Implications of TRIPs Agreement on our Agriculture

With special reference to its impact on farmers’ rights, indigenous knowledge,
biodiversity and food security

By Tahir Hasnain

The first decade of the 21st century is a critical time in the development of agriculture across the developing world. Key international decisions will be made that will determine how we feed ourselves and what impact this will have on the natural environment. Analysis of the problems facing agriculture, how trade policy interacts with them, and the positions our government is taking at the World Trade Organization (WTO) reveals immense disparities between the design of current trade regimes and the need to develop alternative policies to deliver secure food supplies through sustainable agriculture.

National agriculture policies come within, and will continue to evolve under, the Agreement on Agriculture (AoA) - the global framework for agricultural trade relations. This international instrument, which is overseen by the WTO, promotes the liberalization of agricultural markets between its members. After the re-negotiations, the outcome AoA will determine the extent to which agricultural trade policy contributes to more environmentally sound agriculture, secure and equitable supplies of food, and the survival of viable rural communities. WTO agreement on Trade Related aspects of Intellectual Property Rights (TRIPs), however, has a comprehensive set of new rules and standards for Intellectual Property Rights (IPRs), which must be adopted by the all WTO member countries from 1996 onwards, depending on the status of development of the individual member state. Section 5 of TRIPs obliges member states to provide patent protection for all inventions, both products and processes. Clause 27.3 (b) of section 5 is about how plants and animals be patented.

TRIPS contains an exemption that allows WTO members to refuse to grant patents for plants and animals (other than micro-organisms). But if members wish to deny patents to plants, they must protect them by some "effective sui generis regime"—a system specially designed for a certain type of intellectual property—or a combination of the two systems.

The drafters of the TRIPS Agreement undoubtedly had in mind the International Convention for the Protection of New Varieties of Plants (UPOV Convention)—a regime that many countries are using. But some developing countries are creating their own sui generis systems, citing aspects of UPOV on which they want to improve (see Box 5-3). In the mandated review of the TRIPS Agreement in the WTO (starting in 2000), many developed countries are expected to push for less flexibility to develop such regimes.

Clause 27.3 (b) extends an exemption that allows WTO members to refuse to grant patents for plants and animals (other than micro-organisms and non-biological and microbiological processes). But if members wish to deny patents to plant varieties, they must have to protect them by some "effective sui generis regime"—a system specially designed for a certain type of intellectual property—or a combination of the two systems.

The civil society organization’s viewpoint is that all forms of life including microorganisms and microbiological processes should be excluded from section 5 of TRIPs. If the world has yet to go with the present state of agreement anyway, it is argued that the word ‘effective sui generis system had made the provision given in clause 27.3 (b) doubtful. The drafters of the TRIPS Agreement undoubtedly had in mind the International Convention for the Protection of New Varieties of Plants (UPOV Convention)—a regime that many industrialized countries are using which very much close to patents. Although, some developing countries are creating their own sui generis systems, citing aspects of UPOV on which they want to improve. However, it is generally feared that UPOV model will be set as the “effective sui generis system” and all member countries will be pressurized opt UPOV. Developing countries involved in formulating such laws, such as Plant Breeders Right’s (PBR) Act in Pakistan, are already facing bilateral pressures to join UPOV. Some argue that three elements of UPOV's 1991 Act may conflict with sustainable development objectives:

Duration of protection: Twenty years of protection, which may be too long from a consumer's perspective.
Breeders' exemption: Limited scope for breeders' exemption—the traditional free access of breeders to protected material for research purposes. If the new variety is "essentially derived" from the original variety, the intellectual property rights must be shared with the original innovator.
Farmers' rights vs. breeders' rights: Strong protection of breeders' rights—the intellectual property rights of formal innovators—but no protection of farmers' rights—the intellectual property rights of informal (typically poor) innovators.

Based on this, it is generally argued that TRIPs Agreement will affect the ownership of local seeds, plants and animals and, as a result, will endanger the food security of developing countries like Pakistan. Some of its impacts on farmers’ rights, indigenous knowledge, biodiversity and food security are given below:

Impact of TRIPs on Farmers’ Rights

WTO agreement on TRIPs disregards the interests of consumers, farmers and developing countries. Farmers constitute majority population of most of the developing countries and will directly be affected by this agreement. TRIPs agreement is threatening the real owners of natural resources on demands being made by some of the industrialized countries. TRIPs is a protectionist device promoting corporate monopolies of seeds, genes and medicine. It shifts the balance of control away from public interest to the private gains of patent holders. Who will gain control over crop seeds and food-stuffs? Concern is shown that transnational companies (TNCs), through genetically modification (GM) technology, will acquire patents and will, eventually, control everything from genes, seeds, plants, and agricultural harvests to food-stuffs. It shows in fact a monopolistic competition among TNCs and farmers. Farmers lack the scientific capability to innovate and patent genetic materials and are not even able to catalogue the natural resources they currently have. On the other hand, biotech TNCs are putting increasingly more resources and expertise to patent these. This also true in developed countries where farmers are not able contend with companies. There is a famed case of Percy Schmeiser – a Canadian farmer who was accused of illegally using Monsanto genetically engineered (GE) seed. In April 2001 the Supreme Court of Canada ordered him to pay eighty thousand dollars to Monsanto for violating its patent rights. Farmer’s seed had in fact been accidentally contaminated by the flight of pollen. Now, the scandal in this is that the court was of the opinion that it was irrelevant whether farmer’s seed had been accidentally contaminated by the flight of pollen or if Monsanto’s crop seed had in fact been used deliberately. Enforcing the corporation’s patent rights had in all events priority.

Similarly, in Pakistan farmers used Monsanto’s maize seed in the Swabi District and failed to produce any thing. They complained it to the seed dealer and they were given another bag of seed on credit basis. It is shocking to report that again they failed to harvest maize crop. Now the point is farmer has neither right nor such a power to take legal action against such a big TNC. Eventually, they re-ploughed all their fields and sowed whatever they managed local maize seed for their subsistence with as a certain degree of success.

Impact of TRIPs on Indigenous Knowledge

It is a recognized fact that poverty has not been alleviated so far in developing countries because the indigenous socio-economic systems have been neglected and excluded from the development and decision making processes. WTO agreements will further affect the indigenous knowledge of farmers. Under the TRIPs agreement, patents and effective sui generis systems, such as PBR Act in Pakistan, will restrict farmers to continue century’s old traditional system of seed storage, sharing and multiplying.

Impact of TRIPs on Biodiversity

One of the serious concern is the rapidly shrinking genetic diversity of cultivated species, as farmers switch from traditional varieties to new high-yielding strains developed by professional breeders. Beginning decades ago in the Green Revolution, farmers began to turn away from traditional varieties and to adopt modern strains that promised better yields and better resistance to pests and disease. By providing incentives to breeders to develop the new improved varieties, strengthened intellectual property rights contribute to this decline in diversity, although they are only one of a host of contributing factors. As a matter of fact, high-yielding varieties (HYVs) have already displaced less profitable crop seeds. Now, with the advent of WTO agreements, corporations will increasingly prevent access to their patented genetic resources through using exclusive rights.

The other threat is that under the umbrella of WTO, corporations of the North are pirating biodiversity of South by declaring the genes that have been “discovered” by them, and the crop seeds belonging to them, as their “property”.

TRIPs is also conflicting agreement with the UN Convention on Biological Diversity (CBD). CBD recognizes the sovereign rights of the states over their biological and genetic resources. The convention requires parties to protect and promote the rights of communities, farmers and indigenous people including their customary use of biological resources and knowledge systems. However, TRIPs does not reinforce the provisions of CBD. It does not require the patent holder to either disclose the source of origin, get prior informed consent from the genetic resource/knowledge holder (thus encouraging bio-piracy), or ensure that there is an equitable benefit sharing. Patenting and plant breeder’s rights under TRIPs carry with them the aims of politics of control and legalize biopiracy.

Impact of TRIPs on Food Security – In a situation when corporations will control the food production and distribution system

In the age of modern agriculture, poor communities face difficulty to produce or purchase food. Food distribution system is already a problem and once the food production and distribution system will be in the hands of corporations, poor communities will not be able to purchase food at company’s price.

The consumers have to see monopoly of patent owners, since they will have exclusive rights to prevent third parties to make, use, sell or import patented food items. Farmers will not be allowed to multiply seeds without their consent.

The other important thing to note is that food security is not merely a question of enough amount of foodstuff in quantitative terms as it is often expressed in the official documents. The quality of food available for the masses is also important. Apart from safety of food the question of food security also means diverse and quality food for healthy lives. Now in a situation when corporation will produce and market food, nobody will be able to question its quality.

Recommendations

On the whole:

A fundamental review and reform of TRIPs should be undertaken;
There should be an end with regards to bilateral pressures and bullying tactics with developing countries;
Implementation dead lines for developing countries should be extended;
A moratorium on dispute settlement action should be placed;
It should be reviewed whether TRIPs belongs within the WTO; and
As far as patents are concerned, these patents should not be granted on life forms.

On the Regional Level:

It’s a now recognized fact that developing countries can only go along WTO regime if they themselves are united and can resist its pressures for longer period to safeguard their rights.
As far as South Asian Region is concerned, despite current tensions at the boarders, the recommendation is that we should strengthen our linkages and, while negotiating WTO Agreements, we should come up with strong regional positions. I think that is the only way to contend with day-to-day bilateral pressures from the developed countries.
For our sustainable development, the other suggestion is that we should try to achieve self-sufficiency and avoid dependence on the developed world. If we succeed in this, then we could be able to stand against bilateral pressures and adopt policies entirely for the benefit of masses.

On a national scale:

A precise research should be conducted to support all these arguments against WTO and especially TRIPs.
Government of Pakistan (GOP) should take wider consultations before going to negotiate these agreements.
GOP should take a note that farming communities are not being consulted while dealing with WTO obligations to introduce IPRs on seeds and animals.
Farmers’ should be considered as culture and their rights must be safeguarded.

To avoid WTO implications, farmers are recommended to stick to the indigenous ecological farming practices involving use of own seeds with traditional storage and cultivation practices. If farmers are not dependent on TNCs, they can sustain their survival.

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