The need for sui generis rights

by Vandana Shiva | 25 Mar 1994


Vandana Shiva

From the moment the GATT negotiations were concluded last December, NGOs and people's organisations began trying to assess what space was available to promote positive rights for farmers and local communities engaged in the conservation, development and use of biodiversity, and the indigenous knowledge associated with it. While the Biodiversity Convention — which entered into force two weeks after GATT was signed — engages governments to take new action to protect biodiversity, recognising the role of local communities, that action still has to be thought out. More decisively, the GATT treaty obliges governments to provide for intellectual property rights on plants, be it in the form of patents, breeders ' rights or an “effective sui generis system”. As Dr. Vandana Shiva, the well-known Indian writer and activist, sees it, we have to use the sui generis option to test our governments ' commitments to biodiversity and the farming community, and to evolve novel legislation that deliberately recognises and protects community rights over biological resources and indigenous knowledge.

The conclusion of the Uruguay Round of GATT negotiations poses a major challenge to people's movements concerned with the protection of nature and diverse cultures of the Third World. The Trade Related Intellectual Property Rights (TRIPs) treaty of GATT can become the most powerful tool for the ultimate colonisation of biodiversity and diverse indigenous systems of knowledge. If this has to be prevented on ethical, ecological and economic grounds, we need to turn the clauses in TRIPs relating to living resources into a zone of contest where movements working for the protection of biodiversity and indigenous knowledge act as a countervailing force to the corporate drive for monopoly control. The IPR (intellectual property rights) regimes being pushed in GATT deny the innovation by millions of farmers and tribals in the Third World — where biological diversity is concentrated and where knowledge of its use is most evolved. Third World governments are already being pressurised to immediately change IPR regimes for plant varieties. Thus, while the Government of India on the one hand keeps announcing that there is a transitional period of ten years for such changes under the GATT provisions, on the other hand it is rushing to introduce draft legislation in the current budget session of Parliament for plant and seed varieties.

The test for government in evolving new sui generis legislation is whether it will protect multinational seed companies or the rights of farmers and local communities who have been the original innovators in the utilisation of plant diversity.

Our biodiversity & intellectual rights

At the level of governments, there are two imperatives for evolving a new legislation for the protection of biodiversity. One comes from the ratification of the Biodiversity Convention, which is now an international treaty for the protection of biodiversity. The other comes from the conclusion of the Uruguay Round of GATT. Article 27.3(b) of the TRIPs treaty in GATT states:

Parties may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of the Agreement establishing the WTO (World Trading Organisation).

The second part of this article is the one that will most directly affect farmers ' rights as innovators and plant breeders, and their community ownership of seed and plant material. TRIPs recognises only the Western industrialised model of innovation and has failed to recognise the more informal, communal system of innovation through which Third World farmers produce, select, improve and breed a plethora of diverse crop varieties. Farmers ' seeds reflect the ingenuity, inventiveness and genius of our people. However, the protection of the collective intellectual property of Third World farmers does not even find a place in TRIPs. Our challenge now is to use the clause for evolving a sui generis system (free-standing, derived from itself) to push for the protection of collective innovation and the protection of the creative potential of our people and our country.

The farmers ' movement in India has been resisting GATT-TRIPs because of these far-reaching implications (see box). In the debate on intellectual property rights that has been created as a result, the Commerce Ministry has stated that India is free to set up its own sui generis system. Now it is time for the government to prove its will to protect our sovereignty over our resources and knowledge and to engage in interpreting “effective” in the TRIPs Article 27.3(b) in ways that protect the public and national interest.

In the absence of an initiative to define such a sui generis system, we will be forced into accepting the plant breeders ' rights system of UPOV — the International Union for the Protection of New Varieties of Plants — which, like patents, is also a monopoly mechanism for protecting corporate interest. The term “effective” has been inserted by the US in the Biodiversity Convention and TRIPs to achieve that very end. The same phrase is in Section 301 of the US Trade and Competitiveness Act of 1988 which has been used to retaliate against countries whose IPR laws do not conform to the US standards. The terms was defined by the office of the US Trade Representative.

The use of the term “effective” in all negotiations related to IPRs and biodiversity is a tool of US attempts to globalise its IPR regimes which allow patenting of all life, including plants and animals. In the Dunkel Draft text (the GATT treaty), the phrase “effective sui generis system” implies that such a system will not be determined by countries — much less by local communities — but by GATT and the World Trading Organisation which will succeed it.

Effective for whom? Effective for what?

There will have to be a struggle over the term “effective” in the interpretation and implementation of Article 27.3(b). We have to raise the questions: Effective for whom? Effective for what?

In GATT, the only concern is protecting corporate interest. However, states have signed another multilateral treaty, the Biodiversity Convention, which deals specifically with biodiversity. The Convention makes biodiversity conservation an obligation of states and gives sovereign rights to states on the area of biodiversity through Articles 3 and 4, which clearly recognise national sovereign rights to biodiversity and the patterns of its utilisation. In addition, the Convention recognises the role of local communities of farmers and tribals in the conservation of knowledge about biological wealth.

In the preamble, the Convention states that contracting parties recognise “the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitable benefits arising from the use of traditional knowledge, innovations and practices, relevant to the conservation of biological diversity and sustainable use of its components.” Article 10(c) states: “Each contracting party shall as far as possible and appropriate protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.” Further, Article 18.4 states: “The contracting parties shall in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention.” The Biodiversity Convention thus offers avenues for the protection of farmers ' rights and national rights to biodiversity.

These issues will create a contest between whether effectivity or effectiveness will be determined by states or by the World Trading Organisation (to be established in GATT's wake). It is a test for sovereignty and for our governments will to protect it. A contest will also take place between protection of profits and the protection of national sovereignty, community intellectual rights and biodiversity. These are principles to which states have agreed to subject themselves in accordance with the biodiversity treaty as well as with the FAO International Undertaking on Plant Genetic Resources (see box).

There is ample legal ground to go beyond UPOV in evolving a sui generis framework for protecting biodiversity, including plant diversity. It is also an imperative because without it we will not be able to protect community intellectual rights and will be forced into treating UPOV as the only sui generis alternative. There are already attempts from many quarters to evolve a plant breeders ' rights system as the sui generis alternative rather than building a system of community rights.

The government of India has announced that it is changing the Seeds Act to set up a central seed agency. As a news release from the Agriculture Ministry has stated, the new changes are meant to “tie in with the breeders ' rights sought to be introduced as a part of the trade related intellectual property rights (TRIPs) section of the recently concluded GATT talks.” Through these shifts, our options for a sui generis system will be foreclosed. People's movements therefore need to be vigilant and alert about the many levels of undemocratic possibilities which can force us into a UPOV-like system.

Beyond IPRs

There is an additional danger that the issue of biodiversity conservation and farmers ' rights will be used to dismantle our patent system. The building of a people-oriented sui generis system is therefore necessary to protect our patent laws while evolving new frameworks for areas not covered by patent laws. We need a two-pronged strategy: (1) to protect national patent legislation while (2) creating new alternatives for biodiversity conservation and utilisation which should be beyond the scope of patentable subject matter. This is an urgent task for people's movements for three reasons.

1.The ethical and ecological imperative to recognise the intrinsic worth of all species.

Countries need to have strong legislation to allow exclusion of patents on life on grounds of public morality. This is a possibility allowed in Article 25 of the TRIPs agreement. Areas excluded from patentability need to be governed by non-monopoly regimes which protects people's rights to creativity and innovation.

2.The imperative for equal recognition of creativity in diverse cultures.

Diverse cultures have evolved different traditions of knowledge and innovation which need to be treated with equal respect and significance. This is also needed for cultural diversity. In the area of biodiversity, indigenous knowledge of farmers, tribals and herbalists is the primary source of knowledge of properties of plants. We need an IPR system which: (a) recognises this indigenous innovation, even though in structure, process and motivation it differs from the innovation in industrial systems; and (b) through this recognition, prevents the piracy of indigenous knowledge and of the biodiversity in which it is embodied (eg. patents on neem, endod, coloured cotton, etc.).

3.The economic imperative to provide all members of societies with health and nutrition.

Monopolies in areas crucial to survival have been avoided through various mechanisms that exclude vital areas from such monopoly control. Thus, because food and health are central to survival national patent laws have prevented the monopolisation of patents in these areas. For example, the Indian patents laws do not allow patents for living resources. The Indian Patent Act of 1970 says that “patents cannot be given for a method of agriculture or horticulture or for any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or any process for a similar treatments of animals or plants to render them free of disease or increase their economic value or of their products” (Articles 3h and 3l).

While protecting national laws which have ensured that the ethical and economic imperatives are fulfilled, we need to evolve new and complementary legislation which allows us to protect our biodiversity and our indigenous knowledge in this era of biopiracy in which the pirates are protected by IPR laws, but the victims have no protection.

If our governments fail in evolving a sui generis system that protects our biodiversity and our indigenous knowledge, and push a legislation only to facilitate the emergence of seed monopolies, farmers and local communities will be forced to violate these unjust laws in the spirit of non-cooperation and Satyagraha that is legacy of Gandhi and our freedom movement.

Vandana Shiva can be contacted at: A-60, Hauz Khas, New Delhi 110 016, India. Tel: (91-11) 66.50.03. Fax: (91-11) 685.67.95. or (91-11) 462.66.99. Email: twn-india@geo2

Author: Vandana Shiva