Biopiracy: IP and Appropriation from the Global South

Biopiracy refers to the unethical appropriation or commercial exploitation of biological substances typically used by political actors in the Global North to extract, appropriate and benefit exclusively from indigenous biological knowledge in the Global South, such as medicinal plant extracts that are native to a particular country or region, without providing fair financial compensation to the people or government of that territory. As Western researchers and companies increasingly draw on Indigenous traditional knowledge about the properties of particular plants, animals, and chemical compounds, biopiracy has become a serious concern. Traditional knowledge is often a crucial constituent of the culture, religion, spirituality, physical environment and lifestyle of local communities and represents a significant source of their identity. Hence, biopiracy is rebranding of colonialism under the pretext of globalization.

In 2019, with the help of a German lawyer, the controversial patent on Ethiopia’s national grain teff has been challenged. A Dutch company had been holding the patent on processed teff flour, the grain that Ethiopian farmers have been cultivating for nearly 3,000 years. What makes this particularly glaring, apart from the fact that teff is native to Ethiopia, is that the Dutch company concerned had also collaborated for research on teff with the Ethiopian government and agreed to share the findings. The Dutch teff patent not only stripped millions of Ethiopian farmers of their rights, but also led to a rise in the prices of teff, thereby making it inaccessible for poorer urban Ethiopians.

Moreover, an anti-fungal product derived from Azadirachta indica, commonly known as neem or Indian lilac, was patented by the United States Department of Agriculture and W. R. Grace and Company. Neem is a tree that is native to the Indian subcontinent and has been used for its medical benefits for more than 2,000 years. The Indian government successfully challenged the patent on the grounds of prior use and obtained a ruling in its favour by the European Patent Office (EPO). W. R. Grace subsequently appealed on the ground that prior art of the product had never been published in any scientific journal. However, the appeal was lost and the EPO invalidated the Neem patent.

Another example of biopiracy is the British patent by Syngenta for the strain of Impatiens walleriana, also known as Busy Lizzie. Syngenta bred a new strain of Busy Lizzie called the Spellbound Busy Lizzie that “can achieve at maturity, trails of 70cm masses of large flowers”. An analysis of Syngenta’s new “floral invention” revealed that Syngenta cross-bred the Busy Lizzie with a rare African plant called Impatiens usambarensis, native and unique to the Usambara region of Tanzania. Currently, the company is making a fortune selling these plants by monetising their natural disease resistant qualities but nothing is being paid to the native communities of Tanzania. A recent study demonstrated that Africa may be losing more than $15 billion USD from its biodiversity as medicines, cosmetics, agricultural products, and indigenous knowledge relating to these are being patented illegally, despite prior use by local communities for generations as illustrated by multinational companies, without there being evidence of benefits accruing to local communities in the countries of origin.

Biopiracy emerged as a global issue after the inclusion of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) by the WTO which universalised Euro-American notions of patentability, enabling the extraction of traditional knowledge from the Global South as the “common heritage of mankind” and its return to the South as a commodity. As per the TRIPS, WTO member countries must comply with a minimum threshold of IP protection, which encompasses patentability of life forms that can be deemed to be ‘invented.’ Thus, it comes as no surprise that the inclusion of IPR by the WTO was a direct result of US lobbying because the benefits of this predictably flow to many US based agro-chemical and pharmaceutical industries.

Further, the Convention on Biodiversity 2000 was meant to treat biodiversity as a category of nationally sovereign genetic resources, inscribing a propertied meaning upon components of the often-sacralised natural world of local communities. This global reduction of nature, locally considered as a “quasi-rational and moral whole or even as an autonomous world of living beings endowed with measure of dignity” to an “object of right capable of alienation” can be used as a Marxist theoretical starting point to critique the expansion of Western Intellectual Property Rights regimes tyrannising the most marginalised populations in the Global South.

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC),constituted in 2000, was tasked with the negotiation for a legal framework for protection of traditional knowledge, folklore and genetic resources. The IGC’s efforts have been further complemented by the Nagoya Protocol on Access and Benefit Sharing in 2010. However, even as the mandate of the IGC has been renewed to the next biennium (2020-2021), the legitimacy of its processes and terms of negotiation continues to be suspect due to the woeful lack of participation by indigenous communities as well as little budgetary allocation to enable their participation in the IGC’s negotiations.

Biopiracy is illustrative of the developmental monoculture and agenda underscoring Global IP regimes and their exploitative extension to the developing world. The chronopolitics of these negotiations are fascinating because indigenous communities are now being increasingly compelled to defend their culture at, what is regarded by dominant Western narratives as, the cost of the public domain. However, the countries currently championing the public domain in the context of Traditional Knowledge, led by the US were the same ones that relentlessly bolstered IP protection over the decades to exclusively reap the benefits of the ‘knowledge’ they ‘sophisticated’ by utilising raw materials from the Global South. It is vital to explore both the material, human and social costs as well as impact of Global IP protection in the status quo while imagining alternative and more contextual non-Eurocentric methodologies to protect traditional knowledge, that place native welfare and social justice instead of commerce and efficiency at the centre.

Written by Elif Babaoglu and Anupriya Dhonchak. Elif Babaoglu is a contributing IPilogue editor and the co-director of events at the Osgoode Privacy Law Society. Anupriya Dhonchak is an international exchange student at Osgoode Hall Law School from National Law University, Delhi and is currently working as a Research Assistant to Dr. Carys Craig

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