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TRIPS Agreement Remains Contentious in the South

2001-03-01

Developing nations will continue to lobby for changes to the controversial World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights, known as TRIPS, claims the author of major discussion papers on the issue.

Geoff Tansey, a British writer and consultant on food issues and intellectual property rights, says that many developing nations may be unwilling to accept parts of the current agreement, which was mainly created by developed countries. A key element of the agreement requires WTO members to make patents available for any inventions — whether they involve products or processes — in all fields of technology, he said during a presentation at the International Development Research Centre (IDRC). (Tansey visited IDRC to discuss linkages with the IDRC- funded Crucible II project, and the Centre's plans for a Genetic Resource Policy Initiative.)

Article 27.3(b)

Article 27.3(b) of TRIPS, one of the most contentious clauses, states that WTO members "may exclude plants and animals from patents, other than micro-organisms... However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis (unique) system or by any combination thereof."

Tansey calls the TRIPS agreement one of the most dramatic developments in the history of intellectual property legislation on the globe, because it suddenly extends the requirements of this legislation into countries that have never had it before. Countries that do not comply with the TRIPS agreement could face trade sanctions.

TRIPS and the South

TRIPS forces developing countries to introduce intellectual property rights legislation in ways that developed countries never had to in the past. "They copied and borrowed technologies, and only amended their own laws when they felt they were in a position to do that," stresses Tansey. He adds that many developing nations worry that the agreement, as it stands, would allow companies to "mine" their traditional knowledge and patent it for profit.

Tansey, who wrote a discussion paper for the Quaker United Nations Office (QUNO) and served as a consultant to the United Kingdom's Department for International Development (DFID), says both organizations, in different ways, are trying to help developing nations express their views.

QUNO activities

QUNO takes no position on the substance of TRIPS, but is trying to assist representatives of developing nations to make their own decisions by providing appropriate information, often informally. QUNO has worked for several years to bring senior officials together outside of formal WTO discussions in Geneva, so developed countries can recognize some of the concerns of less-developed ones.

The British government, while believing that the TRIPS Agreement is flexible enough to accommodate developing country concerns, does recognize that some developing countries have problems with it. Tansey says DFID will set up a commission on Intellectual Property Rights (IPRs) to look at how intellectual property rules need to develop in order to take more into account the interests of developing countries and poor people. DFID has also commissioned an annotated bibliography on IPRs and sustainable human development and may support further work in this area.

Uneven playing field

The issue arose because developed nations held many of the advantages in the original TRIPS negotiations. "It's like having Manchester United playing downhill against a soccer team that has a few good players — and others who have never played the game," he says.

Literature on the TRIPS negotiations makes it clear that until now, regulation of the intellectual property environment has been left largely to groups such as patent lawyers and industry, he adds. But due to the increasing emphasis on biotechnology, debate is now straying into issues with a moral and ethical dimension, such as the potential social and environmental impacts of genetically engineered organisms. Meanwhile, many developing nations regard Article 27.3(b) as unfinished business.

Issue not over

"Some countries think the [1999] review is over, done, finished," concludes Tansey. "Developing countries certainly do not think the review of Article 27.3(b) is over, and they will continue to put things on the table."

Keane J. Shore is an Ottawa-based writer and editor.

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