Appendix D-1 - Guiding Principles for the CGIAR Centers on Intellectual Property and Genetic Resources 1
Appendix D-2 - Calestous Juma. Comments on the Convention on Biological Diversity and IPR
Appendix D-3 - Bernard le Buanec. Plant breeders' rights and farmers' rights - A complex debate
Appendix D-4 - Timothy Roberts. Market Segmentation
Appendix D-5 - Miguel Altieri. Third World Farmers and IPR
Appendix D-6 - Thammasat Resolution
Appendix D-7 - Agri-Food Statement
1 This paper was adopted as an interim working paper by the CGIAR at its ICW'96 meeting, Washington, D.C. 1996.
BACKGROUND
The CGIAR is committed to the conservation and use of genetic resources in an expeditious, cost-effective and equitable manner. In recent years the CGIAR's activities have been increasingly conditioned by a rapidly changing intellectual property rights environment, the issue of Farmers' Rights and the growing importance of the private sector. In this context the CGIAR, at its Mid-Term Meeting, Istanbul in May 1992, agreed on a set of working principles on genetic resources and intellectual property. These were published in the proceedings of the meeting and were largely based on a set of guiding principles on plant genetic resources and related intellectual property rights issues adopted by the International Agricultural Research Centers in 1991.
Significant changes have occurred since the CGIAR decisions in 1992 that affect the exchange and use of genetic resources:
· The Convention on Biological Diversity came into force 29 December 1993;· Centers signed agreements with FAO on 26 October 1994/bringing their germplasm collections under the auspices of FAO, as part of the International Network of Ex Situ Collections. Materials covered in these agreements referred to as "designated germplasm" 2, are listed in the appendices to the agreements.
2 The majority of materials currently held in Center genebanks has already been designated as coming under the agreement with FAO. Further material is being designated (as stocks are cleaned and multiplied) with the result that only those materials carrying special conditions imposed by the supplier would remain undesignated. (In 1996, such material accounts for less than 5 percent of the total holdings.)· The Multilateral Trade Agreement which came into force 1 January 1995 embodies provisions on Trade Related Intellectual Property (TRIPS). As a result, many countries are now developing and enacting intellectual property rights legislation, including plant variety protection.
Against this background, the CGIAR convened a panel on intellectual property rights in September 1994 under the Chairmanship of Dr. M.S. Swaminathan. The report of the panel was endorsed at International Centers Week in October 1994. Based on the agreed recommendations made in this report and, pending the emergence of international consensus on a range of issues arising, the CGIAR Centers have revised their guiding principles on intellectual property. While it is envisaged that there may well be further revisions as changing circumstances warrant, the Centers consider it essential to clearly state these guiding principles for the benefit of the NARSs, donors, NGOs, the private sector and our other partners in research and development.
GUIDING PRINCIPLES
1. The germplasm designated by the Centers is held in trust for the world community in accordance with the agreements signed with FAO. Through the agreements, official inter-governmental recognition is given to this role of the Centers, and FAO is to provide policy advice to the Centers in the execution of their responsibilities. The Centers agree to conserve, maintain, study, improve, and distribute germplasm world-wide for use in agricultural research and development. As trustees of the designated germplasm, the Centers also affirm their responsibility for safe and secure conservation of these genetic materials for present and future generations, including their duplication in at least one other location for safety.
2. Through their guiding principles on intellectual property protection, the Centers aim to promote ready access to both the designated germplasm and the Centers' research products, including biotechnological processes arising from their research.
NATIONAL SOVEREIGNTY
3. The Centers recognize that the acquisition of germplasm after the coming into force of the Convention on the Biological Diversity is subject to the provisions of the said Convention, and in particular to the sovereign rights of states over their genetic resources. The Centers will strive to reach an understanding on mutually agreed terms with national governments, either individually or collectively, facilitating the fair and equitable sharing of benefits arising from the collection, conservation and utilization of such germplasm, besides providing ready access to these genetic resources.
FARMERS' RIGHTS
4. The Centers recognize the contributions of farming and indigenous communities to genetic resources conservation and enhancement. In order to convert this concept into reality the Centers are prepared to contribute to national and international efforts to develop appropriate policies and procedures for the recognition of Farmers' Rights. The Centers also recognize the expertise of many national and international NGOs on equity, gender, conservation and sustainability issues and where appropriate partnerships with them and others in order to integrate these concerns in research on genetic resources conservation and use.
INTELLECTUAL PROPERTY PROTECTION - DESIGNATED GERMPLASM AND CENTER RESEARCH PRODUCTS
5. The Centers will not claim legal ownership nor apply intellectual property protection to the germplasm they hold in trust, and will require recipients of the germplasm to observe the same conditions, in accordance with the agreements signed with FAO.
6. Plant Breeders' Rights. Materials supplied by the Centers, whether designated germplasm or the products of the Centers' breeding activities, may be used by recipients for breeding purposes without restriction. Recipients, including the private sector, may protect the products of such breeding through plant variety protection that is consistent with the provisions of UPOV or any other sui generis system, and that does not preclude others from using the original materials in their own breeding programs.
7. Defensive Protection by Centers. Based on the conviction that their research will continue to be supported by public funds, the Centers regard the results of their work as international public goods. Hence full disclosure of research results and products in the public domain is the preferred strategy for preventing misappropriation by others. Consequently, the Centers will not assert intellectual property control over derivatives except in those rare cases when this is needed to facilitate technology transfer or otherwise protect the interests of developing nations. In all such cases, the Centers will disclose the reasons for seeking protection.
8. The Centers do not see the protection of intellectual property as a mechanism for securing financial returns for their germplasm research activities, and will not view potential returns as a source of operating funds, hi the event that a Center secures financial returns as a result of the commercialization by others of its protected property, appropriate means will be used to ensure that such funds are used for furthering the mandate of the Center and the objectives of the CGIAR.
9. Any intellectual property protection of Centers' output will be done on behalf of the Centers and not individual scientists. All staff in the Centers will be required to disclose innovations and assign all rights on these to the Centers.
10. Patenting. We recognize that there is an increasing use of patenting in both the private and public sectors. Cells, organelles, genes or molecular constructs isolated from materials distributed by Centers may be protected by recipients only with the agreement of the supplying Center. Centers will only give such approval after consultation with the country, or countries, of origin of the germplasm where this is known or can be readily identified. This consultation would include consideration of an appropriate sharing of any benefits, whether bilateral or multilateral, flowing from subsequent commercial development of the protected material. 3, and would require that the original material remains available for the public good.
3 It is recognized that this requirement for the granting of permission by a Center before a recipient can take out patent protection represents a significant departure from the current position in which the Centers do not require any such permission. While this is not specifically required under the terms of the agreements signed with FAO, nevertheless the CGIAR feels that such a requirement is needed both to protect the interests of countries of origin and to bring CGIAR policy in line with the spirit of the Convention on Biological Diversity (CBD). While the CGIAR Centers can not themselves be party to the Convention, it is nevertheless recognized that the majority of CGIAR members and partner countries have signed and ratified the CBD.
11. Center Access to Material Protected by Others. To promote the availability to developing nations of germplasm and scientific innovations that have been protected by others, the Centers may enter into agreements with the holders of such rights. Acceptance of any limitations on the distribution and use of derived and associated materials would have to be consistent with the goals and objectives of the CGIAR, and the benefits of such agreements should outweigh the potential disadvantages.
BIOSAFETY
12. The Centers will continue to give overriding importance to biosafety concerns and will follow collaborating country guidelines concerning biosafety.
GENERAL PROCEDURES
13. These Guiding Principles will be reviewed at regular intervals and revised as need be in the light of international developments. This revision will be carried out by the Center Directors Committee.
14. The Centers will adopt specific policies for the distribution and use of improved germplasm and biotechnological products following the above Guiding Principles.
Below are preliminary comments arising from the discussions and deliberations in the Convention on Biological Diversity regarding the Panel's Subgroup I (Protecting CGIAR's IP) and Subgroup VI (Other Questions), which will be preceded by a general comment.
General comments;
1. Intellectual property rights (IPRs) are mentioned in the Convention on Biological Diversity (CBD) in Article 16. While Article 16 provides for a balance between the protection/recognition of existing IPR and the transfer of technology relevant for the conservation and sustainable use of biological diversity as well as for technology related to genetic resources provided by countries of origin, the key provision related to impacts of IPRs on the Convention is Article 16 para. 5. It stipulates that IPRs should promote and not run counter to the objectives of the Convention. The objectives are conservation of biological diversity, sustainable use of its components and the fair and equitable sharing of benefits arising out of the use of genetic resources.
2. IPRs have been discussed at various meetings of the Conference of the Parties (COP) and its subsidiary body. So far, no formal discussion has taken place and no decision reached yet about the impacts of IPRs on the objectives of the Convention. With respect to access to genetic resources and benefit sharing, there is a feeling that existing IPRs and its instruments, licensing and royalties, might be used to share benefits. As there is a wide range of views within the COP concerning the impact of IPRs, Decision III/17 of the third meeting of the COP called for case studies on the impact of IPRs on the objectives of the Convention. However, and as usual in the mid-term of the intersessional period, only a few case studies have been communicated to the Secretariat yet
3. The COP pays special attention to discussions in other fora concerning IPRs. The Secretariat has therefore asked for and been granted observer status to the Committee on Trade and Environment of WTO and is seeking observer status to the TRIPs Council of WTO. The COP wants to be kept informed about the recent developments in the protection of databases which have been initiated within WIPO.
4. Regarding the CGIAR system one could say that there is a similar concern within the forum of the CBD regarding IPRs as there is uncertainty on how IPRs will impact on the objectives of the Convention.
5. Another aspect within the CBD regarding IPRs - apart from the existing intellectual property rights and especially patents and plant breeders rights - are the discussions related to the protection of knowledge, innovations and practices related to indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity (Article 8 (j) of the Convention). There is a strong feeling from one part of the stakeholders within the CBD that there is a need to develop a sui generis system of protection as the current IPRs are covering sufficiently neither the approval of the holders of that knowledge nor the sharing of benefits with them.
6. The report of a recent Workshop on Traditional Knowledge and Biological Diversity, held in Madrid from 23 to 28 November 1997, as an intersessional activity by the COP, lists a whole range of options related to IPRs and a sui generis system to be considered by the COP to implementing Article 8 (j) (similar discussions are currently carried out within IPGRI regarding a sui generis system for landraces as an alternative to plant breeders rights). It also provides a list of options regarding participation of indigenous and local communities which is felt to be necessary when dealing with issues related to those major groups. Traditional knowledge and the implementation of Article 8 (j) will be further considered at the next COP in Bratislava, Slovakia, in May 1998.
7. Regarding material collected by the Centers and the sharing of benefit with the holders of the knowledge, it is not clear in which way the Centers are respecting the provisions of the Convention. Although IPGRI is currently doing research in the field of sui generis systems of protection, the CGIAR Centers might wish to adopt some interim policy regarding that issue. This is also true for material collected on the land/territory of indigenous and local communities. This is related to the CGIAR proprietary science, as a slice of that science might be due to the input of local and indigenous communities and the relationship of the CGIAR proprietary science to those groups and holders of knowledge has not been clarified.
8. It is not clear yet how benefit sharing by the Centers works with those communities. It is true that the Centers share benefits as they distribute germplasm widely to the NARs and to those approaching the Centers, but it is unclear how it reaches those in concreto who have been provided the genetic resources.
9. Protection of proprietary science might be a way to generate benefits which could be distributed to those having provided genetic resources and knowledge in the first place. As those will be most likely small scale farmers or indigenous peoples (who might be partly identical with farmers), legal protection might provide for incentives to continue to use traditional varieties or provide for some poverty alleviation.
10. The responsibilities of the Centres under the implementation of the Biodiversity Convention depend on the specifications by the COP and its subsidiary organs to the access and benefit sharing regime the Convention is setting up. So far, prior informed consent (approval of the holder of the knowledge) and mutually agreed terms which have to include some form of benefit sharing are qualifiers to access to genetic resources which has been legally unregulated on the international level before the entry into force of the Convention. The CG Centers could play a leading role in providing best practice how to handle those qualifiers without (yet) existing internationally binding laws or guidelines. Responsibilities might be set up by the COP over time; the deliberations within the CGRFA on the International Undertaking are closely interlinked with the negotiations under the Convention.
11. The CGIAR could play a leading role in providing best practice on access and benefit sharing as ex-situ collections. It can provide expertise how to best handle negotiations on access and benefit sharing arrangements and transfer agreements. This could provide useful information for other areas of genetic resources use which are not related to food and agriculture.
12. Policies that should be put forward are those which are promoting conservation and sustainable use of biological diversity, protecting indigenous and local knowledge and promoting traditional lifestyles. Serious thought should be given to a legal protection of the knowledge which is both effective and practicable.
The debate on plant breeders' rights and on farmers' rights has been going on now for 20 years. It started at FAO in 1979 and resulted, in 1989, in the international recognition of farmers' rights by Resolution (5/89), defining them as "rights arising from the past, present and future contributions in conserving, improving and making available Plant Genetic Resources (PGR's), particularly those in the Centres of origin/diversity...". The Convention on Biological Diversity confirms this definition and since 1993, many lively debates have taken place at the international level on the definition of farmers' rights and on the necessary balance between these rights and those of plant breeders. Many authors consider these two rights incompatible, presenting arguments showing a substantial lack of knowledge of the plant breeders' rights system based on the UPOV Convention.
To allow an efficient debate, it is thus important to start with good premises and to make clear what are plant breeders' rights, which are intellectual property rights officialized through the 1961 UPOV Convention. This Convention was revised in 1972,1978 and 1991.
The UPOV Convention grants the breeder of a new, distinct, homogeneous and stable variety an exclusive right, limited in time (15 to 20 years), to exploit that variety for seed multiplication purposes. This right applies only to a new variety, hence to an improvement in comparison with other existing varieties, and not to the genome of the species as a whole. In no case does the plant breeders' right block access to a species for production or breeding purposes.
Why should the protected variety be distinct, homogeneous and stable? This is not at all for agronomic reasons but simply for the purpose of practical implementation of the right. Indeed, to implement the right, the protected object should be recognizable (distinction and homogeneity) and stable over time. In particular, homogeneity is not a characteristic sought for itself, even though the tendencies of some official bodies are moving in that direction. Furthermore, the homogeneity required by UPOV is relative, as confirmed by Article 8 of the Convention: "The variety shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics."
The UPOV Convention also provides for exceptions to plant breeders' rights (Article 15):
· compulsory exceptions to be implemented by all UPOV member countries for:
- acts done privately and for non-commercial purposes;- acts done for experimental purposes;
- acts done for the purpose of breeding other varieties and for the production and commercialization of such other varieties
- an optional exception, formerly known as farmers' privilege (not to be confused with the concept of farmers' rights mentioned above) and now called farm-saved seed: "Each contracting party may, within reasonable limits and subject to safeguarding of the legitimate interest of the breeder, restrict the breeders' right in relation to any other variety in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety...".
Hence, plant breeders' rights defined through the UPOV Convention are very flexible, as they do not apply to subsistence farmers who would be interested in using modern varieties, they allow for derogations on a national or regional basis (European Union, Andean Pact) for the use of farm-saved seed and, finally, they permit free access to all protected varieties for breeding purposes.
Are breeders' rights and farmers' rights incompatible?
This question is difficult to answer in a general way because, although the definition of farmers' rights was adopted eight years ago, it was drafted in such a vague manner that, in spite of days and days of debates within international instances over the years, no agreement has yet been reached as to its content.
Some consider farmers' rights as the right to continue to dispose of sufficient genetic variability, to do their own breeding work and to use freely seeds harvested on their own holdings.
If one admits this interpretation, then, are these rights incompatible with plant breeders' rights?
· Availability of sufficient genetic variability: Even though there are improved varieties on the market, farmers may still continue using land races they have used for generations, if they so wish. The availability of improved varieties simply widens the variability at their disposal. However, the tendency to use improved varieties, if they show advantages, is to be noted. Nevertheless, there is no link between the possible decrease of variability and plant breeders' rights. The fact that a variety is private or public has no influence on biological diversity whatsoever. It can even be confirmed, without a major risk of error, that plant breeders' rights favour diversity by:
- better controlling dissemination of improved varieties;- allowing competition between breeders and thus the availability of more varieties;
- preventing commercialization of "almost identical" varieties, by implementing the concept of essentially derived varieties.
This view is also held by the majority of or even all OECD countries at international meetings.
· Right to continue to do their own breeding work: Assuming that a large number of farmers are crossing varieties for breeding purposes, which is most unlikely, there is no provision in the UPOV Convention to prevent them from doing so, even using protected varieties. Nor are they prevented from freely using the new varieties obtained. In addition, if these new varieties are distinct, sufficiently homogeneous and stable (this is a question of common sense, otherwise how can they be recognized?), an application could be made for their protection.
· Free use of seeds harvested on their own holdings: As far as the poorest farmers in the least developed countries, i.e. subsistence farmers, are concerned, we have already seen that they are exempt from breeders' rights defined by the UPOV Convention. As to farmers integrated in a commercial chain, each country may, according to its economic and social situation, take special dispositions authorizing the use of farm-saved seed on a case-by-case basis, if appropriate. The only absolute restriction is the prohibition of selling farm-saved seed, which is not within the normal activities of a farmer, especially of a subsistence farmer.
If one admits the interpretation of farmers' rights as presented above, there is no incompatibility with plant breeders' rights and thus no need to modify plant breeders' rights in order to implement farmers' rights at the national level. Contrary interpretations are probably based on an erroneous analysis of the UPOV Convention, even in its 1991 version.
Farmers' rights are considered as a new intellectual property right yet to be defined. Nobody is currently in a position to state whether or not they are compatible with plant breeders' rights. Such rights, if their object were genetic resources, would certainly be complex because the owner would not be known precisely, the objects would be difficult to identify and, to be meaningful, those rights should be of very long or even undetermined duration, which is contrary to the current principles of intellectual property rights. They should not result in freezing the exchange of genetic resources for food and agriculture because their effect would be opposite to their initial aim.
Finally, some consider that farmers' rights should lead to the establishment of a fund (national level? global level?) aimed at improving conservation and use of biological diversity or even at financing development programmes. Nor is this incompatible with breeders' rights. However, one should be careful about perverse solutions that seem simple. In particular, proposals have sometimes been made to finance such a fund through taxes on commercial seeds. In this, there is nothing incompatible with plant breeders' rights. Nevertheless, this is paradoxical because if there were taxes on seeds, it would be the farmers themselves who would finally finance the fund deriving from their rights. Furthermore, such an approach would have a perverse effect it would favour the use of farm-saved seed, often of bad quality, to the detriment of professional seed, which is contrary to the wishes of many governments of developing countries.
Plant Breeding and the IARCs
1. As regards plant breeding, the situation of the CGIAR is not unique. The success of plant breeding at the world level, should it be public or private, has resulted from the free exchange of genetic diversity, new technology and information. The entry into force of the UPOV convention, first in developed countries, has not changed that situation, due to the breeders' exception. The adoption of the UPOV convention or of a Sui Generis System requested by the TRIP'S agreement, possibly shaped on the UPOV convention, by developing countries, won't change the situation. We have of course to insist on the necessity to have a breeders' exception like system in any sui generis system. The following developing countries are now members of the UPOV convention: Argentina, Chile, Columbia, Ecuador, Mexico, Paraguay, South Africa, Uruguay. Brazil has lodged an application for membership. Discussions are going on with India and China and probably other countries. Countries in transition, such as Czech Republic, Hungary, Poland, Slovakia, Ukraine, are also members of UPOV.
Two main changes have occurred, impacting on plant breeding and free exchange of germplasm:
· The development of molecular markers and genetic engineering tools since the early 1980's. Those tools are becoming essential and will be absolutely essential for plant breeding (and animal breeding) in the years to come.The possibility of patenting biotechnological inventions could impact negatively on the free exchange of germplasm, even for research purposes, at least in some countries.
· The signing of the CBD in 1992, in which the concept of Plant Genetic Resources being a common heritage of mankind to be preserved and freely available for use, "for the benefit of present and future generations" is replaced by the affirmation that "States have sovereign rights over their own biological resources". The FAO Commission on Genetic Resources for Food and Agriculture has agreed that the "International Undertaking should be revised to be in harmony with the CBD". Even if that concept is perfectly acceptable, it has, at least as far as agriculture is concerned, perverse effects. (Some members of our panel indicated in our Washington meeting that the consequences were becoming disastrous for developing countries).
2. In developing countries most of the seed used is "farm saved seed". It is now generally agreed that, due to that situation, the seed used has bad or very bad quality with a very negative impact on agricultural productivity and food supply. Many developing countries, encouraged by the World Bank and other international organizations are trying to develop a seed production and distribution network (formal or informal. But if it is informally organized, is it still informal and will it improve the situation? hi that process many developing countries, still encouraged by the World Bank, are trying to develop a private seed sector.
3. If we want to, as far as possible, get away from criticism, we should avoid presenting our action as a defence of the CGIAR System, which, as such, would not be justified, but rather as a defence of the improvement of agriculture and food supply in developing countries.
4. Over the last thirty years the CGIAR System has been very successful, due to the fact that its institutional structure was well adapted to the global environment. The technical environment is evolving and has changed dramatically the last 10 years. We should avoid nostalgia for the old good times. As indicated by the panel, "radical change in the environment may require corresponding radical change in the CGIAR".
Conclusions
In order to address properly the issue of Proprietary science of others we need:
· Either a joint meeting with the panel of scientists or a written document from them.
· A survey regarding question G1 and G2.
· A consultation on the effect of patented genes/process of export of commodities.
The diagram illustrates the importance of market segmentation to a commercial innovator. A hypothetical price/volume curve for a genetically modified seed is shown. An owner of technology develops a new genetically modified seed. His marginal cost of production is c, at which price he can sell C bags, for a total return of $Cc. However, at this price he would not recover any of the fixed costs of doing research and development, including proving safety. To cover all sunk costs, he has to price instead at b, selling B bags, for a total return of $Bb. If competition prevents him selling at b, he will go out of business (or at least not make any further investment in innovation). He may be able to improve his return further, for example by selling A bags at price a, to recover an extra $A(a-b) of profit. A non-discriminating monopolist would do this, if marginal revenue equals marginal cost at output A. The producer can without affecting the bottom line sell some material at his marginal cost c to third parties (e.g. peasant farmers) with no capacity to pay the commercial (developed country) price or to compete in commercial markets. This results in sales of the technology to (or at least use by) some of those who want or need it but are too poor to be prospective commercial clients. If on the other hand the poor farmers with the new technology have access to commercial markets, so that they can undercut commercial sales the company would otherwise profit from, the company is of course damaged.
Sales below marginal cost c cost the company more than they earn, and indicate unlikely philanthropy on the part of the corporation or its executives. However, it may be possible to license material for use: at a marginal cost to the licensor that is either negligible or very much smaller than the licensor's cost of production. This might make the product available to poor users at a cost to them as low as d.
In this way, the innovation can become available to more and poorer people - very much more than if the product can only be sold at b. Of course, people who buy at price a lose out - at the hands of the producer, who pockets an extra (a-b) for each bag they buy. As against this, D-B units go to poorer people who would not otherwise have access to the innovation. Apart from the producer, those who lose are the better off, and those who gain are the poor, including the very poor: so this seems to be a situation that the CGIAR should encourage.
However, to repeat, this will not happen unless markets can be segmented. If the producer licenses in open markets, prices will reduce through competition to between c and d. The producer will lose heavily - and be unwilling to license technology in future.
Despite the approval of the more restrictive 1991 UPOV Convention that makes plant breeders' rights more like patent protection and limits the right of farmers to trade protected seeds with their neighbors, farmers organizations and NGOs have maintained the basic assumption that the CGIAR research on plant and animal genetic resources ought to serve public and small farmers' needs, rather than private interests. However, given the changing nature of IPR, especially in the framework of GATT, whereby the US and other northern countries have attempted to impose their new rules of TRIPs, which forces all countries to honor northern interpretations of patent rights, all measures possible must be taken to secure CGIARs' public goals. If farmers need to be protected from the negative effects of a global regime of IPR, then it is the moral obligation of the CGIAR to engage in alliances aimed at preventing TNCs, international trade agreements and IPRs from destroying agricultural biodiversity and undercutting farmers cultural diversity and socioeconomic development Presently, countries are under pressure to change IPR laws to conform with the TRIPs agreement of the GATT. Such rules will supersede national laws and allow privatization of Third Worlds' farmers knowledge and resources. The ability of companies to gain monopolies over formerly freely available genetic resources, including seeds, plants, animals and even microorganisms, may have devastating effects on both, rural communities and the protection of agrobiodiversity. The encroachment of IPR in the absence of mechanisms that protect small farmers and rural innovators, renders these regimes predators or "pirates" of indigenous knowledge and resources.
Many NGOs and even some governments have expressed concern that intellectual property rights for industry, as defined in the TRIPs agreement, will prevail over the traditional rights and rights holders recognized in the convention on Biological Diversity. Indigenous and local communities, according to the biodiversity convention, should share in the benefits derived from the use of their knowledge, and have the right to approve and be involved in plans to widen the use of their traditional innovations and practices. But the patent system affects the very cultural foundations of rural communities by inhibiting farmers from sharing their seeds and knowledge with each other. Prohibiting farmers to reuse the seeds yielded by their harvests and share their seeds with farmers in other communities will negatively influence local genetic improvement and in-situ conservation. The final result will be genetic uniformity and genetic erosion and its serious consequences on food security and biodiversity conservation. In addition, the globalisation of plant patenting by the Uruguay Round TRIPs agreement will accelerate the rate at which market forces already encourage monocultural cropping with genetically uniform plant varieties - setting up ideal conditions for outbreaks and the spread of insect pests and diseases.
The CGIAR should openly endorse the concept of farmers' rights embraced in FAO's "International Undertaking on Plant Genetic Resources" which recognizes farmer's contributions to developing biodiversity and to share the benefits of their work. Many NGOs advocate of farmer's rights would hope that the CGIAR lobbies negotiators at the FAO so that the revised Undertaking will become a protocol of the Convention on Biological Diversity and thus, an integral part of the debate over the conflict between the convention and the TRIPs' agreement.
The CGIAR, NGOs and farmers organizations have a unique opportunity to work together to influence the evolution of IPR at the international level and to advance informed critiques and propose alternatives to existing IPR concepts and laws before 1999. Rural communities, people's organizations and NGOs around the world are making sure that the issues of farmers' rights, bioprospecting and biopiracy, alternatives to IPR and new forms of protection for rural communities and life patenting are seriously addressed at national, regional and global fora. If the mission of the CGIAR is still to promote food security in developing countries through sustainable agriculture, then its historical challenge is to join farmers and grassroots organizations in achieving the objectives of:
· preventing that farming communities are marginalized from the rewards and benefits of industrial intellectual property systems;· achieving recognition for the intellectual integrity and innovation systems of rural communities and peoples;
· developing mechanisms to protect such indigenous intellectual integrity;
· implementing farmers' rights;
· ensuring that rural and indigenous communities receive compensation for their knowledge of plant genetic properties;
· restricting the right of TNCs to seize and patent resources of indigenous peoples;
· reversing the privatization of biotechnology and challenging the direction of currently privately led research.
It is time for the CGIAR to play a more active role in defining the future IPR scenarios so as to prevent that the free exchange of knowledge and resources does not give way to a monopoly vested in those who control capital and hence the resources for research. The fully developed science of the CGIAR of the XXI century must have an agenda determined by the needs of the rural people of the developing world. The future of biotechnology based research will be determined by power relations, and there is no reason why farmers, if sufficiently empowered/could not influence the direction of IPR and biotechnology so that it serves their needs.
THE THAMMASAT RESOLUTION: Building & strengthening our sui generis rights
We, 45 representatives of indigenous, peasant, non-governmental, academic and governmental organisations from 19 countries, came together on 1-6 December 1997 at Thammasat campus just outside Bangkok, Thailand, for an international seminar on Sui Generis Rights co-organised by Biothai and GRAIN. We met to study, assess and develop our response to the increasing privatisation of biodiversity and local knowledge, especially as driven by the Trade Related Intellectual Property Rights (TRIPS) agreement of the World Trade Organisation (WTO) and resulting legislation at the regional and national levels. We focused in particular on the sui generis rights option for intellectual property over plant varieties as imposed on all WTO member states by the TRIPS Agreement, as well as on other international agreements related to biodiversity such as the Convention on Biological Diversity (CBD.).
In Thai, 'Thammasat' means 'knowledge of nature'. It also means 'justice'. The name of our venue is central to us. Indigenous peoples, farmers and local communities have, over millennia, nurtured and developed the biodiversity on which humanity now depends. Wisely using their knowledge of nature to create sustainable food and health systems based on sharing their knowledge and biodiversity with others. Such community systems are being destroyed by economic development under the guise of free trade, Green Revolution agriculture and the new biotechnologies, and globalisation. They are also being destroyed by the rampant pirating and monopolisation of biodiversity and related knowledge through the extension of intellectual property rights (IPR) to life forms.
Perhaps no country exemplifies our concerns about WTO-enshrined globalisation as our host country. At the time we were meeting, Thailand - and much of the rest of Southeast and East Asia - is going through a profound crisis resulting from years of economic growth founded upon fleeting speculative investment The currency tailspin which started last July is accompanied by destabilisation of markets, loss of employment and cutting of public spending, and results in a clear loss of control over our own economies and livelihoods with the IMF taking the steering wheel.
The WTO TRIPS Agreement obliges developing countries to provide some form of IPR on plant varieties by the year 2000. This may be done by patents or by some 'sui generis rights system - meaning, in Latin, a system 'of its own kind'. In 1999, one year before implementation, this provision will be reviewed and we are preparing ourselves for this review.
We reaffirm our total and frontal opposition to the extension of intellectual property rights to life forms, be it on humans, animals, plants, micro-organisms, or their genes, cells and other parts. We are also decidedly against biopiracy and the monopolisation of biodiversity-related knowledge through such IPRs.
Our understanding of sui generis rights in TRIPS
· The overall implication of TRIPS, and for that matter the whole of the WTO, is highly detrimental to peoples' economies, cultures and livelihoods.· The sui generis provision of TRIPs gives WTO member states room to develop their own kind of IPR protection for plant varieties, and many nations are now changing their national IPR laws.
· While some people look at the sui generis option in TRIPS as a window through which other forms of rights over biodiversity can be articulated in legislation, it is our conviction that such rights will be linked to IPR and will result in new and further monopoly rights over plant varieties.
· The same is true of any sui generis rights option which could be developed and proposed under the TRIPS Agreements for local and indigenous knowledge.
The reaffirmation of our sui generis rights
· 'Sui generis' perfectly describes the rights and systems we are struggling to defend - our 'own kind' of rights and systems. We recognise our sui generis rights to exist independently of the IPR-based sui generis systems promoted by the TRIPS Agreement.· Our rights are inalienable; they existed long before IPR regimes were established. As legal, political, economic, social and cultural rights, they are part of peoples' sovereignty and therefore part of human rights.
· As community/collective rights, they are indivisible and intergenerational; they include Farmers' Rights and apply to Indigenous Peoples, peasant and family farmers, fisherfolk and other local communities which derive their livelihoods from biodiversity.
· Their place and expression is firstly at the local level, but they must also be recognised and guaranteed at the national and international levels.
· The rights that we are struggling to develop, defend and let flourish should never be misinterpreted as, or denatured into, intellectual property rights.
· Because peoples' rights are under tremendous threat, we see the promotion of such rights also as a tool for resistance against, and the rolling back of, the forces of monopoly.
It is on this basis that we will actively engage our societies from the village level through to our governments in the capitals to take part in the struggle for our sui generis rights, and on to the international level to oppose IPR on all forms of life. This implies a whole range of information, research, campaign and coalition building activities over the long term.
Some of the immediate tasks at hand are to:
· Demand the revision of TRIPS in order to allow for the full exclusion of IPR monopolies over life forms and biodiversity-related knowledge under the WTO.· Reinforce the defense mechanisms of local communities who are highly vulnerable to unbridled bioprospecting and to the introduction of genetically engineered organisms.
· Support any calls by local communities for a moratorium on bioprospecting, and demand an immediate moratorium on genetically engineered organisms.
· Assert the primacy of international agreements on biodiversity, such as the CBD and FAO instruments, over TRIPS and other trade regimes, for the resolution of these issues.
· Reaffirm the original intent of the CBD for the conservation and sustainable use of biodiversity and prevent the CBD from becoming a mechanism for transnational corporations to trade in biodiversity in the name of 'access' and 'benefit-sharing'.
· Mobilise a strong global movement engaging environmental, trade, agriculture, consumer, labour, health, food security, women's, human rights and all people's organisations in these campaigns.
In the spirit of justice and embracing all knowledge of nature, we commit ourselves to the Thammasat Action Plan and invite other organisations, movements and peoples to join us in the struggle to achieve this vision.
Bangkok, 5 December 1997
INTERNATIONAL AGRI-FOOD NETWORK
Statement on Biotechnology and the Agri-Food Industry
Business organizations, grouped within the International Agri-Food Network (IAFN)*, are the driving force behind the technological progress being achieved in the agri-food sector. They thus have a major responsibility to ensure that their products meet the highest international standards of quality and safety. At the same time they must be open and transparent in their actions, providing meaningful information to consumers on their products in any areas of concern. In return, business expects to be able to operate in a stable environment, regulated by a framework of internationally agreed rules based upon recognized scientific and economic principles.
The roots of biotechnology date back some 12,000 years when women and men learned to select the best seeds for planting and to domesticate animals. Modem techniques of genetic improvement have allowed the agri-food sector to make spectacular progress. This can be seen in: plant and animal breeding, in cheese, beer and bread production, in the preservation of fruits and vegetables, and in many other areas.
Gene transfer technology - modem biotechnology - is a new and important tool for the agri-food industry. It allows researchers to transfer directly a desirable gene into an organism that they want to improve. Genes can even be introduced from other species, which is not possible with standard crossing. Gene transfer technology will allow researchers to make improvements in plants, animals and food products more rapidly, more precisely, and for a broader range of attributes than in the past.
The potential benefits of this technology are considerable. This potential must be developed responsibly to meet the challenges of a growing world population, a shrinking natural resource base and increasingly demanding consumers.
Already, this work is showing promise in
- eliminating allergy-causing substances in food products e.g. soybeans- producing cooking oils with a lower saturated fat content
- breeding plants with a greater resistance to pests and diseases, and better adaptation to the needs of consumers
- developing food products which carry with them precious medicinal qualities.
The International Agri-Food Network believes that genetically modified organisms are capable of bringing real progress in meeting the needs of an ever-growing world population for affordable and wholesome foods in an environmentally sustainable way.
At the same time, the International Agri-Food Network is concerned that the products of biotechnology be safe for human health, for animals and for the environment. It is essential therefore that novel foods, seeds and animals are strictly controlled and rigorously tested, before being released onto the market or into the environment.
The implications of the use of biotechnology are global, so it is at this level that discussion must take place and balanced and responsible policy responses found. For its. part, the International Agri-Food Network will work to promote the following ten actions:
1. Conservation and access to genetic resources. The International Agri-Food Network supports the work to conserve the rich world heritage of genetic resources for the benefit of all mankind.2. Increased investment in biotechnological research in order to:
(i) develop the great promise of genetically modified organisms, and
(ii) thoroughly understand and master the biological processes involved.3. Rigorous and comprehensive regulatory systems to ensure the safety of genetically modified products.
4. International harmonization of testing and control procedures, based on sound scientific principles. Mutual acceptance of food and feed safety standards as "substantially equivalent" is necessary to avoid duplication of national approval processes.
5. Support for Codex alimentarius standards, guidelines and recommendations, which are based on internationally - recognized scientific analysis. Codex endorsements are made to ensure food quality and the safety of the food supply, and thereby facilitate fair international trade.
6. Labelling of products containing genetically modified material, only where the product is significantly different from conventional products. Any form of labelling should not attempt to establish a difference among products where none exists.
7. Reasonable time period to:
(i) carry out the necessary administrative procedures and,
(ii) assess the safety of genetically modified organisms.8. Protection of intellectual property rights and harmonization at the international level. Biotechnological research for plant and animal breeding, or for the development of new products and processes, involves significant investments. Organizations involved in this research should be able to receive a reasonable return through the protection of intellectual property.
9. Fair licensing agreements. It is important that the results of gene transfer technology benefit all partners in the agri-food chain.
10. Special attention to the needs of the developing countries. Modem biotechnology has the capacity to contribute significantly to world food security. A framework should be established to enable the public and private organizations concerned to cooperate on an international basis, so that the benefits of biotechnology are brought to the traditional plants and animals of the developing countries. In this regard, developing countries possess an immense amount of traditional knowledge and genetic material which should be recognized.
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* THE INTERNATIONAL AGRI-FOOD NETWORK (IAFN) fosters cooperation and understanding among international agri-food sector organizations, and takes joint action on items of common interest. | |
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ASSINSEL - |
International Association of Plant Breeders |
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CIAA - |
Confédération des Industries Agro-Alimentaires de l'UE |
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COMISA - |
Confédération Mondiale de l'Industrie de la Santé Animale |
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FIS - |
International Seed Trade Federation |
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GCPF - |
Global Crop Protection Federation |
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ICA - |
International Co-operative Alliance |
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ICC - |
International Chamber of Commerce |
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IFA - |
International Fertilizer Industry Association |
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IFAP - |
International Federation of Agricultural Producers |
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IMS - |
International Meat Secretariat |
