Trade agreements privatising biodiversity

For the past 30 years, industrialised countries have been forcing governments of the global South to adopt laws that privatise seeds so that farmers have to pay for them and keep seed companies afloat. They do this mainly through free trade agreements (FTAs). To understand this trend, GRAIN has put together a dataset showing exactly how trade deals negotiated outside the ambit of the World Trade Organisation (WTO) are used to go beyond global standards on the privatisation of seeds, as well as livestock and micro-organisms, and set new ones.

The 1994 WTO agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was the first global trade agreement that sets international norms for private intellectual property rights over seeds. The goal is to ensure that companies like Bayer, Syngenta or Vilmorin, which claim to spend millions on plant breeding and genetic modification to bring “new” seeds to market, can make a profit on those seeds by preventing farmers from re-using them – a bit the way Hollywood or Microsoft try to stop people from copying and sharing films or software. These rights are, in essence, monopoly rights.

The very notion of allowing patents on life forms, like plants or animals, is hotly contested and for that reason the WTO agreement is a kind of compromise between governments. It says that countries may exclude both plants and animals (other than micro-organisms) from their patent laws, but they must provide some form of intellectual property protection over plant varieties, without specifying how to do that. The Union for the Protection of New Plant Varieties (UPOV), an intergovernmental body based in Geneva, claims that their legal system of plant variety protection is perfectly suited to satisfy the WTO requirements. But the WTO member states never said nor sanctioned this.

For all of these reasons, trade agreements negotiated outside the WTO, especially those initiated by powerful countries like the US, tend to go much further. With respect to biodiversity, they often require countries of the global South to:

(a) patent plants or animals;

(b) follow the rules of UPOV to provide patent-like rights to seed companies;

(c) join the Budapest Treaty on the recognition of deposits of micro-organisms for the purpose of patent protection.

These measures give strong monopoly control to agribusiness corporations at the expense of small and indigenous farming communities. For example, both UPOV and patent laws generally make it illegal for farmers to save, exchange or modify seeds from so-called protected varieties.

This dataset zooms in on how countries are being forced to privatise seeds beyond the WTO. It does not cover enforcement and punishment for infringement (seizure of goods, imprisonment, etc), which in many free trade deals also go beyond the rules agreed to at the WTO and is becoming a bigger and bigger headache for rural communities. It also doesn’t fully reflect the growing tendency, among states, to include indigenous or traditional knowledge, as well as rules on access to biodiversity, within the scope of intellectual property rights – where they do not belong.

Most of these agreements are bilateral in nature, but some are plurilateral. And while most of them are trade agreements, a few are sectoral intellectual property cooperation agreements. (Many other trade deals were checked but don’t appear here because they are not TRIPS-plus.)

GRAIN started tracking these deals back in 1999. What is becoming clear over time is that the WTO TRIPS agreement is no longer seen, at least by rich and powerful countries, as the “international standard”. It is now being framed as the “minimum standard”, which by definition should be surpassed. This subtle change of wording reinforces what social movements and civil society groups have long understood about these legal standards, such as UPOV. Once you accept them, you become party to a system that grows regularly stronger in favour of corporations at the expense of local communities.

This dataset is a work in progress. If there are any additions or corrections you would like to share, please contact us at [email protected]