9. Intellectual Property Rights

Background

Intellectual property rights are theoretically intended to provide recognition for all products of the mind, such as inventions, music, or books. However, the recent wave of trade agreements have established intellectual property rights provisions that are biased towards protecting and compensating corporate-sponsored activity.

A particular concern has been the emergence of intellectual property rights in products derived from biodiversity. Under these provisions, corporations have the right to patent products that have traditionally been treated as common property of local communities.

Guiding Principles

• The intellectual property provisions of trade agreements such as NAFTA, the WTO and the FTAA should be limited to matters directly related to trade, such as trade in counterfeit goods. These provisions should not be extended to authorize trade sanctions that force individual countries to adopt measures that subordinate the interests of the national population to those of transnational corporations or to their national subsidiaries. For example, no trade or investment agreement should be allowed to supersede national laws requiring foreign investors to transfer appropriate technology to the host country.

• Before granting private companies legal protection privileges for intellectual property, governments should ensure that obligations to society at large (e.g., patented products should be made available at affordable prices) and to certain social groups (e.g., stewards of biodiversity) will be met.

• While each country has the sovereign right to establish its own patent and trademark laws, international agreements on intellectual property should also be established through bodies such as the World Intellectual Property Organization (WIPO) and the United Nations Conference on Trade and Development. Such agreements should facilitate the transfer of technology in order to reduce the enormous gap in technical and scientific knowledge, and the gap in benefits derived thereof, between nations.

Specific Objectives

• Exclude all life forms, including plant and animal species, biological and genetic material and processes and combinations thereof, including that derived from the human body, from patentability. Assert the primacy of international agreements on biodiversity over trade agreements such as the Trade-Related Intellectual Property (TRIPs) code under the WTO in disputes involving conflicts between biodiversity use and conservation and the interests of holders of patent privileges.

• Require the owners of pharmaceutical patents to grant compulsory licenses to producers of generic medicines. Compulsory licensing does not abolish patent rights, but it does oblige patent holders to allow others the right to produce copies in return for payment of royalties. (Generic medicines typically sell at significantly lower prices than brand-name pharmaceuticals.)

• Protect the rights and livelihoods of farmers and communities (and especially indigenous communities) that act as the guardians of biodiversity. Support the Thammasat Resolution (signed in December 1997 by representatives of more than 40 NGOs) to reinforce "the defense mechanisms of local communities that are vulnerable to `bio-prospecting' and to the introduction of genetically altered organisms." The term "bio-prospecting" refers to the practice of pharmaceutical firms sending scientists into natural habitats to gather samples for the purpose of testing to determine whether they have properties that may be patented for a profit.

• Support the February 11, 1998 call by the Consultative Group for International Agricultural Research (CGIAR) for a moratorium on the patenting of all germ-plasm held by CGIAR research centres.

• Support calls by local communities for a moratorium on bio-prospecting and encourage the development of national legislation to determine the terms of any bio-prospecting as local communities may decide to allow. Support the negotiation of the Convention on Biological Diversity's Protocol on Biosafety to require terms of liability and sanction for the illegal trans-boundary movement of genetically engineered organisms.

• Defend indigenous peoples' rights in the face of genetic research that uses tissue, blood or DNA samples without their permission or knowledge of the purposes of the research, as well as appropriation of their craft designs and techniques.

• Intellectual property related contracts that prohibit the saving of seed or allow the burning of crops as punishment for violating the terms of such contracts, should be superseded by "ordre public." This is an international law term that refers to the ability of governments to take measures for the general public benefit and public health considerations relating to food security.

• Adopt specific measures to enhance the transfer of appropriate technology to less developed countries according to each country's development priorities. In particular, promote the sharing of energy-efficient and renewable technologies.

• Ensure that copyright laws protect artists, writers, musicians, crafts producers, and other cultural workers, and not just publishers and the motion picture and recording industries, as occurs under NAFTA's Article 1705. Such protections would be of special value to indigenous and female crafts producers.