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TRIPS is not anti-biodiversity, assures WTO chief

Following is the letter written by World Trade Organisation's secretary-general Mike Moore to Indian citizens on concerns about biodiversity and other issues.

"I am responding to the large number of letters that were forwarded to me signed by certain citizens of India and members of gram sabhas (village-level legislatures) on the subject of biopiracy and the WTO.

"In responding, I would first like to thank you for bringing your concerns to my attention. I would also like to emphasise that the WTO, by which I mean both its 134 member governments and the WTO Secretariat, is very conscious of the importance of the preservation of biodiversity and the contribution that the peoples of countries like India have made in this connection.

"However, I feel that your letters indicate some misunderstandings about the relationship of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to this matter.

"The TRIPS Agreement does not provide for the patentability of biological material in its natural state or for indigenous knowledge in the public domain. For something to be patentable, it has to be an invention, which includes meeting tests of novelty and inventive step. Thus, a foreigner should not be able to obtain a patent, either in India or another country, for such subject matter. If by mistake a patent is granted, it can be invalidated, as has indeed happened on several occasions.

"It should also be borne in mind that any patent granted in respect of an invention which uses genetic material only provides rights over the invention that has been made on the basis. It does not give rights over the underlying genetic material or traditional knowledge.

"Furthermore, it is important to recognise that the TRIPS Agreement allows members to exclude from patentability many plant and animal inventions as well as inventions whose commercial exploitation is prevented on the grounds that they are contrary to public order or morality, including detrimental to health and the environment.

"Therefore, we do not believe that it is fair to suggest that the TRIPS Agreement is in conflict with the provisions of the Convention on Biological Diversity which recognise the sovereign right of states over their biological resources and enshrine the principle of prior informed consent over access to genetic resources.

"The TRIPS Agreement does not address these matters and thus does not affect the freedom of governments to legislate on them in accordance with the provisions of the CBD, including by recognising the jurisdiction of local communities over the biodiversity in their areas.

"I should note that in the work underway in the WTO, not only in connection with the review of Article 27.3(b) of the TRIPS Agreement to which you refer, but also in the WTO Committee on Trade and Environment and in the preparatory process for the Ministerial Conference of WTO Members at Seattle, proposals have been made for the extension of WTO rules into the protection of biological diversity and traditional and indigenous knowledge.

"Since these are still proposals and have yet to be decided upon, I should say a word about the way decisions are taken in the WTO. Decisions are made on the basis of a consensus of all member-governments. Thus the decision to adopt the results of the Uruguay Round, including the TRIPS Agreement, was a consensus decision of the 125 governments participating in those negotiations, the majority of which were developing countries.

"The WTO now has 134 member-governments with a further 32 in the process of negotiating their accession to the WTO. The WTO practice would call for any decisions on the proposals to which I have referred to be made on the basis of a consensus among these member-governments. You will appreciate from this highly democratic decision-making process that it is not the Director-General of the WTO or the Secretariat of the WTO that can take decisions, this is the exclusive prerogative of member-governments acting collectively.

"I hope this information is of use to you."

India and the WTO

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