Forum Conf 1 (biotech and crop sector)

I would like to reply to Luca Bucchini [17 April] who starts his message by stating that many things have been said without care or precision.

Luca Bucchini is co-author of comments submitted to the US Environemental Protection Agency (EPA) regarding Cry9C on behalf of Environmental Defense (see : http://www.edf.org/pubs/Filings/ ). The fact that the EPA has so far only approved Cry9C corn for animal feed and industrial uses (and not for human consumption) shows to me that the regulatory overview in the USA works and that room has been given to input from stakeholders.

Luca Bucchini claims not to know of any study that has assessed the allergenicity of Cry proteins. However, in the comments to the EPA of which he is the co-author, EPA is cited to have studied 4 criteria of the allergenic potential of Bt toxins that crops have been genetically engineered to produce.

One of the used criteria is homology to amino acid sequences of known allergens. According to the Environmental Defense comments to the EPA " a negative finding may not be an indicator of safety". In my humble opinion, a negative finding means that there is no homology to a known allergen. Possibly there could be allergens out there that we don't know of yet, but that can surely not be the basis for banning a substance. When Kiwi fruit was introduced, it was not sujected to any safety assessment but today cases of allergic reactions to kiwifruit are documented.

The Environmental Defense comments to EPA also refer to a study by Bernstein et al., 1999 (Env Health Perspectives 107; 575-578) which shows that workers exposed to Bt preparations can show skin allergies. This study was done not with transgenic plants but with Bt spray preparations which have never been analysed for allergenicity before their introduction.

Luca Bucchini finishes with a question to participants from the developing world and as such I do not qualify. However, I have problems with the question posed, " are people in the developing world ready to accept highr risks than their developed counterparts", as I think it is a very unfair question. Is Luca Bucchini implying that products that are not safe will be introduced into developing countries? Is she implying that regulatory agencies in developing countries are not able to access and read EPA deregulation petitions and take appropriate action? The recently approved Biosafety Protocol foresees the establishment of a Biosafety clearing house which will make available existing knowledge about Biotech products which may enter into International trade.

Edo Lin, France
lin.edo@free.fr

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-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 18, 2000 8:40 AM
To: 'biotech-room1@mailserv.fao.org'
Subject: Re: IPR for developing countries

Mark D. Laing [17 April ] wrote: "It [terminator technology] is no different to software companies demanding to be paid for every copy of their software. Pirate copies of computer software are illegal, so "pirate" seed should be equally illegal."

The two examples given are very different from each other:

1) Seed is alive and programming it to die violates its very essence, i.e. what makes a seed a seed.
2) Seed self-replicates, computer software does not -- unless it is a computer virus (a computer 'disease'). And, preserving the mirror symmetry of Laing's analogy, a seed that does not germinate is a diseased seed.
3) Computer programs are essentially mechanical devices in writing. Regarding seeds the same way is falling prey to mechanistic-materialistic thinking.

The two examples cannot simply be lumped together. The obvious differences between them call for quite different moral arguments.

David Heaf, UK
101622.2773 (at) compuserve.com

-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 18, 2000 8:42 AM
To: 'biotech-room1@mailserv.fao.org'
Subject: Re: IPR for developing countries

Prof. Laing [17 April] seems to see no difference between patents for life forms and patents (or copyrights) for software programmes.

There is a lot of intellectual input in software companies which develop new software and if any part of that software is based on copyrighted software, the software company is forced to pay royalties to the company owning the copyright.

In the case of a seed company, the new seed is developed from existing germ plasm, often from developing countries, and may involve a very small modification, or sometimes none at all, (like the yellow bean from Mexico patented in the US). What the patenting process does is to convert the "common heritage of mankind" into private property of an individual or a company for 20 years.

Certainly those that invest in developing a product or technology should get paid for their creativity, capital risk-taking and simple hard work. But what about the creativity and the very hard work that several poor farmers put into creating the base material which is often stolen or bought for a fistful of dollars. Or are the farmers of developing countries not entitled to any payment for their creativity and hard work ?

There are several developing country scientists working in state research institutes producing new varieties of crop plants every year. In Sri Lanka alone, tens of new varieties of rice and new tea clones are produced by the research institutes and released to the farmers and planters of the country. They are not patented simply because effective protection of any one variety in the major countries of the world costs about $ 75,000-$100,000 - far above the resources of a government institute in a developing countries. There is nothing to prevent a private company patenting one of these varieties in the West and no government institute will be able to find the funds, e.g. half a million dollars in the US, required to fight the patent.

Prof. Laing at least understands that Agribusiness advertising and (mis)information will lead to farmers abandoning their own selection for the better yielding new varieties promoted by seed companies. By the time developing country farmers realize that they cannot afford the new seeds (with no plantback possible and expensive inputs), they would have lost access to their old varieties and have fallen into the biotech trap.

So the developing countries certainly have a problem with the present patent system (and the new International Union for the Protection of New Varieties of Plants (UPOV) system which is not very different)

Dr. Vijaya Kumar
Senior Professor and Head
Department of Chemistry,
University of Peradeniya,
Peradeniya, SRI LANKA
Phone: +94-8-389129, +94-77-801184
Fax: +94-8-389939
e-mail; vkumar@mail.ac.lk

-----Original Message-----
From: Biotech-Mod1
Sent: Tuesday, April 18, 2000 1:58 PM
To: 'biotech-room1@mailserv.fao.org'
Subject: Re: IPR for developing countries

Re Dr. Kumar's Comments of 18th April:

My first point would be that I am not sure that extensive review of the IPR debate will really address the relevance of crops to developing countries as obviously intellectual property rights (IPR) are not inherent in any crop species. This latter point must of course be qualified by the development of so-called, in RAFI parlance, "terminator", "traitor" and "junky" gene products which are effectively biological, as opposed to legal, IPR systems.

I think the deeper question here is that raised by the Economist in January or February of this year - is TRIPS, and the idea of global IPR systems, a viable option in developing countries? The argument basically states that enforcing IPRs in developing countries creates a net loss for humanity and consequently is highly suspect. The profits of IPR holders are more than offset by the lack of access to information by those who may well most need it.

The software analogy is an extremely good one but, as with the question of cost of seeking and enforcing patents, is really one of specific relevance rather than a flaw in the overall theory of the system. The problem here is that the whole current intellectual property system was developed in Northern countries to serve a series of very particular purposes. As in all negotiations, the first party to place a comprehensive proposal on the table has tremendous influence on the final outcome. Thus what the developing countries need to do, assuming one accepts the current inevitability of TRIPs, is to develop and create their own parallel systems that ensure things such as that the holder of a patent that makes use of traditional cultivars must recognize and compensate the developers of those cultivars. I.e. we should be spending the time and effort, and of course unfortunately money, to develop systems that suit developing country needs - they must be more accessible, both technically and financially, which will include a host of issues such as community rights and stability of the innovation. These developments should also consider all sectors so that the particular needs of research centres, companies and rural populations etc etc are all taken into account.

On a local note, ICIPE policy guarantees recognition, including, where profits are involved, financial, for any informal sector contributors to research projects and IPRs are only sought for defensive purposes or to allow for bridging work. At the same time we are currently trying to make substantive contributions towards the development of concrete systems for the protection and promotion of traditonal and marginalized knowledge in developing countries.

The idea of the common heritage of mankind is a myth, at least from the developing country perspective, it was only ever common heritage if it belonged to the South. All this does is perpetuate the bizarre, but widely accepted assumption, that developing country populations had no systems of resource management before Europeans came along - they very obviously did and these systems were not based on any concept of global commons.

As regards the potential dependence of smallholders on agribusiness, I think Dr. Kumar raises a very pertinent and worrying point. Despite protestations to the contrary, such dependence relationships are being nurtured in East Africa, and I would assume elsewhere, which poses a real threat to long term viability. The accompaniment to this is that the possible threat to the smallholders is being accompanied by the threat to the genetic base and, while neither of these seems to have been accurately or objectively assessed as yet, the mere threat should be sufficient cause for concern.

Robert Lettington
Law and Policy Consultant
International Centre for Insect Physiology and Ecology (ICIPE), Kenya
rlettington@ICIPE.org

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