No country is self-sufficient in biodiversity. The WTO is seeking an appropriate legal framework to encourage trade. But appropriate for whom? There's the rub. The intellectual property system, which champions the breeders' interests, is becoming an instrument of neo-colonialism. The Organisation of African Unity, offering an alternative that is in the public interest as well as its own, has taken the lead in new thinking about the exploitation of life.

Africa defies licences for life

No country is self-sufficient in biodiversity. The WTO is seeking an appropriate legal framework to encourage trade. But appropriate for whom? There's the rub. The intellectual property system, which champions the breeders' interests, is becoming an instrument of neo-colonialism. The Organisation of African Unity, offering an alternative that is in the public interest as well as its own, has taken the lead in new thinking about the exploitation of life.

by FRANCK SEURET and ROBERT ALI BRAC DE LA PERRIÈRE

This is a story of sugar that leaves a bitter taste in the mouth. A story of patents and piracy. In 1995 the university of Wisconsin took out four patents on brazzein, an extremely sweet tasting protein that researchers had isolated from the berry of a plant growing in Gabon. The university has since granted licences to exploit the patents to several biotechnology companies that hope to introduce a brazzein-producing gene into fruit and vegetables to obtain products that taste sweet but are less rich in calories. There are big profits in this, though not for small farmers in Gabon. They know all about the plant, they have always used it and their way of life and farming practices have helped to ensure its survival. But they will get nothing at all out of the plans to exploit it.

The case of brazzein is by no means unusual. Every year, firms and universities in the countries of the North take out patents on plants grown or used in the countries of the South, without the consent of the parties concerned and without offering any financial consideration in return. To put an end to this biological piracy, the Scientific, Technical and Research Commission of the Organisation of African Unity (OAU) has just produced model legislation for the recognition and protection of local communities, farmers and breeders, and for the regulation of access to genetic resources.

This legislation provides, inter alia, an appropriate system of access to biological and genetic resources and related community knowledge and technologies based upon the prior informed consent of the state and the local communities concerned, and appropriate mechanisms for a fair and equitable sharing of benefits arising from the commercial use of such resources.

The law breaks new ground in establishing a connection between resources and innovation, defining rules on access and farmers' rights, and devising a system to protect the intellectual property rights of breeders in the plant varieties they create. This is much less exclusive than the patent system and it grants extensive rights to the users of the protected plant varieties. The law is intended to provide a framework within which African states can harmonise their positions. It was adopted at Addis Ababa, Ethiopia, last November and a final version has just been ratified. It will serve as a basis for debate between states, regional organisations such as the African Intellectual Property Organisation and the African Biotechnology Agency, and non-governmental organisations.

With the rapid advances in biotechnology, the countries of the South have suddenly become a vast prospectors' paradise. Their land is a veritable treasure house of valuable genes that provide essential raw materials for American, European and Japanese firms. But not for African firms. Most of the valuable genetic resources are to be found in the South, but the technology, the genome platforms and the patents are produced in the North. Everything is conspiring to create the conditions for yet another unequal transaction. The OAU has drafted this model legislation in an attempt to redress the balance.

The legal basis of the legislation is the Convention on Biological Diversity adopted at the Rio Earth Summit in 1992. The convention represents a break with the past in three important respects. First, it reaffirms that states have sovereign rights over their own biological and genetic resources, hitherto regarded as the common heritage of mankind, and stipulates that access to those resources is subject to the prior consent of the states concerned. Second, it requires signatories to protect and support the rights of communities, farmers and indigenous peoples over their biological resources and systems of knowledge. Third, it requires the benefits arising from the commercial use of biological resources and local community knowledge to be shared in an equitable manner. Perhaps the most important aspect of the convention is that it finally recognises the major part small farmers play in preserving biological diversity.

The same spirit has inspired the OAU model law, which stipulates that access to biological resources and/or the knowledge and technologies of local communities in any part of a country shall be subject to application for informed prior consent and written authorisation. Permission will be granted by the competent national authority after the state and the local communities concerned have given their consent. The law also provides that that authority will determine the amount of the royalty payable by any breeder who has developed a new variety based on any of the country's biological resources. Royalties calculated on the basis of the volume of sales of the new variety are to be paid into a fund that will be used to finance local community projects designed to foster the development, conservation and sustainable use of genetic farming resources.

The OAU legislation does not merely regulate access to biological resources. It also defines a system to protect the intellectual property rights of breeders of new plant varieties. The wording of the law meets the requirements of the agreement on the Trade-Related Aspects of Intellectual Property Rights (Trips). That international agreement, signed at Marrakesh in 1994, requires countries belonging to the World Trade Organisation to introduce a system to protect those rights. Article 27.1 provides that patents shall be available for any inventions, whether products or processes. The WTO allows member states to exclude plants and animals other than micro-organisms from patentability. However, it requires them to provide for the protection of plant varieties either by patents or by an effective sui generis system (that is to say a system appropriate to their particular circumstances) or by any combination thereof.

Although the sui generis system defined by the OAU assures the protection of breeders' intellectual property rights, it is much less exclusive than the patent system. Unlike that system, it allows farmers to save part of their harvest to use in the following year without having to pay any fee. That is the farmer's privilege. The variety in question may also be used freely and without charge as a genetic resource in research for the purpose of breeding new varieties. That is the research clause.

The sui generis system proposed by the OAU is thus much better suited to conditions in Africa than the system of patents or the breeder's right supported by the Union for the Protection of New Varieties of Plants (Upov), another sui generis system to which some 40, mostly western, countries subscribe (see box). Farmers in the industrialised countries, who are highly sophisticated in technical matters, are in the habit of buying their seed every year from seed-merchants. In Africa, on the other hand, the vast majority of small farmers have neither the technical knowledge nor the financial means to buy seed for planting, so they save some of their harvest for use in the following year. For them, the farmer's privilege is a vital necessity. Moreover, in the developing countries the task of breeding and improving seed still falls in the great majority of cases to the farmers themselves or to small seed- merchants or public research institutes, rather than the big conglomerates on which farmers in the North depend. Hence the importance of keeping a strong research clause.

It remains to be seen whether this sui generis system will obtain the WTO seal of approval. The African countries intend to take advantage of this year's review of the Trips agreement to secure amendments to the WTO agreement that will bring it closer to their model law. They are no longer content merely with the option of excluding plants and animals from patentability, allowed under Article 27.3(b). They want the WTO agreement to prohibit the patenting of all forms of life. In a communication addressed to the WTO secretariat (1), they suggest that the review process should clarify that plants and animals as well as micro-organisms and all other living organisms and their parts cannot be patented.

The African group is also seeking more guarantees that they will be allowed to introduce their own sui generis system. The group considers that the term "effective" used in Article 27.3(b) is still too vague. It wants the agreement to state that any sui generis law can provide for the protection of the innovations of indigenous and local farming communities in the developing countries and the continuation of the traditional farming practices, including the right to save and exchange seeds and sell their harvest. These views have met with hostility from many industrialised countries, first and foremost the United States. Their eventual aim is to get rid of the clause in the Trips agreement which allows the exclusion of plants and animals from patentability. In the meantime, they would like to obtain agreement at once that only the Upov breeder's right is to be recognised by the WTO as an effective sui generis system for plant varieties.

In the past two years the patent lobby with enthusiastic support from the US, the life sciences industry and the World Intellectual Property Organisation has spoken to all sorts of people and held endless meetings to persuade African countries to join Upov. Not without success. And Upov has managed to get the representatives of the French- speaking member countries of the African Intellectual Property Organisation to adopt legislation very similar to its breeder's right in the wake of the Bangui accords of February 1999. This legislation adopted in haste under pressure from the North is not in line with the OAU model law. There is strong opposition to it and most of the member countries of the African Intellectual Property Organisation have not ratified it.

In the face of the intellectual property steamroller, which seeks to extend and harmonise patents all over the world, the OAU draft law may appear to be a pathetic gesture. The countries of Africa are bled white, riddled with debt, and rent with internal dissension. Their representatives are often disregarded in international negotiations, left out of the WTO Green Room where all the serious discussions take place. Yet the political events of the past few months suggest that, on the contrary, the OAU is ahead of the game. Not just because it offers the whole continent a unique opportunity to work out a common position that it can use in the major international forums. But also because, in stipulating that patents on any form of life and on biological processes will not be recognised, it affirms a strong moral stand by African governments against a perverse current in international law that is running out of control. Since the US supreme court broke the taboo 20 years ago, by recognising the patentability of bacteria, the race for the control of exclusive rights to the products of biotechnology has been extended to living organisms and may eventually include human beings.

The OAU and the African group in the WTO consider that all forms of life ought to be excluded from patentability. That is in fact the only logical position. The genetic code is universal. Genetic engineering is breaking down the barriers between species, even between orders of being. The WTO would like to restrict patents to specific types of organism, allowing its member countries to exclude plants and animals

from patentability but not micro-organisms or, with certain reservations, plant varieties. But how is this to be done? Human genes can now be introduced into plants, the genes of bacteria injected into human beings. Everything is possible. Any attempt to reconcile industrial patent law with the free reproduction of life is doomed to failure.

* Journalist (http://www.multimania.com/pressepiges/)and consultant respectively, and joint authors of Plantes transgéniques, une menace pour les paysans du Sud, Editions Charles Léopold Mayer, Paris, December 1999.

(1) Communication of 29 July 1999 from the Permanent Mission of Kenya on behalf of the African group.

Translated by Barbara Wilson