Trade-Related Intellectual Properties (TRIPs. 27. 3b) Fr. Seán McDonagh, SSC (July 1st 2009)

In this series of articles I have attempted to show how the U.S. position was adopted by the negotiators at the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).  This was carried over into the new body – the World Trade Organisation (WTO) when it was established in 1994. As Joseph Stiglitz points out in his book Making Globalization Work, corporations “that care intensely about intellectual properties have succeeded in getting more and more of what they wanted.”[1] At that time, Stiglitz was a member of Council of Economic Advisers and the Office of Science and Technology Policy in the Clinton administration.  He recalls that this group attempted to communicate to the U.S. negotiators their reservations about the policy that was been vigorously forced on other countries.  As an economist he felt that it was not necessarily in the best interest of the United States and certainly it was not in the interest of  three billion people living in the Majority world.  All the poor got was a little extension in the timeframe before they would have to implement all the  Intellectual Property provisions of TRIPs.  The Clinton Administration was marching to the drum beat of corporate America.


Stiglitz is aware of the hypocrisy of the TRIPs.  Trade agreements are supposed to free up movement of goods and services, not to restrict trade and create more monopolies. He states that “in order to shoehorn it (TRIPs) into the trade agreement, the negotiators added the two words, “trade related.”  Intellectual  Properties have nothing to do with trade.  TRIPs is  designed to keep the Majority world in a permanent state of dependency on the Minority world, and especially on Minority world corporations. Through TRIPs these corporations want to get control of many crucial aspects of people’s lives, especially in the area of food, medicine and water.


TRIPs came under sustained attack at the WTO meeting in Seattle in November 1999.  The U.S. trade representative Charlene Barshefsky, and the director-general Mike Moore from New Zealand, tried to get a statement from the meeting.  Majority world delegates, who were beginning to understand the extraordinary implications, felt excluded from the negotiations. The Minority world leaders, responding to the corporate agenda wanted to have a review of TRIPs at Seattle. By review they did not mean taking another look at this mechanism which was designed to further impoverish the poor by demanding that they pay royalties on  medicines and food crops to rich and powerful Majority world corporations. Review, in this context, meant judging how compliant individual countries were to the various provisions of TRIPs.  The African countries were so exasperated at the way they were being treated that they issued a statement pointing out that the meeting lacked transparency and that they were being excluded from discussing issues which were vital for their future. No review of TRIPS took place at Seattle..


Organisations such as the WTO are not easily thwarted.  By the spring of 2001, the WTO personnel were laying the groundwork for another round of trade negotiations.   Many Majority world representatives and those from Civil Society Organisations (CSO) had hoped that the WTO meeting in Cancun, Mexico would review the article on TRIPs and rewrite it in a way that protects vulnerable subsistence farmers in the Majority world and the environment. The main aim of such a review would be to affirm that all living beings ought to be considered the common property of humanity and our earth.


It is true that in its present form TRIPs 27.3 (b) allows members to exclude from patentability, plants and animals other than micro-organisms, and biological processes essential for the production of plants and animals. The trouble is that states that are members of the WTO must enact legislation in the above areas which is tantamount to patenting.  It states that member states shall provide for the protection of plant varieties either by patents or by an effective sui generis (literally of its own kind) or by any combination thereof.


During the late 1990s and early part of the present decade, the U.S. has been pressurising Majority world countries to adopt sui generis legislation along the lines of that laid down by the Geneva based Union  for the Protection of New Varieties of Plants (UPOV) which is similar to patenting. The injustice of this approach is that it views the biodiversity of the Majority world as the “common heritage of mankind.” However, once identified and altered through genetic engineering by transnational corporations it can be patented and sold as a product.

[1] Joseph Stiglitz, 2006, Making Globalization Work, Penguin Books, London, page 116.


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