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Emily Chow is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.
I wouldn’t consider myself to have a “green thumb” or have been born with plant parent instincts. Rather, it’s taken various (unsuccessful) experiments with succulents, cacti, annual and perennial flowers, and lush tropical plants to learn how to notlovingly flood them with water, despite my best intentions. Fast forward to the present; moving to Ontario for law school meant that I had to entrust my plants to my brother, who made it quite clear that he didn’t know what he was doing. Moving into my dorm at Osgoode was even more exciting when I realized I could welcome some new sprouts and furnish the space accordingly. I was also excited to continue experimenting with plant propagation.
You can imagine my surprise when Iread thewords “” or “ prohibited” in all capital letters, bolded, and printed on the plastic care and instruction tags attached to my newly acquired plants. With a few weeks’ worth of law school, Google, and a healthy dose of procrastination, I went down a rabbit hole of plant patents and breeders’ rights to see if I could be fined or arrested for propagating some of my pothos . Coming out at the other side of that late-night exploration, I’m reassured that plant enthusiasts, users, andbudding plant parents like mewill notfacegrave repercussions.Below, Ipresentsome preliminaryfindings andpoint outfurtherresourcesthat may interest readers.
In Canada,protection of plant varieties and (“PBRs”) fall under the scope of the , which was revised in 2015to adopt thewidely recognizedPBRsare not patents, but a lower-cost, more accessible mode of protectinglegalrights withoutseeking exclusiveownershipofa "higher life form."In Canada,as held by the Supreme Court in the now-famous case, the only patentable organisms are those categorised as "lower life forms" which include unicellular organisms (e.g. bacteria), cell clusters (moulds and yeast), and (merged cell lines used to test for the presence of antibodies during an induced immune response). Although the U.S. allows entire plants to be patented, Canada does not. In ,the SCC outlines a clear distinction between the uniqueness of a plant (potentially PBR eligible) versus the innovative production or technique associated with the life form (potentially patentable).
PBRsprovidelegal protection inthethey are granted in,allowingholdersto receive royaltiesand controlany operations involving their protected variety.Thisincludesprocesseslike the production, sale,andimports/exportof the plant variety.In order to beeligible for protection,potential plant candidatesmust be Candidates are published in the Canadian government’sand held toindustry scrutiny.If there are no objectionsafter six months,the plantbecomes eligible for PBRs.
The 2015 revision to thePlant Breeders’ Rights Act expanded the scope of rights that PBR certificates grant, among others.
Why are PBRs important?In ourever-changing economy, growing population,andglobalclimate, it can besaid that it is in humanity’sbest interest to protect plant varieties and promoteagricultural innovation—not only to addressthe realities ofclimate change, but to. Suppose a new variety of wheat is more drought-resistant than existing plants. Among other , this characteristic would be especially useful for farmers and food systems, as —includingin—become more extreme over timedue to, which ultimately affects crop yield and quality. SME farmers in other countries also benefit from having an increased market of possible seeds to grow,
As a final thought, I want to revisit the premise of this article. Propagating pothos or monstera cuttings for personal, non-commercial use, despite infringing on PBRs, will very likely not land you in jail, nor saddle you with a hefty fine. The onus of enforcing PBRs rests on the holder, and the likelihood of plant breeders enforcing their rights on the everyday plant parent (assuming their propagation has negligible or uncompetitive effects on the larger commercial market) appears extremely small. However, propagating protected plants (especially crop varieties), even for personal uses such as gifts or home gardens, bars plant breeders from collecting the full amount of the royalties they are entitled to and reducing resources that could be used toward future innovation. If you have the resources to do so, consider purchasing individual plants in support of local farmers and plant breeders, or at the very least, check the plant tag for any trademark symbols, notices prohibiting reproduction, or indications that the plant in question is legally protected before you propagate it.
Further reading:
The Canadian Food Inspection Agency’s “Guide to Plant Breeders’ Rights in Canada”:
The Canadian Food Inspection Agency’s database of registered crop varieties in Canada:
Impact Assessmentofplant variety protections in Vietnam, a decade after UPOV membership:
A comparison between U.S. and Canadian frameworks of patents and plant breeders’ rights:
The World Intellectual Property Organization's look atexisting supportsforenactingUPOVpolicies, and the potential tofacilitatesui generisplant protections:
Comparing plant variety protections in all African World Trade Organisation member countries:
For those looking for plant care tips:
Plant Kween, a Black queer femme plant influencer whose tips for indoor plant care helped me: