Or, what is the WTO doing with respect to intellectual property law (and especially 27.3(b))?
There’s an old story told about the wise Japanese judge, Ooka Tadasuke. An innkeeper dragged an impoverished student in front of the judge and demanded payment. The innkeeper had caught the student eating his poor meal of plain rice and revelling in the wonderful smell of frying fish that came from the restaurant. The innkeeper claimed that the smell was his property and he deserved to be paid for it.
The judge thought for a while and asked the student Do you have five man? The student pulled the coins from his pocket. Toss them into your other hand. The coins made a jingling sound as they went from hand to hand. It is my judgement that the price of a smell is the sound of coins.
It’s about property. There are different kinds of property. Nearly every society has recognized personal property—the things you use every day. Your clothes. Your hammer. Your cooking pan. Many societies have also recognized real property—the ownership of land.
Beginning in the 18th century with the Statute of Anne in 1709, English law protected the legal rights of authors in the form of copyright. The power to grant patents and copyrights are among the enumerated powers of Congress (remember those?) and the 1790 Copyright Act granted a copyright for 14 years, extendable by another 14 if the author were still living. Congress has repeatedly extended the term of copyright until it is now effectively unlimited in term.
In the United States in order for an invention to be patented, it must meet the criteria of novelty, utility, and non-obviousness. The 1930 U. S. Plant Patent Act allowed certain plant varieties to be patented for the first time. Naturally occurring species were not allowed to be patented. Under the 1980 Diamond v. Chakrabarty decision a patent was granted for the first time to a novel genetically engineered microorganism.
Ideas of property are not universal. Some societies recognize no property whatsoever. In monarchies it was commonplace for all real property to be the property of the crown. Frequently in totalitarian systems all real property is the property of the state.
Under the Ottoman, for example, in a system of law which extended from Asia to the west coast of Africa five types of land were recognized: government land, land for religious use, arable land, waste land, and private property. All but the last were effectively the property of the state and nearly all private property was owned by Christians. This is, by the way, one of the many complications of the Palestinian-Israeli conflict. When a Palestinian says that farm land has belonged to his family for generations, he is wrong—the state owned the property and his family were tenants. Consequently, he means something different by ownership.
Outside of North America and Europe traditions of intellectual property, bodies of law that embody the notion, and the systematic enforcement of those laws are a rarity.
Narrowing the focus of the discussion to the intellectual property law of biotechnology, there are several competing systems worldwide. The United States allows novel plants and microorganisms to be patented but not animals. The European Directive on the Protection of Biological Inventions allows patents on plants and animals where the invention may be applied to more than one variety.
Additionally, a number of countries are members of the International Union for the Protection of New Varieties of Plants (UPOV). The UPOV grants breeders rights to certain plant varieties but also recognizes a farmers’ privilege which allows member states the option to allow farmers to save seed for their own use. Under the 1991 amendment to the UPOV agreement exclusive rights are provided to the breeder which cover all harvested material and which allow the collection of royalties from the sale of seeds. How this can be reconciled with the farmers’ privilege and how it pertains to grain crops like wheat, corn, rice, sorghum, etc. is not entirely clear to me.
One of the achievements of the Uruguay Round of trade negotiations which concluded in 1994 was the accord known as the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In principle, the agreement established the nature of protections of intellectual property offered, minimum terms of such protections, enforcement mechanisms, and transitional measures.
In practice, things are not quite so rosy. Once again narrowing the focus to the intellectual property law of biotechnology, Article 27.3(b) of the agreement micro-organisms, non-biological, and microbiological processes must be eligible for patents. Governments may elect to exclude plants, animals, and essentially biological processes from patent protection but plant varieties must either have patent protection or some sui generis system created especially for the purpose (or both). There are also a number of issues outstanding:
A group represented by Brazil and India and including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand and some others want to amend the TRIPS Agreement so that patent applicants are required to disclose the country of origin of the biological resources and traditional knowledge used in the inventions; evidence that they received �prior informed consent� (a term used in the Biological Diversity Convention), and evidence of �fair and equitable� benefit sharing. They also look at weaknesses of alternative methods such as contracts and databases.
Switzerland has proposed an amendment to WIPO�s Patent Cooperation Treaty (and, by reference, WIPO�s Patent Law Treaty) so that domestic laws may ask inventors to disclose the source of genetic resources and traditional knowledge when they apply for patents. Failure to meet the requirement could hold up a patent being granted or, when done with fraudulent intent, could entail a granted patent being invalidated.
The EU�s position includes a proposal to examine a requirement that patent applicants disclose the source or origin of genetic material as a subject in itself, with legal consequences of not meeting this requirement lying outside the scope of patent law.
The United States has argued that the Convention on Biological Diversity�s objectives on access to genetic resources, and on benefit sharing, could best be achieved through national legislation and contractual arrangements based on the legislation, which could include commitments on disclosure.
The African Group wants the TRIPS Agreement to prohibit patenting of all life forms (plants, animals, micro-organisms) and wants �sui generis� protection for plant varieties to preserve farmers rights to use and share harvested seeds. It proposes requirements on disclosure � including amending the TRIPS Agreement � similar to those in the developing country group proposal. The African Group�s paper also looks at possible areas of agreement and areas of divergence and proposes a decision in the TRIPS Council to confirm these. The group also proposes a draft decision on traditional knowledge designed to prevent �misappropriation�.
The Africa Group’s position would appear to be irreconcilable with those of the United States and Europe.
Some little time ago, Pundita
deputized me to explicate what the WTO is up to with respect to intellectual property law and this post is the fruit of that investigation. In summary, so far as the WTO is concerned, the work has already been done with the TRIPS agreement. All that is needed at this point is for the member nations to bring their laws within the framework established under the TRIPS—the agreement establishes the nature
of protections that must be offered, their terms, enforcement mechanisms, and transitional measures. The DOHA amendment of 2001 brought the reconciliation of the TRIPS agreement, the UN Convention on Biological Diversity, and the protection of traditional knowledge and folklore within the rubric of the TRIPS agreement.
In practice the situation is quite different with at least three competing groups: Europe and the United States (who have well-developed traditions of intellectual property law, bodies of law, and enforcement), a group of dissenters led by Brazil and India and including a number of South American and Asian countries who are pushing for recognition of national origin as a source of rights in the intellectual property law of biotechnology (who don’t have similar traditions, bodies, or enforcement, possibly motivated by memories of past exploitation), and the African countries who want no part of much of the bloody thing (probably with similar motivations). We’ll be hearing a lot more about this in the coming years.