By Anne Casey
More than 150 countries signed the Biodiversity Convention, in principle, a year ago at the Earth Summit (UNCED) in Rio de Janeiro, but the agreement is still a long way from doing anything very concrete to preserve species diversity.
The initial document was subject to much further discussion before going to governments for ratification. An agreed text was adopted in Nairobi only in May.
The US government under George Bush refused even to sign the convention, out of concern for intellectual property rights of US companies.
In his Earth Day address on April 21, President Clinton announced that the US would sign. But he also announced his intention to issue an interpretive statement that would address "problems" with technology transfer, funding and intellectual property.
The US wielded considerable influence in the post-
UNCED discussions despite the fact that it had not signed the convention. Jean Christie of the Royal Advancement Foundation comments:
"The only government represented in all the meetings was the United States government and they were the only one ... not a signatory to the convention. They weren't observers, they were present in the inter-governmental discussions of what various language meant. The US's concern and interpretation of language particularly relating to biotechnologies and intellectual property is bound to be a conservative one and is bound to be in their interest and particularly not in the interest of developing countries, which is our concern."
US industry's primary concern was the fear that the convention might allow compulsory licensing to be used as a mechanism for technology transfer.
For a private company to maintain its patent rights when selling a product to another country, it must first obtain a patent in that country. At the patent holder's discretion, the rights to build and sell the product can be licensed to another individual or company.
All countries, including the US, have provision for "compulsory licensing" of patented technology under specific circumstances. Compulsory licensing requires a company to license a patented product or technology under terms specified by the government.
Governments retain this authority in order to ensure that important new innovations are not withheld from the market by the self-interest of patent holders (e.g. new patent technology may compete with its own product) or, in the case of many developing countries, to ensure that a patent held by a foreign company is "worked" in that country.
Developing countries establish patent protection in part to stimulate the transfer of technology to their countries. However, if the patent holder only sells the final product without transferring any of the skills for producing the product (i.e. "working" the patent) the benefit to the country is greatly reduced.
Clinton has worked hard to protect US industry in regard to these issues, and the convention includes strong language. The US delegation lobbied successfully to include the statement that "access and transfer shall be provided on terms which recognise and are consistent with the adequate and effective protection of intellectual property rights."
The phrase "adequate and effective protection" was a major concession to the United States.
A coalition of groups, including Greenpeace, has objected strenuously. Andrew Kimbrell, a lawyer with the Foundation on Economic Trends in the US, commented in New Scientist, "This statement gives carte blanche for the exploitation of resources by US companies. And now we're taking this watered-down treaty and forcing it down the throats of other
countries."
Bob Phelps of the Australian Genethics Network, based in Melbourne, says, "American companies will still be expecting to get genes and plants, animals, microbes etc and the genetic resources that they represent from around the world for gratis, without having to pay anybody or respect anybody's sovereignty or the rights of indigenous people.
"They will be able to patent them and own the intellectual property that's represented by those organisms. On the other hand, they will not be required to transfer any technology, know-how or any other kind of quid pro quo to the people to whom those resources in a sense belong because they're indigenous, local resources. It is indeed unfortunate that a country as powerful as the US has signed the convention under such qualified terms."