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b i o p a t e n t s CONTROLLING LIFE How can you buy or sell the sky, the warmth of the land?....If we do not own the freshness of the air and the sparkle of the water, how can you buy them?....Man did not weave the web of life, he is merely a strand in it"   These words were spoken by the Native American, Chief Seattle, in the mid 1800s. Dispossessed by a legal system and a society that did not recognise their rights, Native Americans were cheated of the land that they did not believe should be property. Aboriginal Australians and indigenous peoples in colonised communities worldwide endured the same fate. As with the enclosures of the commons in Europe some centuries ago, the powerful profited at the expense of others. Today, the commons being appropriated and enclosed are the Earth’s biodiversity. Multinational Corporations, their armies of lawyers, and international organisations such as the World Trade Organisation, are driving these new enclosures. The tools being used to enclose the biological commons are biopatents, which are patents on living things. They are an extreme form of control over life, as they give total ownership of a patented organism for 20 years.   Did You Know An estimated 30,000 plant species have edible parts, but just 3, wheat, maize, and rice, supply more than half of the worlds food (Wilson, 1992) As these staple foods are genetically engineered and patented, the grip of Multinational Corporations (MNCs) on the world’s food supply is tightening. 80% of patents on GM foods are owned by only 13 MNCs (Revill, 1999). The top five agrochemical companies control almost the entire global genetically modified seed market (Christian Aid, 1999). The genetic makeup of the biopatented seed is the property of the corporation; the farmer cannot own it, merely lease it. The farmer’s practice of saving seed for next year’s crop is a thing of the past for patented crops. Biopatents threaten 1.4 billion farmers in the developing world who currently depend on saved seed for the following years crop (Rural Advancement Federation International - RAFI, 1999a).   "The objective of human development and environmental protection is being sacrificed on the altar of intellectual property protection" (Christian Aid, 1999)   BIOPATENTS WILL CAUSE Biopiracy Control Over Farmers Control Of The Food Chain Monocultures QUESTIONS ABOUT BIOPATENTS AND BIOTECHNOLOGY Why is This Happening Now? Won't Biopatented Crops Help Feed the World? Couldn't Farmers Just Choose not to Buy These Patented Crops? Would There Be Any Research Without The Financial Incentive Of Patents? Why Shouldn't A Corporation Make Money From Its Innovations?   THE WTO - INTERNATIONAL AGREEMENTS ON TRADE ARE OVER-RIDING ENVIRONMENTAL, HEALTH, AND ETHICAL CONSIDERATIONS WHAT IS THE ALTERNATIVE TO BIOPATENTING? Sui Generis Systems WHAT YOU CAN DO TO STOP BIOPATENTS BIBLIOGRAPHY     BIOPATENTS WILL CAUSE: Biopiracy "Biopiracy refers to theft, through use of biopatents, of the intrinsic worth of diversified species and the community rights and innovations of indigenous peoples" (United Nations Development Programme, 1998). The original purpose of the patent system was to reward inventiveness, but with the advent of biopatents it has been corrupted into a system that rewards opportunism and theft. Biopatents offer biotechnology MNCs the opportunity to profit vastly from the world's biodiversity, and local expert knowledge of plants. Without the thousands of years of selection and breeding of local varieties by farmers throughout the world, corporations would not have the vast array of valuable crop varieties to genetically engineer and claim as their own. MNCs are trawling these for useful properties, and patent plunder of anything of possible commercial use has become commonplace. The list of biopiracy is long. Biopatents have been given on: Turmeric, used as an anti-inflammatory and wound-healing agent by people in India for centuries (Popham, 1998). The Neem tree, known in Asia for its pesticidal, dermatological, anti-bacterial and other properties (McGrath, 1999). Endod, used by Ethiopian women to kill disease-spreading snails (Mooney, 1993). Biopiracy is a contravention of internationally recognised Farmers’ Rights. "Farmers’ Rights mean rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources, particularly those in the centres of origin/diversity" (Food and Agriculture Organisation of the United Nations - FAO, 1999). Control over farmers Biopatents give extreme control to MNCs over the farmers who grow biopatented seeds. If biopatents become commonplace, all farmers, including Irish farmers, may find themselves tied to the one company from sowing to harvest. Already hundreds of farmers in the US have faced legal action from Monsanto for replanting seed from their harvest (Weiss, 1999). Even those who choose not to plant such seeds may still be caught in the gene trap, should stray seeds from a neighbouring crop grow in their fields. The ultimate form of control over farmers are crops that produce sterile seeds, which will not germinate, or crops which will not grow and develop properly without the application of chemicals sold by the same MNC which produced the seeds (Crouch, 1998). With this technology, MNCs could produce sterile varieties of all crop plants. Patents are pending both in the US and Europe on these genetic technologies (RAFI, 1999b).   Control of the food chain "What you are seeing is not just the consolidation of seed companies, it is really the consolidation of the entire food chain." (Robert Fraley, Monsanto, 1997). Over 80% of patents covering genetically modified food are owned by a mere 13 commercial organisations (Revill, 1999). Such consolidation is intensifying, involving acquisition of the means of genetic engineering and production of seeds, acquisition of distribution channels, and of agrochemicals required for cultivation. Furthermore, control over agricultural research, production, distribution and practice is shifting from public institutions to private corporations, which are profit driven and are not motivated by humanitarian concerns. If the corporate race to own the intellectual property rights to the worlds important crops is not halted, cash starved public research institutions may find it impossible to continue research into improving developing country crops without paying crippling licensing fees to already wealthy corporations.    A disturbing trend in recent years has been the granting of remarkably broad patents to large corporations with an aggressive strategy towards patent protection for crop species. In the early 1990s, patents were granted on cotton in the US, and soya in the EU, to a subsidiary of WR Grace, for any genetically engineered varieties of cotton and soya (RAFI, 1993, and 1994). "The granting of patents covering all genetically engineered varieties of a species, irrespective of the genes concerned or how they were genetically transferred, puts in the hands of a single inventor the possibility to control what we grow on our farms and in our gardens. At a stroke of a pen the research of countless farmers and scientists has potentially been negated in a single, legal act of economic high jack", (Dr. Geoffrey Hawtin, Director General of the International Plant Genetic Resource Institute, Italy, in RAFI, 1994).     "Imagine…..a wonder food. It can solve the perennial problem of hunger…it will grow in poor soil …it is astonishingly resistant to disease. Then, completely out of the blue, the wonder crop begins to die… hit by a mysterious fungus… completely dependent on the wonder food…people starve… horrors walk the earth. This may sound like an apocalyptic scare…..but it is of course, history. Our history." (Fintan O’Toole, 1999). Monocultures Biopatenting will lead to vast monocultures as MNCs sell their patented varieties, and farmers, with little choice in variety of crops, plant identical varieties on farm after farm. Here in Ireland we have had our own experience of the consequences of heavy reliance on one crop, the lumper potato. We in Ireland at least should have learned the bitter lesson of monoculture.     Questions About Biopatents and Biotechnology Why is This Happening Now? In 1980, in a landmark case, a patent was granted by the US Supreme Court for a genetically engineered bacterium that could 'eat' crude oil. This was the first patent for living material that had ever been granted, and it proved to be a turning point for the biotechnology industry. The Court granted the patent on the basis that the genetically engineered bacteria could be compared to chemical compounds. At this stage plants and animals, "higher life forms" still could not be patented (Rudolph, 1996). However, this case provided the opportunity for MNCs to seek patent protection for other life forms, and so began the race for the ownership of life.   Won't Biopatented Crops Help Feed the World? It is poverty and an inability to buy available food that is the cause of chronic hunger. Expensive crops will not solve this basic inequity. Technologies that force farmers to spend their very limited incomes on seed, fertilisers and pesticides, year after year, rather than on education for their children or investment into improving farming, will not solve these basic inequities. They will serve to keep farmers poor and dependent. Feeding the world will not be achieved by producing more food but by eliminating social and environmental inequities. The so-called Green Revolution of the 1970s produced more food but did not feed more people. In the period from 1970 to 1990 food production increased faster than the rate of population growth, but despite this the number of people going hungry increased. More than 800 million people still go hungry daily, even though, if equally shared, there would be enough food to provide everyone, every day, with two and a half pounds of grain, beans, and nuts; about a pound of fruit and vegetables, and nearly a pound of meat, milk and eggs (Christian Aid, 1999).   Couldn't Farmers Just Choose not to Buy These Patented Crops? Rapid consolidation of the seed industry is underway, with biotechnology companies buying up seed companies (RAFI, 1998). There is no guarantee that non-patented or non-genetically engineered seeds will be made available once independent seed companies have been engulfed by MNCs. Even now some farmers are locked into an entire package with a corporation, from germination to harvest, for seeds, fertilisers and pesticides. Many buy through a co-operative, which buys a few varieties in bulk and offers little choice. Between conditions of credit, contracts to purchase all inputs from the one corporation, and the narrow range of varieties on offer, farmers are restricted in the seeds and inputs they can buy. Even farmers who sow non-biopatented seeds may not be secure, as the experience of Percy Schmeiser, a 68 year old Canadian farmer proves. He is being sued by Monsanto, who claim he replanted the company’s biopatented canola seed (Weiss, 1999). He vehemently denies this, saying he is surrounded by canola growers, and that spraying with Round-up failed to remove the stray plants, as these have been engineered to be Round-up-resistant (White and Desnomie, 1998). Thus with the advent of biopatented crops, even those who do not wish to grow them may find them unavoidable.   Would there be any research without the financial incentive of patents? Many countries have chosen not to allow product patents until quite late in their economic development. Japan, Switzerland, Sweden, and Italy introduced patent protection for drugs as late as 1976-78 (Nogues, 1988). There is little systematic evidence linking investment inflows, or increased research and development, with strong patent protection (World Bank 1998). Far from encouraging research, patents could actually narrow options for research, as a corporation can prevent others from continuing research on patented crop species for periods of up to twenty years. There are several other policy options a government can adopt which stimulate innovation and meet the public interest, such as favourable tax policies and public research spending.   Why shouldn't a corporation make money from its innovations? Traditionally a patent is a legalised monopoly representing a bargain between the innovator/patent holder and society. However, the patent system evolved at a time when most companies were small, or had mainly national reach, so the monopoly was naturally limited. At the national level a Government could intervene to ensure that vital medicines were not priced beyond reach. Patents on crops or animals were prohibited (Holyoak and Torremans, 1995; Bent et al, 1987). Today, most of the patents granted are to MNCs with global reach and considerable market control and thus the extent of monopoly is far greater than in the past. There is no World Government to ensure those social goals such as availability of cheap food and medicines are met. The bargain, traditionally represented by a patent, has become unbalanced in favour of powerful corporations. Also, most innovations capitalise on earlier research, usually conducted and paid for by the public sector. In the case of crops, much of the work of selection and breeding has been done by thousands of generations of farmers world-wide, and by international agricultural research centres such as Consultative Group on International Agricultural Research.   The WTO - International Agreements On Trade Are Over-Riding Environmental, Health, And Ethical Considerations Cheap food and medicines are vital in a developing economy, so that the poorest can eat, and can afford medical treatment. Therefore Governments often choose to prohibit patents on crops, animals or drugs, and keep prices within reach of their citizens. The World Trade Organisation (WTO, 1995), created in 1995, and growing in power, is eroding the sovereign rights of Governments to make these choices. The WTO has extremely powerful enforcement and sanction powers. Already, these rules have been invoked in the long-standing EU dispute with the US over its hormone treated beef, which is banned by the EU. Using WTO rules, the US is attempting to force genetically modified crops on the EU. Large corporate interests, and others in favour of biopatents, are intent on globalising patent control over living things. Economically powerful countries such as the US are determined to bring global management of patents under the control of the WTO. To this end the WTO TRIPs Agreement (WTO, Annex 1C - Agreement on Trade Related Aspects Of Intellectual Property Rights) imposes far tougher patent laws than many developing countries would currently operate. In particular, Article 27.3(b) of the TRIPs agreement requires WTO member states to provide for legal monopolies on crop species, the basis of food security, which will lead to privatisation of agricultural genetic resources. Using WTO rules, developing countries may be forced to abandon the policies banning patents on crops that have helped keep food affordable. The WTO, of which Ireland is a member, is an undemocratic organisation dominated by a few powerful countries. Some countries can barely afford to send a single representative to negotiations, while others can afford to send extensive delegations. In the last WTO negotiations the difference in the capacity to participate was so great that the resulting agreements were completely skewed in favour of the more powerful countries and were heavily influenced by the corporate sector. In such circumstances, agreements such as TRIPs cannot represent a fair balance of interests (Tansey, 1999).   What is the Alternative to Biopatenting? – Sui generis systems Many Governments are now embarking on an attempt to develop systems that will address the unique needs special to food, medicines, and the recognition of traditional knowledge. For example, the Philippines Government have drafted sui generis legislation, which provides for special treatment of traditional property regimes when these involve collective rights (Tansey, 1999). Similarly, an African Regional initiative on sui generis systems set up a task force in January 1999 to draft an African Model Sui Generis System for biological resources, indigenous knowledge and innovations, which would take into account the lifestyles of indigenous peoples (Zulu et al, 1999). Governments need time to develop such alternative systems, rather than have inappropriate patent systems forced on them.   The Way Forward? Ireland's Role With our history of famine, when millions depended solely on a few varieties of the potato, Ireland knows the perils of monoculture. We have an onus to bring our lessons to international bodies such as the WTO, through our elected representatives, who in November will be commencing negotiations for the millennium round. Also, under the Convention on Biological Diversity, a legally binding agreement UN agreement which Ireland has signed, we have undertaken to ensure that biological resources are used sustainably, that benefits from the use of such resources are justly shared, and as a member of the FAO have an obligation to safeguard Farmers’ Rights. Clearly, biopatents are not appropriate for living organisms. The production of food must not be subject to monopolistic control by a few profit driven corporations. An undemocratic organisation such as the WTO must not have the power to overturn the decisions taken by democratically elected governments prohibiting biopatents in order to safeguard the health of their citizens and environment. Biopiracy is an injustice which must be ended.   VOICE is calling for NO PATENTS ON LIFE, and calls on the Irish Government to support a five year suspension of implementation of Article 27.3(b), to allow for: a substantial review of the substance of Article 27.3(b), time for countries to develop sui generis systems, together with the option to exclude animals, plants, and micro-organisms from patentability.   What You Can Do To Stop Biopatents Sign and send the VOICE postcard to the Minister of State, Department of Enterprise, Trade and Employment, who will be overseeing Ireland's position at the TRIPs negotiations. Write expressing your concern about biopatents to your local TD. By avoiding GM food you will be also avoiding food patented by an MNC. Join VOICE and support our work. If you are a gardener start saving your seeds, and swap with other gardeners. Make others aware of the massive effects Biopatenting will have on our choice of foods and farming systems.     Bibliography Bent, S, Schwaab, RL, Conlin, DG and Jeffery, DG, 1987. Intellectual Property Rights in Biotechnology Worldwide, New York, US, Stockton Press Christian Aid, 1999. Selling Suicide: Farming, False Promises and Genetic Engineering in Developing Countries, London, PO Box 100, SE1 7RT Crouch, ML, 1998. How Terminator Terminates: an Explanation for the Non-Scientist of a Remarkable Patent for Killing Second Generation Seeds of Crop Plants, an Occasional Paper of The Edmonds Institute, 20319-92nd Ave. West, Washington, USA FAO, 1999. The Global System and the Commission on Genetic Resources for Food and Agriculture Fraley, R, 1997. Economic and Political Weekly, October 11 Holyoak, J., and Torremans, P. 1995. Intellectual Property Law, London, Butterworths McGrath, R, 1999. Biotechnology and Intellectual Property Rights; Boon or Bane for Developing Countries, Thesis for Master of Development Studies, UCD, Dublin, Ireland Mooney, PR, 1993. "Profiteering from the Wisdom of the South", Choices, 2(4), United Nations Development Programme Nogues, JJ, 1993. "Social Costs and Benefits of Introducing Patent Protection for Pharmaceutical Drugs in Developing Countries", The Developing Economies, XXX-1, March O'Toole, F, 1999. "Scientific Progress is Blighted by GM Crops", Irish Times, 20 August, Dublin, Ireland Popham, P. 1998. "Bio-pirates Raid World’s Genetic Bank", The Independent, UK, 28 November, RAFI, 1993. "Control of Cotton: the patenting of transgenic cotton," RAFI Communiqué, July/August RAFI, 1994. "RAFI challenges WR Grace, (Agracetus) 'species patent' on soybeans at European Patent Office," RAFI Occasional Paper Series, 1(5) Dec RAFI, 1998. "Seed Industry Consolidation: Who Owns Whom?", RAFI Communiqué, July/August, http://www.rafi.org/communique/fltxt/19983.html RAFI, 1999a. "Genetic Sterilisation is "Holy Grail" for Ag Biotechnology Firms", RAFI News, 27 January, http://www.rafi.org/pr/release26.html RAFI, 1999b. "Traitor Technology: The Terminator's Wider Implications", Jan/Feb, http://www.rafi.org Revill, J, 1999. "13 Companies Own 80% of GM Patents", News and City, Associated Newspapers Ltd. 23 February Rudolph, JR, 1996. "Patentable Invention in Biotechnology", Biotechnological Advances, 14, 17-34 Tansey, G, 1999. Trade, Intellectual Property, Food and Biodiversity. Key issues and options for the 1999 review of Article 27.3(b) of the TRIPs agreement. Quaker Peace and Service. London United Nations Development Programme, 1998. Human Development Report, UN Publications, New York Weiss, R. 1999. "Farmers Accused of Piracy in a Landmark Gene Case", International Herald Tribune, February 4, Paris White, E, Desnomie, R. 1998. "Monsanto Sues Canadian Farmer Over GE Crops. Sask. Farmer Says Charge Bees and Wind, Not Him". Econet Headlines, http://www.econet.apc.org:80/igc/en/hl/9811233785/hl9.html Wilson, EO. 1992. The Diversity of Life, Penguin Books, London World Bank, 1998. "Knowledge for Development": World Development Report 1998/99, http://www.worldbank.org WTO World Trade Organisation, (1995) Trading Into the Future, Geneva WTO, Annex 1C, Agreement on Trade-Related Aspects of Intellectual Property Rights, http://www.wto.org/intellec/2-ipagr.htm Zulu, E.D., Makano, R.M., and Banda, A., (1999). "National Experiences and Plans to implement a Sui Generis System of Protection in Zambia", presented at The UPOV-WIPO-WTO Joint Regional Workshop on "Protection of Plant Varieties under Article 27.3(b) of the TRIPs Agreement, Nairobi, 6-7 May 1999