Indigenous and local communities withhold a great deal of treasured knowledge due to their close and ancestral affinity with nature, which is susceptible to misappropriation as it has immense potential of adducing commercial profits and benefits. As a part of this knowledge are reserves dealing with biochemicals, their nature, properties, and multifarious uses, which have the potential of adding value to the quality of normal life. The threat of biopiracy in the face of multinational companies, specifically pharmaceutical entities, brings forth the question of guarding these treasures against illegitimate exploitation.
What is Biopiracy?
Biopiracy is the practice of commercial exploitation of indigenous knowledge regarding the beneficial use of plants and animals, including the biochemicals or genetic materials contained there within that occur naturally. A major deal of knowledge and information about such genetic materials held by ingenious communities is vital for their survival and has been a result of the continuous transgression of such details over several generations. These usually relate to the following:
- Farming techniques or agricultural methods
- Medicinal plants and their utility
- Varieties of food crops
Biopiracy can usually take any of the three forms that are mentioned below:
- Bio-prospecting: This involves the discovery of new plants and animals with beneficial uses;
- It may be realized in the form of discovery of unknown benefits arising out of a known plant; and
- It may also be observed to occur in the form of the most abusive kind, which is the commercial exploitation of indigenous knowledge.
A Few Examples of Biopiracy
- Patenting of Neem is an iconic example. Neem, which is scientifically known as Azadirachta Indica, has been in use for centuries in India and forms a part of collective knowledge held amongst the Indian populace. However, in 1994, W.R. Grace received a European Patent, which entailed various methods that could be put to use for controlling fungal infections in plants by utilizing a composition that is extracted from the neem tree.
- The patenting of the variation of the Yellow Bean, known as the Enola Bean, is also often cited. It was patented in 1999 by Larry Proctor. He sued several other importers who commercialized the sale of Mexican Yellow Beans on account of his patent, as a result of which several farmers faced a crisis. The case was brought up to the US Patent and Trademarks Office (USPTO), which ruled against the patent holder and in favor of the farmers to preserve the traditional knowledge behind the subject matter.
- As a part of shared knowledge from the indigenous community, a plant known as Pentadiplandra Brazzein, which is found in South Africa, is a vital source of protein and is often used as a substitute for sugar because it is two thousand times sweeter than sugar. Recently, the same has been developed for commercial use by isolating the gene encoding the brazzein, which has been sequenced and patented in the USA.
- Yoga has also flourished amongst different traditions. The US-based NRI, Bikram Choudhary, applied for copyright and Patent Protection over his methods of teaching yoga. The USPTO has granted 150 yoga-related copyright, 134 trademarks on yoga accessories, and 2,315 yoga related-trademarks, even though India continuously opposed such grants.
Nature of Conflicts
Although biodiversity is sought to be protected under the umbrella of Intellectual Property Rights (IPRs), it may conflict with most IPRs, such as that under the Patent Law. The reason for the same is that biodiversity is a social and cultural aspect, and the resources and associated knowledge are governed as a part of the common property systems. IPRs, on the contrary, see such virtues from an economic point of view to create commercially viable objects in favor of private monopolization.
The said issue is also governed under international agreements to a certain extent. The Convention on Biological Diversity places a restriction enabling exclusions of knowledge, innovations, and ideas possessed by the ‘intellectual commons,’ i.e., the local communities, which belong to the diverse biological resources from the category of common rights.
In addition to the same issue is the wide divide between the haves and the have-nots. The world’s richest bio-reserves can be found in the tropical and sub-tropical regions within developing countries like Mexico, Brazil, India, Indonesia, Congo, etc. This divide is further widened when bioresource-rich countries are overstepped upon by technology-rich countries. The examples of such misappropriation are routed in the colonial history of most of the developing and under-developed nations for commercializing different varieties of pepper, sugar, coffee, quinine, to name a few. As a result of this, the WTO member states have been asked to develop and enforce legal frameworks to protect plant and animal resources as a part of two systems: one for agricultural contexts and the other for pharmaceutical, chemical, textile, or other commodity contexts, which have been incorporated by some of them. Also, many countries have enacted legislation in furtherance of the Convention on Biological Diversity to protect their bioresources and the cultural heritage of the traditional and indigenous communities. The following provisions address the concerns of traditional knowledge and biopiracy:
- Article 3: It recognizes the sovereign right of each member state to exploit their resources in accordance with their own environmental policies.
- Article 8(j): It provides for the conservation of traditional knowledge and practices of indigenous communities with respect to their genetic resources.
- Article 15: It recognizes the national rights of sovereignty over genetic resources, thereby making access to these resources subject to national legislation. It also provides that access and commercial use of genetic resources would be based on mutually agreed conditions regarding equitable sharing of benefits and with prior consent.
The reason behind such legislative shift and demand to introduce legislation to balance both kinds of interest is that patents were the first mode of protecting and stimulating inventions. In the face of such developments, many anti-biopiracy activists and academicians have pushed for change within the system. However, not much has changed ever since, and the issue of biopiracy has remained a stalemate.
Reasons Against Biopiracy
- Moral Rights: The moral rights are recognized under the Berne Convention for the Protection of Literary and Artistic Works, which is a strong justification to protect indigenous communities against biopiracy since it directly interferes with their right to develop their heritage and control their knowledge. Often, patent holders do not acknowledge the community from which they borrow their knowledge contributing to the creation of their monopolistic right. It prevents them from deciding who and how their knowledge is leveraged.
- Cultural Rights: As observed, there is a clear conflict between the western and developing countries. Biopiracy is a cultural misappropriation of the information held by the local communities as patenting results in the commodification of this knowledge, which is against the cultural facet of knowledge. It also disturbs the sacred emotion of these communities as their knowledge is nothing less than religion to them. To trade knowledge for money may be seen as a disrespectful act against the communities’ religious and cultural sentiments. It goes against the moral and material interests as has also been safeguarded and recognized under Article 27 of the Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social, and Cultural Rights.
These arguments have resulted in a few instances of success against biopiracy, which are mentioned below:
- Unilever (Netherlands) had withdrawn their application EP1607006 for ‘Functional berry composition’ dated 04 August 2009 after submission of TKDL prior art evidence(s).
- Nestec S.A. Avenue Nestlé 55 1800 Vevey, Switzerland had withdrawn their application number EP2263481 for ‘Green tea extracts of improved bioavailability.’
- Industrial Research Limited and Otago Innovation Limited in New Zealand had withdrawn their application number EP 1750809 for ‘Citrus Fruit Skin extract for Angiogenesis promotion’ based on the TKDL evidence.
Reasons in Favour of Biopiracy
- No Harm Caused to Indigenous Communities: The argument in favor of biopiracy is usually titled towards the argument that patenting inventions based on traditional knowledge do not cause any harm or interference with the rights of the indigenous community. The same was also used to defend the Neem case where a compound extracted from Neem, which protected its ‘formulated products and synthetic derivatives,’ was said not to affect the rights of the community already using Neem in its natural form.
- No Basis of Granting Exclusivity to Indigenous Communities: It is argued that such absolute protection cannot be granted to existing traditional knowledge about plant genetic resources. IPRs are created to generate incentives and interests to promote innovation. The protection of traditional knowledge does not qualify this facet of IPRs; therefore, it fails to justify the essence of this property right.
Conclusions and Suggestions
Biopiracy is a matter of hot debate and a harsh reality. As observed above, the significance of traditional knowledge for indigenous communities surpasses their need to commercialize such knowledge, and therefore, adverse privatization is derogatory to the interests of these communities. The idea of benefit-sharing should be generously adopted in the event of granting exclusive rights over such commodities and information to maintain a fine balance of interests while also benefiting the public at large. For realizing better outcomes in favor of this fine balance, the provisions within the Trade-Related Aspect on Intellectual Property Rights (TRIPS) Agreement and CBD should be harmonized to introduce amendments within the TRIPS. India has also been vehemently suggesting that TRIPS should incorporate that where patents founded based on traditional knowledge are sought, there should be an attached proof that the prior consent of the community and the concerned member state has been acquired.
Furthermore, there should be a creation of ‘Digital Libraries’ to collect and project the details concerning genetic information. It will help in protecting traditional knowledge of indigenous communities as it will act as a public notice to the public and multi-national companies against superseding and not accounting for prior art found in the literature based on traditional knowledge.
Lastly, a stronger framework should be endorsed to protect and preserve in the interest of the local and indigenous communities with respect to the information and practices concerning biodiversity. A leading example of this is the Philippines enacting the Indigenous Peoples Rights Act, 1997, which grants indigenous communities control and rights over their traditional knowledge and genetic resources.