[Pirateninfo] Fw: [NEW from GRAIN] Open letter to Pascal Lamy on TRIPS 27.3(b) review

[Martin Sundermann]

-----Ursprüngliche Nachricht-----
Von: GRAIN - Information <info at grain.org>
An: info at grain.org <info at grain.org>
Datum: Donnerstag, 27. Februar 2003 01:20
Betreff: [NEW from GRAIN] Open letter to Pascal Lamy on TRIPS 27.3(b) review


NEW from GRAIN
26 February 2003

SUBJECT: Open letter to Pascal Lamy on the EU concept paper submitted to
the WTO TRIPS Council regarding patents on seeds and traditional
knowledge

To read the letter, background information and follow relevant links see
www.grain.org/publications/lamy.cfm.


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BACKGROUND NOTE FROM GRAIN:

While discussions at the World Trade Organisation on access to drugs are
deadlocked, the European Union is making strides in the media right now
with an alleged "solution" to biopiracy and whether or not farmers can
save patented seeds.

The WTO Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS) makes it mandatory on all member states to start
patenting life forms. Micro-organisms must be patentable. Plants and
animals escape this fate. Plant varieties -- the seeds farmers sow --
must fall under some kind of intellectual property system, be it patents
or a sui generis (of its own kind) regime.

This provision of the TRIPS Agreement, contained in Article 27.3(b), is
under review since 1999. The Doha Ministerial Conference expanded the
mandate of that review to traditional knowledge and the relationship
between TRIPS and the Convention on Biological Diversity. However, the
review is not getting far. Many discussion papers and proposals have
been tabled, but there doesn't seem to be any direction to the debate.
With so much energy focused on the public health ramifications of TRIPS,
it's not hard to understand why.

Last September, the EU sent a concept paper to the TRIPS Council on the
review of Article 27.3(b). While we didn't see much new back then in the
concept paper, it is now making the news. To counterbalance some of the
misguided media reports, we are issuing an open letter to Pascal Lamy,
the EU's Commissioner for Trade.

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OPEN LETTER

To: Pascal Lamy
Commissioner
Directorate-General for Trade
European Commission

From: Genetic Resources Action International (GRAIN)

Date: 26 February 2003

Subject: EU concept paper to the World Trade Organisation TRIPS
Council regarding patents on seeds and traditional knowledge


Dear Mr Lamy,

We are writing this letter to set the record straight, from our own
perspective, on the latest EU submission to the review of TRIPS Article
27.3(b). [1]

Recent media coverage is erroneously projecting a message that the EU is
now coming to the rescue of developing country governments in seeking
far-reaching changes to the TRIPS Agreement. Suddenly, we are being told
that the European Union has proposals on the table that will arrest the
problem of bio-piracy, curb the power of the biotechnology industry, and
safeguard the right of poor farmers to freely use patented seeds. [2]

One source of this disinformation appears to be your own article in the
January 2003 edition of Our Planet, a journal produced by the United
Nations Environment Programme. [3]  You therefore have your own
responsibility to rectify the factual misrepresentations of the
initiative coming from the EU.

THE DISCLOSURE ISSUE

A number of developing countries have tabled proposals to amend TRIPS so
that patent applicants are required to “disclose” where genetic
materials or traditional knowledge involved in a claimed invention came
from. This disclosure requirement is supposed to make clear not only the
country where the bioresources and local knowledge originated, but also
provide proof of prior informed consent of the people from whom they
were taken. Several developing countries have already enacted such a
requirement in their national patent or plant variety rights
legislation. Developed countries continue to resist the idea.

You claim that the EU now supports creating such an obligation under the
TRIPS Agreement. This is not correct. What the EU actually proposes in
its concept paper of September 2002 is to create a separate and
essentially voluntary mechanism for disclosure of origin. A
"self-standing" measure is how the EU describes it. This falls far short
of what developing countries have been requesting in at least two
respects.

(1) The EU wants to strictly limit the content of what is
disclosed in patent applications to the country of origin only. You
dismiss the need for patent seekers to indicate who were the original
holders of the biological material or the knowledge. You also dismiss
the need for patentees to provide documentary proof of prior informed
consent from the people affected.

(2) The EU insists that even this very limited form of
disclosure must never serve as a condition for patentability nor to
judge what constitutes a legitimate patent. As the concept paper says,
"Failure to disclose, or the submission of false information should not
stand in the way of the grant of the patent and should have no effect on
the validity of the patent, once it is granted." [4]  In other words,
the EU can only accept the principle of disclosure provided it is
ineffective. Worse, the EU paper is explicitly saying that providing
false information in patent applications about the origin of the genetic
material is perfectly acceptable. This logic is extended later on in the
EU’s paper to traditional knowledge as well. [5]

This shows that the EU does not want to do anything to stop biopiracy.
The "disclosure" mechanism you offer would allow patents to be granted
on any genetic material or knowledge misappropriated from indigenous or
farming communities. And it would do so even when the patent applicant
intentionally withholds or falsifies information about the original
source.

CREATING A NEED FOR FARMERS´ EXEMPTIONS

The other part of the EU paper which has been misconstrued for the
public is the question of whether or not farmers should be allowed to
save, reuse and sell seeds if they are patented or subject to sui
generis plant variety protection (PVP) schemes. The message getting
across is that the EU wants poor farmers spared of any restrictions on
seed saving that come with the implementation of TRIPS.

The EU paper, in fact, does no more than suggest that the impact of seed
patents on certain farmers in developing countries could be minimised
through limited “exemptions”. These exemptions could be permitted, it is
said, in national plant variety protection or patent laws by virtue of
TRIPS Article 27.3(b) and 30 respectively.

It is true that such an approach is possible under TRIPS. After all, the
EU has such exemptions in its own legislation. However, you fail to
mention that nothing in the TRIPS Agreement requires developing
countries to introduce either patents on seeds or restrictive PVP laws
[6] in the first place. In other words, you are telling developing
countries that if they do allow patents on plants and if they do adopt
UPOV-type PVP laws, then they can have exemptions for small farmers.
What you fail to say is that if they prohibit seed patenting and avoid
restrictive UPOV-type plant variety laws, as is their right under TRIPS,
there would be no need for the exemptions.

The fact is that, despite TRIPS, an increasing number of developing
countries are being coerced to accept the patenting of plants and the
rigours of UPOV in their own countries through bilateral deals. Through
so-called free trade agreements, partnership agreements, bilateral
investment treaties and other means, the United States and Europe are
putting direct pressure on developing countries to adopt and enforce
higher standards of intellectual property protection than the WTO
prescribes. A preliminary survey that GRAIN conducted with colleagues in
2001 identified more than 20 such “TRIPS-plus” agreements affecting or
potentially affecting biological diversity. [7]  Almost half of them
were initiated by the EU. To name one example, under the EU-South Africa
bilateral trade agreement of 1999, South Africa is required to recognise
patents on biotechnological inventions. [8]  To name another example,
under the EU-Tunisia partnership agreement of 1998, Tunisia is required
to join UPOV. [9]  By pushing developing countries to adopt such
TRIPS-plus intellectual property regimes, the EU in fact creates the
need for the exemptions then offered to soften the blow.

AVOIDING THE FUNDAMENTAL ISSUE

The EU paper fails to address the most important problem on the table.
Since the review began, developing countries have not only proposed
technical adjustments to TRIPS 27.3(b). They have also raised the
fundamental issue: whether life forms should be patentable at all. The
African Group in particular has tabled a proposal to amend TRIPS so that
it prohibits patents on all living organisms in all the WTO member
states. This is the most logical solution to bio-piracy: addressing the
problem at the source.

The EU paper, on the contrary, says that TRIPS presently reflects a
carefully negotiated balance and that a reopening of the discussion may
give rise to counterclaims from those who would like to see patents on
life made mandatory with no exclusions possible. [10] The EU’s message
seems to be that TRIPS is cut in stone and can never be changed except
in the direction of even stronger patent rules.

This standpoint has no basis in the built-in mandate for the review of
Article 27.3(b), which simply says that the provisions shall be
reviewed, without any qualifier or limitation. Nor can it find support
in the expanded mandate from Doha, which specifically emphasises the
development dimension and the balance of interests between technology
producers and users. [11]

The EU is ignoring the very issue which should be at the centre of the
review: whether or not the patenting of life forms, as required by
TRIPS, stands the test of social legitimacy and whether or not it will
further sustainable development. It is our conviction, and that of many
other NGOs and civil society groups, that it most emphatically does not.

However much you try to avoid it, this issue will not go away

Thank you for your attention.


Sincerely

GRAIN

Girona 25, pral. 08010 Barcelona Spain
Tel: +34 93 301 13 81  Fax: +34 93 301 16 27
Email: grain at grain.org  Web: www.grain.org

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[1]  European Commission, “Communication by the European Communities and
their Member States to the TRIPs Council on the review of Article
27.3(b) of the TRIPs Agreement, and the relationship between the TRIPs
Agreement and the Convention on Biological Diversity (CBD) and the
protection of traditional knowledge and folklore - A Concept Paper”,
Directorate-General for Trade, Brussels, 12 September 2002,
http://trade-info.cec.eu.int/europa/2001newround/comnr_trips.pdf.

[2]  See, for example, Alex Kirby, “EU backs poor farmers’ seed use”,
BBC News Online, Nairobi/London, 3 February 2003,
http://news.bbc.co.uk/1/hi/sci/tech/2719129.stm. Or “New EU rules
protect farmers from bio-pirates”, Deutsche Welle, 4 February 2003,
www.dw-world.de/english/0,3367,1446_A_771177_1_A,00.html

[3]  Pascal Lamy, “As precious as gold”, Our Planet, UNEP, Nairobi,
January 2003, www.ourplanet.com/imgversn/134/lamy.html.

[4]  European Commission, op. cit., para 55.

[5]  Ibid., para 66.

[6]  We refer to those laws modelled on the UPOV Convention. The
principles that the EU paper describes as an “effective sui generis
system” come from UPOV.

[7]  TRIPS-plus through the back door: How bilateral treaties impose
much stronger rules for IPRs on life than WTO, GRAIN in cooperation with
SANFEC, July 2001, www.grain.org/publications/trips-plus-en.cfm

[8]  Council of the European Union, “Agreement on Trade, Development and
Cooperation between the European Community and its Member States, of the
one part, and the Republic of South Africa, of the other part”, 8731/99,
9 July 1999, Article 46.
http://europa.eu.int/comm/development/south_africa/agreement.pdf

[9]  “Euro-Mediterranean Agreement establishing an association between
the European Communities and their Member States, of the one part, and
the Republic of Tunisia, of the other part”, Official Journal L 097,
30/03/1998, Annex 7, paragraph 1,
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnu
mdoc&lg=EN&numdoc=21998A0330(01)&model=guichett

[10]  European Commission, op. cit., para 28.

[11]  “We instruct the Council for TRIPS, in pursuing its work programme
including under the review of Article 27.3(b), the review of the
implementation of the TRIPS Agreement under Article 71.1 and the work
foreseen pursuant to paragraph 12 of this declaration, to examine, inter
alia, the relationship between the TRIPS Agreement and the Convention on
Biological Diversity, the protection of traditional knowledge and
folklore, and other relevant new developments raised by members pursuant
to Article 71.1. In undertaking this work, the TRIPS Council shall be
guided by the objectives and principles set out in Articles 7 and 8 of
the TRIPS Agreement and shall take fully into account the development
dimension.” Paragraph 19, WTO Ministerial Declaration, adopted in Doha,
Qatar, on 14 November 2001,
www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm


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For more information visit:
www.grain.org/publications/lamy.cfm


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