TITLE: Lively debate on IPRs at UN access and benefit sharing negotiations AUTHOR: Chee Yoke Ling (Third World Network) PUBLICATION: revised version of an article published in SUNS #5745 DATE: 22 February 2005 NOTE: Two days after the meeting ended, UNEP headquarters in Nairobi issued a press release dissociating itself from the statement its representative made in Bangkok (see under "Going Further"). LIVELY DEBATE ON IPRS AT UN ACCESS AND BENEFIT SHARING NEGOTIATIONS by Chee Yoke Ling Third World Network 22 February 2005 The issue of intellectual property rights became one of the most controversial and heatedly discussed topics at a meeting on access and benefit sharing under the UN Convention on Biological Diversity (CBD) held in Bangkok on 14-18 February. The relationship between the CBD and the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) figured prominently in the intergovernmental discussions that took place at the meeting of the CBD Working Group on Access and Benefit Sharing (ABS). The lengthy and lively debate on this topic was first sparked by an opening statement of the UN Environment Programme (UNEP) that highlighted "real contradictions" between the CBD and the WTO's TRIPS agreement. Throughout the rest of the week, there were sharp differences in positions between developing and developed countries on this issue and how it should be dealt with. In the opening plenary session on 14 February, UNEP's representative, speaking on behalf of the Executive Director, Klaus Töpfer, said: "There are real contradictions in essential points between TRIPS and the CBD, which must be resolved." "IPRs applied to life forms under TRIPS runs counter to, and do not support the objectives of the CBD particularly on such aspects: * IPRs will prevent the CBD from realising the full and practical meaning of Article 3 on national sovereignty (which is supposed to regulate access to genetic resources) and Article 8(j) on the farmers' Rights; * Conservation of biological diversity as called for by the CBD is not possible under a global regime of private monopoly rights. Conservation of biological resources implies enormous responsibility that TRIPS does not allocate to those who will benefit from ownership rights to these resources". The UNEP executive director's statement went on to say that "the private property regime established by the TRIPS will undermine the benefit sharing provisions of the CBD. Private monopoly can only begin where national or community sovereignty has been effectively suspended. "Therefore, under TRIPS, the very genetic resources which nations and communities are supposed to control access to, will be under the control of IPR holders. Governments and communities will have no means of regulating access or demanding a share of the benefits because they will be subject to private ownership, contrary to the objectives of the CBD." The UNEP statement pointed out that "many developing countries have not yet been able to develop national strategies on biotechnology, but must nonetheless implement new IPR regimes to conform to the terms of the TRIPS Agreement." The statement marked the first time that UNEP had taken such a clear position on the issue of the relationship between the CBD and the TRIPS agreement, and it set the tone for subsequent discussions. Throughout the week, a number of developing countries also raised their concerns about the conflicts between IPRs and the CBD objectives. However, the UNEP statement displeased developed countries and this was clearly made known by them at the closing plenary session on the afternoon of 18 February during the adoption of the Working Group report. The Netherlands, speaking on behalf of the European Union, said that the EU did not agree with the statement of UNEP. As Parties to both the CBD and TRIPS, mutual supportiveness was ensured and there was no conflict. Australia expressed "serious concerns" over the statement and questioned "the appropriateness of UNEP" in making the statement that TRIPS will undermine access and benefit sharing under the CBD. Australia also said that the two agreements are mutually supportive. Ethiopia, speaking on behalf of the African Group, said that the relevant paragraph in the report of the Working Group described what had happened: that the two agreements are inherently contradictory, and "no amount of wishful thinking will make them mutually supportive". The Ethiopian delegate, Dr. Tewolde Egziabher, who has been a veteran negotiator at the CBD since its inception, said that this issue was debated before and will be debated as long as the rules of TRIPS prevail. "The agreements will be mutually supportive only when the TRIPS Agreement is amended to take care of the needs of indigenous and local communities," he said. Brazil said that the report conveyed the speech by the UNEP Executive Director and requested the UNEP representative to convey to the Executive Director that Brazil is looking towards resolving the contradiction between the TRIPS agreement and the CBD. Switzerland saw no contradiction between the two agreements. The United States said that the UNEP statement was "beyond the mandate of UNEP" and that ?UNEP had no competence to deal with IPRs". Hartmut Meyer of the German NGO Forum for Environment and Development, speaking on behalf of a number of NGOs at the meeting, said that for many years thousands of civil society organizations have come to the same conclusion: that IPRs and TRIPS are in conflict with the CBD objectives. UNEP representative Margaret Oduk stressed that the main message of UNEP's opening statement was the need for mutual supportiveness between multilateral environmental agreements. She said that views expressed at the plenary were duly taken, and reiterated UNEP's role in the access and benefit-sharing process that had been outlined at the opening plenary session. While UNEP unexpectedly gained attention, the issue of "mutual supportiveness" between the CBD and TRIPS, and between the CBD and WIPO, was questioned by many developing country delegations throughout the week's discussions. The Philippines said that the CBD is the primary framework to address ABS issues and that it is necessary to address the conflicts between TRIPS and the CBD. Ethiopia, on behalf of the African Group, said that while WIPO may be asked to provide inputs, the CBD Parties have the ultimate say on issues under the CBD. South Korea said that the international regime on ABS should be based on the voluntary Bonn Guidelines and be consistent with developments under WIPO, TRIPS, the WTO and FAO (the International Treaty on Plant Genetic Resources). Many developing country delegates and observers from NGOs and indigenous peoples' organizations welcomed the UNEP statement, and said that it "squarely addressed the fundamental contradiction between TRIPS and the CBD." In a well-attended side event during the week on developments at the WTO-TRIPS, WIPO and CBD, Egyptian delegate Ahmed Abdel Latif shared his personal views after 4 years as a negotiator at the WTO TRIPS Council and WIPO (where he was the African Group coordinator until December 2004). He underlined that the notion of "mutual supportiveness" between international fora can lend itself to different interpretations. He emphasized, in this regard, that, from the perspective of developing countries, this notion meant that TRIPS and WIPO should be made supportive of the CBD objectives and principles. There are important flaws and contradictions in TRIPS, such as the requirement to patent some biological resources without requiring compliance with the CBD obligations of prior informed consent and equitable benefit sharing, he added. The detailed proposals by the Africa Group and developing countries including Brazil, Bolivia, Cuba, Ecuador, India, Peru, Thailand and Venezuela, for amendments to the TRIPS Agreement at the TRIPS Council reflect the need to address the contradictions of TRIPS in relation to the CBD. He added that the trilateral relationship between the CBD, TRIPS, and WIPO is becoming an integral and critical part of the way that the misappropriation of genetic resources and traditional knowledge are addressed. Developing countries thus need to coordinate nationally and internationally to develop a comprehensive approach. He said that the three institutions have very different mandates. The TRIPS Council has been instructed by the Doha Ministerial Declaration to examine the TRIPS-CBD relationship in accordance with Article 7 and 8 of TRIPS (on objectives and principles) and taking full account of the development dimension, with many developing countries taking a pro-active role in the last few years. WIPO's mandate, however, is to promote patents and other IPRs, and thus normative work in WIPO to 'protect traditional knowledge' should be closely followed in particular in relation to ideas to "protect" TK in a similar way as for other conventional intellectual property rights. Indigenous peoples' perspectives and the development dimension, not just users' interests (i. e. intellectual property holders), should shape any normative work in this field, said Ahmed Abdel Latif. The Proposal for establishing a Development Agenda for WIPO that was submitted by 14 developing countries, and adopted at the 2004 WIPO General Assembly was a significant step forward in working towards integrating the development dimension in all aspects of WIPO's work, in particular standard setting. With respect to the 2004 invitation of the 7th meeting of the CBD Conference of the Parties to WIPO to work on disclosure of source/country of origin in IPR applications, Ahmed Abdel Latif said that developing countries at the WIPO General Assembly had initiated a mechanism that involves more country participation in preparing a response to the CBD. He stressed that CBD Parties must maintain, assert and retain the CBD's own distinctive views and perspectives. In the opening plenary of the Working Group, a representative of the Third World Network (TWN) said that it is important for the CBD to be the primary framework in dealing with ABS issues. Thus any move to ensure "mutual supportiveness" must be guided by the CBD objectives and principles. In supporting the statements by UNEP and a number of delegations, TWN drew attention to an important development in the US where excessively broad claims or claims that have deficiencies have been accepted in patent applications, with undesirable effects. The TWN representative cited a recent article by a US patent lawyer in Nature Biotechnology (Volume 23 No. 2, February 2005, pp 245-247): "In view of the damage caused by questionable patents and the limited options available for challenging their validity, there is widespread belief that a better system is needed". Three new reports by the US Patents and Trademarks Office, the Federal Trade Commission and the National Academy of Sciences recommend reforms to make challenges to patent validity more rapid, effective and less expensive. A bill (Patent Quality Assurance Act) has been introduced in the US Congress recently for this purpose. However, according to TWN, this does not go far enough as the extension of the scope of patents to cover life forms contradict the CBD objectives. TWN called for a roll back in patentability, and an ABS regime under the CBD should be an alternative. Delegates were also urged to consider the proposals by developing countries at the TRIPS Council relating to the CBD-TRIPS relationship and the protection of traditional knowledge. The adverse impact of patents in particular on biodiversity conservation and use of biological resources, as well as on the rights of indigenous peoples and local communities to their resources and knowledge has increasingly raised concerns among scientists, civil society and many governments. These concerns were present already at the time of the CBD negotiations but developed countries resisted any language that might infer that IPRs can be negative. Although the CBD compromise language is that "patents and other IPRs may have an influence on the implementation" of the CBD, Article 16(5) obliges Parties to ensure that IPRs "are supportive of and do not run counter" to the objectives of the CBD. During the Bangkok meeting, some developing countries included, as one of the elements listed in Annex 1 of the decision on the International Regime on Access and Benefit Sharing, "Measures to ensure that IPRs do not undermine the international regime". At the meeting, while developed countries spoke of mutual supportiveness, there was strong resistance by many of them to any substantive link with the work of the TRIPS Council. This took place when the issue of compliance with prior informed consent and mutually agreed terms for access and benefit sharing was being discussed at a sub-working group. Many developed countries argued that work on disclosure of origin/source/legal provenance of genetic resources and associated traditional knowledge in applications for IPRs should primarily be done by WIPO. However, many developing countries countered by saying that the ABS Working Group of the CBD had the mandate to examine this issue, and the inputs that WIPO and other institutions were invited to provide would be part of the analysis to be considered by the Working Group. The developing countries also argued that the work at the TRIPS Council has an important link to the CBD, since it is specifically addressing the TRIPS-CBD relationship and there was active discussion and proposals in the Council on disclosure requirements and patentability over life forms. In turn, the outputs of the ABS Working Group should also be transmitted to those institutions and processes. Brazil, Colombia, Egypt, Malaysia, Liberia and Ethiopia, the Netherlands (EU), Canada, Australia and Switzerland were invited to form the Friends of the co-Chairs to resolve their differences. After a long night's work, it was finally agreed that the results of the examination by the Working Group on this issue are to be transmitted to "WIPO and other relevant fora such as FAO, UNCTAD, UNEP, UPOV, WTO". The listing of so many other international organizations was due to the desire of the developed countries to not single out the TRIPS Council. In the compliance decision, the Executive Secretary of the CBD is also requested to compile pertinent documentation, in particular, recent proposals submitted by Parties to the CBD "in the following international organizations listed in alphabetical order: FAO, UNCTAD, UNEP, UPOV, WIPO and the WTO TRIPS Council". The documentation is to be made available on the clearing house mechanism of the CBD and to the next meeting of the ABS Working Group. The original proposal was submitted by Brazil, and supported by Egypt, Colombia, Malaysia, and the African Group, to refer to the positions taken by many developing countries in the TRIPS Council, relating to the review of the TRIPS agreement on the issue of patenting of life forms (Article 27.3(b)) and the TRIPS-CBD relationship. The advanced stage of these discussions and the detailed proposals particularly by a group of developing countries (on disclosure requirements) and the African Group (on prohibition of patents on life forms) in the TRIPS Council was seen as mutually supportive of the work of developing countries in the CBD. GOING FURTHER (compiled by GRAIN) UNEP, "UNEP Clarifies its Position on Access and Benefit-Sharing", UNEP press release, Nairobi, 20 February 2005. http://www.unep.org/Documents.Multilingual/Default.asp?Docu mentID=424&ArticleID=4720&l=en Kultida Samabuddhi, "UNEP taken to task for criticism", Bangkok Post, 19 February 2005. http://www.bangkokpost.com/190205_News/19Feb2005_news11.php UNEP, "Speech of the Executive Director to the 3rd Meeting of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing, Bangkok, Thailand, 14-18 Feb 2005", excerpts circulated on GENET News, 16 February 2005 (scroll to Part II). http://www.genet-info.org/genet/2005/Feb/msg00062.html For broader coverage of the third meeting of the Ad Hoc Open-Ended Working Group on Access to Genetic Resources and Benefit-Sharing of the Convention on Biological Diversity, 14-18 February 2005, in Bangkok, see IISD: http://www.iisd.ca/biodiv/abs-wg3/ Official CBD webpage of the meeting: http://www.biodiv.org/meetings/abswg-03/default.shtml