'All the Elements of Human Rights in Decision 486 are Illusions -- September 28, 2000
Last 14 September, the Andean Community -- composed of Bolivia, Colombia, Ecuador, Peru and Venezuela -- adopted a new intellectual property rights (IPR) system. Designated as 'Decision 486', the law sets out common rules for the granting, implementation and enforcement of a wide range of IPRs in the five Member States. It will come into force on 1 December 2000, replacing the regime defined in the Community's 'Decision 344' of 1993.
Decision 486 is specifically meant to bring the five countries' IPR systems in line with the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It does so with direct reference to the Convention on Biological Diversity (CBD).
With respect to ongoing conflicts over rights to genetic resources, biopiracy and the patentability of life forms, the Decision contains quite a number of provisions. The most noteworthy are perhaps the following (roughly translated from the Spanish, but not the legalese):
* The Member States recognise the rights and faculties of local, indigenous and afroamerican communities to decide over their collective knowledge [Art 3]
* Life forms, in whole or in part, as they are found in nature, natural biological processes, and biological material which exists in nature or which can be isolated from any life form, including genomes or germplasm, shall not be considered inventions [Art 15]
* Inventions whose commercial use should be prohibited to protect the health or life of people or animals, or to conserve plants or the environment, shall not be patentable. To this effect, the commercial use of an invention will not be considered contrary to the health of life of people or animals, or to the conservation of plants or the environment, merely because of a legal or administrative ruling which prohibits or regulates such use. [Art 20]
* Plants, animals and essentially biological processes, which are not non biological or microbiological processes, for the production of plants or animals shall not be patentable [Art 20]
* Any application for a patent on an invention, be it a product or process, obtained or developed from genetic resources, or their derived products, of which any of the Member States is country of origin shall include a copy of the access contract [Art 26]
* Any application for a patent on an invention, be it a product or process, obtained or developed from traditional knowledge of indigenous, afroamerican or local communities of any of the Member States, and for which the Member State is country of origin, shall include the copy of the document which accredits a license or authorization of use from the community, in conformity with what is established in Decision 391 and its modifications and valid regulations [Art 26]
* When the patent is on a self-replicating biological material, except for plants, the patent holder shall not have the right to prevent others from using it as the initial base to obtain a new viable material unless the repeated use of the patented material is required [Art 53]
* When the patent protects self-replicating biological material, the patent shall not extend to the biological material obtained by reproduction, multiplication or propagation [after the product placed on the market] as long as the reproduction, multiplication or propagation is necessary to use the material in conformity with the purpose for which the product was placed on the market and where the derived material is not used for the purpose of multiplication or propagation [Art 54]
* Patents granted on inventions obtained or developed from genetic resources or traditional knowledge, of which any Member State is country of origin, without presentation of a copy of the proper access contract or license from the community shall be nullified [Art 75]
* Any mark referring to elements of the cultures of indigenous, afroamerican or local communities shall not be registered without the community's express consent [Art 136]
* Microorganisms shall be patentable pending the adoption of different measures as a result of the review of TRIPS Article 27.3(b). To this effect, the obligations assumed by the Member States under the Convention on Biological Diversity shall be taken into account. [Second Transitional Provision]
On the surface, some of these elements may look 'progressive'. After all, this is the first time that a group of developing countries has set up a new intellectual property regime in the name of TRIPS which directly incorporates elements from the Convention on Biological Diversity. Can harmony between the conflicting international treaties be achieved this way? According to Margarita Florez, a Colombian lawyer long involved in this debate in the subregion, we should be extremely cautious. In her view, the CBD-friendly provisions in Decision 486 do not carry the same weight as the intellectual property rights.
GRAIN concurs. This new move to accommodate community rights over traditional knowledge and sovereign control over access to genetic resources within an IPR regime is just that -- accommodation. Incorporating the language does not necessarily move anything forward for local communities themselves. In the case of Decision 486, what we see on paper is an initiative to involve indigenous people, afroamericans and rural folk of the Andean countries in the smooth running of a patent system which fundamentally serves to give exclusive commercial rights over local biodiversity to others. This is fine, if your objective is make patents on life more politically correct. But it's disempowering if your objective is to strengthen the rights of local people over their own knowledge, resources and livelihoods, and against the encroachment of bioprospectors and the greed of biopirates.
The adoption of Decision 486 should serve as an alarm bell to policy-makers and legislators in other developing countries. Rather than succumb to the contradictions within TRIPS (e.g. the obligation to review the provisions on biodiversity while these provisions should have been implemented last January), not to mention the conflicts between TRIPS and CBD, we need to fix the problem at its source. The review of TRIPS is going on and getting deeper into the issues. There have been proposals tabled from a good number of developing countries to suspend the implementation deadline and amend the treaty to exclude biodiversity from its purview. And there are excellent suggestions now for new language being circulated. The cards are in the hands of the South to stay on the offensive and pursue real change in their international obligations -- without falling into the trap the Andean Community fell into.
* Margarita Florez Alonso is a Colombian lawyer, specialised in biodiversity law and indigenous peoples' rights. She is currently finalising a study to be co-published by the Gaia Foundation and GRAIN on how regional integration agreements, bilateral investment treaties and unilateral mechanisms determine intellectual property regimes in Latin America. She can be reached at mailto:email@example.com.
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Last Updated on 10/10/00