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Silvia Ribeiro, Grupo ETC
The term “biopiracy” is interpreted in a different way according to the person whom you ask. For some, it is the simple act of collecting biological materials without the “prior informed consent” of the communities of the area and/or country from where they are extracted, without respect for existing legislation or an agreement on “benefit sharing”, such as is indicated in the United Nations Convention on Biological Diversity. From this legalistic perspective, the signing of a “bioprospection” contract within the limits of the law, whether existing or to be created, would solve biopiracy. Moreover, so-called intellectual property “rights” (in their many permutations) would become a useful instrument that over the time in which they generate earnings for companies, would bring some economic income to the local communities that provided resources and knowledge about them.
For the large transnational companies that work with biotechnology in the pharmaceutical and agricultural field, who are also the main interested party and commercial destination for such biological resources, biopiracy is the unauthorized use or reproduction of their patented innovations. For example, if a farmer uses their patented seeds without paying royalties to the company. This can be done consciously or not, as in the case of the farmer whose field is contaminated by pollen swept by the wind from other fields sown with patented seeds.
To prevent this, apart from drawing up laws and contracts with farmers, companies have developed detective corps that go around agricultural areas in the USA and Canada taking samples. Monsanto has already started over 460 court cases against farmers in these countries, and in March 2001 a Canadian farmer was ordered to pay more than $75,000 for “biopiracy” after his land was contaminated with transgenic seeds patented by Monsanto, although the farmer was neither aware nor wanted such seeds, in fact he considered his land to have been damaged by such contamination.. In case the juries sentence against them, or intellectual property laws are insufficient, the very same companies that dominate these sectors have developed and now hold 70 technology patents so that their seeds become sterile in the second generation; thus biological patents with no expiration date (“Terminator” technologies) are established to prevent “biopiracy”.
For the ETC Group (previously known as RAFI) and many civil society organizations, biopiracy is the appropriation and privatisation of genetic resources and the knowledge of indigenous and local communities, especially in third world countries, by private companies, usually transnationals, and/or public institutions from the North. Biopirates use different intellectual property mechanisms to claim the use of tangible and intangible resources of communities located primarily in the South for themselves. Thus biopiracy is far from being a merely legal issue; rather it is a subject of social, economic and political justice, in its essence a question of ethics. It is basically about the privatisation of resources that have always been public, collective and for the good of humanity, for the benefit and profit of a handful of companies and institutions. Although a company or institution may have signed a contract that claims to follow national or international legislation, and although it includes a certain degree of consultation or participation of communities and/or states and “benefit-sharing” in some shape or form, it is still biopiracy. The protection and primacy of the rights of the principle actors in the biodiversity process and its components – the indigenous and local communities - is not only completely insufficient, but also in many cases denies these fundamental rights, legitimates plundering and undermines the very bases on which the heritage of biological and cultural diversity were historically built.
To whom do the resources belong?
Over thousands of years and across the world, the base for the sustenance of humanity has rested on knowledge process around the means, adaptation, availability and creation of resources for food, medicinal use, clothing, shelter, aesthetical use and others. The processes that the members of diverse local cultures – indigenous, peasant, shepherding, fishing etc – have practised for their survival, are thus bequeathed to all humanity. It has always been an open, collective and free exchange process, except for certain restrictions relating to “sacred” or ritual knowledge, although these processes can also be considered as collective and public in that the function of such specialized experts (shamans, healers etc) are also roles with a social function. This free flow of knowledge and resources has allowed collective accumulation and permanent enrichment.
Cultural diversity interacts in a dynamic way with biological diversity, in the same way that agricultural and cultivated diversity interacts with wild diversity, in a reciprocal continuum in which all factors feed and nourish each other. This explains why the areas of greatest biodiversity on the planet coincide with areas of great cultural diversity. This process is not a fact of the past, although it is being seriously threatened by genetic and cultural erosion. It is calculated that the rural population of the Third World depends upon biological resources to fulfil 90% of its needs, 60% of the world population depends essentially on self-sufficiency for its food, and 80% of this population uses medicinal plants for its health care.
Apart from such direct use, these resources and knowledge are also the base upon which scientific investigation and development are supported, both historically and in the present; contributing to public, commercial and industrial research, or as part of agricultural, pharmaceutical or veterinary work, as well as many other areas.
Historical benefit-sharing from South to North and the recolonization of the South
Traditional medicines and indigenous and local knowledge have acquired a high commercial value on top of their intrinsic value. Approximately three quarters of prescribed medicines deriving from plants from around the world were first used by indigenous peoples, which permitted their subsequent “discovery” by laboratories and companies from industrialized countries. It was calculated in 1996 that the global pharmaceutical industry has annual profits of over $32 billion thanks to the use of traditional remedies incorporated into prescribed medicines. Between 1950 and 1980, plant-derived medicines used in the pharmaceutical industry amounted to 25% of the pharmacy drugs sold in the USA. Currently, approximately 40% of clinical tests for medicines in the USA are based in some way on natural products. It is estimated that the total annual economic value of plant-derived drugs is over $68 billion in the USA alone.
For this reason it is not surprising that the hunters of biological riches are feverishly engaged in the “green gold” rush in the south, especially in zones of megadiversity.
There is currently a renewed interest in the evaluation of natural products, especially for medicinal compounds. In 1980 the research budget of the US pharmaceutical industry destined no funds to the evaluation of superior plants. Nowadays it is estimated that more than 200 research companies around the world are evaluating compounds of animal and vegetable origin in the search for medicinal properties. This increased interest is due in part to new technologies that have revolutionised the possibilities for analysis and later application to pharmaceutical and other commercial products, and for the expansion of intellectual property systems to areas they had never before reached, in particular to living beings and biological processes.
In the agricultural sector, the estimated value of the contribution of agricultural germplasm from the South to the North for four species (corn, wheat, rice, beans) and taking into account only the flows coming from the CGIAR system (Consultative Group on International Agricultural Research), the largest international network for public agricultural research, it is calculated to be $5 billion annually. This estimate is surely modest, since in 1994 the then Secretary of State in the USA, Warren Christopher, argued in a letter to Senate that foreign germplasm meant an annual contribution of $10.2 billion only in US corn and soya crops. The letter was meant to present arguments for the US signing of the CBD.
Of course such looting did not start with what we now call biopiracy. The powerful groups of the North have looted biological and other resources and have benefited from indigenous and local knowledge from the South for centuries, particularly since European expansion. The “collateral damage” of this has caused considerable human, cultural and environmental devastation. Nevertheless, approximately two decades ago, a process started that could be characterized as a new technological, agricultural and industrial revolution, which is interfering even more profoundly in the creation process of natural and cultural diversity. In this revolution we can see three specific factors converge and interact; together they provide the conditions that are a sine qua non for biopiracy:
- patenting and other forms of intellectual property applied to living beings, and in general the system of monopolistic patents.
- the increased vertical and horizontal economic and corporative concentration of power.
The conjugation of these factors is forming a true process of Southern recolonization, as we see that the resources that the conquerors needed to take in material form can now be appropriated from a distance, without these new biopirates even needing to step foot in the place of origin of such resources.
Types of biopiracy: pirates and corsairs
It is not possible to give a precise date for the start of biopiracy (understood as the looting of genetic resources) in the world, as for many years it has been an underhand and illegal activity, or simply not recognised for what it is. Such is the case of the use of germplasm from the South in the agriculture of many Northern countries, which has an enormous unrecognised and uncompensated economic importance.
However, it is possible to point out a key moment in the 1980s, in part due to the qualitative jump taken by new biotechnology (genetic engineering, cloning, etc), and also the approval in the USA of the first patents on living beings. Both conditions – technology and monopolistic intellectual property laws – exacerbated the bioprospection activities of pharmaceutical companies and agricultural businesses in process of developing new products.
Information and resources obtained as well as the common base of biotechnological and biochemical research systems allow developments to come about in the agricultural and pharmaceutical fields. This contributed to a merger process between companies from he agrochemical and seed sector (which was already happening since the Green Revolution), and the pharmaceutical sector; lately the veterinary and genetic sectors have become involved, to form what ETC has denominated “genetic giants”.
Although bioprospection and biopiracy activities increased significantly in the 1980s, at the outset companies were more dedicated to a kind of casual exploration, without any pretensions to legalise what they were doing. They collected samples from areas of great biodiversity, and searched for active components that had not previously been detected. Monsanto, one of the five biggest genetic giants, recruited among its own personnel for “those who were going to travel to some place exotic and who didn’t mind extracting a few soil samples for the love of science”. Their aim was to collect specimens for Monsanto’s agricultural prospection programmes. “You never know what you will find, or where you will find it... Everything is possible”, said Margann Miller-Wideman, Monsanto spokesperson.
Other companies started to set up direct contacts with indigenous people and traditional experts in areas of great diversity and, shunning any kind of contract, paid them individual derisory sums for collecting and even sending plants that they considered useful or rare, with descriptions of their known uses.
More systematic, though by no means legal, was the biopiracy exercised historically and in the present day by botanical gardens in the North, who under the cover of scientific searches for their collections, that would supposedly benefit all of humanity, collected thousands of samples from Latin America and the rest of the South. These samples were repeatedly passed on to form part of the laboratories of multinational companies, for commercial use, patenting the compounds that were obtained from them. Some botanical gardens such as the Missouri Botanical Garden, the New York Botanical Garden and Royal Botanical Garden of Kew in the UK, are notorious for their collaboration, and even drew up contracts with large companies such as Pfizer, Merck, Phytera, Searle (later part of Monsanto and then of Pharmacia), Shaman Pharma (now Bristol Myers Squibb), DowElanco Agrosciences and others, to provide them with samples from their collections for bioprospection purposes.
Intellectual property mechanisms
The renewed interest of companies in genetic resources and indigenous knowledge from the South, the expansion of their biological prospecting activities and the jungle in which they act (in all senses of the word), led to them also searching for ways to guarantee greater monopolistic rights for their activities and results. This was not only to protect their searching and investigative activities from other companies, but also from possible protests from affected groups or lawsuits brought by other institutions and even States.
One of the fundamental measures in this regard was the forceful and systematic lobbying of the multinational pharmaceutical industry, led by US companies, for the imposition of intellectual property regimes on living beings across the world.
It is a widely known fact that this group drew up the first draft of the chapter on intellectual property for the then GATT (now WTO) and managed to introduce the topic in the Uruguay Round. The result was the inclusion of TRIPS (trade-related aspects of intellectual property rights), whose Article 27.3(b) obliges all members of the WTO to adopt patenting systems for micro-organisms and micro-biological processes, as well as providing intellectual property systems for plant variety, through patents or sui generis systems. This last clause was interpreted by the majority of governments as adhesion to the certification system of obtentores vegetales under the UPOV Convention (International Union for the Protection of New Varieties of Plants), which are not formally patents, but do have a very similar effect, especially since the laws of 1991. The TRIPS were approved in 1994 and a four to ten year term was allowed for Southern countries to implement them.
Governments of Southern countries tend to believe that if they enter into intellectual property and patenting systems, as the WTO and corporations demand, their countries will receive greater foreign investment, technology transfer will increase and technological innovation will be favoured and thus national research.
In actual fact, none of these expectations are fulfilled. According to recent studies, the application of intellectual property systems does not have any effect, in fact promotes an adverse effect. Globalisation and harmonization of patenting systems does benefit the corporations that can extend their market monopolies to more countries, and more effectively exclude potential local competitors. But foreign investment can also diminish, as corporations are equipped to protect their own technology and products in new markets, without necessarily making any transfer to the country involved, nor generating any new jobs. In some cases, in Argentina and Brazil for example, research and national development projects were discontinued in the 1990s as well as efforts to adapt imported processes to local conditions, as the acquisition of national businesses by multinational corporations (entered into the accounts as foreign investment, of course) meant that more sophisticated research was transferred to their head offices, leaving less specialized functions in these countries: national investment and technology transfer was thus affected negatively.
A particularly illustrative case is that of agro-biotechnological research. An overwhelmingly majority percentage of this kind of research is carried out by subsidiaries of these same businesses, without any kind of technological transfer to the local country. When carried out by public institutions in our continent, it is generally financed by one of the giant corporations, the very same that benefit from the results. Likewise, there is no significant technological transferral, rather the minimum needed technology is transferred to be able to carry out fieldwork, adapting prior genetic constructions to agricultural varieties already adapted to the country, for example.
Intellectual property acts complementarily, as it is these very same multinational companies who make up the majority of those requesting and obtaining the obtentor rights in our own countries.
In short, despite the fact that the introduction of intellection property regimes is a very powerful instrument, and one that the majority of countries is in the process of implementing, they also lead to many problems: the wide majority of Southern countries accept them as part of a negotiation package (believing to have negotiated to yield this in return for other aspects that benefit them, which in any case have not been fulfilled) but with a relative degree of awareness that they will not benefit from them. There are even UNCTAD reports warning of the disadvantages of patent systems for the South. At the same time, the opposition and condemnation of many civil society organizations against such agreements has been and continues to be extensive. Nevertheless it continues to be the most powerful international “legal” instrument to impose intellectual property systems, but one that lacks legitimacy at many levels.
For this reason, other international agreements negotiated in the same periods, though seen to be less negative, went on to play an important role in legalizing and above all legitimising biopiracy. In this sense of legalization, and disguising reality, the UN Convention on Biological Diversity (CBD) plays a noteworthy role, despite the fact that the US considers it sufficiently “dangerous” never to have ratified it.
The Convention on Biological Diversity, sovereignty and the benefit-sharing discourse
The CBD, in effect since 1993 after being ratified by 168 countries, has among its objectives the conservation of biological diversity, the sustained use of its components, and the fair and equal participation of the benefits obtained through its use. As part of this it includes the transferral of relevant technologies “taking into account all rights on these resources and technologies”.
Among the most significant clauses relevant to the subject of this article, it is established that States have sovereignty over their genetic resources, but that they must establish “adequate access” to them (Article 15). Article 8 (j) establishes that “subject to its national legislation”, the same State will “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”.
The fact of establishing that countries have “sovereignty” over the genetic resources that exist within their territory is presented as a success for third world countries, as if it were a fair revindication. Paradoxically, it can also work the other way round, for two basic reasons.
The first is that through the journeys of the first conquerors, and more recently of other travellers, scientists and botanical gardens, the largest part of “ex-situ” genetic resources (ie collections outside their place of origin), are found within institutions from Northern countries, in germplasm banks of agricultural varieties as well as in botanical gardens, aquariums, zoos and microbial collections. When the CBD declares that countries have sovereignty over the genetic resources in their territory, it automatically passes the control of resources originating from the South collected before its signature in 1993, to the Northern countries that hold them within their territory, allowing them to be sold, patented etc. Territory even continues to be “sovereign” until the moment in which each country ratifies the CBD. This fact is significant as although 83% of “in-situ” biodiversity and associated knowledge is found in Africa, Asia and Latin America, 75% of “ex-situ” resources and technology is found in countries in the North. This is not the result of the Northern countries having catalogued and collected their own resources, as in fact the large majority of the resources they hold come from the South and were collected before the CBD.
A second but equally relevant subject, is that the sovereignty of resources historically conserved, guarded and developed by indigenous peoples, peasant and fishing and other communities, is transferred to States. These same States have been instrumental in the legal and even warlike plundering of the cultural, economic, social, land and territory rights of these same peoples and communities. Moreover, States’ boundaries do not always coincide with the geographical location of indigenous peoples (which can be several within one State and/or extend to other States) and this means that the State is attributed with the right to trade resources and knowledge that form part of the heritage of an ethnic group that could at the same time be found in several other countries.
In the same way, although Article 8 (j) apparently recognizes the fundamental contribution and the right of these actors to resources and knowledge, they are conditioned to national legislation (once again within these same States), and establishes the term “community” instead of “people”, the collective term recognized by the indigenous people themselves. This is important, as one (or several) communities can thus act as partners in bioprospection contracts, or grant any other kind of access, to resources that do not belong solely to their community or communities, but in fact form part of the collective heritage of indigenous peoples, which as already mentioned, can be found in many other zones or countries.
In this current context, and in the face of ever more public debates on biopiracy, access laws become the panacea or miracle cure to avoid “robbery”. However they only join forces with the ensemble of regulations that companies need to continue carrying out (now “legally”) their work of looting and privatising collective and public resources. Suffice it to say that no country in the North is discussing access laws to its own genetic resources, and that in fact the proposals for this kind of law are fundamentally based in countries with greater biological and cultural diversity – in the South.
In the 1990s, the so-called bioprospection contracts started, which claimed to be fulfilling the terms of the CBD. Some multinational companies incorporated concepts of consultation, legal access and “benefit-sharing”. Among the best-known early agreements (prior to the CBD, but while it was being discussed) is that of Merck with the National Institute for Biodiversity (INBio), a private entity in Costa Rica. INBio promised to hand over 10,000 plant samples from the country, in exchange for $1,135,000, some instruments, training and the payment of a percentage of royalties (the amount is confidential) in the case that some pharmaceutical were to be found from the samples given. The contract drawn up between Shaman Pharmaceuticals and an indigenous settlement from the Amazonian jungle in Ecuador was also “innovative”; the company agreed to provide some infrastructure improvements and a percentage of future royalties in exchange for obtaining samples and the knowledge about the uses of plants from the region. In both cases the blessing of authorities in the countries involved was given.
Other multinationals took up the example, with some variations, and started to apply similar schemes for involving indigenous communities and/or research centres or local universities, in exchange for some kind of “benefit-sharing”. In this way they managed to obtain knowledge as well as plant, micro-organism, insect and other samples more easily and with a greater information yield than any other way, which not only would have cost them more, but could never even have been achieved. In addition, they got legal coverage in countries where they were drawing up this kind of contract.
In any case, the scheme of plundering resources is the same, and for this reason we could suggest calling this kind of bioprospector “corsairs” instead of “pirates”.
In the era of piracy on the high seas, the English crown gave out looting permits to other vessels that plundered in favour of the crown. These were known as corsairs; they did the same as other pirates, but with the permission of authorities, to whom they were then required to account for all their earnings. In this way the famous pirate known across the world as Drake became called Sir Francis Drake in England, and became a “respectable” person.
One of the more refined ways of facilitating this kind of “legalized” agreement was constituted by the International Cooperative Biodiversity Group (ICBG). The ICBG’s programmes are managed by a consortium of federal US government agencies, including the National Health Institutes, the National Science Foundation and the United States Department of Agriculture (USDA). It grants donations to public and private research institutions that have bioprospection/biopiracy programmes in Southern countries. According the ICBG itself, its goals are the promotion of the discovery of pharmaceuticals derived from natural resources, the conservation of biodiversity and sustained economic growth in developing countries. They have drawn up a series of guidelines on the need to obtain consent from communities and local authorities and to establish ways of “fair share” of benefits.
The typical structure of the ICBG is that host groups that receive donations are made up of a) US universities and/or botanical gardens (who are always the project coordinators and those who receive all the information and project materials); b) universities or research centres in the country where the bioprospection is to be carried out; c) in some cases international NGOs (WWF and Conservation International, denounced for their biopiracy activities in many countries); and d) a commercial partner, generally pharmaceutical or agro business multinationals. Glaxo-Wellcome, Bristol Myers Squibb, Shaman Pharmaceuticals, Dow Elanco Agrosciences, Wyeth-Ayerst, American Cyanamid, Monsanto have all participated in ICBG projects.
The operating structure of several of these projects has incorporated indigenous groups locally, through a national research institute of international conservationist NGO. Such groups provide their knowledge and facilitate the collection of samples, are promised future compensation as a modest form of reward, and in some cases are given the chance to be owners of the patents, which they then license out to third-parties. This is one of the most negative impacts, as it introduces elements that are completely external and harmful to their own cultures.
In this way the ICBG use public money to subsidize multinational companies, adopting altruistic language about the search for medicines for all humanity and the cultural rescue of indigenous peoples. The results obtained cost them far less than what the National Health or Cancer Institutes and others spent previously in carrying out these “bioprospection” activities for themselves. Results are left with the US university partners and the enormous majority of the economic benefits stay with those companies that participate in the projects.
The business context
As the genetic resources and knowledge associated to them make up the fundamental raw material of the industry applied to the health and food sectors, among others, it is important to be able to recognise those that manages and dominates these markets.
According to ETC Group research, information available for 2001 shows that:
· The 10 biggest pharmaceutical companies control approximately 48% of the value of the world market, calculated to be $317 billion.
· The 10 biggest veterinary pharmaceutical companies control 60% of the value of this market, which amounts to $13.6 billion.
· The 10 biggest seed companies control 30% of the commercial seed market, amounting to $24 billion.
· The transgenic seed of one single company (Monsanto, now property of Pharmacia) was used in 94% of the total area sown with transgenic crops in 2000.
· The 10 biggest agrochemical corporations control 84% of the market value of agrochemicals, calculated at $30 billion.
· The 32 main supermarket chains control 34% of the global market of foodstuff distribution, with an estimated value of $2.8 trillion. Of these 32, only 10 control 54% of the sales total, with a value of $513.7 billion.
One of the most relevant pieces of information is that the main companies of each heading simultaneously participate in several of the others, in this way constituting true genetic giants (see the following table). The number indicates the positioning of main companies in the sector on an international scale.
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