Yang Yakun 1AG15243NProfessor NomuraGlobal IssueJanuary 10, 20181.Introduction”Bioprospecting”, a term firstly introduced in the book Biodiversity Prospecting (Reid et al,1993), describes a raising practice of developing new drugs or plants based on the existed natural products.
It is always connected to the direct or indirect utilization of traditional knowledge from indigenous or local organizations. Due to the large benefit that this practice can bring into drug, cosmetics and new crops production (Robinson, 2012,14-15), some producers are currently criticized for registering patents and gaining commercial benefits without informing indigenous people, which lead to another rising problem, “Biopiracy” . “Biopiracy” is a term initially defined by Action Group on Erosion, Technology, Concentration (ETC Group). It is a generally description of a practice that individuals or institution using methods as registering patents to take absolute control of natural resources or natural resource-related traditional knowledge (e.g.
herbal treatment) (“Patents & Biopiracy”, 2018). For example, majority of patents related to neem trees are registered by western medicine companies, despite the fact that neem tree has been used more than a thousand year for medical purpose in India(Sheridan, 2005). Non-Government Organizations (NGOs) and governments of natural resource-rich countries believe such behaviors violate the rights of indigenous groups or local governments. However, the various definitions of “patentable”(Efferth et al., 2016), and ambiguities regard to the definitions of biopiracy(Robinson, 2012,17-18), make it extremely challengeable for natural resource providers (such as less developed countries) to detect and negotiate the bio piracy issue with multinational companies and other institutions from developed countries. In order to provide universal guidelines for manipulating bio-resource and traditional knowledge, in 1992 Rio Submit, more than 160 countries signed on an agreement known as The International Convention on Biological Diversity (CBD) proposed by UN Environmental Program (UNEP) (Convention On Biodiversity,2012).
Notably, CBD coined prior informed consent (PIC) and access and benefit-sharing (ABS)(United Nations, 1992), which impose a restriction on individuals and institutions that biological resource and indigenous knowledge are not accessible, unless the purpose and the predictable outcomes of utilizing are well informed among all the parties which may be influenced. In 2010, Nagoya CBD conference organized by UNEP reviewed the contents of previous CBD and specify the obligations of sharing and cooperation among countries (Morgera, Tsioumani, & Buck, 2014). Nagoya Protocol, with the signatures from more than 190 countries (Convention On Biodiversity,2017), confirms that inhibition of bio piracy and protection of traditional knowledge owners’ benefits should become worldwide concerns. To solve bio-piracy appear in bio-prospecting, international organizations should certainly act as pioneers in establishing common regulations, moreover, it is also urge to deal with power imbalance between providers and producers. This paper shall tackle the issues by first identifying the problems, and then offer viable solutions. 2.ProblemsBiopiracy, considered as another form of colonization, merged due to the imbalanced power between developing countries and developed countries. Consequently, developing countries are affected in both direct and indirect way.
This section will analyze the problems from economic, cultural and environmental aspects. 2.1 Economic Aspect2.1.
1 Influences on Sale and ExportUnder most of the circumstances, if a plant or a seed has been signed a patent in a country, other producers or institutions have to pay for the high patent fee to receive permission for breeding, growing and modifying, which lead to two dimensions of harms when the patent involved in biopiracy.Firstly, the patent laws are various among countries, that is, in some countries, plants related intellectual knowledge is not considered as a part of protection provided by patent law, which may harm the actual owners of intellectual properties. For example, in Argentina, plants varieties are not protected by their patent law, this caused troubles to local farmers since their soya plants was genetically modifies and assigned a European patent by their importer (Robinson, 2012,17-18). Secondly, besides violating the owners of intellectual knowledge, barriers created by patents will also become an inhibition of economic growth of exporting products based on plant seeds or varieties.
Yellow Enola bean case between Mexico and America, for instance, is a clear example of biopiracy directly connected to patent. Pod-Ners seed company modified an edible dry bean species obtained from Mexico, and successfully applied patent for the modified species in the USA. Since then, unlicensed users were prohibited from using this species, which lead to the violation of Mexico bean growers’ rights; the International Center for Tropical Agriculture (CIAT) pointed out the problem, and with the support of United Nations Food and Agriculture Organization, the patent is cancelled(Rattray, 2002). Not only this case, but also in another case, the Thai herb variety pala noi is been patented in Japan and it is exported back to Thailand. Without any compensation, the benefits are all gained by Japanese companies (Grain, 1998). 2.
1.2 Inequities on the Concern of Tecnology Transfer Bioprospecting, as is mentioned previously, is also form of commercialize of knowledge. As a provider, local government, indigenous community, or even the country is ought to receive compensation through a process called “technology transfer”, before companies licensing traditional knowledge-based products. Unfortunately, the level of concerns towards ‘technology transfer’ of traditional knowledge is low among most of the developed countries, which results in the current situation that companies from developed countries keep committing biopiracy cases without considering the benefits of developing countries.
Technology transfer have to be processed when commercialization of intellectual properties occur. According to European Commission’s science and knowledge service (European Commission, 2016) (https://ec.europa.eu/jrc/en/research/crosscutting-activities/intellectual-property/technology-transfer), technology transfer usually goes through a procedure that companies negotiate and pay the refund for the owners of certain intellectual properties before they apply the knowledge into production. It is a common practice among university, institutions and companies and nearly all of the international trade organizations as WTO have specific regulations regard on this point.
However, United National Conference on Trade and Development (UNCTAD) officially announced that many developed countries do not have strong concerns and follow the proper procedures of knowledge transfer(Robinson, 2012,105-106). Besides, regardless of CBD provides specific guidelines related to “technology transfer” of biological resource and associated knowledge, developing countries still failed to share benefits even under the circumstance where their biological resources (and knowledge) are monopolized by companies or institutions from developed countries. For instance, US patented peanut “C-99R” variety was bred by collecting more than 50 types of seeds from Malawi; despite the fact that local farmers and researchers made contribution to the breeding, there is no evidence showed that there was any compensation from the American side(Mcgown, 2006). If developing countries are continuously in disadvantageous position of “technology transfer”, they will also been left out of the advanced technological developments in these fields. 2.2 Indignify the Culture and Indegious BelievesThe failure of understanding the cultural importance of biological materials to a certain indigenous group is one of the main reasons for accelerating number of biopiracy cases. The major interest of profit-seeking companies are monopolization and commercialization, consequently, prior informed consent (PIC) and material transfer agreement (MTA) in CBD regulations and Nagoya protocol are sometimes neglected when it comes to handling biological resources (along with related knowledge).
PIC means informing all the authorities that have connection with targeted biological (including genetic) resources and MAT suggests that the common acknowledgments have to be achieved within every single stakeholder. In many cases, traditional knowledge is a form of secret s that local people are not willing to make it openly accessible. Under this situation, it is necessary for researchers to reach common consent through PIC and MAT procedure. More crucially, when the traditional ways of controlling plants and biological knowledge are directly linked to the cultural and spiritual beliefs of local people, without PIC and MAT, it is clear that indigenous people will have a strong feeling that their culture and dignity is offended. For example, ayahuasca, made by Amazon autochthonous people, is known as a type of traditional beverage extract from Banisteriopsis caapi vine and have remarkable effect in curing disorders of the central nervous system.
Additionally, it plays an important role in nearly every aspect associated with anthropology and cultural identity, that is, to local people, its spiritual meanings are more important than its actual medical effects; in 1986, Loren Miller of International Plant and medicine cooperation patented the effective chemical compounds excerpt from one of the biological major materials–Da Vine in America, which lead to the strong dissatisfaction of Amazon aborigines (Federico.L, 2005). Scientific achievements, along with innovation, have become major concerns for researchers and most of the companies. However, before the patenting process, it is a must for them to achieve common agreement with indigenous groups if any of their research results are driven from their traditional knowledge. Direct Plagiarism of traditional knowledge is certainly prohibited under the current frame of CBD law and many other patent laws, nevertheless, even under the situation when the researchers’ findings are innovative, it is also inappropriate to ignore the contribution and the value of previous efforts done by indigenous people. 2.3 Overharvesting of Biological ResourcesBioprospecting of patent drugs is always correlate to the decrease of biodiversity due to the over collection of biological materials. Biological resource is one of major materials for different types of drugs (including essential drugs).
According to National Cancer Institution, in the past 25 years, 70 percent of new patented medicine in America are made from the materials harvested from biological resources (Steenhuysen, 2007). In addition to this, medicine that derived from natural resources are extremely profitable for drug companies as well. According to the analysis done in 1995, a new drug that made from plant materials worth at least 94 million dollars to a drug company(BALICK & MENDELSOHN, 1992). In order to meet the accelerating needs of both companies and the society, operations as selection and collection of biological compounds are known to increase. As is mentioned in the previous section, beliefs or religious meaning prevent local or indigenous communities from overexploitation, while at the same time, current industrial harvesting methods can result in the destruction of habitat at once. As is shown in World Conservation Union report, more than 15,000 medical plants species are in danger because of over collection (Colfer, Sheil & Kishi, 2006).
. 3.SolutionsBy analyzing the existing problems, it is apparent that biopiracy is a large scale problem requiring efforts from various dimensions. Firstly, the process of bioprospecting usually involve multiple countries, thus powerful international platforms and adjustments for legal documents are needed for negotiation. Secondly, power imbalance between developed and developing countries makes developed countries look for a strong third party to help them voice out. Thirdly, due to the vacancy on law (patent law for instance), developing countries rich in natural resources are always lack of regulation towards drug companies and institutions. Lastly, the context of laws connect to intellectual properties sometimes may not meet with the beliefs and opinions of local communities.
With problems briefly driven from four dimensions, solutions having been put into practice, along with those which are suggested based on current situation, will be provided from four attitudes: International, regional, national and local. 3.1 International Communities and Shared Understanding of Traditional KnowledgeIt is an acknowledgement that biopiracy is a universal case that have to be solved from global perspective.
Currently, in order to regulate the international transfers of natural materials and intellectual properties related to bioprospecting, treaties and convention as International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and CBD have been constructed and they are the most influential criteria for continuing discussion. Moreover, discussions of intellectual property rights, genetic resources and indigenous knowledge in World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of WTO are also helping approach the solutions to biopiracy issues. Without the establishment of TRIPS Council, many less developed countries, especially local and indigenous communities from those countries, their voice will be marginalized from the ongoing conversation not only in the biopiracy topic, but also in normal trades with developed countries (Robinson, 2012,141-142).
. Besides the common platforms, establishing international legal documents are also essential for the protection of traditional knowledge. Though CBD and other patent laws granted the importance of PIC and MTA if the ongoing patent procedure is related to traditional knowledge, however, there are no contents or references to give clear definitions on what is traditional knowledge. To solve this problem, in 2000, World intellectual Property Organization (WIPO) set up an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) and in 2009, members had reached an agreement of drafting an international instrument.
According to WIPO documents, the new instrument “would define what is meant by traditional knowledge and traditional cultural expressions, who the rights holders would be, how competing claims by communities would be resolved, and what rights and exceptions ought to apply”. When the instrument is established, it will provide a strong reference to identify the existence of traditional knowledge before going into the patent procedure. 3.2 Reginal Actions on Natural Materials and Traditional Knowledge There is no doubt that International communities play huge roles in the battle against biopiracy.
Still, the limitations and gaps between international policies and local conditions, require local governments to develop their own systems to protect biological resources and traditional knowledge systems. Since current international conversation regard to the bioprospecting and biopiracy issue are mainly driven by US, EU and Japan (Robinson, 2012), it may be better to open another conversation on regional level and achieve agreements within countries share similar interests. Africa Model Law, for instance, not only designated the contents such as benefit-sharing which have already been defined in CBD, but also uniquely provide protection of communities and farmers’ ‘pre-existing rights’ based on Africa context (Morgera, Buck & Tsioumani, 2013). As another example, ASEAN is also drafting their own agreement on access and benefit-sharing; The project is leading by ASEAN Centre for biodiversity and common fund will also been established to assisting member states(ASEAN Working Group for Nature Conservation and Biodiversity, 2000). Discussions occurred on regional level are more advantageous and efficient than international forums since small countries usually shared the similar point of views and facing identical problems when it comes to the commercialization of natural resources and traditional knowledge. 3.
3 National Approches: Laws and Databases3.31 Plant-Vatiety and Traditional Knowledge Protection LawWIPO describes that the lack of the direct protections on biological resources related indigenous knowledge is one of the explanations of current bio-piracy issues (“Traditional Knowledge and Intellectual Property – Background Brief”, 2018). As WIPO defined, there are two types of protection, ‘defensive’ and ‘positive’ protection, exist in the contents; ‘defensive’ protection refer to the conservation of religious expression as symbolic sign, and ‘positive protection’ describe the right of local and indigenous communities controlling and benefiting from their traditional knowledge. As a matter of fact, many countries start developing their protection law for ‘defensive’ and ‘positive’ protection.
Peru legislates the National Anti-Biopiracy Commission to directly take charge of documenting and addressing biopiracy, they are also directly involving in the detection of biopiracy when foreign authorities attempt to pass patents related to Peruvia natural resources and traditional knowledge(Argumedo, 2013). By keep detailed record on inappropriate patent, and providing strong evidence for the origin of knowledge, Peru National Anti-Biopiracy Commission is able to pressurize foreign patent organizations to make adjustments on their patent-examination procedures(Landon, A.,2007). Peru’s case set example to other countries national organizations and they are improving their technical evaluation methods in order to reduce further biopiracy cases from happening.
3.32 Open Databases for Patent Offices Establishing a collection of intellectual properties will also be a useful way to solve biopiracy, since it provide patent offices with relevant information for examination. Despite of finding solution for biopiracy, collections or databases of traditional knowledge will also provide records for knowledge that might disappear through the changes of modernization and lifestyles. In India, The traditional Kowledge Digital Library (TKDL) has been formed by the collaborative efforts between two governmental authorizations: Indian Council for Science and Industrial Research (ICSIR) of the Ministry of Science and Technology and the Department of Ayurveda, Yoga, and Naturopathy, Unani, Siddha and Homeopathy(AYUSH) of the Ministry of Health and Family Welfare, and has been open up to patent examiners for references(WIPO, 2011).
Also, China patent office has set up an open database for 32,000 types of traditional medicine and related medical knowledge (“Chapter XI. Patent Documentation Service and IP Publications”, 2018).However, the complexity of the qualifications regards to entering the databases and hesitation towards exposing traditional knowledge sometimes stop local communities from process the registration. Regardless of the efforts from Department of Intellectual Properties, there are only several thousand types of registered natural resources and related knowledge. In Thai culture, traditional knowledge sometimes passed to next generation in the form of community secrets (Robinson, 2012,151-152), thus open database may not meet their cultural understanding of traditional knowledge. Though databases for Intellectual properties are recently under wide discussion, decisions and procedure of establishment still require negotiations with local or indigenous communities.
3.4 Raise Local People’s Concern on Protecting Their Intellectual Property Without the realization towards the importance of their own culture, it is difficult to stop biopiracy from origin since the indigenous groups themselves even do not understand their rights are harmed. Local communities are certainly know the best about their culture and traditional knowledge, thus, it is much better to let them document customary law by themselves. Besides, according to WIPO, customary law is ought to be a living law that been adjust through the changes of tradition(Robinson, 2012,153-154), it is no doubt that local people have the first hand information regard to these modifications. In order to quickly response to the changes, it is also necessary to ask local and indigenous people play key roles in documentation.
Knowledge related to drafting law may be limited to local people, then the support from the governments or specialized anthropologists are needed in this case. However, if local people do not act as a main body in fighting for their own rights, there is no meaning of the efforts comes from other parties. 4. ConclusionIn conclusion, the profit seeking nature of manufactures and imbalance of power between developing and developed countries make biopiracy a major problem in bioprospecting. Biopiracy damages the rights of local and indigenous people in terms of showing disrespect to their intellectual property and their understanding towards their culture, which also lead to a large amount of problems from economic, cultural and environmental perspectives. To tackle with the problems, international platforms for negotiations and mutual agreements regard on this issue are essential, on the other hand, countries rich in biological resource and traditional knowledge have to come up with ways in protecting the benefits of local and indigenous communities.
Last but not least, realizing the importance of their own culture also will lead to more active protections that may also help them develop ways to conserve traditional knowledge. Even though biopiracy is still going to be a long term challenges, by addressing the cases in public domain, wider recognition and understanding will certainly lead to more effective solutions.