Examination of Witnesses (Questions 20-39)
TUESDAY 15 JULY 2003
DR CHARLES
CLIFT, MR
RAMIL BURDEN
AND MR
JULYAN ELBRO
Q20 Tony Worthington: TRIPS goes
through this, does it not, to get to where it is not worth the
effort because it does not change things in any way, that is if
they need to be changed?
Mr Elbro: Sorry?
Q21 Tony Worthington: Through the
WTO we are generally trying to have a level playing field as far
as the regulations for the sale and distribution of goods, including
seeds, are concerned but at the same time we are recognising that
if that exists that could be very, very bad news for the poor
farmers who might lose the rights they traditionally had over
what are very, very important intellectual property to them? Is
this an area where we should stop trying because we cannot do
it?
Mr Elbro: I am not sure I quite
understand the question. From an intellectual property and TRIPS
perspective, there are currently the flexibilities in TRIPS to
enable countries to make their own decisions about what is best
for them.
Q22 Tony Worthington: People are
very angry about TRIPS, are they not? The NGOs who are writing
to us say that this is about a sort of global piracy.
Mr Elbro: I think there has been
a variety of different concerns. The piracy question comes down
to cases where it is alleged that genetic resources have been
taken from the developing world and have been patented else where
in the developed world without the benefits being effectively
shared back to the developing world. As a signatory to the Convention
on Biological Diversity the United Kingdom believes that access
to genetic resources needs to be under mutually agreed terms and
the benefits need to be shared back with the country of origin
under whatever agreement is reached. The question of the role
of intellectual property in there is then one as to whether or
not it should be patented. Assuming it is an agreement in those
terms we need to make sure how best benefits are to be shared
and the intellectual property can be a mechanism for enabling
them to be shared because by patenting it you can be sure that
the people who made the agreement with the originators are sharing
the benefits. There are questions of transparency, how can you
tell when genetic resource has been taken from another country
and involved in a patented invention? The EU has made it clear
to the TRIPS Council it is willing to negotiate some form of multilateral
system for disclosing origin in processing the patent application
so that people can tell where the resources came from in the first
place.
Q23 Mr Khabra: There has been on-going
debate about TRIPS and public health at the WTO. It is known that
attempts have been made to extend formal IPRs to seeds and other
biological and genetic resources which are controversial, primarily
because they may undermine the rights' of farmers and the communities
which are repositories for traditional knowledge and transferring
the power and control to multi-national companies, bio-prospectors
and bio-pirates. My question is, how do the new FAO International
Treaty on Plant Genetic Resources for Food and Agriculture and
the UN Convention on Biological Diversity relate to the TRIPS
agreement?
Mr Elbro: The position here is
the agreements need to be implemented in a manner that is mutually
supportive because in some sense they deal with different things.
The Convention on Biological Diversity I referred to just now
sets up a framework in which access to genetic resources needs
to be on mutually agreed terms and then any benefits need to be
shared back with the country of origin. As I was saying just now
intellectual property may well be a mechanism for generating the
benefits there and there needs to be a consideration as to how
any intellectual property right will be applied for, who will
own them and how they will be shared. These are all very important
considerations. The World Intellectual Property Organisation has
an inter-governmental committee which looks at issues like genetic
resources and traditional knowledge and has been looking at the
development of model clauses which would give an idea about what
sort of agreements could be reached in order to ensure that benefits
generated and protected by such property rights could be shared
back effectively. We have supported within the TRIPS Council the
possibility of some sort of specific disclosure requirement to
try and increase transparency so you can see whether or not the
provisions of the CBD are being respected. In terms of the International
Treaty on Plant Genetic Resources for Food and Agriculture the
Treaty makes clear that any material received from the Multilateral
System set up by the International Treaty cannot be subject to
intellectual property rights in the form that it is received.
This comes down to the fundamental idea, this is not new, the
idea being there should be free access to those resources that
are administered under that Treaty in order to combat the shortage
of food, and things like that.
Q24 Mr Khabra: Would you agree with
me that by extending this to seeds in particular countries like
India, in particular small farmers, the poor farmers are not going
to benefit from it at all because the big companies are going
to monopolise the seed distribution and that is causing a lot
of discontentment amongst the farmers in India. I know about that
personally.
Mr Elbro: I think one thing that
must be made clear is that within international agreements countries
have to decide for themselves where to strike the appropriate
balance in intellectual property rights. There are certain roles
of intellectual property rights encouraging the development of
new products, that is true in biotechnology as much as it is true
elsewhere. There are cases where you wish to develop a biotech
industry. You may well be advised to provide more protection in
that sort of area than you are obliged to. At the same time it
is important to keep in mind the need for access and the need
to respect the rights of small farmers. It is very much open to
countries under the current international structure to provide
exceptions in their laws which can address these issues.
Q25 Mr Khabra: What is the current
position of the United Kingdom ratifying the FAO Treaty on plant
genetic resources?
Dr Clift: I asked this question
of my colleague in DEFRA this morning and he said—and I
do not know quite how this works—it is before Parliament,
if 30 days elapses before Parliament rises then it will in effect
be ratified by the United Kingdom. I think I have that right.
Q26 Mr Colman: It sounded great fanfares
in the Food Summit last June and it has vanished since then.
Dr Clift: It is going on. Once
we have ratified it the plan is we should wait for the rest of
the EU to ratify it before submitting EU ratification all at the
same time.
Q27 Mr Colman: How many of the other
15 have ratified it?
Dr Clift: I think he said about
five or six.
Q28 Mr Colman: Would you agree this
would be a very good push to get ratification ahead of Cancu«n?
Dr Clift: This is what we say
in the Government response. He said 20 or 21 were ratified already,
they need 40 before it comes into force.
Q29 Mr Battle: Sometimes when I try
and get my head round debates on the World Trade Organisation
with all of the acronyms about TRIPS and the rest of it I feel
like I am going backwards in my understanding, not forward, and
I am feeling that at the moment in this conversation. I wonder
if I can ask for a bigger overview really, the Commission was
set up by the Secretary of State. I do not think I am that clear
about what the Commission is doing and what it hopes to achieve
and what you think you are achieving, I would welcome a word on
that. You then mention the World Intellectual Property Organisation,
otherwise known as WIPO, what does it do? How does it connect
to the WTO? I am just lost in this morass of acronyms and how
we fit in. I am getting a clear idea of some of the detail but
I have lost the jigsaw lid, I can see some of the pieces. Can
you help me understand? You are immersed in this process, where
do you see it going? Is there any hope out there at all for any
of us?
Dr Clift: The Commission was set
up by the previous Secretary of State following a commitment made
in the 2001 Globalisation White Paper. This started work in May
2001 and produced its report in September last year. The Commission
had then completed its work. Then, as you know, the Government
produced its response in May this year. It is really for the Government
to pursue the recommendations in the response, as that represents
the Government's position.
Mr Colman: Do you think it is going in
the right direction?
Q30 Mr Battle: Is there a gleam of
light at the end of the tunnel?
Dr Clift: "It" being
what exactly? Where is it going? Where is what going?
Q31 Mr Battle: In terms of there
being a better deal, a larger deal put together so that at the
end of the day there has been some progress for developing countries
who have to engage with intellectual property rights. A lot of
people see intellectual property rights as the enemy of NGOs.
Mr Elbro: WIPO is an intellectual
property organisation, it is a UN specialised agency which deals
with all intellectual property matters, such as trademarks and
patents. It has a number of treaties under its supervision, such
as the Paris Convention. It is there that technical expertise
resides to deal with intellectual property. The vast majority
of members are developing countries and it is very broad based.
The TRIPS agreement is part of the overall package that is the
World Trade Organisation and it is a specific treaty, subject
to the dispute settlement of the WTO, that provides minimum standards
of intellectual property that all members of the WTO are obliged
to provide and it ensures that you have some intellectual property
rights. In most respects it draws on the number of treaties that
have been established over the years and are currently administered
by WIPO. There can be specific negotiations on-going on the TRIPS
agreement and what that looks like and at the same time general
intellectual property matters can be considered by WIPO. I would
say that developing countries are very engaged in these issues.
When we discuss the Substantive Patent Law Treaty, which is an
attempt to harmonise patent law across the world, developing countries
are very active in putting forward suggestions for provision on
disclosure of origin.
Q32 Mr Battle: WIPO is responsible
to the councils of the UN, that is where its accountability lies?
Mr Elbro: WIPO has its own assemblies
and is accountable to the Member States of WIPO.
Q33 Mr Battle: There is quite strong
developing country presence on the WIPO?
Mr Elbro: They form a majority
of the members and are certainly very actively involved in discussions
there. They are also actively involved in discussion in the TRIPS
Council.
Q34 Mr Battle: I share the question
that Hugh Bayley asked about engaging the debate at the right
level. There is a deficit there, is there?
Mr Elbro: We agree there are always
negotiating capacity issues.
Q35 Mr Battle: Then the question
of TRIPS itself. In a Parliamentary answer in November the Secretary
of State for the DTI said, "The Government support the development
of objective criteria to form the basis upon which TRIPS transition
periods should be agreed". We support the introduction of
a mechanism for extending periods. Does the Government agree policy
deadlines and TRIPS compliance in all developing countries, particularly
least developing countries, should be based on whether it measures
milestones or is it going to be set arbitrarily? How will that
be measured?
Mr Elbro: We do think there is
a need for objective criteria. One thing we would want to be clear
on is that in many ways it is for developing countries themselves
to put forward what they see as their needs and where they see
difficulties occurring in agreements and where they believe a
certain circumstance gives rise for a need for a certain transition
period. We will look positively at such requests.
Q36 Hugh Bayley: Although I appreciate
intellectual property specialists like yourself have been over
this ground many times, in my heart I am still not convinced that
life forms really ought to be patentable. Surely they are part
of a global common resource. However, I understand that you have
reached different conclusions. I just wanted to put this thought
to you, though: that the one bit of intellectual property development
which I understand personally has to do with copyright. I used
to make films about developing countries, sometimes as co productions
with TV companies in developing countries, and I can understand
why TV Globo in Brazil wants to have some ownership of material
in a film or music that it has made but copyright, of course,
is time limited. I am not a lawyer but it is fifty years I think.
Mr Elbro: Yes.
Q37 Hugh Bayley: Would it not make
sense to make all patents time limited so that a drug company—well,
a drug company of course does get a patent for a fixed period
of time but if a seed company develops a new seed, or even identifies
a new seed, if it does get patent controls over that it only has
a limited period of time to exploit the investment it has made
in obtaining that?
Mr Elbro: Yes. Patents are time
limited, to 20 years.
Q38 Mr Colman: And that would apply
to seeds as well?
Mr Elbro: Yes.
Q39 Hugh Bayley: And it applies also
to life forms which are discovered in the wild rather than created
in the laboratory, when you do patent such life forms?
Mr Elbro: If a particular invention
or whatever is patentable, and different countries have different
laws as to what is patentable, the length of patent protection
will be time limited. Patents do not go on for ever.
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