FTAs and related bilateral agreements imposing TRIPS-plus intellectual property rights on biodiversity in developing countries

1
FTAs and related bilateral agreements imposing
TRIPS-plus intellectual property rights on
biodiversity in developing countries
GRAIN
ASEAN Regional Workshop on Bilateral Free Trade
Agreements organised by TWN, Kuala Lumpur, 26-28
August 2005
2

• 1. Background
• WTO TRIPS is the most important international
  agreement on IPRs related to biodiversity
  substantial commitments, wide membership, strong
  dispute settlement mechanism
• The IPRs in question are patents and plant
  variety protection (TRIPS Article 27.3.b)
• The biodiversity provisions of TRIPS are under
  review since 1999. Africa Group and the LDCs have
  been calling for patents on life to be prohibited
  under TRIPS. There are also proposals to bring
  TRIPS into harmony with the CBD through
  disclosure of origin of genetic resources and
  protection of traditional knowledge.
• Industrialised countries, however, are not
  satisfied with the level of protection for plants
  and animals under TRIPS. The US and Europe have
  been actively securing TRIPS-plus commitments to
  IPRs over biodiversity in developing countries
  through bilateral treaties, including free trade
  agreements.

3

• 2. TRIPS versus TRIPS-plus
• TRIPS says
• Patents shall be available for any inventions,
  whether products or processes, in all fields of
  technology.
• Members may 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.
• Process patents must give rights not only over
  use of the process, but also over products
  obtained directly by the process.

4

• 2. TRIPS versus TRIPS-plus (cont'd)
• An FTA or other kind of bilateral treaty is
  called TRIPS-plus, as regards biological
  diversity, when it commits parties to
• grant patents on plants, plant varieties and/or
  animals
• accede, or try to accede, to the UPOV Convention
  for the Protection of New Plant Varieties
  (which is not mentioned in TRIPS)
• accede to the Budapest Treaty on the Deposit of
  Microorganisms for the Purpose of Patent
  Protection (which is not mentioned in TRIPS)
• conform with the European Patent Convention,
  which allows the patenting of transgenic plants
  and animals (and is not mentioned in TRIPS)
• conform with "the highest international
  standards" of intellectual property protection

5
"Each FTA clarifies and builds on existing
international standards for the protection and
enforcement of intellectual property rights
(IPR), with an emphasis on new and emerging
technologies." -- Robert Portman, USTR Report
to Congress on Extension of TPA, 30 March
2005 "We always use bilateral free trade
agreements to move things beyond WTO standards.
By definition, a bilateral trade agreement is
'WTO plus'." -- Pascal Lamy, then EU
Commissioner for Trade The Jakarta Post, 9
September 2004
6

• 3. Not just FTAs
• Developing countries are being asked to adopt
  TRIPS-plus policies and practices through many
  kinds of instruments free trade agreements,
  bilateral investment treaties, development
  cooperation or partnership agreements, unilateral
  trade policies, bilateral IPR cooperation
  agreements, bilateral science and technology
  cooperation agreements and even WTO accession
  agreements.
• Apart from FTAs, the instruments that are
  potentially the most far-reaching are the
  bilateral investment agreements.
• It's important to keep in mind, however, that
  FTAs and all these other bilateral and unilateral
  instruments are just one tool of a multi-pronged
  strategy to secure US/European standards of IPRs
  on life worldwide.

7
IPRs on biodiversity as "investments" under BITs
(Carlos Correa, 2004) BITs and investment
chapters of FTAs go beyond international norms
with regard to IPRs on biodiversity. There is
no "international standard" relating to the
protection of IPRs as an investment. Extent
to which rights granted may be used in
investment-related disputes is unclear.
Biological materials may be considered "property"
of foreign collector who may claim rights over
them as an investor. BITs provide room for
disputes to induce changes in national IPR
legislation. "MFN" clauses in BITs and FTAs
contribute to global elevation of IPR protection
standards.
8

• 4. Why the fuss?
• The transition to a knowledge economy, the way
  it's being driven, relies on the privatisation of
  information so that companies can make money from
  it. That includes DNA and people's knowledge
  about plants and animals.
• Seeds, along with land and water, are the very
  basis of agriculture. Corporations involved in
  the industrial food system need to control plant
  breeding -- pushing both farmers and accountable
  public research systems out of the picture.
• Patents provide market control. Farmers are the
  direct competitors of seed companies because they
  can often re-use seed from their harvest. Patents
  and PVP are meant to wipe out competition from
  farmers (and from other seed companies). The
  world's commercial seed market represents US30
  billion per year, but most farmers save their
  seeds. There's a huge market still to conquer.

9

• 5. What is the impact of signing on to TRIPS-plus
  FTAs?
• It puts developing country governments in a
  policy straight-jacket.
• It contributes to the creation of new
  international standards "through the backdoor".
• Farmers lose their right to save, select,
  multiply and distribute seeds.
• Patents and UPOV-type IPR on seeds greatly
  contribute to genetic and cultural erosion,
  reduce the flow of scientific knowledge and lead
  to industrialisation of agriculture.
• Public research systems, already under immense
  pressure, will increasingly fall under the
  control of TNCs.
• It will greatly facilitate the entry of
  genetically modified crops.
• Many social movements, indigenous peoples and
  other groups are profoundly against IPRs on life
  and there is active social opposition to
  TRIPS-plus policies.

10
(No Transcript)
11
(No Transcript)
12
(No Transcript)
13
(No Transcript)
14
(No Transcript)
15
(No Transcript)