Corporate theft of ‘traditional knowledge’: Biopiracy by another name

The Subcontinent's inheritance of traditional knowledge and methods is safe. Think again.

Thirty years after developing countries were first made to believe that their economic interests were perfectly safe in collecting and conserving quickly disappearing plant germplasm, the global bosses are at it again. However, instead of the biological inheritance, this time it is traditional knowledge that the international community is suddenly so concerned and worried about.

Once again, the same emotional rhetoric fills the air. Traditional knowledge, which has been passed on from generation to generation by local and tribal communities in the developing world, is getting lost. This knowledge might soon be lost to posterity, denying humanity its rightful inheritance. The answer, we are told, is to document the traditional knowledge, which is, after all, all of mankind's heritage.

In the mid-1960s and early 1970s the same justifications were used to seek monopoly control over plant germplasm resources in developing countries. At the height of the green revolution, with a land grant system borrowed from the United States well in place in India and other countries, prevailing rhetoric said that plants were mankind's heritage but were being lost in the process of development. Letting plant germplasm disappear would be at the world's own peril. So what needed to be done was to collect whatever was available and keep it safely stored and coded in gene banks.

The developing world followed its marching orders. Plant expeditions set out to locate, classify and store germplasm resources in gene banks. After this was complete, we were told that humanity would benefit if, for instance, all rice-growing countries were to keep their rice collections at an international centre, which in turn would act as a custodian of the invaluable genetic wealth. Once again, this was done in good faith. India provided a copy of its rice collections for common custody at the International Rice Research Institute, Manila, in the Philippines. The wheat collections were kept at the International Research Centre for Maize and Wheat in Mexico City. The remaining collections went to the 14 other international agricultural centres under the Consultative Group for International Agricultural Research.

We were then informed that these collections were not safe in Manila or Mexico City. After all, a terrorist group could blow up the gene banks and destroy the assembled collection. So what should we do? Keep a copy of these collections in safe custody. And what would be the safest place? At Fort Knox and Fort Collins in the United States. We assented again in good faith.

The world's largest collection of plant germplasm, some 600,000 plant entries, is now in safe custody under the control of the US Department of Agriculture (USDA). The thinking on genetic resources meanwhile has undergone a paradigm shift in the intervening years – the collections under USDA control are now classified as a national property rather than as universal heritage protected under the Convention on Biological Diversity (CBD) signed at Rio de Janeiro in 1992. The countries from which these specimens were collected have no control over the resources. In fact, efforts are now being made to impose intellectual property rights (IPR) controls over these resources, with the countries of origin enjoying no benefit or say in the matter.

Since the early 1980s, when Anand Chakravorty got the first life patent on a bug that he had created by genetic engineering, seed and life science companies have realised the importance of these genetic resources. The US has these resources, the finances for research and unrivaled mastery over genetic engineering, although complications arise over precisely what to do with this genetic information. After all, it would be impractical to work out the chemical compositions and pharmaceutical properties of each and every plant stored at Fort Collins. The best (most profitable) option is to direct companies' attention to the places from which the plant resources originated to find out from the local communities in what ways and for what purposes the plants are used. This, in turn, gives multinational companies the chemical blueprints to decipher knowledge, draw industrial uses, seek patents and market the very product which has been used in traditional forms for centuries under a corporate label.

Analysis of records with the US Patent and Trademark Office (USPTO), which extends institutional legitimacy to this process, only verifies suspicions about corporate piracy of traditional knowledge. A recent survey conducted by a task force from the Traditional Knowledge Digital Library (TKDL) found that of the 4896 references on 90 medicinal plants in the USPTO database, 80 percent pertain to just seven plants of Subcontinental origin. In other words, nearly 4000 patents or patent applications are based on already known medicinal properties of plants. According to the TKDL, 47 percent of the 762 medicinal plant patents granted by the USPTO could be easily classified as traditional.

The TKDL, a digital database advanced by India and operating in 170 countries on a trial basis, has been offered as one answer to the biopiracy threat. Proponents argue that this library will serve as a centralised database of local knowledge that will prevent biopiracy through internationally agreed-upon standards of documentation. A CD-Rom database shared among patent offices worldwide would thus, in theory, prevent the copyrighting of traditional knowledge. India's support for the TKDL includes the documentation of 35,000 slokas (verses) drawn from the Ayurveda system of traditional medicine.

However, the TKDL is, at best, an incomplete solution and, at worst, a gateway to even greater piracy. The USPTO is not required to recognise information contained in the library's projected 140,000 pages as authentic and unduplicable, meaning that it carries little legal weight. More strikingly, the TKDL will likely serve only to organise – rather than protect – existing traditional knowledge, making it that much easier for companies to pilfer traditional methods. A recent patent issued by the USPTO on aloe vera treatment for 'dry eyes', for example, was identical to traditional procedures, except that chlorinated water replaced 'regular' water. Small changes in technical procedures can grant the veneer of originality to what are really thinly-disguised copies of age-old methods.

Developing country governments are particularly constrained in their ability to resist this process. The Indian Ministry of Commerce has admitted that it lacks the resources to battle the copyrighting of a slightly modified form of basmati rice – a staple of South Asian diets – and the Government of Pakistan has balked at assisting New Delhi's cause despite a shared dependence on the grain. The British company BTG recently filed a case against the Pentagon for patent infringement on the US military's unauthorised reproduction of the BTG hovercraft and received USD 6 million in compensation, but only after it spent USD 2 million on lawyers' fees. While multinational corporations can commit such resources to court cases on lucrative projects, cash-strapped developing countries can hardly be expected to incur the cost of fighting thousands of potential copyright abuses.

In the absence of globally-recognised standards and norms on the protection of local knowledge, participating in an international system of traditional knowledge-sharing is likely to work against the interests of developing countries. Powerful corporations have discovered that the best way to legitimise biopiracy is to encourage local researchers, NGOs and public sector institutes to document traditional knowledge and then use the collected data as a basis for new product lines. Assembling information in collections beyond the control of national bodies thus probably runs counter to the interests of developing countries.

The UNDP, UNCTAD, DFID, SIDA, CIDA and GTZ – and almost all other donors – are pumping in grants for the documentation of traditional knowledge. The Indian Council of Agricultural Research and the Council for Scientific and Industrial Research are also promoting such documentation. No one knows what this documentation will accomplish or what its purpose is. No one seems concerned to learn why we have become suddenly so conscious of the quickly eroding corpus of traditional knowledge – or who will be using the documentation that is Bing compiled so assiduously.

We all are facilitating the process of biopiracy. And we are doing it legally and with the backing of international donors. Once again, such documentation is safely and through legal channels going into the hands of companies who wish to use it as a basis for product development. But as happened with genetic resources, it will not take 30 years for these companies to draw IPR over traditional knowledge, as international efforts have already begun to draw a sui generis system over this body of knowledge. It is only a matter of few years. The documented traditional knowledge will then be out of the control of the communities which nurtured and maintained it. The tragedy is that unlike biopiracy in the past – neem, turmeric and the like – the scientific community and civil society are willing partners this time. After all, have we not heard countless times that there are 'challenges and opportunities' in the intellectual property system that are being forced down the throats of developing countries?

(This is the first article in a two-part series by the author on genetic technology issues.)