International Environmental Law Part 9 docx

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Intellectual Property Rights and Trade 415

unimproved germplasm that has been cultivated and protected for years by peo￾ple of the developing world has remained, until recently, a free-access resource.

In the meantime, the power of the seed industry has increased. The top ten seed

companies control a sizeable piece of the total seed market and 90 percent of the

agrochemical market.193

The power of the seed industry and its ability to set prices for the advanced vari￾eties it produces194 set off the seed wars of the 1980s. The disputes focused on the

open-access policies for unmodified germplasm implemented by gene banks and

the IARCs.195 Developing countries argued that international gene banks benefit

essentially multinational seed corporations. The IARCs used to allow, until recently,

free access to unimproved germplasm in their collections, but the high-yielding

varieties produced by seed companies, by using that germplasm, are quite expen￾sive to acquire because they are protected by patents or breeders’ rights. Devel￾oping countries argue that it is unfair to have to pay for these varieties, which

would have not been developed, without the free-access policies to unmodified

germplasm located in international gene banks, and, initially, discovered within their

territory.

The seed wars demonstrated the unwillingness of developing countries to keep

sharing their germplasm resources with multinational corporations and triggered

the adoption of a number of instruments that asserted national sovereignty over

germplasm resources. The Biodiversity Convention adopted in 1992 is one of these

instruments.196 The Biodiversity Convention mandates the equitable sharing of ben￾efits derived from the use and exploitation of biodiversity resources.197 The con￾vention does not define what equitable sharing entails. But equitable sharing has

generally been interpreted to mean the sharing by developing countries in the roy￾alty system established by intellectual property rights over modified genetic resources.

These are modified resources that were initially found or cultivated by indigenous

peoples and farmers in the developing world. Because the Biodiversity Conven￾tion could be interpreted to include rules that mandate the sharing of royalties,

the U.S. biotechnology industry has urged the U.S. government not to ratify the

convention.

However, the adoption of the convention has not been without consequences.

Seed and pharmaceutical industries, which, up to the late 1980s, were able to obtain

germplasm from developing countries without monetary compensation, must now

request permission for access and pay a fee for the use and commercialization of

plant resources. The CBD encourages a sort of bilateralism by which corporations

and nonprofit organizations must sign agreements with developing countries gov￾ernments in order to obtain germplasm. These agreements, called Material Transfer

Agreements (MTAs), have been used for the transfer of germplasm from developing

193 The seed market and agro-chemical market are valued respectively at US $23 billion and US $31 billion.

See Dawkins, supra note 104.

194 Id.

195 The International Agricultural Research Centers (IARCs) were established in the early 1970s and they

have been the repository of many crops and plants. They contain today some of the major gene banks

of the world. See Chapter 7, Section 2.1.2.3. 196 See CBD, Chapter 7, Section 2.1.

197 See art. 16(1) & (3), id.

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416 Trade and Environment

countries to institutions and companies of the developed world that wish to exper￾iment with raw germplasm.

Attempts by corporations to obtain seeds, to isolate their properties, and to claim

intellectual property rights over them without acknowledging and compensating

the contributions of indigenous peoples and farmers have been called biopiracy.198

Incidents involving alleged misappropriation of germplasm, and the knowledge asso￾ciated with it, have acquired international dimensions entangling states, nongovern￾mental institutions, indigenous farmers, and corporations. Some of these incidents

have implicated the IARCs. It has been claimed, for instance, that seed companies

frequently acquire germplasm from the centers and, by performing minor modi￾fications, seek to privatize germplasm resources through the intellectual property

rights system. Such incidents put in the forefront the debate of whether the isola￾tion and purification of genetic material from its natural state could possibly qual￾ify as an invention entitled to patent protection. The climate of distrust has been

reflected in the international instruments that have been adopted that embody the

transition from a common heritage system over germplasm to a property rights

system.

In addition to the CBD, which essentially does away with perceptions that

germplasm could be free-access resource, the evolution of another instrument indi￾cates the gradual transition from a common heritage regime to a property regime.

The International Undertaking on Plant Genetic Resources was one of the first

instruments to deal with germplasm resources for food and agriculture. In the 1983

version of the Undertaking, it is mentioned that plant genetic resources are a heritage

of mankind and should be available without restriction.199 The Undertaking was

modified in 1989 to clarify that “free access does not mean free of charge.”200 It

was modified further in 1991 to clarify that the principle that genetic resources are

the heritage of mankind is subject to the “sovereignty of states over plant genetic

resources.”201

4.3.4. TRIPs and Traditional Knowledge

As mentioned earlier, the CBD repeatedly provides for the equitable sharing of ben￾efits, coming from the exploitation of germplasm resources, with the country of

origin of those resources. Although the convention does not specifically describe

the parameters of equitable sharing, one could gauge that such sharing would not

involve the monopolization of rights by a patent holder. Thus, the content of the

convention is clearly distributive.202 The collision between the TRIPs agreement

and the Biodiversity Convention (CBD)203 is a result of the fact that the TRIPs

agreement does not provide anything about the equitable sharing of benefits – com￾ing out of innovations using germplasm resources – with the country of origin of

such resources. The TRIPs agreement has to do with the protection of intellectual

198 See The Captain Hook Awards for Outstanding Achievements in Biopiracy, News Releases, Rural

Advancement Foundation International (RAFI), May 17, 2000.

199 Art. 1, Resolution 8/83, Twenty-Second Session, FAO Conference, Nov. 5–23, 1983.

200 Resolution 4/89, Twenty-Fifth Session, FAO Conference, Nov. 11–29, 1989.

201 Resolution 3/91, Twenty-Sixth Session, FAO Conference, Nov. 9–27, 1991.

202 See also Raustiala, supra note 133, at 25.

203 Art. 16(1) and (3), CBD, supra note 196.

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property rights and the potential abuse of such rights. But no article in the TRIPs

agreement supports the redistribution of benefits connected with such rights. The

TRIPs agreement does not recognize collective property rights for indigenous peo￾ples’ innovations in plant resources or farmers’ rights.

The discontent with the TRIPs approach to intellectual property rights over

genetic resources is evident in the Doha Ministerial Declaration. The Doha Min￾isterial Declaration instructs the TRIPs council to examine the relationship among

the TRIPs agreement, the CBD, and the protection of traditional knowledge and

folklore and other relevant developments presented by member states.204 The TRIPs

council is directed to receive guidance from the objectives and principles articles of

the TRIPs agreement and to take into account fully the development dimension.205

Given the protection of intellectual property rights over bioengineered living

organisms, developing countries have claimed that in both biodiversity and biotech￾nology, the final product of legal protection is a living organism. If developed coun￾tries can grant intellectual property rights over genes, developing countries should be

able to grant property rights over resources that would have disappeared without the

input of indigenous peoples and farmers. From the perspective of the formal intellec￾tual property regime (e.g., the TRIPs agreement), much of indigenous peoples’ and

farmers’ knowledge has been viewed as public domain knowledge and, thus, freely

accessible to everyone. Treating indigenous peoples’ knowledge as public domain

knowledge legitimized the exploitation of such knowledge by outsiders. These out￾siders used the knowledge “as an upstream input for later downstream innovations”

that they then privatized through intellectual property rights.206 In this respect, the

CBD provides that the knowledge, innovations, and practices of indigenous and

local communities can be used only with the approval of those communities and the

benefits from use must be equitably shared.207

Because intellectual property rights over natural genetic resources are difficult to

establish and enforce, it has been proposed that a system of sui generis rights must

be established. Such sui generis rights, under the name “traditional resource rights,”

it is proposed, would constitute a framework into which the claims of indigenous

groups could be integrated.208 Such rights could be established for all resources in

situ and ex situ that have been experimented with and have been singled out for use

by indigenous peoples.

Intellectual property protection for indigenous peoples’ traditional knowledge

is being explored by the human rights regime since the beginning of the 1990s.

The Draft UN Declaration on the Rights of Indigenous Peoples includes an article

that provides for the right of indigenous peoples to the full ownership, control, and

protection of their cultural and intellectual property.209 Such property, according to

204 World Trade Organization, Doha Ministerial Declaration, Ministerial Conference, Fourth Session, Doha,

WT/MIN(01)/DEC/1, Nov. 14, 2001.

205 Para. 19, id.

206 Helfer Human Rights, supra note 164, at 52.

207 See Chapter 7, Section 2.1.2.2. 208 Darrell A. Posey, Intellectual Property Rights and Just Compensation for Indigenous Peoples, 6 Anthro￾pology Today 13 (1990).

209 Art. 29, Commission on Human Rights, Draft of the United Nations Declaration on the Rights of

Indigenous Peoples, UN Doc. E/CN.4/Sub.2/1994/2/Add.1 [hereinafter Draft Declaration].

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418 Trade and Environment

the declaration, must be subject to restitution if it has been taken without the free

and informed consent of indigenous peoples and in violation of their laws, traditions

and customs.210

The Draft Principles and Guidelines for the Protection of the Heritage of Indige￾nous Peoples211 define heritage, inter alia, as cultural property of all kinds – scientific,

agricultural, medicinal, biodiversity-related, and ecological knowledge, including

innovations based on that knowledge.212 National laws, for the protection of indige￾nous peoples’ heritage, should guarantee that indigenous peoples obtain full resti￾tution and just compensation for the acquisition, documentation, or use of their

heritage without proper authorization by them.213 By the same token, third par￾ties are denied the ability to obtain patent, copyright, or other legal protection for

any component of indigenous peoples’ heritage unless they can document the free

and informed consent of traditional owners to an arrangement for the sharing of

ownership, control and benefits.214

Thus, the Guidelines and the Draft Declaration attempt to ensure that indigenous

knowledge is not free-access knowledge. These provisions are in conformity with

the TRIPs agreement because they provide restrictions for access to traditional

knowledge appreciating, thus, such knowledge as proprietary knowledge. At the

same time, however, the protection of traditional knowledge in these instruments

is schematic because no specific legal entities are designated that would benefit

from legal protection. The absence of enforceable provisions for the protection of

indigenous peoples’ knowledge is the weak element of human rights instruments.

The first real confrontation between the human rights regime and the TRIPs

agreement took place in the Sub–commission on the Promotion and Protection of

Human Rights. The sub–commission adopted a resolution in 2000,215 in which

it challenged the TRIPs agreement as antithetical to the realization of economic,

cultural, and social rights. The resolution noted that actual and potential conflicts

exist between the implementation of the TRIPs agreement and the realization of

economic, social, and cultural rights. The resolution emphasized the obstacles to the

transfers of technology to developing countries and the impacts of TRIPs on the

right to food through the patenting of plant varieties. It alluded to the phenomenon

of biopiracy and the reduction of communities’ control over their own genetic

resources and cultural values. The impacts of restrictions on access to pharmaceuticals

and on the right to health also were underlined.

The resolution gave the impetus for the adoption of a number of other soft law

instruments underlining the incompatibility between the human rights regime and

210 Art. 12, id. 211 Sub–commission on the Promotion and Protection of Human Rights, Draft Principles and Guidelines

for the Protection of the Heritage of Indigenous Peoples, Decision 2000/07 [hereinafter Guidelines].

See also Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage

of Indigenous People, Subcommission on the Promotion and Protection of Human Rights, Fifty-second

session, Item 7 of the provisional agenda, UN Doc. E/CN.4./Sub.2/2000/26, June 19, 2000. 212 Guideline 13, Guidelines, id.

213 Guideline 23(b), id.

214 Guideline 23(c), id.

215 Sub–commission on the Promotion and Protection of Human Rights, Resolution 2000/7 on Intellectual

Property Rights and Human Rights, Aug. 17, 2000.

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the TRIPs Agreement.216 The subcommission itself issued another resolution in

2001 in which it requested the UN Commissioner for Human Rights to seek an

observer status in the ongoing review of the TRIPs agreement. The 2001 resolution

asked the commissioner to investigate into whether the patent, as a legal instrument,

was compatible with the protection of human rights and to conduct an analysis of

the impact of the TRIPs agreement on the rights of indigenous peoples. The 2001

resolution encouraged all the special raporteurs on the right to food, education,

and adequate housing to include in their reports a review of the implications of the

TRIPs agreement for rights that fall under their mandate.217

It remains to be seen how the evolution of the debate within the human rights

regime will impact the evolution of the TRIPs agreement.

Developing countries have adopted laws that establish collective rights for the

knowledge of indigenous peoples. For instance, the Organization of African Unity

(OAU) has drafted legislation that provides comprehensive sui generis rights, as an

alternative to patents, to compensate local communities for developing plant vari￾eties. Ecuador’s constitution recognizes collective intellectual property rights. The

Andean nations – Bolivia, Columbia, Ecuador, Peru, and Venezuela – have enacted

regional intellectual property laws that conform with the TRIPs. Other countries,

such as Brazil and Costa Rica, have established rights for indigenous communities

to protect their knowledge and resources.218

4.3.5. TRIPs and Farmers’ Rights

Farmers’ rights have been recognized by various international instruments. The

1989 Undertaking on Plant Genetic Resources recognizes, in both Annexes I and

II, farmers’ rights219 that are “vested in the international community, as a trustee for

present and future generations of farmers,” so as to ensure full benefits to farmers

and support for their contributions.220 The recently adopted International Treaty on

Plant Genetic Resources also clearly recognizes the rights of farmers221 but leaves it

up to national law to determine the breadth of those rights.222

Overall, however, the modern approach to intellectual property rights cannot be

well fitted to protect farmers’ rights. Intellectual property is fashioned as a discrete

innovation, at a moment in time, by identifiable persons. Farmers’ rights involve

216 See Commission on Human Rights, Resolution 2001/33 on access to medication in the context of

pandemics such as HIV/AIDS, April 20, 2001; Progress Report submitted by Mr. J. Oloka-Onyango

and Ms. D. Udagama on globalization and its impact on the full enjoyment of human rights, UN Doc.

E/CN.4/Sub.2/2001/10; Report of High Commissioner for Human Rights on the impact of TRIPS

Agreement on Human Rights, UN Doc. E/CN.4/Sub.2/2001/13.

217 Sub–commission on the Promotion and Protection of Human Rights, Resolution 2001/21 on Intel￾lectual Property Rights and Human Rights, Aug. 16, 2001.

218 Dawkins, supra note 104.

219 See Undertaking on Plant Genetic Resources, supra note 200, which recognizes the contributions of

farmers to the improvement of plant genetic resources.

220 Id. 221 International Treaty on Plant Genetic Resources for Food and Agriculture, Nov. 3, 2001, available online

at http://www.fao.org/ag/cgrfa/itpgr.htm. Article 9.1 provides that “Contracting Parties recognize the

enormous contributions that the local and indigenous communities and farmers of all regions of the

world . . . have made and will continue to make for the conservation and development of plant genetic

resources which constitute the basis of food and agriculture production throughout the world.” 222 Art. 9.2, id.