitoba farmers’ group, he said, “feels if you’re not at the table, you’re on the menu.”

Ritz told reporters farmers and other “industry stakeholders” will be consulted on the regulations.

Among other groups, the Alberta Wheat Commission hailed the bill’s passage, but noted its support to PBR amendments is on three conditions.

Farmers, the commission said Friday, must maintain the ability to use farm-saved seed, and federal government funding of pre-breeding and genetic research must be maintained.

Thirdly, the commission said, the “farmer and public equity stake in Canada’s proprietary genetic material for cereals developed over the past 100 years continues to be recognized.”

— Allan Dawson is a reporter for the Manitoba Co-operator based at Miami, Man. Includes files from Co-operator reporter Shannon VanRaes in Winnipeg, Commodity News Service Canada and AGCanada.com Network staff.

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“The net benefit, at the end of the day, is really going to be for farmers,” said Anthony Parker at FarmTech in January.

The federal government is poised to pass new plant breeders’ rights legislation that will bring Canada in line with UPOV ’91 (an acronym for the International Union for the Protection of New Varieties).

“It will bring increased investment, new sources of varieties coming into the marketplace, and increased choice for farmers in sourcing the varieties they need to be competitive,” said Parker.

With the legislation expected to come into effect in April, a “number of interesting things” will occur because of the improved intellectual property protection that will come with the shift, he said.

“We are not even past the goal line yet, but we have seen applications coming in from other countries that we have not seen before,” he said. “We have seen new investments in Canada already as those companies are trying to position themselves under a better intellectual property framework.”

That will bring greater competition into Canada’s breeding programs — another boon for producers, he said.

“Breeders have an incentive to develop better varieties, be it for yield, for disease resistance, for stress tolerance, or for end-use characteristics,” said Parker.

“You get an increased number and diversity of crops, as well as varieties. This equates to more choice for farmers.”

And as long as farmers aren’t selling — or buying — brown-bag seed, there are no drawbacks to moving to UPOV ’91, he said.

“Under the current framework, it’s an infringement to sell brown-bag seed. With this new provision, it’s both an infringement to sell as well as to purchase,” said Parker, adding a breeder will also be able to collect royalties off any grain harvested from brown-bag seed.

“When the infringement happens, the breeder is not just going to be seeking compensation on lost royalties. They’re going to be seeking damages, like court costs and investigation costs. That can increase costs quite significantly.”

The take-home message is “don’t engage in brown-bag sales,” said Parker.

“It’s a bad idea — not just because it’s breaking the law, but because it’s denying the breeder an ability to collect and reinvest in breeding programs,” he said.

“There are no negative impacts on farmers who obtain seed legitimately; so long as you made that initial qualifying purchase of certified seed and paid into the system, you’re fine. Use it as long as you like on your farm.”

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“It might slow things down a bit, but nonetheless, we believe that it will be approved by Parliament in early 2015, after which work will need to be done on the regulations that go into making this bill a reality,” said Cole Christensen, communications manager for Alberta Barley.

And the regulations are where things could go sideways for producers hoping to save seed.

“We’ve been assured that the farmers’ privilege to save seed will be guaranteed within the legislation,” said Christensen. “However, we believe we will need to watch this carefully to ensure that nothing changes.

“Basically, it’s written into the legislation, but the actual enforceable rules come in during the regulation phase. They could add any kind of condition on it post-implementation.”

Once it comes into effect, Bill C-18 will amend the Plant Breeders’ Rights Act and bring Canada in compliance with UPOV ’91, a convention created by the International Union for the Protection of New Varieties that sets out the criteria for intellectual property (IP) rights for plant breeding. One of the conditions of the new trade deal with Europe is that UPOV ’91 is ratified in Canada.

“The federal government sees this not just as a step forward for plant breeders’ rights but as part of an overall IP strategy that will help Canada build relationships with key trading partners,” Christensen said.

“It’s a gateway to make trade agreements.”

And once Bill C-18 comes into effect, end-point royalties likely won’t be far behind.

“An amended plant breeders’ rights act wouldn’t necessarily result in the introduction of an end-point royalty, but it would allow the federal government to implement it at any time,” said Christensen.

As federal research funding shrinks and demand for improved varieties grows, end-point royalties seem like “the most logical system” for funding variety development, he said.

“Based on the federal government’s desire to change the current system, the future research in plant breeding in Canada is likely to be done primarily by private companies and, to a small extent, by publicly funded universities,” said Christensen.

“And the most viable way of funding these companies right now seems to be through an end-point royalty.”

One alternative is to “drastically increase the cost of new seed” — sometimes called the “canola model.” In that system, farmers assume the brunt of the risk, while plant breeders continue to be funded through the high cost of seed.

In the end-point royalty system, the cost of seed is “supposed to remain lower,” with a percentage of varietal seeds sales going back to breeders using systems created for checkoff collection, said Christensen. With end-point royalties, farmers and breeders share the risk — but on-farm input costs would go up.

“Farmers will pay more to put in the crop. That’s the reality of the system,” said Christensen.

Regardless of which funding model is used for ongoing variety development, it’s vital that the decision isn’t made solely by “nine guys in a board room in Calgary,” he said.

“No matter how you look at it, farmers will be paying for it,” he said. “No matter what model is chosen, farmer money invested in farmer-funded research needs to be directed and controlled by farmers.”

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That’s the question being posed by the Western Grains Research Foundation, the farmer-run conduit for most of western grain farmers’ investment in agricultural research.

“Breeding is a long-term process,” Garth Patterson, the foundation’s executive director, said at Winter Cereals Manitoba’s recent annual meeting.

“You have to look 10 or 15 years out. You have to start planning for that now if there are new models out there that farmers want to be involved in.”

The foundation has given federal government breeders and researchers $82 million in funding — most of which comes from wheat and barley checkoffs — since 1995. But Agriculture and Agri-Food Canada has said it plans to focus on upstream varietal development, instead of releasing market-ready cultivars.

“They haven’t given us dates, but they have said that to give more space to private industry,” Patterson said.

Although the foundation is committed to funding public research until at least 2020, producers need to decide soon on its future direction — or even if it needs to continue, Patterson said in an interview.

“What’s important for producer groups during the next one to two years is to make some decisions and start implementing plans,” he said. “We can’t wait until 2020. There has got to be a planned transition.”

From the Manitoba Co-operator website:
Canola growers debate UPOV ’91

The biggest thing for farmers growing cereals is the bottom line, and that’s got to improve, said Kent Erickson, who farms near Irma and is chair of the Alberta Wheat Commission.

“What makes money for farmers is more yield,” he said. “Incremental yields is obviously the No. 1 genetic increase we’re looking for.”

There should be a continued focus on improving hard red spring varieties, but better Canada Prairie Spring varieties are also needed,he said.

“There’s a lot of appetite for CPS in the world,” he said. “It’s not as high quality as hard red spring, but our CPS could really fit a market. With a little quality and better yield, we could probably get good profitability for our producers.”

UPOV ’91 supported

The wheat commission supports UPOV ’91 — a stronger form of plant breeders’ rights that Ottawa says will encourage more private-sector plant breeding. It’s looked at the Australian model, where farmer organizations and private companies have formed joint ventures in cereal breeding. While it “isn’t a perfect model,” Australia offers lessons for Canada, said Erickson.

“The Australians have an end-point royalty system,” he said. “That’s the starting point and the principle that we want to start from… I think that is going to bring money back to the table.”

Patterson said his organization wants to do what’s best for farmers, even if that means the foundation plays a smaller role in research.

“We’re asking the big questions like, ‘What does success look like?’” Patterson said. “Is it important to continue to have public varieties, but do you also want to attract the investments that private industry is making and commercializing in other parts of the world so you have choices?”

The Alberta Wheat Commission favours a “three-P approach” in which producers, public bodies and private companies form partnerships, said Erickson.

But at the end of the day, success will only come if there’s a bigger investment in cereal breeding, he said.

“The government has been putting money in, producers have been putting money in, but really, it hasn’t been enough to get us up to speed with everybody else in the world,” he said.

“The dollars that the Australians and the Americans are putting into plant breeding, compared to what we are doing, is kind of a little bit embarrassing.”

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“I hope to debunk some of the myths that are out there…,” Anthony Parker told the Prairie Grain Development Committee’s annual meeting in Winnipeg Feb. 26.

“Farmers’ privilege (to save seed) is clearly entrenched in legislation and there are no immediate changes planned.”

A selling point for some for amending Canada’s Plant Breeders’ Rights legislation through Bill C-18, the Agricultural Growth Act, is the notion that it will allow plant breeders to collect so-called “end-use royalties” on farmers’ grain when delivered to the elevator. But Parker said while the law allows for end-point royalties, they are not automatically invoked after C-18 becomes law.

“There will have to be strong support from the farmer community to do this,” he said later in an interview.

There’s confusion about end-point royalties because the new law allows breeders to seek compensation from harvested crops grown from illegal seed — so-called brown-bagged seed, which is seed grown without compensating the breeder.

“The intent here is really about reducing infringement (of plant breeders’ rights),” Parker said. “It is not a legislated basis for end-point royalties.”

The new law does not affect the ability of farmers who buy seed and pay a royalty to the breeder to save seed from their harvest to plant future crops so long as they have not signed an agreement not to save seed. However, they can’t sell or trade that seed to other farmers for planting.

Brown-bagged seed

Brown-bag seed is already illegal under Canada’s plant breeders’ rights legislation, which conforms to UPOV ’78 (International Union for the Protection of New Varieties of Plants). The new law will extend breeders’ rights allowing breeders to seek compensation at different points in the value chain, “if, and only if” they weren’t compensated when the seed was purchased.

While most farm groups support the legislation — some with provisos — the National Farmers Union (NFU) fears farmers’ traditional right to save seed is at risk. Not so, said Parker in an interview: “Again, that continued practice of farm-saved seed is completely permitted to happen with the legislative amendments.”

But former NFU president Terry Boehm notes the legislation refers to farm-saved seed as a “privilege” not a “right.” And according to Boehm it’s a “hollow privilege” because the new legislation prevents farmers from stocking seed.

“Stocking,” which means stockpiling seed for future sale, is different than “storing,” Parker said.

“There’s nothing in the act that would preclude the act of storing seed on farm to use in subsequent years (as seed by farmers),” he said.

From the Manitoba Co-operator website: Plant Breeders’ Rights (PBR) and Bill C-18

Explicit

Under current legislation farm-saved seed is “implicit,” Parker said. But because breeders’ rights are being expanded beyond seed sales, the farmer’s ability to save seed needs to be “explicit” in the new law, he said.

Boehm also notes that the legislation allows the federal cabinet to limit the farmers’ privilege through regulation. “This is hardly what one would call enshrining a farmer’s right to use their own seed,” he wrote in an opinion piece.

Farm-saved seed is “not an absolute right,” Parker acknowledged, but added the legislation needs flexibility because 330 different crop kinds are covered.

“To say that the same thing will work in the cereal sector, as will work in the potato sector, as will work in the fruit tree sector is somewhat unreasonable,” he said.

No changes to the farmers’ privilege can be made without consulting farmers, Parker added.

According to the NFU, the new law would allow breeders to take draconian measures, such as freezing assets of those suspected of contravening breeders’ rights.

“We have not had, to date, any draconian measures under the PBR act and it’s not expected with these few provisions bringing it up to UPOV ’91 that there will be any draconian measures in terms of enforcement of Plant Breeders’ Rights,” Parker said.

Breaches

Breeders’ rights have been in place since 1991 in Canada. When breaches occur, farmers are usually required to pay the royalties they owe, plus costs.

Under the new law a seed cleaner caught processing brown-bagged seed could be forced to compensate the breeder, Parker said. But seed cleaners can protect themselves by getting farmers to sign waivers.

“There are simple solutions,” he said. “I don’t think there needs to be any concern among those treating or conditioning seed.”

Protecting breeders allows them to get a return on investment, which encourages domestic and foreign breeders to provide improved varieties to Canadian farmers, he said.

“There’s this notion out there that this is a zero sum proposition — if breeders gain more rights then farmers must lose rights,” Parker said. “That is not the case. It is truly a win-win situation. Stronger breeders’ rights result in more farmer benefits.”

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