Governance and Micropolitics of Traditional ... - IPRsonline.org

described in section 2.7. The latest version of UPOV (1991) has been criticised for its
potential to limit farmers from saving, exchanging and selling seeds (see Dutfield, 2004).
Although the drafting of a unique sui generis system may suit the needs of the individual
country, there remains the problem of extraterritorial protection of traditional knowledge and
genetic resources. There remains the possibility that in developed countries, where the bulk of
large pharmaceutical and agro-industrials are based, will continue to patent inventions (or
discoveries) and processes that utilise genetic resources and associated traditional knowledge
without disclosing the source and country of origin of such resources and knowledge. By
using highly technical language in the description of patents, the origins of genetic materials
can easily be obscured.
TRIPS operates with considerable enforcement capacity, as the WTO has established a
Dispute Settlement Body which allows for cross-retaliation (essentially trade sanctions
against offender countries) where countries are not in compliance with TRIPS’ (or other
WTO) requirements. Drahos (2003) notes that it was a huge discursive victory for large
corporate interests to link IP to trade in the Uruguay Round Negotiations because it meant
that IP enforcement could be coercively pursued. Essentially these corporate bodies which
rely on IP protection for the ‘value-added’ elements of their products, were able to convince
the US, and the other member of the Quad Group (EC, Japan and Canada) to forum-shift IP
from WIPO to the WTO such that enforcement carried the threat of trade sanctions.
So why did developing countries agree to TRIPS in the first place if there were so many
aspects that went against their interests? There are several reasons suggested by various
commentators. First, these countries did not agree to TRIPS, they agreed to the entire package
establishing the WTO at the end of the Uruguay Round, which promised to provide more
open markets through tariff reductions, designated agreements on agriculture and textiles
(although these have proved to be less advantageous than many first supposed), and trade
benefits in the form of the Generalised System of Preferences (GSP). Second, Drahos (2005)
indicates that many countries had already been coerced into raising minimum standards of
intellectual property protection through the USTR Section 301 process and regional trade
agreements. Essentially some countries were giving little or nothing away in terms of their
freedom to legislate with regards to patent, or plant variety protection laws.
Importantly TRIPS establishes minimum standards of IP protection, but allows for countries
to seek bilateral and regional free trade agreements that comply, or provide higher protection
than TRIPS. Such agreements must also comply with the rules of GATT, GATS and other
aspects attached to the Final Act establishing the WTO. The US has since therefore pursued a
series of bilateral and regional FTAs which go further than the minimum standards of TRIPS,
namely requiring higher standards than 27.3(b), including patent or UPOV 1991 protection of
plants and animals.
The TRIPS Council
The TRIPS Agreement mandates a review of Article 27.3(b) by the TRIPS Council. The Doha
‘development’ round of trade negotiations has since broadened the focus of the Council’s
discussion and review. According to Paragraph 19 of the 2001 Doha Declaration the Council
should also look at the relationship between the TRIPS Agreement and the UN Convention on
Biological Diversity, the protection of traditional knowledge and folklore. It adds that the
16