The government says there are opportunities to improve the Dunkel packager but not all are convinced that it is trying hard enough. Environmentalists and farmers fear the country may wind up …

Gathering storm: The attack on RESISTANCE to GATT secretary general Arthur Dunkel's proposals is building up in India. But even as the government tries to pacify fears that it will give *in to the General Agreement on Tariffs and Trade (GATT) - the all- encompassing global trade rules that are being negotiated - its game plan seems ambiguous and the indications are it will be forced to toe the line of developed countries.

Shortly after nearly 15,000 farmers gathered in Delhi (see page 5) to bum a copy of the Dunkel draft (DD) text, Prime Minister P V Narasimha Rao assured Parliament the government would spare no effort to protect India's interests. Nevertheless, several members of Parliament and envi- ronmentalists are dissatisfied.

Sharad Yadav, the Janata Dal (B)'s firebrand parliamentarian, exemplifies anti-Dunkel opinion when he the intellectual points they form the most crucial aspect of a "strategy of industrialised countries to deny nations like India access to technology, capacity for technological change, or acquisition of any competitive capacity."

In lay terms, intellectual property refers to the invention or formulation of a product, technology or design and rights to the reognition of the inventiveness. Developed, countries argue the neglect of IPRs by others - Third World countries in particular - has made their goods and services available without adequate compensation. Under Western pressure, Trade Related Intellectual Property Rights (TRIPS) were made part of the GATT agenda in 1986 at Punta del Este, Uruguay.
Loss aF freedom Dinesh Abrol of Delhi's National Institute of Science, Technology and Development Studies, who is also joint convener of the National right (IPR) provisions in DD are the Working Group on Patent Laws, most damaging, especially because warns, "A uniform acceptance of the IPRs regime suggested by DD, would resulHn the total loss of freedom that is now allowed by India's patent laws, to keep scientific research in line with the country's developmental objectives and other social and economic interests."

While DD proposes that "patents will be available for any invention, product and process in all fields of technology", the existing Indian Patents Act (IPA), 1970, does not provide patent, protection for certain products. IPA grants patents only to processes used to make a product, provided they vary from the process used to make the original product. Before 1970, multinational corporations were free to use product patents to prevent Indian enterprises from producing their products. But, Abrol points out, after IPA was enacted, Indian pharmaceutical firms could make new medicinal drugs between three and five years of their introduction abroad.

In a related argument, Nirmal K Chandra of the Indian Ins ,titute of Management in Calcutta, notes the TRIPS scheme demands licensing of intellectual property in such stringent terms that patent-holders can prevent the use of even basic scientific knowledge to develop new or secondary technologies. If enforced, warns Abrol, the licensing provisions would hit several fast- growing, export-oriented industries, especially computer software because "any fresh soft- ware package needs some existing software".

However, the most dramatic protests in the country during the past prevent the use three months have been against DD's proposals on IPRs for biological processes, plants and animals and biotechnology. These are the provisions that have become the target of protests by farmer organisations, such as technologies the Bharatiya Kisan Union and the Karnatak Rajya Ryota Sangha, who contend present Indian law does not recognisC intellectual property in any form of life - plant or animal.

DD allows protection of plant varieties "either by patents or any effective sui generis system" and environmentalist Vandana Shiva notes the latter requirement "semantically suggests that while various signatories to GATT would be allowed to have their need-specific IPR systems, its implication may actually be the opposite". According to her, the key word, is notes that the efficacy of an IPR system will be decided not by the country of origin but by the developed countries who dominate GATT. Indian agricultural experts warn sui generis systems in developed countries have strengthened rights in favour of plant breeders, not farmers. Most importantly, they prevent farmers from multiplying and selling seeds of new varieties.

There are other powerful sections of Indian industry and agriculture who feel DD's provisions will facilitate growth and expand.economic activity. A prominent leader of this group is Maharashtra's Sharad Joshi, who is actively mobilising pro-Dunkel opinion. Pro-Dunkel lobbies in industry include Associated Chambers of Commerce, Federation of Indian Chambers of Commerce and Industry (FICCI) and Confederation of Indian Industry. FICCI president K R Poddar states that DD, despite certain shortcomings, represent a "good compromise formula". In the drug industry, the Organisation of Pharmaceutical Producers of India, which is dominated by multinationals, is strident in its demands that the Dunkel proposals be accepted.

Intellectual Property Rights: The Variuos Views

Indian government's concerns with the Dunkel draft

Commerce ministry's comments: What the critics say:
If the facility for process palents, currently enjoyedby Indian drug manufacturers, is taken away,prices of several medicines patented by MNCs will soar.  The magnitude of the price rise will depend on a  variety of factors. in any case, medicines Whose  product patents are held by MNCs account for only 10 per cent of 10101 drug soles in india

American MNCs own a high proportion of certain widely used drugs and formulations. US market share is: antibiotics, 42%; antibacterials, 98%; car-diovasculors, 51 %, and anti-Ieprosy drugs, 70%.

MNCs can claim they are "warking" palents in India by imparting the praducls from the productian cenn. This will resulr in the domestic market being served entirely by imparts

.

Negotiations are in progress to ensure that if a potent is not worked within the country, the patent- holder will hove to license production compulsorily to an indian associate.

Delails of negotiations are not available.
DO provisions require a minimum 20-year validity period for a patent. The Indian Patents Act limits thisto 7-14 years.

 There is international consensus on the 2O-year  period.

The Indian government must specify its sland.
A patent's validity period can be increased manifold under DD provisions because they demand sondary producers prove they used an original process.

 This provision has intentional consensus and it  does not appear to be inconsistent with Indian laws.

Indian law demands such reversal of burden of proof only in "dowry deaths" and rape cases.

While India has been given a 10-year transition period to the new IPR system, Article 70.8 also allows pharmaceutical and agrochemical Firms to File applications for products within one year of signing the new GATT occord. The applicants will be given monopoly marketing rights for Five years from the date of application.

 The 1 O-year transition clause was obtained in the face of determined opposition by the industrialized  countries, particularly USA. India is trying to get  Article 70.8 deleted.

No delails of the government's efforts are available.
The impact of IPRs on plant varieties will restrict the growth of Indian agriculture. DD allows India to determine the elements of sui generis, which will protect the interests of Indian formers and agricultural scientists. No thought is being given la the development of such a system. The only such system that is regorded by Western countries la be efficient is the Union for the Protection of New Plant Varieties (UPOV), which grants plant breeders' rights. Recent UPOV amendments have diluted rights of formers and scientists.
Patenting of genetic material will have an adverse The ministry is discussing with principal trading notions the exclusion of life forms from potentobility. No delails of the discussions are available.


Muscle and bone
Union commerce ministry officials, meanwhile, say they are willing to hear both sides. But, the government seems to be closer to the pro-DD position, contending IPRs are as vital for the Indian economy to develop foreign investment, as "muscles and bones are to the human body". Union commerce secretary A V Ganesan, while hinting that his ministry is with DD, nevertheless told a recent meeting of industry organisations that it is important the country to maintain farmers' rights to acquire and retain plant and seed varieties.

Though much of future Indian scientific and industrial activity will be affected by DD, the Union commerce ministry, as the GATT talks supposedly concern trade. Commerce ministry officials insist they are aware of the dangers to Indian interests and they are negotiating safer grounds of agreement. Nonetheless, many politicians and activists accuse the commerce ministry of being far too secretive and even MPs attached to the ministry's consultative committee and others who have served on it say they have no definite information on the strategy and scope of India's negotiating positions.

This impression cuts across even party lines. "We have been told only that the government is doing something. What this means, no one knows," says Hannan Mollah of the CPM. And, Prithviraj Chavan of the ruling Congress, who is recognised as an erudite commentator on GATT-related issues, concedes, "Parlia-ment has not been given much information on DD negotiations." But, he argues, its better that these complex issues are left to experts.

In contrast, Union agriculture minister Balram Jakhar, who is reportedly influential among farmers in Rajasthan, Punjab and Haryana, told Down To Earth his ministry has sent a detailed note to the commerce ministry outlining its "opposition to the Dunkel proposals three months ago. I am still waiting for an answer."

Unexamined implications
Indeed, Parliament itself has found little time during the past two years to examine the implications of DD he and what must be negotiated.Eighteen months ago, nearly 350 MPs raft will for signed a petition urging the government to recognize the latent dangers in the TRIPS scheme. Mollah, who initiated the campaign, recalls, "Many MPs agreed to put their names on simply because I told them that GATT was dangerous to the country. Most of them did not even ask what GATT was about."

Not surprisingly, the position on DD of several MPs conforms to dwir party's stand on liberalisation and globalisation of the Indian emnomy.

"Do you really think it is possible Jw India to reject outright the Dunkel dmft?" asks Chavan. "Can we stay Wated like Albania or Myanmai?" Any sober cons*deration of India's Oftrests, he contends, must recog nise that India accounts for only 0.4 per cent of global trade and can negotiate only from this position. But he adds, "As our economy grows stronger, we will acquire greaterweight in global negotiations."

In contrast, Mollah foresees DD's impact on India as "nothing but a recolonising process". And adopting a midway stance is BJP representative Prem Kumar Dhumal, who wants India to sign DD "but only after extracting more favourable terms".

Though Dhumal is flummoxed when asked how such terms can be obtained, he is not alone in his conviction. The commerce ministry argues in a note to MPs that as many developed countries are still bickering over DD, "there may be opportunities for us also to seek improve ments and changes in the Dunkel package". But former foreign secretary Muchkund Dubey, who was a member of India's negotiating team at several GATT meetings in the late 1980s, explains the implication in the note is that "on its own, the government has no mind to seek changes. If developed countries sank their tradie differences on issues such as agriculture, India would accept the fait accompli presented to it."

Opinions within the country are polarised, but how strong the anti-Dunkel opposition can become depends on how much force the nation's farmers can muster.

The Brussels draft Versus The Dunkel Draft

Developing countries are concerned by the silent disappearance of some and the qver-simplificalion of other provisions of the Brussels Draft, 1990 -the first draft agreement reached during the Uruguay Round of multilateral trade negotiations. These provisions were of special interest 10 developing countries and were open for negotiations. But they da not find a place in the Dunkel draft text of 1991, which claims 10 be a "comprehensive representation of the final global package of the Uruguay Round". The new draft blocks several options for developing countries and scuttles the scope of further negotiations. An ourline of the major differences between the two drafts:
Brussels draft Dunkel draft
1. ON WHAT CAN BE PATENTED
Article 30 leaves wider options for exemption from potentobility. It provides for exemption of plants and animals, including microorganisms and processes for their production. Furthermore, on grounds of public interest, national security,public health and nutrition, certain products like foods, chemicals and pharmaceutical products and their production processes may be exempted. Article 30 withdraws the exemption status of microorganisms and microbiological processes. It allows exemption only ta plants and animals and biological processes. This provision is subject ta further review.
The time frame for review of this provision is negotiable. The time frame for review is fixed at 4 years.
2. ON THE CONDITIONS AND OBUGA TIONS OF PATENT -HOLDERS
Article 32 speciFies the obligation of potent-owners to ensure that the working of potents satisfies public requirement. Article 29 does not list the obligations of potent-holders.
It also specifies that working or exploitation of potents would mean monufacture of potented products or industrial applications of it in the country where the potent is held. The patent should be worked in the country of origin and not used abrood and imported back. While obligotions hove been dropped, potent-holders' rights have been made shorper in Articles 27 & 28. The potent-holder hos been given exclusive importing rights. 8ut the clause on obligations to produce locolly has been diluted by allowing potents Hwithout discrimination as to the place of invention, the field of technology ond whether products are imported or locally produced".
If the potent is not worked by the potent-holder, it should be made available to others on payment of a royalty. This provision encourages transfer of technology and greater competition. This compulsory licensing requirement has been dropped.
3. ON THE TERMS OF PROTECTION
Article 36 proposes the period of potent protection at 20 years. But it also provides the option that nationollegislation can determine the term of protection. Article 33 retains the 2O-year protection period and deletes the option.
4. ON TRANSITIONAL ARRANGEMENTS FOR COUNTRIES TO CHANGE THEIR DOMESTIC LAWS AND REGULATIONS ON PATENTS
Article 68 keeps the time frame for transitional arrangements unspecified and open to further negotiations. Article 65 specifies the time frame for all countries is one year, though developing countries have been granted an additional four years. Developing countries that don't have a product potent system yet have been given a further concession of five years, adding up to a 10-year grace period. However, this time frame could get reduced os Article 27 calls for 0 review of potentable subjects after four years.
It says member stoles shall "provide, on accession", a time toble for application of the transitional arrangement. But it also speciFies that the time toble shall be without commitrnent. This provision has been dropped and instead, member-states shall "ensure" that changes in a time table for their domestic laws are consistent with the provisions of the agreement.

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