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“It’s high time intellectual property law went to pot”
Tapas Pain, Invention Development Centre
Tapas Pain is a lawyer practicing in intellectual property (patents, copyright, trade-marks, plant breeder’s rights, etc.) as a sole practitioner in Vaughan, Ontario. Tapas holds a Master of Science in Pharmacy, which he completed at the University of Toronto, in conjunction with the Addiction Research Foundation, and a law degree from the University of Ottawa. Tapas is an advocate for the commercialization and exploitation of hemp-based products. Tapas has advised hemp-based businesses regarding intellectual property issues, including a well-known hemp-producing facility in Barrie, Ontario.
(Originally printed in Lawyers Weekly, 22 August 2003, p. 20)
Canada is considering changing its laws regarding the possession of marijuana. Does this in any way mean that the laws of intellectual property will go to pot? Let’s hope so!
Although decriminalization of simple possession is a good start, it may not be going far enough. The government should consider decriminalizing the offence of cultivation of non-industrial marijuana (cannabis) as well. This would likely open a wonderful opportunity for Canada for so many reasons, the intellectual property reasons being just one set.
The relevant legislation is the Controlled Drugs and Substances Act, which states that it is an indictable offence to cultivate cannabis; that offence is punishable by a term of prison not exceeding seven years.
Decriminalization would allow legitimate cultivators (expert in their art of controlling, reproducing, cloning and breeding superior forms of cannabis) to go from being criminals to being intellectual-property- producing members of society.
Although there is no explicit prohibition in the Plant Breeders’ Rights Act (PBRA), against persons seeking protection for varieties of cannabis, an application by an individual to protect such varieties would of course be tantamount to opening one’s windows and screaming at the top of one’s lungs “Here I am, please take me to prison.” Intellectual property rights are of little comfort in prison.
A grant of plant breeder’s rights confers on the grantee, for a term of 18 years commencing on the day the certificate of registration is issued pursuant to the PBRA, the exclusive right:
(a) to sell, and produce in Canada for the purpose of selling, propagating material, as such, of the plant variety;
(b) to 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) where it is a plant variety to which ornamental plants or parts thereof normally marketed for purposes other than propagation belong, to use any such plants or parts commercially as propagating material in the production of ornamental plants or cut flowers; and
(d) to authorize, conditionally or unconditionally, the doing of any of the aforementioned acts. (PBRA, s. 5(1))
With decriminalization of cultivation, cultivators will be given the opportunity to openly seek protection for their intellectual property. Their products could become commercially protected and legitimate, and could in turn benefit Canada commercially.
Canada would undoubtedly tax the commercial production and sale of cannabis, as well as regulate this area at large. Taxation of manufacture, distribution and sale of commercially produced cannabis could be applied to areas such as addiction counseling, education and medical care, as taxes on cigarettes and alcohol are.
The cannabis-consuming community has a strong desire to see improved and quality-controlled varieties of marijuana enter the market for numerous reasons. A corresponding protection incentive for plant breeders (through the PBRA) can assist in satisfying this desire.
For example, if certain varieties can be produced for superior function in lowering intraocular pressure in the human eye with milder euphoric effect, then these varieties will be commercially beneficial in the management of glaucoma. The protection of such varieties will encourage commercialization and continuing quality control. It will also encourage controlled medical research.
Chemotherapy patients might benefit from varieties that produce a stronger sense of hunger, to assist in providing an appetite amidst nausea. Such varieties may be bred to produce either a stronger or weaker sense of euphoria as required. Controlled commercial production could provide the basis for controlled medical research.
Of course there is also the recreational market. Recreational consumers look for superior products as well — products that have quality control. Just consider the annual Cannabis Cup in Amsterdam. How many tourists flock to sample and judge the finest cultivated varieties? The recreational market is partially composed of connoisseurs willing to pay top dollar for products of fine distinction, similar to purchasing and smoking fine Cuban cigars or drinking fine wines and brandies.
Protection for these cultivators through the PBRA will encourage a large and viable (yet presently underground) commercial sector to be legitimate and contribute to Canada’s treasury. This will also invite foreign investment from cultivation experts around the world and elevate Canada’s status for producing and protecting a valued commodity arguably useful in recreation and medicine.
It might also assist a travel and tourism market still lagging from the scarring effects of severe acute respiratory syndrome (SARS) and constant threats by foreign military activity. Although this may not be a tourism image which some desire, the point is that this path would generate tourism activity. Canada, like Jamaica or Amsterdam, has immense tourist drawing power, and marijuana would form a single aspect only of the tourism market. People would still come to Canada for hockey, skiing, horseback riding, cultural diversity, cleanliness, plush camping grounds, and superior restaurants.
The growth and income opportunity for the government of Canada could be significant. Canada can achieve this opportunity by putting an end to barbaric laws spun from ignorance and racism.
If Canada is truly a country that encourages the rehabilitation and reintegration of members of society who have strayed from the legal norm (as opposed to a country that encourages a punitive criminal justice system), this is an opportunity to prove it. To change cultivators from criminals to intellectual property and commercial venture producers is an excellent way for Canada to do so. The decision to maintain criminal prohibitions against the cultivation of cannabis is difficult to defend when considering the commercial and intellectual property benefits of decriminalization.