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Canadian Lawyers for International Human Rights

Saturday, February 18, 2006

Rapporteur Examples

These are some examples of what we are looking for in terms of reports on the speakers. We would ask that you use the third person to report on the speeches. Do not worry about catching every word in the summary. We are trying to produce accurate and readable summaries of the speeches. The goal is to produce a summary of approximately 5-10 pages double spaced (5 is fine the more concise the better). The examples below provide some ideas on length and tone. You can refer to the presenters as, for example: Tim Brown, University of Ottawa, focused his discussion on the issues of compensation for torture victims. He went on to say…

Please send your reports as soon as possible. The earlier you do them the easier it will be for you. You can send a draft to me before March 10. The final copy is due on March 15. We need the submission in Microsoft Word format. Use headings where appropriate. Please spell check and proofread as best you can. Feel free to contact the presenters so that you can clarify and issues.

You will all get credit for preparing the summaries. The best writers will be asked to help edit the final report and will get credit as editors. We appreciate all of your help.

Feel free to email: Tim Brown.

Thanks Tim Brown and Kristal Low

Summaries all prepared by Sean Bawden for the Right to Food Conference. Copyright remains with Sean Bawden.

Rebecca Bratspies

“Sharing the Wealth – Access To Genetic Resources in the Age of Biotech”

What does “property” mean? Who is entitled to define it? And what biases are embedded in the choices made in answering those questions? While Professor Rebecca Bratspies usually focuses her research and attention on the regulation of genetically modified organisms (“GMOs”) her attempt, being on the last panel of the conference, was to summarize and associate some of themes adduced earlier in the conference.

To begin her talk, Professor Bratspies offered a precursor question: What might, or what might not, “Food Security” mean, especially in light of the newly developed agricultural processes and biotechnology.

To answer that question Professor Bratspies proposed to look at the legal idea of property. The idea, depending on how it is defined, can potentially provide or undermine the right to food security. The commonly held conception, at least within North American governments, is that legal property rights can promote prosperity. Professor Bratspies’ focus is on the rebutting that presumption. Her position is that property rights, and intellectual property rights in particular, can, although not necessarily, decrease food security. And, with the spread of intellectual property rights throughout the developing world, the threats posed by poorly-defined property rights grow more apparent.

In contextualizing her discussion, Professor Bratspies noted that, agriculture, and a strong agricultural sector, can be among one of the most effective tools for poverty eradication. But a question that remains: what role, if any, should biotechnology play in contributing to a strong agricultural sector? In answering that question one should be reminded that agricultural biotechnology encompasses far more than simply GMOs. “Biotechnology” includes such things as tissue-culture techniques, gene sequencing and marker-selective breeding, all of which have already been adopted around the word and are purported, at least by their commercial manufacturers, to be making a significant positive contribution to food production. Thus, any conversation about the role of ‘biotechnology’ must be broader than simply one concerning the planting of genetically modified crops. And, despite the massive agricultural footprint being left by biotechnological advances, including threats to biodiversity, Professor Bratspies thinks it inappropriate to simply reject biotechnological foods and methods.

In summation of her introduction, Professor Bratspies made the assumption that biotechnology likely will not vanish in the near future, although she is not convinced that it necessarily should. Her position is that only by facing the threats posed by legal property rights, can one ensure that these technologies advance rather than detract from the problems of food security.

In beginning the substance of her presentation, Professor Bratspies intends intellectual property rights as manifested in biotechnology to serve both as an emblem of ownership, and as a vision of property

Currently a handful of large, multinational, agro-food companies with very solid property rights tout the benefits of biotechnology, while at the same time seeking to include within their bundle of rights the power to prevent farmers from saving seeds. And, as has been demonstrated throughout the conference, of course they are being very successful in their pursuits. Thus, while intellectual property was once a relatively quiet portion of the law, the stakes for both producers and consumers have grown dramatically.

There a number of issues that require attention within the sphere of biotechnology, and the right to food, such as technological threats, the conflict between the traditional ways of life and new technology, the issue of globalization and the commodification of life, yet all of these issues are intertwined with conversations of ownership of these “newly” developed products. And, the issue of “ownership”, Professor Bratspies argues, is the most important issue to resolve first.

Thus, the pivotal questions to be answered are: who can ‘own’ ‘biotechnology’, and what are the consequences of that ownership?

Before one can answer the question of who can own biotechnology, one needs an understanding of the idea of property. What, then, does this idea of property mean? Professor Bratspies is concerned that many operate simply from assumed defaults; which may contribute to and recreate injustices from the past. Before answering any question about property or ownership lie even more fundamental questions: Who should have rights over property? And even more importantly, what makes something “property” in the first place? To the extent that one may think of “property” as the ability to claim rights over things, who should have those rights?

In general, Professor Bratspies responds, we call something “property” when an individual has the right to call upon the state to enforce a set of relationships over a thing. Sometimes this enforcement takes the shape of the state ensuring the right for all individuals to enjoy the use of that thing. Liberty to use resources is a valuable resource in itself, which, if taken away, would have dramatic effects on populations. Other times the things, on which society places the label of “property”, are granted to individuals, or groups of individuals. To be sure, these are valuable rights and would negatively affect those individuals if the rights were taken away. Without enforcement, ‘might would make right’ and those with less power would necessarily suffer the consequences.

But the question remains: How does one define and allocate these property rights in the first place? With the nominal question that follows: is that allocation being done correctly? Without careful consideration of what to include and exclude from “property rights” the global acceptance of ‘status quo’ intellectual property rights poses significant threats to progress, to equality and to fair dealing.

Professor Bratspies argues that the property choices embedded in TRIPS[1] will require states to confer and enforce property rights that perpetuate the marginalization of those already marginalized: indigenous peoples and subsistence farmers.

Consider the example of “knowledge”. Knowledge, in general, is not considered “property”. Although knowledge serves important social functions in the advancement of technology and the standard of living, it is not protected under the legal rubric of what one would call “property”. That is a choice. Intellectual property rights are an exception to this general rule. The state chooses to create and enforce intangible rights, and the case for these intellectual property rights is mostly utilitarian.

Monsanto’s arguments are but one example of the utilitarian case for intellectual property rights. Despite claiming profits of $400Million (USD) per year for its biotechnological crops and trades alone, Monsanto claims to have lost $535Million (USD) since 2002 on account poor intellectual property rights enforcement throughout the world. This disparity, according to Monsanto press releases, results in less research and development, and thus fewer newer products, which, of course translates into a curtailment of social progress.

However, within these claims of “poor enforcement of intellectual property rights” are assumptions built on the TRIPS distinction of what is ownable and what is not. By requiring that states grant and enforce patents, or something similar in protection to patents, to these ‘new’ plants, while leaving domestic plants in the public domain reflects the very specific choices that are being made about what is ownable and what is not.

These choices are built on the assumption, Professor Bratspies argues, that patents can track what has always existed and what is made. The assumption is that science, and thus patents can differentiate between what is natural and what is created, or what is evolution and what is invention.

For Professor Bratspies the concern is that the dimensions of property are thought of to exist, rather than having been defined through conscious decisions, and there is a real lack of theorization about what property might actually mean, and how it may have been defined. If one were to actually think about how those lines were defined, it is possible that on may discover errors in drawing those lines.

For example, under the current rubric that which is deemed to be pre-existing becomes the backdrop, or commons, from which all can draw. Yet, as Professor Bratspies points out, far from being ‘natural’ these ‘existing’ crops are a reflection of previous choices. Choices made by indigenous and subsistence farmers who have developed these landraces, through labour and ingenuity, over millennia. Under TRIPS, however, this work cannot give rise to property rights. These choices are necessary for the kind of technological evolution we have seen. It forms a critical contrast; there must be a global commons that underlies the experimentation and advances we have seen. Only when the contours of property are drawn to exclude existing landraces, can these existing forms of knowledge serve as fodder for these ‘new’ patentable technologies.

This system, of course is simply a new twist on an old saga. There has been trade in biological material for centuries. However, previously one could only own a thing itself, a fish, some fur, but never its ‘essence’, its makeup, or genetic code. The global trade regime embodied in TRIPS disrupts this pre-existing vision. Yet, this transformation did not begin with such international agreements. As Professor Bratspies contends, this transformation dates back, at least, to the United State’s Supreme Court decision in Diamond v. Chakrabarty, 447 U.S. 303 (1980).

Pressed for time, Professor Bratspies concluded with the argument that society is in danger of, through the globalization of TRIPS, recreating the worst parts of colonialism. TRIPS perpetuates notions of res nullius,[2] and the worst parts of colonization. What one is again seeing is a massive transfer rather than creation of wealth, specifically from subsistence farmers and indigenous peoples in the geographic south to those of large multinational corporations in the north. By denying the genetic resources developed from indigenous and subsistence farmers, while including the products developed from those resources in property rights, this vision of property perpetuates and reconstructs the same forces of colonial power: Powerful sources seek property rights, and construe existing uses not to be property.

In response to a question concerning whether or not Professor Bratspies objects to the existence of property rights, she commented that she is only questioning property rights, not completely rejecting them. The issue is how one is going to think about what property rights mean. The question is, is society going to continue to place the old dogma on a new body of materials, or is it time that society becomes conscious of its biases of what is and what is not defined as “property”. Where society has had problems in drawing those distinctions in the past, we should be careful not to recreate those injustices.

The same rationalities put forward to explain why North American and Australian aboriginal peoples did not own their land are now being recreated to explain why indigenous peoples also do not, and indeed cannot, own their knowledge in existing landraces. The question one has to ask then is, is the presumption that existing landraces are natural and therefore not susceptible to property claims really any different from the characterization of aboriginal rights to land title? Is the characterization of millennia of agriculture as not creating property rights really any different from what was seen in the United States; that aboriginal possession of land is not ownership as affirmed in the United States’ Supreme Court case Johnson v. M’Intosh, 21 U.S. 543 (1823)? Professor Bratspies contends that it is not.

The justifications for colonialism have rightly been denounced as sophistry designed to conceal policies based on expediencies of self-interest. Professor Bratspies suggests that, unfortunately, we have much of the same being replicated today in terms of intellectual property rights.

In closing, Professor Bratspies left the audience with a quotation from United States’ President James Monroe, from his first State of the Union address in 1817. To be sure this quotation was originally intended to explain why it was appropriate to expropriate land from American aboriginals, nonetheless, Professor Bratspies argues it should be an important restriction on the rights of property to keep in mind: “no tribe or people have a right to withhold from the wants of others more than is necessary for their own support and comfort.”

Megan Kendall

“The Impact on IP on Low Income Farmers in Kenya”

Prior to beginning her Civil Law studies at the University of Ottawa Ms. Kendall worked for a series of non-government organizations (“NGOs”) in Kenya. Her perspective as both future lawyer and former researcher places her in a unique position to question the impact of legal property rights on African researchers and farmers.

For over ten years University of Ottawa researchers have been sharing research on insect-resistant food crops with African researchers, yet these genetically enhanced food crops are yet to be grown commercially there. The question for Ms. Kendall is: What is hindering the use of technology in the field?

To put that question into context, Ms. Kendal noted that since the green revolution of the 1960s introduced new agricultural technologies food grain production has doubled, yet so too has the death rate of African children. These dual realities represent a need for a redoubling of the green revolution, and a readdressing of the issues of poverty and starvation. To that end, “BT”[3] rice currently being researched in University of Ottawa laboratories has the potential to both reduce losses from pests and pathogens and the need for pesticides.

As a background to her discussion Ms. Kendall explained some of the science behind the technology transfer. According to Ms. Kendall, the relevant genetic material is packaged into a “gene construct” and then these genes are transplanted into a plant genome with the help of BT bacteria, it is these gene constructs that have been given to African scientists. While it is not important to understand how the science works, it is important to note that all the essential elements of the “gene constructs” are patentable, and under protection to different laboratories.

The problem, as Ms. Kendall sees it, is that pests and pathogens are no longer the only issue facing African researchers and farmers: BT genes and associated components are now surrounded by intellectual property rights. Although there is a genuine interest to access and test this new technology, which in turn is promoting local innovation such as new breeding strategies, there is a great deal of fear concerning the potential repercussions to African researchers from the exploitation of intellectual-property-protected materials that they have been given “for research purposes only”.

Since 1994 University of Ottawa gene constructs have been transferred to the International Maize and Wheat Improvement Centre (“CIMMYT”) for uses in African breeding programs. In Canada and in Europe, the patent on those constructs is held by the biotechnology “powerhouse” Monsanto. To protect itself from potentially being sued by Monsanto the University of Ottawa entered into a material transfer agreement with CIMMYT, which stipulates that the construct can be used “for research purposes only”. The concern is that should CIMMYT ever exploit the technology commercially, and the gene construct appear in European commercial crops, the University of Ottawa could be sued by Monsanto for distributing its construct.

Thus, while there is an agreement in place to share research, and a desire to improve the situation in Kenya, the question that remains is: What is missing, and what is the fear and confusion? Ms. Kendall believes the answer is the ‘research only’ limitation put in place by material transfer agreements. University of Ottawa researchers fear being sued by Monsanto. African researchers fear not being able to benefit from potential yields, because their research is limited to the constructs of the agreement. When asked if the researchers share this fear of being sued, Ms. Kendall responded that “the law” is beyond the scope of most researchers’ attention. To them, liability concerns are simply not the issue, which is, in itself, a source of concern.

There is some hope for improvement, however. There are talks between the University of Ottawa, CIMMYT and Monsanto to renegotiate the material transfer agreement. The hope is to release the University of Ottawa from its intellectual property obligations, so that African scientists can move beyond simple research. Should the agreement be renegotiated, this would allow Kenyan researchers to use the biotechnology for food production within the country. However, this change would require exploring country-specific property rights, i.e. who is the holder of these property rights in Kenya?

Currently the African Agricultural Technology Foundation (“AATF”), a not-for-profit organization that links small-scale producers with agricultural solutions, has only acquired the rights to hold BT Cowpea. The obvious question is: what about BT rice and maize? It is hoped that the AATF will play a role in coordinating the effort to determine who owns intellectual property rights in Kenya, and in establishing a donation of those rights to agricultural research institutions in Kenya.

While more than a billion new mouths will require feeding within the next decade, there is more than food security at issue. One needs to recognize, according to Ms. Kendall, that these biological tools and technologies are owned and need to be legally purchased. Kenyan farmers would need to purchases both these tools and insecticides. The University of Ottawa has made advances in food-crop biotechnology, and wishes to transmit technology legally. It is, thus, the wish of Ms. Kendall that lawyers continue to show interest in intellectual property rights, and their relation to biotechnology, so that those rights may be either negated or revised, in order to ensure food security in Africa.

Ravi Srinivas

“The Right to Food and IP Rights”

When one considers property rights, and intellectual property rights in particular, it is inevitable that more than simple “property” rights will become implicated. In considering the Canadian Supreme Court case of Monsanto Canada Inc. v. Schmeiser,  [2004] 1 S.C.R. 902 Dr. Srinivas points to the implications of assigning patent rights. For example, farmers are prohibited from using patented material, even if for legitimate purposes. In Monsanto v. McFarling, 363 F.3d 1336 (Fed. Cir. 2004) the United States Court of Appeals for the Federal Circuit affirmed that patentable materials are also subject to the laws of contract. The United States Supreme Court refused to hear the appeal in that case. More importantly, however, in a case appealed to the European Union Court of Appeal, Monsanto is seeking extra-territorial application of its European patent, to prevent Argentinean soya farmers from exporting their yields to the European market.

To contextualize the discussion, Dr. Srinivas introduced the widely-held assumption that once companies and nations in the developed world transfer genetically modified (“GM”) crops to the developing world those nations will be able to enter the global market easily. The core assumption is that in transferring GM crops, developing nations will benefit in terms of increased yield output, thus being able to compete with other nations in the global market. It is also presumed that those nations will also be able to use those yields for other purposes within the international market. Dr. Srinivas intended to challenge those assumptions.

Returning to the Argentinean example, Dr. Srinivas explained that Monsanto does not currently hold patent rights on its “RoundUp Ready” (“RR”) soya in Argentina. Yet over 90% of Argentinean soya farmers use the Monsanto seed. To further complicate matters Argentina is the world’s third largest producer of soya beans, producing over 39 Million tonnes annually.

The problem for Monsanto is that Argentinean farmers are currently not paying any royalties to Monsanto for using their seed. Although, one must recall that Monsanto does not hold any patent in Argentina, nor do they necessarily want an Argentinean patent. Monsanto’s solution, then, is to prohibit the import of the GM crops into jurisdictions in which it does hold a patent over the RR soya, here: the European common market.

Monsanto’s argument to the European Union Court of Appeal is that since it holds patent rights in Europe, any importation of RR soya into the European market will constitute an infringement of its patent rights. Argentina’s response to that argument is that the European patent only covers the use of RR crops in Europe. Argentina is only exporting crops, grown without Argentinean limitation, and that the proper defendant for any possible legal action is the importer of the crops, not the Argentinean government.

The real question to be resolved for Dr. Srinivas, then is: What is the extent of a patent’s coverage? Is it possible that it will encompass all possible uses?

Monsanto’s perspective is that as soon as one exports a GM crop, regardless of purpose or intent, a royalty must be paid.

However a question remains: have, so-called “plant breeders’ rights” given full rights to Monsanto? Dr. Srinivas contends that if the European Union adopts this expansive interpretation of patent rights, thus granting a form of monopolistic rights, such a decision will have disastrous effects on Latin and South American farmer reliant on the European market. The fear is that Monsanto’s European and Northern American patents will have a “global reach”, able to prohibit developing-world farmers from entering the international market. The solution to this uncertainty, as Dr. Srinivas sees it, is to ask the World Trade Organization to clarify its position on TRIPS.[4] The decision from the European Union Court of Appeal should also assist in clarifying the position.

Currently, on account of the unresolved uncertainty Monsanto is seeking ever more royalty payments from South American farmers; despite not holding any patent rights. Given the incredible volume of soya being produced in Argentina, even if only half of the farmers were to pay Monsanto a royalty it would still amount to a substantial wealth transfer.

The concern is that while interregional trade from developing to developed nations is currently limited, it is destined to stay that way if Monsanto could be successful in its pursuits in the European market.

The position of the Canadian Wheat Board, the largest wheat and barley board in the world, is that expanding intellectual property, and in particular patent, rights beyond the farm gate would create new problems for farmers and others, as well as new uncertainty. This position is similar to the argument currently being mounted by Argentina in the European courts.

The concern for Argentinean exporters is that intellectual property rights could be used in a protectionist manner by some foreign governments to block imports, and in a worst-case scenario to block exports to any country. This concern is only heightened by the fact that there remains a great deal of uncertainty about the international trade rights in this arena. Different national courts have interpreted different national laws in conflicting ways. These decisions make it very difficult to know the state of the law in any particular jurisdiction.

The reason why this uncertainty is again returning to the forefront is that the state of developing-world nations is in a flux. Developing nations are attempting to introduce new plant-breeder’s rights, and enforce obligations but there remain tremendous logistical challenges. For example, in 2003 in India, farmers were using Monsanto seeds without permission, even from their own governments. Monsanto claimed the government of India should have been doing something. The government refused to tell farmers to destroy their crops. The government does not, and more-likely-than-not cannot, know what is occurring in the vast Indian countryside, nor the scope of GM “pollution”. The Indian government does not have the mechanism to test for the presence of genetic modification. Plus, problems of different languages, cultures, and lack of technology, prohibit the government from effectively tracking the trade of grain and seeds. As Dr. Srinivas demonstrated, if farmers in one region are producing impressive crop yields, farmers from bordering regions will learn of this fact and seek out the seeds. These types of interactions create a multitude of challenges for government and regulatory systems.

Thus, in any discussion of a right to food, there are two requirements. First, there is the need for clear and established rules on liabilities and rights for farmers. Second, nations should develop clear policies on biosafety rules. Once GM rice is planted it is possible that the crops will co-mingle and biodiversity will be lost. Biodiversity and protection thereof is an important issue that simply cannot be lost in any debate over rights and obligations, Dr. Srinivas argues.

The ‘debate’ is between using genetically modified crops to increase crop yields, and using selective plant breeding is response to actual farmer needs. It should be possible for researchers to work with farmers to develop new crop lines, based on selective breeding techniques, and then not claim any intellectual property rights, Dr. Srinivas argues. Thus while in most conversations about rights to food and biotechnology the debate is often pitched as between genetic modification and intellectual property rights, and free-market, unprotected practices these ideas are not as desperate as we think, Dr. Srinivas contends. The ideas of trade and commerce in GM crops, and developing technical alternatives are not two distinct concepts. Farmers should not be bound to a single monopoly, and should be able to pick and choose the most appropriate response to their individual challenges. In response to a question concerning active engagement of the community and citizen involvement, Dr. Srinivas suggested that farmers and citizens should form their own collectives, in essence their own ‘Monsanto’s to carry on research. Any response, however, should come from the bottom up, not the top down.

Canadian Lawyers for International Human Rights, University of Ottawa Chapter

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