Knocking on the EU's door

Knocking on the EU's door

The terrain is getting rockier in the fight against patents on life at the intergovernmental level. Talk of a new protocol on access to genetic resources under the Convention on Biological Diversity look set to entrench intellectual property rights (IPR) as the prime benefit sharing mechanism; the push to establish IPR on traditional knowledge under new and special (sui generis) laws is gaining ground at the World Intellectual Property Organisation (WIPO); and challenges to the World Trade Organisation's (WTO) rules on IPR applied to life forms seem to fall on deaf ears. While multilateral fora serve as a prime tool to spread and entrench IPR regimes, bilateral deals between rich and poor countries can be a lot more effective.

Last September, the EU sent a concept paper to the WTO's TRIPS Council on its review of bio-patenting rules. [1] While we didn't see much new in it back then, recently it has been making the news. [2] In early February, the BBC published a front page news story saying the European Union would protect the rights of Third World farmers to save patented seed. UN agencies started publishing similar reports. The message was that the EU was moving to arrest the problem of biopiracy, curb the power of the biotechnology industry, and safeguard the interests of developing countries against those of their own seed companies. GRAIN wrote an open letter to Pascal Lamy, the European Trade Commissioner, to challenge this message. [3]

In the letter, GRAIN points out that the EU claims to be supporting developing countries proposal for the creation of a “disclosure” mechanism under TRIPS. The idea is to require disclosure of the source of genetic materials and traditional knowledge used in a invention, so that illegitimate patents will not be granted. At a closer look, however, the EU proposal clearly states that such ‘disclosure' should never be a condition for the grant of patents. This falls far short of what developing countries have been requesting.

The other part of the EU paper which has been misconstrued for the public is the question of whether or not farmers should be allowed to save, reuse and sell seeds if they are patented or subject to sui generis plant variety protection schemes. The message getting across is that the EU wants poor farmers spared of any restrictions on seed saving that come with the implementation of TRIPS. In fact, the EU paper does no more than suggest that the impact of seed patents on certain farmers in developing countries could be minimised through limited “exemptions”. In essence, the developing countries would have to enforce the patents in order to apply the exemptions.

While the EU may be doing a good public relations job for itself, behind the scenes, and on its own, the EU is aggressively forcing developing countries to adopt the strictest intellectual property rules possible on seeds. Through so-called free trade agreements, partnership agreements, bilateral investment treaties and other means, it is putting direct pressure on developing countries to adopt and enforce higher standards of intellectual property protection than the WTO prescribes. A preliminary survey that GRAIN coordinated in 2001 identified more than 20 such “TRIPS-plus” agreements affecting or potentially affecting biological diversity. [4] Almost half of these were initiated by the EU.

In early March, the EU quietly announced that a bilateral agreement between the EU and Lebanon, obliging Lebanon to join the Union for the Protection of New Plant Varieties, [5] had just come into effect. This is the worst kind of politics pushing IPRs on life: quid pro quos for bilateral trade concessions, investment commitments or development assistance. Because it goes on quietly, behind the public eye, and takes countries well beyond their obligations to multilateral agreements. At least the public is starting to take more notice now. The Greens in the European Parliament called an urgency measure on the European Commission to explain its TRIPS-plus politics. People wrote to their parliamentarians about the matter. GRAIN issued an update on TRIPS-plus deals. And the media start picking it up. But civil society has to work a lot harder to stop the TRIPs-plus bulldozer. Beyond WTO, WIPO, CBD and other fora, the push for patents on life is gaining ground very fast through direct bilateral and regional deals.

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