Commercialization of genetic resources is a booming business. From drugs and cosmetics to teas and genetically modified crops, plant and animal materials are ubiquitous in consumer markets. Many of these products are aggressively protected by patents that profess the products’ “novelty” and “innovativeness.”
But these products are arguably neither new nor innovative, as their use of genetic resources has been developed based on existent traditional knowledge of the natural world, often held among Indigenous groups and rural farmers. Yet, these traditional knowledge holders are rarely compensated for their role in producing and safeguarding the biodiversity from which the patent-holders profit.
This phenomenon is known as biopiracy.
The term biopiracy was coined in the early 1990s by Pat Mooney, founder of ETC Group – an organization which works to protect the world’s most vulnerable people from socioeconomic and environmental impacts of new technologies – to describe the theft or misappropriation of genetic resources and traditional knowledge through the intellectual property system. It also encompasses unauthorized and uncompensated collection of genetic resources for commercial purposes.
One of the most widely cited examples of biopiracy is that of U.S. multinational corporation W.R. Grace’s 1994 patent for a neem tree seed extract used in their antifungal spray, Neemex. Although the company claimed its patent was the product of a unique invention, neem extracts had been used by rural farmers in India for more than 2,000 years in insect repellants, soaps and contraceptives. After years of activists and farmers fighting the patent, it was overturned by the Environmental Protection Organization (EPO) in 2000 due to “lack of novelty and innovative step.”
While the neem patent was overturned, it is often difficult to legislate against biopiracy as the term has no single legal definition, and regulations around it differ by region. This ambiguity leaves plenty of room for countless cases of companies patenting everything from gene sequences to crop varieties to human cell lines without fairly compensating the countries and communities of origin.
It’s not that the intellectual property system is invalid, notes Susan Bragdon, director of Seeds For All and policy advisor at Oxfam Novib. But when it comes to traditional knowledge holders and Indigenous rights, “the patent and intellectual property system wasn’t designed to provide benefits to communities,” she says.
Critics of the current patent system, including Mooney, believe that current intellectual property regimes threaten Indigenous rights, favor monopolies over biodiversity and increase social inequities because they allow powerful people and groups to own the most basic building blocks of life.
The specter of colonialism
Biopiracy is historically rooted in colonialism. Top commodities like sugar, pepper, quinine and coffee were all taken from formerly colonized countries via Western trading companies that plundered local ecologies for profit.
Today, environmental activists like the prolific Indian author and researcher Vandana Shiva have argued that patenting genetic material or other components of living organisms is comparable to “the second coming of Columbus” because of how it has reinforced colonial power dynamics between the Global North and South. “90 percent of genetic resources are in the South and 90 percent of patents are in the North,” noted Green Member of European Parliament Sandrine Bélier in an interview with EurActive.
Another parallel Shiva draws between biopiracy and colonialism is in the way that pirated seed resources are used to create forced crop monopolies. In her book, “Biopiracy: the plunder of nature and knowledge,” Shiva cites how Monsanto took steps to flood the Indian marketplace with patented cotton seeds in the early 2000s, which resulted in a cotton monopoly that sent many farmers into debt because of the steep price increases and royalties Monsanto charged for their special seeds.
Such categorical rules over a market also prevent local farmers from saving and sharing seeds to propagate diverse crops that are well adapted to microclimates and specific conditions, as they have often done for centuries.
“There is a fundamental clash between the idea of (Western) technological progress and the idea that no one group or individual has a ‘right’ to monopolize genetic resources,” says Manuel Ruiz Muller, director and principal researcher of the Peruvian Society for Environmental Law (SPDA). “Cultural and human rights often collide with economic rights and intellectual rights.”
Toward fair access and benefit sharing
The key question is: how can humans share in the use of the Earth’s genetic resources while protecting the rights of smaller actors like developing governments, local communities and Indigenous people?
While there are many pieces of legislation dealing with biopiracy and intellectual property rights, the U.N. Convention on Biological Diversity (CBD) and its Nagoya Protocol on access and benefit sharing have been especially influential.
The Nagoya Protocol is an international legal framework under the CBD that aims for fair benefit sharing of profits associated with use of genetic resources. It obliges governments and the private sector to establish transparent, mutually agreed-upon terms for how benefits from the use of genetic resources will be shared.
But the current framework is riddled with pitfalls. In 25 years, few access and benefits contracts – which legally dictate fair and equitable sharing of benefits from genetic resources – have come about as a result of the Nagoya Protocol, and those that have often result in trivial profits flowing back to traditional knowledge holders, according to an article from Intellectual Property Watch. Access and benefits contracts for genetic materials do not always result in a direct commercial application, and even when they do, the percentage of benefits that flow back to communities can be as low as 0.1 percent of total corporate profits, according to an article from Trade for Development News.
“You’ve noticed the piles of money pouring into the coffers of Indigenous peoples and peasants around the world because of access and benefits agreements, right?” Mooney asks with sarcasm. “Of course not. It’s virtually nothing.”
Some experts including professor of international governance at the University of Leeds, Graham Dutfield, argue that ending biopiracy would require ceding political space to Indigenous and marginalized groups so that they are on more equal footing to negotiate benefit sharing.
But even when political goodwill is present, there are many practical barriers to successful access and benefits regimes. It is possible to have multiple traditional knowledge holders across different countries for the same herbal medicine, for example. In such situations, it is not clear with whom pharmaceutical companies hoping to develop a drug should negotiate benefits or how those benefits will be shared with diverse cultural groups.
“I think access and benefit sharing hasn’t proven to be a good mechanism to reward and incentivize communities that are shepherding and managing biodiversity,” says Bragdon. “There haven’t been sufficient benefits to halt the erosion of biodiversity. I think it’s been highly problematic.”
Additionally, access and benefits agreements often interpret genetic resources as physical matter, which ignores the modern reality of digital DNA and cloud storage. Researchers can freely access many gene banks without agreeing to disclose potential commercial applications or share benefits resulting from their work.
“The issue [with biopiracy] today is that companies and private actors can take out patents on digital sequences of DNA – it’s not just about the physical seeds,” says Mooney. “We see companies sucking up all the genetic information they can and storing it on their proprietary clouds.”
There are talks of including digital sequencing information (DSI) – disembodied pieces of genetic code – in the CBD, meaning researchers and companies would have to pay to use and copy gene bank information. But the move has been met with resistance. A 2018 article in Science magazine argues that including DSI in an international agreement against biopiracy could “stifle research, hamper the fight against disease outbreaks, and even jeopardize food safety.”
Both Mooney and Ruiz Muller are skeptical of these claims. “The critique is misplaced and has to be nuanced substantially,” says Ruiz Muller. The current CBD and Nagoya Protocol have a transactional approach to access and benefit sharing in which two parties negotiate a contract for the use of a particular genetic resource. Under such a system, he argues that including “natural information” – a better term for DSI – in a new framework could negatively impact research; it could lead to countries racing to claim sole jurisdiction over certain pieces of widespread genetic resources and actively competing against one another for contracts.
However, the framework could transition to a multilateral system characterized by “bounded openness of natural information,” meaning genetic resources would flow freely (the openness) until a biotechnology that uses natural information or traditional knowledge is commercially successful (the boundedness). Only then would the innovation require companies to pay into a fund for access and benefit sharing for the Indigenous Peoples or traditional knowledge holders more broadly. In this scenario, including natural information under the scope of access and benefit sharing makes perfect sense. “This would facilitate access to genetic resources and natural information, support research and information sharing, promote monetary benefit sharing and align incentives for conservation,” says Ruiz Muller.
How the transition to a new legal framework on biopiracy would happen is still up for debate, but some insiders believe the change could come in the form of a subscription service or fixed royalty for companies and researchers that want to use natural information in their innovations, according to Bragdon of Seeds For All.
These debates are now more relevant than ever as organizations around the world race to find treatments for COVID-19. Traditional remedies are already involved in narrowing down the search for cures in both Madagascar – where the government has encouraged the development of Covid-Organics, an improved herbal medicine to help fight COVID-19 made with artemisia and other endemic plants – and China, where traditional Chinese medicine is included in the national guidelines for COVID-19 treatment and diagnosis, according to the official English translation from the World Health Organization (WHO). However, it is not clear whether these two cases have resulted in biopiracy.
Mooney believes there is another reason to be concerned about accelerating biopiracy stemming from COVID-19: severed supply chains. He argues that national lockdowns have severed long supply chains and restricted access to genetic material from plants such as the Silk Bark Tree, which pharmaceutical companies like GlaxoSmithKlein use in almost all of their vaccines. If these companies are not able to go through the proper channels to access these materials, they could hypothetically resort to biopiracy, he notes.
Establishing a fairer legal framework to prevent biopiracy and benefit traditional knowledge holders is a monumental task. The increasing digitization of bioresources, including DNA, makes it extremely difficult to legislate against biopiracy or ensure benefits flow back to communities.
The solution, Mooney believes, is simple but hard to implement.
“The solution is that corporations and governments should pay out a percentage of their annual sales, regardless of specific products or processes,” he says. “For example, Bayer [the company that bought Monsanto] would pay 1 percent of its sales into a fund that would go to benefit Indigenous people.”
The problem, he argues, is that companies do not want to be the only ones paying into a fund that would disadvantage them in the marketplace with other companies, especially when they can avoid the hassle by using virtual gene banks.
Ruiz Muller agrees: “The main challenge [with the existing CBD framework] is a rather simple one: it ignores economics, and the economics of information in particular, while trying to construct a workable access and benefit sharing model.” Meaningful reforms to the current access and benefit regimes will require sound economic thinking and leadership that encourages buy-in from the private sector and the public, he argues, citing an article from the Law, Environment and Development (LEAD) Journal.
For now, biopiracy is here to stay. Changing this will require more than just political goodwill; it will require a robust legal framework that upholds the rights of traditional knowledge holders, makes economic sense and is flexible to changing technologies.