Iraq's New Patent Law: A Declaration Of War Against Farmers

Focus on the Global South and GRAIN
October 2004

When former Coalition Provisional Authority (CPA) administrator L. Paul Bremer III left Baghdad after the so-called "transfer of sovereignty" in June 2004, he left behind the 100 orders he enacted as chief of the occupation authority in Iraq. Among them is Order 81 on "Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety."[1] This order amends Iraq's original patent law of 1970 and unless and until it is revised or repealed by a new Iraqi government, it now has the status and force of a binding law.[2]

With important implications for farmers and the future of agriculture in Iraq, this order is yet another important component in the United States' attempts to radically transform Iraq's economy.

Who Gains?

For generations, small farmers in Iraq operated in an essentially unregulated, informal seed supply system. Farm-saved seed and the free innovation with and exchange of planting materials among farming communities has long been the basis of agricultural practice. This has been made illegal under the new law. The seeds farmers are now allowed to plant -- "protected" crop varieties brought into Iraq by transnational corporations in the name of agricultural reconstruction -- will be the property of the corporations. While historically the Iraqi constitution prohibited private ownership of biological resources, the new US-imposed patent law introduces a system of monopoly rights over seeds. Inserted into Iraq's previous patent law is a whole new chapter on Plant Variety Protection (PVP) that provides for the "protection of new varieties of plants." PVP is an intellectual property right (IPR) or a kind of patent for plant varieties which gives an exclusive monopoly right on planting material to a plant breeder who claims to have discovered or developed a new variety. So the "protection" in PVP has nothing to do with conservation, but refers to safeguarding of the commercial interests of private breeders (usually large corporations) claiming to have created the new plants.

To qualify for PVP, plant varieties must comply with the standards of the UPOV[3] Convention, which requires them be new, distinct, uniform and stable. Farmers' seeds cannot meet these criteria, making PVP-protected seeds the exclusive domain of corporations. The rights granted to plant breeders in this scheme include the exclusive right to produce, reproduce, sell, export, import and store the protected varieties. These rights extend to harvested material, including whole plants and parts of plants obtained from the use of a protected variety. This kind of PVP system is often the first step towards allowing the full-fledged patenting of life forms. Indeed, in this case the rest of the law does not rule out the patenting of plants or animals.

The term of the monopoly is 20 years for crop varieties and 25 for trees and vines. During this time the protected variety de facto becomes the property of the breeder, and nobody can plant or otherwise use this variety without compensating the breeder. This new law means that Iraqi farmers can neither freely legally plant nor save for re-planting seeds of any plant variety registered under the plant variety provisions of the new patent law.[4] This deprives farmers what they and many others worldwide claim as their inherent right to save and replant seeds.

Corporate Control

The new law is presented as being necessary to ensure the supply of good quality seeds in Iraq and to facilitate Iraq's accession to the WTO[5]. What it will actually do is facilitate the penetration of Iraqi agriculture by the likes of Monsanto, Syngenta, Bayer and Dow Chemical -- the corporate giants that control seed trade across the globe. Eliminating competition from farmers is a prerequisite for these companies to open up operations in Iraq, which the new law has achieved. Taking over the first step in the food chain is their next move.

The new patent law also explicitly promotes the commercialisation of genetically modified (GM) seeds in Iraq. Despite serious resistance from farmers and consumers around the world, these same companies are pushing GM crops on farmers around the world for their own profit. Contrary to what the industry is asserting, GM seeds do not reduce the use of pesticides, but they pose a threat to the environment and to people's health while they increase farmers dependency on agribusiness. In some countries like India, the 'accidental' release of GM crops is deliberately manipulated[6], since physical segregation of GM and GM-free crops is not feasible. Once introduced into the agro-ecological cycle there is no possible recall or cleanup from genetic pollution[7].

As to the WTO argument, Iraq legally has a number of options for complying with the organisation's rules on intellectual property but the US simply decided that Iraq should not enjoy or explore them.

Reconstruction Facade

Iraq is one more arena in a global drive for the adoption of seed patent laws protecting the monopoly rights of multinational corporations at the expense of local farmers. Over the past decade, many countries of the South have been compelled8 to adopt seed patent laws through bilateral treaties[9]. The US has pushed for UPOV-styled plant protection laws beyond the IPR standards of the WTO in bilateral trade through agreements for example with Sri Lanka[10] and Cambodia[11]. Likewise, post-conflict countries have been especially targeted. For instance, as part of its reconstruction package the US has recently signed a Trade and Investment Framework Agreement with Afghanistan[12], which would also include IPR-related issues.

Iraq is a special case in that the adoption of the patent law was not part of negotiations between sovereign countries. Nor did a sovereign law-making body enact it as reflecting the will of the Iraqi people. In Iraq, the patent law is just one more component in the comprehensive and radical transformation of the occupied country's economy along neo-liberal lines by the occupying powers. This transformation would entail not just the adoption of favoured laws but also the establishment of institutions that are most conducive to a free market regime.

Order 81 is just one of 100 Orders left behind by Bremer and among the more notable of these laws is the controversial Order 39 which effectively lays down the over-all legal framework for Iraq's economy by giving foreign investors rights equal to Iraqis in exploiting Iraq's domestic market. Taken together, all these laws, which cover virtually all aspects of the economy -- including Iraq's trade regime, the mandate of the Central Bank, regulations on trade union activities, etc. -- lay the bases for the US' bigger objective of building a neo-liberal regime in Iraq. Order 81 explicitly states that its provisions are consistent with Iraq's "transition from a non-transparent centrally planned economy to a free market economy characterised by sustainable economic growth through the establishment of a dynamic private sector, and the need to enact institutional and legal reforms to give it effect."

Pushing for these "reforms" in Iraq has been the US Agency for International Development, which has been implementing an Agricultural Reconstruction and Development Program for Iraq (ARDI) since October 2003. To carry it out, a one-year US$5 million contract was granted to the US consulting firm Development Alternatives, Inc.[13] with the Texas A&M University[14] as an implementing partner. Part of the work has been sub-contracted to Sagric International[15] of Australia. The goal of ARDI in the name of rebuilding the farming sector is to develop the agribusiness opportunities and thus provide markets for agricultural products and services from overseas.

Reconstruction work, thus, is not necessarily about rebuilding domestic economies and capacities, but about helping corporations approved by the occupying forces to capitalise on market opportunities in Iraq.[16] The legal framework laid down by Bremer ensures that although US troops may leave Iraq in the conceivable future, US domination of Iraq's economy is here to stay.

Food Sovereignty

Food sovereignty is the right of people to define their own food and agriculture policies, to protect and regulate domestic agricultural production and trade, to decide the way food should be produced, what should be grown locally and what should be imported. The demand for food sovereignty and the opposition to the patenting of seeds has been central to the small farmers' struggle all over the world over the past decade. By fundamentally altering the IPR regime, the US has ensured that Iraq's agricultural system will remain under "occupation" in Iraq.

Iraq has the potential to feed itself. But instead of developing this capacity, the US has shaped the future of Iraq's food and farming to serve the interests of US corporations. The new IPR regime pays scant respect to Iraqi farmers' contributions to the development of important crops like wheat, barley, date and pulses. Samples of such farmers' varieties were starting to be saved in the 1970s in the country's national gene bank in Abu Ghraib outside Baghdad. It is feared that all these have been lost in the long years of conflict. However, the Syria-based Consultative Group on International Agricultural Research (CGIAR)[17] centre -- International Centre for Agricultural Research in Dry Areas (ICARDA) still holds accessions of several Iraqi varieties. These collections that are evidence of the Iraqi farmers' knowledge are supposed to be held in trust by the centre. These comprise the agricultural heritage of Iraq belonging to the Iraqi farmers that ought now to be repatriated. There have been situations where germplasm held by an international agricultural research centre has been "leaked out" for research and development to Northern scientists[18]. Such kind of "biopiracy" is fuelled by an IPR regime that ignores the prior art of the farmer and grants rights to a breeder who claims to have created something new from the material and knowledge of the very farmer.

While political sovereignty remains an illusion, food sovereignty for the Iraqi people has already been made near impossible by these new regulations. Iraq's freedom and sovereignty will remain questionable for as long as Iraqis do not have control over what they sow, grow, reap and eat.

Notes

1. Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety Law of 2004, CPA Order No. 81, 26 April 2004, http://www.iraqcoalition.org/
2. The PVP provisions will be put into effect as soon as the Iraqi Minister of Agriculture passes the necessary executive orders of implementation in accordance with this law.
3. UPOV stands for International Union for the Protection of New Plant Varieties. Headquartered in Geneva, Switzerland it is an intergovernmental organisation with 53 members, mostly industrialised countries. The UPOV Convention is a set of standards for the protection of plant varieties, mainly geared toward industrial agriculture and corporate interests. See http://www.upov.org.
4. Chapter Threequater Article 15 B: Farmers shall be prohibited from re-using seeds of protected varieties or any variety mentioned?.
5. The World Trade Organisation, wherein the Iraqi Government has an observer status.
6. http://www.grain.org/research/contamination.cfm?agenda
7. GRAIN, "Confronting contamination: 5 reasons to reject co-existence", Seedling, April 2004, p 1. http://www.grain.org/seedling/?id=280
8. GRAIN, PVP in the South: caving in to UPOV, http://www.grain.org/rights/tripsreview.cfm?id=64
9. GRAIN, Bilateral agreements imposing TRIPS-plus intellectual property rights on biodiversity in developing countries, http://www.grain.org/rights/tripsplus.cfm?id=68
10. http://www.grain.org/brl/?typeid=15
11. http://www.bilaterals.org/article.php3?id_article=387
12. United States Afghanistan Sign Trade Investment Framework Agreement http://www.ustr.gov/
13. http://www.dai.com
14. The University's Agriculture Program "is a recognised world leader in using biotechnology?" & the University works closely with the USDA Agriculture Research Service.
15. http://www.sagric.com.au
16. http://www.export.gov/iraq/market_ops/index.html
17. Consultative Group on International Agricultural Research (CGIAR) system, with its 16 International Agricultural Research Centres (IARCs) of which ICARDA is one, holds the world's largest collections of plant genetic resources outside their natural habitat, which includes both farmers' varieties and improved varieties.
18. In 2001 it was discovered that a US plant geneticist had obtained the seeds of the original strain of the famed Thai Jasmine rice, Khao Dok Mali (KDM) 105, from the Philippines-based CGIAR centre - International Rice Research Institute (IRRI). But no Material Transfer Agreement (MTA) signed in the process, despite international obligations on IRRI to enforce this.

Europe Closes Ranks On Bioengineered Food

by Elisabeth Rosenthal
International Herald Tribune
October 05, 2004

GENEVA - Some are smokers. Some drink too much. Some admit they love red meat. But virtually all shoppers here at the Migros Supermarket on the bustling Rue des Paquis are united in avoiding a risk they regard as unacceptable: genetically modified food.

That is easy to do here in Switzerland, as in the rest of Europe, where food containing such ingredients must be labeled by law. Many large retailers, like Migros, have essentially stopped stocking the products, regarding them as bad for public image.

"I try not to eat any of it and always read the boxes," said Marco Feline, 32, an artist in jeans, getting onto his bike (with no helmet). "It scares me because we don't know what the long-term effects will be - on people or the environment."

The majority of corn and soy in the United States is now grown from genetically modified seeds, altered to increase their resistance to pests or reduce their need for water, for example. In the past decade, Americans have happily - if unknowingly - gobbled down hundreds of millions of servings of genetically modified foods. The U.S. Food and Drug Administration says there have been no adverse effects, and there is no specific labeling.

But here in Europe - where food is high culture, if not a religion - farmers, consumers, chefs and environmental groups have joined voices to loudly and stubbornly oppose bioengineered foods, effectively blocking their arrival at the farms and on the tables of the continent. And that, in turn, has created a huge ripple effect on trade and politics from North America to Africa.

The United States, Canada and Argentina have filed a complaint that is pending before the World Trade Organization contending that European laws and procedures that discriminate against genetically modified products are irrational and unscientific, and so constitute an unfair trade barrier.

U.S. companies like Monsanto, which invested heavily in the technology, suffered huge losses when Europe balked. As part of a public relations effort, the U.S. State Department enlisted a Vatican academy last month as a co-sponsor of a conference in Rome, "Feeding a Hungry World: The Moral Imperative of Biotechnology."

In response to such pressure, the European Union has relaxed legal restrictions on genetically modified foods.

In May the EU approved for sale a genetically modified sweet corn, lifting a five-year moratorium on new imports. Last month the European Commission gave its seal of approval to 17 types of genetically modified corn seed for farming. But no one expects a wide-open market.

"We have no illusion that the market will change anytime soon," said Markus Payer, spokesman for Syngenta, the Swiss agribusiness company whose BT-11 corn got the approval in May. "That will only be created by consumer acceptance in Europe. There is currently no inclination among European consumers to buy these things. But the atmosphere of rejection is not based on facts. That is a political, cultural and media-driven decision."

Indeed, the battle lines between countries for and against genetically modified foods seem to be hardening. Several African countries have now rejected donations of genetically engineered food and seeds, following Europe's lead.

In Asia, reticence appears to be spreading. While countries like China and India are enthusiastically planting biotech crops like cotton, genetically modified food crops are having trouble winning approval.

Opponents of genetically modified foods "suggest that it is better for thousands to die than for hungry people to risk eating the same corn that Americans have been eating every night for the last nine years," Jim Nicholson, U.S. ambassador to the Vatican, said at the conference there last week.

Africa's rejection is based partly on health and local environmental concerns, but also on economic interests: Zambia and Mozambique have discovered a good market in selling unmodified grain and soy to Europe, supplanting the United States as European suppliers.

"In the U.S., genetically modified foods were a fait accompli; here in Europe we succeeded in preventing that," said Mauro Albrizio, vice president of the European Environmental Bureau, a policy group based in Brussels.

Genetically modified foods arrived on America's dinner plates with little fanfare in the mid-1990s as large-scale farmers in the United States enthusiastically started planting the seeds, which increased production and reduced the amount of pesticide required. Convinced that bioengineered food was "as least as safe as conventional food," the U.S. Food and Drug Administration declared that a bioengineered lemon was the same as an ordinary lemon, and did not require special labeling or regulation.

Today, nearly two-thirds of the genetically modified crops in the world are grown in the United States, mostly corn and soybeans. "In the U.S., a large part of the diet is actually bioengineered," said Dr. Lester Crawford, acting commissioner of the FDA.

"The first thing other nations want to know is how many illnesses or adverse reactions we've seen," he added. "But we haven't actually had any problems at all with bioengineered foods."

Vast amounts of money are at stake. Believing that genetically modified foods would quickly catch on throughout the world as they had the United States, large biotech companies like Monsanto invested billions of dollars. At the same time, industry analysts said, companies turned a deaf ear to Europeans' love affair with food, as well as their food fears in the wake of mad cow disease.

Since the late 1990s the European Union has required that all food containing more than tiny amounts of genetically modified materials be labeled, and that all genetically modified products be submitted for approval before sale in Europe. No products were approved during an informal moratorium from 1998 to 2003. In the past five years, many parts of Europe have enacted local bans on growing such foods.

In fact, most scientific panels have concluded that "foods derived from the transgenic crops currently on the market are safe to eat," in the words of a recent report from the UN's Food and Agricultural Organization. But the report also cautioned that crops must be evaluated case by case.

And low risk is not no risk. The 87 member states of the UN-sponsored Cartegena Protocol on Biosafety this year required labeling of all bulk shipments of food containing genetically modified products. The United States has not signed the pact.

More important, though, is that the assessment of risk depends largely on the degree of proof that a country's consumers demand.

"In their personal lives people take lots of risk - they drive too fast and bungee-jump - but for food their acceptance of risk is very low," said Philipp Hübner of the Basel-Stadt Canton Laboratory in Switzerland, which tests products in that country for contamination with genetically modified organisms. But Hübner sees his work as detecting fraud in labeling rather than as public health.

"For most scientists it is not so much a safety issue, but an ethical and societal question," he said. "This is what the public here has chosen, like Muslims choosing not to eat pork."

In a survey conducted by the European Opinion Research Group in late 2002, 88.6 percent of Europeans listed the "quality of food products" as an environmental issue with health implications.

But health fears, which can move markets, are not always consistent. In some parts of Europe, like Bordeaux, which have declared themselves freed of genetically modified organisms, energy is supplied by nuclear power plants.

To sell Sugar Pops cereal to European consumers, Kellogg's imports unmodified corn from Argentina and spends extra money to make sure that the entire transportation and processing chain is free of bioengineered products, said Chris Wermann, a company spokesman. The same cereal contains genetically modified corn in the United States. Both varieties contain all the usual sugars, artificial colors and flavors.

European advocates defend their right to be finicky. "This is not ideology - it's a pragmatic stand because of potential risks to health and the environment," Albrizio of the European Environmental Bureau said, noting that there is some evidence that genetically modified crops may trigger more allergies.

In terms of agriculture, there are some very clear-cut effects, since genetically modified seeds tend to spread in the environment once they have been planted, making it hard to maintain crops that are organic and free of genetic modification. Scientists call this phenomenon "co-mixing."

But to environmentalists and especially to farmers, it is potentially devastating "contamination." That is why the farmers of Tuscany and 11 other regions of Italy have declared themselves free of bioengineering.

"Here in Italy every area has its own dishes that are tied to the local farming," said Andrea Ferrante, a small, serious man with a black beard who owns an organic vegetable farm in Viterbo. "So for us this is about food sovereignty, about the right of a community to decide how its food its grown.

"We don't know if genetically modified seeds are bad for health. What we do know is that it will kill our farming."

In fact, European farmers and consumers have so far created a firewall against genetically modified organisms, one that the changing laws and World Trade Organization challenges may not breach easily.

"In theory you could sell GMO products here, with labeling," Hübner said. "But I'm not aware of any products that are now being sold, because no store wants them on their shelves."

The Linkage Between Patenting of Life Forms, Genetic Engineering and Food Insecurity

by Wangari Mathai, Coordinator
The Green Belt Movement, Nairobi, Kenya
May 28, 1998

The increasingly contentious debate about the impact of patenting of life forms and genetic engineering is extremely important to all humanity. This is especially true for developing countries, rich in biological resources and the traditional practices which have generated this diversity for centuries. It is this resource, called "green gold", which is now being explored and exploited by global transnational corporations.

Traders have appropriated other people's resources, including human 'resources' and territories, as free goods for centuries, usually by buying-off misinformed, unsuspecting or corrupted nationals. Biotechnology and patenting of life forms is now the new frontier for conquest, and Africa ought to be wary because a history of colonialism and exploitation is repeating itself.

Implications of Patenting Life Forms

The original purpose of patenting and the laws governing the regime were developed to apply to machinery and industrial inventions. Justice now demands that new laws be agreed, through a democratic and open process, to address the new developments in biotechnology. This is especially important when transnational corporations seek to use this technology to justify their claim for monopoly rights on living materials.

Corporations are trying to appropriate life through the same rules which have governed the world of business and profits in the past. Industry has in fact already managed to gain private monopoly rights (patents) on some living materials, by distorting the original concept and intention of patenting - as life is obviously not an invention.

This distortion has been deliberately created by blurring the meaning of invention so that corporations can obtain private monopolies on mere 'discoveries' of biological materials and their properties, such as umbilical chord blood cells and basmati rice.

This issue is critical because patenting is being applied to seeds which are the basis of societies' food systems. Corporations claim that they can mix and match genetic material through the new genetic engineering technology, to make better seeds.

However, to recuperate their investments, they also claim that they need to obtain a private monopoly right (patent) on the genetic material which they use. In fact this is to stop others from developing products with the same charactereristics, and it effectively blocks the development of other options from the patented material.

Patenting of living material is also being called 'biopiracy' because corporations get genetic material from the farmers and local communities, who are constantly developing new combinations and characteristics. This old tradition has increased biodiversity, productivity and innovation over the centuries, without using genetic engineering technology or claiming private ownership of such resources, which are considered a common heritage.

The idea that African farmers should have to buy seeds, developed from their own biological materials, from transnational corporations, because such companies have given themselves the exclusive rights to those seeds, is outrageous. The rights and the capacity of communities to feed themselves would be completely undermined, if industry managed to assert its self-given rights. In the US, farmers are punished for re-using patented seeds. Industry is trying to force farmers to buy seed each season, which makes them totally dependent on the corporations (1).

Until recently the corporations' ability to enforce their self-given rights in Africa and other developing countries was limited by many factors including distance, the large number of farmers, and lack of legislation in favour of corporate monopoly. It is precisely in order to control the traditional freedom of farmers to develop, use and exchange seeds, that the agrochemical industry has now developed what has been dubbed the 'terminator technology'. This genetically engineered technology ensures that seed injected with the 'suicide gene' does not germinate after harvesting. This means the farmers will have to buy seed each season, and cannot develop their own seed.

This the corporations themselves admit, through US scientist Melvin Oliver, the primary 'inventor' of the new patent-protecting 'terminator' technique: 'the need was there to come up with a system that allowed you to self-police your technology, other than trying to put laws and legal barriers to farmers saving seeds, and to try and stop foreign interests from stealing the technology'(2).

Under these circumstances, if we thought that slavery and colonialism were gross violations of human rights, we have to wake up to what is awaiting us down the secretive road of biopiracy, patenting of life and genetic engineering. Genocide from hunger, such as we have not yet seen, becomes a haunting possibility.

Creating Food Insecurity

This lethal use of genetic engineering biotechnology threatens the food security of this and future generations. It destroys the very basis of the livelihood systems which our ancestors have developed for centuries, finely adapting to the diverse ecosystems in which they have evolved. The development and control of farmers' own biodiversity is an inalienable right and the basis upon which food security is achieved. What the transnational corporations and their government allies are advocating undermines, the life style, values and ethics of farming communities. It is indeed a violation of their right to food and to natural justice.

History has many records of crimes against humanity, which were also justified by dominant commercial interests and governments of the day. Despite protests from citizens, social justice for the common good was eroded in favour of private profits. Today, patenting of life forms and the genetic engineering which it stimulates, is being justified on the grounds that it will benefit society, especially the poor, by providing better and more food and medicine. But in fact, by monopolising the 'raw' biological materials, the development of other options is deliberately blocked. Farmers therefore, become totally dependent on the corporations for seeds. Market monopolies create pricing structures which make biotech products inaccessible to the poor, in whose name they are promoted. In fact the poor cannot access these markets. Instead they are persuaded, coerced and sometimes forced, to grow cash crops like coffee, tea, cocoa, french beans and flowers rather than growing food for household consumption. They have to do this to generate the cash, to buy the seeds and associated chemical inputs such as fertilisers, pesticides and herbicides from the corporations. In addition they have no control of the pricing of the cash crops nor of the food they have to buy as a result.

They are at the mercy of the fluctuations of the commodity markets, and so are their governments which get into debt to buy the food they need to feed their people. This distorted process has been engineered by the 'free' trade ideologies, so that corporations can generate their ever-growing profits, which cannot be made if people feed themselves and control their local economies. The process also ensures that international debts, incurred by national governments so that they can buy commodities from international markets, are serviced by local communities which are thereby kept in perpetual debt bondage and poverty.

Why Genetic Engineering will Not Feed the World

At present the transnational biotechnology industry is aggressively persuading the resisting European consumers that genetic engineering will feed the growing populations in developing countries. It is now widely accepted that food security for local communities means the capacity to access, develop and exchange seeds and to produce enough food for the households, only selling the surplus to the market. Likewise, national food security means the capacity for a country to produce enough seed and food for its citizens and only the surplus should be sold to the commodity markets abroad.

However, for the corporations, food security means growing numbers, able to buy seed and food from the commodity markets they control, which is what makes it inaccessible to the poor.

Indeed, only northern consumers can afford goods from these markets, which is why the biotech industry has to persuade the resisting Europeans - through coercion if necessary - that genetically engineered food will feed the world. Thus transnational corporations would begin to harvest unjust profits at the expense of local food security.

The resistance must continue to grow, North and South, in solidarity, in order to avoid the old tactic of divide and rule.

Notes

1. 'Monsanto Rounds Up Farmers' Seedling (March 1998, Vol.15 No.1), GRAIN
2. 'The Terminator Technology: new genetic technology aims to prevent farmers from saving seed', RAFI Communique (March-April 1998), RAFI

http://www.genet-info.org/-documents/AfricaGMOsPatents.pdf

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