The start of the Jubilee Year 2000, with its universal call to feed the hungry, is an appropriate time for CIDSE (International Cooperation for Development and Solidarity) to refocus attention on food security and specifically the impact of biopatenting on poor communities who are the primary victims of hunger in our world. CIDSE’s world view is that of the poor. Hunger is a daily reality for 830 million people, the vast majority living in developing countries. Every 3.6 seconds someone dies from hunger; three-quarters of these are children under the age of 5. The scandal is that there is plenty of food in the world to feed everyone so the persistence of poverty and hunger are ultimately political and ethical challenges for us all.

In November 1996 world leaders convened the 2nd World Food Summit on the theme "Food for All". One of the central aims agreed at the Summit was a Declaration and Plan of Action, whose goal is to halve the number of people in extreme hunger by the year 2015. Clearly the world is not on track to reach this target in 15 years’ time. However, at the same time another group of global actors, transnational corporations (TNCs), argue that their approach to biotechnology, including the patenting of seeds using the latest technological processes, offers a real possibility of food for all. They claim this will result in higher yields, better quality crops and lower costs.

As power and profits are concentrated in a few agrochemical corporations which control most of the genetically modified (GM)(1) seed market, including staples such as wheat, rice and maize, crops which supply half the world’s food, there is no guarantee or evidence that the poor or hungry will gain. Currently 80% of patents on GM foods are owned by just 13 TNCs and the top 5 agrochemical companies control almost the entire global seed market. Small-scale farmers, most of them women, and local co-operatives in developing countries are expected to compete with agrobusiness and heavily subsidised developed country farmers on a very uneven playing field. Some have termed it a "killing field".

With power comes control, as corporations can engage in biopiracy, by using the knowledge of generations of indigenous farmers, performing a laboratory style scientific procedure and then applying for a patent to protect their research and investment. CIDSE’s view is that there is no problem per se with such research. It may indeed lead to better crops, thus promoting food security. What is unacceptable is the growing concentration of control of the world’s food supply in fewer and fewer corporate hands.

Such monopolistic power, rather than enhancing innovation in agriculture may well stifle it. Utilising community-based knowledge built up over generations by small farmers and then patenting the results means that poor communities end up paying for the use of genetic resources which they have nurtured. The green revolution showed that the benefits which accrued largely depended on the ownership of assets. This shows the need for policies focussed particularly on the contributions and needs of weaker, marginalised small farmer groups, especially women.

In the area of global trade, especially the food trade, we now have a multilateral system centred on laws made by a few powerful groups. Trade agreements born out of such inequality cannot represent a fair balance of interests. The forces of globalisation have been compared to a global village, although in many ways the benefits of village life, such as a sense of community, interdependence and mutual support are missing.

Pope John Paul II has commented: "All too often the fruits of scientific progress, rather than being placed at the service of the entire human community are distributed in such a way that inequalities are actually increased or rendered permanent…. The Catholic Church has consistently taught that there is a ‘social mortgage’ on all private property, a concept which today must also be applied to ‘intellectual property’ and to ‘knowledge’. The law of profit alone cannot be applied to that which is essential for the fight against hunger, disease and poverty." Taking this perspective the right to food security should always take precedence over profits and patents.

CIDSE believes that trade policy and food security are fundamentally matters of justice and human rights. The right to food is a basic one on which many other rights depend. Food is not just a commodity or product like any other: food is life itself. The patenting of life must be rejected as it contradicts the duty of human beings as stewards of creation, the earth and its resources which we are only beginning to discover, understand and value.

In speaking with a European voice on trade issues, EU member states represented by the European Commission need to remember commitments made at successive UN conferences on promoting biodiversity, sustainable development, reducing poverty and eliminating hunger, rather than prioritising the protection of corporate intellectual property demands. The EU and the broader international community in developed and developing nations must work to ensure that biological resources are used sustainably and that benefits from their use are justly shared.

The recommendations in this publication on biopatenting and food security arise from dialogue with groups working on these vital issues in developing and developed countries. If implemented they would go a long way towards promoting food for all early in the 21st century. As part of its work on trade and food policy CIDSE is committed to working with others to secure action on these recommendations and to ensure that national and international policymakers are aware of the impact on poor communities across the globe of the policy choices they make.

Justin Kilcullen, President, CIDSE
Jef Felix, Secretary-General, CIDSE

In particular, the 1996 World Food Summit recognised that hunger and malnutrition are due to the way food and wealth are distributed and how the benefits of increasing food production are shared. This recognition reflects the lesson learned from the Green Revolution: that adopting a purely "technology can fix it" approach to hunger can create more hunger and more food at the same time.

The 1992 Convention on Biological Diversity (CBD) recognises the sovereign rights of states over their biological and genetic resources. It requires signatories to protect and promote the rights of farming communities and indigenous peoples vis-à-vis their customary use of biological resources and knowledge systems. At present, CBD signatories are aiming to add a Biosafety Protocol to the CBD which would regulate genetic modification internationally. This Protocol is expected to help protect the rights of countries to decide for themselves how they wish to develop their agriculture in a sustainable fashion. A major weakness of the CBD is that the USA has not ratified this convention.

Patents are an economic incentive which give an inventor a temporary monopoly to commercially exploit an invention, in return for informing society about it. Patent rights last for a long time: 20 years is a standard timeframe. The 1995 Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) requires that all inventions are patentable. Though Article 27.3(b) allows World Trade Organisation (WTO) member states to exempt plants and animals from patenting, it does not exempt micro-organisms (like bacteria and viruses). It also requires a form of domestic intellectual property rights (IPR) protection for new plant varieties (a so-called sui generis system).

Today, the UPOV 91 (the 1991 Convention of the International Union for the Protection of new Varieties of Plants) is being pushed by powerful industrialised countries as the only effective IPR protection system. Under UPOV 91, only distinct, uniform and stable varieties are eligible for protection. Such varieties are the exception rather than the norm in agricultural practices in some of the world’s poorest nations and communities.

The landmark 1980 Chakrabarty case in the USA, which allowed patenting of an oil-eating micro-organism, triggered a similar trend in Europe and Japan, signalling the growing importance of biotechnology worldwide. The 1998 EU Directive on the legal protection of biotechnological inventions reflects the "fundamental importance of biotechnology for the Community’s industrial development". The Dutch, Italian and Norwegian governments have already challenged the validity of the Directive which, among other things, would allow for patents on isolated parts of the human body.

In 1995 developing countries signed up to TRIPs as part of a package deal. Many of them did not fully understand the social and economic implications. Developing countries had until 1 January 2000 to implement TRIPs; the least developed countries can take another 5 years, with possible extensions.

The new technology of genetic modification has opened the door for massive manipulation of biological resources with a growing economic value. Controls over plants and animals through patents will largely determine who controls the food system in the future. Transnational corporations (TNCs), i.e. big agrochemical or pharmaceutical corporations, have become the driving force behind genetically modified food, the global spread of industrialised agriculture and the privatisation of knowledge, bringing intellectual property rights under the WTO and its legally binding dispute settlement procedures.

In this way, a global IPRs regime is being promoted in a far from equal world, characterised by a growing concentration of power and wealth in the food system. The regime is biased towards protecting the narrow interests of a handful of TNCs, which are imposing an alien set of concepts of property on poor countries and subsistence farmers in which the poor’s interests and needs are very much secondary.

The Seattle meeting showed how a non-transparent and undemocratic decision making process can fall apart. The failure was in part the result of a revolt by developing countries. They had gained little, or even lost, from the trade liberalisation agreements of the Uruguay Round; they were excluded from key negotiating sessions in Seattle and they were insulted by the assumption on the part of industrialised countries that they would simply accept proposals agreed without their participation.

However, it is encouraging that EU member states opposed the European Commission proposal to form a WTO working group on biotechnology, a proposal intended to please the USA which had been critical about EU agricultural subsidies. Such a working group could further undermine the conclusion of a Biosafety Protocol.

On the basis of ethical, development and gender concerns, CIDSE has developed a set of policy recommendations on biopatenting and food security:

Living organisms are essentially different from industrial products. The current process of commodification of these which has accompanied the drive for patents on biological resources, has turned commerce into an idol. Yet food is not just another commodity, it is life. CIDSE thus fully supports the position of the African countries, presented by Kenya in August 1999 (see Box 9 for an outline of the Kenyan proposal.

Genetic diversity in agriculture enables farmers in both developed and developing countries to select varieties of plants and breeds of animals best adapted to changing climates and socio-economic pressures. Access to this diversity is vital for securing current and future agricultural production and food security. Yet many so-called improvements in farm crops tends to reduce biodiversity and marginalise the very crops the poor depend on but are regarded as unprofitable.

CIDSE believes that humans have a duty to preserve creation and with this the wealth of biological diversity and resources that we are only beginning to understand and value. Though human intelligence has enabled us to modify creation, exercising our technical and rational capabilities only becomes ethical when it is done in a way that respects creation. This is what we call stewardship. Where there is some overlap and ambiguity CBD should take precedence over TRIPs in order to protect farmers’ rights and to promote food security in both developing and developed countries.

CIDSE emphasises that the patent system monopolises knowledge. Community-based and traditional knowledge embodied in farmers’ varieties forms the basis of scientific plant breeding. The patent system does not compensate indigenous peoples for their accumulated knowledge and expertise. CIDSE denounces the present tendency to patent products based on traditional knowledge as this may curtail the rights of indigenous peoples to trade these products to countries where the patent was granted.

Farming communities in the South depend on traditional varieties (landraces) which have a mix of genetic characteristics and ensure at least some yield even in difficult climatic circumstances. The commercialisation of farming leads to landraces being pushed out of the market, to farmers becoming dependent on uniform commercial varieties, and undermines small-scale mixed subsistence and local market-based production systems. This process is further reinforced by credit organisations’ refusal to invest in so-called outdated technologies. This is a huge threat to small-scale agriculture with its multiple roles as it could dramatically reduce the food security of millions of poor people.

The impact of international policies on the poor is crucial to CIDSE, and we therefore emphasise the need to ensure that all actors (including the poor) are full actors, participating in decisions on issues which affect their lives. They are denied this by the poverty, hunger, disease, and lack of education which afflict so many millions in the South.

However, at present, there is a fundamental inequity in the formulation and revision of trade rules. The poorest and the highly indebted countries in the South account for only a tiny fraction of world trade, and find it hard to engage in multiple negotiations on debt, trade and other matters. Aid and loan conditionality can require changes in trade and market liberalisation policies. Aside from an unequal power relationship in negotiations, lack of resources also prevents these countries’ full engagement in trade negotiations. Some do not have representation in Geneva, and may have to rely on aid money to attend meetings.

In Seattle, many NGOs again drew attention to the lack of transparency and the behind closed doors mentality which allows a few powerful actors to dominate the decision making process. Important stakeholders, such as poor farmers – the majority being women - are systematically excluded from trade talks, while TNCs have little difficulty in gaining access to trade negotiators.

The General Agreement on Tariffs and Trade (GATT) recognised that countries with very different economic circumstances and conditions should be treated differently – what it called the Principle of Special and Differential Treatment. Such a principle is not applied in TRIPs, except through providing a staggered timetable for implementation and offering some technical assistance to comply with the requirements. This should be further developed and extended. The WTO Seattle Ministerial meeting formulated a proposal for a 2 year suspension of implementation obligations on TRIPs for developing countries. This is a step in the right direction but does not go far enough. As an immediate measure there should be a moratorium for the duration of the next Round of trade negotiations on any cases based on Art. 27.3(b) brought to the Dispute Settlement Body.

It is important to note that patents can have anti-competitive effects by strengthening the dominant position of the market leaders and thus limiting the entry of new competitors. If the dominant actor controls a pool of patents in a particular field, the pace of invention will slow down. CIDSE believes that granting a patent is unethical if the protection given to a small minority causes the majority to be denied the achievement of their full human development, especially when this applies to securing food and a basic livelihood.

At the moment, TNCs have the means to set prices, apply for patents anywhere they want (the costs of which are too high for small farmers), fight legal battles using teams of lawyers and steer privately funded R&D (research and development) in their commercially oriented direction. CIDSE endorses the call for rigorous anti-trust laws to prevent this small minority of firms from engaging in monopolistic behaviour. Such a call has been put forward by the World Bank and others.

The Parliamentary Assembly of the Council of Europe recognises there are many outstanding questions on patents and that the problem in the agrifood sector of protection of patents on living organisms must be solved quickly. The solution must take account of all interested groups, not least farmers and developing countries. The full implementation of CIDSE’s policy recommendations would, we believe, help to meet the food security needs of poor communities in the South. Putting livelihood and food security before patents and the commercial interests of large corporations is essential if the goal of food for all is to be realised early in the 21st century.

CIDSE (International Cooperation for Development and Solidarity) is a network of 15 Catholic non-governmental development organisations from Europe and North America. Our work is a practical expression of the social mission of the Catholic Church, and its preferential "option for the poor".

This position paper deals with one aspect of the growing marginalisation of the poor, namely the impact of biopatenting on food security and development prospects of the world’s poor, the vast majority of whom live in developing countries (2). Today, transnational corporations (TNCs) are promoting genetically modified food. Among their stated objectives in so doing is that such food can feed the hungry. However, the basic cause of food insecurity is poverty for many and extreme wealth for a few. The growing power of TNCs in the agricultural field and with this the monopolisation of ownership of certain production rights poses a major threat in terms of entrenching poverty and with it food insecurity.

A single article in one of the many agreements policed by the WTO - the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) - requires that all inventions are patentable, including those based on the exploitation of biological resources. Part of the TRIPs Agreement - Article 27.3(b) - allows WTO members to exempt plants and animals (but not micro-organisms like bacteria and viruses) from patents but still requires some form of intellectual property protection for new plant varieties. A review of these provisions began in 1999, four years after the Agreement came into effect.

TRIPs is one of several structural changes in the global economy that are a cause of widespread concern. Business and the world’s richest nations regard TRIPs as an essential building block of economic globalisation. CIDSE believes that trade rules should promote rather than hinder the achievement of the various international development targets agreed over the past decade during a series of UN Conferences, including the World Food Summit. These cover poverty eradication, sustainable development, social justice, gender equality, human rights and food security. These targets are for CIDSE and its member agencies the lens though which we assess policies vis-à-vis the developing world.

CIDSE believes that the patenting of life threatens poor farmers and indigenous communities’ livelihoods by encouraging the rapid spread of industrialised agriculture and the privatisation of knowledge. We believe that many decision makers are as yet unaware of the huge threat this poses to the poor in developing countries where the majority of people depend upon agriculture for their livelihoods. This paper sets out the developmental, ethical and gender grounds on which we oppose the patenting of life and with this any further elevation in the power of TNCs to the detriment of the majority poor in our world.

Part 1 examines what patents are, what biopatenting is and what the globalisation of patents through the WTO entails. This is followed by an ethical and Christian perspective on biopatenting. Part 2 looks beyond trade and patents to the TRIPs Agreement’s impact on food security, the environment, biodiversity, livelihood security, technology and research and development. Part 3 highlights various short and long term policy recommendations which we believe, if implemented, would help safeguard and promote the food security interests of the poor.

CIDSE welcomes your support in advancing the recommendations made in this document. Please provide us with feedback on any ways you find this document useful and about the initiatives in which you participate.

Like other forms of intellectual property rights (IPRs), such as copyright and trademarks, patents are a form of incentive and reward for inventions. They are designed to encourage commercial innovations, while allowing the knowledge behind them to be shared. Patents give inventors a temporary monopoly over new inventions which they can commercially exploit, in return for publishing information about the invention. In this way, inventions do not "die with the inventor", and others can try to invent something better, but sufficiently different so as not to infringe the claim of the original patent.

To be patentable, an invention, either a product or a process, must be:

• non-obvious for someone skilled in the art, i.e. not simply an extension of something that already exists but requires an inventive step;
• novel, i.e. not previously known;
• industrially applicable (or useful) in some way.

A patent right lasts for a fixed time (20 years minimum under the TRIPs Agreement, a long time given the pace of technological change) after which anyone can use the invention. The precise terms applying to patents vary from country to country and patents only apply in the country/ries in which they are granted.

IPRs have traditionally been associated with industrialised and market-based economies. Until the development of commercial plant breeding, they were little used in agriculture, as innovation largely resulted from farmers freely sharing seeds and inter-bred animals to produce a wide range of varieties and breeds suitable for differing climatic conditions.

Moreover, until 1970, discoveries in nature could not be patented, even if the inventor found some synthetic way to make a naturally occurring product which merited being called an invention instead of a discovery. Since 1970, this distinction has been gradually eroded, under economic and scientific pressure to allow living organisms, their parts and biological processes to be patented as "inventions" in some countries. Genetic modification is now providing radically new ways of manipulating biological resources, thus giving rise to immensely profitable industrial processes. In principle, genes can now be exchanged among plants, animals and micro-organisms regardless of their sexual compatibility.

Companies engaged in biotechnology have therefore pressed for the adaptation of classical intellectual property law to cover life forms, as being no different from any other form of technology. One reason for this is that unlike chemicals, living organisms can reproduce themselves after they have been sold. This limits the potential profitability of "biological inventions" for anyone who seeks to appropriate them or monopolise their use and sale. Demanding patents on plant varieties thus became an obvious option for companies to protect the revenues that such new technology promises.

In the USA, limited patents on some plant varieties were first allowed in 1930. In 1980, as modern biotechnology began to shape the development of intellectual property law, the US Supreme Court ruled that a genetically modified oil-eating micro-organism could be patented. In 1985, the US Patent and Trademark Office allowed genetically modified plants, seeds and plant tissue to be patented. The Office extended this ruling to animals in 1987 by allowing a patent on a mouse genetically modified to develop cancer. This move toward patenting life forms or biopatenting has more recently been mirrored in Japan and in the European Union (EU).

Patents and other forms of IPRs (such as Plant Breeder Rights which were developed in Europe as a less rigorous alternative to plant patents) will affect the future of global food security. Control of plants and animals through patents will largely determine who controls food systems.

According to a study for the International Service for National Agricultural Research(3) patents and other forms of IPRs are increasingly being used by companies to expand their market share, to prevent competitors from becoming active in particular countries, or as a bargaining tool to negotiate favourable local agreements.

Since the mid-1980s, there has been pressure from corporate interests in EU member states to allow biopatenting. It was argued that a failure to do so would harm Europe’s competitive position in the rapidly developing field of biotechnology - an area "of fundamental importance for the Community’s industrial development". This led to a hotly contested directive on the legal protection of biotechnological inventions. Rejected by the European Parliament in 1995, it was resubmitted with minor changes, and passed in a controversial vote in 1998, after much lobbying by industry and certain governments, which focused particularly on its importance for medical research. The Dutch, Italian and Norwegian governments have challenged the validity of this Patenting Directive on several grounds. Some concern legal technicalities, but one argues that the Directive poses a breach of fundamental human rights as it would make it possible to patent parts of the human body.

Following this change in patent law, the European Patent Office altered its implementation regulations under the European Patent Convention to allow for patenting of human cells as well as transgenic plants and animals. This came into effect in September 1999, thus paving the way for Europe to join the US in granting patents on life forms. This change to the European Patent Convention has occurred even though it contravenes article 53.b of the same Convention which exempts plant and animal varieties from patenting. This has already caused controversy(4).

Although the EU Patenting Directive bans the patenting of plant and animal varieties in one sentence, elsewhere it states "inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety". This means that genetically modified changes in a plant or animal’s general functions are patentable and this covers their use in all varieties of that plant or animal, and any offspring or product produced from them. It also allows genes to be patented as if they were inventions.

A significant political effect of the Patenting Directive which brings the EU into line with the USA, is to increase the pressure on developing countries to accept similar provisions on patenting.

The move to incorporate IPRs in the General Agreement on Tariffs and Trade (GATT) Uruguay Round

was led in the mid-1980s by a global alliance of TNCs which argued this was needed to stop the "trade-distorting" effects of piracy of intellectual property assets, e.g. production of counterfeit goods. By placing IPRs in the WTO, the successor to GATT, they became subject to its legally binding dispute settlement procedure (see Box 1).

Although revising trade rules is a complex and technical process, it is also largely a power play between different interests, both national and corporate. Industrialised countries which favoured TRIPs dominated the GATT negotiations, with the USA and Europe the key players in negotiating biopatenting. Both pharmaceutical and agrochemical companies in these countries wanted the TRIPs Agreement to include biopatenting.

Under the TRIPs Agreement, WTO members (135 as of late 1999) must allow all inventions to be patentable, with a few exceptions (see Box 2). As in the USA, life patents were permitted, with an additional stipulation that a sui generis (of its own kind) system of protection for plant varieties be included, reflecting Europe’s interests. A sui generis system is a unique or special system of national IPR legislation that covers a particular subject matter.

Developing countries had until 1 January 2000 to implement the TRIPs Agreement and the least developed countries have until 2006, with the option of applying for further extensions. New members of WTO, some of whom are in the category of least developed nations, however, do not necessarily enjoy transition periods. Objections to Article 27.3(b) from some developing countries were partly taken into account by leaving open the kind of system to be adopted for plant variety protection.

Most developing countries, however, signed up to TRIPs as part of a package deal, a trade off for elements in other WTO agreements, rather than because they wanted it. Although some objected strongly to Article 27, many signed it without any clear analysis of its implications – in part due to the binding capacity constraints facing poor countries in taking part in such technically complex, multi-faceted negotiations.

None of the main terms used in the Article, such as micro-organisms, essentially biological processes, effective, and sui generis system, were defined in the Agreement which makes various interpretations and disputes over them likely. WTO members can define what "invention" means and many developing countries, including Argentina, Brazil and the Andean Pact countries, exclude from patentability materials found in nature, even if isolated from it. There is also flexibility in interpreting novelty and inventiveness and the scope of claims that will be admitted.

The TRIPs Agreement globalises patents as every WTO member must have a patent system covering products and processes, which hitherto was not the case for many developing countries. It allows the owner of a patented product to prevent third parties from making, using, offering for sale or importing it without their consent. Owners of a patented process can prevent the use of the process as well as the commercialisation of a product made using that process. Thus, if a process to produce a plant (e.g. a genetically modified plant) is patented, the owner of the patent has exclusive rights over the plants obtained using the process. Farmers are not allowed to use any seeds coming from such a plant. Most importantly, in contrast with normal legal practice, the TRIPs Agreement shifts the burden of proof in a dispute over process patents to the defendant who must show that a product is not being produced by the patented process.

The TRIPs Agreement also extends plant variety protection globally. Countries are allowed to design their own IPR systems for this provided the protection is effective. However, what is considered effective is not defined. The UPOV system of Plant Breeders Rights (PBRs) is such a sui generis system (see Box 3). However, it was developed for institutional, commercialised breeding in developed countries in which farmers have to pay royalties on such seed and may not suit all countries.

Only varieties which are distinct, uniform and stable are eligible for "protection" under UPOV. Widespread use of such plants in developing countries has led to genetic erosion and reduced biodiversity. More than 75% of agricultural crop varieties and over 50% of domestic livestock breeds have disappeared from farmers’ fields in the last century(5).

According to the International Plant Genetic Resources Institute (IPGRI), a system suitable for intensive, industrialised farming systems is unlikely to be suitable or appropriate where there is a lot of subsistence farming. This is true in many developing countries and various governments are developing national legislation for protecting plant varieties appropriate to their situation. However, this is a challenging, time-consuming task requiring substantial capacity and resources(6).

1. A person who invents something, and wants to profit from selling it needs protection from someone who might sell the invention as their own. This is true both for individuals and organisations.
2. The technical aspects involved in the invention should be open and accessible.

The first principle is met by granting the inventor an exclusive right to sell the invention for a certain period of time. During this time the invention is regarded as the inventor’s "intellectual property". The second principle is met by making the knowledge of the invention available to all. This worked fairly well when patenting was applied mainly to mechanical inventions and chemical processes, and within industrial societies. Although people could abuse the system, ethical questions arose only rarely, e.g. in cases like a letter bomb, where it was felt that to publish information or produce the invention would violate general public morality – the French expression ordre publique.

Two important factors have changed the picture:

1. Patents were extended to biological material.
2. Patents became a key element in the globalisation of trade and technological advances, in food, agriculture and medicine, with an increasing trend towards the corporate use of patents to attempt to secure long term monopolies over large sectors of food production worldwide.

Neither biblical nor subsequent Christian theological reflection could have anticipated the advances in biotechnology and the choices which such advances have created. Nevertheless these reflections can stimulate moral discourse and prompt the sort of questions that we should be asking about biotechnology and intellectual property rights as well as the values which should inform policy on biopatenting and biotechnology.

Diversity

At the beginning of the 21st century we inherit a natural world immensely depleted in its resources and diversity; we inherit a greater – but still very incomplete – understanding of this world in all its dimensions than ever before; and we inherit social and economic systems that are signally failing to manage this world with equity or good stewardship.

Our world has been changed in multiple ways by humans in the course of human existence, but we have a duty to preserve it in such a way that future generations can benefit from the wealth of biological diversity and resources which we are only beginning to understand and value. We know that each "improvement" in farm crops – whether by hybridisation or genetic modification – tends to reduce biodiversity and marginalise those crops (and their genes) which in the present agricultural and economic context are regarded as unprofitable. These varieties are also the landraces on which the poor depend.

Stewardship

Women and men are made "in the image and likeness of God". Animals and plants are also creatures of God. From this, we derive the principle of treating creation with respect. This is summed up in the concept of stewardship.

Stewardship includes both the preservation and adaptation or modification of creation. Technology, including biotechnology, can be seen as a valid expression of our God-given rationality in our relationship with nature. Both our rationality and nature belong to the created order. That created order, however, is marred by sin. We know for example, that technology has at times released very powerful forces with severe consequences both social and ecological (e.g. nuclear weaponry). It is clear that our fascination with the technical sophistication of an innovation is no substitute for ethics. So exercising our technical rational capability is not ethical in and of itself. It only becomes ethical when it is exercised in a way that respects right relationships with our fellow human beings, creation itself and most profoundly God.

We know human beings are limited and finite in their understanding; that our understanding is rooted in and contingent upon the time and context in which we live; and that we are capable of making mistakes. The nuclear power industry, once acclaimed as a source of inexhaustible, cheap energy, is only one illustration of our capacity to make technological mistakes. Biotechnology is such a new field, with potentially far-reaching consequences, that we should proceed with caution and humility before embedding any technology in mainstream economic life and the legislation that governs it. David Byrne, EU Commissioner for Health and Consumer Protection recently said: "because biotechnology, in terms of genetic engineering, is such a new area, I believe we must be prudent and, in the case of scientific uncertainty, adopt a precautionary approach."(7)

This humility should also inform our approach to problem solving. Large claims are made for genetically modified farm crops but we do not know yet whether the solution of one problem – multiple spraying of herbicides, for example – by modifying plants to be tolerant of one particular herbicide, will lead to other more intractable problems. The principle here is that one should not attempt to solve problems in such a way that the solution gives rise to further problems which are even more difficult to overcome than the original one.

The Gospels require us never to overlook the poorest and most vulnerable members of society, telling us again and again that they are our sisters and brothers, and more, to ask not only what impact any particular measure will have on them but to discern what they have to contribute in insight, learning and inventiveness.

The preferential option for the poor(8) of Catholic social teaching makes the poor the starting point, emphasising that it is our responsibility to ensure that all can be full actors, something that is denied by the poverty, hunger, disease and lack of education afflicting so many millions in the developing world. This teaching recognises that the capacity of the poor to satisfy their needs and to develop fully as human beings by means of access to health and education is held back by structures controlled by the rich. Common values can also be identified across religions and political analyses. For example the Gospel of Jesus, enriched by Catholic social teaching, shares values with the talisman of Gandhi, which is nothing else but the face of the poorest man. Ganhdi taught that one should decide on the ethics of an action as if every decision was made keeping before one the face of the poorest man.

If granting patents on biological material leads to further disadvantage and vulnerability for the poor of the developing world, then patenting, which was once a response to potential injustice against the person of the inventor, now represents a real threat of injustice against the world’s poor. This can happen:

• by privatising genetic material to which they would otherwise have free access;
• by failing to recognise the collective achievement of previous generations of mainly poor farmers in identifying and isolating plant varieties and thus contributing to the sum of human knowledge and wellbeing; and
• by denying them access to biological inventions which could mean the difference between hunger and an adequate livelihood.

The Pontifical Council for Justice and Peace highlighted a number of ethical concerns based on the principle that the earth is ultimately a common heritage, whose fruits are for the benefit of all. The Catholic Church has always emphasised that "God intended the earth and all it contains for the use of all men and peoples, so created goods should flow fairly to all, regulated by justice and accompanied by charity. Whatever form property may take according to legitimate custom and changing circumstances, this universal destiny of the earth’s resources should always be borne in mind"(9).

With this understanding of nature, humanity and creativity we must look critically at intellectual property and trade. Since all creation starts with God, no human being has an absolute right of ownership. Creation is delegated to all humanity in a spirit of stewardship. We may own a cow, but the cow remains a creation of God. What we call ownership is more to do with grace and responsibility than personal rights.

At the same time, the seventh and tenth commandments(10) (one shall not steal or covet) set out principles which honour what a person owns or has produced. These must not be infringed by another person. As far as property may be part of a person’s livelihood, due protection is needed so that one person’s means of sustenance is not stolen by another.

Property rights, therefore, can exist for an individual or a group such as a company, but they are constrained by a wider social responsibility. All individuals have a duty to protect the rights of other individuals and thus contribute to the common good. This social duty, however, is limited and shaped by individual human rights. The frontiers between social responsibilities or duties and individual rights are under constant renegotiation as the world changes. Nevertheless we can say that the goods of creation are destined by God for the welfare of the whole human community. Yet in economic terms we tend, however, to use both people and creation as mere instruments of our purposes and powers. This distortion can lead to IPRs being used primarily as a means of wielding power over others, or to restrict access to the bounty of God’s creation to certain groups in society. As PBRs take precedence over farmers’ rights, wealth will become increasingly concentrated.

When this happens, a conflict arises between the rights and the social responsibilities of the patent holder. A patent is no longer ethical if the protection given to a few causes many to be denied the achievement of their humanity, and especially when it applies to having food and a basic livelihood.

A further responsibility that comes with having a property right is what Pope John Paul II has called the "social mortgage" on property. Shortly before the 1999 annual general meetings of the World Bank and IMF, John Paul II stated that "the Church has consistently taught that there is a ‘social mortgage’ on all private property, a concept which today must also be applied to ‘intellectual property’ and to ‘knowledge’. The law of profit alone cannot be applied to that which is essential for the fight against hunger, disease and poverty."(11)

From an ethical point of view this social mortgage arrives from the fact that property rights must be justified in terms of rights to a fully human life. Because human rights are universal the obligation for those with an unequal share of property rights is to address the needs of those without sufficient possessions to live, or to live fully. The social mortgage is a responsibility which exists at the same basic level as property rights. It is not an additional or optional qualification of property rights because both rights and responsibilities are justified in terms of the same rights to a fully human life.

Such an understanding of social responsibility calls the patent holder to examine the wider effects of the claim to exclusive use of the invention. The patent holder cannot be oblivious to the consequences of the patent. Where it would clearly lead to injustice, then the higher principle of social justice must take precedence. This should be especially so for companies whose power and influence is generally far greater than that of the individual(12).

Patenting must therefore be seen in its social, environmental and ethical context. This includes the promotion of human welfare and safety, a special concern for poverty and disease in the developing world, and removing injustice from society, animal welfare and care for creation. From a Christian point of view, these factors set limits to the importance of a commercial reward for inventiveness.

A turning point occurred when patent applications involving living organisms began to be filed on a regular basis. Although there was already a predisposition to regard patenting biological resources as no different from patenting anything else, the decisions of the US Supreme Court in the landmark Chakrabarty case(13) established a principle that "the relevant distinction was not between living and inanimate" things but whether living products could be seen as "human made inventions". This was part of a major but invisible cultural change, expressed by a senior UK patent expert, R S Crespi(14):

In almost all ethical systems, however, a vital distinction is made between how we treat what is living and what is not. Firstly, animals and plants are creatures that have a life of their own. They are not merely products of industry, or mere objects for human use. The shift of perception from product of nature to product of industry is part of a process of commodification which, carried to its logical extreme, would reduce all creatures to their mere functional use by humans. It denies their essential inherent value.

The EU Biopatenting Directive strongly affirmed the principle of patenting almost everything biological. It merely added a set of arbitrary exclusion clauses for applications such as human cloning known to be politically sensitive to the European Parliament. It did not respond appropriately to the full range of relevant ethical concerns, and made clear that its prime concern was European economic growth and competitiveness. This drive to patent everything biological turns the commercial paradigm into an idol.

The second distinction concerns what has been invented. Where genetic modifications to an animal or plant are an issue, the addition of two or three genes to an animal with perhaps 100,000 genes does not turn the animal into a human invention. The inventive step is to add the new gene construct to the animal. The novel construct might be rewarded by a patent, or the inventive application of a modified animal to a specific purpose.

The Church of Scotland (15) put its opposition to patenting living organisms like this:

The same applies to a gene. It may take great intellectual effort to decypher a gene and identify its function, but the gene is just as much a product of nature as the animal. Despite the considerable investment involved, the identification of a gene’s function is not an ethical ground for claiming inclusive rights. Even though intellectual effort has been used, it is of the nature of discovery, not of invention. However, the EU wanted to find a premise to patent human genes. The Biopatenting Directive states that genes are patentable inventions because they have to be copied, using bacteria or chemicals, in order to be isolated and identified.

CIDSE’s view is that any assessment of bio-patenting and Article 27.3(b) of the TRIPs Agreement needs to be considered alongside a series of international development targets agreed at UN conferences in the 1990s.

• The overall aims of the Convention on Biological Diversity (CBD) agreed at the Rio Earth Summit in 1992 are "the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies."
• Gender equity and the empowerment of women, as agreed at the 1995 Beijing Conference on Women, are particularly important for poverty eradication and food security (see Box 4). Since the 1970s, the number of women living in poverty has increased by 50%, in comparison with 30% for men. Women play a crucial role in agriculture, in particular in the preservation of seeds, and in many developing countries they grow over half the food. In large areas women’s home gardens represent some of the most complex agricultural systems known to us. Women’s traditional knowledge and skills, and community knowledge more generally, are threatened by the extension of an individualistic, western-based system of IPRs.

• The World Food Summit (WFS) goal of "reducing the number of undernourished people to half their present level no later than 2015" was accepted by governments in November 1996. The Summit said, "food security, at the individual, household, national, regional and global levels [is achieved] when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life".

The World Food Summit recognised that poverty underlies hunger and that no single factor such as technology will end hunger. Instead hunger and malnutrition are due to the way food or wealth are distributed, how the benefits from increasing food production are shared and the quality of food which people eat. It is ironic that many developing countries where hunger is chronic are in fact net food exporters. Brazil, for example, is the third largest food exporter in the world, yet a fifth of its people (about 32 million) do not have enough food. About 100,000 children die of hunger every year. Clearly, hunger is not due to lack of food but is caused by both the highly unequal distribution of wealth and the huge number of people who are landless.

Adopting a purely "technology can fix it" approach to hunger problems can create more hunger and more food at the same time. Decades after the green revolution, Brazil, India, Ethiopia and Thailand among others have shown that increasing food production at national level is no guarantee for food security at the local level (for further analysis of this issue see Box 5)(16).

• The 1995 World Summit on Social Development goals of gender equity, of poverty eradication and its initial target to reduce the proportion of people living in extreme poverty by at least half by 2015(17).

The EU and its member states, as well as most other industrialised countries have signed up to these goals and current OECD international development targets agreed in 1996 are derived from them. However, these food, gender, and poverty targets are not legally binding. The CBD and WTO Agreements are legally binding, but only WTO rules are subject to sanctions for non-compliance. It is essential that trade rules do not take precedence over these more fundamental commitments.

Historically, the earth’s life forms - plants, micro-organisms and animals - were considered by many as the common heritage of humankind. Over millennia, communities developed many different farming systems, with innumerable animal breeds and plant varieties producing a diverse agriculture. This slow evolution of agriculture created a vast store of traditional, community knowledge. The CBD recognises the sovereign rights of states over their biological and genetic resources(18). Many developing countries expected this change would generate income from developed countries, especially when components from native plants were used by pharmaceutical companies. But, as the CBD recognises, the situation of plants and animals used for agriculture is different as nearly all countries are to varying degrees interdependent on others for what they cultivate.

In general, the CBD requires access to genetic resources on mutually agreed terms and with the "prior and informed consent" of states unless states have otherwise determined (Art.15.5). But the position is different for plant genetic resources for food and agriculture and seed in gene banks collected prior to the CBD which are dealt with under the International Undertaking on Plant Genetic Resources (IU) for food and agriculture. This is being revised at the Food and Agriculture Organisation to bring it into line with the CBD (see Box 6).

At present, attempts are being made to patent products based on traditional community knowledge. Once a patent has been established over a plant or plant variety used by farmers or indigenous peoples in the South, their right to trade that plant to countries where the patent holds will be severely curtailed.

By 1999, the CBD had 175 signatories but seven countries, including the USA, had not ratified it and so are not bound by its rules. The Convention requires parties to protect and promote the rights of communities, farmers and indigenous peoples vis-à-vis their customary use of biological resources and knowledge systems. It asserts that intellectual property rights must be supportive of and not run counter to its objectives, but also that technology transfer should be on terms which recognise and are consistent with the adequate and effective protection of IPRs. Developing countries which provide genetic resources should have access to technology which uses those resources, on mutually agreed terms, including technology protected by patents and other IPRs.

Almost all centres of plant genetic diversity are in the South. As we have seen before, the spread of agro-industry results in a loss of genetic diversity. Many subsistence farmers are losing their livelihoods because they are forced to compete with high yielding varieties whose cultivation is given preferential support by credit and other bodies. This leads to hunger and poverty.

Biopatenting and PBRs carry with them the aims and assumptions of the system of industrial agriculture of which they are a part. They can threaten agricultural biodiversity if they result in the widespread use of uniform varieties. They can encourage the rapid spread of industrialised farming systems to the developing world, and the speedy promotion of genetically modified crops and animals, which are highly controversial. Recent findings(19) indicate that the promotion of these technologies will not advance the food security of the poor.

Rules and control systems to manage the introduction of genetically modified plants into the environment and monitor their effects should be in place before any patent regimes which encourage the development and release of such plants. The failure to agree a Biosafety Protocol to the CBD at Cartagena early in 1999, in large part the result of opposition to liability clauses from corporate interests and the USA, increases CIDSE’s cause for concern.

There is overlap and ambiguity between the TRIPs Agreement and the CBD. Economically powerful interests are applying pressure to insist that nothing in the CBD should restrict the terms of the TRIPs Agreement.

Even according to the TRIPs Agreement’s own objectives its effects are uncertain. These are contained in Article 7:

The economic benefits and costs of IPRs are not clear-cut, as the World Bank admits in its 1998/99 World Development Report: Knowledge for Development. Patents can have anti-competitive effects by securing and strengthening the position of market leaders and limiting the entry of new competitors. They may even slow the pace of innovation if a dominant firm possesses a powerful pool of patents which limit the ability of other firms to improve existing products and technologies. Also, companies can use imports to fulfil the requirement to use the patent in the country where it is held, rather than transfer skills so the patent can be used for local production.

There is a sharp conflict within biopatenting systems in that they assume the structures and context of an industrialised society which are largely alien to poor farmers the world over. They are biased in favour of the few largest companies which can afford the legal fees necessary to protect their interests. These companies conduct their business in fora from which the poor are excluded or if they are present, have no voice. The global application of the TRIPs Agreement is in danger of imposing on poor societies and communities an alien set of concepts of property in which their interests are far from the main emphasis.

A global IPRs regime is being promoted in a very unequal world in which there is a growing economic concentration of power in the food system. In CIDSE’s experience, this does not benefit poor people and contradicts a central principle of Catholic social teaching: subsidiarity, that is, devolving control of production and life/livelihoods to the most appropriate local and community level. Yet in every sector - from agrochemicals to catering - fewer and fewer companies dominate the market. According to the Voice of Irish Concern for the Environment, at present 80% of patents on genetically modified foods are owned by only 13 TNCs and the top 5 agrochemical companies control almost the entire genetically modified seed market. At the same time 1.4 billion farmers in the developing world depend on saved seeds for the following year’s crop(20).

Extending biopatenting into an increasingly concentrated market structure will favour the larger players. Mergers, like the recent one between Monsanto and Pharmacia-Upjohn, create even larger firms which together tend to produce an oligopoly that allows them greater freedom to fix higher prices, enabling them to recover research costs with a disproportionate profit margin.

These powerful firms can also employ large, well resourced teams of lawyers. Applicants must apply for patents in each country where they want them, pay an annual fee to maintain the patent, and pay patent agents costs. Simply filing a patent in a country can cost between a few hundred and few thousand dollars and the overall cost of preparing a patent application can be much more(21). This is well beyond the financial capacity of small farmers.

Obtaining a patent is not the end: you may need to defend it, which can be even more costly. Firms at the forefront of biotechnology are busy in the courts worldwide to establish who owns new processes and plant varieties. In the USA, experience so far shows industry is using the law in two ways. One is in disputes over the exclusive use of a particular gene sequence. The other "is essentially the use of patents that cover an entire market in an apparent effort to drive all competitors out of the market (or at least create a strong negotiating position for a licensing agreement)" according to John Barton of Stanford Law School(22). In such a structure, small firms invest in biotech innovation expecting to make money when they are sold to large firms, or can licence their inventions to larger firms able to exploit them.

More strongly enforced IPRs which are wider in scope and geographical application also lead to restrictions on the flow of germplasm (breeding materials). This limits the development of new plant varieties particularly by publicly funded international institutions such as those supported by the Consultative Group on International Agricultural Research (CGIAR). Indeed the seed industry is also concerned about the reduced flow of germplasm. Many in the biotechnology research community are now advocating much narrower patents, recognising that very wide patents can hold back further scientific advance.

Overall, the tendency for IPRs in concentrated markets to support an existing minority of powerful firms and thus to facilitate anti-competitive behaviour requires strong countervailing measures. The International Plant Genetic Resource Institute (IPGRI) argues that any strengthening of IPR regimes needs to be counterbalanced by a range of rigorous measures including anti-trust laws(23).

GATT recognised that countries with very different economic circumstances and conditions should be treated differently – what it called the Principle of Special and Differential Treatment. Such a principle is not applied in TRIPs, except through providing a staggered timetable for implementation and offering some technical assistance to comply with its requirements.

The rapid spread of global minimum rules on IPRs without a comparable global minimum national resource and negotiating base on all sides is likely to preserve the existing imbalance in the way these rights operate. The World Bank warns that "so many industrial-country firms are acquiring strong intellectual property positions, often covering fundamental research tools as well as marketable products, that it may prove hard for new firms and researchers to elbow into this new global industry"(24).

Both developed and developing countries have used the absence of patents for infant industries to examine and copy products and develop local production capacities. In some developing countries with patent systems, patent protection was not allowed on certain products, such as pharmaceuticals. Likewise, agrochemicals and plant varieties were common exemptions to national patent laws. This lack of patents may have reduced inward investment but it may also have produced net economic benefits for the country and made food and medicines accessible to the majority of their populations who live in poverty.

Today, IPRs can disadvantage developing countries "by increasing the knowledge gap and by shifting bargaining power towards the producers of knowledge, most of whom reside in industrial countries" warns the World Bank(25). This is true but it also implies that knowledge is only produced by commercial and research-based activities. It ignores, for example, the role played by farming communities in developing countries in producing knowledge about plants and animals.

Knowledge embodied in farmers’ varieties forms the basis of scientific plant breeding.

Since IPRs regimes are essentially individualistic and private they are ill-suited to deal with community-based and indigenous knowledge. They can result in the piracy of traditional knowledge (see Box 8).

The 34th Ministerial Council of the Organisation of African Unity (OAU) held in Burkina Faso in June 1998 expressed concern that the Western patent system of the TRIPs Agreement was laying claim, in a massive way, to the biodiversity, knowledge and technologies of local and indigenous communities in the South.

This concern gave rise to the initiative to define appropriate elements of a community intellectual property rights protection system to safeguard the interests of the South. An OAU model law was drafted to regulate access to biological and community knowledge and technologies and to control access to these by TNCs. After the OAU Ministerial Council adopted the model law it also recommended work to develop and adopt an African Convention for Biological Diversity with special emphasis on biological resources and community rights.

The culture of IPRs supports a privatisation of R&D and promotes a decline in the open culture of science(26). In the industrialised world, agricultural R&D used to be largely paid for from public funds and the results made freely available to farmers and scientists. But there has been a major shift from public to private sector funding of R&D. In many countries, governments have moved away from near-market research, which has immediate applicability to farms, to more fundamental research which private R&D is better able to develop and bring to market.

Corporations, naturally, invest in areas where they can expect a return. The former agrochemical companies have expanded to become biotechnology/seed/pharmaceutical companies (or "life science" companies) and have made huge investments in this area – over $8 billion per year in the USA alone(27). It is feared this private proprietary science will focus on crops and innovations which will find rich country markets and ignore those of interest to poor, small farmers.

Some researchers argue that a narrow focus on biotechnology in R&D, directed largely by private industry, is dangerous and irresponsible as it reduces the range of solutions to various problems – especially those that can be freely adopted, adapted and exchanged by small farmers. It also fails to recognise the longstanding and traditional role farmers and communities play in R&D.

Patents and PBRs were developed for institutional breeders serving commercial farmers in the industrialised countries, not for developing countries. In developing countries poor farmers, the majority of them women, practice mainly subsistence farming; crops are mostly local food crops which are not widely traded with seed saved from year to year and exchanged between local farmers. The crops grown are often not uniform commercial varieties but farmers’ varieties (landraces) which have a wide range of genetic characteristics and ensure a food supply by guaranteeing at least some yield, even in difficult conditions.

Food security for most small-scale farmers is based on access to land and water, seeds and tools. Their meagre cash incomes are already stretched by other costs, such as school fees and health charges. Complete dependence on the market for their agricultural inputs or food needs is simply too risky and is likely to be so for the foreseeable future.

The general extension of the patents and PBR regime will promote commercialisation of farming in developing countries. This is rapidly undermining the whole base of small-scale mixed subsistence and local market-based production systems. For example, in the Philippines credit institutions tend no longer to support traditional agriculture(28). If private R&D produces varieties and methods most suitable for medium and large-scale farmers who can afford to invest in them, many small farmers will be squeezed out. They will be unable to risk innovation unless there are appropriate safeguards for them to do so. The impact of such a result would be first felt by small farmers, especially those with precarious title to their land, increasing landlessness, social dislocation and swelling population movements to urban centres.

Despite the greater productivity of small-scale agriculture in terms of unit area, which also fulfils multiple roles(29), too often national policy makers see production as the key issue, millions of small farmers as a problem, and larger farms as highly preferable. But unless there are alternative livelihoods, the new agricultural regimes could impoverish millions and reduce their food security dramatically. Any changes in R&D and IPRs must be sensitive to these realities and aimed at promoting the needs of poorer farmers.

Equity in negotiating power is essential in making rules which affect people’s lives. Yet there is a fundamental inequity in shaping and rewriting current trade rules. A small number of countries dominate the WTO’s workings - the EU, USA, Japan and Canada, known as "the Quad". A relatively small group of developing countries (including India, Kenya, South Africa and Egypt) are quite active on TRIPs, but many developing countries find it hard to play an effective role. The poorest countries account for only a tiny fraction of world trade and are often highly indebted. If they want to qualify for loans and aid they may be pressurised to follow specific policies, such as further trade liberalisation as mandated by the WTO.

In general, most developing countries are in a grossly unequal position compared to the industrialised countries in the WTO. Indeed 29 of the 135 WTO members do not have any representation in Geneva. The few staff in their missions may have to cover all the international organisations in Geneva. Even if they just focus on the WTO, most find it impossible to cover the different aspects of up to 30 agreements which their countries have signed. The recently agreed Legal Advisory Centre for developing countries is a first step in the right direction but much more remains to be done given the scale of inequality. Where such gross inequity exists in terms of power one cannot expect ethical outcomes.

Each agreement is monitored by a council or committee but it is the members of the missions in Geneva who sit on these councils. With up to 10 meetings a day and a staff of one or two persons, developing country mission staff can attend very few. If their country is involved in a dispute this will absorb most of their time. Many developed country missions also bring additional specialists if necessary. For those developing countries without a mission in Geneva, the staff responsible for trade issues are located elsewhere, in Brussels, for instance. In addition, the few government officials from the poorest countries are also involved in negotiations on debt and adjustment in other fora. They may even have to rely on aid funding to attend important meetings.

Only 40-50 members, largely from developed countries, reportedly attend the TRIPs Council meetings, although just who attends is not made public and NGOs are not allowed to observe. A full record of formal business is only issued six months later. Much discussion often takes place in informal sessions where records are not kept and promises made are not binding. This Council is responsible for the review of Article 27.3(b) of the TRIPs Agreement.

The review of Article 27.3(b) started in February 1999 and has proved as contentious as the original negotiations. The Council for TRIPs could not agree on the timetable or scope of the review. Some, including the EU, USA, and most other developed countries, argue that it is a review of the extent to which the provisions have been implemented. Most developing countries have not even started implementing these provisions and argue there is urgent need for a comprehensive review of the Article to inform revisions of the text. CIDSE supports the latter position (see Box 9).

The review is taking place before most developing countries have had to comply with the provisions and with little analysis or evidence of its effects. The Council has carried out an information gathering exercise, covering organisations such as FAO, but civil society groups, such as farmers’ organisations, have not been included.

If the provisions are revised within the Council for TRIPs, agreement must be reached by consensus leaving no room for policy trade-offs. If this does not occur and negotiations take place within a comprehensive new trade Round, countries could trade off a shift in their position on Article 27.3(b) for a concession in another area. In this kind of exchange, however, the more powerful and informed countries are likely to benefit most.

Long term, the USA and the pharmaceutical and agri-biotechnology industries want Article 27.3b deleted so that everything becomes patentable. In the interim, they want UPOV 91 to be the sole sui generis option for PVP. Most other OECD members agree. The European Commission has the mandate to speak for member states of the European Union in the TRIPs Council and its position is developed by its Trade Directorate. Some business organisations want the Article left as it is at present as they fear a review could lead to a weakening of IPR provisions. In Seattle, during the third WTO Ministerial Meeting, the European Commission seemed, by proposing a WTO Working Group on Biotechnology, to open the door for extending patenting to plants and animals. In any case it showed little concern for developing country long term interests, or for concluding a Biosafety Protocol under the CBD. This did not succeed as it was opposed by the EU Council of Ministers at Seattle.

The position of developing country governments varies - most oppose any tightening of IPRs but some civil society groups and governments want animals, plants and micro-organisms excluded from patentability and the requirement for plant variety protection removed. Others seek to link interpretation of the WTO agreements systematically with other obligations, notably those in the CBD(30). TRIPs is a long term concern for many developing countries rather than an immediate one and the opposition to tightening IPRs did not emerge very strongly in Seattle. Even India’s role was low-key, though apparently, that may have been linked to bilateral trade negotiations with the USA. If true, this is just another example of how long term interests are traded for short term gains (e.g. market access).

International rules on biopatenting need to be changed. CIDSE believes the nature of these rules as well as the unequal playing field of trade relations are contributing to greater inequality and livelihood insecurity among poor countries. Our long term aim is to challenge and transform the overall framework surrounding IPRs and food security.

At present development objectives are secondary to commercial interests; this is not acceptable. CIDSE opposes any manipulation of global treaties which would make market principles the supreme criterion to which all other concerns become subsidiary. In the short term we seek to minimise the adverse effects of the existing framework, ensure that what flexibility it offers is retained and improved and maximises support towards capacity building for developing country governments, particularly the governments of least developed countries, in addressing the issues at stake.

CIDSE supports:

1. Rewriting Article 27.3(b) of TRIPs to exclude all life forms from patenting and removing the requirement for plant variety protection, with a moratorium on implementation in the interim;
2. a) Ensuring the provisions of the CBD take precedence over TRIPs Article 27.3(b);

b) Ensuring that a revised TRIPs Agreement contributes to achieving internationally agreed development targets;

3. Introducing the principles of special and differential treatment of unequal parties contained in the WTO articles into the TRIPs agreement;
4. Greater equity and maximum transparency in the WTO negotiation process with adequate representation of all stakeholders in such negotiations;
5. Introduction of strong anti-trust codes in the WTO.

1. Ensure that the global IPR regime reinforces the various international development goals agreed at successive UN Conferences in the 1990s.
2. Encourage greater equity and a more balanced negotiating process by supporting capacity building within developing countries to allow adequate preparation for negotiations and support for negotiating positions by:

• Supporting work on developing sui generis systems other than UPOV;
• Providing assistance to ensure inter-ministerial work on the WTO, CBD and the IU;
• Supporting the development of national capacities to monitor and evaluate implementation of trade policy provisions, by both government and civil society groups, and to defend national interests in dispute settlement procedures;
• Supporting independent international legal technical assistance institutions in Geneva, such as the South Centre, to assist developing countries in dealing with both the complexities of WTO negotiations and use of the dispute settlement procedure;
• Providing practical assistance to support electronic contact (phone, fax/e-mail) between Geneva negotiators and capitals, with a minimum basic provision for all countries including internet access.

1. Reverse the burden of proof in the dispute settlement procedure over process patents. At the moment, when accused by a patent holder, defendants need to prove their product is not being produced by the patented process. This is heavily weighted against small farmers and companies, particularly those from developing countries, and also reduces competition. The obligation should be on patent holders to prove that the product is being produced by "their" process.
2. Promote dialogue and consultation:

• between people from different community and religious belief systems to examine the issue of biopatenting and the creation of alternative regimes for rewarding innovation in the biological sphere that respects ethical and religious beliefs; and
• liaising with development and environmental bodies to assess the possible impact of IPRs on biodiversity and traditional knowledge systems.

1. Increase transparency in the WTO negotiations process:

• by making available documents, lists of participants and granting observer status to relevant parties;
• by allowing changes to TRIPs to be negotiated as a single issue within the WTO.

1. Assess the possible and actual impact, especially the gender impact, of IPRs on food and farming, on R&D for poor farmers and their families and on poverty eradication.

• Evaluate the usefulness of potential biotechnology advances for developing countries and of the outputs of publicly funded organisations, including support for those CGIAR centres doing such work;
• Encourage and support competitive, publicly funded R&D among poor small farmers, building on their indigenous knowledge, especially that of women food producers and those dealing with the problems of subsistence food crops;
• Focus on a range of non-proprietary, locally adapted types of farming technologies and low cost community and area-wide approaches. This should offer alternatives to the branded solutions being developed by the corporate sector.

1. Assist countries to develop:

• various testing, monitoring, certification, biosafety requirements needed to support the adoption of new technologies and legal requirements;
• necessary anti-trust regulations and the capacity to enforce them nationally and internationally.

1. Encourage and support greater involvement of national and local stakeholder groups in developed and developing countries to understand, develop and defend their rights. Stakeholders’ consultations are needed to debate issues concerning:

• national policies on biopatenting;
• the balance of rights between corporations and communities and between public or social and private interests;
• the relative national importance of traditional or community versus commercial agriculture and the nature of R&D this entails;
• the danger of trade-offs and giving away long term food security interest for short term trade gains.

1. Ensure that the global IPR regime reinforces the development goals of the Amsterdam Treaty to which its member states are committed along with the international development targets agreed during various UN Conferences during the 1990s;
2. Ensure inter-departmental cooperation on WTO, CBD and IU, in particular between the Directorates-General dealing with Trade and DG Development (including its food security unit);
3. Support the 23 September 1999 Assembly of the Council of Europe Recommendation on biotechnology (Nr 1425: see Appendix 2), which considers that WTO rules and the issue of patenting living organisms should comply with the CBD, and adapt the Biopatenting Directive 98/44/EEC accordingly;
4. Fully implement Recital 38 of the 1997 EU biotechnology patent directive on the need for "fair and equitable sharing of benefits arising out of the use of genetic resources, including the protection of knowledge, innovations and practices of indigenous and local communities ...." and at the same time define "fair and equitable";
5. Establish an independent, broad-ranging, commission to address fundamental questions about basic IP rules, in cooperation with all the stakeholders involved, and balancing their rights, obligations and liabilities, as called for in Recital 35 and 36 of the patent directive(31). This commission should produce a range of options for public consultation and debate.
6. Institutionalise a broader role for the European Parliament in multilateral trade negotiations. In this context, the role of the European Parliament’s Committee on Development Cooperation needs to be strengthened.

• Patents are an inappropriate instrument to deal with living organisms or parts thereof. The patent system, designed to meet particular interests and objectives, should not be expanded to biological systems. Instead it should be completely rethought and alternative ways of rewarding innovators developed.
• Major changes in supporting R&D are needed. The trend in recent years towards private R&D, dominated by major TNCs, continues to have socially undesirable consequences, reflected in the widespread and growing European public opposition to corporate biotechnology. It is also dubious on economic grounds. A different way of funding and rewarding competitive and innovative R&D, focussed on human and environmental needs, is required which promotes the free sharing of the knowledge generated along with new mechanisms for encouraging its use.
• A new risk / benefit equation for TNCs. A broader understanding of all risks and benefits is required to identify whether TNCs carry the true risks of biotechnology and the changes that may occur by internationally enforcing biopatents. This may result in changing the rules governing corporate bodies, for example, by removing limited liability protection, shareholder protection and directors’ protection so that companies bear the full risks to the environment and populations.

Actionaid, TRIPs and Farmers’ Rights, London, 1999; Patents and Food Security - Options for Research and Action, London, 1999.

John H Barton, "The impact of patent law on plant biotechnology research", Intellectual Property Rights III Global Genetic resources: Access and Property Rights, Crop Science Society of America, Madison Wisconsin, 1998.

Donald Bruce and Ann Bruce (Ed), Engineering Genesis - The Ethics of Genetic Engineering in Non-human Species, Earthscan, London, 1998.

Christian Aid, Selling Suicide - Farming, False Promises and Genetic Engineering in Developing Countries, London, 1999.

Graham Dutfield. Background paper on intellectual property rights in the context of seeds and plant varieties, International Union for the Conservation of Nature project on the Convention on Biological Diversity and the International Trade Regime, draft 1998.

Sara Franch, "The implications of bio-patenting for developing countries - Ireland’s role in the review of Art. 27.3b of the TRIPs Agreement", post-graduate thesis, July 1999.

Jeroen van Wijk, Joel I Cohen and John Komen, "Intellectual property rights for agricultural biotechnology - Options and Implications for Developing Countries", ISNAR Research Report 3, The Hague, 1993.

Josanthony Joseph, Food, Christian Perspectives on Development Issues series, Trócaire, Veritas and CAFOD, 1999.

Geoff Tansey, "Trade, intellectual property, food and biodiversity: key issues and options for the 1999 review of Article 27.3(b) of the TRIPs Agreement", Quaker Peace and Service, Friends House, 173 Euston Road, London NW1 2BJ, 1999. Also available on http://www.quaker.org/quno in English, French, Spanish and German.

Geoff Tansey, Tony Worsley, The Food system - A Guide, Earthscan, London, 1995.

Kothari, A, and Anuradha, R.V., Biodiversity and Intellectual Property Rights: Can the Two Co-exist? New Delhi. India, 1999.

Nijar, G.S. "In defence of indigenous knowledge and biodiversity: a conceptual framework and essential elements of a rights regime", Third World Network, Penang, Malaysia, 1996.

Solomon Tilahun and Sue Edwards (eds), The Movement for Collective Intellectual Rights, Institute for Sustainable Development, Addis Ababa and The Gaia Foundation, London, 1996.

Sinead Tynan, Famine in Ireland and Overseas: Causes, Prevention and Relief, Trócaire, 1995; Hunger and Famine Today, Dóchas Discussion Paper, 1995.

United Nations Development Programme, Human Development Report, Oxford University Press, New York, 1998 and 1999.

World Bank, Knowledge for Development - World Development Report 1998/99, Oxford University Press, 1998; http://www.worldbank.org

Council of Europe
Parliamentary Assembly
Strasbourg, 23 September 1999
Provisional edition

Recommendation 1425 (23 September 1999) of the Council of Europe on biotechnology and intellectual property [*]

CATHOLIC FUND FOR OVERSEAS DEVELOPMENT (CAFOD)
Contact: Mr George GELBER
2 Romero Close
Stockwell Road
GB - LONDON SW9 9TY, ENGLAND
Tel : +44 207 733 79 00
Fax : (44) 207 274 96 30
E-mail: ggelber@cafod.org.uk
Website: http://www.cafod.org.uk

CATHOLIC RELIEF SERVICES (CRS)
Contact: Mr Paul MILLER
209 West Fayette Street
BALTIMORE, MD 21201, U.S.A.
Tel : +1 410 - 625 22 20
Fax : +1 410 - 685 16 35
E-mail: pmiller@catholicrelief.org
Website: http://www.catholicrelief.org

COMITE CONTRE LA FAIM ET POUR LE DEVELOPPEMENT (CCFD)
Contact: Ms Madeleine LAVERNE
4 rue Jean Lantier
F - 75001 PARIS, FRANCE
Tel : +33 1 - 44 82 80 00
Fax : +33 1 - 44 82 81 43
E-mail: v.amieux@ccfd.asso.fr
Website: http://www.ccfd.asso.fr

CORDAID
Contact: Mr Johan VAN RIXTEL
PO Box 16440, 2500 BK, The Hague
THE NETHERLANDS
Tel : +31 71 - 515 95 00
Fax : +31 71 - 517 53 91
E-mail: johan.van.rixtel@cordaid.nl
Website : http://www.antenna.nl/bilance

ENTRAIDE ET FRATERNITE
Contact: Ms Sophie CHARLIER
32 rue du Gouvernement Provisoire
B - 1000 BRUSSELS, BELGIUM
Tel : +32 2 - 227 66 80
Fax: +32 2 - 217 32 59
E-mail: sophie.charlier@entraide.be

FASTENOPFER DER SCHWEIZER KATHOLIKEN
Contact: Mr Marcus BRUN
44 Habsburgerstrasse, Postfach 2856
CH - 6002 LUZERN, SWITZERLAND
Tel : +41 41 - 210 76 55
Fax : +41 41 - 210 13 62
E-mail: brun@fastenopfer.ch
Website: http:// www.fastenopfer.ch

KOORDINIERUNGSSTELLE
Contact: Ms Brigitte ORNAUER
3 Türkenstrasse
A - 1090 VIENNA, AUSTRIA
Tel : +43 1 - 317 03 21
Fax : +43 1 - 317 03 21 85
E-mail: b.ornauer@koo.at
Website: http://www.koo.at

MANOS UNIDAS
Contact: Mr Luis ARANCIBIA
Barquillo 38 - 3°
28004 MADRID, SPAIN
Tel : +34 91 - 308 20 20
Fax : +34 91 - 308 42 08
E-mail: educ_munidas@seker.es
Website: http://www.seker.es/munidas

MISEREOR
Contact: Mr Bernd NILLES, Mr Klaus PIEPEL
Postfach 1450
9 Mozartstrasse
D - 52064 AACHEN, GERMANY
Tel : +49 241 - 44 20
Fax : +49 241 - 44 21 88
E-mail: piepel@misereor.de; nilles@misereor.de
Website: http://www.misereor.de

ORGANISATION CATHOLIQUE CANADIENNE POUR LE DEVELOPPEMENT ET LA PAIX (OCCDP)
5633 Est, rue Sherbrooke
MONTREAL - QUEBEC H1N 1A3
CANADA
Tel : +1 514 - 257 87 11
Fax : +1 514 - 257 84 97
E-mail: info@devp.org
Website: http://www.devp.org

SCOTTISH CATHOLIC INTERNATIONAL AID FUND (SCIAF)
Director: Mr. Paul CHITNIS
19 Park Circus
GLASGOW G3 6BE
SCOTLAND
Tel : +44 141 - 354 55 55
Fax : +44 141 - 354 55 33
E-mail: pchitnis@sciaf.org.uk
Website: http:// www.sciaf.org.uk

TROCAIRE
Contact: Ms Maura LEEN,
Ms Caoimhe DE BARRA
169 Booterstown Avenue
Blackrock
Co. DUBLIN
IRELAND
Tel : +353 1 - 288 53 85
Fax : +353 1 - 288 35 77
E-mail: mleen@trocaire.ie; cdebarra@trocaire.ie
Website: http://www.trocaire.org

VOLONTARI NEL MONDO - FOCSIV
Contact: Mr Claudio COLANTONI
18 Via S. Francesco di Sales
00165 ROME, ITALY
Tel: +39 06 - 687 77 96
Fax: +39 06 - 687 23 73
E-mail: focsiv@www.glauco.it
Website: http://www.focsiv.it

BRIDDERLECH DELEN
Contact: M. Patrick GODAR-BERNET
5 Avenue Marie-Thérèse
L - 2132 LUXEMBOURG
GRAND-DUCHE DU LUXEMBOURG
Tel : +352 - 447 43 258
Fax : +352 - 44 743 231
E-mail: Bridderlech.delen@cathol.lu

Contact: Mr Bob VAN DILLEN, Ms Marie-Paule OGEREAU
16, Rue Stevin
B-1000 BRUSSELS,
BELGIUM
Tel: +32 2 233 37 51
Fax: +32 2 230 70 82
E-mail: vandillen@cidse.be; ogereau@cidse.be
Website: http://www.cidse.be