TRIPS and the Philippine Experience

Whose intellectual innovations, whose properties and whose rights?


This year commemorates the 10th year of our country’s accession to the World Trade Organization (WTO). It is timely that the Third World Studies Center (TWSC) is organizing a series of lectures assessing the impact of the WTO on the Philippines. In the life of a nation, ten years may be too short a span of time to fully comprehend the historical impact of a single event. In the life of an ordinary person, ten years may be too long a time to experience and endure the consequences of any event for that matter.

Since our joining the WTO, there have been a million and one analysis, opinions and critique regarding the impacts and implications of the Treaty on our national life. Most of these however have dwelt upon the more high profile political economic effects of the WTO brought about by trade liberalization and consequent policies of State sector privatization and market deregulation. One less discussed issue however, but which has major implications to all of us here, but especially to Filipino farmers, is the WTO provision on Trade Related Aspects of Intellectual Property Rights (TRIPs). TRIPs is the governing provision with regard to IPR issues for all WTO member States. TRIPs itself covers several sectors of the economy, such as industry and manufacturing, pharmaceuticals and living organisms. This paper however will focus on the aspect of TRIPs that deals with IPRs on living organisms, namely Article 27.3(b). The paper will first look at the key elements of said article and then look into its legal translation in the Philippines and compare it with similar legislation adopted by Thailand.


The TRIPs provision


Article 27.3(b) states that:

“Members may also exclude from patentability:

plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system nor by any combination thereof.”

What this essentially means is that a WTO member country may or may not adopt a system of patent for plants and animals, but for plant varieties it is obliged to adopt either a patent system or a sui generis system. Prior to the WTO, hardly any system of IPR laws have been mostly in place in the form of patents or plant breeders rights, or so-called plant variety protection laws.

As early as the 1960’s, developed countries established an international treaty called the Union for the Protection of New Plant Varieties (UPOV), which harmonized plant variety protection systems in member countries. The UPOV itself has undergone a number of versions, the last of which was adopted in 1991. It is important to note that UPOV had been pushing for its own model as the “effective sui generis system” that can be adopted by developing countries in compliance to Article 27.3(b). However, UPOV has been criticized for being mainly a protection system for plant breeders’ rights that consequently restricted the rights of farmers over the use of seeds. While UPOV may be applicable in industrialized countries with predominantly corporate agriculture, it is not necessarily so in developing dominated by small-holder cultivators who largely depend on farm-saved seeds and traditional modes of seed exchanges.


PVP Act of 2002


Pres. Gloria Macapagal Arroyo signed into law Republic Act No. 9168, otherwise known as the Philippine Plant Variety Act (PVPA) on 7 June 2002. The signing of the law did not elicit much public attention but the process on how the law was formulated and its substance became embroiled in some controversy later on. It was learned that one of the key influences in the passage of the law had been a program of the US Agency for International Development (USAID) called Accelerating Growth, Investment and Liberalization with Equity (AGILE). AGILE was aimed at providing ‘technical assistance’ to Philippine departments and agencies in the formulation of policies, especially in line with the thrust of economic liberalization. Through a consultancy firm called Development Alternatives, Inc. (DAI), AGILE was reportedly involved in the crafting of several policies adopted by the government, the PVP law being one of them. Seeing this as “US meddling in Philippine affairs,” the Senate conducted investigations into AGILE-DAI’s activities in the country. Unfortunately, nothing seemed to have come out of those investigations though and the AGILE issue quietly slipped out of the public mind.

Nevertheless, it is instructive to take note of the US government’s role in the formulation of the country’s PVP law. The US government had never hidden its agenda of pushing for the adoption of higher IPR standards that conformed to its own system. At the beginning of the official negotiations leading to the WTO, the US already formed an Intellectual Property Committee (IPC), composed mainly of big business groups that helped the US to lobby for adoption of higher IPR standards in the treaty. The US had pushed for adoption of patents or at the very least UPOV-modelled system. Thus, in the case of the Philippines, with AGILE’s “technical assistance,” we adopted a PVP law that conformed largely to the UPOV. On the other hand, Thailand, which did not receive the same US assistance, came up with a much different PVP law, as we shall see later.

Moreover, the crafting of the PVP law did not undergo broad consultations with stakeholders that could have brought out the opinions and perspectives of different sectors, especially farmers and civil society groups. Public hearings were indeed conducted but they took place in Metro Manila, and most of the participants came from government agencies, academe and public research institutions, and from the seed industry. There were very few representatives from civil society and farmers’ groups, who later on complained that their recommendations were never taken on board in the final version of the law.


PVPA Salient Features


The PVPA defines breeder as the “person who bred, or discovered and developed a new plant variety.” It is possible to interpret this definition broadly to include farmers who have been breeding, discovering and developing varieties for generations, thus allowing them to likewise apply for plant variety protection under the law. However, a narrower interpretation of the definition will confine the term to institutional and commercial plant breeders who use more scientific methods of breeding, discovering and developing varieties that conform to the standards set by the law. Indeed, if one takes into consideration the other provisions of the law it becomes clear that it is not the “farmer as breeder” that the law has in mind but the institutional and commercial breeders who have the capacity and resources to comply with the stringent requirements and standards of the law.

Overall, we note other features of the law that stack the odds against farmers and restrict their rights to seeds. Among them:

• First to file rule: The law favors the person who is the first to file for a PVP application and places the burden of proof on those who wish to challenge the claim. In this case, farmers would be at a disadvantage when one of their varieties is misappropriated and filed for PVP protection by another person on the basis of having been “discovered” by the latter. As we know, farmers lack access to information with regard to government laws and procedures and simply do not have the resources to assert their claims under the existing legal framework. We all know about cases of so-called biopiracy in which biological resources were claimed, patented and commercialized by the persons or companies to the detriment of source communities and countries. Without any protection for farmers’ varieties, the PVP law makes it possible for farmers’ varieties and genetic resources to be legally mis-appropriated from them.

• Filing and varietal testing requirements: The requirements and standards for filing a PVP application are complicated and tedious enough that no ordinary farmer would contemplate availing of the protection under the law. The filing fees and other expenses to meet the law’s requirements are certainly way beyond what farmers can afford. Only institutions and seed companies have the capacity to do so.

• Essentially derived varieties: The protection provided under the PVPA extends to varieties considered essentially derived form the protected variety. Essentially derived varieties refer to varieties that have been developed from an original material and expresses many of the same traits from the latter. This type of protection in effect discourages further breeding and improvement of varieties, which is a common practice among farmers when they use a new variety. Farmers would either do selection from an existing population or use the variety for breeding in order to develop more adapted varieties. Under the PVPA, this is a prohibited act and criminalizes farmers who do improvement and breeding on protected varieties. So rather than spur innovation and improvement in plant breeding, the PVPA restricts this important aspect of agricultural development, and not only in the case of farmers but also for scientists who may want to create new varieties out of protected varieties but are burdened with the prohibition against essentially derived varieties.

• Restrictions on farmers’ rights to seeds: The PVPA supposedly recognizes the traditional rights of farmers to save, use and exchange seeds. At the same time however, it places several conditions and restrictions on these rights when it comes to protected varieties. In general, the law provides that farmers may save, use, exchange, share and sell seeds of protected conditions only under the following conditions:

a. the sale is not for the purpose of reproduction under a commercial marketing agreement
b. the exchange or sale of seeds among and between farmers is for reproduction and replanting in their own land; and,
c. The sale does not involve the trade name or trademark.

Prior to the PVP, a farmer would not have any problems using a plant variety in whatever way he or she does. With PVP however, the farmer is forced to walk a narrow line between what is allowed and what is prohibited by law, therefore placing a virtual “Damocles sword” over him or her. It is farmers’ practice, and part of his or her means of livelihood, to exchange and sell seeds to other farmers. The PVP however restricts such a practice and therefore potentially deducts from the income generating activities of our already impoverished farmers. More importantly, the law goes against farmers’ rights, which is essentially a recognition of the important historical role of farmers in the conservation and development of plant genetic resources over generations. On the other hand, it protects the rights of plant breeders, who in the first place have made use of farmers’ indigenous varieties for their breeding activities without any restrictions whatsoever from the source communities or farmers. The Philippine law in fact does not provide for any benefit-sharing mechanisms to farmers in cases where a protected variety is derived from materials originating from farmers or local communities.


The Thai PVP Law


In essence, the PVPA is patterned after the UPOV system which protects and strengthens plant breeders’ rights while restricting the traditional rights of farmers to the seeds. How this came about had much to do with the role of USAID-AGILE that greatly influenced the drafting and legislative process contrary to what would have been a genuine sui generis process that considered the realities and conditions of Philippine agriculture especially our farmers. On the other hand, Thailand did not experience the same external intervention and came up with PVP legislation that took into account Thailand’s agricultural conditions and veered away in several aspects from the UPOV model. Among the important differences with our PVP law are the following:

• Protection for locally-developed varieties: The Thai law allows a community to seek protection for varieties that have been conserved or developed exclusively by the said community. The variety also does not have to confirm with the stringent standards set by UPOV for new plant varieties although the guidelines for the criteria have still to be developed. Nevertheless, this is an important provision that recognizes the need to protect local and farmers’ varieties. The Philippine PVP law does not provide for the same kind of protection.

• Benefit sharing: The Thai law provides for benefit sharing in cases where a variety applied for protection for commercial purposes is derived from local varieties. The benefit sharing agreement will be entered into by the breeder and the community from which the protected variety is sourced from. The Philippine law does not have that mechanism, which makes it possible for plant breeders to exploit the genetic resources of local communities without the need to share the benefits derived from commercialization.

• Scope of plant varieties: The Thai law provides that the Minister of Agriculture and Cooperatives can designate any particular type of plant as a new plant to which protection if to be afforded. Thus, Thailand opted not to automatically provide protection for all plant species except those designated by government from time to time as eligible for protection. This approach to protection of plant varieties is a far better option as it allows authorities to designate only those species that need to be protected taking into consideration the priorities and needs of the country. No such provision is in the Philippines thus placing all plant species, including seaweeds, as subject to PVP coverage. We do not have the flexibility of exempting certain plant species from PVP protection even when the national interest dictates so.

Clearly, Thailand went through a different process of crafting and passing its PVP legislation where there was broader participation of different stakeholders and without foreign policy interference as in the case of the Philippines. Although the Thai law leaves much to be desired in terms of recognizing and protecting farmers’ rights, it offers much greater flexibility and is more attuned to their domestic agricultural realities than the Philippine PVP law. It is much more sui generis than our own law can claim to be, which is essentially patterned after the UPOV upon the “technical assistance” of USAID-AGILE. We may add as well that India was able to pass an IRR law that explicitly provides for protection of farmers’ rights and varieties, something that the Philippine law falls tragically short of.


Conclusions


The Philippines had the opportunity to craft an independent and truly sui generis IPR system that would have recognized Philippine agricultural realities and provided adequate protection for small farmers, who remain the mass base of our agriculture. When we adopted the UPOV model of protection instead, we therefore lost that historic opportunity and placed our farmers under the threat of criminalization for exercising their traditional rights. Right now, there are more than 30 plant varieties that are being applied for PVP protection, including shallots (sibuyas), eggplant (talong), watermelon, coconut (niyog), yardlong bean (sitaw), tomatoes (kamatis), corn (mais), rice (palay), among others. Most of these applications have been filed by seed companies, and we expect more PVP applications to be made in the future. The consequences of these applications would be to establish monopoly control by plant breeders and companies over these plant varieties, restrict farmers’ use and control over seeds as basic means of production, and adversely affect household and domestic food production and security.

A growing concern right now as well, not only in the Philippines, but in other developing countries is that into IPRs are not only obligated by the WTO but are also being pushed and incorporated into bilateral trade agreements with developed countries, with industrial countries, such as the US, lobbying for higher standards of IPR protection, developing countries entering into these BTAs might end up enacting even more stringent IPR laws, such as patents, on top of or in addition to their PVP laws. The Philippines is right now negotiating a BTA with Japan and plans to enter into one with the US soon. We need to be vigilant and look into the IPR provisions of these agreements to make sure that they do not further endanger our domestic agricultural interests and the rights and livelihoods of our farmers.

What then are the options for our country’s farmers? For us and for our farmer-partners, the PVP and IPRs are definitely not an option, but a threat to their rights and livelihood. For farmers, it is now a matter of exercising and asserting their rights despite the PVP law. On the other hand, a number of farming communities are exploring local models of recognizing and protecting their rights to seeds and their plant varieties, using the power of local governments and the protection afforded by the principle of “prior art,” that is by declaring their plant genetic resources in the public domain. Different models of public declaration or protection of genetic resources are being developed by farmers and supporting legislative measures are being worked out and lobbied with local governments.

There is in fact a pro vision in the Intellectual Property Code (IPC) that mandates Congress to enact a community intellectual rights protection act meant to recognize and protect community and indigenous innovations and knowledge, including over biological resources. However, such a law has yet to be enacted although proposed bills had been submitted in the previous Congress. If government is seriously looking at the interests of our local farmers, and not only the breeders and seed companies, this is an avenue worth pursuing and farmers’ groups and civil society organizations might be wiling to invest their time and resources in a process that in the end will provide a means to recognize and protect their long-held rights, traditions and practices.