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| Biopiracy |
| The undesirable effects of intellectual property rights |
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Josef Bordat (DrBordat)  |
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Published 2007-03-27 05:31 (KST) |
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Globalization is run by means of several new regimes in economics, namely the World Trade Organization (WTO) and its juristic framework for trade in services (GATS) and intellectual property rights (TRIPS), both established in 1995.
With TRIPS, the WTO continues the regulation policy of the World Intellectual Property Organization (WIPO). The TRIPS contains 73 articles in seven sections, among those are certain patent regulations.
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| Patent Regulations Within the TRIPS Agreement
The TRIPS rules that "any inventions, whether products or processes, in all fields of technology" can be patented if general prerequisites for a patent -- novelty, inventive activity, commercial applicability -- are satisfied (art. 27, 1.1). That does include also the fields of health, food and farming, although these areas of "technology" are strictly excluded in many national patent regulation systems. But under the regime of TRIPS, "patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced" (art. 27, 1.2). Exceptions are made for reasons of public order and morality only (art. 27, 2). Member states may also exclude from patentability "diagnostic, therapeutic and surgical methods for the treatment of humans or animals" (art. 27, 3a).
In article 27, 3b exceptions in biotechnological research are fixed. The complicated structure of this paragraph has led to many misunderstandings. It reads: "[Members may also exclude from patentability:] plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological 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 structure of article 27, 3b may be explained by the following simple example: Let the principle rule be (1) Chewing gum is allowed to children. To this, the permission to make an exception is regulated as follows: (2) A teacher may forbid chewing gum during lessons. Into this permission, an exception is then fed in (3) Unless the subject is religion, history or geography. Another exception is finally defined: (4) A teacher must either permit chewing gum or distribute chocolate during the lessons or both on these days: Monday, Tuesday, Wednesday and Friday. With the exceptions (3) and (4) chewing gum basically is permitted during lessons.
The first sentence contains the permission to define exclusions from the general right to grant patents concerning plants and animals and biological processes for the production of plants or animals, by naming two exceptions, micro-organisms and non-biological and microbiological processes. So, in these two critical areas of research there exists a duty to grant patents. Sentence two in fact leads to a devaluation of the permission to exclude plants from the patent system by obligating the members to provide intellectual property protection for plant varieties: by patents, effective sui generis systems or any combination thereof. In the end, the TRIPS does not give any considerable exceptions in article 27, 3b, but supports a patent system that stops at nothing, not even life.
TRIPS and Biological Diversity
It gets clear that article 27, 3b does not meet the aims of the Convention on Biological Diversity (CBD) settled at the Earth Summit in Rio de Janeiro (1992). The CBD does grant all states a natural right on their own resources and "biological material." This right is menaced by TRIPS, which gives each member state the opportunity to manipulate natural resources of another member state "microbiologically" and to apply for a patent on the manipulated organism. This procedure can be called "biopiracy." It is not only a theoretical or academic problem, but also a very relevant one, as some cases of the last years showed clearly.
The Problem of Biopiracy
The term "biopiracy" describes the appropriation of biological resources and traditional knowledge of farmers or local communities by patents without permission (prior informed consent) or payment (benefit sharing), carried out by multinational corporations with the aim to use the patent for their own investigation, production and marketing activities. It was first used by Indian scientist and activist Vandana Shiva in her book Biopiracy: The Plunder of Nature and Knowledge (1997).
The traditional knowledge is protected explicitly in the CBD as an inherent right of local and indigenous populations. From this arise three main conflicts between the two normative systems: (1) The access to biological resources is principally based on conditions in the CBD, what is not the case in the TRIPS. (2) The basic idea of the CBD is to guarantee compensation between "knowledge supplier" and "knowledge user"; meanwhile, in the TRIPS, no mechanism exists concerning compensation. (3) The CBD appreciates the performance of indigenous communities and concludes from this the idea of collective property rights, which is incompatible with the concept of individualistic property rights in the TRIPS. One example shall prove the importance of a fair regulation based on the idea of condition, compensation and collective property rights.
The Basmati Case
Basmati is a plant that has been cultivated in India, Nepal and Pakistan for centuries. Nevertheless, in 1997, the U.S. company "Rice Tec" applied for 16 patents on genetic variations of "Basmati," of which the trademark "Texmati" is perhaps the best known. To be able to continue selling its noble rice and valuable foreign exchange earner worldwide, India would have to acquire a license from "Rice Tec" as a consequence of the patents, so as not to run the risk of being sued in the context of a WTO quarrel settlement. Fortunately, this attempt at biopiracy failed, for India was able to uphold its rights in difficult negotiations so that 13 of the 16 patents were deprived again, but the "Rice Tec vs. India" case shows, where TRIPS article 27, 3b can lead.
Preventing Biopiracy in the TRIPS
The question that arises from this ignorance toward traditional knowledge is what can be done to prevent biopiracy in the future? The answer is quiet simple: Modifying the TRIPS referring to its critical aspects, which are formed out in contradiction to the CBD. It would be no step ahead to neglect the whole TRIPS agreement, for it contains important and valuable regulations to secure intellectual property rights in arts, science, etc. The aim of the modification has to be to ensure an appropriate financial comprehension for the supplier of traditional knowledge.
Therefore, I want to make a few suggestions concerning the prevention of the biopiracy problem within the TRIPS: (1) The selection performances and the traditional knowledge of the population have to be respected and their use within the development of new kinds of products has to be compensated. (2) The knowledge of the local population must be respected legally; also for the case that was just handed down verbally. (3) No country may be obligated to patent products and methods that go back on biopiracy. (4) A regulation has to be established, according to which access to the biological resources of a country or a region only happens legally after informing the local population's representatives. (5) A fair compensation, which can consist of financial payments, transfer of technology and more reasonable prices, has to be fixed as a pre-condition for access to biological resources. The compensation must be of benefit to the local population. (6) If it is not possible to find any exact original owner of a biological resource on which a patent is granted, the profit compensation has to be carried out in form of a deposit in a special capital stock, administrated by an adequate international body, for all those in whose region the biological resource does appear and is used traditionally.
So, as a conclusion, nothing in the TRIPS agreement shall be interpreted in a manner that endangers biological diversity and ignores the rights of indigenous populations as the original discoverer of biological resources and, additionally, the patenting of plants and animals as well as of their parts and their genetic codes must be excluded explicitly.
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©2007 OhmyNews
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