Thank you Chair for allowing me to summarise a number of key policy demands in relation to a fundamental review and reform of TRIPS. These demands relate specifically to patenting of life, biopiracy and food security, and are supported by NGOs and civil society groups in North and South. My contribution to this discussion is based on a joint NGO statement that has been launched last Monday in Geneva, which will be presented to WTO delegations at the forthcoming 4th WTO Ministerial Conference. In Doha, we ask the European Union and other WTO Members to initiate a process of reviewing and reforming TRIPS to redress the imbalances and inequities of the agreement and to prevent further negative effects of its implementation.

What we have heard today at this meeting underscores that the TRIPS Agreement (TRIPS) is facing a crisis of legitimacy. In the six years since it came into force, there have been ever-increasing levels of concern and evidence of social, environmental and economic problems caused by the implementation of TRIPS. Little, if any, of TRIPS promised benefits of technology transfer, innovation and increased foreign direct investment have materialised. Already there is increasing worldwide public opposition to TRIPS for its role in patenting of life. This opposition relates to the culture of commodification and private ownership of life

For of civil society groups and NGOs around the world, TRIPS represents one of the most damaging aspects of the WTO. The legitimacy of the WTO is closely linked to that of TRIPS. Contrary to the so-called free trade and trade liberalisation principles of the WTO, TRIPS is being used as a protectionist instrument to promote corporate monopolies over technologies, seeds and genes. Through TRIPS, large corporations use intellectual property rights to protect their markets, and to prevent competition. Excessively high levels of intellectual property protection required by TRIPS have shifted the balance away from the public interest, towards the monopolistic privileges of IPR holders. This undermines the sustainable development objectives that underpin EU’s development policies, including poverty eradication, conserving biodiversity, protecting the environment and the realisation of economic, social and cultural rights. These objectives are not only embodied in the Treaty of European Union, but EU Member States have also endorsed them during the UN Conferences of the 1990s and, within the OECD framework, as International Development Targets.

Patents on life, food security and biopiracy

At the heart of debates surrounding the patenting of life and its adverse effects on food security, farmers’ livelihoods, local communities’ rights, sustainable resource use and access to genetic resources - is the requirement of patent protection for life forms laid down in Article 27.3(b) of TRIPS. As we’ve heard today, patents on seeds and genetic resources for food and agriculture threaten sustainable farming practices, farmers’ livelihoods and food security. Farmers using patented seeds are deprived of their right to use, save, plant and sell their seeds. Article 27.3(b) also requires protection of plant varieties but gives WTO members the choice between patent protection, a sui generis system or a combination of both, for doing so. However, the option to protect plant varieties under a sui generis system is being reduced to compliance with the UPOV Convention, through pressure on developing countries from industrialised countries, including the European Union, the global seed and biotechnology industry, UPOV itself and the WTO Secretariat. Increasing consolidation of multinational corporations in the seed, agro-chemical and food processing industries has further concentrated the control over seeds, seed choices and ultimately, food security into the hands of a few corporations, and out of the hands of the farming communities. The patent system is also facilitating the theft of biological resources and traditional knowledge. The imposition of patent rights over biological resources and traditional knowledge unfairly deprive communities of their rights over, and access to, the same resources they have nurtured and conserved over generations. This contradicts the key principles and provisions of the Convention on Biological Diversity (CBD). The race to patent genes, cells, DNA sequences and other naturally occurring life forms has blurred the crucial distinction between discoveries and basic scientific information, which should be freely exchanged, and truly invented products or processes meriting patent protection.

Developing countries’ attempt to undertake a substantive review of Article 27.3(b) is at a stalemate. The review process, which started in 1999, has opened up to issues of substance but the European Union and other developed countries are not taking seriously developing country proposals for revision. The Africa Group, in particular, has voiced clear opposition to the patenting of life. The Group had called for a decision at the Seattle Ministerial Conference in 1999 to clarify that plants and animals as well as micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable. The Africa Group proposal has gained broad support from other developing countries in the WTO, as well as civil society groups and NGOs around the world. It is worth noting here that the European Parliament, in its March resolution on the WTO built in agenda, supported the ban on the patenting of animals, plants, micro-organisms and biological and microbiological processes. This position is maintained in the draft report of Harlem Desir MEP on international trade. It is also worth noting that the UN Sub-Commission on the Promotion and Protection of Human Rights adopted resolutions in 2000 and this year which pointed at actual and potential conflicts between TRIPS and the fulfillment of social, economic and cultural rights, and which urged countries to analyse and address at the Doha Ministerial the negative implications of the TRIPS provisions relating to the right to food. My colleague Ruchi Tripathi already referred to the 1999 UNDP Human Development Report, which spoke about “silent theft of centuries of knowledge”.

We, therefore, call on the European Union at the Doha Ministerial Conference to agree to the immediate undertaking of the mandated and substantive review of Article 27.3(b). The review must be conducted on its own terms, outside of the review of Article 71.1 of TRIPS or the wider WTO negotiations, and should: 

·      act on the Africa Group proposal to clarify that plants, animals, micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable;

·      respect the right of developing countries to determine the need for appropriate sui generis laws that effectively protect community and farmers’ rights, and promote agricultural diversity and sustainability;

·      in line with the clarification that living organisms and their parts are not patentable, further ensure that the provisions of Article 27.3(b) of TRIPS are consistent with the CBD provisions on national sovereignty, prior-informed consent and benefit sharing, with regards to access to genetic resources and traditional knowledge; and

·      take account of, and support the current negotiations in FAO’s International Undertaking on Plant Genetic Resources for Food and Agriculture to ban intellectual property rights on plant genetic resources for food and agriculture within the multilateral system, in the interests of long-term food security and to prevent biopiracy.

·      In the interim, the European Union and other WTO members should extend, with immediate effect, the implementation deadline for Article 27.3(b) for at least five years after the completion of the substantive review of Article 27.3(b);

Doha: Time for a fundamental re-thinking of TRIPs

Civil society groups and NGOs in North and South share the common view that the protection of intellectual property rights is not an end in itself. The objectives of technological innovation and the transfer of technology (Article 7 of TRIPS) should place intellectual property rights protection in the context of the public interest of social and economic welfare. Furthermore, TRIPS also acknowledges the right of WTO members to adopt measures for protecting overarching public policy objectives, such as public health and nutrition, and socio-economic and technological development, and to prevent abuse of intellectual property rights, and anti-competitive practices (Article 8). Yet, these fundamental objectives and principles have been ignored by certain developed countries in their interpretation and implementation of TRIPS. Attempts by these developed countries to force developing countries to adopt such flawed interpretations will only perpetuate the crisis of legitimacy that TRIPS is already facing.

We, therefore, call on the European Union at the Doha Ministerial Conference to:

·      Undertake a review of TRIPS under Article 71.1 to take into account new developments that may warrant modification or amendment of TRIPS. Such a review should include a critical impact assessment of TRIPS on food security, public health and nutrition, the environment, and its implications for social and economic development, with a view to revising TRIPS. An Article 71.1 review is mandated within TRIPS, and should therefore, be undertaken on its own merits so as not to be subsumed and traded-off as part of the wider WTO negotiations. 

·      As part of the review, we call on the WTO members to clarify that all provisions of the TRIPS Agreement must be interpreted in the context, and against the background, of Articles 7 and 8 of the TRIPS Agreement. WTO members should put into operation the objectives and principles enshrined in Articles 7 & 8 of the TRIPS Agreement to ensure the primacy of public interests over the security of private intellectual property rights.  Developing countries must be given maximum flexibility implementing TRIPS. They should not be restricted in their ability to adopt options or measures for implementing TRIPS that enable them to appropriately balance the overarching public policy objectives against private interests. Developing countries should also be given flexibility to reduce the scope and length of intellectual property right protection, including the right to exempt (or have a longer transition period for) certain products and sectors, on the grounds of public welfare and the need to meet development objectives.

·      Affirm a commitment not to apply bilateral pressures or tactics on developing countries to give up the use of options available to them under TRIPS. Similarly, pressures should not be put on developing countries, either through bilateral means or regional arrangements or in the WTO accession process, to force them into implementing “TRIPS-plus” measures or standards higher than those in TRIPS. In this respect, we would like to invite the EC to clarify why it has insisted – within the EU-Bangladesh Agreement – to include a clause which specified that Bangladesh will endeavour to join the UPOV 1991 Convention. This is not required under the TRIPS Agreement.

·      Extend the implementation deadlines within TRIPS for developing countries until after a proper and satisfactory review of TRIPS is carried out and appropriate changes are made.

·      Agree to observe, with immediate effect, a moratorium on dispute settlement action, until there is a satisfactory resolution of the review. Many developing countries are facing difficulties in implementing TRIPS at the national level but the transition period for the implementation of Article 27.3(b) expired on 1 January 2000. This means that the majority of the developing countries are now legally obliged to implement the TRIPS Agreement within their national laws, or face the imminent threat of being taken to the dispute settlement body of the WTO. The European Commission has said earlier that it has no intention to DSU steps against developing countries. Could it confirm this position here today?

·      Consider the rationale and desirability of TRIPS location in the WTO. TRIPS is protectionist, promotes monopolistic practices and profits, and almost exclusively benefits developed countries. As part of the fundamental review and rethinking of TRIPS, the European Union should question TRIPS’ place in a trade organisation that supposedly champions competition and free trade, and consider the removal of TRIPS from the WTO.

Thank you very much.