Authored By Swayambhu Mukherjee:
The following is an excerpt from an unpublished paper that had been written by me in 2007. While I, personally, no longer subscribe to some of the views put forth in this post, some of the points below should provoke thought.(Img Src:Google)"]The term “indigenous” can have various imports in different spectra of usage. The Concise Oxford Dictionary defines it as - “Indigenous: adj. a. (esp. flora and fauna) originating naturally in a region. b. (of people) born in a region.”
(The Concise Oxford Dictionary, 692, (9th Edn., 1995.) As we can see, the dictionary meaning of the word ‘indigenous’ speaks only about the flora and fauna originating naturally in a region or the people born in a particular region. However, in common parlance, this word is used to convey a slightly different meaning. More often than not, it is used to refer to flora and fauna originating in third world countries and their appropriation by locals, using their own traditional method & practices. An example of such a combination can be found in the use of the ‘Hoodia’ cactus as a hunger suppressant by the traditionally living ‘San’ people of the Kalahari Desert. The purpose of this post is primarily to critique and analyze the several ‘Intellectual Property’ norms & their functioning with respect to indigenous interests, and in that regard, it is necessary to evolve and develop a proper working definition of ‘indigenous interests’ in flora and fauna first. This definition should primarily depend on two points – the knowledge itself, coupled with the use of such knowledge on one hand and the antiquity of such customary usage on the other. A definition similar to this found recognition in the aforementioned ‘San’ example. In this case, the Council for Scientific and Industrial Research (C.S.I.R.) had succeeded in isolating Hoodia’s hunger suppressing chemical agent, P. 57, and had licensed Phytopharm to further develop and commercialize it after patenting the chemical. It was thought to be a cure for obesity, being a naturally occurring hunger suppressant. However, the rights of the San people were ignored completely, even though they had known this for centuries and had used it for similar purposes.
In 2001, the San Council took up this issue with the C.S.I.R. and ultimately succeeded in establishing their claim. As a result, a profit sharing agreement was entered into, and the South African San Council now gets 8% of the profits from the diet drug derived from the Hoodia Cactus. caption="Hodia San People(Src:Google)"][/caption]This example also highlights how instances of the phenomenon that is popularly known as biopiracy are on the rise throughout the third world, establishing a worldwide trend in which the ultimate beneficiary is almost always a first world corporation or government which has violated the rights of an indigenous group with impunity. Other examples of this would be the Neem tree case and the patenting of the Enola bean. (Both instances are discussed later.) The turmeric case is yet another example. In fact, this problem has even led to the coining of a new term, biopiracy. This term, in a looser sense, covers the various forms of power imbalance between richer and poorer countries, which often arise out of the third world countries’ tendency towards higher biodiversity and indigenous knowledge of natural resources, and the felt need of corporations based in first world countries (backed by a powerful nation state) to exploit and appropriate such indigenous biodiversity and knowledge systems. Such appropriation is normally carried out by means of patents, and the indigenous people do not usually receive compensatory payments. caption="Image Taken By RQ Team"]
The question that naturally arises in this context is: why do giant trans-national corporations feel the need to indulge in biopiracy? The answer to this depends squarely on two points. Firstly, the third world countries, with their enormous biodiversity and thriving indigenous cultures, provide these corporations with a fertile hunting ground. In most cases, indigenous knowledge is not properly documented but is handed down from one generation to another orally. Thus, the knowledge is in existence but is not documented. This enables corporations to get patents easily by claiming that such knowledge does not amount to ‘prior art’ as required by the patent laws in place in the developed world. In fact, in the Neem tree patenting case, one of the arguments adopted by the pharmaceutical company that had patented ‘Neem’ was based on this. The company argued that as traditional Indian knowledge of the properties of the Neem tree had never been documented or published in any academic journal or textbook, such traditional or indigenous knowledge did not amount to a ‘prior art’. (See this for an understanding of the concept of prior art.) Secondly, the ground realities of medicinal and pharmaceutical research demand that corporations engage in biopiracy in order to reduce research and development costs, thereby, maximizing profits. In a typical drug research scenario, investigators often have to encounter thousands of failures before tasting success. However, when coupled with indigenous knowledge, success rates often increase drastically.
The Rural Advancement Foundation International reports that random testing has a success rate of only 1:10,000. This gives it some of the economic features and characteristics of a lottery or a jackpot, wherein success rates are low, but the fruits of success yield rich dividends. Economic returns are often very high, and can even be wildly out of proportions with the invested effort. As has been mentioned before, success rates improve drastically when testing is coupled with indigenous knowledge. The above-mentioned report estimates that success rates can improve up to about 1:2 when indigenous knowledge is taken into account. The revenue generated by such successful testing, however, remains the same. As a result, profits tend to increase drastically, because of a huge decline in research development expenditure. This provides a strong incentive to existing pharmaceutical giants to indulge actively in biopiracy. A news report published in 1998 has shown that 56% of the top 150 drugs in use within the U.S. are based on chemicals derived from plants, and 40% of all Western pharmaceuticals products have been found to contain Asian plant extracts. Another study conducted in 1994 found that of the 199 drugs developed from higher plants, 74% were discovered from a pool of traditional medicine. A workshop on traditional medicine in Bangkok had also come to the conclusion that there is in existence a world market for herbal medicines estimated at $43 million, with an annual growth rate of 5-15 %. These figures tell us that while the potential rewards for the third world are enormous, the temptation to commit biopiracy is also great. One only needs to add to this the fact that markets are reaching saturation levels, and that there is still no adequate therapy for about 75% of the nearly 2,500 recognised medical conditions. (See this.)
The problems do not stop just here, however. More often than not, the corporations in question have the tacit support and approval of their respective domestic governments, who have put in place patent regimes (also termed ‘Intellectual Property' laws) to support biopiracy. A case in point is that of A. 102 of the U.S. Patent Act, 1952, which refuses to recognize or acknowledge technologies, methods and knowledge in use in other nation states as a ‘prior art’. According to this provision, public use or sale in a foreign country does not constitute a 'prior art’ in the eyes of the U.S. patent regime. Since patents are supposed to be awarded for new inventions or innovations only, denial or non-recognition of a ‘prior-art’ in other countries allows patents to be taken out on knowledge already in use in a foreign country. This has been one of the methods adopted to facilitate biopiracy, especially within the U.S. The patenting of a technique to extract anti-fungal agents from the Neem tree serves as a classic example. This technique has been in use in India for centuries. However, this was conveniently ignored by the American Government when it decided to grant a patent on the anti-fungal properties of the Neem tree, and it made good use of the faulty provisions in its intellectual property rights laws to promote biopiracy. And, nothing illustrates the problems that are caused by biopiracy more than the patent on the Enola bean. As a result of the patenting of the Enola bean, export sales of the bean dropped over 90% and more than 22,000 Enola bean farmers of Northern Mexico lost their only source of livelihood. In fact, at this point it can be said that these provisions have been designed deliberately to allow for biopiracy.
One only needs to look at the history of U.S. patent laws for confirmation. In fact, when the modern system of I.P.R.s first emerged in the nineteenth century, they needed to fulfil only a national criteria. This practice, which is denounced as piracy today, enabled the first world countries to reach their present stages of development. Reciprocal recognition came later, and it was given a concrete shape in the Paris Industrial Property Union of 1883, and the Berne Copyright Convention of 1886. It is interesting to note that the U.S. had refused to join the Berne Convention at that point of time in order to protect low cost publishing in the country. For the first hundred years after the creation of a framework for reciprocity with respect to intellectual property rights, the U.S. refused to respect international intellectual property rights, claiming that it was freely entitled to imitate foreign works in furtherance of its social and economic development. The TRIPS system is also to blame for this. The TRIPS draft does not contain a detailed account of the conditions required for granting patents. It only specifies three basic criteria for conferring patent rights: novelty, inventive step and applicability.
The emphasis is on protecting such rights and enforcing them. Article 27 of TRIPS is based on the draft Patent Harmonization Treaty prepared by WIPO, which was abandoned in 1991. From this draft, provisions were borrowed selectively so as to favour patent owners. This emphasis on safeguarding the right of patent holders has meant that Article 27 does not define its three criteria, or for that matter, clarify the difference between a discovery and an invention/innovation. The result has been a commodification of traditional knowledge. The answers to all the problems discussed above can be found by implementing suitable legal/policy measures. Are our parliamentarians willing to act, though? Some progress has been made, and the creation of a digital database for indigenous knowledge has been a good move. However, a lot more is still left to be done.
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Emmitt Bomia
said:
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... Orthodox medicine kills many people, especially with cancer treatment and it is of little use for many auto immune disease. It is great for trauma, bacterial infections, and managing a couple diseases like diabetes and asthma (to some extent), but drugs kill many people and it does not make the news. |
Riju
said:
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... well written article..Thank you for this eyeopening information...Why we people don't trust our old method of treatments??Thank you.God bless keep writing.....all the best |
Barton Opela
said:
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... Good day I appreciated your post. I think that it's important when talking about diabetes to at least mention natural remedies that have been shown to be effective in managing high blood sugar. Numerous natural herbs can be including in a diabetics treatment that may help preserve a wholesome sugar level. |
Prashanti
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... Good Article !! I know of an Indian professor working in the US who has had a patent issued in his name for the use of Turmeric for medicinal purposes !!!! This when turmeric has been used for centuries in India. Thankfully, India fought the patent and had it revoked. |
