TITLE: Joint NGO Statement on the Review of Article 27.3(b) of the TRIPS Agreement AUTHOR: Third World Network DATE: 27 November 2000 URL: http://www.twnside.org.sg/ NOTE: To sign on to the Statement, please send your name, organisation and address to the Third World Network (twnet(at)po.jaring.my). APOLOGIES FOR ANY CROSS-POSTING Dear friends and colleagues, As you know, the WTO Council for TRIPS (Trade-Related Intellectual Property Rights) has convened again from November 27-December 1, 2000. And, as with the previous meetings of the TRIPS Council, the mandated review of Article 27.3(b) of the TRIPS Agreement will be on the agenda. However, the negotiations on the review have been at a stalemate; with little progress being made since the review process started in December 1998. The US, EU and some other developed countries are still resisting a substantive review of Article 27.3(b), which the majority of developing countries in the WTO have called for. The most comprehensive proposal from the developing countries is articulated in the paper by the African Group, submitted by Kenya on its behalf, dated 6 August 1999 (WT/GC/W/302). The African Group's comprehensive proposals have received much support from other developing countries in the WTO, as well as, civil society groups, farmers' movements and NGOs. In August 1999, the "Joint NGO Statement of Support for the Africa Group Proposals on reviewing the WTO TRIPS Agreement (Article 27.3(b))" was issued. This Statement now has over 600 signatories from around the world. Further, in September 2000 in a letter to Pascal Lamy, the EU Commissioner for Trade, NGOs demanded (among other things) that the EU change its negotiating position on the TRIPS review, to support the African Group proposal. At the recent TRIPS Council meeting, the African Group had again, in a paper submitted by Mauritius, dated 20 September 2000 (IP/C/W/206) reiterated their proposals. However, within the WTO itself and in the TRIPS Council, no real discussion has taken place on the proposals outlined by the African Group. The concern is that with each TRIPS Council meeting, the attempt has been sideline the African Group proposal, and to detract from a meaningful discussion on the merits of the proposal, and to avoid a revision of Article 27.3(b). It is therefore crucial that civil society groups around the world mobilise to pressure WTO member countries to break the stalemate in the TRIPS Council, and to press for a revision of Article 27.3(b), as soon as possible. This pressure is needed now, because: (1) The mandated review of Article 27.3(b) represents perhaps the only real opportunity to change this provision that allows for patents to be granted on life forms. Such a review, if it is properly done, has the advantage of being more focused, thus encouraging a better analysis of the issues. A mandated review means that proposed changes can be negotiated without the risk of being traded-off against other proposals on other agreements, as has happened in the Uruguay Round negotiations. (2) The transition period for the implementation of Article 27.3(b) expired on January 1, 2000. This means that the majority of the developing countries are now legally obliged to implement Article 27.3(b) within their national laws. Otherwise, they face the imminent threat of being taken to the dispute settlement body of the WTO. Therefore, it is very important that a substantive review of Article 27.3(b) gets under way, during which time countries must be exempt from implementing the provision. (3) Even now, patents on life are being granted almost indiscriminately by patent offices, mostly in the North. These patents distort a patent law system that was originally intended for mechanical inventions, in order to grant corporations and individuals private rights and ownership over biological and genetic resources, traditional knowledge and genetically modified organisms, in order to obtain monopoly profits. The patent system is being used to facilitate the theft of biological resources and traditional knowledge from the South. The monopoly control over such essential resources will also have tremendous impact on food security and the livelihoods of farmers and communities in the developing countries. We believe that it is crucial for civil society groups to jointly make a clear demand for the revision of Article 27.3(b) and to campaign actively for this demand to be met. Hence, we suggest the following actions for your consideration: 1. Sign on to the Joint NGO Statement on the review of Article 27.3(b) of the TRIPS Agreement (attached below) by sending your name, organisation and address to the Third World Network (twnet(at)po.jaring.my). 2. Help disseminate this Statement, and ask others to sign on to it. 3. Join in the global campaign against No Patents on Life. Use the demands as stated in this Statement to lobby your government, to take note of, and to support the African Group position. In addition, start a campaign to build and spread awareness among other NGOs and the public on the No Patents on Life campaign. 4. Tell us about your campaigns and actions. Civil society groups around the world are campaigning against the adverse effects of the WTO Agreements and are joining the international WTO: Shrink or Sink campaign. They are also organising various campaigns against specific WTO Agreements, including the TRIPS Agreement, the Agreement on Agriculture, the General Agreement on Trade in Services (GATS), and so on. These campaigns are organised in conjunction with the first anniversary of the Seattle Ministerial Conference, which will be on 3 December, 2001. Civil society groups around the world will demonstrate their solidarity in their campaign against the WTO Agreements. We hope that you will be able to play your role. We attach the Joint NGO statement on the review of Article 27.3(b) of the TRIPS Agreement for your information and hopefully, your action. With our best wishes, Martin Khor and Cecilia Oh Third World Network Penang, Malaysia (twnet(at)po.jaring.my) JOINT NGO STATEMENT ON THE REVIEW OF ARTICLE 27.3(b) OF THE TRIPS AGREEMENT We, the undersigned social movements, citizen groups and non-governmental organisations, express our concern over the attempts to prevent a substantive review of Article 27.3(b) of the TRIPS Agreement. Article 27.3(b) lies at the core of the debates surrounding patenting of life forms, the effects of IPRs on farmers' livelihoods and food security, local communities rights and access to resources, and the environmental effects of IPRs. Article 27.3(b) facilitates the mis-appropriation, by Northern corporations, of the traditional knowledge and biological resources originating from the South. This biopiracy of the South's resources is an ironic twist of the TRIPS Agreement, which promised to facilitate transfer of technology from the North to the South but instead is now being used by corporations in the North to obtain private ownership rights over the South's resources and knowledge. Review stalemate Its controversial nature necessitated a compromise text of Article 27.3(b), into which a review process had been mandated four years after the TRIPS Agreement came into force. However, this review process has been deadlocked, without any agreement having been reached on the scope or timetable of the review. Many developing countries view the review as an important opportunity to open up Article 27.3(b) so as to revise it, in order to prevent and limit its negative effects. The US, EU and most other developed countries have consistently opposed proposals to amend the provisions, arguing that the review is only about the extent to which the provisions have been implemented. TRIPS: Negative development and human rights impacts In the meantime, there is increasing evidence to suggest that Article 27.3(b) is being employed as a protectionist instrument to promote corporate monopolies over technologies, seeds and genes. The 1999 UNDP Human Development Report warns of negative impacts of high standards of intellectual property rights on economic and social development in developing countries. The United Nations Sub-Commission for the Protection and Promotion of Human Rights (Resolution E/CB.4/Sub.2/2000/7 dated 17 August, 2000) has also taken note that "actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realisation of economic, social and cultural rights in relation to, inter alia, impediments to the transfer of technology to developing countries, the consequences for the enjoyment of the right to food of plant variety rights and the patenting of genetically modified organisms, 'bio-piracy' and the reduction of communities' (especially indigenous communities') control over their own genetic and natural resources and cultural values, and restrictions on access to patented pharmaceuticals and the implications for the enjoyment of the right to health ..." In this connection, developing countries in the WTO have raised important questions as to whether the TRIPS Agreement promotes or hinders economic development of developing countries and enables countries to strike an appropriate balance between public interests and private rights. These fundamental issues are at the heart of the review of Article 27.3(b) and must be addressed. During the Seattle Ministerial Conference, developing countries had submitted numerous proposals in an effort to address and resolve the implementation problems they faced, including that of Article 27.3(b). The failure of the WTO to address the implementation problems has resulted in a loss of credibility of the multilateral trading system. If the WTO is to rebuild confidence of the developing countries, a meaningful review of Article 27.3(b) should be the first of many steps towards this objective. There is a growing public objection to Article 27.3(b), which not only facilitates but makes it mandatory for all WTO member countries to patent certain life forms and living processes. This is unacceptable from the ethical, environmental, social and developmental perspectives. We note with encouragement that many developing countries have also come to the same conclusion and that some of them have strongly voiced their demands that Article 27.3(b) should be revised. African Group proposal In particular, we note that the African Group of countries in the WTO has proposed that Article 27.3(b) should be amended to clarify that life forms and living processes cannot be patented. A number of other developing countries in the WTO have supported this position. Unfortunately, there has been strong resistance from the US, which would like to maintain the position that life forms can be patented, and indeed, some must be patentable. This position, if maintained, will lead to serious consequences. Even now, patents on life are being granted almost indiscriminately by patent offices, mostly in the North. These patents distort a patent law system that was originally intended for mechanical inventions, in order to grant corporations and individuals private rights and ownership over biological and genetic resources, traditional knowledge and genetically modified organisms, in order to obtain monopoly profits. The patent system is being used to facilitate the theft of biological resources and traditional knowledge from the South. The monopoly control over such essential resources will also have tremendous impact on food security and the livelihoods of farmers and communities in the developing countries. Our demands The situation is very serious and requires urgent action. We therefore: (1) Strongly support the position taken by the African Group on the review of Article 27.3(b), as contained in the paper submitted by Kenya on its behalf (WT/GC/W/302, dated 6 August 1999). The African Group has clearly laid down the approach and content of the review, and should therefore, be followed. This is summarised below: * The review of Article 27.3(b) must be one of a substantive nature, not merely of implementation. In such a substantive review, the following issues should be clarified: * Relating to the patenting of life, there should be a clarification that plants, animals, microorganisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable. * Relating to the option of establishing a sui generis system for protection of plant varieties, Article 27.3(b) should be clarified with a footnote which states that sui generis laws for plant variety protection can provide for protection of innovations of indigenous and farming communities in developing countries, consistent with the CBD and the FAO's International Undertaking, preserve traditional farming practices (including the right to save, exchange and save seeds), and to prevent anti-competitive rights or practices which may threaten food sovereignty of developing countries. * On the relationship between the TRIPS Agreement and the CBD, the review process should seek to harmonize Article 27.3(b) with the provisions of the CBD and the International Undertaking, in which the conservation and sustainable use of biological diversity, the protection of the rights and knowledge of indigenous and local communities, and the promotion of farmers' rights, are fully taken into account. * The implementation of Article 27.3(b) should be extended until after the completion of the substantive review of Article 27.3(b). The period given for implementation of the provisions should be the same as that allowed in Article 65(1) and (2) of TRIPS; namely, five years from the date the review is completed. This period is provided to allow developing countries to set up the necessary infrastructure entailed by the implementation. (2) Strongly urge other WTO Member to support the position taken by the African Group in their proposals on the review of Article 27.3(b). (3) Call on the WTO Members to amend Article 27.3(b) as soon as possible, in line with the proposals of the African Group, as stated above. (4) Urge WTO members to agree on a moratorium on the implementation of Article 27.3(b), whilst the review and revision of Article 27.3(b) is on-going. The transition period expired on 1 January 2000; which means that the majority of the developing countries are now legally obliged to implement Article 27.3(b). Governments, which have yet to implement the TRIPS Agreement should not be forced into enacting laws that will allow for patents on life. Therefore, member countries should refrain from invoking a dispute settlement procedure with regard to the implementation of Article 27.3(b), during the period of review of the provisions of this Article and also, the review of Agreement itself under Article 71.1. (5) Call on WTO Members to agree to extend the deadline for implementing Article 27.3(b) of TRIPS from the present date of January 2000 to five years after the completion of the review of this Article (as has been proposed by the African Group).