The last few years have seen significant developments in the field of intellectual property rights (IPRs) and biodiversity. At least two major international agreements, both legally binding, deal with this issue: the Convention on Biological Diversity (CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization (WTO). In addition, the World Intellectual Property Organization (WIPO) and other international institutions are increasingly becoming active on the subject.
At national levels, too, there is considerable activity. Several countries (Costa Rica, Eritrea, Fiji, India, Mexico, Peru, Philippines) are coming up with legislation, or other measures, which respond to the above treaties or in other ways deal with the relationship between IPRs and biodiversity (Glowka 1998). Of particular interest to many countries, especially in the ‘developing’ world, are the following:
- Protecting indigenous knowledge (traditional and modern) from being “pirated” and used in IPR claims by industrial/commercial interests.
- Regulating access to biological resources so that historical theft of these resources by the more powerful sections of the global society can be stopped and communities/countries are able to gain control and benefits from their use.
- These issues relate not just to IPR regimes but also to the new provisions of Access and Benefit-sharing which the CBD contains, and which are being followed up by several countries with appropriate domestic legislation.
- Propelling the spurt in activity on this front are the IPR-related scandals that periodically shock the world, such as:
- The patenting of ancient herbal remedies, e.g. the US Patent (No. 5,401,504) given to the healing properties of turmeric, known for centuries to Indians; or the US plant patent (No. 5,751) on the ‘ayahuasca’ plant, considered sacred and used for medicinal purposes by Amazon’s indigenous peoples;
- The patenting of crop varieties which are similar to those grown for centuries in certain geographical areas, e.g. for varieties of Basmati rice by Rice-Tec Corporation in the US (Patent No. 5,663,484); Rice-Tec even uses the term Basmati, long used to refer to aromatic rice grown in northern India and Pakistan, to describe its rice varieties;
- The patenting of human genetic material, e.g. on the human cell line of a Hagahai tribesman from Papua New Guinea (US Patent No. 5,397,696)
- Plant breeders’ rights or patents on entire taxa rather than specific varieties or breeds, e.g. on all transgenic cotton or soybean granted to the company Agracetus; and
- Patents on technologies that threaten farming systems worldwide, such as US Patent No. 5,723,765 granted to Delta and Pine Land Co., nick-named the Terminator Technology for its potential of stopping plant regeneration after the first generation.
- All countries are now required to respond to this issue, especially given the following specific decisions taken at international forums:
- Decisions (II/12, III/17, and IV/15) at successive Conferences of the Parties to the CBD, asking for more in-depth understanding, case studies, and another follow-up on the relationship between IPRs and biodiversity in general, and TRIPs and CBD in particular;
- The upcoming review of the relevant clause (27(3b) of the TRIPs agreement, in late 1999 or early 2000;
- Decisions (III/17 and IV/9) at the Conferences of Parties to the CBD, and at other forums, to work towards the protection of indigenous and local community knowledge, if need be through alternative IPR regimes.
A Brief History of IPRs and Biodiversity
IPRs, as the term suggests, rights to ideas and information, which are used in new inventions or processes. These rights enable the holder to exclude imitators from marketing such inventions or processes for a specified time; in exchange, the holder is required to disclose the formula or idea behind the product/process. The effect of IPRs is, therefore, monopoly over commercial exploitation of the idea/information, for a limited period. The stated purpose of IPRs is to stimulate innovation, by offering higher monetary returns than the market otherwise might provide.
While IPRs such as copyrights, patents, and trademarks are centuries old, the extension of IPRs to living beings and knowledge/technologies related to them is relatively recent. In 1930, the U.S. Plant Patent Act was passed, which gave IPRs to asexually reproduced plant varieties. Several other countries subsequently extended such or other forms of protection to plant varieties, until in 1961, an International Convention for the Protection of New Varieties of Plants was signed. Most signatories were industrialized countries, who had also formed a Union for the Protection of New Varieties of Plants (UPOV). This treaty came into force in 1968.
Plant varieties or breeders’ rights (PVRs/PBRs) give the right-holder limited regulatory powers over the marketing of their varieties. Till recently, most countries allowed farmers and other breeders to be exempted from the provisions of such rights, as long as they do not indulge in branded commercial transactions of the varieties. Now, however, after an amendment in 1991, UPOV itself has tightened the monopolistic nature of PVRs/PBRs, and some countries have substantially removed the exemptions to farmers and breeders.
In addition to this, in many countries, patents with full monopolistic restrictions are now applicable to plant varieties, micro-organisms, and genetically modified animals. In 1972, the U.S. Supreme Court ruled that microbiologist Ananda Chakrabarty’s patent claim for a genetically engineered bacterial strain was permissible. This legitimized the view that anything made by humans and not found in nature was patentable. Genetically altered animals, such as the infamous ‘oncomouse’ of Harvard University (bred for cancer research), were also soon given patents. Finally, several patent claims have been made, and some granted, on the human genetic material, including on material that has hardly been altered from its natural state.
The history of IPRs shows that the monopolistic hold of governments, corporations and some individuals over biological resources and related knowledge is continuously increasing. As the examples noted in the Introduction shows, a substantial amount of this monopolization is built upon, and through the appropriation of, the resources conserved and knowledge generated by indigenous and local communities.
IPRs vs. Biodiversity
The CBD has two interesting provisions relating to IPRs. One (Article 16.5) states that Contracting Parties shall cooperate to ensure that IPRs are “supportive of and do not run counter to its (the CBD’s) objectives“. However, this is “subject to national legislation and international law”. Another (Article 22) states that the CBD’s provisions will not affect rights and obligations of countries to other “existing international agreements, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity“. Read together and in the spirit of the CBD, many people have said there is a basis for countering the runaway march of the IPR regimes described above.
But in order for this argument to hold, the actual impacts of IPRs on biodiversity need to be examined. This is a difficult subject, for direct impacts are hard to perceive. However, the following aspects must be considered (Kothari and Anuradha 1997):
- Current IPR regimes have allowed industrial and commercial interests to appropriate the resources and knowledge of resource-rich but economically poor countries and communities, further ‘impoverishing’ them or excluding them from technological improvements
- IPRs are likely to intensify the trend to homogenize agricultural production and medicinal plant use systems. In agriculture, for instance, any corporation which has spent enormous amounts of money obtaining an IPR would want to push its varieties in as large an area as possible. The result would be serious displacement of local diversity of crops (though of course, IPRs would not be the only factor in this).
- Increasingly species-wide IPRs (such as those on transgenic cotton and soybean) could stifle even public sector and small-scale private sector crop variety development.
The ethical aspects of IPRs are serious, and to many communities and people the most important reasons for opposing current IPR regimes are: the patenting of life forms which is abhorrent to many traditional societies and modern conservationists because of its assumption that nature exists apart from, and for the interest of, humans); the privatization of knowledge which is repugnant to many societies which held knowledge to be large, though by no means only, in the public domain, etc.
The arguments made above lead to the following steps, which communities and countries could consider:
- Pushing for the use of the maximum space allowed in existing IPR regimes, including by widening the definitions of “public interest” to its logical limits, attempting bold sui generis systems of plant variety protection, advocating the use of the precautionary principle in all trade and other transactions, etc.
- Advocating that, in the upcoming review of Article 27.3(b) of TRIPs, maximum flexibility be built in, allowing countries the option of fully excluding life forms from patents, and the possibility of developing sui generis systems of plant variety protection which are effective from a national or community point of view.
- Studying, in-depth, the relationship between IPRs and biodiversity (and biodiversity-related knowledge) and providing the results to international forums.
- Challenging, at international forums, countries, and corporations that are known to be violating Article 8j and other relevant provisions of the CBD; and using Article 16(5) and 22 of the CBD to the maximum extent possible.
- Developing an international agreement (or protocol under the CBD) on the protection of indigenous and local community knowledge, and related access/benefit-sharing measures.
- Steering the revision of the FAO Undertaking on Plant Genetic Resources, the WIPO initiative on “new beneficiaries”, and other processes (including proposed ones like the Database Treaty) into directions which ensure the conservation, sustainable use, and equity in benefit-sharing.
- Developing and implementing domestic legislation that protects the interests of biodiversity conservation and local community livelihood security.