WHAT IS BIOPIRACY?
Indigenous communities live closely with nature and over the years, knowledge on genetic resources has been passed on from generation to generation which is known as indigenous or traditional knowledge. This includes skills and practices that are developed within a community often forming part of its spiritual and/or cultural identity. Traditional knowledge can be found in agricultural, technical, ecological, scientific, and medicinal knowledge.
It has been common practice for researchers to rely on indigenous knowledge on properties of plants, animals, microbes, and chemical compounds in search of new bioresources. Researchers will collect these bioresources and eventually confirm their effectiveness and potential use. However, when this is done without consent and excludes local communities from commercial profit, it becomes biopiracy.
Biopiracy is the act of utilizing traditional or indigenous knowledge of natural resources for commercial gain without recognizing or compensating the holders of the information or getting their consent. Biopiracy occurs in the pharmaceutical, agricultural and industrial sectors. It can be patent-based, non-patent or simply misappropriations.
Patent-based biopiracy involves the patenting of inventions that are based on bioresources and/or traditional knowledge. Those involved will extract both resources and information without any official authorization and lock out the locals from any profits earned from the commercialization of the bioresources. An example of this is the patenting of a neem tree seed extract in an antifungal spray by W.R Grace, a U.S. multinational corporation in 1994. Fortunately, after backlash from India, this patent was overturned in 2000 by the Environmental Protection Organization as it was determined to be neither new nor inventive.
Non-patent biopiracy is quite like patent-based with the only exception being the form of intellectual property (IP) control used. This IP control can be achieved through plant variety protection (PVP) or trademarks. Misappropriations on the other hand, involve unauthorized extraction of bioresources for research and development without adequate benefit sharing.
An example of misappropriation is the harvesting of microorganisms from Kenya’s Lake Bogoria by a British University researcher in 1992 who later sold them to companies in the Netherlands and US. It was only when the companies were sued that the people of Endorois were paid less than one percent of royalties by some of these companies.
Biopiracy does not always involve foreign researchers or multinational corporations unethically benefiting from traditional knowledge and bioresources. In some cases, governments may benefit from bioresources of its people and fail to adequately share the benefits from their commercial use. An example of this is the patenting and subsequent licensing of hoodia’s (a cactus utilized by the San of South Africa to suppress hunger and thirst during long hunting trips) appetite-suppressing derivative by the South African Council of Scientific and Industrial Research to Phytopharm that later sold the rights to license the drug as an obesity cure to Pfizer. It was only after legal action was taken that an agreement was made to pay any future royalties to the San.
BIOPIRACY AND COLONIALISM
Biopiracy is deeply entrenched in colonialism. Historically, resources from colonized countries would be forcibly acquired and then imported. Similarly, biopiracy is often instigated by foreign entities in developing countries at the expense of marginalized communities. Therefore, wealthy developed nations benefit from the resources of poorer developing nations.
WHAT IS BEING DONE ABOUT IT?
BIOPROSPECTING
Due to the negative connotation of biopiracy many researchers attempt to be on the right side of the law and practice bioprospecting. Bioprospecting is the exploration for products from natural resources that can be developed further for commercial use and benefits the society. Usually, they attempt to do it in a legal and inclusive manner.
Ideally, bioprospecting should include ethical consideration of and consent from the indigenous community, it should further include benefit sharing and material transfer agreements and compensation of the community as well as facilitate conservation efforts from the earnings.
LEGAL AND POLICY FRAMEWORKS
International legal and policy frameworks exist to prevent biopiracy. However, these laws tend to contradict each other. The UN Convention on Biological Diversity recognizes that member countries that have ratified it have sovereignty over their genetic resources, however, the Trade related Intellectual Property Rights agreement (TRIPS) of the World Trade Organisation (WTO) does not.
This inconsistency calls for the amendment of regional and national laws if African countries are to effectively protect their bioresources. In Africa, the African Union (formerly Organization of African Unity) adopted the African Model Legislation in 2000. This model law aims to protect the rights of local communities, farmers, and breeders, and regulate access to biological resources. This model law also has provisions for benefit sharing of genetic resources and plant breeder’s rights.
In Kenya, Article 69(1) of the Constitution of Kenya recognizes the State’s role in ensuring sustainable exploitation, utilization, management and conservation of the environment and natural resources. Article 69(1) also recognizes the need for equitable sharing of accruing benefit from commercialization of natural resources. The Kenya Industrial Property Institute (KIPI) also established a unit known as the Traditional Knowledge (TK) and Genetic Resources (GR) unit (TK & GR – UNIT) in 2009 whose focus is to develop a TK database for Kenya and create awareness among local communities on the importance of TK and GR.
CONCLUSION
The controversies surrounding biopiracy are tangible and must not be ignored. However, the matter is not insurmountable, especially with legal frameworks in place to protect indigenous knowledge. My hope is in the future indigenous communities can get the recognition and compensation they so rightly deserve.
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