_________________________________________________________
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Subject: [BIO-IPR] US memo on TRIPS Review
Resent-Date: Thu, 3 Dec 1998 23:57:19 -0800
Resent-From: bio-ipr@cuenet.com
Date: Fri, 04 Dec 1998 15:47:50 +0800
From: GRAIN Los Banos <grain@baylink.mozcom.com>
To: bio-ipr@cuenet.com
BIO-IPR docserver
________________________________________________________
TITLE: Preparations for the 1999 Ministerial Conference: General Council
Discussion on Mandated Negotiations and the Built-In Agenda. Communication
from the United States
AUTHOR: Government of the United States
PUBLICATION: World Trade Organisation Document Dissemination Facility,
document WT/GC/W/115
DATE: 19 November 1998
SOURCE: WTO, Geneva
URL: http://www.wto.org/ddf/ep/C4/C4652e.doc
NOTE: Below is an exerpt of a communication from the United States
government to the WTO General Council regarding preparations for the 3rd
Ministerial Conference, to be held in Washington DC in late 1999. According
to the US government, the agenda for the review of TRIPS Article 27.3b,
commencing in 1999, is whether to: (1) delete the exclusion of plants and
animals from patentability under TRIPS; and (2) incorporate key provisions
of the UPOV Convention into TRIPS for the protection of intellectual
property rights over plant varieties.
________________________________________________________
World Trade Organization WT/GC/W/115
19 November 1998 (98-4652)
General Council
Original: English
PREPARATIONS FOR THE 1999 MINISTERIAL CONFERENCE
General Council Discussion on Mandated Negotiations and the Built-In Agenda
23 November 1998
Communication from the United States
[...]
II. BUILT IN AGENDA ISSUES - PARAGRAPH 9(A)(III)
A. Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS)
The TRIPS Agreement provides for further negotiation and/or review of
several provisions of the Agreement, including the issue of biotechnology
patents. In addition, the TRIPS Agreement provides for a review in 2000 to
examine, inter alia, “relevant new developments which might warrant
modification or amendment of the Agreement.” In this submission, the United
States calls attention to what we consider to be the most critical issues
Members will need to consider in terms of the reviews required by the
built-in agenda.
Patentable Subject Matter: Article 27.3(b) allows members to exclude from
patentability plants and animals. It also states that the provisions of this
subparagraph shall be reviewed four years after the date of entry into force
of the WTO Agreement.
- The TRIPS Council will initiate work on this item in 1999, to consider
whether it is desirable to modify the TRIPS Agreement by eliminating the
exclusion from patentability of plants and animals and incorporating key
provisions of the UPOV agreement regarding plant variety protection.
Dispute settlement: non-violation cases: Article 64.3 requires the Council
for TRIPS to examine, during the five years from the date of entry into
force of the WTO Agreement, the scope and modalities for the complaints
provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994
made pursuant to the TRIPS Agreement, and to submit its recommendations to
the Ministerial Conference for approval. Any decision of the Ministerial
Conference to approve such recommendations or to extend the 5 year
moratorium on non-violation cases provided under Article 64.2 shall be made
only by consensus.
- The United States believes that the moratorium on non-violation cases
should be allowed to expire on schedule, on January 1, 2000.
Implementation Review: Article 71.1 requires the Council for TRIPS to review
the implementation of the TRIPS Agreement after the expiration of the
transitional period referred to in paragraph 2 of Article 65, namely after 1
January 2000.
- The United States had made suggestions regarding implementation in its
earlier submission; the review gives additional importance to ensuring
effective implementation.
_________________________________________________________
ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by
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non-commercial and educational service for nonprofit organisations and
individuals active in the struggle against IPRs on life.
HOW TO PARTICIPATE -- To get on the mailing list, send the word "subscribe"
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Subject: [BIO-IPR] ACTS/UNEP: Africa & the TRIPS Review
Resent-Date: Fri, 4 Dec 1998 06:43:22 -0800
Resent-From: bio-ipr@cuenet.com
Date: Fri, 04 Dec 1998 22:36:50 +0800
From: GRAIN Los Banos <grain@baylink.mozcom.com>
To: bio-ipr@cuenet.com
BIO-IPR resource pointer
________________________________________________________
AUTHOR: African Centre for Technology Studies (ACTS) and United Nations
Environment Program (UNEP)
TITLE: Africa and the Review and Revision of the Trade Related Aspects of
Intellectual Property Rights (TRIPs) Agreement of The World Trade
Organization (WTO). Call for papers for the International Conference on
Intellectual Property Protection and the Convention on Biological Diversity.
DATE: February 1999
PLACE: Nairobi, Kenya
NOTE: Contact details below.
________________________________________________________
CALL FOR PAPERS
INTERNATIONAL CONFERENCE ON INTELLECTUAL PROPERTY
PROTECTION AND THE CONVENTION ON BIOLOGICAL DIVERSITY
AFRICA AND THE REVIEW AND REVISION OF THE TRADE
RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPs) AGREEMENT OF THE
WORLD TRADE ORGANIZATION (WTO)
Organized by the
African Centre for Technology Studies (ACTS) and the
United Nations Environment Programme (UNEP)
Sponsored by
Swedish International Development Agency (SIDA)
Nairobi, Kenya. February, 1999
The agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPs), of the World Trade Organization, in its Article 27 (3) (b) allows
for members to restrict the patenting of life forms. The Article allows for
the exclusion of "plants and animals other than micro-organisms and
essentially biological processes for the production of plants or animals
other than non-biological and micro-biological processes." If a party
decides to make use of such an exclusion it must still provide "patents or.
. . .an effective sui generis system or. . . .any combination thereof" for
the protection of plant varieties. This Article is scheduled for review in
June 1999.
The review may lead to one of three basic situations:
o A clarification of the definition of the terms of Article 27 (3) (b)
leading to either an expansion or restriction of members' options under the
Article.
o A maintenance the current status quo
o An excision of the Article in its entirety. This would essentially
result
in the unrestricted patenting of life forms, a policy which is being
strongly
backed by the United States.
The objective of the International Conference on Intellectual Property
Protection and the Convention on Biological Diversity is to prepare African
delegations to effectively participate in the TRIPs review through
heightened awareness of the issues at stake, particularly regarding the
synergies and conflicts with the Convention on Biological Diversity (CBD). A
corollary objective would be the formulation of a unified approach to the
review.
The conference will discuss papers covering the following issues:
- The development of Article 27 (3)(b) of TRIPs and Article 15 of the CBD;
- A survey of the nature of trade in genetic resources in Africa;
- The impacts of economic liberalisation on biodiversity;
- TRIPs and access to genetic resources;
- TRIPs and biotechnology;
- TRIPs and indigenous knowledge.
In addition, overview papers on national experiences and other aspects of
TRIPs/CBD conflicts and synergies will be presented and discussed.
Those wishing to present papers at the conference should submit abstracts by
January 1st, 1998. Limited funding is available for authors from developing
countries to submit papers and for participation at the Conference.
Abstracts should be sent to:
Mr. Robert Lettington or Ms. Mita Manek
The African Centre for Technology Studies
P.O. Box 45917, Nairobi, Kenya
Tel: (254-2) 521450-5
Fax: (254-2) 521001
U.S. Tel: (1-650) 8336645
U.S. Fax: (1-650) 8336646
e-mail: acts@form-net.com
_________________________________________________________
ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by
Genetic Resources Action International (GRAIN). Its purpose is to circulate
information about recent developments in the field of intellectual property
rights related to biodiversity & associated knowledge. BIO-IPR is a strictly
non-commercial and educational service for nonprofit organisations and
individuals active in the struggle against IPRs on life.
HOW TO PARTICIPATE -- To get on the mailing list, send the word "subscribe"
(no quotes) as the subject of an email message to
<bio-ipr-request@cuenet.com>. To get off the list, send the word
"unsubscribe" instead. To submit material to the list, address your message
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Subject: [BIO-IPR] WTO/WB: counter-arguing biopiracy
Resent-Date: Mon, 14 Dec 1998 01:54:23 -0800
Resent-From: bio-ipr@cuenet.com
Date: Mon, 14 Dec 1998 17:48:21 +0800
From: GRAIN Los Banos <grain@baylink.mozcom.com>
To: bio-ipr@cuenet.com
BIO-IPR resource pointer
________________________________________________________
AUTHOR: Siddartha Pradesh, WTO consultant
TITLE: Country study: India - Local species (turmeric, neem and basmati)
IN: Information Technologies for Development website, Trade and Development
Centre, WTO/WB
DATE: beta version, 1998
URL: http://www.itd.org/issues/india6.htm
NOTE: The Trade and Development Centre is run jointly by the World Trade
Organization and the World Bank's Economic Development Institute, under a
programme called Information Technologies for Development (ITD). A wide
range of sectoral studies, essays, book reviews, links & other research
tools
is being posted on this website (http://www.itd.org) about development
aspects of the global trade system. Some of the material deals with issues
like genebanking and farmers' rights, protecting indigenous biodiversity
knowledge, etc. The case study below, meant to counter-argue claims of
"bio-piracy", contains many direct links to patents, newspaper articles, NGO
websites and other sources.
________________________________________________________
World Trade Organization & World Bank
Trade and Development Centre
COUNTRY STUDIES: INDIA
PART 6: LOCAL SPECIES — TURMERIC, NEEM AND BASMATI
Some of the biggest controversies on intellectual property rights in India
are about patents involving local plant species. Three plants in particular
have been the focus of attention: turmeric, neem and basmati rice. In each
case, the patents were granted in the United States. But there is some
confusion about the exact implications of these cases.
The outcry against patents involving plants that have traditionally been
used in India for medicinal or agricultural purposes is based on three broad
concerns:
* that farmers will no longer be able to use these products without paying
royalties
* that consumers will also be deprived of cheap medicines
* that local communities should receive a share of the commercial gains:
after all — the argument goes — the companies owning the patents learnt of
the value of the species through local knowledge, so they have a debt to
repay.
There are also strong counter-arguments. They take the form of a defence of
the intellectual property protection (patents, or some other form of
protection for plant varieties, for example) in these areas as a means of
promoting development through research. They also reject some of the
assumptions and conclusions of the criticisms — for instance, that patenting
means higher costs.
What the cases presented here show is this: whatever you believe about the
merits or costs of protecting intellectual property, it is important to
understand exactly what is being protected and whether the protection does
or does not have broader implications for the use of the species. There is a
lot of confusion and misunderstanding in this area.
One point is clear. By definition, a product or a process that has been used
publicly and traditionally is not new and therefore it cannot be patented.
In at least one case, a patent was withdrawn because Indian objectors were
able to prove successfully that the idea was not new.
TURMERIC
----------------------------------------
What is turmeric?
Turmeric (Curcuma longa) is a plant of the ginger family yielding
saffron-coloured rhizomes used as a spice for flavouring Indian cooking. Its
unique properties also make it an effective ingredient in medicines,
cosmetics and as a colour dye. As a medicine, it is traditionally used to
heal wounds and rashes.
A turmeric patent
In March 1995, two expatriate Indians at the University of Mississippi
Medical Centre, Jackson, (Suman K Das and Hari Har P. Cohly) were granted a
US patent (patent number 5,401,504) for turmeric to be used to heal wounds.
The Indian Council for Scientific and Industrial Research (CSIR) filed a
case with the US Patent Office challenging the patent on the grounds of
“prior art”, i.e. existing public knowledge. CSIR said turmeric has been
used for thousands of years for healing wounds and rashes and therefore its
use as a medicine was not a new invention.
The claim had to be backed by written documentation claiming traditional
wisdom. CSIR went so far as to present an ancient Sanskrit text and a paper
published in 1953 in the Journal of the Indian Medical Association. The US
Patent Office upheld the objection and cancelled the patent.
Why was the patent withdrawn?
Inventions can only be patented if they satisfy three criteria:
* novelty — only inventions that are genuinely new, and not part of existing
knowledge, can be patented.
* non-obviousness — if the new invention is obvious, i.e. anyone familiar
with the subject could easily anticipate the invention, then it cannot be
patented.
* utility — the invention has to work in practice The turmeric case failed
to meet the novelty criteria.
What are the social implications?
In this case, there was no threat to Indian farmers and consumers once the
patent was cancelled. This case shows that unjustified patents can be
challenged.
Some concern remains, however. The fact that the patent was initially
granted shows the difficulty of checking in one country (in this case the
United States) whether public knowledge about an idea already exists in
another country (in this case India).
Often the check involves a search (by the patent office) for written
evidence — for example in an existing patent or an academic journal.
Searching for existing patents in other countries is becoming easier, even
among developing countries, with computerized databases, pooled information,
and international or regional cooperation.
P.S. That’s not the only turmeric patent
The US Patent Office database reveals some nine patents using turmeric, the
latest for treating degenerative musculoskeletal diseases such as rheumatoid
arthritis and osteoaarthritis.
NEEM
----------------------------------------
What is neem?
Neem (Azadirachta indica) is a tree from India and other parts of South and
Southeast Asia. Growing to 720 metres tall, it is now also planted in
Africa, Central America, the Caribbean and Hawaii. One of the world’s
largest plantations is in Saudi Arabia, where approximately 50,000 trees
have been planted on the Plains of Arafat.
Because of its properties as a natural medicine, pesticide and fertilizer,
the neem tree has attracted a considerable amount of international interest.
As a pesticide, neem extracts can be used against over 250 pests including
whiteflies, aphids, mealybugs, mites, and termites. It is also effective
against fungus diseases such as rusts and powdery mildew that attack the
leaves of ornamental plants and food crops.
Its properties are used to cure common colds and flu. The oil extracted from
its seeds can be used to cure various diseases. Mixed in soap, it offers
cheap and easy relief from malaria, skin diseases and even meningitis. Neem
is grown in semi-arid regions and during droughts, when most crops fail, its
leaves provide fodder for livestock.
Neem patents
Numerous neem products have received patents. Several of these have been
granted to Indian companies for a range of products including a
contraceptive (patent granted to the National Institute of Immunology in
1993) and an environmentally safe pesticide (for Godrej Soaps in 1994).
But the most controversial patents are those granted to the US company WR
Grace & Co for extraction and storage processes. They are:
* US patent No 4946681, granted in 1990 for improving the storage stability
of neem seed extracts containing azadirachtin (a substance obtained from
Azadirachta (neem). (The inventor is named as James F Walter of Ashton,
Maryland.)
* US patent No 5124349, 1994 for storage of stable insecticidal composition
comprising neem seed extract. The major contribution was increasing the
shelf-life stability of azadirachtin solution. (Four people are named as the
inventors.)
The WR Grace patents provoked a national outcry. Under pressure from these
groups, the Indian government filed a complaint to the US Patent Office
accusing WR Grace of copying an Indian invention. However, in the end, the
government withdrew its complaint as it realized that the US-based company
had in fact created a new invention for the neem extraction process, and the
patent was not based on traditional knowledge.
Are the fears valid?
The neem patents aroused a number of complaints. Farmers protested that the
patents would prevent them from using neem as a source of home-made
pesticide. Non-government organizations used the incident to challenge
European and US patents on the grounds of “bio-piracy”. A coalition of 200
non-governmental organizations from 40 countries have challenged the
patents, fearing they would put pest control costs out of reach for farmers
who are now using the extracts in underdeveloped nations.
In fact, the patents granted to WR Grace & Co are quite specific.
The 1990 patent is for a method of producing neem extract that can be stored
well. The abstract says:
“Storage stable pesticide compositions comprising neem seed extracts which
contain azadirachtin as the active pesticidal ingredient wherein the
compositions are characterized by their non-degrading solvent systems. In a
first embodiment, the pesticide compositions contain solvent systems
characterized as having greater than 50% by volume aprotic solvents and less
than 15% by volume water. In a second embodiment, the pesticide compositions
contain solvent systems characterized as having greater than 50% by volume
alcohol and less than 5% by volume water. The pesticide compositions contain
surfactant concentrations of at least about 1.0%, up to 10%.”
The 1994 patent is for a specific method of extracting and treating active
substances from neem seeds so that the resulting solution is stable enough
to store. The abstract says the patent is for a “process for the production
of stable azadirachtin solutions comprising extracting ground neem seeds
with a solvent having azadirachtin solubility to produce an
aqueous-containing azadirachtin extract solution and then adding an
effective amount of 34 Angstrom molecular sieves to selectively remove
water from the extract to yield a storage-stable azadirachtin solution
having less than 5% water by volume”.
It is only these specific newly invented processes that are covered by the
patents. Farmers always have and will continue to be free to use neem in any
traditional way they desire.
The use of neem extract, or its seeds or leaves, cannot be patented, since
they have been used for centuries. Its properties can only be patented if
they are considerably modified. For instance, any synthetic variation of a
naturally occurring product is patentable, as it does not occur in nature in
that form.
BASMATI
----------------------------------------
What is basmati?
Basmati is a top-quality rice from the Punjab provinces of India and
Pakistan. The word means “fragrant earth”, and the rice is a slender
aromatic long grain variety that originated in this region and is a major
export crop for both countries.
What is protected?
There are two distinct issues here, involving three aspects of intellectual
property rights.
1. The patent. In September 1997, the US Patent Office granted a patent to
US firm RiceTec Inc (patent number 5,663,484) covering “novel” varieties of
basmati rice, their plants and seeds, a method of breeding them and a method
for selecting rice grains (by examining their starch content) so that the
cooked rice has the same qualities as traditional basmati.
It is important to be clear that the patent does not (and cannot) cover the
use of the name “basmati” or any other name. It simply deals with the
varieties and various methods of dealing with them. Fears that the patent
would give RiceTec exclusive right to use the word “basmati” in the United
States are therefore entirely incorrect.
2. The name. Various reports have referred to the US company’s use of such
names as “basmati”, “Kasmati”, “Texmati” and “Jasmati”. See for example an
item in Scientific American magazine.
In fact, the company has used the brand names Kasmati, Texmati and Jasmati
in the United States and United Kingdom since before the patent was issued.
It has been using the term “basmati” as a generic term for considerably
longer: “RiceTec has produced and marketed Texas basmati and American
basmati rice — and labelling it as such — for 20 years and exporting the
products for 15 years with no objection ever previously raised,” a company
statement says.
In other words, the name and the patent are completely separate issues; and
there is also a distinct difference between the use of basmati as a generic
term, and the use of brand names such as Texmati and Jasmati.
(“Jasmati” is a combination of “basmati” and “jasmine” — the latter term
originally used to describe a Thai variety of fragrant rice that is quite
different from “basmati”.)
Two types of intellectual property are involved with the names: trademarks
and geographical indications (the use of place names or words associated
with a place to identify the origin, type and quality of a product — for
example “champagne”). Since the word “basmati” is not a place name, its
validity as a geographical indication would depend on whether “basmati” can
be shown to be closely and exclusively associated with a geographical area.
The debate
1. The criticisms
Three broad complaints have been raised by critics of the RiceTec patent and
the separate issue of the use of names such as Texmati and Jasmati.:
* that the collective intellectual and biodiversity heritage of Indian and
Pakistani farmers is being “stolen” * that the patent and/or trademark
allow(s) the US company to “steal” the markets of Indian traders and
exporters by describing US-grown rice as “basmati”
* that consumers are being misled because the word basmati is being used for
an American-grown rice which is derived from Indian rice but not grown in
India, and hence not of the same quality.
2. The patent
The Indian government has protested that the patent could affect annual
basmati exports worth $277m and thus threaten the livelihood of thousands of
Punjabi farmers. But so far it has not formally challenged the patent, and
therefore the question of whether a significantly novel step has been taken
to justify the patent remains unchallenged in law.
Critics also claim that US law allows patents to be issued for inventions
made in the US even if the same inventions have been made in other countries
— but this is untrue as the turmeric case shows.
3. The name
First the generic term “basmati”. Critics in India and Pakistan say the term
should not be used for rice grown outside the Punjab region. But for many
years “basmati” has been grown elsewhere, and not only in the United States.
In Thailand, a company called Siamati has been trying for several years to
produce basmati commercially. Basmati is also grown in Uruguay.
Under international agreements such as the WTO’s intellectual property pact,
a name associated with a geographical region can be used elsewhere if the
name has become generic. For this reason “cheddar” cheese is produced all
over the world, and not just in the part of the United Kingdom identified by
the name.
For basmati, the debate about whether it is geographic or generic continues.
For the American industry, the position is clear. On 9 July 1998 the USA
Rice Federation declared that “the terms basmati and jasmine refer to types
or generic classes of aromatic rice and that these terms cover many
varieties and a broad range of qualities. Additionally, these terms are not
restricted to products or varieties produced in any specific country or
groups of countries.”
RiceTec also observes that Indian researchers have used the term “basmati”
to describe fragrant rice from countries other than India and Pakistan.
But that view is questioned in India.
Second, the trademarks. RiceTec’s trademarks registered in the United States
have not been legally challenged although some critics have suggested that
the names could mislead consumers.
RiceTec has applied for trademark registration in the United Kingdom. In
February 1998, the Indian Agricultural and Processed Foods Development
Authority (APEDA) said it would oppose RiceTec’s trademark application for
basmati in the United Kingdom.
APEDA says the UK has established a Code of Practice for rice which allows
the term basmati to be used only for the long grain aromatic rice grown in
India and Pakistan. Therefore, APEDA believes that the case is winnable in
favour of India, but the case remains unsettled.
RiceTec says that despite the opposition, there have been no lawsuits or
other legal actions in the UK. “The fact is that RiceTec has not sold any
product in the United Kingdom due to the European Union import levy which
discriminates against US specialty rice products in favour of India and
Pakistan,” RiceTec says.
4. Theft and deception?
As to the accusations of “theft” and deception, RiceTec says it “invented a
way to produce basmati rice in the United States comparable to the best
basmati grown in India and Pakistan and we received a patent to protect our
breeding method and seeds. Those countries do not have such laws and, thus,
few people there understand what they [the patents] do and don’t do.”
RiceTec denies that it took germplasm (the genetic material) from India or
Pakistan or that it used biotechnology or genetic transformation to produce
the patented new basmati lines. The germplasm “came partly from the World
Collection of Germplasm in Aberdeen, Idaho, which is operated by the
Agricultural Research Service of the US Department of Agriculture,” RiceTec
says, adding that it used “traditional, classical” breeding techniques over
a period of 10 years.
RiceTec says its production of high quality products and the new breeding
methods it has developed “help feed a hungry world and reduce land
requirements”.
AND FINALLY, BIO-PIRACY?
----------------------------------------
The questions of whether local communities have a right to a share of
intellectual property royalties, or even whether substances found in nature
should be patentable, is complicated.
It partly depends on one’s judgement of whether a particular invention
represents a big enough leap into new knowledge — knowledge that is far
removed from local or traditional wisdom. It also depends on views of how
best to deal with biodiversity.
These issues are being discussed in a number of international forums,
including the WTO’s Committee on Trade and Environment.
Some countries have reached agreement with commercial firms, allowing the
companies to undertake research into local species on condition that payment
is made to the host country or that there is some technology transfer to
allow local scientists to take over the research later.
Opinion is also likely to continue to differ on whether intellectual
property protection such as patents help or hinder a community’s ability to
discover new medicines or agricultural materials. Similarly, for the
question of the best way to handle biodiversity.
But while the issue continues to rage in India, it is notable that the
Indian government has come some way towards endorsing the view that
intellectual property protection is beneficial — in areas where Indians are
strong, such as computer software, movie-making and some areas of design,
the government is keen to enforce protection.
Written and researched by Siddhartha Prakash, WTO Consultant
Edited by WTO Information and Media Relations Division
Copyright © 1998 World Trade Organization, Geneva, Switzerland
_________________________________________________________
ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by
Genetic Resources Action International (GRAIN). Its purpose is to circulate
information about recent developments in the field of intellectual property
rights related to biodiversity & associated knowledge. BIO-IPR is a strictly
non-commercial and educational service for nonprofit organisations and
individuals active in the struggle against IPRs on life.
HOW TO PARTICIPATE -- To get on the mailing list, send the word "subscribe"
(no quotes) as the subject of an email message to
<bio-ipr-request@cuenet.com>. To get off the list, send the word
"unsubscribe" instead. To submit material to the list, address your message
to <bio-ipr@cuenet.com>. A note with further details about BIO-IPR is sent
to all subscribers.
ABOUT GRAIN -- For general information about GRAIN, you may visit our
wwwsite http://www.grain.org or send an email to <grain@bcn.servicom.es>.
Subject: ACTS/UNEP: Africa & the TRIPS Review
Date: Mon, 14 Dec 1998 11:48:25 -0500
From: GRAIN Los Banos <grain@baylink.mozcom.com>
Reply-To: bionet2@igc.org
Organization: Biodiversity Action Network
To: BIO-IPR List-server@igc.org
AUTHOR: African Centre for Technology Studies (ACTS) and United Nations
Environment Program (UNEP)
TITLE: Africa and the Review and Revision of the Trade Related Aspects
of Intellectual Property Rights (TRIPs) Agreement of The World Trade
Organization (WTO). Call for papers for the International Conference on
Intellectual Property Protection and the Convention on Biological
Diversity.
DATE: February 1999
PLACE: Nairobi, Kenya
NOTE: Contact details below.
________________________________________________________
CALL FOR PAPERS
INTERNATIONAL CONFERENCE ON INTELLECTUAL PROPERTY
PROTECTION AND THE CONVENTION ON BIOLOGICAL DIVERSITY
AFRICA AND THE REVIEW AND REVISION OF THE TRADE RELATED ASPECTS OF
INTELLECTUAL PROPERTY RIGHTS (TRIPs) AGREEMENT OF THE
WORLD TRADE ORGANIZATION (WTO)
Organized by the
African Centre for Technology Studies (ACTS) and the
United Nations Environment Programme (UNEP)
Sponsored by
Swedish International Development Agency (SIDA)
Nairobi, Kenya. February, 1999
The agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPs), of the World Trade Organization, in its Article 27 (3) (b)
allows for members to restrict the patenting of life forms. The Article
allows for the exclusion of "plants and animals other than
micro-organisms and essentially biological processes for the production
of plants or animals other than non-biological and micro-biological
processes." If a party decides to make use of such an exclusion it must
still provide "patents or. . . .an effective sui generis system or. . .
.any combination thereof" for the protection of plant varieties. This
Article is scheduled for review in June 1999.
The review may lead to one of three basic situations:
o A clarification of the definition of the terms of Article 27 (3)
(b) leading to either an expansion or restriction of members' options
under the Article.
o A maintenance the current status quo
o An excision of the Article in its entirety. This would
essentially result in the unrestricted patenting of life forms, a policy
which is being strongly backed by the United States.
The objective of the International Conference on Intellectual Property
Protection and the Convention on Biological Diversity is to prepare
African delegations to effectively participate in the TRIPs review
through heightened awareness of the issues at stake, particularly
regarding the synergies and conflicts with the Convention on Biological
Diversity (CBD). A corollary objective would be the formulation of a
unified approach to the review.
The conference will discuss papers covering the following issues:
- The development of Article 27 (3)(b) of TRIPs and Article 15 of the
CBD;
- A survey of the nature of trade in genetic resources in Africa;
- The impacts of economic liberalisation on biodiversity;
- TRIPs and access to genetic resources;
- TRIPs and biotechnology;
- TRIPs and indigenous knowledge.
In addition, overview papers on national experiences and other aspects
of TRIPs/CBD conflicts and synergies will be presented and discussed.
Those wishing to present papers at the conference should submit
abstracts by January 1st, 1998. Limited funding is available for authors
from developing countries to submit papers and for participation at the
Conference.
Abstracts should be sent to:
Mr. Robert Lettington or Ms. Mita Manek
The African Centre for Technology Studies
P.O. Box 45917, Nairobi, Kenya
Tel: (254-2) 521450-5
Fax: (254-2) 521001
U.S. Tel: (1-650) 8336645
U.S. Fax: (1-650) 8336646
e-mail: acts@form-net.com
_________________________________________________________
ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by
Genetic Resources Action International (GRAIN). Its purpose is to
circulate information about recent developments in the field of
intellectual property rights related to biodiversity & associated
knowledge. BIO-IPR is a strictly non-commercial and educational service
for nonprofit organisations and individuals active in the struggle
against IPRs on life. HOW TO PARTICIPATE -- To get on the mailing list,
send the word "subscribe" (no quotes) as the subject of an email message
to <bio-ipr-request@cuenet.com>. To get off the list, send the word
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BIO-IPR is sent to all subscribers.
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wwwsite http://www.grain.org or send an email to
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Subject: A paper on the conflict between IPs and conservation
Date: Sat, 26 Dec 1998 21:05:14 +0100
From: "Dario Novellino" <novellino@dimensione.com>
To: <indknow@u.washington.edu>
MESSAGE:
PLEASE, FIND ATTACHED AN ARTICLE ON THE CONFLICT BETWEEN INDIGENOUS
PEOPLES' PRACTICES AND FOREST CONSERVATION OPTIONS IN PALAWAN ISLAND
(PHILIPPINES), TO BE PUBLISHED IN JANUARY '99 ON INDIGENOUS AFFAIRS THE
IWGIA NEWSLETTER.
THANK YOU
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Name: Philippines 2.doc
Philippines 2.doc Type: Download File (application/msword)
Encoding: quoted-printable
Description: Philippines 2 (Documento Microsoft Word)
Subject: [BIO-IPR] Indigenous knowledge at risk
Resent-Date: Tue, 5 Jan 1999 14:53:45 -0800
Resent-From: bio-ipr@cuenet.com
Date: Wed, 06 Jan 1999 06:51:05 +0800
From: GRAIN Los Banos <grain@baylink.mozcom.com>
To: bio-ipr@cuenet.com
--
BIO-IPR docserver
________________________________________________________
TITLE: Indigenous knowledge at risk
AUTHOR: Rachel Wynberg
PUBLICATION: Weekly Mail & Guardian, Johannesburg
DATE: 18 December 1998
________________________________________________________
INDIGENOUS KNOWLEDGE AT RISK
Rachel Wynberg - 18 December 1998
A Bill aimed at protecting indigenous knowledge appears to be more intent on
gaining full control over the information garnered, writes Rachel Wynberg
Legislation aimed at protecting and promoting South African indigenous
knowledge has developed within the context of Deputy President Thabo Mbeki's
"African renaissance".
The intended outcome is to transform indigenous knowledge and technologies
into small, medium and micro-enterprises that will be of direct economic
benefit to the practitioners and owners of such knowledge.
South Africa has rich and varied traditional knowledge, the third highest
biodiversity in the world, a bastion of human rights lawyers and
considerable scientific and technical capacity.
These qualities place the country at the forefront of finding innovative
solutions to the commercialisation of indigenous knowledge.
Comments are being compiled on a recently drafted Bill to this end, and
public hearings are due to be held early next year. The proposed Bill forms
part of a larger initiative on indigenous knowledge systems that is being
driven by the portfolio committee on arts, culture, science and technology.
While the objectives of the Bill are laudable, it is difficult to see how
they have been reflected in what is presently a confused, contradictory and
complex piece of legalese.
Rather than seizing the opportunity to develop a creative approach to a
challenging situation, the draft Bill merely adopts existing intellectual
property legislation as the means through which protection for traditional
knowledge and innovations is conferred.
Commenting on the Bill, Brazilian lawyer Grace Noguiera remarked that "far
from recognising indigenous community rights, the state seems to be eager to
get full control over their knowledge, information and natural resources".
Noguiera, who has worked for many years with indigenous communities in the
Amazon region, suggests that the Bill gives little consideration to the
debates and contradictions that have arisen out of two international
agreements. The South African government is a party to both agreements: the
World Trade Organisation's 1994 Agreement on Trade Related Intellectual
Property Rights, and the 1992 United Nations Convention on Biological
Diversity.
The 1992 convention has been described as the "grand bargain" which has
entitled the countries of the north to gain access to the genetic resources
and traditional knowledge of the south. Developing countries, on the other
hand, have gained access to technologies to use their biological resources,
and to benefits derived from the commercialisation of such resources.
In many respects, this convention is a triumph for developing countries,
opening up opportunities for benefits to be derived from their natural
resources and providing a supportive legal framework for protecting
community's rights. However, poorer countries fear such provisions will be
over-ridden by the World Trade Organisation's 1994 agreement. This created a
global regime for the intellectual property protection of biological
diversity.
Driven by the multi-billion dollar biotechnology industry, it has raised
profound questions about the ethics of commercialising life, and about the
intellectual rights of holders of traditional knowledge.
A major controversy has developed about whether this Western system of
private ownership and monopolistic control is appropriate to protect
traditional knowledge. Existing intellectual property systems reward new
improvements rather than existing knowledge, which is considered to fall in
the public domain. Mechanisms such as patents and copyrights are conferred
on individuals or legal entities, and generally on a temporary basis. In
contrast, many local knowledge systems are of a collective nature, depending
on a continuous and often informal exchange of knowledge and resources
according to traditional beliefs and practices.
Such systems generally perceive biodiversity as a collective heritage rather
than a private good. Privatising these delicate knowledge systems runs the
grave risk of undermining and destroying traditional cultures, lifestyles
and innovations, rather than protecting or promoting them.
Not only are these contradictions ignored in the Bill, but it fails to
include within its ambit traditional knowledge about biodiversity and the
distinctive issues raised by conferring intellectual property on such
knowledge. The involvement of local communities and holders of traditional
knowledge in implementation of the proposed new law is also given scant
attention.
A fundamental requirement of the 1992 biological diversity convention is
that prior informed consent from communities needs to be obtained before
granting access to their knowledge, information and natural resources.
The convention also requires that a system be developed to ensure the
equitable distribution of benefits arising from the use of such resources.
Mechanisms to deal with these thorny issues are glaringly absent in the
Bill.
Granted, the Bill is still in its early stages and has not yet been subject
to public debate. Vigorous debate is undoubtedly necessary, not only among
civil society and holders of traditional knowledge, but also between the
different departments and ministries responsible for its content.
The Department of Environmental Affairs and Tourism, for example, is
responsible for implementing the biodiversity convention and is developing a
national strategy to protect traditional knowledge. It is also planning to
develop legislation to regulate access to genetic resources.
The Department of Health has launched a major initiative on traditional
medicine, with substantial implications for the intellectual property of
traditional healers.
The Department of Agriculture and Land Affairs convenes a committee to look
at access to and benefit-sharing of genetic resources, and the rights of
farmers. These and other initiatives are insufficiently integrated,
resulting in a confusing policy environment.
A major constraint is the lack of awareness among government officials about
the problems and complexities of conferring intellectual property rights for
traditional innovations, and the importance of drawing links between
seemingly disparate sectors.
An especially difficult task is to identify holders of traditional
knowledge. Some 200,000 to 300,000 traditional healers practice in South
Africa, affiliated to nearly 300 organisations which are often politically
fraught and divided. Farmers holding knowledge about traditional varieties
and breeds of crops and animals have yet to be consulted and identified. And
even within indigenous communities such as the San, considerable conflict
exists about the geographical boundaries of the community.
Can South Africa overcome these difficulties through the development of
practical and viable mechanisms?
Can it ensure indigenous technologies and knowledge are protected in a way
that benefits the holders of such knowledge, and expressly those who have
historically been marginalised?
Certainly opportunities exist, but their successful development will depend
on the creative relationship that can be nurtured between the opposite and
sometimes conflicting poles of intellectual property rights and the
collective rights of communities.
Rachel Wynberg is Western Cape co-ordinator of Biowatch South Africa, a
national NGO investigating the commercialisation of biodiversity.
© Weekly Mail & Guardian. This article first appeared in the Mail &
Guardian newspaper, December 18-23 1998.
_________________________________________________________
ABOUT THIS LISTSERVER -- BIO-IPR is an irregular listserver put out by
Genetic Resources Action International (GRAIN). Its purpose is to circulate
information about recent developments in the field of intellectual property
rights related to biodiversity & associated knowledge. BIO-IPR is a strictly
non-commercial and educational service for nonprofit organisations and
individuals active in the struggle against IPRs on life. The views expressed
in each post are those of the indicated author(s).
HOW TO PARTICIPATE -- To get on the mailing list, send the word "subscribe"
(no quotes) as the subject of an email message to
<bio-ipr-request@cuenet.com>. To get off the list, send the word
"unsubscribe" instead. To submit material to the list, address your message
to <bio-ipr@cuenet.com>. A note with further details about BIO-IPR is sent
to all subscribers.
ABOUT GRAIN -- For general information about GRAIN, you may visit our
website http://www.grain.org or send an email to <grain@bcn.servicom.es>.
Subject: IK use in development
Date: Thu, 28 Jan 1999 18:38:59 +0000
From: aw240@hermes.cam.ac.uk
To: indknow@u.washington.edu
I am currnetly looking into the institutional use of indigenous/local
knowledge international development assistance - the implications and
possibilties of IK transfer from projects of different cultural and
geographical contexts. I'm trying to narrow my interest down to
agroforestry and sustainable forest management practices.
I would be very interested in your views about:
a) priority research areas - what is currently regarded as important in the
realm of IK promotion and transfer; is there any similar research out
there?
b) any information about internationally funded projects (UN, GTZ, IUCN,
WWF, etc. ) that have successfully/ unsuccessfully incorporated IK;
c) experiences with different donor organisations: how the agenda (in
regards to IK) has changes over recent years and what about rhetoric vs
action?
d) any further information/ contacts/ references regarding indigenous
knowledge in respect to agroforestry and forest management.
Thank you very much for your time and input.
Regards,
Alexandra Winkels
Research Student,
University of Cambridge
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