Biopiracy refers to the exploitation of developing nations and indigenous farmers through genetics patents. Often plants developed over the centuries by the methods of traditional agriculture in the third world are used by first-world corporations as the basis of patented plants or inventions. Many people, myself included, feel this to be an unacceptable situation.

Biopiracy is also a book by Indian author Vandana Shiva, on the subject of biopiracy. The title (and the term itself) turns our usual interpretation of `piracy' (in an IP context) on its head: rather than indicating the violation of `intellectual' `property', the term refers to the IP itself.

I wrote a paper on this topic for a political science course (PS 212, Politics of the Third World, at the University of Kentucky, prof. Dr James Schlicht). This is one of the better papers I've written; unlike most of my writings, I spent a great deal of time and effort on this one.

---

Introduction

For people in most of the world, agriculture is one of life's most important activities. In addition to providing sustenance and income, farming and related activities lie at the center of the community and the society in general. Anthropologists cite agriculture as one of the most important factors leading to the development of civilisation.

In parts of the world, though, the situation is different. Throughout the so-called ``industrialised'' world, agriculture has been in large part taken over by large corporations. Significant portions of the population go through their entire lives performing no agricultural tasks beyond maintaining a garden.

The major reason for this transformation has been the development of agricultural technology. Advances such as mechanical harvesting, pesticides and herbicides, and genetic engineering have produced crops of higher yield, allowing a much smaller group of farmers to provide more food. In this paper, we concern ourselves with genetic engineering, and especially with its use by the industrial world in exploiting the developing world and traditional agriculturalists there.

The primary means of exploitation has been the patent. The patent as we know it today is primarily a U.S. invention, though based upon earlier English and European ``letters patent'' granting monopolies in certain fields (Shiva). In the United States, patents are covered by Title 35 of the U.S. Code; notably for our purposes, Chapter 10 of that Title describes the conditions under which an invention may be patented, while Chapter 15 allows plants to be patented (Cornell). Basically, three standard criteria exist for patents: the invention must be new, useful, and non-obvious (RAFI, ``Enola Bean'').

Over the past twenty years, the U.S. Patent and Trademark Office has seen a large number of patents on genetic material---especially, but by no means entirely, on plants. However, most of these plants are based on varieties originally cultivated in the Third World. According to Mr. Antonio Jacanimijoy, in a presentation before the World Intellectual Property Organization's Roundtable on Intellectual Property and Indigenous Peoples, ``the fact that just one per cent of all patents in the world are granted to persons from underdeveloped countries, and on the other hand the fact that 90 per cent of germ plasm, the basis for genetic improvement programs, comes from underdeveloped countries, gives us a clear idea of the intellectual property system responding to the interests of a specific sector.'' In other words, the Third World is being exploited to the benefit of multinational and other corporations in the U.S and Europe.

Though other systems, such as the wou ``patent'' system of the Mandang people of New Guinea (Cleveland) exist and have long existed in the developing world, the most common intellectual property system for agriculture in the developing world has been the common-heritage system (Shiva). Under this system, plant varieties and seeds are considered to be the ``common heritage of humankind''. If this system were universally held, a claim to a monopoly on the breeding, development, sale, and use of a plant would be considered preposterous and morally reprehensible. Unfortunately, the industrialised world has long been moving away from this system.

Examples

One of the most notorious examples of biopiracy is the neem tree (Azadirachta indica A. Juss.) of India. Known in Sanskrit as sarva roga nivarini (``the curer of all ailments''), this tree has been a part of Indian culture for thousands of years. Its finds use as a pesticide (Immaraju), antiseptic, medicine, contraceptive (Garg), and soap. The neem tree was developed over the course of centuries by means of traditional plant breeding.

In 1985, the U.S. firm Vikwood, Ltd. received U.S. patent 4,556,562 on a ``storage stable neem extract''. A few years later, it sold this patent to W.R. Grace and Company. Later, in 1995, W.R. Grace and Company obtained U.S. patent 5,411,736, on a method of using neem oil as an insecticide (Delphion). Although W.R. Grace and Company claims that the extract is produced using newly-developed techniques, and that the patent only covers extracts so processed, there is much reason to be suspicious. First of all, the originality of the method is not entirely clear. Second, even if the method were original, the vast majority of the work leading up to this patent was the traditional agriculture which bred the neem tree as we know it today.

In 1995, in response to the actions of these corporations and other ones, the upper house of the Indian parliament forced the government to table a ``patent amendment bill''. This reaction was a risky one; the bill was intended to make India compliant with the WTO's and GATT's rules concerning intellectual property, and the refusal to pass it could very well have lead the ejection of India from those organisations (Shiva 158). However, the Indian government chose to defend the rights of its own people rather than blindly support this multinational corporation. Because of the tabling of that bill, India does not at the moment allow agricultural product patents (Shiva 158). For that, India is to be commended.

Another example is the Enola bean, produced by POD-NERS, L.L.C. This bean is based on the Azufrado bean of Mexico; both have the taxonomic designation Phaseolus vulgaris. In 1994, Larry Proctor, president of POD-NERS, bought beans in Mexico; after two years of selecting yellow seeds from those beans and breeding them, he obtained a strain that produced a `uniform and stable population' of yellow bean seeds. In 1999, he obtained U.S. patent 5,894,079, which covers any Phaseolus vulgaris beans coloured a particular shade of yellow (Delphion)---despite the fact that Azufrado beans other than those bred by Proctor often have that colour. Since he was awarded the patent, Proctor has filed suit against two importers of yellow Azufrado beans, claiming patent infringement (RAFI, ``Enola Bean'').

A third example is basmati rice. Any fan of Indian cuisine is no doubt encountered this fragrant long-grained rice. In 1997, the company RiceTec, Inc. obtained U.S. patent 5,663,484. This patent covers a number of lines of basmati rice (Delphion). Thus, by breeding existing strains of basmati rice, developed by traditional agricultural methods in India, and protected by no international intellectual property law, RiceTec obtained what the USPTO views as a patentable product. Again, the Indian government responded. Under the auspices of Indian biodiversity legislation, Indian Attorney General Soli Sorabjee claimed that ``the Government had already taken steps to challenge the grant of patent'' for these strains of basmati rice (Maharaj).

There are a number of other cases of genetics information produced by centuries of traditional agriculture suddenly being patented by multinational corporations. Most, but not all, of the example come from southern and southeast Asia. For example, Monsanto has a U.S. patent (5,159,135) which covers all genetically-engineered cotton; L'Oreal, the French cosmetics company, has patented the use of kava to prevent hair loss, and a number of organisations (the U.S. National Institute of Health, the U.S. Army, and New York University) have patents on the use of bitter melon in treating HIV (RAFI, ``Patents Out of Control'').

There is another, even more disturbing, application of intellectual property law to developing countries. A number of multinational corporations hold patents on human genetic material, often obtained from indigenous peoples. Typically, those whose blood, tissue, and hair is harvested are poorly, if at all, compensated. Although the U.S. National Institute of Health NIH), in response to increasing pressure from activist groups, recently adopted a new policy of not seeking patents on human genetic material identified there, a number of private corporations still do seek and receive such patents. Companies such as Biocytes, Human Genome Sciences, and Flinders Medical Centre continue to receive patents on genetic material to which they have no moral claim (RAFI, ``Patents Out of Control'').

Even ignoring the issue of patents, it is not at all clear that multinational corporations have the right to harvest human genetic material. Typically, this material will be used to develop medicines. This would under most circumstances be an admirable cause; however, the resulting drugs are typically so expensive that those very people who contributed their genetic information to the production of the drugs are unable to afford them (Davis 31). The benefits of the appropriation, therefore, fall primarily on the developed world and very little to those contributing the most important part: the genetic code for the chemicals the patents describe.

Views

It may be interesting to consider the views of various schools of international politics on the subject of the patenting of life from developing countries. Additionally, anthropologists have something to say on the matter.

We first consider modernisation theorists. Here, we find something of a contradiction. As proponents of liberal economic theory, they usually side against government intervention, leaning towards a laissez-faire economic system. However, they are not nearly so anti-regulation when it comes to patents. Modernisation theorists in general view patents as a necessary means of protecting the rights of corporations to their innovations. They, in general, see no reason to consider genetic material to be an exception (Novak).

According to these scholars, the patent is one of the tools which has helped build the industrialised world. By protecting the rights of inventors, so they claim, patents have encouraged innovation. Patents may thus serve as a means of helping develop local industry in the Third World. They do not claim that industrialised countries should be patenting genetic material from developing countries---rather, that developing countries should develop patents in defense. Modernisation theorists generally view the common-heritage system an outmoded relic which is applied too loosely.

Dependency theorists and world system theorists view things differently. According to them, patents are yet another method used by the industrialised or ``core'' countries to maintain dominance over the developing world or ``periphery''. By patenting Third-World genetic material, multinational corporations are stripping indigenous peoples of the rights to their centuries of work. In addition, by selling products based on those plants back to the countries in which they originated, multinational corporations are ensuring their economic dominance.

Dependency, or dependencia, scholars usually do not feel that patents are an effective or appropriate means of combating patents. To the contrary, they are quite likely to suggest that the common-heritage system be given more credence in international law. Any other result will do nothing but rob traditional agriculturalists of work that is rightfully theirs.

The third important school of international politics is classical Marxism. Marxists, in general, see patents as an individual state's means of furthering the interests of its industrialists (the receivers of the patents) at the expense of its workers (those who actually develop the patents). In this respect, the international situation is simply an extension of this behaviour to the global level.

These scholars, who typically believe that developing nations must go through the intermediate stage of capitalism before arriving at a just economic system, may side with modernisation theorists in suggesting that Third-World corporations obtain their own patents on the material; even though this may be exploitive of traditional farmers, this is an exploitation that cannot be avoided---and better that they be exploited by firms within their own nation (which will eventually be able to share their profits with said farmers) than by a multinational corporation.

Finally, it may be instructive to look at the opinions of anthropologists on the matter. Anthropologists studying the developing world are in a unique position to comment on the importance of agriculture in that part of the world, and upon the dangerous influence of industrial-world laws and politics. In one article, two anthropologists suggest approaching the problem from the perspectives of ``free access'', ``farmers' rights'', ``cultural rights'', ``human rights'', and ``environmental rights'' (Cleveland 489-492). They, in general, feel that patents and trademarks on plants developed primarily by traditional agriculture serve to objectify indigenous cultures.

Solutions

It should be obvious that some solution to the current situation is required. Under the current system, multinational corporations are making tremendous profits from patents on genetic information they played only a small rôle in developing. Wealth, in the form of knowledge, is being plundered from the developing world. The developing world is as a result losing its ability to assert itself internationally---these patents make populations, and thus governments, dependent on multinational corporations.

One possibility is that Third-World governments condemn and ignore these patents. India has done this with the neem tree. Unfortunately, such methods may well lead to retaliation by industrial nations, organisations such as the WIPO, and multinational corporations. Additionally, this solution still allows multinational corporations to use their patents to ensure monopoly in other nations' markets---thus preventing the originating nation from exporting the product. While some scholars would argue that developing nations should cease exports and become entirely self-sufficient, most are not so revolutionary. This solution is thus not a feasible one.

Another possibility is an improved review process in patent offices worldwide. Under this solution, industrial countries would simply not grant patents on genetic material which has been developed primarily by traditional agriculture. Corporations and research institutions would have to show a significant improvement upon the original material before they could be granted a patent. This is the way the patent system was intended to work, and the way it theoretically should. However, the large number of patents considered by such agencies as the U.S. Patent and Trademark Office tends to lead to a poor review process.

Some would go further and ban genetics patents outright. As an example, ``one meeting of indigenous peoples in the Pacific called for the establishment of a treaty declaring the Pacific region a `lifeforms-patent-free zone' '' (Cleveland 487). Proponents of this approach claim that, by patenting DNA, corporations are obtaining monopolies on information developed almost entirely by nature. Plant and animal breeding may serve to combine this information in new ways, but the information is still fundamentally not technological in origin. Another argument is that genetics patents in general work against the developing world, and that is difficult or impossible to develop a system of genetics patents that would not have this problem. For example, Henk Hobbelink lists as one of twelve reasons for opposing genetics patents that ``If the patenting of life forms is accepted. . . the third world will increasingly lose access to scientific information and technological transfer'' (Hobbelink).

Opponents of this view claim that genetics patents are necessary to encourage biotechnology research. Whether biotechnology research is always desirable is, of course, a question for debate; however, that question is outside the scope of this paper. Suffice it to say that the probability of industrial corporations and governments accepting a ban on genetics patents is minimal.

A fourth solution would be for third-world countries to adopt their own patent systems (van Wijk). They could then allow traditional farmers to obtain patents on plant strains developed by them. However, there are some problems with this approach. According to one observer, ``industrial-world intellectual property mechanisms are generally inappropriate for protecting the intellectual property rights of indigenous farmers'' (Cleveland 477) and ``Use of these patent mechanisms would place indigenous peoples in an arena dominated by industrial-country governments, corporations, and legal systems'' (Cleveland 487). In addition, there is still the question of whether a single farmer (or even a group of farmers) should be able to claim patent on plants developed primarily by means of traditional agriculture over a period of centuries. One possible solution is for the government to itself to claim such patents, holding them in trust for the entire population, and use them only for defense against industrial-world patents; or for those governments to allow collective patents by groups of indigenous farmers (Shiva 157). Such measures, however, would require much more careful analysis before they are implemented---if the industrial world would accept them at all.

A final solution is to modify patent law to incorporate, or at least to work with, the common-heritage system. Patent law could recognise that certain plant materials belonged to the common heritage of society, and that, short of genetic modifications such as recombinant DNA techniques, plants based on these strains should not be made proprietary. Some will argue that this proposal does not go far enough---that it would still allow industrial-world corporations to use third-world plants and recombinant DNA to produce patentable inventions. However, such a compromise is likely to be the only way to obtain the cooperation of industrial nations. In addition, it would still allow traditional farmers to use their existing crop varieties without fear of having to pay royalties in the future. It will be up to third-world nations and the farmers themselves to ensure that they do not in other ways become dependent on patented plants.

Conclusion

Biopiracy is a growing problem, and it is obvious that some steps must be taken to defend the rights of developing nations and indigenous farmers. Whether the solution involves improving the patent review process, banning genetics patents, or developing some new mix of the common-heritage system and modern intellectual-property law, it is clear that some change is necessary. While developing nations must take a stand for themselves (and India in particular is to be commended for doing so), it is also up to us, as members of the industrial world, to make sure that such solutions are implemented. The United States is home to most of the world's largest multinational corporations, and to most of those corporations that obtain patents on genetic material to which they have no right. Only by boycotting those companies and petitioning our elected representatives can we ensure a fair and prosperous future for indigenous peoples throughout the world.

Works Cited

Cleveland, David A. and Stephen C. Murray. ``The World's Crop Genetic Resources and the Rights of Indigenous Farmers.'' Current Anthropology Vol. 38 No. 4, Aug.-Oct. 1997.

United States Code. Jan. 1999. Cornell University Legal Information Institute. 4 Apr. 2000 http://www4.law.cornell.edu/uscode/

Davis, I. J., ``A Deadly Dearth of Drugs.'' Mother Jones, February 2000.

Garg, Sanjay, G.P. Talwar, and S.N. Upadhyay. ``Identification and Characterization of the Immunomodulatory Fraction from Neem Seed Extract Responsible for Long-Term Antifertility Activity''. Neem and Environment. Eds. R.P. Singh, M.S. Chari, A.K. Raheja, and W. Kraus. Lebanon, N.H.: Science Publishers, Inc., 1996.

Hobbelink, Henk. Biotechnology and the Future of World Agriculture. London: Zed Books, Ltd., 1989.

Delphion Intellectual Property Network. April 2000. Delphion. 4 April 2000 http://www.delphion.com/

Immaraju, John et. al. ``Efficacy Profile of a Commercial Neem Insecticide''. In Singh et al, 1996.

Jacanimijoy, Antonio. Initiatives for Protection of Rights of Holders of Traditional Knowledge, Indigenous Peoples and Local Communities. July 1998. World Intellectual Property Organization. 4 April 2000 http://www.wipo.int/eng/meetings/1998/indip/rt98_4e.htm

Maharaj, Jai. ``US Patent for `Karela', `Jamun', `Brinjal' Alleged.'' Online Posting. 13 Mar. 2000. misc.legal USENET group.

Novak, Michael. The Fire of Invention, the Fuel of Interest: On Intellectual Property. Washington, D.C.: The American Enterprise Institute for Public Policy Research, 1996.

Rural Advancement Foundation International (RAFI). 4 Apr. 2000 http://www.rafi.org/.

Shiva, Vandana and Radha Holla-Bhar. ``Piracy By Patent: The Case of the Neem Tree''. The Case Against the Global Economy and for a Turn to the Local. Eds. Jerry Mander and Edward Goldsmith. San Francisco: Sierra Club Books, 1996. 146--159.

van Wijk, Jeroen, Joel I. Cohen, and John Komen. Intellectual Property Rights for Agricultural Biotechnology; Options and Implications for Developing Countries. The Hague: International Service for National Agricultural Research, 1993.