[The first message of the conference is from Robert Lettington, a Law and Policy Consultant of the International Centre of Insect Physiology and Ecology in Kenya, who also contributed actively to the first conference of this FAO Biotechnology Forum...Moderator]
A few initial comments on what I think is generally an excellent background document:
1) The nature of IPRs must be clear: They are a limited monopoly granted by individual states as a privilege in return for making an invention, or some other useful information, public. The policy reasoning is that, even though society as a whole loses a little through the monopoly, it gains more from the information.
2) It must also be clear: no study to date has established a positive correlation between Foreign Direct Investment (FDI), research and development (R&D) expenditure and the relative 'strength' of IPRs - I believe that the Centre for International Environmental Law (CIEL) has been trying to catalogue the studies done.
3) January 2000: The arch-supporter of the World Trade Organisation (WTO), the Economist, asked whether the absence of IPRs in somewhere like Burkina Faso would actually alter the investment strategies of a multinational company (MNC). Since the freedom would benefit Africans, surely the net social benefit equation breaks down here.
4) Discoveries versus Invention: This is a huge problem, particularly in developed countries. E.g. in Japan there are patent applications for methods of making curry and tacos (using such 'novel' methods as curry powder). In relation to biological material, it needs clearer iteration - to what extent can you 'invent' something that already existed?
5) Patenting in the Agricultural sector, as pioneered by the US and recently adopted by most other developed countries, breaks the old access and benefit sharing (ABS) agreement implicit in agricultural research i.e. we give you access to the raw materials for free and you provide us with the benefits of the research equally freely. Now the research must be paid for while the raw materials are meant to be free - all A and no BS. The reaction to this is the Convention on Biological Diversity (CBD) where raw materials must also be paid for. This has two problems. Firstly, most agricultural research, particularly in developing countries, doesn't have the cash and thus the system risks collapse. Secondly, the 'market forces' that control pricing of raw materials are not Adam Smith's 'invisible hand' but rather the all-too-visible hand of the users. Studies, such as the Commercial Use of Biodiversity, have been based on industry beliefs, practices and ambitions. The end result of this is to transfer capital from developing to developed countries. The asymmetry is reinforced by IPRs that inherently place value upon the research outputs and prevent the valuing of raw materials (except when the raw materials are controlled by MNCs, such as gene sequences - this is quite clearly a double standard).
6) The multiplicity of patents raises the spectre of IPRs developing their own momentum - I exist therefore I must be valuable. Golden Rice is the classic example with tens of patents and now the revelation that to receive the recommended daily intake of Vitamin A a normal person must consume 9 kg of the rice and a pregnant woman 18 kg (Guardian Weekly 15-21/02/01). Are we valuing Golden Rice just because it was more expensive and 'scientific' than other initiatives, i.e it involved more patented technologies? Furthermore, is the whole nutritional supplements issue in developing countries just being used to postpone addressing socio-economic fundamentals?
7) IPRs in agriculture are being used as a marketing tool to entrench corporate power and establish dependence in the familiar form of 'cornering a market'. E.g. a decade ago an elite line of Chinese rice was used to develop a GMO - a pro-industry non-governmental organisation (NGO) and the company involved refused to make the GMO available to the Chinese institute that provided the elite line without payment of USD 100,000. However, IPRs are not the only tool being used. Contracts combined with IPRs are widely adapted - witness the cause celebre of Percy Schmeiser in Canada. If legal instruments fail there are always Genetic Use Restriction Technologies (GURTs) that essentially constitute a regulatory system that bypasses IPRs and government authority (the companies may have publicly renounced GURTs but they are still seeking to patent related technologies all over the world).
8) Mitigation is possible in the national implementation of IPRs - strict interpretation of discovery rules is a first step and a declaration of origin requirement may help. However, there must be a serious reassessment of the IPR system as applied to agricultural sector - it is not meant to be applied to this and it is creating asymmetries that impact negatively on the most vulnerable. The Revised International Undertaking is an attempt at such a reassessment for specific cases.
Robert J. L. Lettington
Law and Policy Consultant
International Centre of Insect Physiology and Ecology
P.O. Box 30772
Tel: +254 2 802501/3/9
Fax: + 254 2 860110
E-mail: firstname.lastname@example.org; email@example.com
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