Biopiracy refers to the use of intellectual property systems to legitimize the exclusive ownership and control over biological resources and biological products and processes that have been used over centuries in non-industrialized cultures. Patent claims over biodiversity and indigenous knowledge that are based on the innovation, creativity and genius of the people of the Third World are acts of ‘biopiracy’. Since a ‘patent’ is given for invention, a biopiracy patent denies the innovation embodied in indigenous knowledge. The rush to grant patents and reward invention has led corporations and governments in the industrialized world to ignore the centuries of cumulative, collective innovation of generations of rural communities.
Biopiracy occurs because of the inadequacy of western patent systems and the inherent western bias against other cultures. Western patent systems were designed for import monopolies, not for screening all knowledge systems to exclude existing innovations and establishprior art in other cultures. Western culture has also suffered from the ‘Columban blunder’ of the right to plunder by treating other people, their rights, and their knowledge as non-existent. Terra nuiius has its contemporary equivalent in ‘Bio-Nullius’ treating biodiversity knowledge as empty of prior creativity and prior rights, and hence available for ‘ownership’ through the claim to ‘invention’.
When applied to knowledge related to biodiversity, reductionism isolates chemicals and genes and treats this act of separation as an act of creation, both intellectually and materially. The leads for useful traits in biological organisms are obtained from indigenous knowledge. Ninety-four per cent of the top-selling plant-derived drugs contain at least one compound that has a demonstrated use in traditional medicine related to primary therapeutic use. The appropriation of indigenous knowledge and of the uses of biodiversity is not a creative act at either the intellectual or at the material level.
Intellectually, the innovation has already been done as part of indigenous knowledge systems. Materially, the traits and properties for which the patent has been claimed already exist in nature. Their isolation and separation cannot be claimed as creation. Treating translation and transfer of existing indigenous knowledge and isolation of useful traits of life forms as acts of ‘creation’ and ‘invention’ is rooted in the philosophical assumptions of the industrial society which defines non-western cultures as inferior to the industrial west and perceives nature as inert, dead matter. The creativity of both nature and other cultures is negated, and appropriation of that creativity is then interpreted as an act of creation.
With knowledge plurality mutating into knowledge hierarchy, a horizontal ordering of diverse but equally valid and diverse systems is converted into a vertical ordering of unequal systems, with the epistemological foundations of the system being imposed on others to invalidate them. This translation of knowledge diversities into knowledge hierarchies is then used to claim acts 0f translation as acts of invention. Translation is misconstrued as the ‘creation’ of knowledge. A sociological shift is thus fallaciously treated as an epistemological shift. This fallacy of sociological and cultural displacement as an epistemological shift generating new knowledge is made possible as a result of colonial biases which have treated western knowledge as exdusively scientific and non-western knowledge systems as unscientific. However, the difference in epistemological foundations does not make indigenous knowledge systems inferior; it just makes them different.
This diversity of knowledge needs to be recognized and respected, and a pluralistic IPR regime needs to be evolved which makes it possible to recognize and respect indigenous knowledge, and protect the indigenous knowledge systems and practices and livelihoods based on it. We, therefore, need diverse legal regimes to protect the diverse knowledge systems and the diverse communities. The legal regime being universalized through TRIPs and WTO is restricted to western IPR systems reflecting the interest of the dominant economic systems of the westthe MNCs.
When an element from indigenous knowledge systems is transferred to western knowledge systems, it is treated as an innovation in western systems. As a corollary, the interests and rights of non-western communities find no place in western legal systems and are instead transferred to the scientific practitioners ofwestern knowledge systems, in particular, those backed by corporate capital. Western systems of knowledge in agriculture and medicine were defined as the only scientific system. Indigenous systems of knowledge were defined as inferior, and in fact, unscientific. Thus, instead of strengthening research on safe and sustainable plant-based pesticides such as neem and pongamia, we focused exclusively on the development and promotion of hazardous and non-sustainable chemical pesticides such as DDT and Sevin. Unfortunately, the use of DDT has increased the occurrence of pests 12,000-fold. The manufacture of Sevin at the Union Carbide Plant in Bhopal led to the Bhopal gas leak disaster which killed thousands and has disabled more than 400,000 people.
Meanwhile, as a recognition of the ecological failure of the chemical route to pest control, the use of plant-based pesticides is becoming popular in the industrialized world. Corporations that have promoted the use of chemicals are now looking for biological options. In the search for new markets and control over the biodiversity base for the production of biopesticides and chemicals, MNCs are claiming IPRs on neem-based biopesticides.
This experience with agrichemicals is also replicated in the field of drugs and medicines as well. Ironically, as a result of increasing public awareness of the side effects of hazardous drugs and the rise of strains resistant to antibiotics, the western pharmaceutical industry is increasingly turning to the plantbased system of Indian and Chinese medicine. Indigenous medical systems are based on over 7,000 species of medicinal plants and on 15,000 medicines of herbal formulations in different systems. The Ayurvedic texts refer to 1,400 plants, Unani texts to 342, the Siddha system to 328. Homeopathy uses 570, of which approximately 100 are Indian plants. The economic value of medicinal plants to 100 million rural households is unmeasurable.
Patenting of drugs derived from indigenous systems of medicine has started to take on epidemic proportions. The current value of the world market for medicinal plants from leads given by indigenous and local communities is estimated to be $43 billion. Using traditional knowledge has increased the efficiency of screening plants for medical properties by more than 40 per cent.
This phenomena of’biopiracy’ in which western commercial interests claim products and innovations derived from and currently used by indigenous knowledge traditions as their ‘intellectual property’ protected through ‘intellectual property rights’ like patents has emerged as a result of the devaluation, and hence the invisibility, of indigenous systems. This devaluation is linked to the imposition of the reductionist methods of western science to the non-reductionist approaches of indigenous knowledge systems. Further, since western-style IPR systems are biased towards western knowledge systems which reduce biodiversity to its chemical or genetic structures, the indigenous systems get no protection, but piracy of these systems is protected.
While the IPR debate during the Uruguay Round of GATT negotiations was framed on the grounds that stricter, westernstyle IPR regimes were needed globally to prevent piracy by the South, in recent years it has become evident that piracy is in fact being undertaken by corporations of the North which are appropriating the biodiversity and indigenous knowledge of the South. In the absence of a protection system for biodiversity and indigenous knowledge systems, and with the universalization of western-style IPR regimes, such intellectual and biological piracy will grow. Protecting our biological and intellectual heritage in the age of biopiracy requires the recognition and rejunevation of our heritage, and the evolution of legal systems for the protection of this heritage in the context of emerging IPR regimes.
Stealing from the Pharmacy of che Poor Indian systems of medicineAyurveda, Unani and Siddhaand folk traditions have used various plants for the treatment of common diseases. Phyllanthus niruri is one such medicinal plant used widely all over India for the treatment of various forms of hepatitis and other liver disorders. It is as much a part of formal health care systems as it is part of local health practices, folk medicine and traditional indigenous collective knowledge. The plant is called Bhudharti in Sanskrit,Jar amia in Hindi and Bhuin amia in Bengali.
It is common throughout the hotter parts of India, growing in fallow land and in shade. An annual herb, 10-30 cm. high, its leaves are elliptic-oblong like the amia (hence the name Jar amia or Bhuin amia). It flowers and fruits from April to September. The entire plantits leaves, shoots and rootsis used for treating jaundice. Even though the use of Phyllanthus niruri for the treatment of jaundice has been an ancient and well recorded innovation in the Indian systems of medicine, patents are now being applied for this knowledge as if it were a novel invention.
The Fox Chase Cancer Centre of Philadelphia, USA, has applied to the European Patent Office for the use of P/yllanrhus niruri in curing hepatitis. The patent claim is for the manufacture of a medicament for the treatment of viral hepatitis B. The patent application refers to Dr. K.M. Nadkarni’s Indian Materia Medica which reports that formulations based on Phyl/anthus niruri are used for treatment of jaundice in classical and folk traditions. In spite of the prior knowledge of its use as a cure for all forms of hepatitis, including hepatitis B, the Fox Chase cancer claim states that Phylianthus niruri has not been proposed for the treatment of viral hepatitis infection prior to the work done by the inventors of the present invention.
In allopathic systems there is no specific treatment for jaundice. In case of viral hepatitis, an attempt is made to provide symptomatic treatment by giving glucose, Vitamin B complex, and avoiding fatty and fried foods. In Ayurveda and other traditional systems of medicine, there are products which are known to help in the regeneration of the liver tissue. This treatment is therefore addressed to the root cause of the health problem and not just its symptoms. Since in traditional systems of medicine the diagnosis ofjaundice is made on the basis of it being a problem associated with liver function, it is immaterial what strain of infective hepatitis it is, since the management of all infective hepatitis is essentially the same. By isolating the application of PhylLinthus niruri for the treatment of one form of infective hepatitis only, i.e., hepatitis B, and treating this as a novel application, even though medicines derived from P/yllanthu.s niruri have been used for treating all forms of hepatitis in traditional systems of medicine, scientists of the Fox Chase Cancer Centre have falsely presented an act of piracy as an act of invention.
The latest patents on the anti-diabetic properties of ka,r.la, jamun, and brinjalonce again highlight the problem ofbiopiracy The use of karela, jamun and brinjal for control of diabetes is everyday knowledge and practised in India. Their use in the treatment of diabetes is documented in authoritative treatises like the Wealth ofIndia, the Compendium ofindian Medicinal Plants and the Treatise on Indian Medicinal Plants. The daim to the use of kareLa orjamun for anti-diabetic treatment as an invention is false since such use has been known and documented widely in India. The US patent granted recently to Cromak Research Inc. based in New Jersey for the use of these plants in the cure of diabetes is a dear case of intellectual piracy coupled with the arrogance in assuming that these resources become ‘value added’ when processed in western laboratories. Such a patent also has a serious negative impact on the possible export market for formulations by Indian drug companies that meet the requirement of Indian systems of medicine.
Stealing from the Farms of our Farmers The Indian subcontinent is the biggest producer and exporter of superfine aromatic ricebasmati. India grows 650,000 tonnes of basmati annually. Basmati covers 10-15 per cent of the total land area under rice cultivation in India. Non-basmati and basmati rice is exported to more than eighty countries across the world. Non-basmati rice exports in 1996-97 were 1.9 million tonnes and amounted to Rs 18 billion ($450 million), while basmati exports were 488,700 tonnes and fetched the exchequer Rs 11.2 billion ($280 million). Annual basmati exports are between 400,000 to 500,000 tonnes. Basmati rice has been one of the fastest growing export items from India in recent years. The main importers of Indian basmati are the Middle East (65 per cent), Europe (20 per cent) and USA (10-15 percent). At $850 a tonne, Indian basmati is the most expensive rice being imported by the European Union (EU) compared to $700 a tonne for Pakistani basmati and $500 a tonne for Thai fragrant rice. Indian basmati exports to the EU in 1996-97 amounted to nearly 100,000 tonnes.
Basmati has been grown for centuries in the subcontinent as is evident from references in ancient texts, folklore and poetry. There are twenty-seven distinct documented varieties of basmati grown in India. One of the earliest references to basmati according to the CSS Haryana Agricultural University, Hissar, is made in the famous epic of Heer Ranjha, written by the poet Vans Shah in 1766. This naturally-perfumed variety of rice has always been treasured and possessively guarded by nobles since time immemorial, and eagerly coveted by foreigners. It has evolved over centuries of observation, experimentation and selection by farmers who have developed numerous varieties of the rice to meet various ecological conditions, cooking needs and tastes. Informal breeding and innovation have resulted in the superior qualities of this rice and must therefore predominantly be recognized as the contribution of the subcontinent’s farmers.
On 2 September 1997, Texas-based RiceTec Inc. was granted patent number 5663484 on basmati rice lines and grains. The patent of this ‘invention’ is exceptionally broad and includes twenty daims within it. The patent covers the genetic lines of the basmati and includes genes from the varieties developed by farmers. It thus automatically covers farmers’ varieties and if enforced, farmers will not be able to grow these varieties developed by them and their forefathers without getting permission for and paying royalty to RiceTec. RiceTec has already been trading under brand names such as Kasmati, Texmati and Jasmati. RiceTec’s strain possesses the same qualitieslong grain, distinct aroma, high-yielding and semi-dwarf in statureas our Indian traditional varieties. As the RiceTec line is essentially derived from basmati, it cannot be claimed as ‘novel’ and therefore should not be patentable.
Stealing Nature’s Pesticide
Neem, or Az.adirachra indica, has been used for diverse purposes over centuries in India. It has been used in medicine and in agriculture. The neem is mentioned in Indian texts written over 2000 years ago as an air purifier and as a cure for almost all types of human and animal diseases because of its insect- and pestrepellant properties. It is used on every farm, in every house, almost everyday in India. Research has shown that neem extracts can influence nearly 200 species of insects, many of which are resistant to pesticides. A number of neem-based commercial products, including pesticides, medicines and cosmetics, have come on the Indian market in recent years, some of them produced in the small-scale sector, others by medium-sized laboratories. However, there has been no attempt to acquire proprietary ownership of formulae, since, under the 1970 Patent Act of India, agricultural and medicinal products are not patentable.
The combination of the neem’s cultural, medicinal and agricultural values have contributed to its widespread distribution and propagation. More than 50,000 atem trees shelter pilgrims on the way to Mecca. Indians have gifted knowledge about the atem to the entire world. The existence of diverse species and the freedom with which knowledge can be exchanged is best symbolized by the The atem is therefore referred to as the ‘free tree’ of India.
For centuries the western world ignored the atem tree and its properties; the practices of Indian peasants and doctors were not deemed worthy of attention by the majority of British, French and Portuguese colonialists. However, in the last few years, growing opposition to chemical products in the west, in particular to pesticides, has led to a sudden enthusiasm for the pharmaceutical properties of neem. In 1971, US timber importer Robert L.arson observed the tree’s useflilness in India and began importing neem seed to his company headquarters in Wisconsin. Over the next decade, he conducted safety and performance tests upon a pesticidal neem extract called Margosan-O and in 1985 received clearance for the product from the US Environmental Protection Agency (EPA). Three years later, he sold the patent for the product to the multinational chemical corporation, WR. Grace. Since 1985, over a dozen US patents have been taken out by US and Japanese firms on formulae for stable neein-based solutions and emulsions and even for a neem-based toothpaste.
Having garnered their patents and with the prospect of a licence from EPA, Grace has set about manufacturing and commercializing their product by establishing a base in India. The company approached several Indian manufacturers with proposals to buy up their technology or to convince them to stop producing value-added products and instead supply the company with raw material. In many cases, W.R. Grace met with a rebuff. Eventually, it managed to arrange a joint venture with a firm called PJ Margo Pvt. Ltd. They have set up a plant in India which processes upto 20 tonnes of seed a day. They are also setting up a network of neem seed suppliers to ensure a constant supply of the seeds at a reliable price. Grace is likely to be followed by other patent-holding companies. The company’s demand for seed had had three primary effects:
The price of neem seed has risen beyond the reach of the ordinary people; in fact, neem oil itself, used by local people to light lamps, is practically unavailable any more as local oil millers are not able to access the seed. Almost all the seed collected, which was freely available to the farmer and the indigenous health practitioner, is purchased by the company because of its economic power. Poor people have lost access to a resource vital for their survivala resource that was once widely and cheaply available to them.
In 1992, the US National Research Council published a report designed to ‘open up the western world’s corporate eyes to the seemingly endless variety of products the tree might offer.’ According to one of the members of the NRC panel, ‘In this day and age, when we’re not very happy about synthetic pesticides, neem has great appeal.’ This appeal is blatantly commercial. The US pesticides market is worth about $2 billion. At the moment, biopesticides constitute about $450 million of this, but the figure was close to $800 million by 1998.
The atem tree itself has not been patented, nor have its parts such as leaves, twigs, roots, stems, etc. However, certain processes and products which involve various active principles of the accra have been patented. Grace’s aggressive interest in Indian atem production has provoked a chorus of objections from Indian scientists, farmers and political activists, who assert that multinational companies have no right to expropriate the fi-uit of centuries oí indigenous experimentation and several decades of Indian scientific research. This has stimulated a bitter transcontinental debate about the ethics of intellectual property and patent rights. W.R. Grace’s justification for patents pivots on the claim that these modernized extraction processes constitute a genuine innovation. Although traditional knowledge inspired the research and development that led to these patented compositions and processes, they were considered sufficiently novel and different from the original product of nature and the traditional method of use to be patentable.
In short, the processes are supposedly novel and an advance on Indian techniques. However, this novelty exists mainly in the context of the ignorance of the west. Over the 2,000 years that nccm-based biopesticides and medicines have been used in India, many complex processes have been developed to make them available for specific use, though the active ingredients were not given Latinized ‘scientific’ naines. Common knowledge and common use of neem was one of the primary reasons given by the Indian Central Insecticide Board for not registering atem products under the Insecticides Act, 1968. The Board argued that neem materials had been in extensive use in India for various purposes since time immemorial, without any known deleterious effects. The US EPA, on the other hand, does not accept the validity of traditional knowledge.
The reluctance of Indian scientists to patent their inventions, thus leaving their work vulnerable to piracy, may in part derive from a recognition that the bulk of the work had already been accomplished by generations of anonymous experimenters. The discovery of neein’s pesticidal properties and of how to process it was by no means ‘obvious’, but evolved through extended systematic knowledge development in non-western cultures. The neem is thus no longer a ‘free tree’ and has more than ninety patents on it today including patent claims by American, Japanese and German companies. It is now the ‘intellectual property’ of western scientists and corporations. However, more than 200 organizations have legally challenged two of the neem patents held by W.R. Grace, one in the US and one in the European Patent Office. On 10 May 2000, a major milestone was crossed in the contemporary movement for freedom from biopiracy when the European Patent Office struck down the patent jointly owned by the US government and WR. Grace as based on the piracy of existing knowledge and lacking in novelty and inventiveness.
Resolving Biopiracy
Biopiracy and patenting of indigenous knowledge is a double theft because first it allows theft of creativity and innovation, and secondly, the exclusive rights established by patents on stolen knowledge steal economic options of everyday survival on the basis of indigenous biodiversity and knowledge. Over time, the patents can be used to create monopolies and make everyday products highly priced. If there were only one or two cases of such false claims to invention on the basis of biopiracy, they could be called an error. However, biopiracy is an epidemic. The problem is not, as was made out to be in the case of turmeric, an error made by a patent clerk. The problem is deep and systemic. And it calls for a systemic change, not a case-by-case challenge.
The promotion of piracy is not an aberration in the US patent law. It is intrinsic to it. IPR regimes in the context of free trade and trade liberalization become instruments of piracy at three levels:
- Resource piracy in which the biological and natural resources of communities and the country are freely taken, without recognition or permission. and are used to build up global economies. For example, the transfer of basmati varieties of rice from India to build the rice economy of US corporations like RiceTec for export.
- Intelkctual and cultural piracy in which the cultural and intellectual heritage of communities and the country is freely taken without recognition or permission and is used for claiming IPRs such as patents and trademark even though the primary innovation and creativity, has not taken place through corporate investment. For instance, the use of the trade name ‘basmati’ for their aromatic rice, or Pepsi’s use of the trade name Bikaneri bhujia.
- Economic piracy in which the domestic and international markets are usurped through the use of trade names and IPRs, thereby destroying local economies and national economies where the original innovation took place and hence wiping out the livelihoods and economic survival of millions. For example, US rice traders usurping European markets and Grace usurping the US market from smallscale Indian producers of neem-based biopesticides.
The problem of biopiracy is a result of western-style IPR systems, not the absence of such IPR systems in India. An argument is often made that the western patent system works and that biopiracy can be corrected by a case-by-case challenge.
This is false for two reasons. Firstly, patent challenges are costly, and Third World countries cannot keep up with the expenditure of challenging the hundreds of biopiracy cases that are growing. Secondly, the case of the revocation of the turmeric patent on the basis of a challenge by CSIR in 1996 has not stopped the US Patent and Trade Mark Office (USPTO) from granting fresh patents for turmeric. The USPTO granted a patent on 27 April 1999 for the use of turmeric for skin disorders.
Individual challenges will not stop biopiracy The ¡PR system itself has to undergo change. If a patent system which is supposed to reward inventiveness and creativity systematically rewards piracy, ifa patent system fails to honestly apply criteria of novelty and non-obviousness in the granting of patents related to indigenous knowledge, then the system is flawed and it needs to change. It cannot be the basis of granting patents or establishing exclusive marketing rights.
Bioprospecting As Legalized Biopiracy
A common proposal offered as a solution to biopiracy is that of bioprospecting and benefit sharing, i.e., those who claim patents on indigenous knowledge should share benefits from the profits of their commercial monopolies with the original innovators. Bioprospecting is being promoted as the model for relationships between corporations who commercialize indigenous knowledge and indigenous communities which have collectively innovated and evolved the knowledge.
However, bioprospecung is merely a sophisticated form of biopiracy There are two basic problems with this model. Firsdy, if knowledge already exists, a patent based on it is totally unjustified since it violates the principles of novelty and nonobviousness.
Granting patents for indigenous knowledge amounts to stating that the patent system is about power and control, not inventiveness and novelty. Secondly, the appropriation of indigenous knowledge vital for food and medicine, its conversion into an exclusive right through patents, and the establishment of an economic system in which people have to buy what they had produced for themselves is a system which denies benefits and creates impoverishment, not a process which promotes ‘benefit sharing’. It is the equivalent of stealing a loaf of bread and then sharing the crumbs.
Bioprospecting, in effect, leads to the enclosure oí the biological and intellectual commons. It takes the biodiversity and intellectual heritage of indigenous communities and converts it into commodities protected by IPRs. Collective innovation evolving over time and involving many persons is different from individual innovation localized in time and space. Collective innovation involves many persons who contribute to it over time. It is modified and enhanced as it is used over time and passed on from generation to generation. In some examples such collective innovation is no longer local, e.g., in the case of seeds and in the case of major non-western knowledge traditions such as Ayurvedic and Chinese medicine. In some cases it even crosses national boundaries.
In the context of privatization, the mutual exchange among communities has been replaced by contracts for bioprospecting by corporations who seek to expropriate invaluable and inalienable heritage of communities, often through scientific collection missions and ethno-botanic research. The World Resources Institute has defined ‘biodiversity prospecting’ as exploration oí commercially valuable genetic and biochemical resources. The metaphor for prospecting is borrowed from the prospecting for ‘gold’ or ‘oil’. While biodiversity is fast becoming the ‘green gold’ and ‘green oil’ for the pharmaceutical and biotechnology industry, the metaphor for prospecting suggests that prior to prospecting, the resource lies buried, unknown, unused and without value. However, unlike gold or oil deposits, the uses and value of biodiversity are known to local communities, from where the knowledge is taken through bioprospecting contracts. The metaphor of bioprospecting thus hides the prior uses and knowledge and rights associated with it. Taking knowledge from indigenous communities through bioprospecting is only the first step in developing an IPR protected industrial system which must eventually market commodities that have used local knowledge as an input, but are not based on the ethical, epistemological, or ecological structures of that knowledge system.
They use biodiversity fragments as ‘raw material’ to produce biological products protected by patents that displace the biodiversity and indigenous knowledge which they have exploited. Bioprospecting is the first step towards occupying the dominant system of monocultures and monopolies and thus accepting the destruction of diversity. Indigenous knowledge is centred on co-creation by nature and people. IPR regimes are premised on the denial of the creativity of nature. The ethical and epistemological assumptions and consequences of adopting an IPR regime through bioprospecting contracts needs deeper analysis and reflection. The bioprospecting paradigm needs to be examined in the context of equity, specifically its impacts on the donor community the recipient communities and on bioprospecting corporations.
Even though bioprospecting contracts are based on prior informed consent and compensation, unlike biopiracy where no consent is taken and no compensation given, not all owners! carriers of an indigenous knowledge tradition are consulted or compensated. Not only does this lead to inequity and injustice, it also has the potential of putting individual against individual within a community and community against community in a community of communities. This is the reason bioprospecting models which deal with one individual or one community or one interest group can never be equitable. A commercial interest needs to take the prior informed consent ofallcommunities and allmembers of each community who have used and contributed to collective innovation in biodiversity-related knowledge. The partnership of the state is one mechanism for the interests of all contributing groups.
In the case of biodiversity-related collective innovation there are many interests involved. Farmers and the seed industry, traditional healers and pharmaceutical corporations, western and non-western scientific traditions, masculinist ways of knowing and feminist ways of knowing. All the diverse communities of interest have to be included in a transaction.
Collective rights cannot be abjured or relinquished by any one community of users, or any individual of any community, or the state on behalf of any community. The bioprospecting model, therefore, is not a legitimate source of benefit sharing in the case ofbiodiversity-related knowledge. lt is based on a double exdusion. The first exclusion takes place when communities of users/innovators are excluded and one local group is treated as holding the knowledge exclusively. The second exclusion takes place when the commercial enterprise signing a bioprospecting contract takes an IPR on the knowledge transferred from an indigenous community as an unjustified claim to innovation. Over time, this excludes the donor community itself, as marketing systems and IPR regimes combine to make the community providing biological resources and knowledge dependent on the purchase of proprietary commodities from the corporations who monopolize the biodiversity and knowledge, e.g., farmers who contributed seed having to buy proprietary seed from the seed industry.
Bioprospecting is often presented as a means for making the poor rich. It is often stated that regions rich in biodiversity are financially poor and since bioprospecting is associated with monetary compensation, it can make such regions financially rich also. However, the bioprospecting model is a model for taking away the last resources, both natural and intellectual, from the poor. It is, therefore, in reality; a model for creating poverty for the community as a whole even when it might bring money to a few individuals in the community.
The poverty-creating impact ofbiopiracy and bioprospecting can only be perceived if one recognizes that there is a difference between the material economy and the financial economy. If people have rich biodiversity and intellectual wealth, they can meet their needs for health care and nutrition through their own resources and their knowledge. If, on the other hand, the rights to both resources and knowledge have been transferred from the community to IPR holders, the members of a community end up paying high prices or royalties for what was originally theirs and which they had for free. They, therefore, become materially poorer.
When biodiversity knowledge of a community is taken by a corporation which commercializes it and transforms it into proprietary knowledge protected by IPRs, a number of impacts are felt by the donor community.
1. Free receiving but prorietary sales and prohibition of free exchange between individuals and communities leads to monopoly control over biodiversity and knowledge.
2. As biodiversity gains commercial value globally, e.g., a medicinal plant, it is exploited. This leads to diversion of the biological resource from meeting local needs to feeding non-local greed. This generates scarcity, thus leading to price increases.
- In the case of over-exploitation it can lead to extinction.
- The local scarcity combined with IPRs on derived commodities eventually takes the resource and its products beyond the access of the donor communities (e.g., neem). The providing communities lose their righrfiul share to emerging markets.
- Other poor communities (whose traditions permit them to rely on free exchange or low cost seed) which could have received the knowledge freely or at low cost are also made dependent on the commercial interest.
This perspective reflects the bioprospecting or commodity paradigm which only protects the rights of those who appropriate people’s common resources and turns them into commodities.
As discussed, the benefits provided and shared by indigenous and local communities are rendered invisible and the focus is only on the benefits shared by those who privatize and endose the commons. In my opinion, reclaiming the intellectual commons through asserting collective intellectual property rights represents the real model of equitable benefit sharing. Equitable benefit sharing in the domain of indigenous knowledge and biodiversity is inconsistent with the monopolies and exclusive rights which patents guarantee. Outlawing biopiracy and making patents based on the piracy of indigenous knowledge illegal is thus necessary for guaranteeing equity and sustainability.
Biopiracy, Vandana Shiva, Protect or Plunder, “Biopiracy”, hal 49-61
