Biologically Bifurcated Biography of Biopiracy

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Among the many stories of 'biopiracy' that dominate the global debate over biodiversity, biotechnology and their proper relationship, the tale of the hoodia cactus is one of the most vivid. The cactus Hoodia gordoniis is prized for its appetite-suppressing, thirst-quenching and awareness-heightening qualities (Bodeker, 2003, pp. 795-796). What the San people of South Africa have known for thousands of years about the plant they call 'Xhoba' languished for three decades in the laboratories of the Council for Scientific and Industrial Research (CSIR). Pfizer Corporation eventually acquired the rights to a hoodia-derived compound called

P5 7 (so named because it was the 57th chemical tested) and at one time planned to market a diet drug that would compete against currently available concoctions that rely on the troubled combination of ephedra and caffeine (see, e.g. Dietary Supplements Containing Ephedrine Alkaloids, 2000; Regulations on Statements Made for Dietary Supplements, 2000). It is quite clear that such a concoction, if successfully tested and marketed, would earn massive profits; '[p]urchasers of diet products are often "pathetically eager" to obtain a more slender figure' (United States v An Article of Food . . . 'Manischewitz . . . Diet Thins', 1974). However, in July 2003 Pfizer withdrew from the project and discontinued clinical development of P5 7 (Pfizer Returns Rights, 2003). Although the absence of commercial exploitation moots the question whether P57's developers owe the San people any compensation, this sort of battle typifies the fierce conflict over biopiracy.

Indeed, allegations of biopiracy have become so frequent and familiar that they now follow a fairly predictable and uniform script:

<Large northern corporation> <seeks/is developing> a highly sophisticated <plant variety/pharmaceutical product> and sends researchers to <exotic place>. After interviewing local <farmers/foragers>, the company's researchers identify a <species/variety/ breed> of <life form> that seems responsible for <desirable trait>. The researchers collect a few specimens and collate their interviews. The samples and the local lore inspire a successful program of <cross-breeding/genetic engineering/pharmaceutical development>, which saves the company thousands of hours and enables it to eclipse its competition. The company never shares its profits, however, with the local community from which it derived genetic resources and traditional knowledge.

Although commercial exploitation plays a modest role in conserving the earth's diminishing store of biological diversity, allegations of biopiracy have taken centre stage in the international debate over the relationship between biodiversity and biotechnology (Chen, 2003).

The putative conflict between biodiversity and biotechnology arises from a fundamental difference in factor endowments (see, e.g. Pindyck and Rubinfeld, 1992, pp. 597-599; Hudec, 1996, pp. 21-22). The global North is rich in financial capital and industrial technology but poor in genetic resources. The global South, on the other hand, is exactly the opposite - biologically rich but economically poor. This split fuels the South's traditional attack on Northern conceptions of IP (Reichman, 1989, p. 747; Okediji, 1999, p. 117). The UN Environment Programme has succinctly summarized the South's complaint:

[Intellectual property rights] systems [either] encourage the appropriation of [traditional knowledge] for commercial use without the fair sharing of benefits, or . . . violate indigenous cultural precepts by encouraging the commodification of such knowledge.

(UN Environment Programme, 1996)

The Southern complaint embodies two distinct objections. First, the Northern notions of IP have allegedly deprived the South of its fair share of developmental benefits. Second, the Northern understanding of IP purportedly cannot coexist with the communal systems of knowledge at the heart of many Southern cultures.

In so far as the Southern complaint alleges a failure to divide benefits more equitably, the real objection does not lie with the recognition of IP in developed nations, but rather with the richer countries' failure to share the spoils. The CBD allegedly fails 'to ensure compensation and rights over . . . indigenous materials' even though it implies that 'the most downtrodden societies of the world should provide' genetic material 'for the benefit of "mankind"' (Ragavan, 2002, pp. 10, 359). The developing world, to put it bluntly, expects minimal gain from a strengthening of existing IP laws (see, e.g. Penrose, 1951, pp. 116-117; Subramanian, 1991, pp. 947-952; McCabe, 1998, pp. 56-57).

In a legal regime more sympathetic to its grievances, the South would demand fair compensation for its contributions to the developed world's life sciences industries. The North extracted much of the South's biological bounty when few barriers to exploitation existed. Having built an economic and political empire from those resources, the North then fashioned a regime of intellectual property rights (IPRs) that foreclosed the very sort of free exchange that facilitated its development (Seeratan, 2001, p. 383). Worst of all, this bait-and-switch manoeuvre enables the North to gouge the South on the sale of finished products derived from the latter's biological resources (Tilford, 1998, p. 377). The story is the traditional agrarian complaint of buying at retail and selling at wholesale, played out on a global stage (Fite, 1981). The South's supporters have derided the North's practices as 'biopiracy', an insidious channel for further economic exploitation, or even the de facto reimposition of colonial dominion (see, e.g. Jacoby and Weiss, 1997, pp. 89-91; Shiva, 1997; Aoki, 1998; Whitt, 1998; Sarma, 1999). The 'seemingly narrow . . . and unusual' question of how, if at all, to accommodate TK within conventional systems of IP has become emblematic of larger and more contentious 'question[s] of economic relations between developing and developed countries' and 'between the control and structure of global and regional marketplaces' (Ghosh, 2003, p. 832).

The South's second and more broadly gauged attack aims at the very notion of IP. It is argued that the Northern conception of IP does not suit the communally acquired and shared nature of ethnobiological knowledge (see, e.g. Boyle, 1996, p. 141; Aoki, 1998). The developing countries of the global South purportedly exalt gift-giving and other communal norms over the market-based ethos of the capitalistic North (see, e.g. Mauss and Douglas, 1950; Fort and Noone, 2000). Such communal norms are presumably strongest among people 'who are regarded as indigenous on account of their descent from the populations which inhabited [their] country at the time of conquest or colonization . . . and who . . . retain some or all of their own social, economic, cultural and political institutions' (International Labour Convention, 1989, art. 1(b)). In contrast, '[d]eveloped countries' allegedly 'have a eurocentric, individualistic understanding of property that "ignores the collective labor of generations"' (Sarma, 1999, p. 117). Privileging northern views of IP allegedly impairs the 'vital role' of '[i]ndigenous people and their communities', derived from 'their knowledge and traditional practices', 'in environmental management and development' (Rio Declaration, 1992, p. 880, principle 22).

Neither prong of the Southern assault on IP withstands careful scrutiny informed by a proper understanding of geography and history. There is no way to determine a priori whether any particular distribution of benefits from the commercial development of biological resources is 'just'. Many contemporary inequalities stem from differences in initial natural endowments (East, 1965; Diamond, 1997, pp. 405-425). There is a perverse relationship between absolute levels of biological diversity and contemporary socio-economic welfare. At a critical phase in human development, certain temperate, relatively non-diverse portions of the northern hemisphere had precisely the combination of plant and animal candidates for domestication that vaulted Eurasia to global domination (Diamond, 1997, pp. 93103). Meanwhile, the tropical islands that shelter much of the world's biodiversity pose formidable physical barriers to human habitation and development (Crossette, 2000, s. 4). Ironically, it is not biological diversity per se but rather the right combination of factor endowments that dictates the wealth and poverty of nations.

Whatever their merits in other contexts, allegations of fundamental boundaries between 'civilizations' do not accurately describe the North-South divide on biodiversity and IP (see, e.g. Huntington, 1996; Landes, 1998). IP, or at least the private desire to own and exploit profitable ideas, flourishes in many poorer societies. The Honeybee Network, an Indian group advocating 'grass-roots innovation' in traditional communities, attributes many inventions to private individuals, who are not only pleased to claim credit but also hope to profit from the commodi-fication and commercialization of their innovations (Gupta, 1999, pp. 346-352).

Moreover, the developing world enjoys no monopoly on communal notions of ownership (Merges, 1996; MacKaay, 1999). As late as 1994, US courts asked seriously whether the widespread practice of copying from scientific journals could sustain a claim of fair use (Basic Books, Inc. v Kinko's Graphics Corp., 1991; American Geophysical Union v Texaco Inc., 1994). American scholars have long urged the recognition of an explicit first amendment right to conduct scientific research (Robertson, 1977; Delgado and Millen, 1978; Francione, 1987; Green, 1992; Spence and Weinzel, 1998). The US Supreme Court has noted that 'freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge' (Sweezy v New Hampshire, 1957; Keyishian v Board of Regents, 1967).

American scientists, the intellectual force behind the life sciences Juggernaut of the developed world, appear positively communal in their approach to the sharing of information (see, e.g. Eisenberg, 1987; Burk, 1995; Rai, 1999; McSherry, 2001). The Western 'scientific ethos . . . promotes the sharing of information in the public domain' and treats 'scientific knowledge . . . ultimately [as] a shared resource' (Rai, 1999). The Supreme Court came closer to the mark in recognizing that 'legislative or judicial fiat as to patentability' would never 'deter the scientific mind from probing into the unknown any more than Canute could command the tides' (Diamond v Chakrabarty, 1980, p. 317). The ability to patent any resulting inventions 'may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all' (Diamond v Chakrabarty, 1980, p. 317).

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