The position held by the EU and the US on agriculture subsidies places enormous hurdles on developing country aspirations of entering markets in the North with agricultural produce of their own. Indeed, progress on agriculture negotiations at the Cancun Ministerial meeting have always seemed difficult. Still, what India should take to Cancun on the food and livelihood front is an aggressive posture on the unfinished Doha agenda, especially where it relates to TRIPS. (Trade Related Intellectual Property Rights)

Although the subject of TRIPS and Public Health finds mention in the draft Cancun Ministerial document that has been circulated, there is continuing neglect of the impact of TRIPs on agriculture, food security, farmers’ rights and livelihood security. India should take the position that the rights of farmers and local communities have been reiterated in other conventions, notably the Convention on Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources (ITPGR) and these must be reflected in the WTO, which must move to harmonise with the international developments.

It is for this reason that India has been advocating the linkage between the CBD and the WTO in its submissions to the TRIPS Review Council. The submission to the TRIPS Council is jointly made by Brazil, Bolivia, Cuba, Dominican Republic, Ecuador, India, Thailand, Peru and Venezuela. In order to protect the rights of local communities and their livelihood base, this group of countries is asking that the TRIPs Agreement be amended to provide for the following in the case of applications for patents relating to biological materials or to traditional knowledge:

  1. Disclosure of the source and country of origin of the biological resource and of the traditional knowledge used in the invention
  2. Evidence of prior informed consent , and
  3. Proof of provision for fair and equitable benefit sharing

On TRIPs, it is unfortunate that some developing countries, including India have chosen not to support the proposal of the Africa Group. The Africa Group is asking for an outright ban on patents on all life forms, a position they have held consistently since 1999. This is a proposal very much in the interest of developing countries since patents on life forms at this early stage of development of key technologies, would strike at self-reliant development in the fields of agriculture and pharmaceuticals.

Developing countries should raise the issue of patents on life forms at Cancun and join other countries and civil society groups in supporting the Africa Group position to oppose patents on all life forms. Having this flexibility is important to give domestic industries a chance to grow and develop their own technologies and become globally competitive. Since the patent system is being introduced for the first time on biological materials, we should give ourselves space to grow, in a patent free environment for some time. Accepting patents on life forms today, will hand over the advantage to the foreign companies who are at present technologically stronger and well versed in the exercise of life form patents.

The draft Cancun declaration simply ignores several injunctions of the Doha declaration.
The Doha Ministerial had provided a mandate to address the outstanding implementation issues on a priority basis by end 2002 but this has not happened yet and there does not seem to be any effort on the part of developed countries to advance this issue. The Doha declaration was explicit. It instructs the Council for TRIPs, in pursuing its work program including the review of article 27.3(b) ( the article under which biological materials are handled) and Article 71.1 ( review in the context of any new developments) , to examine inter alia the relationship between the TRIPs Agreement, the CBD and the protection of traditional knowledge.

It further instructs that in pursuing this work, the TRIPs Council will be guided by Articles 7 and 8 of the TRIPs Agreement. Article 7 provides that IPR protection rather than becoming an instrument of unfair monopoly, should contribute to technology transfer and be mutually advantageous to producers and users of technology in a way that is conducive to social and economic welfare. Article 8 enjoins members of WTO to adopt measures to protect public health and nutrition and promote the public interest in vital sectors like food and medicine.

The draft Cancun declaration simply ignores these injunctions of the Doha declaration and moves ahead with an agenda that benefits the economies of the industrial countries while being largely oblivious to the interests of the developing world.

Another matter, which suffers neglect in the Cancun draft text, is the subject of Geographical Indications (GI), which is of great interest to the economies of agriculture dependent developing countries. The Cancun draft text mentions the need to work on GI for wines and spirits but does not mention expanding the scope of GI protection as the developing countries have been demanding. These countries, which are largely agriculture based, have several specialty products on which they wish to seek the form of IPR called Geographically Indicated Rights. Countries will have their own set of special products for which they will claim GI protection. India for example, is interested in protecting a range of products like Basmati rice, Darjeeling tea, Shahi lychees, Ratnagiri mangoes etc.

Geographical indications identify a product as originating in the territory of a member country or a specific region within it, to which a given quality; reputation or other characteristic of the product can be attributed. Basmati rice for example can be distinctly attributed to the low foothills of the Himalayan region, which used to constitute the greater Punjab. After partition, this region has been divided between India and Pakistan, so geographically indicated rights over Basmati rice belong to India and to Pakistan.

Provided in Articles 22 and 23 of GATT/ TRIPs, GI protection at present has been afforded only to specialty products belonging to the category of wines and spirits, products of the western world. Despite the efforts of developing countries, to expand the scope of the protection in Article 23, to include other products of special relevance to them, the industrialised nations have refused to allow GI protection for anything except the alcoholic beverages. The move to expand the scope of GI is supported by the European Union since it has a number of processed foods of its own, like cheese, ham and other dairy and processed foods for which it seeks exclusive rights under GI.

Paragraph 18 of the Doha Ministerial Declaration states: “With a view to completing the work started in the Council for Trade Related Aspects of Intellectual Property Rights on the implementation of Article 23.4, we agree to negotiate the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits by the fifth session of the Ministerial Conference. We note that issues related to the extension of the protection of geographical indications provided for in Article 23 to products other than wines and spirits will be addressed in the Council for TRIPs pursuant to paragraph 12 of this Declaration.”

Brazil, Bolivia, Cuba, Dominican Republic, Ecuador, India, Thailand, Peru and Venezuela. must move aggressively at Cancun to garner support for the commitment made in this declaration, to increase the ambit of protection offered under Article 23 of TRIPs. Other countries too have an interest in protecting their (agricultural) products so mobilising support should not be very difficult. The US remains a staunch opponent of enhancing the scope of GI protection, supported by Canada, Australia and New Zealand, all of whom are major agriculture exporting countries of products like cheese, ham and other processed meats. The strategy of the group wanting a broader scope of protection under GI should be to isolate the US with the support of the EU and other countries with a common interest.

There is some good news on the coordination front to pressure the EU-US combine. On the eve of the Cancun Ministerial, India along with China and 15 other countries have formed a block to oppose the EU-US pact in agriculture, concerned that the new proposal from EU-US pact could become the basis of negotiations on agriculture. The new group consists of members from Asia and Latin America and includes members of the Cairns Group which are major food exporting nations. This group will reiterate the demand of developing countries to access the agricultural markets of the developed countries by introducing a decrease in domestic and export support for agricultural products in both the US and EU.