How the Current Regime of Intellectual Property Rights is Resulting in Biopiracy

Marcelo Gortari

I like to think that if most people were told multinational firms scour the planet in an attempt to patent traditional knowledge such as basmati rice and certain yoga positions—both of which are part of the cultural and social fabric of South Asian nations—they would find it quite unethical.  Well, this is precisely what is happening. Companies routinely acquire legal ownership of bio-species, knowledge, and cultural practices of indigenous cultures.

This development has been dubbed “biopiracy,” and despite international treaties to prevent this from happening, there is reason to believe that a growing number of popular consumer products, pharmaceutical drugs, cosmetics and handicrafts are derived from traditional knowledge and indigenous cultural expressions.[1]  In fact, recent studies suggest that of the more than 130 clinically useful major prescription drugs worldwide that are derived from plants, over 70 per cent of them were developed by pharmaceutical companies after being widely used in traditional systems of medicine. [2] A separate study in 2000 concluded that the unauthorized use of traditional knowledge or the misappropriation of medicinal plants existed in 7,000 patents.[3]

Indigenous cultural practices, cultivated over centuries, do not operate under the same notions of intellectual property rights (IRPs) as do multinational companies. For many indigenous peoples, the concept of documenting their knowledge with patent offices is extremely foreign. Indigenous peoples see themselves as a collective entity living in harmony with nature. Within communal social structures, prior to IRPs they did not see the need to claim ownership of knowledge, did not seek to monetize or trade this knowledge, and passed this know-how orally to future generations.

The legal process surrounding intellectual property rights is complicated and arguably protects multinational companies’ interests.  Defenders of the current IPR regime say that indigenous groups and developing countries, in general, never patent the benefits of their medicinal plants, practices, etc..[4]  However, to be protected by IPR, it is insufficient for indigenous population to have known about the medicinal properties of a certain plant; that knowledge must be filed in western patent offices as well.

For example, Rice Tec Inc. (an American company) patented basmati rice—which has been eaten in India for hundreds, possibly thousands, of years—in 1997 to the outrage of Indian authorities.[5]  Fortunately for India, the patent was eventually overturned in an American court. For smaller countries that do not have the same amount of legal, political, and financial resources, the fight is much more difficult.[6]

There are two major international treaties that codify the right of indigenous groups to safeguard their intellectual property rights: the UN Declaration on the Rights of Indigenous Peoples, which came into force in 2007 with global support and the Convention on Biological Diversity that was put forward at the Rio Earth Summit of 1992 (inspired by growing commitment to sustainable development at the time).  Often, industrialized countries fear that complying with biodiversity regulations will hurt multinational corporations’ bottom line. When asked in 1992 why the United States signed but did not ratify the Convention, George Bush said, “it’s important to protect our rights, the rights of our businesses.”[7]  Despite the United States’ lack of support for the Convention, it remained open for signature until 4 June 1993, by which time it had received 168 signatures—it entered into force on 29 December 1993.[8]

Free markets, in their purest definition, are characterized by a dynamism that is brought about by competition and the proper incentives, and have been instrumental in the construction of ‘miracle economies’ and in lifting millions out of poverty.  The private sector should be rewarded for staying ahead of the game and for being highly innovative through their R&D efforts.  But, the current IPR framework under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is putting the private sector in the driver’s seat when it comes to protecting the right of indigenous peoples to maintain their very way of life and dignity. If the private sector’s attempt to confiscate what naturally belongs to all inhabitants of the Earth is not thwarted, not only will indigenous groups continue to suffer and possibly lose key aspects of their culture, humanity as a whole will lose out.

Marcelo Gortari is a 2014 Master of Public Policy candidate at the School of Public Policy and Governance.  He holds a Master’s degree in Political Science from the University of Toronto and a BA in International Area Studies from Drexel University.  He was born and raised in Toronto, and spent 8 years teaching English in S.Korea, five of which were at the college/university level.  He has also taught English as a Second Language at York University for 8 months. 


[1] State of the World’s Indigenous Peoples Report (2009): Pg.69.

[2] Ibid.

[3] Ibid.

[4] Joseph Stiglitz, 2007. Making Globalization Work. WW. Norton & Company, Inc., pg. 126.

[5] Ibid.

[6] Ibid.

[7] Eduardo Galeano, 1998. “Upside Down: The School of the Backwards World.” 21st Century Spanish Editors, Spain. Pg.223.

[8] Convention on Biological Diversity: http://www.cbd.int/history/; accessed on March 26th, 2011.

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One response to “How the Current Regime of Intellectual Property Rights is Resulting in Biopiracy

  1. The worst part is that there’s a mechanism within patent law for dealing with both this, and the phenomenon of ‘patent trolls’ in technology: prior art. Simply put, if something has previously existed, with or without a patent, it should not (according to patent doctrine) be patentable because it is not a truly novel invention. Unfortunately, prior art seems to have fallen out of favour in practice.

    It’s worth remembering that IP rights are not a “right” in the democratic sense of the word, they specifically exist to encourage innovation. IP rights in the US Constitution are given to creators, not because they are entitled to it as creators, but because it promotes “progress of Science and useful Arts.” Ignoring prior art removes incentives to innovation, and creates incentives for abusing the patent system.

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