Revisiting Basmati and the Nature of Biopiracy

Individual cases of disputed biopiracy have helped structure and define this debate, and give impetus to broader claims of misappropriation; they may also provide insights on possible policy responses. A prominent case is the development of cross-bred rice suitable for production in the western hemisphere and design to imitate the organoleptic and cooking characteristics of traditional basmati rice, which was the subject of a controversial patent.4 Apart from its potent actual influence in the general debate, this case offers insights on the implications of the call for a more inclusive equitable dispensation of knowledge resources. It also highlights the cultural barriers to surmount in constructing a universal standard of equity. The original patent specification and the extensive critical responses to it appear to articulate entirely different, indeed incompatible, cultures and value systems. The original patent specification claims the development of 'novel rice lines whose plants are semi-dwarf in stature, substantially photoperiod insensitive and high yielding, and produce rice grains having characteristics similar or superior to those of good quality basmati rice'. The inventors reportedly sought to address the problem that basmati rice could only be successfully produced in a geographically limited area: '[L]imited success in improving the versatility and productivity of basmati rice lines supports the belief in consumer, trade and scientific circles that authentic basmati rice can only be obtained from the northern regions of India and Pakistan due to the unique and complex combination of environment, soil, climate, sowing practices and the genetics of the basmati varieties.' Perceiving this state of affairs as a problem in need of resolution raises cultural and commercial differences since, for the original producers of basmati rice, this distinctiveness is a source of market presence and of cultural identity, both of which are potentially displaced or diluted by the claimed innovation.

Basmati rice is a valuable GR and knowledge resource with several facets: (i) it is valued as a food and as an input for agriculture and plant breeding; (ii) it is associated with a suggestive and allusive name, which attracts the consumer (the phenotypical denotation and cultural and geographical connotation of the term are disputed and may differ between linguistic communities and different markets, but by one strongly held view, it has a sufficiently powerful reference to the origin of basmati rice to qualify as a GI); (iii) the seed is a result of generations of plant breeding and is viewed as embodying this accumulated intellectual activity and investment of effort; and (iv) it is viewed as a meme conveying certain traditional cultural ideas. These diverse qualities elevate basmati above regular trade in rice, to the extent that different export statistics are kept, identifying it as a value-added commodity occupying the elite end of the rice market.5

Reactions to the RiceTec patent were vigorous. One characteristic critique charts the broad and diffuse scope of the sense of misappropriation that was provoked by this case:

Basmati rice has been grown in India for a few thousand years. But two years ago

RiceTec Inc. acquired the exclusive rights to basmati rice____It has already started selling 'Texmati' and 'Kasmati' rice as authentic basmati. But replacing exports from India is only the first step. The next step is to seek financial compensation from Indian farmers who use the name basmati rice, then to monopolise control of seed and through the use of biotechnology ensure that seeds cannot be reproduced through harvest, but must be bought from RiceTec Inc.

(Greenfield, 2004)

The fact that this kind of analysis was incompatible with the actual legal system had the perverse effect of discrediting the public policy safeguards already in the legal system (and the intact quality of national sovereignty and the freedom to operate given by the principle of territoriality in the patent system). But it also more usefully highlighted that the debate was ultimately about conflicting value systems that were misleadingly expressed in legal terminology. The value hierarchy (discussed earlier) was manifested by claims that the RiceTec product was 'genetically modified' (GM) even though it was the product of conventional breeding.

The basmati case sensitized the critical perspective to similar attempts to create new products that emulate the qualities of traditional products, including the breeding programme of the same company. 'Having stolen basmati rice from farmers and their communities in India, RiceTec Inc. is now trying to steal jasmine rice in Thailand' (Greenfield, 2004). However, similar criticism was levelled against a breeding programme that did not seek IPP (Wescott, 2001). The University of Florida announced a jasmine rice-breeding programme (Kimpel, 2001), using germplasm drawn from the International Rice Research Institute (IRRI) seedbank, and cross-breeding it using gamma radiation to promote mutation, and selecting for photoperiod insensitivity, semi-dwarf plants with stronger stems, allowing machine harvesting, aiming for the organoleptic qualities of Thai jasmine rice. The breeders announced that they would not 'seek any form of IPR protection for any varieties derived from Khao Dawk Mali' (The Bangkok Post, 2001). But even this program drew criticism:

After Basmati rice, now it is the turn of the Thai jasmine rice to be threatened by

US attempts to produce their own - genetically modified - Jasmine____Signing the

Material Transfer Agreement and agreeing not to patent the new jasmine varieties does not solve the ethical problem related to this kind of research. . . . The transfer of Jasmine rice to the USA would create tremendous social and economic impacts for Thailand.

(ETC News Release, 2001)

The claimed wrong need not be limited to trade displacement and resultant economic damage, since exports of basmati rice have continued to rise (one study suggests that the share of basmati rice exported to the USA has increased from 0.8 of all rice exports during 1998-1999 to 2.5 and 4.2, respectively, in successive years).6 There are no reported cases of the patent impeding imports of basmati rice to the USA. Following the re-examination of the patent and restriction of its scope, critiques of the RiceTec product observed that 'exports will not be undermined' by the patent and that the 'economic piracy of India's export markets has therefore been prevented', while claiming that 'the cultural and biological piracy have not been stopped. By holding on the remaining claims . . . Ricetec continues to violate India's cultural heritage and farmers' rights'. The polyvalence of the germplasm is again apparent: 'basmati grain has been liberated, basmati seed has not' (Shiva, 2000).

If such cases exemplify a broader inequity to be remedied by international negotiation, they should be examined objectively to clarify the specific nature of the wrong or wrongs to be addressed; however, even to interrogate the problem in this way runs the risk of being seen as a technocratic, reflex defence of an inherently inequitable status quo. Focusing initially on the patent, the claim of biopiracy can variously be construed as questioning whether valid or legitimate IPRs should be available for an otherwise patentable invention that is derived from GR (any GR or only resources gained illicitly or unethically), challenging the very inventive merit of an invention based on traditional plant breeding or criticizing the limited conception of the inventive contribution in patent law, which seemingly privileges recent, incremental innovation over the long-term development of the knowledge resource by traditional farmers. But the debate over the nature of the claimed wrong has taken a broader sweep of issues: the critique revisits the legality and ethical status of the acquisition of the original germplasm used in breeding a competing strain, suggesting a claim of residual rights in the GR that were not exhausted by the transfer of the resource and extend beyond the privity of any specific contractual relationship. The situation is further complicated by the fact that this breeding programme - essentially aimed at combining 'basmati grain traits with desirable plant traits found in advanced semi-dwarf varieties by plant breeding' - had already been attempted in the country of origin, even though the patent specification describes these attempts as unsuccessful (while others claim that this had already been achieved by Indian breeders, thus nullifying the patent's claim to novelty and inventive step).

The debate therefore extends beyond a relatively straightforward conception of misappropriation, focused on the theft or unlawful taking of a seed, unlawful access to a resource, or use that breaches contractual obligations. The concern runs more deeply, and opens out into claims of unfair competition or illegitimate trade, concepts that more clearly admit diverse value systems than the misleading legal precision of a term such as, 'misappropriation' does. This stems in large part from the very multivalence or multiple aspects of a simple grain of rice. The core claim that a patent unjustly asserts rights over the original variety or resource (including the claim that the patentee would seek royalties from traditional bas-mati growers) has evolved into more diverse concerns that the patent appropriates value from the resource without equitable benefit-sharing; that the breeding itself amounts to a form of misappropriation, either on legal or ethical grounds; that the endeavour to produce a competing strain of rice that would substitute for imports was inherently unfair, causing social and economic damage to traditional producers; and that some forms of research and innovation are inherently wrong - suggested by the stigmatization of conventional breeding as 'genetic modification'.

Legal claims extend to exclusivity over both the denotation and connotation of such terms as 'basmati' and 'jasmine rice', stimulating hopes that inclusion of agricultural products within the scope of extended protection of GIs under TRIPS may address such cases. The line of argument - initially founded on a claim of sovereignty over GR and an entitlement to equitable benefit-sharing in line with the CBD and FAO Treaty - potentially loops back to TRIPS, perhaps in view of the perceived tensions between these instruments, but in a way that sheds light on the broader conception of misappropriation and apprehension about loss of distinctive cultural identities that can lie behind trade negotiations in this area. Exceptionally within the trade law regime, as seen earlier, TRIPS invokes a conception of legitimate trade and (by incorporating the Paris Convention) requires the suppression of unfair competition (including honest practices established in international trade). Unfair competition in turn serves within TRIPS as one doctrinal basis for the protection of GIs, one of the specific avenues explored for a precise legal response to claims of misappropriation. The claim of misappropriation potentially goes further, and may be construed as a call for identity preservation: in a literal sense, ensuring the purity and value of specific basmati traits7 (arising from the genericization or dilution of the distinctive qualities of basmati rice through hybrid crossing with other varieties8), and also figuratively (the concern that basmati rice is integral to the cultural integrity and self-conception of its traditional producers, which is potentially undermined by broader exploitation of the reputation of basmati rice). This is close to the claim of usurpation that fuels claims for absolute protection of GIs. The perception that both the denotation and connotation of such terms as 'basmati' and 'jasmine rice' have been used illegitimately to gain an unfair trade advantage is one of the key drivers in negotiations for strengthened protection of GIs under TRIPS. Expectations of legitimacy in trade, expressed through TRIPS provisions, now extend to consideration of the fairness of domestic transactions conducted in the common language of one country, where this conflicts with the connotation ascribed to a term in the country of origin. In 2001, the Federal Trade Commission (FTC) turned down a request for a trade regulation to prevent US rice growers from using the terms 'basmati' and 'jasmine',9 citing the existing standards for rough rice (Code of Federal Regulations 868.212 (e), established by the Agricultural Marketing Act of 194610 and amended in 1993 to include a special grade introduced for aromatic rices, specifically including these two varieties (Lacefield, 2004).

This case is emblematic of how legal terminology - 'theft' and 'misappropriation' - offers an inadequate lexicon for the logically and procedurally prior process of identifying contrasting values and ethical issues, before the legal rules are negotiated or interpreted. The rice was bred in a way that is broadly similar to most modern, non-transgenic crops, and similar breeding programmes had attempted a similar cross between basmati and semi-dwarf varieties, so that the novelty of the breeding technique claimed in the patent was challenged. The widespread stig-matization of the contested RiceTec innovation as genetic modification is perhaps symptomatic that a deeper and, in fact more momentous, discourse is being conducted at the level of value and ethics. It raises the question of how the analysis of such individual patents, and reconsideration of their legal and ethical status, can resolve these deeper questions. A richer analysis has greater pragmatic value, as it broadens the scope of available responses to the kind of policy concerns voiced through the lexicon of misappropriation and biopiracy. Paradoxically, in the light of the strong controversy the patent has provoked, if the crop had proceeded to the market without the original patent being issued, the objective position may have been worse for traditional growers: the existence of a competing yet imitative innovation may have been less manifest; information about the origins, nature and implementation of the new rice lines would have been less accessible; competitive threat to traditional basmati growers represented by the imitative innovation would have been telegraphed later; a trend towards genetic dilution of what the marketplace views as basmati or basmati-style rice, and the genericization of the term itself (evidenced by the production of American basmati' by growers other than the patent-holder, and references to 'American basmati' in standard recipe references) may be accelerated, as more competing farmers beyond the traditional regions would, in principle, have had legal access to the competing lines. This is not to suggest that IPRs do not need close, critical scrutiny, especially when they entail the use of knowledge resources and biological materials of crucial importance to economic well-being and cultural values of developing countries. Yet it underscores the need for a broader policy and legal canvas: preservation of the identity of original rice variety as an elite line, of the identifying function of the term 'bas-mati' and of the cultural and environmental factors that sustain the development and use of the knowledge resource. The continuing growth of basmati rice exports suggests some grounds for optimism; even the competing products may have sparked interest in the authenticity of the original product, establishing original basmati as a premium brand in a maturing and more diverse rice market.

The evolution of the basmati case raises the following questions: Was the claimed innovation considered in itself a form of unfair competition, with the use of the knowledge resource (the multivalent germplasm) in a breeding programme as a form of appropriating the genetic value of the resource? Was it the assertion of exclusivity over an insufficiently altered rice line? Was it the assertion of exclusivity over an innovation derived from the GR, but with inadequate benefit-sharing? The case is complicated by the retrospective quality of the claim over knowledge resources that had been considered by some, including possibly their users, to fall into the public domain or the realm of common heritage. The case of jasmine rice suggests that, at least for some commentators, the process of breeding competing rice lines, without any assertion of exclusivity over the product, may be considered an act of unfair competition or a form of misappropriation, because it may displace traditional growers. Blurring the bounds of the genome of basmati or jasmine rice through breeding programmes may also prejudice identity preservation and promote genericization. For a competing farmer to use the same, unaltered resource to grow competing crops could not be considered misappropriation or illegitimate use if the seed were obtained legitimately. Hence, identity preservation may be seen more as the protection of the brand: the right to exclude others from using the terms 'basmati' and 'jasmine' to denote their competing products and the right to reverse genericization of the indication function of those terms.

Within the broad notion of 'misappropriation' of rice, it is possible to distinguish an array of distinct ideas:

1. Legitimacy of creating new varieties through conventional plant breeding;

2. Failure to share benefits of such innovation either at all or equitably;

3. Illegitimate procurement or assertion of invalid IPRs;

4. Breach of an explicit or implied contract constraining one obtaining a GR from using it for breeding or other innovative activity aimed at capturing genetic value;

5. Obligation to share benefits, either financial or in terms of access to technology;

6. Breach of ethical standards;

7. Notions of usurpation, emulation or evocation of a traditional agricultural product that bring the claim closer to an absolute conception of GI protection; in as much as it entails revisiting or renegotiating the assumed boundaries of the public domain, the claim may resemble the 'clawback' of GIs from genericization.

These diverse aspects of a general complaint of misappropriation map across to the polyvalent forms of 'property' and 'value' identified earlier. Is it, at core, the chattel, gene or meme that has been misappropriated? Scepticism about the value of the claimed innovation is mixed with questions regarding its legitimacy and unease about the very nature of the innovation. When innovation aims at imitating an original product, to be produced under different conditions remotely from the traditional area of production, this imitative innovation provokes diverse concerns, difficult to frame within a single notion of legal misappropriation, and the language of value comes into play. Innovation fatigue - unease at the direction agricultural innovation is taking - mingles with concerns about unfair competition, illegitimate appropriation of the agronomic and cultural value of GR and the denotation of descriptive language.

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