In recent decades, the emergence of a confluence of factors has made the relationship between intellectual property rights, indigenous knowledge and biological resource extraction the subject of extremely heated debate. First, the international community began giving more serious attention to environmental issues, exemplified most prominently in the culmination of the 1992 UN Conference on Environment and Development (the Rio Summit) and its related Conventions. The year also marked the quincentenary of the Old World/New World encounter, and indigenous people in the Western Hemisphere, and elsewhere, had by this point engaged a heightened sense of agency reflected by increased activism and assertiveness in both national and global contexts. Third, during the 1980s and 1990s, neoliberal ideologies and practices favoring the rapid expansion and deepening of capitalism and free markets gained worldwide dominance. The sales pitch of neoliberal architects assured that the policies they proposed were the only efficient and practical way of solving social, economic and environmental problems.[i] Finally, intellectual property rights and patenting biochemical and genetic material became pressing issues with the rise and growth of the biotechnology industry. A series of developments in biotech companies—an increasingly expiring reserve of patents, technological innovations and increased competition—made bioprospecting an attractive option as a compliment (or substitute) to product development through synthetic chemistry, particularly in the field of medical discovery.

“The value of biological resources has grown because of a shrinking supply and an increased demand. The supply has shrunk primarily because of tropical deforestation and agricultural intensification in regions of great biological diversity (Olfield 1984). Demand has grown with the rise of biotechnology and its ability to assess, access, and use genetic material.”[ii] It is also at this time that “biodiversity” discourses gains legitimacy and currency among environmental, development and corporate circles. The term was coined in 1986, but was more solidly defined and promoted through the Conventions of the Rio Summit. Significantly, biodiversity came to be articulated as a productive resource that should be conserved.[iii] Biotech companies, especially pharmaceutical corporations, spurred by the aforementioned reasons, began focusing on (and investing in) bioprospecting projects.

“Bioprospecting” refers to the collection of biological matter and indigenous knowledge thereof from biodiverse-rich regions by corporations for the purpose of extracting genetic or biochemical resources that have a profitable commercial application.[iv] Generally, knowledgeable locals—namely, peasants and indigenous peoples—either work as contracted plant collectors or as guides and aids to those contracted by bioprospecting projects. Bioprospecting often depends on indigenous peoples’ knowledge of their ecosystems to narrow the plant species that companies screen for potentially valuable properties: 1 in 4 prescription drugs derive from plants, but there is only a 1 in 10,000 chance that a plant will lead to an effective drug.[v] According to the U.S. National Institutes of Health (NIH), consultation with indigenous peoples doubles the success rate of finding plants with commercially applicable properties. An ethnobotanist’s study published in 1990 estimated that the annual world market for medicines derived from medicinal plants discovered from indigenous peoples was $43 billion. However, “less than 0.001% of the profits from drugs that originated from traditional medicine have ever gone to the indigenous peoples who led researchers to them.”[vi]

The 1992 UN Convention on Biological Diversity (CDB), which came out of the Rio Summit process, was profoundly “influential in reshaping the global topographies of rights and obligations that mark this contentious terrain of appropriation and exploration [associated with bioprospecting].”[vii] The implications of this Convention are far from certain; it has been called a “living” and “much-contested” document, and it has raised as many questions as it tried to answer. The CDB was the “first international environmental treaty to tackle the issue of intellectual property and the need to ensure the equitable use and sharing of biodiversity.”[viii] For example, it requires that corporations involved in bioprospecting compensate developing countries in exchange for continued access to biological resources. Article 8(j) of the CDB stipulates:

Each Contracting Party shall, as far as possible and as appropriate…. Subject to its national legislation, 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.[ix]

Signatories to the CDB “formalized a multilateral commitment to three basic interrelated principles: biodiversity conservation, sustainable development, and, significantly, the distribution of biodiversity-based industry profits to Southern ‘stewards” of genetic resources.”[x] Significantly, the CDB also granted status to biological resources as goods to which nations have sovereignty, as opposed to the “international commons” under which these resources were previously assumed to pertain. But, as Cori Hayden notes, one of the most profound shifts that the CDB engendered was the management of biodiversity as intellectual property, because “it banks on biotechnology and intellectual property as key engines for valorizing biodiversity—and thus indispensable in promoting conservation and nondestructive, sustainable development.”

The CDB is not alone in this endeavor: international trade agreements and fora, and domestic national laws have all increasingly “formalized the management (and traffic in) biodiversity as a question of intellectual property rights.” This qualitative shift is being internalized by developing countries, which is where biodiversity is largely concentrated, through trade agreements and membership in the World Trade Organization (WTO). In 1993, a year after the passage of the CBD, the GATT/WTO concluded negotiations on Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. TRIPS provisions require WTO member states to provide and enforce patent protections through domestic legislation for both foreign and domestic entities on all kinds of technology, including patents on “microorganisms and patent-like protection on plant varieties.”

Before the CDB and the TRIPS agreement (and presumably afterwards), companies freely trafficked biological material without any compensation to the nation or community of origin—economic, technological or otherwise. It was a classical neocolonial one-way extractive relationship. Moreover, these companies then sold back a finished product, under monopoly conditions granted through patents. These companies explicitly or implicitly operated under the assumption that the knowledge utilized to identify and/or elaborate this biological material into an entity with an economic value as well as the material itself constituted part of the “international commons.” Their logic seemingly concluded that it was only the expression of this knowledge and their manipulation of it in the form of the finished product, as a drug, a lotion or a genetically modified plague-resistant crop, etc. that merited the classification of exclusive property under a patent regime. In the words of Jack Kloppenburg:

Genetic and cultural information has been produced and reproduced over the millennia by peasants and indigenous people. Yet, like the unwaged labor of women, the fruits of this work are given no value despite their recognized utility. On the other hand, when such information is processed and transformed in developed nations, the realization of its value is enforced by legal and political mandate.[xi]

Kloppenburg’s pointed statement outlines one of the basic arguments against the extraction and commercialization of biological resources and indigenous knowledge by bioprospecting, called “biopiracy” by some of its critics. Detractors and supporters of prospecting are a diverse group that can’t be neatly identified on either side of the issue. They frequently represent oppositional stances over a subset of issues and allies on others within the broader debate. They often make contradictory judgments and assertions, and at times emphasize contradictory values, in both defining the problem and in the solutions they propose. To say the least, alliances among these groups—corporations, academics, government representatives, human rights and indigenous activists, NGOs, UN bodies and other international fora—are tenuous and fluid.

In general terms, critics contend that bioprospecting, and the unequal allocation of benefits it entails, only reproduces and exacerbates the historic exploitation of indigenous groups and their natural resources, deepening north-south disparities between developed and developing countries, further marginalizing indigenous groups therein. Critics argue that rather than conserving biodiversity, the extraction of biogenetic resources will follow the path of environmental, social and cultural degradation unleashed by other extractive industries in biodiverse regions—e.g. mining and logging. They further add that bioprospecting threatens indigenous groups’ cultural preservation by, among other things, eroding indigenous conceptions of collective property as well as neglecting and undermining their cultural and religious belief systems. Critics say prospecting perpetuates ethnocentrism by disregarding that the ecosystems sustaining indigenous populations are themselves frequently instilled by these groups with cultural meaning, leading to misperceptions of indigenous beliefs as “backward” and “uncivilized.” Finally, they say the subordinate social and economic position of indigenous groups worldwide prevents them from critically engaging the process, preventing “participation,” “inclusion,” “compensation” and “self-determination.”

Faced with corporate appropriation of indigenous knowledge and resources, seeral advocates for indigenous rights have called for indigenous peoples to patent their knowledge and biogenetic resources. But in addition to the cultural chauvinism implied in failing to credit the role of indigenous innovation—in medicinal discovery, for instance—indigenous groups also face histories of colonialism and oppression and their continued economic, political and social marginalization, which precludes them from gaining the access and resources needed to establish and maintain intellectual property rights.

Corporate “innovation” is infinitely more likely to be recognized and enforced in the form of a patent than is the stewardship or innovation of a Southern indigenous community; it has been difficult for many developing countries to amass the scientific and technological infrastructure needed to produce the patentable modifications of genetic material that large transnational companies and highly capitalized biotechnology firms frequently manage.[xii]

Notably absent from critiques of prospecting, are calls for biodiversity and indigenous knowledge to remain in the public domain as well as serious questioning of indigenous peoples’ inherent “ownership” of their biogenetic surroundings. Global Exchange, a U.S.-based activist NGO, for example, states, “[Bioprospecting] does not recognize, respect or adequately compensate the rightful owners of the life forms appropriated or the traditional knowledge related to their propagation, use and commercial benefit” (emphasis added). The implication seems to be that indigenous peoples should be automatically afforded ownership rights due to the depth and length of their engagement with their natural surroundings. Indeed, no one doubts indigenous groups possess a vast wealth of biological knowledge unique to their experience. And there is also general consensus that they should be compensated for the sharing of this knowledge. Indigenous advocates contend that the survival of their culture and their environment (biodiversity) depends on the preservation of this unique experience. This is an argument, as we shall see, posed by almost every “stakeholder” in the bioprospecting debate, including corporations, to further their respective agenda.

Despite the fact that some activist and indigenous groups reject the patenting of life forms as “anathema” to indigenous cultural values (let’s leave aside the monolithic category of “indigenous values” for the moment), many of them are increasingly asking: shouldn’t we, who have identified and elaborated the knowledge and utility of these biological resources, be entitled to the same protections given to corporations? And, secondly, shouldn’t we benefit from the material compensation that these protections create, if we so choose to? Intellectual property rights—patents, copyright, trademarks and trade secrets—are increasingly being seen by academics, activists, NGOs, international bodies and some indigenous groups as a way for indigenous peoples to gain control over the use and dissemination of their knowledge and biogenetic resources.

Interestingly, groups that agree with this strategy are essentially arguing that fairness, human rights, indigenous rights, and environmental and cultural conservation are all values that can be maintained and promoted through the market-mediated mechanism of intellectual property, i.e. the commoditization of biodiversity and indigenous knowledge through patenting. As anthropologist Stephen Brush notes, “Ironically, proponents of these rights seek to address problems caused in part by the expansion of capitalism by employing a tool of capitalism. The idea that more capitalism is needed to cure its own problems is certainly not novel, but one that anthropologists and indigenous people should approach with caution.”[xiii]

This not only confers biological resources with productive value, but also as resources “with new kinds of claimants attached”—an acknowledgement that is on occasion even tacitly recognized by corporations.[xiv] The tangible outcome of this acknowledgement is best exemplified in the creation of corporate-funded bioprospecting contracts, which fund teams (often from universities) that work with local communities to identify and screen potentially profitable biological resources. The architects of these projects highlight the “mutual” benefit for all parties involved: “fair” compensation, social and economic development, conservation of biodiversity, profits, medicinal discovery, economic development and cultural preservation.

Once biodiversity was taken out of the “public domain” and put under management of nations by the CDB, bioprospecting contracts, from complex multi-institutional arrangements to bilateral agreements, became the focus of deserved attention from corporations, governments, academe, NGOs and activists. The CDB provided “an idiom of expectation and an institutional framework that together have had some notable effects on the south-north traffic in biological resources.”[xv] Although predating the CBD by a year, the Costa Rican government through its biodiversity agency, INBio, cut one of the most famous bioprospecting deals with Merck, the pharmaceutical giant. Under the deal, Merck pays a $1 million a year for exclusive access to specimens collected by INBio-trained and -contracted collectors and ensures INBio a percentage of royalties. INBio uses the money to fund conservation projects and a massive “taxonomic enterprise.”

The most notorious “benefit-sharing” bioprospecting contracts are supported by the U.S. inter-agency International Cooperative Biodiversity Group Program (ICBG) under the auspices of the National Institute of Health (NIH), the National Science Foundation and, for a stint, the Agency for International Development (USAID). ICBG “targeted U.S.-based academic researchers who would orchestrate collaborations with developing country researchers and communities, on the one hand, and appropriate ‘industrial outlets’ (drug or biotechnology companies” (see figure below).[xvi]

ICBG-sponsored contracts, for example, allow “communities” a share in royalties (in the cases consulted, this usually amounted to 1-5%), though it can take 20 years for a product to take shape, the funds are then channeled to a locally managed NGO set up by the contract to distribute the funds, with community involvement, into local social and economic development projects. It is important to note that the entire relationship remains firmly embedded within neoliberal ideologies and practices.

Bioprospecting contracts offer a view on a particularly pointed, double-edged sword of participation, one that is framed as a question of both rights and obligations, reward and incentive. Indeed, bioprospecting is…not primarily a mechanism for promoting social justice but, rather, it is framed first and foremost as an incentive structure…. In this vein, the goal of prospecting agreements is to turn often-conflicting parties—developing nations, indigenous or local communities, the pharmaceutical and agrochemical industries—into mutually dependent “investors,” by actively producing one piece of shared ground: that each has something tangible to gain from the sustainable management of biodiversity.[xvii]

It is in this way that almost every market and non-market value cited to discredit bioprospecting—fairness, compensation, cultural preservation, biodiversity conservation, food security, public health—are the same ones used by bioprospectors to justify and give credence to their endeavor. Thus, it becomes evident that even a system that purportedly seeks a balance between market and non-market values generates even more questions: How is “ownership” of biogenetic material determined? Who constitutes a “local community” or an “indigenous group”? What is an equitable arrangement? How would such a system militate against creating new forms of exclusion and inequality? What role, if any, should the state assume? These questions have no simple answers.

Notes:

[i] Cori Hayden, referencing Aihwa Ong, in When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 48.

[ii] Stephen B. Brush, “Indigenous Knowledge of Biological resources and Intellectual Property Rights: The Role of Anthropology,” American Anthropologist, New Series, Vol. 95, No. 3 (September, 1993), pp. 653-671, p. 658.

[iii] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 63.

[iv] The definition is my amalgamation of various incomplete definitions offered in the literature consulted.

[v] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 55.

[vi] Darrell Posey, “Intellectual Property Rights and Just Compensation for Indigenous Knowledge,” Anthropology Today, Vol. 6, No. 4 (August, 1990), pp. 13-16, p. 15.

[vii] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 1.

[viii] Tony Simpson, Indigenous Heritage and Self-Determination: The Cultural and Intellectual Property Rights of Indigenous Peoples (Copenhagen: International Work Group on Indigenous Affairs, 1997) p. 92.

[ix] http://www.biodiv.org/convention/articles.asp

[x] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 63

[xi] Jack Kloppenburg, “No Hunting! Biodiversity, Indigenous Rights, and Scientific Poaching,” Cultural Survival Quarterly (Summer) 1991, pp.14-18, p. 16, quoted in Hayden 2003, p. 19

[xii] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 62.

[xiii] Stephen B. Brush, “Indigenous Knowledge of Biological resources and Intellectual Property Rights: The Role of Anthropology,” American Anthropologist, New Series, Vol. 95, No. 3 (September, 1993), pp. 653-671, p. 666.

[xiv] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 65.

[xv] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 2.

[xvi] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 68.

[xvii] Cori Hayden, When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico (Princeton: Princeton University Press, 2003) p. 60.