Saturday, March 29, 2008

The TRIPS Agreement at a turning point ?

Will it finally be making some adjustments to the regime of the TRIPS Agreement patenting of life as a result of the summit in Cancun, trade? After more than four years of deadlock between the developed and developing countries, there are signs of movement. One comes from discussions at the World Trade Organization as to whether patent applicants must disclose - make public - where they got the genetic material and led to inventions involving TK. The other comes from a parallel debate on whether and how the patent system recognizes traditional knowledge in its own right. The African group of the WTO has added a new dimension to the debate by filing a proposal to set TK under the TRIPS Agreement formally rules.

Submitted to intense pressure from the United States and Europe, developing countries agreed with great reluctance to include a section on intellectual property rights - TRIPS (Trade-Related Aspects of Intellectual Property Rights) -- part of the WTO agreement in Marrakech in 1994. Particularly controversial were the provisions on patents on life forms in Article 27.3 (b), which were agreed only on the condition that they would be reviewed prior to their entry into force in developing countries in 2000.

This review has been slow to start and has been languishing for years - with a clear North-South divide producing interesting discussions, but no progress. A bold came at the start of the review by the African Group, said that all patenting of life should be banned throughout the world under the TRIPS Agreement, and that any regime for plant varieties must protect the rights of farmers and communities local. Another bold move came from the United States, which proposed that sort of subject at all should be excluded from patentability, not even plants and animals. In this sense have reached an impasse soon.

In recent months, however, with the Cancun trade summit on the horizon, it seems that some last ditch efforts are being made to try to get something done. In the industrialized countries, the European Union and Switzerland have both indicated their willingness to negotiate some kind of mechanism for disclosure of origin of genetic material or traditional knowledge used in patented inventions. But neither are willing to make it a mandatory requirement, or bind to benefit sharing. Even their concept of origin is limited to a general indication of the "geographical area", in the case of the EU, or simply "source", in the case of Switzerland.

A number of developing countries, on the other hand, are reaffirming and reinforcing their request, a sound mechanism for disclosure of origin, which would require not only detailed information on who provided the materials used or of knowledge, but also proof positive benefit-sharing and prior informed consent.

At the same time, the least developed countries (LDCs) and the Africa Group are reiterating their call for a complete reversal of the TRIPS Agreement on language patenting of life, so patents on life forms would be banned rather than necessary.

But Africa has also tabled a new proposal which aims to integrate traditional knowledge (TK) has formally within the framework of the TRIPS Agreement. Africans want to add to the TRIPS Agreement an entire section on TK. It would be especially specify under what conditions TK can and can not be the subject of intellectual property rights, but would also address how TK should be respected and protected in a more general sense.

In this paper, GRAIN will comment on the proposals regarding the disclosure of origin and on the African proposal on TK. In both cases, developing countries are on the ground politically dangerous. There is a broad consensus on the need to limit the impact of biopiracy by introducing more checks and balances in the system of IPR. But there is also a very real risk that even limited reforms in this direction will serve to legitimize, expand and strengthen intellectual property rights on life. That would leave local communities who depend on biodiversity and traditional knowledge for their livelihood in a worse situation than they are at present.

Disclosure of origin

When companies or research institutes apply for patents relating to biological materials or traditional knowledge, should they be required to disclose where they got the equipment or knowledge?

The answer seems obvious. Unless the applicant provides this information, how a patent office may decide, even if an invention has taken place, and not simply an appropriation of knowledge that already exists, ie biopiracy? Yet, there is absolutely no agreement among governments on this simple principle, and even less about how such a requirement should work.

Developing countries have begun to push for a rule on the disclosure of origin in the TRIPS Agreement due to the increased incidence of patents granted in foreign countries on biopirated materials or knowledge. At present, the only possible remedy is to challenge the patent in court or before the patent office in the country in which it was granted. This is difficult and expensive, and while large countries such as India have sometimes managed to invalidate these patents, the path is not legal in most cases, a practical option. If forced TRIPS patent applicants to say where they got the genetic resources or leads on inventions, it is assumed that fewer biopiracy patents will be granted. That's because the disclosure of origin will demonstrate whether the applicant actually invented what is claimed, or whether the invention is devoid of novelty and inventiveness. Proposals to this measure have come from large number of developing countries from Africa, Asia and Latin America.

Governments of developing countries have a strong case because the Convention on Biological Diversity (CBD) clearly recognizes the right of the parties, ie States, controlling access to genetic resources and receive share of the benefits derived from their use or commercial development.

Submissions from developing countries have generally argued for a strong and effective mechanism for disclosure of origin, which must be:

• mandatory: all countries should pursue a condition for granting patents;

• related to patentability itself: no patent should be granted without disclosure, and any patent must be cancelled if it is shown that the information was false;

• linked to the Prior Informed Consent (PIC): it must be demonstrated that the equipment and knowledge have contributed to the development of the invention were acquired with the consent of at least the government agency responsible for granting access to these things;

• related to benefit-sharing: It must be proven that the person who accesses the hardware or knowledge complied with the supplier country of benefit-sharing regulations.

There is little doubt that such a rule would make a real difference in the reduction of biopiracy. This is indirectly confirmed by the counter-put forward by European countries, which have not all four major characteristics. The authors of biopiracy rightly fear multilateral regulation.

However, even if the proposals of developing countries have been accepted in full, they would not solve the problem of biopiracy.

A major flaw in the current proposals is that there is no guarantee a fair deal for local communities who are the real suppliers of resources and knowledge. No proof of their consent and benefit sharing with them would be needed, only that government agencies. (This is of course a failure shared with the CBD, which also left to national governments.)

Worse yet, an agreement on the disclosure of origin is likely to be seen as a capitulation on the issue of patents for life - the very heart of the controversy. Civil society organizations from many parts of the world have been quick to point out that the disclosure of origin as a condition of patentability plants and animals in contradiction with the basic principle of "no patents on life "[1].

Traditional knowledge in the TRIPS?

Over the past two years, a number of developing countries, especially Africans and Latin Americans, have called for the creation of a specific legal instrument for the protection of traditional knowledge. This discussion took place as to WIPO (World Intellectual Property Organization, a United Nations body) and the WTO. At the Doha Ministerial of the WTO in 2001, TK has been officially added to the agenda of the ongoing review on TRIPS in the TRIPS Council.

The Africa Group has now issued a concrete proposal on TK in the TRIPS Council [2]. It tries to do several things contradictory and partly at the same time (see box). On the one hand, he is trying to set limits on the IPR system as it affects traditional knowledge. It does this by proposing amendments to the TRIPS Agreement that:

• make the mere existence of TK reasons for defeat intellectual property rights, given that the novelty, inventiveness and originality will be compromised, and

• preventing intellectual property rights on inventions derived from TK, except PIC, benefit-sharing and access to several other requirements have been satisfied.

At the same time, the proposal defines TK as itself a form of intellectual property. This is in contrast to the widespread understanding between TK holders themselves, who usually regard to traditional knowledge as an integral part of a cultural and spiritual context, and not merely as property to be bought and sold. There is no doubt that elements of TK are sometimes traded, but when that happens many would say that it also loses its nature of this knowledge. In any case, the definition of traditional knowledge as intellectual property and denies undermining its intrinsic value, its complexity and its central role in many societies.

Perhaps as a result of the redefinition of traditional knowledge as intellectual property, the African Group also proposes to give the WTO responsibility for a number of measures to develop the protection of traditional knowledge and respect for rights TK. Most of the measures listed are not related to the protection of intellectual property, but the backup reasonable terms to TK holders to continue to use and develop their cultural heritage and traditional economic activities without interference unwanted commercial.

Framing people's rights to traditional knowledge as intellectual property rights is simply wrong, and entrusting their development to an organization with a focus on trade and intellectual property rights would be a very dangerous step to take. Privatization and commercial appropriation of traditional knowledge through intellectual property rights is one of the main threats to traditional knowledge systems, and not a road to ensure their protection.

Part of the confusion that is inherent in the word "protection", which means something very different in intellectual property law and the regular use. "Protection" of enforcing intellectual property by private vehicles, exclusive economic rights to a specific creation in order to prevent others from using or reproducing it. "Protection" TK, on the other hand, requires all social welfare, economic, cultural and spiritual development of this knowledge so that it continues to be produced and reproduced. The African proposal, unfortunately, uses the word interchangeably in both directions.

There is no doubt necessary to introduce limits and conditions on the use of intellectual property rights on inventions derived from TK. It is something that belongs to the WTO, because the TRIPS Agreement is a major cause of the problems created by the patenting of traditional knowledge holders. And it can be done by an amendment to the TRIPS Agreement.

But it is even more urgent to strengthen the protection of traditional knowledge in the broader perspective, the nonsense, intellectual property rights. Without better safeguards, many traditional knowledge systems are threatened with extinction. But this is not an issue for an organization like the WTO, or a body such as intellectual property in WIPO. Both are really part of the problem, not the solution. This is rather a question for other intergovernmental bodies with different mandates and expertise, such as the Commission on Human Rights UN, UNDP (the United Nations Program for Development); CBD or UNESCO (United Nations Educational, Scientific and Cultural Organization). All these elements have already carried out work on the ground and at least in principle, are in a better position to address the issue in a more holistic way.

More power to TRIPS? Or less?

Governments in developing countries have the right to require adjustments of the TRIPS Agreement to reduce the negative impact on the management of genetic resources and traditional knowledge systems. But they are mistaken if they believe that the WTO is the place to look for "protection" of genetic resources and traditional knowledge in anything other than a sense of private intellectual property. The mandate of the WTO is very closely involved in the promotion of increased international trade. If TK protection means "modernization" of traditional systems by tearing them apart and the transformation of their tradable items in intellectual property, then the WTO is the right place to do it. If not, then TK should be kept outside the WTO.

Developing countries have resisted the TRIPS Agreement from the beginning because they saw it as a threat to sustainable development on their own terms. They were correct, and are now increasingly supported by a critical evaluation of the United Nations and other independent analyses, as well as by growing public opinion in both North and South. In the past few months, several major studies and analyses were conducted by bodies such as the United Kingdom IPR [3], the Royal Society of the United Kingdom [4], [5] UNDP and the Human Genome Organization [6], which uses changes in intellectual property or limitations on its use to end its ill effects on research, innovation and development. It would be a supreme irony if at this very moment, developing countries are turning to more power and performance of the TRIPS Agreement.

The solution remains to be found in the opposite direction. TRIPS Agreement should be amended to reduce the obligations of developing countries to adopt intellectual property regimes full part in all fields of technology and wider to allow for exceptions. At a minimum, biodiversity and traditional knowledge should be excluded from the TRIPS Agreement. Nothing new has come to the conclusion that the change of life patent bring benefits to developing countries, whether in fact to anyone. The Group Africa and LDCs are correct reiterating their resistance to the principle of patenting life.

The positive agenda - to develop better safeguards for traditional knowledge systems and tools by which communities can control the development and use of genetic resources - must be pursued elsewhere. Less power of the TRIPS Agreement in addition to other players who for sustainable development, community rights and cultural diversity are really on the agenda - this is the recipe, and not vice versa .

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