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Introduction: Bioprospecting/Biopiracy

Over the past two and a half decades, much debate has been garnered over the issues surrounding the relationship between intellectual property rights and the appropriation of bioknowledge. The crux of this debate centers around two pivotal questions. Firstly, can life be "owned"? Secondly, if so, do transnational corporations (most of which are based in the "developed" world) have the right to own components of traditional knowledge systems of people in the "developing" world? Some refer to this phenomenon as bioprospecting, while others call it biopiracy. Bioprospecting is the collection of biological materials/resources for use in scientific research. Biopiracy refers to the unlawful use of such resources. According to the Wikipedia Online Encyclopedia biopiracy is "1.) the unauthorized use of traditional communities' knowledge on biological resources. 2.) unequal share of benefits between a patent holder and the indigenous community whose resource and/or knowledge has been used 3.) patenting of biological resources with no respect to patentable criteria (novelty, non-obviousness and usefulness.)" (http://en.wikipedia.org/wiki/Biopiracy)

In theory, bioprospecting is a fair enterprise based on certain legal conditions, such as informed consent and benefit sharing. Such tenets were established during the 1993 Biodiversity Convention, which set a precedent by instituting rules to protect indigenous bioknowledge. The self stated goals of the convention were to,

Preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices (Article 8). (Greaves 1994: 233)

In Legal Consequences of Biopiracy, Gollin (1999), attempted to simplify the legal jargon behind the Biodiversity Convention. According to Gollin, informed consent is the notion that all nations "own" their own biological resources, and potential bioprospectors must obtain permission in order to collect such materials. Benefit sharing holds that profits obtained from patents on "indigenous" resources must be shared between the patent holders and the indigenous communities from which the materials are derived. In short, bioprospecting in this day and age must not be reminiscent of the "take and run" approach of the colonial era. Gollin contends, "legal tools are being developed whereby developing countries and other biodiversity rich countries may exert greater leverage over the use of their resources." (Gollin 1999:130) In theory, Article 8 of the Biodiversity Convention protect traditional knowledge. However, many assert it does not eliminate biopiracy. Many are skeptical that any change will because of this article. Posey contends, "indigenous people, who have largely been marginalized by such processes in the past (if not totally eliminated), are understandably skeptical that this time things will get better." (1994: 234) Developing nations may feel pressured into accepting such trade agreements by wealthy transnational corporations and countries where they are based (usually North America and Europe). More often than not, developing nations do not have the resources to challenge such trans-nationals or their home nations. In addition, intellectual property rights agreements are often forged between large corporations and plutocrats from the developing nations. As a result, the voices of the people most affected by IPR arrangements remain unheard. Furthermore, they may lack the empowerment needed to challenge such injustices. Perhaps most troublesome is that the very notion of "intellectual property" is based on a Euro-American worldview, and thus negates native belief systems as they exist within a specific cultural context. Shiva maintains, "IPR monopolies are justified on grounds that corporations are given IPRs by society so that society can benefit from their contributions." (Shiva 1997:37) While this may sometimes be the case, IPRs undoubtedly have deleterious effects as well. Shiva notes, "monopolies linked to this unaccountable and unjust system prevent the development of ecologically sound and socially just practices" (p.37). Bioprospecting can have a multiplicity of injurious effects. Some specific ones are as follows: 1.) Bioprospecting can "undermine the cultural and ethical fabric of agriculturally based societies." (p.53) 2.) Bioprospecting will turn once freely circulated resources within society into commodities. 3.) May result in the loss of traditional means of subsistence and indigenous knowledge systems. 4.) Bioprospecting marginalizes traditional communities and peoples, presupposing the superiority of the Euro-American techno-centric approach.

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