Biopiracy

• unauthorised use of biological resources
  • e.g., plants, animals, organs, micro-organisms, genes;
• unauthorised use of traditional communities' knowledge on biological resources;
• unequal share of benefits between a patent holder and the indigenous community whose resource and/or knowledge has been used;
• patenting of biological resources with no respect to patentable criteria (novelty, non-obviousness and usefulness).

A possible biopiracy scenario

In under-developed countries, farmers breed crop varieties adapted to their local soil/climate conditions over several decades. Local plant breeders improve varieties through a circular model : selective breeding, release of the variety, and use of the seeds for further selection. Traditional varieties are not fixed genetic structures, but rather dynamic structures, resulting from collective efforts over generations. Most of the time, improvement and use of crops cannot be separated.

An interesting variety may be locally known for its particular properties and identified by a local name, but rarely patented. This may be explained by several facts: the crop does not show the quality of stability and homogeneity required, patenting is a long and expensive process, the selection of the crop is a community work, hence no single holder can be identified, etc.

Ethnobotanists[?] from firms and research facilities are prospecting biological resources[?], which they use for research and making new and improved products (i.e., agricultural, food and pharmaceutical products).

Given the international market potential, an agricultural biotechnological company can decide to ask the indigenous community of the biodiversity-rich country for information on interesting crops availability. Discovering that this variety and its caracteristics appeal to a market in developed coutries, the company acquires samples of it.

The firm, then, genetically engineers a close substitute from the original natural variety, adding an improvement (e.g., pest resistance), and keeping the natural variety's desirable characteristics.

As a genetically engineered variety, the new crop can be patented and its name copyrighted. Companies, in particular, are quick to apply for a patent on the collected resource or the new products, so as to prevent competitors from using them. The biotechnological company may license production of the crop in any suitable country, and even export the product in the source-country, in which case the improved variety comes into competition with the traditional one.

The company may even ask for the intellectual protection of the modified variety in the original country in order to prevent both seeds from co-exististing, and the natural variety from being sold under the traditional name. In the latter case, the source-country loses its rights to produce or use the original variety for any further breeding.

Implications of the scenario case

The implications for the source-country are various:

• possible necessity for the farmers to use the new patented variety, implying increasing dependence on the company owning the seed, especially in case of monopoly;
• prohibition of the use of the seed for any further breeding;
• loss of biodiversity resulting from increased monoculture, monospecies culture and lack of access to seed stocks;
• possible financial loss when fair agreement[?] on benefit sharing[?] between the source country and the company was not achieved.
• possible loss of traditional community knowledge, with limited compensation.

Historical background / CBD (1992)

During the last decades, an erosion of biodiversity was observed. The majority of the actors estimated that the first cause of biodiversity erosion was the lack or the wrong definition of the rights of ownership. Indeed, before 1992, the living resources were regarded as Common Heritage of Mankind. As common resources, private companies could take and use each resource without having any justification or compensation to give.

The Convention on Biological Diversity (CBD) entered into force in 1994. It gave sovereign national rights[?] over biological resources. One of the advantage of it was that it would enable southern countries to better benefit from their resources and traditional knowledge.

Under these new rules, it is expected that bioprospecting implies a prior informed consent, and must result in a share of the benefits between the biodiversity-rich country and the prospecting firm. However, some crtics belive that the CBD has failed to establish appropriate regulations to prevent biopiracy.

Who's raising the issue of biopiracy and why?

The issue of biopiracy is mostly raised by under-developed biodiversity-rich countries (e.g. India, Brasil, and Malaysia, among others) and by some NGOs (e.g., GRAIN, ETC (previously RAFI) and Third World Network), and is not always acknowledged by corporations and governments.

The issue of biopiracy is not new. In her book Biopiracy: The Plunder of Nature and Knowledge, Third World environmentalist Vandana Shiva describes the way the natural capital of indigenous people (as applying to land, to labour and to knowledge), was converted under colonialism. She argues that since all lands have already been colonized by northern countries, northern corporations are now trying to colonize life itself, plants, micro-organisms, animals, and even human organs, cells, and genes.

Indeed, a controversial case of biopiracy was reported on human genes of a tribal community reported to be resistant to malaria and leprosy.

According to some, biopiracy is not only happening at the expense of Third World farmers, but also at the expense of Northern farmers. Some American and European farmers consider themselves to be compelled with contracts limiting their independence.

Research costs and benefit sharing

Some companies argue that under-developed countries are themselves guilty of piracy. They believe that the southern countries do not have adequate and efficient intellectual property protection laws, and say they are losing millions of dollars per year because of lack of respect of patents. These companies have been applying pressure for the strengthening of intellectual property issues within the WTO.

Companies say access to biological resources allow them to develop new products that could help solve food and health essential issues. They also argue that research, development and commercialisation authorisations have a cost that must be balanced by the protection of the resulting product. Patents offer this much needed revenue and favour innovation.

One of the solutions suggested to solve this North-South disagreement was to define bilateral contracts between source-country and pharmaceutical or seed companies. These contracts of bioprospecting lay down the rules of benefit sharing, and can potentially bring substantial royalties to southern countries.

What defense is there against biopiracy practices ?

The agreement can result in high potential benefits for the source-country. However, there are several reasons why this usually does not happen:

• Bilateral contracts are not always respected, or they do not propose a fair trade. By admitting that the principle of compensation of the populations is retained, which amount could be an equitable and realistic remuneration? How could the rights be redistributed?
• lack of awareness of the potential value of the products;
• very few of the samples collected actually lead to a new profitable product;
• lost ownership in case of genetic modification;
• majority of concerned species to be found in several countries at the same time, thus preventing some of them from taking advantage of the product, or diluting the benefits for all;
• protection of collective knowledge doesn't fit within the legal systems of IPR[?] protection (e.g. patents, copyrights, trademarks);
• Finally, most bioprospecting is made by directly using the genetic resources stored in seed banks.

Some options considered by southern countries include :

• documentation of traditional knowledge;
• registration and innovation system;
• easier and less expensible patenting system;
• development of a sui generis system;
• development of own research;
• Creation of alliances of source-countries.

In 1993, 500,000 Indian farmers demonstrated against the General Agreement on Tariffs and Trade. In a Charter of farmers' rights[?], they stated their wish to protect their right to produce, reproduce and modify seeds and plants.

Ownership of plants, animals, and human genes

The concept of biopiracy assumes that it is a natural right to own plants, animals and human genes. Some do not follow this principle and consider that users from all over the world need to be free to manufacture drugs, free to cultivate and to raise plants and animals. For many indigenous people, nature and culture are indissociable. Resources belong to the community, private property has no meaning. They argue that what is "wrong" is not so much the appropriation of somebody else's property, but rather to consider private, natural resources that should stay public.

See also property rights on life[?] - Social justice - anti-globalization movement - Natural capital - bioprospection - biotrade[?] - International Treaty on Plant Genetic Resources for Food and Agriculture

Mouvement des enclosures (en français) (http://fr.wikipedia.org/wiki/Mouvement_des_enclosures)

Source Biopiracy : The Plunder of Nature and Knowledge
Vandana Shiva, SouthPress, 1997

External links

• http://www.grain.org (http://www.grain.org/front/index.cfm)
• http://www.twnside.org (http://www.twnside.org.sg/access_7.htm)
• http://www.rafi.org/ (http://www.rafi.org/)
• Richard Stallman on biopiracy (http://cyberabad.hypermart.net/biopiracy.htm)
• Neem: case of biopiracy (http://www.envirodev.org/librairie/pedago/mond%5F1999/trade/%5Fins/insfact5b)
• http://www.alternet.org/story?StoryID=16057

To add : examples of cases