TCS Daily


That Phantom Menace

By Alan Oxley - March 21, 2006 12:00 AM

Just over one year ago, Bangkok hosted a meeting of the United Nations Convention on Biological Diversity on the best way to improve access to genetic resources. The concern then was that biopiracy was robbing developing countries of the opportunity to secure the full benefits of genetic resources in their own territories. Research since then shows the incidence of "biopiracy" to be significantly overstated.

Nevertheless, nearly a year later, environment ministers are meeting in Curitiba, Brazil and considering a proposal to create a new international convention to "curb" biopiracy. The result of a new convention will curb the opportunities of countries like Thailand to secure investment for research and development in important sectors like agriculture, biotechnology and medicine.

Following the Bangkok meeting, the Australian APEC Study Centre undertook research into the claim of biopiracy and possible options that would improve access to genetic resources. The findings were surprising: biopiracy as claimed by non-governmental organisations like Third World Network, was non-existent.

The researchers regard biopiracy as a forcible and illegal removal of property.

"Biopiracy" is most commonly used to mean either the misuse of intellectual property (when patents or trademarks are erroneously issued) or restricting the access of foreign companies to genetic resources.

Three years ago, the Japanese trademark office issued a trademark for Acia, a fruit found in Brazil. Marina Silva, the Brazilian minister of environment, has long-campaigned on the basis that this is biopiracy. That is a fallacy. Common names should not be patented as trademarks. This was contested and the trademark was withdrawn.

What's more, there were objections from India and Thailand when W R Grace, a US-based chemical company, patented a product based on the natural insecticide properties of the Neem tree.

In its natural state, the insecticide had a short shelf life. The company patented a method of extending the shelf life by several weeks. India challenged the patent, but the US Patent Office held that the process was an invention and could be patented.

Nevertheless, it is still said in India that patents should not be permitted in other countries. India's traditional owners should have the right to determine what is done with any derivative from a Neem tree.

This concept is laid out in a draft convention which Ethiopia, speaking for the African countries, along with India and Brazil want negotiated into a full convention. Every transfer of a genetic resource between parties would be recorded and authenticated. The approval of the owner of a genetic resource would be required before it or its derivative could be used in research.

The reasoning was this would require companies to negotiate with every owner when a patent was granted and presumably for a share of the profits.

There are several problems with this. First, no fabulous profitable drugs have been discovered from genetic resources from the forests or jungles. Most are the result of very expensive and laborious research.

Second, who is the ultimate owner of a genetic resource? Every living organism is derived from something else. Is not an Indonesian researcher able to buy a Neem tree in India, bring it to Indonesia and use it for research without having each action approved by whoever is said in Indian law to be the owner?

The concept is obviously unworkable. It also undermines other important treaty obligations created by the Food and Agricultural Organisation (FAO). They allow intellectual property rights to be granted to developers of new seed varieties. They also create common and streamlined methods to give easier access for agricultural researchers to global data banks of agricultural genetic resources. The approval processes implicit in the convention proposed by Ethiopia would undermine the FAO.

Further, the restrictions would chill investment by domestic companies and researchers with strong technical knowledge as much as foreign companies. Investment in biotechnology, agricultural research and medical science would dry up in any country which enacted such laws.

Many economies in East Asia have significant rights to plants and products in agricultural and agri-food industries. Many have programmes to build life-sciences industries. Virtually all seek foreign investment in these industries. This is the most effective way to acquire technology. Thailand is no exception.

The Rio Earth Summit which adopted the Biodiversity Convention in 1992, enjoined all members of the UN to ensure environmental and economic development interest were linked -- one was not to be subordinate to the other.

It seems likely that before heading off to Curitiba, the environment ministries in many countries have not consulted their agricultural ministries, industry ministries, trade ministries or intellectual property offices. Let us hope they do before the Curitiba meeting ends.

Improving access to genetic resources is a relatively minor matter when it comes to protecting biodiversity. It would be completely contrary to the spirit of the Rio Summit, if a convention like the one proposed, was enacted and its only real impact were to diminish economic interests which are central to growth and development.

A version of this article appeared in the Bangkok Post.

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