Vandana Shiva^*

What is a Nation? The Shakti of its Millions

What is a nation? What is our mother­country? It is not a piece of earth, nor a figure of speech, nor a fiction of the mind. It is a mighty Shakti, composed of the Shaktis of all the millions of units that make up the nation ... assembled in one mass of force and welded into unity. The Shakti we call India, Bhawani Bharati, is the living unity of the Shaktis of 300 million people. (now 900 million)

Shri Aurobindo

1. Communities and the State - A New Partnership for National Sovereignty

It has become fashionable to talk of the end of boundaries and borders, and the end of the nation state. However, the fading away of an era in which sovereignty was the monopoly of a nation state does not in any way imply an end to the concept of sovereignty. In fact the end of the centralized concept of sovereignty creates a new opportunity to reshape and reassert a concept of national sovereignty dispersed through its people and its communities.

Globalization has rendered the relationship between the community, the state and the corporation totally fluid. It has further entrenched the powers and widened the freedoms of corporations, while further eroding the powers and freedoms of people in diverse community settings. In the process, the state itself is undergoing major transformation, becoming more one­sided in representing corporate interests and failing to represent citizen and community interests.

State protectionism, which had undermined community protectionism, is now itself being undermined by corporate protectionism. This undermining is at the heart of the globalization process. While the role of the state in regulating commercial interests and corporations is diminishing, its role in enhancing corporate rights and corporate monopolies is increasing. The erosion of the power of the nation state from outside and above does not disperse power through society, it concentrates it in the hands of corporations. It does not move power downwards into the hands of communities, it moves it upwards into the boardrooms of corporations. This creates an inverted state, a state more committed to the protection of foreign investments and less to the protection of the citizens and communities that make the country. In fact, the Transnational Corporations (TNCs) and international institutions like the World Bank benefit from, and thus promote, an erosion of the role of the state in protecting the people through the seduction of terms like "liberalization of the economy" and "free trade".

As globalization allows increasing transfer of the resources from the public domain, either under the control of communities or of the state, discontent and dissent necessarily increase, leading to law and order problems. In such a situation, even a minimalist state restricted only to policing law and order will become enormously large and all­pervasive, devouring much of the wealth of society and intruding into every aspect of citizens' lives.

For citizens and communities, the erosion of state power implies the withdrawal of two kinds of protection. The first protection that is withdrawn is the protection available through the regulation of commercial profit­seeking behaviour, to prevent the destruction of livelihoods, the environment and people's health.

The second protection that is withdrawn is the protection built into traditional environmental rights and rights to knowledge and culture. These rights are often customary and not written into law, but are at the very heart of secure livelihoods and survival options, especially of marginal groups particularly women, indigenous and tribal communities, landless and small peasants, farmers, traditional fishermen, indigenous healers, traditional craftsmen, etc.

New concepts of Intellectual Property Rights (IPRs) based on the interests of corporations and the reality of social, economic and political organization of industrialized Western countries are central to undermining and destroying the timeless protection traditional producer communities have had through their inalienable collective rights to resources, knowledge, markets and livelihoods. IPRs, more than any other aspect of free trade treaties, make it clear that the old style state protectionism is giving way to corporate protectionism, ensuring that communities and citizens have no protection at all in law or in policy.

In fact, the destruction of the protectionism afforded through the traditional customary rights and practices related to biodiversity, traditional knowledge and traditional systems of production, leaves the traditional communities vulnerable to piracy of their resources, and their knowledge by commercial and corporate interests claiming exclusive IPRs protection for the pirated resources and knowledge.

Even among those who talk the language of indigenous knowledge, biodiversity conservation and local rights, there are two paradigms of protectionism that have emerged as a response to the process of globalization and the simultaneous reduction in state power. The first paradigm, the TNC­Centred Corporate Rule paradigm, is based on the perspective that the process of economic globalization and corporate protectionism is natural and evolutionary and corporate rule is inevitable. This inevitability perspective has also been referred to as the TINA (There Is No Alternative) Syndrome. The second paradigm, the People­Centred Self­Rule paradigm, is based on the perspective that the destruction of the nation state does not imply the destruction of sovereignty, but rather affords the opportunity to create a new form of nationhood in which people's self­rule is the backbone of sovereignty.

1.1 The TNC­centered corporate rule paradigm

There are two approaches that are contributing to support for the TNC-centred Corporate Rule paradigm. In the first approach, corporate rule is treated as a natural evolutionary step in progress as World Bank-led and government managed "development" was for the past fifty years. Corporate dominated society and culture is treated as more sophisticated and superior to all other forms of social organization. This approach arises from a conscious choice for corporate rule. We identify it as "globalization by choice".

The second approach supports corporate rule not consciously, but by default. This approach is usually adopted by local communities who have only known and faced oppression by state structures in the colonial and "development" eras. It supports globalization to contain and limit the power of the nation state. However, this approach which arises from the urge for self­determination results in the further undermining of the self­determination possibilities of local communities by enlarging the control of corporations over people's lives. We call it "globalization by default".

Globalization by Choice: The "globalization by choice" approach recognizes the unprotected, free flow of resources and knowledge from the gene­rich South to the capital­rich North. However, like Northern governments and their experts, this perspective held by some experts in India puts TNCs at the centre of rights to biological resources and utilization patterns of biodiversity. The TNC­centered approach treats IPRs and patents on life as inevitable and progressive, and defines as valueless the diverse ways in which diverse communities have used biodiversity for health and nutrition. The "globalization by choice" approach legitimises and justifies the transformation of social wealth and social creativity dispersed throughout society into the private monopolies of TNCs. It defines this appropriation as "value addedness" at the economic level and as "innovation" at the epistemological level.

Dr Madhav Gadgil's Comprehensive Framework for Nurturing Practical Ecological Knowledge states that multinational corporations have strengths which are essential to taking full advantage of our genetic resources.

For genetic resources, by themselves are of no value until complemented by an ability to put them to economic use. This calls for extensive scientific, technological inputs which are currently largely outside the capabilities of Indian industry, laboratories belonging to the Council for Scientific and Industrial Research and our universities and research institutions. On the other hand, many multinational corporations have great strengths in the kind of research and development activities that are essential to add value to our raw genetic resources.

The approach that genetic resources have no value and our local and national utilization does not "add value" is a devaluation of biodiversity and our knowledge capacity. By defining biodiversity as having no value and by describing biodiversity as "raw genetic resources", the report undermines the basis of conservation as well as benefit sharing. The basis of biodiversity conservation is the recognition of the intrinsic value of all biological species and life forms. The assumption that genetic resources have no value by themselves goes against the conservation ethic.

Such a TNC­centred perspective sees local communities as mere caretakers of biodiversity, generating information, and passing it on to "biodiversity­based enterprises", for which they, as "daughters and sons of India's soil for taking good care of the country's heritage of genetic resources" could be paid a small reward, even as individuals.

This approach ignores the fact that in most societies, especially of the Third World, biodiversity has always been a common resource. It is a living resource, being affected by and affecting communities living with it in harmony. And knowledge of this biodiversity, and its utilization has also been in the commons - being freely exchanged both within and between communities. Innovations have been based on knowledge handed down over centuries and adapted for newer uses, and these innovations have, over time, been absorbed into the common pool of knowledge about the resource, which has contributed immeasurably to the vast agricultural and medicinal plant diversity that exists today. By individualizing what has essentially been the product of innovation and utilization of communities, this approach uses the process of globalization to also destroy the cohesiveness of communities, pitting individuals against communities and communities against one another.

Globalization by default: Localists can become default globalizers by failing to address the issue of self­determination in the context of corporate rule, assuming that it is limited to state rule. Default globalizers recognize the value of indigenous knowledge, demand respect for indigenous culture and reject Western­style notions of IPR-regimes.

However, they fail to see the substitution of centralized state rule by a new corporate rule. Thus, this perspective continues to state the philosophy of self­determination and self­reliance of peoples in the language of "freedom from the state" without seeing how such a narrow vision and outmoded definition of self­determination will totally deny the people and communities any form of self­determination in the context of corporate rule in which corporate monopolies leave no freedom of production or consumption in the hands of the people.

In the absence of any national regulation to control corporate behaviour and ethics, and in the absence of the need for solidarity of diverse communities protected through a collective rights regime, TNCs are free to deal with each community in ways that provide them almost free access to resources by pitting communities against one another. Thus, bioprospecting corporations could make direct deals with representatives of local communities bypassing any national regulatory framework. Biotechnology companies could release genetically engineered organisms without either national or global regulation. The TNCs would like to see any regulation that protects small producers and small farmers disappear so that they can usurp resources and markets.

Instead of concentrating on evolving countervailing and innovative concepts, ideas, law and policy that move in concentric circles of self­determination and self­rule from the individual to the community, the village, the region, the country and finally the planet, and finding out how diverse communities with pluralistic interests can work together to create limits on corporate power and accountability of state systems, default globalization ends up directly connecting local communities to global corporate power without any restricting and regulating level in between. Communities, though pluralistic and often antagonistic to one another, have evolved institutions that put limits on the private commercial exploitation of resources and knowledge. Such limits on commercial interests set by community structures have generated social creativity and collective innovation. Social good has been the underlying factor for innovations in production and utilization in these communities and sustainability is the basis of and reason for conservation of the natural biological resources. On the other hand, market economies, where profit rather than social good is the sole motive for production, can be built only on the theory of unlimited access to natural resources. This unlimited access in turn can only be realized when the cohesiveness of communities is shattered through the promotion of the idea of individual gain, and the potential for communities to act together is destroyed through the factionalization of issues that affect communities as a whole.

This perspective replaces multiple tiers of people's protectionism with a one­dimensional concept of community self­determination with no role for national systems at all in the protection of communities from predatory external interests. This contributes to a fragmentation of the people's interests and reinforces the process that builds corporate protectionism and undermines community protectionism.

For example, instead of proposing that gender inequality be removed in communities and men and women defend their rights to resources and knowledge as equal partners, the perspective argues that because of gender inequality, women and men in communities can have no common interests and rights to defend. This in turn allows the resources of the communities to be hijacked by external interests leaving both the men and the women of the communities resourceless and marginalized. Similarly, instead of focussing on the rights of all farming communities, consisting of women, indigenous groups, the landless, the small and marginal farmers, who are engaged in food production and conservation of agricultural biodiversity and who have inalienable farmers' rights to seed and the intellectual and cultural heritage embodied in it, this approach argues that indigenous communities and farming communities have no overlap and are in fact, antagonistic. Hence, in this approach, the farmers' rights issue and the indigenous peoples' rights issue must be kept separate. This fragmentation builds the ground for corporate control over seed and plant genetic resources and IPRs monopolies. The ultimate unfolding of this logic of fragmented communities with no common thread of collective rights or any form of state protectionism is the epidemic of inter­religious, inter­caste, inter­ethnic and inter­race warfare that is emerging in all societies where the politics of identity and difference has torn societies apart.

1.2 People-centred self-rule

The philosophy of direct democracy and democratic pluralism recognizes that diverse communities have diverse interests, and in the shaping of national law and policy, they all have legitimate democratic rights of decision­making and self­determination through self­rule. It also recognizes that representative democracy is inadequate to protect people's interest in a period of globalization and there needs to be a rejuvenation of people's direct decision-making in matters that affect their lives. The demand for these democratic rights has been expressed by tribal and indigenous peoples as the self-determined right to control their natural resources, and by the farming communities as their self­determined right to agricultural biodiversity in plant genetic resources, and the self­determined right to practise sustainable agriculture. In systems characterized by patriarchal domination of women, urban areas dominating over rural areas, colonizers dominating over indigenous peoples, democratic pluralism necessarily requires an inclusion of communities who have been excluded. This would necessarily transform both the communities characterised by internal inequalities as well as governance structures within countries.

The philosophy of democratic pluralism recognizes the anti­democratic nature of the centralized nation state on which state protectionism of the past was founded. But it also sees the emergence of corporate protectionism as another real threat to democratic rights and economic livelihoods. In this perspective, countering this recolonization requires the reinvention of national sovereignty by democratic processes, to create national systems which act in partnership with local communities to protect the natural wealth, the economic livelihoods and the cultural and intellectual heritage of the country.

This transformed state has to be based on the logic of "ever widening, never ascending circles" as Gandhi described the philosophy of decentralization. Contrasting this with the dominant hierarchical view, his vision was:

Life will not be a pyramid with the apex sustained by the bottom. But it will be an oceanic circle whose centre will be the individual always ready to perish for the village, the latter ready to perish for the circle of villages till at last the whole becomes one life composed of individuals, never aggressive in their arrogance, but ever humble, sharing the majesty of the oceanic circle of which they are integral units. Therefore, the outermost circumference will not wield power to crush the inner circle, but will give strength to all within and will derive its own strength from it.

Self-rule of communities is the basis for indigenous self­determination, for sustainable agriculture, for democratic pluralism. This concept of self­rule has already been accepted by the Indian Constitution through its 72nd and 73rd Constitutional amendments which have recognised the Panchayat as the basic unit of self­rule and democratic functioning at the level of the community. When the Panchayat in Kerim did not give DuPont the permission to set up its industry on grounds that the industry would be detrimental to the environment, the community was exercising its right to self­determination and self­rule.

In February 1995, the tribals from different parts of India were in Delhi on an indefinite fast to force the government to recognise their declaration for "self­rule".

The National Front for Tribal Self­Rule, a national organ of the organizations of tribal people, has started a civil disobedience movement since October 2, 1995, for the establishment of Self­Rule. As they state:

We have carried the Cross of virtual slavery for much too long inspite of independence. Other rural folks are also in a similar state. Yet, now that everything is clear and there is unanimity in the establishment as also amongst MPs and experts, the change must not be delayed. We will not tolerate this.

Even otherwise, on issue of self­governance we need not be solicitous. It is a natural right. In the hierarchy of democratic institutions gram­sabha is above all, even Parliament. This is what Gandhi preached. We will not obey any law which compromises the position of gram-sabha. In any case we resolve to establish self­rule with effect from October 2, 1995. We will have command over our resources and will manage our affairs thereafter.

In the context of increasing concentration of power and capital in corporate hands through the process of globalization, the space for communities to exercise their right to self­determination and self­rule is rapidly shrinking. Communities need to use this right to self­determination to delegate to the state the function of limiting corporate power. The reinvention of the state has to be based on the reinvention of sovereignty. Sovereignty cannot reside only in centralized state structures, nor does it disappear when the protective functions of the state with respect to its people start to wither away. The new partnership for national sovereignty needs empowered communities which assign functions to the state for their protection. The defence of communities and their resources and livelihoods demands such duties and obligations from state structures.

The Convention on Biological Diversity recognizes biodiversity to be a sovereign resource. It also requires governments to recognize, protect and promote indigenous knowledge of biodiversity utilization. In fact, without the protection of the rights of local communities, the sovereign rights of a country to its biological wealth cannot be exercised since, unlike minerals and oil, biodiversity only survives through the protection of local communities.

The need for a revitalization and legal recognition of communities is a necessary countervailing step to create a people's protectionism. Corporate protectionism has expanded the legal rights of corporations as legal entities. It has simultaneously undermined the customary rights of communities through which people's livelihoods were protected. Legal identity for communities is also needed to give substance to democratic decentralization, based on 'Panchayati Raj', which, in turn, has to be based on 'gram sabhas' - village communities as the highest unit of democratic decision making. This legal identity should be based on the recognition that communities are diverse and dynamic.

Communities are communities because they work cohesively with respect to external threats even when they might be riddled by gender, caste, religion and class inequalities within them. Removing these inequalities is an essential component of reinventing communities so that social cohesion and integrity is based on gender, caste, religion and class equality.

Further, communities are not merely geographical units; they can be formed through commonality of practice, resource utilization, and sharing of knowledge systems and cultures. Thus, all farmers using drought­resistant sorghum or saline­resistant rice are members of a community of farmers with a stake in farmers' rights to their particular varieties and the distinctive characteristics in them.

Collective rights, as the countervailing force to IPRs regimes emerging from corporate interests, have to form an intrinsic part of all IPRs legislation, including patent laws, biodiversity conservation laws, plant variety laws and trademark laws. These collective rights, which exist prior to and are more fundamental than IPRs, need to be the screen through which IPRs regimes are evolved and IPRs claims are evaluated. They are also necessary to protect the free spaces for knowledge systems and production systems on which livelihoods of local communities depend.

2. IPRs: THREATS TO THE ECONOMIC SURVIVAL OF COMMUNITIES

The major democratic issue emerging in India is the right to survival of the large number of poor people who derive their livelihood from natural resources and traditional technologies. In each sector, a major conflict is emerging between corporate control and community control over these resources, the knowledge about them and the technologies upon which they are built. 70 per cent of the population of India depends upon traditional systems of production for its survival.

The majority of the people in the rural areas who are involved in agriculture are small, marginal farmers and peasants. Seeds produced and sold by farmers account for over 70 per cent of the total seed sales in the country.

Seventy per cent of India's health care needs are met by traditional systems of medicines, whose practitioners use over 7,500 varieties of medicinal plants as part of their healing work.

Over 70 per cent of manufacture is in the decentralized small­scale and cottage industry sector, which provides the livelihoods to seven times as many people as public and private sector industries. (Unstarred Lok Sabha Question No. 92 of 7.12.1994).

Given their economic viability, the poor of India have continued to be vibrant living economies, not needing any protection until now.

Today, these production systems and their technologies are under severe threat from the new monopolistic protection systems being carved out for transnational corporations, through Intellectual Property Rights (IPRs) Regimes. In fact, in a free trade and trade liberalisation regime, which is supposed to end protectionism, IPRs are the main instrument of this new form of protectionism.

The new protectionism for TNCs through IPRs is becoming the major means of dismantling both local and national economies as well as national sovereignty through piracy of material resources and intellectual and cultural heritages.

IPR regimes in the context of "free trade" and "trade liberalization" thus become instruments of piracy at three levels.

Resource piracy: in which the biological and natural resources of communities and the country are freely taken, without recognition or permission, and are used to build up global economies. For example, the transfer of basmati varieties of rice from India to build the rice economy of the US; the free flow of neem seeds from the farms, fields and the common people to corporations like W.R. Grace for export.

Intellectual and cultural piracy: in which the cultural and intellectual heritage of communities and the country are freely taken without recognition or permission and are used for claiming IPRs such as patents, and trademarks even though the primary innovation and creativity has not taken place through corporate investment. For example, the use by US corporations of the trade name 'basmati'" for their aromatic rice, or Pepsi's use of the trade name 'Bikaneri Bhujia'.

Economic piracy: in which the domestic and international markets are usurped through the use of trade names and IPRs, thereby destroying local and national economies where the original innovation took place and wiping out the livelihoods and economic survival of millions. For example, US rice traders usurping European markets; Grace usurping the US market from small scale Indian producers of neem­based biopesticides.

2.1 The Case of 'Basmati'

US grain corporations dominated by Cargill and Continental Grain are using 'basmati' as a trade name to usurp India's export markets for their superfine aromatic rice, which evolved in the Indian sub­continent. Basmati is a clearly identifiable part of the cultural and biological heritage of the sub­continent. The use of 'basmati' as a trade name by US corporations is therefore a means of depriving India and the sub-continent, its farmers, and its traders, of their rightful economic returns from this distinctive rice variety.

The agricultural genetic wealth of Third World countries like India has contributed tremendously to the development of new varieties of agricultural crops by the transnational seed industry in the North. With the onset of the green revolution and its attendant emphasis on uniformity, this genetic diversity is on the way to becoming extinct. Over 90 per cent of the collections of this diversity is in or under the control of the North, from where it is freely available to TNCs in the seed sector, who use them to develop new varieties, protect them under the present IPRs regimes and sell them back to their original developers - Third World farmers. Though the North, particularly the US, is accusing India and other Third World countries of piracy, estimates of US piracy of Third World farmers' seed alone amounts to royalties of US$302 million.

In India, over 70 per cent of the seed sales are among farmers. The organized seed industry, including the public sector, cannot meet even 40 per cent of the seed requirement of these farmers. The seed industry is looking towards stronger IPRs protection for their industry, including preventing farmers from selling seed. In the US and European Community, they have lobbied for measures to prevent farmers from using the seeds of one harvest for replanting. Today the world retail sales in seeds is approximately US$ 6 billion and is expected to rise to approximately US$ 28 billion by 2000 A.D. through the implementation of IPRs regimes in countries which did not extend these regimes to agriculture and to seed till now.

2.2 The Phyllanthus niruriand other Ayurvedic drugs

Phyllanthus niruri is a traditional treatment for jaundice in various forms of hepatitis and other liver disorders which has been in use in India for centuries. Its use is common knowledge and well documented. Its chemical constituents have also been investigated and reported in numerous scientific journals, including publications of the Indian Council of Medical Research as early as 1969. It has been used as a folk remedy as well as in manufacturing Indian medicines like Ayurveda, Siddha, and Unani.

The Fox Chase Cancer Centre of Philadelphia has applied for a patent on Phyllanthus niruri at the European Patent Office. The patent is being claimed for the manufacture of medicament for the treatment of viral hepatitis B. The patent application includes a reference to the Indian Materia Medica which records its use for treating jaundice.

The patent application of the Fox Chase Cancer Centre reflects a clear case of "intellectual piracy" of local communities traditional and cultural knowledge, as well as arrogance in assuming that this resource becomes "value­added" when processed in Northern laboratories. Such a patent also has a serious negative impact on the possible export market for drugs made by Indian drug companies which meet the requirements of Indian systems of medicine.

2.3 Neem: the 'Miracle' tree

The neem tree of India finds myriads of uses in every home and every community throughout India. It is used as medicine, as a prophylactic, as bio­pesticide, bio­fertilizer, bio­fungicide, nitrogen­fixer in the soil, etc. Patent claims on the various processes and products of the neem that are built on the vast intellectual and cultural heritage of the Indian people reflect a total devaluation of the country's intellectual heritage and an arrogance based on the assumption of superiority of Western sciences. The Indian community has used various parts of the neem, including its branches and twigs to clean their teeth for millennia. US Patent No. 5,009,886 granted in 1993 to Floss Products Corp., Illinois, covers the development of a toothpaste using neem root and branches. It also covers the paste compound and the process of deriving microfibres from the branches and roots to include in the paste. The use of neem as a dentrifice is neither "novel" nor "different". The paste is nothing more than a minor modification of traditional use, and this minor modification is based on the knowledge of the traditional knowledge of the use of neem fibres as a dentrifice. Neem­based toothpaste is produced by both the cottage industry sector as well as by the domestic consumer industry.

Indians have always used the neem in agriculture, as a biopesticide, biofungicide, etc. W.R. Grace's patents on processes and products of the neem for use in agriculture once again is a classic case of intellectual piracy. These products and processes are minor modifications based on the traditional knowledge and processes of the Indian community. The Indian scientific community had developed storage­stability of neem­based products as early as 1969. Neem­based medicinal and agricultural products, containing the component azadirachtin, have been produced commercially by both the small scale and cottage industry sector as well as by large corporations like Godrej.

A neem tree produces about 37 to 55 kg of fruit per year, giving an average of 60 per cent dry fruit, whose kernel has about 45 per cent of fixed oil. The present production of neem oil from neem seed is 83,000 tons per year and is worth 500 million rupees. This production generates about 30,000 tons of neem cake worth 650 million rupees, which is used mainly by small and marginal farmers as organic manure. The tree produces about 25 kg of seeds per year, whose market price on average is about Rs 2 per kg. J.P. Margo in collaboration with W.R. Grace, purchases seeds at Rs 3000-4000 per ton, raising the price beyond the reach of the majority of farmers or small­scale producers of neem products. In the initial stages, the plant has a processing capacity of 20 tons of seed per day. The products of the plant are meant for export. Thus neem seeds will, over time, start to flow out from the country, generating profits for transnational corporations, and will become unavailable to the original conservors of the resource and innovators of its use through both resource depletion and high prices.

2.4 Pepsi Foods Ltd and 'Bikaneri Bhujia'

'Bikaneri bhujiai' is a local snack invented by the cook of one of the erstwhile rulers of the Indian state of Bikaner, an invention shared with the community at large. The production of this snack is today in the cottage industry sector, and provides livelihoods to over 25,000,000 people, including women, farmers, brass workers, traders, hawkers, etc.

Pepsi Foods Ltd. has entered this business initially as a trader, buying the 'bhujia' from local producers and selling it under their brand name of 'Lehar Namkeen'. Local producers sell the 'bhujia' in the market for Rs 16 for 200 g, which leaves them a small profit margin. Pepsi is buying the 'bhujia' at this price and is selling it at a much lower price in a bid to grab the domestic market. This has negatively affected the market of the local producers by almost 20 per cent.

Pepsi has announced its intention of turning this cottage industry product into a high­technology product by starting to produce it commercially. Given the scale of its capital and its ability to absorb initial losses, Pepsi will totally destroy this cottage industry and the livelihoods of millions of people depending on it.

Whether it is trademarks, patents or breeders' rights, Western style IPRs regimes which have been created for corporate protectionism, are rapidly becoming new instruments for the destruction of the economy and livelihood of the people. Stopping piracy through IPRs requires the invention of new instruments that deal with theft at the resource, the intellectual and the market level. The concept of collective rights is the countervailing mechanism to stop piracy, to protect the natural wealth and social creativity of people and to set limits on IPR regimes on the basis of ecological, economic, ethical and cultural imperatives. Such a recognition and implementation of collective rights to protect social creativity demands a new partnership for national sovereignty.

3. AGENDA FOR ACTION

The government of India is engaged in framing new IPRs legislation for the nation. The Ministry of Agriculture is drafting the Plant Variety Protection Act. The Indian Patents (Amendment) Bill (1995) and the Trademarks (Amendment) Bill, 1995, drafted by the Ministry of Commerce are awaiting clearance in Parliament. The Ministry of Environment and Forests is framing legislation for conserving biodiversity as required by the Convention on Biological Diversity. Special legislation on Farmers' Rights is also being considered.

The need for introducing new national legislation emerges from two international treaties: the TRIPs Agreement of the World Trade Organization and the Convention on Biological Diversity. While the government has made no progress on implementation of legislation emerging from the Convention on Biological Diversity, it has attempted to rush through changes in Indian Patent and Trademark laws as well the introduction of a new Plant Variety Act. This rush is unnecessary as the TRIPs treaty itself gives us five years to frame new legislation in accordance with WTO requirements. This period should be used to maximise democratic inputs from all sectors of society and to evolve legislation creatively to protect the economic rights of small producers in agriculture and cottage industries as well as the intellectual and resource rights of all communities who depend upon biodiversity and indigenous knowledge for their survival. Such participation of local and indigenous communities in evolving national legislation for the protection of the natural and intellectual wealth of the nation is the highest test of democracy and sovereignty at the present time.

3.1 Patent legislation

1. Indian Patents Act, 1970 should not be changed until the framework and criteria for collective rights have been evolved. The five year transition period should be used for evolving such a framework and criteria.

2. Since Article 27.3 of the TRIPs Agreement which relates to biodiversity, will itself be under review four years from the date the World Trade Organization came into being, it is judicious to wait for the TRIPs review before changing our national laws.

3. The Convention on Biological Diversity has also undertaken an evaluation of the implications of TRIPs for biodiversity conservation, the sovereign rights of countries and the rights of communities. Patent laws should not be amended until the international democratic processes have resolved North­South conflicts over issues of ownership and control of biodiversity and knowledge of its utilization through the Convention on Biodiversity.

4. Article 27.2 of TRIPs should be used to exclude patents on life on grounds of public morality, environment and health. Multi­religion consultations on the ethical implications of life patenting must be held over the transition period to inform law making.

5. Patents on plants and seeds should be excluded on grounds of food security and farmers' rights. Farmers' organizations and sustainable agriculture networks should be formally invited to provide inputs into patent legislation.

6. Patents on products derived from plants and essentially derived from indigenous knowledge should be excluded on grounds of Collective Rights protecting Prior Innovation. These include products from medicinal plants, and biodiversity­derived agro­chemicals. Communities and agencies engaged in traditional medicine should be consulted for inputs on how their rights can be protected so that they can continue to utilize their knowledge and skills to provide self­reliant, low cost health care.

7. The TRIPs requirement for a "mailbox" for exclusive marketing rights should be treated as a sui generis system which does not require tampering with patent laws until the multidimensional amendments of the Patent Act have been agreed through transparent and democratic decision­making.

8. Compulsory licensing arrangements must be ensured for public interest such as access to life saving and essential drugs, and agricultural inputs.

9. Public good must be explicitly defined on the basis of Collective Rights to protect community interests and national sovereignty, not merely on the basis of rights of corporations.

3.2 Trademark legislation

1. The Trademark Act must not be amended before the five year transition period available to us.

2. This period should be used to carry out consultations with small-scale and cottage industry producers for evolving collective rights to protect their systems of production and their livelihoods as a countervailing force to trademarks.

3. The collective trademarks should be adapted to embody these collective rights and should only be available to small-scale and cottage industry producers.

4. Inputs should be made to international organizations and trade partners to ensure that India's cultural and intellectual heritage embodied in trade names is not pirated to usurp markets.

3.3 Plant Variety legislation

1. The TRIPs treaty gives five years for the implementation of the sui generis system of plant variety protection. This should be used to its full extent.

2. The 1993 draft was rushed through on grounds that it would allow India to join UPOV78. However, the deadline of December 95 has been passed for joining UPOV78. The option of joining UPOV91 has in any case, been rejected by the Indian government as unsuitable for our national interests and farmers' rights. Moreover, the TRIPs agreement does not mention UPOV and allows countries to evolve sui generis systems that are independent of UPOV.

3. The sui generis Plant Variety legislation should not stay restricted to agricultural crops and seeds. It should cover all plants of economic value including medicinal plants, vegetable dyes, etc. For this, the definition of "variety" should be interpreted scientifically as a subspecies of a plant species and not in the UPOV definition of industrially produced seed material.

4. The Plant Variety legislation should have a strong component of collective rights against which breeders' rights to seeds and patent rights to pharmaceuticals and agro­chemicals are screened.

5. The Plant Variety legislation needs to have a strong component for the conservation of biological diversity and should be evolved in accordance with the implementation of the Convention on Biological Diversity.

6. Collective rights in the area of agricultural crops and seeds have to be seen as farmers' rights of ownership and autonomous decision making.

7. Collective rights in plant variety legislation needs to cover farmers' rights in the area of agricultural biodiversity and indigenous medical practitioners, and collective rights to medicinal plant biodiversity. These collective rights have to be recognized on the basis of the joint ownership of biodiversity by the communities and the state. They cannot be interpreted as mere caretaker responsibilities of individuals and local communities to be compensated for by setting up of small funding schemes.

3.4 Legislation for Conserving Biodiversity

1. As a party to the Convention on Biological Diversity, India is obliged to evolve a biodiversity conservation legislation. This framework legislation should be finalized before amendments are made in the Patents Act or Plant Variety legislation is enacted.

2. Article 3 of the Convention recognizes biodiversty as the national sovereign wealth of a country. Biodiversity legislation should ensure that this national sovereignty is based on partnership and joint ownership of local communities and state.

3. The recognition of community ownership of biodiversity and indigenous knowledge requires the immediate compilation of a national system of community registers which serve as a screen for IPRs claims.

1. While strengthening collective rights, such community registers should neither become mechanisms for bureaucratic control over people's lives and resources, nor should they be allowed to become instruments of pitting individuals against communities and communities against one another.
2. The Convention recognises the need to protect indigenous knowledge and systems of utilization. Collective rights are an essential instrument for ensuring this protection.

6. A Collectors' Act is an essential part of biodiversity legislation to ensure regulation of access to biodiversity.