LWA90041-6: Bio-piracy, Commercialisation of Ethnobotanical Knowledge

This essay delves into the complex realm of intellectual property law, specifically focusing on the contentious issue of bio-piracy and the commercialization of ethnobotanical knowledge. It explores the evolution of intellectual property rights, from the recognition of copyrights, patents, and trademarks to the more recent acknowledgment of traditional knowledge. The essay highlights the significance of the World Intellectual Property Organisation (WIPO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), while also addressing the limitations and challenges in protecting intellectual property, particularly for developing nations and indigenous communities. A central case study is the Katempfe berry, also known as the African Serendipity Berry, and how its commercialization exemplifies the ethical and legal dilemmas of bio-piracy. The essay examines the exploitation of traditional knowledge, the lack of compensation for indigenous communities, and the urgent need for a balance between innovation and the protection of cultural heritage. The essay also discusses international instruments such as the Convention on Biological Diversity, and the various UN declarations and conventions that are in place to protect the rights of indigenous people and their traditional knowledge. It concludes by emphasizing the need for a re-evaluation of the public domain concept to prevent future instances of bio-piracy and ensure fair benefit-sharing.

Intellectual Property Law
Assignment
Student ID : 13001193
Module Code: LWA90041-6
Batch Code : HF1591LLB
Word Count : 3589

Bio-piracy and Commercialisation
of Ethno Botanical Knowledge
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The African Katempfe Berry
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Intellectual property as is perceived globally has been in existence as long humankind.
However, the rights and laws pertaining to intellectual property have been recognised
and afforded protection only in recent years. This can be attributed to the global shift
from the bygone industrial revolution to the ongoing knowledge revolution. The
‘developed nations’ of the world appraised that knowledge in its various forms is what
is more profitable in terms of trade and development leading to what is known as the
‘knowledge economy’. Rapid advancements in technology and the requirement to stay
ahead of global competitors lead to intellectual property becoming a keystone to
country, tying its survival in global markets to the protection for intellectual property
afforded by it. The several forms in which intellectual property manifests itself had led
to the introduction of copyrights, patents, trademarks, and various other mechanisms
by which protection is ensured.
The World Intellectual Property Organisation (WIPO), established by the WIPO
Convention of 1967, states that ‘Intellectual Property refers to creations of the mind:
inventions; literary and artistic works; and symbols, names, and images used in
commerce’1.
This indicates that, as opposed to corporeal property, that consists of personal and real
property – which may be movable or immovable, intellectual property is a form of
intangible property that is divided into two key sectors: (1) industrial property, and (2)
copyright. The latter relates to artistic creations, whereas the former involves creations
of human intellect such as inventions, industrial designs, trademarks, service marks,
commercial names, geographical indications, and also protection against unfair
competition.
Intellectual Property rights, just like all other property rights, allows the creators, or
owners of trademarks, copyrighted works, etcetera (right holders) to benefit from their
work, or investment in a creation2, as has been provided for by Article 27 of the
Universal Declaration of Human Rights which states that ‘Everyone has the right to
1 http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf
2 www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf
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the protection of the moral and material interests resulting from any scientific, literary
or artistic production of which he is the author’3. The significance of thee rights was
first recognised by the Paris Convention for the Protection of Industrial Property
(1883) and the Berne Convention for the Protection of Literary and Artistic Works
(1886), both of which are now administered by the WIPO. The WIPO Convention
provides in Article 2 (8) that Intellectual Property includes rights relating to:
‘literary, artistic and scientific works, performances of performing artists,
phonograms, and broadcasts, inventions in all fields of human endeavour,
scientific discoveries, industrial designs, trademarks, service marks, and
commercial names and designations, protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields’4.
With the progress of technology and other sectors related, new categories of
intellectual property have been acknowledged – such as plant varieties, plant breeders’
rights, digital copyrights, business methods, and domain names to name a few. Other
areas such as Traditional Knowledge, which have pre-existed Intellectual Property
rights, have garnered increased interest due to the threat of exploitation in the
commercial world. However, just as there is evolution, limitations to these rights exist
in the forms of social, economic, and moral considerations; as well as governmental
interference, other territorial limitations and temporal limitations.
In the international arena Intellectual Property rights were initially the subject of
bilateral treaties, which later led to the two main multilateral treaties: the Paris
Convention and the Berne Convention, which adopted the concept of national
treatment – a rule for non-discrimination that requires signatory states to offer the
same level of protection to nationals of the other signatory states, as they would with
their nationals. However there was much disparity with regard to application of these
treaties due to the time and cost involved, and the lack of mechanisms in several
spheres, such as patents. Another issue was that the United States of America did not
3 Universal Declaration of Human Rights (UDHR) 1948, article 27 (1)
4 WIPO Convention 1967, article 2 (8)
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involve itself in protection of Intellectual Property until the 1980s, when it began to
threaten trade sanctions subsequent to realising the impact of the protection on its
economy. As a result it brought in Intellectual Property rights within the system of
General Agreement on Tariffs and Trade (GATT), and established the World Trade
Organisation, pursuant to the Uruguay round of GATT. This in turn led to the
Agreement on Trade Related Aspects of the Intellectual Property Rights (TRIPS)
which is applicable to all members of the WTO. As a minimum standard agreement,
TRIPS recognised several new concepts and new mechanisms of protection, and also
allows flexibility for developing nations, for instance it allows governments the
discretion to refuse patent grants under specific conditions5.
Through the above progressions, a balance is sought to be struck between the interests
of innovators and that of the wider public, allowing creativity and innovation to
flourish. A notable aspect with regard to this is the patent regime in Intellectual
Property. Whilst conventionally patents were granted to solely innovations that were
largely manmade, as was illustrated in the case of Diamond v Chakrabarty which
ruled that ‘anything under the sun that is made by man’ is patentable; the law has now
been extended to all fields of endeavour. This allows the subject matter of patents to
be anything from methods of innovative technology to various life forms, aspects of
traditional knowledge (TK) and forms of biotechnology (this includes not just living
organisms, such as plants, animals, seeds and microorganisms; but also biological
material, such as enzymes, proteins and plasmids)6. With particular regard to
biotechnology, many complications exist, such as the right to patent living organisms,
and the threat of misappropriation of traditional knowledge and the exploitation of the
ways and customs of indigenous peoples and their rights. Commercialisation of
knowledge has led to numerous conflicts of this nature, and also has resulted in a rise
of unsustainability of local ecosystems, and national economies7, especially those of
developing countries. Popular examples of such conflicting cases include the
patenting of the African Serendipity Berry, Katempfe, the African Miracle Berry, the
5 TRIPS, article 27
6 http://www.fbae.org/2009/FBAE/website/biotechnology-and-ipr_intellectual-property.html
7 http://www.globalissues.org/article/191/food-patents-stealing-indigenous-knowledge
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Neem Tree, Turmeric, Ayahasuca, Wallapatta, Kotala Himbutu, Hoodia, Jasmine
Rice, Basmati Rice, and Enola Beans.
The fast paced growth of biotechnology in comparison with the tedious pace at which
laws regarding it have been introduced has resulted in a persistent and poisonous
spread of bio-piracy. Bio-piracy is the colloquial term attributed to the practice by
which knowledge is extracted from its native holders without their consent and
without an arrangement to share the resulting benefits. Whilst there is no standard
definition, national legislation in some countries, and some organisations have sought
to define bio-piracy, acknowledging the threat it poses to developing nations and
indigenous communities from whom traditional knowledge is usually
misappropriated8.
Katempfe, which is alternatively known as the Miracle Berry, and also as the African
Serendipity Berry is a plant belonging to the Thaumatococcus Daniellii species, which
naturally produces an intensely sweet protein Thaumatin which is said to be 2000
times sweeter than sugar, yet free from calories making it a highly marketable and
coveted product in the food industry. The indigenous tribes of West Africa, such as
those in the Republic of Congo, have been using these berries to sweeten their food
for hundreds of years, however the world was unaware of its unique properties until
the plants were brought to the US and later University of California and Lucky
Biotech (USA) got a patent on them covering any transgenic form of plant producing
these proteins and the food stuff derived therefrom. Through subsequent
commercialization of the plant product, it is reported that an annual profit of USD 900
million is generated in the market for low calorie sweeteners, and this figure only
continues to grow. While this may seem to be extremely advantageous, the lesser
known dark side of this miraculous discovery is that the African Indigenous
communities who have preserved and utilized these plants for centuries receive no
compensation for their contributions9.
8 Bhattarai A M, ‘Protection of Himalayan Biodiverisity: International Environmental Law and a
Regional Legla Framework’ (SAGE Publications India, 2010) 150-2
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“Indigenous communities, peoples and nations are those which, having a
historical continuity with pre-invasion and pre-colonial societies that
developed on their territories, consider themselves distinct from other sectors
of the societies now prevailing in those territories, or parts of them. They form
at present non-dominant sectors of society and are determined to preserve,
develop and transmit to future generations their ancestral territories, and their
ethnic identity, as the basis of their continued existence as peoples, in
accordance with their own cultural patterns, social institutions and legal
systems.”
This is the working definition as provided by Martinéz Cobo in his report to the UN10.
In relation to the case of Katempfe, the Republic of Congo has identified the four
categories of Indigenous people, and the government has defined indigenous
populations as ‘populations who are different from the national population by their
cultural identity, lifestyle and extreme vulnerability’11. This is compliant with the UN
working definition above. Around the world, predominantly in developing countries
indigenous people are the holders of traditional knowledge which they accumulated
over thousands of years, handing them down from generation to generation, handling
their resources and going about their practices in a sustainable manner.
The knowledge revolution poses a giant threat to these communities due to their close
link with nature and their affluence with regard to traditional healing methods which
are all resultant of their geographical placement in areas where the majority of the
world’s plant and animal genetic resources exist. As such, in recognition of the role of
the indigenous people and the need to protect them, the international community
agreed on the Convention on Biological Diversity12. This is one of the main
9Bhattarai A M, ‘Protection of Himalayan Biodiverisity: International Environmental Law and a
Regional Legla Framework’ (SAGE Publications India, 2010) 155-6
10 Martinéz Cobo’s Report to the UN Sub-Commission on the Prevention of Discrimination of
Minorities (1986
11 Act No. 5 – 2011 of the Parliament of Congo, Article 1
12 Convention on Biological Diversity 1992, Article 8 (1) and 15 (7)
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international instruments that affords protection to the intellectual property rights of
indigenous people, their practices, and their traditional knowledge.
Other international instruments address this issue from a human rights perspective,
allowing indigenous people of ethnic, linguistic, and religious minorities to practice
their own culture and retain control of their traditional resources. These include the
International Covenant on Civil and Political Rights (ICCPR)13; the International
Covenant on Economic, Social and Cultural Rights14; the Draft Declaration on the
Rights of Indigenous Peoples of 199415; the International Labour Organisation:
Indigenous and Tribal Peoples Convention of 1989 (No. 169)16; and the 21st Agenda of
the Rio Earth Summit17. The TRIPS Agreement, although the main source of
protection of Intellectual Property rights, allows for very poor protection of the rights
of indigenous people and their traditional knowledge. The reason behind this can be
attributed to the heavy influence of the world’s superpowers on the Agreement,
thereby making room for the misappropriation of knowledge and the violation of
rights18. The TRIPS Agreement being the brainchild of the WTO instead of the WIPO
makes this evident.
This goes to the heart of protecting traditional knowledge, which forms the platform
for patents. Traditional knowledge is often wrongly perceived as ‘antique and ancient’
whereas it is ‘contemporary, dynamic and vital’. It is knowledge that has been passed
through generations, but it has evolved over the years to suit human need as they
change with time. Developed nations are in the habit of exploiting the vast reserves of
13 International Covenant on Civil and Political Rights, Article 27
14 International Covenant on Economic, Social and Cultural Rights, Article 1(1)
15 Draft Declaration on the Rights of Indigenous Peoples 1994, Article 9
16 International Labour Organisation: Indigenous and Tribal Peoples Convention, 1989 (No. 169),
Article 4, 5(a) & (b), 8
17 United Nations, UN Documents Cooperation Circles Gathering a Body of Global Agreements
logo of the United Nations Conference on Environment & Development, Agenda 21, Chapter 26
(Rio de Janeiro, 1992) Section 26.3(a)(iii)
18 Whimp K and Busse M, ‘Protection of Intellectual, Biological and Cultural Property in Papua
New Guinea’, (ANU E Press 2013) 43
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traditional knowledge freely accessible in the public domain, patenting what they so
wish and earn copious profits, with no share of the benefit allocated for the source of
the knowledge. Thereafter in the event of the conflict, the ‘stolen’ knowledge is resold
to its rightful owners at exorbitant rates which the minorities can rarely afford. This
has led to demotivation and discouragement of the protecting traditional knowledge
due to the time and cost involved19. This is a grievous wrong which must be righted,
even if it alters the concept of the public domain, for otherwise there will be plenty
more cases akin to that of the Katempfe berry even in the future.
It is a precarious balance that is sought, to protect traditional knowledge and
indigenous rights, and also to advance biotechnology and benefit from ethnobotanical
knowledge, however it is not one that is impossible to achieve. The balance lies in
implementing national laws, and enforcing international laws on a consistent level,
giving back to the right holders of knowledge what is due to them while achieving
sustainable commercialisation. Else, the plight of many nations, such as the Republic
of Congo, that are struggling to reach economic prosperity would remain the same for
the indeterminate future. In implementing the right laws, the threat of bio-piracy may
be curtailed, and in turn it would lead to a rise in economy.
African nations are not legislatively strong in the face of Intellectual Property Rights
and protection of traditional knowledge and its indigenous sources. The first African
country to protect the rights of indigenous people though passing legislation was the
Republic of Congo, with the Act No. 5 – 2011. The Constitution of the Republic of
Congo also contains provides for the general protection of Intellectual Property rights
by way of Article 29, which states, 'Every citizen is entitled to the protection of the
moral and material interests resulting from any scientific, literary or artistic production
of which he is the author. Sequestration, seizure, confiscation, prohibition of all or
part of any publication, recording or any other media or communication can be
conducted only under a court order’20. This is addition to the Republic of Congo being
19 Bhattarai A M, ‘Protection of Himalayan Biodiverisity: International Environmental Law and
a Regional Legla Framework’ (SAGE Publications India, 2010) 147-55
20 Constitution of the Republic of Congo of January 20, 2002
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party to the Paris21 and Berne22 conventions as well as being a signatory state to the
WIPO23, TRIPS24, CBD25, IPPC26, PGR27 and Nagoya Protocol28 which have
provisions dealing with biotechnology and protection against bio-piracy. The Republic
of Congo, however, has not ratified two key conventions, the United Nations
Declaration on the Rights of Indigenous Peoples29; and the ILO convention No. 169
which deals with ‘The Identification of indigenous and tribal peoples’30.
The ratified international instruments act as a means of protection against bio-piracy.
Article 27 (3) (b) of TRIPS provides that plants and biological processes may be
excluded from patents and requires members to provide protection for “plant
varieties”31. The Convention on Biological Diversity (CBD) establishes access to
genetic resources through recognizing the sovereign rights of States over their natural
resources and places the authority to determine access to said resources with the
national legislation of the government32. The CBD has also established new
international rules on access, subject to the principle of prior informed consent and the
sharing of benefits as conditional to Articles 13 and 15 of the Convention33.
Moreover, the establishment of the Nagoya Protocol which complements the CBD
21 Paris Convention for the Protection of Industrial Property (September 2, 1963)
22 Berne Convention for the Protection of Literary and Artistic Works (August 15, 1960)
23 World Intellectual Property Organisation Joined WIPO in 1975
24 World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement) (1994) (Party to it since March 27, 1997)
25 Convention on Biological Diversity (Congo party to this convention since October 30, 1996)
26 International Plant Protection Convention (October 2, 2005)
27 International Treaty on Plant Genetic Resources for Food and Agriculture (December 13, 2004)
28 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization to the Convention on Biological Diversity (August 12,
2015)
29 http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
30 http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm
31 The Agreement on Trade-Related Aspects of Intellectual Property Rights, Art 27(3)(b)
32 Preamble & Article 15, Convention On Biological Diversity 1992
33 Page 170 of the red tag book
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affords better transparency and certainty for both providers and users of genetic
resources through the establishment of more predictable conditions for access to
genetic resources; and helping to ensure benefit-sharing when genetic resources leave
the country providing them. By ensuring the sharing of benefits, the Nagoya Protocol
creates an incentive to conserve and sustainably use genetic resources, and therefore
encourage the contribution of biodiversity to development and human well-being34 on
a global platform, whilst simultaneously aiding the supplying country with the
advantage of financial betterment and economic growth, in addition to the expansion
of Intellectual Property related laws and global recognition.
Countries like India which are known for exploitation in the field of biodiversity have
used these international instruments to their benefit, challenging awarded patents.
Four of the patents granted to RiceTec, a company in Texas, for genetically modified
Basmati rice were withdrawn in 2000, when the Indian government formally
challenged the grant. A significant argument that arises in this regard is whether this is
the result of correct implantation of laws relating to Intellectual Property, or it is the
result of India being on the cusp of attaining status as a developed nation and thus has
the economic stability to lock proverbial horns with monstrous multinationals in the
international arena. The sway India possesses as a looming giant in the knowledge
revolution cannot be taken lightly.
The Republic of Congo, on the contrary, is still very much on the lower rungs of the
ladder of developing nations, and its ability to take after a country like India is
doubtful. The burden on the economy of such an undertaking, not to mention the
backlash of it cripples even the idea of challenging patents on an international level.
This is a sad plight as it portrays the image of the ‘noble patrons’ seeking to
traditional knowledge, the rights of indigenous people, and prevent the piracy of
Intellectual Property, to use their very instruments to exploit the traditional knowledge
from the victim countries to their benefit35.
34 https://www.cbd.int/abs/about/default.shtml/
35 Vandana Shiva, Poverty and Globalization, Reith 2000 Lectures, BBC
http://news.bbc.co.uk/hi/english/static/events/reith_2000/lecture5.stm
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The Republic of Congo, although being signatory to several treaties, cannot expect
them to come to its rescue without having ratified them, in order for them to be
allowed jurisdiction. The country’s failure to incorporate these laws into their national
jurisdiction, is the cause behind these international instruments being of no avail. The
international forum needs to acknowledge that no one size fits all, therefore all the
international instruments addressing Intellectual Property rights may not come in
handy to developing states who have other primary concerns. Amongst the developed
nations, Intellectual Property is regarded as an essential service that should be paid
for, and needs complete and effective recognition. Conversely, in a country where
more tenacious issues like famine, inter-tribal wars and social instabilities are
rampant, that laws in relation to issues such as Intellectual Property are considered a
distraction and not an immediate concern, and sometimes even a wasteful effort.
Another drawback is the common mindset amongst most developing nations, not just
Republic of Congo, that bio-piracy and other practices which are now recognized as
violations of Intellectual Property rights, paved the path to economic growth.
Although this is still prevalent, in recent times, the widespread awareness that failure
to protect these rights causes more damage than benefit, as it will profoundly impair
the country’s’ production and exploitation of geographically unique products such as
the Katempfe berry.
As such the existing protection can be deemed inadequate. However, they can be
better operationalized, and the provisions relating to Access and Benefit Sharing that
are the focused of the CBD if applied properly and made compatible with the TRIPS,
the concerns and challenges faced by Intellectual Property rights can be addressed
better. This can be attained by the state first taking account of all it has to offer
through national lists, and then adopting suis generis approach positive laws to
encourage protection and negative laws to prevent piracy, on a national level. On an
international level, these national registers of traditional knowledge can be
harmonised and made uniform, and knowledge sharing contracts can be made and
enforced. Further the Intellectual property regimes of developed countries that allow
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