May 15, 1998
CALL FOR FULL INVESTIGATION OF BIO-PIRACY
Geneva, 14 May (Chakravarthi Raghavan) -- There is now a predatory pattern of bio-piracy supported by global plant breeder/patent protection conventions, supported by national legislation in several OECD countries and, for its own credibility, the World Trade Organization should undertake a full investigation of biopiracy and IPR regimes as a preliminary to its review of the TRIPs chapter of the WTO, a leading Canada-based international NGO has demanded.
RAFI says it has been able to identify, in cooperation with an Australian group, Heritage Seed Curators' Association (HERA), atleast 118 Plant Breeders Rights (PBR) claims, based on material originating in atleast 36 countries, but improperly appropriated by such claims in atleast half a dozen countries.
Additionally, RAFI charges, rights of indigenous peoples in Australia, have been thus misappropriated in Australia by seed companies for PBRs.
The Rural Advancement Foundation International (RAFI) in its Jan-Feb 'RAFI Communique' has focused particularly on the bio-piracy activities, helped by national laws and administrations, in Australia and the United States, charging that germ-plasm from international public gene banks (of the FAO/CGIAR systems), and even plain seeds 'stolen' from standing crops in farmers fields in the developing world (as in Kenya), have been patented and monopoly rights claimed.
While congratulating the new WIPO head, Dr. Kamal Idris (of Sudan), RAFI also charges that the WIPO-administered UPOV (French acronym of the Convention for the Protection of new Varieties of Plants) with using pressure to make its 'onerous 1991' Convention obligatory under the WTO during the review of Art. 27.3 of the TRIPs next year.
An UPOV secretariat press release in April, announcing the entry into force of UPOV 1991, said that WTO-TRIPs Art. 27.3.b requires all WTO members to protect plant varieties through patents or a sui generis system, and that UPOV Convention is the "only internatiionally recognized sui generis system for protection of plant varieties." Other
IPR and trade experts have challenged this view.
The RAFI bulletin says that apart from Australia and United States (and the publicised cases of PBR bio-piracy in these two countries, using the germ-plasm from international gene-banks storing nationally donated varieties). search of publicly available patent records in OECD countries showed there have been atleast 118 plant accessions, originating in at least 36 countries, that have been improperly appropriated by public and private breeders in half-dozen countries.
In at least 16 cases, the material came from seven International Agricultural Research Centres (IARCs), with some of the latter not even intervening or challenging such misappropriation even when brought to light.
RAFI notes that the issue of bio-piracy and farmers rights is figuring in several critical negotiations (and reviews) involving the Biodiversity Convention, the FAO, the CGIAR, the WTO and UPOV.
RAFI recalls that in Dec 1997, at the Rome meeting of the FAO Commission on Genetic Resources (CGFRA), Australia had dismissed Farmers' Rights as 'irrelevant' and did not see why or how farmers should be compensated for their germplasm. And when it was pointed out that Australia had benefited enormously from hundreds of farmers varieties, including chickpeas from Asia, under PBR claims, Australia said it was being 'falsely accused' of biopiracy.
But a day later, the FAO conference newspaper reported that Indian and Iranian chickpeas collected by the International Centre for Research in Semi-Arid Tropics (ICRISAT), based in Hyderabad (India) were awaiting PBR approvals in Australia. The PBR claim, not by a TNC seed giant but Australian government agencies, had designated the chickpea as "designated germplasm" - thus protected against patent claims by a FAO-ICRISAT Trust Agreement, and the Material Transfer Agreement (MTA) signed by Australians. After denying the charge, following a demand from ICRISAT, Australia abandoned the PBR applications.
While the FAO arrangements for these gene banks, from material donated by mostly Third World countries and their farmers, created a Trust agreement, the prohibition of patent or PBR rights had to be provided in individual MTAs that the CGIAR research institutions had to get those to whom they provide germplasm had to sign. While ICRISAT and some others had such MTA accords, other CGIAR institutions either did not have them or had very weak ones.
RAFI charges that the concerned Australian government agencies in fact hid their PBR claim actions from ICRISAT, and when exposed sought to pressure ICRISAT into changing the MTA agreement to allow PBR claims.
Following this dispute, and the debates over the inherent injustice of PBRs and patent monopolies that ensued, RAFI and HSCA undertook an electronic survey of patent records for similar suspect claims, and uncovered atleast 118 such claims of material belonging to 36 countries.
RAFI charges that while ICRISAT had moved to challenge such claims, the search turned up some "questionable" claims on lentil varieties taken from another CGIAR group organization, the Syria-based International Centre for Agricultural Research in Dry Crops (ICARDA).
The claims filed in Australia showed no evidence of actual breeding by Australians and some of the lentils proved to be FAO Trust germplasm. But some of the PBR claims had been accepted by the PBR offices in Australia, despite the absence of plant breeding and, in some cases, the ICARDA varieties were tested for distinctness against inappropriate cultivars - to guarantee approval.
The PBR office, it appeared, was either negligent or collusive, RAFI charges, adding it was not just abusive applications, but abusive PBR legislation.
It was not a scandal endemic to one 'rogue' state of Australia, but a "full blown epidemic" involving atleast six Australian state governments and several prominent federal agencies and universities who have been persistently participating in such dubious claims, RAFI charges.
Other examples include a forage peanut (arachis pintoi) shared by Brazilian scientists, under FAO trust through CIAT (International Centre for Tropical Agriculture, Colombia) and PBR claimed by CSIRO (Commonwealth Scientific and Industrial Research Organization), one of Australia's most prestigious research bodies.
The CSIRO, RAFI charges, has also snatched up grasses from Kenya, Mozambique and Tanzania in Africa; India and Pakistan in South Asia; and Venezuela and Brazil in Latin America.
State agencies in Queensland have also made proprietary claims on varieties from Argentina to Zimbabwe, including Cuba, Mexico, Kenya, Botswana and others.
In every case there has been no evidence of plant breeding, and many indications that plant breeders just grabbed seeds from a farmer's field, made for the airport, selected the best seeds and applied for PBR certification. Many of the claims were quite frank on lack of inventiveness and suggest that breeders felt a passport and plane-ticket were synonyms for inventiveness.
In 1994, when Australia revamped its PBR legislation, HSCA President Bill Hankin, warned that the legislation was an invitation to bio-piracy, but then Australian Minister for Primary Industries denied such a risk - saying that the PBR office won't allow it and breeders won't bother themselves with farmers varieties.
But less than four years later, no one in Australia would repeat that boast, RAFI comments.
The full dimensions of the scandal still remain to be uncovered, RAFI says, and says corporate breeders in Australia are hinting that deals are being made on lupin varieties, in collusion between Australian enterprises and PBR office, intended to keep French breeders from obtaining certificates.
Also, a number of indigenous plant kinds that are property of Aboriginal communities have been successfully claimed by Australian companies -- with piracies ranging from medicinal plants and ornamentals to forages and sea celery.
Those who argue that national PBR laws protect rights of farmers and indigenous people must now explain why the legislation failed so miserably even among the citizens and corporations of Australia, RAFI says.
While the FAO-CGIAR trust agreements were signed in Oct 1994, final authority over the half million seed accessions collected prior to the Convention on Biodiversity rested with the FAO, with the CG centres holding them in trust on behalf of the international community. Art. 10 of the text prohibits Centres from allowing designated germplasm to be appropriated by IPR claims.
However, there is no obligation for governments and companies to honour the deal, and it is for this reason that most Centres require receiving seed companies to enter into a MTA promising not to expropriate trust accessions. And the fiasco in Australian PBR claims exposes several weaknesses in the agreement.
There is no single electronically accessible list of all the Trust germplasm. There is also an absence of easily-constructed internet links between the Trust germplams, national PBR and seed certification offices and the WIPO-UPOV electronic database.
The CGIAR (the World-bank based Consultative Group of International Agricultural Research Organizations) is in the midst of building a very sophisticated germplasm and variety pedigree system, but they are yet to merge CG data with UPOV in order to track piracy.
Neither FAO nor CGIAR currently have the resources to adequately monitor germplasm flows. No one expected such levels of abuse. There are no procedures in place nor staff assigned to this task. There is no place to go with complaints. While much of the work could be done electronically, FAO and CGIAR should come up with credible proposals for this work at the FAO Commission meeting (8-12 June) in Rome.
The Australian abuses also reveal misunderstandings and policy confusions among CGIAR centres.
While ICRISAT moved forcefully to defend the MTAs and FAO trust, despite implied threats from Australian agencies to cut ICRISAT out of a gene mapping initiative.
But the ICARDA based in Aleppo, Syria has ignored the FAO trust, and agreed to allow Australians to claims PBRs over the lentils so long as the country of origin agreed. Despite blunt assurances from FAO and CGIAR, RAFI charges that ICARDA continues to argue they are acting in good faith under the CBD Convention. Also, it is thought that senior ICARDA staff suffer from wounded egos and are now too embarrassed to withdraw their improper MTAs. But atleast one Australian institute has acknowledged the gaffe and agreed to abandon the lentil claims.
In other instances duram wheat plasm from the CIMMYT (Spanish acronym for International Wheat Improvement Centre) collection has been placed under PBR in New Zealand, much to CIMMYT's surprise. The durum wheat may be Trust material, but not part of the CIMMYT-FAO Trust, and responsibility for durum rests with ICARDA.
The IRRI (International Rice Research Institute in Los Banos, the Philippines) has a rice collected, duplicated for safe-keeping in the USA. Virtually all of IRRI collections are held in trust for FAO.
Neverthless, the US firm RiceTec Inc, whose board is chaired by Prince Hans-Adam II of Leichenstein, has access to the US collection and has both patent and PBR claims on a number of accession derivatives.
RAFI suggests that much of the IRRI's basmati rice collection is involved in RiceTec's IPR initiative and if RiceTec is successful, basmati exports from India and Pakistan would be threatened and with it the livelihood of more 220,000 farm families from the area.
This suggests that all duplicated FAO Trust material should be placed under the same provisions as to the original samples.
The IRRI's disease-resistant rice gene, isolated from a socalled 'wild' West African rice in the accessions have been obtained from IRRI by scientists at the Univ. of California (Davis)( prior to the signing of the FAO Trust agreement, but applied for a profitable gene patent after the agreement came into force.
Prior to this, the scientists sought the approval of the IRRI and the Rockfeller Foundation (whose funds supported the research), and both parties appear to have agreed to the claim which the two, RAFI says, should have refused since the FAO-IRRI accord is not confined to the 'accessions' but all the 'germplasm'.
RAFI rejects the idea that since this proves multilateralism does not work, everything should be left to national legislations.
This, RAFI points out, overlooks the history of this issue that led to the UN CBD convention and the Nairobi conference decision calling for a Trust agreement and prohibition of IPR claims.
Also, the agricultural germplasm is out in the field, "protected" by national sovereignty recognized by the UN CBD Convention. However it is not known how many bilateral deals, if any, allowing benefits to the South or to its farmers, have been signed, and how much material has been stolen from farm bins since the CBD entered into force.
Also, since the Rio Earth Summit, civil society organizations (CSOs) have released information on literally hundreds of cases of bio-piracy, usually of high-value pharmaceutical plants and/or animals, involving more than 60 countries and every part of the world.
In most cases, specific stories were transmitted to appropriate governments with sufficient information for authorities to take action.
But except for India and the Solomon Islands, "there are almost no instances of governments have acted to defend their national self-interest," RAFI complains.
The only example where bio piracy of agricultural germplasm is being systematically opposed is through the FAO-CGIAR Trust agreement. The South's interests have been better defended in the past few months than ever in the history of the PBR.
But while the FAO-CGIAR Trust agreements could defend germplam of identified origins against biopiracy, there are awkward questions about vast material without "passport data" and filed generally as coming from "Mediterranean", "North Africa", "Indian subcontinent" or "Latin American".
But a more central question is whether national governments and/or farming communities could or should take time and money to claim each of their own crop accessions (donations).
Not only is the cost exorbitant, but financial returns may be negligible. There is also the issue of the capacity of countries and communities to defend their claims through litigation.
RAFI complains of the passive-aggressive, pro-monopoly posture of WIPO and UPOV on these issues.
When UPOV's Council meets in Geneva in October, RAFI suggests, governments, farmers and communities should ask some questions:
Why doesn't UPOV monitor inappropriate variety evaluation programmes? How can it allow its newest member South Africa to pay royalties for varieties that it could have obtained for free? Why does UPOV not stop governments from giving exclusive licenses on varieties they neither bred nor own? Why dosn't UPOV investigate piracy of plant varieties from its other new members - Argentina, Brazil, Colombia, Mexico and Kenya - by misguided institutions in Australia and New Zealand?
"Rather than push poor countries and even poorer farmers from adopting western models of IPR monopolies, governments should be demanding an investigation of UPOV and PBRs around the world.
"The Australian scandal shows that the UPOV Convention is predatory legislation legitimating right of commercial interests to prey upon knowledge of indigenous farming communities. Institutions are able to make claims without undertaking genuine plant breeding and PBR offices are failing to test claimed varieties against original germplasm samples.
"Rather than the USA calling on WTO to adopt patents or UPOV 1991 in TRIPs, the world should be launching a full-scale inquiry into the workings of UPOV since it began in 1961....The Australian example shows that PBR monopolies are available even when they are Distinct, Uniform, Stable and STOLEN..."