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Synthesis/Regeneration 25   (Summer 2001)

Tripping on FTAA Negotiations

Negotiations on Intellectual Property
Threaten Access to Pharmaceuticals and Seeds,
Undermine International Agreements and Human Rights

by Kristin Dawkins, Institute for Agriculture and Trade Policy

As negotiators from throughout the Western Hemisphere gathered in Quebec City to push for another free trade deal, representatives of civil society groups gathered their voices in protest. Many groups objected outright to the proposal of hemispheric trade liberalization. Others object to specific terms on the negotiating table, including the US proposal for more stringent intellectual property rights (IPRs) than currently exist.

Generally, most protesters would like to see a vision for cooperation in the region based on the needs of our peoples for a sustainable human development that is democratically participatory and transparent, equitable and respectful of the regenerative capacity of natural ecosystems.

The Free Trade Agreement of the Americas (FTAA), however, is premised on the further liberalization of commercial trade and is being negotiated in virtual secrecy. The US negotiating position for FTAA, in fact, is the only one that has been made public. In a modern-day revival of the Monroe Doctrine, in which the rest of the Americas are viewed as the United States' "back yard," the US seeks to drive the negotiating process.

"The FTAA negotiations are fundamentally illegitimate," says Alberto Villareal of REDES (Friends of the Earth Uruguay). "They intend to go further than even the North American Free Trade Agreement or the World Trade Organization in deregulating global corporations. In these secretive meetings, they hope to set new extremes for liberalized trade that will become precedents to reopen the stalled WTO (World Trade Organization) negotiations."

As expected, the US seeks to tighten the protections of the pharmaceutical and agrichemical companies in ways that will slow the development of and access to new varieties of seeds and affordable drugs. The US proposal would allow the transnational private sector to appropriate the resources and knowledge of peoples throughout the world, with severe consequences for food security and health, especially in rural communities and especially for women who make up the majority of the world's farmers and the world's poor.

The US proposal would allow the transnational private sector to appropriate the resources and knowledge of peoples throughout the world, with severe consequences for food security and health...

For instance, the US has argued that policies in Brazil and South Africa to provide free and affordable drugs to AIDS victims are illegal cases of patent-infringement under the World Trade Organization's current IPR rules (known as "TRIPs.") The US is advocating even more stringent "TRIPs-plus" standards in the FTAA.

Pharmaceutical companies dropped their patent-infringement case against South Africa. "This is a huge victory for the poor people of South Africa. Now they have a chance to survive this disease," says Severina Rivera, an attorney with Oxfam America, which is partnering with Medicines Sans Frontieres and the South African TRIPs Action Coalition on this case. "Our next campaign is to get the US to drop its case against Brazil's AIDs-drugs policies in the WTO."

"It is not appropriate to treat health care as a matter of commerce only," says Rob Weissman of the Consumer Project on Technology based in Washington DC. "Countries should have discretion to use compulsory licenses to achieve public interest goals. This is particularly important in complex fields of technology, where inventions are essential inputs for other inventions."

The FTAA position on IPRs falls within an intense international debate over patents. Last August, the United Nations Sub-Commission on the Promotion and Protection of Human Rights passed a resolution suggesting IPR conflict with the right of everyone to enjoy scientific progress, the right to health, the right to food and the right to self-determination. The WTO is now actively debating a proposal from African nations to prohibit patents on all forms of life. A few governments and many non-governmental organizations have suggested that perhaps intellectual property rights should be deleted from the WTO's body of law or, indeed, from any trade agreement including the FTAA.

Contrary to the principle that patents are necessary to promote innovation, most innovators are salaried employees of corporations or other major institutions...

"Plant patents are encouraging biopiracy and the spread of genetically engineered organisms," says Maria Isabel Manzur of the Fundacion Sociedades Sustentables in Chile. "First they come to our countries to take useful plants back to the laboratory, then they patent them and sell them back to us. We know that the only goal of commercial interests is to create an absolute dependency, obligating farmers to buy seeds every year. And the new genetically engineered varieties can be even more dangerous than toxic or nuclear wastes, because they can reproduce themselves and spread uncontrollably throughout an ecosystem."

"We are concerned that stronger, deeper patent protections for corporations will create even greater patent injustice," says Severina Rivera of Oxfam America, which has declared its opposition to the FTAA as a whole. "We believe that rules on intellectual property must strike a balance between rewarding private innovation and promoting broader social objectives. Where interests conflict, such rules must favor vital social objectives over the rights of patent holders."

Contrary to the principle that patents are necessary to promote innovation, most innovators are salaried employees of corporations or other major institutions; they are often constrained from sharing their research in order to ensure that eventual monopoly rights accrue to their institution and none other. "The genetic code is the sum of life's evolution on earth and should not become private property," says Laurel Hopwood of the Sierra Club.

Aware of popular opposition to patents on life, numerous governments are attempting to legislate protections for genetic resources that stop short of actual patents. The WTO TRIPs Agreement allows for IPR-based alternatives to actual patents under the "sui generis" clause. The Convention on Biological Diversity, signed by 180 countries, stipulates that intellectual property rights "must be supportive of and not counter to" the goals of conservation, sustainable use and the equitable sharing of any benefits derived from biodiversity. The Andean Community recently stipulated that when a patent is granted for inventions based on the biological or genetic heritage or knowledge of local communities, the patent "shall be subordinated" to the acquisition of that material in accordance with international, Andean Community and national law.

In keeping with these mandates, considerable effort has been directed to codifying the rights of Indigenous Peoples, Farmers' Rights, and other community rights at every level of government in ways that are nonetheless consistent with the powerful WTO. "In all of these debates," says Alberto Villareal, "it is important to realize there are a range of opinions—from those who support 'sui generis' regimes to those of us who object on grounds that they all interfere with the free exchange of germplasm, which is ultimately essential to the sustainability of biodiversity and food security."

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