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As the researchers explained to RAFI, "The government is about to adopt Plant Breeders' Rights (a form of plant patent'). We may have only a matter of days or even hours to propose amendments to the bill. The parliamentary committee is meeting and, if they agree, the legislation will be inevitable." If adopted as proposed, the bill will automatically accept any and all intellectual property claims based on foreign registrations in other countries. It also denies farmers their 12,000-year-old right to save and exchange seed.
An offer that can't be refused?
That Nicaragua is considering an intellectual property system for plant varieties is no
surprise. Two US senators last year threatened the deportation of illegal immigrants if
Nicaragua did not accept a bundle of six intellectual property laws ranging from copyright
changes to the so-called "Plant Breeders' Rights". As though in tandem, officials from UPOV
(the Geneva-based Union for the Protection of New Varieties of Plants a UN-based plant
"patenting" convention) also campaigned in the region for similar legislation. More recently, it
was rumoured that executives from US-based multinational seed and chemical companies
were also applying pressure on the government. But Nicaraguan scientists had been promised
that no final decisions would be taken without full and careful consultation. Suddenly, the bill
was to be pushed through immediately. Concerned people in Nicaragua were appealing to
their friends around the world for technical information and advice.
Nicaragua is not an isolated case... Earlier in 1999, patent officials from 16 francophone West African states (OAPI Organisation Africaines pour la Propriété Intellectuelle), under similar pressure from the USA and UPOV, agreed to similar plant "patent" legislation. The African patent authorities were misled into believing that the monopoly mechanism would bring West African agriculture into the "biotech" world of the 21st Century. The officials were also told that UPOV's convention would allow their countries to comply with the mandatory requirement of the World Trade Organization (WTO) to establish an "effective" legislative mechanism to ensure intellectual property rights for new plant varieties. The OAPI delegates gave in.
To West Africa's surprise and embarrassment, other African states were angered by their action. Before the ink was dry on the OAPI decision, African delegates to a UN Biodiversity Convention meeting in Colombia faxed off a protest to their patent people asking them to reconsider. Simultaneously, a number of civil society organizations in Africa and around the world warned that the OAPI decision could imperil the food security of the 20+ million subsistence farmers in francophone Africa. By the time the 16 patent representatives reached their capitals, officials of the 62-member Organization of African Unity (OAU) were pointing out that the OAPI move contravened a 1998 heads of government decision to create an Africa-wide strategy for plant varieties that is intended to merge the interests of national plant breeders with the national concerns of farmers and Africa's political commitment to farmers' rights. OAPI's anglophone counterpart the 14 member countries of the African Regional Industrial Property Organization (ARIPO) announced that it would stand by the OAU position. Meanwhile, African governments and civil society organizations were asking OAPI country parliaments not to ratify the decision reached by patent bureaucrats. The OAU is expected to discuss the issue when leaders gather in Algiers later this year.
Gambling Houses
Two Geneva-headquartered intergovernmental bodies stand at the centre of the global
push to "patent" plant varieties: One is the WTO - a much-vilified agency requiring no further
introduction. The other is UPOV (whose secretariat is part of the UN World Intellectual
Property Organization WIPO) and is almost unknown outside of Geneva. In 1991, the
OECD-dominated UPOV created a harsh new convention that makes it illegal for farmers to
save seed and places the burden of proof of intellectual piracy onto the accused rather than the
complainant. Although there are mechanisms by which individual governments can make it
possible for farmers to save their seeds, there is no certainty that Nicaragua or OAPI states
will ensure this option. Around the world, 1.4 billion poor people depend upon farm-saved
seed for their food security.
 World intellectual property for plant varieties have benefits for poor farmers and for food security? |
The same acrimonious plant patent debate has parallels throughout the South. Even as this report was being completed, the battle broke out afresh in Brazil and the congress there invited RAFI to come and testify with only a few day's notice. Throughout the South, signatory states to the GATT Uruguay Round (adopted in 1994) are being improperly pressured to comply with Article 27(3)b of the WTO's TRIPS (Trade-Related Aspects of Intellectual Property) chapter sometime between now and 2006 (depending on their economic status and commercial relevance to the seed industry). According to the WTO, "compliance" means implementing and enforcing legislation that grants intellectual property rights to plant breeders over plant varieties they develop. The form of intellectual property, however, is far from clear. The WTO requires that the protection be "effective" and that it be either a "patent" (implying a reasonably specific and very tough form of industrial property historically meant for gadgets not wheat) or a sui generis' (uniquely designed) protection. With obvious self-interest, UPOV officials are energetically directing governments to their 1991 convention. |
No Dice
Andrew Mushita of COMMUTECH in Zimbabwe, a veteran of patent negotiations
says, "We seem to be debating intellectual property without much intellectual capacity.
Nothing is clear and no one seems able to offer clarity." Two oceans away in the Philippines,
Neth Dano of SEARICE agrees. "The only thing that makes sense," she suggests, "is not to
make laws. Anything adopted now may be inappropriate by November." SEARICE, the
Southeast Asian Regional Institute for Community Education in Manila, is working with
ASEAN Governments to sort out their options.
Track Record
Would intellectual property for plant varieties have benefits for poor farmers and for
food security? UPOV's convention and other plant patenting regimes have a very short and
limited history in the South. Where there is a track record, in a country such as South Africa
for example, its apartheid history and the domination of just two companies so skewed the
market as to render any study of the legislation's impact useless. In the North, where some
countries have had what is usually called "Plant Breeders' Rights" for decades, the lack of
data is one of the greatest causes of alarm. "Europe and the USA have had intellectual
property for plant varieties for half a century," argues Camila Montecinos of Chile's Centro de
Educacion y Tecnologia (CET), "and the seed companies still can't prove that the legislation is
beneficial."
RAFI is just completing the third in a trilogy of empirical studies of the three US intellectual property laws that relate to plants. The oldest, passed in 1930, covers asexually propagated fruits and ornamentals. Despite almost seventy years of data, the survey shows: (1) that unlike the claims of the legislation's original backers, plant breeding in new or minor species has not increased substantially (and, in fact, has been declining in recent decades); (2) that the number of breeders has not even kept pace with US population or crop acreage increases and; (3) that there is growing concentration in the hands of fewer and fewer companies.
RAFI also examined US plant patents under that country's industrial patent regime. Plant patents of this kind in the USA have only been permitted since the mid-eighties but RAFI could see no indication of beneficial increases in the numbers of breeders, species bred, or research funds invested.
RAFI's latest study of the US Plant Variety Protection Act of 1970 has identified tremendous concentration in ownership of the 9,000 plant varieties that have been monopolized. The top dozen corporations rule the roost for all the major crop species. Almost all the research activity has focused on soybeans, cotton, wheat, maize, and barley where, in every case, fewer than half a dozen firms dominate the claims. As with the other two forms of US legislation, there is no evidence of sustained new breeding activity or of real diversification into other species. The scattered evidence from European countries (specifically the UK, Germany, and The Netherlands) suggests a similar track record.
Biopiracy
The Enforcers?
Casino Royalties
This is not to suggest that there has been no increase in plant breeding over the past
half century. However, the reasons for this increase have nothing to do with the opportunity
for intellectual property. They have everything to do with population growth, the expansion of
agricultural lands, the strong base of germplasm support from public breeding initiatives such
as the Consultative Group on International Agricultural Research (CGIAR), and the advent of
jumbo jet cargo transport and laptop computers. Jets allow breeding enterprises to conduct
their breeding and seed multiplication activities year-round (moving from the Tropic of Cancer
to the Tropic of Capricorn avoiding winters and doubling or tripling the pace of research).
Laptops allow breeders to field-manage a vastly greater array of experiments. If rewards were
to go where they are due, commercial breeders should surrender their royalties to Boeing,
Apple, and the CGIAR.
The patented biopiracy of Africa's natural resources is becoming epidemic.
A Sucker Every Minute?
If granting monopoly protection over seeds the first link in the food chain, can't be
proven unequivocally to be beneficial to industrialized countries, why on earth would the
South want to adopt any of these models? Why would the OAPI states or Nicaragua not
protect their national sovereignty and food security? Why not delay legislation until the results
are in from the TRIPS Review (if it ever happens)? Why would the South not explore
Farmers' Rights and other forms of sui generis' legislation not dictated by UPOV and the
WTO?
Gambling Tax
What is clear from the US experience is that agricultural input costs have risen more
than 85% in the past decade. It is also clear that a handful of multinational "Gene Giants" have
almost total control over both seeds and chemicals. Indeed, the four multinationals who, in
1998, shared the entire genetically modified crop expect to control well over 80% of the
global seed market and almost 100% of the pesticides market within another ten years.
Some patent authorities in Africa have argued that UPOV membership will help them
protect their country's botanical treasures from biopiracy at the hands of foreign breeders.
Indeed this is a big problem. The University of Toledo (USA), for example, has two patents
on a soapberry compound bred and nurtured by Ethiopian women and further developed by
Ethiopian scientists to control schistosomiasis or snail-fever a debilitating disease in much of
Africa. More recently, the ForBio company of Australia, together with the University of
Hawaii, has claimed a zero-caffeine coffee tree whose critical genes came from the island of
Reunion where the quality was long known by local people. Vital compounds from a medicinal
plant in Madagascar, the Rosy Periwinkle, were patented by a US pharmaceutical company
and are now making hundreds of millions of dollars each year in sales as cancer drugs.
University researchers from Australia obtained Tuli cattle (a rare and drought-hardy breed)
from Zimbabwe early in this decade. Now the Tuli germplasm is being bred into the tropical
livestock herd of Australia and has also been marketed to the USA and Canada. A well-known
and well-protected rice species that serves as a famine food' and is seen commonly in West
African markets was collected in Mali and sent for study to the International Rice Research
Institute in the Philippines. IRRI identified an important disease resistance trait in the West
African rice but allowed visiting scientists from the University of California (at Davis) to
patent the gene in the USA. The American university has offered scholarships to West African
researchers as a form of recognition of Africa's contribution. West African farmers might well
consider offering training to US scientists instead. OAPI member states have also donated
brazzein, a super-sweet protein isolated from the berry of a plant from Gabon, where its
qualities are well known to local people. The University of Wisconsin has received four
patents on brazzein, Wisconsin has licensed their patents to US biotech companies who are
now genetically engineering corn to produce a super-sweetener worth $1.4 billion worldwide.
Gabon will receive no benefit but it will have the pleasure of knowing that its berries are
contributing in a big way to American obesity.
The patented biopiracy of Africa's innovations and resources is becoming epidemic.
An Idaho researcher has claimed an Ethiopian teff, which he is now selling to restaurants in
North America. A California scientist who crossed a cowpea in Kenya while working for the
International Institute for Tropical Agriculture in Nigeria has claimed "Kunde Zulu" for
marketing in the United States. Commercially important forage species have been plucked
from farmers' fields from Morocco and Libya to South Africa and Tanzania and placed under
Plant Breeders' Rights claims in Australia or New Zealand.
Will joining UPOV allow the South to reclaim their rights? Not at all. In every case
cited above, African countries have as much right and opportunity to challenge false
intellectual property claims outside of UPOV as they do inside UPOV. There are no special
mechanisms within UPOV to make such challenges. Worse still, though each of the examples
of biopiracy has been made known to the governments concerned and many have expressed
indignation not one has taken the biopirate to court. Unless and until governments show that
they are willing to fight for their rights, there is no reason whatsoever to believe they will
improve their bargaining position by surrendering to OECD-biased intellectual property
regimes.
As Nicaragua and West Africa's governments prepared their surrender to the WTO
and UPOV, RAFI staff were visiting Kenya's national patent office in Nairobi. The offices are
a modest collection of desks and computers one flight above the neighbourhood's main
attraction a bright and predictably garish casino. The building welcomes its guests with a
choice you can either roll the dice downstairs... or upstairs. Either way, you lose. The poor
and the hungry should not have to pray for their daily bread at a gambling casino or at a patent
office.
RAFI is an international non-profit, civil society organization headquartered in Canada holding
consultative status with ECOSOC, FAO, and UNCTAD. For more than 20 years, RAFI has
been monitoring the impact of new technologies on rural societies with particular emphasis on
biotechnology and the conservation of agricultural biodiversity. More information on RAFI is
available from the website: www.rafi.org.
