Benefit-sharing between the users and the providers of biological resources and the knowledge associated with them has been a topic of intense, increasing concern in bioprospecting in recent years. This is due to the large amount of genetic resources that have commercial viability in a number of formal sectors, including pharmaceuticals in both industrialised and development countries.
Bioprospecting activities have been characterised by a dichotomic vision of the local communities, seen either as victims of “biopiracy” or as potential beneficiaries of benefit-sharing agreements which often have proved to be ineffective in promoting development and equity at local level.
The chapter questions whether novel benefit-sharing arrangements might give rise to a new form of bioprospecting activity. It also raises the question of whether and how an alternative representation of bioprospecting “from below” can be an instrument to enhance the local livelihoods of communities and promote their empowerment and capacity building.
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The Global Biodiversity Strategy, for example, includes as one of its ten principles for conserving biodiversity the principle that “Cultural diversity is closely linked to biodiversity. Humanity’s collective knowledge of biodiversity and its use and management rests in cultural diversity; conversely, conserving biodiversity often helps strengthen cultural integrity and values”.
Biomedical literature refers to the use of traditional medicines as phytotherapy. Traditional medicine and traditional healers form part of a broader field of study, classified by medical anthropologists, as ethnomedicine. According to the definition of the World Health Organisation (WHO), traditional medicine is “the sum of all the knowledge and practices, whether explicable or not, used in the diagnosis, prevention and elimination of physical, mental or social imbalance and relying exclusively on practical experience and observations handed down from generation to generation, whether in oral or in written form.”
In India, for instance, the codified systems of medicine utilize about 2,000 plant species for medicinal purposes, while the tribal communities, who live in and around the forests, utilize over 8,000 species of plants, most of which are otherwise not known to the outside world (Pushpangadan 2002, p. 5).
A review of anthropological literature reveals that certain authors suggest that concepts close or equivalent to individual forms of IPRs are quite common in indigenous and traditional proprietary systems (see, e.g. Dutfield 2000). According to one view, the right of an indigenous inventor or custodian of TK should not be sacrificed on the altar of collective ownership, since this would infringe on fundamental human rights.
The extent to which such prima facie individual knowledge can be truly classified as individual knowledge depends on other factors, as discussed below.
Traditional Medicine Strategy 2002–2005, World Health Organization, WHO/EDM/TRM/2002.1, Geneva, p.7.
In India, it has been noted, however, that less than 30 of the medicinal plants utilized by the industry are under commercial cultivation. 80,000 metric tons a year of certain plant varieties are being collected from the wild. At this rate of collection, the TRM industry may crash because of lack of suppliers in the short term.
Drugs derived from plants are of immense importance in terms of numbers of patients treated. It is reported that ca. 25% of all prescriptions dispensed from community pharmacies in the USA between 1959 and 1973 contained one or more ingredients derived from higher plants. A study of the top 150 proprietary drugs used in the USA in 1993, found that 57% of all prescriptions contained at least one major active compound currently or once derived from (or patterned after) compounds derived from biological diversity.
Despite claims by Farnsworth and Soejardo (120) that approximately 74% of all modern drugs discovered are the result of leads provided by indigenous medicinal knowledge, other commentators, dispute the value of ethnobotanical and ethnomedical information to pharmaceutical research. Indeed, Borris and Turner maintain that the value of indigenous knowledge to natural product research in the pharmaceutical industry is minimal. According to these authors, it is a complement to “the basic pharmaco/cell biology/biochemistry based discovery program,” pursued only for diversity in pharmaceutical research. Both Borris and Turner assert that in the current research climate where all samples are tested in all available screens, indigenous knowledge is irrelevant. Davidson et al. agree with the argument, claiming that such knowledge is only beneficial if researching a narrow range of target diseases.
See, e.g. Dutfield 2000, p. 10.
An often cited case is the use of the Madagascan rosy periwinkle plant by Eli Lilly for the treatment of Hodgkin’s disease (a type of lymph cancer) and childhood leukemia.
According to, some imagine “that traditional medicinal knowledge of indigenous peoples is an object of great interest to drug companies and hence deserving of a high value (given its scarcity). Analysis of the case at hand and continuing trends away from research involving traditional plant remedies in the pharmaceutical industry cast great doubt on the dollar value of traditional knowledge to pharmaceutical companies.”
See, e.g., Barsh 2001.
Glowka defines IPRs as private legal rights that apply to intangible human contribution that goes into producing a particular technology. The holder has a legal monopoly over the commercial exploitation of the intellectual property over a specified period of time, and therefore, the technology that embodies it. See Lyle Glowka, A Guide to Designing Legal Frameworks to Determine Access to Genetic Resources (Gland, Switzerland, Cambridge and Bonn).
Some of the main effects of IPRs on biodiversity have been identified in decreased crop diversity, decreased spatial genetic diversity, and increased use of external inputs. (UNCTAP-ICTSD Intellectual Property Rights: Implication for development, Policy Discussion Paper, August 2003).
Conserving Indigenous Knowledge: Integrating two systems of innovation’. An independent study by the Rural Advancement Foundation International. Commissioned by the United Nations Development Programme.
For example, the Kani Tribe in India has trouble accessing the forest plant Trichopus zeylanicus from forest lands, which is used in the preparation of the herbal medicine “Jeevani.” The tribal people cannot legally access the plant and sell it to the institute that developed the drug, since collection for commercial purposes is not allowed. The Forest Department justifies these restrictions on the grounds of conserving anendemic species, which it argues may run the risk of over-exploitation as a result of commercial demand.
One example is given by Oxford Natural Products (ONP) from the United Kingdom, who have signed an agreement with PT Indofarma, one of the largest pharmaceutical companies in Indonesia, which will bring ‘Jamu’ medicines onto the international market. ‘Jamu’ are the traditional local botanical medicines widely prescribed for those who live in Indonesia, the largest country in South East Asia. This thriving business of traditional medicine is one of the few that does well even in Indonesia’s recession-ridden economy. ONP has also signed an agreement with one of the leading natural medicine development institutes in Vietnam. The two-part agreement embraces both development and future commercial rights giving the company exclusive access to an important portfolio of Vietnam’s plant medicines. ONP is also involved in Bhutan, in which the company used the knowledge of the Dungtshos (Bhutanese traditional medicine doctors) and their assistants, the Menpas, to identify and document several medicinal plants prescribed as local remedies.
In the Andaman Islands, off India’s eastern coast, the Onge tribe supposedly had a cure for malaria.66 There was huge controversy when it was discovered that senior officials from a government-run research centre had planned to file a patent application in their own name for the malaria cure.
The Philippine yew tree (Taxus matrana), reported to have great potential in treating cancer, was uprooted from a national park in Mount Pulag, Benguet. Subsequently, researchers from the University of Massachusetts patented it.
Indian Council of Medical Research, 2000, Ethical Guidelines for Biomedical Research on Human Subjects, New Delhi, www.icmr.nic.in/ethical.pdf.
This typology was first used by the National Conference of Catholic Bishops (National Conference of Catholic Bishops, Economic Justice for All 1986). Commutative justice, as the first category of justice, calls for fundamental fairness in all agreements and exchanges between individuals or social groups. The second category of social justice is distributive justice. In its broad sense, distributive justice is concerned with the fair allocation of the benefits of a particular society (for instance, income, wealth, power, and status) to its members. The final category of justice is also known as punishable justice. It refers to the fair and just punishment of the guilty. With regard to access to and use of information, this form of justice acts as an important guideline for the protection of indigenous knowledge. In the case of the intellectual property laws, punishment for the theft of that property is supported by this application of social justice. However, other ‘takings’ short of actual theft could also be subject to retribution.
According to Dutfield (2000), solutions to the protection of traditional knowledge in IPR law may be sought in terms of ‘positive protection’ and ‘defensive protection.’ Positive protection refers to the acquisition by the TK holders themselves of an IPR, such as a patent or an alternative right provided in a sui generis system. Defensive protection refers to provisions adopted in the law or by the regulatory authorities to prevent IPR claims to knowledge, a cultural expression, or a product being granted to unauthorised persons or organisations. It is important to mention here that positive protection measures may also serve to provide defensive protection and vice versa. The distinction between the two, then, is not always clear-cut. To many countries, non-governmental organisations, and others, defensive protection is necessary because the intellectual property system, and especially patents, is considered deficient in certain ways and allows companies to unfairly exploit TK. It may also be true that defensive protection may be more achievable than positive protection. This is because some of the most commonly-discussed defensive protection measures are basically enhancements to or modifications of existing IPRs.
Farley believes copyright, and to a lesser extent, trademark and the related unfair competition laws (deceptive advertising), are best, while Greaves and Stephenson both consider a contract or license scheme to provide the best option. McGowan and Udeinya forward a more complex system of contract-based royalty rights for commercially viable indigenous knowledge. Instead of an expansion of patent rights, Hanellin forwards a sui generis approach (a specific statute) to offer de novo protection for plant-derived drugs (Hanellin 1991). King argues for a more general concept of compensation. Another option would be to maintain the traditional intellectual property systems, but rely on public sector intervention when exploitation of it occurs. Ruppert applies this to physical property, religious, sacred, or historical sites, but not to intangible property.
See generally Cleveland, D.A., & Murray, S.C. (1997). The world’s crop genetic resources and the rights of indigenous farmers. Current Anthropology, 38(4): 477–496 (discussing aspects of the debate over the protection of indigenous farmers’ rights); Griffiths, op cit. (discussing the concept of exclusive rights as it is inherent in indigenous communities regarding magical knowledge). Shamans and other TK holder specialists may wish to restrict access to their knowledge for reasons other than because they consider it to be their property. For example, sacred knowledge, which may include knowledge of the therapeutic properties of plants, is often considered dangerous if it gets into the hands of the uninitiated. In other words, they may be concerned for the welfare of those who acquire the knowledge and try to use it.
For an alternative classification of modalities of knowledge possession based on the concept of “negative” and “positive” community.
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Torri, M.C., Herrmann, T.M. (2011). Traditional Ethnobiological Knowledge and Bioprospecting. In: Bridges Between Tradition and Innovation in Ethnomedicine. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1113-6_3
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