4-Patents: Joint NGO statement on the review of TRIPS Article 27.3(b)

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TITLE:  Joint NGO statement on the review of Article 27.3(b) of the TRIPS
        Agreement
SOURCE: Third World Network, Malaysia, http://www.twnside.org.sg/
        sent by GRAIN, BIO-IPR docserver
DATE:   November 27, 2000

------------------ archive: http://www.gene.ch/genet.html ------------------


Joint NGO statement on the review of Article 27.3(b) of the TRIPS Agreement

NOTE: To sign on to the Statement, please send your name, organisation and 
address to the Third World Network (twnet@po.jaring.my).


Dear friends and colleagues,

As you know, the WTO Council for TRIPS (Trade-Related Intellectual Property 
Rights) has convened again from November 27-December 1, 2000. And, as with 
the previous meetings of the TRIPS Council, the mandated review of Article 
27.3(b) of the TRIPS Agreement will be on the agenda.

However, the negotiations on the review have been at a stalemate; with 
little progress being made since the review process started in December 
1998. The US, EU and some other developed countries are still resisting a 
substantive review of Article 27.3(b), which the majority of developing 
countries in the WTO have called for. The most comprehensive proposal from 
the developing countries is articulated in the paper by the African Group, 
submitted by Kenya on its behalf, dated 6 August 1999 (WT/GC/W/302). The 
African Group's comprehensive proposals have received much support from 
other developing countries in the WTO, as well as, civil society groups, 
farmers' movements and NGOs.

In August 1999, the "Joint NGO Statement of Support for the Africa Group 
Proposals on reviewing the WTO TRIPS Agreement (Article 27.3(b))" was 
issued. This Statement now has over 600 signatories from around the world. 
Further, in September 2000 in a letter to Pascal Lamy, the EU Commissioner 
for Trade, NGOs demanded (among other things) that the EU change its 
negotiating position on the TRIPS review, to support the African Group 
proposal. At the recent TRIPS Council meeting, the African Group had again, 
in a paper submitted by Mauritius, dated 20 September 2000 (IP/C/W/206) 
reiterated their proposals.

However, within the WTO itself and in the TRIPS Council, no real discussion 
has taken place on the proposals outlined by the African Group. The concern 
is that with each TRIPS Council meeting, the attempt has been sideline the 
African Group proposal, and to detract from a meaningful discussion on the 
merits of the proposal, and to avoid a revision of Article 27.3(b).

It is therefore crucial that civil society groups around the world mobilise 
to pressure WTO member countries to break the stalemate in the TRIPS 
Council, and to press for a revision of Article 27.3(b), as soon as 
possible. This pressure is needed now, because:

(1) The mandated review of Article 27.3(b) represents perhaps the only real 
opportunity to change this provision that allows for patents to be granted 
on life forms. Such a review, if it is properly done, has the advantage of 
being more focused, thus encouraging a better analysis of the issues. A 
mandated review means that proposed changes can be negotiated without the 
risk of being traded-off against other proposals on other agreements, as 
has happened in the Uruguay Round negotiations.

(2) The transition period for the implementation of Article 27.3(b) expired 
on January 1, 2000. This means that the majority of the developing 
countries are now legally obliged to implement Article 27.3(b) within their 
national laws. Otherwise, they face the imminent threat of being taken to 
the dispute settlement body of the WTO. Therefore, it is very important 
that a substantive review of Article 27.3(b) gets under way, during which 
time countries must be exempt from implementing the provision.

(3) Even now, patents on life are being granted almost indiscriminately by 
patent offices, mostly in the North. These patents distort a patent law 
system that was originally intended for mechanical inventions, in order to 
grant corporations and individuals private rights and ownership over 
biological and genetic resources, traditional knowledge and genetically 
modified organisms, in order to obtain monopoly profits. The patent system 
is being used to facilitate the theft of biological resources and 
traditional knowledge from the South. The monopoly control over such 
essential resources will also have tremendous impact on food security and 
the livelihoods of farmers and communities in the developing countries.

We believe that it is crucial for civil society groups to jointly make a 
clear demand for the revision of Article 27.3(b) and to campaign actively 
for this demand to be met. Hence, we suggest the following actions for your 
consideration:

1. Sign on to the Joint NGO Statement on the review of Article 27.3(b) of 
the TRIPS Agreement (attached below) by sending your name, organisation and 
address to the Third World Network (mailto:twnet@po.jaring.my).

2. Help disseminate this Statement, and ask others to sign on to it.

3. Join in the global campaign against No Patents on Life. Use the demands 
as stated in this Statement to lobby your government, to take note of, and 
to support the African Group position. In addition, start a campaign to 
build and spread awareness among other NGOs and the public on the No 
Patents on Life campaign.

4. Tell us about your campaigns and actions. Civil society groups around 
the world are campaigning against the adverse effects of the WTO Agreements 
and are joining the international WTO: Shrink or Sink campaign. They are 
also organising various campaigns against specific WTO Agreements, 
including the TRIPS Agreement, the Agreement on Agriculture, the General 
Agreement on Trade in Services (GATS), and so on. These campaigns are 
organised in conjunction with the first anniversary of the Seattle 
Ministerial Conference, which will be on 3 December, 2001. Civil society 
groups around the world will demonstrate their solidarity in their campaign 
against the WTO Agreements. We hope that you will be able to play your role.

We attach the Joint NGO statement on the review of Article 27.3(b) of the 
TRIPS Agreement for your information and hopefully, your action.

With our best wishes,
Martin Khor and Cecilia Oh
Third World Network
Penang, Malaysia
twnet@po.jaring.my


JOINT NGO STATEMENT ON THE REVIEW OF ARTICLE 27.3(b) OF THE TRIPS AGREEMENT

We, the undersigned social movements, citizen groups and non-governmental 
organisations, express our concern over the attempts to prevent a 
substantive review of Article 27.3(b) of the TRIPS Agreement. Article 
27.3(b) lies at the core of the debates surrounding patenting of life 
forms, the effects of IPRs on farmers' livelihoods and food security, local 
communities rights and access to resources, and the environmental effects 
of IPRs. Article 27.3(b) facilitates the mis-appropriation, by Northern 
corporations, of the traditional knowledge and biological resources 
originating from the South. This biopiracy of the South's resources is an 
ironic twist of the TRIPS Agreement, which promised to facilitate transfer 
of technology from the North to the South but instead is now being used by 
corporations in the North to obtain private ownership rights over the 
South's resources and knowledge.

Review stalemate

Its controversial nature necessitated a compromise text of Article 27.3(b), 
into which a review process had been mandated four years after the TRIPS 
Agreement came into force. However, this review process has been 
deadlocked, without any agreement having been reached on the scope or 
timetable of the review. Many developing countries view the review as an 
important opportunity to open up Article 27.3(b) so as to revise it, in 
order to prevent and limit its negative effects. The US, EU and most other 
developed countries have consistently opposed proposals to amend the 
provisions, arguing that the review is only about the extent to which the 
provisions have been implemented.

TRIPS: Negative development and human rights impacts

In the meantime, there is increasing evidence to suggest that Article 
27.3(b) is being employed as a protectionist instrument to promote 
corporate monopolies over technologies, seeds and genes. The 1999 UNDP 
Human Development Report warns of negative impacts of high standards of 
intellectual property rights on economic and social development in 
developing countries. The United Nations Sub-Commission for the Protection 
and Promotion of Human Rights (Resolution E/CB.4/Sub.2/2000/7 dated 17 
August, 2000) has also taken note that "actual or potential conflicts exist 
between the implementation of the TRIPS Agreement and the realisation of 
economic, social and cultural rights in relation to, inter alia, 
impediments to the transfer of technology to developing countries, the 
consequences for the enjoyment of the right to food of plant variety rights 
and the patenting of genetically modified organisms, 'bio-piracy' and the 
reduction of communities' (especially indigenous communities') control over 
their own genetic and natural resources and cultural values, and 
restrictions on access to patented pharmaceuticals and the implications for 
the enjoyment of the right to health ..."

In this connection, developing countries in the WTO have raised important 
questions as to whether the TRIPS Agreement promotes or hinders economic 
development of developing countries and enables countries to strike an 
appropriate balance between public interests and private rights. These 
fundamental issues are at the heart of the review of Article 27.3(b) and 
must be addressed. During the Seattle Ministerial Conference, developing 
countries had submitted numerous proposals in an effort to address and 
resolve the implementation problems they faced, including that of Article 
27.3(b). The failure of the WTO to address the implementation problems has 
resulted in a loss of credibility of the multilateral trading system. If 
the WTO is to rebuild confidence of the developing countries, a meaningful 
review of Article 27.3(b) should be the first of many steps towards this 
objective.

There is a growing public objection to Article 27.3(b), which not only 
facilitates but makes it mandatory for all WTO member countries to patent 
certain life forms and living processes. This is unacceptable from the 
ethical, environmental, social and developmental perspectives. We note with 
encouragement that many developing countries have also come to the same 
conclusion and that some of them have strongly voiced their demands that 
Article 27.3(b) should be revised.

African Group proposal

In particular, we note that the African Group of countries in the WTO has 
proposed that Article 27.3(b) should be amended to clarify that life forms 
and living processes cannot be patented. A number of other developing 
countries in the WTO have supported this position. Unfortunately, there has 
been strong resistance from the US, which would like to maintain the 
position that life forms can be patented, and indeed, some must be 
patentable. This position, if maintained, will lead to serious consequences.

Even now, patents on life are being granted almost indiscriminately by 
patent offices, mostly in the North. These patents distort a patent law 
system that was originally intended for mechanical inventions, in order to 
grant corporations and individuals private rights and ownership over 
biological and genetic resources, traditional knowledge and genetically 
modified organisms, in order to obtain monopoly profits. The patent system 
is being used to facilitate the theft of biological resources and 
traditional knowledge from the South. The monopoly control over such 
essential resources will also have tremendous impact on food security and 
the livelihoods of farmers and communities in the developing countries.

Our demands

The situation is very serious and requires urgent action. We therefore:

(1) Strongly support the position taken by the African Group on the review 
of Article 27.3(b), as contained in the paper submitted by Kenya on its 
behalf (WT/GC/W/302, dated 6 August 1999). The African Group has clearly 
laid down the approach and content of the review, and should therefore, be 
followed. This is summarised below:

- The review of Article 27.3(b) must be one of a substantive nature, not 
merely of implementation. In such a substantive review, the following 
issues should be clarified:

- Relating to the patenting of life, there should be a clarification that 
plants, animals, microorganisms and all other living organisms and their 
parts cannot be patented, and that natural processes that produce plants, 
animals and other living organisms should also not be patentable.

- Relating to the option of establishing a sui generis system for 
protection of plant varieties, Article 27.3(b) should be clarified with a 
footnote which states that sui generis laws for plant variety protection 
can provide for protection of innovations of indigenous and farming 
communities in developing countries, consistent with the CBD and the FAO's 
International Undertaking, preserve traditional farming practices 
(including the right to save, exchange and save seeds), and to prevent anti-
competitive rights or practices which may threaten food sovereignty of 
developing countries.

- On the relationship between the TRIPS Agreement and the CBD, the review 
process should seek to harmonize Article 27.3(b) with the provisions of the 
CBD and the International Undertaking, in which the conservation and 
sustainable use of biological diversity, the protection of the rights and 
knowledge of indigenous and local communities, and the promotion of 
farmers' rights, are fully taken into account.

- The implementation of Article 27.3(b) should be extended until after the 
completion of the substantive review of Article 27.3(b). The period given 
for implementation of the provisions should be the same as that allowed in 
Article 65(1) and (2) of TRIPS; namely, five years from the date the review 
is completed. This period is provided to allow developing countries to set 
up the necessary infrastructure entailed by the implementation.

(2) Strongly urge other WTO Member to support the position taken by the 
African Group in their proposals on the review of Article 27.3(b).

(3) Call on the WTO Members to amend Article 27.3(b) as soon as possible, 
in line with the proposals of the African Group, as stated above.

(4) Urge WTO members to agree on a moratorium on the implementation of 
Article 27.3(b), whilst the review and revision of Article 27.3(b) is on-
going. The transition period expired on 1 January 2000; which means that 
the majority of the developing countries are now legally obliged to 
implement Article 27.3(b). Governments, which have yet to implement the 
TRIPS Agreement should not be forced into enacting laws that will allow for 
patents on life. Therefore, member countries should refrain from invoking a 
dispute settlement procedure with regard to the implementation of Article 
27.3(b), during the period of review of the provisions of this Article and 
also, the review of Agreement itself under Article 71.1.

(5) Call on WTO Members to agree to extend the deadline for implementing 
Article 27.3(b) of TRIPS from the present date of January 2000 to five 
years after the completion of the review of this Article (as has been 
proposed by the African Group).



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