Time to keep biopi­rates at bay

Cor­po­ra­tions are fail­ing to com­pen­sate com­mu­ni­ties for us­ing their tra­di­tional knowl­edge of plant heal­ing

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - SEL­VAN SUBROYEN

WHILE So­mali pi­rates ply their trade with aban­don on the ship­ping lanes of the In­dian Ocean and the world watches en­thralled as the drama of a hi­jack­ing takes place, an­other type of pi­rate sits in the board­rooms of pow­er­ful phar­ma­ceu­ti­cal multi­na­tion­als, eyeing the bio­di­ver­sity of the third world with in­tent.

The weapon of choice for this pi­rate is the fil­ing of a patent on plants and tra­di­tional knowl­edge, lay­ing claim to ex­clu­sive rights to the use of its in­gre­di­ents in a range of prod­ucts from drugs, fra­grances, cos­met­ics, tooth­paste and en­ergy drinks to food­stuff.

The phrase biopiracy has gained cur­rency in the past few years and refers to the unau­tho­rised use by cor­po­ra­tions of ge­netic re­sources and the tra­di­tional knowl­edge of lo­cal com­mu­ni­ties by claim­ing own­er­ship, usu­ally with­out con­sent or com­pen­sa­tion to the com­mu­nity that has been us­ing the flora for tra­di­tional reme­dies for hun­dreds of years.

This prac­tice is rife in coun­tries where ac­cess to these re­sources is not reg­u­lated by law and as a re­sult thou­sands of patents on in­dige­nous plants around the world have been filed.

Now many de­vel­op­ing coun­tries are chal­leng­ing phar­ma­ceu­ti­cal com­pa­nies in court over patents filed on in­dige­nous plants.

In­dia has re­voked a patent is­sued in the US on the medic­i­nal use of turmeric suc­cess­fully on the grounds that it has been used by In­di­ans as an an­ti­sep­tic for cen­turies.

SA has not been spared the spec­tre of biopiracy ei­ther. The case of the Hoodia cac­tus used by the San peo­ple of the Kala­hari as an ap­petite sup­pres- sant and the drug com­pany Pfizer is a case in point. The Coun­cil for Sci­en­tific and In­dus­trial Re­search (CSIR) iso­lated the com­pound that sup­presses hunger and sold the mar­ket­ing rights to Pfizer. It was only af­ter the San Coun­cil com­plained that the CSIR agreed to share roy­al­ties.

Ac­tivists and cam­paign­ers against biopiracy wel­comed the adop­tion in Oc­to­ber 2010 of the Nagoya pro­to­col on ac­cess to ge­netic re­sources and to the fair and eq­ui­table shar­ing of ben­e­fits aris­ing from their util­i­sa­tion at the UN Con­ven­tion on Bi­o­log­i­cal Di­ver­sity in Nagoya, Ja­pan.

A close ex­am­i­na­tion of the pro­to­col dis­closes that the lan­guage used is open to in­ter­pre­ta­tion and its im­ple­men­ta­tion de­pends on how ro­bust and ef­fec­tive do­mes­tic leg­is­la­tion is to stave off the ad­vances of multi­na­tion­als.

Phrases like “each party shall take ap­pro­pri­ate mea­sures”; “in ac­cor­dance with do­mes­tic law”; and “par­ties shall en­deav­our to sup­port lo­cal com­mu­ni­ties” are couched in gen­eral terms.

The pro­to­col is not legally bind­ing on par­ties and the real fear is that many de­vel­op­ing coun­tries may not have the po­lit­i­cal will or ca­pac­ity to stop multi­na­tion­als scram­bling for their share of

One of the big­gest chal­lenges fac­ing de­vel­op­ing coun­tries is to de­velop leg­isla­tive and ad­min­is­tra­tive mech­a­nisms to keep the biopi­rates at bay

the nat­u­ral bounty and tra­di­tional knowl­edge of lo­cal com­mu­ni­ties.

One of the big­gest chal­lenges fac­ing de­vel­op­ing coun­tries is to de­velop leg­isla­tive and ad­min­is­tra­tive mech­a­nisms to keep the biopi­rates at bay.

SA has the leg­isla­tive mech­a­nism in place in the form of the 2008 Reg­u­la­tions on Bio-Prospect­ing, Ac­cess and Ben­e­fit-Shar­ing made un­der the Na­tional En­vi­ron­men­tal Man­age­ment: Bio­di­ver­sity Act of 2004.

Some of the key as­pects of these reg­u­la­tions concern the need for prior in­formed con­sent by the gov­ern­ment for the com­mer­cial use of in­dige­nous bi­o­log­i­cal re­sources, in­clud­ing cri­te­ria for ben­e­fit-shar­ing and the trans­fer of ma­te­rial.

The reg­u­la­tions set out the ap­pli­ca­tion pro­ce­dure and re­quire­ments for ob­tain­ing a per­mit for the com­mer­cial use of SA’s bi­o­log­i­cal re­sources. De­spite this, some com­pa­nies pre­fer op­er­at­ing out­side the am­bit of ex­ist­ing do­mes­tic law.

A well-known com­pany has filed five patent ap­pli­ca­tions on the use of Rooi­bos and Hon­ey­bush for hair and skin prod­ucts. These plant species are en­demic to the East­ern and West­ern Cape of SA and have been used by lo­cals for many years as tra­di­tional medicine and for the treat­ment of der­ma­to­log­i­cal con­di­tions.

The Depart­ment of En­vi­ron­men­tal Af­fairs con­firmed that this com­pany did not re­ceive a per­mit un­der the Bio­Prospect­ing Reg­u­la­tions; nei­ther has it ne­go­ti­ated a ben­e­fit-shar­ing agree­ment with lo­cal com­mu­ni­ties.

A prac­ti­cal prob­lem in SA is that ge­netic re­sources are not held by the state but by com­mu­ni­ties and in­di­vid­u­als and that even if com­pa­nies aban­don their patent ap­pli­ca­tions they may en­ter into deals with lo­cal chiefs or mid­dle­men for a con­stant sup­ply of plant ma­te­rial. Pro­vin­cial en­vi­ron­men­tal de­part­ments may find it dif­fi­cult to mon­i­tor the har­vest­ing and trade of tra­di­tional plants for for­eign com­pa­nies. Fur­ther, there is an ur­gent need to cat­a­logue the use of ge­netic re­sources and tra­di­tional knowl­edge and to cre­ate a data­base of in­for­ma­tion to deny biopi­rates the op­por­tu­nity to patent tra­di­tional medicine.

The Nagoya pro­to­col em­pha­sizes the need for de­vel­oped coun­tries to pro­vide fund­ing, build ca­pac­ity and strengthen hu­man re­sources. If de­vel­op­ing coun­tries can be as­sisted in build­ing a data­base of their ge­netic re­sources and in­dige­nous knowl­edge it can serve as ev­i­dence that prior in­formed con­sent and mu­tu­ally agreed terms must be es­tab­lished be­fore us­ing the in­for­ma­tion or ge­netic re­source for com­mer­cial pur­poses.

It re­mains to be seen whether the Nagoya pro­to­col, in tan­dem with the South African Reg­u­la­tions on bio­prospect­ing, will re­strain multi­na­tion­als from gorg­ing at the bio smor­gas­bord of the poor­est coun­tries. In the fi­nal anal­y­sis it is about re­spect and rev­er­ence for sys­tems de­vel­oped over the mil­len­nia and fair­ness in shar­ing ben­e­fits with lo­cal com­mu­ni­ties.

Pic­ture: IDEA GO/freedig­i­talpho­tos.net

There is an ur­gent need to cat­a­logue the use of ge­netic re­sources and tra­di­tional knowl­edge and to cre­ate a data­base of in­for­ma­tion to deny biopi­rates the op­por­tu­nity to patent tra­di­tional medicine

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