Intellectual Property and Seed: Concerns & Caveats

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1 Intellectual Property and Seed: Concerns & Caveats (Draft, not to be quoted) Shalini Bhutani National Conference on WTO, FTAs and Investment Treaties: Implications for Development Policy Space Jointly Organized by Focus on the Global South, Institute for Studies in Industrial Development National Working Group on Patent Law and WTO, Public Services International South Solidarity Initiative-Action Aid, Third World Network and Forum against FTAs September 22 23, 2015 Institute for Studies in Industrial Development 4 Institutional Area Phase II, Vasant Kunj New Delhi

2 Intellectual Property and Seed: Concerns & Caveats Shalini Bhutani * Intellectual property (IP) remains a contentious issue on the ground, even if the problems associated with the implementation of global IP rules are not getting their place of prominence in the World Trade Organisation (WTO). This is particularly so in the area of seed. Amongst the many functions of the WTO, it has to serve as a forum for multilateral trade talks, review trade policies of member states and help settle disputes arising from any of its agreements. The WTO s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is the source of the international law on the subject of IP. It insists on patents in every field of technology, which includes seed technologies in agriculture and agrichemicals. This has meant a significant shift for Indian policy on the subject. Prior to becoming a member of the WTO, India neither allowed IPR on seed nor on chemical products used in farming. Things began to change 1995 onwards. Twenty years after the WTO, India has both a patent legislation amended to be in line with the TRIPS Agreement, as well as a stand-alone law for the grant of IP on plant varieties. 1 A draft Seed Bill has also long been in the pipeline, to supposedly take forward WTO obligations. Agriculture itself will be very much on the table in the Kenya Ministerial of the WTO, with both Northern subsidies and the permanent solution to the food security issues resurfacing. And indeed much of the efforts by the Indian negotiators will be on that front. But the IP issue in agriculture will not get as much attention, unless the unfinished Doha agenda is reiterated by countries like India. 1. Undertake Genuine Review Article 27.3(b) requires a review of the TRIPS Agreement: (t)he provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement. This provision and the fact of it pending to date, has to be tactfully used; yet there is an inherent risk in reopening this discussion. The big risk is that those countries pushing for a maximalist agenda for IP in the globe, seize the opportunity to upwardly revise the substantive content of TRIPS itself. 2. India s Implementation Experience There is now two decades ( ) of experience with the implementation of WTOstyled IP laws in the area of seed. The evidence gathered thus far must form the basis for developing the negotiating position for India. This is particularly relevant in the context of the patent on genetically modified seed and the grant of IP protection to plant varieties. That IP essentially serves the interests of big industry is becoming more apparent to small farmers, public scientists and domestic seed companies. * Shalini Bhutani, Legal Researcher & Policy Analyst 1 Protection of Plant Varieties and Farmers Rights Act, 2001

3 There is currently no feedback loop in place; the experiences of national governments in the implementation are not feeding back into the work of the TRIPS Council. 3. Doha Development Agenda Several issues in the TRIPS Agreement, in particular, the protection of traditional knowledge and addressing biopiracy have been high on the agenda of developing countries in the past. Developing countries need to put the spotlight back on these issues as part of the pre-nairobi work programme. Paragraph 19 of the Doha Declaration of 2001 broadened the frame of the Article 27.3(b) discussions. It requires the TRIPS Council to look at the relationship between the TRIPS and the UN Convention on Biological Diversity (CBD), the protection of traditional knowledge (TK) and folklore. The protection of TK and folklore has remained as a neglected area in the discussions on the DDA. While some state-level Biological Diversity Rules make mention of the need for such protection, only very few states like Kerala are moving from a specific state-level policy for protection of their TK commons and towards a full-fledged legislation in this regard. Meanwhile, there is a stalemate on these issues at the WIPO, in the IGC process and the attempt to draft a global treaty on the subject. As per the Commerce Minister It [the WTO] has to perform the role of speaking for all its members and ensure that certain [items on the] development agenda are also taken up and met with to the satisfaction of all its members. She adds that the time was especially significant for tackling issues related to LDCs (least developed countries) and development because the conference was being held for the first time in Africa. 2 The largest India-Africa Summit is to be held in New Delhi next month; this might be a good opportunity to gather like-minded African countries around this issue of interest to them as well. For countries such as USA & in the EU have asked India & China to recalibrate the Doha mandate, which will bring in Singapore issues kept at bay thus far since Push Biodiversity Amendment India along with other countries had initiated a Biodiversity Amendment of the TRIPS text in 2008, proposing an Article 29bis on Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge. 5. TRIPS Articles 7 & 8 Article 7 2 WTO is not just a trade forum, says Commerce Minister Nirmala Sitharaman 2

4 Objectives The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. Article8 Principles 1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices, which unreasonably restrain trade or adversely affect the international transfer of technology. 6. Respect Bali Decisions Article 64.2 Another IP-related issue, pertains to the so-called non-violation complaints in IP. According to the dispute settlement provisions of the WTO, disputes can be initiated whether or not a measure adopted by a member conflicts with the provisions of any of the WTO Agreements. What this implies is that even if a member is complying with the provisions of any WTO Agreement, another member can initiate a dispute since it perceives that its interests are adversely affected. TRIPS did not allow this provision to be used for an initial period of five years and this has subsequently been extended. In the 9 th Ministerial Conference at Bali, Indonesia an agreement was reached to decide on this issue in the 10 th Ministerial. 7. US-India Relations Ever since the Prime Minister s visit to USA in September 2014 civil society has been voicing its concern with regard to the new bilateral arrangements between the two sides on the issue of IP. These include the joint Indo-US IP Working Group. Any bilateral negotiation on IP between India and the US would definitely witness demands on India to provide for higher standards of IP protection that are not required of us by the WTO s IP agreement - TRIPS. A new National IPR Policy has been finalised by the DIPP in the backdrop of the relationship. The text of this has not even been made public in India. 3

5 The legitimate space for discussions on global IP standards is the WTO s TRIPS Council, and it is in this multilateral forum that issues of concern between different countries ought to be discussed. The bilateral relations gather significance, given the precedent of a deal struck between the two on the public food-stockpiling programme, to break the impasse at WTO, rather than resolve it with others. 8. Beware TRIPS-plus The wave of free trade agreements (FTAs) and bilateral investment treaties (BITs) that are TRIPS-plus are picking up pace. These next generation agreements go well beyond what WTO established as minimum standards for IP protection. In fact, these mega regionals and plurilaterals will even remove the differences between trade and investment. The definition of investment therein includes IP. The Regional Comprehensive Economic Partnership (RCEP) is one such FTA that India is actively negotiating with fifteen countries in the Asia and Pacific region. The other countries include the ten ASEAN economies Brunei, Burma, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam along with Australia, China, Japan, Korea and New Zealand. Japan and South Korea are pushing for provisions, particularly those relating to IP, that are an attempt to harmonise the RCEP with the other mega regional the Trans Pacific Partnership (TPP). The leaked IP drafts propose that all RCEP members either accede to or ratify over a dozen international IPrelated agreements, including the International Convention for the Protection of New Varieties of Plants (better known as UPOV), particularly its 1991 version which gives primacy to corporate plant breeders and sets restrictions on seed-saving by farmers and on access to protected plant varieties by researchers. The developed countries should not be allowed to bring in any of these elements into an expanded 21 st century agenda for the WTO. 4