[asia-apec 1374] URGENT: IPR ALERT

[Anuradha Mittal]

THE FAILURE OF WTO AT SEATTLE AND 
THE IMPLICATIONS FOR THE IMPLEMENTATION OF TRIPS

The Government of India is rushing in a series of Intellectual Property
Right (IPR) related legislation on grounds that these are needed to meet
the obligations under the Trade-Related Intellectual Property Rights
Agreement (TRIPs) of the World Trade Organisation (WTO) by 1 January 
2000.

These IPR legislation include:
Ø The Protection of Plant Varieties and Farmers' Rights Bill, 1999
Ø The Patent (Amendment) Act, 1999
Ø The Trade Marks Bill, 1999 
Ø The Copyrights Bill, 1999
Ø The Geographical Indications of Goods (Registration and Protection) 
Bill,
1999

However there are four reasons why the Government's rush to enact these
laws is not justified:

1. Many critical aspects of TRIPs are under review and the Government
should ensure that TRIPs is reviewed to guarantee protection of national
and public interest and implement national laws only after it has played 
a leading role in reshaping the TRIPs Agreement.   

All the countries of Africa have demanded a five-year delay in
implementation in TRIPs while these changes are effected. The date of 1
January 2000 as the deadline for implementation is itself under flux an
India does not need to rush to implement. As a member of WTO, India can
join the African countries in changing the implementation period. 

2. The collapse of the Seattle Round of WTO should be used by India to
increase its national sovereign space in shaping national legislation 
and national economic policies. 

3. The US which is the country applying the maximum pressure to 
implement TRIPs and had initiated a TRIPs dispute against India is 
itself going to vote on whether to remain a member of the WTO and 
whether to continue to pay dues to the Geneva-based organisation. There 
is therefore no justification in exaggerating the role and power of WTO 
internationally and in India's national affairs. 

4. Notwithstanding all the above the contents of the laws are 
anti-people and anti-national. The drafts have all gone way beyond the 
mandate of the TRIPs Agreement. 

******************

IPR ALERT ON PLANT VARIETY LAW

The Protection of Plant Varieties and Farmers' Rights Bill, 1999 
(Bill No. 123 of 1999) is ANTI-FARMER, ANTI-NATIONAL and will promote 
BIOPIRACY

THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Give effect to Article 27.3(b) 
of Part II of the TRIPs Agreement of WTO [Statement of Objects and 
Reasons, page 32,33 of Bill]	

HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS:
This Article of TRIPs is under review and is already being challenged by
India in the WTO and the Organisation of African Unity and the Central
American countries. These reviews are calling for fundamental changes in
Article 27.3(b) and a five year extension in implementation of TRIPs.
[Review submissions to WTO TRIPs Council] Given the ongoing rewiew aimed 
at changing TRIPs there is no justification to rush to implement the 
TRIPs Articles undergoing change.

THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Give an effective system for
protection of the rights of farmers [Clause 31]	

HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS:
The Bill openly promotes piracy of farmers' varieties such as Basmati, 
by failure to register and protect farmers' varieties, which account for 
80% of the seed used in the country. (Clauses 11 & 12)

It fails to recognise farmers as breeders whose collective and 
cumulative innovation through time has built the crop diversity that is 
the basis of food security and further breeding.  [Clause 2(j)]  

Clause 31 referring to "farmers' rights" is not a farmers' rights 
clause, since farmers' rights in IPRs laws are rights as breeders. The 
Clause merely refers to farmers as cultivators with a right to cultivate 
and sell farm produce, not to farmers as innovators or to farmers' 
inalienable right to save, produce and freely exchange seeds and 
propagative material.

It fails to grant protection to farmers breeding and farmers innovation 
in the form of community rights, which is the basis of "sui generis" 
laws being drafted around the world.

THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Give an effective system for
protection of the rights of plant breeders [Clause 2]	

HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS:
Exaggerates the rights of breeders (MNCs) to cover "discovery" of plant
varieties which amounts to license to pirate indigenous varieties. 
Nowhere in the world has discovery of varieties been the basis of 
granting IPRs. 

THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Provide for rights of the 
village or farming community [Clause 48]	

HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS:
The clause is not about the rights of communities to their inalienable
right to use, save, breed and exchange varieties and nor about the
protection of the community rights to collective innovation embodied in
farmers' varieties. 

The Clause assumes the rights will only belong to breeders (MNCs).The
original innovators, India's farming communities, will not have rights 
but might have a small chance of a small compensation through a highly
bureaucratised and arbitrary system spanning form local officials to
national Authorities through all the hierarchies of corruption and
bureaucratic decision-making.  

The fundamental rights of farmers and farming communities and India as a
nation to her collective intellectual and biological heritage are not 
being protected in this Bill. On the other hand cases where piracy 
occurs are being reduced to local conflicts in which the local 
bureaucracy (District Magistrate) is the ultimate arbitor. [Clause 
26(7)]

Clause 48 makes it very clear that the rights of communities as 
innovators will not be recognised since the arbitrarily fixed 
compensation as the bureaucracy "deems fit" will be deemed to be an 
arrear of land revenue [Clause 48(5)] not a royalty paid to farming 
communities as breeders by commercial entities. This is a clear evidence 
of a strategy to deny the intellectual contribution of our farmers 
through thousands of years and negate the "prior art" embodied in 
farmers' varieties to give far reaching monopoly rights to seed 
corporations. 

THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Encourage the development of 
new varieties of plants [Statement of Objects and Reasons] 	

HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS:
The Bill will encourage the pirating and monopolising of indigenous
farmers' varieties, and will increase the financial burden on farmers 
who are already indebted and committing suicides due to spread of costly 
and unreliable seeds. 
 
**************

IPR ALERT ON TRADE MARKS LAW

The Trade Marks Bill, 1999 (No. XXXIII of 1999) is a draconian 
legislation that limitlessly enlarges the scope of trade marks and their 
infringement, creates unaccountable structures of power and decision 
making, shifts economic acts from a civil domain to a criminal domain 
and offers no protection to the citizens of India either as producers or 
as consumers. The Bill will have far-reaching consequences for the 
manufacturing and services sector in the country, both in the organised 
industrial sector and in the informal cottage industry sector.  

The issue of trade marks is not just a technical issue of the use of 
signs, words and symbols. Intellectual Property Rights (IPRs) like trade 
marks are primarily a market instrument and a form of economic policy. 
The shape of the trade mark legislation is therefore a reflection of the 
economic policy that this government is promoting, and it determines 
which economic actors will have protection and control over markets and 
who will be excluded.  

This Bill needs to be redrafted because it fails the test of democratic
criteria and the test of economic criteria of protecting the livelihoods
and markets of millions of small producers of goods and providers of
services in India. It is blatantly against the Constitution of India,
especially the protection of fundamental rights of citizens, in terms of
far reaching changes introduced without adequate reflection or 
democratic participation.  

This Bill is a mode of political control and social accountability 
systems for curtailing the commercial malpractice by corporations. The 
Bill enlarges the subject matter of trade marks from "goods" to "goods 
and services". Since the large multinationals are engaged in the 
production and distribution of both good and services, this enlarged 
coverage is both necessary and desirable for them. However, in terms of 
interests of the Indian society, the joining of goods with services in 
trade mark law is neither necessary nor desirable.

The scope of trade mark law has also been expanded in the definition
"infringement" as in Clause 29 of the Bill.  The scope of infringement 
has been taken beyond the commercial domain into the democratic space of
citizens.   If such clauses are not deleted from the bill these can be 
used by the MNCs to silence all citizen actions against them. It thus 
curtails the civil liberties of citizens. Such clauses sound the death 
knell for all environmental movements, all consumer rights and awareness 
movements and the foundation of democracy itself. 

In this bill, infringement has been expanded to include not just
deceptively similar but similar marks, [Clause 29(2)(b)], similar goods 
or services, [Clause 29(2)(a)] and even goods similar to those for which 
the trade mark is registered,  [Clause 29(4)(b)].

The scope of infringement is even taken beyond the commercial domain 
into the democratic space of citizens through Clause 29(8) and Clause 
29(9). Clause 29(8)(c) quite clearly is not related to the activities of 
the traders but to citizens' action.  Clause 29(9) so delineates 
infringement so as to bring within its ambit, apart from printed and 
written words per se, the spoken use of these words as well as their 
visual representation and reference. There is no way the Fundamental 
Right to the freedom of speech can survive such sweeping powers in the 
hands of corporations who want to use trade mark laws not just to 
monopolise markets but to use them to monopolise the very political 
space of civil society by silencing democratic movements for corporate 
accountability.  

Another major shift towards lack of democratic functioning and public
accountability proposed through the 1999 Bill is the criminalisation of
civil offences. This Bill has added a new Clause vide Clause 115 which
makes trade mark infringement a cognizable offence. In addition this 
Clause gives arbitrary power to police without cases of violation; 
likely to occur". Clause 115(4) states that any police officer, if 
he/she is satisfied that any of the offences referred to in sub-clause 
(3) has been, is being, or is likely to be, committed, search and seize 
without warrant the goods, die, block, machine, plate, other instruments 
or things involved in the offences, wherever found. These far-reaching 
arbitrary police powers have no place in a democracy; they are a part of 
the economic arsenal being built to declare economic warfare against the 
people of India in the name of IPRs. 

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