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| Sunday, 28 March 2004 |
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Farmers' rights and the TRIPS agreement : Biodiversity under threat by AVANTHI WEERASINGHE In to day's highly globalized world Intellectual Property Rights (IPRs) play a prominent role in maintaining competitiveness of both firms and countries in all sectors of the economy including the agricultural sector. Accordingly from recent times IPRs are being considered as a trade issue as international competition in traded goods increasingly contains a high degree of innovation.
The efforts of the World Trade Organization (WTO) to extend the application of the IPRs system to living things around the globe through Article 27(3)b of its Trade Related Aspects Of Intellectual Property Rights (TRIPS) agreement is one such effort to patent life forms. This has resulted in gross injustice to South Asian countries and in particular to its farming and indigenous communities. With the increasing level of globalization more and more pressure is exerted by the WTO on developing countries to adhere to its intellectual property rights regime as laid down in the TRIPS agreement. Article 27(3)b is the result of strong lobby of the technology rich Northern countries to have private monopolistic rights over biological resources of the South. Providing for patents over components of bio diversity including microorganisms, and plant varieties has facilitated patenting of bio diversity.
SL hot spot Sri Lanka has been recognized as a biodiversity hot spot in view of its uniquely high levels of bio diversity. Sri Lanka is rich in both wild and agro bio diversity. Nature has sanctified Sri Lanka with a very high toxic diversity. For instance Sri Lanka has over 50% of the flowering plant families recorded in the world. Eco system diversity in Sri Lanka is also very high due to the heterogeneity of climate, topography, and other edaphic, environmental and biogeographical factors. Sri Lanka is equally rich in agro bio diversity. The continuous selection of plant varieties with special traits which suit different uses and different agro climatic conditions by the Sri Lankan farmers over centuries and the availability of a wide range of agro - ecological conditions have led to the creation of a high wealth of agro bio diversity. It is reported that Sri Lanka is home to around 2800 rice cultivars which suit different soil and climatic conditions, iron toxicity and are resistant to pests. Some of these land races are rich in its medicinal and nutrient value. Being a member of the WTO Sri Lanka too is under an obligation to bring its intellectual property rights regime in line with the provisions of the TRIPS agreement. Accordingly Sri Lanka passed its new Intellectual Property Rights law in year 2003. However this new law does not have a direct bearing on either the agro bio diversity or the rights of farmers as it does not allow patenting of plants. However the Intellectual Property Rights Office and the Department of Agriculture of Sri Lanka has drafted a law on plant variety protection which is based on UPOV 1991 International Union for the protection of Plant Varieties model in order to implement its obligations under Article 27(3)b of TRIPS which could have adverse effects on agro biodiversity. The obligation under Article 27.3.(b) can be broken down in to three components. A country may exclude from patentability plants, animals and essentially biological processes for the production of plants and animals. A country must allow patents for microorganisms and non biological and microbiological processes and A country must provide protection for plant varieties, either by patents or by an effective sui generis system or a combination thereof. No provision Although it is said that Sri Lanka has adopted a sui generis system of law in order to protect plant varieties even a cursory glance of the provisions of the draft law reveal that it is a verbatim reproduction of the UPOV 1991 model. The draft does not have any provision to protect the rights of farmers to crop wild relatives, traditional crop varieties, or newly developed crop varieties already in the public domain. There are no provisions to get just compensation in cases where one or more of these are used to make a variety by a private breeder which would be covered by breeders' rights. The draft law would prevent farmers from saving, exchanging and selling seeds of varieties protected by Plant Breeders Rights (PBR) laws. Further the draft has not provided any rights to the farmers who are the custodians of the traditional varieties who are being relegated to the position of an "optional exception." The provision on "essentially derived varieties" is capable of preventing both the local farmers and public breeders, namely the Department of Agriculture from using patented varieties for breeding purposes which could adversely affect the food security of the country in the context of the overdependence of the farmers on the varieties improved by the Department of Agriculture. While rejecting the TRIPS agreement the developing countries herald the Convention on biological Diversity (CBD) as a law which is favourable to the rights of farmers. In fact paragraph 19 of the Doha Declaration of the Fourth Ministerial Conference of the WTO has addressed the possible conflicts that could arise between TRIPS and CBD. Accordingly it has emphasized the necessity to examine the relationship between the TRIPS and the CBD focusing on the protection of traditional knowledge and folklore. Sri Lanka has ratified CBD in 1994 and is under an obligation to enact enabling legislation under it. Hence at this juncture it is important to assess the impact of those conventions namely TRIPS and CBD on the agro bio diversity and the rights of farmers of Sri Lanka. Contradictory In this paper it is argued that although prima facie TRIPS and CBD seems to contradict each other and CBD is heralded as a convention which is in the interests of developing countries a careful analysis of the provisions of the CBD would reveal that it is not without grey areas which could further strengthen the IPR regime of the TRIPS agreement over life forms. Although at the outset TRIPS appear to be contradictory to CBD a closer look at the latter reveals that it has acknowledged some of the concepts in TRIPS. However these conventions are drafted in such a way that shows that each convention deny what is central to each other's objectives. While emphasising both the conflicts and consensus that exist between these conventions the purpose of this paper is to show that these apparently contradictory conventions can in fact be integrated to enhance the legal regime aimed at protecting the biological resources and rights of farmers of Sri Lanka. While briefly discussing the origin of CBD the next part of the paper is assigned to discuss the possible conflicts between TRIPS and CBD. This would be followed by a discussion which would focus on the grey areas of CBD which could negate the effect of some of the salutary provisions in CBD. The last and the concluding section consists of some recommendations that Sri Lanka could adopt in drafting enabling legislation under these conventions so as to avoid adverse consequences of both. Origin of CBD Bio-diversity is the diversity of living beings of all species of plants, animals, their genetic material and the eco systems which they belong to. Biological resources include genetic resources with actual or potential use or value for humanity. A country can accrue a number of benefits from bio diversity in the fields of agriculture, medicine and industrial development. But today the entire globe is facing a loss of bio diversity owing to human exploitation of natural habitats with the increasing levels of urbanization. This rapid depletion has been exacerbated by the New International Economic Order marked by exploitation of biological resources by Multinational Companies (MNCs) with the aid of bio technology and the illegal trade of wild fauna and flora which have become very lucrative industries at present. Biodiversity plays a major role in the biotechnology, as it is the former which provides the bio resources or raw material necessary for bio technology. While developing countries possess most of the biological resources of the world, it is the MNCs in the developed world who own more than 90% of the patents granted in the field of bio technology. This present state of affairs has made those MNCs heavily dependent on the bio resources of the developing states. In order to preserve their monopolistic position these MNCs have persuaded their governments to enter into agreements with the governments in the developing states to ensure supply of biological resources under terms which are detrimental to the developing states. This has become so easy due to the economically vulnerable position of those states. There is also a trend of stealing the bio resources of the developing states simply through bio piracy. Against this backdrop only the Convention On Biological Diversity came into force in 1993 with the main objective of conservation of biological diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of the utilization of genetic resources. Accordingly the CBD has marked a watershed in the international legal regime by addressing issues relating to biodiversity conservation and bio piracy. (To be continued) |
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Hence it is imperative to give patent protection to new innovations in
order to protect them from competition and to promote investment in new
innovations. However with the advent of bio technology which result in
genetically modified organisms including new plant varieties the
technology rich developed countries are trying to extend the patent
protection to such life forms as well.
The saga of Neem and Basmati rice provide live testimony for genetic
plagiarism perpetrated by corporations in the developed world. Further the
ownership over life forms is antithetical to religious, cultural and
social norms of the South Asian communities who had no concept of
ownership rights over life forms who considered them as common property of
the whole community.
