Free Trade Area of the Americas - FTAA |
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Public FTAA - COMMITTEE OF GOVERNMENT
REPRESENTATIVES ON THE PARTICIPATION
OF COVER SHEET FOR OPEN INVITATION CONTRIBUTIONS
INTELLECTUAL PROPERTY RIGHTS IN THE FTAA Introduction Observations contained in the following pages refer to the Chapter on Intellectual Property Rights and, more specifically, to the topics of protection of plant varieties and traditional knowledge of, and access to, genetic resources. FIRST OBSERVATION: In Article XX on International Agreements/Relation to other Intellectual Property Agreements, of section 1 (“GENERAL PROVISIONS AND BASIC PRINCIPLES”), paragraph 3 establishes that, in addition to the principles and rules of this chapter, member countries should apply provisions of various international agreements, including, among others, TRIPS, the International Convention for the Protection of New Varieties of Plants (UPOV Convention), and the Convention on Biological Diversity (CBD). In the concrete case of TRIPS and the CBD, it seems impossible to us that a country could simultaneously enforce obligations made in both agreements, since they are derived from different approaches. The result is that the former undermines the objectives of conservation and sustainable use of biodiversity on which the CBD is based. Indeed, by placing emphasis only on the private interests of intellectual property rights holders, TRIPS not only ignores communities’ legal rights (which are an indispensable condition for achieving said objectives), it also fails to place responsibility for conserving biological resources on those who have ownership rights over those resources. Article 10 of the CBD refers to the need to promote customary practices for using biological resources, such as, among others, that of storing seeds for reuse and eventual sale. This is considered to be an indispensable practice for the conservation of biodiversity. However, the international regulations on breeders’ rights set out in the 1991 UPOV Convention suggests that seeds from protected plant varieties cannot be reused, which creates obstacles to implementing Art. 10 of the CBD. SECOND OBSERVATION: Four versions of Article XX on patentable material are found in Section 6 (“PATENTS”); three of these refer to the protection of plant varieties:
Three different versions of Article XX, on the protection of new plant varieties, are set out in Section 10 (“Plant Varieties”):
The foregoing demonstrates the pressure that the draft text of the FTAA places on member countries to adopt UPOV-type legislation for the protection of plant varieties. There is considerably less leeway (unlike under TRIPS) for Latin American countries to draft any sui generis legislation that diverges from the UPOV Convention. Undoubtedly, the struggle to maintain this maneuvering room is a major challenge for Latin American countries that are still not party to the UPOV Convention (El Salvador, Guatemala, and Costa Rica, for example). THIRD OBSERVATION: Chapter 7 of the draft FTAA text refers to topics such as the protection of traditional knowledge and access to genetic resources. This is an improvement on TRIPS, which ignores both topics. In light of the heated debate taking place in many Latin American countries on the incompatibility of the CBD and TRIPS, the inclusion of these two topics in FTAA negotiations could be interpreted as an attempt at “reconciliation” with the Convention on Biological Diversity. Protection of traditional knowledge and distribution of the benefits are on the agenda for negotiation. In the first version of Art. XX (“Relationship Between the Protection of Traditional Knowledge and Intellectual Property, as well as the Relationship Between Access to Genetic Resources and Intellectual Property”), member countries are required to grant protection to traditional knowledge associated with biodiversity through a sui generis system or their own legislation. If they use their own legislation, it must regulate access to biological resources and traditional knowledge in a way that guarantees fair and equal remuneration for use by third parties. The principle of the sovereignty of States over their biological resources and traditional knowledge (established by the CBD) is recognized in this version, and accordingly, States are responsible for drafting national legislation to regulate access to their resources. However, it does not specify what type of intellectual protection should be granted to traditional knowledge. Because intellectual property rights (IPR) in their various forms (patents, breeders’ rights, copyrights, etc.) only recognize and remunerate the inventor (or group of inventors) of a new product, new knowledge, or a new idea, they are difficult to apply within traditional systems of knowledge of biodiversity-related practices and innovations, since these practices and innovations cannot be attributed to an individual inventor. They are, rather, the product of a community and are passed down from generation to generation. Furthermore, although the so-called “fair and equitable remuneration” for the use of a genetic resource and associated knowledge by third parties (for example, pharmaceutical or phytomedicinal industries) seeks to curtail biopiracy while meeting several requirements imposed by the CBD, in reality, it has not produced the expected results, from the perspective of countries and communities that provide biodiversity. According to literature on the subject, bioprospecting agreements (known as Agreements on Access and Distribution of Benefits) generally result in local suppliers receiving a pitifully small percentage (frequently less than 1%) of the earnings on sales of end products (pharmaceutical or phytomedicinal) derived from biodiversity that are sold in markets in the Northern hemisphere. In addition, these agreements have created new problems, including the high level of dependency that some communities have on the extraction of a given commercial plant. Hence, these communities would lose their only source of income if the company that purchases from them were to decide to buy the plant from plantations in other countries or to begin manufacturing the product in a more economical way. Other types of problems stem from disputes between communities or between members of the same community on the possibility of sharing knowledge considered sacred by some members of the community. Consequently, our position is that the “fair and equitable remuneration” formula, while a valid strategy for local communities or governments to obtain benefits derived from biodiversity, is not a panacea. This logic leads to biodiversity and associated knowledge becoming mere products that are unfairly commercialized, with no regard given to the multiple benefits derived from the local use of biodiversity. Therefore, on the basis of experience with bioprospecting agreements, the member countries must accept the challenge of finding one or more model(s) or other ways for the fair and equitable distribution of the benefits derived from biodiversity and associated knowledge. San Salvador, 30 April 2002 |
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