September 1998 GRAIN Earlier this year, The World Intellectual Property Organisation (WIPO) announced a controversial new programme to extend the benefits of IPRs to new beneficiaries, such as local communities and indigenous peoples. The programme was launched around the same time that the WTO and WIPO announced that they would be teaming up to help Southern countries implement the Trade-Related Intellectual Property Rights (TRIPs) agreement. Is the aim of WIPOs new beneficiaries programme really to help the groups it is targeting, or is WIPO simply acting as the handmaiden of WTO to mainstream IPRs to these groups and pave the way for TRIPs? The seemingly unstoppable drive towards globalisation has seen the issue of intellectual property rights (IPRs) become an issue of worldwide concern and importance. This shift was prompted by the realisation amongst industrialised countries that the absence of strong IPRs in developing countries was supposedly costing them some $200 billion in lost royalties each year. Until its rise to stardom, the issue of IPRs had always been the domain of the rather crusty, dry UN body, known as the World Intellectual Property Organisation (WIPO). However, as its importance rose, the World Trade Organisation (WTO) started muscling in on the intellectual property scene, leaving WIPO floundering around in the backwaters trying to find its place and direction. The WTOs Trade-Related Intellectual Property Rights (TRIPs) agreement started to take precedence as the IPR organ of choice in international fora. At the same time, transnational corporations started to apply heavy pressure to their governments to use the WTO forum to bully the South into implementing TRIPs, and Southern governments are now under extreme pressure to do so. One of the most controversial aspects of the TRIPs agreement is that it requires that states apply IPRs universally to all technologies, especially those which had previously been declared unsuitable for monopoly rights at the national level. These include pharmaceutical products and biological materials such as plants and micro-organisms. WTO is pushing for these IPRs to be strong, monopolistic forms of protection, such as patents or an effective sui generis (unique) system. The patent system started being put in place last century in industrialised countries as a tool for companies to enhance their competitiveness, control markets and increase profits. It works to the Norths benefit and now industrialised countries are pushing hard to eradicate the sui generis option from TRIPs, making patents the only form of IPR available (see box). This would allow their corporations to increase their monopolies, at great cost (monetary, social and cultural) to the South. A recent article (April 9, 1998) in the respected international science journal, Nature, concludes that if left unmodified on the questions of indigenous knowledge and community rights, [TRIPs] risks enhancing social disparities and thereby fostering social conflict. SQUEEZING THE LIFE OUT OF TRIPs The WTO is fast becoming the global constitution that will override all national constitutions. This reality underscores the significance and potential power of the TRIPs agreement. The US has been pushing particularly hard for the removal of the sui generis clause in TRIPs Article 27.3 as an option for the protection of plant varieties, making only IPR option available to be pure patents. It now appears that it is being joined by the rest of what has become known as 'The Quad' in WTO circles: the EU, Japan and Canada. Originally, the EU pushed for the sui generis clause in TRIPs because the Life Patents Directive had not yet been approved and it did not have a position on patenting lifeforms. With the approval of the Directive, it is aligning itself more closely with the US position. Meanwhile, the real 'position' in Europe on life patenting is increasingly contentious. Countries have to ratify within two years, but there is growing pressure on parliamentarians to open up fundamental questions again. The movement against life patents is building steam. On October 16, the Dutch government took its challenge to the Patent Directive to the European Court of Justice. This is an unprecedented move which has serious and widespread implications, not just for the European public, but also for TRIPs. A successful challenge to the Patent Directive would also affect other agreements such as the Andean Pact. Parties to the Pact are currently under pressure to produce legislation similar to the EU patents directive, but can hold off until things have resolved in Europe. They would be wise to wait. Source: The GAIA Foundation WTO and WIPO join forces In July this year, the WTO and WIPO announced that they were joining forces to help Southern states meet the year 2,000 deadline for implementing TRIPs, a move which brought WIPO back into the IPR bullring, re-establishing it as a key player in the game. Almost at the same time, WIPO also launched an initiative to extend the use of IPRs to new beneficiaries, such as indigenous peoples and local communities. This move has raised red flags to many NGOs, community groups and indigenous peoples. It is particularly concerning in the light of WIPOs recent alignment with the WTO. Until now, WIPO has been considered a more desirable partner for Southern countries than the WTO, because it is seen as being more democratic and less manipulated by Northern interests. However, it seems unlikely that it will stay that way, having joined forces with the WTO, as the WTO increasingly imposes the rules of the game with respect to IPRs and WIPO might be forced to implement them. This is the backdrop from which WIPOs Intellectual Property Rights for New Beneficiaries has sprung. The program is under the direction of the Global Intellectual Property Issues Division (GIPID), which also houses new programs on biodiversity and biotechnology, and the protection of expressions of folklore. According to Robert Castelo, Deputy Director of WIPO, the new program will address the exploration and investigation of the needs and expectations of potential new beneficiaries of intellectual property groups which for a variety of reasons have not had access to the intellectual property system. The first group of new beneficiaries identified are indigenous peoples, local communities and holders of traditional knowledge. Interestingly, the programme was launched just after the CBD finally approved a motion (after much bickering) to formally move ahead with the implementation of Article 8j on the rights of indigenous and local communities (see Seedling, June 1998). In this, member states pledged to, respect, preserve and maintain knowledge, innovations, and practices of indigenous and local communities embodying traditional lifestyles and encourage the equitable sharing the benefits arising from the utilisation of such knowledge, innovations and practices. Meeting the New Beneficiaries The programs activities were launched with a roundtable meeting with indigenous leaders in Geneva on July 23-24 this year. The aim of this meeting was to facilitate an exchange of views among policy makers and indigenous peoples concerning more effective application and possible improvements of the intellectual property system to protect indigenous knowledge. Other initiatives include a series of fact-finding missions to various parts of the world, pilot projects related to the documentation of traditional knowledge, and exploration of the ways in which information technology may serve as a tool for the protection and conservation of traditional knowledge. At the roundtable, a number of indigenous leaders stated clearly that current IPR options are biased towards the North, particularly towards the interests of transnational corporations, and are totally unacceptable. As Lars Anders Baer of the Saami council in Scandinavia pointed out at the roundtable meeting, One can observe an increasingly common trend that sees national governments working in the interests of global multinational corporations against their own people, in particular indigenous people. He went on to say that, Commercial interests very often violate indigenous intellectual property rights. Although such violations do no formally constitute a breach of written standards, as neither national legislation nor international standards acknowledge the rights of indigenous peoples, these enterprises are still accountable to indigenous customary law. This fact cannot any longer be ignored by governments, the UN system and business entities. Antonio Jacanimijoy of the Coordinating Body for the Indigenous Peoples Organisations of the Amazon Basin (COICA) added that we cannot continue to operate and promote an intellectual property system that recognises the contributions of some but not of others further deepening the rift between rich and poor. A system founded in this way is based on injustice, and as such is unsustainable and in need of change. At the same time, some leaders felt that there might be a role for WIPO to play in helping to establish other forms of IPRs. Some indigenous groups and local communities sense that the tightening up of IPRs is inevitable and that they have no choice but to try and make the best of a bad system and at least gain some compensation and recognition of their intellectual property. Several roundtable participants made suggestions about WIPOs possible role in this. Those that addressed this issue seemed to agree that blueprint solutions for sui generis systems would never work, and that these need to be developed jointly by individual governments, indigenous groups and local communities to fit the countrys particular cultural, environmental and economic complexion. According to Jacanimijoy, the implementation of an equitable and efficient sui generis system is the responsibility of States. We do think, however, that it is important at the international level to work out principles and guidelines with which to facilitate the process. Erica-Irene Daes, Chairperson of the UN Working Group on Indigenous Populations, suggested that WIPO could play a role in strengthening national level institutions in their work to devise specific practical arrangements with local communities. Some indigenous leaders have been urging WIPO to undertake more research to understand the complexities of legal concepts in the worlds of indigenous peoples. As Baer points out, the fact that indigenous legal concepts, in particular the notion of collective rights, can be a challenge for existing legal regimes does not justify non-involvement from government or inter-governmental organisations such as WIPO. WIPO has little experience outside Western intellectual property rights and whether it is willing or able to take up this challenge remains to be seen. Julian Burger of the UNs Centre for Human Rights agrees that protecting indigenous knowledge does present some major intellectual challenges for WIPOs lawyers, but is confident that there are possibilities out there if WIPO is serious about its mission. However, many indigenous leaders and observers are not hopeful about WIPOs willingness or ability to address the issue of indigenous knowledge in a way that could lead to the development of a fair and equitable system that would serve the needs and rights of the new beneficiaries. Some of these concerns centre around WIPOs political positioning and ambitions, its overall mission, and its credentials for undertaking this ambitious project. Others see that Western IPRs are by definition incompatible with their worldview and way of being, and that no amount of consultation will change that. GRAIN also has serious concerns about WIPOs new initiative, and these are summarised below: 1) Mainstreaming IPRs? WIPO Director-General Kamil Idris likes to describe WIPOs role as protecting human creativity. However, Richard Owens, head of GIPID, talks openly about how the new programme will be mainstreaming IPRs to the new beneficiaries. These are two very different things. But even Idris definition is misleading. WIPO uses the word protection in the same way that WTO does, which means protecting the holder of monopoly rights, rather than protecting something for the common good. As Liz Hosken of the UK-based Gaia Foundation says, The idea of IPRs protecting communal heritage will seduce enough ambitious or unsuspecting people to legitimise the argument for IPRs, thereby paving the way for TRIPs. It seems that even if Idris vision is for a more revolutionary approach to intellectual property (as some defenders of the initiative claim), institutionally WIPO is stuck in traditional IPR mode. The very fact that Owens unashamedly admits WIPO is promoting IPRs to these groups makes it obvious that the latter are not going to be presented with a balanced view of the pros and cons of IPRs. Hence the fact-finding missions clear objective of identifying and exploring the intellectual property needs, rights and expectations of the holders of traditional knowledge and innovations. This approach does not come as a great surprise, since WIPOs mission is clearly stated as being the promotion of the protection of intellectual property throughout the world. After all, 80% of WIPOs not insubstantial funding (SFr 150 million or $US 108 million) derives from commissions from fees it gleans from private users for the international registration services it provides. WIPO has an impressive budget for this programme, and will be able to use all sorts of tricks to sell its ideas. There is a great danger that groups unfamiliar with IPR issues will be seduced by the promises of financial and other rewards without realising full implications of what they are getting into. As indigenous groups stated starkly at the 1995 CBD meeting, Consultation is not consultation unless it is among equal partners. (See Seedling, December 1995). 2) Can WIPO see beyond patents? One of the biggest questions is whether WIPO is merely acting as the handmaiden of WTO or whether it is open to developing creative new options for protecting indigenous knowledge. The WTO promotes patents and if the North gets its way with TRIPs, patents could be the only IPR protection option available to Southern countries. This would be disastrous for Southern governments, and for society as a whole, especially local and indigenous communities. The Western concepts of ownership and innovation on which patents are based are totally incompatible with the way in which many indigenous peoples and local communities view these issues. Patent rights are monopolistic and are designed to reward individual creativity. They are private in nature, preventing people other than the patent holder from access to the innovation or knowledge. In contrast, at a local level most knowledge systems are of a collective nature and depend on continuous exchange of knowledge and resources according to traditional beliefs and practices. Many indigenous peoples and local communities see biodiversity and related knowledge as a collective heritage, rather than private property. This heritage was received from past generations and communities have the responsibility for further developing and handing it over to future generations. For many indigenous and local groups, the very suggestion that people can set themselves apart from nature and own other parts of the natural world is impossible to accept, and even blasphemous. Any Western-style privatisation, through IPRs or otherwise, of these delicate local knowledge systems runs the grave risk of undermining and destroying them, rather than protecting or promoting them. The question, then, is whether the WIPO can show enough creativity and courage to challenge some of the basic assumptions behind the TRIPS agreement and look beyond IPR schemes to promote and protect indigenous knowledge and biological diversity. 3) The consultation question WIPOs plans for consultation with its new beneficiaries centre on seven fact-finding missions planned before the end of 1999. The objective of the fact-finding missions is to identify and explore the intellectual property needs, rights and expectations of the holders of traditional knowledge and innovations, in order to promote the contribution of the intellectual property system to their social, cultural and economic development. The first problem with the missions (and indeed with it the entire WIPO initiative) lies in their very objective. It assumes that holders of traditional knowledge do have intellectual property needs, and that IPRs adapted or not have something to offer to their development. There seems to be no openness to explore the broad spectrum of incentives needed to promote and protect local innovation, or to question the relevance or impact of IPRs on such innovation. A second problem is that it assumes that holders of traditional knowledge have expectations of western IPR systems and can give suggestions on how to improve them. Western IPR systems are an invention of industrial culture. They are dictated by rules that have no basis in the cultures of many local communities. The WIPO fact-finders are looking for answers to questions like Where does the current IPR system meet the informants needs and expectations with regard to traditional knowledge? or How does the informant classify and distinguish different bodies of traditional knowledge, for which he expects or needs IPR protection? This triggered Tewolde Egziabher of Ethiopia, one of the lead African negotiators in the CBD and Food and Agriculture Organisation (FAO), to comment: Expecting the 'informants' to answer such questions is like asking ancient Olympian athletes their opinions about the rules of cricket. They are simply not valid questions. It is hard to see how such fleeting visits will allow for adequate consultation for the WIPO officials to really understand the concerns and perspectives of indigenous peoples, particularly given that WIPO has had no prior experience of working with NGOs or indigenous peoples. These concerns already seem to being played out. The Eastern and Southern Africa mission has already been completed in a whirlwind 18-day visit by two WIPO lawyers to Tanzania, Uganda, Namibia, and South Africa. In South Africa, the WIPO team only met with one group of new beneficiaries, spending all of one afternoon with the San community. This is hardly enough time to get out of the landrover for a cup of tea, let alone find answers to the complex questions WIPO claims to want to address. Rachel Wynberg of Biowatch South Africa attended a meeting primarily designed for parliamentarians in South Africa. The meeting was poorly attended and the WIPO officials did not seem to be very interested in debating the issues. They admitted that their visits were very short and that they could not pretend to be obtaining a complete picture. Rather, they hoped to get a landscape of the main players involved in different regions, such as government departments, industry, NGOs, and communities. Again, on this basis, there is no way the terms of reference for the fact-finding missions could possibly be met. Wynberg concluded that, Most disturbing of all is the lip service that has been given to involving communities in the process For an informed, equal and effective dialogue to take place a substantial process of building awareness and understanding among holders of traditional knowledge is absolutely fundamental. Unless WIPO starts taking the issue of consultation more seriously and makes an effort to provide balanced information instead of misinformation or no information, it is in danger of violating ILO Convention 169 on Indigenous and Tribal Peoples. After attending one of the Namibian meetings, Cyril Lombard of CRIAA, a Namibian NGO working with local communities, pointed out another failing of the WIPO approach. Although they made much of their desire to work more with NGOs and community-based organisations, when pushed to practicalities it became apparent that this was only likely to be on a superficial level. This is because they are responsible to national governments who would need to approve what the money was to be spent on. Here in Namibia we could see one thousand conflicts, especially with the San and some of their heritage issues. In most countries, there is considerable tension between governments and indigenous peoples, and governments may actively prevent WIPO from interacting with indigenous groups. Brazil has already refused to allow the planned FFM to go ahead. 4) Undermining the CBD The CBD secretariat has been discussing with WIPO how it could help develop the CBD Article 8j on local and indigenous community rights. On paper, the new beneficiaries programme is intended to feed into the CBD, but it is not clear how this will happen or what the implications of this are. One of the potential problems is WTOs influence over WIPO, since there is an inherent conflict between the objectives of the CBD and TRIPs. TRIPs demands monopoly rights and the privatisation of biodiversity, whereas the CBD recognises the importance of collective rights, open access and benefit-sharing. The US-dominated WTO is trampling on every environmental treaty around and pushing for free trade (along with a globally harmonised patent system) as the number one commandment for global conduct. WIPO appears to be more open than TRIPs in its approach to IPRs, but the WTO has shown impressive strong-arm tactics in every realm in which it operates, and is likely to sway WIPO accordingly. By siding with WTO, it may be hard for WIPO to collaborate with the CBD. And if it does get involved, WIPOs interference could help sabotage any attempts the CBD makes to develop non-IPR forms of protection for indigenous knowledge and resources. It is also suspected that WIPOs role could be intended to open up Article 8j to IPRs, thereby softening the way for the TRIPs process. There is much talk in intergovernmental circles of harmonising the CBD with TRIPs, and this may be the real intent. On the other hand, the calls to give the CBD primacy over TRIPS on matters related to biodiversity are increasing by the day. Rather than harmony, there is a clear conflict between the TRIPS and the CBD. CBD AND TRIPS: SINGING OUT OF TUNE CBD TRIPs THE CONFLICT Nation states have sovereign rights over their biological resources. Biological resources should be subject to private IPRs. Compulsory licensing, in the national interest, should be restricted. National sovereignty implies the right to prohibit IPRs on life forms. TRIPs requires IPRs on life forms. The use or exploitation of biological resources, and the knowledge, innovations and practices deriving from it, must result in the equitable sharing of benefits. Patents must be applied to all technologies, including those related to the use of biological resources. No provision for sharing benefits between patent holders and the country of origin of the material from which the invention is derived. CBD gives countries a legal basis to demand a share in benefits. TRIPs negates that legal authority. Access to biological resources requires the prior informed consent of the country of origin. It also requires the "approval and involvement" of local communities. There is no provision requiring prior informed consent for access to biological resources which may subsequently be 'protected' by IPRS. CBD now gives states legal authority to reduce biopiracy by requiring prior informed consent. TRIPs ignores this authority and thus promotes biopiracy. States must promote the conservation and sustainable use of biodiversity as a common concern of humankind, taking into account all rights to biological resources. The safeguarding of public health and nutrition, and the public interest in general, shall be subject to the private interests of IPR holders as reflected in the provisions of TRIPs. CBD places the public interest and common good over private property and vested interests. TRIPs does the exact opposite. Source: Adapted from TRIPs versus CBD from GRAIN/GAIAís Global Trade and Biodiversity in Conflict series, No.1, April 1998. 5) Missionary zeal The motivation for the new beneficiaries program came from WIPOs Director-General, Kamil Idris, who has a vision that IPRs to protect human creativity should be made available to all sectors of society. This move was welcomed by some indigenous groups and other bodies such as the UN Centre for Human Rights, which had been asking WIPO to take up this challenge for a number of years. However, the altruistic portrayal of the programme and the missionary zeal with which it is being promoted echo other moments in history. As Hosken points out, It was the missionaries desire to promote Christianity to new beneficiaries that destroyed traditional practices and social cohesion, thereby paving the way for the conquistadors to stake their claims to peoples ancestral lands. It was also the excuse for mass genocide, environmental devastation and the destruction of cultural diversity. The language being used by WIPO is misleading and dangerous. The description of its Global Intellectual Property Issues programme waxes lyrical about IPRs: the pervasiveness of intellectual property in the fabric of human activity and aspiration, and the universal character or IPRs, call for exploration of new ways in which the intellectual property system can serve as an engine for social, cultural and economic progress for the worlds diverse populations. This is actually the antithesis of what IPRs really have to offer all but the rich and powerful. Nowhere is there any suggestion that IPRs could work against the interests of the new beneficiaries, or that they work to feed corporate rather than community coffers. There is no discussion about the fact that IPR systems are scale-based in favour of the large and powerful against the small and vulnerable. It is extremely hard to see how most communities would ever be able to find the money or expert advice to enter the game or defend themselves once in it, when even many smaller companies in the industrialised world struggle to find the resources to do so. PAYING THE PRICE FOR PROTECTION The UK's Gaia Foundation was recently approached by a Namibian NGO seeking advice on how best to protect current and potential uses of a local plant. The more they looked into it, the more absurd the idea of patents became. At present, patents are predominantly national rights, so a US patent is only valid against infringing conduct in the US. To obtain maximum protection patents would need to be taken out to cover a wide range of potential uses and in as many countries as possible. Patent enforcement is through the civil courts, so litigation costs fall solely on the owner. In addition, the burden of proof is on the patent holder to show that their patent has been infringed. Some very rough costs of patent protection in selected countries are summarised below: Patent application preparation: US:$10-20,000; UK: $1,600; Australia $2,800-4,300; European patent:$2,400-3000. Official fees: UK: $350; 10 European countries: $4,500; Australia: $500; 10 countries internationally (via WIPO's Patent Convention Treaty, PCT): $3,000 excluding additional international and national examination fees. PCT is not an option in this case, as Namibia is not a signatory to the Convention. Translation costs (for an average 25-page patent): about $1,000 per language Cost of Upkeep (Annual fees to host country for 20 years coverage): UK: $5,300; France: $5,160. Costs of Protection and Challenges: These are very variable and hard to predict. One US industry observer estimated protection costs over the lifetime of a patent to be $250,000; others have put the figure as high as $1 million for a single litigation case in the US and $600,000 in Europe. The Rural Advancement Foundation International (RAFI) has already spent $50,000 on its challenge to Monsanto's transgenic soybean patent in a number of countries. RAFI was also informed that if it were to challenge disputed Plant Breeder Rights certificates in Australia would cost more than $50,000 in filing fees alone, excluding the costs of preparing, presenting and defending their objections. Cradle-to-grave costs: One estimate suggests that the cradle-to-grave cost (ie all of the above) for patents covering a single invention in 52 countries would amount to $472,414 - almost half a million dollars! It is clear from these figures that there is no way a community in Namibia could possibly afford to jump on the patent bandwagon. The costs involved make patents the domain of the rich and powerful. Patents are specifically designed to protect investments in the development of new products, and only make economic sense if used to protect something with commercial value. Using patents to protect the Namibian plant makes no sense at all. Source: GAIA; OECD report: OECD/GD(97)210; Erwin Berrier, Global patent costs must be reduced, Journal of Law and Technology, Vol 36, Oct-Dec 1996. Conclusion Historically WIPO has been a preferred partner for Southern governments and NGOs than the more bullying, Northern-dominated institutions like WTO. But indigenous peoples, community groups and other NGOs should proceed with great caution in their dealings with WIPOs new beneficiaries programme. Feedback from the first fact-finding missions does not inspire confidence in WIPOs willingness or ability to really take the bit between its teeth in addressing the question of IPRs from the perspective of indigenous peoples and local communities. Concerned groups should keep a close eye on the initiative and take every opportunity they can to make their concerns known to WIPO. WIPO - COMING YOUR WAY Undeterred by the enormity of his task, Richard Owens, Head of GIPID, says he is eager for his programme to meet with more groups of 'new beneficiaries.' The Eastern/Southern Africa and South Asia (India, Sri Lanka and Bangladesh) fact-finding missions have already been completed. The North America fact-finding mission is scheduled for November 10-24 this year, and fact-finding missions are planned for Central America and the Caribbean, South America and West Africa during 1999. Those groups wishing to monotor or get involved in the WIPO initiative can contact Richard Owens (see below) to find out when WIPO is coming to your area. You could also alert other groups and NGOs in your region who may not be aware or it. For more information on the fact-finding missions schedule, contact Richard Owens, Head of Global Intellectual Property Issues, WIPO (Switzerland). Tel: (41-22) 338 93 19. Fax (41-22) 338 81 20. Email: [email protected] For more information on the South Africa fact-finding mission, contact Rachel Wynberg at Biowatch South Africa. Tel: (27-21) 788 76 77, Fax: (27-21) 788 91 69. Email: [email protected] To contact Gaia, Tel: (44-171) 435 50 00, Fax: (44-171) 431 05 51. Email: [email protected] Even with the best of intentions (for which there is not a great deal of evidence at the moment apart from some politically correct statements from DG Kamil Idris and some poetic rhetoric in programme documents), there is little political room for WIPO to do anything more than promote existing forms of IPRs. With the WTO breathing down its neck, political pressure in-house from UPOV and WIPOs own ambitions, it is hard to see how the new beneficiaries programme can really do anything else. It is quite possible that it could do a great deal more harm than good by helping to pave the way for TRIPS and stamping out more genuine initiatives (such as those at the CBD and FAO) attempting to address the critical question of rights to biological resources. GRAIN would like to thank Liz Hosken of the Gaia Foundation for her exensive input to this article. Main sources: * Various papers from the WIPO Roundtable on Intellectual Property and Indigenous Peoples, Geneva, July 23 and 24, 1998. Avail. from the WIPO website at http://www.wipo.org/eng/newindex/meetings.htm * WIPO document A/32/2 WO/BC/18/2, Global Intellectual Property Issues. * WTO (1998). Communication from the Secretariat of the CBD. July 22 1998 WT/CTE/W/92 * Personal communication from Liz Hosken and Helena Paul, Gaia Foundation; Rachel Wynberg, Biowatch; Richard Owens, WIPO; Tewolde Egziabher; Cyril Lombard, CRIAA; Prof. Ekpere, OAU.