TUG OF WAR OVER LIFE PATENTS

June 1998

TUG OF WAR OVER LIFE PATENTS

Recent events suggest that the rift between governments and people is widening in the arena of genetic resources. Despite some positive rhetoric, international negotiations at the recent meeting on the Convention on Biological Diversity (CBD) did little to advance the agenda on the rights of countries and local communities to their genetic resources. Delegations also appeared to be sidling slowly towards the World Trade Organisation (WTO) position favouring the commercialisation of genetic resources. At the WTO meeting shortly afterwards, undaunted by daily rallies and street demonstrations, the WTO position was made much more blunt. Northern governments continued to bully their Southern counterparts into submission over the patenting of lifeforms. And at the subsequent Food and Agriculture (FAO) meeting of the Commission on Genetic Resources for Food and Agriculture, industrialised countries made it plain that they have no intention of recognising the livelihood rights of the thousands of millions of people who are the true custodians of the world’s biodiversity.

Meanwhile, Europe was the scene of two votes which demonstrated the power of the biotech industry in manipulating legislation and suffocating the voice of the people. Recent opinion polls have clearly demonstrated that the public is largely opposed to genetically engineered food and is sceptical about patents on life. Yet On May 12 the European Parliament approved a directive which allows intellectual property rights over living organisms. In addition, on June 7 an initiative which would have banned patents on life in Switzerland was shot down after a massive public relations campaign by the biotech industry which preyed on basic human insecurities related to health, food and job security.

These events give rise to three observations. The first is that, having betted heavily on gene technology for the next round of capitalist growth, the world’s actors in the pharmaceutical, agricultural and chemical industries will go all the way to defend their investments and their intellectual property rights (IPRs). Second, that the richest industrialised country governments are largely the handmaidens of the transnational corporations they house. And third, most importantly, that people everywhere are rising up and voicing their concerns about the unregulated and forced introduction of transgenic organisms into our food supply andenvironment.

During the Fourth Conference of the Parties (COP4) of the CBD, most of the issues brought forward by many Southern governments, indigenous peoples, local communities and NGOs found their way into watered-down text in ambiguous resolutions. Many delegates would like to keep CBD development mostly in the realm of purely environmental concerns, but this clashes with the stark reality that biodiversity management is inherently political. Most biological or genetic resources of major human importance are the result of intelligent management by local communities. Measures to conserve, use and share the benefits derived from those resources must consider matters of control and equity.

One of the main concerns people have is that the CBD may end up losing the capacity to implement its conservation and sustainable use objectives due to the great pressure the liberalisation of global markets has on the commercialisation of biological resources. Many delegates agreed that IPRs and the TRIPS regime are detrimental to achieving the objectives of the Convention, and there was a call for the CBD to exert supremacy over WTO in matters pertaining to biodiversity. But the final resolution translated this into a weak request to ensure consistency in implementing the CBD and WTO/TRIPS agreements and for WTO to act as the watchdog over possible conflicts. That is akin to asking a wolf to take care of the lambs, and does not send a strong message to the TRIPS Council for the upcoming review of Article 27.3b on patenting plants.

On a more positive note, the discussion on the implementation of a work programme on agricultural biodiversity highlighted the increased collaboration with FAO. The COP urged that the revision of the International Undertaking on genetic resources for food and agriculture be finalised by the end of 1999, and that the revised IU be presented for consideration as a protocol under the CBD. The importance of traditional knowledge was highlighted, as well as the need to identify the threats to agricultural biodiversity from biopiracy. Despite pressures to the contrary, the final decision urges a precautionary approach to the development of the recently patented ‘terminator’ gene technology (US patent 5723765) that prevents farmer-saved seed from germinating.

High hopes had been placed on the establishment of an on-going process within the CBD for the implementation of Article 8j on the rights of indigenous peoples and local communities. Some delegates and indigenous peoples’ representatives brought up the conflicts between local community rights and IPRs, and the final resolution includes an interesting statement to the effect that "traditional knowledge should be given the same respect as any other form of knowledge". These discussions led to a direct confrontation between the Brazilian delegation with indigenous peoples’ representatives, as the former repeatedly questioned the latter’s participation in the deliberations (see photo). An ad hoc open-ended intersessional working group was approved with a mandate to advise on the development of a legal framework on the rights of indigenous peoples and local communities over biodiversity.

One alarming prospect is the role being allocated to the World Intellectual Property Organisation (WIPO) in relation to the CBD. WIPO is keen to be more active in advising governments on IPRs and indigenous/traditional knowledge. However, WIPO’s agenda is very biased toward helping developing countries implement – not question! – the TRIPS agreement and creating special property regimes for countries wishing to sell off their native biological and cultural heritage. If a CBD-WIPO rapprochement succeeds, it is likely that WIPO will be charged with helping the South implement CBD Article 8j through new IPR schemes devised for indigenous peoples. This would seriously block the development of collective and community rights, which by definition are not IPRS.

Benefit-sharing continues to be the drum beaten by trade interests in their drive for continued easy and cheap access to genetic resources. For the first time biotechnology was squarely on the agenda, and a panel of experts was convened to suggest access to genetic resources and benefit-sharing schemes, "including the whole range of biotechnologies." Understandably, there was concern that accepting a priori that gene technology may help to meet CBD objectives could undermine the work being done in the working group on biosafety. The biosafety working group will meet again in August in Montreal, and early in 1999 to finalise its work, followed by an extraordinary COP to adopt the protocol. Important outstanding issues include scope, preventive measures, trade with non-parties, socio-economic considerations, and liability and compensation.

COP5 has been scheduled for the second quarter of the year 2000 in Nairobi. In the meantime there is plenty of work to do: finalisation of the biosafety protocol, Article 8j development, work under the Clearing House Mechanism, the re-negotiation of the IU, the TRIPS revision of Article 27.3b, and developments under the WTOs agriculture and environment committees. The Biotrade Initiative continues to move head under UNCTAD, and now WIPO is moving in on the implementation of tradi tional rights.

At COP4 timid but important steps were taken in the right direction, such as moving ahead on Article 8j. At the same time, the pressures for biotrade to open access to local and indigenous communities resources was very tangible. The big question is whether the CBD sells out to the free trade paradigm or takes its stewardship role seriously, basing its approach on considerations of equity and justice.

The three-day session Second Ministerial Conference (MC) of the WTO included an intergovernmental ‘celebration’ of 50 years of the multilateral trade system as ruled previously through GATT. Ministerials are pompous affairs. Ministers of Trade and Heads of State fly in and out to make speeches in huge assembly rooms. NGOs buzz around like busy bees in their own secluded working spaces. The link between the two is a television cable and an occasional descent into the NGO ghetto by Renato Ruggiero, the Director General of WTO, or one of his proxies. For governments, it is a pre-arranged show peppered with a few surprises. For civil society, it’s a place to meet and critically examine the WTO’s agenda and how it affects people’s concerns about agriculture, ecology, labour and gender issues, the patenting of life, and the ever-increasing grip of transnational corporations over local economies and peoples’ lives.

The Geneva conference was shaken every day by major street demonstrations against globalisation and ‘free’ trade. Peoples’ Global Action, a new movement launched in February, organised street rallies almost every day. Thousands of people participated in denouncing the WTO and vowing to assure its destruction. The demos were not peaceful: the Swiss police had people tear-gassed, beaten up, deported and even hospitalised. McDonalds, banks and luxury shops had their windows smashed. Much of Geneva was bedecked with spray paint. A park entrance bore an inspired cry of "VIVA JAKARTA!" while a Swiss watch shop was draped with the warning, "WTO: Your Time is Up!"

At the formal level, there was progress at the MC. The US insisted that a new round of multilateral trade negotiations must start soon, especially on agriculture and services. Southern countries were largely arguing that they first have to implement the Uruguay Round Agreements, which is no easy task in itself. The US won the argument, and the new round will likely include new issues such as investment and the environment. And as US Trade Representative Charlene Bertshefsky made clear in Geneva, there is no willingness to ease the WTO obligations many Southern countries are having a hard time to meet: "We make commitments, others make commitments, we implement, they implement. There is dispute settlement if a party fails to do what it committed."

The US is progressively increasing its control over the WTO. Especially significant is the change of venue for the third MC from Islamabad to Washington. Although most multilateral trade disputes occur between the US and the EU, the EU did not pull its weight in Geneva. US domination of the WTO will certainly fuel more public distrust of the entire global trading system, and it is already acting to disarm such opposition.

Many NGOs went to Geneva to encourage dissent against TRIPS, which requires developing countries to provide IPRs on life (starting with plant varieties) by the year 2000. This requirement, however, may be re-negotiated in the 1999 review if Southern governments push for it. The North would prefer to delay the review until WTO begins a new round of negotiations. Such a delay would make TRIPS a fait accompli and reduce the South’s manoeuvring space to nil. NGOs and governments took the opportunity in Geneva to discuss together the implications of the TRIPS Agreement on biodiversity in the South and strategy options for its re-negotiation. Several openings for action resulted. Southern governments want to call for a review of TRIPS Article 27.3b on establishing IPR regimes as soon as possible (1999) in order to suspend the current implementation schedule. The objective of the review should be to remove biodiversity (and, by inference, indigenous knowledge) from the jurisdiction of the WTO. India is the only Southern country that has seriously questioned TRIPS within the WTO structure so far, pointing out that it undermines the CBD. The 1999 review is an opportunity to amplify these concerns to the point of halting TRIPS implementation.

Polls in various European countries (Germany, Austria, Switzerland, United Kingdom) have shown the majority of people expressing caution – if not outright opposition – towards genetically engineered foods, and demanding that they be labelled so that consumers may make informed choices. That is until the biotech industry-funded media and lobby campaigns come in and use all sorts of advertising and public relations tricks to manipulate public opinion. Two recent examples illustrate this.

On May 12 the European Parliament (EP) approved the Life Patents Directive, which opens the way in the EU to corporate property rights over living organisms and human genes, proteins and cells. The directive is very similar to the one rejected on March 1995 because most Members considered it to be unethical. At that time one observer commented that the EP had been the subject of the greatest ever lobby effort in favour of the directive. In the end, the EP caved in to industry and US pressure and was not even willing to include an amendment that would have required that genetic material be accessed through prior informed consent, as requested by 49 delegates at COP4.

The gene technology industry also wielded its economic might in Switzerland, home to some of the worlds largest pharmaceutical firms, such as Novartis and Hoffman-La Roche. Through heavy investment – some say more than US$20 million – it managed to pull off a massive public relations and advertisement campaign (see "The People versus the Life Industry", Seedling, March 1998). Swiss voters, who in early polls expressed doubts about the merits of genetic engineering, voted on June 7 against a popular initiative which would have banned patents on plants and animals, the deliberate release of transgenic organisms, and the development of transgenic animals. Even the public buses carried frightening ads which admonished the Swiss public to "vote smart" since "Genetic Engineering Saves Lives." In order to persuade wary voters both the government and the industry made lots of promises on regulatory and precautionary measures, which they will now have to implement. Members of the coalition which worked in favour of the initiative do not exclude the possibility of going at it again if these promises are reneged on.

Although it appears that the gene technologists have the upper hand, the reality is that the so-called ‘life industry’ is being forced to invest a lot of resources in order to bring its products to market. In the process people all over the world have mobilised and acquired new levels of awareness as to the real consequences of unleashed free trade globalisation. New waves of popular actions have the struggle against neo-liberalism as a backdrop, such as in Chiapas, landless movements in Brazil, farmers in India, and the recent events in Jakarta. In the North, more and more ordinary people are questioning the merits of genetic engineering and the arrogance of the industry in forcing its products upon them. And recently, The UK’s Prince Charles, incensed at pressure from Monsanto to market its genetically engineered crops, called for a five year moratorium on the deployment of transgenic plants in his country.

At the same time some Southern governments are facing up and challenging the unjust new world order. India has successfully challenged patents on traditional plant resources, and is involved on a bilateral confrontation with the US on IPR trade rules. Thailand is standing by its intentions to pass legislation to protect traditional medicine resources and knowledge. The African Group on international negotiations has come out with a strong position against IPRs on life forms. And in Ecuador grassroots pressure forced the Senate to postpone several times the approval of a bilateral treaty which effectively establish US patents as national law.

The pressure must be increased at all levels if people’s concerns about the destruction of biological and cultural diversity are to have any impact on industry and policy makers. There is no shortage of avenues for action:

* At CBD negotiations Southern countries should use the recently opened space for Article 8j implementation to secure local community and indigenous peoples rights to their resources. Governments should realise that this is to their advantage since it favours alternative rights regimes over patents. musIt also be made clear that IPR development, at WTO and elsewhere, should not run counter to CBD objectives.

* As the re-negotiation of the International Undertaking approaches the 1999 scheduled termination date, it is of great importance that it includes a Farmers’ Rights framework which goes beyond mere compensation and secures essential land tenure, heritage and collective rights to food and agriculture resources (see Box) The re-negotiated IU must be a legally binding protocol to the CBD.

* Countries should call for a review of TRIPS in 1998 in order to halt the implementation of Article 27.3b and to wrest biodiversity and traditional knowledge from WTO’s inappropriate jurisdiction. NGOs and peoples’ organisations should voice their concerns both to governments at home and to trade representatives in Geneva.

* Industry and bilateral pressures to enact IPR legislation at the national level in the South nust be countered. Countries which have not done so until now should not jump onto the UPOV bandwagon in order to meet TRIPS obligations.

For more information:

On COP4:

- Summary Report (31 pages) by the Earth Negotiations Bulletin is available at: http://www.iisd.ca/linkages/
- The final decisions are available from the CBD Secretariat: http://www.biodiv.org
- For more on the Terminator gene technology, see RAFI: http://www.rafi.org

Official information and documents on the Second WTO Ministerial Conference:
http://www.wto.org

On the Swiss vote: http://expage.com/page/swissgenlexengl (in English);
http://www.access.ch/private-users/gentechsag/ (in German and French).

On the FAO/IU negotiations: http://www.iisd.ca/linkages/