INTELLECTUAL PROPERTY RIGHTS (IPRs)
By Dr Vandana Shiva
Today the economic survival of third world communities is under severe threat from the new monopolistic protections being carved out for transnational corporations (TNCs), through IPR regimes. In fact, in the free trade and trade liberalisation regime, which is supposed to end protectionism, IPRs are the main instrument of this new form of protectionism.
The new protectionism for TNCs through IPRs is becoming the major means of dismantling both local and national economies as well as national sovereignty; through piracy of both material as well as the intellectual and cultural resources.
IPRs: The Privatisation of Biodiversity and Biodiversity Related Knowledge
The thrust of the western IPR regimes in the area of biodiversity is diametrically opposed to indigenous knowledge systems. Knowledge is considered to be the product of individual creativity, based on western scientific thought and systems of knowledge creation and gathering whereby the resource base is merely viewed as 'raw material'. In this paradigm IPRs represent the property rights to the products of mind, thereby resulting in knowledge and creativity being so narrowly defined that the creativity of nature and non-western knowledge systems have been ignored.
The two categories of IPRs that have a direct impact on the erosion of prior rights of communities, are patents and plant breeders' rights. Plant breeders' rights negate the contribution of Third World farmers as breeders and hence undermine farmers' rights. Patents allow the usurpation of indigenous knowledge as a western invention through minor tinkering or trivial translation.
The UPOV (Union for the Protection of New Varieties of Plant) Convention represents a western devised form of plant variety protection, other than patenting. This form of intellectual property rights protection, referred to as a Plant Breeders' Right (PBR), is being promoted as the most favourable form of adoption under the sui generis option for developing nations by the developed nations. But according to the 1991 Revision of the UPOV Convention, newly introduced clauses severely restrict farmers' rights by removing all rights for them to save seed for sowing for the following year, as well as removing researchers' rights to save the seed of new protected varieties. The protected variety may still be used as an initial source of variation for the creation of new varieties but such new varieties cannot be marketed or sold without the plant breeders' rights' holder allowing it.
There now exists very little difference in restrictions set by Plant Breeders' Rights and that set by patents for farmers. UPOV is a monopoly system that embodies the philosophy of the industrialised north who want to protect the interests of corporate biotechnology and powerful seed companies. If India does not evolve its own sui generis system centred on community intellectual rights of farmers and adopts the UPOV model, a rights regime will have been created that protects the rights of the seed industry but offers no protection to the rights of farmers. This in turn will allow a free flow of agricultural biodiversity based on centuries of breeding from the fields of Indian farmers, while the farmers have to pay royalties to the seed industry for the varieties derived from farmers' varieties.
A frequent comment heard in scientific and lay circles, is that "we should patent all our traditional knowledge and biodiversity." However, neither traditional knowledge nor biodiversity can be patented by indigenous practitioners because for indigenous societies, it is not 'novel', it is ancient. The reason that the collective and cumulative innovation of millions of people of thousands of years can be 'pirated' and claimed as an 'innovation' of western trained scientists or corporations, is because of two reasons. The first reason is the colonial hangover of the idea that science is unique to the west, and indigenous knowledge systems cannot be treated as scientific.
The second reason is that countries like the US, where most pirated indigenous innovations are filed for patenting, do not recognise the existing knowledge of other countries is prior art. Thus, while patent regimes offer no protection to indigenous communities for their common innovation and their common resources, they allow the appropriation of their biodiversity and knowledge by scientists and commercial interests of other cultures, including members of the 'modern' scientific culture in their own societies.
IPRs: An Instrument of Piracy
IPR regimes in the context of 'free trade' and 'trade liberalisation' thus become instruments of piracy at three levels:
Resource piracy in which the biological and natural resources of communities and the country are freely taken, without recognition or permission, and are used to build up global economies. For example, the transfer of basmati varieties of rice from India to build up the rice economy of the US; the free flow of neem seeds from the farms, fields and commons to corporations like W. R. Grace for export.
Intellectual and cultural piracy in which the cultural and intellectual heritage of communities and the country is freely taken without recognition or permission and is used for claiming IPRs such as patents, and trademarks even though the primary innovation and creativity has not taken place through corporate investment. For instance, the use by US corporations of the trade name 'basmati' for their aromatic rice, or Pepsi's use of the trade name 'Bikaneri Bhujia'.
Economic piracy in which the domestic and international markets are usurped through the use of trade names and IPRs, thereby destroying local economies and national economies where the original innovation took place and hence wiping out the livelihoods and economic surivival of millions. For example. US rice traders usurping European markets; Grace usurping the US market from small scale Indian producers of neem based biopesticides.
Common Property Rights: An Alternative to IPRs
IPRs systems evolved in industrialised countries reflected in the TRIPs agreement only recognise western knowledge systems as scientific and formal and non-western knowledge systems are regarded as unscientific and informal. The creation of monopoly rights to biodiversity utilisation through its claim to the creation of 'novelty' can have serious implications for erosion of national and community rights to biodiversity and devaluation of India's indigenous knowledge. TRIPs gives countries the option of formulating its own sui generis regime for plants as an alternative to patent protection. Collective rights can be a strong candidate for such sui generis systems for agricutural biodiversity and medicinal plant biodiversity. Therefore, it is crucial that community held and utilised biodiversity knowledge systems are accorded legal recognition as the 'common property' owned by the communities concerned. Building such an alternative is essential to prevent biodiversity and knowledge monopolisation by an unbalanced mechanistic and non-innovative implementation of TRIPs or in response to Special 301 threats from the US.
Recommended Literature on Intellectual Property Rights:
This article was orginally published at the website of Dr Shiva's Research Foundation for Science, Technology and Ecology, URL: http://www.indiaserver.com/betas/vshiva/
Published here with the permission of the author