The author can be reached at: arianeleroy@yahoo.com

This paper is the result of a research for the purpose of a Masters’ thesis in agricultural economics at the Wageningen University, Netherlands.

Five months in the first half of 2000 were spent as a research intern at the Institute for Agriculture and Trade Policy (IATP), a non-profit organization based in Minneapolis, Minnesota (USA), under supervision of Kristin Dawkins, director of the Trade and Agriculture Program.

In Wageningen, dr. Guido Ruivenkamp, associate professor at the Technology and Agrarian Development Group supervised the whole project.

Dr. Niek Koning, senior lecturer at the Department of Social sciences, Agricultural Economics and Rural Policy Group has monitored the economic part of this thesis.

The thesis is part of a curriculum on International Management and Administration, supervised by Ab van Eldijk, in which I chose to focus on biodiversity issues.

The idea of a thesis on biodiversity came a few years ago, while working on Dutch aid to the FAO. The concept of Farmers’ Rights caught my attention as it seemed like a fairness contract to the agricultural profession, which deserves to be respected.

During my search for an internship, I appreciated the fact that IATP’s virtual library provided a large amount of information on all kinds of subjects related to farming, biodiversity and international politics; the information was diverse in topics but also in source. Aside from examining potential improvements for the bargaining positions of developing countries, integrating an economic part in this paper allowed to look more closely at organizations such as the WTO or Worldbank and their role in conservation issues. My stay provided among many other things insight on how ngo’s operate, their strategies and their willingness to achieve their goals, but also on the need to look critically at the information that is used and produced. I was astonished by the work ngo’s are achieving. In my paper, I sometimes criticize ngo’s views on specific topics because I think that those comments can be useful to eventually support and improve the reach of their work.

The biodiversity issue is of tremendous importance. Not only as a basic need for life on earth, but also because it is one element in a complex network of issues that require awareness and willingness to respect the environment we live in. It involves a way of thinking that has not reached enough people yet. Also and unfortunately, commercial interests often prevail over basic needs and rights for humans. I hope that with this work, I can contribute in some way to the debate on the need of public awareness on conservation issues.

Foreword *

List of Boxes *

List of Tables *

Executive Summary *

Résumé en Français *

Acknowledgements *

Abbreviations *

Scope of the Research *

I. Introduction to Biodiversity and Intellectual Property Rights *

II. Conflicts between the agreements *

III. The economics of Information and IPR *

IV. Arguments for TRIPs: What do economic indicators say *

V. Oppositions to TRIPs *

VI. Sui generis Options in TRIPs *

Conclusion – Recommendations *

Post-Script *

Literature *

Box 1. The importance of both formal and informal sector in agriculture *

Box 2. Farmers’ Rights *

Box 3. Benefit- sharing mechanisms *

Box 4. Farmers, breeders and researchers *

Box 5. " Special 301 is one of the most effective instruments in our trade policy arsenal" *

Box 6. Who owes money to whom? *

Box 7. Article 27.3 (b) of TRIPs *

Box 8. United Nations Resolution on TRIPs and Human Rights *

Box 9. Press release- Comments on Patents on Pharmaceuticals by UN *

Table 1. UPOV 1978 and 1991 *

Table 2. Distribution of world R&D *

Table 3. Sources of technology *

Table 4. Impact of PVP laws on information flows, seed prices and germplasm exchange *

Within the World Trade Organization (WTO), the Agreement on Trade-Related Intellectual Property Rights (TRIPs) regulates the access to and use of human-created inventions. Laws that intended to cover such inventions were traditionally meant for industrial products and designs. As biotechnological applications have made natural resources a new area of discovery and patent filing, some biological processes and plant varieties now also have to be protected by Intellectual Property Rights (IPR).

TRIPs became effective in 1994; developing countries, depending on their situation, have 5 to 10 more years to implement the Agreement. Contents and interpretation of the legislative texts are still being negotiated and are subject to intense discussions. Non compliance with TRIPs regulations can lead to trade sanctions under WTO rules. It is the first time that regulations in the area of Intellectual Property happen on such high political level.

The inclusion of biological materials occurred under high pressure of industrialized countries, claiming that the lack of IPR on biological resources formed a barrier to free trade, which is in turn prohibited by the WTO. Access to genetic resources in the Southern Hemisphere enables the developed nations to use those resources for commercial purposes, under which medicines, agricultural inputs etc. Patents in turn assure them of a return on investments, in a sector where expenses are enormous. The arguments that were used to adopt TRIPs were based on the assumption that stronger IPR, by creating an incentive for innovation, would stimulate development of new technologies in the industrialized nations. Through foreign investments and technology transfer, these innovations would in turn benefit developing countries and hence stimulate their participation in the world market and facilitate their development.

This thesis exposes those assumptions and shows that they are highly disputable. Costs of protection and enforcement are high, and benefits arising from potential technological improvements and market access may not reach the developing countries as supposed. The transfer of western technologies as a way to access those markets is also questioned.

Western-made IP regulations also seem unsuitable for the ethos and cultures of developing countries: the existence of collective rights and informal innovators is overlooked by TRIPs and the tradition of keeping knowledge built over the years by farmers and communities in the public domain is endangered. Also, considering "lifeforms" as a commodity disregards widespread moral values. Deep concerns have also been expressed on the consequences of uniformization of crops and species for the purpose of commercial interests in industrialized nations. Biodiversity, mainly present in the developing countries and vital for food security and humankind, has decreased tremendously over the past decades, and is even more endangered with the perspective of unregulated access. Millions of people in southern countries are moreover dependent on cultivation of local varieties for their daily lives. The Convention on Biological Diversity (CBD) signed in 1992 established provisions aiming at conserving biological resources and recognizing the contribution of Indigenous knowledge therein; moreover, it recognized the sovereign rights of states over their genetic resources. TRIPs, by protecting the interests of formal breeders and the high tech-sector facilitates the unrestricted access to those resources, which is detrimental to biodiversity.

This thesis also explores the space left between various legal frameworks, for developing countries to defend their cause. In particular, article 27.3(b) of TRIPs, in which WTO members have the option of elaborating sui generis laws as an alternative to patent protection for plant varieties, is considered in detail. Some countries already have drafted laws that seek to protect their peoples and resources. Even if some of those do clearly assess the countries’ needs, it seems hard to resist foreign and commercial pressure.

L’Organisation Mondiale du Commerce (OMC) comprend une série d’accords dont celui sur les aspects de droits de propriété intellectuelle qui touchent au commerce (ADPIC), signé en 1994 à Marrakech. Le texte international oblige les états-membres de doter les droits de propriété intellectuelle d’un niveau minimum de protection. Ces droits étaient habituellement appliqués aux inventions industrielles. Depuis peu, les états-membres doivent protéger à peu de choses près toutes leurs inventions, qu’elles soient un produit ou un procédé, moyennant un brevet. Les médicaments et les inventions faites dans le domaine du vivant, comme par exemple certains procédés biologiques ou celles faites à partir de ressources génétiques tombent donc sous la même obligation. Les principaux partisans du brevet, issus de pays industriels tels que les Etats-Unis, le Japon ou l’Europe et très actifs dans l’industrie des « sciences de la vie » ont largement insisté pour l’obtention de brevets dans ces domaines spécifiques, prétendant entre autres que l’absence de protection était une barrière au libre-échange, à son tour interdite par l’OMC.

Les ressources génétiques dans le Sud sont une véritable mine pour les entreprises du Nord, qui les utilisent à des fins commerciales: les matières premières pour de nombreux médicaments et insecticides, mais aussi le gène du goût de chocolat sont en effet originaires de ces pays. Les brevets pour ces (bio)technologies à base de ressources biologiques sont ensuite déposés dans ces même pays industrialisés et la vente des produits permet d’amortir des investissements coûteux. Les communautés locales, qui ont préservé ces ressources depuis des siècles et en connaissaient les propriétés bienfaitrices, ne bénéficieront pas de leur exploitation.

L’argument principal pour l'intégration des droits de propriétés intellectuelles dans l’OMC part du principe que le "brevetage" des inventions stimule la recherche scientifique et qu’il est donc indispensable au développement de nouveaux produits et de nouvelles technologies dans les pays industrialisés. A leur tour, les pays en voie de développement bénéficieraient à plus long terme de ces inventions par le transfert de technologies et les investissements étrangers, ce qui faciliterait leur accès et leur participation au marché mondial. Selon cet argument, le brevetage des inventions est donc rentable pour les producteurs mais aussi pour les consommateurs de technologies. L’absence de droits sur les propriétés intellectuelles serait de plus néfaste pour tous deux. Dans le secteur agroalimentaire par exemple, certains prétendent que le brevetage stimulera la recherche scientifique au profit de la sécurité alimentaire, et qu’une absence de protection pourrait faire relâcher les efforts indispensables dans ce domaine.

Le présent mémoire explique que ces arguments sont très contestables. Les coûts d'adaptation au nouveau système de protection sont très élevés. Les produits brevetés sont également vendus bien plus chers que s’ils n’étaient pas protégés par des droits. Les positions de quasi-monopole qui se sont créées récemment dans certains secteurs de l’économie font aussi redouter que le brevetage soit utilisé à des fins stratégiques pour les entreprises afin d’obtenir des parts de marché plus importantes et de monter les prix. La somme de ces aspects risque de nuire considérablement aux pays en voie de développement qui n’ont pas les moyens de se payer des produits essentiels mais onéreux, ni de s’organiser pour résister à de telles situations. Il est de plus loin d’être certain que les bénéfices émanant des technologies nouvelles les atteindront effectivement. En outre, l’intérêt des transferts de ces technologies vers les pays pauvres comme moyen de développement reste discutable.

Un concept occidental de droits de propriété intellectuelle ne semble pas non plus adéquat à la situation et aux mœurs de nombreux pays chauds. Ni les droits collectifs ni les innovations du secteur traditionnel ne sont reconnus dans l’ADPIC. De plus, l’appropriation individuelle des connaissances met en danger la tradition de conserver dans le domaine public les savoirs locaux des communautés. Breveter « le vivant » ne respecte en aucun cas les valeurs morales locales. Aussi, les critères de brevetabilité issus de l’agriculture industrielle et de ce fait pas inadaptés aux pratiques de l’agriculture traditionnelle ont suscité des inquiétudes à cause de leur tendance à inciter une agriculture uniforme, laquelle représente un danger pour la conservation du patrimoine génétique sur Terre, à son tour vitale pour la sécurité alimentaire. La très grande majorité des agriculteurs dans ces pays, pratiquant une agriculture de subsistance, dépendent en effet de la diversité génétique pour leurs cultures. Et que dire du fait que les propriétés des ressources biologiques sont parfois considérées comme une nouveauté par leurs prospecteurs alors que bien des populations les ont déjà découvertes et utilisées avant eux?

Le patrimoine génétique a fortement diminué au cours des dernières décennies. La Convention sur la diversité biologique (CDB) adoptée en 1992 au Sommet de la Terre à Rio cherche à limiter sa destruction et à reconnaître le rôle des agricultures traditionnelles dans la préservation de la biodiversité. En effet, la CDB reconnaît aux Etats un droit de souveraineté sur leurs ressources biologiques et exige des signataires entre autres la protection des communautés (autochtones) locales, leurs systèmes de savoirs et leurs droits sur les ressources biologiques. L’ADPIC, défendant les intérêts de la chaîne agroalimentaire industrielle et les sélectionneurs des pays occidentaux vise à faciliter l’accès aux ressources et contribue ainsi à l’érosion génétique.

Il s’agit donc de trouver un autre moyen que le brevetage pour protéger les ressources biologiques et les droits des communautés rurales, tout en stimulant la recherche dans ce domaine et en tenant compte des droits de propriété intellectuelle déjà mis en place. Le but de ce mémoire est donc, entre autres, d'étudier différentes possibilités pour défendre les intérêts des pays en voie de développement compte tenu des cadres juridiques précédemment cités. Ceux-ci permettent en effet, grâce à leur caractère de compromis international incomplet, de trouver en toute légalité vers des solutions plus adéquates et préservant la biodiversité.

En particulier, l’article 27.3(b) de l’ADPIC offre quelques options dans ce sens. Il accorde aux états-membres d’exclure de la brevetabilité certains organismes vivants, mais exige qu’ils prévoient la protection de variétés végétales par des brevets, par un système sui generis (c’est à dire adapté à leur propre situation) ou par une combinaison des deux moyens. Certains pays ont donc profité de cette occasion pour développer des lois visant à protéger leurs ressources et les communautés locales. Malheureusement, il s’avère plus difficile que prévu de résister aux pressions commerciales. De nombreux efforts sont à réaliser pour affronter un problème de grande envergure.

The time in Minneapolis was absolutely fantastic. So many enthusiastic and friendly colleagues in-and outside the office made the stay unforgettable. Therefore, I would like to thank the people that have made this research possible.

Lots of thanks to Kristin, for your accurate advise and support. I really appreciated the commitment to your work and the passion to fight against unfair politics. Sophia Murphy and the Trade and Ag team: Gabriela Flora, Steve Suppan; Kathy Hiltsley for the flows of information; Renske, the Coffee Guys, Char and all the others.

Mark Ritchie for having me at IATP and the fruitful ideas for San Francisco. Hope we’ll meet again!

Outside the office, Amy Smith, Mark Muller, Cathy Heying and Wendy Wiegmann, thank you for the wonderful time in the house.

In Wageningen, I would like to thank Niek Koning and Guido Ruivenkamp for the success that IATP’s address has brought, and for their accurate supervision once back in the Netherlands.

I owe a lot to Ab van Eldijk who trusted me and supported me many times in the last few years. I really hope his international program will be successful.

Overall support from my friend and my parents at home also made it possible to go abroad and enjoy my stay. Thank you!

During my stay in the Twin Cities, interviews and meetings with prof. Ruttan, prof. Regal and Dan Leskien provided material for interesting discussions.

The sui generis options would never have been possible without the help of many of IATP’s "friends"; among them were Renée Vellvé (GRAIN), David Hathaway, Sue Edwards and Tewolde Egziabher (Institute for Sustainable Development, Addis Ababa), Devinder Sharma, Isaac Gavitza, Liz Hosken (Gaia Foundation) and Wend Wendland (WIPO).

Also, data use from Biothai and GRAIN (1997) is gratefully acknowledged.

ARIPO African Regional Industrial Property Organization

CBD Convention on Biological Diversity / Biodiversity Convention

CGIAR Consultative Group on International Agricultural Research

CIR Community Intellectual Rights

COP Conference Of the Parties (to the Biodiversity Convention)

DNA Deoxyribonucleic Acid

DSB Dispute Settlement Body

DUS Distinctiveness, Uniformity, Stability

FAO Food and Agriculture Organization (of the United Nations)

FDI Foreign Direct Investment

GM Genetically Modified

GMO Genetically Modified Organism

GRAIN Genetic Resources Action International

IATP Institute for Agriculture and Trade Policy

ILO International Labor Organization (of the United Nations)

IP Intellectual Property

IPR Intellectual Property Rights

IUPGR International Undertaking on Plant Genetic Resources (FAO)

LDC’s Least Developed Countries

MFN Most-Favoured-Nation

MTA Multilateral Transfer Agreement

NARs National Agricultural Centers

Ngo Non-Governmental-Organization

NIC Newly Industrialized Countries

OAPI Organisation Africaine de la Propriété Intellectuelle

OAU Organization of African Unity

OECD Organisation for Economic Cooperation and Development

PBR Plant Breeders' Rights

PGR Plant Genetic Resources

PIC Prior Informed Consent

PVP Plant Variety Protection

RAFI Rural Advancement Foundation International

R&D Research and Development

TRIPs Trade-Related Aspects of Intellectual Property Rights

UN United Nations

UNCED United Nations Conference on Environment and Development

UNCTAD United Nations Conference on Trade and Development

UNEP United Nations Environment Programme

UNESCO United Nations Educational, Scientific and Cultural Organisation

USPTO United States Patent and Trademark Office

The conservation of biological resources is essential for basic human needs, such as food security, health, shelter and clothing. A major part of these resources are located in the developing countries, whose inhabitants have been innovating, selecting, conserving and protecting local species for ages. Thanks to efforts of among othes local communities, it is now possible to still be using and improving these resources for the benefit of humanity. The amount of resources still available, though, diminishes with amazing rapidity. Erosion of resources mainly occurs because of the replacement of local varieties by improved varieties and species. The production of commercially more viable crops and the subsequent uniformity are named to be at the source of the actual decline.

Because of huge financial benefits that modification and commercialization of these resources can confer, biodiversity has now become subject of intense trade negotiations. A certain number of international treaties, such as the Convention on Biological Diversity, the International Undertaking of the FAO or the TRIPs Agreement of the WTO, now tend to regulate and legalize the use and access to biological resources. Different parties still are debating on the interpretation of such agreements. Considering "living material" as patentable allows western economies to take advantage of these resources, an advantage they have sought during trade negotiations. The argument of many developed countries is that the implementation of higher (and restrictive) standards of Intellectual Property protection does benefit innovation, competition, technology transfer and at the end the standard of living of many people, including the developing countries. On the other hand, some developing countries advocate that the concentration of patentholders, technological knowledge and financial advantages in the North becomes a threat to the safeguard of biodiversity and disadvantages them economically. According to them, the use of traditional knowledge and its commercialization through patents without the consent or the compensation of the innovators can be considered as theft, and violates human rights.

The Institute for Agriculture and Trade policy, based in Minneapolis, Minnesota (USA), is a non-profit, non-governmental organization that aims, among other things, at "reorganizing agricultural production systems toward food security and the survival of rural communities". Through intensive advocacy work, they support rural people and southern countries in order to give them more opportunities and future in a globalizing world.

The close cooperation with this organization constitutes the basis for the present research.

This paper shows that developing countries’ interests are not met in laws regulating Intellectual Property such as defined in TRIPs, and that other concepts are necessary to protect their natural resources within the legal framework of international treaties. Authors of broad origins, ngo’s as well as academic writers will be considered. The paper aims at giving answer to the following questions:

• What are the potential conflicts between laws regulating on the one hand conservation of biodiversity and traditional knowledge and on the other hand Intellectual Property Rights?
• Which arguments are used by WTO members to claim and enforce highly restrictive Intellectual Property systems?
• How can these arguments be used and refuted in order to strengthen the position of the southern countries in their attempt to defend biological resources and Indigenous knowledge?

To answer those questions, I will first present background information on biodiversity and the protection of Intellectual Property, and the legal frameworks in which they are regulated. In a second chapter, I will show the conflicts between those agreements and how they can be used to gear interests towards the biodiversity-rich nations. The third and fourth chapter focus on the arguments used by developing countries to enforce TRIPs. It focuses, through a qualitative approach on the economic aspects of knowledge and IPR, together with a survey of the relationship between higher standards of protection and economic indicators In chapter 5, I show that those arguments are refutable and that TRIPs does not serve the interests of developing countries, and in particular forms a threat to the conservation of biodiversity. Finally, in chapter 6, I consider the possibilities for developing countries for the purpose of defending their interests. I will also present a number of initiatives of sui generis laws that developing countries have been designing to regulate the access to their national resources. The paper ends with conclusions and some recommendations.

This first chapter provides an introduction to a set of legal frameworks in the area of the conservation of biological resources and Intellectual Property Rights (IPR). After a brief explanation on the importance of biological resources for humankind, different legal contexts will be presented that deal on the one hand with the conservation of biodiversity and on the other hand with the protection of knowledge and inventions. The following aspects are being considered:

• The conservation of biological resources and the role of Indigenous knowledge,
• The conservation of biodiversity through international treaties,
• Intellectual Property Rights in western economies.

1. The conservation of biological resources and the role of Indigenous knowledge

In this first section, I will expose the importance of biological diversity for the human being, and the role of traditional/ Indigenous knowledge in the conservation of these resources. Also, the debate around those issues will be described.

1. Biological diversity

The definitions of biological diversity and natural/genetic resources used in this paper will be the same as the ones used in the Convention on Biodiversity (CBD), stating that "the term "biological diversity" is used to describe the number and variety of living organisms on the planet. It is defined in terms of genes, species, and ecosystems, which are the outcome of over 3,000 million years of evolution. The human species depends on biological diversity for its own survival. Thus, the term can be considered a synonym for "life on Earth".

Although estimations of numbers are very different, some biologists believe that there are around five to thirty million varieties of lifeforms on earth, in water and air, of which only a fraction have been identified (Wilson, 1988, in Swaney and Olson, 1992). Most of the resources (two thirds of plant species) are located in developing countries; the tropical forests in particular are known to be biodiversity rich.

Why preserve these resources? A number of arguments can be listed, which in turn are subject to criticism.

In the first place, agriculture is pre-eminently dependent on biological resources. Varieties of seeds, fertilizers and pesticides all contribute to the production of livestock and crops. These resources are subject to natural evolution. As species tend to compete with each other within nature, non-viable species do not resist this competition and disappear. This auto-selection is a process that makes genetic resources subject to evolution in time; on the long run, it makes environmental factors to change also. Soil, climate and species do not stay in the same shape over the years. Not only do species change but also the diseases and pests that live simultaneously, thereby evolving in the same time. Opinions are divided when it comes to the need of diversity for agricultural purpose and the adaptation of farming systems to the environment.

One opinion is that the evolution of pests obliges farmers to continuously adapt their way of farming to their environment and to supply new forms of resistance to control diseases. Without this effort, farmers would be overwhelmed by the adaptation of pests and diseases to the new varieties in use. It is for those reasons also that the conservation of a large basis of multiple resources is needed, to prevent species to be exterminated by evolving pests (Evenson, Gollin and Santaniello, 1998).

However, another view argues that through modern technologies, humans have been able to adapt the environment to new agricultural inputs and seeds (built-in pesticides for example). In this case, it is not necessary to keep a wide range of resources, as conditions under which resources are grown can be altered. Also, they argue that the synthetic production of inputs will compensate the need for diversity.

Most of the resources are originating from other countries. Through export and foreign market opportunities over the past centuries, resources have been spread over the world, relocating their actual site of origin and more or less reorganizing the genetic-resources-map of the world. Bearing in mind that self-sufficiency of countries in their own crops is close to zero, interdependency in biological resources has strongly increased over the past few decades, emphasizing the need of international cooperation and the preservation of the resources.

The second argument, relying on the first one, states that biological diversity is needed to guarantee food security; FAO statistics (1996) mention that from the 250.000 identified species of plants, 30.000 are considered edible, and 7.000 have been cultivated or collected by humans throughout the years. Besides, thirty crops provide 95% of dietary energy of the world’s population; no more than three crops (wheat, rice, and maize) provide more than half of the human energy intake derived from plants. Food security thus relies on a very small amount of species. Due to the lack of diversity in production systems, these crops are highly vulnerable to pests and disease, which raises the need to handle them with care. Their dependency on external inputs makes them also more expensive to produce. Most farmers, lacking financial resources to afford pesticides and/or fertilizers thus rely on the diversity within species, to be able to produce more diverse crops, which require low external input. These crops are in turn cheaper to cultivate and better adapted to the environment. Diversity within species also makes the basis for food security broader. Population growth enhances the need for food security.

On this argument too, opinions are divided. The antagonism is that whereas diversity of species has diminished, the food production has grown tremendously. So, according to others, it is questionable whether biodiversity is really a sine qua non for food security.

Thirdly, diversity is crucial for healthcare; it is stated that 80% of the world’s population relies on medicinal plants to cure illnesses (Shelton, 1993, in The Crucible Group, 1994). Traditional medicine in particular is strongly dependent on nature and most of the "western" drugs are derived from plants located in the South, too.

Not only are resources vital for food and health purposes, they also provide humanity of other primary needs, such as livestock breeds, clothes, shelter, and fuels. Besides their formal utilization, most of the plants have widespread additional cultural functions in traditional and Indigenous communities, such as religious purposes.

To sum up, we have considered a number of arguments that plead for the conservation of a wide genetic basis within nature: agriculture, which in turn is the basis for food supply; healthcare, traditional uses were also cited to be dependent on biodiversity. We need to bear in mind that objections to such arguments also form the basis of further disagreements on the role of plant breeding in developing countries.

Within agricultural systems, farming methods also make a difference, based on the use of resources. Considering the types of varieties, the mode of conservation of resources and the culture linked to these, two groups of plant genetic resources, or systems can be discerned (FAO, 1996):

1. The formal system, with professional plant breeders of private companies or publicly funded research institutes, producing high yielding varieties, with the aid of external inputs and chemicals;
2. The informal system, which includes traditional farming systems, producing "landraces" or "farm" varieties, which have been bred by farmers themselves, using their own knowledge and traditions.

The role of the two systems’ contribution to the conservation of genetic resources is still a discussion today. The impact of the formal system has among other things been the massive increase in yields and efficiency in farming; the Green Revolution in particular helped raise the quantities of food produced. This approach is nowadays criticized because of its high dependency on expensive agricultural infrastructure, external inputs and irrigation systems. The formal sector however, has the (financial) support of developed countries, and of the countries with an important commercial breeding sector. Life-science companies are, among others, nowadays making huge benefits in this sector, urging their governments to support it. On the other side, the contribution of the informal system is more related to the perpetuation throughout generations of specific knowledge inherent to traditional communities. It focuses on the culture and local information available that have enabled farmers to adapt their farming systems to changing environmental conditions, and preserve traditional varieties over years. Although both systems are now recognized, the informal system still lacks powerful support and active recognition from officials: Both the informal sector and the minorities working for it are rarely mentioned in treaties, weakening their position. Advocacy work in this field tries to draw the attention on such shortcomings. In this paper too, the emphasis will lie on the opportunities for the informal sector get more recognition.

Along with the informal system goes the information that is enclosed in it. It is this specific knowledge, commonly called Indigenous/traditional knowledge, its crucial role in conservation of genetic resources and its subsequent contribution to global food security that are of importance here. A number of characteristics will be explained below.

1. Indigenous knowledge

There are multiple definitions of Indigenous knowledge and folklore. Generally, they relate to Intellectual and artistic creations, which are part of people's cultural heritage. Stephen Brush defines Indigenous knowledge as "systematic information that remains in the informal sector". The main characteristic arising out of this definition is the continuous embedding of knowledge inside a specific traditional culture. Most of the Indigenous expressions are non-written, and do not belong to individuals. They are made by distinct persons, though become collectively owned. Collective management is a crucial component of traditional communities, in particular regarding the conservation of biodiversity. They moreover originate from areas that cross political borders. There is no real inventory of the whole collection of works Indigenous people have produced (Biothai and GRAIN, 1997).

An important argument refers to the vital role of nature, which the majority of the people living in developing countries are dependent on in their daily life. Besides food, an important number of species are being used for clothing and medicinal care; religious and traditional purposes are not to be underestimated. Natural resources in fact have multiple functions in communities, be it of cultural or spiritual relevance. Moreover, some of the resources also have properties that benefit farming; biopesticides, such as the neem tree, play an important role for Indian farmers.

The traditional varieties, also called folk varieties, are of significance too. As products of traditional communities, they adapt to changing environmental conditions, while requiring low external input, and offer stability to the communities (Cleveland et al., 1994, in Cleveland and Murray, 1997). As mentioned before, farmers in these communities are strongly dependent on the diversity of the available seeds for their production. Folk varieties are also the basis of all modern varieties that have been developed throughout the ages, and are at the source of many new varieties that are developed for the industrial agriculture (Plucknett et al. 1987, in Cleveland and Murray, 1997). Folk varieties are therefore of major importance for other parts of the world too.

The numerous descriptions of local communities and Indigenous/traditional knowledge vary in tone and spirit. It is an often-encountered temptation, in particular among well-known activists to romanticize the role and integrity of such lifestyles. Social differentiation and hierarchal relations within communities are for example hardly ever mentioned, while they must for sure exist. Also, some critical notes ought to be expressed when describing the varieties in use by such communities. Surely, traditional ways of farming have value. But if they were that beneficial, how comes then that modern varieties were introduced and grown successfully? Somewhere the modern varieities must have been attractive, and not only because of commercial pressure.

Without aiming at diminishing the importance of traditional communities and knowledge, excessive embellishment of their situation is in my opinion not appropriate. It moreover gives a wrong idea of the situation, which in turn does certainly not benefit the communities themselves.

The meaning of traditional communities seems substantial; their culture, their varieties, their knowledge and their contribution to the preservation of biological resources are of tremendous importance. Western economies are still highly dependent on them for the development of their own food and drugs. It is for all these reasons that traditional communities and their knowledge should be safeguarded.

In this paper, their situation and the interests they represent are significant; understanding their contribution to food security is one step in giving them more space to have their interests at least recognized in international treaties and their situation taken into account.

2. Genetic erosion

Even if biodiversity has been preserved for many years, the alarming news, however, is that genetic diversity is known to be declining at a very big speed. Species disappear forever, after having lived for millennia. The causes of erosion are multiple and the importance of each factor is still contested. A number of reasons are described here.

The replacement of local (genetically diverse) varieties by improved (genetically uniform) varieties is said to be the major reason of erosion (FAO, 1996). The production of better quality, and thus commercially more viable crops leads to uniformity, which in turn, enhances genetic erosion. For example, Chinese wheat varieties in 1949 were supposed to be at the number of 10.000, while only 1.000 are left over now; in Thailand, the Philippines and Malaysia, original fruit and rice varieties are being replaced with better quality varieties. In the United States, 86% of apple varieties used in the past century are now lost (FAO, 1996). Government regulations also tend to promote the production of one specific variety, replacing the old ones. The intensification and change of agricultural systems such as irrigation systems and chemical inputs are known to be an important cause of habitat destruction, causing biodiversity to decline. Lack of sustainable resource management, deforestation and other environmental effects are the other causes of genetic erosion.

Developments in genetically modified (GM) crops have added to the concerns of biodiversity loss. For example Monsanto’s Golden Rice, a rice variety enriched with Beta Carotene, and supposed to partly compensate deficiencies in vitamin A in developing countries, has raised concerns: the fast replacement of local varieties with Golden Rice will contribute to even more erosion. Of course, the whole concept of GM food as a way of feeding the world is a substantial part of the discussion.

According to Swanson (1995), the decline of biodiversity is due to the change in the one controlling its allocation. Whereas evolutionary processes used to be nature’s task, it has now become an activity of humans, led by economic motives. Human's intervention has according to Swanson and many others contributed to the extinction of many species that, otherwise, would still have been living.

As genetic resources are vital for the environment and for humans, their inherent value makes them popular and subject to benefit driven bargaining. Meanwhile, the biological resources have to be preserved from their extinction. Let us see how access to and use of biodiversity is regulated in international treaties.

1. Legal frameworks for the conservation of biodiversity and Indigenous knowledge

As a result of common concern about the erosion of genetic resources, a number of international treaties deal with the issue of conservation of biodiversity, Indigenous knowledge, and/or the combination of the two. Even though opinions are divided on the need for diversity, the importance of biological resources for human being and the decline of their availability made a common commitment urgent. According to Cooper (1993), the worldwide dependence on other countries’ resources is the main reason why international cooperation in the field of plant genetic resources is vital. Two treaties will be exposed. They are the International Undertaking on Plant Genetic Resources (IUPGR) of the Food and Agriculture Organization (FAO) and the Convention on Biological Diversity (CBD). Also, laws protecting traditional communities and their knowledge will be considered. The emphasis of each of these treaties is different. In each case, I will look more closely at the articles and issues relevant for the present research. The debates and conflicts around specific parts of those treaties and Agreements will be dealt with more thoroughly in chapter II.

1. The International Undertaking on Plant Genetic Resources

The International Undertaking on Plant Genetic Resources, hereafter referred to as the Undertaking, was adopted by the Conference of the FAO in 1983, as a non-legally binding instrument. It was the first international instrument that sought to regulate the conservation and the sustainable use of genetic resources.

The objective of the Undertaking is to "ensure that plant genetic resources of economic and/or social interest, particularly for agriculture, will be explored, preserved, evaluated, and made available for plant breeding and scientific purposes (Article 1). In this same article, it is stated that PGR are a "heritage of mankind" and consequently "should be available without restriction". The idea of "heritage of mankind" has undergone some criticism, being that if humanity inherited resources, then they should be accessible to everyone, thereby passing over the sovereign rights of states over their resources. Another issue is that the IUPGR makes resources available for plant breeding purposes. This in fact the start of a trend that would grow under UPOV later (see § 3c), and which now is being attacked by advocates, because it overlooks the use of PGR for non-commercial purposes. In that sense, the IUPGR was not that good start for the recognition of the informal sector.

The Undertaking meant to provide for a number of issues, such as the exploration and collection of genetic resources (article 3), the in situ and ex situ conservation (article 4), the availability of plant genetic resources, (article 5), international cooperation in conservation, exchange and plant breeding (article 6), international coordination of genebank collections and information systems (article 7) and funding (article 8).

The Undertaking also includes three annexes or interpretative resolutions, in which three different issues are being dealt with. They are also the ones with more political weight.

The first resolution (C4/89) recognizes that the Plant Breeders’ Rights (PBR), as determined by the UPOV (see § 3c) were not necessarily in conflict with the Undertaking. The UPOV inter alia provided plant breeders the right protect their seeds through private rights. PBR mainly benefit countries that are active in commercial seed production.

A second annex (C5/89) concerned the concept of Farmers’ Rights, stating that farmers have a priori rights to the materials their ancestors have developed since time immemorial and must be rewarded for their activities and conservation of genetic resources. The international community through the FAO Conference endorsed this annex in 1989; it meant a major step forward in the recognition of the contribution of farmers, thereby challenging the view that genetic resources are only developed within the formal sector (Cooper, 1993). It was also a compensation for the right accorded to breeders in the first annex: If breeders have rights over their varieties, then farmers should also be taken into account as key participants to that process.

The third annex (C3/91) reaffirmed the sovereignty of nations over their natural resources, and the agreement to create a fund in order to implement Farmers' Rights (see Box 2). It focuses on the need to preserve the resources, to regulate their access, use and exchange, and to respect the ones who elaborated them over the past years. It also urges for international cooperation in these fields. Both concepts (sovereignty and Farmers’ Rights) are subject to debate, as we will see in chapter II.

The IUPGR is still referred to as a more or less successful first attempt to regulate the access and use of genetic resources. It especially emphasized on the efforts to rebalance North (resource- poor, but financially rich) and the South (resource rich but financially weak). Today, efforts are made to push the concept of Farmers’ Rights and to include such a provision in national laws.

Box 2. Farmers’ Rights

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2. The Convention on Biological Diversity

The Convention on Biological Diversity, or Biodiversity Convention, signed in 1992, was another result of increasing concerns growing around the preservation and the sustainable use of biodiversity. The Convention was opened for signature on 5 June 1992 at the United Nations Conference on Environment and Development, (UNCED), also called the Rio "Earth Summit", and entered into force on 29 December 1993. By early 2000, 177 countries had ratified the convention. A few countries, of which the USA, haven’t done so.

The CBD’s objective are: "the conservation of biological diversity, the sustainable utilization of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources" (Article 1). In addition, it urges contracting parties to "respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practice and encourage the equitable sharing of the benefits arising from the use of such knowledge, innovations and practices" Article 8(j).

Those two articles thus emphasize the need for protection of biodiversity and the recognition of traditional knowledge. If they are effectively applied and implemented, they can have major consequences for the access to genetic resources. Environmentalists, Human Rights advocates and many developing countries have welcomed the concept of benefit- sharing, which is of substantial signification for local communities and the preservation of traditional knowledge (see box 3). It is now subject to heavy criticism, as we will see in chapter II. Also, article 8(j) clearly acknowledges the participation of local communities in the preservation of biodiversity, a major step in the recognition of their contribution. Moreover, it supports in situ conservation over ex situ conservation, another way of recognizing the role of communities, bearing in mind increasing commercial tendencies.

 

Box 3. Benefit- sharing mechanisms

 

 

 

 

 

 

 

 

 

The Convention also recognizes "the sovereign rights of States over their natural resources", and that "the authority to determine access to genetic resources rests with the national governments and is subject to national legislation" (Article 15). The sovereignty of states over their genetic resources is a major victory for the ones concerned about the environment. It also means that governments are responsible for their resources and hence of their sustainable conservation, and that they can decide whether or not they will allow collection of resources on their territories. However, the effectiveness of sovereign rights is questionable, as will be explained in chapter II.

The parties also "shall endeavor to create conditions to facilitate access to genetic resources" (article 15.2). "The access, where granted, shall be on mutually agreed terms" (Article 15.4). "Access to genetic resources shall be subject to Prior Informed Consent (PIC) of the Contracting Party providing such resources, unless otherwise determined by that Party "(15.5). The latter provision indicates that parties have to be aware and agree with the terms under which resources are accessed and /or taken away. More of this will be discussed in chapter II.

The Convention finally asserts, in article 16 that Intellectual Property Rights must not conflict with the conservation and sustainable use of biodiversity: "The Contracting Parties, recognizing that patents and other Intellectual Property Rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives."

Articles 15 and 16 are now subject of negotiations, as they involve rights and duties that should be enforced. However, laws regulating Intellectual Property do have other priorities that may be hindered by such articles, as we will see later in this chapter.

The CBD is nowadays seen as the main text in the field of biodiversity. Contracting parties meet within the Convention of the Parties (COP), to discuss further implementation of the articles. The protection of Indigenous/ traditional knowledge is an important part of it.

In short, we can say that the CBD is a step further in the recognition of biodiversity as a vital resource for humanity, together with the recognition of Indigenous knowledge, whereas the International Undertaking only provided protection for plant genetic resources. As the CBD’s articles are legally binding, they provide official support to the signatory party, which is important, especially for the southern countries. Of essential significance are the affirmation that biodiversity is not a gift of nature, but the result of community activities, and the fact that it gives formal international recognition to the central role of Indigenous communities in conservation of biodiversity, through their sustainable practices and cultural knowledge systems. The rights for local communities, as well as for states, are according to the CBD needed in order to protect biological resources and encourage conservation. It is the question if the sovereign rights of states will indeed protect the resources. Chapter II explains more in detail the underlying discussion.

3. Protection of Indigenous knowledge

Indigenous/traditional knowledge, as defined earlier, is commonly held by (traditional) communities in developing countries. It does not mean that it is held exclusively by Indigenous Peoples. The place where the informal sector’s, minorities’ and Indigenous knowledge is regulated is nevertheless in legal texts that also recognize the rights of Indigenous Peoples and Folklore against improper exploitation. For example, some national laws in Africa, as in Benin, Rwanda and Ghana explicitly mention the Indigenous Peoples knowledge in their definitions (Biothai and GRAIN, 1997). International texts also provide some protection.

First of all there is the Universal Declaration of Human Rights stating that all people on earth are born "free and equal in dignity and rights" (Article 1). All people also have the rights to "the protection of the moral and material interests resulting from scientific, literary or artistic production of which he or she is the author" (Article 27). The United Nations Draft Declaration on the Rights of Indigenous Peoples that is being elaborated presently should extend those rights.

The UNESCO/WIPO guidelines for Protection of Folklore and the ILO C169 Indigenous and Tribal Peoples Convention (1989) also provide for some protection. The latter states that: "The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect" (Article 14.1).

Article 15.1 also states that "The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources."

Another few texts also call for the non-discriminatory protection of Property and knowledge, though without explicitly recognizing the Indigenous Peoples. The International Covenant on Economic Social and Cultural Rights (Article 2.1) states that "all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence."

Whether and to what exent those texts are lived up to remains the question. In the concerned countries, lack of experience in dealing with issues such as the identification of works, or with implementation mechanisms makes the texts hard to apply. It also seems that legislation is fragmented among the different fields of the biodiversity conservation: fisheries, plants etc. Besides, the absence of regulation and coordination on federal level contributes to incoherence in the implementation (Nijar, 1996b).

Besides, other agreements that do defend other interests feel hindered (!) by such treaties and hence sometimes neglect the primacy of Human Rights over private interests. Political pressure on countries that do not respect Human Rights has grown over the years, but it is questionable on whether such initiatives are part of a politically correct image of governments or whether they are meant truly to protect people. Public awareness and dissatisfaction about certain situations has also increased the last years, having a possible influence on politicians.

The hope is nevertheless expressed by many developing countries that these texts will once provide some protection to the rural communities and their knowledge, and subsequently to the natural resources they have been conserving during years.

The conservation of biological diversity and the protection of (traditional) knowledge are both regulated through more or less recent international treaties. Their enforcement is a slow process though; the ability and the willingness of other countries to compel the provisions are also questionable. Countries signatories of such treaties nevertheless have the duty to meet requirements.

Protection of knowledge has also become a hot issue through other channels: Commodization and the emerging role of information have made protection of genetic resources a new hot issue. The legal enforcement of protection is now a substantial part of supra governmental agendas.

In the next section, I will explain the concept of Intellectual Property Rights, the legal frameworks that regulate the exploitation of knowledge and the particular case of biological resources. Together with the previous section, this will form a basis for further analysis on the possibilities for developing countries to protect their resources, within the legal space that is left over by international treaties.

1. Intellectual Property Rights

Intellectual Property Rights (IPR) are currently defined as "rights given to persons over the creation of their minds" (TRIPs-WTO, text of the Agreement). They confer the creator exclusive rights over the use of his creation for extended periods of time, usually 17-20 years. One can thus claim Property over its individual invention; whether the inventor has used public knowledge or not for the purpose of his invention does not matter. Inventions and knowledge that have collectively been shaped through the years by communities can under this definition been appropriated by a single person, eventually changing an originally public good into a private one.

The protection of knowledge and information has a history. At the time of industrial revolution in particular, inventors of new machines, utensils and other useful materials wanted to be sure their invention would not be used by a third party without their consent. Intellectual Property Rights were therefore initially created to promote technological development, especially in industrial activities. The idea was that if new knowledge were freely disseminated, little incentive would remain to produce new knowledge.

A first attempt to legalize protection was made in 1868; the Paris Patent Union decided that innovators should be rewarded for their investment in generating knowledge and therefore an international mechanism of repatriating compensation was started (Swanson, 1997); the Union for the Protection of Industrial Property was created in 1883. It was till now the most important move towards protection of Intellectual Property (IP). Protection could then not be obtained on inventions in the medical and agricultural sectors. In other fields, unions were created, such as the Berne Union (1886) for the protection of literary and artistic work, the Geneva Convention (1971) for the protection of producers of phonograms against unauthorized duplication and UPOV (1961), for the protection of new plant varieties and many others.

During the twentieth century, as knowledge and artistic creations became an increasing source of benefits, many parties required protection. Particularly with the recent upcoming popularity of biotechnology, the extension of protection in the agricultural and medical sector became an issue, as whole processes and new products were being created through human’s intervention. Acceptance of this extension is still controversial, and lies at the basis of many discussions on the subject.

Let us see which international organizations deal with the protection of Intellectual Properties, and in particular the ones that do include biological material in their texts.

1. WIPO

The World Intellectual Property Organisation (WIPO) started in 1970, and turned into a specialized agency of the United Nations (UN) in 1974, with the mandate to administer Intellectual Property matters recognized by the Member States of the UN. It focuses on the promotion of Intellectual Property Rights throughout the world and international regulation and cooperation in that field. WIPO administers Unions and Treaties in the field of Intellectual Property, such as the previously mentioned Paris Union, the Berne Union and UPOV. Part of WIPO's work concentrates on helping developing countries with international standards of IP protection.

Earlier in time, Property Rights, which were related to trade of goods, became subject to the legislation of the General Agreement on Tariffs and Trade (GATT). This organization created the World Trade Organization with the signature of the Marrakech Convention in 1994. The WTO became the central negotiation platform for any issue related with trade, and so were the Intellectual Property Rights. One of the annex (1C) of the WTO Agreement is actually called the Trade-Related Aspects on Intellectual Property Rights (TRIPs) and is nowadays the major legal instrument in the area of IPR. TRIPs is explained more in detail below.

The lack of a legal compelling mechanism did not satisfy everybody, and countries with a strong Intellectual Property history found WIPO not sufficient. Since the agreement between the World Trade Organization (WTO) and the WIPO in 1995, its mandate is now to focus on the implementation of the Trade-Related Intellectual Property Rights Agreement within developing countries and other United Nations Members.

2. TRIPs

The WTO-TRIPs Agreement (hereafter referred to as TRIPs or the TRIPs Agreement) came into force by 1995, only a few years after the US request of defining Intellectual Property as a trade-related issue. The US claimed that low standards of IP protection formed a non-tariff barrier and thus hindered free trade, which is in turn prohibited by the WTO. The US also claimed that they were losing a huge amount of royalties due to the exclusion of biological resources from Intellectual Property laws.

TRIPs defines minimum standards of protection for Intellectual Property Rights. Members are thus free to define higher standards than TRIPs does. Interesting is also that whereas other agreements of the WTO focus on what members may not do, TRIPs says what should be done.

The main purpose of TRIPs is an economic one: Article 7 formulates the objectives of the Agreement, stating that "the protection and enforcement of Intellectual Property Rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge". There is no indication on how such welfare can be measured and on what can be understood with the mutual advantage of producers and users. Later in this paper, we will see how industrialized countries have interpreted and used this sentence for their argumentation.

All 135 WTO members must implement the Agreement. Developed countries were required to comply with all the provisions by 1 January 1996. Developing countries and countries in transition need to have it implemented by the year 2000, least developed countries (LDC's) by the year 2005. These transition periods may nevertheless not be used to reduce the level of protection (the so-called non-backsliding argument).

The whole Agreement is due for review in 2000. Article 27.3(b), which was found controversial by many parties, was due to be reviewed in 1999, four years after its entry into force. Negotiations on the contents and the interpretation of the Agreement are still going on.

The enforcement measures of the Agreement are highly restrictive. By putting IPR under the auspices of the WTO, member countries are enabled to compel trade sanctions against non-compliant countries. They can also apply a significant number of provisions, which are use in other areas of the WTO. For example, the Most-Favoured-Nation (MFN) Clause and the National Treatment Clause both forbid discrimination between countries' commercial partners and other member countries: "any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members." "Trade-related" disputes between WTO members over TRIPs Agreement are to be submitted to the WTO Dispute Settlement Body (DSB) and procedures. The DSB has the function of a juridical court for WTO Members. Challenging a country in front of the DSB can have far-reaching consequences. In the past, "trade wars" between countries over issues such as the import of bananas have led to high political tensions.

Two types of IPR can be discerned within the TRIPs Agreement:

1. Copyrights and rights related to copyrights, which relate to creations that result in (artistic) works such as books, music and artistic creations,
2. Industrial Property Rights, which refer to trademarks, geographical indications, industrial designs, patents, and industrial secrets.

In this paper, patents as defined in the TRIPs Agreement, are the types of IPR we are interested in. Patents protect ideas and their expression within new products and processes. TRIPs requires patents "in all fields of technology". They confer the inventor of new process and/or product exclusive monopoly rights with regard to its economic exploitation for periods up to 20 years. After 20 years, the invention moves to the public domain. Patent legislation requires that the claimed process and/or product meet three requirements. According to TRIPs, a product or process should therefore:

• Be new, that means not previously known;
• Involve an inventive step, i.e. it should not be an extension of something already existing ("non-obvious")
• be "capable of industrial application", that is "useful".

In some countries such as the US, IP protection meets higher standards than the ones in TRIPs. Longer terms of protection (minimum of 20 years) and the criteria of "discovery" (instead of the "narrower" invention) make it for the country more attractive to file a patent, which in then also protected for a longer period of time.

The TRIPs Agreement hereby requires that no invention should escape patent protection. A number of exceptions for patentability are stated in the Agreement:

1. Inventions contrary to ordre public or morality are prohibited; this includes inventions dangerous to humans, animals, plant life, health or the environment (Article 27.2).
2. Members also may exclude diagnostics, therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).
3. The third exception allows Members to "exclude plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes. However, any country excluding plant varieties from patent protection must provide an effective sui generis system of protection" (Article 27.3(b)).

"Members may exclude from patentability" implies that countries are entitled to exclude material, but that making it eligible for patentability is legal.

Sui generis means "system of its own kind", that is in this case plant variety-specific. Although a clear definition is lacking in the TRIPs text, the sui generis system is meant to serve as an alternative to the TRIPs patent system, and thus confers the opportunity to build a specific legal system, eventually based on other concepts than the patent system; it can roughly be defined as another kind of IPR for plant varieties. A detailed explanation on the possible interpretations of article 27.3(b) and the sui generis system is given more thouroughly in chapter V.

So, given the constraints of articles 27.2 and 27.3(a) and (b), any invention should be patented, except what may be excluded from patentability being:

• Plants and animals other than microorganisms;
• Plant varieties as far as protected by another kind of IPR;

• Essentially biological processes other than non-biological and microbiological processes for the production of plants and animals.

Above-mentioned articles are of major importance here, as they directly affect biodiversity, local communities and developing countries, but also many of the products and the processes elaborated by the biotechnology sector, such as medicine.

It is to be noted that protection of Intellectual Property has traditionally fallen under the domain of national legislation, whereas it now is a matter of international agreements. Developments in that field are unprecedented. The existing national laws have now to be adapted in such a way that the TRIPs’ minimum standards are met. As TRIPs provisions are in fact the copy of already-existing legislation in industrialized countries, legislation in those countries is conform the Agreement. In most developing countries though, where IP protection was basic or not existing at all, legislation has to be "upgraded" to meet the minimum standards of TRIPs.

Concerning the "sui generis" systems of protection, we should bear in mind that some countries already have alternative systems for their plant varieties since years, though not meeting the TRIPs requirements. Plant Variety Protection (PVP) and Plant Breeders’ Rights (PBR) (see below) are examples of already existing protection in that specific area.

For the moment speaking, only 21 of the developing countries member of the WTO have a Plant Variety Protection in place, thereby leaving 76 without IPR protection for plant varieties (GRAIN, 2000). Serious questions can be raised around this inequality. It also remains to be seen if such existing systems of protection are in line with TRIPs requirements.

A convention that originally provides Intellectual Property Rights in the area of plant resources is the International Union for the Protection of New Plant Varieties (UPOV).

The first UPOV Convention, signed in Paris in 1961, came into force in 1968. It has been modified since then, in 1972, 1978 and 1991. UPOV counts 44 members (by 20 Dec 99) and has a secretariat inside WIPO in Geneva, which provides administrative and financial facilities. UPOV confers plant breeders the possibility to hold exclusive rights over new plant varieties.

To be protected, varieties need to meet the "DUS" criteria:

• Distinctiveness (be distinct from existing, commonly known varieties),
• Uniformity (all the plants in question should display the same characteristics) and
• Stability (the variety should display the same characteristics in each successive generation);

Varieties should also be new, i.e., they must not have been commercialized prior to certain dates (Gaia and Grain, 1998b).

Members are either party of the 1978 or 1991 Act. Any country wishing to access now has to join the 1991 Act. Countries had till 1999 to join that Convention. Since the first Convention, rules have become a lot stricter than they used to be.

The 1991 Convention especially is stricter in the way that it prevents genetic engineers from adding single genes to existing varieties and exploiting the modified variety, without recognizing the contribution of the original breeder (Tansey, 1999). Table 1 shows the changes that have been built in the UPOV 1991 version. The length of the protection has also been upgraded to 20 years since 1978. Also, the convention does not explicitly require recognizing the farmers’ privilege, disabling thereby farmers to freely save seeds for further planting. Many countries do so, though. Moreover, a breeder has rights on the variety and the harvested material. Gaia and Grain (1998b) comment: "If the farmer sowed his or her field to a PVP variety without paying the royalty fee, the breeder can claim ownership of the output (e.g. wheat) and the products of the output (e.g. wheat flour)".

Double protection through simultaneous PVP (Plant Variety Protection) and patenting of the new obtained varieties is also possible under 1991, but not under 1978.

The principle of "essential derivation" is included in 1991 version, whereas it was excluded form the 1978 version. It refers to the "genetic distance" between a "source" variety and the newly obtained variety; the principle seems unclear in terms of what is legally acceptable. If the relationship with the previous variety is found too close, then rights over the newly obtained variety are "dependent on" the rights over the source variety- that means that rights conferred to the breeder over a newly obtained variety are similar to his rights over the source variety. An essentially derived variety thus still falls under the first breeders’ rights.

Currently, UPOV urges developing countries to become a member, as a way to comply with TRIPs requirements. It is also trying to make itself the logical sui generis options for the TRIPs Agreement (Gaia and Grain, 1998b). UPOV has recently reopened the option of acceding the 1978 Act to India, Nicaragua and Zimbabwe, even though it was officially closed for accession in 1998 (GRAIN, 2000). This could mean that the 1991 version has not gained enough support from developing countries: many of those countries have a substantial informal sector, of which the rights have been cut down in the 1991 Convention. Providing more rights to breeders is not in the benefit of such countries. The attempt of WIPO to help and harmonize developing countries’ IPR systems with UPOV 1991 might not be welcomed as much as thought.

Critiques of the UPOV argue that the DUS criteria enhance genetic erosion, by stimulating the replacement of local varieties by modern varieties. They also say that recent restrictions in the Act make the protection more or less equal to patent rights, broadening rights of breeders at the expense of farmers. For these reasons, among others, they argue that it does not fit as a sui generis system.

1. Conclusion

In this chapter, we have seen different international legal contexts in which the conservation of biodiversity, the recognition of Indigenous knowledge and higher standards of Intellectual Property protection are regulated. It appears that the different texts do not represent nor intend to protect the same interests. Although it has been determined that diversity of species is essential to human being, it seems that regulations promoting uniformity of crops, led by commercial interests, have more potential to be formally recognized and supported.

In the next chapter, I will focus on a number of concepts that are present in CBD but that are left out of TRIPs and/or UPOV. Moreover, I will present the criticism that is being expressed about certain provisions. The idea is that disagreement on definitions and concepts leaves a narrow path open to negotiations and adaptations of texts to the own benefit.

II

Conflicts between the agreements

1. Introduction

In the previous chapter, I have exposed a number of texts that regulate the access to genetic resources and Intellectual Property Rights, on different levels and for different purposes. The texts have various intentions and protect different peoples and interests. Simultaneous implementation is therefore sometimes difficult. The co-existence of such agreements is not without tensions. In the particular case of the CBD, UPOV and TRIPs, a certain number of problems arise. In this chapter, it is the purpose to explain how these agreements conflict with each other and also to show that elements of laws regulating IPR do not meet the developing nations’ interests. Also, some provisions that at first sight seemed fair will be looked at more closely, as they might not be as beneficial as formerly thought.

The Convention on Biodiversity, aiming at protecting natural resources, and the TRIPs Agreement, aiming at promoting free trade have obviously different backgrounds, whose interest tend to have opposite directions. Free trade parties contradict this argument, though. Still, the CBD recognizes a number of principles that are overlooked in the TRIPs Agreement and/or the latest UPOV. They mostly concern issues that primarily protect people, their resources and lifestyles. The essential oppositions are presented here.

 

2. Conflicts between the agreements

1. Benefit-sharing

The benefit-sharing mechanism, a central thought in the CBD, is not recognized in TRIPs. It includes the idea as the material is found in the South and that the profits go to the North, then developing countries should be rewarded or compensated for making the resources available. Roughly spoken, as the biodiversity-rich countries are located in the South, and the financially-rich countries in the North, the flows of genetic resources is going South- North, while there does not seem to be much of financial benefits going to the South, a few examples left aside. The issue here is that developing countries would like to see some form of compensation for the use of the resources originating from their territories, especially if those resources can lead to enormous benefits for life-science companies. The Convention on Biodiversity clearly asserts that mechanisms of benefit-sharing should be implemented (but not how), meaning that countries must ensure that benefits arising from the use of biological resources are shared with the communities and peoples from whom they have been taken. Some suggestions have been made in this area, such as the system of Material Transfer Agreements (MTAs). They are intended to work as a contract between researcher and safeguarders (buyer and seller) of the resources. Agreements can be made on how material will be used and how a community can share the benefits.

Criticism on this concept is that such contracts consider material as a commodity rather than knowledge, and overlook the intrinsic value for local communities. Besides, contracts between the private sector and communities or institutions are seldom equitable: the percentage of royalties the communities should get does not reflect in any means the benefits for the company. A percentage accorded to a community can also be interpreted as a percentage of the share an institution holds from the contracting company, which means a lot less than a percentage of the company’s profits due to that resource (Gaia and GRAIN, 2000a). Also, rewards and benefits are based on a potential monetary value of the material. The question is raised how such value is calculated and how fair benefit sharing can occur. Another problem is that expectations in terms of expanded production and export benefits of communities that sign a contract with companies are often not met. There are numerous examples showing that companies, once they have found the resource, synthesize it and produce their own in laboratories (ActionAid, 1999b). The local communities and research institutions that were eager for more income, end up with expensive infrastructure they don’t need any more.

Another criticism is that the rush for Indigenous-held knowledge and resources has turned into a race for patents, and not for the substance the patent is protecting.

So, what seemed to be a fairness contract in CBD is now being criticized by the defenders of community rights and public interest: accepting the mechanism of benefit sharing in fact means that the idea of a resource as a commodity is accepted. In doing so, it justifies bioprospecting, which in turn those same defenders reject.

The TRIPs Agreement does not mention any provision recognizing the principle of benefit-sharing or any regulation between the patent holder and the donor of the material (GAIA foundation and GRAIN, 1998a). The UPOV Convention doesn’t either mention anything like benefit-sharing. The absence of such mechanism from international conventions has long time raised concerns amongst defenders of developing countries’ and public’s interests. The absence of sharing mechanism in IP regulating laws and the simultaneous explicit mentioning of the same principle in CBD shows on the one hand a conflict between two agreements. But on the other hand, given the criticism on benefit sharing, it shows that the principles of the CBD may not conflict that much in starting point with the ones of TRIPs as is commonly advocated.

Concluding on this topic, we can say that whereas the benefit-sharing mechanism seemed like a fairer deal than open access, the practical outcome does not seem to be satisfactory in many cases. It is nevertheless one way in between the agreements to achieve a better deal than unlimited access. It requires though that resources are considered a marketable commodity, which is in turn rejected by many.

2. Sovereignty over genetic resources

There is also some antagonism with TRIPs about the principle mentioned in the CBD, stating that countries have sovereignty over their genetic resources. According to article 3 of the Convention, states have "the sovereign right to exploit their resources pursuant to their own environmental policies".

The TRIPs Agreement, by making biological resources subject to private Intellectual Property Rights with the intention of promoting free trade, wishes to facilitate the access to these resources, and overlooks the sovereignty principle.

The concept of sovereign rights over resources, replacing the concept of common heritage, allows countries to regulate the access to them, making their national laws prevailing, including provisions concerning the restriction to exploit their resources. It is questionable though, if sovereignty of states over their resources is beneficial to the resources and the communities. No need to say that when it comes to financial benefits that can be made out of the exploitation of resources, states too are interested in commerce. In this context, one should think that resources in the hands of dishonest officials are not that protected, especially when it becomes a sought after, commercially interesting item. If the state authorities decide to allow access in exchange for financial support, then the purpose of the CBD can be endangered.

Some improvement could be achieved though: measures could be suggested in order to emphasize and compel the sovereignty of countries over their resources, in such a way that local communities still can decide over their destination. The question though is what kind of provision will achieve that. The suggestion an sich will not change anything to the situation. As TRIPs does not prohibit the protection of "additional subject matter", one could think of including community representatives in authorities deciding on the use and destination of resources. Such regulations should then be included in access laws.

3. Prior Informed Consent/Mutually agreed terms

The CBD also states that access to genetic resources should be subject to "Prior Informed Consent" (PIC), meaning that authorization of the right holder should be sought after and obtained in order to access the resource and/ or the knowledge.

TRIPs on the contrary pursues free access and does not mention this concept. Implementation of such a mechanism would give traditional communities the right to approve or deny the access to researchers and bioprospectors. Access should also be on "mutually agreed terms" (CBD). States thus can deny access if they feel exploitation is contrary to their national interests.

In this case, it is clear that a conflict opposes CBD and TRIPs.

4. Private and collective rights

TRIPs also negates collective rights, by stating in the preamble that "Intellectual Property Rights are private rights". This is according of critics of TRIPs a major shortcoming and shows disrespect for the situation of developing countries. Indeed, many communities share their resources, knowledge and cultures among themselves. The individual appropriation of items like in western cultures is a lot less common in developing countries. The negation of collective rights in TRIPs shows how inappropriate the Agreement is for countries other than the western industrialized ones. The negation of collective rights is seen as a big issue for developing countries. Whereas they are obliged to protect their plant varieties through patents or the sui generis system, they are unable to protect them in a way that fulfills cultural traditions, such as community rights. The issue of collective rights and sui generis will be explained more in detail at the end of the paper.

5. Industrial applicability

TRIPs also formulates that Property Rights are recognized if they serve knowledge and innovation, as a requirement for resources to be patentable (the industrial applicability). This means that a product or process only has legal recognition if it has a commercial value and thus neglects the fact that many varieties grown by farmers practicing subsistence agriculture are not meant for commercial purposes. TRIPs also states in a footnote that "capable of industrial application" and "useful" can be considered as synonyms. But, a distinction can be made on whether a resource is commercially useful or socially useful. While creating some confusion, it seems that there is an opportunity here to play with the criteria for patentability.

In the same context, the IUPGR protects plant genetic resources for "plant breeding and scientific purposes". So, a majority of the agreements discussed in the context of the protection innovations and/or biological resources overlook the non-commercial value of those resources. This while the CBD emphasizes that the rights and customs of Indigenous peoples should be respected, which includes the respect of their traditional systems and varieties.

1. Conclusion

Within the various legal frameworks, it seems that there are many conflicts and oppositions. They clearly show differences in the way different parties approach biological resources. For one agreement, those resources have a golden (commercial) value, and any restriction in their access infringes free trade. For the other, resources are the continually preserved means of subsistence for many countries and part of a culture. The conflicts raise concerns, as we have seen.

The list of conflicts and concerns about privatization of genetic resources, collective versus individual rights, sovereignty principles and others clearly show contrasts between the laws regulating access to biodiversity and Indigenous knowledge on the one hand and Intellectual Property on the other hand. However, it is not adequate to consider TRIPs and UPOV as the bad guys and CBD and IUPGR as the good guys. As we have seen, in some cases oppositions are not that obvious; even more, some concepts such as considering resources as a commodity do not seem very different among the different agreements. This does not mean however that we should agree with such views.

We need to bear in mind also that intentions in both CBD and TRIPs have different directions, but many not opposite. It is logical in some way, as they do represent other peoples’ interest. However, this does not mean they can infringe on already established rights, nor overlook principles and cultures established long ago. In working towards a better position for the purpose of the conservation of biodiversity and the protection of traditional knowledge, developing countries should be aware of the contents of the different agreements and at the same time be critical of what the underlying thought is of such agreements.

Nevertheless, little hope is expressed that conflicts between the agreements can be curbed somewhat towards the interests of developing countries. Provisions in CBD may offer some space and flexibility to the defenders of environment and cultural rights. Also, a lack of consensus between the WTO members led to improperly defined terms and concepts. Some room is thus left over within and between the agreements, which leaves a narrow path open to still protect biodiversity, Indigenous knowledge, the interests of developing countries, without harming the innovation efforts of the industrialized nations. That is, speaking optimistically. Lots of political pressure and advocacy work is needed to achieve small changes and recognition of the developing countries’ interests. Protests against such far-reaching treaties are growing, also. The issue here is that because of TRIPs restrictions, there is very few opportunity to carry out the provisions of the CBD. Countries do not face sanctions if they do not live up to CBD commitments, while they face huge trade sanctions if they are found to violate TRIPs. There is thus inequity in the weight of TRIPs and CBD, making it more difficult to use CBD provisions such as benefit-sharing and sovereignty over resources to be implemented and carried out.

Industrialized countries have managed to pressure other WTO members to implement TRIPs, with all its controversial articles. In the next chapters, I will explain what arguments they have used to achieve this. I will also show that those arguments are refutable. Then, I will recall the conflicts mentioned in this chapter to find a way in which developing countries nevertheless can use provisions in such a manner that their interests are somewhat met and their cultures preserved.

III

The economics of Information and IPR

 

 

In the previous chapters, I exposed the legal frameworks around protection of biological resources, Intellectual Property Rights and the potential conflicts between them. TRIPs is part of the WTO and thus considered a trade-related agreement; it is therefore important to understand the economic arguments behind its implementation. This chapter aims at giving some background information on the protection of knowledge. It is part of a wider section on economic arguments used to support and counter the implementation of TRIPs. Chapter III describes the upcoming popularity of information, knowledge and their simultaneous protection. In Chapter IV, I will discuss more in detail the argued relationship between higher standards of IP protection and a number of specific economic indicators, such as Foreign Direct Investment, trade flows, and levels of R&D. The arguments brought up will also be criticized. In chapter V, I will pay attention to the reasons why TRIPs is considered inadequate for the developing countries’ situation.

Let us first pay attention to general developments in the field of information, knowledge and IPR.

 

1. The information age

Many authors share the common view that information has gained substantial economic value. Humans have now entered the "information age", as the term commonly designating the years shaped by massive communication improvements, from cellular phone to spy systems for all kinds of communications including trade secrets (Echelon), the web and other instruments. Laws for the protection of consumers’ privacy against avid seekers emphasize the race for information and knowledge. The popularity explosion of the Internet and its key role in modern education also show the growing importance of information. Knowledge is not only an asset. It is also becoming a growing part of human capital, and therefore considered as marketable commodity.

That we have entered the information age is especially true for the agricultural sector. Whereas a few decades ago, the sector’s output was defined by labor and mechanical work, it has now become knowledge intensive. According to Vernon Ruttan of the University of Minnesota, differences in agricultural yields in the 21^st century will be knowledge-based, defined by sciences, technologies and human capital (Ruttan, 1997). The knowledge intensity required in this sector has probably emphasized the technological gap -and thereby the effectiveness- in agricultural sectors between developed and developing countries even more. Moreover, biotechnology has become a substantial part of knowledge-intensive agriculture. "It is not an exaggeration to suggest that biotechnology is poised to become the most important new general purpose technology of the first half of 21^st century" (Ruttan, 1999). Discussions around the medical potentials of the Human Genome Project emphasize the importance of those discoveries and of biotechnology as a way to access that information. Thus, within the trend of more information, biotechnology has become a cornerstone.

What we see is that on the one hand, knowledge is becoming more specific, more intensive and fits into a knowledge- driven economy. Such knowledge is expensive, and therefore becomes scarce because not everybody can afford it. Besides, it is often protected by patents and thus is not available for the financially weaker. On the other hand, it seems like another kind of knowledge, that could be "informal" or traditional knowledge, does not fit into this scheme and is being marginalized: It has in terms of current thinking no economic value because it is not marketable/profitable. The gap between those two kinds of knowledges is growing and is driven by profitability motives. Because many cannot access the expensive knowledge, we could state that such knowledge simultaneously produces ignorance about other kinds of knowledge. Social differentiation thus becomes and intrinsic part of "the information-age".

The potential benefits one could possibly make out of the control of information are numerous. The recent emergence and (contested) popularity of the so-called new economy, the Information and Communication Technology (ICT) companies and the lawsuit against the Microsoft Corporation illustrate this, among other cases.

The protection of knowledge created by individuals and companies has as we have seen in the previous chapter been regulated through different agreements governing laws for Intellectual Property. There are also economic reasons that have contributed to the increased attention to the protection of information, and specifically Intellectual Property Rights. The upcoming paragraphs describe those arguments.

 

2. Why protect knowledge?

Arguments about the costs and benefits of protected knowledge are numerous, so it is useful here to present a short theoretical background about the nature of knowledge and information, together with the significance of IPR for its dissemination.

As we have seen above, information and knowledge have become scarce and expensive, intangible assets. At the basis of the discussions about the protection of knowledge and knowledge-intensive goods lays the question about the free dissemination and availability of public goods. In many societies, information is considered a public good, that everybody should be able to access in one way or the other.

A public good has two characteristics.

1. It is non-rival, meaning that its use by one person does not compete with somebody else’s use of it, and
2. It is non-exclusive, meaning that one person cannot exclude somebody else from its use.

Let us see the application of such theory to knowledge and "creations of the mind".

The fulfillment of both conditions is not evident in all cases. For someone to know something does not inhibit another to possess the same knowledge. But non-exclusiveness is not as obvious. Generators of knowledge can choose to prevent others from accessing it, unless they are willing to pay, through patents for example. This is becoming more difficult though since the dissemination of knowledge on Internet (Pinstrup-Andersen, 2000). So the public status of knowledge is theoretically in some cases subject to discussion.

1. Knowledge as a public good

If we suppose that knowledge is a public good (which has been for a long time a worldwide accepted concept) it implies inter alia that it is freely available in nature. Following a theoretical argumentation, it means that its marginal cost is close to zero and that its production is not rewarded. The incentive for creating new knowledge will thus be smaller and the market will subsequently under-invest in that segment (Maskus, 1998a); no new knowledge is being "created". The pro-protection side for instance uses this rationale. Whether it is practically true is questionable; inventions have also seen the light without a market incentive.

Purely theoretically and following this line, in certain cases under investment can have negative effects. For the agricultural sector in particular, innovations are essential as they play a substantial role in the fight for global food security. It is feared that the slow production of new knowledge in that sector will not be sufficient to meet the growing demand for food in the world. So, it has been regarded as necessary to appropriate knowledge, in order to create an incentive to produce more of it. Earlier, I mentioned the marginalization of informal knowledge. In fact, theories on the need to protect knowledge as an incentive to create anew concentrate on the formal knowledge. They overlook the need for other kinds of knowledge and stimulate the marginalization of the informal knowledge. In the agricultural sector, we see that laboratory-made inventions start replacing the informal innovations.

The supposed role of IPR in the former perspective is thus to give knowledge economic value, which will benefit its creators and consumers.

Van Wijk (1996) argues that IPR stimulate innovation because they increase the costs of imitation. Wide-scope patents, protecting both product and process, form a barrier to competitors to imitate the innovation. They will thus be stimulated to produce their own.

Furthermore, unlimited access to and use of information (or any other kind of good) leads to free-rider behavior. Using someone else’s inventions without compensating the creator means that the latter people can copy information without having to do any investment and research. Many see this as unfair.

Free-riding behavior has multiple sides. One of them is that it has enabled developing countries to develop and use technologies that are more affordable, helping them in their overall economical development process. It is still seen as an essential way to access modern development, without which they would not have been at the same level of development as today. "Yet copying to catch up is the only way to catch up. Every country that has caught up has done it by copying" says Thurow (1997). On the other side, innovators feel that free riders violate the owners’ creativity and illegitimately use somebody else’s knowledge. Many developed countries feared that other countries would copy their efforts and investments.

2. Knowledge as a private good

The protection of knowledge and inventions is thus advocated by those sectors in economy that are increasingly dependent on the returns on investment that arise out of the payment for knowledge. Here are some examples.

Protection of knowledge and innovations through IPR ensures that companies and other innovators that invest huge amounts of money for R&D are both rewarded in financial benefits from their investments. Innovators, without IP protection, would not be able to recoup their costs. This is the case for the life-science industry for example, where the average expenses are enormous. Pre-tax costs for making and market a new drug are estimated around US$500 million by PhRMA, the US group of pharmaceutical industries. A significant part of the costs needed to develop a single new drug are spent on clinical trials; this procedure is supposed to be taking 50% of the time of the total development. Besides, the time needed to develop a new drug has expanded, from an average of 8.1 years in 1960s to 14.9 in the 1990s (PhRMA, 1999, in Juma, 1999). Industries even say to be financially