Monday, September 14, 2009

Norway takes high moral ground on IPR issues

Suman Sahai
Norway has become a more frequent destination of my travels in recent months than the other European countries that I used to visit more regularly. On a recent trip, I visited the permafrost Gene Bank in the Arctic region of Svalbard. This Gene Bank set up by the Norwegian government is termed the 'doomsday vault'. It is a place where seeds of major food crops have been stored in rooms cut out of an ice mountain. The doomsday vault is meant as a safeguard against catastrophes, a situation when so much damage has been inflicted on earth that agriculture and food production will have to start afresh

Most of my other visits to Norway were related to advocacy meetings with civil society organisations and members of the Norwegian government on issues relating to intellectual property rights (IPR). There is an ongoing bilateral trade negotiation between India and EFTA, the India-EFTA Free Trade Agreement, in which EFTA has made demands for stronger IPR protection than is currently provided by Indian legislation. EFTA, which is the European Free Trade Association, consists of Norway, Switzerland, Iceland and Lichtenstein. It wants India to provide a higher level of protection for seeds (plant varieties), more specifically, the kind of protection that is contained in the UPOV contract of 1991.

India’s sui generic legislation on seeds, the Protection of Plant Varieties and Farmers Rights Act, has consciously kept away from UPOV style legislation because the latter does not have any concept of farmers’ rights. It just has breeders’ rights. Civil society groups in India have fought very hard since the Uruguay GATT Round introduced IPRs for seeds to craft a legal regime that has greater equity for farmers than the UPOV permits. This long-drawn battle saw three changes in the government in Delhi and two joint Parliamentary Committees, where issues were raised and heard from the seed industry, scientists and civil society. This process lasted about seven years, till 2001, when Parliament finally passed the law. The Protection of Plant Varieties and Farmers Rights Act grants equal rights to plant breeders and farmers.

In my meetings in Norway, I explained why the IPR demands made in the EFTA bilateral will hurt Indian farmers and Indian food security; why acquiescing to UPOV style legislation, especially the 1991 contract, which practically amounts to seed patents, will strike at the reliance of farmers as both seed producers and seed consumers. I also explained that not acknowledging farmers’ rights will be unjust, given the enormous contribution they have made to the creation, refinement and conservation of valuable crop diversity. During these meetings with government officials and civil society groups, I had the opportunity to explain the nuances of India’s farmers’ rights legislation and that the Indian law was the only one in the world in which farmers had legal rights.

It was, therefore, with great satisfaction that I read about Norway’s decision to withdraw its demands on the IPR part of the EFTA negotiation. The government of Norway, through its Ministry of Trade and Commerce, announced that Norway had withdrawn from negotiations on patent rights in the ongoing FTA. In her statement, the State Secretary of Trade and Commerce, Ms. Rikke Lind, said “we have chosen to withdraw from the negotiations. We have a different policy on this topic, compared to the other EFTA countries. It was not a major issue in recent negotiations, but in the agreement with India, it has turned out to be a serious problem.”

With this action, Norway has seized a high moral ground and taken a principled stand in not forcing an IPR position on India that goes beyond what was agreed in the multilateral platform of the WTO. How this plays out with the other EFTA members remains to be seen.

Switzerland is known to be aggressive on matters of IPR and there can be problems within EFTA later on with respect to a joint position. But for now, Norway’s position has been greatly welcomed by those working for an equitable IPR regime.

India should play a leadership role in reversing the trend of bilateral negotiations, especially in sensitive fields where claims are being made in excess of WTO commitments. The gains made in the EFTA negotiations are a good start. The next step will be to lobby with our own government to insist on the removal of a similar IPR clause in the ongoing bilateral negotiations with the EU. The original demand for a UPOV 1991 style IPR for plant varieties was made in the Free Trade Agreement (FTA) with the EU. EFTA really modeled its demands based on the EU bilateral negotiations.

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