3 Reasons Why the Term “Misappropriation” Does Not Enable Fuller Understanding of Biopiracy

CURRENT BIODIVERSITY CONCERNS
Elpidio V. Peria
15 February 2014

From 3 to 7 February 2014 last week, experts, bureaucrats, indigenous peoples and activists from all over the world met in Geneva, Switzerland to discuss how to advance discussions on an international instrument that will address the problem of “biopiracy” or the taking of a country’s biological resources or associated traditional knowledge which are then used for industry or commerce, without the knowledge or permission of the country or the community and the income from the use of these resources don’t go back to the country or the community.

The meeting was occasioned by the 26th Meeting of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge, Folklore and Intellectual Property of the World Intellectual Property Organization (WIPO-IGC).

This body has become a dull soap opera or a sick joke to those who have attended its meetings from the start in 2001 since it has discussed ad nauseam all the possible permutations of the intellectual property-based solutions to the problem while other bodies such as the Convention on Biological Diversity has already advanced its discussions on the same issue from what it has adopted in October 2010, the soon-to-enter-into-force internationally-binding instrument called the Nagoya Protocol and the United Nations Forum on Indigenous Issues has clarified what rights of indigenous peoples would consist of as it is now contained in a Declaration adopted in 2007 called the United Nations Declaration on the Rights of Indigenous Peoples. The latter instrument has contained a clearer elaboration of the rights of indigenous peoples to their cultural heritage which includes traditional knowledge and genetic resources.

To the hardened skeptics of international negotiations processes at the UN level, the WIPO-IGC process is an example how the international process is rigged or is just used as a talkshop while the real crimes that should be addressed are going on unregulated.

This is the situation of biopiracy, a phenomenon long recognized when developing countries attending the Rio Summit on Environment and Development in 1992 adopted the Convention on Biological Diversity and there included as an objective of the said binding international instrument the fair and equitable sharing of benefits from the utilization of genetic resources.

The developing countries then were aware of the biological resources that were taken out of their borders since the era of the spice trade and the rise of the colonial powers – examples of these were tobacco from Latin America, sugar cane from Pacific Islands to China and India to Mediterranean, cotton from India, Latin America, tea, peach from China, quinine from Peru. All these are now considered part of the interdependence of the world’s food and agriculture systems and the idea of “facilitated access” seemed to have swept under the rug all other notions of fair and equitable benefit-sharing from the utilization of these resources.

In the early nineties, a Canadian NGO then called Rural Advancement Foundation International or RAFI (now it is called the ETCGroup, http://www.etcgroup.org) invented the term “biopiracy” for what it reported as the practice of companies patenting cell lines of indigenous peoples and enabling the ownership of what was used to be considered as a no-no, the ownership of life-forms, and the monopolization of potential profits from the commercialization of these patented biological materials.

These were the controversies that animated the discussions in the Convention on Biological Diversity, even if the solution considered in that body, the enactment of access and benefit-sharing (ABS) regulations at each country, proved slow and confusing, developing countries said they needed capacity-building to implement these ABS regulations until in 2002 there was another international consensus in the Rio+10 Summit in Johannesburg (the World Summit on Sustainable Development, or WSSD), that there should be, what was then called an “international regime”, to ensure that benefits from the use of genetic resources flow to countries from which these resources come from. It is this “international regime” that got negotiated in the Convention on Biological Diversity that become the Nagoya Protocol.

It was around that time that the World Intellectual Property Organization, an organization with a United Nations mandate but actually gets its funds from the levy it gets from all types of intellectual property instruments that it administers and contributions from its members, both developed and developing, got into the picture by conducting a series of fact-finding missions that it completed around the year 2000 and its main recommendation is to set up a discussion body, the WIPO-IGC to find ways around the problem which it did not yet call misappropriation or biopiracy.

So, fast-forward in 2014, there is already a binding international instrument in the Convention on Biological Diversity – the Nagoya Protocol – that addresses the same problem of biopiracy but from the perspective of ensuring fair and equitable sharing of benefits from the utilization of genetic resources and associated traditional knowledge; there is also a United Nations Declaration on the Rights of Indigenous Peoples, a non-binding international instrument that elaborates the rights of indigenous peoples to these same resources and their traditional knowledge which is part of their cultural heritage.

But there is also actually another international body, the World Trade Organization (WTO), which administers what is called the Trade-related Intellectual Property Rights (TRIPS) Agreement, and what is also stuck there is the discussion on how to make sure that the TRIPS Agreement is compatible, or mutually-supportive, of the Convention on Biological Diversity, and the key measure that has been discussed here since around 1999 was the disclosure requirements in intellectual property applications involving biological diversity. If these measures are set up, this will mean that those who will patent these materials involving biological diversity, will have to disclose, or lay open or state, where they got the source of their materials and whether they have entered into ABS agreements with whom they got these resources or they have secured the permission or prior informed consent of the community.

In this context, the WIPO-IGC discussion is pivotal, since it is an arena where norms of intellectual property instruments are developed, whatever is arrived at here will have an impact in the discussions in the WTO, and would foster greater acceptance of all intellectual property-granting offices worldwide.

But to properly capture the essence of the problem, the key concepts involved in the discourse are important for setting the tone on the later discussions that follow and in determining the actions that can be taken to address the problem. It is for this reason that this week this blog post would like to look closely at what the 26th edition of the WIPO-IGC has arrived at, especially on its proposed definition of the term “misappropriation”. This term is important because ever since the discussion on biopiracy or access and benefit-sharing has started in other arenas, “biopiracy” as a terminology has been consistently refused by the developed countries in the discourse. This resistance internationally has not stopped developing countries like Brazil and India to define and use the term in their national legislation, regulations and issuances.

Thus, in the most recent text that came out of the 26th Meeting of the WIPO-IGC,

“Misappropriation”is the [acquisition][utilization] of genetic resources[and][or] associated traditional knowledge with out the [free] [prior informed] consent of [those who are authorized to give [such] consent][competent authority] to such [acquisition][utilization], [[in accordance with national legislation][of the country of origin or providing country]].]

Alt

[“Misappropriation “ is the use of genetic resources and/or traditional knowledge associated with genetic resources of another where the genetic resources or traditional knowledge has been acquired by the user from the holder through improper means or a breach of confidence which results in a violation of national law in a provider country. Use of genetic resources and associated traditional knowledge that has been acquired by lawful means, such as reading publications, purchase, independent discovery, reverse engineering and inadvertent disclosure resulting from the holders of genetic resources and associated traditional knowledge failure to take reasonable protective measures, is not misappropriation.]

Based on reports from Third World Network and IP-WATCH, the alternative text was proposed by the US, supported by other developed countries. But this blog post will proceed to point out the problems in the proposed term itself and its proposed contents or definition and expound why such definition fails to enable regulators understand what is really happening on the ground on this issue:

1) The concept is unknown to those who have experienced biopiracy

The term “misappropriation” actually means the fraudulent appropriation of funds or property entrusted to your care but actually owned by someone else (from http://www.thefreedictionary.com/misappropriation, accessed 14 February 2014). Working with farmers and indigenous communities for some time, using the said term to explain the problem of biopiracy has been difficult, if not impossible. Only lawyers seemed to understand the term, and that in itself, is a problem!

While the usual definition mentioned above may seem to capture what is sought to be regulated, the element of fraud is a complication since it presupposes the existence of a relationship between the doer of fraud and the one being defrauded. In the usual notion of biopiracy cases, the one taking the resources usually don’t have any relationship with the country or community owning or controlling the resources. Of course the discussion becomes different if the one doing the misappropriation is the one given the permit and the fellow exceeds the limits set in the permit. In that case, it is not fraud as such but a violation of the terms and conditions of the permit. In all these instances, if the element of fraud is not proved, then there is no misappropriation. If there is no misappropriation, then the act being complained of is not sanctioned or stopped.

2) The proposed definitions exclude a lot of events and activities that are actually happening in a case of biopiracy; these are the things that should be penalized as a crime, which may appropriately be called “biopiracy”

If one goes through the text of the WIPO-IGC, the first set of definition, the shorter one, will have to go through the hurdle of clarifying what is “acquisition” or “utilization”, but the taking of biological resources or the interview of indigenous peoples for the types of plants that they use to cure certain diseases, these are not technically “acquisition” or “utilization”, they are just that, the on-field collection of raw information which the researcher may assert as part of the researcher’s freedom to explore what is out there. So, the starting point of the activity, the collection on the field, is already excluded once we use the terms “acquisition” or “utilization”.

Then there is the requirement of “free and prior informed consent”, is this a formal process or an informal one, then it goes to a determination of who should be giving this consent, which includes who is the one “authorized” to give such consent along with a discussion of who is the “competent authority” that should be involved here and there is also a requirement of a “national legislation” before these things are stopped. If these things (free and prior informed consent, authority to give consent and national legislation) are not present in the situation, then there is no misappropriation.

The longer definition, the US proposal, is more insidious, if it gets accepted, then it will legitimize all these things that are now currently happening in relation to the use and commercialization of genetic resources where countries and communities are excluded – reading publications, purchase, independent discovery, reverse engineering and inadvertent disclosure resulting from the holders of genetic resources and associated traditional knowledge failure to take reasonable protective measures – and these are not considered biopiracy, it cuts off discussion on the matter of fair and equitable sharing of benefits from these activities and the matter of consent and compliance with ABS rules that are existing. Another bigger problem is, not all countries have ABS measures to clarify how these things should be regulated.

3) The use of the term does not result in a broader set of actions to address biopiracy

It can be understood that the term “misappropriation” is the one being put forward for it will perfectly fit with the next set of actions envisioned by the WIPO-IGC, through the intellectual property-related measures being considered by WIPO. But there are a lot of happenings or events that are outside the concerns of intellectual property offices which these offices will not bother looking into. Thus, to address biopiracy, addressing it through the intellectual property system should not just be the sole approach to the problem. Another way of stopping these activities is to criminalize them through the usual penal laws of a country, which enables the police and local authorities to also find ways to stop them, before the collector can even apply for a patent or trademark for the said biological resource or associated traditional knowledge.

Ultimately, given that the results of the WIPO-IGC will still have to undergo further discussions, in another WIPO-IGC meeting and the WIPO General Assembly, it is best for developing countries to keep their options wider and it be not limited by the concepts that are emerging, like the use of the term “misappropriation” and the various proposals for what they mean.

For countries that are planning to sign on to the Nagoya Protocol, it is best for them to continue in their efforts, aim to have the instrument enter into force with the necessary fifty (50) ratifications or accessions, and proceed to refine the measures on how to stop biopiracy, as they happen on the ground and with recent advances in technology, in the computer screens and databases mediated by the internet.

oOo

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