'Go-slow' on TRIPS 27.3 review, advises new study

by Someshwar Singh

Geneva, 4 Oct 99 -- The WTO-mandated review of Article 27.3b of the TRIPS Agreement relating to the development of a system of legal protection for plant varieties, to be held in late 1999, should be postponed, says a research study published in the Journal of World Intellectual Property.

The review is on the WTO agenda, and can come up at its TRIPS Council meeting, scheduled for 20-22 October, 1999.

The study, "Revision of the TRIPS Agreement concerning the Protection of Plant Varieties - Lessons from India concerning the Development of a Sui Generis System," is by Philippe Cullet, and argues that hardly any developing country has had the chance to put legislation in place up until now.

Cullet, who works for the Geneva-based International Environmental Law Research Centre (IELC), received support for this research project from two Swiss-based NGOs, the Berne Declaration and the Swiss Coalition of Development Organizations.

He contends that the findings of his study are relevant to a large number of developing countries, in particular where a majority of the population works in the agricultural sector.

While the developed country laws were already mostly in conformity with the TRIPS Agreement before 1995, for most developing countries ratification of the WTO and TRIPS implies important changes to be made in their IPR laws.

With TRIPS entering into force on 1 January 1995, the introduction of property rights on plant varieties is now a legal requirement.

Under the transition period of the TRIPS, developing countries can delay the implementation of the agreement until 1 January, 2000, and the Least Developed Countries (LDCs) get time till 2005.

Cullet argues in the article that the adoption of a sui generis (unique) system "probably constitutes one of the only avenues" open to WTO Member States to foster the twin recognition of breeders' and farmers' rights while taking measures against bio-piracy.

"Significant original work will have to be carried out before sui generis legislations responsive to the local concerns and needs of each country can be drafted and implemented," says the author.

The obligation to impose property rights on plant varieties may seem insignificant but must be understood in a longer-term context, he says. Traditionally, plant varieties and germplasm have been held to be part of the common heritage of humankind and thus freely available to all.

For instance, this concept was reflected in the fact that the seed banks of the International Agricultural Research Centres were open to anyone, and it is out of these resources that the rice varieties of the Green Revolution were engineered.

The TRIPS agreement is now forcing countries to introduce property rights in this field, says Cullet.

Similarly, at the international level, negotiations for the revision of the International Undertaking on Plant Genetic Resources (under the auspices of the FAO) are likely to lead to the formulation of property rights and the complete abandonment of the principle of common heritage which constituted the backbone of the original (FAO) resolution.

The necessity to introduce property rights thus constitutes a significant step in the development of policies restricting the flow of information.

Such diminution of free flow of knowledge 'may justifiably seen as negative,' says the article, 'but in a world where substantial bio-piracy has and is taking place, it is quite possible that defining property rights may constitute the best route forward for eliminating such practices, provided that appropriate legal strategies are used."

It adds that the breakdown in recent decades of existing social and legal institutions, such as common property systems, 'has often left a vacuum which can easily be exploited by outsiders, while in other cases existing systems may not be designed to confront outsiders or their legal systems.'

One of the reasons for India's prominence in the debate over patents in general, says the author, is linked to the controversies created by specific patent applications such as those on turmeric, neem and basmati - essentially to do with knowledge widely shared in India.

[Patents by RiceTec in marketing rice claimed to be 'basmati', are owned by the Prince of Leichenstein, who met a delegation of Swiss and international NGOs on 24 September, and refused to give up these patent rights. And, according to a report in the Financial Times, DNA analysis of this patented rice variety in UK has shown that it has none of the gene characteristics associated with natural fragrance of the Basmati rice]

In the case of the patent on turmeric, Suman K. Das and Hari Har P. Cohly applied for a patent on the use of turmeric in wound healing in the US. The US Patent No. 5,401,504 was issued on 28 March 1995 - for the 'invention' relating to the use of turmeric to augment the healing process of chronic and acute wounds.

This patent was challenged by India's Council of Scientific and Industrial Research on the ground that the alleged invention was actually part of public domain knowledge in India.

The patent was re-examined and all the claims cancelled.

"This case shows that unwarranted patents can be challenged, but this does not constitute an appropriate avenue to deal with potential bio-piracy because of the difficulties and costs involved in challenging patents in a foreign country," says the research study.

In the case of the neem tree, a number of patents related to some of the active substances of the tree have been applied for outside India. These include patents in varied fields -- from methods to extract one of the active properties of the neem to preparations of neem-based insect-repellent products.

It is widely acknowledged, says the study, that Indian people and farmers have known and used the neem tree for generations. Its varied properties have been used, for instance, by millions of farmers to make a pesticide.

In recent decades, the properties of the neem tree have been the object of substantial attention and large-scale research has been carried out to turn some of the neem's properties into commercially viable products.

"Since the end products of this research are often used in ways that are similar to traditional uses, this has created tensions and resentment on the part of the local population," the study notes.

"It is noteworthy that neem is an extremely common tree in India but has up until recently been known mainly in South Asia and a handful of other countries."

Agriculture was traditionally excluded from the international patents regime. It was widely believed that agriculture should not be governed by the patents regime, which was viewed as inappropriate in this context.

This was linked to traditional agricultural practices of seed saving and exchange and to the perception that the fulfilment of food needs should not be primarily a profit-making enterprise.

This hampered the development of a seed industry and more general agricultural businesses. However, business interests progressively obtained the development of a form of legal protection. At the international level, this was first achieved within the context of the Union for the Protection of New Varieties of Plants (UPOV), signed in 1961 among a few Western European nations.

Though the UPOV Convention did not introduce patents, it sought from the outset to provide incentives to the private sector to engage in commercial plant breeding by granting them so-called Plant Breeders' Rights (PBRs).

More specifically, the Convention recognises the rights of individual plant-breeders who have developed or discovered plant varieties which are new, distinct, uniform and stable.

It seeks to protect new varieties of plants both in the interests of agricultural development and of plant breeders. On the other hand, the Convention recognises what is known as farmer's privilege.

Thus, under the 1978 version of the Convention, farmers are permitted to re-use propagating material from the previous year's harvest and can freely exchange seeds of protected varieties with other farmers. Plant breeders are also allowed to use the protected variety in order to breed and commercialise other new varieties.

However, the latest version of the UPOV Convention, adopted in 1991, has further strengthened PBRs and conversely restricted the farmer's privilege. It extends, for instance, breeders' rights to all production and reproduction of their varieties, and to species as well as general and specific plant varieties.

Breeders are now granted exclusive rights to harvested materials and the distinction between discovery and development of varieties has been eliminated.

Further, the right to save seeds is no longer guaranteed.

PBRs have in effect become akin to weakened patents and the conceptual distinction between the two is now blurred, says the research article.

Following the entry into force of the 1991 UPOV Convention, accession to the 1978 version is not allowed any longer.

While the UPOV Convention has been ratified by some developing countries, in particular Latin American countries, its membership is still mainly drawn from European countries. India has not ratified this Convention.

The TRIPS agreement now extends the requirement to protect plant varieties, 'either by patents or by an effective sui generis system or by any combination thereof' to all 134 WTO Member States.

In general, it has the effect of extending the application of intellectual property standards already in use in most OECD countries to all GATT signatories.

The alternative opened to Member States in the form of an "effective sui generis system" constitutes an exception to the general rule, which is that all inventions are to be protected by patents. In all likelihood, the alternative system will also be an intellectual property right because it is knowledge which is to be protected.

In practice, plant varieties are identified through their seeds, which constitute a main focus of interest for all actors involved in their management.

Plant varieties have traditionally been developed and nurtured by a variety of actors. Smallholder farmers, herders and artisanal fisherfolk have often played the most crucial role in conserving and enhancing agro-biodiversity.

They have, for instance, developed crop varieties specifically suited to their diverse local environments.

While seeds have traditionally been freely exchanged among all types of breeders, there have been moves towards restricting the flows of knowledge.

In the case of India, where agriculture is a commercial activity only in some small pockets but a livelihood for a large section of the farming community, farmers still provide the overwhelming majority of seeds for some of the staple crops.

The development of PBRs has been matched by calls for the recognition at the international level of farmers' rights. At present, farmers' rights have only been acknowledged in a non-binding resolution of the FAO's International Undertaking on Plant Genetic Resources.

No binding treaty has yet recognised these rights.

While some contend that they are fundamental rights of farmers, others claim that they are not intellectual property rights since they cannot be ascribed to any specific individual or that such claims can only be realised through the establishment of a fund, a form of benefit-sharing.

As of today, says the study, the status of farmers' rights is much hazier than the well defined PBRs. However, the Undertaking is currently being revised. "While negotiators have acknowledged the need to define farmers' rights in the proposed new instrument, the negotiations towards a definition have been extremely controversial."

The IELC study also briefly sketches the outlines of a sui generis system and contends that an effective system is one which defines property rights which take into account the needs of all actors involved in the management of plant varieties and one which seeks to harmonise the various relevant international instruments.

In the case of India, the study also notes that for a long time, India was among the countries against the inclusion of intellectual property in the GATT, on the ground that protection of IPRs had no significant relationship with international trade.

Thus, on several occasions between 1987 and 1989, government statements indicate that India believed that IPRs had no direct relationship to trade and that it had no intention of amending its Patents Act.

Quoting a paper presented by a senior official of the Ministry of Commerce in 1989, the study notes, 'there should be no attempt to extend developed countries' patent laws to developing countries and that standards which could be relevant to the former may be inappropriate to the latter and should not be imposed on them.'

After the 1991 elections and the return to power of the Congress Party, the new government headed by prime Minister Narasimha Rao became much less openly averse to GATT and less defensive of the Patents Act, the study says.

It explains the progressive softening of the Indian governmental line as in part due to 'strong pressure by foreign governments,' in particular by the United States.

While strong international pressure was being put on India to accept the TRIPS agreement and to modify its patent law, strong domestic pressure was also put on the government 'to reject the Uruguay Round and the TRIPS agreement in particular.'

Citizens' mobilization culminated, for instance, in a major demonstration in 1993 attended by thousands of farmers who rallied against the GATT and demanded the rejection of the Dunkel Draft.

More recently, the article notes, a bija satyagraha (struggle for the right to seed), echoing the struggle launched by Mahatma Gandhi during the anti-colonial struggle, has been initiated by some activists.

"Indeed, in India, no government has yet attempted to introduce the Plant Variety Protection Bill in Parliament even though implementation is due by 1 January 2000,' the article notes. (SUNS4523)

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