Andean pact’s new IPR regime shaped in US interests?

by Chakravarthi Raghavan

Geneva, 8 Oct 2000 - The Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela) have adopted a new intellectual property rights (IPR) system bringing the Andean IPR system in line with the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and with direct reference to the UN Convention on Biological Diversity (CBD).

Issued as ‘Decision 486’ of the Community, the new regime, which is to come into effect on 1 December 2000 and is to replace the 1993 regime of the Community (Decision 344), has several provisions that directly incorporate elements from the CBD.

However, says Colombian lawyer and expert, Margarita Florez Alonso, the “CBD-friendly” provisions in the new Andean decision “do not carry the same weight as the intellectual property rights”.

In an interview with GRAIN, an international NGO publication specializing in environment and TRIPS issues, Florez says that the decision was pushed on the Andean Community by the United States and entirely shaped in their interests.

While the new decision has some “CBD-friendly” provisions, they do not carry the same weight as the IPR provisions, Florez says.

Florez complains that the new Decision 486 takes the subregion “beyond TRIPS” - by introducing patenting of micro-organisms, even as TRIPS is under review.  TRIPS prohibits members from excluding micro-organisms from their patent laws, it does not oblige them to declare that micro-organisms are patentable.

This decision, Florez says, was pushed on the Andean Community by the US, which has applied pressure throughout the region and on its governments, particularly Ecuador and Colombia. The decision was not openly negotiated and there was no public debate, “but a case of the US interfering in one of so many profound and destabilising ways in our laws and lives,” she charges.

The new Andean decision has several provisions relating to CBD issues. According to a rough translation of the new decision from the original Spanish, under Decision 486:

·        Member States of the Andean Community recognize the rights and faculties of local, indigenous and Afroamerican communities to decide over their collective knowledge (Art. 3);

·        life forms, in whole or in part, found in nature, natural biological processes and biological material existing in nature or that could be isolated from any life form, including genomes or germplasm, “shall not be considered inventions” (Art. 15);

·        inventions whose commercial use should be prohibited to protect the health or life of people or animals, or to conserve plants or the environment, shall not be patentable. However, the commercial use of an invention will not be considered contrary to the health or life of people or animals or to the conservation of plants or the environment merely because of a legal or administrative ruling prohibiting or regulating such (Art. 20);

·        any application for a patent on an invention, whether product or process, obtained or developed from genetic resources or their derived products of which any of the Member States (of the Community) is country of origin, shall include a copy of the access contract (Art. 26);

·        any application for a patent on an invention, be it product or process, obtained or developed from traditional knowledge of indigenous, Afroamerican or local communities of any of the Member States, and of which the Member State is country of origin, shall include the copy of the document which accredits a licence or authorization of use from modifications and valid regulations (Art.  26);

·        when the patent is on a self-replicating biological material, except for plants, the patent holder shall not have the right to prevent others from using it as the initial base to obtain a new viable material unless the repeated use of the patented material is required (Art. 53);

·        when the patent protects self-replicating biological material, the patent shall not extend to the biological material obtained by reproduction, multiplication or propagation (after the product is placed on the market) as long as the reproduction, multiplication or propagation is necessary to use the material in conformity with the purpose for which the product was placed on the market and where the derived material is not used for the purpose of multiplication or propagation (Art. 54);

·        patents granted on inventions obtained or developed from genetic resources or traditional knowledge of which any Member State is country of origin, without presentation of a copy of the proper access contract or licence from the community, shall be nullified (Art. 75);

·        any mark referring to elements of the cultures of indigenous, Afroamerican or local communities shall not be registered without the community’s express consent (Art. 136); and

·        micro-organisms shall be patentable pending the adoption of different measures as a result of the review of TRIPS Art. 27.3(b). In this regard, the obligations assumed by the Member States under the CBD shall be taken into account.

While some of these elements may look ‘progressive’, GRAIN questions whether harmony between conflicting international treaties could be achieved this way.

Florez in this regard underscores the need for “extreme caution”, and suggests that the CBD-friendly provisions in the decision do not carry the same weight as the IPRs.

GRAIN says that the new move to accommodate community rights over traditional knowledge and sovereign control over access to genetic resources within an IPR regime “is just that - accommodation”.

Incorporating the CBD language does not necessarily move anything forward for local communities themselves, GRAIN says.

Decision 486 appears to be an initiative to involve indigenous people, Afroamericans and rural folk of the Andean countries in the smooth running of a patent system that fundamentally serves to give exclusive commercial rights over local biodiversity to others.

“This is fine, if the objective is to make patents on life politically more correct. But it is disempowering, if the objective is to strengthen rights of local people over their own knowledge, resources and livelihoods, and against the encroachment of bioprospectors and the greed of biopirates.”

GRAIN advocates that rather than succumbing to the contradictions within TRIPS or the conflicts between TRIPS and the CBD, the problem should be fixed at source, through the TRIPS Art. 27.3(b) review process now under way.

The cards are in the hands of the South, and these countries should remain on the offensive and pursue real changes in their nternational obligations - “without falling into the trap the Andean Community fell into,” says GRAIN.-SUNS4758

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