Trips laid out
IMPLICATIONS OF TRIPs FOR FOOD
THE MAJORITY WORLD
Prepared for Comhlámh Action Network by Gerard Downes, October 2003
Gerard Downes is a graduate of the University of Limerick where he obtained an undergraduate degree in
History, Politics and Social Studies. He is currently pursuing a postgraduate degree programme in the
Department of Politics and Public Administration at the University of Limerick, where he is specialising in an
analysis of the food-security implications of the TRIPs Agreement. Gerard has been a Government of Ireland
Comhlámh, 55 Grand Parade, Cork. Tel: 021 4275881 E-mail: [email protected]
Comhlámh, 10 Upper Camden Street, Dublin 2. Tel: 01 4783490 E-mail: [email protected]
Throughout the manual, the phrases ‘Developing Countries’, ‘Third World’, ‘developing world’, etc. are used to
describe the countries of Africa, Asia and Latin America. We recognise and encourage a vibrant debate on the
issue of terminology. Comhlámh Action Network has chosen to use the phrase Majority World in its work.
Comhlámh gratefully acknowledges funding by Ireland Aid through the National Committee for Development
Education, Trócaire and ActionAid Ireland. This document has been produced with the financial assistance of
the European Community. The views expressed herein are those of the authors and can therefore in no way be
taken to reflect the official opinion of the European Community.
Established in 1975 ‘Comhlámh, Development Workers in Global Solidarity: Ireland’ is an organisation of vol-
unteer members committed to working for sustainable development. It does this through supporting, empow-
ering and training development workers, development educators and campaigners, and engaging with these in
action for just, equitable and sustainable development. The particular contribution of Comhlámh stems from
being an organisation of volunteer members, being informed by the experience of Irish development workers
worldwide, not being involved in delivering aid overseas, and approaching development and social justice in an
Comhlámh seeks to act in solidarity and partnership with people struggling for economic and social justice
Volunteer members of Comhlámh are active in raising public awareness on a number of development and
· promoting good practice and equality in aid delivery;
· welcoming immigrants to Ireland and promoting a multi-cultural Ireland;
· seeking equitable trade relations between industrialised countries and the South;
· supporting people seeking to engage in development work overseas and in Ireland;
· providing skills training to development educators and campaigners;
· welcoming home returned development workers;
· involvement in a range of issue-based programmes including work relating to the integration of refugees,
SUMMARY OF MAIN FINDINGS
1 INTRODUCTION AND BACKGROUND TO TRIPS
Why Did Developing Countries Sign TRIPs?
Developing Countries and TRIPs Article 27.3(b)
2 COST OF INTELLECTUAL PIRACY – VALUE AND PROPRIETORSHIP OF PLANT
Access to Plant Genetic Resources Under Patent Laws
3 THE FAO’S INTERNATIONAL UNDERTAKING (IU) / FARMERS’ RIGHTS DEFINED
The International Undertaking on Plant Genetic Resources (IU)
4 BIOPIRACY – NATURE’S GIFT OR SCIENCE’S PATRIMONY?
Why Can ‘Pirates’ Operate Legally? ‘Prior Art’ as a Concept
SADC (South African Development Community) Statement, March 1999
5 TRIPS ARTICLE 27.3(B) / PLANT VARIETY PROTECTION
What is a ‘Distinct, Uniform and Stable’ Variety?
6 TRIPS AND BIOTECHNOLOGY / GMOS
Technology Transfer: TRIPs in an Unequal World
7 GENETIC DIVERSITY ERODED
Shiva’s BBC Reith Lecture, 2000: Herbicides and Pesticides
8 CONSOLIDATION OF SEED INDUSTRY
TRIPs: Liberalisation or Monopolisation?
Vandana Shiva on TRIPs and Corporate Control
9 TRIPS BY STEALTH: THE UPOV CONVENTION
Capacity of Farmers to Save Seeds of PVPs (Plant Variety Protection) Under UPOV: How Limited?
Bilateral, Regional and Sub-regional Trade Agreements Using TRIPs as Subterfuge 34
Summary of Food-security Features of UPOV 1991
10 IRELAND AND THE TRIPS AGREEMENT
10.1 Ireland’s Position vis-à-vis TRIPs and the European Biopatenting Directive
10.3 The Irish Plant Breeders’ Rights and Plant Variety Rights Office, Backweston,
10.4 The European Biopatenting Directive
10.5 Pressure on Ireland: Canvassing Votes in the European Council of Ministers
11 THE FINING OF FARMERS
11.1 The Fining of Farmers: Examples from the Industrialised World
11.2 Germany: The Case of Josef Albrecht
11.3 Scotland: The Case of Potato Farmers
11.4 Canada: The Case of Percy Schmeiser
11.5 US: The Case of Becky and Denis Winteboer
SUMMARY OF MAIN FINDINGS
· The TRIPs (Trade Related Intellectual Property Rights) Agreement means that member
states of the WTO (World Trade Organisation) must enact domestic legislation whichprovides for minimum standards of intellectual property rights protection.
· The TRIPs Agreement was included on the agenda of the WTO after intensive lobbying by
a small coterie of thirteen multinational corporations who comprised the IntellectualProperty Committee (IPC).
· The TRIPs Agreement makes the privatisation of the world’s biodiversity a reality. This
violates both the Convention on Biodiversity and the International Treaty on Plant GeneticResources for Food and Agriculture. Both of these are legally binding UN treaties whichhave been ratified by Ireland.
· The TRIPs Agreement requires that member states of the WTO provide for the protection of
plant varieties by means of patents, plant breeders’ rights, a combination of both or a suigeneris
(‘of its own kind’) system which in reality means the UPOV Convention (see page 33).
· The TRIPs Agreement will reinforce the phenomenon of ‘biopiracy’ where natural
resources are appropriated and patented by companies or organisations, e.g. the neemtree, turmeric, the Mexican enola bean, etc.
· The 1952 Patent Act of the US does not recognise ‘prior art’ outside its borders. This
means that ‘innovators’ or ‘inventors’ in the US can claim what they have created as ‘novel’even though the product may have been patented elsewhere. This is the basis of biopiracy.
· The TRIPs Agreement makes no provision for the ‘benefit-sharing’ of plant genetic resources.
Neither does the agreement recognise the principle of ‘prior informed consent’ betweenthose extracting the genetic materials and those who claim ownership over those resources.
· The TRIPs Agreement does not recognise the contribution of farmers, communities and
indigenous peoples in the conservation and creation of genetic resources by human selec-tion for millennia.
· Article 27.3(b) of the TRIPs Agreement requires that member states allow the patenting
of plants and animals that have been produced through ‘non-biological’ and ‘microbiolog-ical processes’. These references are to the new biotechnologies of genetic modification(also known as ‘genetic engineering’).
· The TRIPs Agreement legalises the patenting of ‘life forms’ such as genes, gene sequences,
plant varieties and micro-organisms. These are discoveries in nature but organisations havebeen able to claim them as ‘inventions’.
· In a multitude of secretive bilateral treaties, regional agreements and investment treaties,
a significant number of developing countries have been forced to adopt the provisions ofthe UPOV Convention which is very stringent in terms of what farmers are permitted tosave and exchange from their harvests. Under the TRIPs Agreement countries are ostensi-bly allowed create their own sui generis
systems of plant variety protection. This flexibilityis being negated by the imposition of the UPOV Convention.
· The TRIPs Agreement (and the related UPOV Convention) render illegal the sale and
exchange of seed in agriculture. Almost one and a half billion farmers depend on the savingof ‘across-the-fence’ sale and exchange of seed for their livelihoods. The TRIPs Agreementmeans that many farmers will no longer be able to continue these practices. In terms offood security, the termination of such practices will be catastrophic.
· Plant breeder legislation has already led to farmers being fined for selling and exchanging
seed as well as selling uncertified seed in industrialised countries such as the US, Germany,Scotland and Canada. The TRIPs Agreement will reinforce and expand the power of plantbreeders.
· Proponents of the TRIPs Agreement state that the agreement will lead to a greater transfer
of technology and more investment in developing countries. A World Bank study provedthat this was not the case in reality.
· Legislation required under TRIPs is leading to the consolidation of the seed market in
certain countries. For example, Monsanto and DuPont now control 75% of the Braziliancorn market. Since 1997, Monsanto’s share of the Brazilian maize seed market went from0% in 1997 to 60% two years later by acquiring small local firms.
· As an antitrust case brought against the five ‘gene giants’ (Monsanto, DuPont, Dow
Chemical, Novartis, AstraZeneca) shows, the ‘giants’ act as a cartel, restricting competi-tion, breeding a narrow selection of crops and keeping prices of inputs for farmers, suchas seed, much higher than should be the case. Their expansion into developing countrieswill reinforce their grip on markets and will lead to the consolidation of the food chain bya quintet of powerful conglomerates.
2 | Implications of TRIPs for Food Security in the Majority World
INTRODUCTION AND BACKGROUND TO TRIPS
1.1 INTRODUCTION TO REPORT
This report will serve as an overview into the World Trade Organisation’s (WTO) TradeRelated Aspects of Intellectual Property Rights (TRIPs) Agreement and the extent to whichthe agreement, particularly Article 27.3(b) of the agreement, impinge upon food security inthe developing world.
The report begins by looking at the genesis of and motivation for the TRIPs Agreement. Itthen looks briefly at the transformation in agriculture wrought by the ‘gene revolution’ andthe consequent rush to patents that it has wrought. The potential impact of the most con-tentious article of the TRIPs Agreement, namely Article 27.3(b) upon the developing worldis then assessed.
It has been claimed that since the Uruguay Round of trade talks which begot the TRIPsAgreement, there has been a consolidation of the seed industry, with certain firms enjoyingmonopoly privileges in certain key sectors. This trend is at variance with the WTO’s aspira-tion of greater liberalisation of trade. However, the greatest danger to food security in devel-oping countries may come from the implementation of the UPOV Convention (InternationalConvention for the Protection of New Varieties of Plants) which has been used by powerfulstates in bilateral, regional and sub-regional trade agreements as a means to ensure the com-pliance of developing countries with the provisions of the TRIPs Agreement.
As a result of the TRIPS Agreement, WTO member countries must provide intellectualproperty rights protection for plant varieties, either in the form of patents or through a suigeneris
(i.e. of its own kind) system. The sui generis
provision in theory should allow coun-tries to develop their own system for protecting plants. In practice, however, the UPOVConvention has become the most widely used model for implementation of countries’ suigeneris
obligations. One of the reasons why this is so is because UPOV is the only plantvariety protection system that exists in international IPR law.
1.2 FOOD SECURITY DEFINED
Food security can be defined as more than simply ensuring that there is an adequate amount offood cultivated or available on the market. Food security also encompasses the question ofwhether people are able to purchase enough food to satisfy their basic nutritional requirements.
(Dutfield, 2002) It has been stated that the use of patents on plant genetic resources in thedeveloping world could jeopardise food security because with three-quarters of the world’s pop-ulation that live below the poverty line involved in agriculture, ‘anything that increases the costsof agricultural seed or other inputs could be damaging’. (Oxfam, 2002: 220)
Equally detrimental to poorer farmers could be restrictions on their rights to retain theseeds on which the following year’s harvest is dependent. As the Indian environmentalistVandana Shiva writes: ‘Seed is the first link in the food chain. It is the embodiment of life’scontinuity and renewability; of life’s biological and cultural diversity. Seed for the farmer isnot merely a source of future plants/food; it is the storage place of culture, of history. Seedis the ultimate symbol of food security.’
Traditionally, farmers save their seeds after each harvest and replant them the followingyear. Many farmers, particularly those in developing countries, trade and exchange seedslocally with other farmers. For breeders this means that they have difficulty recouping theinvestments made in improved varieties through repeat sales. Many plant varieties have orig-inated in the seeds that farmers have selected and sown for thousands of years. Such prac-tices of on-farm experimentation and conservation ‘form the basis of food security and liveli-hoods for communities throughout the developing world’. (UNDP, 2003: 216) Even in indus-trialised countries, it is quite common for farmers to reuse seed from a previous harvest,although for many crops ‘legal purchase is now the rule’. (CIPR (Commission on IntellectualProperty Rights), 2002: 58) Legal mechanisms, such as those outlined in Article 27.3(b) ofthe TRIPs Agreement, could force farmers to purchase seed each year and, as a consequence,force them off their landholdings in their millions.
The TRIPs Agreement will have far-reaching implications for the developing world in agri-culture, particularly in the sphere of biodiversity. Developing countries retain 90% of theworld’s biodiversity and are the source of genetic resources that are of enormous benefit toindustry and agriculture. (Dutfield, 2000) Traditionally, these genetic resources have beentransferred freely to developed countries on the understanding that they formed part ofhumanity’s ‘common heritage’ as has been outlined in the FAO (Food and AgriculturalOrganisation) International Undertaking on Plant Genetic Resources.
(FAO Resolution 8/83)It was perceived that developing countries would benefit from this transfer of resources asmany of them lacked the financial and technological means to develop the resources them-selves.
1.3 BIODIVERSITY DEFINED
The term biodiversity refers to ‘all living organisms, their genetic make-up and the commu-nities they form’. (Biggs, 1998: 116) Biodiversity is also ‘the essential ingredient of biotech-nology which can recombine genetic traits in the DNA and use them to create geneticallychanged life forms’. (Ibid.) Both biodiversity and biotechnology are intimately connected,and it is now impossible, as one commentator asserted, ‘for those concerned about sustain-able development to talk about biodiversity without talking about biotechnology’. (Ibid.)
1.4 PATENT LAW IN DEVELOPING WORLD
Prior to the TRIPs Agreement most countries in the developing world had especially weakpatent laws in the areas of food and drugs, ‘because they are so fundamental to any society’sneeds’. (Biggs, 1998: 133) It was for these reasons that industrialised countries did notpermit patents to be granted on food, chemicals, plants or animals until the 1960s. Some
4 | Implications of TRIPs for Food Security in the Majority World
countries, such as Switzerland from 1850–1907, Austria, France, Britain before 1852 andthe Netherlands from 1869–1912, abolished all their patent laws on the grounds that theyamounted to little more than monopolistic practices and acted as deterrents to indigenousinnovations. (Monbiot, 2002: 19)
In 1998, the high-income countries of the Organisation for Economic Co-operation andDevelopment (OECD) accounted for 86% of all patent applications worldwide. This earnedthose OECD countries over 97% of global royalties and licence fees. In contrast, that sameyear, the world’s least developed countries earned less than 0.5% of all royalties and licencefees. In this way, among many others,
TRIPs works against latecomers or imitators by increasing the price of technology
and restricting their options for technological catch-up. Further, it affects future
economic development, which is likely to increasingly rely on the power of ideas and
information, threatening to leave behind countries that lack research capacity’.
1.5 BACKGROUND TO TRIPs AGREEMENT
The TRIPs Agreement is one of the three pillars of the WTO – the others being trade in goodsand services – and it was negotiated during the Uruguay Round of trade talks that took placefrom 1986–1994 under the auspices of the GATT (General Agreement on Tariffs and Trade).
The TRIPs Agreement came into effect with the establishment of the WTO on 1 January1995. The agreement was framed with the intention of protecting intellectual property on aglobal scale by means such as patents, copyrights and plant breeders’ rights. Intellectualproperty rights are defined by the WTO as the rights that are given to persons over the cre-ations of the mind such as inventions, works of art and literature and designs. They usuallygive the creator an exclusive right over the use of his/her creation for a certain period oftime, usually twenty years. In order for a patent to be granted it must fulfil certain criteria.
The object being patented must be novel, innovative and useful. (Meek, 2000)
In the Uruguay Round members of the GATT undertook to make their domestic legislationconform to the TRIPs Agreement and therefore allow all inventions, with a few exceptions,to be patentable. Placing intellectual property rights within the WTO means that thosemembers that fail to comply with their obligations under the TRIPs Agreement face the pos-sibility of having trade sanctions imposed upon them by the WTO’s Dispute SettlementUnderstanding (DSU). Developing countries were accorded a five-year time lag on imple-mentation meaning that their legislation had until 1 January 2000 to become ‘TRIPs-com-pliant’. Least developed countries were allowed until January 2006 before implementing theagreement. The review of Article 27.3(b) of the TRIPs Agreement is currently ongoing in theTRIPs Council.
TRIPs was, both politically and technically ‘one of the most difficult issues on the UruguayRound agenda’. (Hoekman and Kostecki, 1995: 151) The issue of intellectual property rightsprotection was new to the GATT and involved a North–South confrontation. The United
Introduction and Background to TRIPs | 5
States, in particular, assumed an aggressive position when the issue of intellectual propertyrights was discussed during the Uruguay Round. US companies, particularly pharmaceuticalcorporations, played a major part in determining the framework of TRIPs. (Weissman, 1996)
James Enyart, a senior Monsanto employee at the time of the Uruguay Round of negotia-tions, stated about TRIPs that ‘industry identified a problem, crafted a solution and sold itto our governments’. (Enyart, 1990: 54) Monsanto was ‘one of the corporations to demandthat the GATT … incorporate a worldwide patents regime, in order to protect what itclaimed were its inventions’. (Monbiot, 2000: 253) The powers invested in the beneficiariesof the TRIPs Agreement were astounding. As Hutton writes, the US forced through GATT aframework agreement on TRIPs ‘protecting the enforcement of intellectual property rights,with the result that the US Patent Office – as the gatekeeper controlling the exercise ofpatents in the world’s largest market – would become the de facto
upholder of all advancesin the information age’. (2002: 203)
Therefore, it may be accurate to state that the TRIPs Agreement was not only derived as ameans of confronting intellectual piracy and counterfeiting on a global scale. The TRIPsAgreement was also regarded as a component of the policy of ‘technological protectionism’‘aimed at consolidating an international division of labour whereunder Northern countriesgenerate innovations and Southern countries constitute the market for the resultingproducts and services’. (Correa, 2000: 5) Worried at their declining position in world trade,a scenario for which intellectual piracy was perceived as a major contributory factor, USindustries were anxious to establish international rules that would counter this trend.
The growing importance of intellectual property for the United States can be illustrated byits increase as a percentage of exports. In 1947, for example, intellectual property com-prised almost 10% of all US exports. By 1986 intellectual property formed 37% of USexports. In 1994, intellectual property accounted for over half of the United States’ exports.
1.6 WHY DID DEVELOPING COUNTRIES SIGN TRIPs?
The theory of democratic bargaining among sovereign states that was formulated by theAustralian academic Peter Drahos states that for democratic bargaining to take place atleast three conditions must obtain. Firstly, all relevant interests need to be represented inthe negotiating process (what Drahos calls the condition of representation
). Secondly, allthose present in the negotiations must have full information about the consequences ofvarious possible outcomes (the condition of full information
), and thirdly, one party must notcoerce the other (the condition of non-domination
). In the negotiations on TRIPs none ofthese conditions prevailed. Most decisions on intellectual property were taken by the ‘Quad’of the United States, Japan, Canada and Europe. Developing countries were rarely repre-sented at the negotiations and only ten intellectual property experts from the developingworld attended talks on TRIPs; all parties did not have full information as to the conse-quences of the TRIPs Agreement: there was little doubt that there would be massive tradegains for the United States but little assessment of what TRIPs would mean for developingcountries and virtually no mention of the consequences of TRIPs for food security. By use of
6 | Implications of TRIPs for Food Security in the Majority World
its Section 301 provision (see Section 1.7), the United States was able to coerce states suchas India and Brazil into accepting TRIPs onto the WTO’s agenda.
Prior to, and including the Uruguay Round, industrialised countries had asserted thatimproved intellectual property rights (IPRs) protection would lead to greater technologyand investment flows to the developing world. The assumption made by industrialised coun-tries involved in the negotiations was that developed and developing countries would benefitalike from the introduction of greater global IPRs protection. (Correa, 2000) By forfeitingthe intellectual property arena to the developed world, developing countries were to beaccorded greater leverage on areas of arguably greater importance to their economies,namely agricultural subsidies as well as more access to Northern agricultural and textilemarkets.
The United Nations Development Programme (UNDP) in its report Questioning theOwnership of Knowledge
(1999) stated that the developing world receives $50billion in aidon an annual basis. However, the cost to the South of interest payments on debt combinedwith unequal terms of trade which deflate prices for its commodities or prevent them beingsold at competitive prices was estimated at $500billion.
Since the signing ceremony in Marrakesh those promises have not been maintained. In fact,since 1994 agricultural subsidies have increased significantly to farmers in the United Statesand Europe. Overall, the World Bank states that agricultural subsidies paid to farmers andagribusinesses to protect the markets of the industrialised world from competing withproduce from the developing world are seven times ($US350billion) what the South receivesin aid annually ($50billion).
Developing countries’ acceptance of the TRIPs deal in the Uruguay Round also stemmed pre-dominantly from a mix of fear that without it they would be increasingly vulnerable to ‘uni-lateral arm-twisting by the US and the EU, and a growing perception that IP (IntellectualProperty) laws also had benefits in terms of allowing participation in knowledge-creatingactivities, providing consumers with access to new products, and giving industries betteropportunities of obtaining cutting-edge technologies’. (Hoekman and Kostecki, 1995: 149)
1.7 DEVELOPING COUNTRIES AND TRIPS ARTICLE 27.3(B)
It is important to stress that developing countries, up to the Seattle Ministerial Conferenceof 1999, did not adopt a coherent position regarding the highly controversial Article 27.3(b)of TRIPs. In fact, prior to the Uruguay Round of talks, some developing countries had initi-ated a strengthening of their domestic IP legislation in the hope of attracting greaterforeign direct investment and technology.
As a result, developing countries did not act as a cohesive block on the issue of IPRs at theUruguay Round. Some developing countries enacted tighter legislation in the IP field indirect response to the threat of unilateral trade sanctions by the United States underSection 301 of its 1974 Trade Act,1 while some brought in legislation in response to fears of
Introduction and Background to TRIPs | 7
being undercut by competitors in other developing countries. Some developing countriesbelieved that stricter IP protection would benefit their economies because it ostensiblyformed part of a coherent move towards a more free-market economy. (Hoekman andKostecki, 1995)
The respective positions adopted by individual countries towards Article 27.3(b) are depend-ent on numerous factors, namely, if the country is a net food importer; the extent of its bio-diversity; the nature of the farming community within that country; the degree to whichthat country has industrialised and whether that country has an established biotechnologyindustry; the amount of pressure exerted upon an individual country by another; andwhether trade-offs in other areas, such as agricultural subsidies, have been promised as anincentive to conform to the provisions of the article. (Hoekman and Kostecki, 1995)
Tansey wrote in 1999, the year that the review of Article 27.3(b) began, that developingcountries would at least wish to maintain their options regarding the implementation of thehighly contentious article. This would entail having more time to examine the issues andpossibilities and would mean a minimum position of no change to the text as is. If, however,the article is to be revised, then many civil-society groups and governments would preferplants and animals to be excluded from patentability and that the requirement for a suigeneris
system of protection of plant varieties be removed. (Tansey, 1999)
What has happened in the interim is that Article 27.3(b) has still not been fully reviewed.
One reason for this is that developing countries have interpreted the term ‘review’ to meana possible rewriting of the article’s provisions; developed countries, such as the US, define‘review’ as meaning an update on the implementation of the article. This semantic disputeis one of the many reasons why TRIPs has been called ‘a dream come true for patent lawyers,a nightmare for everyone else’. (Oxfam, 2002: 208)
8 | Implications of TRIPs for Food Security in the Majority World
COST OF INTELLECTUAL PIRACY – VALUE AND
PROPRIETORSHIP OF PLANT GENETIC RESOURCES
2.1 COST OF ‘INTELLECTUAL PIRACY’
The TRIPs Agreement was formulated as a consequence of heightened concern voiced byinnovators and inventors at the plagiarising of intellectual property and the limited safe-guards granted to innovators under international trade law. (Grubb, 1999) Industrialisedcountries entered the Uruguay Round negotiations with the clear objective of universalisingthe standards of intellectual property rights protection. (Correa, 2000) The USInternational Trade Commission estimated in 1988 that US-owned corporations were beingdefrauded of between $40billion and $60billion per year thanks to what it termed ‘foreignintellectual piracy’. In 1999 the Commission revised this estimate to between $100billionand $300billion. (Dutfield, 2000)
2.2 THE VALUE OF PLANT GENETIC RESOURCES
However, the Canadian-based organisation ETC (Action Group on Erosion, Technology andConcentration) counters these figures by stating that the value of germplasm from devel-oping countries to the pharmaceutical industry in the early 1990s was at least $32billion ayear, and that genes from fields in developing countries of fifteen major crops contributeover $50billion per annum in annual sales in the US alone. (ETC, 2002) Shiva states that ‘theaccusation of “piracy” that the US is making against the Third World is more applicable to theUS itself’ (Shiva, 1993: 126) and she estimates that the US owes the developing world$302million for royalties for farmers’ seeds, and $5.1billion for pharmaceuticals. (Ibid.)
It has been estimated that foreign genetic resources have added $3.2billion to the$11billion annual US soybean crop and about $7billion to the $18billion annual corn crop.
This is quite apart from the fact that all of the top fifteen crops in the US, with annual salesof $50billion, originally come from foreign sources. (UNEP, 1992) The contribution of wildvarieties to the US farm economy between 1976 and 1980 has been put at $340million peryear, while the total contribution of wild germplasm to the American economy has been esti-mated at $66billion. (Shiva, 1991)
Estimates of the true value of plant genetic resources worldwide vary substantially. Forinstance, two NGOs which between them represent the interests of the seed industry in oversixty countries, namely the International Seed Trade Federation (FIS) and the InternationalAssociation of Plant Breeders (ASSINSEL), have calculated the value of the global seedmarket at $30billion a year. On the other hand, the genetic resource consultant Dr DanielPutterman puts the figure at $13million. (Dutfield, 2000) Dutfield emphasises that nomatter which figure is more representative of the true value of plant genetic resources, whatcannot be calculated is the importance of such biodiversity for the millions of subsistence
farmers around the world who depend upon them for their survival. (Ibid.)
Developing countries have been paid only an infinitesimal fraction of the value for the rawmaterials and knowledge they contribute. (ETC, 2002) The United Nations DevelopmentProgram (UNDP) claimed in 2001 that a 2% royalty charge levied by developing countries ongenetic materials developed by local communities in the southern hemisphere that havebeen patented in the industrialised North would generate more than $5billion from medic-inal plants alone. (UNDP, 2001)
2.3 ACCESS TO PLANT GENETIC RESOURCES UNDER PATENT LAWS
From 1990–95 the number of biotechnology patents granted globally was 25,000, whichaccounted for 1% of the total patents granted worldwide; 37% of those biotechnologypatents emanated from the United States, another 37% came from Japan, whilst 19% origi-nated in the EU. Developing countries accounted for less than 2.6% of all patents. Thisfigure is ‘one indicator of the dramatic North–South asymmetry existing with regard to theinnovative capabilities in modern biotechnology’. (Correa, 2000: 174)
The granting of a patent entails a prohibition (ius excluendi
) of the use of patented materialin the countries where the rights have been recognised. Given the territoriality of patentrights, the title holder cannot exercise his/her rights outside the jurisdiction where thepatent has been registered. But he/she can prevent the importation of products made else-where containing the invention. (Correa, 2000: 176)
The ability of patent holders to prevent the importation of products containing the inven-tion that have been made elsewhere is one of the primary concerns of Indian cotton pro-ducers given the patent on all transgenic cotton taken out by the US agri-chemical corpo-ration Agracetus. Farmers in the Andean region have also expressed grave concerns regard-ing the patent taken out by Colorado State University on quinoa. Up to the ruling in August2001 by the United States Patents and Trademark Office (USPTO) regarding the patentingof basmati rice by the Houston-based corporation RiceTec, it seemed possible that basmati-rice farmers in sub-Himalayan India and Pakistan would have to pay royalties on theirproduce.
Peter Day, the director of the AgriBiotech Centre of the State University of New Jersey,writes that, ‘in theory, the patent system is supposed to make material available for furtherresearch by protecting the interests of the patent holder. In practice, the patent holder canfind many ways to block distribution of the patented material and to limit the uses made ofit’. (Day, 1995: 83, quoted in Correa, 2000: 173)
2.4 CONCEPT OF ‘OWNERSHIP’ OF RESOURCES
If countries claim ‘ownership’ of genetic resources and biodiversity as is feasible underArticle 15 of the United Nations Convention on Biological Diversity and in the 2001International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) butnot in the TRIPs Agreement, numerous difficulties will arise. For example, a new plant
10 | Implications of TRIPs for Food Security in the Majority World
variety may be the product of centuries of breeding and cross-breeding which in themselvesare products of selection and breeding by farmers in many parts of the world. Carlos Correawrote that ‘in every country, most of the germplasm used in agriculture comes from othercountries and it is often very difficult or extremely costly, and sometimes practically impos-sible, to determine the country of origin’. (Correa, 2000: 168)
Table 1, which shows the sources of plant-derived calories in Brazil, demonstrates oneexample of how plant genetic resources which are deemed indigenous to a single country orparticular area may in fact have their origins in a different part of the world. The banana,for example, which is a major cash crop in South and Central America, originated in south-east Asia. Wheat originated as a crop in the near east but the specific genes which inspiredthe semi-dwarf wheats made famous by the Green Revolution came from Japan via the USand Mexico. (Crucible Group, 1994)
Table 1: INTERDEPENDENCY OF PLANT GENETIC RESOURCES
Share of Plant-derived Calories (%)
Sources: Crucible Group, United Nations Food and Agricultural Organisation (FAO), 1994
Dutfield suggests that there is ‘strong evidence that if a developing country establishes astrong regulatory regime for access to crop germplasm, industrialised-world crop breederswould be affected far less than breeders in the South that might wish to exchangegermplasm with countries sharing the same agro-climatic conditions’. (Dutfield, 1999: 5)
The importance of conserving and using in a sustainable manner the world’s plant geneticresources for food and agriculture – given that the development and sustainability of agri-culture are highly dependent on access to PGRs – is ‘broadly recognised today’. (Correa,2000: 167) In order to prevent the calamity of genetic erosion and to engender more sus-tainable methods of agriculture the FAO Commission on Genetic Resources for Food andAgriculture recognised a number of key areas where urgent action is required.
One of these areas is farm conservation. Farmers not only use seeds. Their role is vital in theprocess of conserving and improving plant varieties. By their activities farmers ensure theevolution of crops. It is through this process of evolution that new varieties are createdthrough ‘genetic recombination, mutation and hybridisation within and between cultivatedand wild plant populations’. (Correa, 2000: 167) The contribution by farmers to the evolu-tion and creation of new varieties and the maintenance of plant varieties has been recognised
Cost of Intellectual Piracy | 11
in the 1983 International Undertaking on Plant Genetic Resources (IU).
The Convention on Biological Diversity (CBD) has stressed the importance of in situ
con-servation. The convention also created rules regarding access to PGRFA and on benefitsharing, in the context of states’ sovereignty over such resources. It also outlines what isrequired of the Conference of the Parties (COP) to the CBD in regard to intellectualproperty rights.
12 | Implications of TRIPs for Food Security in the Majority World
THE FAO’S INTERNATIONAL UNDERTAKING (IU) /
FARMERS’ RIGHTS DEFINED
3.1 THE INTERNATIONAL UNDERTAKING ON PLANT GENETIC RESOURCES (IU)
Fears regarding the intellectual piracy of genetic resources in developing countries werefirst voiced in a public forum at the 1983 twenty-second session of the Food and AgriculturalOrganisation (FAO). That meeting adopted the International Undertaking for Plant GeneticResources (IU) which recognised free access to all plant genetic resources, ‘based on theuniversally accepted principle that plant genetic resources are a heritage of mankind andconsequently should be available without restriction’. (FAO, 1987)
The lifespan of the 1983 IU in its original form proved to be limited. At the March 1987meeting of the FAO Commission on Plant Genetics several industrial countries objected tothe IU arguing that genetically modified materials did not constitute part of the ‘commonheritage of mankind’ and that ‘certain benefits derived from that heritage were consideredthe fruits of free enterprise’. (Nijar and Ling, 1994: 279) As a result of this pressure and asa consequence of the slow progress under the original text, an agreed interpretation of the1983 IU was accepted. According to this ‘interpretation’, plant-variety rights were excludedfrom the common-heritage concept. The ‘interpretation’ allows corporations in industri-alised countries to patent modified materials and categorise them as new varieties.
Article 5 of the IU that was adopted in 1983 states:
It will be the policy of adhering Governments and institutions having plant genetic
resources under their control to allow access to samples of such resources, and to
permit their export, where the resources have been requested for the purposes of
scientific research, plant breeding or genetic resources conservation. The samples
will be made available free of charge, on the basis of mutual exchange or on
However, when this declaration was made the model of PBRs (Plant Breeders’ Rights)used at the time – that is, the 1978 UPOV Convention – clearly stated that the use ofprotected varieties as the source material for further variations and the reuse of savedseeds by farmers was permitted. Since then the 1991 UPOV Convention, in tandem withthe growth of patents on plant materials, including genes, has altered the legal frame-work ‘in which on-farm conservation and germplasm exchange are to take place’.
(Correa, 2000: 168)
3.2 FARMERS’ RIGHTS DEFINED
Therefore, while UPOV 1991 is fastidious in the protection given to the commercial
breeding sector, it virtually ignores the rights of farmers who not only use seeds but also are‘key players in the conservation and improvement of plant varieties’. (Correa, 2000: 167)The implications for food security in many developing countries of this omission of farmers’rights could be grave.
Farmers’ rights as a concept was defined by the FAO conference Resolution 5/89 (twenty-fifth session of the FAO Conference, Rome, 11–29 September 1989) as ‘rights arising fromthe past, present, and future contributions of farmers in conserving, improving, and makingavailable plant genetic resources, particularly those in the centres of origin/diversity. Theserights are vested in the International Community, as trustees for present and future gener-ations of farmers, for the purpose of ensuring full benefits to farmers, and supporting thecontinuations of their contributions, as well as the attainment of the overall purposes of theInternational Undertaking’. (Quoted in Tansey, 1999)
The 2001 International Treaty on Plant Genetic Resources for Food and Agriculture(ITPGRFA) leaves it at the discretion of national governments to implement farmers’ rights.
Protecting farmers’ rights is essential to maintaining diversity within the food chain as it isthe ingenuity of farmers which has created and maintained biodiversity for millennia.
N.B. The concept of farmers being allowed to save, use and exchange seeds is not acknow-ledged in the TRIPs Agreement.
14 | Implications of TRIPs for Food Security in the Majority World
BIOPIRACY – NATURE’S GIFT OR SCIENCE’S
4.1 INVENTIONS OR DISCOVERIES?
The WTO states that ‘for something to be patentable it has to be an invention … the scopeof the patent right only extends to the invention and not to any underlying genetic material’.
(WTO: 2000: 34) TRIPs has provoked debate regarding the definition of what constitutes an‘invention’ in certain cases. Some commentators, such as Martin Khor, director of ThirdWorld Network, have argued that certain life forms which have been patented are not inven-tions but rather are discoveries in nature. Speaking at the 2002 United Nations WorldSummit on Sustainable Development in Johannesburg, Khor stated that although thepatenting of life forms is a relatively new phenomenon, its incidence has grown rapidly inrecent years, particularly since the introduction of the TRIPs Agreement.
The phenomenon that has been dubbed ‘biopiracy’ involves claiming ownership of biodiver-sity, much of which emanates in the developing world. The Indian environmentalist VandanaShiva has defined biopiracy as ‘the use of intellectual property systems to legitimise the exclu-sive ownership and control over biological resources and biological products and processesthat have been used over centuries in non-industrialised cultures’. (Shiva, 2001: 49) Shivaalso states that patent claims over biodiversity and indigenous knowledge that are based oninnovation, creativity and the genius of people in the Third World are acts of biopiracy.
Concern has been growing among governments and NGOs regarding the extent to whichintellectual property rights ‘may jeopardise the exercise of sovereign rights over biodiversityand endanger the implementation of a balanced multilateral system based on a principle ofshared access’. (Correa, 2000: 170) This concern has been exacerbated by the proliferationof patents granted on genetic resources in developing countries. Patents have been grantedon natural products such as quinoa, the neem tree, ayachusca, turmeric, barbasco, kava andendod.
Some of the patents which have been granted are wide-ranging and could limit access to alarge area of germplasm. For example, the patent taken out by Agracetus refers to allgenetic modifications of cotton regardless of the germplasm in use. Another patent grantedto Plant Genetic Systems covers the introduction of Bt into a vast range of field crops; whilethe patent obtained by Lubrizol covers sunflower seed with a high oleic-acid and a lowlinoeic-acid content.
Patents have been taken out on materials held in trust in gene-banks at various ConsultativeGroup on International Agricultural Research (CGIAR) centres. CGIAR holds 40% of the
world’s plant genetic resources in its various ex situ
gene banks. The practice of patentingmaterial from these gene banks has led to CGIAR calling for a moratorium on the grantingof intellectual property rights (IPRs) on designated germplasm held in their centres. Thestated aim of CGIAR is that such germplasm is held in trust for the global community andshould not be subject to private rights via IPRs by those institutions, companies and indi-viduals that have appropriated the material. CGIAR’s stated policy is that IPRs may not betaken out on any of their material ‘in the form received’, a phrasing that has been exploitedby other centres of research. For example, Genetic Resources Action International (GRAIN)has outlined instances where institutions have ‘borrowed’ material from CGIAR’s genebanks, ostensibly for the purposes of research, carried out minor modifications on thematerial and claimed a patent on it.
The notion of patents on life forms such as plants and animals highlights many ethical issueswhich, according to some commentators, ‘should be a sufficient basis to prevent any privateparty from obtaining exclusive rights on such materials’. (Correa, 2000: 173) Oxfam, in itspamphlet Cut the Cost: Patent Injustice: How World Trade Rules Threaten the Health of PoorPeople
(2000), stated that the WTO should amend its rules to help prevent biopiracy. Thefirst thing the WTO should do, writes Oxfam, is to harmonise the TRIPs regime with theConvention on Biodiversity. Patent holders would be obliged to disclose the origin of the bio-logical materials used in their ‘inventions’. Patent holders would also have to demonstratethat they received the ‘prior informed consent’ of the original holders of the knowledge usedto develop their products.
4.3 WHY CAN ‘PIRATES’ OPERATE LEGALLY? ‘PRIOR ART’ AS A CONCEPT
Proponents of the TRIPs Agreement maintain that its existence will lead to greater tech-nology transfer from industrialised countries to poorer ones. This is because companies andorganisations will be able to invest in countries in the secure knowledge that their innova-tions are being protected by domestic patent law.
Historically, countries which were not technologically advanced ‘borrowed’ technology for aperiod of time from more technologically proficient countries. The countries which laggedbehind in technology would then provide monopoly or exclusive rights to the person intro-ducing the technology. For example, in the fourteenth century England was deficient in theproduction of technology compared to its European counterparts. Skilled artisans wereencouraged to practice their craft in England and to teach apprentices their skills. Inreturn, the artisans were granted patents on their works which gave them monopoly rightsover their skills while they were being introduced. It was estimated that a skill took sevenyears to teach. As a result, artisans were given patents of either seven or fourteen years ontheir respective crafts as an incentive to impart their gifts to apprentices.
However, the United States was the first nation state to enact a different type of patent law,one where skills or innovations introduced into the US could be treated as ‘presumed to beunknown’. Patents were granted in the US on innovations that had been known elsewhere.
However, under the Connecticut law, invention was treated as ‘bringing in the supply of
16 | Implications of TRIPs for Food Security in the Majority World
goods from foreign parts, that is not yet of use among us’. This allowed, for example, JohnFitch to be given a patent in the state of Pennsylvania from 1787 which accorded him ‘soleand exclusive right and privilege of constructing, making, using, employing and navigatingall and every species or kinds of boats or water crafts’ in the state for a period of fourteenyears. This despite the fact that James Watt had not only invented the steam engine butpatented it in Scotland in 1772. Fitch was given his patent because Watt’s steam engine hadnot been patented in the US but also because the latter’s invention was ‘presumed to beunknown’ under the law of Pennsylvania. Watt’s steam engine was not considered ‘prior art’in the US. ‘Ignorance of assumption’, therefore, was enshrined in the US Constitution. Thisdenial of ‘prior art’ was reinforced in the Constitution in 1952 under Section 201 of theUnited States Patent Act which refers to ‘use in the US’ as prior art – not, it must be under-lined, in other countries.
This Constitutionally enshrined principle of the denial of ‘prior art’ outside the boundariesof the US allows for the proliferation of biopiracy, as US ‘innovators’ can claim that igno-rance of a product within the US allows for its patenting under the Constitution. At thebeginning of the twenty-first century it is not uncommon to read an assertion such as‘patents have become the most important asset of the US and a growing component ofexports’. (Shiva, 2001: 19)
4.4 SADC (SOUTH AFRICAN DEVELOPMENT COMMUNITY) STATEMENT, MARCH 1999
The organisation Genetic Resources Action International (GRAIN) has argued that TRIPs isthe first international treaty to make the privatisation of biodiversity compulsory – and todo so as a principle of international trade. (GRAIN, 2001) Christopher May writes that underthe TRIPs Agreement when bio-prospecting companies ‘discover’ new natural compounds orplant varieties, these ‘newly discovered’ bio-resources can be appropriated and removedfrom the public realm by patenting. This appropriation is likely to be geographic as well aseconomic as the biotechnology industry is centralised in developed states. (May, 2000) Theire of several developing countries at the ‘privatisation of biodiversity’ was exemplified bythe Southern African Development Community (SADC) workshop on TRIPs in March 1999whose summation stated:
The problem with TRIPs is that the only inventions it recognises are those that
meet the criteria of novelty, inventiveness, and industrial applicability or usefulness
… This system of rights denies property rights to local and indigenous knowledge,
practice and innovations. TRIPs only recognises as worthy of protection inventions
that conform to the northern definition … Rights are recognised only when they
generate profits and are capable of industrial applications … Local people end up
being exploited and made even poorer by developed countries because their know-
ledge is accessed freely, then ‘treated’ in laboratories in the north, and ownership
rights claimed through patents. Royalties are then paid to new owners by those who
make use of their patented products. (Quoted in Joseph, 1999: 50–1)
A year later a coalition of civil-society organisations from India and the US (but curiously
not the Indian government) challenged the ruling by the US Rice Federation allowing ricegrown in the US to be advertised using the word ‘basmati’. As a result of such pressure, the‘Battle for Basmati’ was won by the civil-society groups on 14 August 2001 when the USPTO(United States Patent and Trademark Office) refuted RiceTec’s claims to fifteen of thetwenty patents it had been granted four years earlier.
Table 2: SELECTED EXAMPLES OF BIOPIRACY
A plant of the ginger family, turmeric contains properties which make it
an effective ingredient in medicines, especially those used to heal woundsand rashes.
In 1995, two Indian nationals at the University of Mississippi MedicalCentre were granted a patent on the use of turmeric in wound healing.
A tree from India and south-east Asia, neem is now planted across the
tropics because of its medicinal properties. In 1994 the European PatentOffice granted the US corporation W.R. Grace a patent on neem as a‘method for controlling fungi on plants by aid of a hydrophobic extractedneem oil’.
A plant traditionally used by the San bushmen of the Kalahari Desert to
stave off hunger and thirst on their long hunting trips, hoodia waslicensed by the South African Council for Scientific and IndustrialResearch as the drug P57 by the pharmaceutical company Phytopharm in1997.
Traditionally used by shamans in the Amazon Basin to diagnose and treat
illnesses, a patent on a variety of ayahuasca was granted to an Americancitizen, Loren Miller, in June 1986.
In 1997, the Houston-based firm RiceTec was given a patent on twenty
varieties of basmati rice, a type of rice that is grown predominantly in thePunjab provinces of India and Pakistan. RiceTec claimed that ‘basmati’ isa generic term and should not apply solely to rice grown in the Punjab.
18 | Implications of TRIPs for Food Security in the Majority World
TRIPS ARTICLE 27.3(B) / PLANT VARIETY PROTECTION
5.1 THE ‘NORTH–SOUTH DIVIDE’
Article 27.3(b) of the TRIPs Agreement requires WTO members to protect plant varieties,either through a sui generis
(of its own kind) regime such as plant breeders’ rights (PBRs)or through patents or a combination of both. The article states that member states of theWTO may exclude from patentability:
Plants and animals other than microorganisms, and essentially biological processes
for the production of plants or animals other than non-biological and microbiolog-
ical processes. However, Members shall provide for the protection of plant varieties
either by patents or by an effective sui generis
system or by any combination
thereof. The provisions of this subparagraph shall be reviewed four years after the
date of entry into force of the WTO Agreement. (Quoted in Tansey, 1999: 6)
The TRIPs Agreement will initiate a global system of patent protection for micro-organismsand microbiological process. Heretofore, many developing countries eschewed patent pro-tection, particularly for life forms. Implementation of the TRIPs Agreement, therefore, hashad and will continue to have, far-reaching implications for the developing world in thesphere of biodiversity. (Dean, 2001) Under TRIPs, the owner of a patented product canprevent a third party from ‘making, using, offering for sale or importing it without theirconsent’. (CIDSE, 1999: 6) Article 27.3(b) has been under review since 1999, but the con-trasting positions taken on it by developed and poorer countries led one commentator toassert that ‘TRIPs has already sparked a clear North/South divide’. (Action Aid, 1999: 2)
5.2 AFRICA GROUP AND 27.3(b)
In August 1999 Kenya, speaking on behalf of the Africa Group, proposed that the reviewprocess for Article 27.3(b) of TRIPs should stipulate that plants and animals along with allother living organisms and their parts cannot be patented. The Africa Group insisted thatthose natural processes which produce plants, animals and other living organisms shouldnot be liable to patenting and that Article 27.3(b) of TRIPs violated a basic tenet of patentlaw, namely that substances and processes in nature are not ‘inventions’ per se but ‘discov-eries’. Kenya argued that micro-organisms, being natural living things and microbiologicalprocess being natural processes, are not inventions but life forms, and therefore ‘discover-ies in nature’. (CIDSE, 2000: 26)
5.3 PATENTING A PROCESS IN ARTICLE 27.3(b)
With regard to the patenting of a process used to produce a plant, provision for which ismade in Article 27.3(b) of TRIPs, an owner of that patent is entitled to exclusive rights over
the plants obtained using that process. Farmers, for example, may not be allowed to use anyseeds emanating from a plant derived using a patented process. One of the peculiar facetsof the TRIPs Agreement is that the burden of proof in a dispute over patented processes isshifted to the defendant who must prove that a product has not been produced by thepatented process. This is an aspect of the agreement that is ‘in contrast with normal legalpractice’. (CIDSE, 1999: 13) Also, if a process used to produce a plant is patented, then thepatent holder has exclusive intellectual property rights to any future plants obtained withthat process. (Correa, 2000)
5.4 WHAT IS A ‘DISTINCT, UNIFORM AND STABLE’ VARIETY?
While Article 27.3(b) of TRIPs allows WTO member states to exempt plants and animalsfrom patenting, it nevertheless obliges signatories to provide for the protection of new plantvarieties. A variety is considered distinct if it is distinguishable in one or more importantcharacteristics from any other plant variety; uniform if it is ‘sufficiently uniform in itsrelevant characteristics with variation as limited as necessary to permit accurate descriptionand assessment of distinctness and to ensure stability’; and stable if ‘the relevant charac-teristics remain unchanged after repeated propagation’. (Tansey, 1999: 10)
5.5 PLANT VARIETY PROTECTION (PVP)
Plant variety protection (PVP) can only be accorded when a new variety fulfils these criteria.
One of the possible problems to be encountered is that where a farmer, in experimentation,uses a variety that has been protected, the onus is on that farmer to prove that the genotypeof the variety they have bred – that is, the genetic or factorial constitution of that variety –is significantly different from the original plant. If not, the new variety may be classified as‘essentially derived’ from the protected variety. Under the UPOV Convention of 1991, thefarmer’s new variety may not be grown or sold without the permission of the licence holder.
(Oram, 1999) The Africa Group has stated that the difficulty with these criteria of distinct-ness, stability and uniformity is that they are seen to favour the production and use of genet-ically uniform crops. (Correa, 2000) A preliminary study in the US demonstrated that PVPled not only to a decline in plant-breeding creativity, but also to higher seed prices forfarmers, a decrease in public investment with regard to plant breeding and a reduction inthe information flow from the private to public sector. (UNDP, 2003)
5.6 COST OF SECURING A PATENT
The cost of obtaining a patent can prove quite exorbitant and beyond the means of manyorganisations in the developing world. For example, in the early 1990s the preparation of apatent application in the United States cost around $20,000. A patent application in the EUcould cost up to $40,000. As patent applicants must apply for a patent in every country wherethey want them, pay an annual fee in order to maintain the patent and pay the costs of patentagents, the costs of filing patents can fluctuate wildly. Of the thirty-two countries surveyed byJohn H. Barton in the early 1990s the costs of filing patents fluctuated from $355 to $4,772.
For biotechnology firms in the vanguard of research, ‘establishing who has what rights of own-ership over new processes and plant varieties is also a costly business as firms engage in liti-gation to determine who has what rights and to secure their markets’. (Tansey, 1999: 12)
20 | Implications of TRIPs for Food Security in the Majority World
TRIPS AND BIOTECHNOLOGY / GMOS
6.1 BIOTECHNOLOGY: THE BACKGROUND
Genetic modification of plants and animals through domestication and controlled breeding inorder to produce a wide range of varieties and breeds suitable for differing climatic conditionshad been taking place with little or no debate for ‘roughly 10,000 years’. (Paarlberg, 2000: 25)However, the advent in the early 1970s of genetic engineering – where genes can be isolatedfrom an organism, manipulated in a laboratory and inserted stably into another organism –created unprecedented controversy in the field. The landmark case that changed the course ofpatenting history and set the precedent for the patenting of life forms was filed in 1971 by theGeneral Electric Company and Anada Chakrabarty. The case was concluded in 1980 when theUS Supreme Court ruled that a genetically modified oil-eating micro-organism could bepatented. (Joseph, 1999: 47) The Chakrabarty case established the principle that the relevantdistinction was not between living and inanimate things but whether living products could beseen as man-made inventions. (CIDSE, 1999: 16) In 1985 the US Patent and Trademark Officepermitted the patenting of genetically modified seeds, plants and plant tissue.
One of the principal objections to Article 27.3(b) of the TRIPs Agreement is that the patent-ing of genetic resources, particularly those used in GMOs, will lead to the replacement oflocal and traditional varieties of crops by high-tech seeds and the spread of mono-croppingin agriculture. The UNDP states that ‘genetic modifications increase gene uniformity andthis can affect biodiversity in the long run’. (UNDP, 2003: 217) The erosion of genetic diver-sity is a phenomenon that prevailed after high-yielding varieties (HYVs) of crops were intro-duced during the Green Revolution of the 1960s and ’70s. (Shiva, 1993)
Furthermore, most GM crops are geared towards intensive agriculture unsuited to the diver-sified farming systems practised by millions of resource-poor cultivators. Like the hybridvarieties pioneered at the international crop research centres during the 1960s, GM cropsgenerally require intensive farming methods, necessitating a departure from traditionaltechniques such as multiple cropping, intercropping, and nutrient recycling. This trend willfurther disempower and marginalise farmers in the local and national food-productionprocess. (CIPR, 2002) The plant-protection systems initiated under TRIPs are also likely toencourage the spread of genetically modified crops, putting a premium on food reproduc-tion through biotech methods. This might mean that varieties traditionally grown in devel-oping countries may be genetically changed, and that these new varieties will end up sub-stituting the plants from which they were derived. (Oram, 1999)
6.2 DEVELOPMENT OF BIOTECHNOLOGY
The rapid development of biotechnology, particularly in the countries of the OECD, and its
application in agriculture acted as an incentive for the creation of a global system of patentprotection. (Tansey, 1999) The unlocking of DNA sequences has created unparalleled oppor-tunities for advances in medical research, industry and agriculture. One writer has statedthat genetic engineering had, for the pharmaceutical, chemical and plant-breeding indus-tries, ‘opened up a biological Eden filled with overwhelming temptation’. (Drahos andBraithwaite, 2002: 156)
If advances in biotechnology, particularly the power to read and change gene sequences, areused wisely they could ‘bring great benefits to humanity … but they also pose threats’.
(Oxfam, 2002: 219) Some commentators who have cast a sceptical eye over the ‘gene revo-lution’ have asserted that powerful transnational corporations ‘wish to own the geneticmaterial they have obtained where the function or application of this genetic materialamounts to new knowledge’. (Biggs, 1998: 133)
Pressure applied by multinational corporations to increase patent protection has grown withthe development of the biotechnology industry. The industry has sought to recoup itsoutlays on research and development by the introduction of more stringent patent policiesfor their genetically modified seed varieties. The UN FAO also maintains that as developingcountries increase investment in their own plant-breeding industries their views will alter.
‘In areas with good access to urban markets, even small-scale farmers may see a shift tomodern hybrids as an attractive option because of their high-yield potential. In this caseprivate sector companies are the main seed suppliers’. (FAO, 2001: 37)
During the Uruguay Round of trade talks plant-breeding companies wanted a watertightintellectual property protection regime because many of them found that certain varietiesof their plants were being replanted or sold in countries with very weak or non-existentpatent regimes. The world’s biological and genetic materials provide the bulk of theresources used in both the biotechnology and plant-breeding industries. However, thesesame materials are also the basis upon which up to 1.4 billion people are dependent for theirlivelihoods and food security. The anthropologist Stephen Brush writes that ‘plant geneticresources provide the foundation of all food production, the key to feeding unprecedentednumbers of people in times of climate and other environmental change’. (Brush, 1994: 35)
Before commercial plant breeding became a lucrative trade, intellectual property rightswere rarely invoked by producers. Since 1973, however, a gradual sea change in the patent-ing of biodiversity has evolved into a veritable flood of ‘innovators’ claiming that discoveriesin nature can be categorised as ‘inventions’ and therefore liable to patenting. Heretofore,most innovations in the area of agriculture came about as a result of farmers sharing seedsfreely and interbreeding animals ‘to produce a wide range of varieties and breeds suitablefor differing climatic conditions’. (Ibid.: 54) With the advent of modern biotechnology, fearsabound that TRIPs will be invoked by corporations as a means of patenting genetic materialthat originates in the developing world and not sharing the benefits, as they are required todo under the 1992 Convention on Biological Diversity. Moreover, as intellectual propertyprotection for plant varieties is reinforced and extended under TRIPs, foreign companies
22 | Implications of TRIPs for Food Security in the Majority World
may become the ‘owners’ of varieties originating in developing countries. (Stilwell, 2000)According to MASIPAG, the farmer-led, community-managed breeding-and-conservation col-lective in the Philippines, ‘developing countries are currently demanding that implementa-tion of TRIPs be deferred until its impact on biodiversity is clearly understood and madesubject to the Convention on Biodiversity’. (GRAIN, 1998: 2)
The United Nations Food and Agricultural Organisation (FAO) stated in September 1998that ‘any region in the world is dependent on genetic material which originated in otherregions for over 50% of its basic food production, and, for several regions of the world, suchdependency is close to 100%’. (Quoted in Tansey, 1999: 15) According to the FAO, onlytwenty cultivated crops sustain 90% of all calorie requirements. All twenty of these cropsoriginate in developing countries, and while all are highly vulnerable to pests and diseases,they all depend on the maintenance of genetic diversity for their continued survival.
(Crucible Group, 1994) The protection of plant varieties is an issue that is ‘central to theworld’s food supply’. (UNDP, 2003: 216) Plant varieties refer to plants that have beenimproved by breeding techniques in order to make them distinct, stable and uniform.
Inherent in plant breeding is the possibility of increased yields for farmers and the genera-tion of seed varieties with greater resistance to drought, pests and diseases.
One commentator asserts that ‘the big transnational corporations which have developed thenew biotechnologies are also likely to have a very influential effect on global consumptionand production in the area of agribusiness’. (Biggs, 1998: 131) In the United States geneticengineering is being developed to cut costs in the food industry through the substitution ofnatural products by similar genetically engineered or wholly synthetic ones. The US’ tradestrategy saw the amount of sugar imports from the Caribbean decline by over $400millionbetween 1981 and 1984 and those from the Philippines fall by over $600million between1980 and 1987 ‘as a result of the development of genetically engineered sweeteners frommaize grown in the North’. (Ibid.) If attempts to genetically engineer cocoa, palm oil andvanilla succeed then farmers in Ghana, Cameroon, Ivory Coast and Zanzibar could find theirlivelihoods under serious threat. Biggs further cautions that some transnational corpora-tions could soon become universal food producers as they are moving towards selectingrelevant genetic material which can be used on very basic materials to turn them into food.
The total substitution of one crop for another could be a distinct possibility and farmers inthe developing world are likely to be severely hit by these substitution processes. (Biggs,1998)
While proponents of biotechnology such as the Biotechnology Industry Organisation seeagricultural biotechnology as a tool to help solve problems of hunger and excessive pesticideuse, critics of the technology have stated that plant biotechnology is ‘not needed, will be badfor consumers’ health, will impoverish small farmers … and will increase pesticide use andreduce biodiversity’. (Pray et al., 2001: 3) Oxfam stated that although the share of trans-genic crops grown in the developing world has increased from 14% in 1997 to almost 25%in 2000, coverage is almost exclusively confined to ‘a small number of relatively prosperous,export-oriented countries – and a small number of commercial crops’. (Oxfam, 2002: 223)
TRIPs and Biotechnology / GMOs |
While the dominant transgenic crops grown in the developing world continue to be herbi-cide-resistant soybeans and maize, those staple foods such as sorghum, cassava and otherroot crops are rarely grown. Very few of the newly engineered seeds on the market or in pro-duction ‘are designed to meet the needs of the rural poor or to enhance the productivity ofsmallholder families’. (Ibid.)
Oram (1999) writes that ‘rather than focussing on improving yields in marginal lands, nearlyall research into GM crops is going into improving food-processing qualities, transport dura-bility, appearance and shelf-life – traits favouring sales in Northern niche markets ratherthan meeting food needs in the South’. (Oram, 1999) GM crops are essentially gearedtowards intensive agriculture and, as such, require intensive farming methods to cultivatethem. According to the Indian activist, Devindar Sharma, the patenting of crops derived bygenetic modification is deemed fundamental to the existence of the biotechnology industry.
‘Patents provide monopoly domination not only through technological supremacy but alsoby extending control over the biological wealth and the traditional knowledge of the gene-rich developing countries’. (Sharma, 1999: 10) As patents that are issued in Europe andAmerica grant effective control over the potential economic value of genetic resourcesderived from any
country, ‘they create an incentive for firms to acquire genetic materialsfrom any source for the development of profitable new drugs, seeds or other products’.
(Oxfam, 2002: 220)
The TRIPs Agreement makes no provision to recognise the ‘intellectual contribution madeby communities over time’ (May, 2000: 104) to the conservation and creation of biodiver-sity. While provision is made in the agreement for certain farmers’ privileges such as the self-seeding and natural reproduction of seeds, ‘these are not rights that allow resale or alien-ation of such products where they run parallel to products that are protected as intellectualproperty’. (May, 2000: 104) The Indian seed market is one where the imposition of IPRs onvarieties would significantly change the nature of the market given that 70% of seed supplyin India comes from farmers’ sale of their reproduced seed. (May, 2000)
6.3 BENEFITS OF GMOs?
Paarlberg writes that ‘the GM crop revolution will have life-changing – and even life-saving –implications in developing countries’. (Paarlberg, 2000: 30) He maintains that agriculturein the tropics is lagging, in part due to poor soil, extremes of moisture, heat, and drought,as well as ‘a plenitude of pests and diseases that attack animals and crops’. (Ibid.) Some ofthe GM technologies that were developed for growth in temperate climates, such as Btmaize and cotton, could quite readily be adapted for planting in the tropics by transferringthe desirable GM traits into indigenously grown crops through conventional plant breeding.
However, Paarlberg thinks that this is unlikely to happen in areas where farmers are poor, asthe incentive for private corporations to invest in such regions is extremely limited. Hestates that corporations ‘may seek to block local adaptations if poor countries are notwilling to protect corporate intellectual property rights’. (Paarlberg, 2000: 34) Hundreds ofcases have already been pursued by corporations against what is claimed to be the illegal useof their genetically modified products by farmers in Canada and the US. (Monbiot, 2002)
24 | Implications of TRIPs for Food Security in the Majority World
Oxfam, in its report on world trade, stated that the use of genetically modified crops mightbe of benefit to developing countries in certain cases. The report cited the use of Bt maizeor Bt cotton, which is now grown in at least five developing countries. Bt (Bacillusthuringiensis
) is a gene that is toxic to some insects and thus represents an invaluable meansof protecting a farmer’s harvest. A study of 283 cotton farmers in northern China duringDecember 1999, for example, showed how farmers using cotton seeds modified by theimplant of the Bt toxin were able to control the cotton bollworm, a menace that had becomeevermore resistant to chemical controls. (Oxfam, 2002) Farmers also reduced their relianceupon pesticides substantially without reducing the output and/or the quality of cotton.
According to the authors of the report, weak intellectual property rights protection resultedin little benefit to the government research institutes or foreign firms that developed the Btvarieties. (Pray et al., 2001)
Paarlberg asserts that intellectual property rights protection for GM crops in developingcountries tends to be too weak rather than too strong, and that while the TRIPs Agreementrequires all WTO members to provide IPR protection for plant varieties, many developingcountries ‘will try to satisfy TRIPs without giving up traditional privileges of farmers to repli-cate and replant protected seeds on their farms’. (Paarlberg, 2000: 34) Other proponents ofpatents on life forms state that IPRs will stimulate innovation because patents will rewardinvestment in research and development. The negative impact of patents would be negatedby the benefits that would be derived from new and improved varieties.
6.4 TECHNOLOGY TRANSFER: TRIPs IN AN UNEQUAL WORLD
The TRIPs Agreement is likely to reinforce, or even exacerbate, the chasm between the devel-oped and developing worlds in the global-knowledge economy. The payment of royalties andlicence fees for the use of technology has been growing rapidly since the 1980s. Accordingto a United Nations report, the amount paid by developing countries in licence paymentsthat were linked to the transfer of technology in 1998 was almost $15billion – seven timesthe figure that prevailed in the mid-1980s.
One simulation study undertaken by the World Bank shows how the six major industrialisedcountries would benefit from the implementation of the TRIPs Agreement by over$40billion, with the US alone benefiting by more than $20billion. The study showed thatunder the TRIPs Agreement, India will pay $1billion more in licence payments to industri-alised countries, Mexico will see its bill increase by $2billion, while China will be forced topay up to $5billion more in technology transfer payments.
A World Bank study in 2001 of twenty-six developed countries estimated that TRIPs will leadto rent transfers to nine of them (of which Ireland is one) of $41billion. These transfers areas a result of what the bank sees as the unequal distribution of technology and technologi-cal capacity and they will further raise the cost of implementing the TRIPs Agreement ‘forcountries with already scarce resources’. (UNDP, 2003: 207) It can be assumed that some ofthis technology transfer will be in the area of agricultural biotechnology as countries areforced to pay royalties for the use of genetically modified seeds and plant varieties.
TRIPs and Biotechnology / GMOs |
GENETIC DIVERSITY ERODED
7.1 THE GREEN REVOLUTION REVISITED
Despite the greatly increased yields, especially in rice and wheat, that were synonymous withthe Green Revolution, dependency on HYVs (high-yielding varieties) and the inputs thataccompanied them became so great in some countries that by the early 1990s a mere fiveof the supposed ‘super varieties’ of staple crops accounted for 90% of the rice-growing areasof both peninsular Malaysia and Pakistan, nearly half the rice lands of Thailand and Burma,and approximately a quarter of the rice area of China and Indonesia. (GRAIN, 2001(b)) Asa consequence of such dependency, Asia lost much of its crop diversity.
In the Indian state of Andhra Pradesh, for example, implementation of the principles of theGreen Revolution led to a loss of up to 95% of traditional rice varieties without their col-lection or documentation. (Ibid.) At the end of the twentieth century, 75% of India’s riceproduction came from a mere ten varieties, whereas India was once home to 30,000 varietiesof rice. (Joseph, 1999) Likewise in China, at the time of the communist revolution in 1949,there were 10,000 different varieties of wheat in use; by the 1970s only 1,000 of those vari-eties were still planted. In the United States, approximately 97% of the food-plant varietiesthat were available to farmers in the 1940s are today no longer in use. (Ibid.)
Some of the cross-pollinated seeds used in the Green Revolution were often less resistant todiseases than some of the traditional seeds. In addition to this, the planting of only onevariety of a plant – known as ‘monoculture’ – created what Seitz terms ‘an ideal conditionfor the rapid spreading of disease or for the rapid multiplying of insects that feed on thatplant’. (Seitz, 1988: 63) The new seeds used in the Green Revolution were also less tolerantof too much or too little water meaning that droughts and floods ‘have a more harmfulimpact on these plants that on the traditional varieties of the grains’. (Seitz, 1988: 63)
The Green Revolution facilitated the creation of a private seed industry, a process that wasaccelerated in the 1980s when the World Bank combined with private interests within theUnited States to create first-generation (F1) hybrids that are produced by cross-pollinatingtwo compatible parent plants. These F1 hybrids initially provided higher yields to farmersbut they lose this advantage in later generations, meaning that farmers are compelled topurchase new seeds before each planting. Nevertheless, the market for hybrid plants is bour-geoning over Asia: in the Philippines, the area of yellow corn planted to hybrid varietiesincreased from 10% in 1991 to 70% six years later. (GRAIN, 2001) For corporations such asMonsanto the hybridisation of new crops is worth between $1billion and $2billion per year.
7.2 MONO-CROPPING IN AGRICULTURE
The most obvious danger of mono-cropping is that the practice can be catastrophic if thecrop is afflicted by disease. (Brown, 2002) Historical precedent illustrates the dangers of anarrowing genetic base. The wheat-stem-rust epidemic of 1953 and 1954 – when 75% of thewheat harvest was destroyed in the United States – the southern US corn blight of 1970, the1975 loss of half a million acres of rice in Indonesia to damage caused by the rice hopperinsect, as well as the Irish Potato Famine of the 1840s, have been invoked to highlight thepotentially calamitous consequences of reliance on a single crop. Preserving genetic diversity,proponents assert, is necessary to assure continued genetic improvements in food crops.
Even the high-yielding varieties of the Green Revolution did not all prove immune to disease.
In 1970–71 the corn-blight epidemic in the United States resulted in the loss of up to 15% ofthe corn harvest ‘because of genetic uniformity’. (Shiva, 1991: 46) The new rice varietiesintroduced by the Philippines-based International Rice Institute (IRRI) in the late 1960sproved vulnerable to pests and diseases. The rice variety IR-8 was afflicted by bacterial blightin south-east Asia in 1968 and 1969 and was destroyed by the tungro virus in 1970 and 1971.
In Indonesia more than half a million acres of land under new rice varieties were ravaged bypests. Even the rice variety, IR-36, which was supposedly resistant to eight major knowndiseases and pests, proved fallible to two different viruses. In the Indian state of Punjab,insects and pests which, prior to the Green Revolution had proven to be insignificant, becamemajor problems with the onset of new rice varieties. By 1991, rice cultivation in the Punjabhad become vulnerable to ‘about 40 insects and 12 diseases’. (Shiva, 1991: 47)
7.3 GENDER DIMENSION OF TRIPs
This is a dimension of the impact of TRIPs on biodiversity in the developing world that ‘isoften overlooked’. (UNDP, 2003: 217) TRIPs affects women in a plethora of issues such asreproductive health, agriculture, food security as well as traditional knowledge in foods andmedicines as women are the primary users and maintainers of biodiversity. (Ibid.) In thepoorest households in the developing world, traditional diet consists of ‘a finely balancedmix of cultivated crops and plants and fruits found in the wild. Women, more than men, tendto use the forest as a source of a wide variety of insects, plants and plant products tosupplant the basic diet, especially during food shortages’. (UNDP, 2003: 217)
Shiva demonstrates how Monsanto’s creation of herbicide-resistant plants, thanks to GMtechnologies, has resulted in the killing of weeds that are an essential part of the food supplyin south Asia and Africa. In India, for example, women use up to 150 species of plants asmedicine, food or fodder, which would ordinarily be described by the biotechnology industryas weeds. In West Bengal, 124 of so-called ‘weed’ species collected from rice fields are ofeconomic importance to local farmers. Shiva shows that in a Tanzanian village more than80% of vegetable dishes are prepared from uncultivated plants. ‘What is a weed for Monsantois a medicinal plant or food for rural people’. (Houston Catholic Worker
, 1997) She alsodemonstrates how thousands of rural women whose livelihoods are dependent on the reedsand grasses used in basket and mat weaving are seeing their incomes decimated by thespread of herbicide-resistant varieties. (Shiva, 1993)
The dissemination of herbicide-resistant plants and technologies is detrimental to agricul-ture and food security given that, according to Shiva, ‘herbicide resistance excludes the pos-sibility of rotational and mixed-cropping which are essential for a sustainable and ecologi-cally balanced form of agriculture’. (Shiva, 1993: 113) Shiva cites a report which demon-strates a loss of at least $4billion per annum to farmers in the United States as a result ofherbicide spraying. The destruction in the developing world will doubtless be greaterbecause of higher plant diversity and ‘the prevalence of diverse occupations based on plantsand biomass’. (Ibid.)
7.4 SHIVA’S BBC REITH LECTURE, 2000: HERBICIDES AND PESTICIDES
In the course of her Reith Lecture on poverty and globalisation in 2000, Vandana Shiva,Director of the Research Foundation for Science, Technology and Natural Resource Policy,outlined the devastating effect of the consolidation of the food chain by a handful of corpo-rations. The epidemic of farmers’ suicide in the Warangal area of Andhra Pradesh, accordingto Shiva, can be directly traced to the farmers’ use of hybrid cotton seeds. Those working onthe land in the region who had traditionally grown pulses, millets and paddy were ‘lured byseed companies to buy the seeds referred to by the seed merchants as “white gold”, whichwere supposed to make them millionaires. Instead they became paupers.’2 The native seedsof the Warangal farmers have been displaced by these cotton hybrids which cannot be savedand so need to be repurchased every year. In addition to the farmers’ dependence on theseed corporations, the hybrids themselves are susceptible to pest attack, meaning thatspending on pesticides in the region has increased from $2.5million in the mid-1980s to$50million in 1997.3 The use of pesticides in other areas of India, such as Bhatinda in Punjab,has killed off pollinators such as bees and butterflies and created horticultural sterility.
28 | Implications of TRIPs for Food Security in the Majority World
CONSOLIDATION OF SEED INDUSTRY
8.1 THE GENE GIANTS
The consolidation of the seed industry has led to five so-called ‘Gene Giants’ – namelyDuPont, Pharmacia, Syngenta, Dow and Aventis – laying claim to a global market share of60% of the pesticide industry, 25% of the world’s seed market and almost 100% of geneti-cally modified crops (GMOs). (Meek, 2000: 11) The top ten seed companies control approx-imately one-third of the worldwide trade in that industry. (Action Aid, 1999) A survey by theLondon Evening Standard
in 1999 showed that a mere thirteen companies control 81% of1,600 patents for genetically modified crops and the technologies that are associated withthem. (Monbiot, 2000) Various patents have already been taken out on numerous varietiesof five major food crops, namely rice, maize, wheat, soya and sorghum. Almost three-quarters of these patents are owned by five large corporations. (CIPR, 2002)
On 2 March 1994 the biotechnology group Agracetus was granted a soybeans species patentby the European Patent Office. This patent allowed the group to officially own all possible orfuture modifications of soybeans in Europe. As a $27billion food-and-feed crop the implica-tions of a patent on soybeans are startling. (Crucible Group, 1994) Agracetus had earliertaken out a patent on all possible modifications of transgenic cotton, meaning that the cor-poration would have the rights to ‘any cotton treated with any gene, by any company, for anypurpose, now and in the future’. (Monbiot, 2000: 253) At the time, Agracetus’ main rivalMonsanto was incandescent at the granting of the patent on transgenic cotton to Agracetus.
However, Monsanto then bought its main rival and all its patents. Any objections to thetransgenic cotton patent were soon rescinded. (Ibid.)
Despite claims made within the biotech industry that varying groups of farmers growingdiverse crops have accepted and implemented the concept of agricultural biotechnology, thereality is that the introduction of genetically engineered crops has, according to Michael D.K.
Owen of the Department of Agronomy in Iowa State University, been characterised by uni-formity in agriculture, industrial agriculture and corporate concentration. (Owen, 2001) Thisuniformity can best be exemplified by the fact that in 2000 only four crops – soybean, maize,cotton and canola – accounted for virtually all the genetically engineered crops that weresown that year. Of crops grown that year, 98% were limited to three countries – the UnitedStates, Argentina and Canada – while three-quarters of the area dedicated to geneticallymodified crops in 2000 was for a single trait: herbicide tolerance. One company – Pharmacia(a merger of the agribusiness wing of Monsanto, Pharmacia and Upjohn) – accounted for 94%of the total area sown with genetically engineered seeds. (Paarlberg, 2000)
What is particularly galling for an organisation such as the WTO – which espouses greater
liberalisation of trade in order to stimulate competition, trade and growth – is that the‘Gene Giants’ who called for the TRIPs Agreement today find themselves subject to anantitrust suit in the US. The Biotechnology Law Report
of 2000 documents how a consor-tium of farmers in the United States and other countries have brought a private antitrustaction against Monsanto, DuPont, Dow Chemical, Novartis, AstraZeneca and other corpora-tions. The farmers allege that, from 1996 onwards, the named companies entered into alicensing arrangement to create a cartel ‘in which Monsanto would be the “hub” of the GMindustry, and the co-conspirators the “spokes”’. (Drahos and Braithwaite, 2002: 165) Thefarmers claim that Monsanto and the other companies used patents to fix prices and restricttrade in the GM corn and soybean markets. In other words, the farmers allege that thesecompanies have formed an illegal cartel – a scenario which scarcely corresponds to theWTO’s vision of freer trade.
8.2 PUBLIC vs. PRIVATE RESEARCH
The headlong rush to privatise research can be traced back to the introduction of the Bayh-Dole Act by the US Congress in 1981. The Act permitted universities and small businessesto own patents on inventions they had developed with federal funding. The primary reasongiven by supporters of the Act for its introduction was that the United States was losing outtechnologically to countries such as Japan, and that the introduction of a stronger patentregime would stimulate creativity in American universities and enterprises.
Before the introduction of Bayh-Dole inventions which were developed with federal fundingended up in the public domain, or the patents in these inventions was put in the trust of therelevant federal funding agency. Once this knowledge was privatised, however, a latter-dayequivalent of the Gold Rush ensued, and by 1986 universities and hospitals had increasedtheir patent applications in the area of human biological research by 300% compared to fiveyears previously.
This shift away from publicly funded research ending up in the public domain and insteadentering private hands has led to a scenario which, according to Peter Drahos, can be encap-sulated as such: patents instead of being a reward for private inventors putting their infor-mation into the public domain have instead becomes a means of recycling public informa-tion as private monopolies. (Drahos and Braithwaite, 2002)
The seed industry has claimed that plant variety protection granted through plant breeders’rights (PBRs) has helped to increase private plant breeding R&D (research and develop-ment) for certain crops, namely wheat and soybean. (CIPR, 2002) However, there was noevidence of a corresponding boon to R&D in the public sector. Some critics of PBRs haveargued that the public sector is being squeezed out of applied research by private organisa-tions that are intent on creating a ‘basic research agenda for the benefit of corporations’.
(Tansey, 1999: 10)
An example of the enormous discrepancies in public and private funding of biotech-relatedresearch is that the Consultative Group on International Agricultural Research (CGIAR),
30 | Implications of TRIPs for Food Security in the Majority World
which holds in trust one of the world’s largest ex situ
collections of plant genetic resources,spent $25million on such research in 1998 compared to the $1.26billion invested byMonsanto alone. (CIPR, 2002) This latter figure is a vast increase on the spending on agri-cultural biotechnology by Monsanto ten years previously in 1988 ($55million), or by ICI($15million) and DuPont ($15million) in the same year. (Biggs, 1998) For Shiva, corpora-tions such as these have an ‘immediate strategy’, the purpose of which is ‘to increase theuse of pesticides and herbicides by developing pesticide and herbicide-resistant varieties’.
(Shiva, 1993: 110)
For Oxfam, one of the consequences of the ‘market failure’ in terms of public vs. privateresearch is that commercial interests and markets will continue to dominate innovation andthe identification of future food priorities. Almost inevitably, hardly any of the newly engi-neered seeds which appear on the market ‘are designed to meet the food needs of the ruralpoor or to enhance the productivity of smallholder farmers’. (Oxfam, 2002: 223)
The UK Commission on Intellectual Property Rights (CIPR) in its 2002 report on intellec-tual property rights and development policy made a plea for more public-sector research toaid poorer farmers, stating that if the Green Revolution, which was developed and appliedwith public-sector funding, failed for the most part to reach poor farmers living in agro-eco-logically diverse rain-fed environments, it is apparent that biotechnology-related researchled by the private sector will be even less likely to do so. (CIPR, 2002)
A workshop sponsored by the US Department of Agriculture and a number of organisationsfrom the US in 1993 concluded that the patenting of PGRs could impede the exchange ofmaterials among universities, research centres and government and private laboratories. In1997, a follow-up seminar to that workshop was held. One of the parties to the seminar wasadamant that ‘full and open access to genetic materials’ be upheld, and that ‘the appropri-ate standards for utility patents be reconsidered … in light of the potential for seriousimpediments to effective research and genetic resources use, especially in the public sectorin countries with limited economic resources’. (Quoted in Correa, 2000: 173)
8.3 TRIPs: LIBERALISATION OR MONOPOLISATION?
The TRIPs Agreement has led to a huge increase in the number of patents taken out by agri-biotech corporations. Contrary to the WTO’s aspiration for greater liberalisation of trade,there is an inherent danger in the TRIPs Agreement that it could lead to corporations beinggranted monopoly privileges over life forms. This greater diffusion of patenting rights ‘hascontributed to a concentration of power in the seed industries of a number of developingcountries … while the combination of stronger patent laws and reduced competition hasdriven up prices’. (Oxfam, 2002: 224)
Even fervent proponents of the WTO, among them Jagdish Bhagwati of Columbia University,have already stated that the TRIPs Agreement itself does not belong in an organisation com-mitted to liberalising trade, and he has referred to TRIPs as representing ‘the collection ofa royalty payment’. (Dutfield, 2000)
Consolidation of Seed Industry |
The CIPR states that the acquisition by the five major agro-biotechnological corporations of67% of the Bt (Bacillus thuringiensis
) patents by 1999 reduces competition because innova-tive start-up firms find considerable barriers to entry in the market. Monsanto and DuPontnow control three-quarters of the Brazilian corn market between them, thanks primarily tostricter patenting laws over plant genetic resources. The Commission pointed out that, afterthe introduction of plant variety protection in 1997, Monsanto took its share of the localmaize seed market from 0% that same year to 60% by 1999 by acquiring three locally basedfirms. (CIPR, 2002)
8.4 VANDANA SHIVA ON TRIPs AND CORPORATE CONTROL
Shiva writes that ‘… the completion of the Uruguay Round of the GATT and the establish-ment of the WTO have institutionalised and legalised corporate growth based on harvestsstolen from nature and people. The WTO’s TRIPs Agreement criminalises seed-saving andseed-sharing. The Agreement on Agriculture legalises the dumping of genetically engi-neered foods on countries and criminalises actions to protect the biological and culturaldiversity on which diverse food systems are based’. (Shiva, 1993)
32 | Implications of TRIPs for Food Security in the Majority World
TRIPs BY STEALTH: THE UPOV CONVENTION
9.1 THE UPOV CONVENTION: ORIGINS
While developing countries were allowed until 1 January 2000 before implementing theTRIPs Agreement, and even though the review of Article 27.3(b) of TRIPs is currentlyongoing, a more stealthy and surreptitious means of enforcing implementation of the plantvariety provisions of TRIPs has been unearthed. The UPOV Convention (UnioneInternationale pour la Protection du Obtentions Vegetale – International Convention for theProtection of New Varieties of Plants) has been touted as a solution to the obligations thatdeveloping countries face with regard to plant variety protection under Article 27.3(b) ofthe TRIPs Agreement, particularly with regard to implementing a sui generis
regime forplant variety protection. UPOV provides a framework for intellectual property rights of plantvarieties, and is as such ‘an off-the-shelf solution to developing such legislation’. (CIPR,2002: 62) These rights are most often referred to as plant variety rights or the Europeansystem of PBRs. (Dutfield, 1999: 27) UPOV is the only plant variety protection system thatcurrently exists in international law. (Dutfield, 2002)
UPOV was the first internationally recognised multilateral convention on plant variety pro-tection. The convention was first signed in Paris in 1961 and eventually entered into forcein 1968. It sought to set common rules for the recognition and protection of intellectualproperty over new plant varieties obtained by plant breeders. UPOV has been amended onseveral occasions, as in 1978 when the convention allowed farmers to retain seeds and useprotected seeds to develop their own strains. (Oxfam, 2002) UPOV 1991, on the other hand,requires members to grant twenty-year exclusive year rights to plants, with the rights offarmers to retain and use protected seeds left to the discretion of national governments.
UPOV 1991 was essentially developed for institutionalised, commercialised breeding in thedeveloped world where farmers have to pay royalties on the use of seeds. In its crudest form,it may be possible to say that the UPOV Convention in 1991 was strengthened to ‘stopfarmers from replanting protected varieties’. (Crucible Group, 1994: 96)
9.2 CAPACITY OF FARMERS TO SAVE SEEDS OF PVPs (PLANT VARIETY PROTECTION)
UNDER UPOV: HOW LIMITED?
Critics have argued that the criteria used for protection – which states that varieties must be
distinct, uniform and stable – will lead to genetic erosion. These criteria, according to the
FAO, will lead to the replacement of varieties of seeds that are genetically diverse and adapted
for local conditions with genetically uniform modern varieties. (Joseph, 1999) Tansey writes
that the UPOV system ‘promotes commercially bred varieties geared for industrial agricul-
tural systems in which farmers have to pay royalties on such seed and the seed sector becomes
an investment opportunity for chemical and biotech concerns’ (Tansey, 1999: 10)
As PBRs are only given for varieties that are genetically uniform they automatically limitwhat kind of seeds can be marketed and who can market them. As a consequence, criticsargue, UPOV discourages genetically diverse and locally adapted seeds from both the marketand the field. Dutfield writes that many NGOs have argued that plant variety protection asoutlined in UPOV 1991 will undermine food security in developing countries by encourag-ing the cultivation of a narrow range of genetically uniform crops, including non-food cashcrops. This, it has been stated, will result in diets becoming nutritionally poorer and cropsbecoming more vulnerable to disease. Also, the limits preventing farmers from acquiring theseeds they wish without paying a royalty to breeders will impoverish them further.
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