biopiracy as a challenge to intellectual property rights system.pdf

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Dialogue

Biopiracy as a Challenge to Intellectual PropertyRights Systems

CHRIS HAMILTON ABSTRACT Chris Hamilton focuses on the use and significance of theterm biopiracy. He analyses how biopiracy is used to index adivergence of conflicting views about the ramifications of increasingtechnological and legal encroachments into the realm of knowledgeand nature. He argues that biopiracy brings together in one term the

ambivalent promises that emerge at the intersection of science,nature and intellectual property rights (IPR), as well as at theintersection of the developed and the developing worlds.

KEYWORDS bioprospecting; biocapital; patents; ETC group;traditional knowledge

Introduction

Most scientific and technological advances come with challenge and controversy. Thedevelopments in the biosciences and biotechnology are no exception as we considerhow these new advances will be understood, regulated and exploited.

A particularly acrimonious controversy deals with the ethical implications of patent-ing living organisms. The controversy raises questions about the scope and scale ofpatentability for organisms that are presented as having been invented (and thus aspatentable) and, ultimately on what grounds and by whom these decisions shouldbe made.

These controversies over patents on life are a convergence point for severallegal, ethical, social and other concerns that co-evolve with new developments inscience and technology. They have produced a rich lexicon of new terminology suchas frankenfood, the designer baby and terminator genes. Biopiracy is a term which

has also entered into usage in a similar way. Biopiracy brings together in one term theambivalent promises that emerge at the intersection of science, nature andintellectual property rights (IPR), as well as at the intersection of the developed and thedeveloping worlds.

The term biopiracy is used widely bydifferent actors in areas as diverse as world trade,indigenous rights and environmentalism. It indexes a wide divergence of conflictingviews about the ramifications of increasing technologicaland legal encroachments intothe realm of knowledge and nature, and is often used to challenge the contours of

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particular systems for biocapital production. Ex-amined in this way, controversies about biopiracycan illustrate the politics around new regimes ofIPRand, ultimately, about what counts as naturalin the regimes of biocaptial.

Definitions

One of the axes along which the debate has playeditself out has been in establishing the definition ofbiopiracy itself. The term owes its genesis and in-itial usage almost entirely to a small group ofnon-governmental organizations (NGOs), espe-cially the Rural Advancement Foundation Inter-national (RAFI) which is now the ETC Group(2006, http:\\www.etcgroup.org, accessed 31 July2006) (pronounced et cetera group) and activists

like Vandana Shiva and her organization the Re-search Foundation for Science, Technology andEcology (RFSTE). Initially, biopiracy was alsodeliberately contrasted to the practice of biopros-pecting, which was seen as a way to put intopractice the promises of the Convention on Biolo-gical Diversity (CBD), most notably its goal ofsharing the benefits of biological diversity. Bio-prospecting is a set of practices which seek toidentify, conserve, capitalize upon, and share thebenefits of the genetic resources (and the tradi-tional knowledge (TK) of their use) of plants whichmight have medical or cosmetic applications. Bio-prospecting, as such, differs from previous in-stances of resource acquisition in that, as Haydenexplains suchtakingsnow come with a mandateto give back (Hayden, 2003:1).1

RAFI/ETC Groups importance to the mainte-nance and deployment of the term biopiracy hasremained steady since they were the first to useit in print, in a 1993 report titled Bio-Piracy:The Story of Natural Coloured Cottons of theAmericas (http://etcgroup.org/article.asp?newsid

219, accessed 31 July 2006). RAFI/ETC Group cur-rently defines biopiracy as: the appropriation of theknowledge and genetic resources of farming and in-digenous communities by individuals or institutionswho seek exclusive monopoly control (patents or in-tellectual property) over these resources and know-ledge. ETC group believes that intellectual propertyis predatory on the rights and knowledge of farming

communities and indigenous peoples (http://etcgroup.org/key_defs.asp, accessed 31 July 2006).However, since its initial use in the mid-1990s byETC group the term has been widely taken upat different levels to deal with various kindsof biopiracy. In many ways, it is precisely the

terms malleability ^ that it can be simultaneouslymany things to many people ^ that gives it itsstrength. This malleability is also what hasconfounded agreement on a universally accepteddefinition of biopiracy and thus has limitedwidespread acknowledgement of it as a genuineconcern.

Fluid deployment across disciplinesand kinds of life

Since allegations of biopiracy are intimately re-lated to the IPR system, it is tempting to see biopi-racy as strictly an IPR issue. If we examineallegations of biopiracy more closely, however, wecan see that they are used to address a number ofissues simultaneously, and present a much morenuanced set of concerns than they would if seensimply in IPR terms. Indeed, one of the ways inwhich biopiracy gains its conceptual strength isthrough its fluid deployment by different actorsacross conceptual, biological and regulatoryboundaries.

It has become somewhat commonplace tobracket biopiracys relevance to discussion aboutIPR regimes. For some, biopiracy is seen as per-haps the most literal and egregious example ofcapitalist exploitation and the commodification oflife.2 For others biopiracy, though it might not beentirely misguided, is too politically charged aterm to address accurately or adequately the com-plexities of IPR debates. In this formulation, biopi-racy may exist in the IPR system granting badpatents, but is not seen to come about because of

a flaw in the IPR system as such. Consequently,it is not seen as a useful critique of the IPR system.

Another interpretation of biopiracy sees it as asystematic impossibility: the discovery of some-thing in its natural state, or if knowledge of itsuse is already obvious or widely known, rendersit unpatentable. At its most extreme, this viewsees biopiracy as an alarmist and overly simplistic

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misunderstanding of the IPR system in general,and often presents allegations of biopiracy asapparently typical of a na ive anti-capitalist ideal-ism espoused by those labelled as anti-globaliza-tion.3 Greely puts it as such (with reference tothe allegation that the patenting of an immortal

cell line derived from a Hagahai man in PapuaNew Guinea, amounted to the patenting of aperson):

[t]he patent doesnt patent a person. It doesnt evenpatent human genetic material. Its the cell line, a vir-al preparation derived from the cell line, and threedifferent bioassays to see whether people are infectedby this virus. And the idea that the US governmentowns this person or his genetic material is absoluterubbish. [t]he donors involved can continue, ob-viously, to use their own DNA to run their bodies.They could also, if they chose, patent anything they

wanted to patent that as an invention from theirDNA (Greely in Pottage,1998:157).

Those alleging biopiracy, it is claimed, not onlywilfully or accidentally disregard the science (thepatent does not patent human genetic material,although the activists assert it does) but also fun-damentally misunderstand the IPR involved (theyapparently claim that this patent thus confersownership of a person).

If allegations of biopiracy were simply aboutIPR, then this might indeed be the case. Allega-tions of biopiracy, however, often involve signifi-cant conceptual elisions about both the IPR andthe science involved and are targeted at a range ofissues, not simply those of IPR.These elisions pro-duce deliberate simplifications of both IPR (whatexactly is being patented and what this means)and science (to do with how one could understandthe relationship between a patent on one aspectof an organism and that organism as a whole).Wecan look at this readingof the patent slightly dif-ferently and see how the allegation of biopiracy is

actuallydesigned to raise questions about the gen-eration of biocapital through patents on parts ofliving organisms. In effect, what is at issue in thisclaim of biopiracy is not the substance of thepatent or even the substance of the science, butrather how ^ by what logics?, under whose sys-tems? ^ these kinds of material become ownableat all.

Biological

From a biological perspective, biopiracy has beenused to characterize cases of misappropriation ofhuman or plant genetic material with potentialagricultural, pharmaceutical or cosmetic usages.In addition to the Hagahai, one of the first everuses of the term was to respond to world patentnumber WO 92/08784, on an immortal cell linederived from a Panamanian Guyami woman(Christie, 1996). At issue in the Guaymi and Haga-hai examples was the ethical and legal justifica-tions for patents on inventions derived fromindigenous peoples genetic material. The patent-ing of indigenous peoples genetic material in thisway was seen as a form of misappropriation oftheir genes themselves, and thus biopiracy (RuralAdvancement Foundation International, 1996,

http://etcgroup.org/article.asp?newsid19).Several other prominent allegations of biopi-

racy from the 1990s involved plants with agricul-tural or pharmaceutical significance. Among themost celebrated have been neem, basmati4 andturmeric, which refers to US patent 5, 401, 504,granted initially to two scientists from the Univer-sity of Mississippi for the use of turmeric in heal-ing wounds.

Thus, we see biopiracy being used, sometimeseven by the same groups (for instance, the same

RAFI Communique that features the Hagahai pa-tent also discusses the biopiracy of turmeric), asan example of the encroachment of patents intoboth human and plant life. There is a significantand productive elision made here between patentson materials derived from humans and materialsderived from plants. This elision expands the fieldof contestation for allegations of biopiracy ^ whenthe biopiracycritique moves between IPR for plantand human genetic material it implicates severaldifferent aspects of the IPR system, and casts

biopiracys net beyond that of just patents on thecomponents or uses of plants.

Regulatory

Another aspect of biopiracys deployment sees thenotion of biopiracy problematized in a number ofdifferent regulatory forums. It has been discussed

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at the international level in the World Trade Orga-nization (WTO), the CBD and the World Intellec-tual Property Organization (WIPO). At thenational level biopiracy has been discussed in theenactment of anti-biopiracy laws in several coun-tries worldwide (mostly in the developing world);

as an issue for those contesting what theycall glo-balization in gatherings throughout the world;and in countless smaller indigenous peoples,5

community and other groups across the globe.The term biopiracy has largely been used by

governments of the developing world as an exam-ple of continued developed world exploitation ofthe resources of the developing world (in this casegenetic resources, which has lead to biopiracysometimes being referred to as a process of bioco-lonialism) and also as a testament to imbalances

in the global trade system. Since the late 1990sthe term has appeared relatively regularly in sub-missions to the WTO, often in an attempt to seethe notion of misappropriated genetic resourcesrecognized as a by-product of theWTOAgreementon Trade Related Aspects of Intellectual PropertyRights (TRIPs) rules for IPR.6

Discussions on this matter are ongoing at theWTO, with recent submissions from Peru, amongothers, discussing how individual countries haveresponded to identifying and preventing biopi-racy. In their view, the prevention of biopiracy issomething which needs to be addressed explicitlyby the various international agreements thatcould be seen to traverse its territory (especiallyTRIPs, the CBD and WIPO). Peru has created aNational Anti-Biopiracy Commission, whosebasic task is to develop actions to identify, preventand avoid acts of biopiracy which involve biologi-cal resources of Peruvian origin and TK of theindigenous peoples of Peru (World Trade Organi-zation Council for Trade Related Aspects of Intel-lectual Property Rights, 2006 IP/C/W/458, 2006:

3). The Commission, though still in its early stages,will ultimately institute

actions against pending patent applications orpatents obtained or developed from the use of a biolo-gical resource or traditional knowledge without theprior informed consent of the country of origin ofthe resource or of the indigenous people owningrights in the knowledge, and without providing for

any type of compensation to that country or indigen-ous people (IP/C/W/441, 2006: 4).7

Thus, it would seem that when used bycountry re-presentatives from the developing world, biopiracyis seen predominantly as emerging because of

glitches in the patent system (i.e. bad patents);shortcomings in how the material or knowledgewas accessed; problems with the benefit sharingundertaken as part of the patent or any combina-tion of the above.

Biopiracys critique(s)

Perhaps even more significant than the termsusage bydeveloping country governments in inter-national discussions at the WTO and elsewherehas been its wide usage byactivists and indigenouspeoplesgroups. Many of the arguments advancedby these groups also use biopiracy in order to pointout some of the shortcomings in the IPR system,but often in ways that differ from, and sometimesoppose, those of developing world governments.

Broadly speaking biopiracy is used to problema-tize two sets of related concerns, which we can la-bel material and ethical concerns. The materialconcerns take issue with the mechanics of theIPR system itself. One approach goes to the funda-mental bases of the IPR system ^ the notion of in-

vention ^ and critiques how TK is brought intoand represented in this system, or, more specifi-cally, how it is often ignored by patent examinersin searching for prior art. For instance, as GRAINexplains in the case of the turmeric patent: TheIndian government challenged the patent as bla-tant theft, and provided endless research paperspredating the patent providing that turmeric haslong been used in India to heal wounds (GeneticResources Action International 2000, www.grain.org/publications/pirates-en-p.htm).

Some of the concerns about TKs relationshipwith the IPR system come about primarily be-cause, as Posey explains:

Once [traditional ecological knowledge] or geneticmaterials leave the societies in which they are em-bedded, there is little national protection and virtu-ally no international law to protect communityknowledge, innovations and practices (Posey,1999:11).

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As such, there is seen to be a sizeable gap withinWestern patent systems that will al low for claimsto invention by individuals who have (knowinglyor nor) appropriated the knowledge for theirinvention from some form of TK. In many of thecases used as examples of biopiracy by these

activist groups, the idea of the stealingor misap-propriation of TK is used to great effect. In thecase of the biopiracy of neem, for instance, thenotion that neemas a fungicide could beinventedby the American company W.R. Grace was pre-sented as preposterous, as this use for the neemplant had long featured as one of its many tradi-tional uses in India and elsewhere (Bullard, 2005).

Biopiracy is also used to challenge the types andsubstance of remuneration provided for thosewho were the inventors of a certain genetic re-

sourcesuses.Theyalso often problematize the de-finitions about what these benefits are and whoqualifies to receive them as well as the processesundertaken for negotiating these benefit sharingagreements.

From an ethical perspective, there are essen-tially two different but related ways that the alle-gation of biopiracy is mobilized to problematizebiocapital generating regimes. The first is to con-tend that there is something which is seen as in-alienably natural, and thus unpatentable, aboutgenetic material or biodiversity as such. To bringthese natural entities into a system of propertywhere they can be commodified is seen as an in-herently unethical pursuit.

A second ethical question that is often bundledwith concerns about the (un)ethics of patentinglife has to do with how the value of these geneticresources is understood and mobilized. This as-pect of biopiracy suggests that not only is theresomething unethical about patenting nature inthis way, but that there is also somethingunethical about subsuming nature, and the

knowledge of its uses in a Western system whereproperty is seen as a potential commodity. Thisapproach challenges notions about which sys-tem(s) of property and ownership should countas legitimate in relation to nature and our usesof it, as we come to deal with new developmentsin science and biotechnology. This is closelyrelated to what Posey calls the decontextualizing

of TK when it is removed from the societies inwhich it is embedded and brought into the patentsystem. For Posey, this decontextualization dis-regards different perspectives on nature, knowl-edge and ownership. (Posey, 1999). Questioningthe practice of howother cosmologies and systems

of property (or lack thereof) are represented (orexcluded) within the IPR system is one of the prin-cipal regulatorychallenges raised byallegations ofbiopiracy.

What unites these concerns about biopiracy,however, is the notion of biocapital generation. Ineffect, what is being problematized in allegationsof biopiracy are aspects of how and by what logicknowledge of biodiversity is accessed; how the va-lue of this TK or biodiversity itself is assessed;how this value is extracted and exploited; how

the benefits of this exploitation are apportioned;and ultimately, by whom all of these decisions aremade (or who is excluded from this process). If wetake these together to be a system for the genera-tion of biocapital ^ how economic value is derivedfrom the exploitation of the genetic resources ofbiodiversity ^ then we can interpret these chal-lenges contesting to IPR and the current rulesgoverning the production of biocapital.

Conclusion

There is a great deal of pressure on IPR regimes toadjust to new developments both in biotechnologyand in the global economy. As they do, however,there will inevitably be new concerns aboutwho and what is included or excluded in the IPRsystem. Biopiracy is situated at the crossroads ofIPR, biotechnology and development. Biopiracycannot be understood only as a malfunction inan IPR system. It is actually a complex set ofdebates around the ethics of biocapital thatrefocus discussion on new technologies in ways

that transcend narrow economic terms. These dis-cussions embrace the scope and scale of the IPRsystem, and examine how nature and TK arerepresented in that system. Taken seriously, thiscan allow the space needed for people in develop-ing countries to decide for themselves the shapetheir systems for dealing with nature, knowledgeand (intellectual) property should take.


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Rural Advancement Foundation International (1994) Bioprospecting/Biopiracy and Indigenous Peoples,Communique.

Rural Advancement Foundation International (1996) 1996 biopiracy update, available online.Sarreal, E and J. Mannet al(1997) Basmati rice lines and grains. USA, RiceTec Inc. Patent number 5,663,484.World Trade Organization Committee on Trade and Environment (2000) Protection of biodiversity and traditional

knowledge:The Indian experience,WT/CTE/W/156IP/C/W/198.WorldTrade Organization Council for Trade Related Aspects of Intellectual Property Rights (2000a) Communication

from India, IP/C/W/214.World Trade Organization Council for Trade Related Aspects of Intellectual Property Rights (2000b) Review of theprovisions of Article 27.3(b): Communnication from Mauritius on behalf of the African Group, IP/C/W/206.

World Trade Organization Council for Trade Related Aspects of Intellectual Property Rights (2003) Taking forwardthe review of article 27.3(b) of the TRIPS Agreement: Joint Communication from the African Group, IP/C/W/404.

World Trade Organization Council for Trade Related Aspects of Intellectual Property Rights (2006) Analysis ofpotential cases of biopiracy: Communication from Peru, IP/C/W/458.


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