The TRIPS Agreement (TRIPS) is facing a crisis of legitimacy. In the six years since it came into force, there has been ever-increasing evidence of social, environmental and economic problems caused by the implementation of TRIPS. Yet, little, if any, of TRIPS' promised benefits of technology transfer, innovation and increased foreign direct investment has materialised. Already there is worldwide public opposition to TRIPS for its role in patenting of life and in reducing access to medicines.
For many hundreds of civil society groups and NGOs around the world, TRIPS represents one of the most damaging aspects of the WTO. The legitimacy of the WTO is closely linked to that of TRIPS. TRIPS has, in fact, given the multilateral trade system a bad name. Contrary to the so-called free trade and trade liberalisation principles of the WTO, TRIPS is being used as a protectionist instrument to promote corporate monopolies over technologies, seeds, genes and medicines. Through TRIPS, large corporations use intellectual property rights to protect their markets, and to prevent competition. Excessively high levels of intellectual property protection required by TRIPS have shifted the balance away from the public interest, towards the monopolistic privileges of IPR holders. This undermines sustainable development objectives, including eradicating poverty, meeting public health needs, conserving biodiversity, protecting the environment and the realisation of economic, social and cultural rights. We, the undersigned, call on WTO members to take action before more damage is done by TRIPS. We believe that a fundamental re-thinking of TRIPS in the WTO is required. We, therefore, urge WTO members to initiate a process of reviewing and reforming TRIPS at the Doha Ministerial Conference. For us, a major indicator of the success or failure of the Doha Ministerial Conference is whether WTO members take serious steps to reform TRIPS.
PATENTS ON LIFE, FOOD SECURITY AND BIOPIRACY
At the heart of debates surrounding the patenting of life and its adverse effects on food security, farmers' livelihoods, local communities' rights, sustainable resource use and access to genetic resources is the requirement of patent protection for life forms and natural processes in Article 27.3(b) of TRIPS.
Patents on seeds and genetic resources for food and agriculture threaten sustainable farming practices, farmers' livelihoods and food security. Farmers using patented seeds are deprived of their right to use, save, plant and sell their seeds. Article 27.3(b) also requires protection of plant varieties but gives WTO members the choice between patent protection, a sui generis system or a combination of both, for doing so. However, the option to protect plant varieties under a sui generis system is being reduced to compliance with the UPOV Convention, through pressure on developing countries from industrialised countries, the global seed and biotechnology industry, UPOV itself and the WTO Secretariat. Increasing consolidation of multinational corporations in the seed, agro-chemical and food processing industries has further concentrated the control over seeds, seed choices and ultimately, food security into the hands of a few corporations, and out of the hands of the farming communities. The patent system is also facilitating the theft of biological resources and traditional knowledge. The imposition of patent rights over biological resources and traditional knowledge unfairly deprive communities of their rights over, and access to, the same resources they have nurtured and conserved over generations. This contradicts the key principles and provisions of the Convention on Biological Diversity (CBD). The race to patent genes, cells, DNA sequences and other naturally occurring life forms has blurred the crucial distinction between discoveries and basic scientific information, which should be freely exchanged, and truly invented products or processes meriting patent protection.
Developing countries' attempt to undertake a substantive review of Article 27.3(b) is at a stalemate. The review process has opened up to issues of substance but the developed countries are not taking seriously developing country proposals for revision. The Africa Group, in particular, has voiced clear opposition to the patenting of life. The Group had called for a decision at the Seattle Ministerial Conference in 1999 to clarify that "plants and animals as well as micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable". The Africa Group proposal has gained broad support from other developing countries in the WTO, as well as civil society groups and NGOs around the world. There is an urgent need to commence a serious, substantive review of Article 27.3(b).
NGO PROPOSALS FOR REVIEW OF ARTICLE 27.3(b)
We, therefore, call on the Doha Ministerial Conference to:
• agree to the immediate undertaking of the mandated and substantive review of Article 27.3(b). The review must be conducted on its own terms, outside of the review of Article 71.1 of TRIPS or the wider WTO negotiations, and should:
– act on the Africa Group proposal to clarify that plants, animals, micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable;
– respect the right of developing countries todetermine the need for appropriate sui generis laws that effectively protect community and farmers' rights, and promote agricultural diversity and sustainability;
– in line with the clarification that living organisms and their parts are not patentable, further ensure that the provisions of Article 27.3(b) of TRIPS are consistent with the CBD provisions on national sovereignty, prior-informed consent and benefit sharing, with regards to access to genetic resources and traditional knowledge; and
– take account of, and support the current negotiations in FAO's International Undertaking on Plant Genetic Resources for Food and Agriculture to restrict or ban intellectual property rights on plant genetic resources for food and agriculture within the multilateral system, in the interests of long-term food security and to prevent biopiracy.
In the interim, WTO members should:
• extend, with immediate effect, the implementation deadline for Article 27.3(b) for at least five years after the completion of the substantive review of Article 27.3(b);
• undertake not to apply bilateral pressure on developing countries to adopt the UPOV Convention as the sui generis model or other TRIPS-plus measures; and
• grant the CBD Secretariat observer status in the TRIPS Council.
TRIPS AND PUBLIC HEALTH
Strict patent regimes required by TRIPS allow pharmaceutical corporations to set prices of patented medicines at high, often exorbitant levels. Under TRIPS, the 20-year minimum patent protection period for products and processes confers exclusive monopoly for the manufacture, distribution and sale of medicines. The monopolies granted by TRIPS allow pharmaceutical giants to suppress competition from alternative, low-cost producers and to charge prices far above what is reasonable.
Appropriate national legislation, providing for compulsory licensing and parallel imports, is needed to ensure that chemical intermediates, raw materials and finished pharmaceutical products are available at competitive prices in the world market. Measures – such as compulsory licensing, parallel imports and other exceptions to patent rights – are allowed under TRIPS. Despite this, and the clear need for developing countries to exercise their rights for compulsory licensing and parallel imports to enable access to affordable medicines, bilateral pressures and bullying tactics have been used to prevent developing countries from implementing TRIPS provisions on compulsory licensing or parallel imports. Such bullying is outrageous and unacceptable.
WTO members are currently engaged in a series of Special Discussions on TRIPS and Public Health. Initiated by the Africa Group, the process is aimed at clarifying the role of intellectual property rights and their impact on public health and access to medicines. Developing countries, signaling their intent to ensure a tangible outcome to the process, have proposed that the Doha Ministerial Conference takes steps to endorse a clear and unambiguous affirmation that "the TRIPS Agreement does not in any way undermine the legitimate right of WTO Members to formulate their own public health policies and implement them by adopting measures to protect public health".
The overwhelming majority of developing countries in the WTO support this proposal. To give practical effect to the affirmation, the developing countries have further called for the Doha Ministerial Declaration to endorse the following elements; including the use of Articles 7 and 8 in the interpretation of all provisions in the TRIPS Agreement; the right of countries to determine the grounds on which compulsory licenses may be issued; recognition of compulsory licenses issued to a foreign manufacturer; the right to parallel importation; a moratorium on all dispute actions aimed at preventing or limiting access to medicines, or protection of public health; and the extension of transition periods for developing and least developed countries.
NGO PROPOSALS FOR TRIPS AND PUBLIC HEALTH
We fully support the developing countries' proposal that the Doha Ministerial Conference affirm the primacy of public health over TRIPS. We call on all WTO members not to stand in the way of such an affirmation being made in Doha. We further call upon the WTO members to:
• strengthen the existing public-health safeguards within TRIPS to ensure that governments have the unambiguous right to override patents in the interests of public health;
• adopt a pro-public health interpretation of TRIPS through the flexible use of existing safeguards and exceptions. These include upholding the right of countries to grant compulsory licences for local manufacturing, import and export, and their right to implement parallel importation measures;
• remove the burdensome conditions that governments have to fulfil in the issuing of compulsory licences, so that licences can be granted on a 'fast track' basis for public-health purposes;
• extend the implementation deadlines within TRIPS for developing countries in relation to patent protection (both product and process) for medicines;
• agree not to exert bilateral or regional pressure on developing countries which take measures to exercise their rights under TRIPS to protect public health and promote access to medicines, nor to pressure them to implement unnecessarily strict and potentially harmful intellectual property protection standards or 'TRIPS-plus' measures;
• observe, with immediate effect, a moratorium on dispute settlement action against developing countries, which hinders their ability to promote access to medicines and protect public health (including the use of compulsory licence and parallel importation measures);
• allow developing countries the options of restricting the scope and length of patent protection, including an outright exemption of medicines from patenting on humanitarian or public-health grounds, in order to meet the objectives of saving lives, countering and controlling epidemics, and ensuring that poor people obtain access to essential medicines for the treatment of poverty-related diseases.
DOHA: TIME FOR A FUNDAMENTAL RE-THINKING OF TRIPS
We believe that the protection of intellectual property rights is not an end in itself. The objectives of technological innovation and the transfer of technology (Article 7 of TRIPS) should place intellectual property rights protection in the context of the public interest of social and economic welfare. Furthermore, TRIPS also acknowledges the right of WTO members to adopt measures for protecting overarching public policy objectives, such as public health and nutrition, and socio-economic and technological development, and to prevent abuse of intellectual property rights, and anti-competitive practices (Article 8). Yet, these fundamental objectives and principles have been blatantly ignored by certain developed countries in their interpretation and implementation of TRIPS. Attempts by these developed countries to force developing countries to adopt such flawed interpretations will only perpetuate the crisis of legitimacy that TRIPS is already facing.
As can be seen above, civil society groups and NGOs have made specific demands relating to the issues of patenting of life and access to medicines. However, we note that common themes exist in the different campaigns relating to patenting of life, biopiracy and food security, and public health and access to affordable medicines. We all share the common view that TRIPS represents a significant shift in the balance in intellectual property rights protection that is too heavily in favour of private right holders and against the public interest.
NGO DEMANDS FOR THE REVIEW AND REFORM OF TRIPS
We, the undersigned organisations, call on the Doha Ministerial Conference to:
UNDERTAKE A FUNDAMENTAL REVIEW AND REFORM OF TRIPS
• Undertake a review of TRIPS under Article 71.1 to take into account new developments that may warrant modification or amendment of TRIPS. Such a review should include a critical impact assessment of TRIPS on food security, public health and nutrition, the environment, and its implications for social and economic development, with a view to revising TRIPS. An Article 71.1 review is mandated within TRIPS, and should therefore, be undertaken on its own merits so as not to be subsumed and traded-off as part of the wider WTO negotiations.
• As part of the review, clarify that all provisions of the TRIPS Agreement must be interpreted in the context, and against the background, of Articles 7 and 8 of the TRIPS Agreement. WTO members should put into operation the objectives and principles enshrined in Articles 7 & 8 of the TRIPS Agreement to ensure the primacy of public interests over the security of private intellectual property rights. Developing countries must be given maximum flexibility implementing TRIPS. They should not be restricted in their ability to adopt options or measures for implementing TRIPS that enable them to appropriately balance the overarching public policy objectives against private interests. Developing countries should also be given flexibility to reduce the scope and length of intellectual property right protection, including the right to exempt (or have a longer transition period for) certain products and sectors, on the grounds of public welfare and the need to meet development objectives.
END BILATERAL PRESSURES AND BULLYING TACTICS
• Affirm a commitment not to apply bilateral pressures or tactics on developing countries to give up the use of options available to them under TRIPS. Similarly, pressures should not be put on developing countries, either through bilateral means or regional arrangements or in the WTO accession process, to force them into implementing 'TRIPS-plus' measures or standards higher than those in TRIPS.
EXTEND IMPLEMENTATION DEADLINES FOR DEVELOPING COUNTRIES
• Extend the implementation deadlines within TRIPS for developing countries until after a proper and satisfactory review of TRIPS is carried out and appropriate changes are made.
MORATORIUM ON DISPUTE SETTLEMENT ACTION
• Agree to observe, with immediate effect, a moratorium on dispute settlement action, until there is a satisfactory resolution of the review. Many developing countries are facing difficulties in implementing TRIPS at the national level but the transition period for the implementation of Article 27.3(b) expired on 1 January 2000. This means that the majority of the developing countries are now legally obliged to implement the TRIPS Agreement within their national laws, or face the imminent threat of being taken to the dispute settlement body of the WTO.
REVIEW OF TRIPS' PLACE IN WTO
• Consider the rationale and desirability of TRIPS' location in the WTO. TRIPS is protectionist, promotes monopolistic practices and profits, and almost exclusively benefits developed countries. As part of the fundamental review and rethinking of TRIPS, WTO members should question TRIPS' place in a trade organisation that supposedly champions competition and consider the removal of TRIPS from the WTO.
FOR MORE INFORMATION ABOUT THIS STATEMENT OR TO SIGN ON, PLEASE CONTACT:
Cecilia Oh, Third World Network