Draft EU-Eastern and Southern Africa EPA
26 September 2006
TITLE: Economic Partnership Agreement between Eastern and Southern Africa and the European Community - Title VI - Intellectual property rights
REFERENCE: 4th Draft EPA/8th RNF/24-8-2006/
DATE: 24 August 2006
URL: The full text of the entire draft EPA (it is just a draft) is online at http://www.bilaterals.org/article.php3?id_article=6014.
Comment from GRAIN
The European Union is negotiating Economic Partnership Agreements (EPAs) with six regional blocs of African, Caribbean and Pacific Island states pursuant to the Cotonou Agreement of 2000. Negotiations on these EPAs are supposed to conclude before 31 December 2007, for entry into force on 1 January 2008.
The EPAs are free trade agreements (FTAs) aiming to liberalise the economies of former European colonies through a package of direct commitments to, and assistance from, Brussels.
A recent draft of the EPA between the EU and 16 Eastern and Southern Africa countries* gives a taste of what these treaties might spell out in terms of rights to local biodiversity and traditional knowledge. The chapter on intellectual property rights (IPR) endorses the patenting of genetic material (including human genes) and indigenous knowledge from Africa by European companies through a consent-and-compensation procedure. This is meant to "protect" Africa from "biopiracy". If the 16 African governments sign onto this, patenting life would now be okay for them, after years of political struggle against this principle and despite their own African Union model law prohibiting it.
Worse, the draft EPA frames rights to African biodiversity and traditional knowledge as "intellectual property". In a briefing published by GRAIN earlier this year, we showed that all North-South FTAs dealing with traditional knowledge do this. The proposal even extends this interpretation, for the governments that sign it, to the concept of Farmers’ Rights under the FAO International Treaty on Plant Genetic Resources for Food and Agriculture.
Farmers’ rights a trade issue? Traditional knowledge to be bought and sold as IPR? Patents on life ok, as long as you pay? And all of this hammered out behind closed doors, far away from the rural communities who are the stewards of Africa’s biodiversity and stand nothing to gain from it being sold off to European corporations as intellectual property!
ESA trade ministers meeting in Mombasa this week with EU negotiators say that they want an EPA that is "comprehensively pro-development and in our interest". If that is the case, these proposals on intellectual property rights would take them profoundly in the wrong direction.
26 September 2006
(*) Burundi, Comores, Democratic Republic of Congo, Djibouti, Eritrea, Ethiopia, Kenya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Uganda, Zambia and Zimbabwe.
Ref: 4th Draft EPA/8th RNF/24-8-2006/
ECONOMIC PARTNERSHIP AGREEMENT BETWEEN EASTERN AND SOUTHERN AFRICA COUNTRIES ON ONE PART AND THE EUROPEAN COMMUNITY AND ITS MEMBER STATES ON THE OTHER PART
INTELLECTUAL PROPERTY RIGHTS
Scope and Coverage
1. For the purpose of this Title, intellectual property covers copyright and related rights; industrial property rights; plant breeders rights; rights to traditional knowledge, folklore and genetic resources; and other rights recognised under the TRIPS Agreement and CBD and the International Agreement on Plant Genetic Resources
The objectives of cooperation in intellectual property rights shall be:
1. To ensure availability of legal, institutional and human resource capacities and policy frameworks for the protection of intellectual property rights whilst respecting and safeguarding public policies of ESA countries
2. Ensuring the economic development and social expansion of an ESA Country economy is not hampered by a restricted application of international and bilateral obligations in the area of intellectual property rights,
3. Ensuring the implementation of the flexibilities as are provided under the TRIPS Agreement and CBD and the International Agreement on Plant Genetic Resources
4. To facilitate technology transfer amongst the parties and especially to the ESA countries
5. To ensure adequate and effective protection of genetic resources, traditional knowledge and folklore of ESA countries and prevent bio-piracy
6. To ensure that the legitimate interests of the ESA countries are safeguarded
7. To provide for enhanced incentives for the development and research into new technologies especially in pharmaceutical products, including the production of generic medicine.
8. To ensure that claims of ownership of seeds and plant products cannot be transferred onto similar natural resources endemic to the ESA region
9. To provide support for the development and research to identify geographical indications on products of ESA countries. In the case of livestock this will include the Breed Characterisation Inventory
10. To grant legal protection to geographical indications identifying products of ESA countries in both the Community and among ESA countries
Areas of Cooperation
1. The Parties shall strengthen their cooperation in all areas of intellectual property, including in the following areas:
- a) the availability of legal, institutional and policy frameworks necessary for the implementation of the TRIPS Agreement whilst respecting the flexibilities therein, and the CBD and the International Agreement on Plant Genetic Resources
- b) the establishment and reinforcement, including training of personnel, of national and regional intellectual property offices dealing in intellectual property matters
- c) a fair compensation for the intellectual property holder while at the same time giving due consideration to the interest of the general in particular taking into account the needs and level of development of ESA countries.
- d) effective protection of ESA countries genetic resources, folklore and traditional knowledge and bio piracy;
- e) in granting patents utilising genetic resources from ESA countries, the EC and its Member States will require the disclosure of origin and proof of prior informed consent of the indigenous community concerned and equitable sharing of benefits; where a genetic resource is derived from a genetic material of an individual and the rights conferred by this paragraph are conferred on that individual
- f) Exploitation of genetic resources from ESA countries by EU shall take due regard to the principle of prior-informed consent to ensure indigenous communities holding such genetic resources benefit from such exploitation.
- g) prevention of abuse of intellectual property rights by their holders
- h) Creation of awareness on IPR through an information exchange system with the aim to update each other on IPR development on time
2. EU shall support ESA countries to enable them benefit from the relevant provisions of the WTO Agreement on TRIPs and the in-built flexibilities especially with regard to public health, including access to pharmaceutical products at a reasonable price;
3. EU shall support ESA countries to enact appropriate laws, formulate policies and develop infrastructure for local production of pharmaceutical products, transfer of technology and the attraction of investment in their pharmaceutical sectors;
4. The EU shall provide incentives to enterprises and institutions in its territory for the purpose of promoting and encouraging technology transfer to ESA countries in order to enable them create a sound and viable technological base.
1. The implementation of this Title shall be reviewed after 5 years as from the date of signing this agreement. Such review may also include any relevant new developments that might warrant modification or amendment of this Title
2. In order to facilitate the implementation of this Title, EU shall provide, on request and mutually agreed terms and conditions, technical and financial assistance in favour of ESA countries.
1. For the purpose of this Title the ESA-EU Committee on IPRs shall be established.
2. The IPR Committee shall be composed of technical representatives of all Parties and shall report to the joint ESA-EU Committee on Trade Cooperation.
GOING FURTHER (compiled by GRAIN)
"African states warn EU on trade talks", The East African Standard, Nairobi, 26 September 2006.
GRAIN in collaboration with Dr Silvia Rodríguez Cervantes, "FTAs: Trading away traditional knowledge", March 2006, 16 pp.
Cotonou Agreement, Article 46, Intellectual Property Rights (signed 23 June 2000).
Greens / EFA Group in the European Parliament, "Drop the BioPiracy Clause, Lome Ministers Urged", press release, Brussels, 2 February 2000 (BIO-IPR, 22 February 2000).