September 1999 Sprouting Up: AFRICA URGES “NO PATENTS ON LIFE” Africa has recently made significant strides in indigenous policy development on intellectual property rights over biodiversity. In July 1999, Africa took unified position on the review of the World Trade Organisation’s (WTO) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) through two distinct processes: * On July 6-10 in Algeria, the Council of Ministers of the Organisation of African Unity (OAU) adopted a number of proposals for the 1999 review of TRIPS Article 27.3(b), most notably on the patenting of life forms. * On July 29 in Geneva, the African Group at the WTO communicated its own proposals for the 1999 review of TRIPS 27.3(b) to the General Council. These proposals were tabled as part of the official preparations for the Third Ministerial Conference of the WTO, which will take place on November 30 - December 3 in Seattle, USA. In both cases, Africa requested that the TRIPS Agreement clarify that plants and animals, as well as microorganisms and all other life forms and their parts and the processes used to obtain them, cannot be patented. The reasoning put forward is that there is no basis for the distinction, within TRIPS, between plants and animals, which need not be patented, and microorganisms, which must be patented. Nor is there a basis for distinction between essentially biological process, which cannot be patented, and microbiological processes, which must be patented. Without a basis for such differentiated treatment, and given that life forms and the processes through which they are generated are part of nature, African trade policy makers argue that there should be no patenting in this arena. The African Group has gone a step further with its demands to the WTO. In addition to barring life patenting, it wants TRIPS to allow any national sui generis law to protect the rights of farmers, indigenous and local communities. Such “community rights” are recognised in the Convention on Biological Diversity and in the International Undertaking on Plant Genetic Resources. The sui generis option in TRIPS Art 27.3b has been quite controversial. It requires that some kind of protection of intellectual property over plant varieties be provided at the national level – either patents or an effective sui generis system. Many countries are opting for a sui generis solution without being sure what it means, especially if it is to be considered “effective” in World Trade disputes. Subject to the outcome of the 1999 review of Art 27.3b, which Africa wants extended, developing countries have until January 1, 2000 to implement this provision. Both at the OAU and in Geneva, Africa has made solid and exemplary steps forward. Civil society organisations around the world are quickly rising to commend and defend these intiatives. In particular, an NGO Statement of Support for the African Group Proposals on the TRIPS Review is circulating in several languages (see below). But will Africa’s position hold up? It can, if other developing country government quickly come out and support it. This will depend for a great measure on whether NGOs, peoples’ organisations and other groups use the space opened up by Africa to voice their demands. The position that many of these groups hold is “biodiversity out of TRIPS.” That means not only no patents on life, but no forced requirement to provide intellectual property rights over plant varieties under TRIPS either. The bottom line for many groups is that WTO should not have the authority to determine, administer or sanction rights to biodiversity. Biodiversity is not a trade issue. It is a livelihood issue. Until peoples’ rights over biodiversity are clearly secured, the WTO’s role in this arena should be loudly contested. There is a huge momentum building up to say “no” to any further trade negotiations at the WTO Ministerial in Seattle (November 30-December 3) and to assess the gains and losses incurred under the WTO so far. Even on such a high-stake issue as trade in genetically-modified organisms (GMOs), European leaders, concerned about the implications of transgenic crops and food, have announced their resolve to call for “no trade agreement.” Calling for a halt on IPRs on life in this context, in full support of Africa’s excellent proposals, is a matter of urgency. Statement of support for Africa A Joint NGO Statement of Support for the Africa Group Proposals on Reviewing the WTO TRIPS Agreement (Article 27.3b) was issued by Third World Network in August 1999. For copies of the statement in English, Spanish or French, and to sign up before Seattle, contact TWN by email at [email protected], by fax at (60-4) 226 45 05 or on the web at http://www.twnside.org.sg Sources: Council of Ministers, 7th Ordinary Session (July 6-10,1999, Algiers), Elements for Positive Agenda in the New Trade Negotiations under the WTO from an African Perspective, OAU, Addis Ababa, CM/2110 (LXX) Annex IV, pp 14-17; Gen. Council, Preps. for the 1999 Ministerial Conference: The TRIPS Agreement, Communication from Kenya on behalf of the African Group, WT/GC/W/302, 6 August 1999, WTO, Geneva, avail. in English, French, Spanish at http://www.wto.org/wto/ddf/ep/public.html