The TRIPS Agreement of the WTO and the Convention on Biological Diversity: The need for coordinated action by the South
The extension of the application of the intellectual property rights (IPRs) system to living things - a process which has been globalised by the World Trade Organisation through the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement - has resulted in gross injustice to the countries of the South, in particular to its local and indigenous communities. By sanctioning the patenting of varieties of genetic material developed over generations by such communities and enabling Northern corporations to secure monopoly control over them, the TRIPS Agreement is undermining the concept of equitable benefit-sharing envisaged in the Convention on Biological Diversity adopted at the Rio Earth Summit. In emphasising that the way out is for Southern countries to enact national legislation which recognises such community rights, Tewolde Berhan G Egziabher shows how, in this regard, there is growing awareness in Africa of the need for coordinated action.
THE intellectual property rights (IPRs) protection system (patents, breeders' rights, copyrights, trademarks etc.) was developed in the industrialised countries of Europe and North America. It all started with the patenting of mechanical inventions. The idea behind patenting was that if a person invents a new mechanical innovation, she/he should monopolise the use of that invention for a set period (usually 15-25 years depending on national legislation) so as to reward her/him. Others who want to use that machine would then pay royalties to the inventor. However, a discovery was considered not protectable by patenting. This system sounds fair.
But it is being distorted and it has become unfair.
It has come to be applied to living things, and yet nobody has as yet learned to create a living thing. We have, so far, only managed to discover living things, not to invent even one. But now, the industrialised countries are patenting living things as if they have invented them.
It all started with the British Government wanting to ensure that seed used for agricultural production was of high quality. At the end of the Second World War, it instituted a system for registering good-quality seed. Logically seed companies were then required to sell only registered seed. Soon after that, the British Government thought of rewarding individuals who improved seed further, and it gave them the legal right (Breeders' Right) to levy royalties on the sale of new seed varieties they bred. This worked well for some years.
But soon, four developments took place, originating from the desire to control the market, that distorted IPRs even further.
1) The royalties became insignificant compared to the expense incurred in industrial espionage and in legal fees so that only big companies which wanted to control the market, rather than individual inventive minds, became the beneficiaries. For example, preparing a US patent application is said to cost US$40,000. Litigation to prevent infringements on patents costs even more than this.
2) Particularly in seed production and marketing, the seed companies, initially slowly but later on blatantly, dropped good seeds that were not IPR-protected and focused only on IPR-protected seeds, again in order to control the market. Of course, the companies promoted their own seeds, or seeds that were under royalty-sharing arrangements with IPR holders. Seed production, therefore, moved from the hands of the farmer to the corporations.
3) Breeders' Rights laws became more and more restrictive until the 1991 version of the Union for the Protection of New Varieties of Plants (UPOV) became very similar to patent law.
4) Perhaps because the restrictive Breeders' Rights laws prepared the ground, the patenting of living things became accepted, first in the USA, and then in Europe. Note, however, that the European patent directive of biotechnology has now been challenged by the Netherlands Government.
The extreme examples of the abuse of the patenting of life are the moves being made now by Monsanto of the US and Zeneca of Britain, each of which is trying to programme death in the second generation into the seed it sells so that farmers will be forced to buy new patented seed from it every year. They are doing this through genetic engineering. The Monsanto technology has now come to be known as 'Terminator', and the Zeneca technology as 'Verminator', both terms coined by the Rural Advancement Foundation International (RAFI).
These companies can force their technologies on farmers because, over decades, the European and American and even many developing country farmers have lost their traditional varieties and are thus entirely dependent on the seed these corporations bring to the market.
The standard method for making the farmers so completely dependent is by providing them with cheap seed and agrochemical inputs until they lose their traditional systems of seed supply, soil fertility, and pest and disease management systems, and then raising the price of seed and agrochemicals to profitable levels, including to levels sufficient for recouping previous subsidies.
Once this has been achieved, the seeds bred are made to be agrochemical input-dependent to ever growing degrees. It is thus not surprising that the first commercially available genetically engineered seeds, e.g. 'Roundup Ready' soybean of Monsanto, are made resistant to specific herbicides (Roundup herbicide in the case of the Roundup Ready soybean) so as to ensure a guaranteed market for that herbicide. This technology also encourages the excessive use of herbicides with predictable adverse effects on the non-target biodiversity and the environment.
The transnational corporations of the industrialised world and thus also the governments of the industrialised world now see biodiversity as a raw material. It gives them traits which their modern biotechnology or genetic engineering and related recent biomolecular manipulation techniques can use in various combinations in microbial, plant or animal transgenic varieties, or even in in vitro enzyme systems. They expect that these transgenic varieties will produce commodities they want, including food, medicines and other bioactive molecules, and chemicals which have hitherto been made through the use of cumbersome industrial plants. Of course, developing countries also aspire, and some do indeed try to, with varying degrees of success, to do the same.
Biodiversity, on the whole, increases towards the equator and decreases towards the poles. It is thus the industrialised Northern countries, which see themselves as masters or potential masters of modern biotechnology, that are biodiversity-poor, and the developing Southern countries, which see themselves as biotechnology-deficient, which are biodiversity-rich. It is natural, therefore, that both North and South want biodiversity conserved, that it be made accessible to the North, but that, in exchange, modern biotechnology also become accessible to all but primarily to the South. In this way, both North and South can benefit fairly and equitably. The Convention on Biological Diversity, adopted in Rio de Janeiro in 1992, was aimed at regulating this understanding.
The US signed the Convention but failed to ratify it. The biotechnology corporations did not want to be bound by the global regulation envisaged. They wanted to continue taking biodiversity from anywhere, patenting the varieties taken from the South, and denying recognition to the local and indigenous communities of the South who developed and provided the varieties in the first place, and who are recognised by Articles 8(j) and 10(c) of the Convention. That is why, at the negotiations of the International Undertaking on Plant Genetic Resources (IUPGR) - which covers the exploration, preservation, evaluation and the making available of plant genetic resources, the US keep insisting that 'Farmers' Rights' is merely a concept.
If the US corporations patented the techniques of transferring genes from one organism into another, i.e. the processes, it would have made sense. But patenting the process of mixing the genes, and again patenting the new transgenic variety, are like patenting the sewing machine and also patenting the dress sewn. The genes are discovered, not invented, by them. The unfairness lies not only in the pretence that the discovery of genes is an invention and thus patentable, but even more in the denial of the innovation of indigenous and local communities, who produce the varieties and protect their genes in the first place, as worthy of legal protection.
It is true that the communities select from naturally occurring mutations and they thus do not, in the strict sense, create the varieties. But neither do the genetic engineers, who shuffle genes around without the use of naturally occurring biomolecular reactions. It should also be underlined that it is only genes that occur naturally that they shuffle around. In any case, claims for the recognition of the achievements of local and indigenous communities are being made now only as a reaction to the less plausible claims to invention by genetic engineers. Sharing is itself an achievement in the values of local and indigenous communities. But if sharing leads to being subverted, obviously a reassessment of old values is called for.
The TRIPS Agreement of the WTO, in particular its Article 27.3(b), forces all member states to allow the patenting of microbiological 'inventions' and the protecting of plant varieties by patents or by some other effective legal means. It also allows, but does not force, them to patent animals. An 'invention' in this sense is not necessarily a product of modern biotechnology.
The use of Neem, an Indian tree traditionally used as a pesticide, has, for example, been patented in the USA, Germany and Japan without any use of modern biotechnology. The traditionally esteemed Basmati rice of India has been patented in the US. So has Endod from Ethiopia, while teff, taken from Ethiopia and grown in the USA only for one season in order to describe its morphology, has been given a breeders' right protection as the property of the 'Teff Corporation of America'.
Literally hundreds of such cases of genetic plagiarism have been recorded. The original producers of Basmati rice, the smallholder farmers of India, are already losing their market to the USA. And things seem set to get worse. Through Article 28.1 (a) of TRIPS, which prevents third parties - into which categories the farmers of India and Pakistan have now been relegated, from 'making, using, offering for sale, selling or importing', the US patent holders can use the WTO to completely stop the export of any rice from India and Pakistan under the name of 'Basmati'.
This global Kafkaesque injustice is perpetrated because the intellectual achievements of local and indigenous communities are not fully recognised and legally protected. Legislation that fills in this gap should be developed in the South, and only after that can the North be expected to recognise community rights. As it stands, therefore, we are allowing Northern corporations to take the technologies, knowledge and biodiversity of our local and indigenous communities as if they were their own.
We are allowing them by default to incorporate their system of acquiring ill-gotten gains into international law. We are allowing them to prevent us from using our own knowledge, technologies and resources. We are allowing them to force us to keep buying back the very resources they took from us to begin with, now renamed their own for merely some modification which originates from our resources ill-gotten by them, or even, as in the case of the naturally coloured cottons of the Andes, Basmati rice of India and Pakistan, and teff of Ethiopia, without any modifications at all.
Article 27.3(b) of TRIPS is due for review this year. The US hopes to make the patenting of all life compulsory. Most developing countries which have woken up to the issue want to maintain the little opening left by the sui generis option in existence now. In the review, the first option of developing countries should be to exempt all living things from patenting and other IPR regimes.
Benefit-sharing and genetic resources
The Convention on Biological Diversity (CBD) assumes that when a state allows access to a sample of genetic resources, it is, in return, entitled to insist on a number of benefits. Research activities on the genetic resources it provides have to be done in its territory to help it build capacity. All the information generated by research on that genetic resource must be repatriated. Any biotechnology applied on the genetic resource must be made accessible to it. A fair and equitable share of benefits accruing from the use, including from commercial gains, of the genetic resource must also be given to it. But all this is conditional upon a mutually agreed contract.
To my knowledge, there is as yet no African country with the appropriate legislation to cover such contracts. The industrialised countries know this, and many of them have been undertaking major expeditions to Africa to collect genetic resources before we do something to enforce our sovereign rights over these resources. As usual, we wake up only after the thief has taken what he wants and has gone away.
Absence of legislation
The real benefit obtained depends on the legislation in each developing country and the trained human resource and infrastructure put in place to implement the legislation. In most developing countries, including Ethiopia, neither the legislation, nor the systems of implementation are in place. The industrialised countries other than the Scandinavian and some of the smaller countries of the European Union, seem to want the situation to continue unchanged.
For example, when the European Commission adopted a directive on patenting genetically engineered living things, it deleted the requirement for disclosing the country of origin of the living things used in the genetic engineering, which had been introduced by the European Parliament to help developing countries claim benefits from their genetic resources used by others.
Negotiations are going on under the auspices of the UN Food and Agriculture Organisation (FAO) to develop an agreed multilateral and automatic system of benefit sharing in the case of crop genetic resources. The bigger industrialised countries are insisting that they will give aid to developing countries from existing aid budgets in lieu of shares in financial benefits and no more. And yet we know that aid has been steadily decreasing since 1992. It seems that what they are saying is that we have to ignore the entitlement to a fair and equitable share of benefits from the use of our crop genetic resources.
Benefit sharing is, therefore, being interpreted, as has been the case with resources in the past, as a one-way flow Northwards. We must insist on a quid pro quo contribution by plant genetic resource users to a fund dedicated for use by genetic resource providers.
What is Africa doing to improve its position?
Africa is, at last, showing signs that it is realising the fact that its prospects can improve only if, among other things, it exerts as much pressure as it can muster to make international law and the international norms they govern become fair. The level of this realisation is still low, and a lot of work in awareness raising is required.
Some examples of Africa's improved of awareness and consequent co-ordinated action in important international fora are mentioned below.
a) The Conference of the Parties of the CBD: In 1998 in Bratislava, Africa introduced into the debate the issue of the unfairness of Article 27.3(b) of the TRIPS Agreement and the problems it creates for the conservation and sustainable use of biological diversity. Africa's delegations convincingly argued that the CBD should have supremacy over TRIPS. The debate is now firmly established in the CBD forum, and it is inevitable that it will influence the development of TRIPS and the WTO.
b) The Organisation of African Unity: In Ouagadougou, again in 1998, the OAU endorsed a draft law on community rights and on access to biological resources, and recommended that African countries pass legislation based on the draft law. If a number of African countries pass such laws, and it looks as if they will, the malaise with TRIPS will grow, and the WTO will have to accommodate the growing pressure for the recognition of community rights as a counterbalance to IPRs. The same OAU summit also resolved that accordingly, African countries co-ordinate their efforts and adopt a common position in the negotiations to revise Article 27.3(b) of TRIPS this year. (See p.24)
Setting the pace
c) African, Caribbean, Pacific and European Union Joint Assembly: Africa is now highlighting these issues also in other appropriate international fora. For example, two resolutions on biodiversity and environment were passed in the ACP-EU Joint Assembly of September 1998, one at Africa's initiative, and the other at the EU's initiative. These resolutions cover the problems Africa has identified with regards to biodiversity and the unfairness of the present global status quo.
d) The United Nations General Assembly: Effort is currently being made in the UN General Assembly in a similar manner. We do not as yet know the outcome.
e) The Biosafety Protocol: The African Group set the pace in the negotiations to create a Biosafety Protocol by presenting the first and most comprehensive draft protocol, and following that by negotiating as the most cohesive group.
f) The International Undertaking on Plant Genetic Resources for Food and Agriculture: The revision of the IU is being negotiated under the auspices of the FAO. Africa became a major player in the long drawn out negotiations only in the last two years. But now, it is again the most coherent and best-organised group in the negotiations. In the two most controversial issues of Farmers' Rights and Benefit Sharing, it is the group with the clearest and most coherent stand.
These are examples of which I am aware. But I expect there are other moves also being made by Africa.
In short, I feel confident that, at the end of the present greed cycle, Africa will be a major player in, and gain substantially by, making the world fairer. This will probably take a generation or two. Our grandchildren may then have a better world. - (Third Wprld Resurgence No. 106, June 1999)
(Dr Tewolde Egziabher is the General Manager of the Environmental Protection Authority in Ethiopia. At the Biosafety Protocol negotiations, he is the Chairperson of the African group of delegates and a prominent spokesperson for the Like Minded Group which comprises almost all developing countries.)