Intellectual Property Rights and the North-South Contest for Agricultural Germplasm (original) (raw)
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Abstract: Background: Patents and Intellectual property rights are supposed to help and protect investments into research and development and stimulate innovation by providing incentives to invent, progress, develop etc. and supposed to keep piracy at bat. Ironically they are becoming the instruments of pirating the common “Traditional Knowledge” from the poor of the Third World and making it the exclusive "property" of western scientists and corporations. In the area of biotechnology there are further debates and issues on the right to patent living organisms, especially resources and seeds that have been developed or passed on as traditional and public knowledge. This Capitalizing and commercialization of public knowledge often paves into conflicts with indigenous knowledge and the rights of indigenous people, sustainability of local ecosystems, and even the ability of nations to provide food security and protection of the global environment. As a result, this has also raised many justified questions on bio-piracy. Bio-piracy and patenting of indigenous knowledge is a double theft because first it allows theft of creativity and innovation, and secondly, the exclusive rights established by patents on stolen knowledge steal economic options of everyday survival on the basis of our indigenous biodiversity and indigenous knowledge. Over time, the patents can be used to create monopolies and make everyday products highly priced. Present Scenario: A patent gives a monopoly right to exploit an invention for 17-20 years. To be patentable an invention must be novel, inventive and have a commercial use. Controversially though, the US and European Patent Officers now grant patents on plant varieties, GM crops, genes and gene sequences from plants and crops. The current WTO patent agreement, TRIPs (Trade-Related Aspects of Intellectual Property Rights) has been very controversial in this respect for many developing countries. Many biotech companies (like Monsanto, DuPont ) claim that genetically engineered foods will help alleviate hunger and increase food security, their acts of patenting the knowledge and food that has been developed over centuries itself may be a threat to food security, due to more concentrated ownership and the political advantages that goes with that. Large transnational corporations and others have been investing into biotechnology in such a way that patents have been taken out on indigenous plants which have been used for generations by the local people, without their knowledge or consent. The people then find that the only way to use their age-old knowledge is be to buy them back from the big corporations. In Brazil, which has some of the richest biodiversity in the world, large multinational corporations have already patented more than half the known plant species. In India, these and other events have led to much criticism on the ability to patent many indigenous plants so easily by big corporations. London's Observer reported that there were more than 100 Indian plants awaiting grant at the US patent office and patents have already have been granted to uses of Amla, Jar Amla, Anar, Salai, Dudhi, Gulmendhi, Bagbherenda, Karela, Rangoon-ki-bel, Erand, Vilayetishisham, Chamkura etc, all household Indian names. Bio-piracy and India’s Efforts: The worldwide economic integration by the GATT and the TRIPs opened the mind of the national and international policy makers to protect their bio-diversity from the free access and bio-privacy. The Biological Diversity Act 2002, The Protection of Plant Varieties and Farmers’ Rights Act, 2001 and The Patent Act 1970 as amended by the Patents (Amendment) Act 2005 in India have not realized the menace of bio-privacy, ‘re-colonization in the making’, ‘global village global tillage’ and the offspring of WTO. The concerns about things like farmer's rights, genetic resources and its ownership (private patents or public ownership, as these resources have been developed traditionally by small farmers for the public), access for all to these resources, sharing the benefits etc, were being discussed in an international agreement called the International Undertaking on Plant Genetic Resources for Food and Agriculture (the IU). There was potential for the IU to lead to a legally binding international agreement to tackle these concerns very positively. India is a signatory of WTO and TRIPs and The Patent Act of India is being influenced by the TRIPs. Section 3 of the Patent Act, 1970 deals with the concept of what are not inventions. Sub-Section (j) of section 3 as added by Act 38 of 2002, sec. 4 (w.e.f. 20.05.2003) says: “Plants and animals in whole or any part thereof other than micro-organism sent including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.” The Indian Parliament has already approved a legislation providing for protection of plant varieties and farmers’ rights. The legislation known as the ‘Protection of Plant Varieties and Farmers’ Rights Act, 2001’ aims to provide protection for plant varieties, rights to the farmers and breeders and to encourage development of new varieties of plants. The Act has many unique features. It strikes a balance between the rights of farmers and breeders by rewarding the farmers and local communities from the pool of National Gene Fund for their conservation and development efforts and, at the same time, ensuring reward for innovation by granting plant breeders’ rights. It tries to ensure that modern breeding techniques which employ advanced technologies like biotechnology are not misused and also the Act prohibits registration of any variety which contains genetic use restriction technology (GURT). It is hoped that this legislation will stimulate research and development in agriculture both in public and private sector by providing protection for plant varieties maintaining has scope for further improvements and fine tuning.
Drake Journal of Agricultural Law, 2006
This article examines the international legal framework in which traditional farmers and agricultural biotechnology (agro-biotech) protect their knowledge and plant genetic resources. Traditional farms and agro-biotech both play significant roles in enhancing global food security and biodiversity. Legal measures to protect the knowledge of agro-biotech and traditional farmers were deployed by nations with a head start in the agro-biotech industry. The resulting system of utility patents and the sui generis concept of plant breeders' rights often subordinates the claims of farmers under those of agro-biotech. The author argues the current regime under the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is inadequate to moderate the inequities created by intellectual property in plant genetic resources. Agro-biotech alone cannot ensure global food security and sustainable agriculture, nor can an intellectual property system that undermines local and traditional agriculture. Traditional farming knowledge is indispensable to ensuring that culturally acceptable food is accessible around the globe. A two-pronged approach to inequities in the current intellectual property system is possible. First, developing countries can use national legislation to comprehensively define farmers' rights beyond the ITPGRFA. Second, the governing body of the treaty can prioritize interpreting Article 12.3(d) of the Treaty with regard for the expectations of developing countries.
Intellectual property rights, plant genetic resources and traditional knowledge
Rights to plant genetic resources and traditional knowledge: basic issues and perspectives, 2006
This chapter provides a basis to elaborate ideas and concepts that would allow the use of intellectual property rights (IPR) for the benefit of the sustainable promotion of traditional knowledge (TK) related to plant genetic resources. In the first part, the chapter addresses the economic rationale of forms of protection that are granted under intellectual property laws and policies. In the second part, this chapter discusses patent protection, plant breeders' rights and sui generis forms of protection. It explores the impact of these forms of protection on TK related to plant genetic resources and more broadly, on biodiversity and equity (benefit sharing). The last part of this chapter outlines the impact of IPR on competition laws and policies. It describes certain contractual practices (licensing, patent pools, mergers and acquisitions) that can reduce competition. It also includes a case study pertaining to the seed sector to illustrate consequences of concentrations among e...
From the production of rules to seed production: Global Intellectual Property and local knowledge
Vibrant, 2012
This paper analyzes the links and overlappings between traditional knowledge and biodiversity in the context of ecological family farming in southern Brazil. The data presented are part of an ethnographic study carried out among a network of ecological farmers, Ecovida, in the west of Santa Catarina state. The current global patent regime, most prominently the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization (WTO), has had direct effects on seed production and agricultural food crops. In a scenario of increasing creation of patents, patent regulations, provisions on cultivars (plant varieties and seed breeding) and a number of other global trade control mechanisms, family farmers and other related social actors have rejected the multilateral development agencies' notion of life as "resource". This study has a two-fold aim: first, it approaches the international context of the intellectual property regime on biodiversity and knowledge production; second, it examines the actions taken by farmers participating in the Ecovida network toward creating alternative ways of managing knowledge to produce "free" seeds. As an outcome, there is a parallel political action of criticism and resistance to the current narrowing of agriculture's genetic base, and organized efforts to multiply seeds, know-how and knowledge through networks, banks and centers of agro-biodiversity. Our central argument is that all these social actors - who make up the so-called ecological network and who seek, in their activities, to carry on the multiplication and variability of seeds and promote the diversity of knowledge to produce diverse seeds - are also creating collective strategies of social resistance vis-à-vis the prevailing global modes of controlling knowledge, seeds and food production.