Introduction

This presentation is in three parts. First I want to make some general comments about intellectual property rights and the direction the world is moving in the evolution of global IPR standards. This might seem like a digression but is actually very relevant. Then I want to address the question of how the TRIPS Agreement impacts on the environment and food issues such as food security and biotechnology. The third part of my talk provides some proposals for the Millennium Round.

While preparing this talk, I did a search for recent documents submitted to the WTO by governments on intellectual property rights. I was struck by a communication from the European Union to the General Council (WT/GC/W/193), and particularly perturbed by paragraph 3 of this document.

"It should of course be kept in mind that the TRIPS acquis is a basis from which to seek further improvements in the protection of IPR. There should therefore be no question, in future negotiations, of lowering of standards or granting of further transitional periods."

What I particularly dislike about this paragraph is its assumption that the only direction the international IPR regime should move is towards ever higher minimum standards. And this at a time when the logic of a 20 year patent term, whether based on economic efficiency or public policy criteria, remains unclear,¹ when the full environment and development impacts of IPRs have not been established, and when many developing countries simply cannot fulfil their highly onerous TRIPS obligations within the transitional periods.

In fact, all justifications for the scope, duration, and even the existence, of IPRs can be contested with powerful counter-arguments. According to David Vaver of Oxford University (1991), "[i]t seems impossible to argue that the current laws encourage just the right amount of research, creativity and financing, and just in the right areas". During this century economists have attempted to evaluate the economic efficiency of patent rights by various methods, but none of these assessments provide a trustworthy guide to the level of IPR protection that would be the most economically efficient for any legal jurisdiction, even less the world as a whole.² This is important to bear in mind when pressure is placed on developing countries to introduce protection as strong as that of the developed countries. In some areas rights are probably too strong and in other areas rights are inadequate or non-existent. One good example of the latter is the failure of IPRs to offer protection for traditional knowledge, innovations and practices.

Many strong IPR advocates like to argue that IPRs are very adaptive. They might say, for example, that the recent inclusion of organisms and structural components of living things as patentable subject-matter demonstrates the adaptability of IPR law. I think a little cynicism is healthy. We need to be very clear about why the TRIPS Agreement exists. TRIPS was intended to set global minimum IPR standards at a level suitable for high-technology firms in industrialised countries that wish to sell their products throughout the world safe from the competition of counterfeiters. This is the true raison d’être of the Agreement. If corporations like IBM, Monsanto and Microsoft had not effectively lobbied the United States government in the 1980s there would be no TRIPS Agreement (see Drahos 1995). The fact that such corporations did not entirely get their way to a large extent explains why there is pressure to raise the standards now.

So in the case of so-called ‘life patenting’ I think there are several problems that tend to be conveniently overlooked. For example, these kinds of patents challenge such fundamental considerations as description, disclosure, repeatability and exhaustion of rights (Winter 1992); they may render the invention/discovery distinction meaningless; they may overburden patent offices resulting in inadequate examinations and the granting of patents whose claims overlap with others; and they may even inhibit innovation by raising the cost of doing research, such as by allowing biotechnology research tools like gene sequences to be protected (Eisenberg 1994; Heller and Eisenberg 1998). One might also add that patents on plants undercut the basic right of farmers to save and exchange harvested seed and may for this reason conflict also with the public interest that patent laws are usually intended to further. I will say more about this later.

But I do not wish to demonise the TRIPS Agreement. TRIPS may benefit developing countries if it leads to greater socially-useful innovation and creativity and facilitates technology transfers. It will not if it fails to stimulate domestic innovation and encourages foreign corporations to export their IPR-protected goods but not to produce them in those developing country markets. I believe that while we know so little any headlong rush towards ever stronger international IPR standards is completely unjustified and should be opposed.

TRIPS, Agriculture, Food and the Environment: the need for precaution³

Recently I reviewed the literature on relationships between intellectual property rights — especially patents and UPOV-type plant breeders’ rights⁴ — and the environment, sustainable agriculture, food security in developing countries and agro-biotechnology. As you will see my findings were somewhat inconclusive. But in spite of our inability as yet to prove the alleged negative impacts of IPRs I hope to present a strong case for the position that member governments should not limit negotiations to raising the minimum standards and to furthering the interests only of existing beneficiaries. Rather they should take a precautionary approach towards IPRs in the Millennium Round with respect to minimum standards. They should also discuss ways to protect the IPRs of individuals and groups whose environment-friendly knowledge, innovations and practices are under-protected, vulnerable to misappropriation, and threatened with disappearance.

In this context I think there are two sets of questions that need to be asked and then answered:

1. Do intellectual property rights encourage the spread of monocultural agriculture? And if so, does this cause erosion of biodiversity?
2. Is the increasing production and sale of seed-agrochemical ‘packages’ (such as transgenic crops sold with pesticides and/or herbicides for which they have built-in resistance) harmful to biodiversity? And if so, are IPRs an inducement for companies to produce these kinds of ‘package’? In other words, is this an IPR issue?

Taking the first set of questions, one of the most plausible criticisms of IPRs is that they encourage centralised research (Reid 1992). According to this view the prevailing policy framework for the use of genetic resources for food and agriculture favours "centralised crop breeding and the creation of uniform environmental conditions, and discourages agro-ecological research or local breeding tailored to local conditions." IPRs enhance incentives to develop seeds that will have a large potential demand. To ensure maximum demand for their products, the seed companies will tend to focus their research on commonly utilised high-value crops and develop varieties that can be cultivated as widely as possible. To do so means either breeding through selection of genes for maximum adaptability, or introducing the new seeds while also promoting farming practices that reduce environmental heterogeneity. The biodiversity-erosive effects of this IPR-supported bias towards centralised crop breeding programmes are: (i) decreased crop diversity; (ii) decreased spatial genetic diversity; (iii) increased temporal genetic diversity⁵; and (iv) increased use of external inputs.

But it is important to point out that monocultural agricultural systems are not inherently biodiversity-erosive. It is true that they may cause biodiversity loss if they replace more biologically-diverse ecosystems. But if a monocultural system produces higher yields per harvest and/or more harvests per year compared to a more polycultural agro-ecosystem it replaced, pressure to open up biologically-diverse ecosystems to cultivation may be reduced as a consequence.

It may be concluded that although IPRs alone cannot be held responsible for the loss of biodiversity due to monocultural agriculture, IPRs are bound to encourage the displacement of a wide diversity of traditional local varieties in favour of a small number of widely adapted hybrids and homogeneous modern varieties. One of the lessons of the Green Revolution is that the development of new varieties by the seed industry is unlikely to match the loss of traditional varieties after these new varieties are introduced (Kothari and Anuradha 1997).

With respect to the second set of questions, the hybrids and other modern varieties developed by seed companies often depend upon applications of agrochemicals to achieve high yields. A common accusation is that excessive use of these chemicals is encouraged and other plants growing nearby are killed as a result. But to blame IPRs for this trend in crop breeding is probably inaccurate, since it dates back to the time when the Green Revolution began, and earlier still in some countries. The varieties most commonly associated with the Green Revolution were developed by public crop breeding institutions and were not IPR protected.

But I think a negative IPR link is quite strong in the case of genetically modified crops. In recent years, life-science corporations (often originally chemical companies that have bought seed companies) have increasingly been creating transgenic plants with built-in resistance either to herbicides marketed by the same company (see Bell 1996; Kloppenburg 1988) or to insect pests. In the former case, both the herbicide and the seed for which it is designed are likely to be patent-protected. These corporations argue that without patents they would have no incentive to create or market such products.

According to critics including a number of scientists, genetically-engineered herbicide resistance has some serious negative environmental effects.⁶ Among the claims commonly made are that use of herbicide-resistant transgenic plants may: (a) encourage excessive use of herbicides which may kill other plant varieties and species (Bell 1996); (b) accelerate the development of resistance among pests (Jenkins 1998); and (c) create the possibility of herbicide resistant genes crossing over to other plants including the weeds being targeted. This could create ‘superweeds’ which would render the herbicide ineffective in the long term, and cause ecological impacts that cannot easily be predicted. It may also be possible that transgenic plants themselves could become ‘weeds’ if the added characteristic gives them a competitive advantage over neighbouring wild species (de Kathen 1996), though this is unlikely in the case of the most highly domesticated crop species. Some critics also claim that herbicides are far more toxic than the manufacturer companies are willing to admit, and that the health of both farmers and consumers could be affected (McNally and Wheale 1996; Tappeser and von Weizsäcker 1996).

Concerns are also expressed that increased use of hybrids and other modern varieties specifically designed for use with other proprietary agricultural inputs such as fertilisers and pesticides may have serious social impacts, especially in developing countries. These crop-herbicide-pesticide linkages can be considered to represent a shift towards capital intensive agriculture that increases the costs of farming and may therefore be detrimental to small farmers (Verma 1995). Consequently, critics maintain — and I would share this view — that all farmers but especially small farmers in developing countries must be allowed to choose freely whether or not to accept these packages and should not be subjected to aggressive sales promotion campaigns.

A more indirect way that IPRs may encourage such allegedly environmentally-unfriendly R&D is that IPRs are sometimes said to stimulate industrial restructuring in ways that make such R&D more attractive to industry than it would otherwise be. Two US rural sociologists, Frederick Buttel and Jill Belsky, argued (1987), for example, that the 1970 United States Plant Variety Protection Act increased expectations of seed industry profits and thereby helped to stimulate an upsurge in acquisitions and mergers involving seed companies such that many seed producers became subsidiaries of large agrochemical firms. According to them these "multinational parents of seed companies have larger fertiliser, herbicide, insecticide, and fungicide product lines that generally are far more important in terms of total revenue and profit than are seeds ... [a]ccordingly, many agrochemical-based seed company subsidiaries might be hesitant to emphasise plant breeding goals that would threaten fertiliser and pesticide product lines (ibid.)."

To sum up, the lack of empirical studies on the environmental impacts of patents and plant breeders rights means there is still no proof that these IPRs are inherently damaging to the environment, at least in a direct sense. Clearly, further research and case studies that clarify the links between IPRs and biodiversity erosion are needed. But the very possibility of grave negative environmental and social impacts justifies serious consideration of how the precautionary principle might be applied in the IPR context to minimise the risks without being construed as an illegal barrier to trade or foreclosing opportunities for developing countries to use IPR law to enhance their life science and technology capacities.

The precautionary principle is of course somewhat controversial since the right to invoke the precautionary principle may be abused. But threats to human health from novel food products and the risk of ecological damage caused by releases of genetically-modified organisms such as GM food crops require us to place the burden of proof on those seeking regulatory approval for cultivation and sale of such foods to demonstrate that they are harmless. Unfortunately the WTO dispute settlement appellate body’s recent judgement that the European Union’s ban on the import of US beef containing bovine growth hormone violates the Sanitary and Phytosanitary (SPS) Agreement appears to weaken the precautionary principle (Downes 1998). I hope that the CBD biosafety negotiations will result in a Protocol which gives ‘bio-safety’ priority over ‘bio-trade’ where there may be conflict, and that the SPS Agreement will henceforward be interpreted in conformity with such a Protocol and not vice versa. Clearly the precautionary principle will be a hot topic in future trade negotiations where biotechnology, food safety or the environment are on the agenda. It is possible also that it could come up in negotiations on TRIPS.

According to the built-in agenda of TRIPS, the Council will review Article 27.3 (b) — the so-called patenting life sub-section — in 1999, and the implementation of the whole Agreement in 2000, and at two-year intervals thereafter. It is noteworthy that the Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of TRIPS (Article 71).

The 1999 review of Article 27.3 (b) could lead to a wider acceptance of alternative plant variety systems devised specifically with the CBD’s objectives in mind, and even to the removal of the requirement to patent life-forms. But this is highly unlikely. It is also unlikely that some developed countries will seek this year to have Article 27.3 (b) removed entirely from TRIPS so that there will be virtually no restrictions at all on the patenting of life-forms (Downes 1998; Roberts 1996). Even so, the long-term strategy of the United States and probably other developed world governments is probably to remove virtually all exclusions from patentability, narrow the morality/ordre public exclusions, and to require that the UPOV-system be adopted in countries that forbid the patenting of plant varieties. A US government communication to the WTO General Council dated 19 November 1998 notes in reference to the review that the TRIPS Council is "to consider whether it is desirable to modify the TRIPS Agreement by eliminating the exclusion from patentability of plants and animals and incorporating key provisions of the UPOV agreement regarding plant variety protection" (WT/GC/W/115). That this ignores the options both of leaving Article 27.3 (b) unaltered and of developing sui generis systems that do not incorporate key provisions of UPOV would appear to be a deliberate attempt to pre-empt the agenda of the review.

In all likelihood, attempts to revise TRIPS will not be made until the whole agreement is reviewed in 2000, or during the Millennium Round. This is because the industrialised countries will then be able to link their demands concerning to Article 27.3 (b) and TRIPS as a whole to negotiations about other trade-related matters where they may feel they can make concessions. I hope that in the opening section of my talk I was able to make the case that this is not just a North-South issue; if we constantly accede to the demands of the large corporations in strengthening IPR standards before the social, economic and environmental impacts of existing standards are yet to be fully assessed we may all regret it.

I would like to conclude with some proposals developed by IUCN which were an outcome of a project on Trade and Biodiversity that I am involved in. I think all the following options are worthy of consideration in the context of the Millennium Round.

• "carrying out an independent and transparent assessment of the environmental and equity implications of WTO in general and TRIPs in particular involving civil society and relevant international bodies such as the CBD, the FAO and WIPO, taking into particular consideration the "precautionary principle" enshrined in Agenda 21 and CBD;
• developing a common strategy on biodiversity-related issues in the 2000 review of TRIPs where interests converge. The same could be done for the 1999 review of TRIPs Article 27.3(b) to ensure that the full range of possible options are discussed;
• adopting an open and transparent process, involving civil society, of reviewing article 27.3(b) in 1999 and the review in 2000 of the TRIPs Agreement overall;
• expanding, or at the very least maintaining, the exceptions in Article 27.3(b) of TRIPs, for patenting of life forms; the expansion could exclude micro-organisms, products and processes thereof, from patentability;
• extending the compliance periods for 27.3(b) for developing and least developed countries;
• amending the provisions of Article 27.3(b) by defining it such that national priority is paramount in the interpretation of the term sui generis, including the following:
• conservation and sustainable use of biodiversity;
• promotion of sustainable traditional lifestyles;
• promotion of food security and health security;
• ensuring equitable benefit sharing;
• invoking the precautionary principle; and
• respect of the principles of equity and ethics.
• considering that the definition of the term "micro-organism" not be expanded to cover tissues, cells or cell lines or DNA obtained from higher organisms, including human beings;
• adopting an expansive interpretation of the sui generis clause relating to plant variety protection in order to:
• ensure implementation of article 8(j) of the CBD relating to indigenous and local communities;
• ensure that the full range of environmental and ethical concerns about IPRs on life forms are addressed; and
• allow the completion of a biosafety protocol that establishes minimum international standards for the environmental safety of releases of genetically modified organisms;
• enhancing the scope of Article 23 of TRIPs to strengthen protection of geographical indications for goods other than wine and spirits and expanding the scope of Article 22 of TRIPs to protect denominations relating to geographic origin, and characteristics associated with a specific region;
• including requirements (in Article 29 of TRIPs) for disclosure of the genetic resources and the traditional knowledge used in inventions for which IPRs are claimed, the country and community of origin of these resources and knowledge, and proof of consent having been sought from the relevant community and equitable benefit-sharing arrangements having been entered into with them, as required by the CBD."