Change TRIPs to reconcile with UN Biodiversity Convention, says India

India presented a paper at a recent meeting of the WTO's Committee on Trade and Environment, suggesting that the relationship between the TRIPs accord and the UN Biodiversity Convention (CBD) be discussed and that the TRIPs accord be modified to remove inconsistencies with the CBD.

by Chakravarthi Raghavan

GENEVA: India has suggested that the relationship between WTO's TRIPs agreement and the UN Convention on Biological Diversity (CBD) should be considered and the TRIPs accord modified to remove inconsistencies with the CBD.

The proposals, among others, aim at protecting community and indigenous knowledge, ensuring benefit sharing (and technology sharing) with country of origin on intellectual property rights (IPRs) claimed or patents derived from biological material. The Indian view, presented at the WTO's Committee on Trade and Environment (CTE) at its meeting in the last week of September, focuses on the contradictions between the TRIPs and the CBD.

The Indian paper also suggests that the CTE should consider the proposition that Environmentally Sound Processes and Technologies (ESPs and ESTs) should not be made obligatory until such technologies are "freely available".

Specifically, India has suggested that changes in TRIPs should require that applications seeking patents for biotechnological inventions should clearly mention the biological source material in the country of origin and also that the prior informed consent of the country of origin and owner had been obtained.

The TRIPs agreement should also have a provision, in cases of patents and their commercial exploitation using biological material and indigenous or traditional knowledge, creating an obligation on the rights holder to share benefits.

The Indian proposal

The Indian proposal comes even as there is considerable controversy in India, and among scores of NGOs abroad, over the manner in which indigenous knowledge and biological material are being "pirated" by the transnational pharmaceutical firms, and patent rights claimed over uses based on indigenous knowledge.

Several Indian herbal remedies, based on ancient Indian medical science and the traditional ayurvedic system of medicine, have been patented, or patents on them sought in the US.

One such, on turmeric, was recently challenged by an Indian public sector research group, and the US patent authorities revoked the patent.

The CTE, India has suggested, should also examine the pros and cons of evolving a system for patenting of indigenous knowledge and local, contemporary innovations of traditional folk knowledge.

Among the items on the CTE's work programme are:

* the relationship of the TRIPs Agreement to access and transfer of technology and the development of environmentally- sound technology; and

* the relationship between the TRIPs Agreement and Multilateral Environmental Agreements (MEAs) which contain IPR-related obligations.

The first Ministerial Conference of the WTO (at Singapore in December 1996) has called for further work to develop a common appreciation of the relevant provisions of the TRIPs Agreement to the protection of the environment and promotion of sustainable development, and how these provisions "relate to the creation of incentives for conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of benefits arising out of utilization of genetic resources including protection of knowledge, innovations and practices of indigenous and local communities embodying traditional life-styles relevant to the conservation and sustainable use of biodiversity."

The TRIPs accord, the Indian document notes, recognizes IPRs to be private rights. Art. 27.3 of the TRIPs creates specific obligations on the issue of patenting life forms in that it obliges Members to provide product patents for micro- organisms and for non-biological processes, and to provide for protection of plant varieties either by patents or an effective sui generis system or a combination.

The CBD, on the other hand, categorically reaffirms that nation states have sovereign rights over their own biological resources, recognizes the desirability of sharing equitably, benefits from use of these resources as well as traditional knowledge, innovations and practices relevant to the conservation of biological diversity and its sustainable use, and acknowledges that special provisions are required to meet the needs of developing countries.

The TRIPs and the CBD are intrinsically linked with one another and hence the CTE should discuss the relationship between the provisions of the CBD and those of the TRIPs, and suggestions on reconciliation of any contradictions therein, in line with the CBD provisions or within the same overall objective of conservation of biological resources with sustainable development.

Before the CBD came into force, the Indian paper suggests, genetic resources were considered a common heritage of mankind that should be available freely for anyone who wants to access them.

[This view however, has not been without challenge even before the CBD. To the extent there has been no specific international treaty from which the common heritage principle could be drawn, the UN General Assembly Declaration on Rights and Obligations of States (a secondary source of international law) specifically affirmed the sovereign right of countries over all their natural resources.]

But through the CBD, for the first time an international agreement confirmed the sovereign rights of nation states over these resources, and called for the equitable sharing of benefits with prior informed consent and on mutually agreed terms. The CBD also further provided for special treatment for countries of origin and developing countries.

"Most importantly, the CBD upheld the role of indigenous communities in conservation and protection of genetic resources and stated that there should be a fair and equitable sharing of benefits arising out of the utilization of knowledge systems of such communities," the Indian paper said.

Benefit sharing

More specifically, India notes, the objectives of the CBD (Art. I) include conservation of biological diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of utilization of genetic resources. The CBD defines genetic resources as "any material of plant, microbial or other origin containing functional units of heredity, which has actual or potential value."

In addition, Art. 15 of the CBD, specially obliges Parties to take necessary measures to "share in a fair and equitable way" the results of R & D and benefits arising from commercial and other utilization of genetic resources, with the Party providing such resources on mutually agreed terms.

However, the Indian paper points out, the fair and equitable sharing of benefits arising out of the patenting and commercial exploitation of genetic resources is not dealt with at all in the TRIPs Agreement.

Art. 3 of the CBD also lays down the principle of the sovereign right of each Party to exploit its resources and, in Art. 15, further unambiguously states that the authority to determine access to genetic resources rests with the national governments and is subject to national legislation and that access, where granted, shall be on mutually agreed terms and shall be subject to the prior informed consent of the Contracting Party (CP) providing such resources.

The CBD's Art. 18, referring to Technical and Scientific Cooperation, provides that the CBD's Conference of Parties, at their first meeting, shall determine how to establish a clearing house mechanism to promote and facilitate such cooperation. And by Art. 19, each Contracting Party "shall take legislative, administrative or policy measures as appropriate," to provide for the effective participation in biotechnological research activities by those CPs, especially developing countries, which provide the genetic resources.

The CBD, in Art. 8 (j) also enjoins CPs to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities and encourages the equitable sharing of benefits arising from their utilization. And in Art. 16.5, the CBD calls upon Parties to cooperate in order to ensure that IPRs are supportive of and do not run counter to its objectives.

While the CTE in 1996 had discussed this issue in a preliminary manner, in India's view it had to devote more time to examine this issue, especially since it appeared to be a provision of the CBD that Parties "shall take" measures aiming at the private sector to facilitate access to joint development and transfer of technology.

The TRIPs and CBD represent two significantly separate multilateral approaches to utilization of living resources. "While TRIPs seeks to promote and foster technological innovation by ensuring the certainty of intellectual property protection and of world markets for at least some biotechnological inventions, its provisions are silent on how this protection can achieve the objective of sustainable development, especially in developing countries."

"The CBD seeks to facilitate access to living resources, while focusing on conservation and sustainable use, as well as the equitable sharing of benefits of such use. In its effort to create a stake for developing countries in conservation and sustainable use, as well as the equitable sharing of benefits of such use, the CBD emphasizes the need to share with them benefits which include the need to share in the development and transfer of technology."

Contradictions between TRIPs and CBD

The first important contradiction between TRIPs and the CBD, India pointed out, is the lack of any conditions on patent applications (in Art. 29 of the TRIPs agreements) to mention the origin of the biological/genetic resources and indigenous/traditional knowledge used in the biotechnological invention.

The present mandatory conditions are confined to disclosure of the invention in a manner sufficiently clear and complete for inventions to be carried out by a person skilled in the art. In addition, Members may also require the applicant to indicate the best mode of carrying out the inventions known to the inventor at the filing date.

These conditions, India pointed out, were developed in the patent laws of different countries basically with respect to mechanical and chemical inventions.

But, "biotechnological inventions need to be governed by a set of additional specification requirements."

It could be considered, India said, whether the objectives of the CBD could be incorporated through inclusion in Art. 29 of provisions requiring a clear mention of the biological source material by indigenous communities in the country of origin.

"This part of a patent application," the Indian paper added, "should be open to full public scrutiny immediately after filing of the application. Such reconciliation would permit countries with possible opposition claims to examine the application and stake their claims well in time."

The next contradiction between the two treaties is the lack of provision in the TRIPs Agreement on prior informed consent of the country of origin and the knowledge-holder of the biological raw material meant for usage in a patentable invention. This issue needs to be reconciled with Art. 15.5 of the CBD.

"If any inventor wants to develop such biological materials for commercial purpose, he or she would have to get the prior informed consent of the country as well as of the owner and, if required by such owner, enter into agreements with the country of origin," India said. A Material Transfer Agreement (MTA) would be necessary where the inventor wishes to develop biological material and a Transfer of Information Agreement (TIA) is where the inventor is basing himself or herself on indigenous or traditional knowledge.

The TRIPs Agreement should create an obligation to share the benefits in this manner and an MTA/TIA should be considered as an effective tool to ensure that the benefits reach the claimant. But since individual beneficiaries cannot be expected to negotiate with large TNCs, it would be the government of the country of origin which would be negotiating on behalf of the actual claimants.

The TRIPs Agreement could also incorporate an obligation on patent owners to execute TIAs for any traditional or indigenous knowledge which is already in the public domain. Anything part of recorded or otherwise publicly accessible knowledge should not be incorporated as a specific form of intellectual property in the Agreement. This would give a concrete shape to the laudable objective of such benefit- sharing incorporated in the CBD.

The CTE, India further suggested, can also examine the pros and cons of evolving a system for patenting of indigenous knowledge and local, contemporary innovations of traditional folk knowledge.- Third World Economics (16-31 October 1997)

Chakravarthi Raghavan is the Chief Editor of the South-North Development Monitor (SUNS).