Mennonite
Central
Committee

Intellectual Property Rights: Key Issues Raised in Africa

By: Andrew Hough

Executive Summary

Key aspects of the biotechnology debate in Africa are the rules and agreements which govern the ownership of life. The debate on Intellectual Property Rights (IPRs) is important because it attempts to reconcile environmental, cultural and humanitarian values with developments in science, technology and economics in a political and legal context.

Many developing countries possess a wealth of biodiversity which has historically flowed freely between nations and individuals. In cases where seeds and plants have been moved and catalyzed economic industries or have been improved for commercial use no compensation has been returned to the communities which have been ‘keepers’ of that diversity. Interest in African biodiversity has been heightened by the rise of the biotechnology industry and international agreements which are increasingly allowing life forms and the process of modifying life forms to be patented.

The most intense discussions have resulted in response to the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. TRIPs requires member States to provide a system of patents or strong intellectual property regimes “For all inventions, whether products or processes, in all fields of technology” including agriculture.

African governments recognize that they have obligations to a world driven by science and technology, international agreements and the principle of free trade based on the free flow of information and knowledge. However, African countries believe that the ramifications of the intellectual property rights promoted by TRIPs will be negative and detrimental to its survival as a people and continent.

Africans object morally to TRIPs believing that “All forms of life are the basis for human survival, and, therefore, the patenting of life, or the exclusive appropriation of any life form or part or derivative thereof violates the fundamental human right to life.” Concerns relate also to the spirit of the treaty, the potential for international legal ramifications, the balance of national and private interests and the impact on the seed security of African farmers.

African countries are in the process of developing adequate legislation and alternative systems to meet the requirements of TRIPs while advocating for the exclusion of life forms from patentability. Within Africa there is divergence on which intellectual property rights regimes will be pursued and how they will impact research investments, limitations on farmers to save seeds and plant breeders’ protection.

IPR discussions are not new to Africa and the continent has long been aware of its biodiversity. Recent developments in the debate surrounding the ownership of life highlights the clash of values between the western model of agribusiness and realities in the developing world. Major questions remain to be answered and significant issues to be resolved as Africa strives to meet the needs of her people while existing in a globalized economy.

Introduction

The rules and agreements which govern the ownership of life are fiercely debated in Africa. The debate on Intellectual Property Rights (IPRs) is one of the most complex aspects of biotechnology in developing countries. This is because this debate attempts to reconcile values of protecting biodiversity, traditional knowledge, farmer seed systems and culture while dealing with developments in science, technology and economics in a political and legal context.

Many African countries are rich in biodiversity and have historically facilitated free exchange of seeds and plants. Where these seeds have been improved and sold, no benefits have been returned to farmers, communities or nations who have been ‘keepers’ of this diversity and associated knowledge. Interest in African biodiversity has been heightened by the rise of the biotechnology industry (pharmaceutical and agriculture) and international agreements which are increasingly allowing life forms and the process of modifying life forms to be patented.

The most intense discussions have resulted in response to the Trade-Related Aspects of Intellectual Property Rights (TRIPS), an agreement annexed to the agreement setting up the World Trade Organization (WTO). TRIPS Article 27.1 of this agreement requires Members to provide patents “For all inventions, whether products or processes, in all fields of technology”. Specifically, Article 27.3(b) allows Members to exclude from patentability plants and animals (but not microorganisms) so long as Members provide for the protection of new plant varieties using patents or an effective sui generis system, or a mixture of both (Tansey, 2000).

Ethiopia is the home of the Organization for African Unity (OUA) and has been a leader on IPR discussions and in preparing model legislation for African countries. In Kenya, the African Centre for Technology Studies was working extensively on IPR issues and is a leader in policy development issues within Africa. Having spent time in both of these regions, completing research for MCC on issues related to food security and biotechnology it is from these contexts that themes surrounding IPR issues in Africa are discussed.

African governments recognize obligations to a world driven by science and technology, international agreements and the principle of free trade based on the free flow of information and knowledge. However, it has difficulty accepting concepts and practices which are detrimental to its survival as a people and continent. Perhaps the most serious problem that Africans have with TRIPS is that it fails to recognize the rights of local communities to their traditional and indigenous knowledge and technologies. African countries are calling for the exclusion of all life forms and biodiversity from patentability. African countries feel they should develop suitable sui generis systems for the protection of plant varieties, indigenous knowledge and technologies and community rights consistent with national priorities.

This report expands on Africa’s key objections to TRIPs gathered through speaking with African scientists, policymakers and farmers and accessing proceedings of OUA IPR discussions. It provides an overview of actions African countries are taking in developing legislation, highlights areas of division and competing tensions in the debate. Personal comments are included and important questions raised.

Moral Objections to Trips

Patenting of life forms is unjust.

• Life forms are the common heritage of humanity and should not be owned by a specific individual or entity.
• “All forms of life are the basis for human survival, and, therefore, the patenting of life, or the exclusive appropriation of any life form or part or derivative thereof violates the fundamental human right to life.”(OUA Model Law, 2000)
• Plants form the backbone of crop production, plant breeding and ultimately food security.

Patenting of life forms is inappropriate for Africa.

• Dr. J.A. Ekpere, consultant to the OAU comments, “For Africa, there are grave consequences associated with the patenting of plant varieties. It has been argued that such patenting will place undue restriction on farmer’s practices, lead to genetic erosion, and adversely impact on research and development.”
• Dr. Tewolde Egziabher of the Ethiopian Environmental Protection Authority, argues that, “patents are for inventions derived by intellectual activity of the human mind. No living thing or part of a living thing, even a gene, has ever been invented, only discovered.” There could be some arguments for Plant Breeders’ Rights in order to reward the efforts of breeders, but those should not interfere with the rights of farmers to have control over their crops (Egziabher, 1999).

Rejection to Trips Based on the Script of the Treaty and Potential International Legal Ramifications

The TRIPS agreement was not negotiated.

• TRIPS was not negotiated by most countries as a discrete treaty but was rather part of a ‘take it or leave it’ compromise package decided on by a few countries at the end of the GATT Uruguay Round. African countries have not had the opportunity to “say yes or no to TRIPS with due consideration to other existing conventions.” This explains to a great extent the insertion of the review clause in the TRIPS agreement (Ekpere, 1999).

TRIPs is in conflict with other International Agreements

• There is a fundamental conflict between TRIPS and the Convention on Biological Diversity (CBD). Africa recognizes that TRIPS undermines the implementation of CBD.
• The CBD has recognized the important and central role of local communities, the TRIPs agreement of the WTO confers rights to companies and individuals and denies the rights of local communities (Johnson, 1999). African countries are calling for the inclusion of Community rights and Farmers’ Rights in TRIPS or desire for CBD to take precedence with its emphasis on conservation, sustainable use, and fair and equitable benefit sharing and its recognition of community rights and indigenous knowledge.

The inclusion of TRIPS as part of the WTO has ramifications for African countries

• TRIPS is one of the three pillars of the WTO, the others being trade in goods and trade in services. By placing IPRs in the WTO and making them subject to its binding disputes procedure, proponents of a strong IPRs regime have made it possible for non-compliant WTO members to face trade sanctions in any areas if they fail to live up to its rules (Tansey, 2000) .
• Dr. Noeleen Heyzer, Director of UNIFEM contends that, it is difficult for African Nations to speak out against TRIPs for fear of reductions in aid, trade and IMF/WB recognition.

Rejection to Trips Because Private Interests Could Supercede National Policies

S Africa recognizes the power of the Multinational Corporation

• The globalization of the world economy and the emergence of giant transnational corporations is shaping the development of countries in Africa. The economic potential of multinational corporations is in some cases greater than that of a group of developing countries (Kameri-Mbote, 2000).
• Many contend that it was industry coalitions who drafted the TRIPS agreement.

African countries believe that National interests should precede those of corporations

• OUA model legislation acknowledges that Countries and their peoples should exercise sovereign and inalienable rights over their biological resources and declares that the rights of their communities take precedence over rights based on private interests.
• Developing countries argue that enforcement of strong IPR protection will be too costly and that the costs are unlikely to be justified by inward technology flows. Rather increased IPR protection is more likely to lead to monopolization of markets by Western producers, resulting in expensive imports and a disincentive for local investment in R & D (Ringo 1994, cited by Stokes 1998).

Rejection of Trips Due to Historic Imbalances

Africans believe that they should gain a share from the benefits of the biodiversity, knowledge and technologies of African communities which are provided to northern corporations. Historically this has not been the case.

• African academics were highly aware of recent abuses of intellectual property rights by transnational corporations who are patenting biological resources of developing countries without recognition of community rights and benefit sharing.
• Enterprises in the US have been given Plant Breeders’ Rights over cowpea (Kenya) and teff (Ethiopia) (Egziabher, 1999).

Patented Materials

• Ormithopus sativus, a fodder crop (South Africa) has been patented in the US (Egziabher, 2000).
• Artificial sweetener, Thaumatin from Thaumatococcus clanielli (West Africa) has been patented in the US; Monellin, from Dioscoreophyllum cummunisii (West Africa) has been patented in USA and Japan; Pentandiplandra brazzeana (Central Africa) has been patented in USA; Richadela dulcifera (Ghana) has been patented in the USA (Egziabher, 2000).
• Phytolacca dodecandra (Ethiopia) has been patented in the USA as a molluscicide (Egziabher, 1999).
• Egziabher (1999), cites a study by the Rural Advancement Foundation International (RAFI) which estimates that Barley germplasm from Ethiopia contributes to the generation of 150 million USD per year to the USA alone.

Implementing laws which allow for the patenting of life forms (even with benefit sharing agreements) would create more opportunities for corporations to exploit the South.

• Cynthia Oh, of the Third World Network in Malaysia cites a UNDP study in 1999 which reported that only 3% of world patents are owned by inventors in the developing countries.
• As well, a survey completed by the Third World Network of the biotechnology patents showed that between 1990-1995 of the close to 25,000 patents granted, 37% originated in the United States, 37% Japan, 19% European Union, 7% from the ‘rest of the world’ including all developing countries.

Rejection of Trips Based on Perceived Negative Impacts

African leaders fear that TRIPS will hinder development within Africa.

• Ekpere (1999) cites a Trade workshop (Kampala, Uganda, March 4-19, 1999) of over 40 Senior trade policy officials from 21 Eastern and South African countries which criticized the TRIPS agreement. Officials cited potential severe adverse effects which included constraints on domestic technological development, barriers to technology transfer, monopolistic high prices for seeds, medical products and software.

TRIPS is likely to contribute to the privatization of agriculture and the centralization of research and seed supplies. Africans fear that TRIPS will erode seed security of farmers’ varieties which is foundational to African agriculture.

• Egziabher (1999) urges, “The only way out of the trap, and the best way to stay out of it to begin with, is to keep control of the seed and other agricultural inputs as decentralized as possible.”
• Egziabher suggests improving farmer’s varieties through participatory plant breeding, and through other ways of improving their breeding capabilities. In the modern agriculture sector for food production, use seed developed within the country, with ownership of seed resting in the public sector and make it always open for access by the small family farmers for improving their own farmers varieties.
• Even the sui generis option in TRIPs is pushing governments to give monopoly rights to the seed industry through introducing breeders’ rights legislation (Heyzer, 2000).

Overview of Compliance by African Countries

Several countries have complied or can comply to TRIPS on the basis of existing legislation: South Africa, Zimbabwe, Kenya and Ethiopia have existing laws on the protection of plant varieties and almost immediately can comply with the provision of Article 27.3(b). Other countries have legislation pending in Parliament for the protection of plant varieties (Zambia) but it is not known when this legislation will be enacted into law. However, the vast majority of African countries do not have appropriate legislation. This may range from countries having no patent laws, to those who have patent laws which need to be amended to make them consistent with the TRIPS agreements. (Source Ekpere, 1999)

Policy Options

According to the OUA, the preferred African response to TRIPS is to delay new legislation until the outcome of the relationship between TRIPS and CBD is determined. In the alternative, Africa suggests that, Article 27.3(b) should be reviewed to provide full and unconditional exclusion of all forms of biodiversity, be they micro organisms, plants or animal, from patent regimes.

Pressure exists for African countries to adopt UPOV 91 as their sui generis system. In February of 1999, 15 OAPI countries decided as a group to adopt UPOV 91 as a basis for compliance with Article 27.3(b) of the TRIPS agreement. However, there is division among African countries on their approach to UPOV, especially UPOV 91.

Most of Africa has opted for a sui generis option, arguing that the UPOV system is very similar to that of industrial patents. OUA has developed and is promoting its model legislation.

Discussion

IPR discussions illustrate the clash of values surrounding biotechnology. Values of indigenous and local communities, of equitable sharing of benefits arising from those communities and genetic resources according to Ekpere, “are currently being threatened by privatization driven by multi-national corporations and the unethical use of science and technical research through the application of western-style intellectual property rights on life forms. Africa’s response seems to suggest that these incursions are totally at variance with its tradition and culture, and therefore unacceptable.” In this context of opposing values is the reality of poverty and food security which is pervasive across Africa.

Commissioner of the Ethiopian Science and Technology Commission, Dr. Bulbula cites that as the Ethiopian society and economy is primarily agrarian, for any appreciable country development, growth in the agriculture sector is required. While Ethiopian Law does not recognize patents on life forms and Dr. Bulbula has stated that farmer seed systems must be preserved and farmers privilege must be protected, the Ethiopian government has adopted a strategy of agriculture led industrialization to increase performance in the agriculture sector. It is widely held that innovation is needed in African agriculture. But what kind of innovation is needed?

Ekpere (1999) comments: “Africa is very much in favor of science and technology and innovations derivable therefrom. The development of new technologies and the dissemination of innovations are indeed a desirable on-going process which must be supported by governments with appropriate rewards and incentives. But the type of protection of rights Africa needs are not IPRs monopolized through privatization, but rights that support local communities and enhance biodiversity for the benefit of humankind.”

Striking the balance between fostering innovations, intellectual property rights and public and private research will be very difficult. Especially given the lack of public research funds, the strength of the biotechnology sector and the trend and growing acceptance of agriculture research and extension directed by the private sector. Strong IPR regimes are perceived as necessary for the promotion of technological development and the transfer of biotechnology.

There is strong debate surrounding this assumption. Karembu et al. (2000) writes, “To stimulate local innovation and public/private sector collaboration, and to encourage investment from the north, clear national IPR regimes are indispensable.” While there is no empirical evidence to support this claim, some exists to suggest that weak IPR protection may act as a barrier to investment in and technology flows to some developing countries for some technologies (Mansfield, 1994, UNCTC, 1990, cited by Stokes 1998). Oh (1999) cites Kumar (1996) who concludes that according to a United Nations University survey of the current literature on Foreign direct Investment (FDI) and technology transfer that IPRs did not play a significant role in influencing the pattern of FDI and technology transfer. Karembu et al. (2000) also concede that, “In many developing countries it is often feared that strong IPR protection will hamper rather than promote in-country innovation, since most of these rights are granted to foreign institutions.”

IPR Discussions are not new in Africa. For example, in Ethiopia an April 1994 issue of the African Farmer featured an article on how various aspects of African biodiversity were removed by scientists (US scientists were highlighted in the article) and used for profit. One example cited was a barley gene conferring resistance to the yellow dwarf virus and the African soap berry, of which a derivative was patented and a product developed to manage molluscs which clog water pipes. The article contended that international patent laws were never intended for living material. African communities and scientists have been much more aware of these issues than their counterparts in North America.

Africa has long been aware of their biodiversity of which they possess a wealth of crop varieties and medicinal plants, flora and fauna. Johnson reports, “Realizing the need to protect and manage these resources, an African convention on biological resources was adopted in Algiers in 1968, well before the Rio Summit was held in 1992."

It is important to highlight that the OUA has done a lot of work on IPR and has done a tremendous job of coming together and drafting the legislation and raising consciousness within Africa on IPR issues.

Having visited academics in Ethiopia and Kenya, my perception is that concerns relating to IPR were greater and more widespread in Ethiopia. This is perhaps due to several factors: biodiversity is much greater in Ethiopia, Kenya is more open to multi-nationals and organization such as ACTS are much more positive towards advanced biotechnology. ACTS seems to be very much in favor of strong IPR systems, as an instrument to aid technology transfer and generate investment in technology.

Working to promote equitable solutions for Africans and their farmers will be a long and difficult process. Implementing legislation against patents may be the easy part. I foresee great problems of implementation and many questions remain. How do we define farmers? communities? innovation? knowledge? To whom is legal entity placed? Is this possible with a community? How is legislation to protect farmers varieties enforced at national and international levels? Where will funds for this enforcement come from at the national level?

Other themes which run through the debate on IPRs are differing perceptions of what science is and who is a scientist. Farmers varieties are frequently viewed as backwards compared to varieties improved by companies or research stations . In some cases improved varieties are only slightly modified from the farmers variety. After visiting the Utooni community in Kenya, I saw very clearly that Joshua Mukusya was indeed a scientist (albeit not in the formal sense) and that there was nothing ‘backward’ about his high performing maize.

For many developing countries does a strong IPR system make sense, even those promoting technological developments given their relatively small markets for protected innovations? There are certainly costs associated with developing IPR systems and human resources etc. I wonder if it is the fear of being left behind that is motivating many of these countries to implement strong IPR systems. It is unclear what is realistically going to happen if a country does not comply with TRIPs. Also to be considered is the patent application process. How stringent is a country in regard to examining the application for novelty, inventiveness and utility?

Another question has arisen through the examination of TRIPs: Why are microorganisms exempt from patenting in TRIPS while plants and animals may be exempted? It is my understanding, that the current genes used to transform genetically engineered Bt and glyphosate resistant crops are found in varying types of soil bacterium. Perhaps the strategy is “Patent the input, protect the output.”

Is TRIPS another form of colonization? It is worthwhile to consider if an IPR regime such as TRIPS is another form of colonization as those concerns have been raised in India and Africa. Egziabher, (1999) makes reference to the long history of unequal exchanges between Europe and Africa as a result of colonization, how colonialism shifted to globalization and that TRIPS could be just another unfair exchange for Africa.

Conclusion

African objections to patents under TRIPS are diverse and numerous. Ranging from the moral to the humanitarian and past and potential future impacts, African countries have realistic concerns. They are declaring loudly that living organisms should not be patented and the rights of communities should precede private interests. More work, study, communication and understanding are needed on these subjects. Major questions related to intellectual property rights need to be resolved as Africa strives to meet the needs of her people while existing in a globalized world.

References

Regional Workshop on Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and the Regulation of Access to Biological Resources. 1-5 November 1999. Addis Ababa, Ethiopia.

Ekpere, J.A.  Introduction to the TRIPs Agreement

Egziabher, T.B.G.  Major Issues in Biodiversity, Community Rights and IPRs.

Oh, C.  IPRs and Biological Resources: Implications for Developing Countries

Sese, L.  Explanatory Notes on Plant Breeders’ Rights

Heyzer, N.  Statement

Bulbula, A.  Statement

Kameri-Mbote, P. (2000) Biotechnology and Food Security in Africa: Some Policy and Institutional Considerations. A paper presented to the Consultation on Biotechnology and Food Security sponsored by the Mennonite Central Committee. Winnipeg, Manitoba October 13-14, 2000.

Karembu, M.G., Njuguna, M.M., Wanyangu, S.W., Conditions under which Private Agricultural Biotechnology Companies Contribute to Public Research and Development in Developing Countries: Experience from ISAAA Facilitated Projects. International Service for the Acquisition of Agri-Biotech Application (ISAAA).

OUA Model Law (2000). Rights of Communities, Farmers, Breeders, and Access to Biological Resources

Morris, M. and M.A. Lopez-Pereira, M.A. 1999. Impacts of Maize Breeding Research in Latin America, 1966-1997. Mexico, D.F.:CIMMYT

Stokes, K. (1998). Intellectual Property Rights and the Transfer of Biotechnology to Zimbabwe.

Acts Press.