FOR SUPPORT FOR AFRICAN GROUP PROPOSAL ON TRIPS ARTICLE 27.3B ON PATENTING
Dear friends and colleagues,
We would like to bring to your attention an important development at the WTO. On 6 August, Kenya on behalf of the African Group of WTO Members issued a proposal on TRIPS as part of the preparation process for the Seattle Ministerial Conference. The paper can be found at the WTO website on its document dissemination facility.
Part of the African Group paper deals with comments on and proposals on Article 27.3b that deals with patenting of biological materials and of plant varieties. This is an issue of immense interest to many NGOs, farmers' groups and other social movements.
The proposals by the African Group are most significant, as they question the TRIPS' requirement for mandatory patenting of some life forms and some natural processes. It proposes a clarification that plants, animals and microorganisms should not be patentable. It also seeks a clarification that a "sui generis" system of plant varieties protection can include systems that protect the intellectual rights of indigenous and farming communities. It also asks that TRIPs be made to harmonise with the Biodiversity Convention and the FAO's International Undertaking on Plant Genetic Resources.
The tabling of a paper with such a positive position in favour of community rights by such a large group of developing countries is, we feel, a very significant event. It means that the issue of patenting of life is now on the table of the official WTO process of preparing for Seattle.
We feel it is crucial that NGOs and social movements show their support for the position and action taken by the African Group, in order that the issue be made a high priority for the Seattle Conference.
At a meeting of NGOs (organised by Third World Network and Tebtebba Foundation) held in Manila on 9-11 August, it was agreed that the NGOs would draw up and disseminate a joint statement in support of the African Group position.
We are attaching below, the Joint NGO Statement for your information and, we hope, for your action.
We would be pleased if you would consider the following actions:
(1) Sign on to the Statement by sending your name, organisation and address to the Third World Network at: firstname.lastname@example.org. For the French version of the statement, please send your signatures to: email@example.com For the Spanish version of the statement, please send your signatures to: firstname.lastname@example.org
(2) Ask others to sign on to it.
(3) Help to disseminate the Statement.
(4) Make use of the Statement, and the original African Group paper of 6 August, to lobby your Government to take note of and to support the African Group position.
This support by your Government can be made in two ways:
(a) The issue is now on the table of the WTO General Council for the negotiations on what will be decided by Ministers in the Seattle Conference. In practical terms, this means that a paragraph or part of a paragraph of the Seattle Ministerial Declaration can include a reference to the review of Article 27.3b. Governments can be asked to support a position similar to the African Group proposals.
(b) The issue is also being discussed at the WTO's TRIPS Council, where a review of Article 27.3b is taking place. Support for a position similar to the African Group's can be given at the TRIPS Council. The next meeting of this Council is in October.
(5) It is possible that some developed countries will try to downplay, criticise or even undermine the ideas contained in the African Group paper. It is crucial that NGOs prevent this from happening. To enable this preventive action, it is important to first build and spread awareness of what is happening, among NGOs and the public in different countries. We hope you can play your role.
(6) Try to get your Government to formulate a position that could extend further the African Group's position, for example to propose specifically that WTO Members should not allow the patenting of any life forms and natural processes. This means that Article 27.3b should be amended, to say that WTO Members shall exclude from patentability all life forms, including plants, animals, microoragnisms and parts thereof; and also exlude from patentability all natural processes for the production of plants, animals, microorganisms and all living things.
Thank you for your patience for reading this long message. The Joint NGO Statement (with the initial groups signing on) follows.
With best wishes,
JOINT NGO STATEMENT OF SUPPORT FOR THE AFRICA GROUP PROPOSALS ON REVIEWING THE WTO TRIPS AGREEMENT (ARTICLE 27.3b)
We the undersigned social movements, citizen groups and non-governmental organisations would like to express our warm support for the position taken by the Africa Group of countries in the World Trade Organisation on the review of the TRIPS Agreement, Article 27.3(b), relating to patenting of life forms and plant varieties.
According to the paper submitted by Kenya on behalf of the Africa Group to the WTO General Council (WT/GC/W/302, dated 6 August 1999) as part of the preparations for the WTO Seattle Ministerial Conference:
The review process (of this Article) should clarify that plants and animals as well as microorganisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organism should also not be patentable.
The paper also puts forward the view that by stipulating compulsory patenting of micro-organisms (which are natural living things) and microbiological processes (which are natural processes), Article 27.3b of TRIPS contravenes the basic tenets of patent laws: that substances and processes that exist in nature are a discovery and not an invention and thus are not patentable.
It adds: "Moreover by giving Members the option whether or not to exclude patentability of plants and animals, Article 27.3b allows for life forms to be patented."
It calls for the review process to clarify why Article 27.3b does not provide Members with the option of excluding microorganisms and microbiological processes from patentability. The paper says an artificial distinction was made between what can be excluded from patents (plants and animals; biological processes) and what must be patented (microorganisms and microbiological processes).
The above points made by the Africa Group are very significant and crucial, and correspond to the concerns raised by many citizen groups, farmers organisations, environmental groups and development groups around the world. These groups have been campaigning against the patenting of life forms and biological materials because such patents would allow the private monopolisation of life and of biological resources, and would cause serious adverse effects on development, food security, the livelihoods of millions of farmers, on the environment. Such patents are also facing objections from the public on ethical, religious and moral grounds.
We congratulate the Africa Group for their principled and well thought out position on this issue, and we urge other Member states of the WTO to endorse their position on the review of this part of TRIPS Article 27.3b.
The Africa Group paper also gives a clear direction to the review of another part of Article 27.3b, which specifies that Members shall provide for the protection of plant varieties either through patents or an effective sui generis system.
The paper says that the review must clarify that developing countries can opt for a national sui generis law that protects innovations of indigenous and local farming communities (consistent with the Biodiversity Convention and the FAOs International Undertaking); that allows the continuation of traditional farming practices including the right to save and exchange seeds and sell their harvests; and that prevents anti-competitive rights or practices that thratens food sovereignty of people in developing countries.
It adds that the review should harmonise Article 27.3b with the provisions of the CBD and the FAOs International Undertaking, in which the conservation and sustainable use of biological diversity, the protection of rights and knowledge of indigenous and local communities, and the promotion of farmers rights are fully taken into account.
These points made by the Africa Group are very important in recognising the rights of people in developing countries (as well as in developed countries) to protect the traditional knowledge and biological resources of indigenous, farming and local communities.
These points in fact also correspond to the demands of civil society and farmers groups around the world, that patenting of plant varieties should not be allowed, and that a proper system of protection of knowledge on the use of biological resources should indeed protect the knowledge of local communities and should prevent the appropriation of such knowledge by private corporations (an act, known as biopiracy, that is now prevalent as more and more multinational companies are being granted patents on plants and other biological resources as well as for their traditionally-known uses and functions).
We believe that WTO Member states must have the option of a national system of plant varieties protection that protects the rights of indigenous, farming and local communities and their knowledge. The review process must clarify this so there is no mistake in interpretation on what constitutes an effective sui generis system. WTO Members must be allowed to introduce systems of their choice, including those that adhere to the principles of recognising the rights of these communities, in order to ensure food security, livelihoods and the development of sustainable agriculture.
We believe that the position of the Africa Group has contributed immensely to clarifying these demands, and we thus congratulate the Africa Group Members in the WTO for their stand on this matter.
(1) Endorse the positions taken by the Africa Group on both aspects of the review of Article 27.3b of TRIPS, i.e. the patenting of life, and the sui generis systems for plant varieties protection.
(2) Call on all other Members States of the WTO to support the positions of the Africa Group on the review of Article 27.3b.
(3) Call on the WTO Members to formulate a Section in the Ministerial Declaration of the forthcoming WTO Ministerial Conference in Seattle, that the positions of the Africa Group will be adopted in the review of Article 27.3b and that appropriate revisions will be made to the TRIPS Agreement to reflect this.
(4) Call on the WTO Members to amend the TRIPS Agreement as soon as possible to remove its present ambiguities and objectionable provisions and terms that now oblige Members to change their national laws to enable patenting of life forms and to romote biopiracy or the private appropriation of traditional knowledge and community resources. This should be a priority objective for the WTOs Seattle Ministerial Conference.
(5) Call on WTO Members to extend the deadline for implementing Article 27.3b of TRIPS from the present date of January 2000 to five years after the completion of the review of this Article (as has been proposed by the Africa Group).
Organisations supporting or endorsing the statement:
(149 as at Tuesday, September 14, 1999)