Upload
misantanna123
View
217
Download
0
Embed Size (px)
Citation preview
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
1/16
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.
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
2/16
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/8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
3/16
160
Chris Hamilton
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
4/16
Biodiversity, Biopiracy and Benefits
161
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
5/16
162
Chris Hamilton
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
6/16
Biodiversity, Biopiracy and Benefits
163
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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/?id8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
7/16
164 Chris Hamilton
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
8/16
Biodiversity, Biopiracy and Benefits 165
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
http://www.twnside.org.sg/title/pir-ch.htmhttp://www.twnside.org.sg/title/pir-ch.htm8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
9/16
166 Chris Hamilton
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
http://www.ifoam.org/press/press/pdfs/Briefing_Neem.pdfhttp://www.ifoam.org/press/press/pdfs/Briefing_Neem.pdf8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
10/16
Biodiversity, Biopiracy and Benefits 167
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
http://www.ifoam.org/press/press/http://www.ifoam.org/press/press/8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
11/16
168 Chris Hamilton
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
12/16
Biodiversity, Biopiracy and Benefits 169
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
13/16
170 Chris Hamilton
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.htm8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
14/16
Biodiversity, Biopiracy and Benefits 171
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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_9208/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
15/16
172 Chris Hamilton
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.
8/11/2019 Biodiveristy, Biopiracy and Benefits, What Allegations of Biopiracy Tells Us About Intellectual Property
16/16
Biodiversity, Biopiracy and Benefits 173
2006 The Author. Journal compilation 2006 Blackwell Publishing Ltd.
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.