APPENDIX 7
Trade Related Intellectual Property Rights
(TRIPs) and Farmers' Rights
"The TRIPs Agreement creates potential
for disastrous conflicts between the technologically-advanced
and less technologically advanced countries," said Philomenon
Yang, the Cameroon Ambassador, speaking on behalf of the African
Group at the Intersessional Meeting of the UN Convention on Biodiversity
(CBD) in July 1999. [2]
A major battle at the WTO Ministerial Meeting
in Seattle will be on the life patent provisions of WTO's Trade
Related Intellectual Property Rights (TRIPs) agreement. One small
paragraph, Article 27.3(b), has already sparked a clear North/South
divide. Article 27.3(b) [3]of
the TRIPs agreement requires WTO members to provide intellectual
property rights over plants and animal varieties. The controversy
centres around how this could impact on the traditional right
of farmers to save, exchange and sell seed.
Communities across Asia, Africa and Latin America
support global food security through their farming, indigenous
knowledge and cultural systems. At the centre of these practices
is that of saving, exchanging and selling seeds, which has been
the right and practice over centuries for millions of subsistence
farmers across the developing world.
The TRIPs agreement is controversial because
it recognises patents on plants that have been developed through
biotechnology using plant varieties that themselves are the result
of years of cross breeding by farmers. This implies that TRIPs,
does not recognise communities' rights over their resources but
those of individuals and companies claiming the patents as their
own inventions.
Already, patent offices have granted patents
to multinational companies on staple crops in the developing world
such as basmati rice. This is dubbed "biopiracy" by
developing countries [see case studies below].
Instead of TRIPs helping development and fostering
trade, the governments in the South are bogged down financially
and technically in implementing WTO agreements. India has a backlog
of 30,000 patents with another 13,000 joining the queue between
December 1998 to July 1999. It takes from five to six years to
grant a patent and the designated offices to perform this function
are not equipped to take on such a huge rush. (The Hindustan
Times, New Delhi, 28.8.99)
Although, article 27.3(b) provides an exclusion
from patentability of plants and animals, and essentially biologically
processes for the production of plants or animals, the provision
requires members to protect plant and animal varieties through
patents or an effective sui generis—"of its
own kind"—system.
There is no agreement within the WTO on what
an "effective sui generis system" means. Industrialised
nations are interpreting it as the model provided by the Union
for the Protection of New Varieties of Plants (UPOV). The UPOV
is a narrowly defined agreement which provides limited rights
to farmers and accepts the concept of patenting of plant varieties.
But developing countries are in the process of developing their
own sui generis legislation, which is WTO-compatible and suits
their country requirements and protects farmers' rights.
The life patent provisions of Aricle 27.3(b)
of TRIPs are up for review in November 1999, with a full review
of the TRIPs Agreement in 2000. Though the review is part of a
built-in agenda, there is a great uncertainty on the nature and
scope of the review. The US and the EU think the review should
form purely on implementation of the provisions (which applies
to the developed countries, since the developing countries are
still to implement TRIPs); whereas developing countries see it
as a "substantive" review of the provisions themselves.
ACTIONAID
RECOMMENDATIONS
The same logic that informed a recent Anglo-American
agreement between Tony Blair and Bill Clinton to protect from
patenting the 400,000 genes that control the human body—because
concerns for the common good of humanity—should inform decisions
on patenting of life forms in food and agriculture.
In the 1999-2000 review governments should:
— support an amendment to Article 27.3(b)
that would enable WTO members to exclude all genetic resources
for food and agriculture from the TRIPs agreement;
— recognise and protect the traditional
knowledge, innovations, practices and technologies of indigenous
people and farming communities;
— ensure that the provisions of the
Convention on Biological Diversity (CBD) take precedence over
the WTO TRIPs Agreement. This relates particularly to Article
8j of the CBD, which obliges member states to recognise and protect
the knowledge, innovations, practices and technologies of indigenous
and local communities which is not recognised under the TRIPs
agreement; and to Article 15 of the CBD that recognises the sovereign
rights of States over their biodiversity and genetic resources
as well as the requirement of prior informed consent of States
and local communities and indigenous peoples when accessing such
resources and related community);
— ActionAid urges governments to halt
the commercial introduction of GM seeds where these may impact
on farmers' rights and food security; and freeze the use, shipment
and sale of GM seeds to allow full socio-economic and scientific
review into their impact.
PATENTS AND
BIODIVERSITY
Developing countries are the source of 90 per
cent of the world's biological resources. (India is home to 45,000
plant species and 75,000 animal species).
Yet developed countries and their transnational
companies hold 97 per cent of all patents worldwide. Since 1985
there have been 10,778 patents on plants registered in the US.
Overall, patent applications at the World Intellectual Property
Organisation have soared from 3,000 in 1979 to 67,000 in 1997.
Patents grant monopoly power to the patent holder.
Nowadays it can cost $1 million to file an international patent.
And price rises go hand in hand with monopoly power and patent
protection. In the US, the cost to farmers of seeds, fertilizers
and agricultural chemicals shot up by 86 per cent between 1987-97.[4]
The US International Trade Commission claims
that US industry is losing $100-$300 million per year because
of "weak" intellectual property protection in the developing
world.
However according to the US-based Rural Advancement
Foundation International (RAFI), if contributions of peasants
and tribespeople from the developing world are taken into account,
the US would owe Southern countries $2.7 billion.[5]
Brazil estimates that this "biopiracy" costs $9 million.
As one Southern analyst puts it: "patents
provide monopoly domination not only through technological supremacy
but also by extending control over the biological wealth and the
traditional knowledge of the gene-rich developing countries".[6]
The Indian Government has challenged successfully
a patent on Turmeric, (see case study below) but it is very expensive
for Southern groups to challenge a bad patent. Pakistani rice
growers were thwarted in September this year from challenging
Rice Tec's patent on basmati rice when American lawyers demanded
a deposit of £300,000. (The Guardian, 15 September
1999.)
Biopiracy Case Study 1: turmeric
In March 1995, two expatriate Indians at the
University of Mississippi Medical Centre (Suman K Das and Hari
Har P Cohly) were granted a US patent (US 5,401,504) for turmeric
to be used to heal wounds. The Indian Council for Scientific and
Industrial Research (CSIR) filed a case with the US Patent Office
challenging the patent on the grounds of "prior art"
ie existing public knowledge. CSIR said turmeric has been used
for thousands of years for healing wounds and rashes and therefore
its use as a medicine was not a new invention. The claim had to
be backed by written documentation claiming traditional wisdom.
The CSIR went so far as to present an ancient Sanskrit text and
a paper published in 1953 in the Journal of the Indian Medical
Association. The US Patent Office upheld the objection and cancelled
the patent (Trade & Development Centre: A Joint Venture of
the World Bank and the World Trade Organisation). [7]It
also cancelled several other patent applications pending for turmeric.
Biopiracy Case Study 2: Karela
The US law does not take into account the use
of the technology elsewhere in the world. It encourages biopiracy.
On 4 May 1999 the United States Patent Office granted a patent
(US 5,900,240) to a New Jersey-based company Cromak Research Inc,
for an edible herbal mixture comprising karela, jamun, gurmar
and brinjal. Karela juice has long been used in India as an anti-diabetic
mixture and has been documented in authoritative treatises such
as Wealth of India and the Compendium of Indian Medicinal Plants.
(The Hindustan Times, New Delhi, 1999). While this patent
was taken out of the mixture of the above and not on the whole
vegetable or fruit, it still raises serious concerns about the
exploitation of indigenous and traditional Indian knowledge.
Biopiracy Case Study 3: Quinoa
In 1994, two scientists from Colorado State
University received US patent 5,304,718 on Bolivian quinoa, which
is a staple food crop in the Andes, particularly for the Quechua
and Aymara people in Chile, Bolivia, Peru and Ecuador. The broad-spectrum
patent was not limited to a single hybrid, but covered any quinoa
hybrid derived from "Apelawa", the male sterile cytoplasm
found in Quinoa, including 36 traditional varieties. Bolivia,
exports quinoa worth an estimated $1 million each year. The patent
was abandoned after pressure from indigenous and campaigning groups.
But if this patent had got into the hands of commercial businesses
they would have been able to prevent Bolivian exports of quinoa
to the United States. This would have had serious consequences
for the thousands of Bolivian smallholders who grow quinoa for
export.
Biopiracy Case Study 4: Brazzein berries
Researchers from the University of Wisconsin
gained three patents (US 5,326,580; 5,346,998; 5,527,555) on proteins
isolated from the brazzein. The berry is indigenous to Gabon and
is 2,000 times sweeter than sugar. Known locally as J'oublie,
its qualities have long been known by West Africans. The researcher,
Goran Hellekant, watched locals each brazzein and decided "there
was something of value there," according to RAFI. The university
claims the researcher is the sole "inventor" of the
potentially lucrative sweetener.
The US sweetener market is $2 billion and annual
world-wide sales top $100 billion. Scientists isolated and sequenced
the DNA encoding for the production of brazzein's sweet protein
and then worked on ways to produce brazzein in the laboratory,
thereby eliminating the need to grow it in Africa.
A University spokesman told RAFI that brazzein
"is an invention of a UW-Madison researcher" and "Wisconsin
has no connection to Gabon". One claim for the sweetener
made in patent number US 5,527,555 is to "provide brazzein
in large quantities, at low cost, by artificial means".
Local knowledge and innovation of the West African
people has not been recognised, whereas the isolation and reproduction
of the berry in a US laboratory has.
Biopiracy Case Study 5: Neem
Natural extracts from the seed of the neem tree
which is found across Asia, especially India, are the key ingredient
in three new commercial products registered by the US Environmental
Protection Agency for pest and disease control. Their findings
were that neem extracts can control pests such as whiteflies,
aphids, mealy bugs and mites. Also that neem can protect ornamental
and food crops against fungus diseases such as rusts and powdery
mildew that attack leaves. The products, the first to control
insects and fungi at the same time, were developed under a co-operative
research and development agreement between ARS and WR Grace and
Company of Columbia, (patents 5,298,251; 5,356,628; 5,372,817;
5,405,612; and 5,409,708)[8].
Overall, there are 70 patents on products from
the neem tree. Dried neem leaves have been used for centuries
in India to protect clothes and grains against fungus and the
"find" is not new. Patents encourage such misappropriation
of indigenous knowlege.
Biopiracy Case Study 6: Basmati rice
India grows 650,000 tonnes of Basmati rice annually.
Basmati covers 10-15 per cent of the total land area under rice
cultivation in India and exports were 488,700 tonnes and earned
the exchequer Rs 11.2 billion ($280 million) in 1996-97. Basmati
rice has been one of the fastest growing export items from India
in recent years. The main importers of Indian Basmati are the
Middle East (65 per cent of Basmati Exports), Europe (20 per cent)
and USA (10-15 per cent). At $850 a tonne, Indian Basmati is the
most expensive rice imported by the EU compared to $700 a tonne
for Pakistani Basmati and $500 a tonne for Thai fragrant rice.
Indian Basmati exports to the EU in 1996-97 amounted to nearly
100,000 tonnes.
On 2 September 1997, the Texas-based Rice Tec
Inc was granted US patent 5,663,484 on Basmati rice lines and
grains. Rice Tec gained patent rights on Basmati rice and grains
while already trading in its brand names such as Kasmati, Texmati
and Jasmati. This patent allows Rice Tec to sell a "new"
variety of Basmati, which it claims to have developed under the
name of Basmati, in the US and abroad.
The following abstract from patent number 5,663484,
issued by the US Patent and Trademark Office (USPTO) demonstrates
how broad a patent can be: "The invention relates to novel
rice lines and to plants and grains of these lines and to a method
for breeding these lines. The invention also relates to a novel
means for determining the cooking and starch properties of rice
grains and its use in identifying desirable rice lines."
The Basmati variety, on which Rice Tec has claimed
a patent, has been derived from Indian Basmati crossed with semi-dwarf
varieties, including indica varieties. Thus the patent is for
a variety that is essentially derived from a farmers' variety.
It is simply cross-breeding. Therefore it should not be treated
as novel and the patent falsely claims a derivation as an invention.
(Basmati Rice Patent, RAFI Geno-Types, April 1998.) Basmati is
unique to the Punjab border region of India and Pakistan; in the
same way that champagne is unique to a specific area of France.
According to a dossier by Research Foundation
for Science and Technology, the Basmati patent is a clear case
of biopiracy and represents a theft in three ways:
— It is a theft of collective intellectual
biodivesity heritage of Indian farmers who have evolved and bred
Basmati varieties.
— It is a theft from Indian traders
and exporters whose markets are being stolen by the theft of Indian
aromatic rice varieties.
— It is a theft of the name "Basmati"
which describes the aromatic characteristics of the rice.
(Basmati Biopiracy, Research Foundation
for Science, Technology and Ecology India. July 1998.)
IPRS AND
INNOVATION
The argument that intellectual property rights
protection encourages innovation is not well placed. The economic
benefits and costs of IPRs are not clear-cut, as the World Bank
admits in its 1998-99 World Development Report, Knowledge for
Development. Patents can have anti-competitive effects by securing
and strengthening the position of market leaders and limiting
the entry of new competitors. The report admits that "tighter
IPRs can disadvantage developing countries in two ways: by increasing
the knowledge gap and by shifting bargaining power towards the
producers of knowledge, most of who reside in industrial countries".
Furthermore, studies carried out in the UK and USA have indicated
patents protection was not neccessary for innovation in the industrial
development of these countries. [9]Studies
suggest that patents are used to block other companies from entry
into the market. [10]
For example, partly as a result of the extension of plant variety
protection and the willingness of US courts to extend utility
patents to organisms, the number of independent seed companies
worldwide has declined markedly over the last two decades.
PATENTS AND
POOR FARMERS
In the developing world, only 10 per cent of
seed is bought cocmmercialy, many poor farmers buy seed only once
in five years.
ActionAid's analysis is that patents and other
intellectual property rights protection on genetic resources for
food and agriculture can decrease farmers' access to seed, reduce
efforts in public plant breeding, increase loss of genetic resources,
prevent seed/plant sharing and can put poor farmers out of business.
Many argue that farmers have a choice between
using local or proprietary seed. ActionAid supports their right
to choose but believes that without education and awareness programmes
to balance the incentive packages and marketing propaganda of
the agrochemical companies, choices may be poorly informed. Choice
is inevitably reduced as powerful multinational companies increasingly
take over their smaller competitors.
Once a plant is patented and farmers buy the
seeds, companies can insist that farmers purchse new seeds every
year. Seeds are often sold in package with fertiliser, herbicides
and pesticides. Poor farmers using the new patented varieties
thereby increase their dependence on the market and lose their
traditional rights to save and exchange seed and to innovate by
cross breeding these seeds with other varieties.
New patented varieties generally require high
cost fertiliser and chemical inputs, which can lead to increased
indebtedness. The use of high-tech seeds is also closely associated
with mono-cropping which restricts and reduces agro-biodiversity
while exposing farmers to higher levels of risk. Farmers growing
single crops are more vulnerable to market fluctuations, diseases
and environmental problems. This compromises livelihood security
and may impact adversely on food security both locally and nationally.
PATENTS AND
LIVELIHOODS
Agriculture is more than a means of earning
an income for the farmers in the South—it is a way of life.
ActionAid believes that the right to livelihood, a basic human
right, will be threatened by patents on life in food and agriculture.
This is especially true for developing countries where the majority
of people depend on agriculture for their livelihood.
As patenting and monocropping destroy biodiversity
there will be adverse impacts on women who are the users and preservers
of biodiversity in the South and on indigenous communities who
are dependent on biodiversity for their livelihoods.
Citizens' groups are resisting IPRs in their
own way. In India for example:
The village of Pattuvam in Kerala documented
its biodiversity and genetic resources in a biodiversity register
and declared its genetic material free from corporate control.
The legal basis of the Pttuvam action is the seventy-third constitutional
amendment to the Indian Constitution which has mandated radical
decentralisation of powers to village level institutions such
as the panchayat and village bodies like the gram sabha
(village assembly).
(Alvares, Claude. A Village in Keral Bucks
Gatt over Control over Genetic Resources. Goa Foundation.)
Rural communities around India are organising
into local level groups and challenging the WTO to take decisions
on "their" biological resources. Members of Gram
Sabhas in India are lodging a protest with the Director General
of WTO. In a letter to Mike Moore, they ask the WTO "to immediately
amend TRIPs and exclude biodiversity from your global IPR regime
acknowledging our local rights to make laws and determine ownership
and use patterns and to settle disputes".
(Navdanya Trust, rfste@del6.vsnl.net.in)
Case Study: Pakistan under pressure to dilute
its IPR legislation
The US transnational (TNC) Monsanto has worked
overtime to get Pakistan to dilute a proposed law that will extend
protection to plant varieties under the Trade Related Property
Rights (TRIPs) agreement.
Officials in the Pakistani Ministry of Food
and Agriculture say Monsanto has been sending "unsolicited
suggestions" for incorporation into the Plant Breeders Rights
Act, which is being drafted to meet international obligations
under the TRIPs agreement.
"Monsanto is also pulling powerful strings
to influence the legislative process in its favour sending letters
to government officials, holding meetings with politicians,"
said a ministry official, requesting not to be named.
The TRIPs agreement requires signatories to
extend protection to plant varieties either through patents of
a sui generis system.
Pakistan has opted for the latter of a locally
devised system in order to provide maximum protection to farmers
against TNCs that are now eyeing the lucrative seed markets in
developing countries.
A government commitee with representatives from
the Ministries of Commerce, Agriculture and Industries is working
on a draft Plant Breeders Act 1999. The proposed law will also
bind the owner of the genetically modified or new transgenic variety
to pay compensation for hazards and damages, if caused by the
use and handling of the transgenic variety.
In a letter to the chief of the government's
Seed Certification Department dated August 16, Monsanto's Managing
Director, Dr A Rehman Khan, asked for the deletion of this clause
saying it will be unacceptable to the TNC. "In the presence
of this clause, anybody from public can sue us and ask for compensation
for hazards and damages which are kind of open ended risks (SIC).
Hence, take out this clause," said Khan. "Again I repeat
that this clause is not acceptable to any multinational company
and it should not be different than any non-transgenic variety,"
Khan said.
Source: Rizvi, Muddassir. Monsanto fiddles
with plant protection act. IPS Bulletin, Islamabad. 31 August
1999 (www.ips.org)
PATENTS AND
GENETICALLY MODIFIED
ORGANISMS
Patenting is closely linked with genetic engineering
and the trend for large transnational agrochemical industries
to control the industrialisation and intensification of agriculture.
Almost half of all patent applications on GM
crops are held by 14 transnational corporations. They have targeted
the main food crops: rice, maize, wheat, sorghum, soya, corn,
potatoes. They are patenting the planet's best DNA and are mapping
entire sequences of crops with a view to patenting the most useful
bits. One American Company, Celera Genomics, says it will try
to map the entire rice genome.
THE CONSOLIDATION
OF THE
SEED INDUSTRY
The last decade has seen a major consolidation
of the global seed and agri-chemical business. The top five agro-biotech
companies—the so-called "Gene Giants"—DuPont,
Monsanto, AstraZeneca, Novartis and Aventis hold 60 per cent of
the world pesticide market, a quarter of the seed market and virtually
100 per cent of the GM crop market.
The top 10 seed companies control approximately
33 per cent of the $23 billion seed trade worldwide.
Without patents, the GM industry would not see
a return on their investments into developing GM crops. In the
US, Monsanto has sent investigators to check that farmers are
not illegally planting seed, and has so far opened 475 legal cases
against farmers for doing so. But the GM companies know that policing
their patents in the South would be very difficult.
While Monsanto has now rejected the concept
of the sterile, "Terminator" seed, this was only the
first of a raft of GM techniques being developed by all GM companies,
including Monsanto. Alternative technologies include Gene Use
Restriction Technologies, or GURTS, that engineer seeds in various
ways. For example, chemicals are used to "switch" on
GM characteristics such as herbicide resistance. Another manipulation
is to use a chemical to "switch" on plant flowering.
Some of these GURTS have been dubbed "junkie
seeds" because they depend on chemicals. But they also have
the effect of tying a developing country farmer into chemical
and financial dependence on a company.
The GM industry is not designed for the types
of biodiversity found on the average agricultural smallholding
in the developing world, where a farmer is constantly saving seeds
that are resistant to local conditions. A smallholder farmer will
normally grow a number of different crops on a plot of land. Thus
the biodiversity of a crop species is preserved.
GM crops are designed for monocultural, intensive
farming methods. GM can only be profitable this way. Yet for most
poor farmers the diversity of their crops is their safety net:
a way of spreading their bets, and ensuring that they harvest
something despite natural disasters such as adverse weather conditions.
OTHER ENVIRONMENTAL
EFFECTS OF
GM CROPS
There is not yet enough information known about
the environmental effect of GM crops.
The development of GM crops resistant to multiple
herbicides and those which rely on chemical inputs almost guarantee
an increased use of chemicals across the developing world. Farmers
who have never used chemicals are forced into buyung them with
their patented seed.
Genetically modified organisms can pose environmental
hazards, as cultivated crops are capable of crossing with related
wild species in the same environment. GMOs might contain alergens
or other harmful substances—a distinguishing characteristic
of many GMOs that causes particular alarm is the presence of an
antibiotic-resistance market gene.
The excessive use of disease-or-pet-resistant
crop varieties (or pesticides) always involves the danger of promoting
the evolution of resistant strains of pests or pathogens.
Given that the origins of the world's staple
food crops are in the developing world, the problems of cross-pollination
with other varieties and the build-up of pest resistance are both
potential threats to food security.
INTERNATIONAL PATENT
LAW; A HISTORY
Patents on plant varieties in the USA have been
allowed since 1930. In 1980, as modern biotechnology began to
shape the development of International Property Law, the US Supreme
Court ruled that a genetically-engineered, oil-eating micro-organism
could be patented. In 1985, the US Patent and Trademark Office
allowed genetically-engineered plants, seeds and plant tissue
to be patented. The office extended this ruling to animals in
1987 by allowing a patent on a mouse genetically engineered to
develop cancer. This move toward patenting life forms has more
recently been mirrored in Japan and the European Union (EU).
The European Patent Directive was passed by
the European Parliament in June 1998. This Directive, which applies
to all the EU countries, extended patent law to clearly cover
patents on plants, humans and life forms. However, this is now
under appeal by the Dutch, Italian and Norwegian governments.
Following this change in patent law, the European
Patent Office (EPO) changed its implementing regulations to the
European Patent Convention (EPC) to allow for the patenting of
human cells as well as transgenic plants and animals. This came
into effect in September 1999, paving the way for Europe to join
the US in granting patents on life forms. This change in the European
Patents Convention has been done in opposition to its Article
53b[11]
that exempts plant and animal varieties from patents. This is
likely to lead to controversy. There have already been protests
in Indian media about this change. [12]
CBD & TRIPS
The Convention on Biodiversity (CBD), agreed
at the 1992 Rio Earth Summit, calls for the conservation of biological
diversity, prior informed consent from the communities/nation
for using genetic resources, and the sovereign rights of states
over their biological and genetic resources.
CBD has 175 signatories compared with 134 of
the WTO Trade Related Intellectual Property Rights Agreement.
Intellectual property rights under TRIPs disregard
indigenous knowledge, and contributions made by communities. IPRs
have a tendency to lead to uniformity and loss of biodiversity—which
is contrary to the underlying principle of the CBD.
The objectives of CBD are based on the recognition
of community rights and that of TRIPs on private monopoly rights—which
is wherre the conflict lies.
OTHER INTERNATIONAL
AGREEMENTS WITH
RELEVANCE TO
IPRS AND
BIODIVERSITY
IUPGR
The International Undertaking on Plant Genetic
Resources (IU) is a non-binding intergovernmental agreement dealing
with access to plant genetic resources for food and agriculture,
related technologies, and the realisation of Farmers' Rights.
The Commission on Genetic Resources for Food and Agriculture (CGRFA)
of the FAO monitors the implementation of the International Undertaking.
The IU is being revised to bring it in line with the Convention
on Biological Diversity.
UPOV
The International Union for the Protection of
New Varieties of Plants (UPOV) is an intergovernmental organisation
with headquarters in Geneva (Switzerland). It is based on the
International Convention for the Protection of New Varieties of
Plants, as revised since it signature in Paris on 2 December 1961.
The objective of the Convention is the protection of new varieties
of plants by an intellectual property right.
Forty-four states had signed to UPOV as of 29
June 1999. Of these, 12 (mostly developed states) have signed
on to UPOV 1991 and 30 to UPOV 1978 and two countries to UPOV
1961/1972.
UPOV provides strong intellectual property rights
for plant varieties and is geared to suit institutional breeding,
which may not be appropriate for developing countries. UPOV Convention
provisions have become increasingly similar to patenting law with
each revision. The 1991 version strengthens plant breeders' rights
and makes the ability of farmers to save seeds subject to national
legislation.
MAJOR ACTORS
AND THEIR
POSITIONS ON
TRIPS
The African Group and developing countries
In July, a group of African countries, led by
Kenya, called for a "substantive" review of Article
27.3(b). These countries are leading a developing country call
for a review of TRIPs which, they say, must:
"clarify that plants and and animals
as well as microorganisms and all other living organisms and their
parts cannot be patented, and that natural processes that produce
plants, animals and other living organisms should also not be
patentable."
They also call for the TRIPs provisions to be
harmonised with the Convention on Biodiversity and the IUPGR (International
Undertaking on Plant Genetic Resources).
An increasing number of other developing countries
are supporting this position, saying that the patenting of plants
through TRIPs amounts to biopiracy. They also say that there is
not enough time to implement TRIPs by the deadline of January
2000.
DEVELOPED COUNTRIES
The developed countries are afraid to open up
a Pandora's box by allowing a substantive discussion on 27.3(b).
THE UNITED
STATES
The US wants any discussion on TRIPs off the
WTO agenda entirely. [13]
The US rejects the idea of extending implementation deadlines
or renegotiating aspects of TRIPs to address the concerns of developing
countries. The United States does not want any changes to Article
27.3(b) and maintains that any review should not be about "substantive
issues" such as whether TRIPs should allow patents on life
forms, but it should be a survey of how the article has been implemented.
The US rejects the idea that there is conflict between TRIPs and
the Convention on Biodiversity.
THE EUROPEAN
UNION
The EU claims that the review is not about substantive
issues, but should be survey of how article 27.3(b) has been implemented.
The EU is keen to see UPOV included in the TRIPs Agreement as
the "effective" sui generis system. The EU does
not see a conflict between TRIPs and CBD, and believes them to
be mutually supportive. However, they state that CBD should invite
WTO to acknowledge its provisions and give special consideration
to indigenous people's rights. The EU is more open to ideas than
the US and says that it is willing to consider proposals put forward
by developing countries.
NORWAY
Norway is opposed to granting patents on plants
and animals.
2 (Nijar, Gurdial Singh. CBD input to TRIPs Review
of life-form patents. SUNS quoted in www.twnside.org.sg/souths/twn/title/input-cn.htm). Back
3
Article 27.3 Members may also exclude from patentability
(b) plants and animals other than micro-organisms,
and essential bilogical processes for the production of plants
or animals other than non-biological and microbiological processes.
However, members shall provide for the protection of plant varieties
either by patents or by an effective sui generis system
or by any combination thereof. The provisions of this subparagraph
shall be reviewed four years after the date of entry into force
of the WTO Agreement. Back
4
US Department of Agriculture, Agricultural Income and Finance,
Situation and Outlook Report, USDA-ERS, December 1998. Back
5
www.rafi.org. Back
6
Conquests by Patents by Devinder Sharma, Pakistan Observer,
Islamabad, 22 Aug 1999. Back
7
www.itd.org/issues/india6.htm. Back
8
www.ars.usda.gov/. Back
9
C T. Taylor and A. Silberston's 1977 study in the UK, and Edwin
Mansfield's study of UK industries from 1981-83 as quoted in Shiva,
V. Biopiracy The Plunder of Nature and Knowledge. Research
Foundation for Science, Technology and Ecology, New Delhi. 1998. Back
10
The Making of American Industrial Research, Leonard Reich,
1985. Back
11
Article 53.b of EPC states: "plant-and animal-varieties"
cannot be patented. Back
12
"Since India is among the most important centres of genetic
wealth with 45,000 plant species and 75,000 animal species, the
move is being viewed with concern by scientists." The
Hindustan Times, New Delhi, 12/8/99, reporting on the EPO's
move. Agenda" Back
13
Washington Trade Daily, 5 ugust 1999 "US Wants TRIPs off
Seattle Back
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