Minutes - TRIPS Council - View details of the intervention/statement

Ambassador Karen Tan (Singapore)
Bolivia, Plurinational State of
8. The representative of Bolivia said that her government attached great importance to the review of Article 27.3(b). She said that the review of Article 27.3(b) was an important and topical issue that had been raised earlier by other Member countries and groups of countries. She said that her delegation's presentation was meant to contribute to the examination of this issue which required a multilateral solution aimed at ruling out the possibility of the patenting of life forms, including biological resources, micro organisms, genes, genetic sequences and non biological or microbiological processes. She requested that, in order to ensure that this subject was given the attention it deserved, her statement be incorporated in the report of the Council for the stocktaking exercise in March 2010. 9. She said that the review of Article 27.3(b) was an issue within the mandate of the Doha Work Programme according to paragraph 19 of the Doha Ministerial Declaration and it was also an implementation-related issue and concern under paragraph 12, oriented to address a number of implementation problems faced by Members. The Government of Bolivia considered that the exclusion from patentability of life forms was one of the most important issues within the Doha Development Agenda. She said that document IP/C/W/545 contained three parts: the first dealing with the rationale for the exclusion of patentability of life forms; the second with the protection of plant varieties; and the third with the protection of traditional knowledge and the rights of indigenous peoples and the urgency to review Article 27.3(b). She said that Article 27.3(b) allowed Members to exclude from patentability plants and animals and essentially biological processes for the production of plants and animals, but not micro organisms, non biological or microbiological processes. Furthermore, Members were required to provide plant variety protection either by patents or by an effective sui generis system of protection or by any combination thereof. Article 27.3(b) was subject to review four years after the entry into force of the WTO agreements. Section III.A of document IP/C/W/545 referring to "patenting of life forms" was based on the fact that there was no reason to make an artificial distinction between plants, animals and micro organisms and also between "essentially biological" processes for the production of plants and animals (which might be excluded) and non biological and microbiological processes (which might not be excluded). She said that, since the adoption of the TRIPS Agreement, there had been a proliferation of patents and patent applications involving micro organisms and other biological resources. The result was concentration of ownership of patents in a few entities (largely based in developed countries) with detrimental effects on competition and on social and economic situation, including food sovereignty and livelihood of farmers, that most affected the vulnerable and poor, including indigenous peoples in developing countries. Moreover, patenting of life forms promoted an imbalance in the current intellectual property system. The TRIPS Agreement, while granting monopoly rights to private parties, did not explicitly recognize the collective rights of indigenous peoples and local communities over their biological resources and traditional knowledge, farmers' rights or the sovereign rights of States, which had serious social, economic and ethical implications that were adverse, especially for developing countries. 10. Regarding Section III.B of document IP/C/W/545 on the protection of plants varieties, she said that patenting of plants was already taking place in several developed countries, and that there was misappropriation of biological resources where plants and seeds originating in developing countries were being patented, usually without the knowledge or consent of the countries of origin. In addition, there had been significant corporate control over the agriculture industry due to various mergers and acquisitions. She said that it was important to ensure that innovations of indigenous and local farming communities and the continuation of traditional farming practices, including the right to use, exchange, save seeds and sell their harvest, were recognized and protected. 11. With regard to the subject of traditional knowledge and the rights of indigenous communities as well as the urgency to review Article 27.3(b), she said that various developments had taken place at national, regional and international levels that highlighted the need to conduct concrete and expedited discussions on the review of Article 27.3(b). In brief, two of the most relevant developments were the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 and the new Bolivian Political Constitution approved in 2009 by referendum with more than 60 per cent of support. She quoted several articles of the new Constitution that were relevant to deliberations in the framework of the DDA. She said that Article 255.II 4 and 7 of the Constitution states that: "The negotiation, signature and ratification of treaties will be governed by the following principles: respect for the rights of indigenous peoples and peasants; harmony with nature, protection of biodiversity and prohibition of private appropriation of plants, animals, micro organisms and any living matter for exclusive use and exploitation." Additionally, Article 382 states that it "is the competence and duty of the State to defend, recover and protect biological material coming from natural resources, ancestral knowledge and anything else that originate in the territory". She said that the new Constitution responded to the legitimate concerns of indigenous peoples and all Bolivians in general. This was an important first step, but not sufficient. She said that since Members were dealing with a problem which did not respect national borders, it needed an international solution under the WTO negotiations. She said that Bolivia was not the only country facing these challenges as several developing countries, small peasants or indigenous peoples shared these concerns, which among others, were: to put an end to biopiracy, due to the extensive patenting of life forms, misappropriation of biological resources originating from developing countries by developed countries; to stop the increasing concentration of corporate control over the agriculture industry due to various acquisitions and the overuse of intellectual property rights, undermining the rights of indigenous peoples, local community and farmers, including the right to exchange, and save seeds and State's food security and sovereignty; to stop the prosecution of farmers in developing countries for alleged patent violations; to update the TRIPS Agreement in relation with international developments, such as the UN Declaration on the Right of Indigenous Peoples; and finally, to limit the proliferation of trade agreements and initiatives focused on enforcement of intellectual property that pressured developing countries to adopt a particular model of intellectual property, which was not in their best interest. 12. She said that all these reasons mentioned above allowed the DDA and the TRIPS Council to have a strong case for an in-depth and accelerated review of Article 27.3(b). 13. The second representative of Bolivia said that, for the past five centuries, indigenous peoples in Bolivia had carried the memory of the biggest genocide in the history of humanity and of the irrational violation and appropriation of their collective rights and traditional knowledge. Transnational corporations, with the support of their countries, had appropriated Bolivian natural forestry resources, minerals, water and biodiversity, leaving Bolivians in extreme poverty and polluting Bolivian lands. In the name of development, technology, and scientific research, pharmaceutical and agro industrial companies from developed countries came to expropriate and appropriate life by modifying the genes and chromosomes that formed part of the life of plants, animals, and the indigenous peoples themselves without consulting the indigenous peoples, on top of which they prohibited Bolivians from using these products through the multilateral intellectual property system which should be safeguarding collective interest, and not only private interests. He said that none of the age old knowledge and collective traditions of the indigenous populations were properly protected by the intellectual property system. He appealed to the international community and to the international organizations to respect the life and knowledge of the indigenous peoples. He also urged the WTO, in particular the TRIPS Council, to develop mechanisms to ensure the participation of the indigenous peoples and of civil society in order to guarantee the life and the collective knowledge of the indigenous peoples in its entirety, and to provide the necessary protection for folklore and genetic resources, a principle of life that Bolivian had maintained for centuries. 14. He informed that, at the universal periodic review of the Human Rights Council held in Geneva in February 2010, the Plurinational State of Bolivia had shown the progress it had made in recognizing the rights of indigenous peoples: both the United Nations Declaration on the Rights of Indigenous People and the International Labour Organization's Indigenous and Tribal Peoples Convention (also referred to as ILO-Convention 169), had been substantively incorporated in the new Constitution approved by constitutional referendum on 25 January 2009. They formed part of the country's national legislation: the ILO-Convention 169 as Law 1257 of 11 June 1992, and the Declaration through Law 3760 of 7 November 2007. He said that the UN Declaration on the Rights of Indigenous People stipulated that member States - which were in fact represented in the TRIPS Council - shall recognize the right of indigenous peoples" to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature." The Declaration also stated, in operative paragraph 31.1, that: "Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions." 15. He said that the people of Bolivia, through the new Constitution, addressed elements that the indigenous peoples considered to have a value that transcended everyday life, values that they considered sacred, such as the fact that life, regardless of the form it took, could not be privately appropriated or patented by any company. Article 255.II.7 of the Bolivian Constitution states that: "negotiation, signing and ratification of international agreements shall be governed (inter alia) by the following principles: harmony with nature, the protection of biodiversity and the prohibition of forms of private appropriation for the use and exclusive exploitation of plants, animals, micro organisms and any living matter." He said that many indigenous peoples perceived Western culture as one in which everything was marketable: plants, biological resources, and even life - and that was where the trouble lay. Natural and legal persons had been able, through various legal mechanisms such as Article 27.3(b), to acquire economic rights over different forms of life, so that biological resources, micro organisms and hence genes ultimately became the property of companies or private persons. By allowing this situation to exist, what was really happening was that biopiracy of biological resources, plants or genes was being promoted without any consideration for the rights of the indigenous peoples who owned biological resources and associated traditional knowledge. The result was impoverishment, not only material but also moral. Faced with this hard reality, he said that the indigenous peoples of Bolivia, with their world view, were proposing an alternative form of co existence between human beings in which people would live in harmony with nature as reflected to a certain extent in document IP/C/W/545. He said that it was a philosophy of "better living" ("allin kawsay" in Quechua) in harmony with nature - as opposed to living better at the cost of others or interfering with others; it advocated abandoning the capitalist consumer logic in which everything was marketable in favour of respect for life, respect for nature and a more harmonious life between human beings. He said that the WTO could not cling to a policy of favouring exclusively transnationals, which in the name of science, were appropriating the genes of life, or of micro organisms, plants and animals, and even the music of indigenous peoples. If Members were to assume their responsibility for the life of humankind and of the planet - mother earth - as a whole, they had a moral obligation towards humanity and towards nature, as State representatives, to amend these international instruments that were contrary to the ethical principles of the indigenous peoples and of developing countries to make them more inclusive, democratic and participatory.