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Africa: Seattle Trade Proposal
Africa: Seattle Trade Proposal
Date distributed (ymd): 990831
Document reposted by APIC
+++++++++++++++++++++Document Profile+++++++++++++++++++++
Region: Continent-Wide
Issue Areas: +economy/development+
Summary Contents:
This posting contains an appeal from a group of nongovernmental
organizations to support the Africa Group
proposal being presented to the World Trade Organization
(World Trade Organization). The proposal questions WTO plans
to extend patenting of biological materials and plant
varieties. The non-governmental organizations call for
additional endorsements of their position, in order to
strengthen the African position on this issue at the Seattle
Ministerial Conference scheduled for November 29 - December 3,
1999.
A brief listing of other sites for additional information on
the Seattle meeting and citizen opposition to it is also
included at the beginning.
+++++++++++++++++end profile++++++++++++++++++++++++++++++
World Trade Organization site
http://www.wto.org/wto/english/thewto_e/minist_e/min99_e/mindex_e.htm
Official documents from the WTO, including submissions by
member countries
Europe Trade and Investment Campaign
(International Civil Society opposition to new World Trade
Organization negotiations)
http://antenna.nl/aseed/trade
Clearing house for campaign of over 700 non-governmental
organizations and citizen groups worldwide
StopWTORound Mailing List
http://www.onelist.com
Search for StopWTORound mailing list. Must sign up for list
to view archives of postings
Public Citizen Global Trade Watch
http://www.citizen.org/pctrade/gattwto/gatthome.html
Institute for Agriculture and Trade Policy
http://www.iatp.org
Two sites with abundant material from and about U.S. groups
opposing the Seattle round negotiations
August 26, 1999
CALL FOR SUPPORT FOR AFRICAN GROUP PROPOSAL
ON TRIPS ARTICLE 27.3B ON PATENTING OF LIFE
From:
Martin Khor (Third World Network)
Penang, Malaysia, 26 August 1999.
(twnet@po.jaring.my,
mkhor@igc.org)
Dear friends and colleagues,
We would like to bring to your attention an important
development at the WTO [World Trade Organizaiton]. On 6
August, Kenya on behalf of the African Group of WTO Members
issued a proposal on TRIPS [Trade-Related Aspects of
Intellectual Property Rights] as part of the preparation
process for the Seattle Ministerial Conference. The paper can
be found at the WTO website on its document dissemination
facility [in MSWord].
[The African Group proposal -- about eight pages, in the
technical language of trade negotiations -- is also included
below]
Part of the African Group paper deals with comments on and
proposals on Article 27.3b that deals with patenting of
biological materials and of plant varieties. This is an issue
of immense interest to many NGOs, farmers' groups and other
social movements.
The proposals by the African Group are most significant, as
they question the TRIPs' requirement for mandatory patenting
of some life forms and some natural processes. It proposes a
clarification that plants, animals and microorganisms should
not be patentable. It also seeks a clarification that a "sui
generis" system of plant varieties protection can include
systems that protect the intellectual rights of indigenous and
farming communities. It also asks that TRIPs be made to
harmonise with the Biodiversity Convention and the FAO's [Food
and Agriculture Organization's] International Undertaking on
Plant Genetic Resources.
The tabling of a paper with such a positive position in favour
of community rights by such a large group of developing
countries is, we feel, a very significant event. It means that
the issue of patenting of life is now on the table of the
official WTO process of preparing for Seattle.
We feel it is crucial that NGOs and social movements show
their support for the position and action taken by the African
Group, in order that the issue be made a high priority for the
Seattle Conference.
At a meeting of NGOs (organised by Third World Network and
Tebtebba Foundation) held in Manila on 9-11 August, it was
agreed that the NGOs would draw up and disseminate a joint
statement in support of the African Group position.
We are attaching the Joint NGO Statement for your information
and, we hope, for your action.
We would be pleased if you would consider the following
actions:
(1) Sign on to the Statement by sending your name,
organisation and address to the Third World Network
(twnet@po.jaring.my).
(2) Ask others to sign on to it.
(3) Help to disseminate the Statement.
(4) Make use of the Statement, and the original African Group
paper of 6 August, to lobby your Government to take note of
and to support the African Group position.
This support by your Government can be made in two ways:
(a) The issue is now on the table of the WTO General Council
for the negotiations on what will be decided by Ministers in
the Seattle Conference. In practical terms, this means that a
paragraph or part of a paragraph of the Seattle Ministerial
Declaration can include a reference to the review of Article
27.3b. Governments can be asked to support a position similar
to the African Group proposals.
(b) The issue is also being discussed at the WTO's TRIPS
Council, where a review of Article 27.3b is taking place.
Support for a position similar to the African Group's can be
given at the TRIPS Council. The next meeting of this Council
is in October.
(5) It is possible that some developed countries will try to
downplay, criticise or even undermine the ideas contained in
the African Group paper. It is crucial that NGOs prevent this
from happening. To enable this preventive action, it is
important to first build and spread awareness of what is
happening, among NGOs and the public in different countries.
We hope you can play your role.
(6) Try to get your Government to formulate a position that
could extend further the African Group's position, for example
to propose specifically that WTO Members should not allow the
patenting of any life forms and natural processes. This means
that Article 27.3b should be amended, to say that WTO Members
shall exclude from patentability all life forms, including
plants, animals, microoragnisms and parts thereof; and also
exlude from patentability all natural processes for the
production of plants, animals, microorganisms and all living
things.
Thank you for your patience for reading this long message. The
Joint NGO Statement (with the initial groups signing on)
follows. In a separate email file we are also sending you the
original African Group proposal on TRIPS [see below].
With best wishes,
Martin Khor (Third World Network)
Penang, Malaysia, 26 August 1999.
(twnet@po.jaring.my)
JOINT NGO STATEMENT OF SUPPORT FOR THE AFRICA GROUP PROPOSALS
ON REVIEWING THE WTO TRIPS AGREEMENT (ARTICLE 27.3b)
We the undersigned social movements, citizen groups and
non-governmental organisations would like to express our warm
support for the position taken by the Africa Group of
countries in the World Trade Organisation on the review of the
TRIPS Agreement, Article 27.3(b), relating to patenting of
life forms and plant varieties.
According to the paper submitted by Kenya on behalf of the
Africa Group to the WTO General Council (WT/GC/W/302, dated 6
August 1999) as part of the preparations for the WTO Seattle
Ministerial Conference:
"The review process (of this Article) should clarify that
plants and animals as well as microorganisms and all other
living organisms and their parts cannot be patented, and that
natural processes that produce plants, animals and other
living organism should also not be patentable."
The paper also puts forward the view that by stipulating
compulsory patenting of micro-organisms (which are natural
living things) and microbiological processes (which are
natural processes), Article 27.3b of TRIPS contravenes the
basic tenets of patent laws: that substances and processes
that exist in nature are a discovery and not an invention and
thus are not patentable.
It adds: "Moreover by giving Members the option whether or not
to exclude patentability of plants and animals, Article 27.3b
allows for life forms to be patented.”
It calls for the review process to clarify why Article 27.3b
does not provide Members with the option of excluding
microorganisms and microbiological processes from
patentability. The paper says an artificial distinction was
made between what can be excluded from patents (plants and
animals; biological processes) and what must be patented
(microorganisms and microbiological processes).
The above points made by the Africa Group are very significant
and crucial, and correspond to the concerns raised by many
citizen groups, farmers' organisations, environmental groups
and development groups around the world. These groups have
been campaigning against the patenting of life forms and
biological materials because such patents would allow the
private monopolisation of life and of biological resources,
and would cause serious adverse effects on development, food
security, the livelihoods of millions of farmers, on the
environment. Such patents are also facing objections from the
public on ethical, religious and moral grounds.
We congratulate the Africa Group for their principled and well
thought out position on this issue, and we urge other Member
states of the WTO to endorse their position on the review of
this part of TRIPS Article 27.3b.
The Africa Group paper also gives a clear direction to the
review of another part of Article 27.3b, which specifies that
Members shall provide for the protection of plant varieties
either through patents or an effective sui generis system.
The paper says that the review must clarify that developing
countries can opt for a national sui generis law that protects
innovations of indigenous and local farming communities
(consistent with the Biodiversity Convention and the FAO's
International Undertaking); that allows the continuation of
traditional farming practices including the right to save and
exchange seeds and sell their harvests; and that prevents
anti-competitive rights or practices that thratens food
sovereignty of people in developing countries.
It adds that the review should harmonise Article 27.3b with
the provisions of the CBD and the FAO's International
Undertaking, in which the conservation and sustainable use of
biological diversity, the protection of rights and knowledge
of indigenous and local communities, and the promotion of
farmers' rights are fully taken into account.
These points made by the Africa Group are very important in
recognising the rights of people in developing countries (as
well as in developed countries) to protect the traditional
knowledge and biological resources of indigenous, farming and
local communities.
These points in fact also correspond to the demands of civil
society and farmers' groups around the world, that patenting
of plant varieties should not be allowed, and that a proper
system of protection of knowledge on the use of biological
resources should indeed protect the knowledge of local
communities and should prevent the appropriation of such
knowledge by private corporations (an act, known as biopiracy,
that is now prevalent as more and more multinational companies
are being granted patents on plants and other biological
resources as well as for their traditionally-known uses and
functions).
We believe that WTO Member states must have the option of a
national system of plant varieties protection that protects
the rights of indigenous, farming and local communities and
their knowledge. The review process must clarify this so there
is no mistake in interpretation on what constitutes an
effective sui generis system. WTO Members must be allowed to
introduce systems of their choice, including those that adhere
to the principles of recognising the rights of these
communities, in order to ensure food security, livelihoods and
the development of sustainable agriculture.
We believe that the position of the Africa Group has
contributed immensely to clarifying these demands, and we thus
congratulate the Africa Group Members in the WTO for their
stand on this matter.
We therefore:
(1) Endorse the positions taken by the Africa Group on both
aspects of the review of Article 27.3b of TRIPS, i.e. the
patenting of life, and the sui generis systems for plant
varieties protection.
(2) Call on all other Members States of the WTO to support the
positions of the Africa Group on the review of Article 27.3b.
(3) Call on the WTO Members to formulate a Section in the
Ministerial Declaration of the forthcoming WTO Ministerial
Conference in Seattle, that the positions of the Africa Group
will be adopted in the review of Article 27.3b and that
appropriate revisions will be made to the TRIPS Agreement to
reflect this.
(4) Call on the WTO Members to amend the TRIPS Agreement as
soon as possible to remove its present ambiguities and
objectionable provisions and terms that now oblige Members to
change their national laws to enable patenting of life forms
and to romote biopiracy or the private appropriation of
traditional knowledge and community resources. This should be
a priority objective for the WTO's Seattle Ministerial
Conference.
Organisations supporting or endorsing the statement:
Third World Network
TEBTEBBA Foundation Inc, Philippines
UBINIG (Policy Research for Development Alternative),
Bangladesh
Instituto Latinamericano De Servicios Legales Alternativos
(ILSA), Colombia
Africa Trade Network, Ghana
Public Interest Research Group, India
Deccan Development Society, India
Kalyanamitra, Indonesia
International NGO Forum on Indonesian Development (INFID),
Indonesia
KONPHALINDO, Indonesia
EcoNews Africa, Kenya
Korean House for International Solidarity (KHIS), Korea
Policy and Information Centre for International Solidarity
(PICIS), Korea
Korean Women Workers Association United (KWWAU), Korea
Seoul Women Workers Association, Korea
Hyundai Association of Trade Unions, Korea
Consumers Association of Penang, Malaysia
Women's Development Collective, Malaysia
Wayang, Thailand
The Network, Pakistan
Association for Rational use of Medication in Pakistan
BEDARI, Pakistan
GABRIELA, Philippines
Bagong Alyansang Makabayan (BAYAN), Philippines
Asia Pacific Forum Women, Law and Development (APWLD),
Philippines
IBON Foundation Inc. Philippines
The Philippine Greens, Philippines
Legal Rights and Natural Resources Center, Philippines
Development Alternatives with Women of the New Era
(DAWN)-South East Asia Forum-Asia, Thailand
Assembly of the Poor, Thailand
Project for Ecological Recovery (PER), Thailand
Asian Indigenous Women's Network
Institute for Sustainable Development, Ethiopia
(Groups and individuals wishing to add their names to this
list are requested to let Third World Network know by emailing
to twnet@po.jaring.my or faxing to 60-4-2264505.)
TITLE: Preparations for the 1999 Ministerial Conference: The
TRIPS Agreement. Communication from Kenya on behalf of the
African Group
AUTHOR: The African Group at the World Trade Organisation
(WTO)
PUBLICATION: WT/GC/W/302
DATE: 6 August 1999
SOURCE: WTO Document Dissemination Facility
World Trade Organization
WT/GC/W/302
6 August 1999
PREPARATIONS FOR THE 1999 MINISTERIAL CONFERENCE THE TRIPS
AGREEMENT
COMMUNICATION FROM KENYA ON BEHALF OF THE AFRICAN GROUP
The following communication, dated 29 July 1999, has been
received from the Permanent Mission of Kenya.
I. INTRODUCTION
- The TRIPS Council is carrying out work on the review of
various provisions contained in the TRIPS Agreement. Some
parts of this work create difficulties for members of the
African Group. This paper sets out some of the key issues of
interest to the Group, highlights difficulties facing the
Group on these issues and makes proposals on how these
difficulties should be redressed.
II. OVERLAPS AND SEQUENCING
2. The WTO work programme on intellectual property issues is
made up of three components, namely; implementation, built-in
agenda, and preparations for future negotiations. Whilst in
conceptual terms these components are simple to categorize, at
operational level they are dealt with in a complex tapestry of
overlaps, characterized by lack of proper sequencing. This
poses serious difficulties to the African Group.
- First, whilst developed countries underwent legislative
reviews unencumbered by other work, developing countries will
undergo this exercise concurrently with work on the built-in
reviews of TRIPS provisions;
- Second, the current built-in reviews of TRIPS provisions are
likely to continue into 2000 at which time the overall review
of the TRIPS Agreement will be conducted pursuant to Article
71.1 of the Agreement.
- Third, the overall Article 71.1 review of the Agreement is
scheduled to coincide with the next set of multilateral trade
negotiations in which TRIPS issues are likely to form part of
the agenda.
3. This concurrency of work poses three sets of difficulties
for the Group: first, institutional capacity problems; second,
lack of national experiences on the impacts of implementation
of the Agreement; and third, undermining of the ability of
developing countries to identify their interests.
Proposal **
4. The African Group considers it appropriate that the work of
the TRIPS Council should be staggered and sequenced in a
manner that enables developing countries with meagre resources
to participate effectively in its work. This can be achieved
by inter alia delaying some of the reviews or speeding up
those on which conclusion is nearing such as the one on
non-violation complaints.
III. ARTICLE 64.3 - NON-VIOLATION COMPLAINTS
5. Article 64.3 provides for the non-violation remedy in the
TRIPS Agreement. However, this Article also contains a
built-in moratorium on application, due to expire on 1 January
2000 unless otherwise decided by Members - by virtue of a
Ministerial Decision - after reviewing the scope and
modalities of non-violation disputes in the context of TRIPS.
6. A number of factors need to be considered before this
decision can be taken. First, there is currently no
sufficient experience with the application of the DSU
provisions to the TRIPS Agreement. Furthermore, developing
countries have as yet not implemented their obligations under
the Agreement and as such have not as yet had the benefit of
direct experience on the scope and modalities of the
non-violation remedy as foreseen in the provisions. More
important is the fact that the non-violation provisions
contained in the GATT 1994 were crafted for trade in goods.
The TRIPS Agreement seeks to establish minimum standards of
protection and not liberalization.
Proposal **
7. That the moratorium on the application of the non-violation
remedy under the TRIPS Agreement be maintained indefinitely
until Members agree by consensus that sufficient experience
has been gained with the application of the Agreement and that
the remedy if adopted will not increase Members' level of
obligations.
IV. ARTICLE 66.2 - INCENTIVES FOR TRANSFER OF TECHNOLOGY TO
LDCS
8. This Article calls on developed countries to provide
incentives to their enterprises and institutions to encourage
them to transfer technology to LDCs.
9. The provisions of this Article are couched in "best
endeavour" terms. Best endeavour provisions are fundamentally
flawed in that they are neither enforceable nor do they
constitute a real benefit for developing and least-developed
countries. Consequently many developed countries have as yet
not demonstrated how they are fulfilling the provisions of
this Article.
Proposal **
10. Need for a regular full review of the implementation of
the provisions of Article 66.2 by developed countries.
V. ARTICLE 27.3(b) - PROTECTION OF PLANT VARIETIES
11. The review of Article 27.3(b) is complex both in the way
it is being dealt with and in its very substance. First,
there are issues of procedure and interpretation of the scope
and mandate of the TRIPS Council on the review process.
Second, there are issues relating to the review of the
substantive provisions of the Article itself. For the African
Group, these issues need to be resolved speedily for there to
be progress in the light of the up-coming Seattle Ministerial
Conference.
Part 1 - On procedures and interpretation Nature and scope of
review
12. The question of interpretation of the nature and scope of
the review of Article 27.3(b) still remains to be resolved.
The debate is about whether Article 27.3(b) provides for the
review of the implementation of the provisions therein, or for
the review of the substantive provisions of the Article
itself. It is our view that the review mandated and meant is
a review of the substance of the subparagraph itself, and is
not meant to be confined to the implementation of the
subparagraph. This is clear from thewording of the last
sentence of Article 27.3(b): "The provisions of this
subparagraph shall be reviewed four years after the date of
entry into force of the WTO Agreement."
Proposal **
13. Members will need to clarify the mandate of the TRIPS
Council on this issue. It is the firm understanding of the
African Group that the mandate of the Council is to review the
substantive provisions of Article 27.3(b).
Since no provision is made for review of implementation of
this specific Article (except implicitly in the context of the
overall review scheduled for 2000 in Article 71.1) members of
the African Group consider it appropriate that any information
(to be) submitted under the current review will not be used
for the purpose of reviewing the implementation of the
provisions of this Article.
Timing for implementation of Article 27.3(b) provisions
14. The review of the provisions of Article 27.3(b) scheduled
for 1999 has been ongoing since the beginning of the year. On
the other hand, the deadline for implementation of the
obligations by developing countries of the TRIPS Agreement is
January 2000.
15. In effect, the review is scheduled to precede the
implementation of obligations undertaken by developing
countries. Developing countries have as yet not had sufficient
experience with the operation of the Agreement and hence no
prior opportunity to conduct impact assessment studies of
implications resulting therefrom.
16. Furthermore, the review, if undertaken in 1999 will
pre-empt the outcome of deliberations in other related fora
such as CBD, UPOV, FAO, International Undertaking on Plant
Genetic Resources, and the development of an OAU model law on
Community Rights and Control of Access to Biological
Resources.
These are important fora dealing with Article 27.3(b) issues
(from a developmental perspective) which the TRIPS Council
cannot afford to ignore.
17. The process of reviewing the substantive provisions of
Article 27.3(b) could well extend to beyond 2000, and it could
result in changes to the provisions. It would thus be
premature for developing countries to implement the
subparagraph by January 2000.
Proposals **
18. Members of the African Group consider it appropriate that
theimplementation deadline should be extended to take place
after the completion of the substantive review of Article
27.3(b). The period given for implementation of the
provisions should be the same as that allowed in Article65(1)
and (2), namely, five years from the date the review is
completed. This period is provided to allow developing
countries to set up the necessary infrastructure entailed by
the implementation.
Part 2 - On substantive provisions
Artificial distinctions between biological and microbiological
organisms and processes
19. There is lack of clarity on the criteria/rationale used to
decide what can and cannot be excluded from patentability in
Article 27.3(b). This relates to the artificial distinction
made between plants and animals (which may be excluded) and
micro-organisms (which may not be excluded); and also between
"essentially biological" processes for making plants and
animals (which may be excluded) and microbiological processes.
20. By stipulating compulsory patenting of micro-organisms
(which are natural living things) and microbiological
processes (which are natural processes), the provisions of
Article 27.3 contravene the basic tenets on which patent laws
are based: that substances and processes that exist in nature
are a discovery and not an invention and thus are not
patentable. Moreover, by giving Members the option whether or
not to exclude the patentability of plants and animals,
Article 27.3(b) allows for life forms to be patented.
Proposals **
21. (a) The review of the substantive provisions of Article
27.3(b) should clarify the following:
- Why the option of exclusion of patentability of plants and
animals does not extend to micro-organisms as there is no
scientific basis for the distinction.
- Why the option of exclusion of patentability of "essentially
biological processes" does not extend to "microbiological
processes" as the latter are also biological processes.
(b) The review process should clarify that plants and animals
as well as microorganisms 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.
Clarifying the option of a sui generis system for plant
varieties
22. Article 27.3(b) provides for protection of plant varieties
by either a patent, a sui generis system or a combination of
both. The implementation of the provision in respect of plant
varieties needs to be clarified to allow developing countries
to:
- Meet their international obligations, for example under the
Convention on Biological Diversity, and the FAO International
Undertaking for Plant Genetic Resources;
- Satisfy their need to protect the knowledge and innovations
in farming, agriculture and health and medical care of
indigenous people and local communities. The resolution of
this issue affects the food security, social and economic
welfare, and public health of people in developing countries.
These concerns are central and can be taken into account under
Articles 7 and 8 of the TRIPS Agreement, when Members take
measures to implement TRIPS.
To protect human, animal and plant life and to avoid serious
prejudice to the environment. Exclusions from patentability
for these purposes are permitted under Article 27(2) of the
TRIPS Agreement.
Proposal **
23. After the sentence on plant variety protection in Article
27.3(b), a footnote should be inserted stating that any
suigeneris law for plant variety protection can provide for:
(i) the protection of the innovations of indigenous and local
farming communities in developing countries, consistent with
the Convention on Biological Diversity and the International
Undertaking on Plant Genetic Resources;
(ii) the continuation of the traditional farming practices
including the right to save, exchange and save seeds, and sell
their harvest;
(iii) preventing anti-competitive rights or practices which
will threaten food sovereignty of people in developing
countries, as is permitted by Article 31 of the TRIPS
Agreement.
Relation between Article 27.3(b) and CBD and the International
Undertaking on Plant Genetic Resources
24. The CBD aims to protect the rights of indigenous people
and local farming communities and to protect and promote
biological diversity. The International Undertaking on Plant
Genetic Resources (under the FAO) seeks to protect and promote
farmers' rights and to conserve plant genetic resources.
These are international obligations undertaken by States,
including most of the Members of the WTO. It is therefore
imperative that Article 27.3(b) recognize the principles,
objectives and measures planned and proposed under the CBD and
the International Undertaking. By mandating or enabling the
patenting of seeds, plants and genetic and biological
materials, Article 27.3(b) is likely to lead to appropriation
of the knowledge and resources of indigenous and local
communities.
Proposal **
25. The review process should seek to harmonize Article
27.3(b) with the provisions of the CBD and the International
Undertaking, in which the 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.
VI. ARTICLE 23.4 OF THE TRIPS AGREEMENT - ESTABLISHMENT OF A
MULTILATERAL SYSTEM OF NOTIFICATION AND REGISTRATION OF
GEOGRAPHICAL INDICATIONS
26. With the objective of facilitating the protection of
geographical indications for wines, Article23.4 of the TRIPS
Agreements requires the Council for TRIPS to undertake
negotiations concerning the establishment of a multilateral
system of notification and registration of geographical
indications. At Singapore in 1990, Ministers declared
themselves in favour of the extension of these negotiations to
spirits.
Proposal **
27. Considering that Ministers made no distinction between the
two above-mentioned products, the African Group is of the view
that the negotiations envisaged under Article 23.4 should be
extended to other categories, and requests, in this regard,
that the scope of the system of notification and registration
be expanded to other products recognizable by their
geographical origins (handicrafts, agro-food products).
This material is being reposted for wider distribution by the
Africa Policy Information Center (APIC). APIC's primary
objective is to widen the policy debate in the United States
around African issues and the U.S. role in Africa, by
concentrating on providing accessible policy-relevant
information and analysis usable by a wide range of groups and
individuals.
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