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CHAPTER THREE THE TRIPS AGREEEMENT AND ITS IMPLICATIONS FOR AFRICAN BIODIVERSITY AND INDIGENOUS KNOWLEDGE
INTRODUCTION
This chapter aims at analysing the World Trade Organisation’s (WTO’s) agreement on Trade Related Intellectual Property Rights (TRIPS) and its implications for African biodiversity, indigenous and local knowledge. I first give a brief historical background and context of TRIPS. Second, I give an overview of the TRIPS agreement, particularly the clauses which directly or by inference affect biodiversity and indigenous knowledge. Third, I compare TRIPS to the Convention on Biodiversity (CBD), which is one of the key international conventions on biodiversity and indigenous knowledge. I then investigate the roles of international institutions such as the WTO and the United Nations World Intellectual Property Organisation (WIPO) which govern and manage intellectual property protection. I shall also demonstrate the ways that biotechnology and pharmaceutical companies exploit TRIPS to convert publicly owned knowledge and plants into private property. Finally, I examine the implications of TRIPS to communities in Africa.
HISTORICAL BACKGROUND TO TRIPS
Intellectual property broadly refers to the legal rights which result from intellectual activities in industrial, scientific, literary and artistic fields. The WTO (www.wto.org 1995a:1) defines intellectual property rights as “the rights given to people over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time.” One of the underlying concepts of an intellectual property right system is that a person should be able to control and reap the benefits of their innovation and creative use of knowledge. Intellectual property is traditionally divided into copyrights and industrial property. Copyrights include “rights granted to authors of literary and artistic works, and the rights of performers, producers of phonograms and broadcasting organisations. The main purpose of the protection of copyrights and related rights is to encourage and reward creative work” (http: www.wto.org, 1995a). Industrial property includes the “protection of distinctive signs such as trademarks and geographical indications, and industrial property protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions protected by patents, industrial designs and trade secrets” (http: www.wto.org).
Among arguments generally advanced in favour of intellectual property rights are that they encourage and safeguard intellectual and artistic creation; disseminate new ideas and technologies quickly and widely; promote investment; provide consumers with the results of creation and investment; and provide increased opportunities for the distribution of these effects across countries in a manner proportionate to national levels of economic and industrial development (Cohen and Komen http:// strategies.ic.gc.ca).
Intellectual property rights are different from physical property rights, although they sometimes share many of the characteristics associated with real and personal property. Intellectual property is an asset that can be bought, sold, licensed, exchanged or gratuitously given away like any other form of property. A noticeable difference between intellectual property and other forms of property is that it is intangible. “In the context of genetic resources and biotechnology, ownership of the physical resource plant [or] animal, is governed by property laws, while ownership of the genetic information contained in the plant or animal is governed by intellectual property laws” (http:// www.strategies.ic.gc.ca).
Intellectual property rights have existed, in one or another form, for centuries. IPRs were traditionally not granted as rights “but as a privilege to promote industry and secure its benefits for the citizenry by rewarding creativity, originality and inventiveness” (Bugbee 1997, http://www.strategies.ic.gc.ca). WIPO (http://www.wipo.int) claims that the importance of intellectual property rights was legally acknowledged as early as 1883 through the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Industrial Property and the artistic works of 1886. Intellectual property rights on biodiversity were addressed in the early 1900s to encourage conservation of biodiversity as well as the protection of endangered species in international conventions such as the 1900 Convention for the Preservation of Wild Animals, Birds and Fishing in Africa (commonly known as the London convention 1900). Intellectual property rights are also affirmed in the 1947 Declaration of Human rights and are understood to be “part of the institutional infrastructure of the market-based economies” (Tansey 1999:3). It is, however, important to note that before the institution of the Declaration of the Human Rights Charter, intellectual property rights were not linked to trade. As well, there was no existence of internationally obligatory intellectual property regimes and countries could voluntarily choose to sign, ratify or accept being parties to a particular convention or regime. The process toward such an IPR regime began in 1947.
In 1947, at the United Nations conference on trade and employment in Cuba, a proposal was made to create an international trade organisation (ITO) to complete the post-war economic reconstruction and to lead “the multilateral economic regime begun after the Second World War” (Mwalimu 2000:1). At the time, the administration of post-war reconstruction was overseen by a regime consisting of the International Monetary Fund (IMF) and the international Bank for Reconstruction and Development, now known as the World Bank. “The ITO was to be the third pillar…[However] it did not come into being as the United States of America – a country that had initiated the process – did not ratify it” (Mwalimu (2000:2). At the time “Canada and 22 other countries had begun discussing the process of lowering trade barriers (mainly tariffs) among themselves” (Mwalimu (2000:2). In 1947, at a meeting held in Geneva, these 23 countries adopted a provisional agreement known as the General Agreement on Trade and Tariffs (GATT) whose institutional structure precedes the current WTO. The main purpose of GATT was to reduce custom duties and other barriers to trade and to eliminate discrimination in international trade. Under the GATT treaty, countries had to allow the principles of the ‘the most favoured nation’ (MFN) and ‘national treatment’. The most favoured nation principle states that an advantage conferred to any country must be extended to all members of GATT. This is understood as the principle of compulsory reciprocity in trade. The national treatment principle, on the other hand, compels states which are WTO members to grant to nationals of other countries treatment that is no less favourable than that which is accorded to the member’s own nationals with regard to trade.
GATT held a number of multilateral trade negotiations to intensify trade liberalisation and to allow members to negotiate trade issues. According to Said (http://www.dpmf.occassional papers), “between 1948 and 1995, about eight rounds of trade negotiations were undertaken by GATT.” Among these was the 8th round of negotiations known as the Uruguay round. The main purpose of the Uruguay round was to create international policies on trade and to address all other trade issues that were considered to be outstanding, such as trade in services and intellectual property issues. The Uruguay round commenced in September 1986 in Punta del Este in Uruguay. It was concluded on 15 April 1994 in Marrakesh, Morocco, with the signing of ‘The Final Act Embodying the Results of the Uruguay Round on Multilateral Trade Negotiations’. The Final Act contains a number of agreements. Amongst these agreements, is Annex 1C, known as the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which entered into force on 1 January1995.
TRIPS agreement became significant for the world for a number of reasons. First, it associated intellectual property rights to trade. Second, it endorsed the extension of intellectual property rights to life forms which were previously denied by many countries. Third, it resulted in the globalisation of intellectual property as it compelled members to change their domestic laws to conform to TRIPS. International laws governing intellectual property had been in existence as early as the 18th century. They had, however, tended to be plurilateral in nature, meaning that they were agreements entered into by different countries although they were not mandatory. This meant that countries could decide whether or not to include their prescriptions into their local legislative framework. Before the advent of TRIPS countries determined the content, scope and implementation of intellectual property rights laws to suit [their] “ethical and socio-economic conditions” (Shiva 2001:97. Repetto and Calvantini also emphasize a similar point.
Before the adoption of the agreement countries were free to determine the terms for patentability, the rights conferred to patent holders and the duration of patent protection. The establishment of the areas of non-patentability was also left to countries’ own discretion. It is not surprising that patent law was thus tailored to follow countries’ own economic interests. This resulted in diverging standards among members which inevitably caused substantial tensions in global trade relations (Repetto and Cavaltini 2000:7).
The lack of mandatory IPR protection internationally prompted developed countries to lobby for IPR inclusion in the trade agenda of GATT. One of the reasons that prompted countries such as the United States of America to advocate for GATT to institute mandatory intellectual property rights at a global scale, and also to relate intellectual property rights to issues of trade, was the economic recession of the late 1980’s. Said suggests that the US became a major actor in GATT negotiations, partly due to this country’s concern to promote the reduction of tariffs on manufactured goods which benefited industrialised countries. The fierce lobby of the US to associate intellectual property rights to trade was also due to “the mounting technological competition from the South East Asian countries” (Oram 1999: 1-2). “Within the framework of these [GATT] negotiations there was a request from the United States of America to include a multilateral agreement on minimum standards for intellectual property rights” (Repetto et al 2000:2). The USA “even threatened to boycott the negotiations if its call for some sort of international legislation governing intellectual property rights were not met” (Oram 1999: 2). The USA favoured the inclusion of IP issues into the WTO because they believed that this was “the only mechanism that would ensure member states could be effectively sanctioned if they failed to comply with international IPR laws” (Oram 1999: 1-2). Repetto and Calvalcanti point out that the US lobby was partly due to the fact that, before the TRIPS agreement, Countries were free to determine the terms of patentability, the rights conferred to patent holders and the duration of patent protection. The establishment of areas of non-patentability was also left to countries’ own discretion. Patent law was thus tailored to follow countries’ economic interests. This resulted in diverging standards among members, which caused substantial tensions in global trade (http:ww.fao.org).
There was some resistance by countries of the South, including those from Africa, on the implementation of an internationally mandatory IPR agreement. Their principal concern was that an internationally binding agreement on IPR would “enable industries from the North to appropriate and privatize the wealth of biodiversity that constitutes the basis for food security and health care for millions in their countries” (Oram 1999:2). They were also apprehensive because they held that internationally binding IPR measures would upset the cultural, economic structures and fabric of traditional societies in their countries.
AN OVERVIEW OF TRIPS AGREEMENT
The TRIPS agreement is the most comprehensive multilateral agreement on intellectual property. Its major aim is to harmonize and strengthen minimum standards of protection of IPR. The objectives of TRIPS, as stated in the preamble to the agreement (http: www.wto.org), are:
- To introduce new rules and disciplines for global trade regarding the provision of adequate standards and principles concerning availability, scope and use of trade related intellectual property;
- To provide effective and appropriate means for the enforcement of trade related intellectual property rights;
- To provide efficient and expeditious procedures for multilateral prevention and settlement of disputes between governments
TRIPS agreement is divided into seven parts. This chapter will however concentrate on the parts that are relevant to biodiversity and indigenous knowledge.
ACKNOWLEDGEMENTS
DECLARATION
SUMMARY
KEYTERMS
SIGNIFICANT ACRONYMS
CHAPTER ONE INTRODUCTION
1.1 Statement of the Problem
1.2 Purpose of the Study
1.3 Importance of the Study
1.4 Methodology
1.5 Limitations
1.5 Outline ofthe study/ Procedure
CHAPTER TWO BIOPROSPECTING OF AFRICAN INDIGENOUS KNOWLEDGE AND PLANT COMMONS BY MULTINATIONAL BIOTECHNOLOGY AND PHARMACEUTICAL COMPANIES-THEFT OR SCIENCE?
2.1 Introduction
2.2 Definitions and Clarifications of terms 18 2.2.1 Indigenous Knowledge
2.3 Case studies of Bioprospecting and biopiracy in Africa2.4 Bioprospecting as Biopiracy
2.5 A Brief History of Bioprospecting and Biopiracy
2.6 Reasons behind Bioprospecting and Biopiracy
2.7 Local and International Institutions in Bioprospecting and Biopiracy
2.8 Critical Analyses and Key issues on Bioprospecting/ Biopiracy in Africa
2.9 Divergent Viewpoints on Bioprospecting and Biopiracy
2.10 The Implications of Bioprospecting and Biopiracy for Communities
2.11 Conclusions
CHAPTER THREE THE TRIPS AGREEMENT AND ITS IMPLICATIONS ON AFRICAN BIODIVERSITY AND INDIGENOUS KNOWLEDGE
3.1 Introduction
3.2 Historical Background to TRIPS
3.3 An overview of TRIPS Agreement
3.4 Analysis and interpretation of TRIPS
3.5 TRIPS, Indigenous Knowledge and the Possibilities of Geographic Indications
3.6 TRIPS and the Convention of Biodiversity
3.7 The Roles that WTO and WIPO play in IPR protection of Biological Resources
3.8 Multinational Conversion of commons into private property
3.9 The Implications of TRIPS for Biodiversity
3.10 Conclusion
CHAPTER FOUR GLOBALISATION AS A CONDUIT AND CATALYST FOR THE EXPROPRIATION OF AFRICAN PLANT COMMONS AND INDIGENOUS KNOWLEDGE
4.1 Introduction
4.2 Economic Globalization
4.3 Economic Globalisation and Neo-Liberalism
4.4 Economic Globalisations, Commons and Biodiversity
4.5 Economic Globalisations and International Multilateral Institutions
4.6 Economic Globalisation and Multinational Pharmaceutical and Biotechnological Companies
4.7 The Role of Africa in Economic Globalisation
4.8 The Impact of Economic Globalisation on African Biodiversity And African Knowledge
4.9 Alternatives to Economic Globalisation
4.10 Conclusion
CHAPTER FIVE RELATING THE COLONIATION OF AFRICA TO THE CONTEMPORARY PHENOMENA OF BIOPROSPECTING, BIOPIRACY AND TRIPS
5.1 Introduction
5.2 A Brief History of Africa’s Colonisation in the 17th to the 19th Centuries
5.3 Terra Nullius and the Colonisation of Africa
5.4 The Relationship Between Colonisation, Bioprospecting and TRIPS
5.5 New Trends in the Scramble for African Plant Commons and Knowledge Systems
5.6 Justification of Colonisation, Bioprospecting and TRIPS by Northern Scholars and Companies
5.7 Conclusion
CHAPTER SIX ETHICAL ARGUMENTS BY PROPONENTS AND OPPONENTS OF BIOPROSPECTING AND INTELLECTUAL PROPERTY PROTECTION ON LIFE-FORMS
6.1 Introduction
6.2 The Role of Social and Ecological Ethics in Bioprospecting and Intellectual Property Issues
6.3 A Brief Description of Ethics and Selected Ethical Theories
6.4 Ethical Arguments and Positions of Proponents
6.5 Ethical Arguments and Positions of Opponents
6.6 Conclusion
CHAPTER SEVEN BOTHO AND JUSTICE AS GUIDING NORMS IN THE QUEST FOR ALTERNATIVES AGAINST BIOPROSPECTING, BIOPIRACY AND IPR CLAIMS BY NORTHERN MULTINATIONAL COMPANIES
7.1 Introduction
7.2 The Concept of Botho in Sesotho
7.3 Some Important Features of Botho
7.4 Justice in General and Ecological ethics
7.5 The Implications of Botho and Justice on the Use and Sharing of African Commons and Indigenous Knowledge
7.6 Conclusion
CHAPTER EIGHT ETHICALLY VIABLE ALTERNATIVES TO BIOPROSPECTING/ BIOPIRACY AND TRIPS
8.1 Introduction
8. 2 The Need for Ethical Alternative to Current Forms of Bioprospecting, and TRIPS
8. 3 Ethically Viable Models against Bioprospecting, Biopiracy and TRIPS
8.4 Conclusion
CHAPTER NINE CONCLUSIONS
BIBLIOGRAPHY
GET THE COMPLETE PROJECT
BIOPROSPECTING AND INTELLECTUAL PROPERTY RIGHTS ON AFRICAN PLANT COMMONS AND KNOWLEDGE: A NEW FORM OF COLONIZATION VIEWED FROM AN ETHICAL PERSPECTIVE
