India Should Back Africa's TRIPs Proposals

India Should Back Africa's TRIPs Proposals
http://www.financialexpress.com/fe_full_story.php?content_id=36786

Ashok B Sharma

It seems probable that the debate over the review of Article 27.3(b)
of the TRIPS Agreement on intellectual property rights and
traditional
knowledge and on the relation between TRIPS and the UN Convention on
Biological Diversity (CBD) may be taken up at the WTO ministerial
meet
at Cancun in September, this year.

TRIPS Council chairman VG Menon of Singapore tried his best to evolve
a consensus on the issue at the last three-day meeting of the Council
which concluded on June 6. He failed.

Three different papers were presented to the TRIPS Council - one by
the African countries on behalf of Zimbabwe, the other jointly by
India, Brazil, Cuba, Ecuador, Peru, Thailand and Venezuela and the
third paper by Switzerland. India made a good beginning by jointly
presenting a paper alongwith other developing countries, but this
proposal paper fell short of many critical issues unlike that
presented by African countries. The proposal presented by developing
countries including India only elaborated the need for patent
applications involving genetic materials or traditional knowledge to
disclose the country of origin along with the evidences of prior
informed consent (PIC) and benefit sharing arrangements.

The Swiss proposal said that there is no need to amend the TRIPS
Agreement. It said that the regulations under Patent Cooperation
Treaty and the Patent Law Treaty of WIPO should be amended to enable
national patent laws to make parties to disclose the source and that
WIPO is the primary forum to deal with IPRs and traditional
knowledge.
TRIPS and CBD can be implemented without conflict and there is no
need
to modify the provisions of either.

Several developing countries like Japan and Canada sided with the
Swiss proposal saying that WIPO has technical expertise in this area
and the TRIPS Council should wait for what is emerging at WIPO. The
US
said traditional knowledge should be removed from the TRIPS agenda.
It
did not consider the use of TRIPS as a suitable means to ensure
disclosure, PIC and benefit sharing as contracts between parties
would
be more effective. It did not see any conflict between TRIPS and CBD.

The EU welcomed the Swiss proposal. It also partly welcomed the
African proposal, barring the need for a proposed ban on patents on
life forms. EU favoured mandatory disclosure, but said that option
should be open where it should be done - at WTO or WIPO.

Many developing countries including Peru, Brazil, Kenya, Venezuela,
Cuba, Colombia and Dominican Republic supported either the African
proposals or proposals of other developing countries including India.

China said that the current IPR regime ignored the contribution of
traditional knowledge. TRIPS should incorporate CBD's three
principles
of sovereignty over resources, PIC and equitable benefit sharing.

In the next meeting for the review of TRIPS agreement, India
alongwith
other developing countries should back the African draft which has
more effective proposals for checking biopiracy and preservation of
biodiversity. Already, there had been evidences in the past, the
world
over, on biopiracy, misappropriation and issue of bad patents,
including instance of basmati rice, turmeric, neem, bitter gourd,
ayahusca andquinoa, kava, barbasco and endod.

The existing TRIPS agreement is not an outcome of negotiations. TRIPS
was pushed through by developed countries at the Uruguay Round at the
behest of the Intellectual Property Committee of the US, Keidanren of
Japan and UNICE of Europe. These associations submitted a joint
memorandum to GATT Secretariat in June 1988 and this became the basis
of the TRIPS framework. Next, the US enacted Special 301 and Super
301
laws to pressurise many countries to accept the TRIPS framework.
However, TRIPS has an in-built review mechanism and India and other
developing countries should take this opportunity.

Time has come to support the African proposals. The African proposal
has called for prohibiting patents on all life forms as such patents
are contrary to moral and cultural norms of many societies. Article
27.3(b) should be revised to prohibit patents on plants, animals,
micro-organisms, essentially biological, non-biological and
microbiological processes for production of plants or animals. It
said
that the need to protect plant varieties should not in any way
undermine, but support countries right to public goals like food
security and poverty alleviation. WTO should adopt a decision on
traditional knowledge and set up a committee to oversee the
protection
of traditional knowledge and genetic resources. The African group
called for upholding the exceptions orde public or morality in Art
27.2 and modifying Art 29 to include rights and obligations of
benefit
sharing, equity and community of origin.


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