SIGNPOSTS TO SUI GENERIS RIGHTS: 7 SUI GENERIS RIGHTS: A BALANCE MISPLACED by Dr Owain Williams At the base of many peoples' objections to the obligation to extend intellectual property rights to life forms under the current terms of the WTO TRIPS Agreement is a fundamental concern about the balance of rights in our societies. Intellectual property systems are very much geared to protect the interests of industrial innovation and the corporate sector driving it. Local communities, farmers, healers and other "informal innovators" are still left without rights and without systems to support their innovations with biodiversity at the grassroots level. Can local communities see their rights protected under TRIPS? Can TRIPS be implemented in a way that doesn't further, and unfairly, tip the scale in favour of private interests and transnational corporations? What are the scenarios and strategy options for governments and nongovernment organisations which want to ensure that TRIPS does not lead to a further imbalance of rights? These are some questions the GAIA Foundation has been working on in collaboration with a range of government and nongovernment workers, especially in Africa and Latin America. 7.1 THE NEED TO BALANCE RIGHTS TRIPS calls for the provision of intellectual property and not any other kind of right. Therefore, any sui generis system created under the current TRIPS obligation to protect plant varieties must, at the least, provide for private intellectual property rights. Once that is accomplished, any sui generis system can go a step further and provide other, alternative rights more suited to local communities. However, it is highly questionable whether or not these rights should be simply incorporated into the sui generis regime, or left completely outside the ambit of WTO-TRIPS. This is an issue of central importance. Alternative rights -- that are not IPRs -- have to be seen as checks and balances to the private rights that any "effective" sui generis system must contain to meet the requirements of TRIPS. Part of the logic of balancing intellectual property rights is to counteract the negative social and economic effects of private and exclusive rights to knowledge and technology. In the case of plant variety protection or PVP, often touted as the obvious sui generis answer to TRIPS, this balancing of rights has been sought through two restrictions on the unfettered rights of the PBR holder. The first, in order to protect farmers from losing complete control of their most basic means of production, is the so-called farmers' exemption from PVP which allows them to save and reuse protected seed on the farm. The second is the legal exemption allowing other breeders to create new varieties of plants from protected varieties under certain conditions. This balancing of rights has been significantly eroded in the 1991 revision of the UPOV Convention, the implicit model for PVP in the TRIPs, as is reflected in the curtailing of rights of farmers and breeders alike. The move toward double protection of plant varieties -- both by patent and by PVP certificate -- also complicates the question of balancing rights, as the patent system differs in its objectives to PVP in this respect. In the case of patent law, the balance of rights is also being eroded under pressure from the biotechnology industry. Disclosure, whereby inventions are fully described thus making information about them available to the public, is being replaced by deposit of samples in the case of life forms. This is because genetically modified life forms are too complex to describe, and it effectively changes the quid pro quo whereby inventors get monopolies in exchange for making their inventions known to the public. In fact, public access to these samples is highly restricted as well. Patent terms are also being extended -- up to 20 years now -- with no change improving the protection of the public interest in exchange. Finally, the scope of patent protection in the field of biotechnology extends to every subsequent generation of the invention, where in the field of manufacture it ends at point of sale. In the process of adjusting law to meet the needs of biotechnologists, the private rights of patent holders are being systematically elevated with no counterpart protection for the rights of the public. However, various well known undertakings and agreements, which fall outside the international IPR system, have recently introduced other considerations into the balance of rights equation, most notably with respect to the contribution of farmers and local communities to preserving and enhancing biodiversity in developing countries, and the need for clearly established rights to be respected in order for them to continue to do so. Thus, the wider collective contribution of diverse societies to the management of biodiversity and related knowledge is recognised as vital. This is evident in: the correlate recognition of the importance of collective/community rights in the Convention on Biodiversity, the integrity, value and vulnerability of traditional knowledge systems which are recommended for protection by the UNESCO/WIPO Model Provisions, and the International Labour Organisation's Convention 169. Despite the lack of enthusiasm for these types of provisions on the part of the US and other developed countries, they are nonetheless present as norms in international law and, crucially, lie outside the canon of western-dominated IPR systems. A key question is which of the two legally binding agreements -- CBD or TRIPS -- has precedence over the other. Recognition of the need to have these systems of protection available to various community and collective groups has not exclusively been a result of the growth of strong IPRs over plants, animals and genetic resources. A large part of the motivation has stemmed from the fact that genetic colonialism continues at little or no cost to the coloniser, and that the products developed from exotic germplasm are sold back to the developing world as monocultures. Monocultures lead to changes in modes of agricultural production in the developing world and have already severely depleted plant biodiversity in affected regions. The penetration of developing country markets by Northern seed companies was one of the principal reasons why the sui generis clause was included in the WTO-TRIPS. It was a measure designed not to encourage indigenous innovation, but to protect the globalising interests of corporations with growing interests in the seed sector as plant biotechnology has moved from niche to mainstream markets. It is clear that alternative rights systems for local communities are of utmost importance when considering the construction of sui generis regimes and assessing the global paradigm of intellectual rights as promoted through TRIPS. Thinking about alternative rights moves the whole question of balancing of rights away from a narrow nationally-based conception of private versus public rights (as has always been the case with national IPR systems) to a broad international conception of balanced rights: as, for example, between the special needs of the developing world and power of corporations; or the need for a biodiverse planet and the effects of the patenting/PVP system on agricultural practices; or the appropriation of genetic resources versus continued free access to them. The reason for this move toward a broader if more diffuse conception of the proper way in which to mediate these interests, lies in the recognition that depleting biodiversity is an issue of truly global dimensions and requires responses at this level. Thus at an international level it has been established that conservation of biodiversity demands the active fostering of a set of rights which are radically new. Here, as opposed to socio-economic considerations of the public and national interest defining and limiting the extent of private IPRs, a completely new dimension and ethos have been introduced to the discourse of the balance of rights. Thus, we now speak of collective rights, the rights of indigenous peoples, cultural rights, or even the necessity of a global system of open-ended rights to the genetic basis of life itself. 7.2 PROBLEMS WITH BALANCING RIGHTS The problem with these systems of alternative rights is that they are still largely ill-defined as political and legal concepts, a fact which causes considerable difficulty when they are assessed in the context of IPR systems. These rights are not designed to protect states as such, but communities, collectives and peoples. For example, what is the role of the state with regard to the question of rights to genetic resources? Is the state merely a mediator of different sets of rights, or would this role adversely strengthen the power of the state over peoples? Does the state hold rights to life on behalf of the people? Does it own our DNA, since it has the power to regulate access to human genes and grant private monopolies over human genetic information and material? These are difficult questions to answer legally and ethically. Another problem is that, at present, IPRs operate at a different philosophical, normative and ethical level to public and collective rights. IPR systems are designed for western production practices, and PVP systems are designed for western-industrialised agriculture. In many senses the question of how to balance sui generis systems for protection of plant varieties with alternative rights is a non-starter, as the two world views embodied in them are almost incommensurable. The legitimate fora for maintaining or developing collective, community- held rights seems to be the CBD and national biodiversity legislation in individual countries. The dilemma is, therefore, whether or not collective community rights should be incorporated into national TRIPS-compatible sui generis systems as checks and balances to private rights to plants. Alternatively, should these systems be recognised as inalienable rights which take precedence over private IPRs -- international, national or otherwise? It is increasingly felt that the sets of rights that NGOs, farmers groups and indigenous peoples' organisations are clamouring for, and that have been identified by the CBD, ILO and UNESCO/WIPO, should be kept out of the TRIPS sui generis discussion. There are number of reasons for supporting this as a strategy for the countries of the South. 7.3 KEEPING COMMUNITY RIGHTS 'OUTSIDE' THE SUI GENERIS SYSTEM The first lies in the fact that bringing questions of alternative or community rights into the TRIPS arena simply confers even more power upon the WTO. The extent, scope and obligations of any alternative system of rights would be subject to appeal and review by the WTO's Council for TRIPS and the Dispute Settlement Mechanism (DSM). This is hardly desirable, as the CBD at least established the principles of community and indigenous people's rights in binding international law. To allow a largely untested review process to effectively judge if these rights constitute unfair barriers to trade would be a backwards step. In many ways, it would pave the way for giving the WTO authority over fundamental questions of human rights. Secondly, it is a retrogressive move to make rights of communities and peoples to the bases of life a "trade-related" issue. Any far reaching alternative systems of rights will be subject to intense power-political pressure, either via the Council for TRIPS, the DSM, the review of TRIPS, or on a unilateral basis. Constructing any form of sui generis system under TRIPS is perfectly plausible and logical on paper, and this possibility comes up frequently when discussing protection of a range of things from databases on the Internet to indigenous medicinal practices. In reality, any such initiative risks being effectively controlled by powerful vested interests like those the US government clearly represented in the initial TRIPs negotiations, either by subversion or misappropriation of the proposal. A great deal of effort and work could therefore be wasted and, worse, fundamental principles of ethics and morality could be relegated to the status of "trade distortions". A third factor to consider is that a balance of rights between private protection of plant varieties (or genetic resources) and alternative systems of rights de facto demand the presence of private rights in the sui generis system. This may seem obvious, but it does serve to underscore that it might be premature to abandon the principle that plant variety protection is wholly inappropriate for developing countries. In similar terms, consideration of sui generis systems must take into account another feature of the balance of rights question, especially as it has evolved in the recent history of western IPR law jurisprudence. A balance between private/community rights involves the watering down of the former principle by broader interests and needs. However, this could be as much true of private rights to plant varieties encroaching upon the rights which have been established in the CBD, for example. Thus balancing rights implies a trade-off between the public domain of knowledge and the private. It is clear that in the IPR systems of developed countries, and now in the WTO TRIPS Agreement, that there has been a steady erosion of the principle of national/public interest in favour of bolstering private rights. This may well shape the manner in which the Council for TRIPS and the DSM interpret sui generis mechanisms which attempt to place alternative rights above private interests. Again, the trade-off could ultimately relegate fundamental rights to the position where they are only acceptable if they do not conflict with the legitimate interests of the rights holder. The problem under discussion can therefore be summarised in a succinct fashion. TRIPS requires that plant varieties must be protected at least by some form of sui generis system if not patents. TRIPS does not state what that system should entail in terms of its scope, obligations or standards, although UPOV is often and wrongly considered the appropriate solution. Many developing countries are facing pressure to provide sui generis or other forms of plant variety protection under their national laws and often look at the UPOV system for guidance. NGOs and other concerned citizens are discussing how to shape an effective sui generis system without losing all important rights of farming and local communities. Despite the fact that pursuing alternative rights within a sui generis framework may create as many problems as it solves, this might be the only conceivable strategy available at the present juncture. The conundrum is therefore what would a sui generis regime look like without the presence of alternative systems of rights? 7.4 BALANCING OF RIGHTS 'WITHIN' SUI GENERIS FRAMEWORKS Farmer's rights could clearly be used as a balancing mechanism to the strong private rights that TRIPS suggests, and the stated recognition of alternative systems of non-exclusive rights might be central to any putative sui generis system. There are a number of reasons why those who would try to limit the presence of these rights would be on weak ground (at least conceptually). The most obvious and most neglected of these is the traditional historical balance of rights incorporated in all IPR regimes. In parallel, PVP also balanced rights (see above). Correctly understood, IPRs strike a balance between the legitimate interests of the inventor and the greater public interest. This balance alters according to the identifiable sovereign interests of the state, which after all provides a political-legal framework for such rights to be exercised and enforced within. TRIPS is an attempt to abandon one half of the balance in favour of private over public interests. This is evident in the Preamble to the regime wherein IPRs are described as purely private rights. However, the balance of rights argument could fit nicely with the various different rights to be included in 'alternative' sui generis systems. Insisting on a farmer's privilege and collective rights as part of the sui generis regime is arguably permissible under the TRIPS text anyway, but if the sui generis clause does make PVP a category of IPRs then the balance of rights argument suggests itself as yet another justification for watering down full blooded private rights to plant varieties. In contrast, the legitimacy of the CBD could be used as a means of ensuring that farmers' and community rights are not watered down by the presence of private rights. Again, the question of whether the CBD holds precedence over TRIPS (as Article 16.5 of the CBD would suggest) is a compelling area of investigation. In this type of model the former set of rights would have to be treated consistently as something akin to inalienable human rights, and the latter as discretionary. The second reason for forcing the balance of rights issue lies in the recognition of divergent social and economic environments and goals in the TRIPS text. It is clear that food security in the developing countries is reliant on smallscale and sustainable agricultural practices, as well as the free exchange and saving of seed. These practices are evidently different from industrialised agriculture where the private appropriation of seed is an integral part of the particular system (though the prevalence of seed saving is more widespread Europe than is often credited, and the practice of free distribution of seed more recent in the USA than many would have us believe). The two differing systems of agricultural production would therefore seem to demand different types of sui generis regimes. It is even questionable if sui generis protection is needed in developing countries, other than to provide protection for foreign nationals within such countries. TRIPS is a regime designed for western-industrialised systems of production and it would be fair to say that the sui generis system envisioned by many is only for western-industrialised agriculture. The question of "cui bono" from a sui generis regime in developing countries which does not respect such essential differences would automatically point the finger at TNCs, as those who stand to gain. Farmers in developing countries have never needed strong plant variety protection to promote indigenous innovation or improve crops. They have been conducting R&D and feeding the world for 12,000 years. This is an obvious but compelling argument, and the sui generis strategy should fully exploit the TRIPS clauses which refer to the socio-economic interests of developing states. A third reason for pushing the balance of rights issue lies in the environmental prejudice exemption to patenting. If the sui generis provisions are an integral part of the text covering patents then maybe this exemption could be brought to bear on sui generis protection. The risk of environmental prejudice should be used to justify sui generis systems which promote the conservation and active encouragement of sustainable agriculture in the developing world. This can only be done by trading-off private rights to plants (which constitute environmental prejudice) for farmer's rights which so clearly promote biodiversity via community breeding and germplasm exchange. There are, however, some pitfalls in the environmental prejudice exemption which we should be aware of (see box). BOX 4: THE ENVIRONMENTAL PREJUDICE EXEMPTION IN TRIPS TRIPS allows exemption from patenting for any invention which might constitute 'serious prejudice' to the environment. [1] This would seem to offer substantial scope for countries or pressure groups seeking the non-patentability of biotech inventions or plant varieties which serve to deplete biodiversity. However, as Correa argues, this provision is in practice likely to be purely cosmetic and is open to narrow interpretation. This is partly due to the fact that a case for "...non-patentability cannot be based on any prejudice to the environment, but on one that is qualified as serious." [2] In another sense, this qualifier might limit opposition to the granting of biological patents to, say, the release of specific micro-organisms into the environment which might engender environmental damage. Despite the fact that the exemption does allow for some scope for non-patentability, there is arguably a cause for concern that the limitation might detract from some of the wider impacts on the environment that biotech will herald (such as the detrimental effect that biotechnologically engineered cultivars might have on plant biodiversity). Future legal cases based on the environmental impact of biotechnology/monocultures vis-à-vis the availability of rights, might be systematically confined to a piecemeal product by product basis, serving to effectively channel legal challenges to patentability into narrow rather than broader environment concerns. Of course the impact of the patenting/PVP system will have the widest possible global implications for the environment. The wider environmental issues pertaining to new biotechnology and the question of rights to life could, however, be used to stipulate non-patentability of plants on the grounds that the patent system has an impact on what types of plants are grown, by whom, and where. If patenting or plant variety protection can be proven to constitute biodiversity-depleting instruments, then the environmental prejudice exemption could possibly prove the most powerful tool in the anti-TRIPS armoury. Part of the task therefore is to carefully monitor the types of varieties that are patented (monocultures/hybrids) and the penetration of developing country seed markets by these. This is obviously a difficult task, but as always empirical evidence is needed in the patent-biodiversity argument to prove something which we already know. 7.5 SUI GENERIS RIGHTS STRATEGY: THE BROAD OPTIONS There are three broad options within which a strategy can be formed with the 1999 TRIPS review and the next round of trade negotiations in mind. First, an alternative system could be drafted and presented as a single and coherent system for plant variety protection which is adopted by a number of countries. This might form a baseline from which all willing developing countries might be allowed a degree of legal space to engineer individual provisions to suit varying needs. This would also have the advantage of forming an immediate negotiating bloc both for the review and for the next trade round. It would also present at least an option of changing the text as it stands, or even maintaining the ambiguity of what is an effective system of plant variety protection. One of the problems faced by developing countries thus far in the TRIPS negotiations is that they were often fighting rear guard actions with no coherent and thought out proposals on the table. This is not surprising as IPRs were up until the 1980s only a backwater of international law, resulting in a significant imbalance in expertise during the Uruguay Round. A single sui generis system (with strong farming community rights, indigenous people's and public rights) would at least give potential alternatives to the UPOV model and the status of being a single and well supported negotiating position. This might also provide the basis of forestalling unilateral (Super 301 or otherwise) actions against individual developing countries. A second general approach would be to pursue a strategy, still within TRIPS, by which developing countries design a morass or web of sui generis systems, related rights, and seed distribution and exchange schemes, as well as rights demanded by the CBD. There is of course a substantial international legal conflict and question of precedence between the CBD and TRIPS. Differing national sui generis regimes could be engineered in tandem with sub-state community and farming schemes, regional laws and policy, which could remain outside of the WTO-TRIPS. This would be a much more ethical and sustainable approach, particularly in terms of the needs of farming practices and collective rights, and the general sub-state thrust of the CBD. Creating a complex web of PVP alternatives and related laws, which vary on a country to country basis, might literally overwhelm the Council for TRIPS as well as the dispute settlement machinery. Many of these rights issues could even be fought- out outside of the WTO-TRIPS framework, for as Correa argues there is nothing in TRIPS which mitigates against the construction of alternative systems of rights for, say, farmers, and add-on rights to a plant variety protection system which aims to meet the unstated requirements of an effective system. A "combination thereof" approach to these strategies might be the best means of guaranteeing consolidated TRIPS pressure and ensuring that other systems of rights are not automatically considered within the ambit of WTO-TRIPS. Combining a single alternative system with additional laws and rights to suit each state (region and locality), would give the advantages of both strategies. What is clear is that any approach or strategy must be in place by 1999, before the process of textual change to the TRIPS can be initiated. The negotiating position and concrete single alternative system could be drafted by 1999, perhaps preceded by a highly publicised state level meeting (a tactic not unbeknown to developed countries, in both the run up to and during the TRIPS negotiations). 7.6 INEVITABLE CONFLICTS There is one fly in the ointment of constructing alternative sui generis systems within the TRIPS framework. The most deleterious basic principle of TRIPS is that IPRs are private rights. Any alternative system would therefore have to take into account the "legitimate interests" of the right holder. If the putative sui generis system did not contain private rights over plant varieties there would be considerable criticism from TNCs and industrialised countries. The potential for future conflict between foreign right holders and farming communities or indigenous peoples is depressingly obvious. In addition, the ability to exercise broad biotechnology patents over genetic information might act in tandem with both patents on plants and PVP. The choice of the alternative system of protection could also be rendered irrelevant if developing countries accept biotechnology process patenting, as this would be exactly the avenue by which companies derive an alternative form of PVP. In the last place, any alternative system which facilitates breeding with varieties protected in other countries, or does not recognise the ability of foreign nationals to exercise either patents or PVP, will undoubtedly be charged with being ineffective. This discussion again leads to the question as to the utility of bringing alternative rights into sui generis systems that will be subject to WTO scrutiny. In the long run, it seems best to keep community rights, and other biodiversity-related rights, resolutely outside of the global trade paradigm. Notes: [1] Art. 27. 2, The Results of the Uruguay Round, p. 379. [2] Correa, C.M., 'The GATT Agreement on Trade-related Aspects of Intellectual Property Rights: New Standards for Patent Protection.' EIPR, Vol.16 No.8, 1994, pp. 327-335, p. 328.