SIGNPOSTS TO SUI GENERIS RIGHTS 2 - EMERGING NATIONAL RESPONSES

SIGNPOSTS TO SUI GENERIS RIGHTS: 2

EMERGING NATIONAL RESPONSES

2.1 OVERVIEW & COMPARATIVE ANALYSIS

From May-August 1997, GRAIN carried out a survey and research effort to collect information on the current status of national laws related to biodiversity in developing countries. The survey tried to cover patent laws, plant variety protection (or plant breeders' rights), access laws, legislative or policy developments on community and farmers' rights, rights of indigenous peoples and other relevant laws. Questionnaires were sent out to experts at the national level in many countries, including Ministries of Agriculture, IPR offices, scientists, NGOs, lawyers and the academe. Information was also culled from the Internet, WIPO, IPR documentation centres in numerous cities (Manila, Bangkok, Jakarta, Geneva and Barcelona) and resources published by law firms.

This effort was necessarily limited in time and in resources. However, GRAIN examined some of the national legislation for 104 countries in the South plus three normative IPR systems in effect at the subregional level (Gulf Coordination Council, Andean Pact and the African Regional Industrial Property Organisation). We were not able to gather information on many smaller-sized nations, including island states. Below we summarise the information, followed by individual country profiles in which we tried to synthesise the salient features of national legislative realities and processes.

A few caveats have to be pointed out. We only looked at laws and legislative processes in as much as they relate to mechanisms of control over biodiversity. These laws and processes are evolving rapidly in the South so we only provide a passing snapshot. As regards patent law, which is the main concern of the WTO, we were obliged to limit our view to statutory provisions as stated in the law - not specific practices of national courts and administrative bureaus. This is important. A law may prohibit, literally, patents on "plant varieties" but allow, in practice, patents on plant species simply because the patents don't claim any "variety" but whole species.

Table 2a summarises the status of current and emerging legislation in developing countries as regards control over biodiversity and associated knowledge. It is far from complete and should only be taken as indicative. The statutory exclusions from patentability sometimes depend on how you read a law. And exhaustive knowledge of who is drafting what other legislation is not at all implied. The table only summarises the information GRAIN could dig up in the course of June- August 1997. The full country profiles are presented in Annex 1.

TABLE 2A: SUMMARY OF COUNTRY PROFILES ON CURRENT AND EMERGING RIGHTS TO BIODIVERSITY
( table being reformatted - watch for updated version of Chapter 2)

2.2 PATENT LAWS

Occurrence

Most countries have patent laws which have evolved from legal systems imported during colonial rule. Only a few countries -- such as Afghanistan, Yemen, Suriname and Papua New Guinea -- do not have patent laws.

History

The oldest patent laws in developing countries were established in the 1880s (e.g. Tunisia) while many were originally set up in the past fifty years. They have been modified from time to time, many of which were last reformed in the early 1990s.

International conventions

Of the international conventions which harmonise standards in the administration of patent systems and concern biodiversity, the most widely adhered to are the WIPO and Paris Conventions. The WIPO Convention is the treaty which established the World Intellectual Property Organisation in 1974 as a specialised UN agency to promote intellectual property. The Paris Convention, which WIPO administers, sets out basic principles of patent law. Aside from these two, adherence to the Patent Cooperation Treaty, which facilitates the processing of patent applications in multiple countries at once, is generalising quickly now. Few developing countries [] have signed the Budapest Treaty recognising the deposit of micro-organisms in internationally designated centres as sufficient disclosure of an invention.

Use

In most developing countries for which statistics are available, the bulk of patent applications and grants are attributed to foreigners from industrialised countries (see Figure 2). [] Therefore, it appears that the situation has not changed since 1975 when UNCTAD published its major findings that less than 2% of the patents in the world are held by citizens of the South. This is shocking, since twenty years and huge efforts to level the patent playing field have been spent. In other words, the patent system is not working to stimulate innovation in developing countries, but rather to regulate technology transfer from North to South. This reinforces fundamental doubts about the patent system. As a tool for technology transfer, of which there are many, it is highly costly to resort to state-run monopolies. And the claim that patents encourage creative and entrepreneurial efforts for national upliftment is clearly not being realised in developing countries, since their people are hardly participating in the system.

FIG 2 (GRAPH) - WHO BENEFITS FROM THE PATENT SYSTEM?

Adjustment to TRIPS

Most developing countries' patent laws are currently in the process of amendment, or will soon be amended, to comply with the TRIPS Agreement. This is true even of countries not presently member of WTO (e.g. China, Taiwan). We are witnessing a massive global reformulation of patent laws in nearly 200 countries all at once. Hardly a month goes by without a patent law being re-enacted in the South today. The provisions of patent laws in developing countries which are being changed to comply with TRIPS include: the term of protection, fields of technology covered, patentable inventions, scope & conditions of compulsory licensing, importation as working of patent, national treatment principle, etc. To meet the obligations of TRIPS Art 27.3(b) countries are either drafting and enacting plant variety protection and/or amending their patent laws and/or reserving their right to explore wider sui generis rights systems. By far the most, however, currently regard plant variety protection as the simplest means to comply with Art 27.3(b).

Ordre public & morality

Most patent laws in developing countries prohibit the patenting of inventions whose exploitation is contrary to "ordre public" or morality, borrowing the terminology used in European law. The TRIPS Agreement allows for this, but puts special conditions on it. Currently the TRIPS provision on public order and morality can only be invoked on a case by case basis, subject to "necessity" to prevent commercial exploitation. A country cannot use this clause to reject a patent application simply because the invention (or the patent) disrespects general policy. Interestingly, while the morality clause usually focuses on social conduct, some countries extend it to protection of environmental and public health (Andean Pact, for example). Other countries, such as China, Nepal and Iraq, refer to "public/national interest" which covers collective socio-economic needs, not conduct. Kenya's law speaks of "principles of humanity".

Plants & animals

TRIPS allows countries to exclude plants and animals from patentability. Nine developing countries of the 103 whose patent laws we surveyed (less than 10%) exclude "plants" as such from patentability. Forty-eight exclude animals in one form or another (breeds, varieties, races or without qualification).

Plant "varieties"

TRIPS requires that IPR protection be made available for plant "varieties", either by patent or by sui generis system. Forty-one of the 103 countries whose laws we examined (40%) currently exclude plant "varieties" from national patent protection. Of course, it can be argued that this means that plants are therefore excluded as well. However, as experience in Europe shows, it is difficult to defend this interpretation because of pressure to accommodate the biotechnology industry. Industry lawyers often formulate patent claims to cover, say, tomato plants and tomato cells, even though farmers grow and consumers eat specific varieties with specific traits.

Double protection on varieties

It should be borne in mind that any country whose patent law contains no statutory exclusion on plants or plant varieties and is party to the 1978 version of the UPOV treaty cannot, in theory, provide patents on species or genera listed in their plant variety protection act. UPOV 78 prohibits double protection for the same species. The patent laws of the Andean Pact countries, Paraguay and Uruguay do not exclude plants or plant varieties and yet they have adhered to UPOV 1978. In principle, then, it would go against their commitment to UPOV to grant patents on plant varieties covered by their PVP acts.

Micro-organisms

The TRIPS Agreement requires countries to provide patent protection for micro-organisms. Only the laws of Thailand and Namibia currently prohibit this. Neither TRIPS nor most developing countries' patent laws define what a micro-organism is. Brazil's, amended in 1996, is one of the rare few that does.

Human material

TRIPS is silent with respect to inventions related to genetic material of human origin or processes carried out on humans. Only the laws of Andean Pact countries, revised in 1994, Mexico and Panama explicitly prohibit the patenting of inventions related to human genetic material or the human genome.

Biotechnology

It might be noted that during the TRIPS negotiation, governments were debating at some stage whether to incorporate provisions related to "biotechnology". This idea was discarded in the end. In developing countries, Brazil, Kenya and Malaysia, and perhaps the emerging Central American Undertaking on Industrial Property [], make explicitly favourable reference to biotechnological inventions in their patent laws. This is in order to make clear than naturally occurring life forms are not inventions but life forms modified by human intervention are. North Korea, on the other hand, explicitly forbids patenting of biotechnological inventions per se.

Opposition possibilities

Finally, a fair number of developing countries permit third parties to file their opposition to patent applications prior to grant.

Over all, the patent laws which stood out in our survey are those of:

2.3 PLANT VARIETY PROTECTION

Plant variety protection or plant breeders' rights are currently available in a number of developing countries: the Andean Community (Bolivia, Colombia, Ecuador, Peru, Venezuela), Argentina, Brazil, Chile, Hong Kong, Kenya, Mexico, Paraguay, South Africa, Uruguay and Zimbabwe. PVP is about to be adopted in South Korea.

Other countries to our knowledge are busy in the drafting or debating stage of plant variety protection laws. This includes Algeria, Bangladesh, Costa Rica, Cuba, Egypt, India, Indonesia, Morocco, Pakistan, Philippines, Tanzania, Thailand, Tunisia and Zambia. Additionally, FAO is facilitating the drafting of plant breeders' rights legislation in the CARICOM countries (Antigua, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, St Kitts/Nevis/Anguilla, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago) and Suriname. []

Most developing countries are constructing laws based on UPOV 1978 with a few elements of UPOV 1991 (in particular the concept of "essentially derived" varieties). Only South Africa - not really a developing country - has signed the 1991 UPOV Act. South Korea's law goes beyond UPOV 1991 as it does not impose conditions on the extension of the breeders' right to the products of the harvest.

Some developing countries are trying to include "progressive" provisions for farmers and indigenous communities in their otherwise predictable PVP acts. By progressive provisions we mean: including farmers in the definition of breeders, making derogations for farmers and tribals to apply for PVP, setting up special funding mechanisms for in situ conservation of genetic resources, etc. This has been the case in India, Bangladesh, the Philippines and Thailand. These last two countries also intend to include biosafety provisions in their PVP laws. Additionally, the Philippine draft requires that varieties be subject to an Environmental Impact Assessment, which a common legal tool in the country and covers both socio-economic concerns and parameters on genetic diversity.

The ever generalising "cave in" to plant variety rights in developing countries is both surprising and not surprising. It is surprising because there is so little evidence of benefits to be reaped from introducing monopoly rights over plant breeding, which is the basis of helping agriculture evolve to new pressures and demands. The few studies that have been conducted on the impact of PVP in countries that apply it [] point to a range of unsettling conclusions (see Table 2b). It is not surprising, however, since many governments have been led to believe that PVP à la UPOV was what the TRIPS negotiators had in mind.

TABLE 2B: FINDINGS OF THREE STUDIES ON THE IMPACT OF PLANT VARIETY RIGHTS (PVP)
( table being reformatted - watch for updated version of Chapter 2)

Apart from the lack of evidence of PVP's positive impact on innovation and research, a worrying trend is that PVP is spreading like wildfire before countries have figured out how to implement farmers' rights. Celebrating breeders who freely access and fine-tune farmers' varieties in absence of any rights for the farmers is exploitative. But this is what many countries seem to understand that the WTO TRIPS Agreement requires: PVP. And, perhaps implicitly, exploitation.

2.4 ACCESS

Entirely novel laws on access to genetic and biological diversity - and knowledge associated with it - are emerging in the South since the mid-1990s only. The impetus to enact such access laws, as they are known, comes from Art 15 of the Convention on Biological Diversity and the renegotiation of the FAO International Undertaking on Plant Genetic Resources for Food and Agriculture. More fundamentally, these mechanisms are a response to the increasing value of the South's biodiversity and traditional knowledge, tapped for economic gains by bioprospectors.

The Philippines was the first country to adopt a legal mechanism, in the form of a 1995 executive order, to regulate access to the territory's biodiversity. This was followed by enactment of the Andean Pact's 1996 common regime on access. Brazil and Costa Rica are close on the heels of finalising their laws while drafts are in rougher stages of development in countries such as Ethiopia, India, Indonesia, Mexico, South Africa, Thailand, Laos and Viet Nam.

Generally, access laws facilitate the acquisition of biodiversity and local knowledge for commercial purposes. They try to instill conditions so that this acquisition is not gratuitous plundering. States and/or communities are supposed to give formal consent prior to sampling or interview, and there is supposed to be a quid pro quo agreement to make access an exchange of resources for economic or social returns. By socially regulating this exchange, it is hoped that local communities, indigenous peoples and farmers who are the original source of so much biodiversity and wisdom about plants and animals will get a fairer share of the benefits.

Ideally, this would apply to germplasm found in both in situ and ex situ conditions. Often, though, the laws focus on one or the other. Ideally as well, there is a need to cover germplasm and information that ends up used both in breeding programmes and in pharmaceutical research. Finally, countries quiver over whether human genetic material should be regulated under access laws or left to other controls later on.

2.5 FARMERS' RIGHTS

Technically speaking, no country has adopted a law on Farmers Rights. The very language "farmers rights" emerged in debates at FAO where developing countries were questioning the legitimacy of plant breeders' rights in the industrialised countries. It was immediately asserted that no rights over varieties are fair if the farmers are not recognised and rewarded first for ensuring the very foundation of the breeding industry. In this way, Farmers' Rights has become a cornerstone of conflict between the gene-rich South and the technology-rich North.

But the basic concern for equity and empowerment of farmers in their daily activities dealing with biodiversity calls for much broader rights than any kind of intellectual property system can provide. That is why you will not find a Farmers' Rights law anywhere. You will, however, increasingly find expressions of these rights of farmers related to biodiversity encapsulated in a range of new policy and legislative tools to push the control and empowerment agenda. This takes the form of expanded provisions for farmers within new PVP acts, farmer participation in biodiversity conservation and development programmes, farmer- and local community-controlled biodiversity registration and access systems, etc. These are still subtle but growing forms of implementation of Farmers' Rights. Outside legal systems, and more on the ground, there are manifold ways of implementing farmers' rights through organised community action. Keeping seed conservation and breeding alive in the village helps biodiversity and cultural diversity thrive, improves farmers' control over their production systems, can lead to new market opportunities and builds the strength of the peasant sector. This is a very important reality about farmers' rights which, if further strengthened, could give more grounding to the development of enabling legal tools and systems.

The United States, Japan and other industrial powers have been systematically trying to suppress any expansion of farmers' rights in law and in action. The reason for this is obvious: ultimately, it would undermine the dependency of farmers on external inputs, hence markets for TNCs. On the other hand, developing countries have been pushing for national and international obligations in the name of Farmers' Rights. The most recent negotiating draft of the International Undertaking on Plant Genetic Resources for Food and Agriculture, revised in December 1997, calls for the establishment of sui generis systems for the protection of farmers' innovations and for the sharing of the benefits, at both the national and international levels. It also spells out the need to establish a collective rights regime to protect the knowledge of farmers.

2.6 COMMUNITY RIGHTS

The term "community rights" is not at all precise. On the one hand, it can be understood as rights granted to groups of people who are identified as a community in a cultural context, such as "indigenous people", "cultural minorities", "AfroAmericans" or other. These kinds of rights to self- identity often find their expression in the constitutions of the nation state they are subject to. On the other hand, community rights is a common term today for rights granted to "local communities" to manage some aspects of self-governance, natural resource management and economic livelihoods. Thus, we have "community forest rights", various terms for community rights in the smallscale fisheries sector, "community intellectual rights" and open-ended "community rights" to control biodiversity, local knowledge, management systems and innovations. In many Latin American countries, the discussion is on "collective" rights, not "community" rights.

In our survey of national legislation in developing countries, little came out visibly under the heading "community rights" save for forest management rights, traditional medicine system rights and collective intellectual rights to genetic innovations. Community Forest Acts [] have been devised in Thailand and Laos, Thailand is also finalising a law on Traditional Medicine founded on the protection of community rights. Numerous other countries are discussing or elaborating Community Intellectual Rights bills such as India, Philippines and Ethiopia. If one uses the term loosely, then new community rights are certainly emerging in the Andean Pact countries which are consolidating a special regime for the protection of traditional knowledge associated with biodiversity, Brazil's access law and other laws which articulate the rights of communities to determine who can partake of the fruits of their skills.

As with farmers' rights, community/collective rights are being implemented and exerted outside of formal legal frameworks. This is especially evident in the growing movement to set up community registers of biodiversity and thwart misappropriation, initiatives to implement moratoria on bioprospecting or access to genetic resources and a whole range of information and education activities. Almost any form of community challenge against outsiders collecting biodiversity or local knowledge today, the examples of which are spreading, is an expression of the rights of community to control those resources and systems. This is increasingly what many NGOs, farmers groups, lawyers, academics and even government officials understand by sui generis rights.