10:17 AM Feb 26, 1997
SUI GENERIS, A DEAD END ALLEY?
by Camilla Montecinos* Barcelona, Feb (Seedling) -- Over the last few years, NGOs have invested considerable time and energy in fighting intellectual property rights (IPRs) over life. Many of these efforts have been focused on developing the socalled sui generis option of the GATT Trips agreement. That agreement, while obliging signatories to implement some kind of IPRs over plant genetic resources, theoretically allows some scope for the development of alternatives to the two established systems, the industrial patents and plant breeders' rights (PBR). NGOs hoped that these sui generis -- meaning of its own kind or unique -- systems might be developed in a way that could limit the influence of the limited 'blueprint' approach to protection that patents and PBRs offer, and provide some protection for traditional knowledge and innovation systems. A critical evaluation of these hopes, from a Latin American perspective.... provides a harsh conclusion: the various attempts to accommodate 'collective property' or 'community rights' within the existing framework of IPR systems have not been successful. In some cases, they may have been directly counter-productive. This is not an attack on persons or organizations involved in this work... The author certainly assumes her part of the responsibility both for what has and has not been achieved. There is a growing confusion, atleast among Latin American NGOs, about what positions we should be taking regarding IPRs and the alternatives to it. While there has been no fundamental re-evaluation of the original flat 'NO' to ownership on life, in practice there has been a move towards discussing and/or accepting various 'different' forms of IPRs. The reasons for opposing IPRs on life, and supporting community rights, relate to access and property rights: Rural and indigenous communities should have full access to and full rights over existing resources, whatever their origin. They should be able to maintain and strengthen their systems of innovation and knowledge creation..... They should be primary beneficiaries of the resources they have created. And all cultures have the right to exist and keep on developing, maintaining and respecting values and worldviews not determined by market globalization. IPRs on life contradict fundamental beliefs and rights, such as sacredness of life, the free flow or knowledge, the freedom of information etc. They limit or impede access to and control over basic resources for peasant and indigenous communities, and destroy local and indigenous systems of knowledge, use and exchange. They reinforce commercial and monopolistic exploitation of resources and knowledge created by local and indigenous communities. In our work on IPRs, we NGOs were not able to stop PBRs or patents, which fundamentally restrict community control, although their full effects have not yet been felt in Latin America. Access regimes seem to be next battlefield. The most advanced access regime in Latin America, that of the Andean Pact countries (Bolivia, Colombia, Ecuador, Peru and Venezuela) does not improve access for communities. On the contrary, it prevents forms of exchange that until now have been completely free -- for e.g. between farmers and national universities -- and may serve to force farmers to give away their resources. Even some of the proposals by civil society organizations are not free from this problem. Self-imposed restrictions and acceptance of patents, which means accepting .... loss of control and rights over the resources and knowledge, sometimes even turn up in decisions of indigenous organizations known for their strength and integrity. Although protection of local systems has always been the common goal of all civil society organizations involved in this issue, many of the alternative regimes being developed actually work against it. We seem to be lost in a conceptual chaos caused by the attempt to develop the 'indigenous or community equivalent' of the basic concepts of the present industrial and post-industrial property system. And thus, we speak of 'collective intellectual property' or of 'just and equitable distribution' without analysing if such concepts are really compatible with non-Western systems of knowledge creation. In indigenous and peasant societies, and also in the best of Western humanist traditions, concepts like 'mine', 'yours' or 'ours' do not necessarily speak of property. They are also associated with the concept of the gift, something that cannot be appropriated, sold or restricted, much less monopolised. The right to enjoy a gift ... comes with an obligation to protect it, strengthen it, and ensure its proper use when needed, share it with others, and pass it on as a further enriched legacy. Rural societies - indigenous or peasant - have always understood that weather, land, water, plants, seeds and their corresponding knowledge, are a gift ... For indigenous communities these gifts are sacred, and the most sacred only come to those who have special powers and abilities for communication and sharing. The concrete expressions of this worldview are countless, but perhaps the most universal is that seeds and knowledge are shared with pride and given away with great honour. This high appreciation and this form of sharing is of fundamental importance for the flow and creation of knowledge, and for the creation, adaptation and dissemination of diversity. It is also of importance for cultural survival. The system of exchange and free flow established by indigenous peoples allowed them to survive, adapt and 'absorb' non-indigenous communities. One of the hardest blows to these cultures - the Green Revolution - was so effective just because it was able to prevent the flow of local knowledge by denigrating and devaluing it. Thousands of farmers and local researchers, indigenous elders and healers kept their knowledge locked up in order not to be humiliated. It took little more than a generation of Green Revolution for much of this knowledge and associated resources to disappear from lack of use or circulation... Any mechanism allowing property rights to life and knowledge - no matter how 'communitarian' - is at best Russian roulette. In looking for alternatives, we should take note that many of the proposals for sui generis system have made exactly the same assumption that many industrialized country representatives have made in the international negotiations: that protecting property rights over knowledge and biotic resources is equivalent to protecting knowledge and biotic resources. In reality, the former is turning into a powerful weapon for destruction of the latter. We should be explicit and aware that in imposing property systems on life and knowledge in any of its forms, Western culture also loses fundamental values and rights, as well as the possibilities for creating knowledge. Firstly, sacredness of life has been an essential part of the beliefs and values which give full meaning to the life, work and struggle of those of us who are indigenous or farmers. We are not just working in solidarity; we are defending the rights of everyone. Secondly, the foundations of our present scientific development were created under explicit assumption that knowledge was a common good created for the common good. But not only is science manipulated by economic and political interests, but the exchange between scientists - basic tool for accelerating the creation of knowledge - is being systematically dismantled. Thirdly, the more laudable characteristics of western values are being violated and eroded, exacerbating the problems being created. Public science - characterised by free access, free creation and working for the common good -- is fast disappearing. ... peasants and non-peasants, indigenous and non-indigenous alike, we all have the right to say NO. The logical next step is to exercise this right and plainly reject intellectual property altogether. ..... It is not only the state, or para-statal organizations, that are signing away control over biodiversity in return for questionable benefits. In some cases it is the organizations of indigenous peoples or local communities themselves. An example is the contract signed between AWA Federation and the National Cancer Institute of the USA. Signed in 1993 for the collection of plants with anti-cancer and anti-AIDS characteristics, it is worse than many others as it gives the AWA indigenous people of Ecuador and Colombia no guarantee of benefits whatsoever, while obliging them to give away their knowledge and their Federation to transform itself into a police force over its own people. This agreement is one of the worst examples of how bioprospecting contracts can completely ransack communities knowledge and resources? But is it even possible to benefit the communities of origin? What does this mean - 10% of the proceeds, 50%, 70% or 90%? TNCs and research institutions are not prepared to pay more than one or two percent. Should any community or country demand 20 or 50 percent, researchers simply go to another community or country and get what they want at the price they want to pay. Contracts have come about, not because the TNCs or scientists are concerned about a fair deal for locals; rather because they guarantee them local cooperation, and which increases their efficiency. Even if a community manage to get agreement for a truly high share of benefits, there would be other costs involved. Patenting rights and confidentiality clauses are an essential part of any contract for TNCs, and this prohibits a community from sharing its knowledge with anyone else. According to the RAFI communique, researchers from the University of Colorado patented a variety of quinoa (an Andean plant) for a specific use in plant breeding. Let us assume that the researchers wanted to avoid bio-piracy or that the community had been well-organised and managed to get a contract for a 50% share of returns, ...and that biopiracy problem has been solved. But if other communities (also from other Andean countries) discover similar commercial use for patented characteristics, but if the (original quinoa) patent were honoured in their country, they would have to refrain from using it or pay royalties to the patent holder. The quagmire we end up with in relation to biopiracy is that the fundamental problem is not biopiracy itself, but appropriateness and monopolisation of life and knowledge. Biopiracy -- the extraction of exorbitant and monopolistic profits on the basis of, or at the expense of, local resources and knowledge -- is a problem and has to be fought. Large conglomerates will continue to make profits in this way as long as they have a market... The only way to fight these monopolies is by fighting mega-markets ... reclaim diversified production systems based on local resources and knowledge, when agriculture ceases to be an input-consuming machine ... when we stop eating the same thing in Manila, Pittsburg and Conception, and our health no longer depends on Monsanto or Ciba-Geigy. This will be the only way indigenous peoples and farmers will become primary beneficiaries of what their societies have created and can continue to create..... The history of Farmers' Rights is of a promising approach aborted halfway... the rise of Farmers' Rights was positive insofar as it was a hopeful sign that an international body would finally begin to recognise that farmers have created and presented the agricultural diversity from which we benefit. At the same time, there was very broad unanimity that many problems remain to be solved, in particular lack of real mechanisms for applying Farmers' Rights, and total lack of money for their implementation. NGOs put a good deal of energy into proposing financing solutions and mechanisms to ensure the benefits reached the farmers. Unfortunately, political realities never remain stationary. Latin American governments have proceeded to bring concept of Farmers' rights closer and closer to the concept of intellectual property... Little by little ... we have drifted into trying to convert Farmers' Rights into an alternative within the IPR debate in GATT.... This ideological move raises two major problems... Firstly, the alternative to intellectual property systems is "NO to intellectual property" in the same way the alternative to slavery is "NO to slavery". The alternative is not a sui generis system... Secondly, the problem with concept of intellectual property over knowledge and life forms is not whether it comes from the North or the South: but simply that the concept as such has never existed in indigenous or peasant systems.... The gradual deviation of the discussion towards alternatives or exceptions inside the existing systems has lost us precious time in determining what is really needed.. On the hopeful side, the NGO meeting in Leipzig in June 1996 produced a resolution on Farmers' Rights which reclaims, reinforces or improves on some earlier attempts... and the NGO-Farmers Organizations meeting in Buenos Aires just before the 1996 Biodiversity Convention meet advanced on the same path as well. The absence of concrete action proposals for upcoming international meetings may be considered a flaw in this analysis... but it would be an intended flaw since nothing will be achieved in the next months, and very little in coming years, if we do not refocus our strategy against privatization of life and knowledge. A first lesson is that complacency does not lead to results... A second is we have before us a long and painful process... A third is that a problem cannot be solved by using the same means and concepts that brought it about... What we have before us is a debate which requires profound innovation at the philosophical, ethical and cultural levels - with sacredness of life as its central axis. (Camilla Montecinos is the global coordinator of the Community Biodiversity Development and Conservation project and a leading participant in the Latin American agricultural biodiversity network. The article is excerpted from the December '96 issue of Seedling, the quarterly newsletter of the Genetic Resources Action International)