SIGNPOSTS TO SUI GENERIS RIGHTS: 1
THE INTERNATIONAL CONTEXT OF THE SUI GENERIS RIGHTS DEBATE
In the past few decades, international attention regarding the fate of the world's biodiversity has grown tremendously. Many people have become aware of the value of biological and genetic resources, especially as they vanish under the pressure to convert to industrial and post-industrial economies. And many people have realised the inequity in who controls and profits from them.
The effort to redress this inequity has passed from debates among scientists and politicians at agencies like FAO to hardline business fora like WTO. Many nongovernmental public interest groups have tried to bring the communities' voices to these negotiations, and otherwise to influence them. As the century closes, the question of how to balance rights and obligations among various actors - from high tech drug companies trying to find a cure for AIDS to angry indigenous peoples who are tired of being robbed - is unresolved.
This section reviews the demands, challenges, pitfalls and opportunities that are placed at the door of developing countries by various key international organisations. The WTO is by far the most important of these, since protection of intellectual property is now required to be part of the multilateral trade system, and countries failing to provide "adequate" and "effective" protection face economic sanctions.
Other intergovernmental institutions including the World Intellectual Property Organisation (WIPO), the Union for the Protection of New Varieties of Plants (UPOV), and the UN Conference on Trade and Development (UNCTAD) are also pushing intellectual property rights (IPR) on the South. The UN's Educational, Scientific and Cultural Organisation (UNSCO), Food and Agriculture Organisation (FAO) and Convention on Biological Diversity (CBD) leave the question open as to what should be done. None of these institutions, however, has the power of sanctions to enforce their rulings, leaving the WTO the supreme arbiter in a global system based upon economic might.
This section is intended to clarify the role of each of these institutions, enabling nongovernmental organisations (NGOs) and interested government officials to better participate in the swiftly evolving system of global governance, particularly regarding the control and management of biodiversity.
1.1 THE WORLD TRADE ORGANISATION (WTO)
The World Trade Organisation (WTO) replaced the General Agreement on Tariffs and Trade (GATT) at the beginning of 1995. It was created as part of the "Final Act" of the Uruguay Round of trade negotiations at the April 1994 Marrakech Ministerial Meeting. At that moment, the WTO took over the historic role of GATT, which is to act as the multilateral instrument that lays down rules for international trade, set by nations responsible for the bulk of world trade. Unlike GATT, however, which was an ad hoc organisation, the WTO has a firm legal and institutional foundation. (The membership, agreements and structure of the WTO are presented in the annexes of this report.)
Instead of an "agreement" among "contracting parties," as was the GATT, the WTO is a club to which "members" are accountable. The WTO has executive, legislative and judicial powers, and non-complying members can be punished with trade sanctions. Driven by the logic of commercial trade, the WTO's decision-making is dominated by the wealthier nations and their influential exporting corporations. As a result, cultural, social and ecological concerns are ruthlessly set aside as globalisation proceeds.
The leading industrialised nations and transnational corporations are using the WTO to continue pushing for global standards that fit their interests in areas like agriculture, services, procurement, telecommunications, investments and intellectual property rights.
The WTO has a pyramidal structure. All issues ultimately are reported to the Ministerial Conference via the General Council. Membership of most subsidiary bodies is open to all WTO members, and the most important bodies will actually include all members. Although in theory any member can object to any decision, many important decisions are taken outside the formal structure and procedures of WTO during informal meetings, special discussions under the authority of the chair of any given body, or simply in the corridors. This diminishes transparency and reinforces the aura of WTO as a club. The pressure from the industrialised countries on national delegations from the South to accept the decisions and compromises reached in the informal interstices of WTO decision-making is tremendous. In the worst case, the US still applies unilateral sanctions (US Omnibus Trade and Competitiveness Act of 1988, Section 301 and, in the case of IPR, Special 301) to force other countries to accept what US-based corporations want.
Within the formal structure of WTO, the most important feature is the dispute settlement mechanism. After all, what make WTO a very powerful force in international relations is the fact that its role is to decide that trade sanctions should be applied on a multilateral basis against any member which disobeys the global rules.
The integrity of the dispute settlement procedures administered by WTO is subject to deep scrutiny by observers. Interpretations of the agreements, interpretations of the non-existent negotiating history of the Uruguay Round , reasoning of judgements... all sorts of factors contribute to how WTO decides right from wrong. It is becoming clear that, in addition to doing their job - that of clarifying the provisions of the WTO agreements - some of the panels are stepping outside their jurisdiction and are creating new law. They do this when they conclude, as at risk in the case of India's implementation of TRIPS Article 70, that countries have obligations that are not evident in the WTO accords. Is this a "systemic" perversion, as some observers believe, or is it a natural consequence of WTO treaty administration being a "dynamic" process, subject to trial and error?
Only two WTO bodies did not arise from a prior round or the text of an Agreement. These are the Committee on Trade and Development (CTD), which has existed since the Tokyo Round, and the Committee on Trade and Environment (CTE), established by the Marrakech Ministerial Conference which concluded the Uruguay Round. The CTE's agenda encompasses many issues relating to trade and environment, focusing on aspects of environmental policies which may result in significant trade effects for its members and vice versa. While NGOs cannot participate in the CTE, the Committee and the WTO as a whole are well aware that the CTE's work is of intense public interest. Several public symposia on CTE issues have been held with NGOs, and the Committee publishes a special newsletter about its work. The WTO has also cooperated with a new NGO in Geneva, the International Centre on Trade and Sustainable Development, which specialises in facilitating information flow between the WTO and other NGOs.
1.1.1 Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The TRIPS Agreement, which came into effect on 1 January 1995, obliges every member state of the WTO to fulfill certain minimum standards to protect intellectual property in the area of copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organisations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of plant varieties; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.
The Agreement is monitored by the WTO's Council for TRIPS (Article 68), composed of the member states. In the year 2000, the TRIPS Council will review implementation of the TRIPS Agreement in its totality, and again every two years after that. During the review procedure, the Council will examine national legislation it has been notified of, raise questions to the member states, etc. The TRIPS Council reports on its deliberations and recommendations to the General Council.
Objectives: The general goals of the TRIPS Agreement are contained in the Preamble of the Agreement. Article 7 lays down the "Objectives" of the agreement: the protection and enforcement of intellectual property rights which should promote technological innovation and the transfer and dissemination of technology. Technology should be promoted in a manner conducive to social and economic welfare, and to a balance of rights and obligations. Article 8 recognises the rights of members to adopt measures for public health and other public interest reasons and to prevent the abuse of intellectual property rights, provided that such measures are not contrary to the provisions of the TRIPS Agreement.
General provisions: TRIPS Articles 3, 4 and 5 lay down the fundamental rules on national and most-favoured- nation treatment of foreign nationals. The National Treatment clause requires WTO members to treat the nationals of all other member countries exactly the way they treat their own nationals. The Most-Favoured-Nation (MFN) clause requires WTO members to treat the exporters of all other WTO members exactly the same as they treat those of their most favored trading partner. In other words, these clauses forbid discrimination between a country's own commercial actors and those of all other member countries regarding protection of intellectual property.
Harmonisation: The Agreement sets global intellectual property standards by requiring all WTO members to comply with the substantive obligations of the main treaties administered by WIPO, the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works, in their most recent versions. With the exception of the provisions of the Berne Convention on moral rights, all the main substantive features of these conventions are incorporated into TRIPS by explicit reference in Articles 2.1 and 9.1, and thus become obligations to WTO members under the Agreement. The TRIPS Agreement also imposes additional obligations which raise and harmonise standards of intellectual property protection in the member states.
Transitional Periods: The TRIPS Agreement gives all WTO members transitional periods, which depend on the level of "development" of the country concerned (Articles 65 and 66). However, all members, even those availing themselves of the longer transitional periods, have had to comply with the National Treatment and MFN treatment obligation as of 1 January 1996.
Exceptions to the transitional periods
Two important obligations have been in effect since the TRIPS Agreement entered into force on 1 January 1995:
Enforcement: The Agreement makes disputes between WTO members over interpretation and implementation of the TRIPS provisions subject to the WTO's dispute settlement procedures.
Provisions related to patents
The TRIPS Agreement obliges member countries to make patents available for any invention, whether product or process, in any field of technology without discrimination. While the term "invention" is not defined in the Agreement, it is stated that inventions must meet the criteria of novelty, inventiveness (non-obviousness) and industrial applicability (usefulness). It also requires that patent rights are available without discrimination as to where the invention was made and whether products are imported or locally produced (Article 27.1). This means that no invention should escape patent protection in any of the member states and that importing a patented good should be considered the same as exploiting or "working" the invention. (The whole of Article 27, which deals with what is patentable and what can be excluded from patentability, is reproduced in the resource section of this report.)
There are three exceptions to the "no exclusions" rule.
Other highlights of the TRIPS obligations that affect developing countries' patent laws:
The 'sui generis' rights clause on plant varieties
As explained above, TRIPS Article 27.3(b) allows members to exclude plants and animals other than micro-organisms from patent protection. No trade sanctions may be exerted against countries which prohibit patents on plants and/or animals, under the WTO's jurisdiction. However, every member country must provide some form of intellectual property protection for plant "varieties". This may be under their patent law or by an "effective sui generis system" or by some combination of the two.
This provision has been subject to intense debate, particularly since it relates to the world's seeds, food supply and health care systems. In many countries, from France to Viet Nam, plant varieties are excluded from patent protection because they are not considered inventions in the ordinary sense and because legal monopolies on biological materials can be a deterrent to research and breeding. The alternative form of protection that was drawn up historically was specific Plant Variety Protection (PVP) or Plant Breeders' Rights (PBR). These are sui generis rights. Sui generis means "of its own kind". These IPR systems are uniquely tailoured to apply to specific subjects and provide particular rights. Other forms of sui generis IPR are lay-out designs of integrated circuits for computers or still-emerging laws to protect the compilation of electronic databases.
The TRIPS Agreement is silent on what a sui generis system in the context of plant varieties means. Some people interpret this clause to mean legislation that follows the provisions in the UPOV Convention, intended to promote PVP/PBR throughout the world. Others point out that no reference is made in the TRIPS Agreement to UPOV, whereas every other IPR convention that TRIPS binds its members to is explicitly identified in the treaty. There are no diplomatic records of the TRIPS negotiations to give an official reading of whether UPOV was intended or why it is not mentioned.
If a sui generis system that satisfies TRIPS does not have to imply UPOV membership or even PVP, what does it have to imply? Although, in practice, this question will not be resolved until the 1999 review (and even then, probably not until a series of post-review disputes have passed through the WTO dispute settlement process) a study done by Dan Leskien and Michael Flitner evaluates the issues thoroughly. Their conclusion is that the minimum requirements for a country's sui generis system to comply with TRIPS would be that it:
1) provide for an intellectual property right
2) provide the same advantages to non-nationals as nationals (National Treatment)
3) provide the same advantages to all WTO-member trading partners (MFN)
4) cover plant varieties of all species
5) permit action against infringement (if "effective" means "enforceable").
Additionally, since the following are provided for elsewhere under TRIPS it has to:
6) be more than a registration of trademark/name
7) be more than a geographical denomination
8) provide more than protection against unfair competition.
A crucial question draws from the first point: when is a right to a plant variety an "IPR" and when is it not? According to Leskien and Flitner, such an IPR in its bare bones would be "a legally enforceable right either to exclude others from certain acts in relation to the protected plant variety or to obtain a remuneration in respect of at least certain uses of the plant variety by third parties." Such a definition leaves plenty of space for nations to develop an appropriate balance between the rights of plant breeders and those of local communities that joining UPOV immediately closes off.
Several developing and least developed countries are looking at the sui generis clause as a window, an opening, to enact legislation that goes beyond IPR in the direction of protecting the rights of the vast majority of their citizens -- farmers, healers, indigenous and local communities -- who apply creative intellectual efforts and develop useful technologies with biodiversity and their own storehouse of knowledge about it. Going beyond IPR is not prohibited by TRIPS. What is unknown is how sui generis laws that go beyond IPR, providing rights that are different from IPR, will function in a world increasingly dominated by IPR -- and how WTO will react to it. It is important to note that in many countries the discussion on rights related to biodiversity for grassroots communities is not linked to TRIPS. Many Latin American countries, for example, will simply notify WTO of their plant variety protection laws to comply with the sui generis option, but are still working on broader rights legislation which in effect will deal with plant varieties as part of biodiversity.
For some countries, going beyond IPR under the TRIPS obligation is a matter of developing provisions on Farmers' Rights within a PVP or PBR Act. Farmers' Rights are usually not the same kind of monopoly right as granted to professional breeders, but at least establish some recognition and compensation to rural communities for developing varieties that "paid scientists" fine-tune. This is often linked to a funding mechanism instead of royalties. In other countries, going beyond IPR is passing a "sanitised" PVP or PBR Act which is bound to other mechanisms such as biosafety regulations, laws on access to genetic resources, or tools to ensure protection of indigenous or traditional medicinal systems. These emerging responses are presented in Part 2 of this report.
The review of Art. 27.3(b) in 1999
According to Article 27.3(b) of the TRIPS Agreement, the entire sub-paragraph will be reviewed in 1999. This review will be a "review to amend," meaning that in 1999 the wording of Art. 27.3(b) will be re-opened to negotiation and could therefore be amended or deleted. This should logically concern all the provisions laid out in the original sub-paragraph as adopted in 1995:
If the 1999 review points to substantive changes in these provisions, the TRIPS Council might call a "blackout" on the review of its implementation in the developing countries (scheduled for 2000). By blackout, understand that the TRIPS Council might say to developing countries: "Stop submitting or adjusting your laws for compliance with the current Art. 27.3(b) until we finalise the renegotiation." Governments could have spent five years adjusting their laws for naught.
Some industrialised country members have already made it clear that they want to use the 1999 review to expand the IPR requirements on biodiversity. US pressure to change the wording to achieve a "no exclusions" patenting regime will be heavy. This was their stand when IPR was put on the Uruguay Round negotiating agenda. After some haggling, they gave in to the Europeans, whose European Patent Convention excludes "plant and animal varieties and essentially biological processes for the production of plants and animals" from patentability.
Since TRIPS was adopted with this compromised wording, the US has begun to insist that it is not good enough. Washington has been pushing for "TRIPS-plus" provisions on IPR bilaterally through the Free Trade Area for the Americas negotiations, through ASEAN and other frameworks and agreements (see below). If a number of countries -- especially in Africa, Asia and Latin America -- have already implemented more stringent IPR laws than TRIPS currently requires, it will be easier for the US to argue in 1999 that everyone else should catch up and fall in line.
In the process of negotiating, it is possible that some industrialised countries will endorse Washington's "no exclusions" campaign in exchange for certain trade-offs for the developing world. For example, they might concede deleting the exclusion on plants and animals in return for US acceptance of a sui generis legal option to protect traditional knowledge associated with biological diversity. Or they might opt to protect traditional knowledge under other forms of IPR already covered by TRIPS, such as copyright or trademark. Across the board, most official observers (even some WTO civil servants who are supposed to be impartial) are hinting that any new rights system for traditional knowledge has to be entrenched within the WTO framework, even if it merely transcribes the solutions drawn up to implement CBD's article 8(j) or Farmers' Rights as agreed to through FAO (see below).
For many NGOs, these compromises subsuming traditional knowledge into the paradigm of the commercial trading system would be tantamount to ethnocide. The carrot of conciliation hides the stick of domination.
1.2 THE WORLD INTELLECTUAL PROPERTY ORGANISATION (WIPO)
The World Intellectual Property Organisation (WIPO) was created in 1970 and became a UN specialised agency in 1974. WIPO aims to promote the protection of intellectual property throughout the world and works to ensure administrative co-operation among the international IPR unions and treaties. WIPO itself administers a number of these treaties and unions, and provides important services such as facilitating world-wide searches on "novelty" for patent applications deposited in countries that cannot conduct such searches. Day to day, WIPO organises meetings and trainings to upgrade intellectual property systems in developing countries.
At the start of the Uruguay Round, WIPO together with almost all developing countries opposed the idea of negotiating IPR issues within the GATT framework. Instead, it advocated multilateral negotiations in separate fora based on mutual recognition of the different needs for laws in the different countries and a one-country-one-vote procedure for decision-making. But due to the high pressure from industrialised countries, especially the US, this opposition was defeated.
Since the carpet was pulled out from under its feet, WIPO's role has shifted considerably from being a policy-making forum of the United Nations to an executing body for IPR administration and technical cooperation. In an agreement signed between WIPO and WTO on 22 December 1995, WIPO was delegated the job of help developing countries adjust their IPR laws in line with the TRIPS Agreement. However, WIPO does not appreciate such a subservient role to WTO and the tension between the two Geneva bodies is evident. In a recent move, WIPO decided to set up a new unit, the Global Intellectual Property Issues Division, "to deal with global issues affecting developing countries, including biodiversity, folklore and cultural heritage" as well as biotechnology, biosafety, CBD 8j and indigenous knowledge. The unit hopes to play an active role in international fora dealing with these matters and help apply intellectual property systems to the protection of indigenous holders of biodiversity-related knowledge.
1.2.1 WIPO and UNESCO: protection of folklore
There is no single definition of folklore but it generally includes creations of an artistic or intellectual nature which form part of a people's cultural heritage (relating to self-expression and social identity). Many works or expressions of folklore are non-literary, are not attributable to individual creators (they are "impersonal", that is they are created by individuals but become the responsibility of the group), originate across political borders and are not fully inventorised. With new technologies, works of folklore are gaining enormous economic value and increasingly fall subject to misappropriation, misuse and misrepresentation.
Developing countries have been trying to protect folklore from improper exploitation. Some have attempted to regulate the use of folklore creations (defined in various ways) in their copyright laws. Benin and Rwanda are the only countries whose copyright laws explicitly embrace "scientific and technological" folklore in their definitions, such as: acquired theoretical and practical knowledge in the fields of natural science, physics, mathematics and astronomy; know-how of producing medicines, textiles, metallurgical and other products; and agricultural techniques. The National Folklore Board of Trustees of Ghana explicitly includes "traditional technology" and "traditional medicine" as forming part of the nation's culture and folklore.
In 1978, WIPO was asked to draw up sui generis model provisions for intellectual-property- type protection of folklore against unauthorised use and distortion. This was done in conjunction with the UN Educational, Scientific and Cultural Organisation (UNESCO) and in 1982 a Committee of Governmental Experts adopted the "Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions". In 1984, a Group of Experts convened by WIPO and UNESCO was tasked to translate these provisions in a specific international regulation. However, the development of an international regulation, which would be a sui generis form of intellectual property for folklore, has been blocked since then for the following reasons:
The parallels that can be drawn with respect to biodiversity-hinged innovations are clear.
1.3 INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS (UPOV)
UPOV administers the International Convention for the Protection of New Varieties of Plants. Its main objective is to protect the interests of plant breeders by promoting plant variety protection (PVP) laws throughout the world. UPOV has it office inside the WIPO building in Geneva. The Director General of WIPO acts as Director of UPOV, although day to day matters are handled by UPOV's Secretary General. From a membership of six European countries when it was set up in 1961, UPOV now boasts 34 members including several from the South. Only since the early 1990s, when trade pressure to upgrade IPR systems in the South was well under way, did developing countries start joining UPOV in a domino-like fashion.
UPOV members agree on the use of treaties to establish basic rules for common PVP systems. The original 1961 treaty was amended in 1972, 1978 and 1991. The 1991 Convention has not entered into force yet, however. It requires five countries' ratification, of which two must be new members to the Union. So the 1978 Treaty is one that is in force as a Union agreement, although countries may implement the 1991 provisions at the national level if they wish.
Plant variety protection, à la UPOV, is a sui generis deviation from patent law. The criteria for protection of a particular plant variety is that it demonstrate distinction, uniformity and stability. The right covers the commercial use of propagating material, granting breeders proprietary rights over varieties they develop. And historically it embraced two special derogations to suit the intrinsic needs of agriculture and food production: farmers' privilege and breeders' exemption.
In its 1978 treaty, UPOV grants farmers the "privilege" of saving seeds from protected varieties at harvest and informally exchanging them with other farmers, as a limitation on the scope of the breeder's right. Likewise, it grants breeders an "exemption" allowing them the use of other breeders' protected varieties to develop new ones, without paying royalties or penalties. In the 1991 amended version of the treaty, however, both of these measures are restricted. The farmers' privilege has disappeared from the Union text, although individual countries may introduce or maintain it in their national legislation. The breeder's exemption is now subject to a clause on "essentially derived" varieties. If a breeder uses protected material to develop a new variety and that new variety is classed as "essentially derived" - for example, just one gene was inserted - then the second variety is dependent on the first. In other words, you cannot breed freely any more unless you make substantial changes to protected source material.
The 1978 treaty enshrined plant variety protection as the only IPR option for plant varieties. It prohibited double protection. Any country belonging to UPOV 1978 could not grant patents on varieties from species or genera protected by PVP at the national level. That restriction is lifted in the 1991 treaty. Members will be able to provide both patent and PVP for the same species.
UPOV has been running an impressive campaign to convince developing countries that joining UPOV is the only and ideal way to meet the TRIPS requirement for an effective sui generis system to protect plant varieties.
1.4 UN CONFERENCE ON TRADE & DEVELOPMENT (UNCTAD)
The UN Conference on Trade and Development took a keen interest on IPR and developing countries in the early 1970s. Under the leadership of senior UNCTAD staffer Surendra Patel from India, UNCTAD released a scathing report in 1975, together with WIPO, showing that the citizens of developing countries hold a mere 1.7% of all the patents in the world, and that developing countries are net losers when they merely adopt the patent system of the industrialised countries. UNCTAD demonstrated how the South countries have particular development needs and their patent systems should allow for well-tuned provisions to avoid becoming victims of technology-dumping and royalty-siphoning.
In March 1997, UNCTAD made a comeback to the IPR debate -- and it has changed its view of the matter. According to a study called "The TRIPS Agreement and Developing Countries", TRIPS is expected to engender positive impacts in developing countries including more local innovation and additional inward foreign direct investment and technology transfer. However, the report also warns again that TRIPS could also precipitate certain negative impacts, including higher prices for protected technologies and products, and restricted abilities to achieve diffusion through product imitation or copying. The report explains that beneficial impacts are most likely in the few newly industrialising economies that have developed strong industrial and technological bases. In the majority of nations, there could be a net financial cost.
Bioprospecting is viewed by many, including UNCTAD, as another way forward to promote investments and technology transfer. To ensure that developing countries rich in biodiversity will be able to exploit emerging markets, UNCTAD in collaboration with the CBD Secretariat and the University of Charleston developed a proposal for a Biotrade Initiative. At an estimated cost of $2.2 million per year, the Initiative seeks to promote international markets for biological resources by promoting new export commodities and commercial opportunities for developing countries. Components of the Biotrade Initiative include economic and market research, training and capacity building, development of alternative contractual arrangements, evaluation of strategies for biological resource conservation and development, global information dissemination and networking, and private sector collaboration.
The Biotrade Initiative favours the kind of IPR that transnational companies seek and has been amply criticised for overlooking the interests of indigenous peoples and local communities who are sourced for the new Biotrade commodities.
1.5 CONVENTION ON BIOLOGICAL DIVERSITY (CBD)
The Convention on Biological Diversity, which has been ratified by 169 countries and signed by 18 others, embodies international commitments to provide rights on biodiversity and biodiversity-based goods and services in three of its articles: 8(j), 15 and 16.
This article calls on states party to the CBD to "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 the wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of benefits arising from the utilisation of such knowledge, innovations and practices."
While there is much debate over the terms and meaning of this article, it is obvious that indigenous and local communities are supposed to see their knowledge and innovations protected and promoted by national legislation under the legal jurisdiction of CBD, and that this should hinge on the communities' participation and give rise to their sharing in the benefits. Indigenous peoples are clearly supposed to be involved in defining their own rights under this article, but it is less clear who is to speak for "local communities."
The rights related to biodiversity that most people are discussing under this article are numerous. First of all, land rights of indigenous and local communities have to be settled for such groups to pursue the objectives of 8(j). Second, legal frameworks for the protection of knowledge, innovations and practices must be developed. Third, rights to equitable benefits have to be put in place.
The rights to protection of knowledge and innovations challenge IPR up front. Intellectual property rights are ill-geared to protect traditional knowledge, which is already subject to communities' own systems of maintenance, transmission, development, exchange and control. It is the fact that industrialists want access to this knowledge that causes problems, as does development pressure in general. Knowledge is being stolen, misrepresented, abused and destroyed. To protect it, some people advocate sui generis systems of rights to traditional knowledge. Others prefer that IPRs be prevented from being applied in this area and that patent laws be restricted accordingly - whether through the WTO, bilateral trade agreements, at the regional level, nationally or however.
To help resolve these questions, and explore implementation of Article 8(j), the CBD Secretariat organised a Workshop on Traditional Knowledge and Biological Diversity in Madrid last November 1997. The proposals that came out of the workshop are numerous and sometimes controversial.
The full set of proposals emanating from the workshop, including the idea of setting up a subsidiary body to the Convention on the issue, will be considered at the fourth Conference of the Parties to the CBD in May 1998.
Article 15 of the CBD spells out conditions that member states should enact to facilitate access to genetic resources. Prior informed consent (PIC) of the donor country at least is now required. Whether this is constructed at the national level to include the consent - and hence control - of local communities where material is collected is left to the discretion of governments. In most emerging access laws, some form of PIC of communities is required, which does not always mean that such communities fully participate in the decision making processes. Ensuring PIC of communities is all the more difficult since communities generally don't have legal personalities.
Article 15 is being implemented at the national and regional level already. The terms are fairly clear except for one problem. Article 15.3 restricts the implementation of access provisions under CBD to those genetic resources acquired under the Convention. In other words, all germplasm collected prior to 31 December 1994 -- when the CBD came into force -- cannot be regulated under the Convention. The Andean Pact countries are disregarding this: their common regime on access is applicable to all genetic resources originating from the Andean Pact countries, irrespective of when they were acquired. Whether CBD can be amended or adjusted so that the access provisions apply to pre-CBD material -- the bulk of what has been collected so far -- is up for debate. So far, the Andean Pact's access regime has not been challenged.
Finally, Article 16.5 of the Convention on Biodiversity stipulates that transfer of technology, including biotechnology, under the jurisdiction of the CBD must provide "adequate and effective" protection of intellectual property rights. Contradictorily, this article requires that the very same IPR laws must be "supportive of and not run counter to the objectives of" the Convention. This is a highly contentious point and one of the reasons why the United States has not ratified the Convention. No serious discussion has started on what this really means but it is clearly one of the key "interface" areas between the CBD and TRIPS.
1.6 FOOD AND AGRICULTURE ORGANISATION OF THE UN (FAO)
Governments participating in the FAO Commission on Genetic Resources for Food and Agriculture (CGRFA) are recasting a voluntary agreement to which more than 100 states subscribe called the International Undertaking on Genetic Resources for Food and Agriculture. It touches on the same issues as the CBD, but specifically on agricultural biodiversity and farming communities. Once renegotiated, the new Undertaking may become a binding protocol to the CBD.
In relation to rights over biodiversity, the Undertaking will set out conditions for access and benefit-sharing as well as Farmers' Rights. The latest drafts of the text currently under negotiation indicate support for the idea that local communities should participate in any access system and get returns on crop germplasm or local knowledge that they share with national or foreign scientists and companies.
Farmers' Rights is one of the most contentious issues. Developing countries, and NGOs supporting their views, have insisted that Farmers' Rights are collective, transgenerational rights -- not an IPR and not merely a call for compensation. Historically, many parties understood Farmers' Rights as a form of compensation: that farmers should receive in exchange for what they give. The rationale for this is that world agriculture has been highly dependent on genetic resources that farmers in developing countries have "donated" to plant breeders and continue to do. Yet many of those resources are disappearing from farmers' fields, as fewer seed varieties are promoted as the path to higher productivity. Today, the United States, Japan, Canada and Australia would prefer not to talk about compensation at all. They don't want to pay the bill. Also, these countries have objected to language recognising "collective rights" of farming communities, as they would prefer to limit Farmers' Rights to individual farmers.
NGOs and representatives of farmers' organisations are pointing out that compensation alone cannot ensure that farmers continue to develop and improve plant varieties, as they have done for generations. Farmers' Rights would have to guarantee continued access to seeds and protect the space for farming communities to freely exchange seeds and collective knowledge. All of these are threatened by exclusive monopolies over seeds and technologies that patents and the TRIPS regime permit.
In the negotiating round of May 1997, South governments insisted that Farmers' Rights implies a bundle of rights and a programme of action to support farmers in the development and conservation of agricultural biodiversity. This means that Farmers' Rights is increasingly seen as a national responsibility to be supported by firm international commitment. Governments also requested that sui generis legislation for Farmers' Rights be established at both national and international levels. It is also possible that Farmers' Rights will be implemented through a range of measures including land tenure policies, reform of marketing and credit systems, research and technical support programmes to strengthen farmers' strategies, etc. This would need to impinge on IPR laws as well, to stop biopiracy of farmers' materials and knowledge. As some governments have said at FAO, this could be accomplished through sui generis laws under TRIPS 27.3(b).
The renegotiation of the Undertaking has to continue in 1998. Specific proposals for implementation of Farmers' Rights and the relationship of these provisions to TRIPS have yet to be worked out.
1.7 REGIONAL TRADE AGREEMENTS
Various trade agreements outside the multilateral system commit parties to specific obligations related to intellectual property rights. The most important of these, operating at the regional level and which cover IPR are NAFTA, Mercosur, FTAA, ASEAN and APEC.
The raising of Mexico's IPR standards as part of the North American Free Trade Agreement has put strong pressure on Mexico. Mexico was obliged to allow for patents on plants from the signing of NAFTA until it put plant variety protection legislation in place. US seed companies filed over 200 patent applications during this period. Eventually, Mexico drafted a plant variety protection law and of its own initiative re-amended its patent law to exclude patentability of plant varieties. NAFTA also lengthened the period of patent protection in North America to a minimum of 20 years, and added "pipeline protection" for agricultural and pharmaceutical products already patented elsewhere - meaning that during the period in which a patent application is under consideration, sometimes a matter of years, the product is fully protected for the exclusive use of the applicant. This provision is regarded by industry as a major improvements over TRIPS. NAFTA is also the first international treaty to protect trade secrets and proprietary information, including private companies' test data submitted to governments for the approval of new agrochemical and pharmaceutical products, for at least five years of exclusive use.
Literally meaning "Market of the South," the Mercosur treaty formalises arrangements for achieving a common market and customs union (agreements to eventually eliminate tariffs and harmonise other terms of commercial exchange) among Brazil, Argentina, Uruguay and Paraguay. Chile recently joined as an "associate member." The treaty affirms that IPR issues between the parties will be governed by TRIPS.
The Free Trade Area for the Americas is currently under negotiation, and is intended to harmonise trade rules in the whole Western Hemisphere. The United States has introduced what it has called "TRIPS-plus" standards for intellectual property protection as a binding operating principle of the FTAA. These standards go beyond TRIPS by recognising all other IPR-related treaties, some of which (like NAFTA) are even more stringent, by anticipating technological change in the fields of copyright and biotechnology, by stipulating touch enforcement measures including criminal sanctions, and by providing for dispute settlement specifically tailoured for IPR issues. The FTAA will be holding a summit in Chile in March 1998 where at least the parallel peoples' summit (similar to that of APEC) will wrestle with the "TRIPS-plus" agenda of the FTAA.
The Association of Southeast Asian Nations signed a framework agreement in December 1995 to increase cooperation on intellectual property protection. The agreement aims to upgrade member states' capacity to administer and enforce IPR and implement the TRIPS Agreement. ASEAN members will also look to create "ASEAN standards" on IPR and possible an ASEAN Patent Office and an ASEAN Copyright Office. The patent systems in the ASEAN member states are disparate. Brunei does not have an independent patent system and Laos' law is a hand-down from the French colonial period. Indonesia's Parliament has agreed to drop all exclusions on life forms from its patent law while Thailand and Philippines still maintain standard exclusions. The pressure to attract foreign investment bears on most governments in the region but, given major differences in IPR laws, it may be hard to reach harmonisation very soon. TRIPS implementation will remain the top of ASEAN's IPR agenda for the immediate future. However, the government of Indonesia has indicated that it will not support the proposal to establish a regional ASEAN office for patents and trademarks for the same reason that Indonesia has blocked efforts to stimulate cooperation on IPR at APEC: their view that the priority is to improve national IPR systems.
Finally, the Asia Pacific Economic Cooperation is a forum for dialogue among East Asian, North American and some Pacific Latin American countries. In the IPR arena, APEC has consistently talked about strengthening patent laws and achieving implementation of TRIPS, but it has not voiced an agenda for harmonisation. With the strong concerns for high IPR standards of Japan and the US, this could change. APEC's strong work to upgrade border controls in the region could make enforcement of a common IPR agenda more feasible.
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