Global Trade/Global Poverty
NGO Perspectives on Key Challenges for Canada

Paper 3
Gauri Sreenivasan with Jean Christie
March 2002

Canadian Council for International Co-operation
Trade and Poverty Series

This series of papers is part of CCIC's in common program for global action on poverty. The papers aim to frame and synthesize the experience, analysis and concerns of Canadian NGOs regarding the implications of international trade agreements for global poverty and recommendations for Canadian action. The papers focus on areas of expertise of Canadian NGOs and their partners, such as in rural development, food security, health, labour rights and democratic development.

We hope the papers make a contribution to dialogue on making trade agreements poverty sensitive, on ensuring that international trade better contributes to ending poverty, and on Canada's role in these endevours.

This project has benefited from extensive collaboration and the advice of a number of distinguished international and national colleagues, as well as from CCIC members and committed research assistants. To all we extend our sincere thanks. Thoughtful and important comments were received on early and evolving drafts from: Marie-Hélène Bonin, Stuart Clark, Julie Delahanty, John Dillon, John Foster, Mark Fried, Aileen Kwa, Pierre LaLiberté, Louis Lefeber, Kamal Malhotra, Sophia Murphy, Liisa North, Wendy Phillips, Michelle Swenarchuk, Ann Weston and a number of CCIC staff. Yasmine Shamsie, Jean Christie and Chris Rosene provided invaluable research assistance on various papers. Jean Christie provided significant research and writing contributions to sections of Paper 3. We also acknowledge the institutional collaboration of the Centre for Research on Latin America and the Caribbean (CERLAC) at York University. At CCIC, special thanks goes to Brian Tomlinson for detailed editing, to Marie-Claude Morazain for checking translation, and to Gisèle Lamoureux for administrative and lay out support. CCIC and the authors take responsibility for any weaknesses or errors in the papers, and welcome feedback on this project.

CCIC gratefully acknowledges financial support for this research from the Canadian Partnerships Program of the International Development Centre (IDRC), as well as continued institutional support from the Canadian International Development Agency (CIDA).

Gauri Sreenivasan
Policy Coordinator
CCIC
[email protected]

Dr. Ricardo Grinspun
CERLAC
York University
[email protected]

Too often 'environment' is separated from 'human development' as if the two were not inextricably linked. In recent years, many Canadians have come to understand how the environment sustains all life, including human life. For those living in poverty in development countries, 'environment' has always been a part of human life and critical for survival. Because of this, the environment often holds strong cultural and spiritual meaning for the poor. For those with few monetary resources, the environment and environmental resources are also a basic life-sustaining asset -- the 'capital' of the poor.

One of the key factors affecting the relationship between people living in poverty and the environment is a concept known as 'biodiversity'.¹ Understanding the geography of biodiversity is critical to understand the politics of control and access to environmental resources, and the role of trade and trade rules. Scientists talk about three types of biodiversity: ecosystem diversity (the variety of different ecosystems in an area), species diversity (the number of species in a given area) and genetic diversity (the variability within a given species).

All biodiversity is richer in the South than in the North. The tropics and sub-tropics of the South have more biological diversity than the temperate North. This is as true for agricultural biodiversity as for 'wild' or biological diversity. In North/South relations regarding biodiversity then, geography has given the South a strategic edge. This is the context for current international policy negotiations relating to access to biodiversity, whether of agricultural crops or medicinal plants or other things.

Maintaining biodiversity and (free/public) access to it, while obviously a planetary public good, is crucial for the poor. The World Health Organization has estimated that 80% of the world's population depends on traditional medicine derived from local plant varieties for their primary health needs.² Wild plants, in field and forest, make a significant contribution to the diet of many poor communities. In many developing countries, poor communities are able to draw at least half their food from forest products, and consequently have never faced famine.³

Agricultural plants in the South, developed by farmers over thousands of years, have been bred and adapted to suit local conditions. For example, of the hundreds varieties of corn grown in Mexico, each has unique characteristics and features: some more adaptable to frost or drought, other grow in higher altitudes, some produce late in the season, others early. The free exchange of this knowledge, as well as local sale and exchange of seeds, has been an essential aspect of food security among the poor. In the developing word, only 10 per cent of seed is bought commercially, and many poor farmers buy seed only every five years.⁴

Thus it is usually the rural poor in developing countries -- indigenous peoples and resource-poor farmers -- who know most about age-old, time tested seed varieties, medicinal plants and other useful biological resources, whether cultivated or wild. Like all economic activity, agricultural and forage activity is gendered. Research documents that, both men and women play important and distinct roles in maintenance of biodiversity. In many countries, from the Peruvian highlands to the Solomon Islands, women do much of the seed saving and seed selection in rural communities, particularly for food crops. Hence it is poor women who are often the custodians of agricultural and medicinal resources.⁵

While geography and biology favour the South in matters of biodiversity, the agro and pharmaceutical corporations that require knowledge of and access to genetic resources for 'product development' are overwhelmingly based in the North. One of the chief ways corporations have tried to secure this access is by extending the use of intellectual property rights (IPRs) into the realm of living things. Intellectual property rights include patents, copyrights and trademarks, whose purpose is to ensure that creators of intellectual property receive adequate recognition and 'protection' in the market place to ensure returns for their investment in research and development. As Canadian Churches have argued, IPRs also "involve a host of ethical concerns because they deal with fundamental questions concerning ownership of knowledge."⁶

An important means by which corporations have succeeded in extending IPRs has been through the Agreement on Trade Related Aspects of Intellectual Property (TRIPS), a precedent-setting agreement successfully concluded by governments as part of the GATT Uruguay round. In many ways, TRIPS is antithetical to the stated purpose of liberalized trade since it is an agreement that facilities monopoly. Nonetheless, explicit and heavy lobbying from corporations (such as Pfizer in the US as well as others in Europe and Japan) succeeded in bringing the TRIPS agreement about to ensure a move toward global harmonization of legislation for IPR treatment that could be enforcement through trade sanctions.⁷ The TRIPS agreement is based on IPR standards of industrialized countries. Governed by the WTO, it has many components and many implications for development and poverty eradication in the South. In this chapter we discuss those aspects of TRIPS that relate to IPR over living organisms.

TRIPS obliges countries to provide patent protection for inventions (of product of process) for twenty years. Developing countries had until the year 2000 to bring legislation into place to assure this; for least developed countries the deadline is the end of 2005. Article 27.3(b) of the TRIPS agreement requires countries to provide patent protection for certain lower life forms: micro organisms, non-biological and micro-biological processes. It allows countries to exempt from patentability higher life forms of plants and animals, as well as "essentially biological processes for the production of plants or animals". But the article requires that if patent protection is not afforded for plant varieties, some other "effective" specially designed (sui generis) system of IPR must be provided, or some combination of a patent and a sui generis system.

While Article 27.3b reflects a negotiated compromise from the full patenting of life forms that, for example, US law allows, many developing countries did not predict the full implications of TRIPS, including the opening of the wedge on patenting of life forms, which this article secures.

Applying the framework of IPRs to life forms is challenged by many indigenous peoples, farmers groups, NGOs and increasingly Southern governments as inappropriate for the cultural and developmental needs of poor countries. These voices argue that the TRIPS Agreement suffers from many structural weaknesses, and is skewed towards corporate and private rights over the public good and rights of communities. For example, the text of TRIPS fails to acknowledge or protect Farmers Rights, a technical concept that has been explicitly recognized in the International Undertaking on Genetic Resources for Food and Agriculture of the FAO, the Convention on Biological Diversity (CBD), and Agenda 21 of the UN Conference on Environment and Development.⁸

Additionally, unlike these other international agreements, the TRIPS Agreement does not speak to the essential role of rural communities in conserving traditional biological knowledge. It does not have any prior informed consent of the people whose knowledge is being tapped for technological innovation.

For many critics, it is not a question of clauses being present of absent, but a question of the fundamental assumptions about the appropriateness of applying patent or patent-like legislation to life forms or to traditional knowledge, which are essentially public, 'non-divisible' goods, and not seen as 'property.' A 1999 statement on TRIPS released by a global network of indigenous people's organizations, and NGOs made this assertion:

Knowledge and cultural heritage are collectively and accretionally evolved through generations. Thus no single person can claim inventions or discovery of medicinal plants, seed or other living things. The inherent conflict between these two knowledge systems ... will cause further disintegration of our communal values and practices."⁹

African governments and the Organization of African Unity have taken similar positions on life form patenting as being unethical and alien to the cultural beliefs of Africans.

How does the TRIPS Agreement specifically affect prospects for poverty eradication? Both through what it does, and what it does not do.

First, TRIPS does not provide any guarantee or safeguard to ensure that the poor share in the billions of dollars that may be made from the South's biological resources, or the application of traditional knowledge. Many pharmaceutical and agro industrial companies are shortening their research time many times over by using indigenous knowledge to find commercially useful plants, and then patenting the results and claiming monopoly rights over them. According to one estimate, yearly sales of US$32 billion result from drugs that were "discovered" by these corporations as a result of their prior use in indigenous medicine.¹⁰ It is estimated that if just a 2% royalty were charged on genetic resources that had been developed by local innovators in the South, the North would owe more than $5 billion in royalties for medicinal plants.¹¹ Not only has there been no profit-sharing, farming communities may have to pay to access the same products that their creativity brought to this world, once patents have been extended to these resources, or derivatives of them.

The Canadian-based internationally NGO Erosion, Technology and Control (ETC) Group (formerly RAFI) has called this use of IPR to appropriate biological resources and/or knowledge about them, "biopiracy." Examples of it abound, and ETC Group and other NGOs have documented them well, occasionally contributing to unjust patents being overturned or dropped. Famous cases include W.R. Grace's attempted patent of the fungicidal properties of the Neem tree (later overturned). RiceTec Group has received a controversial US patent on a rice plant crossed with India's famous aromatic Basmati rice. A broad coalition of Southeast Asian NGOs and people's movements have denounced the patent. The Enola or Yellow bean patent is a recent example that illustrates the impact such patents can have on poor farmers (see Box 2).

Second, TRIPS reduces farmers' access and control over agricultural resources including seeds, which are essential to their food security. As farmers use (corporate) proprietary seeds, they lose control over productive processes. Why? Increasingly, the standards for national IPR legislation for plants are being linked to the conventions of the Northern-dominated International Union for the Protection of New Varieties of Plants (UPOV).¹² UPOV IPR standards extend the breeder's monopoly to the harvest of the farmer's crop, with few exemptions. This means that farmers using patented or UPOV-protected plant varieties cannot sell or share seeds from their harvest without being in breach of intellectual property protection. But in many developing countries, farmers' sale and exchange of seed is a historic and critical element in food security and livelihood. In India, the farming community is the largest seed producer, providing about 87% of the country's annual requirement.¹³ IPR-protected seeds are also likely to be more expensive than non-proprietary seeds given royalty payments.

Some countries' national legislation for Plant Breeders' Rights (PBR) takes up the allowed exemptions in UPOV to provide for "farmers privilege" to use harvested seed on their own land for re-planting, but this is not protected as a right, and requires proactive national action. The 1991 UPOV convention also circumscribes this exemption, requiring it to be "within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder."¹⁴ As will be reviewed below, countries attempting to use the legal scope afforded in TRIPS to develop their own (sui generis) IPR systems, which might allow, for example, seed sale and exchange among farmers, are being denied this flexibility, and pressured to adopt the (UPOV) system as their sui generis protection.

More generally, by requiring IPR for plants, and thereby contributing to the privatization of genetic resources, the TRIPS regime serves to constrain Farmers' Rights to conserve, develop, and innovate agricultural knowledge for communal or public purposes.¹⁵ Recently however, there have been positive international policy developments to counter this trend of privatization of agricultural resources. (See Box 3).

The possibility of using the TRIPS Agreement to secure enforcement of IPR legislation for plants in developing countries has only just taken effect in 2000. In North America, where patents on plants have been used for some time, companies such as Monsanto have made sure the lid on IPR infractions is nailed down tightly in other ways, outside of trade law, by securing explicit and direct contractual agreements with farmers regarding patented agricultural technology.¹⁶ These agreements ban saving harvested seed or any other part of the patent protected crop, ban supplying harvested seed to another person, require cooperation for inspection of fields to ensure compliance, and charge high fees for violation. These agreements have become standard practice, sending ominous warning signs about the approach and intent of agro industry towards IPR in developing countries.¹⁷ Through these agreements, Monsanto has launched over 500 legal suits in North America against farmers for the "crime" of using or saving patented seeds, including the renowned case against Saskatchewan farmer Percy Schmeiser, which Monsanto won, requiring payments of $85,000 from a single farmer.¹⁸

Third, TRIPS contributes to trends that threaten biodiversity, on which the poor depend so vitally. As noted, TRIPS requires countries to provide IPR for plants. The dominant (UPOV) criteria for providing plant breeders rights protection to plant varieties are: novelty, distinctiveness, uniformity and stability. But these criteria are based on the characteristics of plants the suit industrial agriculture. Such varieties are the exception rather than the norm in much traditional Southern agriculture.¹⁹ The TRIPS regime thus strengthens the incentives and protection for high-tech industrial agriculture. There are concerns that this type of agriculture may expand exponentially under uniform intellectual property policies in the South, encouraging the penetration of external seed varieties in Southern markets and fields, and displacing traditional ones, which may play valuable roles in local health and food strategies.²⁰

These trends did not start with WTO trade law, but rather date from the Green revolution. As such farmers' and NGOs' concern that industrial agriculture raises dangers for biodiversity and the poor are based on experience. Whether for export of national/regional use, high-tech agriculture as practiced to date has focussed on monoculture, causing farmers to depend on just a few crop varieties leading to both increased vulnerability to pests and a reduction, often permanent loss, of genetic diversity. In the Indian State of Andrah Pradesh, one study found that the incursion of the Green revolution led to a loss of 95% of traditional rice varieties without their collection or documentation.²¹

In addition to the problem of the loss of local varieties, high-tech plants are simply often ill-suited for the diverse environments where the poor live. These seeds are usually dependent on agrochemical inputs, such as pesticide or fertilizer, and require irrigation, which many farmers cannot afford or cannot afford in the quantity required. In addition to the ecological costs, when poor farmers grow such plants under local conditions, high tech seeds frequently under perform on yields relative to traditional crops.^22,23

But what of arguments that IPR protection is needed to secure further research and innovation in plants and seeds to help address food security and other public goods? The evidence is not compelling. IPR legislation to date seems to have neither provided incentives for socially responsible innovation nor for effective industry competition. As the UNDP's 1999 Human Development Report points out, on the whole biotechnological research has focused on the needs of rich farmers or urban consumers, giving priority to issues such as lengthening 'shelf life,' or herbicide resistance, or developing plants designed for labour-saving techniques rather than being employment sustaining, which is so critical in the rural south.²⁴

A study by the British NGO Action Aid, examined the impact of plant breeder's rights (PBR) in the UK. It concluded that investment has been concentrated on crops and crop innovation with the greatest likelihood of profitability, not poverty eradication; that PBR legislation did not contribute to a net increase in varieties; and that there is no evidence of greater competition or increased number of firms active in plant breeding. Indeed the study noted compelling evidence of consolidation of seed industries. Such consolidation is very evident in North America as well.²⁵

Canadian NGOs and many farmers groups around the world are not against technology or the application of science to increase yields or improve crops. Their interest is in ensuring that national and international policy environments encourage science and technology to address the needs and environments of the world's poor farmers and communities: how to work with local, already-tested and adapted crops, in relatively inexpensive ways, to boost production and share knowledge?

Alternative approaches are possible. Serious efforts must be made at the policy and practical levels, to learn from successful experiments such as those of USC-funded African Seeds of Survival and the Community Biodiversity Development and Conservation Programme.²⁶ These proven initiatives have effectively combined the hands-on knowledge of farmers, and traditional seed varieties, with the modern plant breeding techniques of scientists, and have increased productivity with few external inputs, while maintaining genetic diversity. Such successes must be publicized, scaled up, and actively supported by national policies, and policies within publicly funded agricultural research centres and aid institutions - given the different focus on private sector research.

The TRIPS agreement has emerged as a centre piece in the more generalized North-South debate, concerning the importance of addressing grievances with existing WTO agreements versus moving forward on new issues. These tensions pre-date the WTO's 1999 Seattle Ministerial. And although a new trade round was launched at Doha, this debate has not been resolved.

Importantly, developing countries are not considering whether or not to provide patent protection. The importance and value of IPR in an economy are not intrinsically questioned. The issues are the design and governance of IPR regimes, the balance with human rights obligations, and particularly the scope of IPR: which products or processes should be eligible. In particular, Southern and NGO proposals reflect preoccupation with both the widening gap between rich and poor in an increasingly knowledge-based economy, and the need to allow a greater diversity of legislative approaches to intellectual property, that takes into account the varied needs of countries at different stages of development and with different values and cultural beliefs.

At one level, developing countries want to review TRIPS and the timelines for its implementation simply because of the significant unexpected costs and challenges that must be met to achieve compliance.²⁷ The scope that is offered to governments wishing to seek patenting exemptions also requires enormous resources and capacity. For example Article 27.2 allows any signatory government to challenge an individual patent on the grounds of ordre public, of public morality - a clause that has not been used, because it would require governments to monitor and understand the thousands of patents that are granted annually.

But more fundamentally, a significant coalition of interests is calling for s substantive review of TRIPS' application to life forms, leading to revised terms for this Agreement. These parties include widely mobilized indigenous peoples, farmers groups, NGOs, and many Southern governments, led by a strong African bloc, as well as many Asian and Latin American governments. Although they face strong opposition from industry and most industrialized countries, more fundamental re-thinking of the extension of IPR over life forms has support within the multilateral system, particularly from US agencies.

The US Sub-Commission for the Protection of Human Rights has passed a resolution of the threat of TRIPS to the rights of the poor.²⁸ And in its 1999 Human Development Report, the UNDP argued:

[T]he relentless march of intellectual property rights needs to be stopped and questioned. Developments in the new technologies are running far ahead of the ethical, legal, regulatory and policy frameworks needed to govern their use. More understanding is needed -- in every country -- of the economic and social consequences of the TRIPS agreement.

Southern and NGO proposals on TRIPS make use of existing policy openings and processes in the Agreement. Article 27.3(b), which sets the parameters for patenting of life forms, requires the "the provisions of this sub-paragraph shall be reviewed four years after the date of entry into force of the ... Agreement." The review period thus commenced in 1999, though it has no specified end date. For most developing countries and NGOs, the article clearly implies that a review of the provisions means that the articles should be discussed substantively. This would then allow formal treatment of considerations for their amendment. Some governments of the North however, led by the USA, are now arguing that the review should be limited to measuring progress on compliance/implementation with the TRIPS agreement. Canada's position has not been clearly articulated, but seems by default to favour a more narrow review.²⁹ Before the Doha Ministerial, the EU had indicated openness to a broader review and to the substance of African proposals, providing they were discussed within the context of a new comprehensive round of trade negotiations, (which most of the African group opposed).

While seeking that the review of Article 27.3b be substantive the Africa Group and other developing countries have also already tabled various concrete proposals for re-working this and other articles, dating from before the failed Seattle Ministerial. Knowing much more now about the implications of life patenting than they did at the time of signing, these governments contend that patents on life should not be permissible.³⁰

Another major concern of developing countries has been to address the inconsistencies between the Biodiversity Convention (CBD) and the TRIPS agreement -- both legally binding international treaties that require national implementation. The CBD has been criticized heavily by NGOs because it reaffirms that prevailing IPR legislation must be respected. But the CBD also lists obligations of states untouched in TRIPS. Developing country proposals submitted by India, Brazil and African states to the TRIPS Council over the past few years, call for harmonization of TRIPS with CBD to ensure that Farmers' Rights, including the right to save seed, and the role of communities and traditional knowledge, are respected. Proposals also call for clarity on the need to make prior informed consent for the use of resources and knowledge explicit.³¹ More recently, a grouping of ecologically diverse nations have formed an alliance to push for a new international patenting treaty to protect against biopiracy, that offers stronger protections in trade rules than the CBD.³²

A number of NGOs have also focused on the opening offered under TRIPS Article 71.1, which requires a revision of the TRIPS Agreement every two years, based on implementation experience or other concerns that "warrant amendment of the Agreement." They see these biennial reviews as opportunities for on-going consideration of the core issues outlined above, and for maximizing flexibility for governments by operationalizing principles and objectives of the agreement that relate to benefit sharing, prevention of abuse of IPR by patent holders, and consideration of measures necessary to protect the public interest.³³ The financial, legal and political capacity of many developing countries to make use of these principles is extremely limited. Making such articles real, accessible and simple to use is key. Direct reductions in the scope of the agreement and patent rights, may prove to be the most accessible form of flexibility for poor countries.³⁴

The Fourth WTO Ministerial in Doha, paid scant attention to the life patenting issues of TRIPS, partly due to the focus on the issue of access to medicines. In the lead up to the meeting developing countries had spoken to the need for a moratorium on TRIPS implementation, pending its built-in reviews, and for timetables for competition of these reviews. The review of Article 27.3b for example, has been underway in principle since 1999. The South has decried the foot dragging and asked that a substantive review be completed by the end of 2002.

The Doha Ministerial declaration took no new real steps, however, only noting that reviews of articles 27.3b and 71.1 are to go ahead. It also calls for the TRIPS Council to take particular study of the relationship between the CBD and TRIPS, and issues related to traditional knowledge and folklore, guided by the objectives of Articles 7 and 8. If governments really allow themselves to be 'guided' by the public interest concerns of these latter articles, future TRIPS Council debates may provide fresh energy to Southern concerns, but the Doha language is very general and weak.

At the national level, many developing countries and civil society organization are working to establish diverse and appropriate sui generis systems of IPR for plant and genetic resources. The TRIPS Agreement itself does not specify what constitutes an "effective" sui generis system. The Organization of African Unity (OAU) has developed a Model law for the Protection of the Rights of Local Communities, Farmers, breeders, and for the Regulation of Access to Biological Resources. It is an effort to provide a framework for national law that reflects the combined obligations of the CBE and the TRIPS. The law provides for community and Farmer Rights, and for the regulation of access to biological resources based on prior informed consent. It rejects patentability of life forms.

This model law has been developed collaboratively over several years by African governments, farmers, NGOs, and lawyers. The law was endorsed at an OAU Heads of State meeting in July 1998. The World Intellectual Property Organization (WIPO) and the UPOV were both invited to comment on the law. Action Aid Ethiopia reports that instead of suggestions supporting the African initiative, both organizations made comments which sought to undermine its intention. UPOV promoted itself instead as the effective sui generis model for plants for TRIPS.³⁵

In fact NGO research demonstrates a disturbing trend, in which attempts at building indigenous sui generis intellectual property systems for plants and life forms are being systematically eroded or side-stepped. Numerous Asian countries such as Thailand, Bangladesh, and the Philippines have drafted or attempted various forms of sui generis legislation for plant variety protection. India is one of the few countries where civil society groups efforts with other sectors to build national legislation for plant variety and farmers rights protection seems to have resulted in a strong bill.³⁶ But in many countries internal pressure from industry-linked interests have worked to water down many of these proposals through the domestic policy process.³⁷

Even more disturbing, external bilateral political pressure has been very effective at getting developing country governments to make TRIPS 'plus' commitments (beyond what TRIPS requires) in IPR legislation for plants. For example the recent EU-Bangladesh Trade and Aid agreement of 1999 requires Bangladesh to "make every effort" to join UPOV. As an LDC, Bangladesh is not required to implement TRIPS until 2006. Moreover, Article 27.3b does NOT require countries to adopt UPOV as their sui generis system. Bangladesh's sui generis legislation, built in consultation with civil society, may become irrelevant.³⁸

The Barcelona-based NGO GRAIN has documented 23 cases of bilateral or regional treaties between developed and developing countries that are TRIPS plus. These two dozen agreements already affect 150 countries in the South.³⁹ Civil society organizations active in monitoring the FTAA negotiations also note that the draft text for the hemispheric agreement makes many references to UPOV as the reference for intellectual property protection for plants.

Developing countries have little bargaining power in bilateral trade deals and negotiations. The proliferation and lower profile of these agreements also make them difficult for civil society to monitor, track and influence. This trend of bilateral pressure on developing countries to adopt UPOV and/or make IPR commitments beyond TRIPS requirements, bodes poorly for poverty eradication and biodiversity concerns, but also for the possibility for WTO multilateral negotiations to effectively address core developing country issues. As GRAIN writes: "If there ever really was an intention to let developing countries adopt legal systems for the protection of plant varieties to their own liking and attuned to their own situations, it is fast evaporating."⁴⁰

While NGOs, farmers and indigenous people's organizations are therefore working to change and rebalance the scope and demands of IPR requirements within trade agreements, many of these actors are also mobilizing within the multilateral system to find ways outside of trade law to repeal, over the longer term, the extension of intellectual property, particularly patents, over living organisms altogether. For example, a major global NGO initiative is underway to secure this objective through a multilateral Treaty to Share the Genetic Commons. The initiative aims for governmental and civil society endorsement at the Rio +10 Earth Summit in Johannesburg, South Africa in 2002.⁴¹ In the long term, industry's own reconsideration of the administrative burden of IPR in this area may contribute to this.

Canada has not articulated a 'position' per se on most of the proposals from Southern governments and civil society regarding TRIPS and life patenting issues. A May 16, 2000 letter from the Canadian Churches of the Ecumenical Coalition for Economic Justice to Trade Minister Pierre Pettigrew and other Ministers seeking clarification of Canada's position on a number of Southern government proposals, including the ones related to TRIPS Article 27.3b, was never answered. But Canada is a strong proponent of intellectual property rights generally, and our silence on TRIPS Article 27.3b, in the context of a raging global debate, speaks loudly.

In a consultation document for Canadian citizens regarding intellectual property law, DFAIT indicates that Canada plays a leadership role in encouraging "discussions on the issues relating to access to and use of traditional knowledge internationally, as well as participation by indigenous people in these forums [WIPO and CBD]."⁴² Canada's support of indigenous peoples' participation in fora like CBD is important. Yet these forums are largely examining how to protect indigenous knowledge within the traditional framework of intellectual property.

Many indigenous peoples and farmers organizations around the world are searching also for means to protect their knowledge and resources from the logic of the industrial worldview, which sees knowledge and biological resources as assets to be privatized. The 2001 campaign call of the Canadian Catholic Organization for Development and Peace (CCODP) and their partners regarding biopatenting and TRIPS issues is "Life is for All, Not for Sale."⁴³ For its part, Canada is seen by many international NGO observers as playing an obstructionist role in fora like the CBD and FAO in ways that overly protect corporate intellectual property rights, often blocking progress towards ensuring knowledge and resources stay in the public domain.⁴⁴

If Canada wants to play a leadership role on these issues, much more concrete action to restrict the scope and demands of patenting and IPR will be required at the WTO and in regional trade negotiations such as the FTAA. Canadian NGOs call for the Canadian government to play a more active and explicit role.

1 | The following draws heavily on background research prepared for CCIC by Jean Christie based on work of ETC Group (formerly RAFI). Christie, 2001.

2 | Cited in Action Aid, 2001: 9.

3 | UNDP, 1998.

4 | Action Aid, 1999: 6.

5 | IPGRI, 2001.

6 | ECEJ, 2000.

7 | See review of detailed role played by Ed Pfizer, ECEJ, 2000.

8 | FAO resolution 5/89 on Farmer's Rights reads: Farmers rights mean rights arising from past, present and future contributions of farmers in conserving, improving and making available plant genetic resources particularly those in the centres of origin/diversity. These rights are vested in the International Community, as trustee for present and future generations of farmers. Action Aid, 2001: 7.

9 | Indigenous People's Statement on Trade related Aspects of Intellectual Property Rights (TRIPS) of the WTO Agreement," Geneva, July 25, 1999 as cited in Kuyek, 2001: 21.

10 | RAFI, 1997a: 6.

11 | UNDP, 1999: 71.

12 | UPOV is a small intergovernmental organization that administers common rules for the recognition and protection of plant varieties and plant breeders rights internationally. Most of the 46 UPOV members are industrialized countries, which operate under the UPOV convention of 1978 and 1991. Kuyek, 2001: 6.

13 | Sahai, 2001.

14 | Article 15-2, Optional Exemption of UPOV 1991 Act, as reviewed in Crucible II, 2000.

15 | Kuyek, 2001; Action Aid, 2001.

16 | Living organisms, including human genetic material, became patentable matter in the US in the late 1980, serving as the basis for the dizzying growth of the biotechnology industry.

17 | At the same time, the implications of pursuing such legal procedures, or enforcing contracts with millions of poor farmers are administratively daunting. Corporations themselves have begun to identify ways to ensure their control through the biology of plants (for e.g. the plant-sterilizing 'terminator technology'), potentially eliminating the need for patent protection. See www.etcgroup.org for more information on this technology.

18 | Kuyek, 2001: 11. Even more troublesome is that Mr. Schmeiser, has always argued that Round up Ready Canola blew into his field unknowingly, leaving open the possibility that innocent victims, whose field some would argue were 'polluted', may be unfairly charged.

19 | Action Aid, 2001: 11; and CIDSE, 2000.

20 | For example, Kuyek notes that in the eyes of most corporations, the Asian seed market is vastly under penetrated. Asia consumes a third of the world's agricultural seed, but accounts for less than a quarter of annual commercial seed markets, with the bulk of sales concentrated in Japan and China. By and large Asia's seed supply still remains in the domain of farmers and the public sector. Kuyek, 2001: 3.

21 | GRAIN research shows that by the early 1990s, just five of the 'super varieties' of rice accounted for 90% of the rice growing area of both peninsular Malaysia and Pakistan, nearly half of the ricelands of Thailand and Burma, and around a quarter of the rice areas of China and Indonesia. Kuyek, 2001.

Also, while the increases in yield and productivity that the Green revolution brought about are clear, there is a wealth of literature now about the short-term nature of these yield boosts, as well as the attendant financial, social and ecological costs which have accompanied and hence tempered these gains. See the work of the Food First Institute for example, including recent summary of key points in Rosset, Collins, and Lappe, 2000.

22 | The in-depth research of the Seeds of Survival Ethiopia Programme illustrate this well. See Worede, Tessema, Feyissa, 2000.

23 | Beyond the concerns about high yield, hybrid seeds, the switch to genetically modified seeds has also added a whole new frontier of issues for farmer's rights and public health, which are not discussed here. See Royal Society 1998; Paoletti and Pimentel, 1996; UNDP, 2001; and Kendall et al., 1997 for discussion of genetically modified seeds and implications for ecology, health and development. Altierie and Rosset, 1999 review the literature on biotechnology from a critical perspective.

24 | UNDP, 1999: 68.

25 | Action Aid, 2000; CIDSE, 2001.

26 | This program is described in CCIC, 1999: 5-6; and at www.usc-canada.org.

27 | Even industry representative's have questioned the financial costs and time constraints imposed by the explosion of patent applications and litigation. The sixth millionth patent was granted in the US in 1999. More than 3 million additional patents related solely to pieces of the human genome are pending application. Each patent litigation in the USA costs each protagonist an average of US$ 1.5 million. Mooney, 2001.

28 | UNCHR, 2000.

29 | See also discussion of these issues in the report on a roundtable on trade and poverty held with Canadian officials. CCIC, 2001.

30 | The Africa Group proposal, submitted by Kenya in 1999 prior to, asks for changes to 27.3b so that "plants and animals as well as micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals, and other living organisms should also not be patentable."

31 | The Africa Group submission to the TRIPS Council in June 1999 stated explicitly that "the review process should seek to harmonize 27.3b with the provisions of the CBD and the International Undertaking, in which conservation and sustainable use of biological diversity, the protection of the rights and knowledge of indigenous and local communities, and the promotion of farmers' rights are fully taken into account." In its November 2000 submission to the TRIPS Council Brazil asks that TRIPS be amended in order to allow members to be able to require, as a condition for acceptance of a patent, evidence of benefit sharing, identification of the source of the genetic material and evidence of prior informed consent from the Government or relevant traditional community. Cited in Action Aid, 2001.

32 | The Alliance, formally called the Group of Allied Mega-Biodiverse Nations, was announced February 18, 2002. It brings together the biodiversity-rich countries of Brazil, China, Colombia, Cost Rica, Ecuador, India, Indonesia, Kenya, Mexico, Peru, South Africa and Venezuela. The Alliance is pushing for a stricter international treaty, targeting the World Summit on Sustainable Development in Johannesburg, South Africa in August 2002. BRIDGES, 2002.

33 | For example Article 7 (Objectives) notes that the enforcement of IPR should contribute to transfer and dissemination of technology, and in a manner conducive to social and economic welfare, and to striking a balance between rights and obligations. Article 8 (Principles) speaks directly to the need to take appropriate measures where necessary (provided they are consistent with the Agreement) to prevent the abuse of IPR by right holders. Article 8 also indicates, similar to Article 27.2, that members may adopt measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance.

34 | For example exemption clauses that automatically covered whole categories of patents and requirements that patent claimants disclose the use of traditional knowledge and share royalties would be much more effective protection in the South.

35 | Action Aid, 2001: 5.

36 | The Indian Parliament passed a Plant Variety Protection and Farmers' Rights Bill in Summer 2001, which protects farmers rights to save, resow, exchange and sell seed and produce, as well as Researchers' Rights and requirements for disclosure of 'parentage' of new seed varieties etc. See Sahai, 2001.

37 | Kuyek, 2001: 7.

38 | Action Aid, 2001: 5.

39 | GRAIN, 2001.

40 | GRAIN, 2001: 6.

41 | See RAFI, 2001a.

42 | DFAIT, 1999.

43 | See CCODP, 2001 Backgrounder, Planting Seeds of Hunger and other materials www.devp.org.

44 | In the negotiations of the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, one of the most contentious issues was deciding the payment mechanisms by which industry could access genetic material covered by the treaty. Canada, in conjunction with other countries (notably the US, Australia and New Zealand), went to extraordinary lengths to prevent any kind of taxation mechanism as a means of compensating Southern countries for their contributions and supported the US, which was especially opposed to linking payment to patent revenues. While compromise was reaches eventually on another form of payment, ETC Group -- which participated throughout the negotiations -- contends that Canada's not-picking came close to threatening the achievement of a treaty. This treaty successfully secures global public access to key food security crops, after 7 years of slogging negotiations. CCIC communication with ETC Group (formerly RAFI). Also See Box #3.

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