INTELLECTUAL PROPERTY RIGHTS IN THE FTAA

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.

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.

Four versions of Article XX on patentable material are found in Section 6 (“PATENTS”); three of these refer to the protection of plant varieties:

In the first version, which sets out the content of Article 27.3 (b) on plant varieties of the TRIPS Agreement, member countries are given the option using patents, an effective sui generis system (their own legislation), or a combination of both, for the protection of new plant varieties. In this way, countries have leeway to pass national legislation consistent with their circumstances and interests, for protecting the rights of breeders and other sectors that work in the area of biodiversity (local communities and farmers).

The second version (paragraph 6 of Article XX, “Patented Subject Matter and Exceptions to Patentability”) also refers to a sui generis system for the protection of plant varieties. However, an important difference between this and the first version is that, according to this version, member countries should consider the UPOV breeders’ rights system as a sui generis system. This is a subtle way of pressuring countries to adopt the international standards on breeders’ rights promoted by the International Union for the Protection of New Varieties of Plants (UPOV), instead of drafting their own legislation.

b) By proposing that a sui generis system would be the UPOV system, the third version (paragraph 4 of Article XX, “Patentable Material”) implies that member countries have no alternative but to adopt the UPOV system. In other words, countries have no leeway for establishing their own legislation. The 1991 UPOV Convention tends to protect large producers, forcing medium and small producers to increase their expenditure for reproduction materials used during planting, since it closes the door on the so-called “farmer’s privilege.” In other words, farmers that cultivate a protected variety cannot sell seeds from their harvest, nor can they store or exchange them (it is up to the State to decide whether the right to reuse the seed is applied or not). This runs contrary to all traditional rights of farmers and, in particular, to the practices or customs of exchange and innovation undertaken by small-scale producers for thousands of years. These practices of saving, selecting, and exchanging seeds are essential for enabling producers to obtain varieties adapted to local environmental and climatic conditions.

Three different versions of Article XX, on the protection of new plant varieties, are set out in Section 10 (“Plant Varieties”):

The first version establishes that member countries should provide protection for plant varieties through patents, a sui generis system such as the UPOV, or a combination of both. Once again, the implicit message is that UPOV should serve as the sui generis system. In addition, several paragraphs refer to conditions established under the UPOV Convention for granting breeders’ rights, including the requirements that a new plant variety must meet. Paragraph 9, on the other hand, allows for the protection of farmers’ rights (as the 1978, but not the 1991, version of the UPOV Convention provided).

The second version requires countries to guarantee breeders’ rights through a special registration system, but it provides no further details on what such a system would entail. This leaves considerable room for interpretation, which Latin American countries could use to develop regulations in this area that would reflect their own interests and specific conditions. In this case, each country could develop its own interpretation of the system’s key concepts (for example, “registration,” or “legitimate interests of the holder,” among others) and define breeders’ rights, seeking equilibrium between those groups that deal with plant biodiversity (rural communities, breeders, farmers).

While the third version does not make explicit reference to the UPOV system, it does describe the requirements that a new plant variety must meet (that the variety be new, uniform, distinct, stable, etc.) before a breeder certificate can be issued, and these conditions are identical to those established under the UPOV system. Furthermore, the breeder certificate is an intellectual property right that is granted by the UPOV.

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.