ISSUES LINKED TO CONVENTION ON
BIOLOGICAL
DIVERSITY IN THE WTO NEGOTIATIONS
IMPLEMENTING DOHA MANDATES.
Author(s): Eugui, D.V.
Produced by: Center for International Environmental Law
(CIEL) (2002)
This document analyses the content of TRIPS and CBD related
mandates contained in the Ministerial texts approved at
Doha. It aims at providing developing countries with
suggestions for common action in the relevant WTO bodies.
While most attention is given to the Ministerial
Declaration, issues of crucial importance for developing
countries are found in the Decision on Implementation
Related Issues and Concerns, and in the Compilation of
Outstanding Implementation Issues.
The author concludes that:
* Negotiations on implementation are the fastest vehicle
for generating changes in the TRIPS Agreement in relation to
CBD. Tiret 15 of the outstanding list of issues is the
strongest mandate for obtaining transitional measures while
the TRIPS agreement is finally reviewed.
* It is possible to link negotiations on implementation and
the work on mandated and reviews under articles 27.3b) and
71.1. due to similar coverage in certain points.
* The relation between the CBD and the TRIPS Agreement and
protection of traditional knowledge (TK) should be included
as specific items under this review independently if they
fall under Article 27.3(b) or 71.1 or paragraph 12 of the
Doha Ministerial Declaration.
* For a more comprehensive review of the TRIPS Agreement in
light of the CBD and the ITGRFA, Article 71.1 seems to be a
more suitable vehicle.
* Gaps among the developing countries on different
approaches on the relation between CBD and TRIPS and the
protection of TK need to be reduced in order to preserve
possibilities for amending the TRIPS Agreement.
* The preparation of a list of common objectives, a common
minimum agenda and clarity on the expected results coming
from the review process can make developing countries tasks
easier.
* The Ministerial declaration strengthens the advisory role
of the Committee on Trade and Environment (CTE) but fails
to provide sufficient authority to permit true reform of
rules. In relation to the negotiations on the WTO rules and
specific trade obligations in MEAs (and more precisely the
CBD) a more circuitous road is created for obtaining
changes in the relevant WTO Agreements.
* The CBD and The ITGRFA have created a new system for
access to genetic resources (GR). Coherence with the work
already undertaken in CBD and FAO will be necessary to
avoid confusion and to obtain a horizontal recognition of
the international system for access to GR in the WTO and
WIPO.
* Participation of the CBD and the FAO secretariat in
the WTO and WIPO will provide useful experiences for the
implementation of these agreements.
Available online at:
http://www.ciel.org/Publications/Note_CBD_EDITEDversion.pdf
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GENETICALLY MODIFIED CROPS IN AFRICA: IMPLICATIONS
FOR SMALL FARMERS
Author(s): Kuyek, D.
Produced by: Genetic Resources Action International
(GRAIN)(2002)
This briefing looks at the push to bring genetically
modified (GM) crops and technologies to Africa and shows
the implications for farmers in Eastern and Southern Africa.
What will the introduction of GM crops mean for Africa and
its small farmers in particular? Is there any reason to
believe that the new 'gene revolution' will be any more
successful than the failed Green Revolution in Africa?
The author looks at who is pushing the technology and who
is asking for it; it analyses whether GM crops are safe and
questions whether African farmers really need it. The
report provides several case studies that look at some of
the GM crops that are being used to lead the charge into
Africa. Case studies include:
* the use of Bt Cotton in southern Africa
* the development of non-biotech varieties of sweet potato
* traditional and biotech control of maize pests
These examples suggest that in addition to offering little
to Africa's small farmers, they threaten to further
undermine the fragile agricultural systems that these
farmers depend upon. The briefing does not share the
optimism of the proponents of genetic engineering. Rather,
it views genetic engineering as an extension of the Green
Revolution paradigm that failed to address the needs of
Africa's small farmers and served only to exacerbate their
problems.
[authors]
Available online at:
http://www.grain.org/publications/africa-gmo-2002-en.cfm
------------------------------------------------------------
INTELLECTUAL PROPERTY RIGHTS IN AFRICAN
AGRICULTURE: IMPLICATIONS FOR SMALL FARMERS
Author(s): Kuyek, D.
Produced by: Genetic Resources Action International
(GRAIN)(2002)
This paper looks at the choice facing African policy-makers
over which of two opposing models of agricultural R&D to
choose to support. One is driven by multinational companies
in the North and relies upon private monopolies and
genetically modified crops. The other is led by farmers,
with support from the public sector, and is based on the
collective use of knowledge and resources for sustainable
agriculture.
The author argues that Africa's small farmers and the seed
industry have completely different needs when it comes to
supporting their innovation, and intellectual property
rights (IPR) are only designed for one of them. If African
governments adopt IPR regimes on agricultural biodiversity,
then they are choosing a corporate model of plant breeding
and, subsequently, a re-organisation of agriculture
according to the interests of Northern seed companies - not the
food security of Africa or the well-being of the continent's
farmers.
The briefing aims to provide rural community workers,
farmers and policy makers in Africa with information that
will contribute to their understanding of the implications
of IPRs on plant genetic resources for small farmers in
Eastern and Southern Africa. It situates the emergence of
IPRs on plant genetic resources within a larger history, in
which the innovative strength and traditions of African
farming communities have been consistently disregarded.
It concludes that the emergence of IPRs in African
agriculture is highly detrimental to local food production
and small farming systems, and that a reorientation of
policies is urgently needed.
[authors]
Available online at:
http://www.grain.org/publications/africa-ipr-2002-en.cfm
------------------------------------------------------------
AMENDED PATENTS ACT AND ACCESS TO MEDICINES AFTER
DOHA
Author(s): Cullet, P.
Produced by: International Environmental Law Research
Centre (IELRC) (2002)
This article examines the amended India Patents Act which
passed into law shortly after the Doha declaration on TRIPS
and access to medicines. The paper examines the
requirements of the TRIPS agreement which forced the
amendment to India's Patent Act and the dual processes of
securing the Doha Declaration and the amended Act.
The original Patents Act as adopted in 1970 reflects India's
long held policy attempting to link the fundamental right
to health and the introduction of patents in the health
sector. As such, the author argues, the extent to which the
amended Act closely follows TRIPS is surprising. The key
benefit to India is the potential for growth overseas of in
it's own pharmaceutical industry however the change is
likely to cause restricted access to medicines for Indians.
One more crucial moment will come in 2005, when the Patents
Act will have to be again amended to allow product patents
on medicines. This still leaves several years for further
open debate concerning the final response to be given to
TRIPS in the health sector.
Available online at:
http://www.ielrc.org/Content/N02051T.html
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WORLD BANK PHARMACEUTICALS DISCUSSION PAPER
Author(s): Govindaraj, R.; Reich, M. R.; Cohen, J. C.
Produced by: World Bank Publications (2000)
There is a profound gap between the benefit that
pharmaceuticals have to offer and the reality that for
millions of people - particularly poor and disadvantaged
people - medicines are unavailable, unaffordable, unsafe or
improperly used. As part of its mission to fight poverty
the World Bank has become a significant player in
pharmaceutical policy and financing for low and middle-
income countries in recent years, however it has not had an
explicit strategy to guide it's activities in this sector.
This discussion paper, in conjunction with the World Bank
pharmaceutical procurement guidelines ("Standard Bidding
Documents and Technical Note for the Procurement of Health
Sector Goods"), is an attempt to offer a more coherent
approach.
Following a review of the World Bank's engagement in
pharmaceutical activities five major pharmaceutical policy
issues that are relevant to the World Bank's development
activities are identified and discussed:
* Pharmaceuticals represent a significant proportion of
government and private out-of-pocket expenditures in many
developing countries, and provide a motivation for health
sector reform
* Governments in developing countries commonly lack
adequate institutional capacity to regulate pharmaceutical
activities effectively
* The inefficient use of pharmaceutical resources in many
developing countries substantially reduces access to
essential drugs and potential health benefits
* There is limited funding for new pharmaceutical products
in developing countries, resulting in limited access for
groups who might benefit therapeutically. The limited
access is compounded by the tendency for pharmaceutical
companies to set prices close to developed country prices
* Developing countries represent a relatively small
proportion of the global pharmaceutical market, providing
limited market incentives for the development of new drugs
specific to diseases of those countries (including many
tropical diseases).
Based on these five development themes, six strategic
directions to give greater structure and focus to the World
Bank's pharmaceutical activities are proposed:
* The Bank should support policy dialogue with client
governments for sustainable pharmaceutical reform
* The Bank should promote comprehensive assessments of
pharmaceuticals during project development in the HNP
sector (particularly when the pharmaceutical components
constitute a significant proportion of the HNP project
lending), and a continuous and systematic evaluation of the
Bank's pharmaceutical portfolio
* The Bank should support control of corruption, greater
transparency, and increased accountability in its
pharmaceutical lending activities
* The Bank's lending for pharmaceutical procurement should
be restricted to projects that promote policy and systems
development and target the poor
* The Bank should promote public-private partnerships to
expand access to traditional and new essential drugs for
the poor, and encourage governments to use the private
sector as a technical resource
* The Bank should expand its efforts to promote incentives
for pharmaceutical R&D targeted at critical diseases of the
poor.
Available online at:
http://wbln0018.worldbank.org/HDNet/HDdocs.nsf/c840b59b6982
d2498525670c004def60/386444f3d32e6a828525697d006d53a1/$FIL
E/Govindaraj%20-
%20WB%20Pharmacuetical%20Discussion%20paper.
pdf
[NOTE: You may need to paste this URL line by line into your
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EARTH SUMMIT: FOCUS ON BIO_PIRACY IN AFRICA
JOHANNESBURG, 30 Aug 2002 (IRIN) - Africa stands to lose
huge benefits from its biodiversity for lack of legal
protection against bio-piracy, concluded the Second South-
South Bio-piracy Summit held last week in Johannesburg
during the World Summit on Sustainable Development (WSSD).
"Legislation is required and it is required yesterday," said
Nolwazi Gcaba, a South African patent and copyright
attorney, referring to her country's legislative vacuum on
this matter.
Biodiversity - the fifth thematic area of WSSD - is Africa's
richest asset. The knowledge its people have developed over
centuries on the properties of plants, seeds, algae and
other biological resources is now coveted by scientists for
medicinal, agricultural and other purposes.
Biopiracy is the theft of biological matter, like plants,
seeds and genes. In the absence of laws regulating access to
these resources, pharmaceutical, agrochemical and seed
multinationals exploit Africa's biological wealth and obtain
rights of intellectual ownership to the resources and
knowledge of communities.
Multinationals make huge profits from African biodiversity
but do not share these with the communities who discovered,
kept and transmitted the knowledge, activists argue.
"They are stealing the loaf and sharing the crumbs," said Dr
Tewolde Berhan Egziabher, a leading expert on the topic at
the Institute for Sustainable Development in Ethiopia.
Thousands of patents on African plants have been filed. To
name just a few: brazzeine, a protein 500 times sweeter than
sugar from a plant in Gabon; teff, the grain used in
Ethiopia's flat "injera" bread; thaumatin, a natural
sweetener from a plant in West Africa; the African soap
berry and the Kunde Zulu cowpea; genetic material from the
West African cocoa plant.
Increasingly, developing countries are going to court over
patents on their indigenous plants. India overturned
American patents for basmati rice and wound-healing
turmeric. Thailand is appealing against a patent on jasmine
rice.
The latest patent to make headlines involves the Hoodia
cactus from the Kalahari desert. For centuries, the San
people of Southern Africa have been eating pieces of the
cactus to stave off hunger and thirst.
Analysing the cactus, the parastatal Council for Scientific
and Industrial Research (CSIR) in South Africa found the
molecule that curbs appetite, and sold the rights to develop
an anti-obesity drug to pharmaceutical company Pfizer. It
could be worth billions of US dollars.
The San complained. Their council threatened a lawsuit.
Earlier this year, the CSIR agreed to share eventual
royalties, and the Hoodia cactus became a landmark case for
indigenous communities wishing to stake a claim on their
knowledge and profits derived of it.
"Western medicine is protected. Wildlife is protected. But
our knowledge isn't, like it's worth nothing," said T.J.
Matiba, a Venda traditional healer, founder and president of
South Africa's Council of Traditional Healers since 1985.
Paradoxically, the poorest people in the world live in the
world's biodiversity hot spots. If they could derive a
benefit from their natural resources and indigenous
knowledge, they would be keen to protect them. That
approach, however, is in conflict with world trade rules.
The UN Convention on Biological Diversity, ratified by 183
countries and in force since 1993, recognises the
sovereignty of states and communities over their genetic
resources.
But the Trade Related Intellectual Property Rights agreement
(TRIPS) of the World Trade Organisation (WTO) does not.
Since 1995, WTO has required its member countries to comply
with TRIPS.
This contradiction creates "schizophrenia between patent
legislation and protection of indigenous knowledge," said
Rachel Wynberg, a South African researcher on biodiversity
now with the University of Strathclyde in the UK.
The root problem is that the existing system of intellectual
property rights and patents does not accommodate non-Western
systems of knowledge ownership and access.
"It [TRIPS] serves the interests of industrialised countries
and fails indigenous communities and holders of traditional
knowledge," said Tom Suchanandan of South Africa's Human
Sciences Research Council.
Under international law, an invention qualifies for patent
protection only if it is new and involves an inventive step.
This excludes traditional products, developed and handed
down over generations. The system is rooted in the European
industrial and scientific tradition. It views knowledge as a
commodity owned by an individual or a company with the goal
of trade.
Indigenous knowledge has a trans-generational, communal and
cultural nature.
"There is no way in which the intellectual property system
can protect indigenous knowledge," said Gcaba. "We can't
hijack it. We must create a new system."
The first line of defence, said Tewolde, was for developing
countries to freeze biopatents, or patents on living things,
from seeds to plants to genes.
At the WTO meeting in Seattle in 1999, the African group
took the lead in opposing the patenting of life and
protecting community rights over their agricultural and
biological heritage.
They are inspired by the African Model Law adopted by the
former Organisation of African Unity. It protects the rights
of farmers, breeders and local communities to their
biological resources, traditional knowledge and
technologies. Their collective rights prevail over
individual or corporate monopoly interests. The patenting of
life in any of its forms violates these rights.
Last but not least, the state should ensure that at least
half of the benefits derived from commercial use of
biological resources are channelled back to the local
community.
African countries must now debate this model law and pass
their own.
"After centuries of unjust and unfair extraction of our
resources that continues today, this is a step towards
justice," said Tewolde.
Available online at:
http://www.irinnews.org/report.asp?ReportID=29628
Contact details:
Tracy Zussman-Kay
ELDIS Programme
at the Institute of Development Studies, Sussex
Brighton BN1 9RE, UK
Email:
eldis@ids.ac.uk
Tel: +44 1273 877330
Fax: +44 1273 621202
WWW:
http://www.eldis.org/ipr