Europe Joins Biopiracy Race With U.S.

by Dipankar De Sarkar

The directive was cleared by the European Parliament in Strasbourg May 7. It will put the right to patent life forms into European law for the first time, and bring Europe in line with the extensive freedom to patent for commercial exploitation already allowed in the United States and Japan.

For developing countries, this may give a free hand to Western multinationals to come and patent a variety of indigenous plants and seeds.

Meanwhile public health issues are raised in the Northern countries, as the granting of patents on life forms have encouraged many manufacturers to sell genetically-modified foods that some allege are not wholly proven to be without medical risk.

"Politicians and officials in Europe seem far more concerned about losing out to American and Japanese agri-businesses than the long term effect of such patents on developing countries," Dr. Biplab Dasgupta, a senior member of the Indian Parliament and an economist, told IPS in London last week.

The move, which began with India joining the World Trade Organization a few years ago, led to the controversial issuing of a patent on a Basmati rice strain, granted by the U.S. Patent Office to an American rice company, Rice Tec, in September 1997.

The long-grain aromatic rice is native to the Indian sub-continent and is a major item of export, fetching $313 million in hard currency for India alone last year.

However, Indian lawyers and scientists are said to be drawing up a challenge to the patent after successfully contesting a U.S. pharmaceutical patent last year on turmeric -- a tropical Asian plant whose aromatic root Is used both as an antiseptic and a condiment.

According to Indira Jaisingh, an Indian Supreme Court lawyer, in London to lobby against the directive last week, the European directive will affect developing countries ability to preserve their biological wealth and heritage. "What is at stake is our very right to life and livelihood," Jaisingh told IPS here.

The proposed patents directive has a long and troubled history.

First introduced in 1989 and thrown out in 1995, the first reading of the present version ended up with 35 amendments attached to it in July 1997.

However, the European Commission and the European Council of Economic Ministers accepted all the amendments bar just one -- the one against bio-piracy or life patents, according to campaigners.

It was approved by the European Parliament on May 7, in Strasbourg, France. It now goes to the 15 EU member states' respective parliaments for final clearance.

"The European Life Patent Directive is a deliberate and shameless attempt to disregard the concerns of the European public and it contravenes the Convention on Biological Diversity (CBD)," says the Gaia Foundation.

"The directive as it is now, wholly aligns with the U.S. position -- basically allowing patents on anything that lives," Gaia adds.

The way the directive contravenes the CBD, is through its definition of the term "invention," which has been stretched to allow the patenting of "discovery."

Such a move could mean, for instance, that a multinational corporation which "discovers" a strain of Basmati rice, which may have been grown for centuries by farmers in South Asia, could then pretend to have "invented" an "improved version" exactly as Rice Tec has done in the Indian case, campaigners say.

Based on the so-called "invention" -- a process of refining and improving that local farmers have been doing each season for each season for centuries -- the company can then seek a patent, which the developing source-country must then challenge.

"Basmati is a clear demonstration of how corporations are extending their private rights into the collective domain, appropriating both indigenous traditional knowledge and genetic materials" Gaia says.

The directive seeks to extend the powers of the WTO's Trade Related Intellectual Property Rights (TRIPS) Agreement which presently allows patents on plants and animals to be excluded.

Aligning European law with TRIPS also contravenes the CBD, critics say, and this according to many campaigners is where the real battle lies. Unlike TRIPS, the CBD recognizes states' sovereignty over their biological resources, TRIPS tries to introduce private individual rights over the same.

"All members states of the CBD and TRIPS agreements face an inescapable problem. Both treaties are legally binding for signatories, but their obligations pull countries in completely different directions," said a spokesperson for the London-based Genetic Resources Action International.

"This will create a very dangerous situation in global terms," says Rod Harpinson of the UK Genetics Forum. "The biodiversity of poor countries has always been under a massive threat by corporations and institutions such as gene banks from rich Northern countries. This directive will legalize that theft."