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Thursday, 28 October 1993
Page: 2746


Senator COULTER —My question is directed to the Leader of the Government in the Senate representing the Minister for Trade. Does the minister accept that the trade related intellectual property rights, the regime outlined in the Dunkel draft text of the Uruguay Round, has been of particular concern to southern nations? Secondly, although the government has taken the view in its own patents legislation that life forms are no different from non-living things and can be exclusively owned for the purposes of commercial exploitation, does the minister at least agree that commercial ownership of life forms raises profound ethical and moral questions? Accordingly, does the minister consider it appropriate to impose, through the medium of a trade agreement such as GATT, a system of ownership and exploitation of life and genetic material which is at variance with the ethical views and cultural traditions of so many of the world's people?


Senator GARETH EVANS —The draft trade related intellectual property rights agreement, or TRIPS agreement, deals with matters of intense interest to both developed and developing countries—countries of the north and the south. The agreement will help to strengthen the protection and enforcement of intellectual property rights in trade related activity. It will provide minimum standards for the protection of intellectual property in a wide range of areas, encompassing patents, copyright, trademarks, industrial designs, integrated circuits, geographical indications and trade secrets. Intellectual property protection, through the various means covered in the agreement, will help the growth of technology based industry, in particular, and certainly sharpen the competitive edge of domestic products from countries making them in global markets.

  Better defined and workable global rules for the protection of intellectual property rights will also stimulate innovative economic activity by guaranteeing a financial return to, and a recognition for the creative efforts of, investors, artists, technicians and other innovators. Again, that is true of people in those categories in both developed and developing countries. Certainly, the developing countries have much to gain from a successful outcome to the Uruguay Round, including the TRIPs agreement. That was reflected most recently in the CHOGM declaration, initiated by Prime Minister Keating.

  As to the questions about patentability of life forms and the implications of that in this context, in its own patents legislation the Australian government has taken the view that patents are available for inventions in all fields of technology—both biological and non-biological. I am advised—there is a marvellous solemnity about this bit of my briefing note—that human beings and the biological processes for their generation are not in Australia patentable inventions. No doubt it is a matter of profound relief to us all to know that. I can think of some people whose performance one might want to patent, but be that as it may.

  There is no necessary inconsistency—I hope Senator Coulter would agree—between the research and commercialisation of particular matters and the reflection of ethical values in the patent system governing that research and commercialisation. The TRIPs agreement does not distinguish between inventions of a product or a process, nor does it make a distinction in the type of technology used, whether it relates to life forms or not. The text does provide members with the flexibility to exclude from patentability inventions which might otherwise, I am told again, challenge public order or morality. So it is not written in a way which would cut across the ongoing debate to which Senator Coulter obviously refers in his question.


Senator COULTER —Mr President, I ask a supplementary question. I cannot let that answer go unchallenged. Based on cultural reasons, in the Third World there has been the development, particularly in the area of agriculture, of a wide range of seeds and genetic strains which are no less important to the people of those countries than the variations which might be worked on those same genetic strains in First World countries that get access to them. How is it that that does not raise profound questions of intercultural conflict and profound questions of the difference between morality and the ethical approach to the exclusive ownership of that genetic information for commercial gain?


Senator GARETH EVANS —All I can say further is that the specific text of the agreement notes that members may exclude from patentability inventions in order to protect public order or morality, including to protect human, animal or plant life or health. The text does allow countries to exclude from patentability plants and animals, but countries do have to provide some kind of protection for plant varieties. It is an old and familiar debate about plant variety rights and the issues of principle that are associated with that.

  Maybe there is some continuing ground for argument about that in Senator Coulter's mind. But I would have thought that the larger ethical and cultural questions that he regards as being raised or somehow concluded by this international treaty negotiation are not really addressed by the treaty, as I understand it, given that it does allow room for countries to make their own rules in those particular areas. If there is anything else that the department or Senator Cook's aspect of it wants to add, I will bring that to Senator Coulter's attention.