1.Introduction”Bioprospecting”, a term firstly introduced in the book Biodiversity Prospecting (Reid et al), 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 (citation from books), some producers are currently criticized for registering patents and gaining commercial benefits without informing indigenous people, which lead to another rising problem, “Bio Piracy”. “Bio piracy” 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). 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 bio piracy(book), 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 signed on an agreement known as The International Convention on Biological Diversity (CBD) proposed by UN Environmental Program (UNEP). Notably, CBD coined prior informed consent (PIC) and access and benefit-sharing (ABS) ( https://www.cbd.int/convention/text/default.shtml/), 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 and Buck, 2011). Nagoya Protocol, with the signatures from more than 190 countries, 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 Monsanto Cooperation since their genetically modified soya plants was assigned a European patent by their importer(book). 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. 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.
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 are 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 (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. 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. 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 stakeholders. 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 aspects 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. 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 Resourceshttps://www.reuters.com/article/environment-drugs-nature-dc/mother-nature-still-a-rich-source-of-new-drugs-idUSN1624228920070319Bioprospecting of patent drugs is always correlate to the decrease of biodiversity due to the overcollection 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. 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 drugs that made from plant materials worth at least 94 million dollars to a drug company. 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. The SAGE Encyclopedia of Pharmacology and SocietyAs 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 overcollection. 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 IP 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 criterias 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. 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.
(http://www.wipo.int/pressroom/en/briefs/tk_ip.html)3.2 international effort and religious effort related to multi-national organizations (tript WIPO) + reviewing Patent law(control tansfer access, respect for traditional knowledge) Religious effort (religious communities work as a whole group to voice out e,g ASEAN)National and local approchesLaw and regulations within and between countries+ Databases and Registers Locally, local people contextualize the law or regulations related to traditional knowledge