Case Studies of Biopiracy

Biopiracy

The origin of biopiracy can be found within the colonial era, when European powers discovered “new land” and seized control of much of what is now known as the global south . As Europeans colonized, they appropriated any resources they considered to be profitable, and gave nothing in return to the indigenous communities whose people had used the resources for generations. Such exploitation is not just a thing of the past. Biopiracy continues to be a reoccurring problem for indigenous groups who are now faced with modern government policies and laws that make it difficult to challenge cases of biopiracy. In the Amazonian region of South America, there are two cases in particular that demonstrate how indigenous communities have fought against patent laws and the American government to win back the rights to their intellectual property: the case of the ayahuasca plant and the case of the Peruvian maca plant (Fecteau, 2001). In the first case – that of the ayahuasca plant – the indigenous people were unsuccessful in their attempt to win back the rights to the plant while in contrast, the second case – that of the Peruvian maca plant – is an example of one of the few successful instances of an indigenous group winning back control of their intellectual property (Landon, 2007; Martinez-Alier, 2002). In each case it was government patent laws that affected the indigenous peoples’ ability to fight for their intellectual property rights and by comparing the two cases, one may see how certain policies, that respect the indigenous culture can lead to success. As more and more cases of biopiracy arise each day, indigenous communities continue to be taken advantage of by foreign companies and countries and it is the job of their governments to instate policies which protect not only their intellectual property rights but that respect their cultural values. By looking at the effects of patent laws on biopiracy, we can determine which policies best serve these indigenous communities and should be adopted by nations within the Amazonian region.

Biopiracy and the Patenting of Biological Material
In order to understand the role patents play in cases of biopiracy, one must first understand biopiracy itself. At its most basic level, biopiracy is when knowledge from indigenous communities is taken by an outside individual or group who then claim to “own” that knowledge and are able to then sell it for a profit. It occurs, as explained by Leanne Fecteau, Boston College Third World Law Journal editor, when “researchers are not bound to share in the profits from their patented items with the indigenous tribes from whom they gained critical knowledge” (Fecteau, 2001). “Bioprospecting,” as biopiracy is sometimes referred to as, is just a way of describing the act of biopiracy in a less inflammatory manner by using a word with less negative connotations. Whether it is called bioprospecting or biopiracy has no affect on the nature of what is actually occurring: wealthy foreign companies from the global north are making huge profits off of and taking credit for the knowledge of the indigenous communities of the global south.

Though biopiracy has existed since the colonial era, we see a huge rise in the number of cases in the 20th century due to significant changes in U.S. patent law. The first of these changes was in the 1930’s, when Congress passed the Plant Patent Act, which allows any person who “has invented or discovered and asexually reproduced any distinct and new variety of plant, other than a tuber-propagated plant” (Kevles, 2007). For the first time, not only in U.S. history but also in world history, living organisms could be patented. Then in 1970, patent coverage was extended to sexually reproducing plants through passage of the Plant Variety Protection Act (PVPA). Finally, in 1980 in U.S Supreme Court case Diamond v. Chakrabarty the court found that genetically modified organisms could be patented (“{BRL 2835} Diamond v. Chakrabarty,” 1999). Each change in patent law allowed for more and more living organisms to be classified as patentable and each change in patent law lead to increases in the number of cases of biopiracy.

These patent laws and the biopiracy that arises from them have dire consequences for the indigenous community. As Dr. Amanda Landon, an anthropologist at the University of Nebraska, explains in her article, the U.S. patents allow for the indigenous people to “be denied compensation for their knowledge and charged to use the resources the companies discovered using indigenous knowledge” (Landon, 2007). Not only are the indigenous communities hurt economically by biopiracy, but their cultural heritage and beliefs are threatened. While corporations suggest that compensating the indigenous communities could reconcile the situation, such compensation does not address the cultural losses the communities face when forced to conform and comply with U.S patent policy. Under the U.S. patent system, it is easy for companies and individuals to exploit the indigenous people and their culture and it is as we study the case of the ayahuasca that the inadequacies of United States patent policies are made apparent.

Case Study: Ayahuasca
Ayahuasca

The case of the ayahuasca plant is centered on American scientist Loren Miller’s patent of the ayahuasca vine, despite evidence that the indigenous tribes of the Amazon rain forest had been using the plant for centuries. Ayahuasca, a woody vine found within the Amazonian rain forest, is commonly used by the shamans of indigenous communities to create a hallucinogenic drink. The name of the plant itself, ayahuasca, translates from Quechua to English as “vine of the spirit.” An important part of the indigenous communities culture, these drinks are used for treating illnesses and are a part of religious and spiritual ceremonies where they are used to achieve trace states, train future shamans, and induce dreams and prophecies (Dobkin de Rios, 2008). Ayahuasca however, is not just used by the indigenous people anymore. The recent popularity of ayahuasca on the international drug market and the establishment of the religious group Uniao de Vegetal (UDV) and subsequently the UDV Church , a Christian-based group, which uses ayahuasca regularly to connect spiritually with one another and build community, ayahuasca has a growing consumer base. And with consumer demand, comes the possibility of profit. In 1986, Loren Miller was granted a patent by the United States government for what he had named “Da Vine,” a supposedly new variety of the ayahuasca plant, which he had been cultivating. However, “Da Vine” was not a newly discovered plant and had in fact been use by indigenous groups. Miller had found the plant within a domestic garden within the Amazon rainforest but since the indigenous community held no patent for the plant, the United States allowed for Miller to be granted one (Robinson, 2010).

This is where we first begin to see the inherent flaws in the United States patent system – where they fail to protect the indigenous communities’ intellectual property rights. Currently, there are three basic requirements for something to be patented within the U.S: it must be a new discovery; it must be a non-obvious invention; and it must have some sort of utility (Fecteau, 2001). What U.S. patent law fails to do is recognize neither prior use if there is no patent held nor the role indigenous groups play in the development of agricultural and medicinal plants over centuries, for knowledge of the plants is fostered and pasted down from generation to generation within their communities (Fecteau, 2001). In the case of ayahuasca in particular, the U.S. government overlooked how the indigenous communities had cultivated the plant because there had been no patents placed on it. They failed to acknowledge that “Da Vine” was in fact the intellectual property of the indigenous community.

When Amazonian indigenous people discovered that their intellectual property rights had been ignored and that an American now owned the rights to their sacred plant, they took the first steps in fighting against the patent. The Coalition for Amazonian Peoples and their Environment (Amazon Coalition) and the Coordinating Body of Indigenous Organizations of the Amazon Basin (COICA), led by Antonio Jacanamijoy filed for a re-examination of ayahuasca patent with help from the Centre for International Environmental Law (CIEL), claiming that it failed to meet all the requirements of the US Plant Patent Act. They asserted that “Da Vine” was not a new invention, that it had been previously cultivated and that by patenting it, the United States was violating the morality and public policy aspects of the Act (Tupper, 2009).

In 1999, CIEL won the case, but it was no victory for the indigenous people. The United States government did remove Miller’s patent but only because the same variety was found in Chicago’s Field Museum, and not because they took into consideration the indigenous communities’ use of the plant (Fecteau, 2001). Then, in 2001, Miller was allowed to submit new evidence while CIEL was not allowed to submit new evidence, which resulted in a reversal of the U.S. government’s decision and a reinstatement of the “Da Vine” patent (Robinson, 2010). The rights of the indigenous community were infringed upon and marginalized.

Eurocentrism in the Patent System
Such infringement of the rights of indigenous communities stems from having a global socio-political system and economy that is based on Eurocentric values. As Dr. Kenneth Tupper from the Department of Educational Studies at the University of British Columbia discusses, “discourses of modernity and globalization stem from a Eurocentric understanding of geography, history and culture that have been foundational to the enterprises of imperialism and colonialism” (Tupper, 2009). As Europe colonized, their interpretations of modernity became the dominant way of viewing society. Such Eurocentrism affects patents, in particular, as they are centered on the idea of individual property rights. Some might argue that patents can be fair, if issued to the right group or individual, but in reality, current patent laws are entrenched in the thought that inventions are to be owned by a single person or a single company and don’t consider the concept of communal knowledge. Patents don’t meld with indigenous peoples’ community-centered culture in which innovations are made in a manner of what is known as a collective invention where knowledge in shared with an entire society, to be used by all its members (Landon, 2007). By forcing indigenous communities to comply with the patent system, an entire culture in being disregarded and disrespected.
It is possible, however, for the indigenous people to fight back successfully against biopiracy, and against the injustices of the patent system. The case of the Peruvian maca plant demonstrates how the government can play a positive role in the protection of the indigenous communities’ intellectual property through the instatement of policies that respect the indigenous culture.

Case Study: Peruvian Maca
 Maca

In the case of the Peruvian maca, the company Pure World Botanicals currently holds four U.S. patents on parts of the maca plant, a root vegetable originally cultivated and consumed by the indigenous communities of Peru. The root has been called the one of the “lost crops of the Incas” and has been stable in the diets of the natives. Its value as a highly nutritional food source as well as its medicinal qualities makes it an important resource for the indigenous people. The four patents give Pure World Botanicals sole ownership of (1) a cellulose-free version of the maca plant extract; (2) the extraction technique; (3) how the plant can be used to treat sexual dysfunction in humans and animals and (4) how the drug can be administered to humans and animals. Within these patents, the company openly acknowledges that indigenous peoples had previously made use of the plant’s medicinal qualities and were aware of its propensity for treating sexual dysfunction. The company recognized that the indigenous used the maca root in ways extremely similar to how the company was making use of the plant and yet U.S. patent policy still allowed for them to be granted the patent (Landon, 2007). In the early 2000s, when the Peruvian government learned of Pure World’s patent, they decided to try and revoke these patents, on behalf of its indigenous populations, since they did not consider the maca plant to be a new invention.

The government of Peru is able to do so because they have laws declaring it impossible to hold patents on parts of plants, including extracts (Landon, 2007). In her article on the maca case, Landon highlights how “they avoid designating which groups have the right to the plant by keeping it in the realm of communal knowledge.” Rather than demanding royalties from Pure World Botanicals or issuing a patent in the name of a particular indigenous community, the Peruvian government sought only to revoke the patent, and their laws forbidding certain types of patents allowed them to do so. My forbidding certain patents altogether the Peruvian government has established policies, which respect the cultural values of the indigenous community and make it possible for the indigenous people to protect their intellectual property while maintaining their cultural beliefs.

Conclusion
As long as the economic and political systems of the U.S. and Europe dominate globally, Eurocentric patent laws will continue to threaten the culture of the indigenous communities of the Amazon. These patent laws are one of the main reasons that biopiracy continues to be a problem in the global south. They disregard cultural values that do not meld with a Eurocentric way of seeing the world. As U.S. patent laws have started to become the standard by which other countries in the global north shape their patent systems, more challenges are created for the indigenous communities of the global south as they are faced with more and more cases of biopiracy and the loss of their own culture. Through our case studies of the ayahuasca and maca plants, it is important to note not only the inherent faults of U.S. patent policy that led to these cases of biopiracy, but also that the indigenous society’s government has the ability to support and to protect the indigenous people’s rights through the installment of their own patent policy. Though it could be argued that there are ways in which U.S. patents require indigenous groups to receive royalties or compensation for their role in leading to an invention, these are inadequate measures of acknowledging the indigenous communities contributions and only further disregard the communal knowledge of indigenous societies. It is important for governments within the global south to improve their patent policies in ways that help to protect the rights of their indigenous communities. Rather than giving patents to the indigenous groups, the most successful patent policies are those that acknowledge the idea that communal knowledge is a sort of intellectual property that cannot be patented to a certain individual or group. Patent policy policy should instead create laws that deem certain things unpatentable in order not only to put a stop to biopiracy but also to defend and protect the culture of the indigenous peoples.


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3 comments

  1. Not only is there biopiracy taking place–yet organizations like Mark Plotkin’s Amazon Conservation Network, having identified the problem as brought up in this article–but, like ayahuasca there is a suppression in the western world of the alternative modes of being and states of mind inspired by some of the medicinal plants.

    The suppression of this type of information can best be highlighted recently by the censoring of a TED talk about ayahuasca, by Graham Hancock–background on the controversy has been followed and updated here:

    http://ayahuascarecipe.org/ayahuasca-experience-war-on-consciousness/

    • Stephen Casper on January 13, 2015 at 1:45 am
    • Reply

    Could I please have the citation for this page?

  2. nice web site

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