EQUITABLE PROTECTION FOR INTELLECTUAL PROPERTY

IN AFRICA

The African Model Legislation

for the Protection of the Rights of Local Communities, Farmers and Breeders

and for the Regulation of Access to Biological Resources

Action Plan 2002

TABLE OF CONTENT

Executive SummaryP 3

I. Humanity’s Resources: Public or Private control?P 5

  • The concept of Intellectual Property Rights
  • Intellectual Property rights on living organisms
  • A Christian approach on patenting of living organisms

II. How Intellectual Property Rights on living organisms is regulatedP 7

  • Patents
  • Plant Breeders’ Rights

III. World Conscience versus Private OwnershipP 9

  • International Undertaking on Plant Genetic Resources
  • Convention on Biological Diversity
  • Trade Related Intellectual Property Rights Agreement

IV.Equitable IPR protection for African States ?P 11

The African Model Legislation for the protection of the rights of local communities, farmers and breeders and for the regulation of access to biological resources

  • Objection to patenting living organisms
  • Access to biological resources
  • Community rights
  • Farmers’ rights
  • Plant breeders’ rights
  • National competent authority

V.AEFJN Position on patenting life formsP 14

VI.AEFJN/AFJN Action Proposals 2002-01-28P 15

Calendar for ActionP 16

Appendix I.Declaration of support for African Smallholder FarmersP 17

Appendix II.Resolution on Agriculture and Farm Resources in AfricaP 18

Appendix III.Sample letter to MPsP 19

Appendix IV.ResourcesP 20

SUMMARY

African societies have always been innovative and have thus developed their knowledge and technological base, adapting to changing conditions, as do all human cultures. The colonial period imposed changes over which the local peoples had no choice. The 'development paradigm' today continues to impose foreign values and priorities. However, there is growing realization and an assertion that new developments must be properly assessed and evaluated in relation to the various values and priorities of the different cultural traditions they are intended for. This is to ensure these new developments contribute to the society’s quality of life, in harmony with the environment, and do not undermine and destroy the livelihoods of the rural people.

During the twentieth century, developments in western science and technology accelerated rapidly on all fronts, e.g. in transportation, computer systems and biotechnology. These have had huge impacts on the structure of global society, on political and economic power, and, above all, on the control of and access to the diverse biological resources necessary for sustainable livelihoods

There is general agreement on the need to conserve and sustainable use biological diversity for the well being of the planet’s life-support systems, on which all of humanity depends. There also exist opposing forces that are attempting to claim private monopoly rights over community biological diversity, to gain market control, through the appropriation of the rights and resources of local communities, indigenous peoples and sovereign nations through the intellectual property rights (IPR) regime and the global trade system. These controls are imposed by international and bilateral trade agreements, and have major implications for local, national and regional food security, agriculture and rural development as well as health and the environment.

One of the central agreements of the World Trade Organisation (WTO), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), obliges its member states to adopt either patents, a sui generis system, or a combination of both, for the protection of new plant varieties. The patenting of living organisms or their parts or components means legally granting private monopoly control rights over them and over their offspring.

For Africa, patents or other forms of intellectual property rights on living organisms have profound implications for communal livelihoods that have sustained the continent for generations. The Convention on Biological Diversity (CBD) recognises the role and achievement of local and indigenous communities in the conservation of biological diversity and so recognises the importance of biodiversity as an essential area within which to reaffirm and protect community rights. The TRIPS Agreement however, is in direct conflict with the basic tenets of the CBD, in that it formalises the trend in which intellectual property rights confer private, individual and exclusive ownership on life forms.

There is growing consensus that current IPR regimes cannot protect indigenous technologies, innovations, practices and biodiversity. These systems encourage biopiracy and constitute a process of double theft They steal creativity, innovations, technologies and practices of local communities by claiming collective innovations and practices to be their own, and then rob the community of the economic benefits derived from such products.

The types of rights Africa needs are not those IPRs that monopolise for commercial purposes what belongs to communities through privatisation, but those rights that recognise and protect the lives and livelihoods of local communities, including farming communities, and indigenous peoples. Local communities continue to conserve and enhance biodiversity, and maintain stable ecosystems on which human beings and other species depend for their lives. Their livelihoods provide this benefit to present and future generations, and they see this as their responsibility inherited from past generations and to be handed over to the next.

Aware of the need in Africa for an IPR protection system that is compatible with WTO regulations yet that reflects and protects the essential nature of Africa’s rich diversity of cultures so that Africans can continue to evolve, thrive and give all of humanity the services they have been giving it with respect to the conservation and sustainable use of its biodiversity, the Organisation for African Unity provided in 1999 a model legislation for the protection of the rights of local communities, farmers and breeders and for the regulation of access to biological resources, and invited the 53 member states to use it as a framework for the elaboration of national IPR legislations. Major elements of the AML are:

-The right of a community to their biological resources, traditional knowledge and technologies over rights based on individual or corporate monopoly interests.

-The right of African states and people to ensure the conservation, evaluation and sustainable use of their biological resources, traditional knowledge and technologies, and to govern access to them.

-The right of local communities to have access, use, exchange or share their biological resources as established by customary low and practice.

-The right of African states to protect farmers’ rights and community intellectual property to biological resources according to customary law and practice.

-The right to forbid the patenting of life in any of its forms.

In the context of the current 2002/2003 negotiations at the WTO in Geneva on the Trade Related Intellectual Property Rights Agreement (TRIPS) and the mandate given to the TRIPS Council by the 4th Ministerial Conference of the WTO, held in Qatar in November 2001, AEFJN asks the European Union and governments of its member states:

  1. To assure that the review of Art. 27.3b of the TRIPS Agreement be compatible with the Convention on Bio Diversity.
  2. To facilitate the WTO recognition of IPR legislations of African countries based on the African Model Law for the protection of the rights of local communities, farmers and breeders.

SOME FACTS AND FIGURES ABOUT BIO-PATENTS

  • Africa is home to 25% of the world’s biodiversity being profitable seam of raw material and knowledge for development of new medicines, seeds, foods and cosmetics.
  • More then 90% of patents on living organisms from plant, animal or human micro organisms and the processes to identify, isolate and move genetic materials, are held by multi-national corporations.
  • In 2001 world spending on development aid was about $50 billion, 10 times less then the yearly value of all products derived from the world’s genetic resources, estimated between $500-$800billion yearly
  • There are 918 patents on 5 staples that are vital for food security in African countries: rice, maize, wheat, soybean and sorghum. The six major agrochemical corporations hold 633 of these patents.
  • In Sub-Saharan Africa, agriculture accounts for between 30% and 60% of GDP and employs up to 60% of the labour force.
  • Six corporations (Aventis, Dow, Du Pont, Mitsui, Monsanto and Syngenta) control 98% of the global market for patented genetically modified crops; 70% of the global pesticide market and 30% of the global seed market. In Africa, just ten companies account for 88% of the agrochemical market.
  • Structural Adjustment Programmes in Malawi, Uganda and Senegal have privatised the state owned seed supply systems opening their markets for multinational seed corporations. In those countries farm-saved seeds represented about 90% of total planted seeds.

I.HUMANITY’S RESOURCES:

PUBLIC VERSUS PRIVATE CONTROL ?

The Concept of Intellectual Property Rights (IPR)

Intellectual Property Rights (IPRs) are rights granted to a person or a company by a state for products of intellectual effort and ingenuity. There are various forms of Intellectual Property Rights e.g. patents, copyright, trademarks, labels or plant breeders’ rights.

The basic concept of intellectual property can be traced back as far as the fourth century BC. Arguments for rewarding innovators are that the idea belongs to its creator because the idea is a manifestation of the creator’s personality and that the unpleasantness of labour should be rewarded with property.

In today’s market-based economies, the rationale for protecting intellectual property is essentially utilitarian. If everybody is free to access new knowledge, inventors have little incentive to commit resources to producing it. By transferring knowledge from the public good to the private good, creative minds and innovative firms have an incentive to engage in inventive activities and are guaranteed to recuperate their expenditure in creating new knowledge and to make profit.

  • Intellectual Property Rights on Living Organisms

Traditionally, “discoveries” in nature were not patented. They were considered hidden aspects of nature and therefore part of the common patrimony of society. Only “inventions” were qualifying for patent protection. Pharmaceutical and agro-chemical technological industries were quick to recognize the economic potential of genes, cell, DNA sequences and other naturally occurring living micro-organisms.

From the 1970ies pharmaceutical and agro-chemical industries lobbied governments on 3 points to justify that their discoveries of living organisms and the processes derived from them, qualified as “inventions”:

-That the distinction between the notions of “discovery in nature” (which was generally freely exchangeable) and “invention of products or processes” (which was the only object of patent protection) was outdated in a modern economy.

-That unlike mechanical or chemical products, living organisms can reproduce after having been sold, thus limiting the revenue of the biological inventions and their “offspring”.

-That the financial, intellectual and technical efforts involved in bio-technical research were such that they needed to be sure to recuperate the costs for research and development and to make some profit.

It was not until 1971, that the USA Supreme Court ruled that a genetically modified oil-eating microbe was not just a product of nature, but an “invention” and therefore could be patented. This ruling marked the way to the patenting of living organisms. The US Patent and Trademark Office allowed in 1985 genetically-engineered plants, seeds and plants tissue to be patented and extended this ruling in 1987 to animals.

In Europe some countries adopted national legislations on patenting living organisms in order to keep up with the USA based industry. But, it was not until September 1999 that the European Union accepted to registered the rules of patents on living organisms in the European Patent Convention.

Since then, the European Union and the USA have provisions to grant internationally recognized patents on human cells and all genes from any life organism, on genetic modifications to general functions of plant or animal varieties, as well as on transgenic plants and animals, and on the application of these genetically modified plant or animal varieties, the products obtained from them.

Overall, patent applications at the UN’s World Intellectual Property Organization (WIPO) in Geneva, have soared from 3,000 in 1979 to almost 70,000 in 2000.

The World Trade Organization (WTO) in its agreement on Trade related Intellectual Property Rights (TRIPS), enforces on its 144 member states to provide at the latest by 2006, a recognized and efficient protection for intellectual property titles on all inventions.

By doing so, WTO de facto globalised legislation on the patenting of life organisms.

A CHRISTIAN APPROACH to PATENTING of LIFE ORGANISMS

-The Church’s believe that the Creation is the privileged place of God’s creative action and presence, founds our reverence for all that is created.

-Bio-technology is one expression of the gift of reason with which God has endowed us. Both nature and reason are creations and expressions of God that should be held in harmony. The newness of biotechnology and possible consequences of introducing new technology calls for an attitude of prudence, humility and restraint. This reverence for creation objects to the fact that genetic modification, in a context of agriculture and market economy, reduces biodiversity by marginalizing and causing the loss certain genes considered “economically not-profitable”.

-Referring to the Churches’ social teaching on property, Pope John-Paul II reminded us repeatedly that on all private property, also when applied to the concepts of intellectual property and knowledge, weighs a “social mortgage”. The law of gain cannot be sustained to what is essential to the battle against hunger, sickness and poverty. (Rome 23rd September 1999)

-“Whatever the form of property, the universal dimension of the resources of the earth should always be kept in mind.“ (Pontifical Council JP, WTO ministerial conference 1999, referring to Gaudium et Spes N°69)

-“Living organisms should not be patented… they have a life in its own, something inanimate objects do not have. … In the domain of genetic manipulation, only a fraction of the organisms can be considered the product of scientist and remain essentially living creatures and therefore cannot be considered as inventions…” (May 1997, General Assembly of the Scottish Church)

-The Church’s principle of “the option for the poor” objects to patenting of living organisms and processes because the privatisation of biological resources and traditional knowledge augments the vulnerability of the poor nations, limiting access to genetic material and processes to which they had free access, thus holding back their right to development.

II.HOW INTELLECTUAL PROPERTY RIGHTS ON LIVING ORGANIMS ARE INTERNATIONALLY REGULATED

Developing countries are the source of 90% of the world’s biological resources; Africa holds 25% of the world’s biological resources.

Yet, individuals or companies from developed countries hold 97% of all bio-patents !

Because of poor intellectual property protection of patents in the developing countries, individuals or corporations plunder and export unobstructed biological specimen and traditional knowledge from developing countries without due respect for local communities’ know-how or any equitable benefit sharing. Some developing countries therefore, argue that the lack of an adequate legislation allows their young industry to copy inventions and thus to contribute to the emergence of a national industry at low cost.

The US Trade Commission claims that the US industry is losing $100 to $300 million per year because IPR titles are not respected in developing countries.

On the other hand, if developing countries would calculate the contributions their peasants and tribes people made to knowledge that led US companies to obtain patents, the USA would owe developing countries $2.7 billion!

Hence the interest for both developed and developing countries to have an equitable legislation for the protection of intellectual property rights. There are 2 internationally recognized systems for intellectual property rights protection for living organisms: patents and Plant Breeders’ Rights, both elaborated by the industrialised countries for fit their needs.

1.Patents

What is a patent?

A patent on a product or process confers an exclusive right on its owner to prevent a third party form making, using, offering for sale, exporting or importing that product, or a product obtained directly from that process, without the authorisation of the patent holder. In return for the title, the inventor must make a full disclosure of the nature of the invention, opening the way for others to invent something better and sufficiently different.

To be patentable, an invention must be non-obvious, not simply be an extension of something that already exists but requires some inventive step; novel, not previously known; and industrially applicable in some way.

How to register a patent?

An inventor (persons or companies) must register his invention in each country where he wants the product to be protected. Depending on the IPR protection laws of that country, the inventor is denied or granted total or partial protection of his product or process for a number of years after which the invention moves into the public domain and can be used by anyone.

Inventors can also register through regional agreements (the European Patent Convention or the Organisation Africaine de la Propritété Intellectuelle), where an application results in a patent being granted in some or all of the signatory countries. When registering an invention at the UN’s World International Property Rights Organisation (WIPO), the inventor indicates the lists of countries in which he intends to apply for patent protection, preventing anyone else from patenting his invention in any of the listed countries.

2.Plant Breeders’ Rights (PBRs)

What are Plant Breeders’ Rights?

Long before patents on living organisms and their processes were current, some protection for inventions or knowledge that, at the time, were not protectable under conventional patent laws received some degree of intellectual property rights. Such a system is referred to as a “Sui generis” (=of its own kind) system of intellectual property protection. Among those to do so were breeders of plants and seeds who sought protection for new plant varieties.