SUI GENERIS - A DEAD END ALLEY

December1996

Over the last few years, NGOs have invested considerable time and energy in fighting intellectual property rights over life. Many of these efforts have been focused on developing the so-called sui generis option of the GATT TRIPs agreement. The TRIPs agreement, while obliging signatories to implement some kind of intellectual property rights (IPRs) over plant genetic resources, theoretically allows some scope for the development of alternatives to the two established systems, industrial patents and plant breeders' rights (PBR).

NGOs hoped that these sui generis (meaning `of its own kind', or `unique') systems might be developed in a way that could limit the influence of the limited `blueprint' approach to protection that patents and PBRs offer, and provide some protection for traditional knowledge and innovation systems.

The present article is a first attempt at a critical evaluation of these hopes. It is written mainly from a Latin American perspective, but much of the analysis should be equally valid in other parts of the world. The conclusions are quite harsh. The various attempts to accommodate `collective property' or `community rights' within the existing framework of intellectual property systems have not been successful. In some cases, they may have been directly counter-productive.

It must be emphasised that this analysis should not be read as an attack on persons or organisations involved in this work. It is not their intentions that are being questioned, but the actual or potential results of the work being done. The author certainly assumes her part of the responsibility both for what has and has not been achieved.

There seems to be growing confusion, at least among Latin American NGOs, about what positions we are and should be taking regarding intellectual property and the alternatives to it. While there has been no fundamental re-evaluation of the original flat `no' to ownership on life, in practice there has been a move toward discussing and/or accepting various `different' forms of IPRs. This contradiction is explored and analysed after first outlining the major reasons for opposing IPRs on life and the community rights we are trying to support.

Some of the most important rights related to access and property rights are that:

* rural and indigenous communities should have full access to and full rights over the existing resources, whatever their origin.

* these same communities should be able to maintain and strengthen their systems of innovation and knowledge creation, so that they may continue producing and exchanging to fulfil their basic needs and other objectives, and utilise their resources as they find best.

* rural communities should be the primary beneficiaries of the resources they have created

* all cultures have the right to exist and keep on developing, maintaining and respecting values and worldviews not determined by market globalisation.

The most commonly stated reasons for opposing IPRs on life include the following:

* they contradict fundamental beliefs and rights, such as the sacredness of life, the free flow or knowledge, the freedom of information, etc.

* they limit or impede access to and control over basic resources for peasant and indigenous communities.

* they destroy local and indigenous systems of knowledge, use and exchange.

* they reinforce commercial and monopolistic exploitation of resources and knowledge created by local and indigenous communities.

Having outlined the main principles at stake, it is time to examine the record card.

Community access and control

Are NGOs contributing to improved access and control by rural communities over existing resources?

Yes, possibly we are, but not through our work on intellectual property. We were not able to stop PBRs or patents, which fundamentally restrict community control, although their full effects have not yet been felt in Latin America.

Access regimes seem to be the next battlefield. The most advanced access regime in Latin America, that of the Andean Pact countries (Bolivia, Colombia, Ecuador, Peru and Venezuela) does not improve access for communities. On the contrary, it prevents forms of exchange that until now have been completely free (as for example between farmers and national universities), and it may serve to force farmers to give away their resources.

This regime was developed by the Pact governments, so we should not be surprised at its character. But the proposal made by civil society organisations in Colombia - probably the one developed with the greatest degree of participation by civil society organisation members, and the one that can be expected to be used as a model for the region - has included along its development process similar or even worse limitations, as illustrated by the following extract:

Although this proposal was changed later on, it still shows what sort of alternatives have been explored by NGOs in the region. This proposal seems to leave communities without the means to decide independently about studies of their own resources, or about where their own knowledge goes. How will the confidentiality clause be implemented? Who will stop locals from studying their own resources? Will they be sent to prison or fined when they break a contract or violate a law by doing what they have done for centuries? Will this serve as a valid excuse for transnationals to, in turn, disregard contracts?

Self-imposed restrictions and acceptance of patents sometimes even turn up in decisions by indigenous organisations known for their strength and integrity:

Are these organisations aware that by accepting patenting, they will lose both control and rights over their resources and knowledge?

Indigenous knowledge systems

Are we making any progress toward the protection of local or indigenous systems of innovation and knowledge creation?

Although the protection of local systems has no doubt always been the common goal of all civil society organisations involved in the issue, it now seems that many of the alternative regimes being developed actually work against it. We seem to be lost in a conceptual chaos caused by the attempt to develop the "indigenous or community equivalent" of the basic concepts of the present industrial and post-industrial property system. And thus we speak of "collective intellectual property" or of "just and equitable distribution" without analysing if such concepts are really compatible with non-Western systems of knowledge creation.

On repeated occasions, indigenous and peasant organisations that participate in this struggle have pointed out that each time that we speak of "mine", "yours" or "ours", we are not necessarily speaking of property, because in indigenous and peasant societies (and also in the best of the Western humanist tradition), "yours", "mine" and "ours" also is associated with the concept of the gift, and thus with something which cannot be appropriated, sold or restricted, much less monopolised.

There is an important difference between a gift and property. The right to enjoy a gift (through means as diverse as use, sharing, celebration or contemplation) comes with an obligation to protect it, strengthen it, ensure its proper use when needed, share it with others and pass it on as a further enriched legacy. Rural societies - indigenous or peasant - have always understood that weather, land, water, plants, seeds and their corresponding knowledge are a gift, just like family, community, and the ability to be in touch with God, Nature and life. For indigenous communities, these gifts are sacred, and the most sacred only come to those who have special powers and abilities for communication and sharing.

The concrete expressions of this worldview are countless, but perhaps the most universal is that seeds and knowledge are shared with pride and given away as a great honour. This high appreciation and this form of sharing is of fundamental importance for the flow and creation of knowledge, and for the creation, adaptation and dissemination of diversity. It is also of importance for cultural survival. The systems of exchange and free flow established by indigenous peoples allowed them to survive, adapt and "absorb" non-indigenous communities.

Five hundred years of cultural resistance to Western ideologies was possible because the indigenous cultures and the peasant culture derived from it co-adapted to keep flowing and evolving through any free space that was left to them. One of the hardest blows to these cultures - the Green Revolution - was so effective just because it was able to prevent the flow of local knowledge by denigrating and devaluing it. Thousands of farmers and local researchers, indigenous elders and healers kept their knowledge locked up in order not to be humiliated. It took little more than a generation of Green Revolution for much of this knowledge and its associated resources to disappear from lack of use or circulation.

The Green Revolution played a major role in converting the gift of seeds and knowledge into property. This conversion resulted in a loss of value as well as of sacredness. Seeing its central values depreciate has a profound impact on communities, often affecting their ability to live with dignity and creativity. It is also often hard to maintain the mechanisms for protection of resources and knowledge once they are converted to merchandise. Any mechanism allowing property rights to life and knowledge - no matter how "communitarian" - is at best Russian roulette. In looking for alternatives we should take note that many of the proposals for sui generis systems have made exactly the same assumption that many industrialised country representatives have made in the international negotiations: that protecting the property rights over knowledge and biotic resources is equivalent to protecting knowledge and biotic resources. In reality, the former is turning into a powerful weapon for the destruction of the latter.

As Marcus Colchester noted in Seedling two years ago:

We should be equally explicit and aware that in imposing property systems on life and knowledge in any of its forms, Western culture also loses fundamental values and rights, as well as possibilities for the creation of knowledge.

Firstly, although often in a narrow, fragmented and anthropocentric way, the sacredness of life has also been an essential part of the beliefs and values which give full meaning to the life, work and struggle of those of us who are not indigenous nor farmers. We are not just working in solidarity, we are defending the rights of everyone.

Secondly, the foundations of our present scientific development were created under the explicit assumption that knowledge was a common good created for the common good. However, not only is science manipulated by economic and political interests, but the exchange between scientists - a basic tool for accelerating the creation of knowledge - is being systematically dismantled.

Thirdly, the more laudable characteristics of Western values are being violated and eroded, exacerbating the problems being created. For example, public science (characterised by free access, free creation and working for the common good) is fast disappearing. As so many have already said, peasants and non-peasants, indigenous and non-indigenous alike, we all have the right to say NO.

The logical next step is to exercise this right and plainly reject intellectual property altogether. Why is this not happening? Why do we continue to negotiate, attempting damage control through accommodation, accepting being governed by rules we know to be extremely damaging? Have we lost hope? Are we afraid? Do we feel cornered? Do we know that something has to be done, but do not know where to start? The effects of our desperate actions are starting to show, and it is not a pretty sight.

Benefits to communities

Have we helped secure any guarantee that rural communities should be the first beneficiaries of the resources they have created?

Again, if we have done this it has not been through our work on patents and intellectual property. Despite our lobby work or negotiations on patents and plant breeders rights, the balance-sheet shows an increase in laws and regulations that manage, facilitate and organise the expropriation of resources, relative to those protect them. In addition, the trends in access regimes and the rise of bioprospecting contracts seem to indicate that we are heading down a suicide road.

It is not only the state, or para-statal organisations, that are signing away control over biodiversity in return for questionable benefits. In some cases it are the organisations of indigenous peoples or local communities themselves. An example is the contract signed between the AWA Federation and the National Cancer Institute of the USA. This contract, signed in 1993 for collection of plants with anti-cancer and anti-AIDS characteristics, is worse than many others as it gives the AWA indigenous people of Ecuador and Colombia no guarantee of benefits whatsoever, while obliging them to give away their knowledge and their Federation to transform itself into a police force over its own people:

The obligations of the AWA Federation in the collaboration include the following:

This agreement is one of the worst examples of how bioprospecting contracts can completely ransack communities knowledge and resources. But is it even possible to achieve "just and equitable" contracts which benefit the communities of origin? What does this mean? Ten percent of the proceeds, 50 percent, 70 percent, 90 percent? Transnational companies and research institutions are not prepared to offer more than 1 or 2 percent. Should any community or country demand 20 or 50 percent, researchers simply go to another community or country until they get what they want the price they want to pay. Contracts have not come about because the transnationals or scientists are concerned about getting a fair deal for the locals; rather because they guarantee them local co-operation, which increases their efficiency.

Even should a community manage to get agreement for a truly high share of the benefits, there would be other costs involved. Patenting rights and confidentiality clauses are an essential part of any contract for transnational companies. This prohibits a community from sharing its knowledge with anyone else. Should NGOs establish legal services to advise local communities on how and when they can or cannot use the resources they have transferred, so that they do not violate laws and contracts that could result in imprisonment. Should we advise communities never to share any knowledge or resource in order to maintain future possibilities of signing some bioprospecting contract? Should all visitors be body searched to assure that they do not take away any material covered by an exclusive rights contract? Finally, and above all, can local communities benefit from certain resources if they do not retain complete rights to use them, expand them and develop them?

Some may argue that the local communities are losing control over their resources in any case, and that the contracts at least assure them some benefits. But will this mean an end to biopiracy? Let us consider a concrete case. A recent communication from Edward Hammond of RAFI informs us that researchers from University of Colorado have patented a variety of quinoa for a specific use in plant breeding. Let us assume for a moment that the researchers in question had wanted to avoid biopiracy or that the community or the country that provided the material had been very well organised and managed to negotiate a contract in which the patent holders agreed to pay 50 percent of the returns to those that provided the material. This is a percentage much, much higher than in any contract signed to date. With this we could conclude that the problem of biopiracy had been "solved" as far as the researchers were concerned.

Now suppose that other communities (which may also be from other Andean countries), with ancestral varieties similar to the patented one, would now or in the future discover some similar commercial use for the patented characteristic. If the patent were honoured in their countries, they would have to refrain from using it, or pay royalties to the patent holder, one half of which would go to the community or the government that signed the contract which would now be the biopirates.

None of the above is intended as a denial of the right of each local community to control its resources or knowledge. It merely points to the fact that local control should apply both ways. Just as no contract or law should be allowed to force people to give up what they helped create or conserve, no law, contract or situation should be allowed to force them to maintain a monopoly over those same resources.

The reason that we have ended up in a quagmire in relation to biopiracy is that the fundamental problem is not biopiracy itself. The more basic problem is the appropriation and monopolisation of life and knowledge. It may be possible to obtain contracts with high royalty rates for those who have provided resources, but this will not prevent the rise of serious conflicts between rural communities, even across national borders, nor will it prevent the deadly subversion of local cultures through the imposition of confidentiality. Knowledge which is not shared or nourished by other shared knowledge, does not grow or evolve, and finally dies. A resource which is not freely and widely known, appropriated and explored by a community loses its value and consequently disappears. Contracts will not only be incapable of defeating biopiracy, but will institutionalise the destruction of exactly those cultures for whose rights and survival we profess to be struggling.

Nonetheless, biopiracy is certainly a problem and we have to fight it. Biopiracy is the extraction of exorbitant and monopolistic profits on the basis of, or at the expense of, local resources and knowledge. It is also robbery and destruction of local resources for the sake of selling one's own merchandise, or the forced imposition of a certain supplier. Large conglomerates will continue to make profits in this way as long as they have a market, because there will always be some way of extracting, monopolising or destroying resources with the help of ignorance, misinformation, intimidation, naiveté, imprudence, good faith, good will, submission or the desperate will to survive.

The only way to fight those monopolies is by fighting mega-markets. This will happen when we reclaim diversified production systems based on local resources and knowledge, when agriculture ceases to be an input-consuming machine, when farmers reclaim the right to use and develop their own technology, when we stop eating the same thing in Manila, Pittsburg and Conception and our health no longer depends on Monsanto and Ciba-Geigy. This will also be the only way in which indigenous people and farmers will become the primary beneficiaries of what their societies have created and can continue to create.

Farmers' Rights

What have we achieved in terms of defining Farmers' Rights?

The history of Farmers' Rights is that of how a promising approach was aborted halfway. No NGOs or civil society organisations will deny that the rise of Farmers' Rights was positive, insofar as it was a hopeful sign that an international body would finally begin to recognise that farmers have created and preserved the agricultural diversity from which we benefit. At the same time, there was very broad unanimity that many problems remained to be solved, in particular the lack of real mechanisms for applying Farmers' Rights, and the total lack of money for their implementation. NGOs then put a good deal of their energy into proposing financing solutions and mechanisms that would assure that the benefits reached farmers without getting stuck in national or international bureaucracies. So far there seemed to exist a clear conviction among NGOs and civil society organisations that Farmers' Rights were in no way analogous to intellectual property rights.

Before long there was a growing recognition that financial compensation by itself, isolated from other factors, was insufficient, both because certain sectors sought to construe Farmers' Rights as equivalent with intellectual property rights - thereby perverting the original concept - and because a mere transmission of money would not solve the basic problems. Efforts then begun to be redirected toward the search for broader definitions of Farmers' Rights. The members of the Seed Action Network (SAN) in Europe made a milestone in 1991 with the first explicit proposal, which came to serve as the basis for several similar attempts in the following years. Farmers' Rights were defined very broadly as a set of human, civil and social rights permitting communities to freely "choose a development path and (...) develop capacities to move down that path successfully". However, despite these promising beginnings, little has come out of this line of thinking.

Unfortunately, political realities never remain stationary. Latin American governments have proceeded to bring the concept of Farmers' Rights closer and closer to the concept of intellectual property, to the point where official documents now typically put them side by side. Discussions among NGOs have slid dangerously in the same direction, perhaps due to the fact that we have mixed up the discussion about Farmers' Rights with the discussion about a sui generis systems. Little by little - consciously or unconsciously - we have drifted into trying to convert Farmers' Rights into an alternative within the IPR debate in GATT.

This ideological move raises two major problems. Firstly, the alternative to intellectual property systems is "NO to intellectual property", in the same way as the alternative to slavery is "NO to slavery". The alternative is not a sui generis system, because if we accept the sui generis we have to accept that there exists a generic referent. If not, the expression sui generis does not have meaning.

Secondly, the problem with the concept of intellectual property over knowledge and life forms is not whether it comes from the North or the South, it is simply the concept as such, which has never existed in indigenous or peasant systems.

Regrettably, the gradual deviation of the discussion toward alternatives or exceptions inside the existing system has lost us precious time in determining what is really needed, regardless of whether or not it fits into a predetermined definition or regulation. This is especially serious when for various reasons we are being confronted with absolute demands to "finally" define Farmers' Rights.

On the hopeful side, the NGOs meeting in Leipzig in June 1996 did produce a resolution on Farmers' Rights which reclaims, reinforces or improves on some of the earlier attempts, and a NGO-Farmers Organisations meeting that took place in Buenos Aires right before the 1996 Biodiversity Convention meeting (COP3) advanced on the same path as well. Perhaps this is due to the very broad participation in Leipzig, and the presence of peasant organisations in the discussions of Leipzig and Buenos Aires. These two tracks must be kept clearly in mind when we continue the discussion.

And what now?

The absence of concrete action proposals for upcoming international meetings could be considered by some as a flaw in the above analysis. It may well be so, but it would be an intended flaw, mainly because nothing will be achieved in the next months - and very little in the coming years - if first we do not re-focus our struggle against the privatisation of life and knowledge.

A first lesson to be drawn out of the process we have been going through is that complacency does not lead to positive results. These past years we have not been good at acknowledging our mistakes, instead focusing on the `positive' aspects that allow for continued action. We have thus embarked on a meeting-to-meeting, summit-to-summit merry-go-round, convinced that the next international gathering will surely stage the battle that should not be missed. Once that next battle has been lost, we have lacked the capacity to look back and figure out why we continue losing ground. We have turned good intentions into wishful thinking; what we need is to turn some harsh conclusions into more patient action.

A second conclusion is that we have before us a long and possibly painful process. Intellectual property over life forms is being forced worldwide, and everything indicates that it will be in place and effective during the next years. We cannot expect significant change for at least five years as far as the patenting of human genetic material is concerned, and it should not come as a surprise if any in depth revision takes 20 or 30 years. Therefore, if we want to keep our hopes up, let's stop convincing ourselves that the next time we will truly win.

The third conclusion is that a problem can not be solved using the same means and concepts that first brought it about it. This implies that we must work on reclaiming our own reference points. We are not faced with just another negotiation, nor with a marginal political issue. What we have before us is a debate which requires profound innovation at the philosophical, ethical and cultural levels; a debate with the sacredness of life as its central axis. We are talking about a process which should take as long as necessary and involve the broadest sweep possible of people, points of view and social experiences.

As a corollary to the above, a fundamental conclusion comes to mind: progress will only be made in so far as we warrant a wide and open ended participatory processes. Greater peasant and indigenous peoples involvement is a current high priority: they are the ones who at the same time have more to lose and more to offer. A great part of the discussion should focus on the rights that small famers and indigenous peoples have been losing, without which their survival as distinct peoples and cultures becomes impossible.

Participation should not only include farmers and indigenous peoples, it is something that concerns all of us, and must be dealt with at all social levels, beyond North-South, East-West dichotomies. Our various backgrounds are not important; what defines our bond is whether we consider life to be non-proprietary or a raw material. The No-Patents-on-Life campaign in Europe is an example of a campaign that has successfully drawn together diverse groups to lobby effectively on this fundamental issue.

Finally, let us face up to the coming six or twelve months. The fact that no concrete proposals are made here should not lead anyone to think this is a call to inactivity. It means that action in itself will not lead us far if we do not recuperate our capacity and our right to wield ethical, philosophical, cultural and even biological arguments, independently of any ongoing negotiations.

GRAIN wishes to thank Peter Einarsson, biological farmer in Sweden and GRAIN Board Member, for the editing of this article.