Africa has recently made significant
strides in indigenous policy development on intellectual property
rights over biodiversity. In July 1999, Africa took unified position
on the review of the World Trade Organisation’s (WTO) agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS) through
two distinct processes:
* On July 6-10 in Algeria, the Council of Ministers
of the Organisation of African Unity (OAU) adopted
a number of proposals for the 1999 review of TRIPS Article 27.3(b),
most notably on the patenting of life forms.
* On July 29 in Geneva, the African Group
at the WTO communicated its own proposals for the 1999 review
of TRIPS 27.3(b) to the General Council. These proposals were
tabled as part of the official preparations for the Third Ministerial
Conference of the WTO, which will take place on November 30 -
December 3 in Seattle, USA.
In both cases, Africa requested that the TRIPS
Agreement clarify that plants and animals, as well as microorganisms
and all other life forms and their parts and the processes used
to obtain them, cannot be patented. The reasoning put forward is
that there is no basis for the distinction, within TRIPS, between
plants and animals, which need not be patented, and microorganisms,
which must be patented. Nor is there a basis for distinction between
essentially biological process, which cannot be patented, and microbiological
processes, which must be patented. Without a basis for such differentiated
treatment, and given that life forms and the processes through which
they are generated are part of nature, African trade policy makers
argue that there should be no patenting in this arena.
The African Group has gone a step further with
its demands to the WTO. In addition to barring life patenting, it
wants TRIPS to allow any national sui generis law to protect
the rights of farmers, indigenous and local communities. Such “community
rights” are recognised in the Convention on Biological
Diversity and in the International Undertaking on Plant Genetic
Resources.
The sui generis option in TRIPS Art 27.3b
has been quite controversial. It requires that some kind of protection
of intellectual property over plant varieties be provided at the
national level – either patents or an effective sui generis
system. Many countries are opting for a sui generis solution
without being sure what it means, especially if it is to be considered
“effective” in World Trade disputes. Subject to
the outcome of the 1999 review of Art 27.3b, which Africa wants
extended, developing countries have until January 1, 2000 to implement
this provision.
Both at the OAU and in Geneva, Africa has made
solid and exemplary steps forward. Civil society organisations around
the world are quickly rising to commend and defend these intiatives.
In particular, an NGO Statement of Support for the African Group
Proposals on the TRIPS Review is circulating in several languages
(see below). But will Africa’s position hold up?
It can, if other developing country government
quickly come out and support it. This will depend for a great measure
on whether NGOs, peoples’ organisations and other groups use
the space opened up by Africa to voice their demands. The position
that many of these groups hold is “biodiversity out of TRIPS.”
That means not only no patents on life, but no forced requirement
to provide intellectual property rights over plant varieties under
TRIPS either. The bottom line for many groups is that WTO should
not have the authority to determine, administer or sanction rights
to biodiversity. Biodiversity is not a trade issue. It is a livelihood
issue. Until peoples’ rights over biodiversity are clearly
secured, the WTO’s role in this arena should be loudly contested.
There is a huge momentum building up to say “no”
to any further trade negotiations at the WTO Ministerial in Seattle
(November 30-December 3) and to assess the gains and losses incurred
under the WTO so far. Even on such a high-stake issue as trade in
genetically-modified organisms (GMOs), European leaders, concerned
about the implications of transgenic crops and food, have announced
their resolve to call for “no trade agreement.” Calling
for a halt on IPRs on life in this context, in full support of Africa’s
excellent proposals, is a matter of urgency.
Statement of support for Africa
A Joint NGO Statement of Support for the Africa
Group Proposals on Reviewing the WTO TRIPS Agreement (Article 27.3b)
was issued by Third World Network in August 1999. For copies of
the statement in English, Spanish or French, and to sign up before
Seattle, contact TWN by email at [email protected],
by fax at (60-4) 226 45 05 or on the web at http://www.twnside.org.sg
Sources: Council of Ministers, 7th
Ordinary Session (July 6-10,1999, Algiers), Elements for Positive
Agenda in the New Trade Negotiations under the WTO from an African
Perspective, OAU, Addis Ababa, CM/2110 (LXX) Annex IV, pp 14-17;
Gen. Council, Preps. for the 1999 Ministerial Conference: The
TRIPS Agreement, Communication from Kenya on behalf of the
African Group, WT/GC/W/302, 6 August 1999, WTO, Geneva, avail.
in English, French, Spanish at http://www.wto.org/wto/ddf/ep/public.html
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