Bioprospecting is an umbrella term describing the process of discovery and commercialization of
new products based on biological resources.
- Bioprospecting often draws on indigenous knowledge about the uses and characteristics of plants and animals.
- Bioprospecting includes biopiracy.
- Biopiracy is a situation where indigenous knowledge of nature, originating with indigenous peoples, is used by others for profit, without permission from, and with little or no compensation or recognition to the indigenous people themselves.
- For example when bioprospectors draw on indigenous knowledge of medicinal plants which is later patented by medical companies without recognizing the fact that the knowledge is not new, or invented by the patentee, and depriving the indigenous community of the rights to commercial exploitation of the technology that they themselves had developed.
- These practices contribute to inequality between developing countries rich in biodiversity, and developed countries hosting companies that engage in ‘biopiracy’.
- A famous case of Bioprospecting is about patenting of neem and basmati rice. US-based pharmaceutical research firm received a patent on a technique to extract an antifungal agent from the neem tree which grows throughout India and Nepal. Indian villagers have long understood the tree’s medicinal value. Widespread public outcry echoed throughout the developing world. Legal action by the Indian government followed, with the patent eventually being overturned.
- US Corporation RiceTec attempted to certain patent hybrids of basmati rice. The Indian government intervened and several claims of the patent were invalidated.
- One common misunderstanding is that pharmaceutical companies patent the plants they collect. While obtaining a patent on a naturally occurring organism as previously known or used is not possible, patents may be taken out on specific chemicals isolated or developed from plants. Often these patents are obtained with a stated and researched the use of those chemicals. Generally, the existence, structure, and synthesis of those compounds are not a part of indigenous medical knowledge.
Convention on Biological Diversity (CBD)
- The CBD came into force in 1993. It secured rights to control access to genetic resources for the countries in which those resources are located. One objective of the CBD is to enable lesser-developed countries to better benefit from their resources and traditional knowledge. Under the rules of the CBD, bioprospectors are required to obtain informed consent to access such resources and must share any benefits with the biodiversity-rich country.
- However, some critics believe that the CBD has failed to establish appropriate regulations to prevent biopiracy. Others claim that the main problem is the failure of national governments to pass appropriate laws implementing the provisions of the CBD.
- The Nagoya Protocol to the CBD (negotiated in 2010, expected to come into force in 2014) will provide further regulations. The CBD has been ratified by all countries in the world except the USA.
- The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) is further a relevant agreement.
The ethical debate has sparked a new branch of international patent and trade law-
Bioprospecting contracts lay down the rules, between researchers and countries, of benefit sharing
and can bring royalties to lesser-developed countries. However, the fairness of these contracts has
been a subject of debate. Unethical Bioprospecting contracts (distinct from ethical ones) can be
viewed as a new form of biopiracy.
In response to concerns of biopiracy raised by research into turmeric, neem, and basmati rice,
the Government of India has been translating and publishing ancient manuscripts containing old
remedies in electronic form, and in 2001 the Traditional Knowledge Digital Library was set up as a
repository of 1200 formulations of various systems of Indian medicine, such as Ayurveda, Unani and
Siddha.
The aim is to protect India’s heritage from being exploited by foreign companies. Hundreds of
yoga poses are also kept in the collection.
The library has also signed agreements with leading international patent offices such as
European Patent Office (EPO), United Kingdom Trademark & Patent Office (UKPTO), and the United
States Patent and Trademark Office to protect traditional knowledge from biopiracy as it allows
patent examiners at International Patent Offices to access TKDL databases for patent search and
examination purposes.
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The manipulative nature and destabilizing effects of patents, IPRs, and agro-business conglomerates
in the context of rural India-
- Agriculture is the primary source of livelihood for some 70% of Indians. Considering the fact that only 1% of Americans and 2-3% of Europeans derive their livelihood from agriculture, this is a huge level of dependence.
- From the time of independence in 1947, up until the 1960s, agricultural development was not a major focus of public debate.
- Only with the threat of famine in 1961 and severe droughts in 1965 and 1966, did officials recognize the agricultural hardships that plagued rural populations.
- These hardships provided a justification for both the World Bank and the US to enter India with the promise of “miracle seeds”, assistance, and price incentives.
- These “miracle seeds” were actually hybrid seeds, and resulted in huge yields of food grains. Indeed, the Green Revolution had entered India, and with it came an entirely new concept: non-organic farming.
- During the late 1960s, debates focused on finding an appropriate balance between rural agriculture and India’s desire to develop and industrialize at a steady pace.
- The Patent Act 1970 was hailed as a fair balance between investor and consumer interests, as it promoted industrial growth in an unrestrictive manner. Plants and animals were restricted so that they could not be patented, moreover, food products, chemical inventions, and drugs were eligible for only process patents. Patients were deemed to be valid for 7 years after their date of application.
- This all changed as India entered a new phase of economic liberalization, in the hopes of being embraced as a viable international trading partner.
In response to the balance of payment crisis, the New Economic Policy of 1991 (NEP 1991) introduced major changes in India. With an increased desire to ‘catch up to international economic powerhouses, deep-rooted industries such as the agricultural sector have been taken for granted since 1991.
The transition to the WTO from the GATT marks a crucial time when the rights and sovereignty of rural communities in developing countries were institutionally compromised. This has been accepted by officials as a consequence of increased international economic engagement. In comparison to the WTO, the GATT provided countries with far more freedom to develop and follow their own IPR laws. The GATT was not specific with regard to patent law. A key distinguishing factor of the WTO is the TRIPs agreement. In order for countries to be accepted as members of the WTO, they must adhere to all of its laws, including those of TRIPs. Thus, in order to be given clearance to join the WTO, countries had to amend any national patent law that contradicts TRIPs.
India signed into the WTO in 1995 and has since taken many steps forward to be fully embraced by the international community as an excellent trading partner.
A constant criticism of developing countries has been that they have taken far too long to adopt TRIPs. India’s sluggish TRIPs adoption process was criticized by the U.S, which took action by notifying the WTO. In 1998 the WTO publicly ruled that India’s failure to fully amend its patent law was in violation of TRIPs, and was overall illegal. In response to such criticisms, the Indian government has undergone multiple IPR legislative changes. Exclusionary clauses of product patents in areas of food, drugs, and medicine were removed and allow for the patenting of life forms, living organism derivatives, gene patents, and components.
National IPR law had to also be changed to allow for patents to be valid for 20 years. India’s desire to become a member of the WTO has come at a very high price: its legislative sovereignty. However, this loss of autonomy has meant a gain for some, namely the U.S. TRIPs has essentially globalized the American understanding of IPR law. The innovations and seed developments of rural India were once priceless – this is no longer the case. As, in the words of Vandana Shiva, both conglomerates and TRIPs are “not just for new inventions but for the knowledge of our grandmothers”.
The Case of Basmati Rice
Basmati rice, known for its aroma and long grains has its origins in the Indian subcontinent. Basmati means “queen of fragrance” and “fragrant Earth” is embedded in Indian folklore and religious practices, in which they often symbolize growth. With an embedded history and economic ties to specific regions, it is interesting how an agro-business conglomerate could ever mistakenly question the origins of Basmati.
Biopiracy “refers to the use of intellectual property systems to legitimize the exclusive ownership and control over biological resources and biological products and processes that have been used over centuries in non-industrialized culture”. In 1997, Texas-based RiceTec Inc. was granted a patent for the genetic lines of Basmati rice, by the U.S Patent and Trademark Office(USPTO). Immediately, RiceTec began to develop hybrids using various blends of Basmati. Promoted as an ‘American type of Basmati rice, RiceTec developed a new plant variety cross between American long-grain and Basmati.
Criticism from Indian rice farmers logically ensued, as many were forced to pay royalties to the conglomerate. Indian officials publicly pleaded with USPTO to review the RiceTec Basmati case, as Indian exports were beginning to be threatened. Moreover, the use of the name ‘Basmati’ itself was misleading for customers considering that the product was a hybrid grain.
The name ‘Basmati’ carries with it a reputation for culinary excellence, and RiceTec was benefiting from it. Under Article 23 of the TRIPs agreement, using words such as “kind”, “type”, and “style” is illegal, and RiceTec had used such words numerous times.
Moreover, considering the geographical indicators clause of TRIPs, the entire process of approval and acquisition of RiceTec’s Basmati patent can be deemed to be illegal. Article 22 of the TRIPs agreement, (the geographical indicator clause) prohibits the use of both direct and indirect uses of a goods geographical origin.
- In this respect, Basmati is to India what Champagne is to France, part of the regional identity.
- Finally, RiceTec lost the right to use the ‘Basmati-like’ advertising slogan
- RiceTec was able to keep their Indian-American hybrids Texmati, Jasmati and Kismat
- Overall, the most appalling aspect of this infamous case is not the manipulative nature of RiceTec. Rather it is the lack of immediate government response. As previously stated, officials only became concerned after Basmati exports were felt to be in jeopardy.
Basmati Biopiracy
- RiceTec’s Basmati patent is a case of resource piracy as a natural resource (Basmati rice) was taken from a specific country without any sort of granted permission or public recognition.
- It is a case of economic piracy as RiceTec used the term ‘Basmati’, to advertise their hybrid rice, in the hopes of appealing to customers looking for an aromatic product similar to the original Basmati.
- Finally, it was a case of both intellectual and cultural piracy as RiceTec through its acquisition of Basmati, patented a key heritage piece of rice-producing rural communities without permission.
- It is clear that the TRIPs agreement promotes a rather unfair, biased one-sided pro-West framework. Developing countries like India have the choice of either conforming, and as result turning the blind eye to their population, or being blacklisted from international organizations.
- The severity of RiceTec’s biopiracy cannot be underestimated, as the conglomerate was claiming to have invented the physical characteristics of Basmati such as the plant height and grain length.
- By claiming ownership of the rice plant itself, RiceTec was directly threatening rural farming communities. Throughout centuries of development, Indian farmers have produced some 200,000 varieties of rice.
- Therefore, if RiceTec were to own the Basmati rice plant itself the autonomy and ability of farmers to engage in common sharing techniques, (a fundamental of rural communities), would be compromised. To the dismay of farmers, in the eyes of both IPR law and the TRIPs agreement, it would be considered illegal to share cultivation techniques.
- For rural farmers, patents stand to compromise what is known as ‘the commons.
- Agricultural knowledge and cultivation techniques passed down from older generations carry with them inherent seed adaptations and innovations
- The ability to work the land and use the surrounding environment is compromised for monopolistic like conglomerate seed promotion. Biodiversity is inherently threatened, as farmers no longer have the right to freely work their crops. Moreover, agro-business conglomerates have no real responsibility to ensure that farmers from developing countries are taken care of “Equitable benefit sharing” as envisioned by the UN Convention for Biological Diversity (CBD) has been permanently undermined.
- Taking place in 1992, in Rio de Janeiro the CBD advocates for conservation, sharing, and state sovereignty over resources promoted primarily by developing countries like India, the CBD attempts to integrate and protect indigenous traditional knowledge. Concretely, the CBD called for the sovereign rights of rural resources. The fact that the CBD is a framework and not legally binding per se.
The Case of BT Cotton
Prior to colonization, cotton was traded in the Indus Valley as mainly a Luxury good. It was only in the 19th century, after colonization that cotton cultivation followed a more mass production. Cotton production is a staple of the Indian agricultural economy. Overall 21% of all cotton produced globally comes from India. However, cotton is a very expensive crop to cultivate. Over half of India’s total pesticides (40,000 tonnes) are used in the upkeep of cotton cropland. The prices of inputs such as pesticides have continued to increase. For agro-business conglomerates, the related expenses of cotton production are the ideal platform to sell, innovate, and develop their seed monopolies.
Conglomerates have taken advantage of the hardships associated with cotton production, and in the context of India, uneducated desperate rural communities who are merely looking to improve their standards of living are at their mercy. Monsanto developed BT cotton in 1995; the plant was genetically engineered to include insecticide to fight the common bollworm.
The seed includes toxins, which Monsanto alleges will reduce costs for farmers. In 1998 Monsanto began a series of BT cotton trial tests in India, albeit illegally Monsanto did not apply for trial testing clearance, and was not given any sort of formal approval to conduct studies on rural land. After going public with the results of their trial tests, Monsanto promoted BT cotton as the perfect cost-cutting crop for rural India. It was claimed that yield output would increase. With promises of higher yields and lower costs, the Indian government officially approved three BT cotton hybrids
This clearance was given to Monsanto in conjunction with the Maharashtra Hybrid Seed Company (Mahyco), which conveniently enough, Monsanto has a stake in BT cotton was the first GM seed to be given clearance by the Indian government and is now viewed as an example of how agro-business conglomerates impact vulnerable rural communities.
Firstly, it was discovered that in reality bollworm pests attacked BT crops far more often than compared simple hybrid and organic cotton crops.
Secondly, the claim of a higher yield per acre was never realized. All farmers incur the financial cost of the actual seed. This is significant considering that Bt cotton seeds are approximately four times more expensive than both organic and hybrid seeds. Also, with the purchase of the BT seed farmers must give up the right to harvest their own seed, which they have evolved over the years. This is why BT cotton is especially debilitating, by giving up their indigenous cottonseed; the farmer becomes locked into a cycle of agro-business conglomerate dependence.
BT cotton cropland is sprayed many times due to increased bollworm resistance. Such an increased level of chemical use has killed off many natural ‘enemies’ of bollworm pests. Moreover, such a high level of bollworm resistance has allowed for other pests to increasingly attack BT cotton fields. The BT pesticide does not have the genetic characteristics to effectively fight off these pests. Thus, farmers are forced to purchase inputs in the form of pesticides, herbicides, and insecticides on a continuous basis. BT cotton has developed a cyclical purchasing scheme where farmers constantly have to salvage their crops through inputs. This ha
s put the majority of BT cotton farmers in debt, as they cannot afford the endless array of necessary inputs. If they do not upkeep their crop, their livelihood is threatened, resulting in greater poverty and conglomerate dependence. With the interest rate of loans between 36% and 50%, farmers in these communities are increasingly becoming indebted. These loans are not coming from officials; rather they are from private rural lenders and agro-business conglomerates.
Non-GM seeds need approximately 3,000 liters of water to produce one kilo of the crop, anything else (including BT seed) needs at least 5,000 liters of water to produce one kilo. AP often suffers from drought, and as a result, BT cotton crops within the state have caused massive destabilization. All three approved BT cotton varieties have not been able to survive and overcome the extreme nature of AP droughts.
Farmer suicides in AP have increased after BT cotton was both approved and promoted by governing officials. The financial stress associated with BT cotton has indeed been grave. A similar trend is visible in Maharashtra. There exists a large population of rural farmers who are experiencing problems with BT cotton crop, due to their reliance on natural rainfall. Rural farmers have experienced a “deskilling” of cultivation techniques, which carries with it severe social and ecological consequences.
The cultural importance of knowledge sharing is being lost to scientific IPRs. Due to the rule-based scientific formula techniques of cultivation associated with GM seeds like BT cotton farmers can no longer work their land. Through massive debts and depression, GM seeds such as BT cotton have increased levels of rural bankruptcy and suicide.
The case of BT Brinjal
Mahyco, BT Brinjal promoter, could be in for more trouble than just the long-standing moratorium on its product. The case for criminal prosecution of the company officials for biopiracy has been revived by the Karnataka High Court.
The National Biodiversity Board (NBA) and the Karnataka Biodiversity Board (KBB) filed the case for criminal prosecution of Mahyco or Maharashtra Hybrid Seeds Co Limited, which is partly owned by Monsanto. The authorities complained in 2012 that the company, along with others, had genetically modified local varieties of eggplant without mandatory approval and laid illegal proprietary claim to the genetically modified seeds.
BT Brinjal possibly violating the Biodiversity Act 2002
- 2010 when the controversy over the commercial release of BTBrinjal hit the headlines. But the authorities dithered for two years even after investigating and concluding that there was a clear case of biopiracy.
- It was only when a PIL was filed in the Karnataka High Court in 2012 that the authorities finally filed charges against the accused.
