[A2k] Draft EU-Eastern and Southern Africa EPA

Tue Sep 26 07:25:02 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 a=
t
http://www.bilaterals.org/article.php3?id_article=3D6014.
________________________________________________________

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.

GRAIN
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

TITLE VI
INTELLECTUAL PROPERTY RIGHTS

Article 64
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

Article 65
Objectives

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

Article 66
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.

Article 67
Implementation

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.

Article 68
Institutional Arrangements

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.

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GOING FURTHER (compiled by GRAIN)

GRAIN in collaboration with Dr Silvia Rodr=EDguez Cervantes, "FTAs:
Trading away traditional knowledge", March 2006, 16 pp.
http://www.grain.org/briefings/?id=3D196

Cotonou Agreement, Article 46, Intellectual Property Rights (signed 23
June 2000).
http://ec.europa.eu/comm/development/body/cotonou/pdf/agr01_en.pdf

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).
http://www.grain.org/bio-ipr/?id=3D169
particularly in developing countries. For more information about GRAIN,
please visit http://www.grain.org