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WTO SANCTIONS ‘THEFT OF INTELLECTUAL RIGHTS OF POOR BY RICH’

The Indian Minister for Trade and Commerce provided a stinging critique of the TRIPS agreement at a recent forum in India on intellectual property policy and strategy. He contended that the TRIPS agreement contained "basic inequities, injustices, and a lot of loopholes".

by Someshwar Singh


Geneva, 21July 2000 --  There are basic inequities, injustices, and a lot of loopholes in the agreement on Trade-Related Intellectual Property Rights (TRIPS), the Indian Minister for Trade and Commerce, Thiru Murasoli Maran, told a Forum on intellectual property earlier this month in New Delhi.

In his inaugural address to the Forum on “Intellectual Property Policy and Strategy in the 21st Century,” Mr Maran said it was the perception of the developing and least-developed countries that increased intellectual property (IP) protection, as a product of increasing globalization and technological progress was becoming counter-productive and harmful to several sections of society.

There was also “a similar perception that IP protection increasingly weighs in favour of the economic interests of right owners and not as much in favour of creativity stimulation or the larger vision of global benefits,” he said.

The use of IP protection must also assure “protection of basic human values and the environment,” the Indian Minister observed, referring in particular to major human problems of food and disease. “Benefits of IP should transcend evenly to all creators and users without distinction or discrimination of any kind, and the deployment of resources should be directed in such a manner as to ensure equal opportunity among nations to enjoy the fruits of the knowledge-based progress.”

In a stinging critique of the TRIPS agreement, the Indian Commerce Minister said the industrialised countries are using it as a tool to prevent developing countries from ‘catching-up’ technologically. This is after developed countries having used ‘reverse  engineering and other methods of imitative innovation’ during their own process of industrialization.

“The TRIPS agreement was not merely conceived as an instrument to combat counterfeiting and piracy - an objective that most developing countries would have shared. THE AGREEMENT WAS ALSO REGARDED AS A COMPONENT OF A POLICY OF “TECHNOLOGICAL PROTECTIONISM” AIMED AT CONSOLIDATING AN INTERNATIONAL DIVISION OF LABOUR, WHEREUNDER THE COUNTRIES OF THE NORTH GENERATE INNOVATIONS AND THE COUNTRIES OF THE SOUTH CONSTITUTE THE MARKET FOR THE RESULTING PRODUCTS AND SERVICES.”

(The bold text emphasis in the story are all Maran’s own).

Quoting Prof. Carlos Correa of the University of Buenos Aires, Maran observed, “During the 1980s, US supremacy in manufacturing and technology had been eroded by catching-up processes in Japan first, and in Asian newly industrialising countries  (NICs), later. These countries emerged as aggressive competitors in consumer electronics, micro-electronics, robotics, computers and peripherals, as well as in various services e.g. engineering and construction.

“The erosion of technological leadership of US firms in certain high-tech areas, coupled with high US trade deficit, was partially attributed to a too-open technological and scientific system which allowed foreign countries to imitate and profit from US innovations."

“Thus, a major source of declining American competitiveness was conceived to be the losses from overseas piracy and counterfeiting activities. This perception was astutely and effectively promoted by industrial lobbies (particularly the pharmaceutical, software and phonogram industries), which convinced the US government about the need to link trade and IPR in order to increase the returns on R&D and to prevent imitation.”

“The monopoly rights granted by IPRs,” Maran pointed out, “were regarded as an instrument TO AVOID CATCHING-UP BASED ON IMITATIVE PATHS OF INDUSTRIALISATION, THAT IS, AS A TOOL TO FREEZE THE COMPARATIVE ADVANTAGES THAT HAD SO FAR ENSURED US TECHNOLOGICAL SUPREMACY.”

The result was that the share of developing countries in the trade of medium and high goods indicates that industrial countries are benefitting from the new rules of IPRs.

The issue of GEOGRAPHICAL INDICATIONS had been given a high priority in the TRIPS negotiations by European countries, he pointed out, particularly those that produce wines and spirits and they got what they wanted. ‘This unique privilege is denied to other similar products of developing countries.’

The powerful US pharmaceutical industry was one of the most active and strong lobbies arguing for the need for an expansion and strengthening of patent protection, and is certainly a major beneficiary of the outcome of the Uruguay Round, Mr. Maran said.

“The industrialised countries extensively used reverse engineering and other methods of imitative innovation during their own process of industrialisation,” he pointed out. “After having fully used that, they closed the door to the developing countries by restricting them, thereby making technological catching-up more difficult than before.”

“THERE IS A PROVERB THAT JUST BECAUSE THE CAMEL KNELT DOWN, IT WAS LOADED,” the Minister told the Forum. “THE DEVELOPING COUNTRIES MET WITH THE SAME FATE IN THE URUGUAY ROUND BECAUSE THEY KNELT DOWN. THUS, KNOWINGLY OR UNKNOWINGLY, THE DEVELOPING COUNTRIES HAVE MADE A MAJOR CONCESSION OF VITAL NATURE, AND THE WHOLE ARCHITECTURE OF INTERNATIONAL TRADE HAS TO BE FUNDAMENTALLY RECAST TO NATIONAL GOVERNMENTS. THE NEW AGENCY, THE WTO, IS RESPONSIBLE FOR POLICING AND THE PRESSURE IS MOUNTING ON THE THIRD WORLD GOVERNMENTS TO IMPLEMENT THE AGREEMENT THROUGH NATIONAL LEGISLATION.”

“There are basic inequities, injustices and a lot of loopholes in the TRIPS Agreement, Mr Maran told the Forum, which was jointly organised by the World Intellectual Property Organization (WIPO), the Indian Commerce and Industry Ministry and the Federation of Indian Chambers of Commerce and Industry (FICCI).

The application of the transitional periods established by the TRIPS agreement was not enough, he added. “Leave alone the necessary time to introduce changes in legislation - infrastructure for administration of IPR needs to be developed and other measures required to reduce any eventual economic losses resulting from the new framework, need to be taken up.”

Instead of helping the developing countries, the developed countries - the victors in the field - threaten the vanquished developing countries with sanctions. “With a gun pointed at their temple, the developing countries have no other go but to fulfil the unreasonable obligations which they unwittingly undertook to perform during the Uruguay Round.”

Mr. Maran identified biopiracy as one of the biggest problems that has arisen out of increased use of the intellectual property rights for ‘purely commercial, rather mercantilist, purposes. In the recent past, we have seen how United States Patents & Trade Mark Office granted the patents on turmeric and neem.’

“To defend the case might look simple,” he said, “But our Council of Scientific and Industrial Research (CSIR), in the case of turmeric (haldi) had to perform a Herculean task in roping in various institutions to collect documented information on the healing properties of turmeric. Ultimately, based upon scattered documents that CSIR found, it won the case resulting in the revocation of the patent on turmeric. Another patent, this time concerning ‘a hydrophobic extracted neem oil - a novel fungicide’ was recently revoked in the European Patent Office (EPO) after an Indian NGO challenged it.”

“Now we have to fight for basmati, Indian curry etc...” the Indian Industry and Commerce Minister said. “These are nothing but THEFT of the intellectual right of the poor by the rich sanctioned by the TRIPS.  What is obvious and traditionally practised in historic communities is being looked as new and non-obvious, meeting the criteria of patentability because the entire system is built on the philosophy of “one-size-fits-all.”

However, the problem of biopiracy may not be resolved with patent revocation actions and domestic biodiversity legislation alone, Mr Maran pointed out. “There is a need to provide appropriate legal and institutional means for recognising the rights of the indigenous communities on their traditional knowledge, based on biological resources at international level. I WOULD ALSO URGE THAT THERE IS A NEED FOR A NEW INTERNATIONAL TREATY UNDER SUI GENERIS SYSTEM FOR THE PROTECTION OF TRADITIONAL SYSTEM OF MEDICINES.”

While recognizing these sensitivities on certain emerging issues in intellectual property and the need for a proactive and transparent consensus-building agenda, the Forum highlighted the critical role of Intellectual Property in the Information and Knowledge based economy.  It underlined the imperatives of balancing exclusive rights of individuals with the public interest and benefits to the society.

On the TRIPS and post-TRIPS scenario, the Forum underscored the need to assist developing and least developed countries in modernizing their intellectual property systems to meet requirements under the TRIPS Agreement keeping in view the transition periods available.

It also decided to follow closely the post-TRIPS scenario including the negotiations on the built-in agenda and consider appropriate policies in response to those developments.

On the emerging issues related to traditional knowledge, including indigenous medicines and folklore, biodiversity and biotechnology, the Forum said it was important to:

*        Extend protection to areas of biodiversity and traditional knowledge utilizing the established advantages of information technology through the setting up of Traditional Knowledge Digital Libraries (TKDLs).

*        Consider the possibility of creating sui-generis systems for protection of traditional knowledge including expressions of folklore and genetic resources where the existing intellectual property regime does not adequately address concerns relating to these areas.

*        Recognize, protect and preserve traditional knowledge, encourage innovation and creativity and promote the sharing of benefits through the effective use of appropriate systems, including intellectual property systems.

The Forum acknowledged the need for participating countries to take part in the international harmonization of intellectual property laws and procedures, including the study of the intellectual property issues associated with new and emerging technologies, the digital environment and the TRIPS Agreement.

The Forum also stressed the need to facilitate and strengthen cooperation among the developing countries in the Asia-Pacific region in the areas of protection and administration of the intellectual property systems, and the need for them to develop a common platform to echo mutual concerns in various international intellectual property fora.

But in its recommendations, the Forum also stressed the need to provide for strong and appropriate sub-regional, regional and international cooperation in the implementation of enforcement measures. In this regard, it calls for a multi-disciplinary approach for the coordination of intellectual property enforcement, in particular, involving government agencies, judiciary, customs and police, private sector, rights holders, and non-governmental organizations.-SUNS4714

 


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