Biopirates Walk the Plank

By Kelly Hearn, AlterNet. Posted June 15, 2006.

A National Geographic project that uses DNA to map humanity's genetic lineage is under fire from indigenous rights groups that are pressing the United Nations to halt the project.

The controversy marks the rising public profile of "biopiracy" -- a word that just entered the Oxford English Dictionary last year and loosely refers to the failure of companies and researchers to pay indigenous groups and poor governments for biological materials and ideas.

As scientists scour rainforest in search of useful things inside living beings, a growing list of developing countries and groups are moving to stop piratical pilferers -- or take a cut in their profits.

The rising biopiracy panic has even tainted companies like Google, which in March was put on the plank for its reported plans to help geneticist -- and accused "biopirate" -- Craig Venter put searchable genes online. Venter's press representative had no comment, and Google's representative said the company had no information to share.

"Biopiracy awareness is undoubtedly growing fast, so much so that you are seeing calls for an international framework to deal with the problem," said Deb Harris, a Northern Paiute activist from Nevada who directs the Indigenous Peoples Council on Biocolonialism (IPCB).

In March, a U.N. meeting in Brazil heard calls for international laws to stop biopirates and give indigenous groups benefits-sharing plans. Meanwhile, trade lawyers fight over patent laws at the World Trade Organization and the World Intellectual Property Organization. And green groups battle free trade deals like the pending agreement between biorich Peru and the United States, which critics say fails to crack down on biopirates.

But some question whether well-meaning biopiracy activists are taking the wrong road, even hindering science and useful projects.

The National Geographic's Genographic project, a nonmedical project that also lets Average Joes buy a $90 testing kit to discover their own genetic heritage, steers proceeds to a fund that helps indigenous groups. But Harris of IPCB says researchers fail to properly inform subjects before they hand over DNA samples. "The project's research protocols show they only spend 20 minutes with the test subjects getting their consent," said Harris, who has assembled hundreds of signatures from indigenous groups and is pressing a U.N. body on indigenous affairs to stop the project.

National Geographic officials are frustrated by the charges and stress that researchers even took the rare step of releasing research protocols in the name of transparency. They point out that the 20-minute window cited in the protocol alludes only to the physical sampling of blood, not the time it takes to inform and get consent, as critics claim.

"It clearly does not include the extensive time taken to make initial contact with indigenous collaborators and representatives, explain the project, receive word of enthusiasm (or not, which is fine) and then spend time setting up the further permissions to visit the region, talk to leaders and individuals whom we have been briefed are already interested, etc., which takes weeks and months," Lucie McNeil, a National Geographic spokeswoman, wrote in an email.

Share the benefits

Many indigenous groups and developing countries are calling for "contractual benefits sharing" whenever corporations make money off "research leads" or materials snatched from native habitats. Some call for new patent rights over seeds, knowledge and other things foreign companies have been known to grab. Still others reject altogether the right to patent life forms.

The crosscurrents make biopiracy, a very real and ecological destructive problem, a vague and confusing buzzword.

One challenge for biopiracy activists is getting America's shrunken attention span around the dull but crucial topic of patent law. Perhaps that's why biopiracy has a sensationalist vibe.

"Patents are socially corrosive and the whole system undermines conservation and use of biological diversity," says Hope Shand of ETC Group, which is a member of the Coalition Against Biopiracy.

As corporations probe deeper into jungles looking for the next miracle drug or food product, Washington's global push for free trade deals spreads a "predatory patent systems" that favors industrialized nations and treats nature as a commodity, say many activists.

Several famous cases of "bad patents" reveal how the U.S. patent office can hurt developing countries, especially farmers, by awarding patents for, say, beans or rice that have been grown by indigenous communities for centuries. Those cases are grist for international attempts to fix the problem. But how do the world's poorest communities make claims against corporate power and a U.S. administration loathe to protect traditional knowledge and biodiversity at the expense of big business?

Brazil, a species-rich country that has seen biopirates skedaddle with its resources, has passed domestic biopiracy laws while boosting its own scientific potential to make use of its natural endowment. According to a recent New York Times report, it has passed a law aimed at punishing those who use indigenous resources without permission, or who don't share the benefits with the state or local communities. The fines from penalties will go to conservation efforts.

Playing the patent game

Many laud the U.N.'s attention to biopiracy, particularly a draft United Nations Declaration on the Rights of Indigenous Peoples that calls for indigenous communities to own their resources such as seeds and traditional know-how. But the problem, say sympathizers like Strand and open-source technology guru Richard Stallman, is that claims to "ownership" -- while seemingly a good fix -- actually places the value on these resources as commodities. What's more, the patent game is hard for little guys to play.

"Although some indigenous peoples may promote the idea of patenting their own resources, it's usually rejected as a strategy because it's a high-stakes game, and they can't possibly compete with the deep pockets of multinational companies," says Shand.

And securing a patent calls for lawyers and budgets for litigation and applications -- something farmers and indigenous peoples don't have. Another big problem is dialing back bad patents once they've been issued. Activists point to the Enola bean, involving a U.S. patent over a traditional Mexican bean that remains in force six years, nearly a third of its 20-year lifecycle, after a legal challenge began.

Shand says the contractual benefits sharing approach requires indigenous groups to become involved in "commodifying and selling the commons and collective heritage," perhaps pitting them against the same people or inhabitants of the same region. Solveig Singleton, a lawyer with the Competitive Enterprise Institute, questions benefit sharing schemes on different grounds. She says it's understandable for indigenous groups to take a defensive posture against bad patents. But in a telephone interview she questioned "vague claims" to rights that would let them have a share of product sales that required major work and investment to take to market.

Writing in her blog, she asks: "Would these same discoverers share the risk and blame if the product were somewhere downstream found to cause birth defects or other harm? Would they also desire to share in the profits from sales of coffee, tea, and chocolate, claiming to have discovered their property of tastiness? What about the properties of coca leaves and opium poppies? Would they like to share in the profits from the development of those products into painkillers? Would they also like to share in the profits from the sales of heroin and cocaine? What about crack? Will they share in ameliorating the harms?"

While activists may disagree on the usefulness of asking for benefit-sharing schemes, they widely agree that patents like the Enola bean should be stopped before they start.

Brazil and India represent a group including Bolivia, Colombia, Cuba, Dominican Republic, Ecuador, Peru, Thailand and other developing nations. They are calling for fixes within the present patent system, advocating that the Convention on Biodiversity (which calls for equitable benefits sharing) be fused with the WTO's patent treaty, known as TRIPS. They want governments to force patent applicants to say where they got the genetic material and traditional knowledge before issuing a ruling. They also want prior proof that local groups who helped patent applicants were properly informed and given equitable stake in the project.

Not surprisingly, the Bush administration is a no-go. They've rejected calls to strength protections for indigenous knowledge at the expense of big business, groups like Public Citizen point out. Washington wants to let domestic laws deal with biopiracy while the European Union is somewhere in the middle, saying that patent offices are not fit to determine what's fair.

The bottom line

Meanwhile, as rain forests are destroyed (by a multitude of factors), the money machine keeps on turning.

Some three-quarters of all plant-derived prescription drugs were discovered because they had once been used in indigenous medicine, according to one figure. Another says that between 1950s and 1980, drugs derived from medicinal plants consistently accounted for not less than a quarter of all prescription drug sales in the United States.

Some say the biopiracy backlash is hurting more than some corporations' image.

Thomas Lovejoy, president of the Heinz Center for Science Economics and the Environment, is a known advocate of rainforest preservation -- and a formerly accused biopirate. He was swept up in Brazil's biopiracy panic last year, even accused by some Brazilians as being a CIA operative while working in the jungle for the Smithsonian Institution. After appearing before a Brazilian congressional committee, he was eventually cleared of the charges.

"While one can understand the attention being paid to biopiracy, it in fact is fairly easy to prevent," he sad in an email. "No modern-day scientific institution would condone it, and the basic framework of intellectual property protection should be sufficient to protect national interests in the economic potential of biodiversity applications. Unfortunately in some situations the preoccupation with biopiracy borders on obsessive, and I believe does get in the way of research and the best interests of the countries involved."

So, if new patents and bilateral deals over benefit sharing aren't the way to ensure that indigenous groups and developing countries get their cut of the cake, what's the answer?

Some activists call for nonproprietary systems of benefit sharing -- multilateral frameworks in which governments support a global biodiversity fund, a kind of endowment for promoting the needs of those indigenous groups.

Can the patent genie be put back into the bottle, somehow made subordinate to biodiversity needs? Will the biopiracy label lose public relations power if misused? Is science truly being hurt? Should indigenous groups call for new rights of ownership over their natural habitat? Is seeking "contractual benefit sharing" a bad row to hoe?

Certainly Alejandro Argumedo thinks so.

In a quote attributed to him, the Quechua activist said: "Contractual benefit sharing is like waking up in the middle of the night to find your house being robbed. On the way out the door, the thieves tell you not to worry because they promise to give you a share of whatever profit they make selling what used to belong to you."

Kelly Hearn is a former UPI staff writer who divides his time between the United States and South America. A correspondent to the Christian Science Monitor, his work has appeared in The Nation, The American Prospect and other publications. He is a regular contributor to AlterNet.

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