Workshop Objectives - Andrew Mushita
An overview of international instruments of relevance to plant genetic resources - Susan Bragdon
An introduction to the international context of intellectual property laws and the WTO/TRIPS - Dan Leskien
Questions and summing up
After the opening session, the workshop moved to serious and detailed issues under the guidance of facilitator Dr Daniel Nina.
Mr Mushita explained to participants that the background and rationale for holding the workshop in Zimbabwe was related to progress made on IPR issues there through two national workshops.
The First Workshop
Objectives of this workshop were to:
· Review the state of existing IPR protection legislation and mechanisms in Zimbabwe.A number of interested groups participated and stated their positions, including seed companies, traditional medicinal practitioners, women's organizations, research organizations, farmers' organizations, ARIPO, the Ministries of Agriculture, Environment, and Industry and Commerce, NGOs and universities. The same participants were at the second workshop.· Assess alternatives to the current 1991 UPOV Convention on Plant Breeders Rights and suggest alternative but appropriate sui generis legislation that protects the knowledge, innovations and technologies of local communities, the private sector and the public sector.
· Assess the implications of international trade agreements and WTO/TRIPS with respect to privatization of life forms.
The Second Workshop
Objectives of the second workshop were to decide on:
· What should be patentable, reviewing processes and forms of legislation from both developed and developing countries that have established sui generis legislation.Three thematic papers focused on what is patentable in Zimbabwe, sui generis legislative options and access to genetic resources and trade. The workshop recommended the formulation of draft sui generis legislation that is in conformity with the WTO/TRIPS and CBD conventions.· Defining the protectable subject matter of the sui generis system, taking into account the interests of the different stakeholders and their socioeconomic and cultural practices.
· Defining the scope of protection within such a sui generis system so that it provides attributes, privileges and benefits to the owner or holder of such innovation, technology and traditional knowledge as is allowed under the TRIPS Agreement.
Regional Workshop Objectives
Mr Mushita then presented the objectives of the present regional workshop, stating that they are compatible with those of the earlier Zimbabwe national workshops. These were specifically outlined as:
1. Review the regional (SADC) countries' current state of research and breeding activities, biotechnology research capacity, trade in agricultural biological products, formal and informal seed sectors and national IPR relevant for agriculture and PGR.Mr Mushita added that there was a need to move quickly to provide options in terms of possible legislative instruments in the context of implementing the WTO/TRIPS, in view of the review expected in 2000. In that respect, he urged the workshop to consider practical proposals that could be shared, and to see whether common positions could be reached.2. Assess implications for the implementation of TRIPS, particularly Article 27.3(b), for the SADC region.
3. Review the draft sui generis legislative frameworks developed by IPGRI on PGR and that in Zimbabwe.
4. Get feedback on the possible usefulness of the draft legislation as a basis for further developments of similar national legislation.
5: Stimulate discussion among regional stakeholders in the implementing of Article 27.3(b) of TRIPS, WTO and related IPR regimes.
6. Identify common regional interests and possible synergies for implementation.
A question from the Lesotho delegate was raised to find out whether the workshop objectives were confined to common ground status or as far afield as to adopt a common position. The facilitator, after listening to the Mushita presentation, comments and questions raised by participants, summarized the objectives of the workshop as:
· Reviewing the status of countries in the region on WTO/TRIPS
· Identifying common aspects of draft IPR legislation
· Identifying individual/regional positions on TRIPS 27.3(b)
· Identifying areas of possible cooperation
· Collaboration where appropriate - even if it is informal
· Assessing capacity, as a basis for capacity-building
· Assessing and mobilizing resources available.
Susan did not present a paper as such, but spoke from notes with overhead slides, providing participants with a very broad and logical framework that facilitated comprehension of some of the legal, technical and historical linkages relevant to the workshop objectives.
She presented a three-phase analysis of the evolution of legal rights and entitlements over resources.
The first phase
The first stage in resources legislation and regulations in modern states was related to land or territory, including such economic activities as transportation, oil, gas and minerals, and specific economic and technological advances such as combustion engines, uses of fuel and minerals and large-scale industrial processes.
The second phase
This began in the last 5-10 years with the development and proliferation of environmental trade and development issues related to conventions, protocols and agreements. These include the Convention on Biological Diversity (CBD) which entered into force in 1993, the ongoing revision of the International Undertaking, and the World Trade Organization TRIPS Agreement which entered into force in 1995. Though these conventions and international bodies have different objectives, they overlap and even contradict each other. They constitute the framework within which plant-related IPR issues were discussed. These developments have had profound implications for the conservation, use and development of PGRFA and hence for the work of the CGIAR.
The third phase
This consists of international laws and institutions backing the conventions CBD, IU, WTO/TRIPS, UPOV and multilateral development agencies. These laws are now descending on nations to direct and influence national policies right down to genetic resources, including medicinal plants, forage pasture, crops and their wild relatives, forests, livestock and fisheries. Some of these laws and institutions are inappropriate for developing countries, and TRIPS is one of these.
Susan went further to identify articles most relevant to IPR from CBD, such as Article 15 on access to genetic resources, with its emphasis on benefit-sharing; the IU with its emphasis on farmers' rights; WTO/TRIPS with its emphasis on strong incentives and sui generis arrangements, and the UPOV Act of 1991 with its shift toward patent-like rights for breeders.
A volume entitled "Recent policy trends and developments related to the conservation, use and development of genetic resources" (Issues in Genetic Resources No. 7, June 1998) by Susan Bragdon and David R. Downes was distributed to participants. The volume provides a clear framework for understanding of the institutions involved as well as of key issues discussed at the workshop: farmers' rights, indigenous and local communities' benefit-sharing, access, patents and industry trends, and sui generis legislation.
Dan Leisken's presentation was designed to provide a clear framework for comprehending laws and for formulating sui generis systems acceptable under the TRIPS Agreement for developing countries in particular. This legal framework and foundation for establishing appropriate sui generis systems gave prominence to options, minimum requirements and key elements involved.
Three main options for a sui generis system
· Not to exclude plant varieties from patentabilityMinimum requirements of a sui generis system for the protection of plant varieties· To exclude plant varieties from patentability and to grant a special sui generis right for the protection of plant varieties instead
· Not to exclude plant varieties and to provide in addition for a sui generis right (or combination of patent and sui generis protection).
Dan listed five such requirements:
1. The sui generis system has to be an intellectual property right; that is, a legally enforceable right, either to exclude others from certain acts of commercial relevance in relation to the protected plant variety, or to obtain remuneration in respect of at least certain uses of the plant variety by third parties.Dan emphasized that the TRIPS Agreement only sets minimum standards, thus member states are free to provide for additional IPR or any other rights, such as farmers' rights or indigenous or community rights, which are not covered by the agreement as long as they do not conflict with any obligations the agreement poses with regard to IPRs. However, IPR systems may well not be the most effective mechanisms to protect such other rights.2. Since the TRIPS Agreement elaborates no further upon the term "plant variety" and does not specify any species or genera, member states might have to provide for the protection of plant varieties, whatever species or genus they belong to.
3. The sui generis system needs to comply with the basic principles of "national treatment." This means that member states have to treat the nationals of other members no less favourably than their own nationals with regard to the protection of plant varieties.
4. Any advantage, favour, privilege or immunity granted by a member to the nationals of any other country has to be accorded immediately and unconditionally to the nationals of all the other member states (most-favoured nation treatment).
5. Finally, in order to be effective, a sui generis system requires an enforcement procedure so as to permit action against any act of infringement of the sui generis right.
Elements of sui generis systems
Any sui generis system needs to address the following key points:
1. Protectable subject matter: Here the sui generis system has to define what is protectable. The main option available to countries is whether to restrict the term to bred or at least to cultivated varieties, or whether to extend it to all varieties, including wild ones.He also added that, generally, it is considered that there is a trade-off between these different key points - for example, rights with a broad scope of protection, such as patents, should have strict protection requirements, while weaker rights such as IPR may have less strict protection requirements.2. Protection requirements: The conditions under which sui generis protection is being granted must also be defined. The main options include the traditional protection requirements under patent legislation, such as novelty or inventiveness; those under PBR legislation, like distinctiveness, uniformity and stability (DUS); the possibility of modifying these requirements to facilitate protection of more heterogeneous varieties; and also the inclusion of additional requirements like Declaration of Origin (DO) and Value for Cultivation and Use (VCU).
3. Duration of right: Finally, the duration of the right conferred to must be clarified. While the UPOV Act of 1978 provides a minimum protection period of 15 years, the TRIPS Agreement does not specify the duration of rights under a sui generis system.
Participants followed up the presentations by Susan and Dan with questions and comments, including the following: "We have problems of interpreting protection, patents, plants, inventions." In reply, it was stated that some terms not defined may be interpreted in the way dictionaries define them, but often some remain vague.
One participant observed that "the UPOV Act of 1991 appears very patent-like - do you agree?" Answer: Yes. A sensitive question was raised about joining UPOV, that "we in developing countries seem to be hurried or pressured to join UPOV. Who is really expected to be the beneficiary?" Answer: Each country makes its own decision.
Summing up the session, the facilitator raised several questions for further consideration: What is appropriate to be regulated by patents or sui generis legislation? How does national access legislation fit or relate to the PVP system? How does a country ensure that meeting its international obligations also accounts for its national situation? What are your responsibilities? The facilitator reminded the participants that a copy of an IPGRI pre-publication was available and was devised to help decision-makers sort through some of these issues.
