-Caveat Lector- Dave Hartley http://www.Asheville-Computer.com/dave -----Original Message----- From: Anuradha Mittal [mailto:[EMAIL PROTECTED]] Sent: Monday, December 20, 1999 3:21 PM To: [EMAIL PROTECTED] Subject: URGENT: IPR ALERT THE FAILURE OF WTO AT SEATTLE AND THE IMPLICATIONS FOR THE IMPLEMENTATION OF TRIPS The Government of India is rushing in a series of Intellectual Property Right (IPR) related legislation on grounds that these are needed to meet the obligations under the Trade-Related Intellectual Property Rights Agreement (TRIPs) of the World Trade Organisation (WTO) by 1 January 2000. These IPR legislation include: Ø The Protection of Plant Varieties and Farmers' Rights Bill, 1999 Ø The Patent (Amendment) Act, 1999 Ø The Trade Marks Bill, 1999 Ø The Copyrights Bill, 1999 Ø The Geographical Indications of Goods (Registration and Protection) Bill, 1999 However there are four reasons why the Government's rush to enact these laws is not justified: 1. Many critical aspects of TRIPs are under review and the Government should ensure that TRIPs is reviewed to guarantee protection of national and public interest and implement national laws only after it has played a leading role in reshaping the TRIPs Agreement. All the countries of Africa have demanded a five-year delay in implementation in TRIPs while these changes are effected. The date of 1 January 2000 as the deadline for implementation is itself under flux an India does not need to rush to implement. As a member of WTO, India can join the African countries in changing the implementation period. 2. The collapse of the Seattle Round of WTO should be used by India to increase its national sovereign space in shaping national legislation and national economic policies. 3. The US which is the country applying the maximum pressure to implement TRIPs and had initiated a TRIPs dispute against India is itself going to vote on whether to remain a member of the WTO and whether to continue to pay dues to the Geneva-based organisation. There is therefore no justification in exaggerating the role and power of WTO internationally and in India's national affairs. 4. Notwithstanding all the above the contents of the laws are anti-people and anti-national. The drafts have all gone way beyond the mandate of the TRIPs Agreement. ****************** IPR ALERT ON PLANT VARIETY LAW The Protection of Plant Varieties and Farmers' Rights Bill, 1999 (Bill No. 123 of 1999) is ANTI-FARMER, ANTI-NATIONAL and will promote BIOPIRACY THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Give effect to Article 27.3(b) of Part II of the TRIPs Agreement of WTO [Statement of Objects and Reasons, page 32,33 of Bill] HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS: This Article of TRIPs is under review and is already being challenged by India in the WTO and the Organisation of African Unity and the Central American countries. These reviews are calling for fundamental changes in Article 27.3(b) and a five year extension in implementation of TRIPs. [Review submissions to WTO TRIPs Council] Given the ongoing rewiew aimed at changing TRIPs there is no justification to rush to implement the TRIPs Articles undergoing change. THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Give an effective system for protection of the rights of farmers [Clause 31] HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS: The Bill openly promotes piracy of farmers' varieties such as Basmati, by failure to register and protect farmers' varieties, which account for 80% of the seed used in the country. (Clauses 11 & 12) It fails to recognise farmers as breeders whose collective and cumulative innovation through time has built the crop diversity that is the basis of food security and further breeding. [Clause 2(j)] Clause 31 referring to "farmers' rights" is not a farmers' rights clause, since farmers' rights in IPRs laws are rights as breeders. The Clause merely refers to farmers as cultivators with a right to cultivate and sell farm produce, not to farmers as innovators or to farmers' inalienable right to save, produce and freely exchange seeds and propagative material. It fails to grant protection to farmers breeding and farmers innovation in the form of community rights, which is the basis of "sui generis" laws being drafted around the world. THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Give an effective system for protection of the rights of plant breeders [Clause 2] HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS: Exaggerates the rights of breeders (MNCs) to cover "discovery" of plant varieties which amounts to license to pirate indigenous varieties. Nowhere in the world has discovery of varieties been the basis of granting IPRs. THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Provide for rights of the village or farming community [Clause 48] HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS: The clause is not about the rights of communities to their inalienable right to use, save, breed and exchange varieties and nor about the protection of the community rights to collective innovation embodied in farmers' varieties. The Clause assumes the rights will only belong to breeders (MNCs).The original innovators, India's farming communities, will not have rights but might have a small chance of a small compensation through a highly bureaucratised and arbitrary system spanning form local officials to national Authorities through all the hierarchies of corruption and bureaucratic decision-making. The fundamental rights of farmers and farming communities and India as a nation to her collective intellectual and biological heritage are not being protected in this Bill. On the other hand cases where piracy occurs are being reduced to local conflicts in which the local bureaucracy (District Magistrate) is the ultimate arbitor. [Clause 26(7)] Clause 48 makes it very clear that the rights of communities as innovators will not be recognised since the arbitrarily fixed compensation as the bureaucracy "deems fit" will be deemed to be an arrear of land revenue [Clause 48(5)] not a royalty paid to farming communities as breeders by commercial entities. This is a clear evidence of a strategy to deny the intellectual contribution of our farmers through thousands of years and negate the "prior art" embodied in farmers' varieties to give far reaching monopoly rights to seed corporations. THE GOVERNMENT CLAIMS THE BILL SEEKS TO: Encourage the development of new varieties of plants [Statement of Objects and Reasons] HOW THE BILL UNDERMINES FARMERS' RIGHTS AND NATIONAL INTERESTS: The Bill will encourage the pirating and monopolising of indigenous farmers' varieties, and will increase the financial burden on farmers who are already indebted and committing suicides due to spread of costly and unreliable seeds. ************** IPR ALERT ON TRADE MARKS LAW The Trade Marks Bill, 1999 (No. XXXIII of 1999) is a draconian legislation that limitlessly enlarges the scope of trade marks and their infringement, creates unaccountable structures of power and decision making, shifts economic acts from a civil domain to a criminal domain and offers no protection to the citizens of India either as producers or as consumers. The Bill will have far-reaching consequences for the manufacturing and services sector in the country, both in the organised industrial sector and in the informal cottage industry sector. The issue of trade marks is not just a technical issue of the use of signs, words and symbols. Intellectual Property Rights (IPRs) like trade marks are primarily a market instrument and a form of economic policy. The shape of the trade mark legislation is therefore a reflection of the economic policy that this government is promoting, and it determines which economic actors will have protection and control over markets and who will be excluded. This Bill needs to be redrafted because it fails the test of democratic criteria and the test of economic criteria of protecting the livelihoods and markets of millions of small producers of goods and providers of services in India. It is blatantly against the Constitution of India, especially the protection of fundamental rights of citizens, in terms of far reaching changes introduced without adequate reflection or democratic participation. This Bill is a mode of political control and social accountability systems for curtailing the commercial malpractice by corporations. The Bill enlarges the subject matter of trade marks from "goods" to "goods and services". Since the large multinationals are engaged in the production and distribution of both good and services, this enlarged coverage is both necessary and desirable for them. However, in terms of interests of the Indian society, the joining of goods with services in trade mark law is neither necessary nor desirable. The scope of trade mark law has also been expanded in the definition "infringement" as in Clause 29 of the Bill. The scope of infringement has been taken beyond the commercial domain into the democratic space of citizens. If such clauses are not deleted from the bill these can be used by the MNCs to silence all citizen actions against them. It thus curtails the civil liberties of citizens. Such clauses sound the death knell for all environmental movements, all consumer rights and awareness movements and the foundation of democracy itself. In this bill, infringement has been expanded to include not just deceptively similar but similar marks, [Clause 29(2)(b)], similar goods or services, [Clause 29(2)(a)] and even goods similar to those for which the trade mark is registered, [Clause 29(4)(b)]. The scope of infringement is even taken beyond the commercial domain into the democratic space of citizens through Clause 29(8) and Clause 29(9). Clause 29(8)(c) quite clearly is not related to the activities of the traders but to citizens' action. Clause 29(9) so delineates infringement so as to bring within its ambit, apart from printed and written words per se, the spoken use of these words as well as their visual representation and reference. There is no way the Fundamental Right to the freedom of speech can survive such sweeping powers in the hands of corporations who want to use trade mark laws not just to monopolise markets but to use them to monopolise the very political space of civil society by silencing democratic movements for corporate accountability. Another major shift towards lack of democratic functioning and public accountability proposed through the 1999 Bill is the criminalisation of civil offences. This Bill has added a new Clause vide Clause 115 which makes trade mark infringement a cognizable offence. In addition this Clause gives arbitrary power to police without cases of violation; likely to occur". Clause 115(4) states that any police officer, if he/she is satisfied that any of the offences referred to in sub-clause (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in the offences, wherever found. These far-reaching arbitrary police powers have no place in a democracy; they are a part of the economic arsenal being built to declare economic warfare against the people of India in the name of IPRs. ************************************************************************ Join the fight against hunger. For more information contact [EMAIL PROTECTED] _____________________________________________________________ DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance—not soapboxing! 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