May 14, 1998
PARLIAMENT CLEARS 'BIOPIRACY' DIRECTIVE
Brussels, May 12 (IPS/Niccolo Sarno) -- The European Parliament has controversially endorsed a directive that makes it legally possible to patent life forms and their genetic material under European law.
The approval, given Thursday, could clear the way for European multinationals to patent varieties of indigenous plants and seeds for private profit -- but endangering livelihoods in developing countries, especially those of its farmers.
"The European parliament clearly placed commercial interests over ethical values," said Magda Aelvoet, co-president of the parliament's Green group.
"'Biopiracy', the unauthorised patenting of genetic resources taken from developing countries by mighty Western multinationals and institutions will not be stopped," she said.
"Europe effectively has said it will not make firm commitments to help developing countries protect their own resources," said Steve Emmott, who covers genetic engineering issues for the Green group.
The parliaments of the 15 member states of the European Union must now be called on to similarly approve the directive, drafted by the EU executive Commission to harmonise the bloc's different national rules on 'life patenting'. It will also bring the EU in line with the U.S. and Japan, who already have such legal rights.
Under the directive, bioengineers could carry out minor genetic alterations to plants used in traditional medicine in the South, claim it as a original 'invention', and patent the plant itself for profitable exploitation in the North.
The NGO Genetic Resources Action International (GRAIN) says that farmers now freely using seeds could be expected to seek permission and pay royalties in the future if the genetic makeup of the seed they use is later patented.
"Many examples already exist where companies take local varieties from these farmers and patent them and their genetic contents without innovation. The directive negates the rights of the 'original breeders' from the South," claims GRAIN.
The definition of invention has been further stretched to cover the patenting of 'discoveries'. Representatives of the country from which the source plant originally came from will have to challenge these claims in courts of law. Such 'patents on life' are already legal in the United States and in Japan, where the gene or sequence of genes patented become the 'intellectual property' of the researcher, institution or a private company which 'discovered' it.
An European parliamentarian said the efforts of the biotech companies to see EU law brought up to U.S. and Japanese standards was "the largest industrial lobbying campaign in the Parliament's history".
The European Federation of Pharmaceutical Industries and Associations (EFPIA), which represents large pharmaceutical companies such as Rhone-Poulenc, Pfizer and Glaxo Wellcome, says that their members suffer "systematic disadvantage" as a result of the U.S. and Japanese edge.
EFPIA also says the directive is balanced and does not conflict with the 1992 Rio Biodiversity Convention, signed by all the EU member states. The convention explicitly requires signatories to ensure that patent systems protect the historic rights of use of traditional farmers.
But the Green group sees it in a different way: "We believe the directive is in conflict with the (Rio) Convention on Biological Diversity and existing patent treaties, and we are considering which legal action can be taken," Emmott told IPS.
A group of patient self-support groups and charities, united under the umbrella of the European Campaign on Biotechnology Patents (ECOBP), have publicly expressed concern or opposition in one way or another about the intention to make human genes patentable.
ECOBP says that an amendment which had been deleted from the directive by the EU's ruling Council of Ministers before Thursday's vote could have minimised the negative effects of the directive.
Amendment 76, which contained 'anti-biopiracy provisions', called for evidence of compliance with legal access and export provisions where animals and plants are used, giving some practical effect to the legal obligations of the Convention on Biological Diversity.
But the EU's executive Commission has been pressing on with the directive without the amendment, in order to harmonise policy with Japan and the U.S. and secure the bloc's own biotech industry. The Commission also says that the existing laws have to be harmonised at the pan-European level to guarantee a single market in biotechnological products.
If the biotechnology industry's turnover growth follows present trends, it will hit 160 billion dollars in the year 2005, creating more a million jobs, European commissioner for agriculture Franz Fischler said recently.
"After 10 years of so-called debate, you would expect us to have produced a near-perfect piece of legislation," said Aelvoet. "The fact that so many sectors of civil society are still angrily protesting about this directive is evidence of just how far the system has failed." European NGOs like the London-based Gaia Foundation and the Dutch Coalition Against Patents on Life -- feel that the new European directive on life patents will spell disaster to developing countries, particularly their farmers.
The directive was cleared by the European Parliament in Strasbourg Thursday. It will put the right to patent life forms into European law for the first time, and bring Europe in line with the extensive freedom to patent for commercial exploitation already allowed in the United States and Japan.
For developing countries, this may give a free hand to Western multinationals to come and patent a variety of indigenous plants and seeds.
Meanwhile public health issues are raised in the Northern countries, as the granting of patents on life forms have encouraged many manufacturers to sell genetically-modified foodstuffs that some allege are not wholly proven to be without medical risk.
"Politicians and officials in Europe seem far more concerned about losing out to American and Japanese agri-businesses than the long term effect of such patents on developing countries," Dr Biplab Dasgupta, a senior member of the Indian Parliament and an economist, told IPS in London last week.
India -- one of 12 'mega-diversity' countries that are home to most of the world's biological resources -- has seen some of that diversity targeted by a large number of so-called 'life patents' brought out by multinational companies selling agricultural and pharmaceutical products.
The move, which began with India joining the World Trade Organisation a few years ago, led to the controversial issuing of a patent on a Basmati rice strain, granted by the U.S. Patent Office to an American rice company, Rice Tec, in September 1997.
The long-grain aromatic rice is native to the Indian sub- continent and is a major item of export, fetching 313 million dollars in hard currency for India alone last year.
However, Indian lawyers and scientists are said to be drawing up a challenge to the patent after successfully contesting a US pharmaceutical patent last year on turmeric -- a tropical Asian plant whose aromatic root Is used both as an antiseptic and a condiment.
According to Indira Jaisingh, an Indian Supreme Court lawyer, in London to lobby against the directive last week, the European directive will affect developing countries ability to preserve their biological wealth and heritage. "What is at stake is our very right to life and livelihood," Jaisingh told IPS here.
The proposed patents directive has a long and troubled history.
First introduced in 1989 and thrown out in 1995, the first reading of the present version ended up with 35 amendments attached to it in July 1997.
However, the European Commission and the European Council of Economic Ministers accepted all the amendments bar just one -- the one against bio-piracy or life patents, according to campaigners. It was approved by the European Parliament on Thursday, in Strasbourg, France. It now goes to the 15 EU member states' respective parliaments for final clearance. "The European Life Patent Directive is a deliberate and shameless attempt to disregard the concerns of the European public and it contravenes the Convention on Biological Diversity (CBD)," says the Gaia Foundation. "The directive as it is now, wholly aligns with the US position -- basically allowing patents on anything that lives," it adds.
The way the directive contravenes the CBD, is through its definition of the term 'invention', which has been stretched to allow the patenting of 'discovery'.
Such a move could mean, for instance, that a multinational corporation which 'discovers' a strain of Basmati rice, which may have been grown for centuries by farmers in South Asia, could then pretend to have 'invented' an 'improved version' exactly as Rice Tec has done in the Indian case, campaigners say.
Based on the so-called 'invention'-- a process of refining and improving that local farmers have been doing each season for each season for centuries -- the company can then seek a patent, which the developing source-country must then challenge.
"Basmati is a clear demonstration of how corporations are extending their private rights into the collective domain, appropriating both indigenous traditional knowledge and genetic materials" Gaia says.
The directive seeks to extend the powers of the WTO's Trade Related Intellectual Property Rights (TRIPS) Agreement which presently allows patents on plants and animals to be excluded.
NGOs fear that now Europe has aligned its bio-patent law with the United States, this position could change in the year 2000, when TRIPS is due to be reviewed. Then, they fear, the world will be forced by industrial countries to allow corporations to take out patents on the crops and medicines of the remaining bio- diversity rich lands of Africa, Asia and Latin America.
Aligning European law with TRIPS also contravenes the CBD, the NGOs claim, and this according to many campaigners is where the real battle lies.
The fundamental differences between TRIPS and the CBD, include the fact that while the CBD recognises states' sovereignty over their biological resources, TRIPS tries to introduce private individual rights over the same. "All members states of the CBD and TRIPS agreements face an inescapable problem. Both treaties are legally binding for signatories, but their obligations pull countries in completely different directions," said a spokesperson for the London-based Genet ic Resources Action International (GRAIN).
"This will create a very dangerous situation in global terms," says Rod Harpinson of the UK Genetics Forum. "The biodiversity of poor countries has always been under a massive threat by corporations and institutions such as gene banks from rich Northern countries. This directive will legalise that theft."