Mar 24, 1990

TRIPS ACCORD COULD ENDANGER GENETIC DIVERSITY.

GENEVA, MARCH 20 (BY CHAKRAVARTHI RAGHAVAN) -- No decisions should be taken in the GATT concerning extension of Intellectual Property Rights (IPRs) to plant genetic material without full consultations with experts on impact of extending patents to genetic resources, the Keystone Dialogue group has recommended.

The recommendation relating to the GATT TRIPs negotiations is in the consensus report of the Keystone International Dialogue at its meeting in Madras, India, 29 January to 2 February.

While the final report of the meeting covering the full range of issues relating to plant genetic resources is expected to be available in a few weeks, some relevant extracts from a communique of the Rural Advancement Fund International (RAFI) were made available here Wednesday to participants at a seminar on biotechnology organised at the World Council of Churches.

Chaired by Dr. M. S. Swaminathan, President of the International Union for Conservation of Nature (IUCN), the Keystone group (after the first meeting in 1988 at the Keystone Center in Colorado U.S.A.) brings together senior officials from governments, intergovernmental organisations, scientific institutes, transnational Corporations and non-governmental organisations, all in their individual capacities, to discuss controversial topics. The final documents at Keystone meetings are adopted by consensus.

The Madras meeting was attended by top germplasm system officials or policy-makers from Brazil, China, Ethiopia, India, Indonesia, Japan, Mexico, Netherlands, Norway, Peru, Soviet Union and Zimbabwe, officials from FAO and UNEP, industry officials from Ciba-Geigy, Pioneer Hi-Bred and KWS, representatives from organisations like IUCN and CGIAR, and NGOs including the WCC and RAFI.

TRIPs is one of the items on the agenda of the Uruguay Round GATT Negotiations, and some of the proposals from the ICs before the TRIPs group call for wide-ranging and uniform worldwide standards on patents and other IPRs - for e.g. extending patentability to all products and processes which are "new, useful and unobvious" and for a 20-year life for patents, as a U.S. proposal puts it.

"The present IPR systems", the Madras session concluded, "do not promote, nor were they designed to promote, the protection of diversity of whole ecosystems or unmodified plants from ecosystems. However, the evaluation, use and maintenance of plants may be encouraged indirectly by the patent system when a specific constituent (e.g. pharmaceutical, food additive) of the plant has a commercial value and can be protected".

"There is an incomplete understanding of the impact which the extension of IPRs to plant genetic materials and plant varieties could have on the maintenance and preservation of genetic resources. Current IPRs can promote development of new varieties and increase the availability of new genetic combinations. At the level of individual plant species of agronomic value, current IPR systems reinforce the tendency of plant breeding to decrease genetic diversity".

"... These systems encourage the production and dissemination of new varieties which often replace the more diverse landraces and local crops ... commercial research tends to focus on a limited number of crops with large acreage or with a high profitability of seed sales. Moreover, the existing uniformity requirement to obtain Plant Breeders' rights ensures a high degree of genetic uniformity within a variety. The protected variety has the potential to displace more genetically diverse landraces".

Keystone participants recommended that the impact of extending patenting to genetic resources should be assessed in consultation with a range of regional and global governmental and non-governmental organisations.

"Governments involved in the GATT TRIPs negotiations should consult with experts in their countries concerning biological diversity to assess the potential impact of the negotiations on the preservation and exchange of Plant Genetic Resources (PGR). No decisions should be taken in GATT concerning the extension of IPR to plant genetic material without these prior consultations".

According to RAFI communique, Keystone participants concluded in the era of biotechnology, all biological products and processes would become patentable material and that the U.S. would be in a position to act against any Third World country that did not provide exclusive monopoly opportunities for Northern corporations in national laws.

The meeting warned, "... if some of the changes now proposed by some industrialised nations in GATT and WIPO are successful, the only forms of human innovation that will not be patentable will be ose of informal innovators in developing countries. The twin dangers of expansion of the scope of formal patent rights on the one hand and non-recognition of the informal innovation systems on the other will lead to a widening of the economic gap between industrialised and poor nations. A better common future for humankind will remain an illusion".

"This is why the matter of giving concrete shape to Farmers' Rights assumes urgency" and if the GATT negotiations "encompasses such an extension (into biological products and processes), it would appear to conflict with treating the basic premise of genetic resources as a common heritage".

The Madras meeting also addressed itself to the issue of "Farmers' Rights" and recommended the establishment of a mandatory $ 500 million fund to compensate Third World farmers for their past and continuing contributions to plant genetic resources conservation.

The fund is to be paid by ICs on a scale in proportion to either the retail seed market or as a share in their total use of biological products and processes.

"It is attractive and in some respects appropriate to suggest that the size of the fund and the subscription charge for each member-State should be in proportion to each nation's share in the global retail trade in seeds, plants and all planting materials plus some ratio of the ultimate commercial significance of medicinal and other economic plants".

The $ 500 million per annum is about three percent of the sales of the global seed industry.

The fund is explicitly linked to Farmers' Rights and the need to compensate Third World farmers for plant genetic resources. In the past, Northern governments and industry have denied any obligation to pay farmers and medicinalists for their seeds and plants which serve as feedstock for plant breeding and new pharmaceuticals.

The Madras meeting agreed that "... neither the marketplace nor current intellectual property systems have any way of assigning value to this valuable material. No compensation or reward mechanisms exist ... A concrete way of recognising Farmers' Rights would be a fund ... We speak of compensation because it implies a relationship with obligation. We agree on the concept of Farmers' Rights and we agree that contributions to a Fund should not be voluntary".

The issue of Farmers' rights vs. Plant Breeders Rights, and question of ownership of and access to Third World genetic resources collected and stored as germplasm in various international collection centres has been figuring in the Food and Agriculture Organisation since 1985. The UN Environment Programme also is currently trying to formulate an international convention on conservation of genetic diversity in nature.

When the debate first surfaced at the FAO in 1985, representatives from the North termed the idea as "romantic" and doubted its usefulness in the exchange in plant germplasm. The Keystone report suggests that Northern governments and Industry may be coming around to accepting the idea of the fund as a way of assured access.

At the seminar Wednesday at the WCC questions were raised about the adequacy of the compensation, in relation to the implication that the North and its corporations will have full access to the plant genetic resources of the South without any restrictions.

Some of the NGO experts however said that $ 500 million suggested for the Fund appeared to be merely the "opening gambit" of the Industry to gain access, and that Third World negotiators might do well to brine into the GATT negotiations the "Farmers' Rights" as part of the IPR issue.

It was noted that currently there is a UNESCO/WIPO model law for national provisions on "Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Notions" and there were efforts at UNESCO towards an international convention granting communities intellectual property rights over the "knowledge of the common people".

The concept, they said, should be extended to plant and genetic resources through the idea of "folkseed", a term coined at the Keystone meeting, to replace the current value-loaded biased language about the seeds of farmers variously described as "stone-age varieties", "primitive cultivars" or "landraces".

"If folklore concepts, as broadly interpreted at the Keystone dialogue be extended to 'folkseed', Third World farmers or their governments on their behalf could have exclusive monopoly rights over their seeds stored in gene banks in the North and might be entitled to retroactive royalties on material incorporated into currently used varieties", Pat Roy Mooney of RAFI said.

Some of the Third World delegations present at the seminar however pointed to the difficulties of enforcement of such collective rights. Some new concepts about how these could be patented, and who would exercise the right on behalf of a community etc would have to be through and worked out, they said.