Book Review: Global Biopiracy. Patents,Plants,and Indigenous Knowledge

This book paints a broad picture of biopiracy, particularly the misappropriation of indigenous and traditional knowledge and resources, and the serious consequences for plant genetic diversity, global food security, and the individual and collective human rights of indigenous peoples.

Mgbeoji rightly states that the current literature addresses technical, anthropological, and agricultural aspects but neglects the legal dimension. To remedy this, Mgbeoji provides a legal analysis of the interlinked issues of intellectual property rights, common property and rewards for knowledge.

The book unfortunately lacks a well structured contents table. The titles for the six chapters are very general and overlapping, giving insufficient guidance. The lack of clarity in subheadings within chapters, and occasional mismatches between actual sections or subsections and those outlined in the introduction, are confusing.

Of the six chapters, the first is introductory, giving an overview of the issues. The second to fifth chapters encompass: a critical evaluation of relevant legal concepts and legislation at different levels; the legal principles and international organizations that have enabled and legitimized biopiracy; and the requirements for patents on plants and traditional knowledge of their use. The author identifies several dimensions to biopiracy: in chapter four the socio-cultural and institutional, and in chapter five the legal. The sixth, concluding chapter analyses the problem of biopiracy, emphasizing consequences, implications, and solutions.

The evolution of the patent system is explained in chapter two. The current regime is shown to be predominantly influenced by Western, particularly Eurocentric models, and plagued by double standards applied by industrialised nations. Only brief reference is made to the intellectual property regimes of regional economic organizations in developing countries, such as the Andean Community, MERCOSUR ¹ , APEC ² , and ARIPO ³ .

The implications of biopiracy for biological and cultural diversity comprise the theme of chapter three. The dangers that result from the commoditization of plants are described, particularly the rise of monocultures and their damaging effect on plant genetic diversity. We are reminded that language extinction can also reduce biological diversity. Other causes are analysed, including consumerism, the inequitable global economic system, overpopulation, agribusiness, bioprospecting, biotechnology, climate change, cultural homogenization, and even gender issues. Mgbeoji includes a discussion of the undervaluation of women's traditional knowledge, a topic that has not received sufficient attention in the literature. His analysis is adequate, but could be more substantive if he provided more examples. Mgbeoji critiques ILO Convention 169 (1989) on Indigenous and Tribal Peoples, calling it “the best known assimilationist international instrument embedding this philosophy of racial, cultural and epistemological superiority” (p. 58).

Chapter four looks at the Common Heritage of Mankind (CHM) concept, describing it as a fallacy that has facilitated the plunder of indigenous knowledge. It concludes that state sovereignty is overriding when regulating access to plant life forms. Mgbeoji examines the role of International Agricultural Research Centres (IARCs), exposing their double standards when transferring the South's genetic resources. They are received as ‘common heritage’ freely available for scientific research, but without recognition of peasants' and indigenous peoples' contributions. Research organizations can secure patents on these materials that restrict access. Unfortunately, leading cases such as enola (Phaseolus vulgaris L. Fabaceae) and yacón (Smallanthus sonchifolius (Poeppig and Endl.), (H. Robinson Asteraceae) or Polymnia sonchifolia (Poeppig and Endl. Asteraceae) are not mentioned. The enola patent was challenged by the Centre for Tropical Agriculture in Colombia for lack of novelty and innovation. Yacón was a tuber held at the International Potato Centre in Peru, under the FAO trust agreement, given to the then director of the Institute of Natural Resources in Peru, Josefina Takahashi, who later handed it to the ambassador of Japan, who took it to his country against the wishes of the originating communities (Prieto-Acosta, 2006).

Mgbeoji describes the history of the International Seed Treaty. He recognises that it is an improvement over the Convention on Biological Diversity (CBD), but warns against the potential misappropriation of DNA sequences when they are isolated and patented without modification.

Chapter five, “Patent Regimes and Biopiracy,” examines legal aspects of patents on plants and related traditional knowledge. It criticizes the requirements for patents but looks ahead to forthcoming changes. Supporting sources evidence the US Patent authorities' lack of acknowledgement of prior art from other countries or outside of the Western patent system. Case law from several jurisdictions encourages comparison and illuminates the rationale behind judgements. Reviews of soft law representing indigenous peoples' opinions, which inform some national legislation, are included, for example the Mataatua Declaration on the Cultural and Intellectual Property Rights of Indigenous Peoples, the International Consultation on Intellectual Property Rights and Biodiversity, the Declaration of Belem and the International Peoples Seattle Declaration (pp. 156–7). Unfortunately the Bonn Guidelines are omitted. Widely adopted in 2002 as a framework for bioprospecting, they were criticized for facilitating biopiracy. Examples of biopiracy are mentioned so briefly that Mgbeoji's legal and historical arguments are weakened. The failure to analyze leading cases, such as the challenges to the ayahuasca and enola patents, is significant.

While critically exploring several alternative patent systems, Mgbeoji makes a strong case for communal patents. Although not cited, Panamanian legislation (Law 20 of 2000 and Executive Decree 12 of 2001) would have made a good example (Prieto-Acosta 2004). Mgbeoji discusses the theoretical background to the registration of traditional knowledge but does not comment on the effectiveness of existing national legislation. He also fails to mention the potential disputes, such as between groups within one country; communities split between countries; disagreement within communities or with those who have left a community.

The concluding chapter looks at the effects of biopiracy, starting with global food security. It examines how crop uniformity threatens sustainable agriculture; the risks of genetic use restriction technologies; the links between agribusiness and the fertilizer and pesticide industries; and the effect of broad-scope patents.

Mgbeoji emphasizes the applicability of the precautionary principle to genetically modified plants. He calls biopiracy a violation of internationally recognised individual and collective rights to culture. He advocates that regional organizations regulate intellectual property, favours a reconsideration of the patent system to recover credibility and calls for free access to the germplasm in IARCs, with a strict regime of non–patentability. Mgbeoji defends the role of legislators in regulating patents, and criticises the courts for granting broad scope patents in the absence of legal clarity. He proposes regional frameworks of legislation to protect shared common genetic resources, indigenous communities that overlap national borders, and to improve negotiating capacity. He promotes the recognition of rights to environmental self-determination and minority rights, both individually and collectively. Unfortunately, his example of genetically wealthy countries applying pressure to biotechnologically rich nations is incorrect. Venezuela's rejection of new bioprospecting contracts (p. 196) did not lead to the U.S.'s ratification of the CBD. ‘Ratification’ means, according to article 2b of the Vienna Convention on the Law of Treaties, that the State consents to be bound by a treaty. Although the former President of the United States, Bill Clinton, signed the CBD, the U.S. Senate has not consented to be bound by it.

This book's merit is in juxtaposing varied aspects of the problem. This substantial work is essential reading on biopiracy, explaining why and how it happens, and proposing solutions.