Increasingly, the term 'biopiracy' is being used to describe the exploitation and appropriation of biological and genetic resources and/or associated (traditional) knowledge without the approval or consent of their holders, and without adequate compensation.
Box 4 The turmeric patent
In March 1995, a United States patent on "Use of Turmeric in Wound Healing" was granted to the University of Mississippi Medical Center. The claim covered "a method of promoting healing of a wound by administering turmeric to a patient afflicted with the wound". However, in India, the wound-healing properties of turmeric powder are well-known, and have "been applied to the scrapes and cuts of generations of children"4.
4 Agarwall and Narain, 1996.
In 1996, the Council of Scientific and Industrial Research of India (CSIR) requested that the patent be revoked, on the basis that turmeric powder is widely known and used in India for its wound healing properties, and that a great deal of research has been carried out by Indian scientists that confirms the existence of these properties. Eventually, the patent was indeed revoked on the basis of lack of novelty. CSIR succeed in challenging the patent, because it was able to provide relevant scientific literature, including an ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association.
The appropriation of traditional (medicinal) knowledge and/or the related biological materials under western IPR by unauthorized parties has raised significant concerns, particularly in developing countries with a long tradition in traditional medicine. Those concerns have been generated by several cases of patenting -in developed countries- of plants, compounds or uses derived from traditional medicine, without fair compensation to those who have preserved and made available such knowledge. An example is the turmeric patent (see box 4)5. It is also not uncommon to find that researchers or companies claim intellectual property rights over biological resources and/or traditional knowledge, after slightly modifying or improving them, in order to meet the requirements of IPR laws. Examples of this include patents issued related to the neem tree, kava, barbasco and endod6.
5 Most countries apply the universal novelty requirement, which prevents the patentability of any information which belongs to the "prior art", that is, which has been published in a written form or has been made otherwise available to the public, for instance, through public use, in any country before the date of filing of a patent. However, some developed countries, including the US, apply lower standards for patentability, which can lead to this type of problems (see also box 13).
6 For more information, see for example "A Primer On Bioprospecting", SEARICE, October 1998 and "Out of Control", Rural Advancement Foundation International, occasional paper, 31/10/98.
Such practices, which are considered unfair by many, have raised a number of concerns and questions among developing countries' Governments as well as local communities, notably with regard to the options to protect their traditional knowledge and/or prevent such piracy, and with regard to the equitable sharing of benefits derived from this knowledge. It has equally highlighted the need to clarify the ownership of biological resources and associated knowledge.
Pharmaceutical companies have shown substantial interest in acquiring and developing traditional medicine(s), as illustrated by the experience of the Bioprospecting Program of the National Biodiversity Institute (INBio) in Costa Rica (see paragraph 8.1), since 'promising species' can provide important leads for the discovery of new drugs. In some cases, companies have obtained considerable benefits from the exploitation of traditional medicine; a frequently cited example is the development of the anti-cancer drugs vincristine and vinblastine from Madagascar's rosy periwinkle plant. The potential to patent derived products, in fact, provides an important incentive for pharmaceutical companies' interest in and development of traditional medicines, since it creates the possibility for benefits to accrue - and, thus, ultimately, for sharing such benefits. There are, however, some signs that companies' interest may be fading out, due in part to the prospects of newer methods of drug development; for instance, last year, one of the firms most active in exploring the use of traditional medicine reportedly abandoned its multimillion-dollar effort to develop new drugs on the basis of traditional ones.
Access and conservation
Sidestepping the question of whether or not the industry's interest is diminishing, there are broadly two ways to deal with bioprospecting/biopiracy: countries can attempt to prevent it, or to organize it. The latter option requires considerable efforts and investments in order to regulate and facilitate access and to negotiate credible agreements, in return for uncertain future benefits. The principal strategy for the alternative option -prevention of biopiracy- is publication of traditional knowledge7.
7 'Biopiracy' is usually understood as encompassing unauthorized use as well as misappropriation of biological resources and/or associated knowledge. Publication can prevent misappropriation (under IPR or otherwise), but cannot prevent -and, in fact, may even facilitate- unauthorized use.
It should also be borne in mind that many medicinal plants face extinction or severe genetic loss. Over-exploitation of such plants in order to satisfy industrial and/or export demands can aggravate these risks. Hence. Governments should regulate trade in medicinal plants, preferably within a broader policy framework dealing with conservation and sustainable use of genetic and biological resources.
Peru for example already experienced the near-extinction of 'cat's claw', one of the best-known medicinal plants in its indigenous pharmacopoeia, due to massive extraction by foreign pharmaceutical companies. In order to reverse this trend, Peru passed a law, in July 1999, which bans the non value-added export of some botanical species, including cat's claw.
Box 5 Cat's claw
Cat' claw is a jungle plant, whose hark contains substances which boost the human immunological system and which have been found to be effective against certain types of cancer.
While industrial or commercial access/use is likely to have an impact on conservation efforts, there also is a -different- link between traditional access/use and conservation: in order for traditional communities and individual healers to continue preserving biodiversity, it is important that they be allowed to continue to access and use (medicinal) plants; failure to ensure this will ultimately lead to erosion of their knowledge. Once this knowledge has vanished, plants become 'anonymous', lose value and -because of neglect- are at a higher risk of extinction8.
8 This is not to imply that all traditional access/use is necessarily sustainable, nor that commercial use per se implies non-sustainability; rather this generalization is meant to help pinpoint some of the complex interactions relevant to the topic discussed in this report. Ultimately, whether a particular use of biological resources is sustainable and compatible with conservation efforts, or not, will have to be evaluated on a case by case basis.