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Abstract

This entry explores the ethical meanings of the concept of biopiracy, linked to topics such as intellectual property rights on genetic resources, bioprospecting, traditional knowledge, right to food, and food policy. It highlights the critical function of biopiracy related to worldwide tendencies: privatization and techniﬁcation.

Introduction

Biopiracy is an imprecise neologism. This lack of speciﬁcity far from being a defect is one of its most interesting features because it allows for multiple uses in different types of discourse; but above all it allows the biopiracy concept to transmit a critical message very effectively. In this regard, the strategic vagueness of the biopiracy concept makes it suitable for ethical reﬂections on the fairness of certain contemporary institutions and socioeconomic trends. For biopiracy to be signiﬁcant, it cannot be considered simply a matter of laws but of ethics and justice.

A description of the ethical meanings that the concept of biopiracy has acquired in two speciﬁc contexts (the economic and the legal) will be proposed. But ﬁrst it is necessary to provide some initial words about its origin and historic development.

Biopiracy: Historic Origin And Development

Biopiracy is a term that was ﬁrst used by The Rural Advancement Foundation International (RAFI). The history of this concept is associated, as a critical counterpoint, with the legislative and judicial trend beginning in the 1980s to protect, through intellectual property rights, above all patents, products derived from bioprospecting and genetic engineering; these trends in turn are provoked by the so-called technology protectionism based on the conviction, extended in various industrialized countries, of considering intellectual property as a fundamental right.

Biopiracy, A Proposed Definition

Inspired by the ideas of Vandana Shiva (2001), one of the primary promoters of the biopiracy concept, the following deﬁnition can be assumed: biopiracy means the unjustiﬁed use of intellectual property mechanisms, in order to justify the exclusive appropriation over multiple resources, products, and biological processes that have been used, in some cases, through indigenous knowledge.

The elements of the deﬁnition of biopiracy are therefore (a) exclusive and unjustiﬁed use of biological resources, (b) unjustiﬁed private use of indigenous knowledge, (c) inequitable distribution of the beneﬁts resulting from bioprospecting, and (d) unjustiﬁed concession of biotechnological patents which do not respect the basic criteria of novelty and non-obviousness.

Biopiracy And Its Ethical Dimensions

Social Meaning Of Biopiracy

According to James Mittelman (2000), the biopiracy idea is on the front lines of contemporary resistance to the process of expansion of the hegemonic model of society and economy. With that notion, the so-called anti-globalization movement has united seemingly independent questions such as environmental degradation, loss of biodiversity, food security, and social justice, in a discourse that interconnects them with different dimensions of daily life.

In this context, biopiracy is a critical concept that tries to demonstrate the negative pattern of the global trend described by Pietro Barcellona (1996) as a “proprietary system”: it involves the deﬁnition of property as the organizing principle of society, where institutions justify their existence in the production and reproduction of objects destined fundamentally to individual appropriation.

Furthermore, those who use the concept of biopiracy in their social demands call for the relativization of the weight of instrumental reason, of the poiesis, before various social problems such as hunger and in general the satisfaction of food needs. The arguments linked to the biopiracy concept coincide with the theory that questions the one-sidedness in favor of technology as a means to address the difﬁculties that the supply of basic needs involves. They argue instead that an ethical examination of the institutions linked to the problem of hunger as well as the enjoyment of the right to food and adequate nutrition, such as property, is necessary (Shiva 2000).

Biopiracy And Its Legal Meanings

(a) Intellectual property

Very early, the concept of biopiracy developed a critique side intended to show a series of inconsistencies in the intellectual property system, mainly in connection to its justiﬁcation. An eloquent example of this is the struggle against the granting of patents on transgenic plant varieties. In this framework, the ﬁrst disputed topic that biopiracy establishes has to do with the reality of the invention that is protected by the biotechnological patents. Speciﬁcally, it aims at raising doubts on the suitability of the notions of novelty used in the sphere of contemporary intellectual property to protect bioinventions through patents. The argument developed from biopiracy seeks to demonstrate that the biotechnological innovations are the result of changes in existing living structures, and therefore not a consequence of an inventive process. It is argued that the isolation, separation, and transfer of organic features of living beings, in spite of constituting the backbone of the claims in a biotechnological patent, cannot be considered as original acts (Grace 1998). In summary, the fact that a genetic engineer modiﬁes but does not create, as biopiracy argues, has led to signiﬁcant objections to the invention statute of genetically modiﬁed organisms, as well as other biotechnological products, precisely because this practice has blurred the fundamental distinction between what is discovered and what is authentically invented (Ost 1995; Rifkin 1999).

Another reason for criticism of the granting of biotechnological patents that emerges from biopiracy relates to the nature of knowledge as a community phenomenon. In this case, the biopiracy idea argues that the concession of a monopoly, and the consequent exclusive use of a biotechnological product in favor of a private party, is disproportionate if the collective gnoseological effort behind the inventor activities is considered (López 1995).

This meaning of biopiracy connects with other points of view that draw attention to the basis of intellectual property. Edwin Hettinger (1989) questions several arguments that have contributed to justify the most emblematic institutions of intellectual property such as copyright, industrial secret, and patents. One of the most important gaps in the legitimating apparatus of intellectual property in general and of the patent in particular lies in the fact of considering that an invention, which may be protected through the monopoly of exploitation, is the exclusive product of the intellect of its creator. In this regard, the question is: how much value of inventions is attributable to the inventor? Certainly a signiﬁcant part, though it cannot be the whole, in so far, it is not possible, nor in all cases fair, to separate the individual contribution of the inventor or group of inventors from the social and historical gnoseological component that accompanies it.

The ethical meaning of biopiracy here discussed is not limited to theoretical debates.

It has been part of the practical interpretation of intellectual property law. Perhaps the best known and documented case in this regard has been that of the patents on industrial processes linked to the exploitation of the Neem Tree (Azenderaque índico). In 1995, an objection was ﬁled before the European Patent Ofﬁce (EPO) requesting the denial of the patent on a method for combating fungal infections in plants through hydrophobic oil extracted from the Neem, applied for by the company W. R. Grace along with the US Department of Agriculture. Among other arguments, the injunction intended to make evident a negative socioeconomic effect, showing that the granting of the patent, at least collaterally, gave rise to an indirect monopoly of demand that would provoke the increase of cost of a good that, prior to the patent, was free. It was also alleged that the fungicide effect of the hydrophobic extracts of the Neem seeds constituted a piece of knowledge used in communities from times past as a pest repellent, as medicine for human and animal uses, and as a cosmetic. With supporting evidence, the idea was defended that the patent request in question lacked two fundamental statutory requirements: novelty and non-obviousness. Addressing some of the arguments of the opposing party, the EPO centered the dilemma on the formal arguments and thus indicated that the evidence presented throughout the proceeding showed that the distinctive traits of the patent in dispute had been revealed to the public prior to the application, such that the industrial process, for which patent protection was requested, did not fully meet the legal requirement of non-obviousness or inventive step of the invention.

This precedent has special relevance due to the fact that it led to a more receptive attitude by the EPO to arguments associated with biopiracy, specially the existence of community knowledge on the use of an organism, which should be taken into account as a reference in a biotechnology invention.

It is also interesting to note how case law is forming on arguments that have to do with biopiracy, and how this is complemented with procedural concepts such as the so-called diffuse interests. Indeed, in these types of disputes, a clearly deﬁned individual interest or right is not claimed, rather the claim results from a concurrent synthesis and joint ownership of goods of life: those adequate for the satisfaction of basic needs, both in the personal and collective spheres. Hence, when the competent court addresses arguments such as those based on the concept of biopiracy, it can be said that it becomes an authority that not only resolves the disputed questions but also facilitates access to social movements to an institutionalized public forum.

(b) Right to food

Biopiracy has also acquired a meaning of undeniable relevance in the area of social rights, that is, in the sphere of justice which makes possible the enjoyment of particular fundamental goods for a dignity-based existence. More precisely, biopiracy is associated with the right to food in order to improve the conditions that make possible to respect and enforce it.

There is a general idea in contemporary society that fulﬁlling the right to food is achieved through a technological strategy, the purpose of which would be to guarantee the availability of goods that satisfy it. In this way, the avant garde agricultural practices seek to produce the ideal plant, designed a priori, with the most appropriate features for the production process, or for marketing (García 1998). Nevertheless, it has been proved that only a technical approach to the challenges of feeding humanity is limited and reductionist. Amartya Sen is one of the champions of this thesis: in his opinion, hunger is not a phenomenon that can be explained exclusively as the consequence of a decrease in the total amount of food available but rather as the loss of formal capacity to have access to it (Sen 1995).

In this debate, biopiracy acquires interesting signiﬁcance based on the objections it raises with regard to biotechnology patents:

they do not coincide with the fundamental objectives of food security, that is, to promote broad social participation that guarantees the availability of and accessibility to food, complying with a fundamental right. In other words, biopiracy warns that biotechnology patents contribute to the consolidation of a trend that focuses exclusively on the commercial reasons for achieving the availability and accessibility of food.

This interpretation deﬁnitively opens the debate about the importance of needs versus interests, as a basic pattern for human use of national resources, and points to the fact that the second option provokes a manipulation of basic needs, in this case that of having adequate food, in order to obtain economic gains. Even more, in all those situations where poverty is somehow caused, that is, when access to goods that satisfy basic needs is conditioned, there is an act of coercion because people who lack something basic cannot reject what is offered to them by those holding the economic and political power (Dieterlen 2003). Consequently, the criticism of those that argue, through the concept of biopiracy, that patenting transgenic plant varieties and other products derived from bioprospecting represents an injustice, also struggle for the elimination of these situations of vulnerability that obstruct peoples’ capacity for choice.

The objection raised through the concept of biopiracy has explicit support in the Committee on Economic, Social and Cultural Rights, General Comment 12, right to adequate food (Twentieth session 1999), where is established that: “As part of their obligations to protect people’s resource base for food, States parties should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food.” Likewise, article 9.1 of the International Code of conduct on the Human Right to Adequate Food stipulates that: “States shall refrain from assisting or tolerating action by individuals, corporations or other non-state actors depriving persons both in and outside their jurisdiction of their access to adequate food. States will take all necessary steps to prevent individuals, corporations or other non-state actors from obtaining pecuniary beneﬁts or advantages of any sort by interfering with the enjoyment of the right to adequate food, even if that action has taken place in another country. States are under the duty to prohibit such acts and prosecute those responsible for them. Economic enterprises, including transnational corporations, must be subject to regulations both at the national and international levels, ensuring that their activities do not adversely affect access to food, the means to acquire food, or food production resources. Economic enterprises themselves must respect the right to adequate food” (World Alliance for Nutrition and Human rights 1997).

Institutional Influences Of Biopiracy

Various international documents have gradually incorporated arguments linked to biopiracy, establishing reservations on the development of biotechnology in order to determine regulations for its results. It is interesting to observe that in this regard, the conviction that private property is not the only way to advance technology is manifested with greater force. A pioneering initiative in this regard was the Declaration of Rishikesh, supported by various nongovernmental agronomy and socioeconomic research organizations and institutions, published in 1999. As Brac de la Perrière and Seuret mention, several of its principles and proposals are inspired by the concept of biopiracy, above all when manifesting a rejection of any form, whether institutional or technological, which obstructs and conﬁscates the germinal function of seeds for agriculture: “the seed belongs to the farmers, it forms part of their sustenance; not to the corporations that attempt to negotiate and obtain proﬁts by trafﬁcking and speculation” (Brac de la Perrière and Seuret 2000, p. 6).

In the institutional sphere, interesting examples can be cited which, without referring explicitly to biopiracy in their discourse, do incorporate some of the meaning attributed to it; above all thanks to such concept the socioeconomic effects attributable to how a speciﬁc biotechnological development is protected have been considered. For example, the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, in Article 26, point 2, recognizes the need of research on the socioeconomic impacts of living modiﬁed organisms, especially on indigenous and local communities. Moreover, one objective of the Universal Declaration on Bioethics and Human Rights adopted by the General Conference of UNESCO in 2005 is equitable access to scientiﬁc and technological improvements, through a broad circulation and expedited use of the beneﬁts that such improvements provide. Among its principles, speciﬁcally the one related to the protection of the environment, biosphere, and biodiversity, the importance of appropriate access to biological and genetic resources is recognized, taking into account the value of indigenous knowledge. This is emphasized in Article 17 of this international document which states: “Due regard is to be given to the interconnection between human beings and other forms of life, to the importance of appropriate access and utilization of biological and genetic resources, to respect for traditional knowledge and to the role of human beings in the protection of the environment, the biosphere and biodiversity.”

Conclusion

It is explained how, by virtue of its origin, biopiracy acquires a profound critical meaning to the extent that, in some way, it questions two trends broadly rooted in the culture of our time: privatization and techniﬁcation.

Through this basic meaning of biopiracy is possible to identify more speciﬁc issues such as the criticism of granting patents on transgenic organisms, which can be understood as a shift in the interpretation of intellectual property rules, in order to deﬁne the legal regulation of products resulting from advances in bioscience and biotechnology.

Likewise, at the level of social justice and the right to food, biopiracy is an idea that helps to highlight the delicate and complex network of linkages that are generated in turn with human nutrition and to focus attention on the risk of limiting these linkages to exclusively commercial economic relationships.

Finally, in the area of legal practice, the concept of biopiracy has taken a critical role which has enriched the criteria for interpreting the law insofar that when the legal regulation of biotechnology developments is deliberated, it is not limited to only considering economic reasoning but rather to take into account other equally important realities, such as the community nature of knowledge or the demands of food security.

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