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GENERAL AGREEMENT ON TARIFFS AND TRADE AND WORLD TRADE ORGANISATION
GATT (General Agreement on Tariffs and Trade) is both an international agreement and an adhoc organisation with 128 member countries and had an existence of about 48 years (started in 1947) and seven rounds of international meetings. GATT is now absorbed by the World Trade Organisation (WTO) since January 1, 1996. WTO has about 115 member countries and this number is expected to increase to 155 to cover 95 per cent of the world trade.
GATT includes an agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) which deals with the issue of Intellectual Property Rights (IPR) over living organisms and products, and processes derived from them. Medicinal plants are now seen as an important aspect in the context.
Certain differences exist between cultivated (crop) plants and medicinal plants, but by and large the issues of rights are similar.
The agreed version of the GATT (the Uruguay Round, approved on December 15, 1993), under Section 3 of Article 27, states on ‘Patentable Subject Matter’, that members (countries) may exclude from patentability
"b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes".
"However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof" (see Swaminathan, 1993).
INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS
In the industrialised countries, different forms of protection of Plant Breeders’ Rights (PBR) operative within each country.
A Union Internationale Pour La Protection Des Obtentions Vegetales (UPOV; International Union for the Protection of new varieties of plants) was established in 1961 in Geneva for co-ordinating inter-country implementation of PBR. The objective of UPOV is to ensure that the members states of the Union acknowledge the achievements of breeders of new plant varieties, by making available to them an exclusive property rights, on the basis of a set of uniform and clearly stated principles. To be eligible for protection, the varieties have to be
i) distinct from existing, commonly known varieties,
ii) sufficiently homogenous,
iii) stable, and
iv) new in the sense that they must not have been commercialised prior to certain dates established by reference to the date of the application for protection.
Although the convention was signed in Paris in 1961, it became enforceable only in 1968. It has been revised in 1972, 1978 and 1991, but only the 1978 version has the force of an Act as the 1991 version has not yet become an Act. The 1991 version provides the option to countries to choose both patent and PBR system of legal rights.
CONVENTION ON BIOLOGICAL DIVERSITY
Another organisation, the Convention on Biological Diversity (CBD) has come into force, with a membership of 133 countries, in December 1993. CBD aims to promote conservation of biological diversity, sustainable use of its components and equitable sharing of the resultant benefits. Till CBD came into force, living organisms were considered a common heritage of the humankind, but CBD accepts them as a sovereign property of the nation states. All member countries of CBD agree to facilitate access to biological resources of which they are sovereign owners. In return, CBD promises, developing countries of origin of such resources, preference in location of research and developmental activities, favourable terms for transfer of technology and assistance towards development of technological capabilities (see Gadgil and Devasia, 1995). CBD also promises such treatment not only on behalf of national governments, but private enterprises as well.
GATT (now WTO) and CBD represent two signiicant and separate approaches to the utilisation of living resources of the earth to human ends. WTO aims to promote global economic growth by removing impediments to international trade. TRIPS protects intellectural property rights. CBD guarantees access to living resources and, rights and economic returns on them (see Gadgil and Devasia, 1995). UPOV is exclusively concerned with the rights related to new varieties of plants.