Bio-piracy? No such thing

Traditional knowledge doesn't deserve I.P. protection, but cutting-edge research does. Huh?

Published February 6, 2006 8:42PM (EST)

How the World Works is working as intended. Readers are pushing back, pointing me to additional sources of information, and in general taking me to school. This is what I had hoped would happen, which is why I actually enjoyed seeing the subject line to a recent e-mail -- "Bio-hunters: nice but not really true" -- in reference to last Friday's look at recent developments in the struggle over bio-piracy.

The letter writer, Eric S. Meltzer, a student at Lewis & Clark Law School in Portland, Ore., pointed me to a forthcoming paper by University of Minnesota law professor Jim Chen in the McGeorge Law Review.

Chen's article, titled "There's No Such Thing as Biopiracy ... And It's a Good Thing Too," is unlikely to make crusaders for social justice in the realm of international intellectual property disputes very happy. (You can get the gist of his main thrust from his declaration, "I come not to praise the biopiracy narrative, but to bury it.")

Chen's paper is voluminously footnoted and engagingly written, and without doubt deepened my understanding of some of the issues at play. But I was baffled by some of his conclusions, in particular his bold statement that "traditional knowledge" (for example, the San people of South Africa's longtime practice of using the Hoodia cactus plant as an appetite suppressant) doesn't deserve proprietary intellectual property protection.

"As the legacy of humanity, ethnobiological knowledge belongs in a global commons. The principal 'economic rationale' justifying the privatization of land and other tangible objects -- namely, rivalry among competing users of a finite, exhaustible resource -- 'simply does not apply to' traditional knowledge or any other kind of 'information good.' A utilitarian attitude toward intellectual property dictates a very simple answer 'from an economic perspective, the more people who can use information, the better.' Ideas are 'as free as the air to common use.' Rejecting the rhetoric of biopiracy helps keep ideas in the public domain."

To my eye, the assertion that "information goods" don't deserve the same protection as finite, exhaustible resources sets the groundwork for a rather radical "information wants to be free" stance on intellectual property that would normally send Big Pharma lobbyists screaming on the warpaths. But more important, the very assertion that traditional knowledge doesn't deserve protection goes a long way to explaining a paradox that Chen delights in pointing out later.

The very same countries demanding stronger laws against bio-piracy have been demanding weaker intellectual property laws with respect to patent enforcement of I.P. in such areas as medicine. How can Brazil, for example, demand the right to make generic copies of HIV drugs and at the same time try to make it harder for the pharmaceutical industry to exploit Brazilian resources.

Chen sees this as hypocritical. I see it as mind-bendingly obvious. Naturally, it is a cause for great irritation that rich countries demand strengthened I.P. laws when beneficial for the industries headquartered on their territory, but not when such protection (vis-à-vis traditional knowledge) might have a negative impact on the profits of those same industries. It just doesn't seem fair.

Chen seems to acknowledge this point near the end: "What the global south and its advocates really seek in the struggle over biopiracy is a simple measure of justice." He concludes by saying this should be easy to achieve with minor tweaks of existing patent laws, rather than sweeping international indictments against bio-piracy.

One such tweak would be for U.S. patent law to recognize that "prior art" in foreign countries should invalidate patents applied for in the U.S. Currently, U.S. patent law only recognizes domestic prior art, in sharp contrast to the European Union.

That would seem eminently sensible -- if the San people have been using the Hoodia cactus as an appetite suppressant for thousands of years, why should a U.S. drug company be able to patent its active ingredient for a diet pill as a "new invention"?

Of course, the U.S. hasn't even bothered to ratify the Convention on Biological Diversity, partly due to the influence of Big Pharma's lobbyists on the Republican-controlled House and Senate. So let's all hold our breath waiting for a change in patent law that would benefit the developing world at the potential expense of U.S-based drug companies. Right. Any minute now.

By Andrew Leonard

Andrew Leonard is a staff writer at Salon. On Twitter, @koxinga21.

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Globalization How The World Works Intellectual Property