IPRs, ACCESS & BENEFIT SHARING

Access, Benefit Sharing, Intellectual Property, TRIPs

INTRODUCTION

The contribution of farmer varieties, domestic animal breeds and wild relatives to the modern varieties and breeds being grown and reared in many countries today is clearly evident. Local communities have Rights, acknowledged in international instruments, to benefits arising from the use of varieties and breeds they have developed. Legislation at national level to enact these Rights is uncommon. However, to guarantee increased corporate returns and private profit, companies are seeking international property protection of their varieties through legally enforceable plant breeders' rights (PBRs) and patents on seeds, breeds and biological processes, including biotechnology. It is this technologically-driven pressure that has provided the main stimulus to provide intellectual property protection on biological resources for food and agriculture. Laws to implement intellectual property protection are being drafted in most countries.

BENEFIT SHARING, COMMUNITY RIGHTS AND FARMERS' RIGHTS

IPR laws are generally inappropriate and inadequate for benefit sharing and defending the rights and resources of local communities and indigenous peoples. Traditional community knowledge is usually shared and the holders of restricted knowledge in communities probably do not have the right to commercialise it for personal gain. There are a number of models that are emerging to help people develop the basis of future legal systems to protect their knowledge and resources. These rights embody both biological and cultural rights and thus may go beyond other sui generis models (i.e. rights or legally recognised systems that are adapted to the particular needs of a country or community), which concentrate only on the biological resource (Posey and Dutfield, 1996).

Community rights may incorporate rights to manage some aspects of self-governance, natural resource management and economic livelihoods, including control over biodiversity, local knowledge, innovations and practices as required by the CBD. The movement to set up community registers of biodiversity to thwart misappropriation and initiatives to implement a moratorium on bioprospecting are evidence of concern at community level, in the absence of adequate protection. Farmers' Rights should also be considered within this bundle of rights and, importantly, need to be seen as complementary to, rather than in conflict with, other forms of community or indigenous peoples' rights.

Some of these rights are embodied in the CBD, especially Article 8(j) , as well as in the FAO Farmers' Rights resolution 5/89 , but these have yet to be enacted in national laws in most countries though there are a number of models under consideration (see Posey and Dutfield, 1996). More recently, the Organisation of African Unity (OAU) has developed draft community rights legislation and some countries, including India and Malaysia as well as Andean Pact countries, have developed legislation that protects certain aspects of community rights. The development of such codes of sui generis rights, recognised by trading partners, are seen by some countries as being a preferable alternative to the TRIPs Agreement with respect to biological resources, indigenous, local and community knowledge and locally controllable productive resources.

CBD Article 8j

Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices.

FAO Resolution 5/89

Farmers' Rights mean rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/diversity. These rights are vested in the International Community, as trustee for present and future generations of farmers, for the purpose of ensuring full benefits to farmers, and supporting the continuation of their contribution, as well as the attainment of the overall purpose of the International Undertaking in order to: a) Ensure that the need for conservation is globally recognized and that sufficient funds for these purposes will be available; b) Assist farmers and farming communities in all regions of the world, but especially in the areas of origin/diversity of plant genetic resources, in the protection and conservation of their plant genetic resources, and of the natural biosphere; c) Allow farmers, their communities, and countries in all regions, to participate fully in the benefits derived, at present and in the future, from the improved use of plant genetic resources, through plant breeding and other scientific methods.

INTELLECTUAL PROPERTY

Globally, there are two distinct and potentially conflictive knowledge systems. The knowledge systems of the formal sector, of both private and public institutions, and the knowledge systems of the informal sector of communities and individuals. The formal sector knowledge systems are codified, are recorded in writing and are defended through national and international law; the knowledge systems of the informal sector are often oral, are built on trust and are defended through the norms and practices of traditional institutions.

The intellectual property (IP) of the former is recognised in law in industrialised countries and in the industrial sectors of developing countries. The latter has weak jurisprudence in its defence: there are no mechanisms to implement legislation and, in most cases, no legislation has yet been enacted, despite ratification of a number of international agreements, such as the Convention on Biological Diversity (CBD). It is left to individual governments to develop legislation that will ensure the protection of informal knowledge and the equitable sharing of benefits from its use.

The trend of commodification and privatisation of knowledge is prevalent. This is especially through moving knowledge and plant genetic resources from the informal sector into the formal sector, and from public domain to private ownership. It may result in the loss of knowledge and materials by, and benefits for, the originators of that knowledge and the associated biological resources, especially people and communities in the informal sector. National level institutions clearly need to understand better the range of knowledge systems in their country, who benefits from them, how they are being exploited and how they are being protected.

The livelihoods of the majority of people, especially in developing countries, may depend on their informal knowledge systems, which are often subject to predatory acquisition by the formal sector. There are many activities underway to assess these systems but more work is needed in most countries in order that there is a better understanding of the likely impacts of technological, institutional, legal and regulatory changes. The potential conflict between the two knowledge systems does need to be recognised and social, technical and legal systems of protection for biological resources in the public domain and those used by, and for the benefit of, the majority need to be developed accordingly.

Intellectual Property Rights

Intellectual property rights (IPRs) are the rights given to persons over the creations of their minds - their intellectual property (IP). They are granted by a state authority for certain products of intellectual effort and ingenuity. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. Intellectual property rights are customarily divided into two main areas: copyright and industrial property rights. The latter covers the protection of trademarks and other distinctive signs and the protection of industrial property primarily to stimulate innovation, design and the creation of technology: inventions (protected by patents), industrial designs and trade secrets.

The social purpose is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development activities. Patents can be conferred on inventions, subject to the normal tests of novelty, inventiveness and industrial applicability. The protection is usually given for a finite term, typically 20 years in the case of patents (OECD, 1996; WTO, 1998). As Steven Brush has said in his book on local knowledge systems "Valuing Local Knowledge":

Granting intellectual property is a familiar method for converting public goods into private ones (Demsetz, 1967). Intellectual property does not directly convey market value to an idea or plant that is protected. Rather, it allows the market to work where it otherwise would not, by permitting a person to exclude others from using his or her ideas or plants, except under license or royalties. The right to exclude effectively becomes the right to profit from selling the idea or plant. Without intellectual property, all ideas are public goods or common property, and no one can be excluded from using another's idea. The right to exercise temporary monopoly power, however, requires that the claimants of the right prove their eligibility. Defining and defending this eligibility pose very high costs. (Brush, 1996).

There is much debate over the suitability of patents and other forms of intellectual property rights (IPRs) for the protection of plant genetic resources for food and agriculture. For example. the Crucible Group, comprising knowledgeable people from all relevant sectors -formal, informal, commercial, academic, trade and policy - made 28 recommendations in their report "People, Plants and Patents", including:

14. Sovereign states cannot be required to adopt systems of IP in areas that risk the well-being of their peoples or that jeopardise the biological diversity within their borders. Neither should countries be expected to adopt unrealistic time frames to enact IP provisions related to international trade agreements.

15. Any potential conflict between IP proposals and other initiatives for plant genetic resources conservation and exchange should be taken fully into account in interpreting responses to the GATT agreement. (Crucible Group, 1994)"

Whatever the arguments, there is now an overwhelming pressure on all WTO Members, through TRIPs Article 27.3(b) to consider applying IPRs to living material, and an obligation to apply them to plant varieties. In responding to this, countries have to weigh the balance of rights between industrial innovators, often not from the country concerned, and the rights of local communities, farmers, indigenous peoples and consumers within the country (Williams, 1997).

TRIPs AGREEMENT OF THE WTO

Article 27.3(b) of the Agreement on Trade Related Aspects of Intellectual Property Rights - the TRIPs agreement - has yet to be reviewed. In 2000 the World trade Organisation Council for TRIPs will have to decide how to proceed.

The ownership of plants and animals, and hence national and household food security, will be affected by decisions on a sub-paragraph in a World Trade Organisation (WTO) agreement currently due for review. The review is taking place at a time when attempts by developed country institutions and companies to patent biological materials taken from developing countries are being vigorously contested as is the development and release of genetically modified seeds and breeds (living modified organisms), whose commercial viability, it is asserted, depend on the existence of global intellectual property protection systems for biological materials.

In 1999, Members of the WTO should have reviewed Article 27.3(b) of the Agreement on Trade Related Aspects of Intellectual Property Rights - the TRIPs agreement. This sub-paragraph, in the Agreement's section on Patents, describes the WTO rules about the ownership of plants, animals and biological processes. These rules currently allow Members not to have to patent regimes for plants, animals, other than micro-organisms, and biological processes for producing plants or animals. It does, however, require countries to provide some form of intellectual property protection for plant varieties. While everyone is aware that the review must be held in 1999, no date for the start of the review will be fixed until a country formally requests it. This may be discussed at the meeting of the Council for TRIPs on 1st and 2nd December 1998. Commonwealth developing countries need to consider a range of issues, options and capacity building requirements in preparation for this review.

The review is part of a wider process that will determine what choices countries will have over their access to, the sustainable use of, trade in, and benefits arising from the use of plants, animals and biological processes. The results will affect a nation's capacity to provide food and livelihood security for its citizens. It is not a trivial process. The decisions taken on the wording of this sub-paragraph will determine the minimum standards that countries must impose for the protection of intellectual property on plants, animals and biological processes, whether they originate in the country or are imported. It will influence access and benefit sharing agreements with respect to genetic resources. Despite this review, most developing countries should have enacted legislation for the protection of plant varieties (developing or changing seed laws in line with this sub-paragraph) by 1 January 2000 - 1 January 2005 for least developed countries. Introducing legislation at a time when this sub-paragraph and the whole TRIPs agreement are to be reviewed, is causing added difficulties in many countries.

The WTO text defines the legal framework for the ownership of life. The outcome of the review will set precedents for future trade and environment negotiations and will in particular constrain the development of biodiversity-friendly legislation as required by the Convention on Biological Diversity (CBD). The impact of this review will affect all negotiations concerning the ownership, development and use of plants and animals, including, for example: · subsequent trade negotiations in the WTO such as the full review of TRIPs in 2000 and the renegotiation of the Agreement on Agriculture; · negotiations on the implementation of the Convention on Biological Diversity (CBD); · negotiations in the Food and Agriculture Organisation of the United Nations (FAO) on the revision of the International Undertaking on Plant Genetic Resources [for food and agriculture] (IU) and its submission to the CBD as a possible Protocol.

A complicating factor is that each of these negotiations is usually handled by different ministries and departments (e.g. WTO -Trade; Intellectual property - Patent Office; CBD -Environment; FAO - Agriculture), which can lead to a loss of policy coherence and weaken a country's position. Discussions are essential between all relevant ministries in order to agree mutually acceptable negotiating positions for this review and related processes, so countries are able to understand the linkages between, and implications of, all the international negotiations. Good communication with Geneva-based negotiators is also essential to ensure clear communication of positions taken by the competent authorities in capitals. In addition, countries may wish to make effective links among regional blocs to improve their negotiating strength, in advance of the review of TRIPs Article 27.3(b).

The TRIPS Agreement came into effect on 1 January 1995. Developing countries need to have implemented TRIPs by 1 January 2000, except Least Developed Countries, which have until 1 Jan 2005 to implement relevant legislation. The TRIPs Agreement covers inter alia patents including the protection of new varieties of plants (Articles 27 to 34). The Agreement sets out the minimum standards of protection to be provided by each Member of the WTO. These minimum standards are sometimes referred to as Berne and Paris Conventions plus. It deals with domestic procedures and remedies for the enforcement of intellectual property rights. It also makes disputes between WTO Members subject to the WTO's dispute settlement procedures. The TRIPS Agreement requires Member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability (see box with full annotated text of Article 27 on following pages). It is required that patents be available and patent rights enjoyable without discrimination as to the place of invention and whether products are imported or locally produced (Article 27.1). There are three permissible exceptions to the basic rule on patentability.

• One is for inventions contrary to ordre public or morality; this explicitly includes inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment. The use of this exception is subject to the condition that the commercial exploitation of the invention must also be prevented and this prevention must be necessary for the protection of ordre public or morality (Article 27.2).
• The second exception is that Members may exclude from patentability diagnostic, therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).
• The third is that Members may exclude 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, any country excluding plant varieties from patent protection must provide an effective sui generis system of protection. Moreover, the whole provision is subject to review four years after entry into force of the Agreement i.e. 1999 (Article 27.3(b)).
  

FURTHER INFORMATION and LINKS

• Governments Terminate Farmers' Rights to Seeds? CSO Press release
• Alternative Mechanisms to Enhance Corporate Monopoly and BioSerfdom in the 21st Century RAFI &c Communique
• Trade, Intellectual Property, Food and Biodiversity: Key issues and options for the 1999 review of Article 27.3(b)of the TRIPS Agreement English, Français, Deutsch y resumen en español Quaker Paper
• TRIPs, Biodiversity and Commonwealth Countries: capacity building priorities for the 1999 Review of TRIPs Article 27.3(b). Commonwealth Secretariat Discussion Document. Resumen en español
• TRIPs, Biodiversity and Commonwealth Countries: Internet Resources for a Workshop organised by Quaker Peace and Service (QPS) and the Commonwealth Secretariat. Geneva, 22 and 23 June, 1998 (Updated Dec 1998)
• Signposts to Sui Generis Rights: Strategy Ideas for the 1999 TRIPS Review & Beyond GRAIN Brieifing
• Report from the Second WTO Ministerial Meeting, Geneva, 18-10 June 1998, and related NGO meetings, by Penny Fowler CIIR (Jun 1998)
• No Patents on Life: Briefing on the European Patent Directive CornerHouse Briefing
• Smallholder Farmers', Pastoralists' and Artisanal Fisherfolk's Intellectual Rights and Agricultural Biodiversity, in Kenya

• Action Aid

• Genetic Resources Action International (GRAIN)

• ETC Group (formerly Rural Advancement International (RAFI)

• IDRC Sustainable Use of Biodiversity Biodiversity pages

• Institute for Agriculture and Trade Policy IATP's Biotechnology and Biodiversity WebResource (including TRIPs 99)

• Third World Network

• Greenpeace No Patents on Life pages

• Working Group on Traditional Resource Rights (WGTRR)

• WGTRR Links Page

• World Trade Organisation - TRIPs / Patents pages

• The International Union for the Protection of New Varieties of Plants (UPOV)

• World Intellectual Property Organisation (WIPO) Intellectual Property Pages