Trade Related Intellectual Property Rights - ActionAid

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Trade Related Intellectual Property Rightsof biological resources directly affects women, wholack resources to purchase them and are left relyingon shrinking and increasingly degraded commonproperty resources. 18Pirating indigenous knowledgeand resourcesTRIPS has made it possible for companies to patentand exploit the traditional knowledge and localgenetic resources (plants, medicines, etc) of poorcommunities worldwide. Instead of harnessing thisknowledge for the benefit of all, companies areusing it for their own profit.Claiming private property rights on plants, processesand knowledge developed over centuries bygenerations of farmers or traditional healers, raisesserious questions about the application of theconcept of 'prior art' in international patent regimes.Indeed, such behaviour can be viewed as a form ofintellectual property theft.Key issues in currentnegotiations at the WTOAt a time when the TRIPS Agreement is under reviewat the World Trade Organisation, 19 the specific reviewof Article 27.3(b) that deals with patents on food andagriculture, which began back in 1999, is stillunderway due to a lack of consensus amongstWTO members. 20TRIPS Article 27.3(b) requires countries to grantpatent protection to micro-organisms, non biologicaland microbiological processes. WTO members mustalso protect plant varieties either through patents orthrough an effective sui generis 21 system or acombination of both. Most developing countrieshave opted for the sui generis protection of plantvarieties taking into account their agriculturaldevelopment and farming practices.The Doha Declaration stated that work in the TRIPSCouncil on the reviews of Article 27.3(b) and Article71.1, as well as on any other implementation issues,For thousands of years, the San people of theKalahari desert in South Africa, Botswana, Namibiaand Angola have chewed the hoodia, or 'xhoba'plant, on hunting TRIPS because they had learnedthat it had appetite suppressing qualities.However, CSIR, a public research institute in SouthAfrica, together with Phytopharm, a UK-basedcompany successfully patented the plant’s keyconstituents. These companies then sold therights to develop and market the resulting drug toPfizer, a huge pharmaceutical multinational, forUS$21 million. The San bushmen were notconsulted and received no benefit: their traditionalknowledge was effectively stolen.Working with BioWatch in South Africa, ActionAidbrought global attention to the San's case. Helpedby this campaign, the San's rights to benefitsharing from the use of their traditional knowledgehave been recognised. While this agreementrepresents a breakthrough, concerns remain.Firstly, although the sums involved could besubstantial, the percentage the San will receive isless than 0.003 % of net sales. Secondly, theSan’s rights were only recognised once aninternational campaign was underway.What is needed are multilateral rules that enforcethe rights of communities and countries to priorinformed consent before traditional knowledge isappropriated and benefit sharing arrangementswhen it is used for profit.18UNDP ibid19Zambia has raised several important points relating to full review including the need to examine the extent to which the transfer of technology has taken place, the costs ofimplementing the Agreement and its implications in developing countries and particularly LDCs.20The TRIPS Council was due to report to the Trade Negotiations Committee (TNC) by December 2002 but with discussions deadlocked, the Chair of the Council optedinstead to deliver a verbal report to WTO Director-General Supachai.21Literal meaning is ‘of its own kind’, implying that the law can be tailor made for that particular product6 fighting poverty together
www.actionaid.orgshould examine the relationship between the TRIPSAgreement and the UN Convention on BiologicalDiversity, the protection of traditional knowledge andfolklore, and other relevant new developments thatmember governments raise in the review of theTRIPS Agreement (e.g. food security). It adds thatthe TRIPS Council’s work on these topics is to beguided by the TRIPS Agreement’s objectives (Article7) and principles (Article 8), and thus must takedevelopment fully into account.Extensive discussions have taken place in the TRIPSCouncil regarding these issues. Over time, theposition of the European Union (EU) has moved, butthe US remains opposed to developing countryproposals.No patents on lifeDeveloping country governments have expressedclear concerns regarding the implications of theTRIPS Agreement for farmers’ livelihoods and foodsecurity, national development and for the moral andsocial cohesion of their societies.In June 2003, the African Group at the WTO restatedtheir position that “plants and animals as well asmicro-organisms and all other living organisms andtheir parts cannot be patented, and that naturalprocesses that produce plants, animals and otherliving organisms should also not be patentable”.Farmers groups and civil society organisationsaround the world have supported this position underthe lose banner of the ‘no patents on life’ coalition.The African Group are seeking a revision to Article27.3(b) to prohibit patents on life forms, but the EUargues that no modification or clarification is requiredbecause TRIPS already allows members sufficientflexibility to modulate patent protection as a functionof their needs, interests or ethical standards. Theyclaim that Article 27.3(b), in conjunction with Article27.2 (exclusion from patentability of inventions thecommercial exploitation of which is necessary toprotect public order or morality) and Article 27.1(patentability criteria) provide developing countrieswith considerable leeway. 22However, given the historical stance taken by the USon TRIPS, it is by no means certain that actionstaken within this ‘leeway’ would not be challenged atthe WTO, not least as a result of pressure exerted bymultinationals.Sui generisTRIPS states that countries are free to protect plantvarieties either through patents or through a suigeneris option. The International Union for theProtection of New Varieties of Plants (UPOV) wasdeveloped as a sui generis system for the protectionof new plant varieties in Europe in the 1960s to suitthe needs of European agriculture and farmingbecause, at that time, patents were not consideredappropriate to protect plant varieties. The flexibilityfor developing countries in terms of what shouldconstitute an effective sui generis system should bemaintained and it should not be equated with UPOV.The African Group in their June 2003 submission tothe TRIPS Council reiterated that “Members have theright and the freedom to determine and adoptappropriate regimes in satisfying the requirement toprotect plant varieties by effective sui generissystems…that provide appropriate and effectiveprotection for the rights and knowledge of farmers,as well as indigenous peoples and localcommunities in a manner that suits thecircumstances of Africa and possibly otherdeveloping members”.The EU agrees that, “Members have a considerabledegree of flexibility in determining how theirlegislation meets the standard of effectiveness,thus allowing them to design a protection regimethat is appropriate to their specific national situation”.It has accepted that “although the UPOV Conventionmeets the standard of effectiveness in Article27.3(b), other protection models may beequally effective”.22IP/C/W/383, 17 October 2002fighting poverty together 7
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