Dilemma in Conservation of Biodiversity: Ethical, Equity and Moral IssuesEver since the global attention got focused on the fast eroding biodiversity, the concern for conservation was articulated by professionals, scholars, company executives, international organizations including donor agencies and of course, governments of various countries as was evident during and after Rio conference.
Concurrent to the expression of these concerns has been a tendency both from radical groups as well as from conservative groups to legitimize the biodiversity and associated knowledge system as a common property of a country or a whole global community. Such efforts have meant that the rights of individuals as well as specific communities get subsumed under larger social aggregations. The values and the processes involved in the production of knowledge in formal organized sector and informal colleges of peasants may be quit different in many cases. The production, reproduction of knowledge, its communication within the community and to outside professionals guided by scholarly motives or commercial concerns involves resolution of a large number of ethical and moral dilemma.
How do we treat the oral traditions which are likely to die away if patterns of social interactions continue to change the way they are changing at present? What should be the incentive for scholars to document knowledge under such threats of erosion? What happens to the identity, authorship and proprietary right of the individuals, families and the communities which share this knowledge in good faith with outsiders? How should a corporation, whether in public or private sector, national or multinational view access to documented or undocumented knowledge? Does the act of documentation of such strategic knowledge deny the provider of information of any right in the value added products or income therefrom? Once the providers come to know of the asymmetry in the returns accruing from the knowledge they provided to outsiders, could they become secretive? Will such a tendency not prevent future generations from getting access to valuable knowledge that might get lost because of the social pressures, migration, economic deprivation, and lack of young people acquiring the traditional knowledge skills? How do we balance the right of present generation to benefit from this knowledge and underlying diversity with the rights of future generations?
How should the rights of countries that may have ignored the biodiverse regions and communities inhabiting these regions be compared with the rights of communities with in these countries to enter into contract with the outside agencies?
The answers to these questions are not easy. The situation becomes even more complex once we include the microbial and aquatic diversity. The relationship between the human contribution and natural factors in maintaining or generating microbial diversity is not even properly understood. Similarly, avion as well as aquatic diversity may transcend boundaries of several political nationalities just as the plant biodiversity may do so.
The movement of animals, whether on land, water or in air from one region to another makes the claim and responsibility of different countries very complex. Fish found in waters of one country may go for spawning upstream in another country. If spawning grounds are not conserved, the fish diversity is unlikely to be conserved either. How should such inter country agreements be drawn up if industry based on such fish is in downstream country? Apart from the legal claims, respect and responsibility for life, particularly in its reproductive phase has been a part of culture and values of many societies. There are institutions which prevent people from fishing during the spawning period. Such institutions did not necessarily emerge to balance claims and counter claims of conservators of biodiversity and its users. However, in a world dominated by economic calculus, value based institutions are coming under strain.
Similar is the situation of the communities which conserve biodiversity but have taboo against receiving compensation. How should the society view its responsibility towards such communities and individuals? Do we exploit them because of their superior ethics, and accumulate wealth at our end? If not, then what kind of moral and legal instruments and incentives be generated which do not force people who conserve biodiversity to remain poor? The situation is complicated by the fact that the time and resources that a corporation may put in identifying and developing a product based on local biodiversity may be more easily computed. And thus this amount may appear very large. The value of the time and effort spent by a community in safeguarding local biodiversity by a combination of ethical and moral principles and institutional practices is difficult to work out. The opportunity cost of their time as evaluated by the market can obviously not be a proper indicator. In many cases, the contribution has been made over centuries.
Some colleagues (Nietschman and Churcher, 1994) have tried to compare the existence and conservation of biodiversity with the presence and exploitation of mineral resources like gold or oil. Not realizing that in existence of gold or its conservation underground, human intervention was minimal (of course, by not exploiting it, it could just as well be conserved), the comparison has problems. No human being could reproduce gold. The biodiversity on the other hand can reproduce differently with or without human intervention. To argue that claim of a society or a community accrues entirely on account of an eco-historical or geo-morphic reason without any conscious contribution of local knowledge system and its institutions will be to miss an important point. And that is the selection pressure that human beings have put discriminatingly on a given biodiverse system. Whether it is through fires in the forest, restriction on fishing in certain seasons or regions or through conservation of certain weeds or utilization of certain wild plants, communities as well as knowledgeable individuals have contributed a great deal to the conservation of biodiversity. Similarly, contribution of a state cannot be ignored altogether. By imposing locational costs on the enterprises for which forest land under government possession may or may not be transferred, the cost of conservation is partly internalized by the enterprises and partly by the society through higher product costs.
Issue is not whether intellectual property rights fully capture the contribution of local communities and individuals, given the complexity in conservation. The issue is whether IPRs of local innovators, communities, traditional herbalists, etc., do help the outsider users of this knowledge resolve their own moral and ethical dilemma.
It is one thing to say that locational advantages of local communities must not be given undue weightage. It is quite another to suggest that outsiders should follow different ethical principles while dealing with knowledge produced by their colleagues in labs and libraries and knowledge produced by people over time, individually or collectively.
To argue that the problems of communities which are in conflict with the nation states of which they may be part at present must be resolved first and only then the issues of compensation should be addressed is to bypass totally the issue of our own accountability.
In the brief review of some of the important studies and documents, I am outlining principles which have been identified by various institutions and scholars though the same may not have been implemented even by the organizations or other individuals espousing these principles.
Part One: Review of Various International Guidelines
a: Guidelines on the conservation of medicinal plants:
WHO in collaboration with IUCN and WWF issued the guidelines in 1993 based on various consultations on the subject held earlier. The guidelines aimed to conform to the principles of Caring for the Earth - document prepared by IUCN, UNEP and WWF in 1991. Before we get to the guidelines, let me recall a comment on Caring for the Earth document made earlier (Gupta, 1991, 1992). It was observed that the earliest reference in this document pertained to 1979 and 90 per cent references were post 1985 and western in origin. The inference was obvious that there was nothing in the various religious, cultural and ethnic traditions of Hindus, Muslims, Masais, Buddhist, Inuits, Akwasasne, Zuni, etc., which had anything to contribute to the evolution of global world view. It is such an assumption which has guided the development of guidelines by various international institutions particularly those involved with IUCN and WWF. The WWF guidelines emphasized among other issues, the following principles.
1. Each country to identify and support one or more institutions to plan, coordinate and implement ethno-botanical surveys.
2. The selected institution(s) should implement a nationwide programme of surveys of plants used by traditional societies for medicinal purpose.
3. The ethno-botanical data should be catalogued and analyzed but disseminated in such a way that data providers receive benefits from the commercialization of the product based on the information.
4. Ministry of Health should incorporate proven traditional remedies into national programmes of primary health care.
5. The traditional health practitioners should constitute themselves into a national body.
6. National competence to classify and preserve plant samples must be increased.
7. The government should regulate the collection of medicinal plants from the wild.
8. The collection of the threatened species should be banned except for propagation purposes.
9. Government shall control trade and medicinal plants and their products.
The Chiang Mai Declaration To Save The Plants That Save Lives issued in 1988 (basis of these guidelines) was certainly a step forward. However, the responsibility of international organisations and private national and multinational corporations which had drawn upon the indigenous knowledge for so long was not clearly defined. Similarly, no attempt was made to identify institutional mechanisms for ensuring compensation to the communities from whom resources may have been taken. It was in fact acknowledged (p.14) in a footnote that under the given laws, most communities did not have legal right to their traditional knowledge. Further, in most cases, the communities could not be identified in the legal sense.
The only problem with this view is that a whole community may not have a legal right, but the right of a corporation adding value to a knowledge provided by a medicine man or woman living in a community could not be superior to the right of the community. It is this asymmetry which these guidelines have chosen to ignore. During 1988 to 1993, a period in which examples could have been collected of the implementation of some of these guidelines, nothing apparently was done.
Public Domain database:
The only redeeming feature is that Dr. Farnsworth at University of Illinois, Chicago has made NAPRALERT data base on medicinal plants accessible to developing country professionals without any cost. This service developed through a tremendous effort and dedication is indeed praiseworthy. But a data base of published information can merely reduce transaction costs. It cannot correct basic imbalances in the relationships and responsibilities of providers and users of information. Even though commercial users are charged for the access to the data base supported partly by WHO, the resources aren’t apparently substantial to lead to any compensatory models.
b: Ethics, Ethnobiological research and Biodiversity (WWF,1993)
WWF brought out in the same year, another report on above topic written by Cunningham. In this report, it was recognised that monetary and non-monetary utilitarian values justified the conservation of biodiversity. The question of fair share of benefits for the providers of biodiversity with or without associated knowledge was raised. The guidelines developed for ethno-biological research underlined following principles or procedures:
1. Need for legislation at national or regional level to regulate the collection and export of biological material.
2. A strict code of professional ethics to ensure that research participants and members of local organisations are informed of the objective, commercial aspect and possible results of research; confidential information and request for anonymity is respected; equitable compensation for the assistance provided by the individuals; fair royalty payment to regional or national organisations and acceptance of national requirements for prospecting biodiversity.
3. The explorations should involve local people in screen- ing. A commitment should be made to transfer technology, provide training in cataloguing and screening biodiversity with government assistance.
4. Supply agreements to be made with reputed organisations and not with individuals who could be guided by personal gains.
The report acknowledged that the information obtained by the ethno-botanists through a relationship with local communities based on trust is used for the publications and commercialization. The respect for local rituals was often diluted. Despite the fact that hit rate was much higher with ethno-botanical collections compared to random collections the corporations and governments around the world had not pushed for any fundamental shift in the responsibility of ethno-botanists. For instance, even this report did not acknowledge the unethical practice of claiming authorship for knowledge by the ethno-botanists who merely chronicled the information provided by others. These, ‘others’ remained nameless and faceless even if the community was acknowledged. The Declaration of Belem in Brazil recognised the need for compensating the providers of knowledge and also the need for ethno-biologists to share the results of the research with native people in native language. However, the authorship protocols were not modified. Even though the author (Gupta, 1992) had made a personal oral appeal to the President of this congress prior to the congress (in Bad Ball, Germany, 1992) no resolution was passed by the international congress insisting that if the researchers did not share their knowledge with the providers, their papers would not be accepted for presentation in the next congress. Similarly, no decision was taken on acknowledging providers of knowledge by name.
We would, of course, raise this issue again in the next congress on ethnobiology in November, 1994 but the point remains that lack of action even on those issues on which authority rests with academics indicates that these declarations are only for public consumption. The business continues as usual.
c: National Cancer Institute guidelines:
The US National Cancer Institute guidelines (1991) have been more advanced than the Belem Declaration. It called for protection of IPRs, compensation for traditional knowledge though not necessarily in the form of cash, responsibility of multinational corporations and academics involved in the use of natural products and traditional knowledge to recognize the responsibility in compensation and provision of intermediate compensation till the final product was developed and profits earned. The amount involved was 2.7 million dollars in 1986 and 3.8 million dollars in 1991 in three five year contracts. Obviously this amount may appear abysmally low compared to the potential value of the information. Even in this amount a very small share may have gone for actual payments to the people for improvement in their livelihood prospects or for local infrastructural development.
d: Guidelines for Foreign Collectors
In another workshop in Australia, 1990 (WWF, 1993:20) the guidelines for foreign collectors required collectors to pursue following obligations, (a) arrangement to work with local scientists and institutions, (b) respect regulations of the host country, (c) obtain official permission, (d) include travel expenses and the cost of other activities incurred by the host institutions, (e) leave behind a complete set of properly labeled duplicates before leaving the country, (f) inform the results in the country of origin, (g) not to exploit natural resources in an unauthorized manner, (h) not to violate sanctions against collection of endangered species, (i) send copies of the research papers and reports to the host institutions and collaborators after acknowledging their contribution etc.
These guidelines did imply a much greater accountability on the part of expatriate researchers though the IPR and compensation issues were ignored.
e: UNEP guidelines for country studies on biological diversity
These guidelines developed to assist countries in assessing the status and value of their biodiversity are important reference points for any discussion on ethical and value issues. When a document as important as this does not emphasise the responsibility of organisations collecting data towards the providers of knowledge and/or conservators of biodiversity, the lapse becomes noteworthy. Twenty guidelines included in this document do not refer to the norms that should guide the accountability of data collectors and users towards the providers of information. It also does not take care of the cultural values of the people which may be crucial for the conservation and may provide clues to the kind of relationship a community may like to have with outside institutions. The technical annexures to these guidelines included detailed section on socio-economic factors affecting biodiversity. There is an acknowledgement of the fact that property rights may vary across and within a resource (p. A-3) but these rights refer to physical resources. The cultural factors are incorporated here more as a description of factors influencing conservation rather than as a protocol governing relationships with the community. The section on biodiversity services includes a whole range of services such as genetic material conservation, watershed management etc., but the existing contribution of local communities to the provision of these services is not specifically recognised. The section on economic value of biological resources and biodiversity (p. C-54) refers to different kinds of use values. Even here, the value contributed by the knowledge systems and thus in some cases may be retained for exclusive use of a small group would not be captured because of the prevalent norms of a community. In some cases, community may insist that exchange of a particular resource must not be attached a commercial value and, therefore, it might be characterised as non-monetary use. On the other hand restrictions on collection of plants through cultural means may determine the supply and consequent costs for the users. There is a need for modifying the concept of existence values as well as option values. The existence values incorporate the ethical belief and presuppositions whereas option value refers to future uses possible through prospecting biodiversity. The existence value can be assigned only if the ethical and moral principles guiding the conservation are considered legitimate and consequential for national as well as international policies. The value that society is willing to pay to ensure future access is option value and would vary across different political and social regimes. The guidelines in this section do refer to these values but the methodology and examples provided don’t seem to do justice to this concept.
e:Guidelines Of American Society Of Economic Botany
International Society of Economic Botany (Baba, 1993) has developed draft guidelines on professional ethics. The guidelines clearly provide what we have been pleading for last five years that the "members of the society for economic botany have responsibilities to those studied:
(a) They will communicate clearly and honestly to all informants, the objectives and possible consequences of ones’ research. If the research has a commercial objective, they will make that explicit and will disclose what the commercial results might reasonably be expected to be.
(b) They will comply with all rules and limitations that informants or their institutions place on the research. They will not "trick" informants into revealing "secret" information. They will supply any reports or results that are requested.
(c) They will respect any request for confidence made by those providing data or materials, provided that the maintenance of such confidence does not compromise other ethical considerations.
(d) They will respect informants’ right to anonymity and privacy when it is requested.
(e) When materials or information obtained from informants can reasonably be expected to have a commercial payoff, they will arrange with employers for equitable economic compensation for the informant(s) and will do all in their power to ensure that compensation is paid.
These guidelines are in some respects more precise and advanced than Belem Declaration. However, it may be useful to clarify that the research results should be shared in local language and easily comprehensible written form regardless of request. These results can be deposited in local schools, counsel offices apart from posting these to some of the informants. When requested, these must go to all who request as per the guidelines.
The observation in the guidelines about responsibility of the economic botanists to do all in their power to ensure that the compensation is paid is one of the most forthright statements expressed by any professional body so far. The idea (4.B) that "they will not present as their own, the work of others", can be made more explicit to suggest that whenever informants do not prohibit, their identity will be acknowledged as a part of the research paper just as personal communications from fellow colleagues are acknowledged in academic writings.
Part two: Corporations for Conservation !
a: The Case of Merck-INBio deal
The Merck - INBio deal has been discussed a great deal in media as well as academic circles. At the face of it, one million dollar for collecting and screening ten thousand samples for two years with royalty sharing arrangements besides transfer of technology may appear too small or big depending upon the perspective taken by a particular researcher. The fact remains that this biodiversity was being prospected earlier without any value. There is no need for the host country to renew the contract if terms were not satisfactory. No local knowledge around the plants was being drawn upon because samples were being collected from government forests in which no native communities lived. Fifty per cent of the royalty and ten percent of the upfront qsmoney was to be used for conservation purposes in Costa Rica. Subsequently, INBio has entered into many more contracts of even larger amount but with no publicity. Many activists have decried this arrangement on the ground of amount involved. Many others have appreciated the arrangement because even a random search was being accounted for in the form of specific compensation. Given the fact that total value of import of medicinal plants to OECD countries, Japan and the USA increased from 335 million dollar in 1976 to 551 million dollar in 1980 (Hussan, 1991 in Cunningham, 1993:23), the relative value of the medicines may make these amounts appear very petty. One medicine to become profitable requires a turnover of at least 250 million dollar per year. The ratio of the cost of the material and the final product shows that a very low value is put on the labour and knowledge contribution of local communities. From this point of view, one million dollar was small amount. But the fact that this amount increased the capacity of INBio to negotiate better deals subsequently, the amount didn’t appear too small.
Only five or six of these samples were sufficient if converted to drugs to generate as much revenue as was earned by the entire commodity export of some of the countries in Latin America. Question is that risk and cost involved in such five or six drugs should be reasonably shared by different parties.
Sittenfeld and Villers (1993) suggests that systematic biodiversity inventories are a useful means to achieve sustainable development. For instance, referring to the case of INBio, they suggest that a higher level of assurance in supply of biotic materials can be ensured once screening leads to positive result. This is possible because the collection is focussed in INBio only conservation areas avoiding endangered habitats and population. And also because the precise site and date of the collection is recorded for future reference. In addition to this, INBio has trained cadre of parataxonomists who help in correct identification.
INBio is working with Mexico, Indonesia and Kenya to set up similar institutions as in Costa Rica.
b: The Case of Shaman Pharmaceuticals
Shaman Pharmaceuticals has been involved in developing drugs by prospecting tropical plants with a history of medicinal use. So far they have produced two products which are in clinical trials. In 1993 the shares of this company were quoted at 12.50 $ per share. In its prospectus dated November 10, 1993, under the section on patents and proprietary rights, company did not mention anything about royalty agreements with native people whose knowledge it acknowledged had formed the basis of the discovery. It did express doubts about granting patents partly because it has not conducted an exhaustive patent search. In the column on use of proceeds company mentioned a whole range of purposes for which it may use 23.2-26.6 million dollar worth proceeds received from the sale of common stock . But the compensation to the providers of the knowledge was not included under this either. Company had claimed to work with 70 out of 1500 distinct native cultures in 20 countries. The company had large scale supply arrangement for the raw material from the source countries. For instance the plant material required for SP 303 drugs used for anti viral purposes was found in at least seven Latin and South American countries. It claimed that about 10,000 Kg of this source plant could be harvested in a sustainable manner in Ecuador and Peru. The argument for sustainability was based on the observation that it can be regenerated to maturity in about 7 years . The company also held sufficient stock of this plant materials to last for 3 years. The company had arrangements with communities and their co-operatives, many of which receive support from national and international government agencies. As a policy the company required that each source plant targeted for large scale compound insolation must have multi country source of supply or be economically synthesizable. This company observed it might reduce the risks associated with foreign supplies whether because of political or climactical instability. Shaman has set up a note for profit organisation called as The Healing Forest Conservancy which is supposed to provide benefits to indigenous people in the countries from where source plants were obtained. The Company has some of the most eminent scientists on its scientific strategy team who might face thousand dollars per day for participation in the meetings once in nine months. The members are also compensated with the stock options in the company for their general contribution throughout the year, besides any additional consulting service and field expedition. Most of the members of SST are academics while many others are either from private sector and some are even from international organisations like WWF.
Whether anyone of them has a role conflict is difficult to say from the information available but it is obvious that ethnobiological information obtained from people under various academic arrangements could easily become available to the company through these affiliations.
King (1992) provides a comparative perspective for looking at reciprocal benefits between the company and the communities conserving biodiversity. He claims that Shaman’s ways of providing benefits to locals people, communities and other agencies was one of the most appropriate and balanced solution for the purpose.There are three steps that Shaman is supposed to have pursued; (a) a portion of the profit of any and all products is shared with all the communities and countries in which they work (b) the non profit conservation organisation set up by the company with an independent board is supposed to provide directions about appropriate distribution of resources with the communities and government organisations (c) benefits are also provided through creation of new natural product supply industries in the countries in which they work.
King claims that unlike much acclaimed INBio - Merck deal, Shaman had been giving attention to the interest of indigenous knowledge by the local communities. He however does not explain as to why the inventions have not been co-authored with the local innovators and communities. The author mentions various contributions the company made for local development as an evidence of their reciprocity. However it is not mentioned as to what share the so called reciprocities constitute of the profits derived. From the description it does not appear to have been a very large proportion. The author has also not recognised that an ability of a community to articulate what it would need depends upon historical exposures as well as previous experiences. It is quite possible that when a community demands access to periodic health care, it did not recognize that it had a right to regular health care and not just periodic one. Similarly the amount of compensation that the community would receive have not been spelt out though it is understood that transaction of this kind are confidential in nature. However, how would communities evolve their future demands depends a great deal on the kind of education system and employment opportunities their children have. It is realized that no corporate body would be able to take up the task of comprehensive regional development and thereby substituting the responsibility of the local government. At the same time institutional arrangements for ensuring meeting of not just basic needs but also higher order needs, will need to be developed. The second example author gives of negotiations with the Aguaruna Huambisa Federation for sourcing plant material is relatively speaking much more participative and respectful of mutual claims and responsibilities.
However, even in this case, the view taken by the company that a particular plant was found in many countries was intended to moderate the request of the local community for intellectual acknowledgement and monetary reward. An agreement between the company and 138 delegates of the local federation implied that contracts based on widespread discussions can indeed take place without expecting communities to register as corporations. While author takes note of very precise expectations, the local communities had, about the issue of property rights and scientific credits which company apparently had respect for, the preliminary prospectus of the company issued in December,1993 did not make any mention of this willingness under the relevant heads. Perhaps some people in the company are more committed to this cause than others. The author’s recommendation that government organisations need not be the only parties in discussions on biodiversity prospecting in developing countries but local communities need to be directly involved, is a valid one.
King and Carlson (1993) in a subsequent paper expand on the relationships that the company has been trying to forge with local communities. The non profit company floated by Shaman Pharmaceuticals, Inc. had supported regional information exchange in Africa, promoted exchange of information among the indigenous groups, made contribution to an advocacy group fight against deforestation in South East Asian countries, helped in setting up a rain forest information centre besides having initiatives programmes for medicine and some other developmental activities. It is not clear that the company has looked at carefully the mechanisms that will at some stage ensure the participation of the community representatives contributing to its profits to serve on its board as an important stake holder.
The guidelines suggested by the authors for ethno botanists and physicians provide various examples where the company representatives did reciprocate some of the help received from local community. By implication therefore, the author suggests that ethno botanists should do so. However, a utilitarian basis of reciprocity can be self defeating. A company can take a genuine view while hiring local ethno botanists (who may or may not realize what kind of reciprocities can be committed), that it had fulfilled its obligations. Perhaps the idea of informed consent and involvement and approval of local communities as equal partners in the enterprise would not require a philanthropic approach to the reciprocities. In my view , generating dependencies through short term charity oriented help may do more damage than good. It is also true that most communities have complex norms in this regard among themselves. Author do not explain as to how the resolve this conflicts and whether they had to face ethical and moral dilemma in the process.
PHYTO pharmaceuticals, Inc. (1984) claim that they compensated downstream partners involving developing of new drugs but did not provide specific means through which they achieved this.
Ryan (1992:30-31) makes an important point regarding corporate interest in specific plant or parts of biodiverse system. If only one or two plants are prospected, the interrelationship in the ecosystem will be disturbed. He also draw attention to the controversial but valid link between biodiversity, consumption patterns and population growth. And both need restructuring. While the developed countries have been far more concerned about the increasing population growth in developing countries, they have not been able to create an agenda for reforms in per capita consumption patterns. Ryan does not expand on this issue. He also emphasizes that many of the indigenous communities value veneration over material gains. In many countries, participative models are less likely to emerge because the government’s accountability to its people is severely lacking. Under such circumstances, ethical issues get inevitably linked up with the equity and political economic decisions.
Reid et. al (1993) argue that providing IPR’s for wild genetic and biochemical resources might put more of the "public domain" in private hands than would be necessary. In their view, excess restrictions, contracts and value added industries offer the most advantageous. They also support that IPR’s of indigenous community in certain cases. The justification for international fund under FAO or otherwise in our view is weak. International bureaucracies are known to consume far greater share of resources for their own maintenance than providing it to the people. In addition they justify user fees or local contracts. Just as scientists contribute to overheads of their institutions, they should contribute to the overheads of the communities and institutions at the research sight.
Part 2: Community Intellectual Property Rights
In a third world network discussion paper, Nijar (1994) reviews the various developments regarding UPOV, FAO and farmers rights. He argues for two legal principles as the basis for vesting the custodianship rights of local communities producing an innovations: (a) Constructive Trust: Quoting Snell’s principles of equity (1982; 192) that "when property has been acquired in such circumstances, then the holder of the title (to these rights) may not in good conscience retain the beneficial interest: equity converts him into a trusty." (b) Higher Trust: The recognition in Biodiversity Convention of governments possessing sovereign rights vis-a-vis their resources creates a higher trust. This "imposes on the government an obligation to honour it in relation to those it holds the rights in trust for (that is, the community). It is settled law that although this higher trust is not enforceable in the courts, many other means are available of persuading the governments to honour its governmental obligation, should it fail to do so of its own free will. It is no mere moral obligation (Megarry V.C., 1977 in Nijar, 1994: 19).
Nijar recommends that this right should be held in perpetuity. And if a duration has to be fixed for protection of this right, it should commence when commercial utilization starts. There are several other provisions which need to be critically looked into.
Section 1: The rights of local community as custodian of innovation could neither be assigned nor transferred or sold.
Section 2: Free access and exchange of innovations among communities (in case of commercial utilization, free exchange does not apply).
Section 3.1: Automatic entitlement of a stipulated sum to the local community holding the knowledge, innovation, practice or resource.
Section 3.2: Communities which eschew monetary dealings, compensation shall be in non-monetary medium.
Section 3.3: The innovation may be used commercially by more than one person, body of corporation.
Section 3.4: The compensation shall be paid to a registered organization of the community or to the state till the organization comes into being.
Section 3.5: The local community will have the complete discretion to decide the use of the money.
Section 4: Communities can register as an organization to acquire legal personality. Disregarding the registration, the rights of the community will remain intact as custodian of the innovation.
Section 4.1: Registration of invention need to be simplified.
Section 5: The community may register its innovation and in the process give notice to the world of the existence of the innovation. This is similar to the copy right law.
Section 6: Declaration by the representatives of the communities regarding authenticity of innovations and community being the genuine custodian of the innovation would suffice to vest the innovation in the community. Those who question the declaration would bear the legal burden of proof.
Section 7: The state shall nominate the institutions to assist the communities in technical characterization of the innovation.
Section 8: Wherever several communities have simultaneously but independently created the knowledge or germplasm or a practice the rights to innovation will vest jointly.
Section 9: Not only the community but anybody governmental or otherwise could pursue action to enforce the community intellectual rights.
Nijar further suggest that third world governments should exclude patenting of biological organisms.
There are several assumptions behind above recommendations some of which have actually been mentioned by other authors before while some are contradictory.
These assumptions and their limitations are:
(a) The traditional knowledge of the communities is produced and reproduced collectively.
The innovations produced by individuals and adopted by communities in localized or dispersed manner are by definition excluded in this formulation.
(b) The germ plasm is considered collective property of communities even if only a few individuals have maintained the same. Similarly, it is assumed that individual selections and improvisation in this germ plasm by farmers or tribal people are of no special consequence. It is true that germ plasm in many cases would be and should be collective property of the community which has maintained it. But in real life due to large scale erosion of biodiversity, communities may not have played an active role in maintaining particular germ plasm. In such cases, community should get a share because of past contributions but the contribution of individuals or groups thereof should also receive specific recognition.
(c) The restriction on selling, assigning or transferring of innovations even for restricted use in some sense disenfranchises the right holders. A private mine holder can sell minerals in the creation of which he/she did not play any role. But a community or part thereof which has actively contributed to the production and maintenance of germ plasm, other biodiversity of economic importance is being denied by Nijar of any right to assign the property of innovation and thereby generate revenue. Similarly, to argue that the free exchange should continue only if there is no commercial utilization is contrary to the spirit of the local ecological knowledge. The local communities may not mind sharing a germ plasm with an outside agency given their cultural and ethical belief in different kinds of value. At the same time, it is the responsibility of the collector that even if the material is obtained free, a share of value added income must go back to the community in cash or kind so that the spirit of exchange does not get curbed. However, if certain communities or sub-groups thereof choose to exercise proprietary rights, and exclude others from obtaining the resources free, we should respect and recognize such rights. The idea of state deciding the price may not work because the record of public sector in making such payments may be as bad or good as private sector.
A good example of this possibility is the first draft of Indian Plant Varieties Act, 1993. It does not make it mandatory for breeders or other users of germ plasm preserved by the local communities to pay any royalty to the provider of germplasm. It provides for compensation only if the prospectors deemed it fit or necessary. Such an attitude on the part of the state can obviously not be of great help in ensuring the protection of rights of local innovators or communities.
(d) The extent of payment shouldn’t be a subject entirely decided by a community particularly when it is unaware of the potential value. Therefore, there must be some public mechanism for screening agreements which entail compensation values below a particular limit. This will obviate the possibility of short changing the provider.
(e) Instead of registering the whole community as a corporate body (which will be an impossible task given the contradictions and conflicts in any society) the representative of political structures may be empowered to enter into contracts when a resource is widespread. Alternatively, trust funds should be set up as recommended by SRISTI, constituted by only those people who actively contribute to the conservation of germ plasm. Just as a milk cooperative society did not accept any particular farmer who did not contribute milk to the collection centre for a given period as a member, the Trust Funds could refuse membership to those who did not cultivate local varieties. This may thereby may exclude the more powerful people who have irrigation andmay grow HTVS*.
The assumption that local communities are homogeneous could defeat the very purpose of developing any responsive and accountable system of compensation. And, therefore, development of rules which can recognize these contradictions and reward to genuine conservators of biodiversity is very important. However, I would not, for a moment, argue that we should delay or deny compensation till basic contradictions in rural communities are resolved.
(f) The registration of local innovations was an idea mooted when Honey Bee network was started five years ago. We have already approached several patent offices to consider recognizing the innovations documented by us with name and addresses of the innovators or communities. This is a workable system except that we do not accept that only communities can register their innovations. Even the individuals should be able to do so. The concept of petty patents was supposed to accommodate this concern. By reducing the period of protection and the standards of novelty and inventiveness, some protections has been proposed under this scheme. Our argument has been that registration should give a right of precedence, exclude others from filing patent applications and at the same time give priority for filing patent applications to the registered owner of the invention or innovation.
(g) Since the burden of proof has been reversed under the GATT, only those who believe that patent holder has violated their rights have to prove their contention. Many of the same activists had opposed the reversal of burden of proof. But as is obvious, if registration system has to be introduced, the GATT provision on subject may actually be useful.
(h) Nijar’s suggestions for a collector license will bring back the permit and license regime which many developing countries are trying to throw away. Obviously, the poor people are unlikely to get collector’s license easily. Instead of that SRISTI’s proposal has been that anybody who uses biodiversity collecting directly or through intermediaries must be made to prove that they have acquired the resource and/or the knowledge lawfully and rightfully. Whether they have followed the concept of prior informed consent or not has to be proved by them and not by a community which may feel aggrieved. This will also require that the developed countries as well as developing countries have to enact legislation which legitimize above obligations under Article 15.5 as well 8J of Biodiversity Treaty. The regulation may still be necessary for foreign collectors though under the GATT provisions, discrimination between national and international parties can become a matter of dispute.
There are two ways in which developing countries and for that matter even the developed countries relatively rich in biodiversity can handle this problem:
i) Regulations of collection, extraction, trade or value addition can be justified if it can be proved that environmental damages is likely to be caused in the absence of regulation.
ii) Regulations can be justified if it can be proved that the prospecting of biodiversity in the given system could deprive people of their income or employment in a region where unemployment rate is 110 percent of the average and per capita income is 85 per cent. These regions also qualify for specific subsidies which are non-actionable under GATT. Thus any tax or tariff imposed to protect the employment in these regions or alleviate poverty in these regions is a matter which may stand its ground under GATT notwithstanding popular misconception on the subject.
While we are in favour of government regulation of certain fundamental rules of the game, we do not think that the interests of poor people conserving biodiversity are likely to be protected by the governments on priority as anticipated in the Third World network discussion paper by Nijar. The evidence in support of our contention is quite unequivocal. The highest illiteracy level, extent of poverty and absence of basic needs present in most high biodiversity regions shows the indifference state has had towards conservators of biodiversity. It is a different matter that even private market forces have behaved no better.
Therefore, empowered autonomous authorities comprising eminent scientists, NGOs, activists and government representatives might do a better job of regulation than any government department no matter how well intentioned.
Another report by WWF (1993) suggests that some parameters of backwardness could be used to ensure that benefits could reach the people in the areas of origin of diversity. Fears were also expressed about the corruption and misappropriation of funds by some governments and NGOs. Community funds or regional funds managed by a NGO through involvement of community leaders was suggested as one viable alternative. At the same time, recommendation was made that returns should be consistent with, "the development goals and needs of the community".
Defining the norms of compensation on the basis of ‘needs’ of a community living at a below subsistence level can involve passing moral judgments. What would be a fair payment to those whose expectations are low? It could turn the entire issue of compensation into a very debatable one. At the same time, one has to acknowledge that too much money coming too quickly could cause considerable damage to the local social institutions. Institutional developments in the long run to correct historical neglect would indeed require huge investments. This is where institution building approach could be most helpful. The available funds could be kept as trust funds for long-term investments and improvement in basic infrastructure as well as opportunities for skill upgradation and development. There is no justification for reducing the responsibility of users of biodiversity because the provider did not have the capability to demand or consume large funds at a given point of time.
Sustenance of traditional communities by perpetuating their poverty is in any case a non-viable solution. The out-migration because of poverty and illiteracy from high biodiversity regions may deplete the community structures more seriously and quickly than availability of funds invested in local institutions.
The report makes a good point in the conclusion that ethical changes often arise out of crisis. Just as Project Camelot aimed at destabilizing Allende’s regime in Chile through covert involvement of anthropologists led to development of ethical guidelines by the American Anthropological Association, the serious decline in biodiversity should lead to development of ethical guidelines for ethno-biologists and other prospectors of biodiversity. The ethical guidelines drafted by Cunningham highlight that national governments and other actors including sponsoring organisations must not raise undue expectations among developing countries regarding benefit from potentially profitable value added products. While this caution is justified, it has not been explained as to what should corporations do for the historical acquisitions of the plants from developing countries. If the ‘Nature For Debt’ swaps were recommended to square off some of the historical inequities, a climate of trust and mutual accountability would need to be created.
One of the major weaknesses of most declarations and guidelines is that these acknowledge the unjust manner in which biodiversity had been exploited in past and yet did not suggest concrete obligations that the multinational corporations and the developed countries should bear.
Biodiversity treaty did provide for sovereign national rights over a country’s biodiversity and yet it also argued for free exchange of germ plasm. One view of this is that free exchange does not mean free of cost. However, biodiversity treaty fails to clarify the responsibility of the governments towards the communities which actually conserve the biodiversity. And whose efforts generate the possible gains for the country.
The WWF acknowledges important link between religious and cultural diversity and biodiversity emphasized by Gupta (1991).
Yamin and Posey (1993), in a recent paper, refer to the various issues regarding individual and collective rights arising out of indigenous knowledge, innovation and practices. The provisions of human right instruments, ILO Convention 169 and IPR Conventions prior to the recent round of GATT are reviewed. It is claimed that Belem Declaration for the first time establishes principles to guide "its members engaged in research and work with indigenous and local communities". However, the authors do not acknowledge the fact that despite these guidelines ISE has not cared to enforce its code of ethics which itself has many inadequacies as discussed earlier. Even at the cost of repetition, I may add that ISE has never considered to the best of my knowledge refusing a contribution in its conference from an ethnobiologist who has not shared his/her findings in local language with the providers, nor has done anything to ensure that by publication of the results, the intellectual property rights of the community are not exhausted. It is true that in some cases publication may serve a social end and when it is shared in local language with other communities. But such has not been the practice in the discipline of ethnobiology by and large. Even in such cases, the practice of ethnobiologist of not identifying the providers by their names has not been questioned in the guidelines or in the paper under review.
Shelton (1993) reviewed for WWF the options for compensation for access to and use of traditional knowledge and biological resources. The author acknowledges that compensation could sustain local livelihood systems and thus contribute to ensuring cultural and biological diversity. However, he notes four reasons why the claims of local communities may be resisted or challenged:
(a) Traditional knowledge particularly about agriculture is supposed to be openly held and freely exchanged without any expectation of payment.
(b) The knowledge may have been enquired incrementally over the centuries by those who may be already dead.
(c) The property rights or system of compensation in ‘pre-captalist societies’ may lead to faster destruction of the marginal resources in order to produce "useful" resources.
(d) Some of the important uses of the plants identified by the outsiders may not be known to the local communities.
After reviewing various practices and precedences, author recognises that identification of original innovator may be difficult and thus ineligible for compensation. The author recommends need for legislation at all levels to control and export of biological material. Licensing fees as a method of compensation with a mandatory percentage of revenue return to the indigenous communities is recommended for maintenance of their eco-system and cultures.
Part 3: Biotechnology and IPRs
Congressional research service of US in its report of April 16, 1993 entitled, "Biotechnology, Indigenous Peoples and Intellectual Property Rights" by Axt, Lee and Ackerman (1993), provides a comprehensive review of the issues involved in prospecting biodiversity and compensation to local communities (henceforth, CRS report).
The report recognizes that, "the requirements of US Patent Law that an invention be novel, non-obvious and not be a product of nature appear to be insuperable obstacles to any domestic protection of such knowledge. The Product of Nature Doctrine implies whether traditional knowledge about the medicinal use of plant and animal is described by Section 101 of the US Patent Law which states, "certain subject matter, including laws of nature, products of nature, printed matter, mathematical formulae or algorithms, and business methods, is not patentable" (Chisum, 1981 in CRS 1993:48). The report, therefore, focuses on the central issue whether the traditional knowledge is merely the discovery of a product of nature. Thus, the Report contents that unless a product is substantially different from the form found in nature, it is not patentable. The human intervention in modifying its form has to be proved. The process of extracting a product was considered patentable but not the product itself if it was same as found in nature. However, in the famous case of Dennis v. Pitner (106 F.2D 142 - 7th Cir.1939 in CRS Report, 1993:49) it was held that the insecticidal properties of a powdered root was patentable. Eventhough the root powder had not undergone any change in its properties compared to what was found in nature. Later the patent was rejected on the ground that this had been known to the indigenous people for long time. In another case the product and technique were known for producing an antibiotic from micro organisms, but the particular technique in question hadn’t been used with the specific micro organisms to develop the specific antibiotic. The Report notes that the process patent was allowable but not the product patent since micro organism was a product of nature. However, later in 1978, four years after the first case, accepted the patentability of micro organism further reinforced by the Supreme Court decision in Diamond v. Chakrabarty (1980).
The decisions in the recent past have diluted the Doctrine of product of nature a great deal. A micro organism cultured in pure form with a specific use is patentable. Similarly, substantially pure form of a compound is patentable even though it is found in nature but in less pure form. Seven principles have been suggested by Dozicevic (1987 in CRS Report, 1993:53):
i) The influence of public opinion in the interpretation of Section 101 cannot be disputed. The Chakrabarty case was apparently upheld because the organism was supposed to clean up the oil spills - an act which environmentalists opposed to the patenting of life forms did not strongly protest.
ii) Chemical compounds which are known to exist in nature should be claimed as different from their natural surroundings. Thus, same compound when synthesized became patentable though it may not have been any different from the one found in nature.
iii) Discovery of a product in nature may lead to an invention that could be claimed as original through careful drafting.
iv) Patentability of a compound can also be derived on the basis of its newness compared to the form in which it exists in nature.
v) The non-obviousness or the novelty should be proved for a product of nature to be patentable.
vi) The "first to induce a Product of Nature to possess a new characteristic regardless of the manner of inducement, is likely to have produced a patentable invention".
vii) The means through which a Product of Nature is derived or modified does not have much effect on its patentability. Although it might make the process patentable. The Report contends:
If an indigenous people use a plant in its natural state because they discover that it has certain valuable properties, it may not be patentable. If they alter it substantially, for instance, brewing a tea from it or processing it in some manner to produce a medicinal substance, then the resultant product may be patentable subject matter. The difference would be that they have produced a non-obvious composition of matter derived from a Product of Nature by using their knowledge of the laws of nature. (Any such claim, of course, would still have to meet the patent laws requirement of novelty, utility and non-obviousness).
In the context of considerable controversy on patenting of neem products the Report suggests that mere knowledge of neem seed being effective pesticide is not patentable by anyone. Similarly, the method of scattering seeds for the pesticidal purpose is also not a patentable process because this process has been known and thus cannot be called as non-obvious. However, patents have been granted for new use, extracting compounds form different from the one found in nature and for laboratory synthesized derivative of azadirachtin. The Report acknowledges that the traditional knowledge did inspire the research and development which led to the patentable product and processes considered sufficiently novel and non-obvious. The Report concludes that, "it appears doubtful that much protection exists under the existing national and international systems of laws relating to intellectual property" for traditional knowledge of indigenous people. The human rights have not yet been defined fully and the discussions have not incorporated the IPR dimensions very much. The Paris Conventions and the Patent Cooperation Treaty do not contribute much to resolve this problem. A recommendations is made that even though the indigenous people such as native Americans have been prevented from making treaties or international agreements with countries, but laws could enacted which legitimize their contracts with private concerns such as drug companies. These laws could make recognition of traditional knowledge and its use compensable. It also recommends a special international convention focussing on property rights in traditional knowledge under the auspices of UNEP or the UN working group on indigenous peoples. Another possibility suggested is that of a subsidiary agreement to be negotiated under Biodiversity Convention requiring that a government having a particular genetic resource, by commercializing which it receives technology or royalty should pass on part of it to the indigenous people. The Biodiversity Treaty does not make it obligatory for the countries to do so. "A central authority", the Report adds,
could also be created to collect royalties from the profits of biotechnology derived from traditional knowledge and to disburse them equitably among all indigenous people. A code of ethics could be created and informally agreed to by all private and public organisations dealing with the indigenous peoples. Developed countries could condition foreign assistance to the developing countries on the creation of a mechanism to disperse royalties received from biotechnology agreements, such as the Merck - INBio Agreement to indigenous peoples. Finally, foreign assistance could be used to promote such agreements.
The Report is in favour of protecting the rights of indigenous people through contracts between people and companies and other users.
There are many limitations of this model. I enumerate these limitations without in any way reducing the importance of this document and its comprehensive coverage.
1) The Report assumes as most studies on the subject do that much of the traditional knowledge is carried forward in relatively speaking unmodified form from one generation to another. Even when the CRS Report acknowledges the innovations and modifications, it emphasizes that even these modifications might have been made centuries ago. This is an unfair judgment on the creative and innovative potential and aptitude of indigenous people as well as local communities in different parts of the world. It would be true that certain recipes or rules of knowledge are indeed carried forward from one generation to another with very little modifications. But equally significant is the fact that large number of innovations undergo modifications, minor or substantial and individually or collectively and in long past or recent past. The contemporary innovations, I submit, is an issue which has received inadequate appreciation by most observers on the subject whether among academics or in the NGOs.
The contemporary innovations whether for herbal pesticides, veterinary medicine, vegetative dyes may in many cases advance the frontiers of science and thereby fulfill the conditions of novelty, non-obviousness and utility apart from inventiveness. It is true, at the same time, that most of these individuals or groups thereof would not be in a position to design sophisticated claim forms for filing patent applications. In the process they may share their knowledge with the outsiders who may by publishing the same rob the innovators of their prospects of patenting such knowledge. Even more difficult is the position when many of the same innovators insist that no commercial compensation be given lest they lose (in their view) their ability to use a given knowledge.
Obviously one couldn’t argue that inability of an inventor to exercise his or her rights of protection should deny others of any responsibility in the matter. There are two possible legal precedence which can be used here:
(1) In a case where a thesis lying in a library but not catalogued was considered not reasonably accessible and thus the patent was upheld although the thesis dealt with the patented information. Therefore, if knowledge of a local community whether traditional or of contemporary period has not been reasonably accessible to outsiders, it should not be considered a prior art and thus ineligible for protection.
(2) The rights of any company or researcher using peoples’ knowledge should not be considered superior to the rights of the people or prospectors who have provided the knowledge.
Baenziger, Kleese and Barnes (1993) while reviewing the ethical and social issues concerning IPRs of plant materials raised the issue, "should protection of genetic inventions be allowed when the raw materials of the invention i.e. undeveloped germ plasm, was not the private property of the inventor?" They also question as to who should decide who benefits and how through the protection of value added germ plasm.
Thus, a company patenting a product derived from a natural source and used for the purpose for which people used it should be denied a product patent. Even the process patent should be so awarded that specific process for a specific purpose only gets protection. Obviously this contention would be contested by the corporate leaders very strongly. Therefore, one compromise solution can be joint inventorship of the commercializable product involving royalty payments as well as intermediate compensation during the period research is being done. It is obvious that till a product is developed, the knowledge will be confidential. Such may not always be the case because people may not like to keep a particular knowledge secret. The registration system with a provision of monopoly licensing and obligation to manufacture may help move in the direction. This is different from compulsory licensing provision which have not worked in most countries. Therefore, it is not necessary that a license is worked in the country in which resource is found or where the product is marketed. Only submission is that a good product useful for humanity should not be prevented from being manufactured merely because the assembly line or the manufacturing system of an existing but less effective alternative is sought to be protected.
Even under TRIPS, Article 7 states
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Assymetry in rights and responsibilities
The balance of rights and responsibilities of the owners of Intellectual Property Rights does need clarifications in the post Biodiversity Treaty situation. No useful purpose will be served by arguing that asymmetry in the rights is allowed to continue because this will inevitably lead to asymmetry in responsibilities.
If conservation of biodiversity suffers, possibility of producing new knowledge whether by local communities or by corporate sector may go down. This is a prospect which no law or treaty would like to legitimize. And thus a case for reinterpretation and modification of the provisions of TRIPS so that the environmental and socio-economic goals of GATT are not violated because of improper definition of rights and responsibilities.
The global biodiversity forum held at the time of inter governmental meeting on biodiversity in (ICBD) October ’93 felt that omission by CBD of the IPR’s was unfortunate. Concern was expressed that CBD has failed to address ethical concerns involving granting of ownership over plants, animals and their components to the people. Another interpretation was that sovereign rights of governments granted under CBD may have actually weakened the legitimacy of their claim for rights to access northern biotechnologies. It may have also disrupted the commonality of purpose among developing countries by discouraging them to provide preferential access to each other. Some felt that restriction on access might favour the north more than the south while others felt that an open market situation could lead to over exploitation.
Khalil, Reid, and Juma, (1992) in a review of the conference proceedings on Property Rights, Biotechnology and Genetic Resources argue that apart from code of conduct and state recognition of individual and community rights, there was a need to develop new IPR mechanisms building upon the idea of ‘corporate’ community.
Hecht and Cockborn (1989) in an appendix provide forest peoples’ manifesto in the context of Amazonian development. They insist that the people living in the forest should be allowed the rights to participate in the public discussion of all government projects for forests inhabited by Indians and rubber tappers as well as other extractive populations through their representatives.
Rights of Research Finders vis-a-vis data providers
National Science Foundation guidelines to apply for grants for research and education in science and engineering expect that the findings of the research and educational activities supported by NSF be promptly shared with other researchers in a reasonable period of time through publications with proper acknowledgment. However, it does not require that the research finding be shared with the providers of the data. Similarly, guidelines allows awardees to retain principle legal rights to intellectual property but say nothing about the rights of the communities or individuals which may have provided the valuable clues.
The Biodiversity Convention office of Environment Canada brought out a document entitled, "Biodiversity: The Web of Life (1993)". It suggests that Canada would support a further round of negotiations on global trade after Uruguay Round of GATT has been finalised in which environment would be a focal point. This is one of the rare proclamations from a developed country on the subject. How far this will help in improving their accountability towards local communities remains to be seen.
RAFI has been a persistent campaigner on the subject of patent rights of people. In general, RAFI has been opposed to any kind of patents on life forms seeds etc. However, in a recent public debate on the subject held in Canada, Pat Mooney questioned the possibility of Third World people getting any advantage from the intellectual property rights regime and argued for continued free exchange of germ plasm. The author (Gupta) argued that such a view implied that the contemporary innovators in the developing world would not be able to pursue their claims in the current international intellectual property rights regime. It is true that the legal costs and complexity may be beyond the current capacity of local communities in most developing countries. At the same time, that is not a reason for denying people their rights. Feasibility should not become enemy of desirability.
The report on conserving biodiversity by National Research Council (1992) acknowledges the need for greater emphasis to be put by development agencies on local knowledge but says nothing about the ethical values that should guide the conduct of development agencies or researchers.
Baenziger, Kleese and Barnes (1993) in a special issue of Crop Science Society of America, raised several other ethical and social issues in the context of IPR. The material transfer agreements have been proposed as tools to promote exchange of germ plasm among different nations and parties. The issue raised is, whether MTAs are appropriate instrument for conservation of indigenous genetic resources. What would be the appropriate forms of compensation in lieu of access to genetic resources of a developing country from among the choices such as cash payment, debt write off, funding of R&D infrastructure etc. They also question whether the external cost of protecting or not protecting genetic resources of Third World are known. On the other hand, they enquire whether use of MTAs would increase the cost of research and development thereby limiting the rate of technology progress. Is the restriction sought to be imposed on the sale of farmers saved seeds under the UPOV 1991 justified? Should all the farmers be punished, they ask, for transgressions of a few.
The authors in the CSSA document recommend that intellectual property laws for plants should be re-written and should apply to all kinds of plant based intellectual property. The cheaper conflict resolution mechanisms should be developed so that institutions which can’t afford costly court fees can also claim justice. They argue for compensation to developing countries but do not discuss the issue of rights of communities and individuals within the developing countries.
Hamilton, Ellis and Levitt (1994) review the issue of IPRs and refer to the comments made by Peter Day Chair of the Committee on Agriculture set up by National Research Council of US. Day while presenting the report on Managing Global Genetic Resources (1993), offers three solutions to resolve north-south conflict.
(1) A new treaty should be negotiated which would define a compromise position on IPR as well as free flow of crop germ plasm (the Biodiversity Treaty did include some of these aspects but it has not been ratified by the US Congress as yet).
(2) An international payment system should be created linked to the seed sales whose proceeds could support genetic diversity conservation programmes (this is similar to the International Gene Fund recommended under FAO Undertaking on Plant Genetic Resources, 1993).
(3) To focus attention on the increasing the capacity of developing countries to do research on plant breeding and other biological aspects rather than on legal arrangements. This would assume a kind of reciprocity between the industries of developing and developed countries. They note that American universities spent over 37 million dollars on legal fees to claim the IPRs of which only 12 million dollars was reimbursed through various licensing arrangements. This is out of 172 million dollars of income from licensing of inventions (one has to think about the capabilities of developing countries to bear such costs to enforce their rights in developed countries). The authors seem to share the general disapproval of the very broad patent granted to Agracetus for transgenic cotton. The authors conclude that US President’s recommendation to US Senate urging ratification of biodiversity convention is an acknowledgement of the basic principles of rights and responsibilities in this regard underlying the convention. They also foresee that debate on these issues is going to take time to be resolved.
The Nothern Affairs Programme of the Department of Indian and Northern Affairs of Canada developed some guidelines for responsible research. These provided that collector should address the issue of intellectual property right for the traditional ecological knowledge collected from indigenous people.
The Draft International Code of Conduct for Plant Germ Plasm Collection and Transfer (1991) looked into the issue of the accountability of plant collectors and their ethical behaviour. The code is voluntary and primarily addressed to the government and international organisations. The code aims to maximise the benefit to the international community and minimize adverse effect on evolution of crop plant diversity and the environment. The national governments were empowered to issue a license for collecting germ plasm as per their legal requirements. The collectors were expected to "respect local customs, traditions, and values and should demonstrate a sense of gratitude and reciprocity towards local communities...... The acquisition of germ plasm should not deplete the populations of the farmers’ planting stocks or wild species.... While collecting cultivated or wild genetic resources, it is desirable that farming communities and caretakers of such resources be informed about the purpose of the mission and about how and where they could request and obtain samples of the collected germ plasm..... Duplicate set of all collections be deposited in the host country".
As is obvious from the voluntary code, there is no mechanism for enforcing these guidelines. Neither there is any evidence of the code having influenced the behaviour of collectors in any significant manner in the recent times.
Alcorn (1992) made several suggestions on the role of ethnobiologists and particularly pleaded that the others’ knowledge should not be packaged as one’s own work. She recalls the pioneering work of the Mexican ethnobiologists such as Toledo, Gomez - Pompa and Xolocotzl who asked the question about ethnobotany for whom.
The report on the State of the Peoples brought out by Cultural Survival (1983) include a draft declaration on the rights of indigenous people. These rights pertain to all aspects of relationship between indigenous people, their culture, access to natural resources, their aspirations and their institutions. The collective intellectual property rights to the biodiversity and knowledge about it are also affirmed. In addition the right of free and informed consent through their representative organisations is also stressed.
The guidelines on Community Based Public Health Research Principles and Application Procedures adopted by Detroit - Genesee County Community and University of Michigan, School of Public Health, (1994) recognised the right of community to be informed of the project objectives, procedures and findings in clear language, "respectful to the community and in ways which will be useful to the community". Any publication resulting from the research was expected to acknowledge the contribution prior to submission of material for publication and involvement of local collaborators as co-authors.
In some ways above guidelines in combination with the guidelines of the Society of Economic Botany do register an advance in our thinking.
Chapman (1993) in the agenda note for a conference sponsored by American Association for the Advancement of Science asserted that intellectual property rights of the indigenous people were a collective right held by virtue of membership in the group. He added that like any other collective right, "they pertain to protection of non-reducible collective interest and to promotion of common good". He refers to the revised draft (1993) of the universal declaration of indigenous rights first issued in 1991 by the Working Group on indigenous population. "The right to special measures for protection", the document notes, "as intellectual property of cultural manifestations, seeds, genetic resources, medicine, or knowledge of the useful properties of fauna and flora". The revised text had Article 29 which says,
They have the right to special measures to control, develop and protect their sciences, technologies and cultural mechanisms, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.
This declaration of course has not been approved by many governments because the autonomous rights of indigenous peoples might imply political independence for such groups.
Hamilton (1993) in a comprehensive study on ownership of plant genes focuses attention to some of the crucial issues in the debate on conservation of diversity and responsibility towards those in third world who actually conserve it. Many in third world question the validity of TRIPS provisions under GATT which did not provide any protection for unmodified plant genetic resources. On the other hand, the argument is that by putting a value on plant genetic resources, mechanisms for financing their conservation may develop more easily. In my view, keeping the free access to germ plasm did not bring any benefit to the communities which conserved these resources so long. May be putting a value will. Hamilton questions whether Thomas Jefferson who wrote the first patent law of US would have permitted the person who "discovered" the plant or the scientists who "engineered" the gene to be granted a legal right to own it.
May be not. So?
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