Looking to nature for inspiration in drug research, genetically modified crops or other products is nothing new — research groups and corporations do it all the time.
But discoveries based on traditional Indigenous knowledge or the wealth of biodiversity in developing countries can end up being exported and patented without proper credit or compensation, in what's colorfully known as biopiracy.
The practice is rooted in history. Colonizers such as Spain, Britain and other global empires frequently took and profited from the natural resources of the regions they occupied, trading in products like coffee, cotton, tea, spices and rubber.
But while most former colonies gradually gained their independence, biopiracy is still widespread today. Researchers and major multinationals in richer nations often hijack the natural resources of poorer nations and claim intellectual property rights for their own profit. These include firms specializing in lucrative industries like biotech, agriculture, chemicals or pharmaceuticals — the latter alone was worth an estimated $1.42 trillion (€1.35 trillion) in 2021.
Though some protections have been in place for decades — including a World Trade Organization agreement that covers intellectual property rights for varieties of plants and animals — they haven't always been effective.
Such was the case in the decadelong fight against a patent worth over $60 million per year in 2008, granted to US multinational W.R. Grace on an organic fungicidal product derived from the neem tree. The case, which centered around the key role neem trees play in traditional Indian farming knowledge, was ultimately won by the Indian government.
Another example is when US cosmetics firm Mary Kay tried to patent an ingredient from the Kakadu plum — a native Australian fruit with medicinal qualities which can sell for up to 40 Australian dollars ($27, €26) per kilogram — in its skin care line. The move would have shut out Indigenous producers from the Australian market.
What's at issue?
The Nagoya Protocol, intended to regulate access to biodiversity and genetic resources and promote the "fair and equitable" sharing of any benefits with the communities that provide them, entered into force in October 2014. To date, 138 countries have ratified the document — though several major players are still absent, including Canada, the United States and Russia.
A major sticking point at the COP15 biodiversity conference in Montreal will be updating the framework to include the use of genetic data in digital form, or digital sequence information (DSI). A group of countries, many in Africa, is insisting it will only agree to the new global biodiversity framework if it includes a way to fairly share the benefits from recent scientific advances like DSI.
Rik Kutsch Lojenga, executive director of the international nonprofit Union for Ethical BioTrade, told DW that with sequenced genomes now stored in online open-access databases, the fear is that researchers and corporations can access the genetic information they need to develop new products without having to directly handle physical specimens in distant labs. This would allow them to potentially "circumvent the obligation to share benefits from the utilization of genetic resources" under the Nagoya Protocol.
"The use of digital resources turns out to be more 'subtle' than in the case of 'classic' biopiracy," said Michele Rivasi, a French member of the European Parliament with the Greens/European Free Alliance. She said some researchers are now aiming to collect as many sequences as possible for their "huge databases" in order to extract any information of interest for current or future work.
"It is therefore often difficult, even if a resource has actually been 'used' — digitally — to identify or quantify its exact contribution to the final result," she added.
Indigenous groups looking for recognition
At earlier talks in Geneva in March, negotiators stressed that Indigenous peoples and local communities should be the primary beneficiaries of this research and receive fair compensation for their knowledge due to their crucial role in conservation and sustainability.
Even though several studies have shown how problems like deforestation in areas managed by Indigenous communities tends to be significantly lower, protections in the Nagoya Protocol can often be ignored.
Rivasi highlighted a case in French Guiana, where researchers, using interviews with Indigenous groups in 2005, identified — and patented — a component in Quassia amara, a traditional medicinal plant with anti-malarial properties. Though the France-based IRD research group eventually agreed to share any scientific and economic benefits, it still retains the European patent granted in 2015 despite an appeal.
"This patent is a flagrant case of biopiracy," said Rivasi. "This decision jeopardizes the use of traditional remedies, as the IRD can prohibit the use of these remedies by the communities that discovered them." But the multinational firms that hold these and other patents say exploiting their exclusive intellectual property rights allows them to recoup the millions they have spent on research and innovation.
"It's important that we should have a patent system where the industries are appreciated for their research," said Suvarna Pandey, a patent attorney at India-based law firm RNA, Technology and IP Attorneys. "There should be a balance between the advancement of technology and also what is our traditional knowledge. It should be preserved. It should not be misappropriated."
Could a levy be the way forward?
At the Geneva talks in March, a delegate with the African group of countries floated the idea of creating a global system to collect "a 1% levy on retail prices of all biodiversity-related products to support on-the-ground biodiversity conservation."
This approach has already come to fruition on a local level, for example in South Africa where the rooibos industry signed a benefit-sharing agreement with the Khoi and San Indigenous communities in late 2019.
The deal, which acknowledged that the Khoi and San were the "traditional knowledge holders" for the endemic rooibos and honeybush plants, means the Indigenous communities receive 1.5% of what rooibos industry processors pay farmers for their unprocessed harvest. In 2022, that amounted to just over 12.2 million rand (€675,500 or $709,700) from the lucrative industry, which is primarily known for tea but also produces cosmetics, juices and medicines.
Negotiators in Montreal may consider such examples over the coming days as they hammer out details of the new global biodiversity framework, which the UN has described as a "once-in-a-decade opportunity to secure an ambitious and transformative global plan to tackle biodiversity loss and set nature on the path to recovery."
After all, as Lojenga pointed out, our use of biological resources will only continue as researchers make new discoveries in the coming years. "It has very, very significantly contributed to human well-being," he said. "Bioprospecting will remain important in the future."
Edited by: Jennifer Collins, Tamsin Walker
December 12, 2022: This article was originally published on June 20, 2022. It has been updated to include supplemental research and new information on the Nagoya Protocol and the rooibos agreement. It also reflects the decision to move the UN Biodiversity COP15 from Kunming, China to Montreal, Canada with China as president.