Last 14 September, the Andean Community -- composed
of Bolivia, Colombia, Ecuador, Peru and Venezuela -- adopted a new intellectual
property rights (IPR) system. Designated as Decision 486,
the law sets out common rules for the granting, implementation and enforcement
of a wide range of IPRs in the five Member States. It will come into force
on 1 December 2000, replacing the regime defined in the Communitys
Decision 344 of 1993.
Decision 486 is specifically meant to bring the five
countries IPR systems in line with the World Trade Organisations
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
It does so with direct reference to the Convention on Biological Diversity
With respect to ongoing conflicts over rights to genetic
resources, biopiracy and the patentability of life forms, the Decision
contains quite a number of provisions. The most noteworthy are perhaps
the following (roughly translated from the Spanish, but not the legalese):
- The Member States recognise the rights and faculties
of local, indigenous and afroamerican communities to decide over their
collective knowledge [Art 3]
- Life forms, in whole or in part, as they are
found in nature, natural biological processes, and biological material
which exists in nature or which can be isolated from any life form,
including genomes or germplasm, shall not be considered inventions
- Inventions whose commercial use should be prohibited
to protect the health or life of people or animals, or to conserve
plants or the environment, shall not be patentable. To this effect,
the commercial use of an invention will not be considered contrary
to the health of life of people or animals, or to the conservation
of plants or the environment, merely because of a legal or administrative
ruling which prohibits or regulates such use. [Art 20]
- Plants, animals and essentially biological processes,
which are not non biological or microbiological processes, for the
production of plants or animals shall not be patentable [Art 20]
- Any application for a patent on an invention,
be it a product or process, obtained or developed from genetic resources,
or their derived products, of which any of the Member States is country
of origin shall include a copy of the access contract [Art 26]
- Any application for a patent on an invention,
be it a product or process, obtained or developed from traditional
knowledge of indigenous, afroamerican or local communities of any
of the Member States, and for which the Member State is country of
origin, shall include the copy of the document which accredits a license
or authorization of use from the community, in conformity with what
is established in Decision 391 and its modifications and valid regulations
- When the patent is on a self-replicating biological
material, except for plants, the patent holder shall not have the
right to prevent others from using it as the initial base to obtain
a new viable material unless the repeated use of the patented material
is required [Art 53]
- When the patent protects self-replicating biological
material, the patent shall not extend to the biological material obtained
by reproduction, multiplication or propagation [after it the product
placed on the market] as long as the reproduction, multiplication
or propagation is necessary to use the material in conformity with
the purpose for which the product was placed on the market and where
the derived material is not used for the purpose of multiplication
or propagation [Art 54]
- Patents granted on inventions obtained or developed
from genetic resources or traditional knowledge, of which any Member
State is country of origin, without presentation of a copy of the
proper access contract or license from the community shall be nullified
- Any mark referring to elements of the cultures
of indigenous, afroamerican or local communities shall not be registered
without the communitys express consent [Art 136]
- Microorganisms shall be patentable pending the
adoption of different measures as a result of the review of TRIPS
Article 27.3(b). To this effect, the obligations assumed by the Member
States under the Convention on Biological Diversity shall be taken
into account. [Second Transitional Provision]
On the surface, some of these elements may look progressive.
After all, this is the first time that a group of developing countries
has set up a new intellectual property regime in the name of TRIPS which
directly incorporates elements from the Convention on Biological Diversity
(CBD). Can harmony between the conflicting international treaties be achieved
this way? According to Margarita Florez, a Colombian lawyer long involved
in this debate in the subregion, we should be extremely cautious. In her
view, the CBD-friendly provisions in Decision 486 do not carry the same
weight as the intellectual property rights.
GRAIN concurs. This new move to accommodate community
rights over traditional knowledge and sovereign control over access to
genetic resources within an IPR regime is just that -- accommodation.
Incorporating the language does not necessarily move anything forward
for local communities themselves. In the case of Decision 486, what we
see on paper is an initiative to involve indigenous people, afroamericans
and rural folk of the Andean countries in the smooth running of a patent
system which fundamentally serves to give exclusive commercial rights
over local biodiversity to others. This is fine, if your objective is
make patents on life more politically correct. But its disempowering
if your objective is to strengthen the rights of local people over their
own knowledge, resources and livelihoods, and against the encroachment
of bioprospectors and the greed of biopirates.
The adoption of Decision 486 should serve as an alarm
bell to policy-makers and legislators in other developing countries. Rather
than succumb to the contradictions within TRIPS (e.g. the obligation to
review the provisions on biodiversity while these provisions should have
been implemented last January), not to mention the conflicts between TRIPS
and CBD, we need to fix the problem at its source. The review of TRIPS
is going on and getting deeper into the issues. There have been proposals
tabled from a good number of developing countries to suspend the implementation
deadline and amend the treaty to exclude biodiversity from its purview.
And there are excellent suggestions now for new language being circulated.
The cards are in the hands of the South to stay on the offensive and pursue
real change in their international obligations -- without falling into
the trap the Andean Community fell into.
| All the elements of
human rights in Decision 486 are illusions
GRAIN interview with Margarita
Los Baños and Bogotá, 28 September 2000
[GRAIN] How do you read Decision 486?
[Margarita Florez] The key point is that this
law takes the subregion beyond TRIPS, because it
introduces the patenting of microorganisms when TRIPS is under
review. As I see it, TRIPS prohibits members from excluding
microorganisms from their patent laws. It does not oblige you
to suddenly declare that microorganisms are patentable. Even
less so when this provision is under active review, be it through
the review of Article 27.3(b) or the review of the entire TRIPS
[GRAIN] Decision 486 links the patentability
of microorganisms to some kind of expectation that the review
of 27.3(b) might result in a different ruling in this regard.
What do you make of that?
[MF] I think this formulation has almost no
effect. Microorganisms have now been declared patentable irrespective
of a review of this very provision in TRIPS. How can our governments
implement this obligation from TRIPS and at the same time anticipate
a change in TRIPS that would undo the same obligation? What
this amounts to is the Andean Community deciding to ignore the
opportunity of the review. Theyve cut off the discussion
by falling in line with part one of 27.3(b). Thats
what I mean by beyond TRIPS: our governments have
accepted less than what was available to them.
[GRAIN] So you dont see the Decision
as an approach which tries to reconcile different realities:
TRIPS as it stands, the review of 27.3(b) and the CBD?
[MF] No. In reality, Decision 486 was pushed
on us by the United States and is entirely shaped in their interests.
You have to bear in mind that the kind of pressure that the
US is exerting on us -- in Ecuador, Colombia, throughout the
subregion -- is tremendous these days. Just look at the 2000
Special 301 Report of the US Trade Representative Charlene
Barshefsky. Decision 486 was not openly negotiated. There was
no public debate. It is the US interfering, in one of so many
profound and destabilising ways, in our laws and lives. We had
options under TRIPS, even if they were restricted ones. Now?
No more! But I want to stress: what makes me nervous about this
law is the blatant contempt for multilateralism that it embodies.
It was pushed on us by one country and pays no more than lip
service to the rights we contracted under several international
treaties, namely TRIPS and CBD.
[GRAIN] If it's to be viewed primarily as a
US concoction, why does it distort patent law, so to speak,
by carrying provisions on peoples' prior informed consent, contracts
on access to genetic resources, biosafety regulations and rights
of local communities over traditional knowledge? The US doesn't
normally advocate the introduction of these kinds of things
into patent law. In fact, they vehemently resist it at WTO.
[MF] It's nonsense. The parties to the Convention
on Biodiversity, the developing countries in the TRIPS Council,
even the United Nations Commission on Human Rights have all
recognised the incompatibility between TRIPS and CBD. The Andean
Community text simply embodies this problem. All the elements
of what we would consider human rights in Decision 486 are illusions
-- because the incompatibilities are not resolved. What matters,
as a result, are the intellectual property rights that the new
law affords. Look at the text carefully. The provisions on community
rights, access, traditional knowledge and so forth are extremely
weak! They're empty. On paper, yes, Decision 486 talks about
the obligations assumed by the Member States under the
CBD. But in practice and in reality, they dont have
the same legal weight as the IPRs provided for in the same regime.
The reference to CBD is just a hollow carry-over from the principles
we fought to get respected by Decision 344.
[GRAIN] Okay, let's compare. Decision 344 established
that animals, naturally-occurring material, human genetic material
and inventions related to essential medicines are not patentable.
Decision 486 now says that microorganisms are patentable, plants
are not (in addition to animals), and is silent on essential
medicines and human genetic material. How should we interpret
[MF] In 1993, Decision 344 introduced into
our countries the possibility of patenting plants. This was
accompanied by Decision 345 which set up a separate IPR system
on plant varieties, modelled after the UPOV Convention of 1991.
What we, civil society groups, did at that time was fight hard
for yet another regulation to implement CBD, so that the rights
of the communities would be not be undermined by these new IPRs.
And as a result, we got our access regime, Decision 391. Now
what happens? In comes enormous pressure on our trade officials,
with foreign companies saying, Look, our investments require
that you guarantee us legal protection over other materials.
Give us microorganisms. Of course! If anything is commercially
underexplored in the field of biodiversity its microorganisms.
So the trade-off is that we're now allowed to exclude plants
from our patent system, but we have to grant the transnationals
rights to microorganisms. This is a very uneven deal! Microorganisms
represent a huge area of research and therefore IPR and profits
for these companies. I'm convinced of that.
[GRAIN] So what can be done?
[MF] We have to work harder to secure the proper
rights of local communities over their resources and traditional
knowledge. Getting special effects written into
patent laws is no solution. Its superficial. And illusory.
And therefore dangerous. As long as traditional knowledge and
the rights of countries of origin dont have the same weight
as IPR, the situation remains completely inequitable.
Margarita Florez Alonso is a Colombian
lawyer, specialised in biodiversity law and indigenous peoples'
rights. She is currently finalising a study to be co-published
by the Gaia Foundation and GRAIN on how regional integration
agreements, bilateral investment treaties and unilateral mechanisms
determine intellectual property regimes in Latin America. She
can be reached at [email protected].
Decisión 486: Régimen Común sobre Propiedad Industrial,
Comisión de la Comunidad Andina, Lima, 14 de setiembre 2000. (Texto completo.)
Andean Community approves new common intellectual
property regime, Press Release, Andean Community General Secretariat,
Lima, 15 September 2000.
United States Trade Representative, 2000 Special
301 Report, USTR, Washington DC, May 2000.