Intellectual Property Rights

Today the economic survival of third world communities is under severe threat from the new monopolistic protections being carved out for transnational corporations (TNCs), through IPR regimes. In fact, in the free trade and trade liberalisation regime, which is supposed to end protectionism, IPRs are the main instrument of this new form of protectionism.

The new protectionism for TNCs through IPRs is becoming the major means of dismantling both local and national economies as well as national sovereignty; through piracy of both material as well as the intellectual and cultural resources.

IPRs: The Privatisation of Biodiversity and Biodiversity Related Knowledge

The thrust of the western IPR regimes in the area of biodiversity is diametrically opposed to indigenous knowledge systems. Knowledge is considered to be the product of individual creativity, based on western scientific thought and systems of knowledge creation and gathering whereby the resource base is merely viewed as 'raw material'. In this paradigm IPRs represent the property rights to the products of mind, thereby resulting in knowledge and creativity being so narrowly defined that the creativity of nature and non-western knowledge systems have been ignored.
Western IPR regimes are diametrically opposed to indigenous knowledge systems

The two categories of IPRs that have a direct impact on the erosion of prior rights of communities, are patents and plant breeders' rights. Plant breeders' rights negate the contribution of Third World farmers as breeders and hence undermine farmers' rights. Patents allow the usurpation of indigenous knowledge as a western invention through minor tinkering or trivial translation.

The UPOV (Union for the Protection of New Varieties of Plant) Convention represents a western devised form of plant variety protection, other than patenting. This form of intellectual property rights protection, referred to as a Plant Breeders' Right (PBR), is being promoted as the most favourable form of adoption under the sui generis option for developing nations by the developed nations. But according to the 1991 Revision of the UPOV Convention, newly introduced clauses severely restrict farmers' rights by removing all rights for them to save seed for sowing for the following year, as well as removing researchers' rights to save the seed of new protected varieties. The protected variety may still be used as an initial source of variation for the creation of new varieties but such new varieties cannot be marketed or sold without the plant breeders' rights' holder allowing it.

There now exists very little difference in restrictions set by Plant Breeders' Rights and that set by patents for farmers. UPOV is a monopoly system that embodies the philosophy of the industrialised north who want to protect the interests of corporate biotechnology and powerful seed companies. If India does not evolve its own sui generis system centred on community intellectual rights of farmers and adopts the UPOV model, a rights regime will have been created that protects the rights of the seed industry but offers no protection to the rights of farmers. This in turn will allow a free flow of agricultural biodiversity based on centuries of breeding from the fields of Indian farmers, while the farmers have to pay royalties to the seed industry for the varieties derived from farmers' varieties.
Neither traditional knowledge
nor biodiversity
can be patented by indigenous practitioners
becase for indigenous societies
it is not 'novel', it is ancient.

A frequent comment heard in scientific and lay circles, is that "we should patent all our traditional knowledge and biodiversity." However, neither traditional knowledge nor biodiversity can be patented by indigenous practitioners because for indigenous societies, it is not 'novel', it is ancient. The reason that the collective and cumulative innovation of millions of people of thousands of years can be 'pirated' and claimed as an 'innovation' of western trained scientists or corporations, is because of two reasons. The first reason is the colonial hangover of the idea that science is unique to the west, and indigenous knowledge systems cannot be treated as scientific.

The second reason is that countries like the US, where most pirated indigenous innovations are filed for patenting, do not recognise the existing knowledge of other countries is prior art. Thus, while patent regimes offer no protection to indigenous communities for their common innovation and their common resources, they allow the appropriation of their biodiversity and knowledge by scientists and commercial interests of other cultures, including members of the 'modern' scientific culture in their own societies. IPRs: An Instrument of Piracy

IPR regimes in the context of ‘free trade’ and ‘trade liberalisation’ thus become instruments of piracy at three levels:

Resource piracy in which the biological and natural resources of communities and the country are freely taken, without recognition or permission, and are used to build up global economies. For example, the transfer of basmati varieties of rice from India to build up the rice economy of the US; the free flow of neem seeds from the farms, fields and commons to corporations like W. R. Grace for export.

Intellectual and cultural piracy in which the cultural and intellectual heritage of communities and the country is freely taken without recognition or permission and is used for claiming IPRs such as patents, and trademarks even though the primary innovation and creativity has not taken place through corporate investment. For instance, the use by US corporations of the trade name ‘basmati’ for their aromatic rice, or Pepsi’s use of the trade name ‘Bikaneri Bhujia’.

Economic piracy in which the domestic and international markets are usurped through the use of trade names and IPRs, thereby destroying local economies and national economies where the original innovation took place and hence wiping out the livelihoods and economic surivival of millions. For example. US rice traders usurping European markets; Grace usurping the US market from small scale Indian producers of neem based biopesticides.

Common Property Rights: An Alternative to IPRs

IPRs systems evolved in industrialised countries reflected in the TRIPs agreement only recognise western knowledge systems as scientific and formal and non-western knowledge systems are regarded as unscientific and informal. The creation of monopoly rights to biodiversity utilisation through its claim to the creation of 'novelty' can have serious implications for erosion of national and community rights to biodiversity and devaluation of India's indigenous knowledge. TRIPs gives countries the option of formulating its own sui generis regime for plants as an alternative to patent protection. Collective rights can be a strong candidate for such sui generis systems for agricutural biodiversity and medicinal plant biodiversity. Therefore, it is crucial that community held and utilised biodiversity knowledge systems are accorded legal recognition as the 'common property' owned by the communities concerned. Building such an alternative is essential to prevent biodiversity and knowledge monopolisation by an unbalanced mechanistic and non-innovative implementation of TRIPs or in response to Special 301 threats from the US.

The Intellectual Property Right Saga in India

Under article 70.8 and 70.9 of the TRIPS agreement, India is obliged to amend its Patent Act to provide legal coverage to global inventions on pharmaceuticals and agro-chemicals in the form of product patents starting January 1, 2005.

While the debate continues as to how best protect indigenous knowledge and provide for biosafety under TRIPs, foreign multinationals are pressuring India to adopt Exclusive Marketing Rights (EMRs) in the interim. India received an adverse judgement delivered by the Dispute Settlement Body (DSB) of the WTO on a case relating to pharmaceutical and agro-chemical products filed by the US and earlier by the EU. Now India has to amend its patent law before April 19, 1999 to comply with the DSB judgement. This has created an atmosphere of desperation in the government as lawmakers hurry to adhere to the WTO deadline.

In accordance with the TRIPs agreements, countries that do not provide for product patents before 2005 are required to provide a mailbox facility for receiving applications and grant EMRs to companies with patented products and marketing approval in any WTO signatory country prior to January 1, 2005.

The Rajya Sabha (Upper House of the Indian Parliament) passed the Patent (Amendment) Bill 1998 on 23 November, 1998, which provides for EMR's. The President of India promulgated the Patent (Amendment) Ordinance, 1999 (No. 3 of 1999) on January 8 that also provides for EMR's on pharmaceuticals and agri-chemicals. Ordinances immediately become law for the duration of 6 months. Thus, the Patent Ordinance has been approved in order to by-pass the patent system and grant EMRs as a statutory right to pharmaceuticals and agri-chemicals. The Patent Bill, however, which, if approved, would become an Act, is to come up for approval during the current Budget Session of the Lok Sabha (Lower House).

EMRs essentially guarantee a monopoly market to "claimants" without means for review and rejection of biohazardous or biopirated products. Indeed, EMRs are a claim to marketing as a right, not an approved privilege. EMRs are granted to foreign companies merely on the basis of foreign patents, even if these foreign patents are based on the piracy of Indian indigenous knowledge, and can be used to establish market monopolies in India, thus destroying the socio-economic basis of survival a large number of India people. On the basis of biopiracy patents and patents granted in any other country after 1995, a corporation can claim exclusive marketing monopoly on formulations based on ginger, pepper, harrar, amla, etc. with only minor modifications in methods of extraction and processing. Further, since many of the plants we use for medicine are also used for food, EMRs on formulations based on indigenous knowledge will create monopolies on food items, raise prices, and thus undermine food rights and food security.

The Indian government has been supporting EMRs under the myth that they will promote scientific research in India. Since the EMR ordinance is for exclusive marketing rights in India on the basis of foreign patents and it by-passes the patent system, Indian Research and Development (R&D) will not be protected or enhanced. In fact Indian R & D budget will shrink as exclusive monopolies destroy the economy.

The safeguards measure as given under the Patent (Amendment) Bill 1999 or the Patent Ordinance 1999 is very vague and diluted. India has introduced a compulsory licensing provision to curb unduly price increases by MNC drug manufacturers. This gives the government the right to grant a license to produce drug to any company even if another company is given an EMR. However, compulsory licensing, as stands in the Bill and the Ordinance offers no safeguard since compulsory licensing applies to manufacturers, while EMR's are rights to sell. Compulsory licensing is therefore a fictitious safeguard. Interestingly, the US has already filed a complaint to the WTO against this illusionary provision of compulsory licensing.

Price control mechanisms on medicines or an India food item sold as medicinal formulations (e.g. ginger, haldi, pepper, etc.) will also not work, since EMR's will be granted as statutory rights in which government intervention will be treated as illegitimate. Once EMRs are granted, foreign corporations can not be forced to sell medicines and agricultural chemicals at cheaper prices. In fact, the whole point of EMRs is to be able to bypass the price regulation system already in place in the country, which ensures that the essential commodities of food and medicine are accessible to the people of the country, especially the poor. Therefore the claim of the government on the various aspects of safeguards are totally misleading and there are absolutely no safeguards available to protect the national interest in the EMRs system.

Rather than adopt the EMR route, India should draft a new patent law that addresses the challenges of the age of biology. Strengthening the patent system allows for examination of foreign applications on the grounds of patentability and protection of environmental, human, and animal health and moral order. While EMRs will provide no protection from the introduction of biohazardous material and the perpetuation of biopiracy, a strict and strong patent law has the potential to guard the basic right of the Indian people to food and health from the pharmaceutical and agri-chemical MNCs.