1.Trade-Related Intellectual Properties
2.Repeal TRIPS 27.3 (b)
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1.Trade-Related Intellectual Properties (TRIPs. 27. 3b)
Fr. Sean McDonagh, SSC (July 1 2009)

In this series of articles I have attempted to show how the U.S. position was adopted by the negotiators at the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). This was carried over into the new body - the World Trade Organisation (WTO) when it was established in 1994. As Joseph Stiglitz points out in his book Making Globalization Work, corporations "that care intensely about intellectual properties have succeeded in getting more and more of what they wanted." At that time, Stiglitz was a member of Council of Economic Advisers and the Office of Science and Technology Policy in the Clinton administration. He recalls that this group attempted to communicate to the U.S. negotiators their reservations about the policy that was been vigorously forced on other countries. As an economist he felt that it was not necessarily in the best interest of the United States and certainly it was not in the interest of three billion people living in the Majority world. All the poor got was a little extension in the timeframe before they would have to implement all the Intellectual Property provisions of TRIPs. The Clinton Administration was marching to the drum beat of corporate America.

Stiglitz is aware of the hypocrisy of the TRIPs. Trade agreements are supposed to free up movement of goods and services, not to restrict trade and create more monopolies. He states that "in order to shoehorn it (TRIPs) into the trade agreement, the negotiators added the two words, "trade related." Intellectual Properties have nothing to do with trade. TRIPs is designed to keep the Majority world in a permanent state of dependency on the Minority world, and especially on Minority world corporations. Through TRIPs these corporations want to get control of many crucial aspects of people’s lives, especially in the area of food, medicine and water.

TRIPs came under sustained attack at the WTO meeting in Seattle in November 1999. The U.S. trade representative Charlene Barshefsky, and the director-general Mike Moore from New Zealand, tried to get a statement from the meeting. Majority world delegates, who were beginning to understand the extraordinary implications, felt excluded from the negotiations. The Minority world leaders, responding to the corporate agenda wanted to have a review of TRIPs at Seattle. By review they did not mean taking another look at this mechanism which was designed to further impoverish the poor by demanding that they pay royalties on medicines and food crops to rich and powerful Majority world corporations. Review, in this context, meant judging how compliant individual countries were to the various provisions of TRIPs. The African countries were so exasperated at the way they were being treated that they issued a statement pointing out that the meeting lacked transparency and that they were being excluded from discussing issues which were vital for their future. No review of TRIPS took place at Seattle.

Organisations such as the WTO are not easily thwarted. By the spring of 2001, the WTO personnel were laying the groundwork for another round of trade negotiations. Many Majority world representatives and those from Civil Society Organisations (CSO) had hoped that the WTO meeting in Cancun, Mexico would review the article on TRIPs and rewrite it in a way that protects vulnerable subsistence farmers in the Majority world and the environment. The main aim of such a review would be to affirm that all living beings ought to be considered the common property of humanity and our earth.

It is true that in its present form TRIPs 27.3 (b) allows members to exclude from patentability, plants and animals other than micro-organisms, and biological processes essential for the production of plants and animals. The trouble is that states that are members of the WTO must enact legislation in the above areas which is tantamount to patenting. It states that member states shall provide for the protection of plant varieties either by patents or by an effective sui generis (literally of its own kind) or by any combination thereof.

During the late 1990s and early part of the present decade, the U.S. has been pressurising Majority world countries to adopt sui generis legislation along the lines of that laid down by the Geneva based Union for the Protection of New Varieties of Plants (UPOV) which is similar to patenting. The injustice of this approach is that it views the biodiversity of the Majority world as the "common heritage of mankind." However, once identified and altered through genetic engineering by transnational corporations it can be patented and sold as a product.
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2.Repeal TRIPS 27.3 (b)
Fr. Sean McDoangh, SSC (July 2 2009)

Last week I wrote about how the patenting of living organisms creates a culture of dependence between Minority world agribusiness corporations and poor Majority world farmers. While TRIPs 27.3(b) seems to permit countries not to patent plants and animals, in fact the available options are similar to patenting. One of those, which I discussed briefly was formulated by the Union for the Protection of New Varieties of Plants (UPOV). According to Julian Oram, who was at the time a researcher at the International Famine Centre at University College, Cork, the UPOV guidelines treat the Majority World’s biodiversity as the ‘heritage of mankind’ and therefore, freely available for scientific and commercial use. Once a Minority World corporation has acquired the biological material and ‘transformed’ it through genetic engineering techniques, they can claim property rights on the basis that they have made an 'invention'. In an unpublished paper, Oram wrote that “having done this the ‘free heritage of mankind’ plundered from the fields and forests of local communities could be sold back to them as a commodity."

Plant Variety Protection legislation (PVP), while not as strong as patenting legislation, protects the genetic makeup of a specific plant variety. PVP laws can in some restricted circumstances allow farmers to save seeds from their harvest to plant the following year. However, under pressure from Minority world agribusiness corporations, legislation in Majority World countries can be very restrictive. I witnessed this in Philippines in the 1980s. PVP legislation was introduced in the Philippine Senate which extended the rights of breeders to the farmer,s harvest and the direct product of that harvest. If, for example, a farmer sowed a field with a protected variety without paying a royalty to the company that produced the seeds that company had the right to claim ownership of the entire harvest.

In April 2002 CIDSE and Caritas Internationalis issued a joint document on Trade for Food Security. The document criticised the TRIPs provisions in the WTO. It stated that, "the WTO's Agreement on Trade-Related Intellectual Property Rights (TRIPs) is a key element in the discussion of food security owing to its implications for public access to genetic resources.The patenting of food crops under TRIPs affects control over and access to those genetic resources that secure the right to food. It undermines the farmer's right to save, breed and exchange seeds, a country’s right to protect indigenous knowledge, and citizen’s rights to participate in decision-making and to influence public policies over their country’s natural resource base. Many developing countries have resisted the TRIPs requirements, objecting on ethical grounds that no human being can ‘own’ life, but also from the fear that a few large transnational companies will use patent rights to appropriate genetic resources and indigenous knowledge, and in addition misuse their monopoly to increase prices and block competition."

The document goes on to recommend that we "Use the current substantive review of Article 27.3(b) of TRIPs, and the built-in review of the TRIPs Agreement as a whole, to exclude all life forms from patenting and remove the requirement for plant variety protection. Ensure consistency between the TRIPs and the provisions of the Convention on Biological Diversity (CBD) in particular towards achieving free and fair access to genetic resources, prior and informed consent and benefit (stop bio-piracy).” Incredibly this document did not appear in the preparatory booklet for the Pontifical Academy of the Sciences’ Study-Week in May 2009!

The CBD was negotiated at the Earth Summit in Rio de Janeiro in June 1991. It was signed by 150 countries. It sets out to protect biodiversity globally and to ensure that there is fair and equitable distribution of the financial benefits derived from these biological and genetic resources. For this reason it is more in sympathy with the rights of Majority World countries, traditional farmers and tribal people than TRIPs which only benefits corporations. Article 3 and 15 of the CBD recognises each country’s sovereignty over its genetic and biological resources. In order to guard against biopiracy, it requires that any person or corporation who wishes to gain access to these resources obtain the consent of the host country (Article 15.5). The convention is particularly mindful of the role played by tribal people and traditional farmers in enhancing and maintaining biodiversity down through the centuries. This is enshrined in Articles 8 (j) and 15. It also affirms that the 'conservation of biological diversity is the common concern of humankind.' TRIPS 27.3 (b) effectively negates all these provisions which is why it should be scrapped because it favours rich corporations and penalises poor people.