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JOINT NGO STATEMENT ON THE REVIEW OF ARTICLE 27.3(b) OF THE TRIPS AGREEMENT

Dear friends and colleagues,

As you know, the WTO Council for TRIPS (Trade-Related Intellectual Property
Rights) has convened again from November 27-December 1, 2000. And, as with
the previous meetings of the TRIPS Council, the mandated review of Article
27.3(b) of the TRIPS Agreement will be on the agenda.

However, the negotiations on the review have been at a stalemate; with
little progress being made since the review process started in December
1998. The US, EU and some other developed countries are still resisting a
substantive review of Article 27.3(b), which the majority of developing
countries in the WTO have called for. The most comprehensive proposal from
the developing countries is articulated in the paper by the African Group,
submitted by Kenya on its behalf, dated 6 August 1999 (WT/GC/W/302). The
African Group’s comprehensive proposals have received much support from
other developing countries in the WTO, as well as, civil society groups,
farmers’ movements and NGOs.

In August 1999, the “Joint NGO Statement of Support for the Africa Group
Proposals on reviewing the WTO TRIPS Agreement (Article 27.3(b))” was
issued. This Statement now has over 600 signatories from around the world.
Further, in September 2000 in a letter to Pascal Lamy, the EU Commissioner
for Trade, NGOs demanded (among other things) that the EU change its
negotiating position on the TRIPS review, to support the African Group
proposal. At the recent TRIPS Council meeting, the African Group had again,
in a paper submitted by Mauritius, dated 20 September 2000 (IP/C/W/206)
reiterated their proposals.

However, within the WTO itself and in the TRIPS Council, no real discussion
has taken place on the proposals outlined by the African Group. The concern
is that with each TRIPS Council meeting, the attempt has been sideline the
African Group proposal, and to detract from a meaningful discussion on the
merits of the proposal, and to avoid a revision of Article 27.3(b).

It is therefore crucial that civil society groups around the world mobilise
to pressure WTO member countries to break the stalemate in the TRIPS
Council, and to press for a revision of Article 27.3(b), as soon as
possible. This pressure is needed now, because:

(1) The mandated review of Article 27.3(b) represents perhaps the only real
opportunity to change this provision that allows for patents to be granted
on life forms. Such a review, if it is properly done, has the advantage of
being more focused, thus encouraging a better analysis of the issues. A
mandated review means that proposed changes can be negotiated without the
risk of being traded-off against other proposals on other agreements, as has
happened in the Uruguay Round negotiations.

(2) The transition period for the implementation of Article 27.3(b) expired
on January 1, 2000. This means that the majority of the developing countries
are now legally obliged to implement Article 27.3(b) within their national
laws. Otherwise, they face the imminent threat of being taken to the dispute
settlement body of the WTO. Therefore, it is very important that a
substantive review of Article 27.3(b) gets under way, during which time
countries must be exempt from implementing the provision.

(3) Even now, patents on life are being granted almost indiscriminately by
patent offices, mostly in the North. These patents distort a patent law
system that was originally intended for mechanical inventions, in order to
grant corporations and individuals private rights and ownership over
biological and genetic resources, traditional knowledge and genetically
modified organisms, in order to obtain monopoly profits. The patent system
is being used to facilitate the theft of biological resources and
traditional knowledge from the South. The monopoly control over such
essential resources will also have tremendous impact on food security and
the livelihoods of farmers and communities in the developing countries.

We believe that it is crucial for civil society groups to jointly make a
clear demand for the revision of Article 27.3(b) and to campaign actively
for this demand to be met. Hence, we suggest the following actions for your
consideration:

1. Sign on to the Joint NGO Statement on the review of Article 27.3(b) of
the TRIPS Agreement (attached below) by sending your name, organisation and
address to the Third World Network (twnet@po.jaring.my).

2. Help disseminate this Statement, and ask others to sign on to it.

3. Join in the global campaign against No Patents on Life. Use the demands
as stated in this Statement to lobby your government, to take note of, and
to support the African Group position. In addition, start a campaign to
build and spread awareness among other NGOs and the public on the No Patents
on Life campaign.

4. Tell us about your campaigns and actions. Civil society groups around the
world are campaigning against the adverse effects of the WTO Agreements and
are joining the international WTO: Shrink or Sink campaign. They are also
organising various campaigns against specific WTO Agreements, including the
TRIPS Agreement, the Agreement on Agriculture, the General Agreement on
Trade in Services (GATS), and so on. These campaigns are organised in
conjunction with the first anniversary of the Seattle Ministerial
Conference, which will be on 3 December, 2001. Civil society groups around
the world will demonstrate their solidarity in their campaign against the
WTO Agreements. We hope that you will be able to play your role.

We attach the Joint NGO statement on the review of Article 27.3(b) of the
TRIPS Agreement for your information and hopefully, your action.

With our best wishes,
Martin Khor and Cecilia Oh
Third World Network
Penang, Malaysia
(twnet@po.jaring.my)

------------------------------------------------

JOINT NGO STATEMENT ON THE REVIEW OF ARTICLE 27.3(b) OF THE TRIPS AGREEMENT

We, the undersigned social movements, citizen groups and non-governmental organisations, express our concern over the attempts to prevent a substantive review of Article 27.3(b) of the TRIPS Agreement.

Article 27.3(b) lies at the core of the debates surrounding patenting of life forms, the effects of IPRs on farmers’ livelihoods and food security, local communities rights and access to resources, and the environmental effects of IPRs. Article 27.3(b) facilitates the mis-appropriation, by Northern corporations, of the traditional knowledge and biological resources originating from the South. This biopiracy of the South’s resources is an ironic twist of the TRIPS Agreement, which promised to facilitate transfer of technology from the North to the South but instead is now being used by corporations in the North to obtain private ownership rights over the South’s resources and knowledge.

Review stalemate

Its controversial nature necessitated a compromise text of Article 27.3(b), into which a review process had been mandated four years after the TRIPS Agreement came into force. However, this review process has been deadlocked, without any agreement having been reached on the scope or timetable of the review. Many developing countries view the review as an important opportunity to open up Article 27.3(b) so as to revise it, in order to prevent and limit its negative effects. The US, EU and most other developed countries have consistently opposed proposals to amend the provisions, arguing that the review is only about the extent to which the provisions have been implemented.

TRIPS: Negative development and human rights impacts

In the meantime, there is increasing evidence to suggest that Article 27.3(b) is being employed as a protectionist instrument to promote corporate monopolies over technologies, seeds and genes. The 1999 UNDP Human Development Report warns of negative impacts of high standards of intellectual property rights on economic and social development in developing countries. The United Nations Sub-Commission for the Protection and Promotion of Human Rights (Resolution E/CB.4/Sub.2/2000/7 dated 17 August, 2000) has also taken note that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realisation of economic, social and cultural rights in relation to, inter alia, impediments to the transfer of technology to developing countries, the consequences for the enjoyment of the right to food of plant variety rights and the patenting of genetically modified organisms, ‘bio-piracy’ and the reduction of communities’ (especially indigenous communities’) control over their own genetic and natural resources and cultural values, and restrictions on access to patented pharmaceuticals and the implications for the enjoyment of the right to health ...”

In this connection, developing countries in the WTO have raised important questions as to whether the TRIPS Agreement promotes or hinders economic development of developing countries and enables countries to strike an appropriate balance between public interests and private rights. These fundamental issues are at the heart of the review of Article 27.3(b) and must be addressed. During the Seattle Ministerial Conference, developing countries had submitted numerous proposals in an effort to address and resolve the implementation problems they faced, including that of Article 27.3(b). The failure of the WTO to address the implementation problems has resulted in a loss of credibility of the multilateral trading system. If the WTO is to rebuild confidence of the developing countries, a meaningful review of Article 27.3(b) should be the first of many steps towards this objective.

There is a growing public objection to Article 27.3(b), which not only facilitates but makes it mandatory for all WTO member countries to patent certain life forms and living processes. This is unacceptable from the ethical, environmental, social and developmental perspectives. We note with encouragement that many developing countries have also come to the same conclusion and that some of them have strongly voiced their demands that Article 27.3(b) should be revised.

African Group proposal

In particular, we note that the African Group of countries in the WTO has proposed that Article 27.3(b) should be amended to clarify that life forms and living processes cannot be patented. A number of other developing countries in the WTO have supported this position. Unfortunately, there has been strong resistance from the US, which would like to maintain the position that life forms can be patented, and indeed, some must be patentable. This position, if maintained, will lead to serious consequences.

Even now, patents on life are being granted almost indiscriminately by patent offices, mostly in the North. These patents distort a patent law system that was originally intended for mechanical inventions, in order to grant corporations and individuals private rights and ownership over biological and genetic resources, traditional knowledge and genetically modified organisms, in order to obtain monopoly profits. The patent system is being used to facilitate the theft of biological resources and traditional knowledge from the South. The monopoly control over such essential resources will also have tremendous impact on food security and the livelihoods of farmers and communities in the developing countries.

Our demands

The situation is very serious and requires urgent action. We therefore:

(1) Strongly support the position taken by the African Group on the review of Article 27.3(b), as contained in the paper submitted by Kenya on its behalf (WT/GC/W/302, dated 6 August 1999). The African Group has clearly laid down the approach and content of the review, and should therefore, be followed. This is summarised below:

·        The review of Article 27.3(b) must be one of a substantive nature, not merely of implementation. In such a substantive review, the following issues should be clarified:

. Relating to the patenting of life, there should be a clarification that plants, animals, microorganisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable.

·        Relating to the option of establishing a sui generis system for protection of plant varieties, Article 27.3(b) should be clarified with a footnote which states that sui generis laws for plant variety protection can provide for protection of innovations of indigenous and farming communities in developing countries, consistent with the CBD and the FAO’s International Undertaking, preserve traditional farming practices (including the right to save, exchange and save seeds), and to prevent anti-competitive rights or practices which may threaten food sovereignty of developing countries.

·        On the relationship between the TRIPS Agreement and the CBD, the review process should seek to harmonize Article 27.3(b) with the provisions of the CBD and the International Undertaking, in which the conservation and sustainable use of biological diversity, the protection of the rights and knowledge of indigenous and local communities, and the promotion of farmers’ rights, are fully taken into account.

·        The implementation of Article 27.3(b) should be extended until after the completion of the substantive review of Article 27.3(b). The period given for implementation of the provisions should be the same as that allowed in Article 65(1) and (2) of TRIPS; namely, five years from the date the review is completed. This period is provided to allow developing countries to set up the necessary infrastructure entailed by the implementation.

(2) Strongly urge other WTO Member to support the position taken by the African Group in their proposals on the review of Article 27.3(b).

(3) Call on the WTO Members to amend Article 27.3(b) as soon as possible, in line with the proposals of the African Group, as stated above.

(4) Urge WTO members to agree on a moratorium on the implementation of Article 27.3(b), whilst the review and revision of Article 27.3(b) is on-going. The transition period expired on 1 January 2000; which means that the majority of the developing countries are now legally obliged to implement Article 27.3(b). Governments, which have yet to implement the TRIPS Agreement should not be forced into enacting laws that will allow for patents on life. Therefore, member countries should refrain from invoking a dispute settlement procedure with regard to the implementation of Article 27.3(b), during the period of review of the provisions of this Article and also, the review of Agreement itself under Article 71.1.

(5) Call on WTO Members to agree to extend the deadline for implementing Article 27.3(b) 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 African Group).

Organisations supporting or endorsing this Statement:

Third World Network, Malaysia
Sahabat Alam Malaysia, Malaysia
Consumers Association of Penang, Malaysia
Action Aid, United Kingdom
Africa Faith and Justice Network, USA
Africa Resources Trust, Zimbabwe
Africa Working Group “Stiftung Umverteilen!” (Foundation Redistribution!), Germany
Africa-Europe Faith and Justice Network, Belgium
Agora - Segurance Alimentar e Cidadania, Brazil
Aktion Partnerschaft Dritte Welt e.V. (APDW) - Active Partnership with the South Hemisphere, Germany
Alliance for Democracy, USA
Americans for Safe Food, USA
Anarchist Action of Rochester, USA
AP Coalition in Defence of Diversity, Andhra Pradesh, India
ASEED Europe, The Netherlands
Asian Indigenous Women’s Network, The Philippines
Assessoria e Servicos a Projetos em Agricultura Alternativa (AS-PTA), Brazil
Australian Ethical Investment Ltd, Australia
Australian Ethical Trusts and Superannuation Fund, Australia
Beenet for Friendly Environment and Sustainable Agriculture, Pakistan
Cebu Environmental Initiatives for Development Center, Inc. (CEIDEC), The Philippines
Claro Fair Trade AG, Switzerland
Coalition Against the RiceTec Patent (CARTP), USA
Comitato Scientifico Antivivisezionista, Italy
Community Information Association, Australia
Confederacion Sindical de Comisiones Oberas, Spain
Congregation of the Sisters of the Good Shepherd, USA
Consumer Unity & Trust Society (CUTS), India
Corporate Watch, USA
Creed Alliance, Pakistan
Deccan Development Society, India
Development Alternatives with Women for a New Era (DAWN), Fiji
Development VISIONS, Pakistan
Earthlife Africa Johannesburg, South Africa
Ecological Society of the Philippines, The Philippines
Ecoropa Europe
Ecoropa, France
Ecosouthwest, Bulgaria
Ekogaia Foundation, South Africa
ELF, Brisbane, Australia
FarmFolk/CityFolk Society, Canada
Focus of the Global South, Thailand
Food First, USA
Forum Brasileiro de Seguranca Alimentar e Nutricional, Brazil
Fundacion Primero de Mayo, Spain
GE and Patents on Life State Commission, Spain
Gene Campaign, India
Gene-ethical Network, Germany
Global Forum on Sustainable Food and Nutritional Security, Brazil
Globalization Challenge Initiative, USA
Greater Kansas City Fair Trade Coalition, USA
Green Party of South Africa, South Africa
HEKS Cambodia Programme, Cambodia
Heron Food and Garden Co-op, USA
Institut de Recherches Historiques, Economiques, Sociales et Culturelles (IRHESC), France
Institute for Agriculture and Trade Policy (IATP), USA
Institute for Sustainable Development (ISD), Ethiopia
Instituto Sindical de Trabajo, Ambiente y Salud, Spain
Integrated Rural Development Foundation, Philippines
Intermediate Technology Development Group (ITDG), United Kingdom
Iowa Green Party, USA
JPIC Commission of the Missionaries of Africa in Uganda, Uganda
Justice and Peace Office of the Missionaries of Africa, North America Province, USA
Justice, Peace & Integration of Creation Office, USA
Kahea: The Hawaiian Environmental Alliance, USA
Kein Patent auf Leben, Germany
Local Artists Alliance for Sustainability, South Africa
Magasins du monde-OXFAM, Belgium
MASIPAG (Farmer Scientist Partnership for Development), The Philippines
Missionary Sisters of Our Lady of Africa, Kenya
MoKan Alliance for Democracy, USA
Nea Ecologia-Friends of the Earth Greece, Greece
NESSFE, Japan
NETWORK, USA
Ojai Alliance, USA
Oxfam-Solidarity in Belgium, Belgium
Oxfam-Wereldwinkels, Belgium
PAN Indonesia, Indonesia
Places for Living, Australia
Plataforma Rural, Spain
Public Services International (PSI), France
Red Mexicana de Accion frente al Libre Comercio (RMALC), Mexico
Rede de Seguranca Alimentar e Ceidadania dos Povos de Lingua Portuguesa, Brazil
Research & Action for Natural Wealth Administration (RANWA), India
Rochester Food Not Bombs, USA
ROOTS for Equity, Pakistan
Rural Advancement Foundation International (RAFI), Canada
Safe Food Coalition, South Africa
SANFEC (South Asian Network for Food, Ecology and Culture), India
Science and Technology for Equitable Economic Development (STEED), Bangkok, Thailand and Brisbane, Australia
Shirkat Gah, Pakistan
Soil & Health Association of NZ, Inc, New Zealand
Souh Australian Genetic Food Information Network, Australia
Stichting Zaadgoed, The Netherlands
Swedish Consumer Coalition, Sweden
Swedish Society for Nature Conservation, Sweden
Swiss Coalition of Development Organizations, Switzerland
Swissaid, Switzerland
Tebtebba Foundation, Inc., The Philippines
The Coalition Against Global Exploitation (CAGE) of Baltimore, USA
The Edmonds Institute, USA
The Gaia Foundation, UK
Vancouver Island Public Interest Research Group (VIPIRG), Canada
Walhi Daerah Lampung, Indonesia
Washington Office on Africa, USA
Washington State Africa Network, USA
WTO Watch Qld, Australia
Zimbabwe Trust, Zimbabwe
Zululand Environmental Alliance (ZEAL), South Africa

Individuals supporting or endorsing this Statement:

A.A.L.J. van den Broek, MD, MPH, The Netherlands
Achim Seiler, Germany
Adelheid von Guttenberg, Germany
Aimee T Gonzales, Switzerland
Al Kagan, University of Illinois Library, USA
Alejandro Argumedo, Peru
Amanda Babson, USA
Brit Eckhart, USA
Bryarly McEachern, McEachern Associates, Canada
C.L. de Vries, MD, MscCHDC, The Netherlands
Carlos Soria, environmental lawyer, Peru
David Leece, Australia
Diane V McLoughlin, Canada
Dr Arline Prigoff, Professor, California State University, USA
Dr B Ekbal, University of Kerala, Kerala, India
Dr Debal Deb, India
Dr Linda Hill, University of Auckland, New Zealand
Dr Mae-Wan Ho, United Kingdom
Dr Mohd Sohrab Uddin Sarker, Professor, University of Dhaka, Bangladesh
Duane Praught, Canada
Dwi Rahmad Muhtaman, Indonesia
Elisabeth Piras, Belgium
Florianne Koechlin, Switzerland
Francis Murrell, Australia
Francois Meienberg, Switzerland
Genevieve Vaughan, Texas, USA
Herbert Lohner, Germany
Herve Le Meur, President, NGO OGM dangers, France
Hillary Funk, USA
Iza Kruszewska, The Netherlands
James E Hug, SJ, Center of Concern, USA
Jennifer Poudrier, Canada
Jennine Ball, Canada
Johannes Rother, Germany
John Turnpenny, United Kingdom
Jolan Hsieh, Taiwan
Kathleen McNeely, Maryknoll Office for Global Concerns, USA
Lois Jammes, Bolivia
Lorenzo Muelas-Hurtado, Colombia
Mariam Mayet, South Africa
Mary Riley, International Gender and Trade Network, USA
Megumi Minami, Japan
Nadia Ponce, Mexico
P.F.C. van der Hoeven, MD, DTHM, The Netherlands
Prof Wain, Western Australia
Prof. Johnson A Ekpere, University of Ibadan, Nigeria
Professor Joe Cummins, University of Western Ontario, Canada
Rev Phil Reed, M. Afr., Justice and Peace Office Missionaries of Africa, N. American Province
Robert Anderson, New Zealand
S Faizi, Ecologist, Trivandrum, India
Sarah Newhall, President and CEO, Pact, USA
Satoko Endo, Japan
Silvia Rodriguez, Costa Rica
Sofia Villafuerte, Peru
Tarcisio Bonotto, Italy
Tido von Schoen-Angerer, MD, (MSF) Thailand
Wanjiru Kamau, Ed. D, President, African Immigrants & Refugees Foundation, USA
Willem Nekwiyu, Ministry of Trade and Industry, Namibia
Yolanda Massieu, Mexico

updated: April 04, 2001
organizations: 110
individuals: 60

 


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