Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual...

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Developing World Bioethics ISSN 1471-8731 (print); 1471-8847 (online)Volume 6 Number 3 2006pp 158173

2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

doi:10.1111/j.1471-8847.2006.00168.x

Blackwell Publishing Ltd.Oxford, UKDEWBDeveloping World Bioethics1471-8731Blackwell Publishing Ltd. 2006200663158173ArticlesBiodiversity, Biopiracy and BenefitsChris Hamilton

Address for correspondence: Chris Hamilton, BIOS Centre, London School of Economics and Political Science, Houghton Street, London, WC2A

2AE, United Kingdom. [email protected]

BIODIVERSITY, BIOPIRACY AND BENEFITS: WHAT ALLEGATIONS OFBIOPIRACY TELL US ABOUT INTELLECTUAL PROPERTY

CHRIS HAMILTON

ABSTRACT

This paper examines the concept of biopiracy, which initially

emerged to challenge various aspects of the regime for intellectualproperty rights (IPR) in living organisms, as well as related aspects

pertaining to the ownership and apportioning of benefits fromgenetic resources derived from the worlds biodiversity.

This paper proposes that we take the allegation of biopiracyseriously due to the impact it has as an intervention which indexes

a number of different, yet interrelated, problematizations of biodiver-sity, biotechnology and IPR. Using the neem tree case as an exam-

ple, it describes activists use of the term as one that involves adeliberate simplification of science and IPR. Additionally, it argues

that in so doing, biopiracy is positioned as a touchstone that mobi-lizes actors and problems, and ultimately generates solutions to the

very challenges it creates.

The paper will also encourage a view of biopiracy claims that doesnot always treat them simply as claims of theft, or as a misallocation

of benefits, but rather as claims that are designed to raise broaderquestions about the IPR system itself. It concludes by advocating

that, in order to properly understand how to address biopiracy, we

must be prepared to move beyond the current narrow readings todevelop a more complete picture of the terms influence in challeng-ing how, and by whom, the decisions about what is natural and what

is invented come to be made.

Keywords

biopiracy

,

intellectual property rights

,

TRIPS

,

CBD

,

biodiversity

,

bioprospecting

Over the last few decades, new developments in

science, biotechnology and intellectual property

rights (IPR) regimes have come together to fuel a(re)turn to nature as a site for cosmetic, pharma-ceutical, chemical and agricultural discovery work.

In the early 1990s, this particular configuration ofactors and regulatory regimes fuelled millennial

claims about the possibilities inherent in such

chemical prospecting

1

and the potential for mas-

sive benefits that could be garnered from the

genetic wealth of areas with a high concentrationof biodiversity.

1

T. Eisner & E. Beiring. Biotic Exploration Fund Protecting Biodi-

versity through Chemical Prospecting. Bioscience

1994; 44: 9598.


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Biodiversity, Biopiracy and Benefits

159

2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.

At the time, one of the most promising strategies

employed to identify how this material and theattendant knowledge of its uses could be collected

and used was a practice called bioprospecting. Theterm is now generally used generically for any pro-

gram that endeavors to collect genetic material and/or the knowledge of its uses, usually from areas with

high concentrations of biodiversity. The CompactOxford English Dictionary

(

Compact OED

) defines

bioprospecting as the search for plant and animalspecies from which medicinal drugs and other com-

mercially valuable compounds can be obtained.

2

Asthis definition suggests, in its initial formulation,

bioprospecting was seen as a way to access, collect

and exploit these plant and animal resources. Bio-prospecting was also

initially seen as a way to justify

the conservation of this biodiversity (by demonstrat-

ing its economic value) and as a way to ensure theredistribution of the benefits of its wealth.

3

As a strategy for discovering new and useful bio-

active material, bioprospecting showed promise butwas not without its critics. The term biopiracy was

first used in the early 1990s as a way to call thepractice of bioprospecting into question. The Com-

pact OED defines biopiracy as: noun: derogatorybioprospecting, regarded as a form of exploitation

of developing countries.

4

Those who are the mostvocal critics of the practices that bring biopiracy

about offer up more expansive definitions. VandanaShiva, a famous Indian scientist and activist,explains that the term:

refers to the use of intellectual property systemsto legitimize the exclusive ownership and control

2

Compact Oxford English Dictionary. 2006. s.v

. Biopiracy. Online:

Oxford University Press. Available at http://www.askoxford.com/

concise_oed/biopiracy?view

=

uk [Accessed 25 July 2006].

3

S. King. The Source of our Cures: A New Pharmaceutical Company

Wants to Provide Reciprocal Benefits and Recognize the Value of Indig-

enous Knowledge. Cult Surv Q 1991: Issue 15.3. Available at: http://

209.200.101.189/publications/csq/csq-article.cfm?id

=

919 [Accessed 25July 2006]; S. King. 1996. Establishing Reciprocity: Biodiversity, Con-

servation and New Models for Cooperation Between Forest Dwelling

Peoples and the Pharmaceutical Industry. In Intellectual Property

Rights for Indigenous Peoples:

A Sourcebook.

T. Greaves, ed. Oklahoma

City, OK: Society for Applied Anthropology: 7182; W.V. Reid et al.

1993. Biodiversity Prospecting: Using Genetic Resources for Sustainable

Development. Baltimore, MD: World Resources Institute Publications;

C. Hayden. 2003. When Nature Goes Public: The Making and Unmaking

of Bioprospecting in Mexico.

Princeton, NJ: Princeton University Press.

4

Compact Oxford English Dictionary, op. cit.

note 2, s.v. Biopiracy.

over biological resources and biological pro-

ducts that have been used over centuries in non-industrialized cultures.

5

Perhaps the most vocal criticisms of biopiracy havecome from the Action Group on Erosion, Technol-

ogy and Concentration (ETC Group) who definebiopiracy as:

the appropriation of the knowledge and genetic

resources of farming and indigenous communitiesby individuals or institutions who seek exclusive

monopoly control (patents or intellectual prop-erty) over these resources and knowledge.

6

A recent report on biopiracy produced by the

Edmonds Institute operated with a working defini-tion of biopiracy:

where there is access to or acquisition of bio-diversity (and/or related traditional knowledge)without prior informed consent, including prior

informed consent about benefit sharing, on thepart(s) of those whose biodiversity (or traditional

knowledge) has been accessed or acquired,there is biopiracy i.e., theft.

7

As these four separate definitions attest, there is a

diversity of understandings of what, exactly, biopi-racy refers to. There has also been a recent flurry of

critiques of the notion of biopiracy, claiming it asan alarmist exaggeration or a misguided reading of

the nature of IPR law. For example, in a recentarticle, Chen claims that [m]ost allegations of

biopiracy are so thoroughly riddled with inconsis-tencies and outright lies that the entire genre, pend-

ing further clarification, must be consigned to the

realm of rural legend.

8

5

V. Shiva. 2001. Protect or Plunder? Understanding Intellectual Prop-

erty Rights.

London: Zed Books.

6

Action Group on Erosion, Technology and Concentration (ETCGroup). 2005. ETC Group Web Site. Ottawa, ON: ETC Group. Avail-

able at: http://www.etcgroup.org/text/txt_key_defs.asp[Accessed 22 July

2006].

7

J. McGown. 2006. Out of Africa: Mysteries of Access and Benefit

Sharing

. (Edited and introduced by B. Burrows.) Washington, DC/

Richmond: Edmonds Institute in Cooperation with African Centre for

Biosafety. Available at: http://www.edmonds-institute.org/outofafrica.

pdf [Accessed 22 July 2006].

8

J. Chen. Theres No Such Thing as Biopiracy . . . And Its a Good

Thing Too. McGeorge Law Rev 2005; 36: 135.
http://www.askoxford.com/http://www.etcgroup.org/text/txt_key_defs.asphttp://www.edmonds-institute.org/outofafricahttp://www.edmonds-institute.org/outofafricahttp://www.etcgroup.org/text/txt_key_defs.asphttp://www.askoxford.com/


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Chris Hamilton


Taking these various understandings of the con-

cept as a starting point, I will argue that we shouldview biopiracy differently. I will present a way of

interpreting biopiracy as an intervention that servesto index a number of different, yet interrelated,

problematizations generated by the intersection ofbiotechnology and IPR. I will also describe activists

use of the term as one that involves a deliberatesimplification of science and IPR. In so doing,

biopiracy is positioned as a touchstone that mobi-lizes actors and problems, and ultimately generates

solutions to the very challenges it creates.Ultimately, this paper will approach biopiracy as

something that comes about and is deployed toaddress two concerns simultaneously:

1. That the current system of accessing, using and

apportioning the benefits of biodiversity does notgive adequate recognition to those people who

may have been the initial identifiers of a certainresources bioactivity.

2. That the intellectual property system is not an

adequate means to deal with the questions thatthis type of relationship presents, particularly

what should count as invented and, thus, pat-entable within the parameters of an IPR system,

and by what justifications this patentability isunderstood.

It is my belief that, in tracing the history of the term,and examining examples of its use, we will be pro-vided with a more robust understanding of what the

issues are in claims of biopiracy and, therefore, howthese issues can be addressed by those interested in

dealing with the problem of biopiracy.It is also important to clarify at the outset what

this paper is not

attempting to do. My concern is notto address the relative veracity of claims of biopi-

racy, or of the concept itself, but rather to examinethe influence that they have had in flagging broader

concerns with new developments in IPR and biodi-versity. Additionally, in examining the discourse of

biopiracy more closely, this paper will provide a

sociological analysis of the various solutions thatsuggest themselves and will demonstrate how the

solutions that are advanced and put into actiondepend largely on the definition of biopiracy that is

being used. The paper will also encourage a view ofbiopiracy claims that is not simply one of claims of

theft or misallocation of benefits, but rather one thatis designed to raise broader questions about the IPR

system itself. In clarifying some of the lines of con-

tention in this way, it is hoped that we might be ableto approach a more complete understanding of the

concept of biopiracy from which we can begin toaddress the problems it sets out.

This paper is divided into three sections: the firstwill examine three related historical events that led

to the emergence of the term biopiracy. The secondsection will look at the way in which biopiracy has

been used by activists, focusing on one particularlyfamous case study in depth, the neem tree, to exam-

ine the way in which the term is deployed as well asthe way(s) in which it can serve to index a series of

different problematizations of science, technologyand IPR. I will argue that the elisions made in the

interest of these deliberate simplifications can beseen as mirroring an appropriated version of whatMcAfee calls genetic essentialism, a process which:

conceptualizes genes as discrete entities: func-tional units of information which can be charac-

terized precisely, counted, added or subtracted

altered, switched on and off, or moved from oneorganism or one species to another by means of

genetic engineering. The metaphor of the deter-minant gene, although appealing in its sim-

plicity, is seriously misleading. Nevertheless, thenotion of genes as unitary objects with stable,

predictable properties provides conceptual sup-port for treating genetic constructs as tradable

commodities which are subject to market ex-change and to the assumptions of neoclassical

economics.

9

The final section will explain how the relationshipset out by the allegation of biopiracy forces the gen-

eration of solutions to the problems that it sets out:solutions that are directly related to a specific under-

standing of biopiracy. I will then conclude by advo-cating that, in order to properly understand how to

address biopiracy, we must be prepared to move

beyond the current narrow readings of it in orderto develop a more complete picture of the terms

9

K. McAfee. Neoliberalism on the Molecular Scale. Economic and

Genetic Reductionism in Biotechnology Battles. Geoforum

2003; 34:

203219.


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influence in challenging how, and by whom, the

decisions about what is natural and what is inventedcome to be.

HISTORICAL FRAME

In order to understand the biopiracy discourse, andbefore moving on to discuss it in more detail, there

are three intertwining historical developments thatneed to be acknowledged: the globalization of

Euro-American intellectual property regimes, par-ticularly through the World Trade Organizations

(WTO) Agreement on Trade Related Aspects ofIntellectual Property (TRIPS)

;

10

the recognition ofbiodiversity as a category of resources, principally

via the Convention on Biological Diversity (CBD);

11

and the emergence of the practice of bioprospecting,which can be seen as the practice of seeking out,identifying, developing and redistributing the bene-

fits of traditional uses of biodiversity.

IPR and the seed wars

It would be impossible to discuss biopiracy without

focusing, at least somewhat, on its significance as an

intellectual property issue. Indeed, many of thosewho were the initial propagators of the term saw it

as carrying on from earlier activism on issues of IPRin plants. The person generally credited with coining

the term, Pat Mooney (Executive Director of ETCGroup, formerly RAFI Rural Advancement Foun-

dation International), had long been active in theseed wars of the 1980s. Essentially, the seed wars

were the international controversy over the owner-ship of germplasm and other related issues

12

that

were fought over at a variety of international meet-ings through the 1970s and 1980s. The seed wars

defined, for a set of activists, some of the principal

issues to do with IPR and patents on life.

10

World Trade Organization (WTO). 1994. Agreement on Trade

Related Aspects of Intellectual Property. Geneva: WTO

11

See Convention on Biological Diversity. 2000. Sustaining Life on

Earth: How the Convention on Biological Diversity Promotes Nature and

Human Well-being

. Montreal: UNEP/CBD. Available at: http://

www.biodiv.org/doc/publications/guide.asp?id

=

action-int [Accessed 22

July 2006].

12

C. Juma. 1989. The Gene Hunters: Biotechnology and the Scramble

for Seeds. London: Zed Books.

Especially pertinent in the seed wars was the con-

cern for the germplasm of the developing world.One of the principal concerns of the groups object-

ing to the ownership and control of seeds, and germ-plasm in general, was that when plant genetic

material fell increasingly under the rubric of IPRthere was no guarantee that it would be able to

remain a free resource that could be traded amongfarmers. Alongside this were two related concerns:

one dealing with IPR and the other with appropri-ation. The concern was that, because there were no

IPR rules for plants in place at the time when a greatdeal of plant germplasm was collected from the

developing world, that it was seen as the commonheritage of mankind [

sic

].

13

The fear was that there

was effectively no IPR restriction on who could go

into germplasm banks to get the raw germplasm.

The material contained in these ex-situ banks couldthen be used for research purposes and would pro-vide the raw material needed for potentially lucra-

tive hybridization efforts by plant breeders. Or, asKloppenburg puts it, [w]hereas germplasm flows

out of the South as the common heritage of man-kind [

sic

], it returns as a commodity.

14

Thus, there

was a great deal of concern raised about this seem-ingly tunnel-visioned application of IPR to plant

genetic resources; the rhetorical lines were drawn: itwas common heritage when collected in the devel-

oping world but IPR protected seed varieties whensold back by commercial seed companies who wereable to control the trade and use of the seeds via IPR

contracts.When this use of the common heritage principle

to collect in the first place was contrasted with theenclosing and exclusive nature of IPR and combined

with the idea that much of this germplasm, initiallycollected from these areas, was now being sold back

(protected all the while by IPR), the seed wars wereset in motion.

The inclusion of TRIPS by the World Trade Orga-nization (WTO) facilitated the expanse in scope,

scale, and territorial sway of Euro-American

13

J. Kloppenburg & D. Kleinman. 1988. Seeds of Controversy:

National Property Versus Common Heritage. In Seeds and Sovereignty:

The Use and Control of Plant Genetic Resources. J. Kloppenburg, ed.

London: Duke University Press: 115: 8.

14

Ibid: 10.


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162

Chris Hamilton


notions of patentability and led to a further exacer-

bation of the IPR problems first highlighted in theseed wars. For the purpose of this article, the most

significant aspect of the TRIPS Agreement is that itmandates all member countries of the WTO to

implement a minimum level of IPR protection,including patentability for life forms that could be

construed as having been invented.

15

The inclusionof IPR into the text of the WTO agreements was a

direct result of pressure from United States (US)industries dependant on IPR, not the least of which

were the pharmaceutical and agro-chemical com-panies. This served as a testament to the growing

importance of the agricultural biotechnology andpharmaceutical industries, and to the amount of

influence that (particularly US) corporations had on

the negotiation process and on the actual wording

of the Agreement.

16

Over a decade on from the WTOs inception, thepatenting of living organisms continues to prove one

of the most controversial aspects of its agreements,and is at the heart of concerns about biopiracy. In

fact, Article 27.3(b) of the TRIPS Agreement (thearticle which sets out the criteria under which states

can exclude living organisms from patentability)

17

proved so controversial that it was written into the

text that the article would be reviewed four yearsafter coming into effect.

18

15

In many ways, this follows on from the 1980 Diamond vs. Chakra-

barty decision, which held that US patent law included anything under

the sun that was made by man. Diamond vs. Chakrabarty. 1980. 447

US 303. Diamond, Commissioner of Patents and Trademarks vs. Chakra-

barty, Certiorari to the United States Court of Customs and Patent

Appeals

. Washington, DC: US Supreme Court.

16

S. Sell. Intellectual Property Protection and Antitrust in the Devel-

oping World: Crisis, Coercion and Choice. Int Organ 1995; 49: 315349;

S. Sell. 1998. Power and Ideas: North-South Politics of Intellectual Pro-

perty and Antitrust.

Albany, NY: State University of New York Press;

C. Correa 2000. Intellectual Property Rights, the WTO and Developing

Countries: The TRIPS Agreement and Policy Options.

London: Zed

Books.

17

World Trade Organization, op. cit. note 10: Article 27: PatentableSubject Matter: 3. Members may also exclude from patentability: . . .

(b) plants and animals other than micro-organisms, and essentially

biological processes for the production of plants or animals other than

non-biological and microbiological processes. However, Members shall

provide for the protection of plant varieties either by patents or by an

effective sui generis

system or by any combination thereof. The provi-

sions of this subparagraph shall be reviewed four years after the date of

entry into force of the WTO Agreement

. (My emphasis.)

18

This review has also proven controversial and remains incomplete

several years after it was supposed to be carried out.

Those contesting biopiracy have long concerned

themselves with the TRIPS Agreement, focusing onthe idea that the expansion of IPR will facilitate and

widen the purvey of the patent and copyright claimsthat are at the heart of allegations of biopiracy. For

example, if we look again to Shiva, she makes theclaim that:

the issue of the patentability of life is not merely

a trade related issue; it is primarily an ethical andecological issue intimately related to the social

injustice of biopiracy. If implemented, the TRIPSagreement could have tremendous implications

for the health of the environment as well as forthe conservation of biodiversity.

19

Convention on Biological Diversity (CBD)

The second of the historical events I will be posi-

tioning as significant to the biopiracy discourseis the emergence of biodiversity as a category of

resources, primarily as a result of the CBD. Article

1 of the convention explains that the conventionsobjectives are:

the conservation of biological diversity, the sus-tainable use of its components and the fair and

equitable sharing of the benefits arising out ofthe utilization of genetic resources, including by

appropriate access to genetic resources and byappropriate transfer of relevant technologies,taking into account all rights over those re-

sources and to technologies, and by appropriatefunding.

20

The notion of sharing the benefits of biodiversity

obviously sets off a cascade of very pertinent ques-tions;

21

however, I will focus on the ways in which

regarding biodiversity, as a genetic resource, shiftsour understanding of these materials more tangibly

into a system of property. This moves them away

19

V. Shiva. 1997. Biopiracy: The Plunder of Nature and Knowledge.

Toronto, ON: Between the Lines: 85.

20

Convention on Biological Diversity (CBD). 1994. The Convention on

Biological Diversity. Montral: CBD: Article 1.

21

What are the benefits? Who gets to share in them? How does one

establish what these benefits entail are they purely financial? Can they

possibly be otherwise? How does this mesh with notions of biodiversity

conservation? And so on.


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163


from the realm of common heritage, which was gen-

erally, although controversially, thought previouslyto be the dominant paradigm.

22

The CBD further

facilitated this classificatory shift by recognizingthat genetic resources are nationally sovereign

resources. When genetic resources become con-ceived of as sovereign resources it becomes possible

to see them as something other than common heri-tage: or in the IPR sense, as part of the public

domain from which we can all benefit. Regardinggenetic resources as national resources thus contrib-

utes in part to reconceptualising these resourcesalong other private propertied lines and less as part

of a global public domain.

23

There is an obvious economic significance that

comes with such a revaluation of genetic material,

24

but the issue of these resources being national

resources adds a level of complexity for several rea-sons. Among the most significant concerns aboutthis system are those that cite situations where

groups that may be rich in the knowledge of bio-diversity have tenuous relationships with the states

in which they live. This could exacerbate concernsabout the benefits of biodiversity reaching the right

beneficiaries, something that is obviously funda-mental to the CBD.

The CBD has also had an interesting relationshipwith the discourse of biopiracy. In particular, it has

often been set out by some as a potential foil to theTRIPS Agreement, with the ideas of IPR (inTRIPS) and conservation (in the CBD) seen as

incompatible. One example of this would be theGenetic Resources Action International (GRAIN)

briefing on the conflicts between the two interna-tional instruments:

The Trade-Related Aspects of Intellectual Prop-

erty Rights (TRIPs) Agreement of the WorldTrade Organisation (WTO) threatens to make

the Convention on Biological Diversity (CBD)

impossible to implement. . . . In particular, TRIPs

22

S. Brush. A Non-market Approach to Protecting Biological

Resources. In Intellectual Property Rights for Indigenous Peoples:

A

Sourcebook.

T. Greaves, ed. Oklahoma City, OK: Society for Applied

Anthropology: 133143.

23

S. Brush. Bioprospecting the Public Domain. Cultural Anthropology

1999; 14: 535555.

24

Hayden, op. cit.

note 3.

imposes private intellectual property rights

(IPRs) on the Souths biodiversity while the CBDrecognises the collective rights of local communi-

ties to the same. Governments, scientists andmany social sectors accept that our survival

depends on the conservation and free availabilityof biodiversity, not on its privatisation.

25

There are many who are critical of the CBD, how-

ever, and this is typified by another example of theway in which the CBD is seen as important to the

biopiracy discourse. The Captain Hook Awards,the Coalition Against Biopiracys awards for the

companies and governments who have done themost to monopolize genetic resources, traditional

knowledge or culture are timed to coincide with theConference of the Parties to the CBD (every two

years) and are awarded at the meetings by a mem-ber of the coalition theatrically attired as Captain

Hook.

26

Bioprospecting

In 1993, taking direct inspiration from the CBD,

and especially its commitment to conserve, use sus-tainably, and share equally the benefits of biodiver-

sity, the World Resources Institute (WRI) published

Biodiversity Prospecting: Using Genetic Resources

for Sustainable Development

.

27

The introduction ofthe book outlined the goals of biodiversity pros-

pecting (bio-prospecting) as being, the explorationof biodiversity for commercially valuable genetic

and biochemical resources, citing Thomas Eisnersearlier advocacy of what he called chemical pros-

pecting.

28

The authors, Reid et al., also felt that,

done well, biodiversity prospecting can contributegreatly to environmentally sound development

and return benefits to the custodians of geneticresources

.

29

In essence, what Reid et al. were advo-

cating was the premise that, the best way to ensure

25

Genetic Resources Action International (GRAIN). 1998. TRIPs ver-

sus CBD: Conflicts Between the WTO Regime of Intellectual Property

Rights and Sustainable Biodiversity Management. Barcelona: GRAIN.

Available at: http://www.grain.org/briefings/?id

=

24 [Accessed 22 July

2006].

26

For more information, see http://www.captainhookawards.org.

27

Reid et al., op cit.

note 3.28 Ibid.29 Ibid: 2. My emphasis.
http://www.grain.org/briefings/?idhttp://www.captainhookawards.org/http://www.captainhookawards.org/http://www.grain.org/briefings/?id


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164 Chris Hamilton


the conservation of biodiversity, to justify preserv-

ing and to share its benefits, was by demonstratingits economic potential.

As many will indeed acknowledge at this point,the practice of collecting biological material is not

new.30

Indeed, one need look no further than thecolonial history of entities such as rubber31 to rec-

ognize that this practice was present in societies thatlong predate those we currently inhabit. What, then,

separates the contemporary formulation of bio-prospecting from its historical antecedents? Cori

Hayden describes the:

ambivalent promise of bioprospecting a dis-tinctly late twentieth century practice that stands

at the very centre of contemporary contests overindigenous rights, corporate accountabilities, and

ethical scientific research.32

Furthermore, she explains, it is a new name for anold practice; its newness is that the taking of these

genetic resources now comes with a mandate to giveback.33

Thus, we are presented with a historical momentin which IPR are expanding to a point where they

are now required to feature in the laws of all coun-tries that are members of the WTO, the CBD is

ushering in a new category of resources geneticresources that are seen as potentially lucrative, and

we are presented with a seemingly viable strategy,bioprospecting, to recognize the benefit from thesegenetic resources, to justify their conservation and

to ensure that their benefits are shared, all of whichare concepts harmonious with the stated goals of the

CBD.

A CASE STUDY OF BIOPIRACYSDEPLOYMENT: THE NEEM TREE

The concept of biopiracy emerges initially to prob-lematize aspects of the bioprospecting relationship

(which draws on the CBD for inspiration) but also,

30 B. Parry. 2004. Trading the Genome: Investigating the Commodifica-

tion of Bio-information. New York, NY: Columbia University Press.31 L. Brockway. 1979. Science and Colonial Expansion: The Role of the

British Royal Botanical Gardens.London: Academic Press.32 Hayden, op. cit.note 3, p. 1.33 Ibid.

simultaneously, to challenge what many thought of

as an ongoing creep of IPR into ever more intimatedomains of life: as typified by the seed wars con-

troversy. In the interest of clarifying some of thelines of contention in the biopiracy discourse, the

following section will turn to an examination ofthe way(s) in which biopiracy has come to denote a

relationship that challenges the basis of this regimefor the generation of capital through the exploita-

tion of genetic resources.The understanding of biopiracy as a problem

has been advanced considerably by reference to spe-cific instances of biopiracy and the use of these

cases as examples of perceived broader problemswith the patent system and related regimes. How-

ever, although biopiracy appears to have been

widely taken up through the late 1990s and early

2000s, the examples used as archetypes were rela-tively few.

In general, the cases that are chosen to serve as

archetypes for the concept are tactically chosen forseveral reasons: because of the chance of success,

legally speaking, for instance, because the patentclaims are overly broad or if sufficient enough mate-

rial exists that would demonstrate prior art (thusnegating the novelty element required for patent-

ability); because of the perceived symbolic reso-nance of the products being patented (i.e. their

importance to, and level of, recognition within cer-tain communities); and insofar as they are able tomobilize actors and resources over the extensive and

costly period that it takes to challenge a patent.Central to this is the way in which these cases are

able to mobilize actors and concepts both within thepatent system (e.g. demonstrating prior art) and also

outside the patent system (e.g. mobilizing to pres-sure policymakers and others about patents on life

more generally).It is important to note at this point, that I am

presenting this case as an example of the rhetoricused in challenging a contentious patent and that

this should not be read as an attempt to prove or

disprove the veracity of the claims being made.Rather, I present this particular case as an example

of the way in which the allegation of biopiracy isplayed out in practice. In effect, the following

account will demonstrate that the neem patent chal-lenge serves two functions. The first deals with the


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Biodiversity, Biopiracy and Benefits 165


obvious legal ramifications relating to the patents

cancellation: if prior art can be demonstrated, thenthe patent is legally invalid, thus the knowledge, as

such, remains in the public domain to be freely usedby all. The second function of the successful patent

is to establish the concept of biopiracy itself as hold-ing some legal and moral significance, thus contrib-

uting to a wider acceptance that the process italleges is a pertinent one.

The W.R. Grace patent on a fungicide derivedfrom the seeds of the neem tree holds a special place

in the pantheon of biopiracy cases.34What followswill be a brief examination of the neem case in order

to demonstrate the way in which problematizations

of biopiracy are deployed. Of note here will be anexamination of the productive and deliberate sim-

plifications of IPR and biology that are employed,

and the way in which cases of biopiracy are used toindex a cascade of other concerns regarding the cur-rent and future relationship between biotechnology,

IPR and society.The neem tree itself is one that is steeped in the

cultural, agricultural and pharmaceutical lives ofmany cultures in Burma, India and beyond. It is

generally acknowledged that the tree has beenused widely in those regions for a myriad of pur-

poses: from use as teeth cleaner to a fungicide.Although its bioactive usefulness was widely real-

ized in India, the neem tree began to captureinternational imaginations when it was exportedto Africa at various points in the twentieth

century.35

Seemingly mirroring the turn to nature for phar-

maceuticals evidenced in the bioprospecting enthu-siasm of the early 1990s, there was a similar turn to

nature in research on pesticides. In this context,neem generated a great deal of excitement as it was

seen to be one of a generation of biological pest-control methods that can do the job with fewer side

34 See, for example, V. Shiva. (date unavailable). The Neem Tree: A Case

History of Biopiracy. Online: Third World Network. Available at:

http://www.twnside.org.sg/title/pir-ch.htm [Accessed July 25, 2006]. In

this article, Shiva refers to the neem tree as a classic case of biopiracy

by transnational corporations.35 National Academy of Science Office of International Affairs. 1992.

Neem: A Tree for Solving Global Problems.Washington: National Acad-

emy Press.

effects.36 The trees properties were apparently so

exciting that it prompted the US National Academyof Sciences to conclude that it was a tree for solving

global problems37and that it may usher in a newera in pest control, provide millions with inexpen-

sive medicines, cut down the rate of human popula-tion growth, and perhaps even reduce erosion,

deforestation and the excessive temperature of anoverheated globe.38

In 1994, the European Patent Office (EPO)granted W.R. Grace and Co. a patent described as:

A novel insecticide and foliar fungicide derived

from a neem seed extract comprising neem oilwhich is substantially free of azadirachtin and

salannin, said neem oil being prepared by extract-ing dried, coarsely ground neem seeds with a non-

polar, hydrophobic solvent to obtain a neem oilextract, and then removing the solvent to obtain

the neem oil. These neem oil pesticides exhibit theability to repel insects from plant surfaces, pre-

vent fungal growth, and kill insect and fungalpests at various life stages.39

The patent claimed, among other insecticidal and

fungicidal applications:

Use of the insecticide and foliar fungicide . . . forcontrolling insect pests and fungi comprising con-

tacting the insect or fungi with a neem oil formu-lation containing 0.1 to 10% neem oil which is

substantially free of azadirachtin and salannin,0.005 to 5% emulsifying surfactant and 0 to 99%

water.40

In 1996, the patent was eventually transferred toThermo Trilogy, a former affiliate of W.R. Grace.

36 R. Stone. A Biopesticidal Tree Begins to Blossom: Neem Seed Oil

has Insect Toxicologists Buzzing About its Potential as a Source of

Natural Insecticides. Science1992; 255: 10701071.37

National Academy of Science Office of International Affairs, op. cit.note 35, title.38 Ibid. Although they went on to qualify this statement by saying that

the promises were still rather vague and that they meant their study to

be one that helped to advance the realization of that promise, the level

of enthusiasm is clear, if only from the title of the book alone.39 J.C. Locke, H.G. Larew & W.J. Frederic. 1991. Method for Controlling

Fungi on Plants by the Aid of a Hydrophobic Extracted Neem Oil.

Applicant: Grace, W.R. & Co. (US); US Agriculture (US): EP0436257,

p. 2.40 Ibid: 10.
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166 Chris Hamilton


The story of the neem patent challenge began in

1993, when the Neem Campaign of India waslaunched by farmers in India who feared that their

genetic resources and traditional knowledge werecoming increasingly under foreign control through

the legal mechanism of patents.41

This particularchallenge of the patent, at the EPO, was advanced

by three people who filed the patent opposition: DrVandana Shiva, Director of the New Delhi based

Research Foundation for Science, Technology andEcology (RFSTE); Linda Bullard, then Vice-

president of the International Foundation ofOrganic Agriculture Movements (IFOAM); and

Magda Aelvoet, then president of the Green Groupin the European Parliament (and now Belgian Min-

ister of State). These three formed an integral part

of the neem team, an international group of activ-

ists working against patents on neem.42The selec-tion of patent and opponents (as those that fileopposition to a patent are referred to) was far from

coincidental. As Bullard explains in her briefingpaper released following the defeat of Thermo Tril-

ogys appeal on the patents revocation:

The three partners consciously chose to opposethis particular patent in part because of who its

proprietors were: They wished to illuminate howgovernments of wealthy countries in this case

the United States and multinational corpora-tions in this case the infamous W.R. Grace

(whose exploits are chronicled in the book andmovie A Civil Action) collude to steal biolog-

ical resources from the south by means of thepatent system. It is also not by accident that

these particular three Opponents joined forces to

launch the Opposition: an organization from thecountry where the resource was stolen, an inter-

national organization representing organic usersand producers of Neem products throughout the

world, and an environmental political party, well

41 L. Bullard. 2005. Freeing the Free Tree: A Briefing Paper on the First

Legal Defeat of a Biopiracy Patent: The Neem Case . Brussels: Research

Foundation for Science, Technology and Ecology, International Feder-

ation of Organic Agriculture Movements (IFOAM) & The Greens/

European Free Alliance in the European Parliament: page 6. Available

at http://www.ifoam.org/press/press/pdfs/Briefing_Neem.pdf [Accessed

5 May 2006].42 V. Shiva. 2000. North-South Conflicts in Intellectual Property

Rights. Peace Review2000; 12: 501508.

positioned to pursue changes in the legal system

itself to outlaw Biopiracy. And from within theseorganizations it was women who initiated the

action and sustained it an Indian, a Belgian, andan American.43

Elsewhere, Shiva further develops the rationalebehind challenging this particular patent:

We started the campaign because of the imp-

ortance of neem in our culture, our agricultureand our health systems. We picked the fungicide

patent because it was owned by the U.S. Govern-ment and a big multinational corporation

(MNC). It was therefore a powerful symbol ofbiopiracy and the flaws of Western industrial IPR

systems. Neem is an important symbol because it

is used on a large scale for medicine and agricul-

ture in India. If biopiracy can occur with suchcommonly used knowledge, what would be thefate of less prevalent examples of traditional inno-

vation? Neem was also important because it isan ecologically sound alternative to hazardous

pesticides. . . . Finally, neem is a symbol of free-dom as the Free Tree. Its scientific name, Aza-

dirachtin Indica, is derived from Azad Daraktwhich means free tree. Liberating the free tree

thus became the symbol of our liberation move-ment to free knowledge systems and biodiversity

from biopiracy.44

The patent challenge was filed by the members ofthe neem team on the grounds of lack of novelty,

lack of inventive step, because the invention wouldbe contrary to morality,45 and on the grounds of

insufficiency of disclosure.46 In May of 2000, the

Thermo Trilogy Patent was found by the Board ofAppeal of the European Patent Office to lack nov-

elty and an inventive step, and was consequentlystruck down.47The court relied quite heavily on sev-

eral documents presented by the opponents (e.g.

43 Bullard, op. cit.note 41, p. 3.44 Shiva, op. cit.note 42, p. 508.45 The European Patent system does not allow patents that would be

contrary to ordre publique or morality. A similar restriction does not

exist in the US patent system.46 Boards of Appeal of the European Patent Office. 2005. Decision of 8

March 2005: Method for Controlling Fungi on Plants by the Aid of a

Hydrophobic Extracted Neem Oil.Brussels: European Patent Office.47 Ibid.
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Shiva et al.), especially a 1981 article by H.B. Singh

and U.P. Singh in Australasian Plant Pathology onthe uses of neem.48 In addition to that, the board

cited affidavits submitted by Mr A.D. Phadke andProf U.P. Singh in support of the opponents claims

that the patent did not demonstrate sufficient nov-elty. In particular, the court noted that in the 1980s

Mr Phadke had himself carried out tests of neemsfungicidal effects in a similar fashion to that

described in the patent application.49

This decision was promptly appealed by Thermo

Trilogy on several grounds, principally: technicalquestions about the opposition fee paid by the

opponents; whether the opponents needed a repre-

sentative in order to file the opposition (particularlyDr Shiva, who was a non-European); and questions

about whether the demonstration of prior use (espe-

cially the recollection of Mr Phadke) was insuffi-cient.50In March 2005, the Boards of Appeal of theEuropean Patent Office ruled in the appeal that the

technical requirements (i.e. fees, representation, etc.)were met appropriately. They also ruled that because

there was no dispute between the parties about theexistence of the Singh & Singh article, the document

was of enough relevance that the question of prioruse could be decided on the basis of [that docu-

ment] alone,51 thereby rendering it moot whetherMr Phadkes recollection was valid or not.52Thus,

the board dismissed the appeal largely on thestrength of the claim to prior use in the Singh &Singh article.

48 Cited in Boards of Appeal of the European Patent Office. 2005.

Decision of 8 March 2005: Method for Controlling Fungi on Plants by

the Aid of a Hydrophobic Extracted Neem Oil. Brussels: European

Patent Office: 1.49 Boards of Appeal of the European Patent Office, op. cit.note 45.50 Ibid; International Federation of Organic Agriculture Movements

(IFOAM). 2005. Landmark Decision in Worlds First Case Against

Biopiracy!! European Patent Office Upholds Decision to Revoke Neem

Patent. Bonn: IFOAM. Available at: http://www.ifoam.org/press/press/pdfs/Press-Release-Neem-Victory.pdf [Accessed 5 May 2006].51 Boards of Appeal of the European Patent Office, op. cit. note 46,

p. 15.52 It should be noted, however, that the board did not especially call it

into question, but felt that the material in the Singh & Singh article was

highly relevant for the present case. The principle question of the

appeal hinged on the amount of time that lapsed between his field tests

of a neem fungicidal preparation and the patent, and the fact that he

often had to consult outside material (especially laboratory books)

during his testimony.

The boards upholding of the decision to revoke

the patent was hailed as an unqualified victory bythe patents opponents who were claiming biopi-

racy. In many ways, this can be seen to be as mucha contest for the validity of the patent on neem itself

as for the ideaof biopiracy. The joint press releasesent out by the three challengers organizations

(IFOAM, RFSTE and the Green Group of the Euro-pean Parliament) hailed this as a landmark victory

in the worlds first case against biopiracy53 and adecision that would [bring] to a close this ten year

battle in the worlds first legal challenge to a biopi-racy patent.54They went on to quote their counsel,

Prof. Dr. Fritz Dolder, Professor of Intellectual Prop-

erty with the Faculty of Law at the University ofBasel, who claimed that this is the first time that the

EPO has legally concluded a biopiracy case.55

While I have used the neem biopiracy case as anexample here, the material it provides shares somediscursive similarities with other ambassador cases

of biopiracy. It is worthwhile at this point to exam-ine some of the symbolism invoked in this case, as

it is typical of much of the imagery of biopiracy.First, the patent opponents briefing paper raises

a familiar spectre in the biopiracy narrative: thatof the large multinational corporation, in this case

W.R. Grace, who seem to be intent on deceivingand, ultimately, usurping the resources of the people

of the developing world. In this instance, anotherGrace public relations debacle is invoked: the 1998film, A Civil Action, which chronicled the actions

of several companies, one of them Grace, who wereinvolved in dumping of toxic chemicals near their

plant in Woburm, Massachusetts.56The symbolism

53 International Federation of Organic Agriculture Movements, op. cit.

note 50, p. 1.54 Ibid: 1.55 Ibid: 2.56 The film was based on a book of the same name by Jonathan Harr.

As a result of the lawsuit depicted in the film, Grace eventually paid

US$8 m to eight Woburn families who brought the lawsuit (see S. Wilm-sen. 1999. W.R. Grace Takes on A Civil Action. The Boston Globe

January 12.) Using the Woburn case and the film as some sort of

precedent has the obvious effect of painting them as a company who

seem to manifest a serial disregard for the environment and for the

communities in which they operate. This is not to be confused with

another well-publicised environmental case involving W.R. Grace: a

settlement they negotiated with people from Libby, Montana, who had

been affected by asbestos due to a mine operated in Libby by W.R.

Grace. It is also important to note that neither of these cases have any

legal bearing on the neem patent or the related challenge to it.
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168 Chris Hamilton


is furthered by reference to the fact that the patent

is being challenged, generally, by (or in the name of)groups from the developing world and also, specifi-

cally, by a group of women. This kind of imageryfeatures commonly in the biopiracy discourse, con-

trasting rich corporations with poor and marginal-ized farmers or indigenous groups. This is done in

large part to position biopiracy as something that isa threat to centuries old farming practices, and even

to natures creative or reproductive power itself.57

In effect, what are also at play in these arguments

are selective simplifications of both the science andthe IPR that went into the patent. In many ways,

these simplifications can be seen as a reflection of

what McAfee calls genetic essentialism, where thegene comes to be seen as a discrete entity with com-

mercial significance.

Interestingly, while McAfee postulates that thisgenetic essentialism is something that supports legaland market-based commodification(s) of genetic

resources, anti-biopiracy campaigners are able todraw on a similar logic to support their campaigns

against monopoly control over genetic resources viapatents. Astute readers will notice that there is noth-

ing geneticper seabout what is being claimed in thecontested patent: the patent applied for deals with a

certain preparation of neem seeds for use in a fun-gicide. In many ways, one can see the deliberate

simplification in this instance: the patent claim oncertain of neems fungicidal properties seems tocome to stand in as ownership and control over

neem itself, and all of its uses. In invoking the ideaof genetic resources, even where none are explicitly

being claimed in the patent, the idea of biopiracy astheft of genetic resources is given added weight.

Indeed, the biological basis of the issue is simplifiedin a very deliberate and productive way.

Presenting the neem issue as one of biopiracy alsoinvolves a deliberate simplification of the nature of

the IPR involved. A patent grants a right of exclu-sion: the holder has the right to exclude other people

from profiting from their invention for the limited

timeframe of their patent.58This means that there isnothing technically in the neem patent per se that

57 Shiva, op. cit.note 19.58 G. Dutfield. 2003. Intellectual Property Rights and the Life Sciences

Industries: A Twentieth Century History.Hampshire: Ashgate.

would in any way limit the people in question (e.g.

Indians in India) from using neem in the same wayas they had always done (e.g. as a fungicide). 59The

activists make several further generalizations intheir press materials, especially in claiming this to be

the first ever biopiracy case when, in fact, this termdoes not enter into the decision, and, thus, it cannot

be said to refer to a legal category.Even looking at this single, but important, exam-

ple, what becomes clear in is that biopiracyinvolves allegations of a type that confound a simple

categorization and is used to contest a number ofdifferent issues at once. If we stick with the neem

example, for instance, we see it used as an exampleof biopiracy in court at the EPO, then subsequently

in official delegation submissions at the WTO,60 in

protests by environmental and anti-globalization

groups, and elsewhere. Indeed, the way that it istaken up can be seen as indicative of the way(s) inwhich it can be seen simultaneously as: an issue of

misallocated IPR; as an issue for the internationaltrade system (via the WTO), and its opponents (via

anti-globalization protests); as well as a challenge tothe notion of patentability for living things. Here,

the importance of patents is as much in their sym-bolic as in their legal meanings. In these cases, the

patent itself serves as a signifier for broader concernsabout property, nature, and what counts as either of

these, as we adjust regulatory regimes to deal withnew developments in science and technology. View-ing patents in this way can also cast a new light on

biopiracy: if we understand patents on life here asbound up with a host of other concerns, the solu-

tions to biopiracy that suggest themselves also takeon new levels of complexity.

CONSEQUENCES:PROBLEM/SOLUTIONS

Helped along by ambassador cases like neem, biopi-

racy has seen a wide take-up in multiple fora, from

59 G. Dutfield. 2004. Intellectual Property, Biogenetic Resources and

Traditional Knowledge. London: Earthscan.60 See Indian Permanent Mission to the World Trade Organization

Council for Trade Related Aspects of Intellectual Property Rights. 2000.

Communication from India. IP/C/W/214. Geneva: WTO.


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the WTO to charity appeals by major newspapers.61

Biopiracy, in this way, has been so successful incharacterizing a certain kind of relationship, that it

has not only mobilized actors such as activists, legalsystems, international policy decision-makers, etc.,

to deal with it (as we saw in the previous section),but also mobilized responses (or solutions) to the

challenges it poses.One way to examine it is to consider that there are

broadly three possible types of solution that emergeto address the challenge posed by biopiracy. Each

of these comes about to address what could be seento be a particular element of the biopiracy discourse

or as a way of answering the question: What is theproblem with biopiracy (if any) and how do we

approach it?

1. Maintain the status quo, as there is no problemthat the IPR system itself will not be able to

rectify.2. Find better ways to engage in benefit sharing.

3. Adjust the notions of property at play (e.g. no

patents on life).

I will examine them in turn.

Maintain the status quo

The first of these solutions applies if it is assumed

that biopiracy is over-hyped, alarmist and mytho-logical: it just simply is not happening or is actuallyimpossible. The solution, if this is the case, is simply

to address the deficits in individual cases of biopi-racy: be they deficits in the specific criteria of pat-

entability or in how the benefits are apportioned.This line of argument is usually coupled with a sup-

port for the dominant IPR paradigm as a solutionin itself: i.e. if, in cases of alleged biopiracy prior art

can be demonstrated, then there can be no patentclaim on the given invention as it is not novel. Like-

wise, if a patent is filed on something simply discov-ered in nature, it also will not be granted, as it lacks

an inventive step. This is the position of some legal

scholars as well as, apparently, that of the WTO,who make the claim that:

61 K. Perry. 2000. Getting Fair Price for Indigenous Remedies. The

Guardian21 December.

for something to be patentable under the TRIPS

Agreement, it must be an invention. This meansthat the patenting of biological material in its nat-

ural state, so-called bio-piracy, is inconsistentwith the principles of the TRIPS Agreement.62

Further, those advocating this position argue that ifthere ever were a patent erroneously issued, then the

system would correct itself if presented with the jus-

tification to do so (e.g. demonstration of prior art,obviousness, etc.).

If we understand biopiracy to be strictly and nar-rowly an IPR issue, then this appears to be, arguably,

a tenable position. If we understand biopiracy to bea broader concern, however, then this solution is

unsatisfactory. One of the principal concerns foranti-biopiracy activists about this solution has to

do with issues of differential access to the patentsystem. Using the IPR system to adjudicate these

claims assumes that everyone has equal access to thecorrective mechanisms in it. In actuality, however,

patent challenges cost a substantial amount of

money, can extend over several years, require spe-cialist knowledge of the patent system, and so on. It

also does not address situations where the exploita-tion of a given plant resources would create an arti-

ficial scarcity of said resources, thereby limitingones ability to use it.

Another substantial point of concern for anti-biopiracy activists relates to the notion of prior art.

In particular, it is felt by many that establishedpatent systems (especially in the US) are remiss in

the way that they handle claims to prior art thatcome from sources that are not readily accessible to

their patent examiners. Concerns about what wouldcount as prior art in the new, more globally ori-

ented, patent regime are central to international

political dialogues on the issue, and also to thebiopiracy campaigners. Fears about the scope of

prior art considered by examiners were aired as part

of the review of Article 27.3(b), which elicited thisresponse from the US:

if information is not written down, that infor-mation is completely inaccessible to patent

62 World Trade Organization (WTO). 2001. WTO Policy Issues for Par-

liamentarians: A Guide to Current Trade Issues for Legislators. Geneva:

WTO: 25.


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170 Chris Hamilton


examiners everywhere as prior art when they

are examining patent applications. It is possible,therefore, for a patent to be issued claiming as an

invention technology that is known to a particularindigenous community. The fault lies not with the

patent system, however, but with the inaccessibil-ity of the knowledge involved beyond the indige-

nous community.63

In many ways, this speaks to some of the shortcom-ings of the system that those claiming biopiracy

point to as part of their critique of the system ofmonopoly ownership of genetic resources. If we go

back to the neem example, it would seem clear thatthe concerns about biopiracy, notably those about

prior art, would not be adequately addressed by thisparticular solution; the patent would not have been

ruled invalid if the information required to do sowere in an inaccessible format.

Interestingly, however, the neem case was wonon the grounds that prior art was disregarded in the

initial granting of the patent. It may be tempting to

claim here that these activists are thus engaging inrather alarmist and hyperbolic simplifications in

presenting the situations that they label as biopiracy.If they use these significant elisions in describing

situations such as neem, and these cases of biopiracyare ultimately settled through the channels of the

IPR system itself, then it might be tempting to claimthat biopiracy simply does not exist or, at worst, that

it is simply unfortunate cases of bad patents beingissued, which can be easily rectified from within the

parameters of the system itself. This, however, pre-sents only a partial picture, and a more useful way

of looking at this would be to take this simplificationas one part of a broader and multi-faceted strategy

of opposition.

A second set of concerns, which are invoked bythose contesting biopiracy, seeks to call into ques-

tion the notion of patents on life in general. As part

of their ongoing activism on IPR issues, there aremany who feel that the system itself should bealtered to limit severely the possibilities for patent-

ing life in general, usually on ethical or moral

63 World Trade Organization (WTO). 2000. Review of the Provisions of

Article 27.3(b): Further Views of the United States. IP/C/W/209.

Geneva: WTO: 4.

grounds.64This will be touched on in a subsequent

section on new property paradigms.

Benefit sharing

If we assume biopiracy to be an issue of a misallo-cation of IPR, a lack of prior informed consent in

initially accessing biodiversity, or as a glitch in thesystem for redistributing the benefits of genetic

resources, then the solution that suggests itself is oneof benefit sharing. Indeed, this is something that

has been present since the inception of bioprospect-ing and is enshrined in the CBD. From a biopiracy

perspective, benefit sharing responds to biopiracyunderstood as an issue of the misallocation of ben-

efits derived from genetic resources but does not

substantially shift the debate away from the domi-

nant paradigm which suggests that the benefits fromgenetic resources will be derived via the IPR system.

The benefit sharing issue has also been the subject

of a number of discussions and responses frominternational organizations dealing with IPR.

Recent discussions at the WTO, for instance, havetaken up the benefit sharing debate in earnest. Sub-

missions from Peru and others have advocated thatthe solution to biopiracy lies in requiring those

applying for a patent involving genetic resources(either the resource itself or the knowledge of its use)

to disclose the origin of the knowledge and/or thematerial involved in the patented subject, as well asto be able to demonstrate that they have obtained

the prior informed consent of any traditional knowl-edge holders who might be affected and have nego-

tiated appropriate benefit sharing agreements withthose same traditional knowledge holders. Most of

these proposals at the WTO have come about as part

64 These are still seen by many as natural and thus unpatentable irre-

spective of the human ingenuity that has gone into rendering them into

their patentable state. For example, see Foundation on EconomicTrends (FOET). 2001. The Treaty Initiative to Share the Genetic Com-

mons. Bethesda, MD: FOET, which has gathered the support of a

number of non-governmental organisations (NGOs) and other activists

with the aim to prohibit all patents on plant, microorganism, animal,

and human life including patents on genes and the products they code

for, in their natural, purified or synthesized form, as well as chromo-

somes, cells, tissues, organs and organisms including cloned, transgenic

and chimeric organisms. Available at: http://www.foet.org/Treaty.htm

[Accessed 15 May 2006]. (Now at: http://www.foet.org/past/patents-life-

treaty.html but listed as coming soon at time of press.)
http://www.foet.org/Treaty.htmhttp://www.foet.org/past/patents-lifetreaty.htmlhttp://www.foet.org/past/patents-lifetreaty.htmlhttp://www.foet.org/past/patents-lifetreaty.htmlhttp://www.foet.org/Treaty.htm


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of discussions on the review of the TRIPS Agree-

ment and, thus, propose that these commitments(disclosure of origin and evidence of benefit sharing)

be included within the mechanisms of the TRIPSAgreement itself. For their part, the World Intellec-

tual Property Organization (WIPO) has been deal-ing with the notion of benefit sharing in discussions

about the relationship between traditional knowl-edge and intellectual property. In general, they rec-

ognize the importance of traditional knowledgerelated IP provisions to complement the CBDs ben-

efit sharing initiatives as well as important policyissues beyond the domain of IP.65

Criticisms of the benefit sharing approach have

focused on several points, often moving fluidlybetween material and ethical critiques. The first and

most obvious of these are the material challenges

associated with defining what the benefits are, whoshould distribute them, how these should be distrib-uted, and who precisely should be the recipients. If

we look to the neem case again, if it is indeed thecase that it is widely used in India and elsewhere as

a fungicide, the issue of benefit sharing would takeon unmanageable proportions. In particular, how

would one begin to establish who should be therecipient of the benefits in a case where the knowl-

edge that is being exploited could legitimately besaid to derive from the practice of millions of people

in India and elsewhere? In many situations this ismade more complex when the element of expecta-tions are brought in, especially in cases of pharma-

ceutical bioprospecting in remote areas, despite thefact that it is quite widely acknowledged that lucra-

tive, blockbuster drugs very rarely result frombioprospecting-type programs.66 This is also often

related to concerns about the fact that benefit shar-ing agreements may be pegged to the commercial

success of a given plant patent and, thus, there is noguarantee that benefits will be forthcoming.

65 World Intellectual Property Organization (WIPO). 2005. Intellectual

Property and Traditional Knowledge.New York, NY: WIPO: 14. Avail-

able at: http://www.wipo.int/freepublications/en/tk/920/wipo_pub_920.

pdf [Accessed 22 July 2006].66 A complete discussion of this particular concern is beyond the scope

of this particular study. For discussions of these matters see, for exam-

ple, C. Hayden. From Market to Market: Bioprospectings Idioms of

Exclusion. American Ethnologist2003; 30: 359371; S. Greene. Indige-

nous People Incorporated? Culture as Politics, Culture as Property in

Pharmaceutical Bioprospecting. Curr Anthropol2004; 45: 211237.

Another of the points that is often raised relates

to the substance of the material remunerationsincluded in benefit sharing agreements. This has

prompted some to claim that these involve sharingonly the crumbs of the benefits.67On the surface,

a concern with the material remunerations mightalso be seen as invoking the dominant IPR para-

digm: essentially saying that the problem is notthe patent itself but the equitable disbursements

of the benefits that will come from it. Though thisis in many ways true, these concerns are often

unproblematically advocated alongside broaderethical concerns with whether or not IPR is an

appropriate forum to use to deal with these kindsof knowledges and the benefits that they might

generate.

For example, the collection of essays in the recent

Edmonds Institute book, called The Catch: Perspec-tives in Benefit Sharing68presents some very forcefulcritiques of the notion of benefit sharing as a possi-

ble inoculation against, or remedy for, biopiracy.Many of the essays seem to focus on what they see

as this same contradiction in the notion of benefitsharing in the CBD, between the ascription of value

to these resources (a value which can be shared withthe appropriate people via benefit sharing) and the

use of the IPR system to recognize this value. Theyadvocate two positions which overlap: that the ben-

efits of these genetic resources are so great as to beincalculable and that they have always been seen asa collective and a public wealth, thus fundamentally

incompatible with the individual rights associatedwith IPRs.

As Ribiero puts it in her essay:

The immense wealth of knowledge of plants,animals, insects and other elements of nature

knowledge on which the world has come todepend for food, health, clothing, and many other

aspects of human life originated in indigenous

communities and rural communities across theplanet. That knowledge is and has always been a

67 R. Wynberg. 2003. Sharing the Crumbs with the San. Barcelona:

GRAIN. Available at: http://www.grain.org/bio-ipr/?id=279[Accessed 5

May 2006].68 B. Burrows, ed. The Catch: Perspectives in Benefit Sharing.Edmonds,

WA: The Edmonds Institute.
http://www.wipo.int/freepublications/en/tk/920/wipo_pub_920http://www.grain.org/bio-ipr/?id=279http://www.grain.org/bio-ipr/?id=279http://www.grain.org/bio-ipr/?id=279http://www.grain.org/bio-ipr/?id=279http://www.wipo.int/freepublications/en/tk/920/wipo_pub_920


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172 Chris Hamilton


collective and public wealth, managed by local

communities for the benefit of humanity.69

It would appear that those who criticise benefit shar-

ing are able to do so relatively unproblematicallyfrom two seemingly contradictory positions: that

IPR (or benefits derived from exploiting IPR) is notthe best way to arbiter these agreements but also,

simultaneously, that it is not going to properly iden-

tify the scale of the benefits or grant all parties equalaccess to the economic benefits generated via the

commodification of the biological resource in ques-tion. If we take that into account, it seems clear that

benefit sharing, if invoked as a solution to biopi-racy, is unlikely to address all of the relevant ethical

concerns raised. Or, put another way, for many cam-paigning against biopiracy, it is not who owns it but

that it is owned at all that matters.

New property paradigms?

What is hinted at in some of the critiques of benefit

sharing is that we need to understand biopiracymore broadly (as I have encouraged in this paper)

as an issue that is more than simply one of intellec-tual property. As a part of this, one of the possible

solutions to biopiracys challenge has been anattempt to reframe the propertied terms in which

IPR claims on genetic resources are understood.This has emerged as a particularly significant prop-

osition around the issue of Article 27.3(b) of theTRIPS Agreement. Article 27.3(b) allows countries

to exclude from patentability:

plants and animals other than micro-organisms,and essentially biological processes for the pro-

duction of plants or animals other than non-biological and microbiological processes.

However, Members shall provide for the protec-tion of plant varieties either by patents or by an

effective sui generissystem or by any combinationthereof . . . The provisions of this subparagraph

shall be reviewed four years after the date of entry

into force of the WTO Agreement.70

69 S. Ribiero. 2005. The Traps of Benefit Sharing. In The Catch:

Perspectives in Benefit Sharing. B. Burrows, ed. Edmonds, WA: The

Edmonds Institute: 3780: 3738.70 World Trade Organization, op. cit.note 10.

The notion of what counts as a sui generis system

under the terms of Article 27.3(b) is one of the mainareas where discourses such as that of biopiracy,

with their embedded challenges to the notion ofpatentability for life forms, can have an impact.

Indeed, there have been proposals for sui generissystems that seriously limit patents on life in gen-

eral.71This stands against the position of many ofthe powerful countries in the WTO, who advocate

a robust system for the patenting of plants andanimals.

In addition to the way this debate has been takenup officially at fora such as the WTO, there have

been several activist campaigns to oppose more

broadly the notion of patents on life and themonopoly control of genetic resources that this is

seen to facilitate. Indeed, for many it is to this notion

that biopiracy speaks loudest. If we take this lastperspective, then the solution to biopiracy is actu-ally removed almost entirely from an IPR frame-

work and set deliberately against it. For thosealleging biopiracy then, one of the main points of

the biopiracy discourse is that the IPR system is notadequate or appropriate to deal with the kinds of

concerns that they put forward.There have been several calls for a reframing of

the terms on which the boundaries of IPR forgenetic resources are negotiated, many of which are

beyond the scope of this paper.72

What does seemclear, however, is that the only way in which thebiopiracy discourse can be fully addressed is if we

are prepared to engage with it on a terrain thatallows room for different concepts of property, of

benefits (and their sharing), and of differentapproaches to how we decide what counts as natu-

ral and invented in IPR systems.If we take the neem example, we can see that,

alongside contesting the patent itself on the groundsof biopiracy, what was also being contested were the

71 World Trade Organization Committee on Trade and Environment.

2001. Review of Article 27.3(b): Communication from Brazil. WT/CTE/

W/186. Geneva: WTO; World Trade Organization Council for Trade

Related Aspects of Intellectual Property Rights. 2003. Taking Forward

the Review of Article 27.3(b) of the TRIPS Agreement: Joint Commu-

nication from the African Group.IP/C/W/404. Geneva: WTO.72 See D. Posey. 1996. Beyond Intellectual Property: Towards Traditional

Resource Rights for Indigenous Peoples and Local Communities.Ottawa,

ON: IDRC.


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aspects of the system that allowed this patent to be

granted in the first place. If we assume that thesystem was working as it should when the neem

patent was initially granted, then this hints at someof the limitations that the current system has when

handling claims to invention that fall outside of itsunderstanding of the concept. Additionally, framing

the neem case as one of biopiracy rather than simplyone of a hiccough in the IPR system speaks to the

concerns that come with understanding patents tobe not simply legal instruments, but also carrying

with them a considerable amount of symbolicweight that has a bearing on how people engage

with notions of patentability, and IPR more broadly.Again, what is problematic for many contesting

biopiracy is not necessarily who owns it, or who will

benefit, but that the debate is framed in these terms

to begin with.

CONCLUSIONS

It seems quite clear that biopiracy, and the relation-ship that it postulates, has dramatically changed the

rules of the game with respect to access and benefitsharing for genetic resources.73 When we examine

the discourse more closely, we can see how the termis used to serve as an index for a number of different

concerns about the nature of property in newregimes of biotech, biodiversity and IPR. Biopiracyis also a term, which, along with mobilizing a host

of questions, generates solutions to the problems itsets out. These solutions, such as benefit sharing, are

often intimately related to a specific understandingof what biopiracy stands for. If we want to address

the issue of biopiracy properly, we must be preparedto understand that it is not an issue where any def-

inition is fixed or stable. Rather, it is used fluidly to

73 Graham Dutfield, among others, points out that allegations of biopi-

racy have lead to dramatic changes in the ways in which access to

biodiversity are regulated, especially in the developing world. See, for

example, Dutfield, op. cit.note 59.

move between material and ethical critiques dealing

with bioprospecting, the IPR system, and benefitsharing, among other things. It is also understood,

with equal fluidity, to characterize a number of dif-ferent relationships that give way to a cascade of

different concerns.In order to come to a more complete understand-

ing of biopiracy as a site of contestation, and as suchto assess how best to approach its resolution, we

must move beyond simple categorizations of theissue. Although it is certainly true that many advo-

cating an end to biopiracy are obfuscative andintransigent towards the IPR system, there is a space

opened up by the fluidity of the terms deployment:it is at once about IP (and the equitable distribution

of its benefits) and about its undoing. Though this

might seem contradictory, this is only discordant

from a perspective that sees the current status of thisdebate as one which is prejudged by the idea thatexisting frameworks of IPR are the only tools avail-

able to engage with the new spaces opened up by theincreasing intertwining of the realms of biodiversity

and IPR.Thus, if we genuinely want to address claims of

biopiracy, then we have to understand that a busi-ness as usual attitude will not suffice to address all

of the concerns that come bundled with it. In takingbiopiracy seriously as an issue that is often con-

tested within the IPR system, but that is designed tospeak to concerns broader than those that fallnarrowly within the parameters of that system, we

are provided with a window on what broader issuescome attached to patents for living organisms. We

can, thus, slightly better understand what the IPRsystem means for the various actors who engage

with it as it adjusts to new developments, new prac-tices, and new concepts in science, technology and

biodiversity.

Acknowledgements

I would like to thank Doris Schroeder and Michael Barr for their

valuable suggestions on earlier draft versions of this paper. I would also

like to thank the two anonymous reviewers for their helpful comments

during the peer review process.

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