India, Brazil Explain Need For TRIPS Biodiversity Amendment; Plus Interview With Alan Oxley

India, Brazil and other countries are calling for an amendment to the 1994 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [WTO document WT/GC/W/564Rev.1] to help countries to better protect their biological resources and traditional knowledge that appear in patent applications. The proposal for a TRIPS Article 29bis is under debate at the WTO in the context of the end of July deadline in the current free-trade negotiations. The amendment discussion also relates to negotiations at the UN Convention on Biological Diversity (CBD) for an international regime on ensuring fair access and benefit-sharing of products deriving from local genetic resources.

Delegates from India and Brazil made statements introducing their proposed TRIPS amendment at a WTO meeting on 6 June, followed by a series of questions and answers [.doc] about the proposal presented on 14 June. The statements are provided here:

• Statement of India
• Statement of Brazil

In this Inside Views column, we look behind the scenes at the dynamics of the debate on this proposal. We start with an interview with one of the most active industry lobbyists who opposes the proposal, and expect to follow with a response from a non-governmental organisation supporter of the proposal.

Interview with Alan Oxley, Australian APEC Study Centre

The TRIPS amendment proposal from India and Brazil has attracted critics from affected developed country industries who fear it would harm their businesses and stifle innovation. Alan Oxley, a former official at the General Agreement on Tariffs and Trade (GATT) and now chairman of the Australian APEC [Asia-Pacific Economic Cooperation] Study Centre, has published a study, funded by the US pharmaceutical industry, which is highly critical of the proposal. According to Oxley, an outspoken defender of industry’s preference for stronger IP protections in international policy debates, the amendment is so broad that it could change the patent system for all food products. Intellectual Property Watch Editor William New sat down with Oxley on 8 June and discussed the study and the motivation behind it. The conversation also clarified all of Oxley’s dealings, including a new free-market group in Washington, DC.

Intellectual Property Watch (IPW): Please tell us what you are working on, which groups you are with, and what brings you to Geneva?

Alan Oxley (OXLEY): I’m here in my capacity as chairman of the APEC Study Centre of Monash University. This is a part of the network of APEC study centres around Southeast Asia. We have a free-market framework for approaching public policy issues and we tend to work on trade and environment issues. I run a consultancy in Australia called ITS Global, I’m the former ambassador to the GATT [General Agreement on Tariffs and Trade], and former chairman of the GATT contracting parties when I was here. I’m also chairman of World Growth, which is a new NGO [non-governmental organisation] we’ve established with partners in Washington. The research programme through the APEC centre is supported with funding from PhRMA (Pharmaceutical Research and Manufacturers of America]. Initially on this programme, the core of our focus was the most effective way to secure the benefits of access to genetic resources. We’re here in Geneva because we’ve done some research on strategies being proposed on access and benefit sharing, and it turns out we’ve arrived at the time when India, Brazil and some others have formally finally proposed that the TRIPS [WTO Agreement on Trade-Related Aspects of Intellectual Property Rights] be amended purportedly to improve the capacity of developing countries to access genetic resources.

IPW: What is World Growth?

“… it won’t be our policy to disclose who our funders are. But we are quite open that we will receive funding from companies that support our free-market messages.”OXLEY: World Growth is a free-market NGO that we’ve established in the United States because we think if you’re going to do these things globally that’s where you got to start. We intend to try and raise funds from the US private sector, and you’ve got to be registered as an NGO in the US and meet all the tax rules and laws and that sort of thing. We’ve only just started but our first exercise was to take a report to the Hong Kong ministerial in which we laid out what we thought was a pretty fair free market message about the Doha Round and the fact that we thought it was actually going pretty badly in the wrong direction. The reason we’re set up is that we think that public policy debate in international matters on globalisation, the field’s been left too clear to groups who don’t support free markets and don’t think globalisation is a good idea. We think the reverse.

IPW: Is PhRMA is funding the World Growth group?

OXLEY: PhRMA is funding this project research work [an APEC Study Centre paper on disclosure of origin]. And the earlier research we’ve done.

IPW: Are the funders of the World Growth group already known?

OXLEY: No, we will get funding from the private sector, but it won’t be our policy to disclose who our funders are. We don’t think it’s necessary. But we are quite open that we will receive funding from companies that support our free-market messages.

IPW: And is the pharmaceutical industry a part of that already?

OXLEY: We would expect them to be supporters but as I say we don’t discuss the details of who our funders are.

IPW: And is World Growth also working on IP issues?

OXLEY: No, so far, we’ve only concentrated on – if you go to our website you’ll see we’re only focused on WTO and the Doha Round.

IPW: So it’s more broadly focused.

OXLEY: Well, we’ll work on any issue that we think matters where there’s pressure to try and improve free market rights. There’s a large list of things to do. It’s almost any area.

IPW: Are you also the host of Tech Central Station Asia-Pacific Group? How is that funded?

OXLEY: I don’t know who their funding sources are. My role is editorial and as a contributor. The aim is to provide a page on Asia-Pacific and develop content for it. Also I contribute material to the site, particularly on international trade. I’m a paid contributor. My role is a personal role, and it’s basically editorial and writing.

IPW: You are also the founder of your consultancy, called International Trade Strategies.

OXLEY: It’s now ITS Global. We expanded. We now do more environmental work, that’s why we had to widen our ambit. We used to concentrate principally on trade, and development.

IPW: With your background coming from the GATT, and key trade policy positions, did you always hold the views that you then took as a private sector person. How did you make that step into the private sector and take strong positions on issues.

“The level of flow of funding that goes into the anti-globalisation debate is still vastly greater than what sits on the other side of the fence, despite the fact we supposedly represent the multinationals.”OXLEY: To a degree I’m self-educated on these things. I have a background in Asian studies. When I was appointed as our ambassador to the GATT, Australia had a strong free-market… agricultural trade liberalisation. Also at the time I was appointed we went through a pretty serious programme in Australia of economic reform where in fact it was the Social Democrat government which implemented far-reaching removals of barriers to protection. During my time therefore it was my job to argue free-market trade liberalisation in the GATT, and having become exposed to the issues I not only found the case persuasive but important. I left government in 1979 and set up consulting as a trade specialist, and the [1999] Seattle WTO events I found a somewhat dismaying development. I was curious what it was about, and that therefore stimulated an interest in me in what the whole movement was about and who was driving it, why they were doing what they were doing, who was funding and all that sort of stuff. From then, I had to resolve that we were really missing out in the global debate. And the [views] of those who stood to benefit from open markets were not really being adequately expressed. And it still actually remains the case. The level of flow of funding that goes into the anti-globalisation debate is still vastly greater than what sits on the other side of the fence, despite the fact we supposedly represent the multinationals, there’s a lot more money on the other side of the fence.

IPW: Does ITS Global also do IP-related issues? What is the basis for that?

OXLEY: We do some in Australia, based on client interest. We worked for Australian business on the Australia-US free trade agreement, we’ve been involved in the debate over IP in the Australia-US FTA.

IPW: Back on World Growth, I read that the group opposes the growth of generic drugs. Are you working on those issues in some way?

OXLEY: No. Where did you hear that? I don’t think you’ll find anything on that. That amazes me. Mind you, we’ve irritated a few people, so I wouldn’t mind betting that people start saying things about us.

IPW: The views that you’ve taken seem to align pretty well with the pharmaceutical industry view. Is that because the work that you’re doing is funded by the pharmaceutical industry?

OXLEY: No, you’ll see that we say the views are our own, and they are. The answer’s no.

IPW: So you could ostensibly come out with a view that is antithetical to the pharmaceutical industry view? But it hasn’t happened that you know of? You wouldn’t be scolded if it were to happen?

OXLEY: You remind me of the sort of questions that politicians get asked in Australia. It’s a hypothetical question so why answer you.

IPW: So it hasn’t happened.

OXLEY: You’ve answered your own question.

IPW: You have published a new report called “Retarding Development: compulsory disclosure of the origin of genetic resources in IP law,” published by the Australian APEC Study Centre, Monash University. This appears to give a useful summary of the various states of play. Coming from the APEC Study Centre, what angle does the report take on the issues?

OXLEY: APEC comprehends the East Asian region where you’ve got highest growth developing countries in the world, you’ve got the world’s biggest economies, you’ve got a group of countries that consider intellectual property important for development. This is a group of countries that will look at IP from a growth perspective, and not from some sort of skewed political perspective that does tend to dominate the presentation of these issues by NGOs and by many developing countries in the CBD and the WTO. Therefore, the reason we thought it was important was to provide a well-based analysis of the issues so those who are interested in growth could understand clearly what the implications were.

IPW: The release of the report is perfectly timed for what is happening at the WTO. Is that intentional?

“… we demonstrate in this report, the sort of change being proposed in intellectual property law will dry up processes of intellectual property protection in developing countries as well, probably before it would happen in industrialised economies, and that would actually discourage research in their own countries and investment in research in their own countries.”OXLEY: No, it’s done by the Indians and Brazilians [introducing their TRIPS amendment proposal now]. Our timing was driven by the CBD timetable, not by this [WTO] timetable. Curitiba [the March 2006 CBD biennial conference in Brazil] was our principle focus, we went to Curitiba, we’ve now seen that that’s been put off for two years, work will continue. A number of deeper issues now are going to be considered. What we discovered in our work in CBD is that by and large the level of cognizance by people working on this subject was low. The degree of technical expertise was depressingly low by a number of people, and in fact the political push behind a lot of stuff in CBD was really very strong. Those same factors will continue to run. There’s a serious need for some serious analysis which will be able to bring these issues to a point of reality where people are able to understand what they mean from the growth perspective.

IPW: There are several new organisations being formed to address these issues, including your new focus. Is this part of an industry recognition of the issue?

OXLEY: It’s a consequence of the effort to create new instruments in international law which will restrict intellectual property rights. A decision was taken in the CBD a year ago to create an international regime in access and benefit sharing. There were signs that anti-intellectual property groups intended to use this to try and change intellectual property law and everything that has happened since then has shown it. So this is serious business. No wonder people are worried.

IPW: The report makes the case that an increase in government involvement could harm the private sector’s effort to use biological resources which is a way to promote development. Are you saying that the only way developing countries can develop is to encourage outside companies to come in and exploit the resources at any cost?

OXLEY: You’re really missing the key point here. You are asking the question the wrong way around. It’s not a question of more government involvement being worse for development. Basically markets will produce a better result than public ownership. Intellectual property is about enabling protection of invention in areas that go way beyond pharmaceuticals. It’s very easy to get your vision blurred by the fact that there’s four or five giant pharmaceutical companies. As we demonstrate in this report, the sort of change being proposed in intellectual property law will dry up processes of intellectual property protection in developing countries as well, probably before it would happen in industrialised economies, and that would actually discourage research in their own countries and investment in research in their own countries. That’s the point.

No country can grow without foreign investment, and no high-growth economies can succeed without fostering new technologies. So if countries want to go down this path, fine. Flatten growth? It’s their call. And some of the primary proponents of this amendment understand this fully, which raises questions about why they’re doing it here in TRIPS. The Indians know that constraining intellectual property will constrain growth. So then you ask why they are doing this. I’ll tell you it’s in part to deal with a difficult domestic political situation in India. In India what they’re basically saying is, ‘We’re doing this primarily for political reasons, we’ve got a political problem to manage.’ They’re not arguing with us about the importance of IP to growth.

IPW: What’s the political situation? Are you talking about the generics industry there?

OXLEY: Yes, the generics industry is moving to the point where they’re starting to have to be lead players and keep up global standards. Their IT industry has now been quite powerful in developing a whole set of intellectual property rights. The situation in India is changing dramatically. You’ve got 7 percent growth per year. The perspective about whether we balance the public-private drivers in India is changing quite rapidly. India’s political situation is very complicated. They’re always having to respond to all sorts of domestic pressures. The reality here in the WTO is you’ll find Indians taking a far tougher position against free market reform than is the reality at home. Now what’s the explanation for that? They’ve got to play a political game.

IPW: What is objectionable to industry about disclosing the source and origin of a genetic resource under threat of criminal penalty?

OXLEY: It would make it very difficult to get approval on any patent drawing on a genetic resource. This has been most lucidly explained by people at FAO [Food and Agriculture Organization] in the CBD, which is where they’ve painted the picture. The proposal would apply to the equivalent of patents in agriculture, plant breeders’ rights, the very nature of research in plant breeders’ rights. Go and talk to UPOV [Geneva-based International Union for the Protection of New Varieties of Plants] and you’ll get a very neat picture for your readers. Every plant variety would have tens of plant sources feeding into that invention. The idea that you’d get anybody who’s an owner of some genetic resource, unspecified, which is a contributor to a product or process being patented, to say, ‘No, you haven’t secured our property legitimately,’ would mean that tens of people would be involved in the approval process for every plant variety and that would actually kill off the process of protecting plant breeding.

Now, more broadly, you can expand that as well. The proposal in the CBD and the proposal which has been tabled in TRIPS, in terms of a proposal, is wider, [because] it’s biological resources not genetic resources. Biological resources would cover virtually every food product you could think of. How do you establish prior legitimate ownership of any product or any input? Governments don’t do that. If you’ve got a retail shop and I go and buy a can of beans from you, or a pound of butter, or a leg of lamb, I don’t have to get a certificate of provenance from you that I’ve purchased that legitimately, do I? However, if someone takes an IP patent and it’s something to do with lamb, and I claim that I own part of the genetic resource of that lamb, I have been created a latent right to say, ‘Wait a minute, you haven’t consulted the legitimate owner.’ Reduced to its simplest, that is what’s on the table. I must say going around the town here discussing it with people, we’ve found that the two or three people who drafted the proposal understand exactly what they’ve done. When we actually point out to the ambassadors how wide the ambit of this is, they look a bit surprised.

The process explicit in the CBD and implicit in the TRIPS amendment requires a regulation of the transfer of ordinary property rights. Otherwise, how can you have a certificate of provenance not only of prior informed consent but before you get the prior informed consent there is a requirement to show right of ownership. They say, the TRIPS treaty doesn’t say you’ve got to demonstrate right of ownership, what the TRIPS treaty does is create a legal right in the agreement which would mean that a country must have to have such a process which it would certify as being correct before it can be complied with the agreement to allow the right of anybody to appeal. Think of the consequences. First, is it necessary for intellectual property. And sitting in behind this is a very simple point. There’s a world of difference between the property rights of a genetic resource, owned and secured whichever way you do it, and the intellectual property right derived in invented products. Philosophically, this proposal ? denies the significance of the invention. The claims that biopiracy is the problem in the end root down to examples of misapplication of intellectual property law. And when you go hunting to say, ‘What biopiracy are you talking about?’ nearly all instances they put forward don’t constitute biopiracy, they constitute a transaction where someone who’s figured that something has happened that isn’t fair, which is an entirely different matter to whether legal rights have been protected or not.

IPW: So it isn’t because one party to the contract wasn’t equal to the task, possibly needing help before agreeing to it?

OXLEY: Well, let’s separate the two things. There’s one thing about fairness, there’s another thing about legality. Fairness is something which a government achieves and distributes in its national policy. Intellectual property law isn’t about fairness. Intellectual property is about tight legal rights. Fairness is something for a government to produce. Governments can pass laws creating property rights for traditional people, and creating rights to ensure that traditional people have prior informed consent, but they don’t need an international treaty to do this. In fact, it’s better if they do it domestically, it would be more effective. In most cases where there’s been a declared problem about somebody not getting a proper return from a product legally acquired, is because it’s a function of the system in place.

IPW: Did you write this report yourself?

OXLEY: No, we had someone do the research on it and I edited it.

IPW: At the centre, a university person?

OXLEY: Two researchers.

IPW: But industry did not write this?

OXLEY: No.

IPW: The report asserts that a CBD with an ABS protocol as proposed by India would create a conflict between TRIPS and the CBD. Can you explain that?

OXLEY: The protocol they put on the table would create rights to intellectual property that don’t exist in the WTO. In fact, the controls on intellectual property which are set out in the proposals that have been tabled in the CBD quite gratuitously attack intellectual property, they unnecessarily weaken ordinary property rights and don’t actually focus on what their supposed core purpose is, which is to create a means by which countries can get a better return on their genetic resources.

IPW: An argument has been made that bio-diverse countries should not overvalue these genetic resources because many of these compounds can be made in the laboratory as well.

“The claims that biopiracy is the problem in the end root down to examples of misapplication of intellectual property law.”OXLEY: No, there’s a missing link. What they are proposing to do would affect not just a small body of supposed things lying in the forest. The proposals that will come onto the table will dampen all research and development. There is much more research and development in agriculture and industrial matters than there is in this pharmaceutical area. That’s the byproduct effect. Most of these countries have sets of domestic patents of their own. No company is going to invest in its own country to try develop a new product or process where there’s any genetic resource involved, and as I say, every food product is going to be associated with it and all food processing is going to be affected, unless they think their invention is going to be protected.

The proposal the Africans put on the table in the CBD actually envisages state ownership of all genetic resources. This isn’t just ordinary fiddling around with intellectual property.

There’s been no technical study in CBD on the impact and reach of these proposals. There’s been no technical study of what biopiracy is, there’s been no technical study of what is a genetic resource in terms of its economic importance. And yet there’s a proposal on the table for creating new international law which has quite severe economic impacts without this work having been done.

I had a posting at the UN before I did the GATT. I was at the UN in the 1970s. Now UN processes are pretty slapdash. But I’ve never seen anything as appalling as the way in which the processes in the CBD went. I went up to the executive director of the CBD in [Granada] Spain and told him that the process of management and support by the secretariat of this was the worst I’d ever seen in the UN and it was a disgrace.

IPW: Why are you here this week, with whom are you meeting?

OXLEY: Why I am here is to go around to a number of key countries, a range of countries who we think have got interests. We’re interested in getting feedback, we’re interested in trying to understand what’s going on here, we wanted to know what’s driving the positions, what the connections were, trying to get a sense as to whether this is just political positioning. Also trying to get a sense of the relationship of it and to what’s going on in the CBD. Often you don’t get the two crossing over. Don’t assume in international areas that knowledge on one subject actually transfers across an agency working on the same thing.

[Summarizing meetings with key players] They’re all caught up at the moment in what to do about the Doha Round. The question is how much is this a part of that that matters, and I think they still don’t know yet, they’re only beginning the discussions on this and they’re trying to gauge each other’s positions and what it means.

The very fact that India and Brazil would pop this on the table at this point tells me that they actually aren’t serious about what’s going on here in the Doha Round. If they were, why put on something so radical at such a late point in the discussions. And I don’t think they’re doing it only for the tactical leverage. I think it means that not much is going to happen, otherwise they wouldn’t be so frivolous. On the other hand, they are making a statement to advance this issue in the fabric of negotiations in the long-term at the WTO. Otherwise, they wouldn’t be doing what they’re doing in the CBD. So what’s going on is pretty serious.

IPW: Thank you.