GRAIN | Print article

December 1998

GRAIN

1999 will be a big year for the life patents issue. The member states of the World Trade Organisation (WTO) are embarking on a review of the TRIPS Agreement. TRIPS, which stands for Trade Related Aspects of Intellectual Property Rights, is the WTO treaty which obliges countries to privatise biodiversity, starting with the plant kingdom. This treaty is very controversial and extremely threatening. As it stands now, if developing countries do not adjust their intellectual property laws to cover plant varieties by the year 2000, they will be punishable through multilateral trade sanctions. However, the TRIPS review in 1999 entails a re-examination of the plant patenting rules. It presents a major chance for developing countries to actually change the terms of the treaty before they have to implement it.

With all the fighting going on today about whether genetic engineering will feed the world or should be banned, there is another crucial battle about to explode. This one is about whether biodiversity - key resource of the billion-dollar biotech industry and basis of survival for many poor people in the Third World - should be patentable or not. So far, most experience in this area should be considered "biopiracy:" industrialised countries allowing scientists to claim legal monopoly rights over genes and indigenous knowledge plucked from the biodiversity-rich tropics and repackaged into pills in a California laboratory. The idea is that what comes out of the rainforest of Ecuador or a farmer's field in Sri Lanka is "natural" and unpolished, while what comes out of a lab in Palo Alto is "a product of science" and should be patented as an invention.

The battle for and against patenting life - plants, animals, and now human genes - has been building up decades. Arguments against life patents include not only questions of ownership, costs and what counts as innovation, but also ethical and religious concerns. The toughest match, so far, was played out during the last round of the General Agreement on Tariffs and Trade (GATT) negotiations. Lasting from 1986 to 1994, the Uruguay Round of GATT resulted in an agreement on intellectual property - and in the establishment of the WTO to implement it. That agreement - TRIPS - says that all countries have to provide private ownership rights on plant varieties or else they will suffer hostile action from their trading partners. The TRIPS review is therefore the next major battleground for the life patents challenge.

What TRIPS says

TRIPS defines minimum standards that countries must apply in seven areas of intellectual property. The idea is to give transnational corporations the same opportunities to protect their investments in all countries of the WTO. TRIPS is very rigid in terms of what can or cannot be excluded from patent laws at the national level. The sensitive areas are:

Public policy: countries cannot exclude certain inventions from patentability simply because of national policy.

Morality: WTO members can reject certain patents on grounds of morality or "ordre public," but on a case-by-case basis only.

Pharmaceutical products, micro-organisms and micro-biological processes: must be patentable.

Plants and animals: can be excluded from patent laws.

Plant "varieties": must be protected by patent or by an "effective sui generis" system. Few countries are likely to opt to write plant varieties into their patent law, because plant varieties are the basis of food production. However, even fewer countries seem to know what an "effective" sui generis (unique) system is. TRIPS doesn't define it.

TRIPS has a staggered timescale for implementation. Developed countries, on whose laws TRIPS is modeled, had to implement it in 1996. This was no great shakeup for them. They house the biggest seed and drug corporations in the world and already had the IPR laws in place to protect those companies. Developing countries have to have their legislation ready on January 1, 2000 and least-developed countries must be on board by January 1, 2005. Biodiversity and ethics are the most contentious issues within TRIPS. This is why the treaty contains the special provision to review, and possibly amend, the plant patenting rules in 1999.

Review - what review?

The TRIPS review in 1999 will focus on Article 27.3b, the biodiversity provision. It states that: "Members may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants and 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 terms of the review are a subject of controversy (see box). The North wants to review implementation, probably so it can try to criticise the South for not doing a proper job of it and conclude that the treaty must be reworded to drop ambiguous language. Developing countries want to follow the treaty which mandates them to review its provisions. After all, they are not under obligation to implement TRIPS until 2000, so what to implement is the question on the table. It seems likely that the South will win this argument, and so the various parties are arming themselves for the next round of combat.

NUTS & BOLTS OF THE REVIEW

"The provisions of this sub-paragraph [27.3b] shall be reviewed four years after the date of entry into force of the WTO Agreement." That means 1999. But oddly enough, when the TRIPS Council sat down on December 1-2 to discuss how to proceed with the Review, the fight was about whether the review should only discuss "implementation," or whether it should be a substantive review of the "provisions" of the Article (which is what the Article says). The Chairman of the Council only managed to get the process going by proposing to circulate a questionnaire on how countries are implementing Article 27.3b as a kick-off point for more substantive discussion.

India resisted the questionnaire proposal and the Association of Southeast Asian Nations (ASEAN) stated that the 1999 Review should be "a full review of the provisions of Article 27.3b and not just implementation." This proposal received strong support from other nations and it seems that a re-examination of the Article will take place, even if developed countries start the process by answering a questionnaire. Other countries had best ignore the questionnaire, to avoid be held to a narrowing down of the options under TRIPS later on. Technically, the review will proceed at least over the 4-5 sessions of the TRIPS Council in 1999. Representatives of the CBD, the UN's Food and Agriculture Organisation and UPOV have been invited to participate, which is a good sign. NGOs, of course, cannot participate, although the TRIPS Council secretariat says it will make an effort to post news stories on the WTO website that are as official as the minutes of the meetings. These, however, are not made public until six months after the event Ã–

Source: personal communication with the TRIPS Council Secretariat, 7 December 1998.

Jostling for position

1) Southern Governments:

Developing country delegations assert their right to protect their people's wealth of biodiversity and indigenous knowledge, and argue that TRIPS should allow countries to exclude these from intellectual property law. Their main proposals are:

Give sui generis a chance: There is no definition of "effective sui generis system". Without a definition, what are countries supposed to implement? TRIPS left this open, to be explored. But now, the International Union for the Protection of New Varieties of Plants (UPOV), representing a group of 38 countries mostly of the North, is pushing its own treaty to become the effective sui generis system of plant patenting under TRIPS. The implications of this, based on 40 years of experience with UPOV in industrialised countries, are not good for the South and deathly for agriculture (see box). Developing countries are committed to exploring a range of options for sui generis systems; they are not eager to be straightjacketed into UPOV as the only sui generis alternative to patenting.

UPOV UNDER TRIPS? NO WAY!

The International Convention for the Protection of New Varieties of Plants (UPOV, set up in 1961) provides a strong monopoly right to breeders of new varieties, short of being called a patent. Because it was designed specifically for one class of plant breeders, it is indeed a sui generis form of IPR. To be "protected" under UPOV rules, a variety must be genetically uniform and fit for industrial agriculture. This kind of agriculture relies on chemical fertilisers, pesticides and now genetic engineering - which in the long run are bad for yields, farm income, the environment and human health. UPOV also makes seed-saving a crime - when most farmers in Africa, Asia and Latin America depend on it. If that weren't problematic enough, the breeder's right provided under UPOV can extend all the way to the farmer's own harvest. The US is aiming at a TRIPS regime that enforces patents on plants and animals, and UPOV on plant varieties. That's not TRIPS-plus, but TRIPS-minus: IPR, but no more agriculture to apply it to!

Give us more time: Developing countries are behind schedule in implementing Article 27.3b as it is. A handful, mainly in Latin America, have plant variety protection laws set up, which might be compliant with the sui generis option. Most of the rest are in earlier stages of drafting or discussing legislation.

Put the CBD first: Recognition of the conflicts between the Convention on Biological Diversity (CBD) and TRIPS is growing fast (see box), particularly amongst Southern nations. The CBD says that IPR should not run counter to the objectives of the Convention, namely the conservation and sustainable use of biodiversity. TRIPS is troublesome in a number of ways. Firstly, many studies have demonstrated that IPR enhances the process of genetic erosion in agriculture in several ways: it stifles information and germplasm flows, it promotes the breeding of uniformity, it shuts farmers out of the commercial seed market, and so on. TRIPS could be undermining a basic virtue of the CBD. Secondly, the CBD is firmly anchored on the principle that there should be benefit-sharing from the use of genetic resources. TRIPS promotes the privatisation of these genetic resources with no benefit-sharing at all. Thirdly, CBD gives weight to the rights of local communities, while TRIPS gives weight only to the rights of formal scientists and TNCs. In the last months alone, the countries of Africa, the Caribbean, Europe and the Pacific have all voiced a clear motion for CBD to take legal precedence over TRIPS. This means changing the TRIPS Agreement to comply with CBD, not the other way round, as Northern delegations are pushing for.

CBD OVER TRIPS: YES, PLEASE!

The number of countries calling for the primacy of the CBD over TRIPS has been growing steadily. These calls are being made because governments feel unsure about the legal relationship between the two treaties, and yet perceive a real conflict in their respective provisions. The CBD, which came into effect in December 1993, considers biological resources as the national sovereignty of nation states while TRIPS, in effect since 1995, enforces private property rights over those resources. CBD stipulates that access to biodiversity has to be based on prior informed consent and must give rise to benefit sharing. Yet TRIPS allows nationals of one country to take monopoly control of germplasm or indigenous knowledge of another country without requiring information on where the material or knowledge was obtained, thus undermining the case for benefit sharing. Furthermore, CBD is premised on the idea that indigenous and local communities have to be supported in their own systems to conserve and use biodiversity. TRIPS sanctions biopiracy, pure and simple.

On these grounds, various country groupings have taken up the postition that the operating principles of CBD must take precedence over the operating principles of TRIPS. Last April, it was the Eastern and Southern African trade negotiators gathered in Zimbabwe. In June, it was the Heads of State of the Organization for African Unity, conducting a summit in Burkina Faso. Later in June, the same motion was tabled by Ministers for the Environment from 50 European, Central Asian and North American countries gathered in Denmark. In July, similar demands were voiced by members of the Committee on Trade and Environment at the WTO itself. In September, the Joint Assembly of Parliaments of the European Union and the ACP (Africa, Caribbean, Pacific) member states echoed the same sentiments.

What all these countries are saying is that IPRs should not conflict with the objectives of the CBD; TRIPS should allow countries to exclude all life forms from their national patent systems; and the rights of indigenous and local communities must be recognised and promoted. The commitments embodied in CBD precede WTO. TRIPS is the instrument that is on a collision course with the CBD, not the other way around. TRIPS must be adjusted to fit the CBD, and the TRIPS review can do that.

2) Northern governments

Transnational corporations and industrialised countries governments which support their interests want to reap the maximum they can from the South's biodiversity.

The United States government has already made it clear that, in its view, what is on the table in 1999 is whether to (1) delete the exclusion of plant and animals from patentability under TRIPS and (2) incorporate the main provisions of UPOV into TRIPS to protect plant breeders rights. If these amendments were carried through, the patenting of plants and animals would have to be legalised in all WTO member states and all members would have to implement UPOV as well as TRIPS.

Europe is another story. The European Patent Convention (EPC, 1973) excludes plant varieties from patent protection, so Europeans have to defend Article 27.3b for their laws to be compatible with TRIPS. However, the significance of the EPC itself is in limbo. The European Patent Office, which follows the EPC, has taken the view since some years that "transgenic plants" lead to the production of "transgenic plant varieties." In Europe, "varieties" cannot be patented, so "plants" should not be patented either. On this basis, the EPO has been rejecting patent applications on transgenic plants. This is one of the reasons why the Dutch government has formally requested the nullification of the European Patent Directive as contravening the EPC (see Sprouting Up on p). But while some governments try to uphold the integrity of the EPC, biotech companies are breathing down the neck of the EPO Board of Appeals to reverse its interpretation of the EPC! All of this means that European law is in more doubt than ever. With no consensus in Europe, the EU cannot speak with one voice on the matter at the WTO, and European countries have to at least argue for maintaining Article 27.3b in the TRIPS review.

3) Civil society

Among different sectors of civil society active on the issue both in the North and the South, there are at least two fundamental objectives for the review:

Biodiversity out of TRIPS: Patenting life is unacceptable, on a wide range of grounds, to many peoples' movements across the immense cultural diversity of our planet. There is simply no compromise possible on this view, for numerous groups. This is not to say that it is an unrealistic position - it's the same as arguing for human rights or the right to food. As it is, TRIPS condones biopiracy, genetic manipulation and the privatisation of biodiversity in the name of "progress." A lot of NGOs wish that governments would stop mesmerising on IPRs and look at other tools to encourage socially-responsible research. Fiscal schemes and other incentives for community-controlled public research, which don't foreclose the sharing of knowledge, are far more democratic and supportive of sustainable development than IPRs. But as long as TRIPS is concerned with IPRs, biodiversity and traditional knowledge must be kept out.

The TRIPS review offers WTO member states the legal option of broadening the exclusions currently allowed under Article 27.3b to cover all life forms and processes. Excluding biodiversity from TRIPS would render it compatible with CBD, which is a much more competent home for multilateral rules on legal jurisdiction over biodiversity.

The “Biodiversity out of TRIPS” position complements the campaigns of many farmers organisations and their support groups arguing for agriculture to be taken out of the WTO. Biodiversity and agriculture go hand in hand. As Weeraphon Sopa of Thailand's Forum of the Poor put in during the recent Asia-Pacific Economic Co-operation (APEC) summit in Kuala Lumpur, "Industrial agriculture and patenting of seeds take away the people's freedom to produce their own food,” Trade liberalisation agreements on agriculture, investment and IPR have to be resisted simultaneously at the regional and sub-regional level (not only APEC or Free Trade Agreement of the Americas (FTAA) but at the South Asia level, within MercoSur, in Central America) and at the global level (WTO plus the Organisation of Economic Co-operation and Development (OECD), World Bank, the UN).

Maintain broad options for sui generis rights: This position also has wide popular appeal, especially in the South. Awareness of the importance of the biodiversity and the role of local communities in its conservation and use have been important gains in recent years. National sovereignty over biodiversity and community rights need to be reinforced now. TRIPS presents a cunning trap in this context. While it invites countries to devise sui generis legislation in a seemingly open manner, it is clear that any sui generis law tabled as TRIPS compliance has to be an intellectual property system.

Great strides have been made to develop community rights because of problems like biopiracy and because of opportunities like the CBD. These include the Organisation for African Unity's Model Law for Africa, the Philippines' Community Intellectual Rights bill, Indigenous Peoples' Rights and Traditional Medicine Acts, follow-up on the pioneering Andean Pact legislation, Thailand's three community biodiversity rights bills (plant varieties, forests and traditional medicine), and the new call for a Mesoamerican and Caribbean Convention for the Protection of Community Intellectual Rights. These rights regimes are far from perfect yet, but the point is that the space for alternatives has been opened and is taking shape. That space should not be shut down by reducing any sui generis window to industrial-style plant breeders' rights.

A real chance for the South

To make the TRIPS review anything more than a rubber stamp for Northern IPR regimes, Southern governments will have to fight hard on several fronts in the coming months. They will need to:

Resist US pressure to delete all exceptions from patentability within TRIPS. As the US hosts the WTO's Third Ministerial Conference in Washington late 1999, they may be especially eager to score a timely victory on this front.

Resist the incorporation of UPOV into TRIPS. UPOV is TRIPS-minus in every sense of the term: it is disastrous for agriculture in the South and it destroys the sui generis option.

Maintain broad sui generis options. Alternative legislation is necessary to counterbalance biopiracy and strengthen the rights of local communities.

Demand that the CBD retain full authority for determining legal jurisdiction and use of biodiversity. The WTO should not dictate who has rights over biological resources or direct how they are used.

Southern governments are sharpening their visions and their teeth for the Review. At a meeting organised by the South Centre and the Institute for Agriculture and Trade Policy on November 30 in Geneva, 25 developing country trade missions discussed these issues intensely with legal experts, NGOs, agricultural organisations and even UPOV. Immediately afterwards, the TRIPS Council opened formal discussions on how to prepare for the Review. It is clear that the South is preparing itself for a tough fight. Substantial progress has already been made:

The Association of Southeast Asian Nations has wrenched the door open for the Review to focus on the provisions of Article 27.3b, not implementation.

The Organisation for African Unity (OAU) has a mandate to develop an African Common Position to safeguard the sovereign rights of Member States and the vital interests of local communities with respect to Article 27.3b. OAU is working hard to forge alliances amongst Southern countries to ensure that the TRIPS review achieves harmony with the CBD, as many African countries attach great importance to the Convention.

A broad cross-section of Southern countries see that the 1999 Review could be an opportunity to regain lost ground. Building the proper legal systems to thwart biopiracy and to protect the rights of local communities are real priorities for many Southern delegations.

The 1999 review should be welcomed as an opportunity to turn TRIPS into something positive. Whether this means getting biological resources out of the treaty, as many groups feel is the only solution, or maintaining the status quo of an open door sui generis option, will depend on how well governments and civil society prepare for the battle. The review is starting now. It should be seen not as a chess game of trade concessions, but as an opportunity to outlaw the plague of biopiracy at the global level.

Sources and resources:

• Biothai and GRAIN (1998), Signposts to sui generis rights, Bangkok/Barcelona, January 1998. URL: http://www.grain.org

• P Mulvaney (1998). TRIPs, Biodiversity and Commonwealth countries: capacity-building priorities for the 1999 review of TRIPs Article 27.3(b). Discussion paper prepared for the Commonwealth Secretariat and Quaker Peace and Service, London.
URL: http://ds.dial.pipex.com/ukfg/UKabc/TRIPs/cs_exsum.htm

• Gaia (1998). Strategic recommendations for the Review of TRIPs Article 27.3(b), dealing with intellectual property rights over biological resources. Gaia Foundation. Available from Gaia, 18 Well Walk, Hampstead, London, NW3 1LD, UK. Fax: (44-171) 431 05 51. Email: [email protected]

• Gaia and GRAIN (1998). Gaia and GRAIN have published three monograph issues in English, French and Spanish of the briefing series “Global Trade and Biodiversity in Conflict.” Issue 1 is TRIPS vs CBD. Issue 2 is Ten reasons not to join UPOV. Issue 3 is The economic myths of IPR. Hard copies are available from Gaia (address above), electronic copies from
URL: http://www.grain.org/publications/gtbc.htm

• South Centre and Institute for Agriculture and Trade Policy (1998), TRIPs and the Patenting of Plants, draft report of a workshop held 30 November 1998, Palais des Nations, Geneva. To be publishrf in January 1999. Contact Kristin Dawkins of IATP for copies: fax (1-612) 870 48 46 or email: [email protected]

• OECD (1997). Patents and innovation in the international context. Organisation for Economic Co-operation and Development. OCDE/GD(97)210, 1997.
URL: http://www.oecd.org/dsti/sti/s_t/inte/prod/e_97-210.pdf

• C Viljoen (1998). Intellectual property at universities, and the distribution of royalties. Paper delivered at the "Workshop on Commercialising Intellectual Property at Academic Institutions". Midrand, 16 November 1998.
URL: http://www.sun.ac.za/kie/kie1.htm

• United States Government (1998). Preparations for the 1999 Ministerial Conference: General Council discussion on mandated negotiations and the built-in agenda. WTO document WT/GC/W/115. World Trade Organisation, Geneva. URL: http://www.wto.org/ddf/ep/C4/C4652e.doc

• K Seneviratne (1998), NGOs call for alternatives to APEC's free trade path, Inter Press Service, Kuala Lumpur, 16 November 1998.

Some electronic resources to follow the TRIPS Review:

• BRIDGES Weekly Trade News Digest is published by the International Centre for Trade and Sustainable Development and IATP. Electronic subscription is free of charge. For details: http://www.ictsd.org

• SUNS is a daily news bulletin produced by Third World Network in Geneva. Electronic subscription costs US$ 200 (for the South).
For details: http://www.twnside.org.sg

• BIO-IPR is a listserver produced by GRAIN to circulate news, documents and resource pointers on patenting life and community rights. Free of charge.
For details: http://www.grain.org

• TRIPS99 is a resource section of IATP's website where you can find news, analysis and national legislation related to IPR and community rights. http://www.iatp.org/trips99

• The WTO website carries official news on the Review. http://www.wto.org

• The UK Agricultural Biodiversity Coalition website compiles a lot of working documents related to the issues surrounding the TRIPS Review. http://dialspace.dial.pipex.com/ukfg/ukabc.htm

THE TRIPS REVIEW TAKES OFF