IK Monitor Articles (8-3)

Indigenous Knowledge and Development Monitor, November 2000

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Column

Indigenous knowledge versus TRIPS and IPRs

by Martin Khor

Martin Khor is the director of the Third World Network, which consists of citizen groups in the developing world involved in development and environment issues. He can be contacted at twn@igc.org

There is a growing appreciation of the importance of local and indigenous knowledge for the sustainable use of natural resources. However, concerns are being voiced by citizen groups and indigenous communities about how indigenous knowledge is being appropriated by large commercial interests.

There are fears that communities and the public will be denied access to both the knowledge and the biological materials, either through high prices or the refusal of patent holders to share them. At the heart of the problem lies the World Trade Organization's agreement on trade-related intellectual property rights (TRIPS). Article 27.3b allows member countries to exclude the patenting of plants, animals and 'essentially biological processes', but makes it mandatory for them to patent microorganisms and 'microbiological processes'. Moreover, members must patent plant varieties or otherwise protect them through an effective sui generis system.

Critics note that these distinctions were made by certain developed nations in order to enable their big corporations to patent genetically modified organisms (including plants and animals containing genetically engineered materials), and even naturally occurring microorganisms. TRIPS is facilitating the worldwide patenting of biological materials, which would negatively affect the health, food security, and livelihoods of farmers and indigenous peoples. The control of knowledge and products by corporate interests through IPRs would curtail the access of consumers to medicines and foods, through higher prices, and even erode the age-old practices by which local farmers save and share seeds and other materials.

Criticism is mounting among citizens' groups and the governments of developing countries. In August 1999, the Group of African Countries within the World Trade Organization (WTO) criticized the 'artificial distinctions' between plants and animals on the one hand and microorganisms on the other hand, and between 'essentially biological processes' and 'microbiological processes'. The African group proposed a review of TRIPS in order to 'clarify that plants and animals as well as microorganisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable.' They also suggested that a clarification be made that TRIPS allows countries to institute a sui generis system to: (1) protect the innovations of indigenous communities; (2) continue traditional farming practices, such as saving and exchanging seeds; and (3) prevent anti-competition practices which threaten food security in developing countries.

In September 2000, at a TRIPS Council meeting at the WTO, Kenya proposed that article 27.3b be amended to 'prohibit or exclude from patentability all biological and living organisms' and 'any processes making use of, or relating to, such biological and living organisms.' It added: 'This prohibition or exclusion is justifiable on legal, scientific, developmental, moral and ethical grounds.'

The governments of several other developing countries have expressed support for the African group's position. Hundreds of NGOs around the world have signed a letter of support and joined a campaign to stop the patenting of all life forms. Many NGOs and experts also believe that there must be a mandatory worldwide prohibition against patenting biological materials.

Such a position will be opposed by corporate interests, who hope to profit from such 'bio-piracy', and the governments of developed countries will be against amending the TRIPS agreement. But the logic of the need for drastic changes to TRIPS will gain ground. Indeed it must, if we are serious about the need to recognize, appreciate and protect indigenous and local knowledge.