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Symposium on food security and biodiversity: Benefit sharing
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Balancing Interests
Presentation by Geoff Tansey on world food day 2003
Consultant, Quaker United Nations Office
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I was asked to stand back from the detail of
the two treaties and look at the broader
process of change going on. In this, the global
rules on intellectual property are crucial and
the question is whose interests are we talking
about, and where are they focused? I suggest
we have to look at interests at different levels –
from the international environment, to
the dynamics within the food system itself.
During the 1990s, the rules affecting food and
agriculture were re-written in various international
negotiations such as those in the Convention
on Biological Diversity (CBD) and
International Treaty. But a different set of rules
overshadows these two and may prove to be
key to what happens to our food future. And
these rules are in a body, the World Trade
Organisation (WTO), which, unlike the others,
requires its Members to implement and
enforce them. It also includes a binding dispute
settlement mechanism where non-compliance
can end in trade sanctions.
Now there are many agreements in WTO.
But the key one affecting benefit sharing is not
in agriculture but deals with things such
as copyright, trademarks and patents. It is the
Trade-Related Aspects of Intellectual Property
Rights Agreement, or TRIPS. It introduces
more or less global rules on so-called intellectual
property. These matter because they increasingly
affect who has what power and
wealth, who drives and controls the direction
and pace of change and what individuals
can do.
Other institutions are also involved in shaping
the intellectual property rules affecting food.
The World Intellectual Property Organization
(WIPO) has an intergovernmental committee
looking at genetic resources, traditional knowledge
and folklore and the International
Union for the Protection of New Varieties of
Plants (UPOV) deals with plant breeders’
rights in a growing number of countries.
It is not easy to influence the deliberations in
these bodies unless you have access to the
policy makers in the capitals that set the positions
– and that is something poor farmers
generally lack.
Even governments have a difficult time in
holding a coherent position across the different
bodies, and often don’t. Different international
bodies are usually dealt with by different
government departments and joined-up
thinking may not result, as a report initiated by
the World Bank illustrated. It was aptly
titled “Why Governments Can’t Make Policy –
the Case of Genetic Resources in the International
Arena”. Today these international institutions
themselves are not balanced in their
ability to ensure treaty obligations are carried
out, nor are governments in their capacity
to negotiate in them – and that takes me back
to the WTO but via the food system.
At the heart of the food system lie issues of
power and control, risks and benefits – who has
what power to control their part of the food
system, minimising or optimising risks and maximising
or optimising benefits? It is a dynamic
system in which the key drivers of change have
come from competition between and among
the various actors involved in the over-productive,
over-subsidised and saturated markets
of the rich countries. They need new markets
in the developing countries.
Two key trends are evident in this system.
One is an increasing concentration of economic
power so that fewer and fewer enterprises
in any one area control more and more of the
market in that area – from farm inputs to
food retailers. The other is use of various tools
by the different actors in the system to maximise
control of the operations they perform. To
do this they use science and technology, information
and management tools within a framework
of laws, rules and regulations in which
they try to influence the broader political process
that sets the rules.
Now these various actors in the system – the
input suppliers, farmers, traders, workers,
manufacturers, processors, distributors, retailers,
caterers and consumers – are not equal
in their ability to use these various tools and
affect the rules. Increasingly, it is those subject
to economic concentration, who are best
able to influence rule-making processes.
The interplay of these larger actors does not
leave much room for small farmers, who are
being progressively squeezed out and receiving
less of the money being made from food.
Changes in the food system are part of a bigger
picture of economic globalisation and revolutions
in our understanding of the biological
and information sciences. The scientific revolution
in biology promises improved means of
control of plants and animals for different
actors in the food system. However, the products
and processes of these scientific revolutions
may be easily copied and some are self-reproducing.
They require extension of the intellectual
property rules, among other things, if
private innovators and corporate rather than
public developers are to secure returns on their
investments. This for me is the context of the
revision of rules governing genetic resources and
Intellectual Property (IP).
Intellectual Property rules underpin the ability
of private actors to win from the knowledge
economy and today’s scientific and technological
revolutions. Patents, trademarks, and copyright
are also important tools used in market
development and seeking market share, and
in firms’ competition and R&D strategies, and
have been for well over a century. They are
a means to capture and appropriate benefits.
And this takes us back to the WTO. For it is
the TRIPS agreement that has introduced essentially
global intellectual property rules.
Intellectual property is one of the three key
pillars of the WTO. These pillars are all linked
by a binding dispute settlement mechanism
backed by sanctions. Indeed, this is the reason
intellectual property was pushed into the
WTO and not left for the existing body, WIPO,
to deal with.
As various authors have shown – and Peter
Drahos’ Information Feudalism has a riveting
account of the process – a high level group
of industrialists initially from the U.S. led by the
pharmaceutical industry but including the
motion picture, recording and software industries,
recognised that in a global market with
the new technologies they needed enforceable
global intellectual property rules. Over a
20 year period they worked to secure the TRIPS
Agreement, taking discussions out of WIPO,
where they could not get binding agreements,
into the WTO.
Now TRIPS (Trade-Related Aspects of Intellectual
Property Rights) Agreement introduces
these minimum enforceable standards for
various areas of intellectual property, notably in
copyright, trademarks and patents. However
there is no special and differential treatment for
developing and least-developed countries,
except some extended deadlines for compliance.
While the claim is made that it will bring
benefits in the long run, the immediate costsare considerable and the financial transfers from
developing to developed countries are enormous
– some $19bn a year from patents alone
to the U.S. according to a World Bank study.
In agriculture, TRIPS requires countries to introduce
intellectual property rules for the first
time in many cases. Article 27 on patents requires
any invention, product or process in
all fields of technology to be patentable. In Para
27.3(b) it allows exceptions for plants and
animals but not microorganisms, but requires
some form of protection for plant varieties.
This highly contentious clause was up for review
in 1999 but has still not been completed.
Unlike in the CBD or International Treaty no
terms are defined in TRIPS. Although some
developing countries resisted the inclusion of
TRIPS into the Uruguay Round of Trade Negotiations,
and gained some modest concessions,
most were little-involved and ill-prepared for
the review in 1999.
Indeed the current negotiating process is rather
like having Manchester United playing downhill,
against a team only some of whom are professionals
and some of whom have never
played the game before. Even worse, some of
the big players are busy leaning on people
in the capital not to cause any problems on the
pitch and let them through.
It was on the basis of trying to make the
process a little – and I stress the word little here
– more balanced that the Quaker UN Office
became involved with negotiators in 1999 and
has been working with them ever since. It
has worked to provide a quiet space for negotiators
to meet, hear each other and those
with a wide range of views, and have access to
various background materials. It has also
helped them have some greater contact with
people working on these issues in various
regions of the world.
This experience has shown that the processes
by which rule-making operates are flawed
and unbalanced, with unequal parties of greatly
differing legal capacity. It also highlights the
difficulty of treating issues, such as medicines
or genetic resources, on their merits and
seeking solutions that would address particular
development needs without requiring tradeoffs
in other areas of WTO negotiations. Moreover,
developing countries face continued
pressures in bilateral and other multilateral
arenas to go beyond what was agreed in
TRIPS.
The sense of injustice this leaves behind,
not to mention the feelings of bad
faith generated by subsequent experience in
trying to address developing country concerns
in health and access to medicines, has
undermined trust in the WTO as a multilateral institution, in which the interests of
developing countries and their peoples can be
taken sufficiently into account. And increasingly,
if big actors cannot get what they want
in one place they will move to other multilateral
fora, or to bilateral pressures to do so.
Another challenge, as suggested in a recent
Food Ethic Council report, is to do what feminists
did about gender and change the language
we use to talk about so-called intellectual
property rights (IPRs) to reflect more accurately
what they are: privileges granted by society
to a few to exclude the rest as a form
of business regulation. It is time to take up
Peter Drahos’ suggestion that “the language
of property rights…be replaced by the language
of monopoly privilege.” What we should be
talking about are intellectually-based monopoly
privileges – IMPs – not IPRs.
They can enrich
the few in the name of producing things society
wants or as a means of rewarding their creativity,
but more often they are a means of protecting
investment and minimising corporate
risk. They are not inalienable rights, but assignable;
not reserved for people, but apply to
corporations and their effects are linked to market
structures. Such a change in language
will help regain sight of the social contract that
lies behind policy in this area, which is
essential in food and farming.
There are real costs to these monopoly
privileges as the World Bank has pointed out.
They shift market power to the larger players,
lead to higher consumer prices, increase the cost
of acquiring knowledge – the international
treaty is a crucial attempt to avoid such costs
in food and agriculture – and, unless there is a
robust anti-trust and competition regime,
which is not usually the case in most developing
countries, these monopoly privileges
may facilitate anti-competitive practices that can
keep new players out.
Today, as a growing number of reports are
suggesting, from the UK Commission on Intellectual
Property Rights to the World Bank,
the intellectual property regime that is developing
– and which is the éminence grise behind
the CBD and International Treaty – is not
meeting human needs but rather bolstering a
rather dubious status quo. While technological
innovation is automatically assumed to be a
good thing, we are less ready to look at innovation
in our institutions and the rules that
shape them.
So much of the current pressure to
expand and extend IP protection is, in reality,
a very conservative force, aimed at protecting
the institutional structure of narrow private
interests rather than enhancing the opportunities
major scientific revolutions are opening
up and expanding the public domain. A real challenge is to think beyond the 19th century
rules structures into which current scientific
and technological innovation is being squeezed.
There is no divine right for existing corporate
forms of institutions to survive and be protected
behind more and more IP legislation –
from copyright extensions for long dead creators
to patent rights given in lax regimes for
dubious inventiveness. In reality, the current IP
regime helps bolster the creation and maintenance
of unaccountable oligopolies, able to
capture the rule-making processes, and gives
them almost government-like power to impose
a kind of private taxation on the population
built around their monopoly privileges.
Software
companies and big pharma as agencies of
private taxation as much as innovation, perhaps?
No longer, as has been the case for most of its
recent history, can intellectual property be
treated as a domain of its own, but one that
crucially affects social development. This is
particularly urgent given its widespread introduction
into the food system globally, and
the pressures to increase its use there. Within
the current scheme of things, it means ensuring
that the privileges granted through patents
etc. are matched by not just responsibilities
but also by liability regimes – as is still to be negotiated
in the Biosafety Protocol – prevention
of restrictive practices, unfair contracts law,
open access research and so on.
The rules
bestowing monopoly privileges should not be
used to promote narrow sectional or national
interests of the currently powerful but, if possible,
to empower the poor and weak, and,
if not, be rejected in favour of something better.
That will almost certainly mean changing
the rules of the game internationally, and resisting
processes and pressures to seek ever
higher levels of intellectual property protection.
So how is such change even to begin to happen?
In part, by a broader public involvement
in the rule-making processes in a range of
institutions. Without public concern about access
to medicines, TRIPS would not have
made the headlines around the world over the
past couple of years. Such concern will not
go away and should also be entering into the
questions of food security. For that to happen,
these issues need to become accessible to
the public, of political importance to societies
at large. Only then will pressures arise to make
the connections often not made at present
between the various interests affected.
One challenge,
then, is to take the discussion and
debate from here to a more general public and engage them in ways that will help reshape
the rules for a new millennium. Another is to
make the rule-making processes more just
within and between countries and in ways that
prioritise the needs of the poor and will empower
them in their development, in sustainable
ways that will maintain food security
at all levels. For without that, the danger, and
prospect, is of rules that will bolster the
current and growing divide in wealth and power
around the world, and a food system in
which poor farmers are further marginalised.
So, as we discuss in more detail the International
Treaty, it is the poor and marginalised who
should be our measure. The many ambiguities
in the text should be resolved in good faith
in their interest. A key aim of the extension work
I was involved with over the years was sharing
knowledge of techniques and practices to
increase the wellbeing and productivity of
farmers and rural people – and through that the
society as a whole. The International Treaty
is an island of multilateralism aimed at the sharing
of things that we all need for food security,
in a growing sea of bilateralism and proprietarianism
that reduces the public domain.
The short-term interests of the few may not favour
the treaty’s approach, but the long-term
interests of the many certainly do. A key challenge
to achieve that is for the interests of the many to be more effectively represented in
the rule-making processes, as the rhetoric of
the Treaty suggests. Then any benefit sharing
that does accrue may get to those who need it.
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