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Biodiversity and Trips : 

Biodiversity and Trips

Slide 2: 

What is biodiversity? DefinitionBiodiversity is the bacteria in your stomach, the algae in a pond, the spiders in your house, the genes that are the code to create a human, a small patch of grassland, the mosaic of habitats on an island, the Amazon rain forest. In short biodiversity is the variety of life on earth, at all levels, from genes, through to individual organisms to species to vast and expansive habitats and the links and interactions between all of these. Biodiversity can be expressed in different ways. Genetic diversity • Species diversity • Ecological diversity

What is TRIPS : 

What is TRIPS The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was negotiated during the Uruguay Round, under strong pressure from major industrialised countries. The TRIPS Agreement imposes minimum standards for countries to adopt in almost all areas of IPRs. The time frame for Developing countries to implement TRIPs until January 1, 2000.

BackgroundThe biodiversity provisions of TRIPS are under review since 1999. Africa Group and the LDCs have been calling for patents on life to be prohibited under TRIPS. There are also proposals to bring TRIPS into harmony with the CBD through disclosure of origin of genetic resources and protection of traditional knowledge. Industrialised countries, however, are not satisfied with the level of protection for plants and animals under TRIPS. The US and Europe have been actively securing TRIPS-plus commitments to IPRs over biodiversity in developing countries through bilateral treaties, including free trade agreements. : 

BackgroundThe biodiversity provisions of TRIPS are under review since 1999. Africa Group and the LDCs have been calling for patents on life to be prohibited under TRIPS. There are also proposals to bring TRIPS into harmony with the CBD through disclosure of origin of genetic resources and protection of traditional knowledge. Industrialised countries, however, are not satisfied with the level of protection for plants and animals under TRIPS. The US and Europe have been actively securing TRIPS-plus commitments to IPRs over biodiversity in developing countries through bilateral treaties, including free trade agreements.

TRIPS AND BIODIVERSITY : 

TRIPS AND BIODIVERSITY The Convention on Biological Diversity (CBD), an international legal instrument signed by 187 countries for the conservation (except the U.S.) signed the U.N. Convention on Biological Diversity, and sustainable use of genetic resources and traditional knowledge as well as assuring fair and equitable sharing of benefits between the donors and users of these resources. It mandatory to protect plant varieties through one of the following three methods: Patents. An effective sui generis system. Any combination thereof. South Asia is home to two of the 12 mega biodiversity centres of the world, and it has more than 15,000 endemic species of plants. The region also forms the primary and secondary centre of diversity for many crop plants, and owns large genetic diversity in these crops and in a few more crops introduced from elsewhere. more than half the region’s population depends on farming for its survival. Therefore, the conflicts between TRIPS and the CBD have serious developmental implications for the region. Against this backdrop, this backgrounder traces the linkage between TRIPS and the CBD in the context of South Asia.

Convention on Biological Diversity (CBD) : 

Convention on Biological Diversity (CBD) Signed at the Earth Summit in 1992, the CBD is the first decisive move undertaken by the global community to establish an international legal framework for the conservation and sustainable use of genetic resources, with the rights over such resources vested in the sovereign States. This instrument also contains a landmark provision to determine the criteria of access to genetic resources and associated traditional knowledge and the sharing of benefits arising out of their commercial use. Four Articles of the Convention -- Article 8 (j), Article 15, Article 16.5 and Article 22 -- are particularly relevant. Article 8 (j) contains a provision to encourage the equitable sharing of benefits arising from the utilisation of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. Article 15 of the CBD, recognising the sovereign rights of States over their natural resources, has empowered national authorities to determine policy, administrative or legal measures for allowing access to their genetic resources.

Conflicts between TRIPS and the CBD : 

Conflicts between TRIPS and the CBD TRIPS, in particular Article 27.3 (b) of the Agreement, is in direct conflict with the CBD. The major controversies surrounding these debates relate to: Private rights vs public rights. Rights of indigenous communities vs rights of multinational pharmaceutical corporations. Rights of commercial breeders vs rights of farmers. It is argued that TRIPS attempts to homogenise IPR regimes and thereby militates against a country’s or a community’s freedom to choose the way in which it wants to deal with the use and protection of knowledge. Equally important, it contains no provision for the protection of indigenous and local community knowledge. Such knowledge, because of its nature, may not be amenable to protection under current IPR regimes. Finally, it does not recognise the need to equitably share the benefits of knowledge related to biodiversity. This part of the Article was, apparently, added towards the end of the Uruguay Round negotiations, at the insistence of developing countries.

Bio-piracy and theft of traditional knowledge : 

Bio-piracy and theft of traditional knowledge Since TRIPS was sponsored by corporate interests in the North, one of the tacit objectives of this Agreement was to help them maximise their profits. While most of the world’s genetic diversity resides in the South, where farmers and their ancestors develop all the important food crops, transnational corporations (TNCs) can now patent those crops -- by the IPR provision set out by TRIPS -- and make huge profits without compensating traditional farming communities for the original research. Countries and regions such as South Asia, which are rich in biodiversity and traditional knowledge, are particularly susceptible to bio-piracy. Unless efforts are made to zealously guard these resources, bio-piracy will continue unabated.

Bio piracy is a misappropriation of the intellectual property of local communities. In the case of the patent on turmeric, or neem, the knowledge of the wound healing property or the bactericidal property of the respective plants was the basis of the ‘invention’ that was granted a patent by the US Patent and Trademark Office. : 

Bio piracy is a misappropriation of the intellectual property of local communities. In the case of the patent on turmeric, or neem, the knowledge of the wound healing property or the bactericidal property of the respective plants was the basis of the ‘invention’ that was granted a patent by the US Patent and Trademark Office. A few examples of bio-piracy that South Asian communities have encountered are worth highlighting here. Several medicinal properties of plants, fruits and vegetables that have been used by traditional healers in South Asia since time immemorial have been patented by various companies in developed countries. Sixty-five properties of neem, two properties of bitter gourd, six properties of turmeric, and three properties of jackfruit have been patented by companies and institutions mainly from the US, Europe and Japan.

Why is MNC’s concern about intellectual property rights and TRIPS? : 

Why is MNC’s concern about intellectual property rights and TRIPS? In the 1990s, there has been a trend of "mega-mergers" of MNCs in the life sciences industry, that is, transnational enterprises involved in the commercial sale of seeds, pesticides, food and pharmaceuticals. As a result of these mergers, a small number of the MNCs dominate and control the life sciences industry. For example: UNDP's Human Development Report 1999 states that in 1998, the top ten corporations in the commercial seed industry controlled 32% of the US$23 billion industry; in pharmaceuticals, 35% of the US$297 billion industry; in veterinary medicine, 60% of the US$17 billion industry; and in pesticides 85% of the US$31 billion industry. Such monopoly means that the MNCs are able to control the supply of the products. What does Article 27.3(b) say? Members may also exclude from patentability ... (b) plants and animals other than microorganisms, and essentially biological processes for the production of plants and animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or an effective sui generis system or by any combination thereof.

Slide 11: 

There are two key issues involved here: 1) issue of patenting of life forms; and 2) the protection of plant varieties. 1.What does patenting of life forms mean? The first relates to the process of "biopiracy", that is the theft of biological resources and traditional knowledge from the developing countries. Examples of bio-piracy - the case of the US patent on the use of tumeric for healing wounds is a well-known one. The second aspect is the advent of biotechnology. The ability to identify, isolate and move genetic materials across species types has aroused great commercial interest and investment in biotechnology. In relation to the patenting of life forms, Article 27.3(b) provides that countries may exclude from patenting: plants, animals and essentially biological processes, but countries must patent: microorganisms, microbiological and non-biological processes.

2.What about protection of plant varieties? : 

2.What about protection of plant varieties? The second aspect of Article 27.3(b) is the protection of plant varieties. Countries must protect plant varieties through the patent system, or through the establishment of an effective sui generis (i.e., unique or of its own kind) system or any combination of the two. IMPACTS ON BIODIVERSITY 1.In developing new products, scientists take plant samples from the field to the laboratory, where the simple act of moving a single gene from one spot to another within a cell -- whether or not it causes an actual variation in the next generation, creates a "plant variety" deemed sufficiently "new" to qualify as a patentable invention. 2.The emphasis on finding and isolating plants with the most marketable traits leads to the decline of other plant species, In the U.S. alone, the focus on commercial varieties has already led to the loss of many varieties of plants in seed bank storage. 3.the privatization of genetic resources that have been engineered and patented accelerates the trend toward mono cultural cropping.

Slide 13: 

a mere handful of varieties of patented hybrid corn now cover millions of acres of the Midwestern U.S. corn belt, In India, for example, peasant producers now cultivate some 50,000 varieties of rice, developed through traditional practices over the millennia. The TRIPs rules would prohibit these farmers from harvesting and reusing the seed of any rice variety that has been patented. 4.Furthermore, an engineered organism may produce unanticipated harmful impacts on other species in its new environment. for example:-Klebsiella planticola, a bacteria destroyed much of a beneficial mycorrhizal fungus essential to the recycling of nitrogen through plant roots

The developing countries’ positions : 

The developing countries’ positions The developing countries have a wide range of interests depending on factors such as: • whether they are net food importers or exporters; • how extensive their biodiversity is; • the nature of their farming economy; • the degree of industrialisation; and, • whether they have an established biotech industry or not. The sui generis system option A sui generis (of its own kind) system of protection is a special system adapted to a particular subject matter, as opposed to protection provided by one of the main systems of intellectual property protection, e.g. the patent or copyright system. A special law for the protection of integrated circuits is an example of a sui generis law. In this case, it means countries can make their own rules to protect new plant varieties with some form of IPR provided that such protection is effective.

cases : 

cases A U.S. patent on turmeric was awareded to the University of Mississippi Medical Center in 1995, specifically for the "use of turmeric in wound healing." This patent also granted them the exclusive right to sell and distribute turmeric.Two years later, a complaint was filed by India's Council of Scientific and Industrial Research, which challenged the novelty of the University's "discovery," and the U.S. patent office investigated the validity of this patent. In India, where turmeric has been used medicinally for thousands of years, concerns grew about the economically and socially damaging impact of this legal "biopiracy." In 1997, the patent was revoked. Many developing countries are concerned that the globalization of intellectual property rights under the WTO's TRIPs agreement, and the negative consequences it has for traditional indigenous knowledge and biodiversity. "biopiracy" a threat to developing economies and their biodiversity. As an ecologically biodiverse country struggling to emerge from poverty by integrating itself in the world's trade regime, India has much to be gained from such reform, as it would likely lead to the revocation of U.S. patents on many other Indian products (like Neem, Amla, Jar Amla, Anar, Salai, Dudhi, Gulmendhi, Bagbherenda, Karela, Rangoon-ki-bel, Erand, Vilayetishisham, Chamkura).

Slide 16: 

The generic title of the RiceTec patent No. 5663484, The Basmati victory is the Seattle in the domain of Biodiversity and TRIPs. Need to challenge TRIPS The next step of the Basmati Battle is about the defense of indigenous innovation and the recognition of the contribution of our biodiversity.  The Biodiversity Bill which should have regulated access but has offered corporations free access to seeds, crops and farmers varieties. The Plant Variety (Seed) Bill which creates seed monopolies and does not have adequate defense of farmers rights and freedoms. The Patent Bill which would allow RiceTec style biopiracy, patents to be granted to corporations, under Indian law. such monopolies are granted to corporations through Indian law, Indian cultures will over time be denied the free use of seeds, medicinal plants, and indigenous knowledge. Every day items like Haldi, Neem, Karela will go beyond our reach for food and medicine.

Thank you : 

Thank you presented by, Malaya pani PGDM(IB) ROLL NO-10

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