Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 7Indeed, many indigenous peoples and NGOs representing traditional farmers andthose practising subsistence agriculture have denounced attempts to impose intellectualproperty protections on third world countries. 26 These are not isolated opinions.The resistance to patents in the area of food and agriculture has provokedstreet riots involving over a half million farmers in India, various indigenousrefusals to permit researchers to enter ancestral areas, and dozens of declarationsby indigenous peoples, including The Seattle Declaration of Indigenous Peoples atthe WTO meetings in 1999 (which continues to make the rounds on the Internetand to attract the signatures of more and more indigenous peoples and NGOs). 27The Seattle Declaration opposes the patenting of lifeforms, micro-organisms,plants, animals and all of their parts and natural processes and insists upon theprinciple of prior informed consent and the right of veto by indigenous peopleswith respect to the appropriation of indigenous seeds, medicinal plants, and relatedknowledge about these lifeforms. It is increasingly unlikely that existing IPRregimes will be used as the primary means for protecting ITKIP. 28 However, thereis still further research to be done to determine how IPR regimes can be improvedso as not to undermine forms of cultural diversity.Despite a fairly overwhelming consensus that IPRs will not serve the range of relevantindigenous needs, it is widely recognised that membership in the WTO createsstate obligations which will require the introduction of some new legal rightsand the need to legally justify the refusal to introduce other forms of intellectualproperty protection. Current legal regimes, it is argued, sanction the usurpation offarmers’ traditional knowledge. 29 Only if states are prepared to independently protectITKIP and to limit plant breeders’ rights will ITKIP, and the cultural diversityit manifests, survive.Given the TRIPs obligation to protect plant varieties, it is asserted that any newbreeders’ right introduced should be subject to a public interest proviso that precludesthe granting of such a right when the public interest so requires. This, it issuggested, will be the case “where biodiversity is adversely effected, where thevariety poses a possible hazard to the agricultural system and to human, animaland plant life, based on the precautionary principle, where the introduction of thevariety might affect the innovative capacity and indigenous technologies of farmers,healers, indigenous peoples, and local communities” (Nijar, 1999a).Moreover, it is suggested that states pass laws to protect and respect the knowledgeof indigenous peoples and farming communities with respect to plant varietiesthat would provide for a proprietary right of such peoples to any varietydeveloped by, or essentially derived from, the knowledge of indigenous peoples ortraditional farming communities, recognising co-ownership among communitiesif necessary (Nijar, 1999b).All of the Council Parties (with the exception of Luxembourg) currently adhere tothe International Union for the Protection of New Varieties of Plants (UPOV).Research is needed to determine if the introduction of a public interest provisionwould be congruent with UPOV obligations and whether recognition of communally-developedvarieties could co-exist with a plant breeders’ rights regime based177