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4-Patents: "TRIPs plus" must stop

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        The European Union caught in blatant contradictions
DATE:   March 2003

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The European Union caught in blatant contradictions

Available in PDF
 (includes a fully referenced table providing details of known EU TRIPS
plus bilateral trade agreements)

Last month, GRAIN issued an open letter to Pascal Lamy, the chief of
trade policy at the European Commission. In it, we disputed Mr Lamy's
public relations efforts aimed at trying to convince the world that the
EU champions the rights of Third World farmers to save seeds. Lamy never
responded. But never mind. This month, a new bilateral agreement between
the EU and Lebanon entered into force. Under this treaty, Lebanon must
join UPOV within the next four years. If this is championing farmers'
rights to save seeds, then something is really messed up.

Quite hidden from its media charms, the European Union is aggressively
forcing developing countries to adopt the strictest intellectual property
rules on seeds that are possible. We see it in Algeria. We see it in
Tunisia. We see it in South Africa, Morocco, Lebanon and Bangladesh. And
we even see it poking its head through the clouds of diplomatic language
in the EU's policy towards more than 70 poor countries forming the
Africa-Caribbean-Pacific (ACP) grouping. We have to stop this 'TRIPS-
plus' parade of industrial powers asking developing countries to
overshoot their commitments to the WTO through bilateral wheeling and
dealing. The EU is not the only guilty party. The US is doing the same
from its side, even more aggressively. Switzerland too. And others.


EFFECTIVE SUI GENERIS SYSTEM: Under the TRIPS Agreement, all WTO members
must start patenting life forms. Patenting of microorganisms is
obligatory. For plants and animals, it's optional. Plant varieties,
however, must either fall under countries' patent laws or some "effective
sui generis system" of intellectual property protection. This system is
not defined in TRIPS and no mention is made of UPOV. On several
occasions, the EU has outlined what it understands by "an effective sui
generis system", and it is essentially the UPOV approach.

UPOV: The UPOV Convention, a treaty governing the Union for the
Protection of New Plant Varieties, gives patent-like rights to plant
breeders working in the formal seed industry. It rewards a very narrow
type of plant breeding, geared toward genetic uniformity and large scale
monocultures. The 1991 Act of the Convention, which is the latest version
and the one the EU pushes developing countries to comply with, has no
Union-wide provision to respect the rights of farmers. It only says that
member states that wish to provide some kind of derogation for farm-saved
seed may do so only without affecting the basic monopoly rights that UPOV
provides to the seed industry.

BUDAPEST: The Budapest Treaty on the Deposit of Microorganisms for the
purpose of patent protection (1977) creates a union of countries
operating common rules on filing samples of patented microorganisms. It
is administered by the World Intellectual Property Organisation (WIPO).
While TRIPS Agreement says that microorganisms must be patented, it says
nothing about countries having to adopt and comply with the Budapest
Treaty standards.

HIGHEST INTERNATIONAL STANDARDS: Numerous EU bilateral treaties bind
developing countries to enforce the "highest international standards" of
IPR protection. It is unclear which standards these are. For example, it
could refer to European standards, WIPO standards or new de facto
standards emerging from the increasing number of bilateral treaties on
trade and investment. One thing is clear: it can't mean WTO standards
because it doesn't say so.

The current situation

By our count, the EU has forced TRIPS-plus commitments regarding
intellectual property on life forms in almost 90 developing countries,
including the ACP pack (see table).

The language of the individual agreements is not always clear.
- Some countries must join UPOV and/or accede to the Budapest Treaty.
This is the case of Algeria, Lebanon, Mexico, Morocco and Tunisia.
- In other cases, the UPOV clamp is not so neat. Algeria is supposed to
join UPOV, although the EU might be satisfied if Algeria just implements
"an effective sui generis system" (see box). Bangladesh, for its part,
has to make a best effort to join UPOV.
- Under some of the agreements, the parties recognise the need to provide
adequate and effective protection of intellectual property rights,
sometimes to the level of "the highest international standards" (see
box). We then get a list of what those rights specifically include:
patent protection of plant varieties and of biotechnological inventions.

All these deals qualify as 'TRIPS-plus' agreements as far as IPRs on life
are concerned. TRIPS has no provision about implementing or joining
either UPOV or Budapest. It does not require patent protection of plant
varieties. And it doesn't even mention "biotechnological inventions".

So where do these provisions come from? They come from the EU's drive to
harmonise intellectual property laws worldwide, beyond the minimum
requirements of the WTO. The bilateral instruments are clear about this.
As the EU's External Affairs Commissioner Chris Patten put it,
celebrating the entry into force of the Lebanon agreement earlier this
month, it's all about approximating the trade and economic legislation of
developing countries with those of the European Union. In other words, to
be a partner and benefit from friendly trade concessions or development
assistance, Lebanon has to align its laws with those of the EU. This may
seem crazy, given the differences between Lebanon and, say, Sweden. But
that's what globalisation is about. And the harmonisation of patent laws
is a central piece of the puzzle. Patents are vital assets for firms in
the industrialised countries, which own over 95% of all patents in the
world. They need these patents honoured by developing countries in order
to facilitate their own market strategies and secure revenues.

These bilateral treaties are also part of the EU's competition with other
major trade powers, namely the US and Japan. They allow the EU to secure
preferential terms of business with the partner countries. In this
context, it is clear that the EU's historical relationship with the ACP
countries constitutes one pole of preferential relations. The EU's
proximity to the Mediterranean countries of North Africa and the Middle
East constitutes another pole. In fact, the EU has an overall blueprint
for its multiple partnerships with the Mediterranean states. Which is why
we can expect similar TRIPS-plus policies emerging soon in Egypt, Jordan,
and Syria (see table).

Beyond these special and often neocolonial poles, plain old rivalry comes
in. The North America Free Trade Agreement between the US, Canada and
Mexico, for example, catalysed the EU to propose its own treaty with Mexico.

The need to put a halt on it

The European Union must immediately cease and desist from imposing TRIPS-
plus measures on developing countries. And whatever deals already done
should be amended accordingly.

The Greens in the European Parliament made an important move in this
direction this week by filing an urgent request to the European
Commission. The action was triggered by the reality of the EU-Lebanon
deal coming into effect. Under the urgency, the Greens have asked the
Commission to explain why it pretends to uphold the so-called
flexibilities of the TRIPS Agreement at the multilateral level while it
simultaneously makes TRIPS-plus demands on developing countries at the
bilateral level. The Commission will surely say it is not forcing anybody
to do anything, because countries have the right to agree or not with any
proposal from the EU. But that never answers the question. These deals
represent coercion politics at their best: no patents, no trade or aid.
That is why when NGOs and other groups in developing countries question
their governments about why they are signing on, they are told to keep
quiet because there's no choice. Naturally. Their inflows of foreign
contracts and loans depend on it. These countries are in massive debt and
now the farmers will have to pay royalties and face other restrictions on
seeds - well beyond the WTO's prescriptions.

Civil society groups have to do a lot more to put a stop to this bulldozer.

Going further

The Greens / EFA Group, European Parliament, "EU goes further than WTO on
intellectual property rules: Green MEP demands clarification of 'TRIPS-
plus' policy for plant varieties", Press Release, Brussels, 25 March 2003.

European Commission, "EU-Lebanon: entry into force of the Interim
Agreement 1 March 2003", Press Release, IP/03/300, Brussels, 28 February 2003.

The European Commission's bilateral trade relations website.

GRAIN, in cooperation with SANFEC, "TRIPS-plus through the back door: How
bilateral treaties impose much stronger rules for IPRs on life than the
WTO", July 2001, 14 pp