Biopiracy is an abominable practice that continues to grow, largely on the backs of developing countries. It involves the gaining of exclusive rights over the biological resources of a country by individuals, institutions or companies from other countries, that ultimately leads to the denial of the rights of the country of origin. The direct results of such practices are the extinction of endemic living organisms, the depletion of bio diversity and the privatization of the bio treasures of the victim-country leading to direct consequences for its economy. Can developing countries confront biopiracy? Let’s see what solutions are suggested by worldwide law and intellectual property experts.
How can developing countries confront biopiracy?
“The hoodia case, the rooibos case and the stevia case are just a few examples of the many existing biopiracy cases in developing countries. Despite the Convention on Biological Diversity and the Nagoya Protocol being in place and laying down minimum standards for equitable ways of trading with genetic resources and the associated traditional knowledge, the number of biopiracy cases is alarming. Big corporations from developed states continue to disregard their obligations to acquire prior informed consent and negotiate access and fair benefit sharing with knowledge-holding communities. The idea is not to stop the exploitation of useful resources in pursuit of solving problems in our societies. The idea rather is to ensure that those with resources be allowed to exploit the genetic resources in partnership with traditional knowledge holders; all this done in a structured, transparent, and equitable manner. Developing countries must therefore ensure that there are clear laws governing genetic resources and indigenous knowledge at national and community levels. They must also ensure that there are clear and transparent processes to be followed by interested parties. Communities in possession of such knowledge must be organized, accessible and adequately capacitated to handle matters of this nature.”
“One step that can protect developing countries from biopiracy is for researchers to publish their findings in scientific publications. This knowledge sharing mitigates biopiracy since the assertion of uniqueness and novelty, required for patents, becomes much harder. Additionally, state regulations need to be in place to require researchers to enter into agreements before being granted any research rights, specifically targeting traditional uses and knowledge. Clear rules and regulations should be written so that traditional communities benefit from any commercial exploitation. For example, in 2004 South Africa introduced the National Environmental Management Biodiversity Act together with benefit-sharing regulations. Since then, biopiracy has been reduced and provisions governing income sharing have produced a fairer result. With climate change and sustainability becoming paramount concerns, stricter requirements to prevent the over-exploitation of indigenous species will be necessary and set-asides from revenues should be required to mitigate the effects of climate change.”
“In countries where biodiversity is a great asset, biopiracy dramatically harms their indigenous populations. In recent years, various online tools have been of great help in combating this practice, such as the Mexican Digital Library of Traditional Medicine and the Indian Digital Library of Traditional Knowledge (TKDL). Beyond the international conventions on biodiversity, Bolivia’s Constitution protects genetic resources like coca. The Ecuadorian Constitution also protects genetic resources and traditional knowledge, as well as the rights of nature itself. In addition to protecting them constitutionally, Venezuela goes further and prohibits these from being registered as patents. In turn, Brazil has enacted a sui generis regime to impose sanctions on those who threaten its genetic resources. Peru has created a National Commission against Biopiracy which has had some relevant achievements in the protection of genetic resources and traditional knowledge. As for Argentina, it promotes agreements with indigenous communities for the sharing of resources and knowledge. Local authorities are responsible for implementing these agreements.”
“Biopiracy is a danger to the developing countries and has been in a number of cases a violation of their control over resources. As corporations with huge wealth can often outrun or evade the legal systems of the poorer states, it is very important that the world community pay close attention to this issue by monitoring instances of biopiracy and supporting litigation to stop it. International agreements, such as the Convention on Biological Diversity, do not in and of themselves stop large companies from conducting acts of biopiracy under the guise of bioprospecting. The legislation regulating its implementation, the Nagoya Protocol, is often improperly applied by countries, and large powers such as the United States have yet to sanction the violators. Patent legislation requires that the product or service in question be novel and unique. Therefore, in the fight against biopiracy, scientists and researchers are attempting to collect and publish the relevant plants’ properties and uses on public domains. Countries are also fighting back, with India battling to prevent the patent of the wound healing capabilities of Turmeric, and Thailand has appealed the patent of Jasmine Rice. With the threats associated with climate change, even more cases of biopiracy will come to light with the increased need for medicine and food sources that are resistant to drought, heat, and salt. While finding sustainable and resilient sources is a priority, it should not come at the expense of indigenous people.”
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