To Mr. Pascal Lamy
EC Commissioner for Trade
Rue de la Loi 200
Brussels, 8 September 2000
On the 20th and 21st September 2000, the WTO Council for TRIPs (Trade-related Intellectual Property Rights) will again convene. In light of this we, the undersigned Non-Governmental Organisations, are writing to you to urge the EU to support a substantive review of the TRIPs Agreement to take into account developing country concerns.
We appreciate the Commission’s efforts to engage in regular dialogue with ‘NGOs’ on trade issues via the special ‘issue groups’ but note that there is no regular policy forum where civil society groups can express their concerns regarding TRIPs. To date, there have only been brief discussions of the issue under the auspices of the health and environment issue groups. This letter therefore lays out some of our broader concerns and questions about the TRIPs Agreement.
There is evidence to suggest that the excessive levels of intellectual property protection contained in the WTO TRIPs Agreement risk undermining the EU’s development cooperation objectives outlined in the Amsterdam Treaty of eradicating poverty and supporting the sustainable economic and social development of developing countries. The 1999 UNDP Human Development Report also warns for negative development impacts of tight intellectual property rights.
We recognise that some protection is necessary to reward innovation. But the excessive levels of protection incorporated in the WTO TRIPs Agreement, create monopolies, which can restrict the diffusion of knowledge and innovation and potentially exclude large sections of society from the benefits of this knowledge. Strict patents allow companies to unduly raise the cost of knowledge-intensive technologies thereby denying poor people access to essential medicines, seeds, and other technologies vital to reduce hunger and disease. The debate about the patenting of HIV drugs highlights these issues.
There is also evidence that strong intellectual property rules distort the allocation of spending on Research and Development (R & D) and skew the development of knowledge and technology towards the greatest commercial gain, rather than the greatest human good. For example, in the health industry most R & D is spent on rich rather than poor country diseases. In agriculture it is feared that stricter intellectual property rules will provide incentives for large companies to develop and promote expensive and inappropriate high-input seed technologies threatening local livelihoods, food security and bio-diversity.
Moreover, the TRIPs Agreement lacks measures to protect traditional knowledge thereby allowing companies to appropriate collectively shared knowledge for private gain. The South contains the bulk of the earth’s genetic plant resources, yet a small number of Northern corporations control over 86 per cent of plant patents. The recent and successful challenge against a patent on Neem at the EU Patent Office is just one of many such examples.
Finally, there are widespread concerns that the WTO TRIPs Agreement will impede the access of poor countries to the technologies they need to develop and compete in global markets. This in turn threatens to exacerbate existing inequalities between countries.
Given the serious developmental, environmental, health and human rights issues surrounding TRIPs, the current position of the European Union on intellectual property and patents is unacceptable.
We therefore strongly urge that, as part of the current TRIPs reviews, the EU :
- No longer bases its negotiating position on Directive 98/44, which is being challenged by the Netherlands and Italy, seriously questioned by France, Norway and the Parliamentary Assembly of the Council of Europe and fully rejected by a growing number of Members of the European Parliament as well as national parliaments. Only two EU member states have implemented the Directive since it entered into force on 6 July 1998.
- Supports developing country calls to refrain from invoking a dispute settlement procedure with regard to the implementation of article 27.3b during the period of the review of the provisions of this article and the review of the Agreement itself under article 71.1.
- Clarifies that the WTO rules including the TRIPs Agreement must be consistent with human rights law, in particular the UN Covenant on Economic, Social and Cultural Rights, and acknowledges the points made by the UN Sub-Commission on the Promotion and Protection of Human Rights on 17 August 2000.
- Provides political backing and funding for the WTO and relevant specialised UN bodies and civil society, to establish an international mechanism for monitoring the human rights, development, health, and environmental implications of the TRIPs agreement in order to inform the above mentioned reviews. As a first step, it could provide a political commitment and sufficient resources to establish a review of TRIPs as mandated by the WHO 1999 General Assembly. This review should include an assessment of the impact of TRIPs on the price of medicines and amount of R & D targeted to poor people's diseases.
- Ensures that its Sustainability Impact Assessment already underway should include a mechanism to monitor the development impact on and implications for developing countries of the TRIPS Agreement since 1st January 2000. Ensure that a similar mechanism is created to monitor the development impact and implications of the EC Patent Directive since it entered into force on 6 July 1998.
- In relation to the review of Article 27.3b and discussions in WIPO, supports developing countries’, and in particular the African Group’s proposal, to (a) clarify 'that plants and animals as well as micro-organisms and all other living organisms and their parts cannot be patented, and that natural processes that produce plants, animals and other living organisms should also not be patentable’; (b) maintain flexibility for countries designing sui-generis systems; and (c) support the inclusion of disclosure of the source of genetic material within TRIPs as proposed by India.
- Clarifies that the WTO TRIPs Agreement must be consistent with (a) provisions in the Convention on Biological Diversity to conserve natural resources, ensure prior informed consent and benefit sharing; and (b) the International Undertaking of the FAO on Plant Genetic Resources and Farmers Rights.
- Encourages the international community to strengthen and recognize alternative intellectual property rights systems to recognize and protect the knowledge, innovations, practices and technologies of indigenous, farmers’ and other communities in appropriate, local, national and international fora, outside the WTO.
- Works to ensure that the review under Article 71.1 includes the option to amend the TRIPs Agreement in order to ensure a better balance between the interests of inventors and the greater public good. The latter includes the need to share knowledge in order to reduce poverty, hunger and disease. With this objective in mind the EU should press WTO members to consider the options for restricting the length and scope of protection required by the Agreement including, inter alia; shortening the length of protection; exempting an expanded WHO list of essential drugs from patent protection; maximum flexibility for compulsory licensing and parallel imports, establishing patent free zones in poorest countries, narrowing the definitions of inventions; and alternative systems of protection for certain forms of knowledge.
- Ensures the operationalisation of the TRIPs Agreement’s objectives and principles in articles 7 and 8; the implementation of the article 66.2 obligation to ensure the transfer of technology to enable least-developed countries to create a sound technological base, and the extension of transitional arrangements.
We would be very happy to discuss these issues further with you or your officials. Please send your response to CIDSE, International Cooperation for Development and Solidarity, 16 rue Stevin, B-1000 Brussels (email: firstname.lastname@example.org)
With best wishes
President of CIDSE
Director Oxfam GB
Managing Attorney, Geneva Office
Centre for International Environmental Law
Congregation of the Sisters of Mercy - Diocese of Townsville, Qld
Heritage Seed Curators Australia Inc. (HSCA)
Institute of the Sisters of Mercy of Australia, Sydney
Bangladesh Agricultural Farm Labour Federation (BAFLF)
Bangladesh Environmental Lawyers Association, (BELA)
Centre for Agriculture and Rural Development (CARD)
Africa-Europe Faith and Justice Network
Comité Afrique Australe/Southern Africa Committee
CPE (European Farmers Coordination/Coordination Paysanne Européenne)
International Coalition for Development Action (ICDA)
Liaison Committee of Development NGOs to the European Union
Oxfam-Wereldwinkels/Oxfam Fair Trade Flanders
WWF European Policy Office
Comité Justice et Paix (Soeurs des Saints-Noms de Jésus et de Marie)
Friends of the Escarpment
COECOCEIBA-Amigos de la Tierra
Danish Association for International Cooperation (MS-denmark)
K.U.L.U.-Women and Development
Southern Africa Contact
Joseph Henry VOGEL, PhD, Professor of Economics, Facultad Latinoamericana de Ciencias Sociales
Trade Records Analysis of Fauna and Flora in Commerce (TRAFFIC)
Institute for Sustainable Development
Chrétiens dans le Monde Rural
Observatoire de la Mondialisation
Rencontre Nationale avec le Peuple d'Afrique du Sud (RENAPAS)
Carsten Hübner (Member of German Parliament, PDS)
Cornelia Fuellkrug-Weitzel, Director - Bread for the World
International Human Rights Association
Koordination Suedliches Afrika (KOSA)
Dr. Josef Sayer, Executive Director - MISEREOR
Centre for Interdisciplinary Studies
Consumer Unity & Trust Society (CUTS)
Forum for Biotechnology & Food Security
International NGO Committee on Human Rights in Trade and Investment (INCHRITI)
Kalpavriksh Environmental Action Group
Rita Kelly, Medical Missionaries of Mary
St. Patrick's Missionary Society
Fr Fachtna O'Driscoll SMA - Society of African Missions
Environment Liaison Centre International
International Solidarity for Africa Network (ISAN)
Jean-Marc Boffa, Ph.D., Independent Forestry/Agroforestry Consultant
Network on Free Trade
Red de Permacultura
Red Mexicana de Accion frente al Libre Comercio (RMALC) / Mexican Action
Rural Reconstruction Nepal-RRN
Health Action International (HAI) - Europe
Netherlands Centre for Indigenous Peoples
Netherlands Institute for Southern Africa (NIZA)
The Court of Eden
Mercy International Justice Network
Atle Sommerfeldt, General Secretary - Norwegian Church Aid
Sustainable Agriculture Action Group (SAAG)
Sustainable Development Policy Institute (SDPI)
Ecological Society of the Philippines
MASIPAG (Farmer-Scientist Partnership for Development)
A.Ac.R.-Acção Catolica Rural
Africa Resources Trust
Biowatch South Africa
Environmental Monitoring Group
Green Party of South Africa
Marshals Community Service Corps, Eastern Cape
Safe Food Coalition in association with The Natural Law
Africa Groups of Sweden
Association of European Consumers (AEC)
Network Southern Africa
Swedish Consumer Coalition (Sveriges Konsumenter i Samverkan)
Swedish Society for Nature Conservation
Germain Froidevaux, member of ACAR
Bread for all
Communauté de travail - Swiss Coalition (Swissaid/Action de carême/Pain pour le prochain/Helvetas/Caritas)
Action for Sustainable Development
Disability Awareness in Action
East Cleveland World Development Group
Institute of Science in Society & Biology Department, Open University, Milton Keynes
Intermediate Technology Development Group - Schumacher Centre for Technology Development
People & Planet
Programme for Traditional Resource Rights, Oxford, UK
The Corner House
Africa Faith & Justice Network, Washington, DC
American Society of International Law - Wildlife Interest Group, CA
Congregation of the Sisters of the Good Shepherd
Dane County Research, Education, Action, and Policy on Food Group, USA
Dominican Sisters of San Rafael, CA
Healthy food choices Campaign, USA
Institute for Agriculture and Trade Policy (IATP)
Institute Justice Team - Sisters of Mercy of the Americas
Madison Community Gardeners Coalition, USA
Nicaragua-U.S. Friendship Office, Washington, D.C
Sisters of the Holy Names, CA Province Justice and Peace Committee
Stewards of the Land
The Edmonds Institute
Africa Resources Trust
Thilo Bode, Executive Director, Greenpeace International
International South Group Network
CC Mr. David Byrne, EC Commissioner for Health and Consumer Protection
Mr. Franz Fischler, EC Commissioner for Agriculture, Rural Development and Fisheries
Mr Poul Nielson, EC Commissioner for Development and Humanitarian Aid
Mr Chris Patten, EC Commissioner for External Relations
Ms Mary Robinson, UN High Commissioner for Human Rights