Scientists who are Biopirates

Biopiracy comes in many forms but international law is evolving to meet the challenge.

Scientists normally enter the profession through the gateway of a Ph.D. in their respective scientific fields, for example, botany, zoology, anthropology, physics or psychology. Those fields have matured to have codes of ethics which are part of the socialization and training of Ph.D. students in these respective fields. Like every profession, a few will ignore ethics, driven by greed or fame at any cost.

Some become biopirates.

Biopiracy is a term coined to describe the theft of biological traditional knowledge from an Indigenous Tribe or community that has spent perhaps thousands of years developing experiential knowledge of how a plant might be used to treat illness, for example. “Biopiracy” is not an official crime, but borrows from the international law crime of “piracy”.

The United Nations Convention on the Law of the Sea (UNCLOS) Article 101 defines piracy as:

. . .any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew of the passengers of a private ship or a private aircraft. . . on the high seas against another ship or aircraft. . . [and] any act of voluntary participation [in a pirate ship].¹

But it is the second definition of piracy in legal useage that we are using in the term “biopiracy” which is:

2) An infringement, usually intentional, of the intellectual property rights of others. . .²

Bioprospecting³ is not really about intentional stealing but about searching in nature for biological processes that can turn a profit. A private sector company sought permission to “bioprospect” the environment of Yellowstone National Park using a legal mechanism that creates a research partnership between the private sector and the federal government (CRADA). They were interested because there was a recent discovery of a microbe that could withstand and thrive in the high temperatures of the geysers in the Park, which led to a pivotal change in methods for duplicating DNA.⁴ Industry was searching for more such opportunities and sought out this partnership. A non-profit organization challenged this biopiracy of public lands utilizing public funds, and the decision of the court came down to the legal question of interpretation of whether the Park was within the definition of “laboratory”. The court held that indeed, a Park could be a laboratory and bioprospecting could proceed.⁵

Bioengineering

Another form of biopiracy is genetically engineering plants that eliminates the natural form of the plant, or alters existing naturally growing plants.

The Chippewa Nations which regard wild rice as sacred and part of their origin stories, have sought legal protection of their wild rice from scientists who are trying to create new forms of rice using genetic engineering in nearby University of Minnesota. The White Earth Band of Chippewa have at least two ordinances that have been drafted to protect their wild rice. One of the recent tribal ordinances gave rights to wild rice including not to be genetically altered or patented.⁶ Rice is particularly vulnerable to alternation of the DNA of their germ cells compared to other crop plants. This characteristic of wild rice, poses a particular danger for permanently changing wild rice. Bayer Crop Science ended their rice genetic engineering program, in part, due to this additional risk.

Bioprospecting

The interest in harvesting and researching peyote is increasing.⁷ In their enthusiasm to research this threatened plant, bioprospectors have excessively harvested the plants increasing pressure on the languishing populations of peyote. This is another form of biopiracy where excessive harvesting is favored at the expense of the sustainability of the population of plants, leading ultimately to extinction.

I wrote about Peyote and the need to take steps to conserve its habitat before it is completely eliminated from America.⁸

How International Law has addressed Biopiracy

Several stories of biopiracy like the theft of the Neem Tree for the treatment of cancer, without returning any benefit to the community in India that shared the traditional ecological knowledge that led to its use as a cancer treatment.⁹ A movie, Medicine Man (1992)¹⁰ incredibly tells the story of a scientist on a bioprospecting mission with absolutely no mention of benefit sharing to the Tribe at the center of the plot.

The Convention on Biological Diversity (CBD), first addressed this issue in Art. 15, ¹¹that provided for the protection of traditional ecological knowledge that belonged to Indigenous peoples, Tribes and communities. Art. 15 authorized the development of protocols to implement this goal.

In 2002, the Parties to the CBD created the Bonn Guidelines,¹² which are voluntary guidelines for developing country protocols for accessing genetic resources. These were considered part of the process of evolving international law to address biopiracy.

In 2010, the Parties to the CBD created the Nagoya Protocol, that provides a transparent legal framework for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization of genetic resources.¹³ It was intended to make access and benefit sharing more predictable for both parties but also to ensure that benefits were provided for the use of the genetic resources.

But the problem persisted that compliance was voluntary or at best diplomatic. Companies could still biopirate genetic resources and patent their “discoveries” without any question from the World Intellectual Property Organization (WIPO). However, in May 2024, the WIPO passed a basic proposal for a legal instrument to require patent applicants to disclose the country of origin and if that is not known, the source of the traditional ecological knowledge. This is a major step forward to addressing biopiracy,¹⁴ and targets the monetization of the property that the biopirate might have stolen.

Final thoughts

The development of legal instruments around the issue of biopiracy is a complicated one, because on the one hand, fairness dictates that benefit sharing go to the Indigenous Tribes and communities that developed the intellectual property, not only to the private sector capitalizing on the work of others, without compensation. Yet, Indigenous people develop traditional ecological knowledge to be shared but also respected. Further, signing international agreements required assurances to nations that they were not signing away the ability to develop a “cure for cancer” for example, if they were not permitted to bioprospect at least with some predictability. Many of the areas of the world rich in biodiversity and riches of genetic resources are sought out by the developed industrialized countries that are seeking to bioprospect for genetic resources, setting up a tension between these areas for access as well as benefit sharing (ABS). So the continuing development of this area of international law will have to balance these interests between earth’s hemispheres.

1. https://www.law.cornell.edu/wex/piracy

2. https://www.law.cornell.edu/wex/piracy

3. https://en.wikipedia.org/wiki/Bioprospecting

4. https://www.nps.gov/articles/thermophile-yell.htm

5. Edmonds Institution v. Babbitt, 42 F. Supp. 2d 1 (D.D.C. 1999) at https://law.justia.com/cases/federal/district-courts/FSupp2/42/1/2501769/

6. https://ecojurisprudence.org/initiatives/resolution-establishing-rights-of-manoomin/

7. An Overview on the Hallucinogenic Peyote and Its Alkaloid Mescaline: The Importance of Context, Ceremony and Culture - PMC

8.

9. https://pmc.ncbi.nlm.nih.gov/articles/PMC4734358/

10. https://en.wikipedia.org/wiki/Medicine_Man_(film)

11. https://www.cbd.int/convention/articles/default.shtml?a=cbd-15

12. https://www.cbd.int/abs/bonn

13. https://www.cbd.int/abs/about#objective

14. /https://www.wipo.int/export/sites/www/diplomatic-conferences/en/docs/executive-summary-basic-proposal.pdf