PRESS STATEMENT ON THE REGIONAL WORKSHOP IN SOUTHERN AFRICA ON THE IMPLMENTATION OF ARTICLE 27.3(B) OF WTO/TRIPS
Eight SADC countries held a regional workshop in Harare-Zimbabwe between the 22nd - 24th of March 1999 at the Jameson Hotel to address a combined conservation, trade and development issue which has gained significance, recognition and concerns in both developed and developing countries. It is the subject of Trade-Related Intellectual Rights (TRIPS) Agreement under the World Trade Organisation (WTO) and how it has related to other world conventions and organisations such as the Convention on Biological Diversity (CBD) and FAO instruments like the International Undertaking on Plant Genetic Resources which brought the countries together.
The workshop was organised jointly by the Biotechnology Research Institute (BRI) Zimbabwe, the Community Technology Development Trust (CTDT) - Zimbabwe and the International Plant Genetic Resources Institute (IPGRI) - Rome. GTZ/BMZ and IDRC Canada financed the workshop.
The workshop was officially opened by Zimbabwe's Minister of Lands and Agriculture - Honourable Minister Kumbirai Kangai, who urged participants to come out with bold and effective recommendations for the region. The eight participating countries included South Africa, Zambia, Malawi, Lesotho, Botswana, Namibia, Swaziland and Zimbabwe. Zimbabwe was chosen as the venue because it has held two national workshops of how to formulate a Sui-Generis Legislation and Policy in 1996 and 1998, and needed to link up with neighbouring states in-order to build up common positions on the forth-coming review of WTO/TRIPs on Article 27.3(b) at the beginning of year 2000. This is in compliance with the requirements of TRIPS for all member countries who are signatory to the TRIPS Agreement.
1.ISSUES OF CONCERN TO THE REGION
TRIPS in its present operation form under WTO developed out of the Uruguay Rounds of Negotiations and it based on the patent system of intellectual property rights. Todays' TRIPS Agreement originated from the concerns of large multi-national companies from the USA Europe and Japan who wish to strengthen the protection of their trade and development interests in-order to maximise their business profits and sustainability through international trade. They developed through their governments, TRIPS from existing intellectual property rights conventions such as the Paris, Berne and Rome Conventions and the Washington Treaty, WTO/TRIPs as we know it today.
Article 27 of TRIPs says the inventions it recognises must meet the criteria of novelty, inventiveness (non-obvious) and industrial applicability (usefulness). This system of rights deny property rights to local and indigenous knowledge, practice and innovations. TRIPs only recognises as worthy of protection inventions that conform to the Northern definition, above. Rights are recognised only when they generate profits and capable of industrial application. This excludes all sectors of society who produce outside the industrial code of production and so for social good. Furthermore, the innovation to be accorded the rights must be trade-related. In this convention, innovations in the public domain for local and domestic use are the innovations that are denied recognition. This situation seriously affects the rights and opportunities for poverty relief and elimination in Third World countries. Local people end up being exploited and made even poorer by developed countries because their knowledge is accessed freely then "treated" in laboratories in the North and ownership rights claimed through patents. Royalties are then paid to new owners by those who make use of the patented products.
It is estimated that three-quarters of the plants that promote active ingredients for prescription drugs came to the attention of researchers because of their use in traditional medicine. The current world drugs/medicines market for medicinal plants derived from leads given by indigenous and local communities is estimated at US$43 Billion (Rural Advancement Foundation International).
In addition, the value of the crop varieties improved by traditional farmers to the international seed industry is estimated to be US$15 billion. Besides medicinal and agricultural products, other national products developed by indigenous people and local communities include sweeteners, perfumes, fabrics and cosmetics are expected to grow in commercial use.
Regrettably, both local community farmers and traditional healers who have supplied this wealth to the Northern World and modern economies do not benefit from their knowledge, practice and innovations either financially, socially or culturally.
The workshop was organised to understanding this situation in detail to compare experiences and to consider ways of redressing the situation.
2. ATTEMPTS TO REDRESSING THE CURRENT PROBLEMS ON TRIPS
The clues to the discriminatory criteria of TRIPs on traditional knowledge, practice and innovation were viewed from two major frameworks. The exceptions on Article 27.3(b) of the TRIPs Agreement and Article 8(j) of the Convention on Biological Diversity (CBD) and its related articles. Clues also arose from the FAO instruments such as the International Undertaking on Plant Genetic Resources and the so called UPOV Convention on Plant Breeders Rights and Farmers Rights.
2.1 Article 27.3(b) offers an important exception to the criteria for recognition of intellectual property rights; it says members may exclude plants and animals other than micro-organisms and essentially biological processes for the protection of plants and animals other than non-biological and micro-biological processes. However, any country which does not provide patent protection for plant varieties must provide "an effective" sui-generis system of protection or a combination of both.
By providing an alternative to the patent system, TRIPs provides a possible framework for intellectual property rights that could be acceptable to developing countries. The workshop was held to consider what forms of sui-generis systems that could cater for the conservation, trade and development concerns and interests of developing countries. Sui-generis itself means "of its own kind". That means the workshop was to consider a system that should ideally suit their levels of development. The following sui-generis systems were considered.
2.2 UPOV Conventions: When the idea of sui-generis was first considered in connection with plants and animals, UPOV Conventions drew the first attention. UPOV was considered a sui-generis system because it emerged in Western Europe between 1930-60 when agriculture was dominated by small farmers interested in new and improved crop varieties in countries that did not want to follow the Paris Convention on the protection of industrial property of 1883. It was felt that patents would impede the common practice of using protected plant varieties for further commercial breeding hence the acknowledgement of breeders exemption. The exemption allows plant breeders to freely use protected varieties for developing new varieties. This provision has been limited under UPOV 1991. In addition, there is the privilege of farmers rights which allows farmers to keep seeds of a variety to the next season, exchange seed and allow a small commercial transaction, under UPOV 1978, but limited under 1991.
Whilst UPOV 1978 was considered relevant and useful, the 1991 convention is considered inappropriate and inadequate to meet the needs of most developing countries. In addition, UPOV does not include medicinal plants as it is entirely agriculturally oriented. UPOV was found to be highly beneficially to countries that had a component of horticultural crops and ornamentals such as Zimbabwe, Kenya and South Africa, whether under UPOV 1978 or 1991. UPOV provide adequate protection for "elite" varieties that developed countries may wish to export. Most countries were disinterested in UPOV '91.
2.3 Biodiversity Convention - Based Sui-Generis: Participants agreed that the Biodiversity Convention provides a broad base for sui-generis systems suitable and addressing the needs of developing countries in the SADC region. Under Article 8(j) CBD recognises and respects indigenous knowledge practice and innovations. The Convention under different articles, demands that there be mutually agreed terms and prior informed consent on the collection and transfer of genetic resources. CBD also sets criteria for Access and Benefit Sharing of natural resources. This could be in the form of monetary benefits, research results exchange, capacity building and royalties for the country providing the resources and the local communities where these resources came from.
The criteria for mutually agreed terms and prior informed consent were in part developed from agro-biodiversity through the FAO instruments on crop genetic resources. In addition, CBD benefited from the UN human rights declaration, Rio Declaration and Agenda 21. However, whilst the CBD-based sui-generis covers most of the concerns of the medicinal plants and the traditional healers, there are no provisions for farmers rights, although there are protection provisions for plant breeders rights.
In the end, the participants agreed that the development of sui-generis systems would require components that cater for different sectors of biological activities within a country or from country to country. They agreed to apply three main categories of plants and animals each of which should apply a sui-generis system that adequately protects it. These are:
i) Open pollinated crops such as cereals and tubers: These are used extensively as small farmer food security and require very open systems like CBD, UPOV convention 1978 or no convention at all. ii) The In-bred line and Horticultural Crops: These require protection to encourage breeders under any UPOV system. Producers are not interested in re-use of old seeds. iii) The Medicinal Plants may require a combination of patent like systems such as copyright and trade secrets combined with CBD sui-generis system that caters for mutually agreed terms, prior informed consent, access and benefit sharing conditions.
The participants agreed to hold further regional meetings to develop an "African Sui-generis System Model" soon. Subsequently, they intend to take a common position at the WTO/TRIPS review this year and early next year. The negotiations with developed countries are not expected to be easy because developed countries are still fighting for strong protection under national laws over and above the minimum that TRIPS has laid out.
Zimbabwe presented a draft sui-generis proposal at the workshop along the lines outlined above and received positive responses from the participants. Through a team of consultants, it is possible that Zimbabwe may produce a draft sui-generis system for itself soon. This could form the foundation for Zimbabwe to prepare its own national sui-generis policy and legislation and its position before the TRIPs Council in Geneva. This draft would be the culmination of work which has been going on since 1996 when a series of workshops and meetings on the subject had been taking place. Zimbabwe intends to have close consultations with its neighbours on this matter as it would not be meaningful to stand alone in Geneva over a highly contentious and controversial issue of this nature.
3. SPECIFIC RECOMMENDATIONS
The workshop also came up with specific recommendations which were very action oriented. These were based on the missing components and links that leave resources unprotected or leave trade opportunities unexploited to the disadvantage of developing countries like SADC. The recommendations included:
1) That national laws should define what to protect, how to protect and under what conditions (e.g. plant varieties, landraces, patents or forms of sui-generis);
2) Each country should determine its capacity to develop and implement a sui-generis legislation system. If capacity is lacking, help should be sought from other more experienced countries;
3) Each country should identify a focal point in a patent office, trade office, seed certification centre who should steer the process of implementation and administration of sui-generis. The person should bring together all stakeholders in the sui-generis legislation system including small farmers, traditional healers, trade and industry, agriculture, environment breeders and large-small farmers, patent officers and ARIPO [African Regional Intellectual Property Organisation];
4) Each country should source funding for national consultations on development/implementation of sui-generis legislation. Countries should hold workshops at national level and for negotiations with WTO/TRIPs in Geneva, Switzerland;
5) There is need for training law enforcement personnel who will be responsible for implementing sui-generis legislation;
6) The initiative to draft an African model sui-generis legislation framework compatible with TRIPs should proceed with speed (SADC Plant Genetic Resources Centre). The proposed Task Force set up by SADC is proposed to meet in May. It is suggested that the draft will be discussed at a regional meeting to be co-organised by SPGRC and the OAU.
7) It was recommended that SPGRC should follow-up on this workshop and take the recommendations made at the workshop to SADC Council of Ministers through the Food and Agriculture, Natural Resources, Industry and Trade Sectors who will meet in June/July, 1999;
8) It was also recommended that at two important TRIPs meetings to be held in Nairobi, Kenya and Geneva, in May and August this year, SADC positions should be presented. The OAU should facilitate and articulate the African position on TRIPs at the Geneva meeting;
9) SPGRC and its Task Force will spearhead the lobbying and conscientisation of permanent secretaries and Ministers in SADC on the need for implementation and legislation of sui-generis systems that are compatible with TRIPs 27.3(b).
4. INTERNATIONAL EXPERTISE
The workshop was placed under sound guidance from a legal, technical and political backgrounds by the present prominent expertise on sui-generis matters. These included Dan Leskien, Susan Bragdon and Professor John Barton; Dr J.M. Gopo - Director of Biotechnology Research Centre; and Professor J. Ekpere from the OAU. Other expertise came from the participating countries and these provided workable experiences on the ground. Professor Ekpere in his workshop closing remarks gave an overview on the situation in Africa as a whole and offered to assist in all possible situations until TRIPs accommodates African views and interests satisfactorily.
Proceedings of the meeting will be available shortly. For more information on the meeting please contact:
Andrew Mushita CTDT PO Box 7232 Harare, Zimbabwe Tel. (263-4) 334704/3 Email: tactdtms(at)harare.iafrica.com
OR
Susan Bragdon IPGRI Via delle Sette Chiese 142 00145 Rome, Italy Tel: (39) 06518921 Fax: (39) 065750309 Email: S.Bragdon(at)CGIAR.ORG
OR
Dr. J.M. Gopo SIRDC PO Box 6640 Harare, Zimbabwe Tel: (263-4) 860321/9 Fax: (263-4) 860350/1 Email: goppo(at)brimaize.icon.co.zw