Ground Reality | Tuesday, February 24, 2009
FTAs facilitates biopiracy: The case of Peru
by Devinder Sharma
The United States has done it, and done it again. As part of the Free Trade Agreement (FTA) with Peru, the US has managed to wrest an amendment in the existing Intellectual Property laws that virtually ’facilitates biopiracy and hamper Peru’s position as a protector of traditional knowledge,’ reports SciDev.net
Well, I am not surprised. In fact, those of us who have followed the regional and bilateral trade agreements, are aware that the US is forcing a TRIPs-plus agreement the world over. The Barcelona-based GRAIN had earlier done a comprehensive report entitled: "Bilateral agreements imposing TRIPs plus intellectual property rights on biodiversity in developing countries." (The updated report in case you missed it was made available in Mar 2008 and can be accessed at http://www.grain.org/rights/tripsplus.cfm?id=68)
What makes Peru’s case very interesting (and a lesson in how trade regimes are being used to seek control over genetic resources and its accompanying traditional knowledge) is that it leaves enough scope for misusing the provisions of Decision 148 of the regulations of the Andean Community of Nations (CAN), of which Peru is a member. This provision makes it amply clear that "biological material existing in nature or those which can be isolated, including genome or germplasm of any natural living being, cannot be subject of a patent."
According to Scidev.net, the Peruvian amendment now says biological material "in whole or in part" cannot be considered an invention, but there is no explicit mention of genes or micro-organisms. The definition of micro-organisms has over the years been enlarged in the light of the TRIPs agreement, and now includes genes and cell lines. And microorganisms can be patented.
As if this is not enough, rules concerning traditional knowledge have also been suitably changed. Earlier, CAN made it mandatory for companies/research institutes to present a ’certificate of origin’ before seeking patents, but the Peruvian amendment now requires only a license to be filed for the purpose. Failing to adhere to the terms of the license does not lead to scrapping of the patent anymore. The terms of condition for seeking a patent on traditional knowledge therefore have been amply diluted.
Government officials in Peru were, as expected, quick to say that the Peruvian amendments would not facilitate biopiracy. The news report quotes Manuel Siguenas from the National Institute for Agrarian Innovation, as saying: "The changes of the law do not allow the patenting of genes, because the amendment reiterates that the biological material existing in nature, either in whole or in part, is not an invention."
This is an absurd arguement in defence. We already have hundreds of genes from the human body, as well as from other biological forms including plants, microorganisms, insects, and animals, being patented. Swiss Multinational seed giant, Syngenta, for instance has filed for bulk patents on rice genes. There are numerous other examples of patents granted on genes. I fail to understand who this government official (quoted in the report) is trying to befool.
This amendment was psuhed hurriedly to see that George Bush can put his signatures before he quit office on Jan 20. Like an obedient servant, Peru passed the amendment to the IPR laws six days prior on Jan 14 and that too without a debate, well in time for George Bush to claim it as another feather in his tainted cap. Ironically, it was on Jan 14 that the regional government of Cusco in Peru had approved another law against biopiracy and indigenous knowledge. The new amendment will now over-ride the Cusco legal initiative in protecting traditional knowledge.
Not that I am very fascinated by the Cusco initiative, which claims to be the first in the world to enact a law outlawing biopiracy and protecting indigenous knowledge at a regional level (see the report Peruvian region outlaws biopiracy at http://scidev.net/en/news/peruvian-region-outlaws-biopiracy.html). Documenting biodiversity by creating registers and then developing protocols for providing access is not an effective legal and institutional framework to protect indigenous knowledge. I have seen such meaningless exercises being done at several other places, including India. It looks fine on paper but weak in strength (maybe, I am wrong in this case. I haven’t seen the Cusco law in detail).
I think what is being very conveniently overlooked in this entire debate on protecting traditional knowledge is that biodiversity has a price. Unless we first find a mechanism to add a price tag to biodiversity and its related traditional knowledge, we too are failing to help the communities on whose behalf we are fighting. At the same time the Peruvian amendment sends a loud and clear message: developing countries must hurry up in finding a legal mechanism to protect biodiversity and traditional knowledge. Let us not wait for WIPO or UPOV to tell us how. We should put our heads together to collectively prepare a tight legal framework.
Some of us in India had recently taken an initiave on these lines. We have already completed the first stage of defining the policy imperatives. In the second round, we will aim at laying out the legal outlines. If you have any suggestions or advise, please write to me.