Large pharmaceutical companies had a plan for dirty lobbying in the war for South Africa’s future approach to intellectual property. This week the Mail & Guardian shows how a company dealing with genetically modified (GM) food quietly followed through with what appears to be underhanded campaigning. Those involved insist it was not.
During September and October 2013 more than 100 organisations responded to an invitation from the department of trade and industry to comment on a radical, and highly controversial, draft national policy on intellectual property.
The policy will mean fundamental changes in everything from music copyright to pharmaceutical patents. The Cabinet is to adopt it in 2015, with legislative amendments to appear before Parliament soon thereafter.
According to supporters in the nongovernmental sector, the policy will mean cheaper life-saving drugs for South Africans. According to corporate critics, it will reduce research and development and leave South Africa with reduced access to new technologies, as well as poorer and hungrier.
Intellectual property policy
On one thing all the parties seem to agree, however: the draft intellectual property (IP) policy represents revolution, with effects that could ripple throughout sub-Saharan Africa. And before it is cemented in law, many have opted to have their say about it.
The M&G obtained the previously unreleased public submissions through an application under the Promotion of Access to Information Act.
As a whole, the submissions represent a cacophony from a variety of sources. International household names Google and Microsoft mingle with local academics and government departments in carefully phrased documents. Pharmaceutical companies accuse generic manufacturers of theft, and generic manufacturers accuse pharmaceutical companies of lies. Musical royalty associations chime in, as do book publishers and business associations.
An internal summary of the submissions prepared by the department runs to 43 pages. The submissions themselves run to nearly 2 000 pages.
But amid the noise one party has managed to amplify its voice and present its views – closely tied to its bottom line – beneath a veneer of independence, broad consultation and academic repute.
Food security
In its submission, agriculture company DuPont Pioneer darkly warns that the legislative results of the policy may amount to deprivation of property and could face a legal challenge. Should South Africa follow through on what appears to be the intention to weaken intellectual property rights, the company said, it would face “probable disinvestment or reduced future investment”. The result would be job losses and an in-ability to ensure food security.
DuPont Pioneer is wholly owned by one of the world’s largest makers of genetically modified seed and in turn owns Pannar Seed, one of the largest suppliers of seed on the continent. If the draft policy becomes law, the company believes, farmers will be allowed to reuse the seed harvested from GM crops more easily and freely and resell or exchange this seed, rather than buying new stock for every planting.
Although it could be expected that DuPont would strongly defend its ability to recoup research costs through seed sales, policymakers could likewise be expected to consider the source of the arguments in evaluating their merits.
Those same hypothetical policymakers would, perhaps, give more credence to the submission by AfricaBio, “a nonprofit, independent biotechnology and stakeholder association” with academics on its board and a two-decade track record of advising governments throughout the region.
“If the draft IP policy is adopted and the government pursues the statutory amendments, local plant breeding will be disincentivised and the South African economy, the farmer/producer and consumer will all be adversely affected,” AfricaBio warned.
‘Inappropriate’ intention
Policymakers may also have been inclined to take seriously the warnings of the Agricultural Business Chamber (Agbiz), an association whose members include all four major banks, co-operatives that do business with farmers, and large producers of grains and meat.
Agbiz said the intention of the policy, “particularly in the context of plant variety protection, appears to be inappropriate within a South African context”.
This week the chief executives of AfricaBio and Agbiz said they had made the submissions, under their respective signatures, independently and after consulting and receiving mandates from their members.
Agbiz head John Purchase denies any unethical conduct. (Theana Breugem, Gallo)
Yet, discounting their letterheads and introductory paragraphs, the submission from each organisation is drawn in all essential respects, verbatim from the submission by DuPont Pioneer. For 12 pages AfricaBio and Agbiz follow the company’s lead down to structure, section headings and the use of bold fonts, italics and underlining for emphasis.
Neither AfricaBio nor Agbiz has disclosed any relationship or co-operation with DuPont. Agbiz does, in its submission, twice refer to itself as “Pioneer”, in what appears to have been a failure to replace the company’s name with its own.
No relationship
Large tracts of DuPont’s submission also found their way – verbatim – into the submission by Business Unity South Africa (Busa). The Busa submission is almost entirely made up of a neutral summary of the draft IP policy, but where Busa explicitly provides its views, 72% of the text is identical to that in DuPont’s submission. Busa discloses no relationship or co-operation with DuPont.
The repetition of the views of a multinational corporation by supposedly independent organisations is reminiscent of a plan considered – but never implemented – by pharmaceutical companies to steer debate about the draft IP policy. In January the M&G reported how United States lobbyists Public Affairs Engagement (PAE) had recommended the creation of a broad coalition of existing organisations to be the “public face and spearhead” of the drug companies’ push.
At the time, Health Minister Aaron Motsoaledi described the PAE plan as akin to treason for its camouflaging of corporate views as independent, with the aim of convincing South Africans that their government was about to do them harm. Nongovernmental organisations subsequently came to refer to the incident as “Pharmagate”.
This week AfricaBio, Agbiz and Busa defended their submissions, saying there was nothing sinister, unethical or unusual about representing corporate views as their own.
“AfricaBio, in its independent discretion and after consulting with our members, decided to support DuPont Pioneer’s very well-researched submission with regards to the draft national IP policy and adopt it as our own position regarding this policy issue,” chief executive Nompumelelo Obokoh said. “Given that AfricaBio and all its members are united around the objective of promoting the safe, ethical and responsible use of biotechnology and its products, it is obvious that AfricaBio and its constituent members will often share the same opinions.”
‘Nothing unethical’
Busa provided a statement by caretaker chief executive Cas Coovadia.
“Our mandating process entails sending a call for comments to our members, who would then engage broadly within their constituencies and send comments to Busa,” the statement reads. “Once comments are received from members, Busa would finalise and send back the draft submission to members for mandating. The mandated submission means all of Busa members are in support of the submission, therefore we are of the view that there is nothing unethical in the way we handled this matter.”
Agbiz chief executive John Purchase was the only party who made himself available to discuss the submissions and their similarities. He repeatedly stressed that there could be no question of unethical conduct because DuPont had been aware of the Agbiz submission and had, in fact, “asked me to participate in this process”.
“It was not done underhand; there was no plagiarism or anything involved in this. It was done absolutely transparently between ourselves and Pioneer,” Purchase said. “I don’t think it is underhanded lobbying. I think it often happens that organisations would collaborate with each other to develop positions of unity as far as possible so as to make a point very clear and to take more or less the same position. I think it is the right of organisations to do so if they wish to. I don’t see any problem with that whatsoever.”
IP protection ‘imperative’
DuPont did not respond to specific questions, including whether it encouraged other organisations to put forward its views as their own and whether they received any consideration for doing so. Instead, it gave the M&G a statement that reads, in full: “DuPont Pioneer believes that strong IP protection is imperative for research and product development systems that foster competition, societal benefit and sustainable food production. It is not uncommon for organisations in the same industry to share and collaborate on mutual positions on noncompetitive issues that serve the development of both the industry and country’s economy.
“DuPont Pioneer is a voluntary member of various key agriculture industry bodies and does not consider it unethical to share similar viewpoints to those submitted in response to the [department’s] IP policy. We manage our business in accordance with our core values, which include the highest level of ethical conduct.”