BY SEAN HEALY
As if the World Trade Organisation's Trade-Related Intellectual Property Rights agreement wasn't stringent enough, a new study of bilateral trade treaties has found that many contain even stronger protections of corporations' "intellectual property".
TRIPS has been heavily criticised by global justice activists, development NGOs and Third World social movements for requiring all WTO members to grant and enforce intellectual property rights (IRPs) on new technology.
The stipulations include patents enforceable for 20 years, during which time no firm or country can use the patented technology without the permission of, and paying royalties to, the corporation which holds the patent. It was under the TRIPS agreement, for instance, that Western drug companies sought unsuccessfully to prevent Third World nations from producing their own cheap, generic versions of brand-name anti-HIV drugs.
TRIPS has also come under fire for extending coverage to life forms. Specifically, it says that while plants and animals can be excluded from patent laws, all countries must allow for patents on microorganisms and either provide patents or an "effective sui generis type" of intellectual property rights on plant varieties. Some critics have labelled it the first international treaty to make the privatisation of biodiversity compulsory.
But a new report, by Spanish development NGO GRAIN, issued on July 26, now claims that corporations are going further, designed what it calls "TRIPS-plus", in the form of stipulations inside bilateral trade agreements.
Powerful but hidden
While most attention has focused on multilateral free trade negotiations, such as the Free Trade Area of the Americas or inside the WTO itself, bilateral agreements have attracted little scrutiny.
But, the report notes, such agreements are a powerful but hidden tool to achieve uniform market conditions for transnational corporations operating in Third World countries.
"The policies and procedures of multilateral institutions such as the World Trade Organisation or the International Monetary Fund are seen the world over as reason to riot", says the report, entitled TRIPs-plus through the back door. "But the quietly crafted mini-pacts between Washington and Amman, or Brussels and Dhaka, are where more damage is sometimes being done. And patents on life have a central place on the agenda."
TRIPS is only about minimum standards, and those are clearly not strong enough for industrialised countries. One by one, the report notes, developed countries are negotiating special closed deals with governments of the South that establish much stronger requirements for IPRs on biological resources.
"These 'TRIPS-plus' standards are being introduced through a range of bilateral, regional and subregional agreements", says the report. "They take developing countries way beyond the commitments they agreed to under the multilateral trade system governed by the WTO. And they are making so much headway that TRIPS may soon be obsolete."
GRAIN carried out a limited, sample survey of bilateral agreements between First and Third World countries in five areas — trade, investment, aid, science and technology and intellectual property rights — to see how TRIPS-plus standards are being pushed on developing countries with respect to biodiversity.
It found that such treaties routinely included stipulations which bind countries to standards higher than those specified in TRIPS.
These new stipulations include signing on to the UPOV (International Union for the Protection of New Varieties of Plants) convention, drawn up 40 years ago as a special kind of patent system for commercial plant breeders and to which mostly industrialised countries subscribe.
"Requiring countries to align with UPOV is very clearly TRIPS-plus", the report says, since TRIPS does not define what "effective sui generis system" signatories must have in place for protecting intellectual property rights on plants. WTO members have been told time and time again that the absence of a definition and the absence of any mention of UPOV both indicate flexibility and allowances for variable national laws.
Under discrete bilateral agreements with different developed countries, Cambodia, Jordan, Morocco, Tunisia and Vietnam are now obliged to join UPOV. Singapore may be in the same boat. Bangladesh, Ecuador, Mexico, Nicaragua, Trinidad and Tobago and Vietnam were dealt the phrase "must make every effort to" instead.
Other bilateral agreements make reference to the Budapest Treaty, which 49 countries, 47 of them Northern, are signatories to. The treaty makes it far easier for companies to patent life forms, as patent holders don't need to fully disclose their "invention" and can simply deposit a "sample" of it instead.
TRIPS does not advocate the Budapest system for patent protection of microorganisms, but under bilateral agreements with industrial countries, Korea, Mexico, Morocco and Tunisia have been required to join the system, while Jordan must implement its substantive provisions.
Further, TRIPS allows member to exclude plants and animals from their patent laws. But under bilateral agreements with industrialised countries, Jordan, Mongolia, Nicaragua, Sri Lanka and Vietnam are being required to provide patent protection on plants and animals.
Under another approach, South Africa and the 78 African Caribbean Pacific countries are supposed to grant patents on "biotechnological" inventions. This presumably means plants and animals, in addition to the microorganisms required by TRIPS.
Most obscure, and according to the report's authors "most troubling", are the provisions of the bilateral investment treaties.
In essence, the authors say, such treaties provide that investments flowing into the South from the North receive the same level of protection that they would receive back home. The term "investments" includes intellectual property rights, even potential rights in some cases.
The report provides a hypothetical case of how these stipulations might be applied.
"Suppose the US signs a typical [bilateral investment treaty] with Nigeria. It could be understood that if [giant US biotechnology firm] Monsanto has a patent on a given gene in the US and it wants to sell seeds containing that gene in Nigeria, then Nigeria must provide the same level of domestic patent protection to Monsanto over the gene that Monsanto enjoys in the US.
"This may not mean that Nigeria has to automatically [honour] the patent on the gene in its own territory. Nor that Nigeria suddenly has to rewrite its patent laws to suit the eventuality. But it would probably mean that, irrespective of TRIPS, Nigeria would have to allow for patent protection on plant genes in its territory if and when Monsanto seeks local protection ... Monsanto can invoke the [bilateral investment treaty] to protect its investment in Nigeria."
GRAIN has identified 23 cases of bilateral or regional treaties between First and Third World countries that should be classed as TRIPS-plus, as far as intellectual property rights on life forms is concerned.
"These agreements affect more than 150 developing countries", says the report, "which means that something serious is going on: the TRIPS-plus features of these treaties cannot be accidental."
A threat to democracy
GRAIN draws two implications from its study.
"The first important message is that there is a highly effective drive underway to raise IPR standards to one global level", it says. "The level that is currently being targeted is UPOV for plant varieties per se and patents for everything else (plant genes, animal breeds, human genetic sequences, etc.).
"Transnational corporations want maximum predictability, maximum profits and minimum bureaucracy in the markets where they operate. Much better [for them] to have one homogenous and trustworthy climate in terms of intellectual property than a patchwork of different systems with different levels of protection, different procedures and different results."
But there is also a second, "deeper and more disturbing", message from the emergence of TRIPS-plus, says GRAIN: it's "destroying democracy".
"There is no denying that unilateral, bilateral or regional pressure to scale up IPRs on biodiversity are undermining political processes all over the world", says the report.
"The negotiation of bilateral treaties is a generally confidential affair. The texts are kept secret until they are agreed on. Parliaments and congresses are not consulted. Public opinion is kept out of the deal. In general, only trade, finance and foreign affairs ministries are privy to the process."
"TRIPs-plus is not a new idea brewing quietly away in a corner: it is rampant and effective already", concludes GRAIN.
"This back door route to a world of total acquiescence to patenting life forms has to be exposed, challenged and closed down. In so doing, a lot of conditional thinking will have to fall. Because the issue is not how far we should go. It's whether the bottom line — IPRs on life forms — is acceptable or not."
[The full report has .]