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North-South Conflicts in Intellectual Property Rights
Vandana Shiva, Director, Research Foundation for Science,
Technology and Natural Resource Policy
Patents on life were globalized by a decision made during the Uruguay Round of the General Agreement for Trade and Tariffs (GATT)to include IPRs (intellectual property rights) in trade treaties, and to include life in IPR regimes. The Trade Related Intellectual Property Rights Agreement (TRIPs) was drafted and pushed by industry. As James Enyart of Monsanto has stated, "Besides selling our concepts at home, we went to Geneva where [we] present [our] document to the staff of the GATT Secretariat. We also took the opportunity to present it to the Geneva based representatives of a large number of countries."
What I have described to you is absolutely unprecedented in GATT. Industry has identified a major problem for international trade. It crafted a solution, reduced it to a concrete proposal and sold it to our own and other governments. The industries and traders of world commerce have played simultaneously the role of patients, diagnosticians and prescribing physicians.
The TRIPs agreement of GATT, by allowing for monopolistic control of life forms, has serious ramifications for biodiversity conservation and the environment. Article 27.3(b) of the TRIPs agreement states:
Parties may exclude from patentability plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of the Agreement establishing the WTO.While most Third World countries wanted TRIPs changed to prevent patents on life and biopiracy, the US is upholding the patenting of life forms and indigenous knowledge.
In granting the first patent on life in 1980, the US Supreme Court interpreted life as "manufacture or composition of matter." This started the slide down the slippery slope of patenting seeds, cows, sheep, human cells and micro-organisms. The US is proud of having started a perverse trend based on flawed scientific assumptions that ignore the self-organizing, dynamic, interactive nature of life forms, defining them as a mere "composition of matter."
The US is committed to patents on life in order to defend its biotechnology industry. Having opened the flood gates, the US patent office started to grant patents not just to genetically modified organisms (GMOs), but to processes and products derived from indigenous knowledge of biological resources. This is how patents on neem, karela, and basmati have been given in the US.
The US states that requiring patent applicants to identify the source of genetic materials or traditional knowledge used in developing their claim "would be impractical." Forcing all countries to change their patent laws in spite of protests is considered practical. Changing the world's cultures and enforcing property rights on seed is considered practical. Collecting royalties from the poor in the Third World for resources and knowledge that came from them in the first place is considered practical. But taking the simple step to change one clause in one law in the US and one clause in TRIPs is considered impractical. This suggests that the US is committed to promoting biopiracy.
Anything short of stopping biopiracy through reforming TRIPs is participation in a crime against nature and the poor.
TRIPs and US style patent laws annihilate the rights of Third World communities by not having any system of recognition and protection of indigenous knowledge. Biopiracy is intellectual and cultural rape. It is the slavery of the new millennium, and there is only one way to stop it—to make it illegal in international law by changing TRIPs. Anything short of stopping biopiracy through reforming TRIPs is participation in a crime against nature and the poor.
When TRIPs was forced on countries during the Uruguay Round, many issues of public concern were bypassed and the full ethical, ecological and economic implications of patenting life were not discussed. Third World countries were coerced into accepting the Western style IPR system. As a result of sustained public pressure after the agreement came into force in 1995, many Third World countries have made recommendations for changes in Article 27.3 (b) to prevent biopiracy.
In a discussion paper submitted to the TRIPs Council in Geneva concerning the patenting of life forms, the Indian Government wrote that:
Patenting of life forms may have at least two dimensions. Firstly, there is the ethical question of the extent of private ownership that could be extended to life forms. The second dimension relates to the use of IPRs concept as understood in the industrialized world and its appropriateness in the face of the larger dimension of rights on knowledge, their ownership, use, transfer and dissemination. Informal systems, e.g. the "shrutis" and "smritis" in the Indian tradition and grandmother's potions all over the world get scant recognition. To create systems that fail to address this issue can have severe adverse consequences on mankind, some say even leading to extinction.African and Central American countries, as well India's prestigious Research Foundation for Science, Technology and Ecology, have also demanded a five-year delay in the implementation of TRIPs. As a Third World country, India's interest lies in working with other developing countries to change the IPR systems being globalized through TRIPs, claiming that TRIPs is biased in favor of rich industrialized countries and global corporations.
Article 27.3(b) was to be reviewed during the WTO Seattle Ministerial Conference. Bolivia, Colombia, Ecuador, Nicaragua and Peru submitted a proposal, "Protection of Intellectual Property Rights Relating to the Traditional Knowledge of Local and Indigenous Communities." The paper states that: "The entire modern evolution of intellectual property has been framed by principles and systems which have tended to leave aside a large sector of human creativity, namely the traditional knowledge possessed by local and indigenous communities."
The group proposed that negotiations be initiated at Seattle to establish a multilateral legal framework for granting protection to traditional knowledge. The entire African Group has also called for systems to protect traditional knowledge. The African Group, represented through the Organization of African Unity (OAU), proposed that a footnote be inserted to Article 27.3(b) stating that any sui generis law for plant variety protection can provide for the protection of the innovations of indigenous and local farming communities in developing countries, consistent with the Convention on Biological Diversity and the International Undertaking on Plant Genetic Resources. The African Group and India have also called for the exclusion of life forms from patentability and for the WTO to be subordinate to the Convention on Biological Diversity (CBD).
Although the African Group, five countries in Central and Latin America, and India have called for changes in Article 27.3(b) on the basis of their right to a review as built into the Agreement, the US and Europe are determined to block the reform of TRIPs and any attempt to stop biopiracy. In a "Green Room" consultation (the undemocratic structure of decision making in WTO), the powerful industrialized countries told Mike Moore, the Director General, that they rejected all the proposals for the reform of TRIPs. The US and Europe have rejected developing country proposals related to Article 27.3(b) on the grounds that the WTO cannot be subordinated to other international agreements. This confirms the environmental movement's fears that the WTO sacrifices the environment for trade. Through the WTO, the rich North is committed to protecting corporate monopoly rights, even if this means undermining protections for nature and people guaranteed by international agreements and national constitutions.
On May 10, 2000, the anniversary of the launch of the first Indian movement for independence, a major milestone was crossed in the contemporary movement of freedom from biocolonialism and biopiracy. The European Patent Office (EPO) struck down Patent No. 0436257 B1, jointly held by the US Government and the multinational W.R. Grace, as based on the piracy of existing knowledge, and lacking in novelty and inventiveness. U.S.D.A. and W.R. Grace had filed the Patent on December 12, 1990. On September 14, 1994, the European Patent Office granted a patent for "A method for controlling fungi on plants comprising contacting the fungi with a neem oil formulation containing 0.1 to 10% of a hydrophobic extracted neem oil which is substantially free of azadirachtin, 0.005 to 50% of emulsifying surfactant, and 0 to 99% water."
I filed a patent challenge on June 5, 1995 as Director of the Research Foundation for Science, Technology and Ecology, with Linda Bullard, President of the International Federation of Organic Agriculture Movements, and Magda Alvoet, currently Health and Environment Minister of Belgium. We filed a legal opposition because the use of neem extracts for fungicide and pesticide has been practiced for centuries and investigated scientifically and commercially for decades prior to the claim to invention in the USDA-Grace patent. During five years, we brought every possible evidence to bear on the case through affidavits from farmers and scientists.
The work for the "Neem Challenge" started in 1994 when I first read about the neem patents in a journal. We launched the "Neem Campaign" in India, and formed the "Neem Team"—an international network of patent warriors to support our national campaign. We started the campaign because of the importance of neem in our culture, our agriculture and our health systems. We picked the fungicide patent because it was owned by the US Government and a big multinational corporation (MNC). It was therefore a powerful symbol of biopiracy and the flaws of Western industrial IPR systems. Neem is an important symbol because it is used on a large scale for medicine and agriculture in India.
Freeing the free tree was part of an experiment in finding new ways to defend liberty in an era of biocolonialism.
If biopiracy can occur with such commonly used knowledge, what would be the fate of less prevalent examples of traditional innovation? Neem was also important because it is an ecologically sound alternative to hazardous pesticides. Our campaign "No more Bhopals, plant a neem" started in 1984 at the time of the Bhopal disaster. Neem has been a central part of the sustainable agriculture work that we have done in India through national networks on organic farming. Finally, neem is a symbol of freedom as the "Free Tree." Its scientific name, Azadirachtin Indica, is derived from Azad Darakt which means free tree. Liberating the free tree thus became the symbol of our liberation movement to free knowledge systems and biodiversity from biopiracy.
The neem battle has been described as one between Davids and Goliaths—the Davids being three women and their organizations, the Goliaths being a superpower and a major multinational corporation. The USDA and Grace attorneys tried every argument under the sun to dismiss the case and block the proceedings, including procedural arguments that as an Indian I could not bring a case to the EPO and that the Research Foundation had not paid a $2,000 fee. Working together as friends and colleagues over more than a decade, Linda Bullard, Magda Alvoet, and others in the movement against biopiracy evolved creative ways to challenge money power with moral power, and the might of corporations and governments with solidarity. In this case David won and on the afternoon of May 10, 2000 the patent was revoked! Freeing the free tree was part of an experiment in finding new ways to defend liberty in an era of biocolonialism.
Vandana Shiva is a physicist, environmental activist, and Director of the Research Foundation for Science, Technology and Natural Resource Policy. She was the winner of the Right Livelihood Award for 1993. Her books include Stolen Harvest, Biopiracy, Monocultures of the Mind, The Violence of the Green Revolution, and Staying Alive.