Repeal TRIPS 27.3 (b) Fr. Sean McDoangh, SSC. July 2, 2009.

Last week I wrote about how the patenting of living organisms creates a culture of dependence between Minority world agribusiness corporations and poor Majority world farmers.  While TRIPs 27.3(b) seems to permit countries not to patent plants and animals, in fact the available options are similar to patenting.  One of those, which I discussed briefly was formulated by the Union for the Protection of New Varieties of Plants (UPOV).  According to Julian Oram, who was at the time a researcher at the International Famine Centre at University College, Cork, the UPOV guidelines treat the Majority World’s biodiversity as the ‘heritage of mankind’ and therefore, freely available for scientific and commercial use. Once a Minority World corporation has acquired the biological material and ‘transformed’ it through genetic engineering techniques, they can claim property rights on the basis that they have made an ‘invention’.  In an unpublished paper, Oram wrote that “having done this the ‘free heritage of mankind’ plundered from the fields and forests of local communities could be sold back to them as a commodity.” [1]

 

Plant Variety Protection legislation (PVP), while not as strong as patenting legislation, protects the genetic makeup of a specific plant variety.   PVP laws can in some restricted circumstances allow farmers to save seeds from their harvest to plant the following year.  However, under pressure from Minority world agribusiness corporations, legislation in Majority World countries can be very restrictive.  I witnessed this in Philippines in the 1980s. PVP legislation was introduced in the Philippine Senate which extended the rights of breeders to the farmer,s harvest and the direct product of that harvest. If, for example, a farmer sowed a field with a protected variety without paying a royalty to the company that produced the seeds that company had the right to claim ownership of the entire harvest. [2]

 

In April 2002 CIDSE [3]and Caritas Internationalis[4] issued a joint document on Trade for Food Security.  The document criticised the TRIPs provisions in the WTO.  It stated that, “the WTO’s Agreement on Trade-Related Intellectual Property Rights (TRIPs) is a key element in the discussion of food security owing to its implications for public access to genetic resources…..The patenting of food crops under TRIPs affects control over and access to those genetic resources that secure the right to food. It undermines the farmer’s right to save, breed and exchange seeds, a country’s right to protect indigenous knowledge, and citizen’s rights to participate in  decision-making and to influence public policies over their country’s natural resource base.  Many developing countries have resisted the TRIPs requirements, objecting on ethical grounds that no human being can ‘own’ life, but also from the fear that a few large transnational companies will use patent rights to appropriate genetic resources and indigenous knowledge, and in addition misuse their monopoly to increase prices and block competition.”[5]

The document goes on to recommend that we “Use the current substantive review of Article 27.3(b) of TRIPs, and the  built-in review of the TRIPs Agreement as a whole, to exclude all life forms from patenting and remove the requirement for plant variety protection.  Ensure consistency between the TRIPs and the provisions of the Convention on Biological Diversity (CBD)– in particular towards achieving free and fair access to genetic resources, prior and informed consent and benefit (stop bio-piracy).”[6] Incredibly this document did not appear in the preparatory booklet for the Pontifical Academy of the Sciences’ Study-Week in May 2009!

 

The CBD was negotiated at the Earth Summit in Rio de Janeiro in June 1991. It was signed by 150 countries. It sets out to protect biodiversity globally and to ensure that there is fair and equitable distribution of the financial benefits derived from these biological and genetic resources.  For this reason it is more in sympathy with the rights of Majority World countries, traditional farmers and tribal people than TRIPs which only benefits corporations. Article 3 and 15 of the CBD recognises each country’s sovereignty over its genetic and biological resources. In order to guard against biopiracy, it requires that any person or corporation who wishes to gain access to these resources obtain the consent of the host country (Article 15.5).  The convention is particularly mindful of the role played by tribal people and traditional farmers in enhancing and maintaining biodiversity down through the centuries. This is enshrined in Articles 8 (j) and 15.  It also affirms that the ‘conservation of biological diversity is the common concern of humankind.’ TRIPS 27.3 (b) effectively negates all these provisions which is why it should be scrapped because it favours rich corporations and penalises poor people.


[1] Julian Oram, “The TRIPs Agreement and Its Implication for Food Secrity,” unpublished talk, Dublin, September, 1999.

[2] Senate Bill no 1865, co-authored by Senators Manuel Villar, Juan Flavier and Sergio Osmena III.

[3] CIDSE is an umbrella organisation for 14 Catholic development organisations in  Europe and Canada. Their website is www.cidse.org

[4] Caritas Internationalist is a confederation of 154 Catholic relief, development and social service organisations present in 198 countries and territories. The website is www. caritas.org

[5] CIDSE CARITAS INTERNATIONALIS, “Trade for Food Security?  Policy statement on the occasion of the “WORLD FOOD SUMMIT; five years later.”  April 2002 www.cidse.org page 5.

[6] Ibid page 6.

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