GRAIN's article in the October 2002 issue of Seedling entitled “Biopiracy by another name: a review of the FAO-CGIAR trusteeship system”stimulated quite some debate. To air some of the sticky points, we asked inte-llectual property rights expert Carlos Correa to share his views.
GRAIN: Many civil society groups following the international negot-iations on control over genetic resources see an ever deepening crisis of legitimacy in the whole process. For example, with farmers' rights, governments agreed on a concept which was quickly reduced to something very narrow: compensation. Now governments are turning it into a kind of glorified farmers' privilege, the privilege to save someone else's seed, under plant breeders' rights schemes. What is your impression?
CC: You suggest that the concept of farmers' rights was clearly defined, but I don't think this was really the case. There has always been a lot of uncertainty about their definition – whether they should be comparable to intellectual property rights, granting some form of exclusive rights to farmers, or if they are something different. I think the concept of farmers' rights has been very important in moving the agenda forward and in making clear the need to recognise the work done by farmers and to look for ways to compensate their contributions. But I think the major problem in this discussion has been the lack of a clear conceptual framework to implement farmers' rights. Now we have one specific provision in the FAO Treaty which indicates that the responsibility for implementing these rights lies with national governments. Maybe this could be seen as a first step. Maybe the final objective could be recognition of farmers' rights at the international level, with mechanisms to implement them. The FAO Treaty represents a significant achievement as a first step towards clarifying and making these rights effective.
Another example of institutional illegitimacy is the FAO-CGIAR trusteeship
agreement, in which a group of donors are deciding what should happen to the
half million farmers' seeds in the CGIAR genebanks. They're deciding
on their own what kind of legal status the seeds should have, what they're
used for, how and for whose benefit. The farmers are left completely out of
the discussion. Do you think this problem can be resolved?
This
is a difficult issue. We have all these seed collections which have been collected
over time, and in certain cases it's difficult to know the sources, who
has contributed and to what extent. For all these collections, we need to define
rules which facilitate the exchange of materials for research and improvement,
with access for everybody. The objective of the Treaty is an important one.
It presents a model that is significantly different from the model presented,
for example, by the WTO, where everything is about appropriation and establishing
limits instead of facilitating exchange and access.
Another important concern relates to materials which are currently under development, from which future varieties will come. I think the Treaty provides some protection here because materials under development are not covered by the multilateral system and remain under the control of farmers. This means that decision making still lies with the farmers and there are possibilities for different approaches and treatments. This is a pragmatic approach which serves the public interest.
What does the CGIAR mean when it says that the farmers' materials in their genebanks are in the “public domain” and that the trusteeship system is meant to keep them there?
In this context, I think “public domain” is used in the conventional meaning of intellectual property law, whereby everything not subject to specific exclusive rights such as patent or copyright is free to be used by anybody. This means that no exclusive rights based on intellectual property can be claimed and enforced in relation to these materials.
Can there be other rights that exist in relation to these materials if they're considered in the public domain?
There are, of course, sovereign rights which are recognised by the Convention on Biological Diversity and by the FAO Treaty. These materials are subject to the sovereign rights of the countries where they reside. That's quite clear. There may be other rights, but the concept is that no exclusive rights can be claimed and enforced in relation to those materials.
But where does the CGIAR or the FAO member states get the authority to make these decisions regarding these seeds?
I think that the CGIAR and FAO are saying, ‘We are dealing with materials which are free from any intellectual property rights and we want these materials to remain outside the intellectual property system.' On the one hand, they are just stating what the situation is in relation to the materials. On the other hand, they are setting a norm. They are saying, ‘We don't accept or want these materials to be subject to exclusive rights.' It's not a matter of getting authority to make these decisions. They are making policy based on the CGIAR's possession of the germplasm. As possessor of the materials, you can say you are prepared to provide these materials to anybody who requests them for research or breeding or whatever, so long as they do not claim intellectual property rights on them.
The FAO Treaty and the CGIAR Material Transfer Agreements both say that no one who gets access to the materials can seek intellectual property rights over them, or their parts and components, “in the form received”. What that means is open to interpretation. We find it difficult to understand the phrase as meaning something other than in the form you receive it, the exact form. That would mean people could extract genes or cross the material and apply for intellectual property rights on the result, because it's no longer “in the form received”.
You added the word “exact”. The provision doesn't say “exact”. There is a methodology for the interpretation of this provision and we should be careful not to read into the provision what is not said. We also need to take into account all elements to make the right interpretation. The Convention on the Law of Treaties stresses the ordinary meaning of words in the context of the treaty and its objectives. It also provides for some additional means of interpretation: for instance, the history of negotiations of a provision and the state practice. There might be different views, of course, about what the implications of this provision are. In my view, it doesn't say that there is only protection against appropriation of a material in the form in which it has been “exactly” received. I think there is room for such a definition to embrace minor, trivial changes, or modifications which do not alter the essence of a material.
Under patent law, there is the so-called doctrine of equivalents which provides the basis for a judge or a patent office to decide when there is a conflict between two patent claims or between a patent claim and an infringement. Depending on the scope and breadth of the doctrine of equivalents, we find some room to decide when you may consider that a certain material is or is not covered by this “in the form received” provision.
What do you think would be best interpretation of those words in the interest of the South?
I think that we all still need to study this further. But my first reaction would be that we need not consider any trivial amendment to the material as enough to say that this rule is not applicable. I think that there should be a fair interpretation of this provision – that is one of the basic principles of the Vienna Convention, that interpretation is bona fide, in good faith. I think that it will not be a bona fide interpretation if you try to abuse or escape this provision through minor changes to the material in order to gain intellectual property rights.
With the United States' recent decision to sign the FAO Treaty, what do you think will happen now with that interpretation process?
The US will probably come with its own interpretation and that will have to be taken into account now. But other countries have all the rights and possibilities to provide their own views. To that extent, the outcome will depend in the last instance on interpretation at the national level. So I think there is still room, as happened with TRIPS and other multilateral agreements, for developing bona fide interpretations that really respond to the intention of those who negotiated the Treaty and which does not deny the objectives that the Treaty aims for.
But with the review of TRIPS Article 27.3(b) going nowhere, with WIPO trying to harmonise national patent laws, and with all the pressure that is being exerted through bilateral and regional trade negotiations, like the FTAA, aren't developing countries being caught in an increasingly giant net? It seems like no matter what, they're being forced to accept rules that encourage appropriation and fences rather than sharing and access?
There is a very strong push from developed countries, at least some of them, to export their own kind of rules on these issues. There is a strategy which includes WIPO, WTO, bilateral agreements, unilateral pressure and so on to press developing countries to accept certain standards. Developing countries should monitor all these processes more actively and reject bilateral agreements which impose on them TRIPS-plus standards. I think the developing countries made a very important step last year when they prompted the adoption of the Declaration on the TRIPS Agreement and Public Health. It shows that if developing countries coordinate on the issues and they negotiate properly, they can get recognition of their own interpretation of TRIPS. Many of the interpretations now accepted were originally rejected by some countries. There is a lot to be done. And I hope that the work done by GRAIN, other NGOs and many people might help to convince developing countries that they have the right to do this. There's nothing that should compel them to accept these kinds of standards. It is quite difficult, because there are all these political pressures and economic interests behind all these negotiations. But in the end, countries are accepting promises of market access in exchange for providing rules that negatively affect public health or food security. I do not think these are deals that they should make.