WIPO was the place where international discussion and negotiations about IPRs were held—until TRIPS. Under WIPO countries were free to sign onto each of the various agreements individually. But all this changed for most countries in the mid-1990s when the WTO was set up as a result of the Uruguay Round of trade negotiations. Countries had to sign up to all the agreements negotiated in the round, one of the most controversial of which was the TRIPS Agreement.

TRIPS was born out of the interests of big business. A handful of corporations and lobbyists drawn from the life sciences, information, and communication industries were responsible for crafting its terms and pushing, via various developed-country governments, the agreement through the Uruguay Round and into the WTO. Most notable among these was the United States, where the debate about the need to strengthen the IPR regime was couched in terms of ensuring and maintaining US competitive advantage in the global system. This is hardly surprising since the US economy is by far the biggest winner of all out of the license, royalty, and other fees from IPRs—in 1995 alone the balance in favor was US$20.7 billion.

TRIPS changed the IPR landscape by extending IPRs to many more countries. Every WTO member—and so far there are over 140 with another 30 or so queuing up to join—must adopt its rules. The least developed countries, however, have an option to extend the time when they must do so beyond the current expected date of 2006. TRIPS not only creates minimum standards of intellectual protection that all WTO members must recognize, but it also requires states to make institutional procedures available so rights holders can enforce their IPRs. This and the binding procedure for regulating disputes between states concerning their obligations were key elements to those pushing for the agreement. Thus, unlike in WIPO, there is now an IPR enforcement mechanism in TRIPS that could lead to trade sanctions against countries failing to adopt these new rules.

No longer are developing countries free to follow the approach taken by the developed countries in their development, mixing and matching IPRs and rules to suit their needs. Indeed, developing countries argued that IPRs did not belong in the WTO, and while most were not fully aware of the implications of TRIPS, the handful that were, notably India and Brazil, fought strongly in the late 1980s to keep IPRs out. They failed but did get some concessions giving members a degree of flexibility in operating their IP rules in the seven areas covered by TRIPS—copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits, and undisclosed information.

Patenting Life

One of the most contentious areas concerns exceptions to patent rights. WTO members are required to ensure that “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step, and are capable of industrial application.” Some nations, such as the United States, wanted no exception to this formula, but others were strongly opposed, for example, to granting patents on life forms or medicines.

A compromise gives WTO members discretion about whether or not they allow plants, animals, and biological processes for the production of plants and animals to be patentable. However, members must provide patent protection for micro-organisms and non-biological and microbiological processes for the production of plants and animals. Members must also either grant patent protection for plant varieties or provide protection by means of an effective sui generis system.

Confused? Not to worry: you are meant to be, and you are not alone. The final language was open to various interpretations—and, in fact, no terms are defined in TRIPS. This provides what some negotiators call “constructive ambiguity” and, as far as developing countries are concerned, some degree of flexibility. The whole issue of exceptions was up for review in 1999, but this has still not been completed due to continuing disagreements.

This whole area of policy-making is further confused and complicated by the range of governmental departments involved in separate negotiations in different realms—such as environment, agriculture, and trade—with too little coordination. Indeed, a recent report for the World Bank, titled “Why Governments Can’t Make Policy—The Case Of Plant Genetic Resources in the International Arena,” made exactly this point.

The current international IPR regime, unlike, for example, that in the environmental arena, has been developed by a small set of actors with relatively little involvement of civil society as a whole. These actors have been drawn mostly from the legal and industrial fields and, as “epistemic communities,” are very influential in writing the rules. This relatively small group represents the powerful corporate interest in having strong IPRs. Now there is growing pressure from a broadening range of groups to rethink the current regime, troubled as it is by a whole range of moral and ethical concerns over the extension of patents to life forms, their impact on food and biodiversity, and the way in which these international agreements are made.

Many religious and cultural traditions regard the extension of patents to living organisms as intrinsically wrong. In particular, the claim to human invention of living material violates the belief in a divine creator who gives the gift of life, which is rightfully the shared inheritance of humankind. Patenting of life forms “marks a significant further step in the larger process of the commodification of life” and the “reduction of the value of life and nature to the merely economic,” according to Donald Bruce of the Church of Scotland’s Society, Religion, and Technology project. Many groups worldwide are concerned that patents underpin a hasty development and application of genetic engineering in a field that risks disturbing a complex pattern of inter-relationships in the natural world that is still only partially understood.

Many opponents of patenting life forms see this as an inappropriate extension of private ownership rights to resources that should be or were previously held in common. Western IP regimes, as extensions of an individualistic culture, generally make no allowances for the protection of communal rights and intergenerational innovation that are the hallmark of many developing countries’ cultural traditions. Some countries, for example, Australia and Canada, have developed existing IPR legislation to protect indigenous communities’ knowledge, and WIPO is looking into this balance of interests further, but the framework of IPRs is itself still a problem for many indigenous groups.