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 property rights
• 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.

Patents

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 trade related.

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.

Way forward

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 inter alia:

• Community Resource Rights regimes designed to economically empower communities to benefit from the resources biodiversity occurring within specific localised areas;

• 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 account.

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.