The Trade Related Aspects of Intellectual Property
Rights (TRIPs) Agreement is Annex 1C of the Marrakesh
Agreement Establishing the World Trade Organisation,
signed in Marrakesh, Morocco on 15 April 1994. The TRIPs
Agreement sets out minimum levels of standards concerning
intellectual property in the form of copyrights, trademarks,
patents industrial designs, geographical indicators,
integrated circuits and trade secrets.
Intellectual Property Rights (IPRs) were brought into
GATT Uruguay Round Agenda in the late 1980s through
direct pressure by US pharmaceutical companies. They
were complaining that since numerous countries do not
provide adequate patent protection for drugs, they were
being denied potential royalty payments. Quick to take
up their cause, the US government bemoaned that their
top 200 companies were losing $24 billion per year to
such “piracy”. Developing countries resisted
the introduction of IPRs into GATT, but they lacked
the critical mass to block it. However, as a compromise
only the trade aspects of IPRs were included hence the
name. The thinking was that this could only cover matters
related to trade.
There are fundamental flaws in the whole idea of including
IPRs in the WTO regime. The TRIPs Agreement itself does
not focus on trade issues (e.g. dismantling of barriers).
Instead, what it does is sets standards for the protection
of IPR. And it does so under false pretences: baseless
promises of investment and technology transfer to developing
countries. It is often said that countries providing
strong intellectual property protection will attract
greater inflows of foreign investment and technology,
but there is no empirical evidence to back this up.
The TRIPs Agreement is a legal construct that is complex
in the issues that it deals with. This fact sheet will
only focus on patents.
The agreement covers five broad issues:
• how basic principles of the trading system and
other international intellectual property agreements
should be applied
• how to give adequate protection to intellectual
• how countries should enforce those rights adequately
in their own territories
• how to settle disputes on intellectual property
between members of the WTO
• special transitional arrangements during the
period when the new system is being introduced.
A Council for Trade-Related Aspects of Intellectual
Property Rights monitors the working of the agreement
and governments’ compliance with it.
Why IPRs in the WTO?
The basic reason for the inclusion of IPRs was because
of two major technological revolutions in industrialised
nations, information technology and the biotechnology
industry. TRIPs was basically included because of the
comparative advantage that developed countries have
in these technologies, and their commercial interest
to maintain economic control over such products.
In terms of biotechnology, the TRIPs Agreement mandates
20 year patent protection for all innovations whether
products or processes in all fields of technology, subject
to the normal tests of novelty, inventiveness, and industrial
applicability. TRIPs also requires National Treatment
of patents and patent holders, which means that a foreign
company or product in a Member state has to be treated
the same way (or better than) a comparable domestic
company or product.
But the big battle raised during the incorporation
of TRIPs into the WTO regime was over the patenting
of life forms.
The key TRIPs provision on biodiversity is article 27,
which allows a few exceptions to patentability. Plants
and animals (not micro-organisms) can be excluded, but
plant varieties must be protected, either by patent
or by sui generis system. But many countries, do not
actually know what an effective sui generis system is.
It simply means “of its kind”, but it must
be some kind of intellectual property rights protection
for plant varieties.
National obligations and implications
Patents provide ownership over inventions, meaning
no one can use them without permission or payment. Companies
in the US are currently patenting a broad range of “inventions”
in the field of life sciences: genes, gene sequences,
basic techniques of recombinant DNA, plant varieties
per se, characteristics or traits, even entire species.
As a result farmers then have to pay to use knowledge
claimed by companies, for every generation of a biological
organism. This translates into high cost for farmers.
As a result of this Agreement, the protection of intellectual
property became an integral part of WTO. The Agreement
covers each of the main areas of intellectual property.
One of these areas in “patents’’ includes
plant variety protection. Article 27.3(b) allows Member
States to exclude plants and animals from patent protection
subject to the establishment of an “effective’’
sui-generis system. Developing countries –Africa
included–were supposed to have put a sui-generis
system in place by the end of 1999. Some countries are
considering the sui-generis option to compliance. The
Union for the Protection of New Crop Varieties of Plants
(UPOV) is actively persuading governments that application
of UPOV principles or membership of the Union will satisfy
the demands of Article 27.3(b) of TRIPS. For Africa
there are grave consequences associated with intellectual
property protection of plant varieties. It can be argued
that protection of plant varieties will place undue
restriction on farmers’ practices, lead to genetic
erosion and adversely impact on research and development.
There is also fundamental conflict between TRIPS and
CBD. Whereas the CBD calls for national sovereignty
over biodiversity the TRIPS Agreement promotes the application
of IPRs and monopoly ownership and commodification of
biodiversity. This private proprietary ownership by
mostly corporate companies will lead to the decline
of the biodiversity, which sustains people’s livelihoods.
The patent system of intellectual property rights denies
property rights to local and indigenous knowledge, practices
and innovations. TRIPs only recognises as worthy of
protection inventions that conform to the Northern definition.
Rights are recognized only when they generate profits
and capable of industrial application. This excludes
all sectors of society who produce outside the industrial
code of production and for social good. Furthermore,
the innovation to be accorded patent rights must be
In this connection, innovations in the public domain
for local and domestic use are the innovations that
are denied recognition. This situation seriously affects
the rights and opportunities for poverty relief and
alleviation in developing countries. Local people end
up being exploited and made even poorer by developed
countries because their knowledge is accessed freely
then “treated” in laboratories in the North
and ownership rights claimed through patents. Those
who make use of the patented products then pay royalties
to new owners.
TRIPs raises important questions for Africa
in three main areas:
Biopiracy: under TRIPs, the right of communities to
control their natural resources is not guaranteed. Indeed
TRIPs does not recognise a community’s ownership
of the resources it has tended for thousands of years.
While the Convention on Biological Diversity has been
written in an attempt to prevent the theft of indigenous
knowledge, the exact relationship between TRIPs and
the CBD remains unclear. Until this apparent conflict
is resolved, corporations from the developed countries
will continue to be able to patent and profit from the
knowledge of indigenous communities across Africa.
Farmers’ Rights: As with community Rights, farmers’
rights are not provided for under the TRIPs agreement.
TRIPs does not permit farmers to save seed grown on
their own land for future use. Corporations from the
developed countries are attempting to use TRIPs to force
farmers to purchase new seed every season. In this sense
the TRIPs Agreement appears to be in conflict with other
international agreements, such as the International
Undertaking on Plant Genetic Resources for Food and
Agriculture, and the Global Plan of Action for the Sustainable
Use of Plant Genetic Resources for Food and Agriculture
(GPA), both of which provide for the right of farmers
to save seed.
Health and Pharmaceuticals: Patents on pharmaceuticals
have led to high economic and social costs for countries
and peoples in Africa. As the Doha Declaration confirms,
TRIPs includes mechanisms intended to safeguard public
health while respecting intellectual property rights.
But while the principle of the need to increase access
to medicines in poor countries is widely recognised,
the means of doing so is disputed.
Manufacturers of medicinal drugs have taken advantage
of the TRIPs Agreement to brand and patent their drugs
to maximise on their profits. This has led to the suffering
of many people who cannot afford to buy the patented
drugs because of their high costs. WTO members, mostly
developing countries, realising the suffering that their
people were facing especially in the wake of HIV/AIDS,
Malaria and Tuberculosis, advocated for the November
2001 Doha Ministerial Conference to revoke certain provisions
of the TRIPs Agreement to curtail the Public Health
problems countries were facing. Such Provisions of the
Agreement include Compulsory licensing and parallel
import. Compulsory licensing is granting a licence by
a government or court to a third party to produce a
generic version of a patented product, while the patent
holder is compensated through royalties from sales.
However, a compulsory license is only granted under
certain conditions for example in cases of national
emergences. Parallel import is importing a branded patented
product without the approval of the patent holder.
Negotiations on the Doha Declaration on TRIPs and Public
Health started in September 2002, with countries having
been given a deadline to come up with a solution by
the end of that year. No agreement was reached as other
countries were backtracking; especially the US and the
European Union who wanted to limit the scope of diseases
to be covered under the Declaration. Other, like developing
countries wanted a solution that would look at “Public
Health problems” not specifically certain diseases.
A solution is yet to be found.
The TRIPs Agreement allows member countries to provide
sui generis protection of plant varieties, excluding
them from patenting. The Organisation for African Unity
has drafted African legislation to address the problems
of farmers and breeders’ rights and biopiracy.
In this context, there is a need for governments to
come up with laws that specifically cover issues of
• Community Resource Rights regimes designed
to economically empower communities to benefit from
the resources biodiversity occurring within specific
• Protection of indigenous knowledge systems,
practices, innovations and technologies;
• Farmers rights to conserve, save, exchange,
share, multiply and market farmers varieties and utilise
them on a sustainable basis;
• Harmonising and rationalising the contradictions
of the various international instruments using some
elements from the OAU Model Legislation, which addresses
issues, related to Plant Breeders Rights, Community
Resources Rights, Farmers Rights and Access and Benefit
Sharing in a broad framework.
On issues of drugs and public health, Governments,
through their Ministries of Health, Industry and Justice
must formulate and / revise national patent legislation
to ensure that public health needs are fully taken into
SEATINI recommends as a way forward that unilateral
pressure on countries by other WTO super powers to adopt
trade policies that are not in the public interest should
be rejected. Educating and empowering the masses, including
Parliaments, the media, civic organisations and the
general citizenry about the dangers of signing agreements
and/ or entering into certain negotiations without adequately
consulting the various stakeholders, can only change
the current World Economic, Political and Social order.
Another Africa is Possible.