TWN Info Service on Intellectual Property Issues (Mar10/04)
9 March 2010
Third World Network

Bolivia calls for in-depth review of TRIPS Article 27.3(b)
Published in SUNS #6877 dated 5 March 2010

Geneva, 4 Mar (Kanaga Raja) -- Bolivia has submitted a communication to the TRIPS Council of the World Trade Organization (WTO) calling for an urgent review of Article 27.3 (b) of the TRIPS Agreement in order, amongst others, to prohibit the patenting of all life forms, ensure the protection of innovations of indigenous and local farming communities and prevent anti-competitive practices that endanger food sovereignty in developing countries.

The Bolivian submission (IP/C/W/545), at a meeting of the regular TRIPS Council on 2 March, raises a number of issues that it says need to be addressed under the review of Article 27.3 (b).

It concludes that an urgent review of Article 27.3 (b) is needed to: (a) prohibit the patenting of all life forms, including plants and animals and parts thereof, gene sequences, micro-organisms as well as all processes including biological, microbiological and non-biological processes for the production of life forms and parts thereof; (b) ensure the protection of the innovations of indigenous and local farming communities and the continuation of the traditional farming practices including the right to use, exchange and save seeds, and sell their harvest; ( c) prevent anti-competitive practices which threaten food sovereignty of people in developing countries; and (d) to protect the rights of indigenous communities and prevent any private monopolistic intellectual property claims over their traditional knowledge.

According to the Bolivian submission, Article 27.3(b) of the TRIPS Agreement allows Members to exclude from patentability plants and animals, but not micro-organisms, and allows Members to exclude from patentability essentially biological processes for the production of plants and animals, but not non-biological or microbiological processes.

Furthermore, it also requires a legal form of protection for plant varieties, by requiring members to provide plant variety protection either by patents or by an effective sui generis system of protection or by any combination thereof. It also requires that Article 27.3(b) be reviewed four years after the entry into force of the WTO agreement.

[Article 27.3 of the TRIPS Agreement states: Members may also exclude from patentability: (a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals; (b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.]

The Bolivian submission notes that the review of Article 27.3(b) is an issue within the mandate of the Doha Work Programme under paragraph 19 of the 2001 Doha Ministerial Declaration (WT/MIN(01)/DEC/1). It is also an issue within the mandate of the Doha Work Programme under Implementation-Related Issues and Concerns (paragraph 12 of the Doha Ministerial Declaration).

Over the years, says the Bolivian communication, various submissions and proposals have been made on the review of Article 27.3(b). Some important concerns raised by the submissions and proposals are the need to amend or clarify Article 27.3(b) to prohibit the patenting of all life forms, the need to protect farmers' rights, genetic resources, traditional knowledge and traditional practices in developing countries. Meanwhile, various developments have taken place at different national, regional and international levels that highlight the need to conduct concrete and expedited discussions on the review of Article 27.3(b).

In this context, Bolivia drew attention to the adoption by the people of Bolivia of a new Constitution in January 2009, which states: "Article 255 paragraph II: Negotiation, signature and ratification of treaties will be governed by the following principles: Respect for the rights of indigenous peoples and peasants; Harmony with nature, protection of biodiversity and prohibition of private appropriation of plants, animals, micro-organisms and any living matter for exclusive use and exploitation."

Bolivia highlighted another important development in the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007. Article 11.1 of the Declaration recognizes the right of indigenous peoples "to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature".

Article 11.2 of the Declaration requires states to "provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs".

Further, said Bolivia, Article 31 of the Declaration recognises that "indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts" and the "right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions."

Furthermore, in Bolivia's view, the extensive patenting of life forms, misappropriation of biological resources originating from developing countries, increasing concentrated corporate control over the agriculture industry due to various acquisitions, undermining of the rights of indigenous peoples, local community and farmers including farmers being prosecuted for alleged patent violations, proliferation of trade agreements and initiatives focused on enforcement of intellectual property, and pressures to adopt a particular model for plant variety protection, make a strong case for an in-depth and accelerated review of Article 27.3(b).

The Bolivian communication raises several issues for consideration.

In relation to the patenting of life-forms, Bolivia said that the rationale behind Article 27.3(b) is not clear. This relates to the artificial distinction made between plants and animals (which may be excluded) and micro-organisms (which may not be excluded); and also between "essentially biological" processes for making plants and animals (which may be excluded) and non-biological and microbiological processes (which may not be excluded).

Bolivia argued that there is no reason why "micro-organisms", "micro-biological processes" and "non-biological" processes for the production of plants and animals should be singled out for patentability, whereas Members are given the discretion to prohibit patents on plants and animals, and on essentially biological processes.

Moreover, by giving Members the option whether or not to exclude the patentability of plants and animals, Article 27.3(b) allows life forms to be patented. Consequently, since the adoption of the TRIPS Agreement, there has been a proliferation of patents and patent applications involving micro-organisms and other biological resources. This phenomenon has serious social, economic and ethical implications, which are adverse especially for developing countries.

Firstly, said Bolivia, most of the patent holders and applicants are from developed countries. Secondly, the granting of patents prevents those not having the patents from making use of the patented materials, and this is also made up of persons and institutions in developing countries, including indigenous peoples. Thirdly, many of the biological resources originate in developing countries and are obtained without their knowledge and in violation of their laws, thus resulting in "misappropriation" and bio-piracy.

Fourthly, genetic material may be inserted via vectors such as bacteria into plants and animals, and all these living things (the genetic material, the genetically-modified bacteria, and the genetically-modified plants and animals) may then be patented.

"The resulting effect is concentration of ownership of patents in a few entities (largely based in developed countries) with detrimental effects on competition and on social and economic situation (including food sovereignty and livelihood of farmers) that most affects the vulnerable and poor, including indigenous peoples in developing countries."

Patenting of life forms promotes an imbalance in the current intellectual property system. The TRIPS Agreement, while granting monopoly rights to private parties, does not explicitly recognise the collective rights of indigenous peoples and local communities over their biological resources and traditional knowledge, farmers' rights or the sovereign rights of States, added Bolivia.

Bolivia also voiced concern over the issue of protection of plant varieties. It said that prior to the TRIPS Agreement, countries had flexibility to deal with the issue of plant varieties protection in the manner they chose.

However, TRIPS Article 27.3(b) requires protection of plant varieties by either a patent, a sui generis system or a combination of both.

Bolivia raised a number of concerns in this regard. Firstly, in several developed countries, patenting of plants is already taking place, and in the process, there is misappropriation of biological resources, as plants and seeds originating in developing countries are being patented, usually without the knowledge or consent of the countries of origin. Secondly, the 21st century has seen significant corporate control over the agriculture industry due to various mergers and acquisitions. Thirdly, in some countries where there are patents on plants, farmers are being prosecuted for alleged patent violations.

Fourthly, pressures are often placed on countries to accept a certain definition or model for implementation of Plant Variety Protection although there is no such requirement in Article 27.3(b). In this regard, it is important to ensure that innovations of indigenous and local farming communities; the continuation of traditional farming practices including the right to use, exchange, save seeds and sell their harvest is recognised and protected. It is also equally important to recognise the right to take measures to prevent anti-competitive and other practices, which threaten food sovereignty in developing countries.

In this sense, said Bolivia, the new Constitution of Bolivia is a step towards providing protection to its farmers and peasants against actions and practices, which threaten food sovereignty. Article 16. II establishes that "the State must guarantee food security through a healthy, adequate and sufficient alimentation for the entire population". Consistent with this provision, the new Constitution also states in its Article 255. II. 8 that "negotiation, signature and ratification of treaties will be governed by the following principles: security and food sovereignty for all the people; prohibition of importation, exportation production and marketing of genetically modified organisms and toxic elements, which damages the health and environment".

As to traditional knowledge and the rights of indigenous communities, the Bolivian submission said that the process of review of Article 27.3(b) should take into account the United Nations Declaration on the Rights of Indigenous Peoples and the protection of traditional knowledge and folklore.

It further said that one of the cornerstones of Bolivia's new Constitution is full respect for the culture and rights of indigenous peoples. For example, Article 100 of the Constitution recognizes "the cosmovision, myths, oral history, dances and cultural practices, traditional knowledge and technologies of indigenous peoples and peasants as their heritage [and that] this heritage is part of the expression and identity of the State". Article 382 states that it "is the competence and duty of the State to defend, recover and protect biological material coming from natural resources, ancestral knowledge and anything else that originate in the territory".

The indigenous peoples' cosmovision has been a structural element in the design of the National Plan of Development. This philosophy is reflected in the indigenous concept of "Suma Qamana" (that can be translated as "living well") which supports the idea that humans should live in harmony and equilibrium with nature.

"The strong connection that Bolivian indigenous culture has with nature is the heritage of humanity and represents an alternative to the capitalist model of development, that is in crisis and in which development is linked to the depredation of natural resources for short-term profit."

In addition, said Bolivia, the United Nations Declaration on the Rights of Indigenous Peoples was incorporated into the national legislation of Bolivia in November 2007 through Law 3760, which requires all Bolivians to comply with the Declaration.

It stressed that it shall prevent the patenting of any form of life and the granting of private monopolistic intellectual property rights on any traditional-ancestral knowledge. +