Document(s) 15 of 20

Preface

¹ Quakers (Members of the Religious Society of Friends) have opposed war, promoted peaceful resolution of conflict, and supported multilateral institutions to deal with global problems as well as practising and promoting simplicity, truth and integrity in daily living: www.quaker.org.uk and www.quaker.ca; see also Tansey (no date) for more information about this programme.

Chapter 1

¹ For Coca Cola figures see US Securities and Exchange Commission, Form 10-k, 'Annual report pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934', p50, available at www.thecoca-colacompany.com/investors/form_10K_2006.html; for McDonald's see US SEC report for McDonald's, pp30 and 34, at www.sec.gov/Archives/edgar/data/63908/000 119312507039707/d10k.htm. The McDonald's figures included US$689.8m in advertising costs for company-operated restaurants plus a further US$97.4 production costs for radio and television advertising, primarily in the US, to which should be added an unaccounted, but 'significant', set of advertising costs by franchisees. For the fiscal year ended 31 December 2006 WHO's total proposed programme budget for the two years 2006–2007 was just over US$ 3.3 billion (see www.who.int/gb/e/e_pb2006.html) but 'Financing of the organization is increasingly from voluntary contributions, the majority of which are earmarked for specific projects or programmes. This earmarking can distort priority-setting and may threaten the impartiality of WHO, as well increase its administration costs', according to the draft eleventh programme of work 2006–15(revised), p22 (see www.who.int/gb/pbac/pdf_files/Extraordinary/PBAC_EXO 1_2-en.pdf).

For 2004–5, total expenditure for the FAO was a little over US$1.5 billion, about half of which was regular core budget (from Programme Implementation Report (PIR) for 2004–05, Table 1 – see www.fao.org/docrep/meeting/011/j8013e/J80 13e04.htm).

Chapter 3

¹ The General Agreement on Tariffs and Trade (GATT) adopted in 1947 has marginal references to IP but at the same time it includes a number of provisions, which, without specifically mentioning intellectual property rights (IPRs), lay down general rules capable of having a bearing on certain trade-related aspects of IPRs. The GATT 1947 contains basic principles and rules on governmental measures affecting trade of goods, and these rules and principles apply to all such measures, irrespective of the policy area in which they are taken, including such measures when they are in connection with IPRs, particularly the national treatment, the most-favoured nation treatment, general elimination of quantitative restrictions or non-discriminatory application of quantitative restrictions (see GATT document MTN.GNG/NG11/W/6).

² See GATT document PREP.COM(86)W/41/Rev.1.

³ See Articles 400 and 401 of GATT document MTN.GNG/NG11/W/73.

⁴ Cf. State Street Bank and Trust Co. v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998) (business methods); AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999) (software). In other countries, such creativity may not be considered an invention or industrially applicable, requirements for patentability under a different TRIPS' provision.

⁵ See Canada – Patent Protection of Pharmaceutical Products, Report of the Panel, WT/DS114/R, paragraphs 7.101–7.105 (17 March 2000) (analysing provisions of Canadian law for de facto, rather than de jure, discriminatory effects or discriminatory purpose; finding no discriminatory purpose and suggesting that in the absence of discriminatory purpose the application of disadvantageous conditions beyond a particular field of technology will preclude a finding of discrimination by field of technology).

⁶ More explicit language to require data exclusivity was proposed but was not adopted. See Gervais (2003).

⁷ See Vienna Convention on the Law of Treaties, Article 31(1) (treaties are to be interpreted in good faith and conformity to the ordinary meaning of the terms of the treaty in their context and in light of its object and purpose).

⁸ See WT/GC/564/Rev.2 (5 July 2006), including a communication from Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Tanzania and Thailand on a new Article 29(b) of TRIPS dealing with the Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge (WT/GC/W/566, 14 June 2006).

⁹ See IP/C/W7469 (13 March 2006).

10 See WT/GC/W/566 (14 June 2006).

Chapter 5

¹ Denmark, Finland, France, New Zealand, Norway, Sweden, the UK and the US officially indicated their unwillingness to support the IU. In addition, Australia, Canada and Japan were also unwilling to support it but did not issue official statements to this effect (Tilford, 1998, note 251). Canada and the US joined the Commission in 1990 thanks largely to agreed interpretations to the IU, discussed below. They did not, however, sign the IU itself (Tilford 1998, p413). Japan has also joined the Commission but did not sign the IU. The other eight countries have both joined the Commission and signed the IU; see 'Members of the FAO Commission on Genetic Resources for Food and Agriculture' at www.fao.org/ag/cgrfa/memC.htm (accessed 8 June 2007) and Silva Repetto and Cavalcanti (2000).

² Convention on Biological Diversity, 'Introduction [to national biodiversity strategies and action plans]', online at www.cbd.int/nbsap/introduction.shtml (accessed 8 June 2007).

³ The preamble to the TRIPS Agreement, which makes reference to adequate protection and effective enforcement, was substantially concluded in 1990, well before the finalization of the CBD (UNCTAD-ICTSD, 2005, p10).

⁴ The President and CEO of Genetech, G. Kirk Rabe, wrote to President Bush before the latter's departure to Rio, where the CBD would be signed, saying 'the proposed Convention runs a chance of eroding the progress made in protecting American intellectual property rights' (Hamilton, 1993, p623, citing Usdin, 1992). President Clinton signed the treaty the day before it closed for signature with the support of the biotechnology industry and with the promise that it would be sent to the Senate to consider ratification with an interpretive statement alleviating the industry's IP concerns.

⁵ An exception here would be the teff agreement discussed in Box 5.4, above. Paragraph 12.1 of the agreement requires the parties to the contract, in the event of a dispute, to seek a solution by negotiation. If the dispute cannot be resolved by negotiation, it is to be 'submitted to an arbitration body in accordance with the procedure laid down in part I of Annex II of the Convention on Biological Diversity'.

⁶ Like-Minded Megadiverse Countries, 'Prologue', online at www.lmmc.nic.in/prologueLmmc_ new.php?Section=two (accessed 4 June 2007).

⁷ Paragraph 1(h) of the Cancun Declaration of Like-Minded Megadiverse Countries (18 February 2002), online at www.lmmc.nic.in/Cancun%20Declaration.pdf (accessed 8 June 2007). Paragraph 1 of the Cancun Declaration states that the LMMC is to serve 'as a mechanism for consultation and cooperation to promote our interests and priorities related to the preservation and sustainable use of biological diversity'.

⁸ The ABIA appears to have changed its website as this statement no longer appears.

⁹ Parts of this analysis are drawn from Garforth (2003) and Garforth et al (2005).

¹⁰ Convention on Biological Diversity, 'Frequently asked questions on the Biosafety Protocol', online at www.cbd.int/biosafety/faqs.shtml?area=biotechnology&faq=2 (accessed 9 June 2007).

¹¹ At the time of writing, there were only two records in the BCH on LMOs under the advance informed agreement procedure. One record from Ireland contained no information and the other record from Norway concerned a decision taken prior to the entry into force of the Protocol.

¹² Convention on Biological Diversity, 'Liability and redress', online at www.cbd.int/biosafety/issues/liability.shtml (accessed 9 June 2007).

¹³ The Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal took six years to negotiate. It was concluded in December 1999 and has not yet entered into force. The International Maritime Organization (IMO) International Convention on Liability and Compensation in Connection with Carriage of Hazardous and Noxious Substances by Sea took over 10 years to negotiate. It was concluded in May 1996 and has not yet entered into force. Other examples include the Convention on the Liability of Operators of Nuclear Ships (concluded in 1962, not yet in force); the United Nations Economic Commission for Europe (UNECE) Convention on Civil Liability for Damage Caused During Carriage of Dangerous goods by Road, Rail and Inland Navigation Vessels (concluded in 1989, not yet in force); the IMO International Convention on Civil Liability for Bunker Oil Pollution Damage (concluded in 2001, not yet in force); the UNECE Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters (concluded in 2003, not yet in force); see Cook (2002), p376 and CBD (2007a), pp16–17.

¹⁴ The Supreme Court of Canada rejected the patentability of higher life forms in an earlier decision: Harvard College v. Canada (Commissioner of Patents), [2002] S.C.J. No 77.

¹⁵ On this point, Percy Schmeiser has recently initiated an action against Monsanto in the small claims court. The action stems from Monsanto's Roundup Ready canola appearing in his fields once again. He contacted the company to come and remove the plants, which the company agreed to do if Schmeiser would sign the waiver described above. Schmeiser refused saying the document infringed his right to freedom of speech and sent the company an invoice for the costs he incurred in removing the offending plants from his field (Pratt, 2007). Schmeiser characterizes the dispute as involving a liability issue and a court date has been set for January 2008 (see www.percyschmeiser.com).

¹⁶ Part VI to the Annex to decision BS-I/7 also potentially provides for some coercive measures to address non-compliance. The MOP may issue a caution to the concerned Party, although the effect of this caution is unclear and it may be more of a 'sunshine' measure to draw attention to the wrongdoing of a Party (Weiss, 2000, p461). Part VI also allows the MOP to take measures in cases of repeated non-compliance, although the range of possible measures that can be taken in such circumstances has yet to be adopted. A decision on this point is slated to be taken at MOP-4 in 2008.

¹⁷ Convention on Biological Diversity, 'Compliance', online at www.cbd.int/biosafety/issues/compliance.shtml (accessed 9 June 2007).

Chapter 6

¹ In the lead up to the First Meeting of the Contact Group for the Drafting of the Standard Material Transfer Agreement in Hammamet, Tunisia, in July 2005, the African Group, hosted by the SADC Plant Genetic Resources Centres in Lusaka, Zambia, was able to meet together before a meeting for one of the very few times in Africa. This preparation time greatly facilitated the African Group's ability to take the lead on a number of issues at the subsequent meeting and introduce various options for the global community to discuss.

² Sixteen countries that signed the Treaty before the date for signature expired have not yet ratified. One such country is the US, which, it appears at the time of writing, may ratify the Treaty sometime soon.

³ See CGN website: www.cgn.wur.nl/UK/CGN+Plant+Genetic+Resources/Search+ and+order+germplasm/Ordering+seeds/+access+and+benefit+sharing/.

Chapter 7

¹ This section is based on material initially drafted by Heike Baumüller.

² European Parliament Resolution of 20 June 2007 on the Millennium Development Goals, paragraph 94.

³ This section is based on material drafted by Frederick Abbott.

⁴ This section is based on Dutfield (2006a).

⁵ See IP/C/W7469 (13 March 2006).

6 www.croptrust.org/documents/web/WCA%20Declaration%20-%2015-10-06-English.pdf.

⁷ This section is adapted from Dutfield (2004).

⁸ This section is adapted from Garforth and Frison (2007).

⁹ Most of this section was written by Davinia Ovett, 3D→THREE, in June 2006.

¹⁰ See Committee on Economic, Social and Cultural Rights, General Comment No 12 (1991) 'The right to adequate food?' E/C.12/1999/5, 12 May 1999.

¹¹ See, for example, Committee on the Rights of the Child, Concluding Observations, El Salvador, CRC/C/15/Add.232, 30 June 2004.

¹² See Commission on Human Rights, 'The right to food', Human Rights Resolution 2005/18, E/CN.4/RES/2005/18, 15 April 2005.

¹³ See Report of the Special Rapporteur on the right to food, E/CN.4/2006/44, 16 March 2006.

Chapter 8

¹ Quoted in NIH News, 13 June 2007, available at www.genome.gov/25521554, accessed 16 July 2007, commenting on The ENCODE Project Consortium (2007) ' Identification and analysis of functional elements in 1% of the human genome by the ENCODE pilot project' Nature, vol 447, 14 June 2007, pp800–816.

Document(s) 15 of 20