TOWARDS OUR SUI GENERIS RIGHTS

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Author: GRAIN
Date: 25 December 1997
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GRAIN | 25 December 1997 | Seedling - December 1997

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December1997

GRAIN

From 1 to 6 December 1997 some fourty NGO representatives and resource people got together on the Thammasat University Campus near Bangkok, Thailand, to talk about strategies and responses to the ever increasing pressure to patent life forms. The special focus of the seminar was on the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organisation (WTO), and more specifically the implications of this agreement for the rights over biodiversity and related knowledge. The seminar was co-organised by the Thai Network on Community Rights and Biodiversity (BIOTHAI) and GRAIN. The participants, all active in the struggle for community rights, came from a range of countries across Africa, Asia and Latin America. In addition, half a dozen international resource persons fed the group's work, providing important legal and political insights. What follows is a brief overview of the main conclusions, and the declaration that was adopted.

 

With the conclusion of the GATT Uruguay Round and its Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) at Marrakech in 1994, developing countries, from one day to the next, found themselves under the obligation to provide some form of intellectual property protection on plant varieties. TRIPS Article 27.3(b) requires that members of the WTO (which replaced GATT) do this either through patents or some "effective sui generis system" at the national level. This new reality is the antithesis of what many NGOs and other sectors have been fighting for over decades: space for local communities to assert their own options with regard to livelihoods, especially in terms of being able to retain and develop biodiversity within their own surroundings. The TRIPS Agreement is really the first legal assault, at the global level, against people's rights to control biodiversity. The response to this should be no less energetic, despite the tremendous power imbalances at hand.

The seminar dissected the meaning of the sui generis rights option in context of the WTO's TRIPS Agreement. TRIPS requires developing countries to enact intellectual property rights (IPR) legislation for plant varieties by the year 2000, while least-developed countries have until 2005. This can be in the form of classic industrial patent systems or some "effective sui generis system". Many people speculate that this novel sui generis option will become defined as Plant Variety Protection (PVP), a soft patent system for seeds. PVP is widely criticised by NGOs and scientists for promoting the loss of biodiversity on farms and causing global concentration of the food system under the control of a few transnational corporations. Civil society advocates have been racking their brains to figure out whether and how this sui generis option could be used to enact Farmers' Rights or some other sui generis legal system to protect communities' intellectual rights and promote continued management of biodiversity at the grassroots level. How open-ended is this new sui generis option? What can be achieved through it? What proposals should developing countries make to win the most for their farmers, traditional healers and local communities when the Agreement is re-negotiated in 1999?

FAO and CBD limp on community/collective rights

Efforts to create legal frameworks for community and collective livelihood rights continued at meetings towards the end of 1997. The Convention on Biological Diversity (CBD) convened the Workshop on Traditional Knowledge and Biological Diversity in Spain last November, on the implementation of the Convention's article 8j. The following week the United Nations Food and Agriculture Organisation (FAO) held the Fourth Session of the Commission on Genetic Resources for Food and Agriculture to continue negotiations on the revision of the International Undertaking on Plant Genetic Resources. Some progress was made at each meeting, but many NGOs and POs feel that some governments are dragging their feet, if not openly hindering progress.

The workshop on article 8j was important in the opportunity it offered a large number of indigenous peoples and some farmer organisations to state their issues before a UN body. However for many it was the networking that provided the most valuable results. Also to be highlighted was the improved participation of people's organisations, now on more equal terms with governments, in contrast with the rigid and secretive environment in many other fora. Yet the workshop did not produce a consensus result, but rather what has been termed a "wish list" of useful ideas. Also left open was the type of follow up mechanism to be established under the CBD, with 13 options ranging from a periodic review of 8j related issues to a permanent subsidiary body. Considering that about 100 of the CBD's member countries were absent, at their next meeting (COP4, Bratislava, Slovakia, 4-15 May 1988) the parties could completely disregard the recommendations coming out of Madrid, or just focus on the access and benefit sharing aspects. Thus side-stepping the more basic issue of how to frame the rights of indigenous peoples and local communities to the sustainable use and conservation of their biological resources and associated knowledge.

In Rome general optimism at the outset resulted with the complex negotiations finally being formed into a complete consolidated text. Progress was made on a list of major crops for multilateral access to genetic resources and a fund for benefit sharing. Still clouded in much confusion are the implications and processes involved in gearing the IU as a protocol to the CBD. Many NGOs and developing country delegates felt that the whole process is dragging its feet as to the negotiations on a revised framework for Farmers' Rights and it took energetic action from Southern representatives to get the issue discussed at all. Defining Farmers' Rights remains a contentious stumbling block, not least because it should form the core foundation on which other measures depend. This is likely to become the decisive battlefield as the pressure is on from the secretariat and delegations to conclude the negotiations in 1998.

As 1998 rolls along, with COP4 of the CBD and two special FAO meetings on the IU negotiations planned for June and September, this may be the year that decides which direction the rights debatewill lead. More equitable community and collective control over basic resources, or more hot air?

Seminar participants agreed that any sui generis right developed within the TRIPS framework will inevitably be an intellectual property right, because that is what TRIPS is concerned with, and therefore will be unfavourable to peasants and other resource poor sectors in developing countries. This holds as much for knowledge systems as it does for the genetic resources themselves, both of which are falling prey to unscrupulous profiteers today. For this reason, it was agreed that the review of TRIPS in 1999 must lead towards a better legal option: the option to exclude life forms from patent law in those countries that so wish. This full exclusion is necessary for farmers and indigenous people to get on with their lives, and for developing countries to have any chance of controlling their own resources. The participants reaffirmed their total and frontal opposition to the extension of intellectual property rights to life forms, and also stressed that it is necessary to outlaw biopiracy at the global level.

Contrasting with the type of sui generis rights imposed by the WTO, the participants stressed the need for `our' type of sui generis for local communities, developed in a totally different context, based on a different set of values, and controlled by the people themselves. The seminar group emphasised that the struggle to develop and assert community sui generis rights is largely a local affair. But it needs support, expression, linkages and expansive form through national, regional and international cooperation. At the very least, governments must entrench the position of people to "NO to patents on life!" if biodiversity and community rights over it, are to have any chance of survival at all. Sui generis rights are in total conflict with patent laws: either we protect communities' interests or we protect the multinational corporations.

As was emphasised in Bangkok, the sui generis rights struggle is really another stage in a protracted war. The WTO is a new and powerful forum we have to wrestle with and where developing country governments have to be challenged and supported through the toughest negotiations. But more than in Geneva, the centre of gravity of this struggle is at the national and local levels. The TRIPS Agreement embodies corporate interests in contrast to billions of small farmers, healers, indigenous peoples, fisherfolk and others whose day to day lives and cultures depend on biodiversity in their own backyard. For that reason, the sui generis rights "movement" that was articulated in Bangkok is a very holistic one. The task is not to slander one bad treaty after the other but to create the conditions for collective community rights to be respected. That means reducing the operating field of the IPR system, exposing the anti-democratic nature of TNCs and building up popular mobilisation to support local communities in the exercise of their rights.

The Seminar adopted the `Thammasat Resolution' which we reproduce below. It also came up with a number of action points, strategy ideas and commitments for follow up. GRAIN and Biothai published a 100+ page document with the background and discussion papers for the seminar which is available from GRAIN, either on paper or in electronic form by Email. This document is also posted on the Internet: http://www.iatp.org

The Thammasat Resolution

Building & strengthening our sui generis rights

We, 45 representatives of indigenous, peasant, non-governmental, academic and governmental organisations from 19 countries, came together on 1-6 December 1997 at Thammasat campus just outside Bangkok, Thailand, for an international seminar on Sui Generis Rights co-organised by Biothai and GRAIN. We met to study, assess and develop our response to the increasing privatisation of biodiversity and local knowledge, especially as driven by the Trade Related Intellectual Property Rights (TRIPS) agreement of the World Trade Organisation (WTO) and resulting legislation at the regional and national levels. We focused in particular on the sui generis rights option for intellectual property over plant varieties as imposed on all WTO member states by the TRIPS Agreement, as well as on other international agreements related to biodiversity such as the Convention on Biological Diversity (CBD).

In Thai, `Thammasat' means `knowledge of nature'. It also means `justice'. The name of our venue is central to us. Indigenous peoples, farmers and local communities have, over millennia, nurtured and developed the biodiversity on which humanity now depends. They have been wisely using their knowledge of nature to create sustainable food and health systems based on sharing their knowledge and biodiversity with others. Such community systems are being destroyed by economic development under the guise of free trade, Green Revolution agriculture, new biotechnologies, and globalisation. They are also being destroyed by the rampant pirating and monopolisation of biodiversity and related knowledge through the extension of intellectual property rights (IPR) to life forms.

Perhaps no country exemplifies our concerns about WTO enshrined globalisation as well as our host country. At the time we were meeting, Thailand — and much of Asia — is going through a profound crisis resulting from years of economic growth founded upon fleeting speculative investment. The currency tailspin which started last July is accompanied by destabilisation of markets, loss of employment and cutting of public spending, and results in a clear loss of control over economies and livelihoods, with the IMF taking the steering wheel.

The WTO TRIPS Agreement obliges developing countries to provide some form of IPR on plant varieties by the year 2000. This may be done by patents or by some `sui generis' rights system, meaning in Latin, a system `of its own kind'. In 1999, one year before implementation in the developing countries, this provision will be reviewed and we are preparing ourselves for this review.

We reaffirm our total and frontal opposition to the extension of intellectual property rights to life forms, be it on humans, animals, plants, micro-organisms, or their genes, cells and other parts. We are also adamantly against biopiracy and the monopolisation of biodiversity-related knowledge through such IPRs.

Our understanding of sui generis rights in TRIPS

* The overall implication of TRIPS, and for that matter the whole of the WTO, is highly detrimental to people's economies, cultures and livelihoods.

* The sui generis provision of TRIPS gives WTO member states room to develop their own kind of IPR protection for plant varieties, and many nations are now changing their national IPR laws.

* While some people look at the sui generis option in TRIPS as a window through which other forms of rights over biodiversity can be articulated in legislation, it is our conviction that such rights will be linked to IPR and will result in new and further monopoly rights over plant varieties.

* The same is true of any sui generis rights option which could be developed and proposed under the TRIPS Agreements for local and indigenous knowledge.

The reaffirmation of our sui generis rights

* `Sui generis' perfectly describes the rights and systems we are struggling to defend - our `own kind' of rights and systems. We recognise our sui generis rights to exist independently of the IPR based sui generis systems promoted by the TRIPS Agreement.

* Our rights are inalienable; they existed long before IPR regimes were established. As legal, political, economic, social and cultural rights, they are part of people's sovereignty and therefore part of human rights.

* As community/collective rights, they are indivisible and intergenerational; they include Farmers' Rights and apply to Indigenous Peoples, peasant and family farmers, fisherfolk and other local communities, which derive their livelihoods from biodiversity.

* Their place and expression is firstly at the local level, but they must also be recognised and guaranteed at the national and international levels.

* The rights that we are struggling to develop, defend and let flourish should never be misinterpreted as, or denatured into, intellectual property rights.

* Because people's rights are under tremendous threat, we see the promotion of such rights also as a tool for resistance against, and the rolling back of, the forces of monopoly.

It is on this basis that we will actively engage our societies from the village level through to our governments in the capitals to take part in the struggle for our sui generis rights, and on to the international level to oppose IPR on all forms of life. This implies a whole range of information, research, campaign and coalition building activities over the long term. Some of the immediate tasks at hand are to:

* Demand the revision of TRIPS in order to allow countries to exclude life forms and biodiversity-related knowledge from IPR monopolies under the jurisdiction of the WTO.

* Reinforce the defence mechanisms of local communities who are highly vulnerable to unbridled bioprospecting and to the introduction of genetically engineered organisms.

* Support any calls by local communities for a moratorium on bioprospecting, and demand an immediate moratorium on the research, development, release, and transboundary movement of genetically engineered organisms.

* Assert the primacy of international agreements on biodiversity, such as the CBD and FAO instruments, over TRIPS and other trade regimes, for the resolution of these issues.

* Reaffirm the original intent of the CBD for the conservation and sustainable use of biodiversity and prevent the CBD from becoming a mechanism for transnational corporations to trade in biodiversity in the name of `access' and `benefit-sharing'.

* Mobilise a strong global movement engaging environmental, trade, agricultural, consumer, labour, health, food security, women's, human rights and all people's organisations in these campaigns.

In the spirit of justice and embracing all knowledge of nature, we commit ourselves to the Thammasat Action Plan and invite other organisations, movements and peoples to join us in the struggle to achieve this vision.

Bangkok, 5 December 1997

 

Thai patent threat despite Monsanto ban

Controversy surrounds efforts by the Thai Agriculture Ministry to hurriedly dispose of the country's Plant Variety Protection Bill through a fast track process. In December deputy Agriculture Minister Newin Chidchob, drew heavy criticism by attempting to push the bill through as a Royal Decree amending the 1992 patent law, rather than giving it the more thorough attention of parliament. The move outraged the Forum of the Poor, academics and environmentalists who helped draft the original bill. They pointed out that allowing plants to be patented would invite international theft of Thailand's rich biodiversity. Furthermore a Royal Decree can be changed overnight simply by cabinet approval. Though Newin also claims the need for swift legislation to protect the country's biodiversity, his critics claim his motives stem from corporate pressure to allow for patent protection of transgenic crops on Thai soil.

Lobbying by transnational seed companies has stepped up since the Government decision in November to halt comprehensive field tests by Monsanto of genetically manipulated Bollgard cotton. Monsanto's marketing strategy targeted Thailand's 485,000 hectares of cotton growing land. In their bid to secure the lucrative market the company illegally stacked the cotton testing board with three of its own members. The embarrassing disclosure of Monsanto's dirty tricks, coupled with new evidence that the Bollgard cotton test records indicated high bee mortality rates, are thought to have prompted the ban.

The original plant variety bill would fill Thailand's commitment to the WTO TRIPS requirement to provide plant variety protection in time for the year 2000 deadline. As well as "sui generis" style plant variety protection it also includes provision for the rights of farmers and protection for indigenous biodiversity. Drafting committee member Dr Jakkit Kuanpoj highlighted the danger of giving patents on plants saying, "a patent grants total rights to the patent recipients. They can monopolise agricultural products. This prevents non-recipients from accessing the plant's genetic structure, which is how farmers generally improve plant varieties.". The debate between patent and sui generis rights is set to rage for a while yet, beyond Thailand and all the way to the WTO 1999 TRIPS review.

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