Tracking down illicit seed sellers

Private investigators are helping the seed trade 
enforce plant breeders’ rights

Undercover private investigators are helping nab seed dealers suspected of contravening Canadian Plant Breeders’ Rights (PBR) regulations, the executive director of the Canadian Plant Technology Agency (CPTA) says.

Lorne Hadley told the Manitoba Seed Growers’ Association’s annual meeting in Winnipeg Dec. 10 his agency has co-ordinated 70 investigations resulting in “a number of cases going to court,” all of which were settled prior to trial. In four cases, alleged violators paid seed companies $200,000 in compensation.

Hadley said the agency sometimes turns to private investigators, usually retired police officers, to go undercover to buy seed from suspected violators.

“To pursue a lawsuit in Canada you must present the facts as you know them,” he said. “So in a Plant Breeders’ Rights case that involves the sale of seed, the best evidence is for you to make a purchase.”

But more often, it just takes a warning letter or phone call to get compliance from people on the wrong side of the seed laws, Hadley said. The CPTA has issued 700 warning letters and emails to alleged PBR violators, he said.

Either way, the goal is to convince farmers that breeders need compensation for their innovation, which will encourage more innovation and ultimately benefit farmers, he said.

“No CPTA member makes a profit out of enforcement,” Hadley said. “It’s too expensive.”

Longer reach

New Plant Breeders’ Rights (PBR) rules under the international treaty UPOV ’91 ratified in Canada almost a year ago allow seed companies to enforce their rights throughout the grain system.

The change has important implications for farmers, grain buyers and seed cleaners.

UPOV ’91, which is designed to compensate breeders for their work through seed sales, is not retroactive. Only a few varieties to be grown commercially this spring in Manitoba, including spring wheats Prosper and Elgin ND, are protected under it. But going forward virtually all new varieties will fall under UPOV ’91.

One of the most important changes under UPOV ’91 is that breeders’ rights have a longer reach. The new rules don’t apply only to illegally purchased seed as they did under UPOV ’78; they also apply to the grain produced from that illegal seed. As well, seed companies can now go after those who sell seed illegally by not paying the breeder a royalty, plus the farmers who buy it and those who buy, store and/or condition grain grown from illegally purchased seed.

“Before (UPOV ’91) I had to catch someone selling brown bag seed,” Lorne Hadley, executive director of the Canadian Plant Technology Agency (CPTA), told the Manitoba Seed Growers’ Association’s annual meeting in Winnipeg Dec. 10. “Now all we have to do is find where it is.”

The CPTA, which currently has 25 seed company members, was set up in 2002 to monitor PBR infractions, co-ordinate enforcement and promote compliance.

Compliance

The easiest way for farmers to comply with PBR is to buy certified seed, Hadley said. Those selling certified seed collect and remit a royalty to the varieties’ owner.

Farmers who buy certified seed can keep and grow that seed indefinitely, but cannot sell or give it away to another farmer to grow, even as common seed. The exception is when they have signed a contract preventing them from saving their own seed. That’s common with Roundup Ready and Liberty Link varieties.

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Elevators and seed-cleaning plants that buy or treat grain grown from illegally purchased seed protected under UPOV ’91 can be held liable, Hadley said.

If that happens it could prompt elevators and cleaners to sue the farmers who delivered that grain.

It’s a message Hadley says pedigreed seed retailers must get to their farmer-customers.

“We want you (retailers) to understand you have to have the conversation and we want you to have the background to do it well,” Hadley said, adding his office and the Canadian Seed Trade Association have fact sheets and signs explaining PBR.

Legally purchased

Major grain companies are paying attention. Variety declaration forms farmers sign pledging to deliver only registered varieties, have been modified committing farmers to deliver only crops grown from legally purchased seed, Western Grain Elevators Association executive director Wade Sobkowich said in an interview.

“We just want to make sure that we are complying with our obligations under UPOV ’91,” he said.

“Changes to the declaration also raise awareness among farmers they do have to comply with this.”

Under the 1978 Convention of the International Union for the Protection of New Varieties of Plants (UPOV ’78), variety protection lasts 18 years. Most UPOV ’91 varieties are protected 20 years — 25 years for plants such as grapes and trees.

Plant variety owners must enforce their rights themselves, which can lead to lawsuits against alleged infringers in civil court.

There are three types of violators — those who didn’t know better, those unwilling to admit they made a mistake and those who set out to cheat the system and capitalize on another’s innovation, Hadley said.

The latter group accounts for an estimated seven to 12 per cent of annual Canadian seed sales. They charge almost as much as pedigreed seed sellers, but enjoy better margins because they don’t remit royalties or pay pedigreed inspection fees.

And they’re shrewd. In one case an alleged violator told an undercover investigator he’d only sell seed to him if “one of my good customers makes a personal pledge that you’re not an undercover operator,” Hadley said.

“Those are the guys who are the problem. We want to drive their customers back to dealing in the pedigreed seed system.”

About the author

Reporter

Allan Dawson is a reporter with the Manitoba Co-operator based near Miami, Man. Covering agriculture since 1980, Dawson has spent most of his career with the Co-operator except for several years with Farmers’ Independent Weekly and before that a Morden-Winkler area radio station.

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