'Hidden agenda of TRIPS'

INTELLECTUAL PROPERTY RIGHTS IN THE WTO AND DEVELOPING COUNTRIES: Jayashree Watal; Oxford University Press, ``Oxford House'', 219, Anna Salai, Chennai-600006. Rs. 675.

THE BRETTON Woods Conference (1944) inaugurated a fresh drive, imparted a new dimension and generated a paradigm shift vis-a-vis the western leaders by a switch in weltanschauung from global military supremacy to a world trade dominancy. War or peace, the focus was on greedy grab of global business. A materialist metamorphosis, from bleeding conquests by wars under various pretexts to gobbling up markets by bullying ploys, trade traps and treaties under threats - that is the blitz-striking success. Resources of weaker nations are currently under a predatory process of glowing globalisation minted to mean, according to Orwellian double-speak ``rob-grab globocracy'' by Gargantuan xenophilic corporatocracy. Kleptocracy is the locomotive for launching operation big business. The hidden agenda behind the Bretton Woods voodoos, such as the IMF, the World Bank, multilateral trade negotiations has been commercial subjugation of nations by bizarre methods like IPR (international property rights) and other mystic acronyms. The most important and intriguing development during the GATT (general agreement on trade and tariffs) process was the Uruguay Round of Multilateral Trade Negotiations. What was won was a great advance by manipulating the serendipitous inclusion of TRIPS (trade related intellectual property rights) in the Punta Del Este (Uruguay Round). Naive nations like India gave in to knave quasi-imperial arm-twisting. Some of our team members, one suspects, spoke not for us but for the U.S., according to critics - a la V. C. Shukla. Today, some of them are in the WTO (World Trade Organisation) camp! Why? How? Defection or affection?

The TRIPS is the offspring of the GATT and is the product of seven long years of dialogues and negotiations from September 1986 to December 1993. These dubious confabulations and diplomatic pressures were formally finished in April 1994 at Marrakesh, Morocco. The TRIPS came into force on January 1, 1995 with the establishment of the WTO. The GATT, with imperious authority governs global trade, and the international instrumentality which rules from a super-sovereign height is the WTO. Many statesmen of the Third World have condemned GATT as ``GATTastrophe'', while the Indian establishment, with a procession of prime ministers, finance and commerce ministers have made make-believe dissents, but obeyed the WTO. In short, notwithstanding victimisation of the masses, deepening poverty and unemployment and mobilisation of opposition by NGOs and social activists, the world corporate might marches on. ``The dogs may bark, the caravan will pass,'' is the cavalier mood of the GATT junta drawn from the ruling class.

Among the most controversial of the GATT treaties is TRIPS - the V-weapon in Operation Globalisation. ``The tryst to wipe every tear from every eye'' made by Prime Minister Nehru when India celebrated its freedom is forgotten and imperial acronyms like TRIPS, TRIMS, TRIS, WIPO, MAI and what not, dominate cabinet, parliament and perhaps even the judicature. Quo vadis Indian socialistic democracy, sovereignty and constitutional supremacy? These are the dialectics, dilemmas and challenges which demand debate, not ``zero hour'' sound and fury nor polemic pandemonium. The spinal issues of great moment go by default. Political parties, with babels and bedlams, exaggerate local and regional tremendous trifles inside and outside the House - a scenario of pathos and bathos, while xenophilic policies and legislations and obliging anti-people, pro-MNC budgetary mutations get implemented without protest. While opposition parties, apart from strident statements, do no eloquent, dialectical, people-oriented inquests, TRIPS and other fatal treaties are executed, by the Treasury Bench, behind the people's backs. So India succumbs to ``GATTastrophe'' and TRIPS syndrome. Trading Indian economic freedom for trade-related IPRs is re-colonisation.

Now to the odyssey of intellectual property rights. The book under review is all about this enigmatic theme. The TRIPS has the inscrutable face of the sphinx. The East and the West interpret this treaty as suits their interests and the WTO resolves disputes often in favour of the North. ``Fair is foul and foul is fair'' - depends on who is West and who is East.

Intellectual property rights (IPRs) are legal rights governing the use of creations of the human mind. This term covers a bundle of rights, such as patents, trade-marks or copyrights, each different in scope and duration with a different purpose and effect. The mundane object generally is to exclude third parties from exploiting protected subject-matter without explicit authorisation of the right holder, for a certain duration of time. Monopoly, sans humanism, is the essence of patents without fear of loss or control over their use. Do IPRs help creative and inventive activity of orderly marketing of proprietary goods and services? No, alas, no.

What a pity, today, the world is a macro-victim of the MNCs which corner, through patents, life-saving drugs. They hold humanity to ransom. India has an excellent legislation which serves industrial and agricultural advance, promotes people's health and is subject to state control in public interest. Our pharmaceutical progress is phenomenal and our law of patents is compassion in action. We may be soon tripped by TRIPS in many ways and so our parliamentarians have to be on their guard with vigilant humanism, as each clause of the amending bill is passed.

We have, as of 1970, an excellent Patent Law. Process patent, not product patent, restrictions in public interest and life-saving drugs and agriculture are of special concern. Brevity of patent term and compulsory licensing are in public interest. Process patent law, with a human face, is allergy to GATT geared to greed, even as product patent has a pick-pocket proclivity, forbidding rival research. This value contradiction is inevitable when MNCs operate for mega-profits and the Constitution desiderates social justice.

The author has chosen to dwell at length on TRIPS, in a scholarly fashion, of course, with a westward slant wrapped in academic apparel. The agony of impact on Indian masses hardly troubles bosoms of pro-WTO intellectuals. Her book makes indispensable reading for all those involved in intellectual property rights, pro-TRIPS litigants and lawyers, jurists and MNC propagandist puppeteers. This painstaking book does credit to the author's presentation, although the reviewer must confess that he is critical of TRIPS as destructive of India's development.

The competence of the author has added value since she was participating in the formative Uruguay operations. Our Parliament is currently discussing amendments to patent law. It is tragic to jettison that precious legislation of 1970; but under evil pressure from semi-imperial forces, Parliament is yielding at the expense of the people of India. Even so, Article 7 sets out a seemingly noble objective. It provides explicitly that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and for purposes conducive to social and economic welfare. Why not explore the farthest frontiers of these words with semantic amplitude? Article 8 permits adoption of measures ``necessary to protect public health and to promote the public interest in sectors of vital importance to their socio-economic and technological development.'' The battle for patent justice is supported by this broad phraseology. Article 27, dealing with patentable subject-matter, allows members to exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect public order or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment. Vast is the meaning if your heart is with the people. These provisions, if imaginatively, humanistically and compassionately construed with hermeneutic harmony promotive of the Preamble to the Constitution, may go a long way to save many of our present provisions and reject the vicious ambition of big corporations ``red in tooth and claw''.

I wish our MPs presented the kindly side of the case - sans noisy walk-outs. As an Indian aware of ground realities, certain damaging dimensions of the TRIPS could have been exposed by the author. Her book is factual, true, but the plea for the humble humans goes by default.

Many people in our country are not familiar with the new developments in the modern science of biotechnology. In a chapter titled ``Plants, genes and bio-diversity'', she has much instructive material to offer. The TRIPS and its relevance to biotechnology are discussed with clarity. She rightly points out that the U.S. belief that anything under the sun made by man except human being was patentable is egregious. Indian readers will be interested to read Article 7, 8 and 27.3 (b) of the TRIPS, which set some useful parameters.

But what is the definition of a microorganism? Here again is disputed area. It is instructive to read the description in chapter five on this subject. The author takes the position: however, given the existing technological gap between developed and developing countries under the capital-intensive nature of product development, the best way forward for developing countries seems to be collaboration and not confrontation.

Copyright and related rights have come in for thorough examination in the book. So too, trademarks and geographical indications. To deal with them in detail will take more space than a review can permit. Nevertheless, I must emphasise the importance to India of geographical indications - a la Basmati rice.

The TRIPS is really a conquest by patent of developing countries. The WTO has effective mechanisms for monitoring and ensuring compliance with the TRIPS standards. Generally speaking, the dispute settlement mechanism of the WTO may not favour India or like countries when pitted against American might or like MNC giants. The fight is likely to be rough, resulting in an exchange of difficult concessions between the ``demandeuse'' and others. The struggle to modify the TRIPS in favour of developing countries is an urgent necessity but boneless ministers and spagetti-spine politicians leading Third World countries must stand up with guts to battle for their rights.

One concluding caveat. The author's industrious process and persuasive product deserve study. But her readers must remember that there are critics who hold that TRIPS harbours hidden agendas dangerous to our ``swaraj''.

V.R. KRISHNA IYER

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