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Plant Breeders’ Rights Act (S.C. 1990, c. 20)

Act current to 2020-07-15 and last amended on 2019-06-17. Previous Versions

Plant Breeder’s Rights

Marginal note:Nature of plant breeder’s rights

  •  (1) Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right

    • (a) to produce and reproduce propagating material of the variety;

    • (b) to condition propagating material of the variety for the purposes of propagating the variety;

    • (c) to sell propagating material of the variety;

    • (d) to export or import propagating material of the variety;

    • (e) to make repeated use of propagating material of the variety to produce commercially another plant variety if the repetition is necessary for that purpose;

    • (f) in the case of a variety to which ornamental plants belong, if those plants are normally marketed for purposes other than propagation, to use any such plants or parts of those plants as propagating material for the production of ornamental plants or cut flowers;

    • (g) to stock propagating material of the variety for the purpose of doing any act described in any of paragraphs (a) to (f); and

    • (h) to authorize, conditionally or unconditionally, the doing of any act described in any of paragraphs (a) to (g).

  • Marginal note:Royalty

    (2) Without prejudice to any rights or privileges of the Crown, an authorization conferred under paragraph 1(h) may be subject to a condition to pay royalty to the holder of the plant breeder’s rights whether or not the holder is Her Majesty in right of Canada or a province.

  • 1990, c. 20, s. 5
  • 2015, c. 2, s. 5

Marginal note:Rights respecting harvested materials

 Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of any harvested material, including whole plants or parts of plants, that is obtained through the unauthorized use of propagating material of the plant variety, unless the holder had reasonable opportunity to exercise his or her rights under section 5 in relation to that propagating material and failed to do so before claiming rights under this section.

  • 2015, c. 2, s. 5

Marginal note:Rights respecting certain other varieties

  •  (1) Subject to the other provisions of this Act and the regulations, the holder of the plant breeder’s rights respecting a plant variety has the exclusive right to do any act described in any of paragraphs 5(1)(a) to (h) in respect of

    • (a) any other plant variety that is essentially derived from the plant variety if the plant variety is not itself essentially derived from another plant variety;

    • (b) any other plant variety that is not clearly distinguishable from the plant variety; and

    • (c) any other plant variety whose production requires the repeated use of the plant variety.

  • Marginal note:Meaning of essentially derived

    (2) For the purpose of paragraph (1)(a), a plant variety is essentially derived from another plant variety (in this subsection referred to as the “initial variety”) if

    • (a) it is predominantly derived from the initial variety or from a plant variety that is itself predominantly derived from the initial variety and it retains the essential characteristics that result from the genotype or combination of genotypes of the initial variety;

    • (b) it is clearly distinguishable from the initial variety; and

    • (c) it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, except for the differences that result from its derivation from the initial variety.

  • 2015, c. 2, s. 5

Marginal note:Non-application of rights

  •  (1) The rights referred to in sections 5 to 5.2 do not apply to any act done

    • (a) privately and for non-commercial purposes;

    • (b) for experimental purposes; or

    • (c) for the purpose of breeding other plant varieties.

  • Marginal note:Farmers’ privilege

    (2) The rights referred to in paragraphs 5(1)(a) and (b) and — for the purposes of exercising those rights and the right to store — the right referred to in paragraph 5(1)(g) do not apply to harvested material of the plant variety that is grown by a farmer on the farmer’s holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety.

  • 2015, c. 2, s. 5

Marginal note:Non-application of rights

  •  (1) The rights referred to in sections 5 to 5.2 do not apply to any act done in relation to material of a plant variety after the material has been sold in Canada by the holder or with the holder’s consent, unless that act involves

    • (a) the further propagation of the plant variety; or

    • (b) the export of material of the plant variety to a country that does not protect varieties of the plant genus or species to which the exported plant variety belongs if the exported material is not intended for consumption.

  • Marginal note:Definition of material

    (2) For the purpose of subsection (1), material means propagating material and harvested material, including whole plants and parts of plants.

  • 2015, c. 2, s. 5

Marginal note:Term of plant breeder’s rights

  •  (1) The term of the grant of plant breeder’s rights, subject to earlier termination under this Act, shall be a period of 25 years in the case of a tree, a vine or any category specified by the regulations and 20 years in any other case. The period begins on the day on which the certificate of plant breeder’s rights is issued.

  • Marginal note:Payment of annual fee

    (2) A holder of plant breeder’s rights shall, during the term of the grant of those rights, pay to the Commissioner, within the prescribed time, the prescribed annual fee.

  • 1990, c. 20, s. 6
  • 2015, c. 2, s. 5

Applications for Plant Breeder’s Rights

Marginal note:Application for plant breeder’s rights

  •  (1) A breeder or the breeder’s legal representative may make an application to the Commissioner for the grant of plant breeder’s rights respecting a plant variety if, in the case of an individual, the breeder or legal representative is a citizen of, or is resident in, Canada, a country of the Union or an agreement country or, in the case of a person that is not an individual, the breeder or legal representative has an establishment in Canada, a country of the Union or an agreement country.

  • Marginal note:If two or more breeders

    (2) If a plant variety is bred by two or more breeders otherwise than independently of each other, the persons entitled to make an application for the grant of plant breeder’s rights respecting that variety may make an application jointly and, if any of those persons refuses to do so or information regarding their whereabouts cannot be obtained through diligent inquiry, the remainder of those persons may make an application for that grant.

  • 1990, c. 20, s. 7
  • 2015, c. 2, s. 6

 [Repealed, 2015, c. 2, s. 6]

Marginal note:How application to be made

  •  (1) An application for the grant of plant breeder’s rights must

    • (a) include the prescribed information and be made in the prescribed manner;

    • (b) be accompanied by the prescribed fee;

    • (c) be supported by the prescribed documents and any other prescribed material; and

    • (d) in the case where the applicant wishes to request that those rights be exempted from compulsory licensing under subsection 32(1), include the request and his or her reasons for it.

  • Marginal note:Agent required for non-resident applicant

    (2) An applicant that, in the case of an individual, is not resident in Canada and, in the case of a person that is not an individual, does not have an establishment in Canada shall submit the application through an agent resident in Canada.

  • 1990, c. 20, s. 9
  • 2015, c. 2, s. 7
 
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