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The statement below was issued by TWN for the second meeting of the Expert Panel on Access to Genetic Resources and Benefit-sharing held in Montreal, Canada from March 19 - 22, 2001.

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Intellectual property rights, TRIPS Agreement and the CBD

TWN Statement to the 2nd meeting of the Panel of Experts on Access and Benefit Sharing

Montreal, 19-22 March 2001

The Third World Network welcomes the re-convening of the Panel of Experts on Access and Benefit Sharing. We hope that, during this second meeting, the Panel of Experts will be able to conclude its work on outstanding issues from its first meeting.

In particular, we believe the Panel of Experts must take this opportunity to seriously consider the means of addressing the implications of intellectual property rights and the WTO-TRIPS Agreement for the conservation and sustainable use of biological diversity.

The Panel of Experts was not able to come to any conclusions about the role of intellectual property rights in the implementation of access and benefit sharing, at its first meeting. However, a worldwide controversy has been raging over the granting of intellectual property rights over biological diversity, as required by the provisions of the TRIPS Agreement. In this regard, we believe that the Panel must recognise that there exist parallel international processes and instruments that have implications for access to genetic resources and benefit sharing; in particular, the WTO and the TRIPS Agreement. It is crucial for the Panel of Experts to examine the implications of the TRIPS Agreement on the objectives and operation of the CBD, and to address the question of the conflict between the TRIPS Agreement and the CBD. Indeed, it would be irresponsible for the eminent grouping of experts gathered here not to do so.

There are inherent tensions between the granting of intellectual property rights under TRIPS with the objectives of the CBD. Article 16(5) of the CBD, in fact, recognises that IPRs can have a negative effect on the implementation of the CBD provisions, and thus, urges Parties to cooperate to ensure that IPRs are supportive and do not run counter to the CBD objectives.

We list below the vital matters for consideration of the Panel, with regard to the manner in which the TRIPS Agreement may, and will, undermine the CBD:

1.   Conflict of rationale, origins and overall framework
There are differences in rationale, origins and overall framework of the CBD and the TRIPS Agreement. TRIPS is a commercial treaty with commercial objectives that largely benefit strong private firms. On the other hand, the establishment of the CBD was prompted mainly by the growing concern over the rapid worldwide loss of biodiversity, a recognition of the important role of traditional knowledge and the rights of local communities that develop and hold the knowledge, and the need to regulate access to and the sharing of benefits deriving from the conservation and sustainable use of biodiversity.

2.   National sovereignty vs. rights of IPR holders 
Based on the principle of national sovereignty enshrined in the CBD, countries have the right to regulate access of foreigners to biological resources and knowledge, and to determine benefit sharing arrangements. TRIPS enables persons or institutions to patent a country’s biological resources (or knowledge relating to such resources) in countries outside the country of origin of the resources or knowledge. In this manner, TRIPS facilitates the conditions for misappropriation of ownership or rights over living organisms, knowledge and processes on the use of biodiversity takes place. The sovereignty of developing countries over their resources, and over their right to exploit or use their resources, as well as to determine access and benefit sharing arrangements, is compromised.

3.   Community rights vs. private, individual rights
In the preamble of TRIPS, it is recognised that “intellectual property rights are private rights”. Patents confer exclusive rights on its owner to prevent third parties from making, using, offering for sale, selling or importing (for these purposes) the patented product, and to prevent third parties from using the patented process (and from using, selling or importing the product obtained from the patented process). In TRIPS, the award of IPRs over products or processes confers private ownership over the rights to make, sell or use the product or to use the process (or sell the products of that process).  This makes it an offence for others to do so, except with the owner’s permission, which is usually given only on license or payment of royalty.

IPRs, therefore, have the effect of preventing the free exchange of knowledge, of products of the knowledge, and their use or production. This system of exclusive and private rights is at odds with the traditional social and economic system in which local communities make use of, and develop and nurture, biodiversity. For example, seeds and knowledge on crop varieties and medicinal plants are usually freely exchanged within the community. Knowledge is not confined or exclusive to individuals but shared and held collectively, and passed on and added to from generation to generation, and also from locality to locality.

The CBD has several provisions that acknowledge this and also that aim at protecting community rights, the key provision being Article 8(j). However, the contribution and nature of community knowledge and community rights are not recognised in the TRIPS agreement.  Instead, the patent system endorsed by TRIPS favours private individuals and institutions, enabling them to acquire “rights”, including rights over the products or knowledge, whose development was mainly carried out by the local communities. TRIPS and the enactment of patent laws relating to biological materials in some countries have facilitated the misappropriation of the knowledge and resources of indigenous and local communities, and the number of “biopiracy” cases has been increasing at a rapid rate.  This misappropriation is counter to the principles and provisions of the CBD that oblige countries to recognise local community rights and fair benefit sharing.  Indeed, one of the main objectives of establishing the CBD was to counter the possibility of misappropriation or “biopiracy”, whilst one of the effects of TRIPS has been to enable the practice of such misappropriation.

4.   Prior informed consent of states and communities vs. unilateral patents
Article 15.4 of the CBD states that “access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.”  Thus, intending collectors of biological resources or of knowledge relating to these have to provide sufficient information of their work and how it is intended to be used, and obtain consent, before starting the work. In the draft laws of many countries (for example, the OAU Model Legislation on Access to Biological Resources and Protection of Community Rights), the prior informed consent of the state as well as the relevant local communities has to be obtained. This implies that consent can also be denied, and that consent is conditional on mutually-agreed terms for benefit sharing between the collector, the state and the local communities.  The PIC requirement is thus a measure to prevent misappropriation of resources and knowledge, and to facilitate fair benefit sharing.

In TRIPS, there is no provision that applicants for patents or other IPRs over biological resources have to obtain prior informed consent.  There is thus no recognition in TRIPS of the rights of the country in which the biological resource or knowledge of its use is located. Thus, patent applicants can submit claims on biological resources or knowledge to patent offices in any country (that recognises such patentability) and the patent offices can approve the claims without going through a process even of checking with the authorities of the country or countries of origin.  Thus, whilst the CBD has set up a PIC system as a check against misappropriation or biopiracy, TRIPS on the other hand facilitates the possibility of such misappropriation by not recognising the need for and thus omitting a mechanism of PIC.

5.   Benefit sharing arrangements
A key aspect of the CBD is that it recognises the sovereign rights of states over their biodiversity and knowledge, and thus gives the state rights to regulate access, and this in turn enables the state to enforce its rights on arrangements for sharing benefits. Access, where granted, shall be on mutually agreed terms (Article 15.4), shall be subject to prior informed consent (Article 15.5), countries providing the resources should fully participate in the scientific research (Article 15.6) and, most importantly, each country shall take legislative, administrative or policy measures with the aim of “sharing in a fair and equitable way the results of research and development, and the benefits arising from the commercial and other utilisation of genetic resources with the contracting party providing such resources. Such sharing shall be upon mutually agreed terms”.

Under TRIPS, there is no provision for the patent holder on claims involving biological resources or related knowledge to share benefits with the state or communities in countries of origin. In fact, there is little that a country of origin can do to enforce its benefit-sharing rights (recognised in CBD) if a person or corporation were to obtain a patent in another country based on the biological resource or related knowledge of the country of origin. While a legal challenge can be launched, such legal cases are prohibitively expensive. Even if a state has the resources to legally challenge a patent in another country, it may not have the resources to track down and challenge every patent that it believes to be a case of biopiracy against it, nor is there a guarantee of success. Thus, if the patent laws, the administration of approvals, or the courts of a particular country operate in a context that is favourable to granting such patents, there is little that can be done by a country of origin to ensure that biopiracy does not take place, or that if it takes place that it can get a remedy.

6.   Patents on life
IPRS over biological resources and patents on living forms will have serious and adverse implications for access to genetic resources and the equitable sharing of benefits. In this regard, we wish to draw the Panel’s attention to the developments in the WTO. The review of Article 27.(b) of the TRIPS Agreement is presently being considered by the TRIPS Council. Article 27.3(b) requires countries to allow for patenting of certain biological resources.

On this issue, the majority developing countries in the WTO have already made clear their opposition to the patenting of living forms. The African Group of countries, the Like-Minded Group and the Least-Developed Group of Countries in the WTO, have expressed their rejection of patents over life forms, and their deep concerns over the incompatibility of the TRIPS Agreement with the CBD.

In their proposal, the African Group in the WTO has called for WTO members to clarify the following:

(a)  that plants and animals as well as microorganisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms shall also not be patentable;

(b)  that any sui generis system for the protection of plant varieties can provide for the following:

·        the protection of the innovations of indigenous and local farming communities in developing countries, consistent with the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources;

·        the continuation of the traditional farming practices including the right to save, exchange and save seeds, and sell their harvest; and

·        preventing anti-competitive rights or practices which will threaten food sovereignty of people in developing countries, as is permitted by Article 31 of the TRIPS Agreement; and

(c)  that the implementation deadline for Article 27.3(b) should be extended to take place after the completion of the substantive review of Article 27.3(b).

We therefore, urge the Panel to support the position adopted by these developing countries, which make up the majority of countries in the developing world. This is particularly important given that the TRIPS Council is currently considering the question of the review of Article 27.3(b). We believe that this will be an important opportunity for the CBD to preserve the objectives of the CBD.

In this context, we also remind the Panel of the Communique and Declaration of the African Group at the 5th Conference of Parties of the CBD in Nairobi, May 2000, which lends unequivocal support for the position of the African Group of countries in the WTO.

Recommendations
In light of the above, we urge the Panel of Experts to consider the following recommendations, and convey them to the Ad-Hoc Open Ended Working Group on Access and Benefit Sharing:

The spirit and main paradigm of the CBD must be the main premise upon which any resolution of the conflict between the CBD and TRIPS, is to be undertaken. This process can be operationalised using the principles of sustainable development; i.e., the protection and promotion of concerns for biodiversity and the environment, traditional knowledge, and the rights of indigenous and local communities and of the public interest.

This, we believe, would require a review of both the provisions of TRIPS and the CBD, and suitable amendments to the relevant provisions.

·        TRIPS review
In the review of TRIPS (which is provided for in Articles 27.3(b)), amendments should be made in Article 27.3(b) to bring the scope of exclusion of biological materials and processes in line with environmental and ethical considerations as well as the need for preventing biopiracy; and an interpretation can be made that the sui generis option for plant varieties can include the protection of traditional knowledge and local community rights, in line with the CBD. 

Amendments can also be made to TRIPS, in the context of the review under Article 71.1, to strengthen the obligations of developed countries to ensure the transfer of technology to developing countries, or to operationalise the implementation of technology transfer. Consideration can also be given to revise TRIPS to allow for exclusion or relaxation of standards of IPRs relating to environmentally-sound technologies, and to technologies that relate to the use of biodiversity. This would bring TRIPS more in line with the spirit of the CBD, and with Article 16 provisions, including those dealing with technology transfer on concessional and preferential terms (para 2) and with the need to ensure that IPRs are supportive of and do not run counter to CBD objectives (para 5).

·        CBD review
In a review of the CBD, Article 16 could be amended to remove the tensions in Article 16, so that the important objectives and principles of access to and transfer of technology to developing countries are not so constrained, as with the present CBD, by the references to the need to be consistent with adequate and effective protection of IPRs and international law.  The obligations on technology transfer can also be strengthened and the implementation made more operational.

It should also be recognised that the present provisions in the CBD on access to genetic resources now place the onus of implementation on national policies and legislation.  However, measures by national authorities are insufficient to enable effective implementation of access and benefit sharing arrangements. For example, in its national legislation, the state of a country of origin may require as part of its access contract that the collector cannot patent the product or knowledge (or that such a patent can be applied for only under certain conditions or benefit-sharing arrangement); but that state would require the cooperation of patent authorities or Biodiversity Authorities of other states to be able to monitor or effectively implement that contract. An international protocol would be required to establish guidelines and standards for access and for fair and equitable sharing of benefits, as well as to establish international cooperation to facilitate implementation of the access and benefit-sharing arrangements.

 


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