Bill C-80

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First Reading

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	PART 10
1990, c. 20; 1994, c. 38; 1995, c. 1; 1997, c. 6	PLANT BREEDERS' RIGHTS ACT
	134. *(1) The definition ``protective direction'' in subsection 2(1) of the Plant Breeders' Rights Act* is repealed.**
	(2) The definitions ``agreement country'', ``breeder'', ``country of the Union'', ``infringement'' and ``plant breeder's rights'' in subsection 2(1) of the Act are replaced by the following:
``agreement country'' « pays signataire »	``agreement country'' means any country, or any of the following entities , that is designated by the Commissioner as an agreement country with a view to the fulfilment of a bilateral agreement concerning the rights of plant breeders made between Canada and that country or entity, namely,
	(a) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or
	(b) any territory over which another country exercises a mandate or trusteeship;
``breeder'' « obtenteur »	``breeder'', in respect of a plant variety, means
	(a) if a person acting within the scope of the person's duties as an officer, servant or employee of another person originates, or discovers and develops , the plant variety, that other person, and
	(b) a person not acting as described in paragraph (a) who originates, or discovers and develops, a plant variety;
``country of the Union'' « État de l'Union »	``country of the Union'' means
	(a) any of the following that is designated by the Commissioner as a country of the Union with a view to the fulfilment of a convention constituting a Union for protecting new varieties of plants that includes Canada among its members, namely,
	(i) any country,
	(ii) any international intergovernmental organization,
	(iii) any colony, protectorate or territory subject to the authority of another country or under its suzerainty, or
	(iv) any territory over which another country exercises a mandate or trusteeship, or
	(b) a Member of the World Trade Organization, as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act;
``infringement '' « violation »	``infringement'', in relation to plant breeder's rights, means the doing, without authority under this Act, of anything that the holder of those rights has the exclusive right to do under section 5, or under sections 5.1 to 5.3, as the case may be;
``plant breeder's rights'' « certificat d'obtention »	``plant breeder's rights'' means the rights referred to in section 5, or in sections 5.1 to 5.3, as the case may be;
	(3) Subsection 2(2) of the Act is replaced by the following:
Application of Act to agreement countries	(2) Despite anything in this Act, an agreement country may be designated by the Commissioner for all or any of the provisions of this Act or the regulations in so far as those provisions have reference, express or implied, to the agreement country.
Deemed citizenship, etc.	(3) For the purpose of this Act, a person is deemed to be a citizen of or resident in, or in the case of a corporation to have a registered office in, a country of the Union that is an international intergovernmental organization if the person is a citizen of, or resident in or has a registered office in, any member country of the organization.
	135. (1) The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following:
Nature of plant breeder's rights	5. (1) Subject to this Act, the holder of the plant breeder's rights respecting a plant variety granted before the day on which section 5.1 comes into force has the exclusive right
	(2) Paragraph 5(1)(b) of the French version of the Act is replaced by the following:
	b) de faire du matériel de multiplication de la variété protégée l'emploi répété nécessaire à la production commerciale d'une autre variété végétale;
	136. The Act is amended by adding the following after section 5:
Nature of plant breeder's rights	5.1 (1) Subject to this Act, the holder of the plant breeder's rights respecting a plant variety granted on or after the day on which this section comes into force has the exclusive right to
	(a) sell, and produce in Canada for the purpose of selling, propagating material, as such, of the plant variety;
	(b) make repeated use of propagating material of the plant variety in order to produce commercially another plant variety if the repetition is necessary for that purpose;
	(c) condition propagating material of the plant variety for the purpose of propagating the plant variety;
	(d) export or import propagating material of the plant variety;
	(e) stock propagating material of the plant variety for the purpose of doing any act described in paragraphs (a) to (d); and
	(f) authorize, conditionally or unconditionally, the doing of any act described in paragraphs (a) to (e).
Royalty	(2) Without limiting the generality of paragraph (1)(f) and without prejudice to any rights or privileges of the Crown, where authority is conferred subject to conditions under that paragraph, whether or not the holder of the plant breeder's rights is Her Majesty in right of Canada or a province, the conditions may include a requirement to pay royalty to the holder.
Rights in relation to harvested materials	5.2 Subject to subsection 5.1(2) and the other provisions of this Act, the holder of the plant breeder's rights respecting a plant variety granted on or after the day on which section 5.1 comes into force has the exclusive right to do any of the acts described in any of paragraphs 5.1(1)(a) to (f) in respect of any harvested material, including entire 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 5.1 in relation to the propagating material and failed to do so before claiming rights under this section.
Rights in relation to other varieties	5.3 (1) Subject to subsection 5.1(2) and the other provisions of this Act, the holder of the plant breeder's rights respecting a plant variety granted on or after the day on which section 5.1 comes into force has the exclusive right to do any of the acts described in any of paragraphs 5.1(1)(a) to (f) 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.
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.
Acts not subject to rights	5.4 The rights referred to in sections 5.1 to 5.3 do not extend to
	(a) acts done privately and for non-commercial purposes;
	(b) acts done for experimental purposes;
	(c) acts done for the purpose of breeding other plant varieties, other than varieties referred to in paragraph 5.3(1)(a) or (b), including acts described in paragraphs 5.1(1)(a) to (f) done in the course of breeding other plant varieties; and
	(d) the use of harvested material of the plant variety grown by a farmer on the farmer's holdings for subsequent reproduction by the farmer of the plant variety on those holdings.
Acts not subject to rights	5.5 (1) The plant breeder's rights respecting a plant variety (in this section referred to as the ``protected variety'') granted on or after the day on which section 5.1 comes into force do not extend to acts in relation to material of the protected variety or material of a variety referred to in paragraph 5.3(1)(a), (b) or (c) in relation to the protected variety, or to material derived from any of those materials, if the material is sold in Canada by the breeder or by another person with the breeder's consent unless the acts involve further propagation of the plant variety or an export of material of any of those varieties that enables their propagation and the export is to a country that does not protect varieties of the plant genus or species to which the exported variety belongs and the exported material is not for final consumption purposes.
Meaning of ``material''	(2) For the purpose of subsection (1), ``material'', in relation to a plant variety, means
	(a) propagating material of any kind; and
	(b) harvested material, including entire plants and parts of plants.
	137. Subsection 6(1) of the Act is replaced by the following:
Term of plant breeder's rights	6. (1) The term of the grant of plant breeder's rights shall, subject to earlier termination under this Act, be a period of, in the case of those granted before the day on which section 5.1 comes into force , eighteen years and, in the case of those granted on or after the day on which that section comes into force, twenty-five years , commencing on the day on which the certificate of registration is issued.
	138. (1) The portion of subsection 7(1) of the Act before paragraph (a) is replaced by the following:
Entitlement to apply for plant breeder's rights	7. (1) Subject to section 8 and regulations made under paragraph 75(1)(j.1) , a breeder of a new variety or a legal representative of the breeder may make an application to the Commissioner for the grant of plant breeder's rights respecting that variety if
	(2) Paragraphs 7(1)(b) and (c) of the Act are replaced by the following:
	(b) in any other case, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety in Canada at any time before one year before the effective date of the application; and
	(c) subject to any prescribed exemptions, neither the breeder nor a legal representative of the breeder sold or concurred in the sale of that variety outside Canada
	(i) at any time before four years before the effective date of the application, if the variety is other than a woody plant, or
	(ii) at any time before six years before the effective date of the application, if the variety is a woody plant.
	139. Subsection 10(1) of the Act is replaced by the following:
Priority and dating of application	10. (1) Subject to subsections (2) and 11(1), the effective date of an application is the date specified by the Commissioner as being the date on which the application was accepted for consideration under this Act and, in the case of two or more applications respecting a new variety the breeders of which bred it independently of each other, priority shall be given to the application with the earliest effective date .
	140. Subsection 11(3) of the Act is replaced by the following:
Supporting application given priority	(3) An application given priority under subsection (1) shall be supported by the required material furnished under this Act and the regulations before the expiration of the prescribed period, not exceeding two years, after the last day of the twelve months within which the application is submitted in accordance with paragraph (1)(a).
	141. The Act is amended by adding the following after section 16:
Direction to change denomination	16.1 (1) If, after the grant of the plant breeder's rights in respect of a variety, the Commissioner considers the plant variety's denomination unsuitable for any reasonable cause or has reasonable grounds to believe that the prior rights of another person are prejudiced by its use, the Commissioner may direct the holder to change the denomination, subject to the Commissioner's approval of the new denomination.
Exception	(2) Subsection (1) does not apply in respect of plant breeder's rights granted before the day on which section 5.1 comes into force.
	142. The heading before section 19 and sections 19 to 21 of the Act are replaced by the following:

Bill C-80

PART 10

PLANT BREEDERS' RIGHTS ACT