Reprinted from The Ecologist, Vol. 28, No. 4, July/Aug 1998

Moral Bankruptcy: Adoption of the EU Life Patents Directive

We have always been told that the EU Life Patents Directive, passed without amendments at its second reading by the European Parliament, is merely a harmonization measure which doesn't actually change anything. But, like claims by proponents that genetic engineering is no different from conventional breeding, statements of that sort inevitably arouse suspicion. It is, of course, investment in genetic engineering that this directive is primarily designed to "protect". Without the protection given by patents, genetic engineering would not be developed so aggressively by the corporations. The directive actually sets an ominous precedent: it establishes a legal framework for patents on life in Europe for the first time. Such patents are already being granted, but on a case by case basis, while the directive takes them for granted and legislates for them. This has been done without any consultation with the European public and without impact assessments of any kind.

So what will the consequences be? And why should patents, originally designed to balance the interests of the innovator and the public, be such a threat? The problem is that patents have been converted by corporations into a perfect instrument for gaining exclusive monopoly control over the biological resources essential to life. By gradually perverting the application of patents so that the basic distinction between invention and discovery is blurred, they have opened the way to patents on all genes and cells, whole animals and plants, and human parts. They have understood that this is the way to direct, control and profit from development, above all in food and medicine and ultimately, a means of making us dependent on them for all our needs. The directive is a step on the road to a global framework for intellectual property rights protection, of which patents form a crucial element.

It also sends a clear signal that Europe has taken the same position as the US on life patents. During the negotiations of the Trade Related Intellectual Property Rights (TRIPs) Agreement in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), the EU supported Southern countries in their resistance to patents on plants and animals, and the Agreement currently allows countries to exclude such patents and to develop their own sui generis law for plants. By explicitly allowing patents on plants and animals, Europe makes it almost impossible for Southern countries to resist US pressure for such patents. It also makes it more likely that when the review of that section of the TRIPs Agreement takes place, all freedom of choice regarding patents on plants and animals will be removed.

At the first reading of the directive, the Parliament adopted several amendments, including a key article designed to limit "biopiracy", the theft of genetic resources for exploitation, usually from the biodiversity-rich South. It called for the source of genetic material to be named in a patent application and for a guarantee that national laws had not been violated in making that application. It also called for prior informed consent from the human donor of genetic material. Yet these albeit mild provisions proved intolerable for industry, which was already in possession of a large amount of genetic material for which consent has not been obtained. The amendment was therefore removed by the European Commission. Parliament could have voted for the reinstatement of this and other amendments, but failed to do so by a considerable margin. This only confirms the suspicions of Southern countries that the European Parliament has been beguiled by industry into betraying its obligations to the developing world for dreams of European jobs and competitiveness which, in any case, are likely to prove illusory. The consequences are clear: biopiracy will intensify, affecting people in both hemispheres.

There are many other grounds for discontent with the directive. For one, it is internally contradictory: it says that human genes cannot be patented, but goes on to say that they can, if isolated and identified. It also says that plant varieties may not be patented unless an "invention" applies to more than one plant variety in which case whole species and complete ranges of basic food crops may be patentable. Such contradictions have been used to deceive people into thinking that human genes and plant varieties will not be subject to patent cover. But what has become clear is that the corporations are seeking full patent rights over life and that the directive is their means of achieving them in Europe and then globally through the TRIPs Agreement in the World Trade Organization.

The directive also conflicts with the European Patent Convention, which provides the overall framework for patent law in Europe. This clearly states that plant varieties shall not be patentable, and the European Patent Office follows the Convention and openly acknowledges the conflict between the two on this issue. The Convention also clearly states that surgery, therapeutics and diagnostics shall be excluded from patent cover. Several attempts were made to put this wording into the directive and they were always rejected on the grounds that the Convention contains them. However, the decision to develop a directive rather than revising the Convention strongly suggests that corporations intend the directive to take precedence over the Convention by default in all the areas of interest to them. This is how they have always proceeded: gradually establishing precedents that become accepted practice, as in the extension of patents themselves over life.

But perhaps the best way to describe the real consequences of the directive is to imagine the world which corporations dream of: a world where they control food and medicine and the biodiversity which underpins it: a global system of intellectual property rights "protection", where any patent taken out anywhere immediately applies throughout the world. Research is motivated by profit rather than public interest. There would be few farmers, and they would have been reduced to contract labour, and made entirely dependent on large companies for materials and markets. Food production, in this world, is only marginally connected to agriculture and much of it takes place in laboratories and factories. Plants are genetically engineered to deliver foodstuffs designed for "customized" animals. Incomplete animals and then humans are developed to provide spare parts or to act as factories for the production of drugs. Most people are excluded from this world, and those who have not been able to maintain their own way of life exist in hunger and disease within devastated ecosystems. Alternatives to this customized world such as organic food, local production and distribution, alternative medical practice and medicines have been eliminated through patents, official seed lists, and other corporate-friendly regulations enforced through the World Trade Organization, which by then would have become effectively the world government.

If this scenario seems extreme, then consider the "suicide seed", or "terminator technology". This was developed by the US Department of Agriculture with a company called Delta and Pine Land. Nearly $250,000 of public money was sunk into this sophisticated genetic engineering technique. It is designed to stop farmers from saving harvested seed by preventing that seed from germinating when planted. Seed saving has been practised since the beginning and has led to an astonishing and vital diversity in agriculture. So why has Terminator been developed? The reason, of course, is that seed "saving" reduces corporate profit and control. The terminator technology is designed to force farmers to buy new seed each year, so giving companies the incentive to go into crops and regions which they have not yet entered. A number of companies have expressed an interest in using the technology and Monsanto Corporation is now buying the company which developed it. However, instead of increasing food production, the Terminator technology could lead to starvation. Millions rely on food produced by farmers who save seed and continue to generate the diversity on which food security is based; what's more, farmers themselves will suffer as they are pulled into dependence on distant corporations like Monsanto. And, as Mae-Wan Ho has explained (The Ecologist, Vol.28 No.3) the terminator genes could transfer into other plants, leading to an uncontrollable destruction of biodiversity. There could of course be other outcomes; what little we know of genetic engineering so far teaches us that the only thing that can be predicted is that the impacts are unpredictable. But perhaps the deepest issue is the moral one: what makes us think we have the right to interfere in the capacity of a seed to reproduce itself, solely in order to generate private profit and monopoly control?

How have we reached this level of moral bankruptcy? An amendment to the directive calling for an Ethics Committee to examine the impacts of patents in biotechnology was reintroduced but failed to be adopted at the second reading. However, discussion about the ethics of patenting has often failed to address the real issues. The President of the Guaymi General Congress speaking about the patenting of the genes of a Guaymi woman catches them perfectly: "I never imagined people would patent plants and animals. It's fundamentally immoral, contrary to the Guaymi view of nature and our place in it. To patent human material ... to take human DNA and patent its products ... That violates the integrity of life itself, and our deepest sense of morality."

The scenario that emerges from the fearful synergy between patents and genetic engineering suggests that the corporate world now believes that human institutions such as corporations and markets are more important than the planetary life support system, and that money is more important than biological diversity, to the point that "profit creation" is their answer to hunger. This blind arrogance results from the fact that modem industrialized society is completely cut off from the consequences of its activities. Feedback is fundamental to the way the planetary ecosystem regulates itself so as to be hospitable to the optimum diversity of life, which in turn enhances its stability. Gaia maintains the ideal conditions for life on Earth through feedback and response. Those who are cut off from feedback cannot respond appropriately. To refer back to the Guaymi president's words, industrialized society has lost all sense of the proper place of human beings in the scheme of things to the point where it believes that it is right to own, control and fundamentally change life itself. We have lost all sense of our appropriate place in nature.

Industrial society has lost its sense of proportion because it puts private profit before collective well-being. Food and medicine are based on the observant creativity of millions of innovators over millennia, who have contributed to the wonderful diversity of crops and medicines, wisdom, culture and tradition, the treasure house which modern industrial technology is now raiding and destroying without restraint. These resources were developed collectively and inclusively and shared for the common good, and markets and trade of the right kind contributed to the creation of this great wealth. The intellectual property rights which industry now sees as fundamental to its needs are private, individual, exclusive property rights. The contradictions between these differing world-views and concepts of rights are central to the moral, philosophical and political issues which we must face if we are to stop racing towards the world sketched above.

So let us have the courage to say it: patents on life are wrong in principle and in practice. Private monopoly rights over life are morally repugnant. The unrestrained pursuit of profit is distorting science, ethics and humanity. Life is a gift, not a human invention and should not be privately owned or manipulated. Genetic engineering in the context of ownership and control is a clumsy violation of life and an abuse of science and we don't need it. Industrial societies urgently need to rediscover wonder and reverence for nature. Instead of seeing plants merely as things to own and manipulate for profit, we should remember how, by converting light into food, they feed us. Instead of seeing bacteria as instruments for technology, we should remember how they are the ones who keep the planet in the optimum condition for life. Instead of seeing farmers and indigenous peoples in the South as backward, we need to acknowledge how much of our food and medicine and our knowledge is based on their refined observation, their wisdom and their work. The alternatives to the corporate take-over of life are clear; they are based in collective processes of assuming responsibility, local control and distribution of resources according to real need. These issues go to the heart of life itself and we must stop, reflect on them, try to understand the implications of what we are doing and change. We can choose and we must.

Helena Paul (works with the Gaia Foundation)

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