INTELLECTUAL PROPERTY AND BIODIVERSITY : ECONOMIC PERSPECTIVE

Introduction

Developing countries were forced during the Uruguay Round of negotiations on the General Agreement on Tariffs and Trade (GATT) to support the inclusion of IPRs in the multilateral trading system. The key claim used to do this by developed countries was that inadequate IPR security serves as an obstacle to free trade. The US Trade Representative reported in 1988, in the early stages of the talks, that nearly 200 transnational companies housed in the United States were short-changed by countries with inadequate IPR systems of US$24 billion. In the South, these were mainly poor countries.

Thus, an ambitious movement started to put the IPR systems of all countries up to the same 'minimum' standard of security through GATT. In 1994, as part of the Uruguay Round package agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) was concluded, transforming GATT into the World Trade Organization (WTO).

A strong North-South dividing line of competing interests was exposed in the TRIP negotiations, in which only a limited subset of GATT member states participated. The proposal to expand patent rights under the new trade regime to plants, micro-organisms, biotechnology methods, food, and basic medicines has posed a range of ethical and legal issues for many developing countries.

It was, however, mainly the economic aspects of the IPR that fuelled the resistance of the South to the TRIPs Agreement. Objections were posed on: the imposition of a 'one-size-fits-all' approach to IPR among highly disparate economies; the risk of granting monopoly rights in the food, health, and energy sectors; the increased drain on foreign reserves; and how stronger IPRs will consolidate the North-South technology gap under worsening conditions of access to scientific knowledge.

IPR v. Biodiversity

There are two interesting clauses in the CBD relevant to IPRs." Article 22 states that the provisions of the CBD do not impact the rights and obligations of countries under "existing international agreements, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity."

But the real effect of IPRs on biodiversity needs to be investigated in order for this claim to be upheld. This is a challenging topic, as many effects are difficult to determine. The following, however, must be considered

• Current IPR regimes have allowed industrial and commercial interests to take advantage of the wealth and expertise of resource-rich but economically poor countries and communities, to further impoverish them and deny them the benefits of technological innovation.

• The pattern of homogenization of agricultural production and medicinal plant use systems is likely to be greatly accelerated by IPRs. For example, in agriculture, any business that has invested massive amounts of cash purchasing an IPR will want to sell its varieties in as large an area as possible. Severe displacement of local crop diversity might result (though, of course, IPRs would not be the only factor);

• Species-wide IPRs (such as those for transgenic cotton and soybeans) could increasingly suppress the production of both public sector and small-scale private sector crop varieties;

• It will significantly raise the debt burden of many countries to have to pay large royalties to industrial countries and corporations.

There are several clauses in TRIPs that can be used by communities and countries interested in defending their interests against those of powerful industrial and commercial powers, while they essentially support the further extension of current IPR regimes:

Article 8 authorizes legislative measures to protect public health/nutrition and the public interest; while environmental protection is not expressly included in this provision, it may be viewed as a significant part of the "public interest." Sadly, "the provisions of TRIPs," are subject to this clause, making the interpretation of its applicability an open issue;

Article 27(2) requires the exclusion from patentability of innovations where there is a need to avoid commercial usage in order to protect against 'significant environmental discrimination'.

IPR Regimes

It is possible to use a mixture of the related clauses in TRIPs and the CBD as a rationale for improvements to current IPR regimes that can help protect the public interest. For example, several people have argued that the following details should also be needed, apart from the normal requirements of novelty, etc. that are required for an IPR application: Source of the material or knowledge (country/community/person) that has gone into the product/process for which an IPR is claimed;

• Evidence of the country and culture of origin's prior informed consent (Articles 15(5) and 8(j) of the CBD);

• Details, where applicable, of the benefit-sharing agreements, entered into with the community of origin (Article 8(j) CBD)

Conclusion

One question often raised by those opposed to the global imposition of current IPR regimes is what incentives, if IPRs are not granted, would exist for continuous innovation. This query assumes that the monetary advantages resulting from IPRs are the main or primary motivation for innovation (by providing a market monopoly for a period of time). The evidence has not confirmed this assumption. In the past 65 years, a recent study reviewing the US Plant Patents Act concluded that the Act did not encourage breeding as a profession, nor did it stimulate organisms, genetic, or even market diversification.

Innovation has been born of reasons other than personal monetary benefit, including sheer survival, goodwill, social respect, and strength, for the majority of humanity's life on earth. The fact that Asian farmers could grow rice from a single species, is proven by hundreds of thousands of varieties that suit a range of ecological and social circumstances.

BY -

Saumya Krishnani