Name: Anushka Sahu

Student ID: 23013728

Biopiracy in the Context of Globalization: A Comprehensive Analysis

ABSTRACT

This paper investigates the growing apprehension within indigenous communities

regarding trade with developing nations, as corporations exploit global resources
through extensive extraction efforts. Through collaboration, these corporations
identify biological materials with medicinal potential, patenting them as proprietary
innovations—a phenomenon known as biopiracy. The billion-dollar biotechnology
industry capitalizes on global exploration for valuable source materials, patenting
plant life traditionally considered non-patentable. This biotechnological colonialism
by extracting and patenting active ingredients from plant genes, asserts ownership
over both plants and associated cultural knowledge. Corporate patents that lack fair
compensation and consent, enrich corporations at the expense of indigenous struggles,
reflecting modern day colonialism. The globalized practice of biopiracy sparks
contentious North-South debates, mirroring historical power disparities, with
developing nations facing technological challenges in protecting their knowledge.
Power imbalances, political clout, and weak regulatory oversight compound the issue,
creating a contemporary battleground between developed and developing nations. The
paper examines the dynamics of biopiracy amid increased globalization, emphasizing
the intertwined roles of imperialism and colonialism It explores repercussions on
indigenous groups within the international framework and proposes potential
solutions to address this issue.

INTRODUCTION

The rising trepidation within the indigenous and native communities pertaining to
trade and commerce with developing nations is stemming from corporations that are
extensively scouring the global landscape for rich and copious natural resources with
an aim to capitalize on the profitable extraction, conversion, and utilization of these
assets into lucrative enterprises.1 These corporations by collaborating with the
indigenous communities are identifying the biological materials with medicinal
potentials, transporting it to laboratories for analysis and subsequently procuring a
patent over it as their proprietary innovation. This practice of acquiring and
appropriating plants and cultural knowledge is termed as biopiracy. Despite the
longstanding cultivation of crops by the indigenous communities, their communities,
plants, and cultural knowledge have been relegated to the public domain for
anthropological investigation and research.2 Anthropologists have appropriated the
“study” of indigenous communities exclusively for themselves and their nation of
origin akin to the historical narrative where explorers “uncovered” new territories for
their sovereigns. Currently, the biotechnology industry is a billion-dollar sector that is
deriving its commercial prowess from global exploration for valuable source materials
and functional compounds that are convertible into commercial products. 3 Across
generations, indigenous peoples have cultivated and enhanced their local plant
1
Marcia Ellen DeGeer, ‘Biopiracy: The Appropriation of Indigenous Peoples’ Cultural Knowledge’ (2003) 9 NEW
ENG. J. INT’L & COMP. L.
<https://ipmall.law.unh.edu/sites/default/files/hosted_resources/PLANT_PATENT_ARTICLES/
biopiracy_and_indigenous_knowledges.pdf> accessed 13 October 2023
2
ibid
ecosystem. The agrochemical and pharmaceutical corporations have ingeniously
patented the natural world despite the plant life being traditionally non patentable.
These biotechnological corporations, by extracting and patenting the active ingredient
from the plant genes, have asserted ownership over these plants including the
associated cultural knowledge.4 This is biopiracy under the garb of modern form of
colonialism that aims to establish control over the botanical realm and the
consciousness of the indigenous communities. Corporate patent without fair
compensation and consent, perpetuate the enrichment of corporations at the expense
of the ongoing struggles for survival faced by indigenous communities. 5 The local
knowledge is predominantly linked to the third world nations and the indigenous
communities in the occidental and third world regions. This complex web of
biopiracy is accelerated by globalization as industries are driven by economic forces
to hunt for the exclusive genetic resources globally. This practice has sparked a
sporadically contentious debate betwixt the North and the South, mirroring past
disparities in culture, dominance and power that deploy a profound impact on policy,
discourse, and legal principles.6 Numerous Southern nations have the paucity of
competence concerning technology to convert their indigenous knowledge into forms
protected by the prevailing global intellectual property regimes, posing economic and
cultural ramifications for third world nations. The power imbalances and political
clout among developed and developing nations; fragmented international regulations
and weaker regulatory oversight of TRIPS ( Agreement on Trade Relate Aspects of
Intellectual Property Rights) and the CBD (Convention on Biological Diversity)
further amplify this issue.7 This creates a contemporary battleground delineating
tensions between the developed and the developing nations. This paper addresses the
intricate dynamics of biopiracy and examines it in the context of increased
globalization. Subsequently, this paper highlights the interconnected roles of
imperialism, colonialism and globalization in fostering the proliferation of biopiracy.
The ensuing section explores the repercussions of biopiracy on the indigenous groups,
juxtaposed against the backdrop of the international framework. Finally, the author in
this paper suggests potential solutions to mitigate this complex issue.

GLOBALIZATION HARBOURING BIOPIRACY

The discourse on patent rights notably features piracy as a central theme on the global
arena. Particularly, the US and nations in the Western part of Europe have established
a range of bilateral and multilateral accords that are driven by the belief that increased
levels of protection is crucial to address the challenge of global piracy. 8 On the flip
side, numerous developing nations have contended that these Western nations are
involved in their own form of piracy, labelled as biopiracy. This involves
appropriating the genetic resources and associated traditional knowledge from diverse
developing nations without their consent and subsequently patent these innovations
3
Johan Ragnar, 'Biopiracy, the CBD and TRIPS – The Prevention of Biopiracy' (Master thesis, University of Lund
2004)
4
DeGeer (n 1) 180
5
ibid 181
6
Erin Kathleen Bender, 'North and South: The WTO, Trips, and the Scourge of Biopiracy' 11 Tulsa Journal of
Comparative and International Law <https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?
article=1201&context=tjcil> accessed 13 October 2023
7
ibid
8
Olufunmilayo B. Arewa, 'Piracy, Biopiracy and Borrowing: Culture, Cultural Heritage and the Globalization of
Intellectual Property' (2006) Case Research Paper Series in Legal
Studies<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=596921> accessed 13 October 2023
without equitable sharing of the resulting commercial gains. The acquisition of
exclusive rights over the resources and knowledge in the third world, particularly
when regarded as sacred or outside the realm of private ownership, is perceived as
morally objectionable by various inhabitants of the developing nations and those with
compassionate inclination towards other countries.9 Many of these individuals,
harbour significant suspicions towards Western nations and corporations as the
appropriation of resources echoes the historical era of “colonial imperialism”.

An inquiry surfaces in mind, does biopiracy indeed manifest as a genuine concern for
the developing nations and if so, what is the level of significance that should be
attributed to it? Biopiracy constitutes a substantive challenge for the developing
countries, necessitating collaborative efforts beyond the scope of their independent
mitigation.

The patent law stands in stark contrast to the principles upheld by the indigenous
groups as it operates on the foundation of exclusive and monopolistic rights. In the
contrary, tribal societies prioritize the collective needs of the community and the
overall welfare of all members placing emphasis on the communal well-being over
individual interests.10 The foundational concept that drives patent law is that
individuals who “invent” or “discover” something must be acknowledged and
incentivized for their efforts. To qualify for potential protection, an invention must
firstly be novel, secondly it should be non obvious and thirdly it should demonstrate
utility.

In relation to the novelty requirement, indigenous groups face a formidable challenge

to establish the newness requirement, given the intergenerational transmission og
cultural knowledge. The cultural knowledge of these groups have potentially
originated centuries ago and by virtue of its historical existence, lacks novelty.
Despite numerous tribe members being privy to specific cultural practices, the
exclusion of communal knowledge from the domain of patent law hinders these
groups from satisfying the criterion of newness.11 The concept underpinning patented
newness contends that specific advantages act as incentives for the benefit of the
society at large. This perspective stems from a market economy asserting that without
personal monetary incentives, innovation is unlikely. In the era of globalization, this
interconnectedness of markets reinforce the notion that personal rewards serve as an
universal stimulus for creative endeavours transcending the geographical boundaries
and the traditional communal knowledge integral to the identity of the indigenous
groups does not align with this notion, creating disparities and potentially
disadvantaging these groups as they rely on shared cultural methods.

From an indigenous standpoint, communal knowledge cultivates collective benefits

without the necessity for individualized rewards.12 Various indigenous tribes perceive
the well-being of the community as an intrinsic reward. In international law, this
aligns with the principle of “common heritage of mankind” that indicates that certain
resources are the common heritage of all humanity and their use should be for the
benefit of everyone rather than for the exclusive gain of particular nations or

9
DeGeer (n 1) 180
10
ibid 182
11
DeGeer (n 1) 183
12
Ragnar (n 3) 44
individuals.13 The notion of the common heritage emerged as a response to the Roman
civil law concept of “res communis” which denoted items or areas accessible to all
without ownership by any specific individual or entity. In contrast, the Western
perspective sees community benefits as a by-product, contending that incentivizing
individuals to create results in communal advantages. The enduring transmission of
cultural knowledge across generations poses a challenge for present Indigenous
communities to assert original inventorship. The rigid individualized framework of
Western patent law does not accommodate the communal essence inherent in
tribal societies. This reflects a broader tension in the global landscape. The Western
view, where community benefits are seen as secondary to individual incentives, aligns
with a competitive global economy where as indigenous communities, with their
communal essence, represent a different paradigm. Globalization has led to an
interconnected world where diverse cultural perspectives intersect. The challenge
faced by present indigenous communities in asserting original inventorship illustrates
the clash between globalized legal frameworks, like Western patent law, and the
communal values deeply rooted in tribal societies.

Concerning the inventive requirement, the indigenous tribes do not pass the non-
obviousness test since traditional cultivation practices that are characterized by oral
and often undocumented information exchange which are considered unscientific.
Conversely, the scientific extraction of genes is eligible for patenting. 14 The Diamond
v. Chakrabarty case has enabled agrochemical and pharmaceutical companies to
acquire the plants of Indigenous Peoples. 15 They bring these plants to the laboratory to
extract the “active” ingredient and assert ownership of it as their original
proprietary development.
The fundamental tenet of the Lockean theory was centred on gaining from one’s
labour and is regarded as the cornerstone in property law. This conceptual structure
empowered the “discoverers” of the Americas to set themselves apart from the
indigenous communities and asserted that the latter did not engage in labour on the
land.16 As an outcome of this stance, living harmoniously with nature was deemed a
hindrance for the indigenous communities in acquiring property rights. The concept of
mixing one’s creations similar to the fruits of one’s labour is employed to rationalize
intellectual property laws. This perspective tends neglect the indigenous communities
who are the original labourers as these laws align predominantly with the “scientific”
values of the Western world. In the contemporary landscape of global interactions and
international law, it prompts reflection on how historical ideologies have influenced
the notions of property, labour and indigenous rights on a global scale. In a globalized
context, the discourse surrounding indigenous rights often grapples with the
reconciling historical perspectives as those rooted in the Lockean theory with the
evolving principles of global justice.

With respect to the utility prerequisites, indigenous peoples do not meet the
international legal definition of usefulness due to their non-profit utilization of plants

13
John E. Noyes, 'The Common Heritage of Mankind: Past, Present, and Future' (2011) 40 Denver Journal of
International Law & Policy <https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1156&context=djilp>
accessed 14 October 2023
14
DeGeer (n 1) 186
15
Diamond v Chakrabarty (1980) SCOTUS 447
16
Calum Murray, 'John Locke’s Theory Of Property, And The Dispossession Of Indigenous Peoples In The Settler-
Colony' (2022) 10 American Indian Law Journal <https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?
article=1241&context=ailj> accessed 14 October 2023
and traditional knowledge. The preference is often given to Western scientific inquiry
over the insights of indigenous communities.17 This portrays a power dynamic where
Western knowledge systems often driven by scientific and technological
advancements are prioritized and globalized at the expense of traditional indigenous
knowledge. The emphasis on the dissemination of ideas due to globalisation, has led
to the widespread influence of Western scientific paradigms. This influence
marginalizes and overshadows indigenous knowledge, as the global community tends
to favour the dominant scientific approaches originating from Western cultures,
further hindering the protection of their cultural heritage and the equitable sharing of
benefits derived from their traditional knowledge. These biases can further permeate
methodologies and interpretations. When compounded, these biases can
disproportionately impact the marginalized communities as their unique knowledge
system often diverges from the western paradigm that leads to disparities in research
outcomes and unjust exploitation of traditional knowledge.

IS BIOPIRACY A FORM OF PATENT “IMPERIALISM”?

The presence of frameworks rooted in traditional knowledge is described as a

contemporary form of imperialism affecting indigenous cultures. Various nations
have criticized the TRIPS agreement for its imperialistic tendencies as it compelled
the nations that were resisting the patent rights to still recognize and incorporate these
frameworks.18 The symbiotic relationship of patent imperialism and biopiracy within
the global sphere highlights the power dynamics. Cross-border flow of biological
resources and traditional knowledge is often facilitated by globalization that creates
opportunities for biopiracy where influential entities exploit the marginalized
indigenous communities. In this global scenario, patent imperialism has become a
significant aspect as the intellectual property frameworks have been predominantly
grounded in Western legal traditions, establishing a hierarchical power structure that
favours those capable of obtaining the patents. This is further intensified by trade
agreements like TRIPS which acts an instrument of imperialism, that while ostensibly
promoting global harmony, imposes western-centric patent systems on the nations,
compelling them to conform to these benchmarks even at the expense of contradicting
their ethical and cultural principles.
The concept of patent imperialism becomes more apparent when examined in the
historical backdrop of Western colonialism. 19 During the colonial era, indigenous
communities faced displacement as Western powers asserted possession of lands
previously deemed unclaimed, but for a higher spiritual significance. In contemporary
times, indigenous societies worry about a repetition of this predicament, when their
cultural and sacred knowledge will be exploited devoid of their consent that results in
their exclusion from its utilization.
Within Western patent norms, creating patentable inventions from natural materials is
deemed legitimate. Nevertheless, this presupposes that natural biological resources
are considered to be "free" or an open source, mirroring the colonial notion that land
was open for appropriation and enhancement. 20 With respect to developing nations
falling prey to colonialism, it reflects historical patterns where resource-rich regions
17
DeGeer (n 1) 191
18
Cynthia M. Ho, 'Biopiracy And Beyond: A Consideration Of Socio-Cultural Conflicts With Global Patent Policies'
(2006) 39 University of Michigan Journal of Law Reform <https://core.ac.uk/download/pdf/232706572.pdf>
accessed 14 October 2023
19
ibid
20
DeGeer (n 1) 180
were exploited without due acknowledgment or benefit for the indigenous
populations. The colonial era witnessed the extraction and appropriation of valuable
resources, economic subjugation, and imposition of foreign governance systems on
developing nations. This exploitation had long-lasting consequences that left these
nations with economic, social, and political challenges, thereby making them victims
of biopiracy.
For instance, the developing mixed market economy of Mexico faced biopiracy when
Quest International and the University of Minnesota patented a microorganism from
Mayan “pozol” in 1999, ignoring indigenous knowledge without providing fair
recognition or compensation to the Indigenous communities. 21 Similarly, India which
is a developing nation, grappled with biopiracy involving Neem tree pesticidal
qualities and Basmati rice strains, raising concerns about unauthorized exploitation
and potential harm to the agricultural economy.22

Within the international framework, the CBD regulates the utilization of genetic
resources and traditional knowledge, emphasizing member countries' obligation to
uphold, preserve, and sustain the practices, innovations and knowledge of indigenous
groups, essential for biodiversity conservation.23 In parallel, the international human
rights, embraces rights delineated in the UN Charter, the Universal Declaration of
Human Rights, and global human rights legislations. For instance, indigenous peoples
hold the entitlement to the complete entitlement to all human rights and freedoms,
encompassing the right to cultural autonomy, extending to the authority to govern
traditional knowledge pertaining to biodiversity.24
Two key conflicts arise concerning TRIPS and the CBD. Firstly, TRIPS faces
allegations of being involved in biopiracy due to its inability to delineate patent
prerequisites that would restrict patents stemming from the traditional knowledge of
other nations. Secondly, TRIPS has come under scrutiny for not advancing the
objectives of CBD related to benefit-sharing and informed consent, as these
considerations are not mandated for patent protection.25 Adhering to the TRIPS
agreement exacerbates the prevailing inadequate safeguarding of indigenous peoples,
as it expands the scope of international trade markets. India serves as a prominent
example of a nation that yields to the demands imposed by TRIPS, succumbing to the
pressures exerted by Western-influenced trade policies, highlighting the asymmetric
power dynamics inherent in global economic structures.
The Nagoya Protocol is a cornerstone in the global response to biopiracy and operates
within the framework of the CBD. It directs its focus towards regulating access to
genetic resources and ensuring the just and equitable sharing of benefits derived from
their utilization, mandating users, often foreign companies and researchers, to secure
prior informed consent from the provider country. 26 Despite its pivotal role, its
effectiveness hinges on the commitment of individual countries to enact and enforce
its provisions that results in variations in global adoption and enforcement; varied
national legislative landscapes complicates the pursuit of a standardized approach.

21
ibid 200
22
M. Ho (n 18) 438-452
23
Charbel Farhat, 'Biopiracy: Business vs Traditional Knowledge and Biodiversity' (2021)
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3933062> accessed 14 October 2023
24
M. Ho (n 18) 474
25
ibid 477-478
26
Florian Rabitz, 'Biopiracy after the Nagoya Protocol: Problem Structure, Regime Design and Implementation
Challenges' (2015) 9 Bras. Political Sci. Rev <https://www.scielo.br/j/bpsr/a/7MPPCNSjFwDYyZnDwBbgfDs/?
lang=en#> accessed 14 October 2023
 POSSIBLE SOLUTIONS

A robust strategy anchored in global cooperation, legal refinement, and community

empowerment is imperative in addressing the multifaceted challenges posed by
biopiracy. As the world becomes increasingly intertwined through globalization, it is
paramount to confront the historical reverberations of imperialism and colonialism by
fostering diplomatic accords among nations and establishing clear-cut guidelines for
bioprospecting honouring traditional knowledge and ensuring equitable distribution of
benefits. The fortification of legal frameworks, both domestically and internationally,
is crucial, necessitating explicit delineation of stringent prerequisites for patent
applications, considering the origin of genetic resources and traditional knowledge.
The shadows of imperialism should be addressed effectively by mandating facilitation
of the transfer of technology and knowledge that will diminish dependency on
developed nations and allow local communities to engage in bioprospecting on their
own terms. The effective implementation of the Nagoya Protocol assumes
predominant importance that necessitates a stern focus on adherence to its provisions
and continual refinement to ensure its efficacy in the ever-evolving landscape of
bioprospecting.

CONCLUSION

The intricate discourse surrounding patent rights concerning biopiracy, unveils a clash
of values and power dynamics on the global stage. Western nations motivated by a
commitment to heightened protection, actively participate in various agreements
aimed at countering global piracy. However, a compelling twist arises as developing
nations assert that these Western powers are themselves ensnared in biopiracy,
eliciting moral objections reminiscent of historical colonial imperialism. This
accentuates the dominance of Western-centric patent systems. Trade agreements such
as TRIPS exacerbate this imperialistic trend by imposing Western-centric benchmarks
that contradict with the ethical and cultural principles. The Nagoya Protocol, designed
as a response to biopiracy within the CBD framework, places emphasis on prior
informed consent. However, its effectiveness is contingent upon global commitment,
presenting challenges within diverse national landscapes. Addressing these challenges
requires a resilient approach rooted in worldwide collaboration, legal precision, and
community empowerment. Historical imperialism must be addressed directly by
diplomatic agreements, formulating guidelines for bioprospecting that respect
traditional knowledge. Legal frameworks should explicitly account for the origin of
genetic resources, and enforcing rigorous prerequisites for patent applications. It is
essential to facilitate the transfer of technology and knowledge to diminish reliance on
developed nations, offering local communities an opportunity to engage in
bioprospecting on their own terms. In the global community it is critical to foster a
fair and equitable global system that respects the diversity of cultural and traditional
knowledge which will emerge as an imperative in shaping the future trajectory of
bioprospecting.