SIGNPOSTS TO SUI GENERIS RIGHTS: 6 SUI GENERIS OPTIONS: THE WAY FORWARD by Gurdial Singh Nijar There is today a sustained assault on whole value systems by which peoples of the world, especially from developing countries, have lived and survived. New values are dominating and replacing existing time-honoured ones. Thus are the values of collective interaction and cooperation among third world societies being threatened with replacement by values of monopolisation and privatisation, values of free exchange of knowledge and goods with appropriation and commodification, and the values of creating goods to satisfy local and domestic social needs with production for industrial use to satisfy the economies of the market place. There is a thoroughness of this attack which is disquieting. For it is global in character and integrated into a web of rules and directives from which the weaker members of this global village cannot extricate themselves. The strong use these multilateral mechanisms to their advantage but only when it suits them. Heading this assault is the World Trade Organisation (WTO). Negotiated to facilitate trade amongst nations under the auspices of GATT (General Agreement on Tairiffs and Trade), the ambit of the final treaty has been extended to cover every facet of national endeavour. These are classified as 'trade-related', and subsumed under the WTO's jurisdiction. This includes intellectual property rights (for which there already existed an international organisation, WIPO), services, investment measures — and now being vigourously touted for inclusion by the North: environment and labour standards. From 1 January 1995, when the WTO was operationalised, the agenda for national governments was to be set, and determined, by this Organisation. Recalcitrant members can be proceeded against by a dispute panel. The decisions are binding. If ignored, an unprecedented range of cross-sectoral sanctions can be imposed, which could wreak havoc on even strong economies. The treaty as it was finally shaped, was an imposition in a non-transparent and non- accountable way, of the will of the industrialised North on the countries of the South. As the then Chairman of G77 and China, the organisation representing the 130 developing countries, lamented on the eve of the signing of The Final Act of the Uruguay Round which concluding the GATT negotiations: "The Uruguay Round is proof again that the developing world continues to be sidelined and rejected when it comes to defining areas of vital importance for their survival....Despite insisting that the negotiations were global in character, the countries of the North refused in the end to accept any discussions, even bilaterally, with the countries of the Third World." The negotiation process was asymmetric and non-transparent and developing countries had no choice but to accept agreements drawn up by the North without any change. [1] 6.1 TRIPS Of immediate relevance is the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS) concluded as part of the Uruguay Round negotiations. TRIPS establishes an intellectual property rights (IPR) regime which is modelled on IPR laws of the US. It obliges all treaty countries to promulgate national laws to accord with its minimum terms. It is widely known that the framework for TRIPs reflects the interests of the world's strongest Trans-National Corporations (TNCs), who helped to shape it through their key trade organisations: the Intellectual Property Committee (IPC) of the USA, the Japanese Federation of Economic Organisations (Keidanren), and the Union of Industrial and Employees Confederations of Europe (UNICE). Amongst the TNCs represented by these bodies are: Bristol Myers, DuPont, General Electric, General Motors, Monsanto, Pfizer, Rockwell and Warner. One area where this interest is clear is Article 27.3(b) which has extended the scope of IPRs to allow for the patenting and ownership of life forms. It should therefore come as no great surprise that the ethos and values of these TNCs, from the most industrialsed countries of the world, are reflected in the main provisions of TRIPS. The two main areas of this new provision of particular concern to third world countries and peoples are: 1. It extends patenting to micro-organisms and 'modified' life forms; and, 2. It requires nations to provide patents or other forms of protection to plant varieties. Patents are granted to individuals or corporations for any inventions, whether products or processes, provided they are new, involve an inventive step, and are capable of industrial application. Thus the criteria for inventions formulated primarily by industrialised nations for industrial products are made the only test for the grant of exclusive monopoly rights. By this deft definitional construct, and in one clear fell sweep, the inter-generational, communal, innovations of indigenous peoples and local communities are devalued and eclipsed; and any product or process synthesised in the laboratories of the North, almost invariably from the knowledge of indigenous peoples and local communities are bestowed rights and accorded value. This repreents a clear formula or the destruction of knowledge systems which have sustained the life, culture, and creed of whole communities for millenia. 6.2 THE CBD: OBJECTIVES DISPLACED? Out of the international concern expressed at the UNCED process in Rio, in 1992, for the accelerated depletion of the world's biodiversity, was born the Convention on Biological Diversity. Central to this Convention was the role of indigenous peoples and local communities. They were rightly recognised as the key players who nurtured biodiversity and whose knowledge has fed, clothed and healed the world. Nation States were accorded sovereign rights over resources that were within their domain. The CBD was to ensure the conservation and sustainable use of biodiversity and, if allowed to be accessed, it was to be with the prior informed consent of the owners of the biodiversity and on mutually agreed terms which would ensure the fair and equitable sharing of benefits. But the Convention is now unfolding in a way that has sidelined the central and critical role of indigenous peoples and local communities. Lip service of their contributions is lavishly paid, but little else. The Convention is being relied upon to generate unimpeded trade in the biodiversity of the Third World where such biodiversity still exists in abundance. Access and benefit sharing (ABS) mechanisms are being negotiated with greater frequency, reviving, it is feared, the colonial-type trade of a Third World commodity, which is then given added value by the North, complete with being accorded intellectual property rights, and then returned to the South at an inflated price — a repeat indeed of the formula which has resulted in the present North-South "unbalance" of trade terms, and pauperised large parts of the Third World. It is often the national governments who enter into these "biotrade" arrangements. Policy makers, operating within the context of the market economy, often feel that there is little option but to realise the maximum financial benefits for a country tied-up to the pradigm of the market place. This view is also promoted by some international NGOs and 'honest' brokers. The overarching concern for these ABS conferences/negotiations/contract-discussions revolves around how best to attract and conclude deals which result in financial and other benefits to the host country. It is often urged upon the developing country that any conditions or laws regulating access must be relaxed and not be over-stringent. We are told that there must be a sympathetic understanding of the vast sums that corporations need to create a product out of the biodiversity and the long periods invested for this research and development. Finally, we get to the conclusion that intellectual property rights to the product/process must be granted to the corporation. In short, this is no different from the negotiations that Third World countries enter into with the countries of the North to attract investments — which involve giving the most generous and lax terms for the location of the activity in the country — in this case for the bioresources to be exploited. In a sense, perhaps this approach was a response by Third World countries to rectify the inequity of past practices where the North accessed their resources for free. The emphasis is then for an equitable sharing of the benefits derived from the commercial exploitation of these resources. This approach in effect ignores the two critical objectives of the Biodiversity Convention: namely, the conservation and the sustainable use of biodiversity borne out of a concern that unless this is done, the world's future ability to continue its very existence is at stake. Forests are being destroyed at an alarming rate — a football field equivalent every second. Species are being made extinct at an incredulous pace — more species are being lost every week now than were lost in the last three centuries! And with all this depletion and extinction will be lost forever the resources to provide for humanity's future medicinal, clothing and food needs. 6.3 MEETING THESE CHALLENGES: SCOPE FOR MANOUVRE Essentially, of course, the fight to reclaim the rights of the commons must be waged at the level of the grassroots and won by indigenous peoples, local communities and the peoples of the Third World, generally. The Nation State must accept this agenda for reclamation and undertand that it would be inimical to the nation's interest to act as little more than a facilitator for the misappropriation of the resources and knowledge systems which have spawned life for its peoples. The fight must be at the local (assertion by communities), national (making the nation state accept the rights of its communities) and international (where the obligations on nation states are thrashed out and imposed) levels. The fight must be comprehensive. It must respond to the legal impositions and existing frameworks which impair the rights of indigenous peoples and local communities; equally as important is the fight outside of these frameworks. Protective mechanisms to reclaim these rights could consist of such activities as documenting biodiversity and indigenous knowledge, developing programmes and generally empowering indigenous peoples and local communities and livelihood systems directly. The issues at stake for developing countries seeking to provide a form of protection are many. First, how to obtain benefits in respect of varieties derived essentially from the collective knowledge of farmers who have been enhancing and improving seeds and plant varieties for millenia. Secondly, how to provide for the protection of farmers and their varieties without destroying the underlying ethos and traditional practices of communities by which they innovate communally, inter-generationally and in a spirit of free exchange. It is these traditional practices which has allowed them to innovate and improve qualities through drought and pestilence and seasonal variations of climes; which has allowed them to generate and nurture diversity; and which has formed the basis of their life-support systems. The innovations of traditional communities in relation to biodiversity has fed, clothed and healed the world. 6.4 THE RESPONSES International treaties impose legal obligations on national governments to reshape their laws to accord with the terms of these treaties. Those facets of TRIPS that are inconsistent and incompatible with the values of Third World peoples and societies, their economic well-being and with life itself must be repudiated and contained. There is space within the TRIPS provisions that provide for some, albeit limited, room for manouvre. Central to any response must be the preservation of alternative knowledge systems and the innovations they have spawned especially in relation to biological resorces. And crucial to this is an understanding of to whom this knowedge and innovations belong. In traditional societies they are held under a system of stewardship and they are held for past, present and future members of such societies. These knowledge systems are inextricably linked with the whole culture and practices which support and sustain life itself of indigenous peoples and local communities. For this reason its integrity cannot be impaired; for to do so is to destroy life itself. This means that there can be no alienation of this knowledge system or its components from the community to others especially if it is clear that this would result in it impairment and preclude the community or any of its future members from continuing the perpetual evolution of this knowledge and all its concomitants. The claim of intellectual property rights in relation to biological 'inventions' by corporations is the most obvious example of how the development of such knowledge systems could be stultified if not irreparably destroyed. The concept of "inalienability" must therefore be juridically built into any sui generis system touching upon biological resources which have been nurtured by indigenous peoples and local communities. As must also the concept that the content of the communities intellectual right to the preservation of the integrity of their knowledge system must be determined by their own customs and practices. Both these concepts exist in legal jurisprudence. For example in a recent leading case in Australia which established that the common law of Australia recognises a form of native title for the indigenous inhabitants, the apex High Court said : Native title has its origins in and is given its content by the traditional laws acknowledged by, and the traditional customs observed by, the indigenous inhabitants of the territory. The nature of native title must be ascertained by reference to the traditional laws and customs of the indigenous inhabitants of the land. [2] TRIPS sets minimum standards for an IPR regime. This gives room for manouvre because there is no prohibition to providing for a higher or different form of protection. [3] Some of the critical elements for the protection of innovations arising from alternative knowledge systems described earlier could be incorporated in an IPR regime. One of the ways for so doing relates to the concept of "invention" or "novelty". Nowhere in the Agreement are these terms defined. Yet they form the basis on which a claim for IPR rests. TRIPS leaves this definitional exercise to national governments. Innovations of communities in relation to biological resources and anything derived therefrom could be described as 'inventions'. The ownership could be formulated such as to vest in the community as a whole. The nature of this ownership would be determined by reference to the culture, practices and tradition of the society. Generally, this would mean that the present members of the community would hold that right as custodians for its past, present and future members. This would necessarily mean that the invention and all that is derived from it could not be the subject of alienation to corporations. In relation to plant varieties, for which article 27(3)(b),TRIPS requires protection either by a patent, sui generis, or a combination system, the law could state that any variety based on prior state of the art is not novel and therefore could not be made the subject of any IPR claim. This is indeed one of the basis for which patent claims are disallowed. As all plant varieties are based on prior art, this could legitimately exclude an IPR regime over biological 'inventions'. It may be usefully recalled that right up to the early 1930s, IPR claims in respect of such resources were unheard of. The US and Germany developed legislation granting IPR protection for plant breeders in 1930. The International Convention for the Protection of New Varieties of Plants was enacted in 1961 and subscribed to by States under the Union for the Protection of Plant Varieties (UPOV). The impetus and membership was almost wholly confined to the countries of the industrialised North. It was the push by the US and the multinationals of the North, as earlier described, that culminated in the inclusion of TRIPS which extended IPR regimes of the North over life forms. Further the extension of patent protection to pharmaceutical products by TRIPS resulted in IPRs over biotechnological products. Prior to this some 50 countries of the world did not confer patents for pharmaceuticals. Protection for plant varieties by a system of patents or a sui generis system, or a combination of both, is required under TRIPS. A law so enacted will be subject to the other provisions in TRIPS. So it will be subject to the requirement of notification of its enactment to the TRIPS Council, it will be subject to the Dispute Settlement procedures. It will also have to accord national treatment and practice the most favoured nation principle. It will also have to allow for effective action against any act of infringement as required by Articles 42 - 49 of TRIPS. As noted earlier, more elaborate provisions could be engrafted onto any such law. These, in addition to those discussed, could include the requirements of other international treaties such as the Convention on Biological Diversity. As well, there could be included such obligations as to seek the prior informed consent of indigenous and local communities and the requirement that mutually agreed terms be entered into between the resource-provider and the resource-seeker. A further requirement could be that anyone seeking IPR protection disclose the origin of the resource and indigenous and local knowledge used in the invention. Farmers' Rights and exemptions could be reshaped and included as well. Exclusionary provisions formulated on the basis of Article 27(2) — excluding patents on the grounds of ordre public or morality — and Article 8 — measures necessary to protect public health or nutritution or to promote the public interest in sectors of vital importance to their socioeconomic or technological development — could also be incorporated; as could provisions for the compulsory licensing of IPR claims as set out under Articles 30 - 31 of TRIPS. [4] Any law dealing with indigenous and community knowledge other than in relation to plant varieties can be enacted outside of TRIPS. There are compelling reasons for so doing. There is no need then to incorporate any of the restrictive elements mandated by TRIPS. More importantly, such a law will be freed from the fetter of having any complaints about it referred to the WTO which has a trade focus. 6.5 INDIA: A SPECIFIC EXAMPLE India has articulated some facets of the concerns of the Third World at the WTO's Committee on Trade and Environment. This Committee was set up on the signing of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, at Marrakesh on 15 April 1994, to identify the relationship between trade and environmental measures and to make recommendations on whether any modifications were necessary so as to promote sustainable development. At the CTE's meeting in September last year, India asked that TRIPS be modified to reconcile with the CBD's objective of conservation of biological resources with sustainable development. It highlighted two contradictions: the lack of any conditions on patent application in Article 29 of the TRIPS agreement that the origin of the biological resource and indigenous/traditional knowledge used in any biotechnological invention be stated, and the lack of the requirement in TRIPS that the prior informed consent of the country as well as the owner of the resource/knowledge be obtained by any inventor of biological materials and a proper agreement be entered into between them so that there would be a fair and equitable sharing of benefits. India also suggested a study of the pros and cons of evolving a system for patenting of indigenous knowledge and local contemporary innovations of traditional folk knowledge. [5] 6.6 IN THE END... India's articulation represents the way Third World countries are trying to weave their way through the labryinth of international obligations, especially TRIPS, and to rein in the globalised promotion of IPR protection and subordinate it to the objectives of sustainable development. It represents, as well, an attempt to claim a share in the benefits of facilitating access to the living resources of developing countries. But more fundamental issues are at stake, as earlier outlined. Ultimately, the sui generis option within TRIPS in respect of plant varieties or in respect of local and indigenous knowledge, will invariably be linked to IPR and will result in new and further monopoly rights over life forms. This is precisely that which must be avoided. Societies and peoples — farmers, indigenous peoples, peasants, fisherfolks and other local communities have lived with, and derived their livelihood from biodiversity. They have helped heal, clothe and feed the world without IPR regimes. Indeed the concept of monopoly ownership rights over life forms is antithetical to Third World societies. The struggle for sui generis rights is thus essentially about the reassertion and the reclamation of the human and collective rights to continue to live independently of the IPR-based sui generis systems promoted by the TRIPS agreement. This struggle has to be waged from the village level through to our governments in the capitals and on to the international level to — to prevent the imposition of IPR on the ultimate sacrosanct subject matter — life itself. [6] Notes: [1] See further on this Nijar, TRIPS and Biodiversity : A Third World view, Third World Network, Penang, 1996. [2] Mabo & Ors v State of Queensland & Anor (1986) 64 ALR 1; Pareeoultja & Ors v Tickner & Ors (1993) 117 ALR 206, 213; Adong bin Kuwau v Kerajaan Negeri Johor [1997] 1 MLJ 418, 429 (decision of the Court of Appeal, Malaysia). [3] Sui generis protective laws are accepted in areas not specifically referred to in TRIPs, as is made clear by legislation for protecting utility models enacted in such countries as Japan, Germany and Spain. The US has extended protection by sui generis legislation to new areas such as the design of integrated circuits and DNA constructs, genes, cell of any living beings, including humans, as well as on plants and animals as such. The European Union's Directive 96/9/EC on the Legal Protection of Data bases creates a new sui generis right as well. [Carlos Correa, "Beyond TRIPS: Protecting Communities' Knowledge", 1997.] [4] See further, Nijar, 1996, op. cit. [5] See further, "Trade: Change TRIPs to reconcile with CBD, says India", SUNS South-North Development Monitor, No. 4064, 30 September 1997, Third World Network, Penang. [6] See further, "The Thammasat Resolution: building & strengthening our sui generis rights", subscribed to by 45 representatives of indigenous, peasant, non-governmental, academic and governmental organisations from 19 countries, on 6th December 1997, at Bangkok, Thailand.