Africans propose comprehensive changes in TRIPS
by Chakravarthi Raghavan
Geneva, 12 Aug -- The African group at the World Trade Organization has put forward a comprehensive set of proposals on TRIPS, which among other things calls for ban on patenting of plants, animals, micro-organisms and all other living organisms and their parts, as well as natural processes that produce plants, animals and other living organisms.
The proposal, in a communication by Kenya on behalf of the African Group, has been tabled in the WTO General Council in its preparations for the 1999 Ministerial Conference.
The Kenya document also calls for
* an indefinite moratorium on the application of the 'non- violation' remedy in disputes under TRIPS (art.64.3);
* full review of the implementation of provisions of Art. 66.2 in regard to the incentives provided by developed countries to their enterprises for transfer of technology to the Least Developed Countries;
* extension for developing countries of the implementation deadline for Art.27.3 (b) -- now set at 1 Jan 2000 -- to five years from the date of completion of review of Art.27.3.(b) -- that enables exclusion from patentability of plants and animals, other than micro-organisms, but subject to protection of plant varieties by patents or sui generis system or combination of both;
* eliminating the artificial distinctions between biological and micro-biological processes for patentability;
* clarifying that sui generis law for plant variety protection could be used for protecting innovations of indigenous and local farm communities, consistent with the Convention on Biological Diversity and the (FAO) International Undertaking on Plant Genetic Resources;
* continuation of traditional farmers' practices of right to save, exchange and save seeds and sell harvest;
* preventing anti-competitive practices that threaten food sovereignty of developing countries;
* harmonizing TRIPS provisions in Art 27.3 (b) with provisions of the CBD and International Undertaking; and,
* extending negotiations for a multilateral system of notification and registration of geographical indications to other products (in addition to wines and spirits) recognizable by their geographical origins - like handicrafts and agro-food products.
In the well-argued communication and comprehensive set of proposals, Kenya on behalf of the African Group has pointed out that the WTO work programme on IPR issues was made up of issues of implementation, built-in agenda, and preparations for future negotiations.
While these are simple to categorize in conceptual terms, at operational level they have complex tapestry of overlaps, without proper sequencing, posing serious difficulties to the African Group.
While developed countries underwent legislative reviews unencumbered by other work, developing countries will undergo this exercise concurrently with work on the built-in reviews of TRIPS provisions. The current built-in reviews of TRIPS provisions were likely to continue into year 2000 at which time the overall review of the TRIPS Agreement will be conducted pursuant to Article 71.1 of the Agreement. That overall review is scheduled to coincide with the next set of multilateral trade negotiations in which TRIPS issues are likely to form part of the agenda.
This concurrency of work poses three sets of difficulties for the African Group -- institutional capacity problems, lack of national experiences on the impact of implementation of the Agreement; and an undermining of the ability of developing countries to identify their interests.
It was hence appropriate that the work of the TRIPS Council should be staggered and sequenced in a manner that enables developing countries with meagre resources to participate effectively in its work. This can be achieved by delaying some of the reviews or speeding up those on which conclusion is nearing such as the one on non-violation complaints.
The moratorium on the non-violation remedy in TRIPS (Art.64.3) is due to expire on 1 January 2000, unless decided by Members after reviewing the scope and modalities of non-violation disputes in the context of TRIPS.
However, there is currently no sufficient experience with the application of the DSU provisions to the TRIPS. Further, developing countries have as yet not implemented their obligations under the TRIPS and as such have not had the benefit of direct experience on the scope and modalities of the non- violation remedy. More important, the non-violation provisions contained in the GATT 1994 were crafted for trade in goods, while TRIPS seeks to establish minimum standards of protection and not liberalization.
The African Group has proposed in this light that the moratorium on the application of the non-violation remedy be maintained indefinitely until Members agree by consensus that sufficient experience has been gained in the application of TRIPS, and the remedy would not increase the level of obligations of Members.
The Kenya communication notes that Art 66.2, calls on developed countries to provide incentives to their enterprises and institutions to encourage them to transfer technology to LDCS. But the provisions are couched in "best endeavour" terms, and thus fundamentally flawed in that they are neither enforceable nor do they constitute a real benefit for developing and least- developed countries. As a result, many developed countries have not yet demonstrated how they were fulfilling the provisions of this Article.
Kenya has proposed a regular full review of the implementation of the provisions of this article by developed countries.
On the issue of protection of plant varieties, the African Group points out that the review of Art.27.3 (b) was complex both in the way it was being dealt with and in its very substance.
There were issues of procedure and interpretation of the scope and mandate of the TRIPS Council on the review process. There were also issues relating to the review of the substantive provisions of the Article itself.
For the African Group, these issues need to be resolved speedily, in the light of the up-coming Seattle Ministerial Conference.
It was necessary to clarify that the mandate of the TRIPS council is to review the substantive provisions of this Article, and not its implementation (which implicitly would be part of the overall review of TRIPS in 2000 under Art. 71.1). Any information to be submitted under the current review of Art. 27.3 (b) should not be used for reviewing the implementation of the article.
On the timing of the implementation of Art. 27.3 (b), Kenya has pointed out that the review of the provisions of the article scheduled for 1999 has been going on since the beginning of the year. But the deadline for implementation of the obligations by developing countries of the TRIPS Agreement is January 2000.
In effect, the review is scheduled to precede the implementation of obligations of developing countries. But developing countries have not as yet had sufficient experience with the operation of the Agreement and hence no prior opportunity to conduct impact assessment studies of implications resulting therefrom.
Also, the review, if undertaken in 1999 will pre-empt the outcome of deliberations in other related fora such as CBD, UPOV, FAO, International Undertaking on Plant Genetic Resources, and the development of an OAU model law on Community Rights and Control of Access to Biological Resources. These are important fora dealing with Article 27.3(b) issues (from a developmental perspective) which the TRIPS Council cannot afford to ignore.
The process of review of the substantive provisions of Article 27.3(b) could well extend beyond 2000, and could result in changes to the provisions. It would thus be premature for developing countries to implement the sub-paragraph by January 2000.
Members of the African Group consider it appropriate that the implementation deadline should be extended till after the completion of the substantive review of Article 27.3(b). The period given for implementation of the provisions should be the same as that allowed in Article 65(1) and (2), namely, five years from the date of completion of the review, so as to allow developing countries to set up the necessary infrastructure entailed by the implementation.
On the substantive provisions of this Article, the Kenya document points out that there is lack of clarity on the criteria and rationale used to decide what can and cannot be excluded from patentability. The distinction made between plants and animals (which may be excluded) and micro-organisms (which may not be excluded) is artificial; and so is the distinction between "essentially, biological" processes for making plants and animals (which may be excluded) and microbiological processes.
"By stipulating compulsory patenting of micro-organisms (which are natural living things) and microbiological processes (which are natural processes), the provisions of Article 27.3 contravenes the basic tenets on which patent laws are based: that substances and processes that exist in nature are a discovery and not an invention and thus are not patentable," says the Kenya document.
Moreover, by giving Members the option whether or not to exclude the patentability of plants and animals, Article 27.3(b) allows for life forms to be patented.
The African group has proposed that the review of Art. 27.3(b) should clarify that the option of exclusion of patentability of plants and animals does not extend to micro-organisms as there is no scientific basis for the distinction. It should also be clarified that the option of exclusion of patentability of "essentially biological processes" does not extend to "microbiological processes" as the latter are also biological processes.
The review process should also clarify that plants and animals as well as micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable.
Referring to the option to countries to provide for a sui generis or patent system or a combination of both for protection of plant varieties, the African Group has said the implementation of this provision for plant varieties should be clarified:
* to allow developing countries to meet their international obligations -- for e.g. under the Convention on Biological Diversity, and the FAO International Undertaking for Plant Genetic Resources;
* to alow for continuation of traditional farming practices including right to save, exchange and save seeds and sell their harvest; and
* preventing anti-competitive rights or practices threatening the food sovereignty of people in the developing countries,as permitted under Art. 31 (which provides for compulsory licensing).
The review process should also seek to harmonize Article 27.3(b) with the provisions of the CBD and the International Undertaking, in which the conservation and sustainable use of biological diversity, the protection of the rights and knowledge of indigenous and local communities, and the promotion of farmers' rights, are fully taken into account.
As for the TRIPS provisions for protection of geographical indications of origin, and the negotiations in the TRIPS Council for a multilateral system of notification and registration, provided for in Art.23.4, the African proposal notes that the Singapore Ministerial Conference has called for extending the negotiations (apart from wines) to spirits.
The African group has proposed that the negotiations on a multilateral system of notification and registration should be extended to other categories (than wines and spirits), and the scope of the system of notification and registration expanded to other products recognizable by their geographical origins (handicrafts, agro-food products). (SUNS4498)
The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.
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