Implications of TRIPs For Food Security in the Majority World

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TRIPs Report: Introduction and Summary of Main Findings
‘Implications of TRIPs for Food Security in the Majority World'

Prepared for Comhlámh Action Network by Gerard Downes, October 2003

INTRODUCTION TO REPORT
This report will serve as an overview into the World Trade Organisation's (WTO) Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement and the extent to which the agreement, particularly Article 27.3(b) of the agreement, impinge upon food security in the developing world.
The report begins by looking at the genesis of and motivation for the TRIPs Agreement. It then looks briefly at the transformation in agriculture wrought by the ‘gene revolution' and the consequent rush to patents that it has wrought. The potential impact of the most contentious article of the TRIPs Agreement, namely Article 27.3(b) upon the developing world is then assessed.

It has been claimed that since the Uruguay Round of trade talks which begot the TRIPs Agreement, there has been a consolidation of the seed industry, with certain firms enjoying monopoly privileges in certain key sectors. This trend is at variance with the WTO's aspiration of greater liberalisation of trade. However, the greatest danger to food security in developing countries may come from the implementation of the UPOV Convention (International Convention for the Protection of New Varieties of Plants) which has been used by powerful states in bilateral, regional and sub-regional trade agreements as a means to ensure the compliance of developing countries with the provisions of the TRIPs Agreement. As a result of the TRIPS Agreement, WTO member countries must provide intellectual property rights protection for plant varieties, either in the form of patents or through a sui
generis (i.e. of its own kind) system. The sui generis provision in theory should allow countries to develop their own system for protecting plants. In practice, however, the UPOV Convention has become the most widely used model for implementation of countries' sui
generis obligations. One of the reasons why this is so is because UPOV is the only plant variety protection system that exists in international IPR law.

SUMMARY OF MAIN FINDINGS

· The TRIPs (Trade Related Intellectual Property Rights) Agreement means that member states of the WTO (World Trade Organisation) must enact domestic legislation which provides for minimum standards of intellectual property rights protection.

· The TRIPs Agreement was included on the agenda of the WTO after intensive lobbying by a small coterie of thirteen multinational corporations who comprised the Intellectual Property Committee (IPC).

· The TRIPs Agreement makes the privatisation of the world's biodiversity a reality. This violates both the Convention on Biodiversity and the International Treaty on Plant Genetic Resources for Food and Agriculture. Both of these are legally binding UN treaties which have been ratified by Ireland.

· The TRIPs Agreement requires that member states of the WTO provide for the protection of plant varieties by means of patents, plant breeders' rights, a combination of both or a sui generis (‘of its own kind') system which in reality means the UPOV Convention (see page 33).

· The TRIPs Agreement will reinforce the phenomenon of ‘biopiracy' where natural resources are appropriated and patented by companies or organisations, e.g. the neem tree, turmeric, the Mexican enola bean, etc.

· The 1952 Patent Act of the US does not recognise ‘prior art' outside its borders. This means that ‘innovators' or ‘inventors' in the US can claim what they have created as ‘novel'even though the product may have been patented elsewhere. This is the basis of biopiracy.

· The TRIPs Agreement makes no provision for the ‘benefit-sharing' of plant genetic resources. Neither does the agreement recognise the principle of ‘prior informed consent' between those extracting the genetic materials and those who claim ownership over those resources.

· The TRIPs Agreement does not recognise the contribution of farmers, communities and indigenous peoples in the conservation and creation of genetic resources by human selection for millennia.

· Article 27.3(b) of the TRIPs Agreement requires that member states allow the patenting of plants and animals that have been produced through ‘non-biological' and ‘microbiological processes'. These references are to the new biotechnologies of genetic modification
(also known as ‘genetic engineering').

· The TRIPs Agreement legalises the patenting of ‘life forms' such as genes, gene sequences, plant varieties and micro-organisms. These are discoveries in nature but organisations have been able to claim them as ‘inventions'.

· In a multitude of secretive bilateral treaties, regional agreements and investment treaties, a significant number of developing countries have been forced to adopt the provisions of the UPOV Convention which is very stringent in terms of what farmers are permitted to save and exchange from their harvests. Under the TRIPs Agreement countries are ostensibly allowed create their own sui generis systems of plant variety protection. This flexibility is being negated by the imposition of the UPOV Convention.

· The TRIPs Agreement (and the related UPOV Convention) render illegal the sale and exchange of seed in agriculture. Almost one and a half billion farmers depend on the saving of ‘across-the-fence' sale and exchange of seed for their livelihoods. The TRIPs Agreement
means that many farmers will no longer be able to continue these practices. In terms of food security, the termination of such practices will be catastrophic.

· Plant breeder legislation has already led to farmers being fined for selling and exchanging seed as well as selling uncertified seed in industrialised countries such as the US, Germany, Scotland and Canada. The TRIPs Agreement will reinforce and expand the power of plant breeders.

· Proponents of the TRIPs Agreement state that the agreement will lead to a greater transfer of technology and more investment in developing countries. A World Bank study proved that this was not the case in reality.

· Legislation required under TRIPs is leading to the consolidation of the seed market in certain countries. For example, Monsanto and DuPont now control 75% of the Brazilian corn market. Since 1997, Monsanto's share of the Brazilian maize seed market went from
0% in 1997 to 60% two years later by acquiring small local firms.

· As an antitrust case brought against the five ‘gene giants' (Monsanto, DuPont, Dow Chemical, Novartis, AstraZeneca) shows, the ‘giants' act as a cartel, restricting competition, breeding a narrow selection of crops and keeping prices of inputs for farmers, such as seed, much higher than should be the case. Their expansion into developing countries will reinforce their grip on markets and will lead to the consolidation of the food chain by a quintet of powerful conglomerates.