Abstract
This chapter assesses the meaning, origins and uses of prior informed consent and the assumptions underlying its application to traditional knowledge and biological resource transactions. It also deals with the complexities that need to be overcome before it can become a workable policy tool.
Using a case study approach, the chapter shows why applying prior informed consent requirements in very diverse and extremely different cultural settings, and in very tense political contexts, can be immensely challenging. Even with the best intentions and the most carefully drawn up plans, things go wrong. It also shows that the concept may in many cases be inapplicable because a great deal of knowledge and resources is already in free circulation and can no longer be attributed to a single originator community or country. This should not, however, lead us to conclude that there can be no moral obligations even in the absence of legal ones.
As a consequence of the manifold and complicated linkages between drug discovery and marketing, obtaining prior informed consent may do little to resolve biopiracy in its broadest sense. However, this is not to suggest that it is a useless concept. Indigenous peoples have a right to expect bioprospectors to request their consent formally. Still, obtaining prior informed consent is not a substitute for respect of basic human rights. Prior informed consent should be seen as a necessary but not a sufficient requirement for the establishment of more equitable bioprospecting arrangements – but only if it is acquired according to procedures that are effective, culturally appropriate, transparent and flexible.
I am grateful to the editors for their comments on an earlier verson of this chapter. Any remaining shortcomings are the author’s responsibility alone.
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- 1.
1 ILO Convention 169 defines them as follows in article 1:
This Convention applies to:
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(a)
Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations
-
(b)
Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions (ILO 1989)
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(a)
- 2.
2 The distinction I seek to draw between misappropriation and unfair free-riding is that with misappropriation, there must be victims as well as beneficiaries for the word to apply. However free-riding is not necessarily harmful to anybody, and there is likely to be considerable disagreement about where to draw the line between fair and unfair free-riding.
- 3.
3 10th revised edition, 2001.
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4 It may be able to do so if it can describe a specific formulation, even in fairly non-technical terms.
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5 In some circumstances this may be allowable under the US patent system.
- 6.
6 John Moore v Regents of the University of California, 51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479.
- 7.
7 This case study draws heavily on Greene's (2004) work.
- 8.
8 US Patent No 3,205,220 (issued 7 September 1965) (‘Leurosidine and leurocristine and their production’).
- 9.
9 US Patent No 3,097,137 (issued 9 July 1963) (‘Vincaleukoblastine’). The patent was assigned by the inventors, Charles T. Beer, James H. Cutts and Robert L. Noble, to Canadian Patents and Development, Ltd., who made a deal with Eli Lilly allowing the latter company to commercially exploit the invention.
- 10.
10 As expressed by three medical researchers at the University of Western Ontario, ‘the disease of cancer was certainly far from our thoughts when we learned of a tea made from the leaves of a West Indian shrub that was supposedly useful in the control of diabetes mellitus’ (Noble et al. 1958).
- 11.
11 A common estimate of the average duration is 10–15 years from initial discovery to marketing.
- 12.
12 The best-laid schemes of mice and men often go awry.
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Dutfield, G. (2009). Protecting the Rights of Indigenous Peoples: Can Prior Informed Consent Help?. In: Wynberg, R., Schroeder, D., Chennells, R. (eds) Indigenous Peoples, Consent and Benefit Sharing. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3123-5_4
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