Thais want South to unite vs UPOV

Bangkok Post - 7 May 1999

CONFUSION OVER PATENTING LIVING THINGS MAY FORCE THAI U-TURN DECISION RESTS WITH THIRD WORLD NATIONS

by Uamdao Noikorn and Anchalee Kongrut

Thailand is likely to come under pressure to change its stand on intellectual property rights over living organisms at the World Trade Organisation talks unless Third World partners affirm their policy to put the public interest first.

Despite resistance to the patenting of living materials, biologically-rich countries appeared "confused and distracted" from the main point after a two-day workshop on the issue last [March], law lecturer Suwit Wannakrairoj of Kasetsart University said.

The gathering was organised by the International Union for the Protection of New Varieties of Plants (UPOV), the World Intellectual Property Organisation and the WTO. Participants included UPOV members Australia, New Zealand, the United States and Japan and non-members Bangladesh, Brunei, China, Fiji, India, Indonesia, Malaysia, Mongolia, Pakistan, Papua New Guinea, the Philippines, South Korea, Singapore, Thailand and Vietnam.

Thai officials and academics viewed the workshop as an attempt to lobby Thailand to joining UPOV.

As a member of the WTO, Thailand is obligated to enact a plant varieties protection law before Jan 1, 2000. Under WTO's Trade-related Aspects of Intellectual Property Rights (TRIPS) agreement, each member country will have an effective sui generis system -- a legal system suited to the country's own political, economic and social conditions -- to protect its plants and animals, except micro-organisms, from being patented. The term means "of its own kind", and refers to any other form of intellectual property legislation apart from patenting. It was intended it would ensure that the rights of the indigenous people or community owning or sharing the varieties are looked after.

However, at a meeting last year in Europe, several UPOV members tried to redefine the term sui generis to bring it more in line with UPOV's aims.

The proposal met stiff opposition from several developing nations, particularly India, Thailand and the Philippines, who argued TRIPS had never mentioned UPOV in any article, leave alone linking UPOV with sui generis

Chakkrit Kuanpot, an international environment lecturer at Sukhothai Thammathirat University, said UPOV is almost identical to the patent system, which gives an exclusive right to the patentee and protects only new plant varieties, leaving natural species unprotected.

"UPOV is a type of sui generis but is not sui generis -- don't be brainwashed like others," Mr Chakkrit said.

Mr Suwit said: "UPOV members have been very successful in confusing participants. Many think the two are the same. Some seem to believe they must join UPOV to be a member of WTO.".

While Thailand, India and the Philippines stood firm against the notion and insisted on using their own protection system -- which would cover new plant varieties, local domestic plant varieties, general domestic plant varieties and wild plant varieties -- other countries such as Pakistan seemed to get side-tracked, Mr Suwit said.

Established in 1961, the UPOV Convention has a seperate protection system called Plant Breeders' Rights which was changed in 1972, 1978 and 1991.

"The latest version has upgraded the protection to level almost equivalent to the patent system, thanks to constant pressure from transnational food and seed corporations," said Mr Chakkrit.

Patent-like features included extension of the protection period from 15 to 20 years.

While the 1978 version banned the patentee from any rights over sales of produce/output from his creation, the 1991 version allowed the patentee a right to have a say on his creation, from setting conditions in trade transactions on both his creation and produce," he explained.

"I'm so worried, because more and more nations are joining UPOV, the essence of sui generis will be changed in favour of UPOV when the WTO meeting begins.

"It wasn't a good sign either that the WTO co-organised this workshop," Mr Suwit said.

He said the WTO's plan to postpone the review for another two years would give UPOV members more time to lobby developing nations to join the convention.

Mr Suwit said he had noticed the countries that were distracted did not have information access or NGOs to provide them with the full story.

Another problem, Mr Chakkrit said, if the meaning of sui generis was changed was that Thailand would have to amend the Plant Variety Bill as it was partly based on the 1978 UPOV, the Farmers' Rights principal and the Convention of Biodiversity -- all of which went against the 1991 UPOV.

Non-governmental organisations from India, Thailand, the Philippines and Malaysia last [March] issued a statement denouncing the workshop and the WTO for pushing the UPOV system against the interests of Asian farmers.

"UPOV is here in Bangkok to sell itself as the best solution for governments to fulfill their TRIPS obligations in Asia," said Witoon Lianchamroon of BioThai, a grassroots development network.

"The system completely overrides farmers' rights -- an alternative to patenting."

© The Post Publishing Public Co., Ltd. 1999