Time to keep biopirates at bay
Corporations are failing to compensate communities for using their traditional knowledge of plant healing
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.
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