The TRIPs Agreement and its Implications for Food Security
Julian A. Oram,
International Famine Centre, University College, Cork
Introduction – The Wealth of Nature
Most of the world’s plant biodiversity is found in the South. Throughout history, this wealth of flora has been regarded as the common property of local communities. Traditional societies have both thrived on and nurtured this diversity, relying upon it as the basis for their food, medicine, clothing, tools and building materials. Thus, while less then 1% of this enormous biological diversity has been documented by modern science, a tremendous pool of information has been accumulated through the cultural knowledge of indigenous peoples.
The wealth of genetic material and the intimate cultural knowledge of the properties of plant species amongst local populations has meant that an estimated 83% of efforts to locate and exploit new species — a process known as bio-prospecting — occurs in the South. Of the active ingredients in modern prescription drugs, approximately three-quarters came to the attention of researchers because of their use in traditional medicines in the Majority World. The current value of the world market for medicinal plants derived from materials utilised by indigenous communities is estimated at $43 billion annually. Similarly, the value of crop varieties developed by indigenous communities to the modern seed industry is estimated at $15 billion a year. There are also enormous profits generated from the use of countless other plants found in indigenous communities which now go into the manufacturing of fabrics, perfumes, sweeteners and cosmetics.
Intellectual Property Rights Regimes
Before the TRIPS agreement, intellectual property protection laws were covered under a patchwork of legislation varying from country to country. During the recession in the late 1980s, and facing increasing technological competition from SE Asian countries, the US government placed IP issues at the forefront of their agenda in approaching the GATT Uruguay Round negotiations. The US even threatened to boycott these negotiations if its demands for some kind of international legislation governing intellectual property rights were not met. The US favoured inclusion of IP issues into the World Trade Organisation because this was the only mechanism that would ensure member states could be effectively sanctioned if they failed to comply with international IPR laws.
Developing countries were initially very reluctant to develop any internationally-binding IPR agreement. Their primary concern was, and still is, that these legal devices would enable industries from the North to appropriate and privatise the wealth of biodiversity that constitutes the basis for food security and health care for millions in their countries. They were also concerned that such measures would disrupt the cultural and economic fabric of traditional societies.
Under TRIPs, a uniform set of patent and copyright criterion relating to intellectual property protection has been established throughout the world. This system currently obliges WTO members to grant titles to "inventors" of micro-biological processes, micro-organisms and plant varieties. Under article 27.3(b) of the TRIPs, countries must "…provide for the protection of plant varieties either by patents or by an effective sui generis system or any combination thereof". This sui generis system would be based upon an internationally recognised system of PBRs — plant breeders rights; or PVPs — plant variety protection measures. Poorer countries are expected to begin implementing this system by next year, with the least developed countries expected to have developed such systems by 2005. There is, however, a clause under Article 27.2 which makes allowances for patent exclusions where necessary to protect "…human, animal or plant life or health or to avoid serious prejudice to the environment…".
The United States is trying to get Southern governments to accept the sui generis guidelines lain down by the Geneva-based Union for the Protection of New Varieties of Plants (UPOV) as the best way to fulfil their obligations under TRIPs. The UPOV system operates under two conventions –one set up in 1978 and the other established in 1991. Under the original UPOV statement, the South’s biodiversity was understood to be part of the heritage of mankind, and therefore freely available to all for scientific or commercial use. This allowed private interests such as multi-national pharmaceutical and agri-business enterprises to plunder the South’s genetic material without compensation. These corporations could then develop an "improved" variety and claim property rights on the basis of having made an "invention". Having done this, the "free heritage of mankind" plundered from the fields and forests of local communities could be sold back to them as a commodity.
Both UPOV conventions effectively give protection only to the commercial breeding sector, and ignore the rights of the millions of farmers who have been engaged in seed breeding and development for generations. The innovative contribution of local communities is ignored altogether. Unlike its predecessor, UPOV 1991 also gives exclusive rights of sale and reproduction to the patent holder, denying farmers the rights to replant and exchange seeds. In fact, many critics point out that the entire regulatory process under UPOV reflects a trend of ever-greater protection of the interests of commercial plant-breeders and fewer and fewer rights for traditional farmers. Critics argue that if developing countries enter into the UPOV 1978 convention they will, according to the Crucible Group, be entering "…a political and policy treadmill leading inevitably to UPOV 1991 and then onward until UPOV is indistinguishable from the most monopolistic elements of the utility patent system".
There have been attempts to redress the imbalance between plant breeders rights versus farmers’ rights, namely under international institutions such as the FAO and the Convention on Biological Diversity. These bodies have sought to ensure that local communities role as developers and conservers of plant genetic resources is recognised, and have stated that farmers should share in the benefits of new varieties developed from plants in their fields. Still, though, the role of indigenous peoples as nurturers of plant biodiversity is generally not appreciated. In the words of the Crucible Group Crucible Group: "That indigenous peoples inhabit the most diverse fields and forests of the world is sometimes viewed as both coincidental and unfortunate. That a correlation could exist between the uses made by people of biological diversity and the availability of that diversity is seldom considered." This all too common perspective means that the sentiments expressed within the Biodiversity Convention are by and large overridden by other international agreements, such as UPOV, that favour commercial interests, under the misguided and frankly arrogant notion that in the modern world, it is private companies that are the true innovators of plant diversity.
Food Security and the TRIPs
The implications of the TRIPs agreement, and article 27.3(b) in particular, are very worrying in terms of food security. At the moment, between 15%-20% of the world’s food is grown by small farmers, feeding at least 1.4 billion people. These farmers save their seeds after each harvest for replanting the following season. If developing countries adopt a plant breeders rights system such as UPOV 1991 under the TRIPs agreement, they will effectively be criminalising the practice of seed saving. Legal contracts drawn up by the seed company will force farmers to purchase their seed year after year, a requirement that would raise farmers’ costs and drive millions off the land. In a statement to EU Ministers, a coalition of Southern NGOs warned that such restrictions would "… create dependency where there was previously independence; force farmers to pay for what was previously free and theirs; and reduce farmers increasingly to the status of contracted labourers for corporations".
With new genetic technologies being developed apace, sweeping claims to patents for "invented" lifeforms are constantly emerging over both high-value commercial crops and staple food varieties. The patenting of certain traits — such as disease resistance or increased yields — or plant genes may subject the production and marketing of important crops to monopolistic controls. A plant protection system such as UPOV 1991 will allow seed companies to exact high royalties, and could mean that traditional farmers lose their rights to cultivate their own landraces. An international IP system for plant breeders is therefore certain to increase corporate control over agriculture in the South, and over the world food system as a whole.
The plant variety protections under TRIPs will also ban breeding based on protected varieties, and would discourage the kind of innovation that generally takes place at the farm level. This is because under UPOV, protection can only be given where new varieties are proven to be "distinct, uniform and stable." Any farmer using a PVP in crop experimentation must therefore prove that the genotype of the variety they have bred is significantly different from the original plant, otherwise it will be classified as ‘essentially derived’ from the PVP variety and thus cannot be grown or sold without the license holder’s permission.
Challenging these patent systems require sophisticated arguments in a field that is extremely specialised and technical — as well as being notoriously pockmarked with legal grey areas. Bureaucratic issues therefore pose a major obstacle to the ability of local communities to contest patent claims. The expense involved in a legal challenge becomes prohibitive, particularly where the challenging party do not themselves seek large profits from their intellectual property.
Even apart from these difficulties, the evidence suggests that farmers’ rights to their germplasm and knowledge could not be effectively protected through a conventional patenting system. This is because patents cannot be applied to pure knowledge or folkways. The idea that an indigenous community could, for instance, claim a patent on their use of a particular root for insecticidal purposes is unrealistic under a conventional PVP system. This point was reinforced by the Keystone International Dialogue on Plant Genetic Resources in 1991, which in its conclusions stated that if a TRIPs agreement was adopted, the only IP in the world that would not be protected would be that of indigenous communities.
This brings us to the heart of the problem. Plant variety protection regimes have generally been developed for commercial breeders in industrialised countries, where farmers are a small percentage of the population, farming is commercial, seeds are bought from corporate suppliers and products are sold through commodity markets. But in developing countries, agriculture has a completely different complexion. Seeds from harvested crops are usually saved from year to year and traded with other farmers in the vicinity. These seeds are constantly being experimented upon and bred with other locally adapted varieties. This lack of uniformity and stability means that they are not eligible for protection under a conventional PVP system, meaning that farmers would still have no claim to their own landraces. This would lead to a gradual replacement of indigenous seeds with PVP varieties, accelerating genetic erosion in farmers’ fields.
Worries over the loss of genetic diversity are not limited to ecological concerns. Most small farmers in the South produce a number of crop types and varieties, much of which is either consumed by the household or traded on local markets. These farmers rely on the diversity of plant varieties in their fields as insurance policies against crop failure, pest outbreaks, and other eventualities. On-farm diversity is maintained by the practice of seed exchanges amongst farmers. PVP systems such as UPOV 1991 would, in theory, grant the patent holder the right to prohibit the re-use of saved seeds by farmers. This would be almost certain to disrupt the free exchange of seeds preventing farmers from spreading their risks through on-farm diversification.
A related problem is that patenting would contribute to further crop standardisation and reinforce the trend towards monoculture, both of which erode biodiversity. Because of the potentially huge financial rewards, the UPOV system promotes varieties geared towards intensive farming systems. PVPs will focus research and development on commercial agriculture, with an emphasis on products and methods most suited to large-scale farming. In addition, many new varieties are being marketed in tandem with a particular set of chemical inputs, allowing agri-businesses to sell their seeds as part of a "package" of technologies. Many small farmers in the Majority World are financially unable to undertake the conversion to intensive farming systems, and face the choice of either selling their land or entering into a contract growing agreement with a multi-national company – an arrangement which often leads them into poverty and debt. By pushing farmers towards specialised commercial production, PVPs will undermine the basis of small-scale mixed subsistence and local market farming production systems, pushing millions off the land and into overcrowded cities.
The plant protection systems initiated under TRIPs are also likely to encourage the spread of genetically modified crops, putting a premium on food re-production through biotech methods. This might mean that varieties traditionally grown in developing countries may be genetically changed, and that these new varieties will end up substituting the plants from which they were derived. While I won’t get into a long discussion on the issue of biotechnology, I will say that there are many reasons to be believe that this trend has grave implications for future food security. I think the first and most important thing to bear in mind here is that control over new seed varieties rests in the hands of a few large companies investing vast sums into research and development. The development of genetically engineered crops is therefore not being driven by the needs of poor and vulnerable farmers, but by large multinational companies with two essential motives: 1) to generate profit; and 2) to ensure the continuation of that profit by consolidating their control over the international agriculture sector. This is plain enough when one looks at the trends in crop research and development. Rather then focusing on improving yields in marginal lands, nearly all research into GM crops is going into improving food processing qualities, transport durability, appearance and shelf-life – traits favouring sales in Northern consumer niche markets rather than meeting food needs in the South. Even where research has been geared towards developing countries, the emphasis tends to be on export crops at the expense of subsistence crops.
Furthermore, most GM crops are geared towards intensive agriculture unsuited to the diversified farming systems practised by millions of resource-poor cultivators. Like the hybrid varieties pioneered at the international crop research centres during the 1960s, GM crops generally require intensive farming methods; necessitating a departure from traditional techniques such as multiple cropping, intercropping, and nutrient recycling. This trend will further disempower and marginalise farmers in the local and national food production process.
There is also a fundamental cultural displacement that will occur under the TRIPs. For centuries, farmers have seen themselves as the stewards of seeds and the products of those seeds. These plants were not seen as ‘genetic resources’ to be expropriated and privatised, they were embedded within a framework of indigenous knowledge systems which related to culture, technologies and the world views of local people. Private ownership of seed varieties is therefore antithetical not only to the values of most agrarian societies, but also to the very idea what it means to be a farmer. I read a quote from one farmer who said that a patent on seed is a patent on freedom – if you’ve patented a seed its like being forced to purchase your own freedom. Farmers now face a future where their role as harbourers and developers of these seeds is being undermined by the commodification of their knowledge and resources.
Finally, it must be remembered that in many non-industrial societies the idea of private ownership of a living organism is an anathema. These cultures are based on a holistic view of and respect for life, which Western technologies and property systems fundamentally disregard. Innovations in these societies are seen as belonging to the community – the inherited wealth of crop varieties and other resources which have been nurtured and passed down from previous generations. A multilateral regime of private intellectual property rights therefore poses a grave threat to the knowledge systems and cultural, social and economic lifestyle of farmers and indigenous communities.
Biodiversity, Rice and Food Security in Asia
Asia produces 90% of the world’s rice, over an area of about 150 million hectares. In aggregate terms, rice accounts for nearly 50% of Asia’s farm incomes and makes up nearly 80% of people’s daily calories intake. Over the centuries, Asian farmers have developed over 140,000 rice varieties. These varieties have numerous different properties, including resistance to drought, flooding, salt levels, pests or disease. Some varieties have medicinal qualities, whiles others are valued for their aromatic, sticky, or slow cooking qualities. Some produce short round grains, others long sleek ones, etc. etc. Much of this diversity, however, has been lost from farmers’ fields over the past thirty years. The various Green Revolution programmes in the region have contributed to a drastic reduction in the numbers of rice varieties grown in most countries, as high-yield varieties were introduced along with mechanisation, irrigation and chemical fertilisers and pesticides. Apart from many of the well-documented social and ecological problems this process triggered, the loss of on-farm diversity has led to a succession of serious outbreaks of pests such as the brown plant-hopper. Today, in Thailand and Burma, 40% of the total rice area is planted to only five varieties. In Pakistan, the top five varieties account for 80% of total rice farming. In Cambodia, just one variety – IR66 – accounts for 84% of the country’s dryland rice production.
With TRIPS, this level of uniformity will be enhanced by the aggressive promotion of biotechnology, leading to an increase in food insecurity. Already, some 160 biotech patents on rice are held by biotechnology companies, with more then half these varieties owned by the top 13 companies alone. Under TRIPs, Asian farmers will be forced to purchase their rice seed year after year, and will be selecting from an increasingly narrow range of commercial varieties. These patented plants will have been developed and bred from genetic material cultivated in farmers’ own fields for generations. Because GM varieties are bred to be tolerant to chemical inputs, farmers’ dependency on a limited number of varieties will also force an ever-increasing use of toxic fertilisers and pesticides. The promotion of biotechnology through TRIPs will further increase dependency on corporate agri-business, concentrate land-ownership, pollute the environment and impoverish millions of small farmers. The TRIPs agreement therefore runs completely counter to the ethics and principles of sustainable agriculture and food security in Asia.
In summary, there are several serious concerns regarding the implementation of an internationally binding IP system on plant varieties. These are:
The Call for Reforms
The TRIPs agreement fails to strike a balance between the rights of the IPR holders and the rights of the users (society), with disproportionate weighting on the former. Furthermore, there is an inherent contradiction between the philosophy of free and low-cost movement of goods and services – upon which the multi-lateral trading system is based – and the monopolistic restrictions imposed under the TRIPs.
Many DNGOs are therefore calling for the removal of article 27,3(b) from the TRIPs, or for entire the TRIPs agreement to be removed from the WTO. At a very minimum, the following reforms must be addressed in order to give developing countries the ability to address the interests of small farmers and food security: