Knowledge, Ownership and Life -

The relationship between biopiracy and intellectual

property rights

Christopher Hamilton

A thesis submitted for the degree of Doctor of Philosophy

Department of Sociology
London School of Economics and Political Science
July 2007
I herebydeclarethat the work presentedwithin this thesis is solely my own exceptwhere

explicitly acknowledgedaccording to standardacademicreferencing conventions.

Christoý-her"'Hamilton

,/ ý/ý/o
Date

The copyright of this thesisrestswith the author. Quotation from it is permitted,provided

that full acknowledgementis made. This thesis may not be reproduced without prior
written consentof the author.

I warrantthat this authorizationdoesnot, to the bestof my belief, infringe the rights of any
third party.

I understandthat in the event of my thesis not being approved by the examiners,this

declarationwill becomevoid.

2
Abstract

This thesisdescribesand accountsfor the contemporarypolitics that take shapearoundthe

emergenceof new regimes of intellectual property rights (IPRs) seekingpatentson life

forms through an analysis of disputesthat have been framed in terms of biopiracy. It

studiesbiopiracy as a term which servesas a vector to gatherto it a cascadeof concerns

about the ambivalent promisesthat emergeat the intersectionof science,natureand IPR,
but also at the intersFction of the developed and the developing worlds. Through an

analysisof the historical trajectory of the term coupledwith a focusedlook at caseswhere

allegationsof 'biopiracy' have been by

made activist groups, it analysesthe consequences
of the concept's deployment, thus clarifying the lines of contestationand identifying some
of their economic,political, social, cultural, legal and ethical underpinnings.

The first component of this thesis builds on sociological work which addressesthe

nature/cultureseparationand extendsthis work to apply it to IPR regimes,thus making

theoretical inroads into emergingnotions of biocapital, the bioeconomy and biosociality.
As such, it contributes to an understandingof the role of IPR and of the nature/culture

separation therein. The second part of this thesis the

analyses useof the term 'bioPiracy' in

the mediaand demonstrateshow the useof the terin hasbeencharacterizedby a clustering

around several key caseswhich were deliberately chosen to exemplify the processof
biopiracy. The third areaaddressedby this thesisdealswith the specific implications that
the allegationof biopiracy hashad. It showsthat the allegationof biopiracy hasbeen"taken
up" widely acrossmultiple spectra,which has led towards the generationof a variety of
proposed solutions to the it
challenges generates,solutions inherently bound to how
biopiracy is itself problematized.

3
Table of contents

ABSTRACT 3
................................................................................................................................................
TABLE OF CONTENTS 4
...........................................................................................................................
LIST OF FIGURES 5
...................................................................................................................................
ACKNOWLEDGEMENTS 6
.......................................................................................................................
LIST OF ABBREVIATIONS 8
...................................................................................................................
CHAPTER I- INTRODUCTION 9
...........................................................................................................
OF TERMS AND CONCEPTS
..................................................................................................................... .II
STRUCTURE ANDMATERIALS 13
................................................................................................................
.
ANALYSIS 18
..............................................................................................................................................
.
CHAPTER 2- REVIEW OF RELEVANT LITERATURE 23
................................................................
BIOPIRACY ANDIPR .............................................................................................................................. 24
.
BIOSOCIALITY,BIOECONOMY/BIOVALUE AND GENETICESSENTIALISM 43
................................................. .
ONNATURE 53
............................................................................................................................................
(ANTI-)GLOBALIZATION & ANTI-GMO 58
.................................................................................................
CONCLUSION 64
..........................................................................................................................................
CHAPTER 3- BIOPIRACY'S HISTORICAL CONTEXT ................................................................ 66
TRIPS. - HOWNATUREBECOMES(INTELLECTUAL)PROPERTY 67
...............................................................
CONVENTIONON BIOLOGICALDIVERSITY- HOWNATURE'SPROPERTY GAINSVALUE 74
..........................
BIOPROSPECTING - HOW NATURE'S VALUE, VIA PROPERTY, GETS SHARED 81
............................................
CONCLUSIONS 85
........................................................................................................................................
CHAPTER 4- AN ANATOMY OF BIOPIRACY AND ITS AMPLIFICATION 87
............................
THE ORIGIN OF BIOPIRACY 91
......................................................................................................................
KEYCASES 94
.............................................................................................................................................
CONTESTED PATENTS 95
.............................................................................................................................
"BIOPIRATE"ORGANIZATIONS 105
POPULAR MEDIA AND BIOPIRACY .............................................................................................................. III
........................................................................................................
CONCLUSIONS 118
......................................................................................................................................
CHAPTER 5- THE DEPLOYMENT OF BIOPIRACY 120
...................................................................
USEBYACTIVISTS - MAYA/ICBD 121
........................................................................................................
BIOPROSPECTING ORBIOPIRACY? 126
.........................................................................................................
TAKEUP- USEBY GOVERNMENTS 132
.........................................................................................................
CO-OPTING BIOPIRACY 135
.........................................................................................................................
CONCLUSION 138
........................................................................................................................................
CHAPTER 6- "SOLVING" BIOPIRACY 141
.........................................................................................
MAINTAINTHESTATUS QUO................................................................................................................. 142
ADJUSTMENT OF THE EXISTING SYSTEM -, ABS AND DISCLOSURE OF ORIGIN 147
.......................................
NEW PROPERTY PARADIGMS- NO PATENTSON LIFE 166
..............................................................................
CONCLUSION 176
........................................................................................................................................
i
CHAPTER 7- TOO NATURAL/TOO CULTURAL: BIOPIRACY AS BIOSOCIALITY 178
..........
THENATURE OF"NATURE ...................................................................................................................... 179
GENETIC RESOURCES AND BIOCAPITAL MOVING NATURE INTO CULTURE 184
- ..........................................
NATURE/CULTURE IN IPR .................................................................................................................... 187
TOONATURAUTOO CULTURAL 191
.............................................................................................................
CONCLUSION 198
........................................................................................................................................
CHAPTER 8- CONCLUSION 201
.............................................................................................................
REFERENCES 212
.......................................................................................................................................

4
List of Figures

Figure I- Reference to biopiracy and bioprospecting in Lexis/Nexis 1992-2004..,113

Figure 2- Excerpt from the Hoodia extract patent 163

..................................................

Figure 3- The role of IPR in separating nature/culture 190

.........................................
Figure 4- Too natural/too cultural - How biopiracy becomesproblematic 197
..........

5
Acknowledgments
Thereis a popular misconceptionthat a PhD is a purely individual pursuit. As hasbecome

abundantlyclear to me, I have been(and remain) indebtedto so many who have beenso
important throughout this process.

For financial support, I have to thank the ORS Award, and the Departmentof Sociology.

For the intellectual stimulation, I have to thank Prof Nikolas Rose. His intelligence is

matchedonly by his patience,and this project would not have been possiblewithout his
supportand encouragement.

For the community aspectsof the process,I have to thank my colleaguesat the BIOS
Centre and the Department of Sociology. They have provided me with the perfect
environmentin which to developmy ideas,to developasan academicand asa person.My
fellow PhD studentsin particular haveprovided all of this, but havealsoprovidedwelcome
breaksfrom the intensity of the PhD experienceand for that I am grateful. I can only hope
that I havebeenhalf as good a colleagueand friend asthosethat I have had the honour of
having. I also have to thank the participants at the various conferencesand workshopsat

which I havepresentedaspectsand earlier versionsof this work, as well asthoseworking

in this field, for their helpful criticism, advice and encouragement.

For this thesis specifically, I have to thank Ayo Wahlberg and Megan Clinch who have

provided very helpful suggestionson earlier aspectsof the presentdissertation.I alsohave

to thank David Reubi and Linsey McGoey who have provided suggestionson earlier
aspectsof the thesis, and other written work.

For most everything else,I haveto thank my family and friends. In particular, my mother,
father, grandparentsand sister have beencurious, encouragingbut most of all supportive
throughout this long and confusing process,and in many ways it would not have been
possible without them. I have to extend the most special thanks to my brother, Pat
Hamilton, for his commentson a draft of the thesis,aswell ashis generalsupportover this

process,and, quite literally, since the very beginning.

6
For all of these things and so much more, I have to thank Sheila who, I can only hope,
knowsjust how important shehas been.

7
List of Abbreviations

ABS: Access and benefit sharing

ANT: Actor Network Theory
CBD: Convention on Biological Diversity
COP: Conferenceof the Parties(of the Convention on Biological Diversity)
ETC Group: EtceteraGroup (Action Group on Erosion, Technology and
Concentration)
GMOs: Genetically modified organisms
GRAIN: Genetic ResourcesAction International
ICBG: International CooperativeBiodiversity Groups
IPR: Intellectual property rights
OPP: Obligatory passagepoint
RAFI: Rural AdvancementFoundationInternational
TK: Traditional knowledge
TNC: Transnationalcorporation
TRIPS: Trade RelatedAspectsof Intellectual Property Agreement
UNCTAD: United Nations Congresson Trade and Development
UNDP: United Nations DevelopmentProgram
UPOV: International Convention for the Protection of New Varieties of Plants
WIPO: World Intellectual Property Organization
WTO: World Trade Organization

8
Chapter I- Introduction

As part of their "Christmas Charity Appeal" for the year 2000, The Guardian newspaper

encouragedtheir readersto donateto Field, a London-basedenvironmentalcharity setup

by a group of environmentallawyers. TheGuardian explainsthat Field have"beenseeking
to help developing countries to reform their laws and improve their capacity to defend
themselvesagainst the scourge of biopiracy" and that "the world is facing up to the
insidious threat of biopiracy whereby prospectorsscourfragile habitatsfor exotic plants".
A spokespersonfrom Field is further quoted as saying that "the big concern is that the
commercialbenefits that would accruefrom the plant or herbal remedy would only go to
the drug company and you end up with the product being licensed back to the countries
from where it originates" (Perry, 2000). This article, designed to elicit donations to a

charity that needsthem to keepup their admirablework, understandablypresentsa pared-

down version of both Field's mandate,apd of the problem of biopiracy. It does,however,

provide an excellent exampleof what my study intendsto examine,which is to stepaway

from the charged atmospheresurrounding allegations about "the insidious threat of
biopiracy" and examinejust hoiv the notion of biopiracy went from being unheardof to
being part of a major newspaper'scharity appeal in less than a decade..Moreover, this
thesiswill assesswhat the consequencesof that processhave been.

On the whole, this thesis seeksto describeand accountfor the contemporarypolitics that
hastakenshapearoundthe emergenceof new regimesof intellectualpropertyrights (IPRs)

seekingpatentson life forms through an analysisof disputesthat havebeenframedin terms

of biopiracy. It focusesin particular on the ways in which suchdisputesexemplify contests
over the natureof knowledgeandthe forms of ownershipof "life". Through an analysisof
the historical trajectory of the term; a focusedlook at a numberof caseswhereallegations
of biopiracy have been by in
made activist groups,and occasionally contested the courts;
andcombining thosewith an analysisof the "solutions" that havebeenproposedto address
biopiracy it seeksto analyzethe consequences
of its deployment,thus clarifying the lines of
contestationand identifying some of their economic, political, social, cultural, legal and
ethical underpinnings.

From now on, to avoid continually placing the term "biopiracy" within quotation marks,

when I usethe word biopiracy I refer to a claim madein the nameof biopiracy. This is not
to suggestthat I do not recognizethat biopiracy is not, for many, a contestedterm, but to

9
underscorethe fact that this thesis seeksto analysethe effects of biopiracy, rather than
assessingthe veracity of particular perspectives on the term. In short, this thesis is
concernedwith what biopiracy does,more so than with whatbiopiracy is.

What will also emerge through the course of this study is the way that terms such as
biopiracy cancome to index a setof new problematizationsto do with the socialimpactsof

new developmentsin science,technology and IPR regimes. In particular, biopiracy is

perfectly suited to highlight the impact that various publics (such as civil society
organizationsand industry pressuregroups) can have on shaping understandingsof the
evolving systemof IPR at the national and indeedthe global level. I will arguethroughthe
following chaptersthat biopiracy is a ten-nthat interveneson behalf of severaldifferent

concerns and uncertainties about the risks bundled with new developments in
biotechnology,especiallywhere theseintersectwith the IPR system,asthey areplaced in

what is now called the bioeconomy.

As part of this argument,I will contendthat biopiracy is deployedwidely and deliberately

acrossmultiple spectra,from envirom-nentalism toworld trade,in orderto contestparticular

systemsfor the generationof biocapital. I will further demonstratethat biopiracy servesas
a powerful mobilizing tool; onethat structuresthe responsesto it and forcesthe generation
of particular "solutions" to the challengesit presents.I will alsocall for anunderstandingof
the term and its influence that goesbeyondthe somewhatlimited ways it hasbeentreated
to datein order to examineits power asa mobilizing device and a signifier for many of the
concerns that emerge to challenge the contours of these particular elements of the
bioeconomy.

This thesis will also attempt to deal with two questionsthat becameapparentduring the
initial phasesof this research.In researchingseveral localized instancesof biopiracy it
becameapparentthat there is somethingvery potentandoften overlookedabouttheprocess

of alleging or "naming" something as biopiracy. In a way, it was as if the term itself is

doing the work of calling the specific problem into being; drawing actorsto it; mobilizing
them in new ways and around new issues; and structuring the scope and scale of the
responsesto it.

The secondand related questionthat inforras this current researchwas concernedwith the
fact that the literature in the various disciplines that make up the broad field crosscutby

10
allegations of biopiracy often gives a normative treatment of the concepts embodied by the
term. This normative treatment of biopiracy occurs irrespective of the point of view being

advanced by the particular analyst - either biopiracy is taken for granted as a contemporary
evil of the global age; is seen as an emotional and alarmist simplification of IPR rules or; is
seen as being too politically charged to be useful in studying the nuanced relationships and
complex sets of issues that make up the claims in the cases in question. Where it is not
accepted as fact, then the term is further marginalized as being too charged to be of use to
c6serious"enquiry. It is as if in order to do a "serious" study on any of the myriad of these

contemporary issues in the field - bioprospecting, biotechnology, benefit sharing, etc. - one
had to bracket the polemics that emerge around allegations of biopiracy themselves. While

taking nothing away from many of these excellent studies, there is an important areaof this
debate that is missing; the term's power to influence, mobilize and generate is itselfbeing
bracketed and thus never sufficiently engaged with.

Of terms and concepts

Practically speaking,the term biopiracy owes its genesisand initial disseminationalmost

entirely to a small group of non governmentalorganizations(NGOs), especiallythe Rural

AdvancementFoundationInternational (RAFI) (which is now the ETC Group),the Third
World Network (TWN), and activists like Dr. VandanaShiva with her organizationthe
ResearchFoundation for Science,Technology and Ecology (RFSTE). Prominentamong
this group is Pat Mooney, who is the founder of RAFI and remains the director in its
current incarnation as the ETC group. As will be demonstratedin much greater detail
throughthe rest of this thesis,RAFI/ETC's importanceto the maintenanceanddeployment
of the term has remained steady since they first publicized it. Moreover, although they
intend to move themselvesaway from biopiracy activism per se, their influence is still

evident. Their most current definition definesbiopiracy as:

the appropriation of the knowledge and geneticresourcesof farming and indigenous

communities by individuals or institutions who seek exclusive monopoly control
(patentsor intellectual property) over these resourcesand knowledge. ETC group
believesthat intellectual property is predatoryon the rights and knowledgeof farming

communities and indigenouspeoples(2007).

11
At present,there exists scantliterature on the discourseof biopiracy itself, thoughthere is

ample literature on the variety of disciplines that the concepttraverses.One of the only
attemptsto characterizethe discoursecamefrom Svarstad,who presentsthis explanationof
the biopiracy discourse:

The messageof the biopiracy discoursecan be summarizedas follows: vehement

resistance to the commercial collection, development and patenting of modem

medicines based on the biodiversity and traditional knowledge in the South. The
advocatesof this discourseemphasizethe issuesof rights and equity for indigenous
peoples, local peasantsand healers. They do not believe that bioprospecting will
provide satisfactory benefitsto thesegroups (2002, p. 74).

Though useful, Svarstad's definition here obscures one of the central aspectsof the
biopiracy discourse:that thoseproblematizing it are essentiallytaking issueasmuch with
the patentingof life asthey arewith the misappropriationof benefits. In largepart shealso
obscureswhat is ultimately one of the most important strengthsof the biopiracy discourse
when deployedin the global arena- the malleability of the term that allows for a fluidity of
deployment.What attemptsat definitions suchasthis one also overlook is the role that the
ten-nplays in structuring the responsesto it, somethingwhich will be consideredat greater
length in subsequentchaptersof this thesis.

In fact, oneof the principal things that this thesishopesto demonstrateis that biopiracyhas

a tremendousamount of conceptualpower, and has proven able to mobilize people and

ideasbasedon the strength of its imagery and rhetoric alone. Put anotherway, it would

seem that biopiracy has been able to generatea tremendousamount of interest while
problematizing relatively few actual cases.As will be dealt with more extensivelyin later
sections, these "ambassadorcases" are held up as particularly egregious-examplesof
biopiracy and in so doing, they go a long way towards entrenchingbiopiracy's position in

wider discourses.In short, it would seem that biopiracy does not actually have to be
happeningon a wide scalein order for it to be seenasa possibility and thus somethingthat

needsto be respondedto or guardedagainst.The maintenanceof this specterof perpetual

possibility - if we are not vigilant, there is always potential for us to start down a slippery
slopeor crossa thresholdfrom which we canneverreturn- hasbeenusedto greateffect by
various groupsinterestingin propagatinga particularpolitical vision of the IPR regime,and
has beenkey in promoting the term's adoption and wider take-uP.

12
Structure and materials

Before moving on to discussquestionsof structureand methodology, it will be useful to

introduce the materials that I have collected and analysedfor this study. The thesis itself

consists of 3 parts, that have been used to study the development, deployment and
consequencesof the conceptof biopiracy. The analysispresentedwill be a documentary
analysis and I have used the term itself as a vector to locate and then gather the
documentarymaterial that is analyzedthrough the course of the thesis. After this initial

searchand collection of material had occurred, I then createda taxonomy with which to
organizethis data.I classedthe materialsinto threecategories,accordingto which aspectof
the discourse,and which of my researchquestionsthey best informed. The threetypes of
material are:

OffiCial docun7ents:court documents;patentdocuments;official submissions

to international bodies; reports from institutions, researchcentres,etc.

Activist materials, and the responseto them: Pressreleases,websites,news

items, academic publications, reports from industry groups, academic

accountsof bioprospecting/biopiracy,etc.

Media reports: newspaperand magazinearticles; items from online media

sources

Each of these sets of material speaks'to a different yet often inter-related aspectof the
biopiracy discourse.Taken together,asI do through the courseof this thesis,they allow for

a more coherentpicture of biopiracy and its influence to emerge.

Chapters2 and 3 of the thesis discuss the grigins of biopiracy by placing it within a
historical context within IPR and biodiversity conservationregimes. Chapter2 dealswith

situatingthe various concernsaroundbiopiracy within someof the broaderliteraturein the

fields that it toucheson - first by looking at its contextualizationas an IPR question,then
its relationship to notions of the "natural" and finally its intersection with other related

controversiesspecifically those aroundthe GMO and "globalization" debates.Chapter3

writes the pre-history of bioPiracyby situating it within a historical contextthatunpacksits
relationship with three key historical moments;the "globalization" of IPR via the World

13
Trade Organization (WTO)'s Trade Related Aspects of Intellectual Property Rights
(TRIPs) agreement;the negotiationandongoing evolution of the Conventionon Biological
Diversity (the CBD); and the idea and practice of "bioprospecting", which as will be
demonstrated,was instrumental in the emergenceof the term, biopiracy.

Througha close study of thesehistorical transitionsChapter3 will demonstratetheways in

which theseactors have beenreconfiguredin novel ways. Moreover, it showshow these

reconfigurationshave given rise to the ethical, legal and social questionsthat allegationsof
biopiracy set about to problematize. Furthermore, these three inter-related historical

moments have themselvescontributed to setting the parametersfor the emergenceof 4

particular element of the biocconomy and a specific systemto generatebiocapital - the
extraction of value from biodiversity. In large part, biopiracy comes about directly to
contest aspects of that system. As such, this chapter presents TRIPS, the CBD and
bioprospectingas introducing new categoriesof what is governable.It demonstrateshow
TRIPS is responsiblefor expanding the notion of Euro-American IPR to a more global

scale;how the CBD is responsible for introducing new categoriesinto our understandingof
nature,especiallythat of "genetic resources";and finally, how bioprospectingcomesabout
to
asa way recognizeand capitalizeon the value that comesout ofthese new resources. Put
it
at simplest,TRIPs andpatentson life expand the way in which we can derive value from
biological resources,the CBD gives us new categoriesof theseresources(and in so doing
the
radically recasts notion of ownershipfor thoseresources)
and bioprospectingprovides
us with a meansto extract this value, and to recognizethe redistributive and conservation
goalsof the CBD.

In order to construct the historical frame for the emergenceof biopiracy and its unique
relationship with international regimes of IPR, biodiversity conservation and
bioprospecting,I will be relying in largepart on documentsclassedas"official documents"
in the taxonomy outlined above. These will include published histories of these

organizations and of the histories of their negotiation (c.f. Drahos & Mayne, 2002;
Dutfield, 2000a,2000b; Sell, 1995,1998;World TradeOrganization,2001a).Additionally,
I will be relying on some of the documentation which was presented as part of this

negotiation process. These documents will include official country and civil society
organizationsubmissionsto the meetingsleadingto the TRIPs agreementandthe CBD as
well as policy and trade publication documents outlining various bioprospecting

14
agreements(c.f. Gomezet al., 1993;King, 1991,1994;National Institute of Health, 2006;
Reid, 1994;Reid, Laird, Gamezet al., 1993; Reid, Laird, Meyer et al., 1993).

The secondsection of this thesis(Chapters4&5) dealswith the questionof holv biopiracy

is deployed,and undertakesa closeanalysisof the discourseof biopiracy, the history of its
deploymentby activists and in the media, and its resultanttake-up in various sectorssuch

as in bioprospecting projects and by developing world governmentsin presentationsat

internationalforums. Chapter4 examinesthe mediatrajectory of the term from 1993-2004

andcouplesthis with a deeperanalysisof severalkey that

cases were in
problematized this
sameperiod in order to demonstratethe role played by these ambassadorcasesin the
disseminationof the term andthe concept.The first part of this chapterthus draws on the
documentsclassedas "media reports" in the above taxonomy and consistsof popular
English-speakingmedia mentions of bioPiracy. Thesewere accessedvia a searchon the
Lexis-Nexis database,which archivesover 30,000major world publications in English. I

analyze,using the notion of signification spirals (explained below), how the take-up of
biopiracy by the media have certain generativeand mobilizing effects for the term's take-

up as a whole. The secondpart of Chapter4 engageswith a much more detailed look at

someof the key casesproblematizedasarchetypesof biopiracy. The material drawnon for
these examinations comes from the activist materials category, as well as from those
taxonornizedas official documents,such as technical and legal documents(e.g. patent
applicationand filed patentreview documents;the official andpromotionaldocumentation
of "bioprospecting" endeavours,etc.).

Chapter5 analyzesthe deploymentof biopiracy, encompassingthe role andtactics of the

key actors,and the specific instancesof its deployment.It examinesin detail one of the

most acrimonious uses of the allegation by an activist group (its use by RAM in the
InternationalConsultativeBiodiversity Group-Maya case);how the term hasbeentakenup
by developingworld governmentsin their official submissionsto internationalforumssuch

as the WTO's TRIPs Council, the CBD and World Intellectual Property Organization
(WIPO); and how other official actors,namely the US delegationto someof thesesame
forums, have co-opted the term in an attempt to defuse it's volatility. Looking at these

examples in this way demonstrates the extent to which the term has been, formally and
informally, taken up. It also servesto illustrate the way in which terms suchasbiopiracy,

when deployedinto the chargedand fluqtuating atmosphereof the new bioeconomy,can

come to mean different things for different actors using it for various purposes.It also

15
becomesclear that idea of biopiracy comesaboutvia a strategicdeployment,andis part of

a carefully constructed and disseminated threat. This threat employs deliberate

simplifications of both IPR (what exactly was being patentedand what this meant) and
genetics(to do with how one could read a patent on a genevis a vis the larger organism),
but mostly a simplification of the relationshipthat was called into being at the point where
they meet.

This chapterdraws materials from two sources.The first of these sourceswill be what I
havetaxonimized as"activist materials", namely the material producedand disseminated
by the activist groups who were involved in deploying the term through the 1990sand.
2000s.This category of material draws primarily on the material that thesegroupsmake

publicly available in presentingtheir caseagainstbiopiracy, suchaspressreleases,position

papers,newsletters,websites and campaign information. This material has been drawn
mostly from the World Wide Web, and especially from the material that these
organizationsmake available on their websites.As this hasbeenone of, if not the primary
modesof disseminationfor most of thesegroups(c.f. Morrow, 2002), thereis an extensive
chronicling of biopiracy's deploymentarchivedon their websitesbut alsoin other areasof
the web (i. e. newsgroups,activist news sites, etc.). As part of this, I also consider the
materialwhich emergedin direct responseto allegationsof biopiracy, suchasthe material
producedby those engagedin bioprospecting and disseminatedthrough press releases,
academicjournals and the World Wide Web. For the secondpart of this analysis,which
focuseson tlie useof the term by governments,I draw heavily on official documents,such

asthe official submissionsmadeby governmentdelegationsto internationalforumsdealing

with the biopiracy question,namely the WTO, the CBD, and WIPO.

The final section of the thesis (Chapters6&7) dealswith the consequencesofbiopiracy's

deployinent.Chapter 6 analyzeshow the challengesput forth in alleging biopiracy bring

aboutvarious solutions to biopiracy, which arethemselvesdependenton how the liroblem

itself is understood. It looks at threedifferent kinds of solution and demonstrates
how each

of theseshapes,but arealso shapedby, a particular understandingof biopiracy.It considers

one set of solutions which suggestthat there is no problem with biopiracy at all - that it
doesnot exist. Another setof solutionsconsideredin the chapteraddresseshow theexisting
system can be used to "solve" the problem of biopiracy. Particularly relevant to this
category of solutions is benefit sharing, which comes about as part of the Access and
Benefit Sharing(ABS) aspectsof the CBD, and hasoften come to be presentedasa baffle

16
to biopiracy. This section will examine benefit sharing as the end result of a processof
translationin the Actor-Network Theory (ANT) senseof the word, where "heterogeneous
activities are brought into a relationship with one another" particularly through the use of
intermediaries, actors and the process of translation.(Callon, 1997). The final type of

solution that is considered in this chapter involves, in effect, an anti-solution. Those

advocatingthis position seethe problem with biopiracy asendemicto the currentsystems
in placeto deal with IPR and ABS, and actually use biopiracy as a meansto problematize
thosetwo other solutions further.

This chapterstudiesprimarily what I classasofficial documentsin my taxonomyin order

to perform an analysisof the various solutionswhich areproposedto addressbiopiracy. It
draws on academicand industry documents;on documentsproduced as part of the ABS
Working Group of the CBD, andthe negotiationsthat havegoneon therewhich ultimately
culminated in the developmentof the Bonn Guidelines for Access and Benefit Sharing
(Conferenceof the Partiesto the Conventionon Biological Diversity, 2002);andon activist

materialsrevolving around "no patentson life" campaigns.

Building on Chapter 6's analysis of theseproblem/solution complexes,Chapter7 deals

'with a more thorough analysisof what someof the ramifications of the term's deployment
have been, with particular referenceto the understandingof nature/culture in the IPR

systemandthe new bioeconomy.This chapteralso brings the various threadstogetherand

examineto what extentthe particular events,networks andtransitionsthat areinvestigated
through the thesis can be understood through an application of Rabinow's notion of
biosociality. Central to this analysisis how biosociality addresses
nature/culture,andhow it
canbe used,Rabinow suggests,asa way to overcomethe nature/culturesplit in sucha way
that "nature will be known andremadethrough techniqueandwill finally becomeartificial,
just as culture becomesnatural" (1996b, p. 242). These chaptersdraw on the empirical

material from the earlier chaptersto analysehow nature/culturehas come to play a large
part in the IPR systemwhich is at the heart of the new bioeconomy. It also demonstrates
how instancesof biopiracy are problematic becausethey are at once too natural and too

cultural. This offers a glimpse of the new versionsof property that will be necessaryto
fully come to understandthe position of natureand culture in the new bioeconomy.

17
Analysis

When one is attempting the complicated task of mapping the genesis,deployment and
impact of a term and the concept(s) that are enabled by it, there are not any clear

methodologicalprocessesthat automatically suggestthemselves.Many of the studiesof

biopiracy which havebeenpresentedto date(c.f. Dorsey2001,2003) or otherswhich have

studied bioprospecting (Cabrera Medaglia, 2004; Castree, 2003; Gomez et al., 1993;
Greene,2002,2004; Hayden, 2003a, 2003b) have done so in a more localized context,

where they have either gone to study a particular instance of biopiracy or a particular
bioprospectingproject. I could haveproceededwith a studythat was conductedin a similar
fashion, for instance going to study one particular instanceof biopiracy. However, as I
describedat the outset,I did not feel that this type of study would give me the bestchance

of addressingmy researchquestions.Largely, this is becauseit becameincreasinglyclear

through the initial stages of the research that biopiracy was a distinctively global
controversy.It is enabledby the increasinginter-connectedness of the world economically,
culturally, legally, and otherwise,but alsothroughthe increasinginter-connectedness
ofthe
world's bio-information (c.f. Parry, 2004). This is not, of course, to say that it doesnot
have definitive local articulations, but if I was interestedin studying how it cameabout,
how it was usedand what the consequences
of that usagewere, I would not be ableto limit
myself to one location and would have to addressit on a much larger scale.

Likewise, while there are certainly methodologiesattunedto the study and evolution of
terms, none of them seemedto be especially suited to guide me through this particular
analysis.Or, put anotherway, therewas little, asI saw it, in the methodologicaltoolbox to
analysethis particular kind of problem in the way that I was proposing to do so. This is not
to say, however, that there was nothing there, and ultimately I decided to develop a
methodology that draws on severalof the approachesthat have been usedpreviously to
study similar issues.Throughout the various parts of this project, I employ three slightly
different analytical "tools" in the interestof bestanalysingthe materialcollected.I put each

of these tools to work at the specific tasks they are best suited to. The resulting
methodology, described below, involves methodology derived from the notion of
signification spirals, studies of "governmentality" and ANT. It is thus a somewhat
hybridized methodology, but one that is uniquely tailored to the study at hand.

18
Analysis oftexts through a governmentality methodology

In many ways, this is a study about the processesinvolved in making certain things
but
governable, more specifically in the tensions,fluctuations,oppositions,resistances,
etc.
that contribute to the shaping of those processes.The study of governmentality has
provided a useful methodological tool that can be applied to this presentstudy. As Rose
explains,governmentality concernsitself at least in part with the study of rationalities of
"[ ]
politics which, ... are seldom formalized, usually embody elements from diverse
discoursesandbodiesof knowledge,andwhich are often agonistic and conflicting and are
They
rarely coherentor comprehensive. operatenot so much to describethe world as to
make it thinkable and practicableunder a particular description" (I 999a,p. xxii). We can
understandthe current regime governing the interplay of biodiversity and IPR as made
thinkable and practicableunder a particular descriptionof the actorsand eventsinvolved.
Throughout this thesis I will be arguing for an understandingof biopiracy's deployment
that seesit as designedas an intervention to challengea particular rationality of property,
that of intellectual property. In addition, however,what will alsoemergethroughthecourse
of this study will be how biopiracy itself has come to be made thinkable and practicable
under certain descriptions,though those descriptions are still very much in the processof
being defined.

Here,I take inspiration from the ways in which studiesof governmentalityhavefocusedon

tracing the formation of problems, objects, agents,authorities and strategiesin order to
us to the kinds of connectionsand relations amongstdiverse elementsthat have
c4sensitize
brought our contemporaryways of thinking, judging and acting into being" (Rose, 1999a,

p. xii). In discussingbiopiracy as a site of resistance,I follow Barry's argumentthat:

to speakof opposition and protest is not simply to talk of the failure of government
[ ] opposition andprotestmay itself havetheir own logic and inventiveness;their own
...
spacesand temporalities;their own forms of knowledgeandtechnique;their own ways
of restricting as well as opening up the terrain of politics. Moreover, it would be a
mistake [ ...] to draw an opposition betweenthe rational calculating and technological
characterof an administeredsociety and more or lessromantic and utopian forms of
resistance [ ...] In investigating opposition and protest it is important neither to
romanticiseprotestnor to view it simply asan expressionof a pre-existingantagonism
or a manifestationof an underlying historical logic (2001, p. 6).

19
With this as a starting point, at each stagein the analysis I ask certain questionsof the

material.In analysingthe discoursein sucha fashion, I makeclearerthe linesof contention

that supportbiopiracy, but alsothosewhich supportthe systemof regulationit is aiming to
affect. Ultimately, the analysis in this thesis takes biopiracy seriously as a mode of
opposition and protest, but one which is designedto act on the evolving processof how

specific govenu-nentalregimes, IPR and the biocconomy, take shape. Some of the
questionsI engagewith in this capacitydeal with how (and by whom) claims to authority
aremadeand sustained;how casesare setup asproblematic, and engagedwith or refuted
assuch;how assumptionsaboutnature,knowledgeandownershiparepresented,generated
and contestedand how interventions designedto challengethe dominant paradigmsare
developedand deployed.Ultimately, I addressa "politics of contestationitself, to seekto
diagnosethe historically shaped limits of both our democratic and our revolutionary

political imagination" (Rose, 1999b,p. 279). If the goal of such genealogiesis to show us
"that what we take to be solid and inevitable is less so than we believe" (Rose, 1999b,p.
285), then this study of biopiracy, and all of the inconsistencies,contradictions, and
imperfectionsthat comewith it canbe usedto examinehow this challengeto what we take

as inevitable can be attempted.

Signification spirals

One of the main parts of Chapter4 concernsthe ways in which bioPiracy getstaken up in
the popular media, and what impactsthis hasfor the term's dissemination.What I contend
in Chapter4 is that the "take-up" of the term by media in this way furthersits dissemination

as well as furthering its being understood as a contemporary social problem, and an

especiallypernicious andprevalentoneat that. In to
order enablea better understandingof
the work done by the popular media on behalf of the term's dissemination,I employ the
notion of "signification spirals" first advancedby Hall et. al. asa "self4inplifying sequence
within the areaof signification: the activity or event with which the signification dealsis
escalated- madeto seemmore threatening- within the courseof the signification itself'
(Hall, Critcher, Jefferson, Clarke, & Roberts, 1978, p. 223). The signification spiral
demonstrateshow the media can be instrumental in the dissemination of new terms, but

especiallynew terms that are gearedtowards advancingsomenotion of a social problem.

As one of the principal ways that biopiracy gainedprominencethrough the 1990swas via
its exposurein the popular press,the signification spiral provesto be a usefulframeworkto

20
employ to understandthe ways in which the media is enlisted in the disseminationof the
term. Chapter4 will take up the analysisand the explanationof signification spiralsmore
thoroughly.

Actor-Nehvork Theory (ANT)

Complementingthe other two methodologiesin this study is the use of a methodology

derived from ANT. The notion of the actor-network gets employed in the service of

examiningthe proposed"solutions" to biopiracy; the enlisting and aligning of actors;how

the network consolidatesto facilitate the mobilization of theseactorsand the terminology
central to the network; and how the various issuesat stakeget "translated".

The ANT methodology is carriedthrough the analysisof benefit sharing andthe ways it is

generatedasa "solution" to the biopiracy problematic. In particular, this chapterconcerns

itself with tracing the paths of the various actors as they move through the network. It
focuses on the way in which the notion of benefit sharing, as it pertains to situations
labelledbiopiracy by some,is actually the endiesult of a processof translationwherebythe

variousheterogeneousactorsarebrought togetherto negotiateandgeneratebenefitsharing

asa "solution" biopiracy. It shouldalsobe mentionedthat ANT's treatmentof non-human
actorsin the sameterms ashuman onesis also quite useful when following the biological
entities,asactors,through the various networksthat they passthroughandparticipatein. In
doing so, it becomesimportant to acknowledgethe way in which thesenon-humanactors

call forth someof the responsesfrom the humanactorsin the network(s)(andvice versa)in
which they are both entwined and involved in shaping.

As I describedat the outset,one of the fon-nativerealizationsI cameto in the initial stages

of my researchwas that there was somethingquite powerful which was brought about by
the allegation of biopiracy itself, or which was set in motion by labelling something
"biopiracy". As such, had I set out to studyjust one example of biopiracy, I would have
beenlimited in the answersI could provide to my researchquestions.I would have been

similarly limited had I remainedtoo methodologically rigid in my approach.By studying

biopiracy in the way I have setout to do, andwith the unique,hybridized methodologythat
I havedeveloped,I havegiven myself the bestchanceat addressingthe questionsI haveset

myself - how does biopiracy come about, how is it deployed, and what are the
consequencesof that deployment.

21
Conclusion

Through the courseof this thesis I will first look at how biopiracy comesaboutin relation
to broader movements in IPR, the bioeconomy, biodiversity and other related fields.
Following that, I will examinehow biopiracy is deployedby activists, but alsothroughthe

mediain sucha way so asit becomessomewhatof a signification spiral, wherethe term is

escalated,and in effect non-nalizedby its very use. Ultimately, I will analyzewhat the
consequences of this deploymentare,looking first at how biopiracy canbe seento generate
solutions to the problems that it puts forth (solutions which are themselvesinherently
influencedby, and involved in shapingwhat the various understandingsof biopiracy come
to be) and ultimately how it can be seenin relation to nature/culture,biosociality and the
bioeconomy.It is my hopethat, by unpackingand clarifying the evolution anddeployment

of the term, as well as the consequencesof that deploymentthat a clearer,less bracketed

version of biopiracy's significance will emergeover the courseof the following chapters.
Once biopiracy has beenunbracketed(again, in assessingit for what it does,rather than

what it is) then we can begin to examine how it can help us towards a more robust
understandingof IPR, nature and culture in the bioeconomy.

22
Chapter 2- Review of relevant literature

Before moving on in the next chapterto examine some of the historical eventsthat lead
directly to the emergenceof the concept,it is important to situatebiopiracy within someof
the broaderliterature on the issuesthat it crosscuts.In particular, sinceI amcontendingthat
biopiracy is itself somewhatof a convergencepoint for a numberof different perspectives,
it is all the more important to tracewhat might be someareasof precedence,divergenceor

overlap in the existing literature.

This is also important becausebiopiracy is often consideredwithin relatively narrow

disciplinary or issue-orientedparameters.For instance,many in the legal community view
biopiracy principally 'as a legal issue, and one which should be addressedalmost

exclusively within the parametersof the IPR system. By contrast, there are those that
suggestthat the IPR systempresentstoo narrow a framework
conceptual to engagewith the
complicatedquestionsthat biopiracy raises- many of which might seethe legal aspectsof
the IPR system in more symbolic, rather than legal terms. The analysis presented
throughoutthis thesis,however,will engagewith biopiracy differently. Oneof the goalsis
to take biopiracy seriously for the effects that it has by examining biopiracy in a more
holistic fashion, and as a profoundly interdisciplinary issue. In addition, it will examine
how biopiracy has come to be formulated by certain developments (many of them

chronicled in this chapter) within various fields and has also come to shape the
topographiesof many of thosesamefields. Another goal of this literature review is to hint
at the areaswhich the allegation cross-cuts,and to prefacethe ways in which it has been
shapedby, and has been instrumental in shapingresponsesto new developmentsin the
bioscien,ces,in IPR, in biodiversity, and in a number of other fields.

In this way, biopiracy hasalso emergedasa form of condensedsignifier, servingto index a

numberof different, yet somehowinter-relatedconcernsaboutwhat Haydenrefersto asthe

"ambivalent promises';(2003b,p. 1) that characterizemany of the currentdevelopmentsin
the biosciences,and in related fields. The material presentedin this chapterwill follow
biopiracy through someof the key placeswhere it finds itself deployed,beforemoving on
in subsequentchapters to more thoroughly examine how the relative successof that

23
deploymenthas had consequences,acrossa number of fields, thus, in the process,also
inevitably changing what biopiracy is understoodto be.

Thus,this chapterof my thesiswill servefour functions in the interestof situatingthe issue

of biopiracy within the existing literature on the topic. The first task will be to examine
some of the ways in which this issue has been problematized and examined as an
intellectual property issue. Following on from that, it will introduce some of the key
theoretical concepts, notably that of the bioeconomy and Rabinow's concept of
"biosociality" and begin to probe someways that theseconceptscan be enrolled to help
betterunderstandthe debateaboutbiopiracy. Thirdly, it will examinesomeof the ways in

which the issue of biopiracy can be seen to relate to debates about nature and the
environment,and especiallyaboutthe ways in which conceptionsof the environment(s)are
negotiated,partially socially constructedandunderstood.The final sectionwill examinein
greaterdetail the way in which the emergenceof biopiracy asa problem is closely bound
up with other concerns about the relationship between intellectual property, the
environment and the global economy, particularly as these all relate to North-South
disparitiesin accessto resources,wealth and power.

Biopiracy and IPR

In this section,I will profile someof the different elementsthat have composedthe recent
debatesabout IPR and patentson life, andwill pull out themesthat have influencedand in
turn havebeeninfluenced by claims of biopiracy. For sakeof organizationalclarity I will
group these in. six categoriesbased on which aspect they best inform in the literature

making up the discussionof biopiracy as an IPR issue:legal, ethical, economic,cultural,

political and social. It is not my intention to presentthesecategoriesasmutually exclusive
or as the only way to read the particular context in which biopiracy is being articulated.
Rather, these groupings are practical demarcation points from whi'Chwe can operate
temporarily to better examinethe differing perspectivescoming to bear on biopiracy and
the implication this hasfor debatesaboutthe ownershipof knowledge andpatentson life.
Many of the conceptsintroduced in this chapterwill be taken up in much greaterdepth at

other points in this thesis.

24
Legality

Biopiracy is an issuewhich is heavily bound up with IPR. Thus, to begin with it will be
helpfW to situate the conceptof biopiracy within someof the legal parametersset by the
IPR regime. IPR regimesgive the weight of legal enforcementto claims on ownershipof
knowledge. The expansein scopeand scale of patentability (to be dealt with in the next

chapter)and the support for strong use of IPK by the biotechnology sectorhasmeantthat
IPR claims figure prominently in contemporarydebatesabout the usesof biodiversity as

well asto claims aboutownershipof geneticmaterial itself. Framing the debatein this way
goes a long way towards conceptually and socially legitimising the discourseof rights,
entitlementsand ownership that has come to dominate contemporary IPR debatesin the
biotechnologysector.There is no needto constructa sweepinglegal history of IPR here,

particularly becausesomegood onesalreadyexist (Boyle, 1996; Drahos, 1996;Dutfield,

2000a,2003; Kloppenburg, 1988a;D. Posey & Dutfield, 1996), but only to look at the

specific legal argumentsthat are being advancedas part of the discourseof biopiracy.

There are several intuitive reactionsthat many people have to the notion of IPR, which

merit someconsiderationhere.Onecommonquestionaboutthe legal statusof thepatentin

biopiracy casesconcernsjusthow applicablea patent in onecountry is when consideredin

anotherjurisdiction. Currently, the criteria for patentability still vary slightly from country
to country, although there are ongoing efforts to harmonise different national patent
'
regimes. For the purpose of this particular analysis, however, the most appropriate
approachis to refer to what can be said to be the common criteria of patentability: novelty
(that somethingis new), non-obviousness(that it involves somemeasureof non-obvious

inventive step), and usefulness(that it has some application). The-US and European
systemsdiffer slightly on this point, with the US systemusing the term "utility" and the
European system relying on a concept of "industrial applicability". Additionally, the
Europeansystem, and the TRIPS agreement,also allow for a patent to be refused if it

contravenes"Fordre publique", while the US systemdoesnot havesucha clause(Dutfield,

2000a;Nuffield Council on Bioethics, 2002). 2

1The most viable attempt at worldwide patent harmonization is coming from WIPO's PatentLaw Treaty
(World Intellectual Property Organization,2006)

25
Those that consider the biopiracy questionto be primarily a legal one often point to the
"product of nature" doctrine which is for many quite an intuitive responseto the notion of

patentson life. The product of nature doctrine stipulatesthat "while processesderived to

extract what is found in naturecan be patented,objectsdiscoveredthere cannot" (Kevles,
2002,p. 2). What becomesclear from evena cursory examinationof patentsgrantedin the
last decadeor so, however, is that the notion of "discovery" has beenpushedfar beyond

what might be an intuitive understandingof the term. As Eisenberg(2002) explains,when

confrontedwith this questioninitially, the patentsystem"turned to prior casesconsidering
patentson chemicals in resolving disputed issuesabout how patent law should apply to
DNA sequences".Sheprovides one of the most coherentsimplified versionsof how the

patent systemhas addressedthe "products of nature" questionwith respectto DNA:

The standardpatentlawyers' responseto the 'products of nature' intuition is to treatit

as a technical, claim-drafting problem. From this perspectivethe prohibition against

patenting products of nature only prevents the patenting of DNA sequencesin a
naturally occurring form that requiresno humanintervention. One cannot geta patent
on a DNA sequencethat would be infringed by someonewho lives in a stateof nature
on Walden Pond, whose DNA continues to do the same thing it has done for
generationsin nature.But one can get a patenton DNA sequencesin forms that only
exist through the intervention of modem biotechnology.

Patentshave thus been issuedon 'isolated and purified' DNA sequences,separate

from the chromosomesin which they occur in nature,or on DNA sequencesthat have
beenspliced into recombinantvectors or introduced into recombinantcells of a sort
that do not exist on Walden Pond. This is not simply a lawyer's trick but a

persuasive response to the intuition that patents should only issue for hunlan
hiventions. It preventsthe issuanceof patentsthat take away form the public things
that they were previously using (such as DNA that resides in their cells), while
allowingpatents to issueon new humanmanipulationsofnature (Eisenberg,2002, p.
4, emphasisadded).

Eisenbergeffectively sumsupthe tension xvhichemergedwhen advancesin scienceand

technology led to an increasein "inventions" that directly involved "products of nature".
Sheexplainsthat much of the controversyhas come about becausethe patentsystemwas

2 Even in Europe, however, how 'ordre publique' is to be understoodis somewhatof a grey area.For a
further discussion seeThambisetty(2002).

26
built for a "bricks and.mortar world" rather than an information economy, which is

compounded by the fact that genes can be seen as "both material molecules and
informational systems" (Eisenberg,2002, p. 3). Or, put another way, the patent system

might well have beencalibratedto deal with a designfor Emerson's better 3

mousetrap but
not, as it were, with a design for a bettermouse.In this vein, one of the principle claims of
thosealleging biopiracy is that the materials- the traditional remedy, strain of rice, etc. -
that is the subject of the contentiouspatent application is not suitably or un-obviously
enoughmodified by any individual to constitute a patentable"invention".

Along with suggesting that the contested patents are products of nature, it is often

contended that it is actually not possible to patent biological materials used traditionally
because they demonstrate some element of having been used or identified before,

something referred to as "prior art". If these materials were known to be used before for the
purpose that they are being patented, this would thereby negate the novelty or originality
aspect required as a condition of patentability. By this logic, then, the identification of
significant prior art would preclude the contested patents' legal viability. WIPO, in their
Intellectual Property Handbook, explain: ... Prior art' is, in general, all the knowledge that

existed prior to the relevant filing or priority date of a patent application, whether it existed
by way of written or oral disclosure" (2004).4 The inventive
conceptof isstep alsoclosely
related to prior art, though the two are fundamentally different inventive step. WIPO
provides this explanation of the relationship betweennovelty and inventive step:

It should be noted that novelty and inventive stepare different criteria. Novelty exists
if there is any difference betweenthe invention and the prior art. The question, 'is
there inventive stepT only arisesif there is novelty. The expression'inventive step'
conveys the idea that it is not enough that the claimed invention is new, that is,
different from what exists in the stateof the art, but that this difference must havetwo

characteristics.Firstly, it must be 'inventive', that is, the result of a creative idea,and

it must be a step, that is, it must be noticeable.There must be a clearly identifiable
difference betweenthe stateof the art and the claimed invention (World Intellectual
Property Organization,2004, p. 20).

3 Ralph Waldo Emersonis reputedto have madethe oft quoted (but probably apocryphal)
remark "Build
a better mousetrapand the world will beat a path to your door."
4 They do acknowledgethat the notion of what, precisely 'should constitute
prior art at a given time' has
beenthe subject of somedebate.SeeChapter2 for a more thorough description of the conceptof prior
art.

27
This is one of the main argumentsusedin defenceof the patent system's appropriateness
for arbitrating situationsof allegedbiopiracy. As such,it is often promotedby advocatesof

strongIPR regimes(andthe globalization of theseIPR systemsthrough internationaltrade

forums) who arguethat biopiracy is a systematicimpossibility. As explainedby the WTO:
"for somethingto be patentableunderthe TRIPs Agreement,it must be an invention. This

meansthat the patenting of biological material in its natural state,so-called'bio-piracy', is

inconsistentwith the principles of the TRIPs agreement"(2001b, p. 1). Following on from
this,,werethereever a casewherea patenthasbeenawardedthat did not takeinto adequate
accountprior art, it needsonly be challenged,and the IPR systemwill set it right.

It is on this point, however,that the legality, asit were, of the patent systemhasbeencalled
into question.As severalthinkers havepointed out, the criteria of "invention''(and thus,for

patentability) are often much more subjectivethan conventionally applied andunderstood,

and can be subject to a great deal of interpretation as to their scope.In addition, several
commentatorshave demonstratedthat Euro-AmericanstyleIPR regimesareill equippedto,
or remiss in dealing with prior art claims that exist beyond the parametersof their given
national system(Boyle, 1996;Coombe,1998;Shiva,2001b). This tensionbetweensystems
of knowledge will be examinedas part of Chapter 6's look at the various "solutions" to
biopiracy's challenge(s).

Nevertheless,patents have emerged as an integral part of the biotech sector, both in

pharmaceuticalsand in agricultural biotech, and many of these patents involve genetic

material or other productsof nature.Onehelpful way to understandthe legal statusof IPR
for plant geneticresourcesis to recognizethe reductionism(s)that provide an integral step
to undenvrite the current logic of geneticpatenting.As McAfee explains:

The discourse of molecular-geneticreductionism postulatesspecific traits that are

'caused' by one or more 'genes', whether in humans or fish, bacteria or corn. It

conceptualizesgenesasdiscreteentities: functional units of infon-nationwhich canbe

characterizedprecisely,counted,addedor subtracted,altered,switched on andoff, or
moved from one organismor one speciesto anotherby meansof geneticengineering.
The metaphor of the deten-ninant'gene', although appealing in its simplicity, is

seriouslymisleading.Nevertheless,the notion of'genes' asunitary objectswith stable,

predictable propertiesprovides conceptualsupport for treating genetic constructsas
tradablecommoditieswhich are subjectto market exchangeand to the assumptionsof
neoclassicaleconomics(2003, p. 203).

28
In a lot of ways, this is the inscription in law of more fundamentalaspectsof how the gene
itself has come to be understood. Neumann-Held's piece in the collection Genes in
Developnient reflects on the way through which the idea of a "code" came to be

understoodas a fundamental,structural, conceptin the understandingof DNA:

[Tjhe conceptof 'code' -as a systemof rules which relatesthe signs of two alphabets
to eachother -was usednot asa metaphorbut asa modelfor the relationshipbetween
DNA and polypeptide chain. Using this model allowed the questionto be framedasa
line of researchto be setup with the result that the alignmentof triplets to aminoacids

could be demonstratedempirically (! ) - in a very simplified in vitro system- before

the detailed mechanismswere known. [ I The code as a model for investigating
...
molecular interactionsturned into a model of molecular interactions (2005, p. 261).

In the introduction to that samecollection, Neumann-Held and Rehmann-Suttercall into

questionthe "orthodox view of the causalsignificanceof genes",and presenta critique of

what they call the "molecular paradigm":

We understandthe term molecularparadigin to meanthe presentstrategyof research

in the life sciences;that is, the study of developmentprocessesthrough the analysis

and manipulation of molecular interactionsat the level of gene regulation. A closer

look at the scientific basis,however, revealsthat even here the molecular paradigm,

which explainswholesthrough molecularpartsand which often identifiesDNA asthe

central determinant, is by no meansgenerally acceptedor unanimously construed
(2005, p. 3).

The emergenceof this molecular paradigm allows the IPR system a very convenient

mechanismto bring genesand other productsof natureinto their system.One of the ways
in which this was donewhen initially consideringthe patentabilityof genes,wasto draw an

analogy between DNA and new chemical entities which the patent systemhad become
calibratedto deal with, as Eisenbergexplainedabove.

What McAfee doesin her application of this geneticessentialismto the IPR paradigmis to

provide a conceptual frame to understandthe legal transition that underpins genetic

patenting.Put simply, asMcAfee correctly points out, thereis a great dealof reductionism
which goes into the logic that allows genesto be patented.In order for somethingto be

29
patentableit has to be distinct and have a singular, definable function. Thus, in short, it
would appear that if you are able to isolate and purify a gene and convince a patent
examiner that it has a definable and reproducible function, it is patentable.As such, the
legal "gene" is not necessarily the genomic "gene". McAfee also extends her

essentializationnotion to include the economicfunction of the genewhen sheclaims that a

similarly essentializinglogic (i. e. that there is a defining ftinction to a genebut moreover
one that is potentially economically lucrative) is also at work in the ascertainmentof an
application's "industrial application". Industrial application (i. e., that the patent that is
claimed is actually useftil in somedefinableway) is one of the criteria of patentability, but
McAfee (2003) extends this essentialization idea even beyond merely satisfying the
"industrial application" requirementof patentabilityandexplainsit additionallyasa way of

supportingcommercial claims about the products.

In many ways, this is reminiscentof Bowker's (1992) analysisof patentsastexts. As with

McAfee's analysis,Bowker's analysisof oneparticular patentcontroversyfocusesin part

on how the text of the patentactually contributesto defining its function, andultimately its
place in history. In his analysis, he examineshow "the historical debateand the patent
battle both seeksimultaneouslyto describea pastreality (and imposethat description)and
to createa presentone (and imposethat creation)" (Bowker, 1992,p. 56). By identifying a
definite function for a given gene in its isolated form in the actual text of the patent,the'

patentitself servesto legitimate its own existence,and imposeboth its history aswell asits
future.

There is also a growing recognition that more conventional assessmentsof what is

patentableand why are going to be increasingly challenged by new understandingsin

biology which force a re-assessment
of how the criteria of patentability havebeenapplied
to biological materials. For instance,Calvert demonstratesthat:

[A] genomic perspectivehas changedthe scientific understandingof the natureand

behaviourof genes,and that this has implications for intellectual property. Genomic
findings show that genes necessarily work in a genomic context, and that gene
function is nuancedand multileveled. In the future, thesegenomicunderstandings
will
inevitably have to be dealt with in patentpractice, and the examinersare waiting for

caselaw to guide them (2007, p. 215).

30
Calvert alsoquotesonepatentattorneywho claims "I think it's all going to cometo a head

soon as to what exactly function means" (2007, p. 214).

Recent decisions in other areasof the patent landscapecould also have potentially far-

reachingimpacts on the world of patentson life. In particular, recent developmentsin the

US with respectto the patent system'streatmentof "obviousness"could potentially have
for patentsin the biotechnologysector,especiallythosepatentsdealingwith
consequences
pharmaceuticals.As a result of the recentKSR v. Teleflex(2007) decision the test for non-
obviousnesswas mademore rigid, thus changingthe way patent criteria is understood,as
well aspotentially openingthe door for patentchallengeon a numberof existingpatentson
the groundsthat they are too obvious. In light of this, accordingto The Timesof London,

Morgan Stanley advised clients that a decision in favour of KSR would challenge

patentsacrossthe pharmaceuticalsindustry, which often relies on "non-obviousness"

to protect key products."While the changein the legal ground rules are not yet clear,
investors should be aware of the potential for an increasein risk premiums and the
impact on the global pharma industry could be far-reaching," it said (Elder, 2007).

Another of the argumentsthat contribute to the more conventionally legal debatesaround

biopiracy has to do with equity. The equity argument, as it applies here, statesthat one

should be able to get the benefits (economic or otherwise) from an invention at a level
commensuratewith the labour or resourcesthey put in - thereby operationalizing what
amountsto a doctrine of "fairness" when understoodin a Euro-Arnerican legal context. If
the opgoing debatesaboutthe mis/application of the product of nature doctrine (discussed
above)are set asidetemporarily, then there is an acceptancethat in order to be patentable,
an invention cannotbe somethingwhich is found in nature.Additionally, it must be useful
and must be sufficiently described,thus a patent examiner must be able to ascertainits

usefulness.Taken together,thesetenetsof the IPR systemnecessarilysupposesthatthereis

an inventor who has set this processin motion. Thus, for the purposesof the biopiracy
discourse,this would hold that if biological materials were patentable and were to be

patented,the rights should be owned by those who were the original "inventors" of the
knowledge and/or resource,ostensibly the indigenous peoples, traditional farmers, etc.
involved. The field is further complicatedwhen we consider Brush's (1999) claims that
IPR in its current form and bounded by its current interpretations seemsincapable of
dealingwith claims to ownership(or communalownershipfor that matter) that fall outside

31
of the purview of a singly identifiable "creator". It hasbeenthis particular tensionthat has
fuelled many of the critiques of the IPR system as it increasingly gets applied cross-

culturally.

The logic of thosewho advancebiopiracy asa global issuealsorelies heavily on thenotion

of equity, and in so doing intuitively appealsto generalEuro-American ideals of fairness,

invention, ownership, etc. It would, however, be rather simplistic to postulatethis as the

most centralissueadvancedby thosefighting biopiracy in its variousguises.This point will

be further elucidated in subsequentsections dealing with the multiple-pronged and

conceptuallyfluid opposition to biopiracy, but at its simplestit will suffice to sayherethat

if the issuewere simply that of equity then it would be easilyrectified; if andwherethereis

a misplaced claim to ownership there need be only some way of re-apportioning the
ownership rights and/ or economic benefit. As will be borne out in the some of the
following chapters,the issue,at least for the activists, is a more complex and fundamental

one dealing with the ramifications that come with what they seeas "owning life".

Ethical

Thoughrarely advancedexplicitly along ethical lines, oneof the basicunderpinningsof the

dominant Euro-American IPR systemis a notion that an "inventor" is entitled to benefit
from the fruits of their intellectual labour. This is complementedby a romantic notion of
the authorassingular inventor. To offer convenientsimplifications of thesearguments,the
first implies that one should be allowed protection to derive rewards from the productsof
their intellectual labour, even when that labour constitutesnon-corporealpracticeswith
non-corporealresults (Drahos, 1996).The secondof thesefoundational ideasis the notion
of the author as singular creator, who, it would seem, "creates" artistic or intellectual
artefactsin someform of vacuumwherethey pluck ideasout of thin air (Boyle, 1996).It is
theseargumentsunderlying the systemof patentsthat havebeenstretchedto accommodate
an expandeddefinition of invention that cannow, undercertain circumstances,includelife
forms (Calvert, 2007; Eisenberg,2002; Shand,2001; Thurow, 1997; Wilson, 2001).

The "fruits of one's labour" and the singular author aspectsof patent logic have been

challengedby severallegal scholarson ethical grounds.Boyle, for his part, declaresthat we

are in the midst of a secondenclosuremovement,defined (somewhatgrandiloquently,he
concedes)as "the enclosureof the intangible commons of the mind, True, the new

state-createdproperty rights may be 'intellectual' rather than 'real' but once againthings

32
that were formerly thought of as either common property or uncommodiflable are being
coveredwith new, or newly extended,property rights" (2003, p. 37). The dangerto this,
outlines Boyle in his defenceof the public domain, is that it will give dangerouslyshort
shrift to the ways in which the public domain - intellectual or otherwise - allows us to
c6solvecollective action problems in a number of different ways" (2003, p. 73). In his

analysisof the Dianiondv. Chakrabarty (1980) case,Gold also stressesthat therehasbeen

a shift in how the courtshaveseentheir role in interpretingpatentclaims. Gold claims that
the systemhad previously seenitself as also responsiblefor considering the aspectsof a
patentthat were non-economic,suchasthe ethicalimplicationsthat a patentcouldhave.He
claims that Dianiond v. Chakrabarty was the point at which the court "bluntly refusedto
considernon-economicways of valuing inventions, holding itself competentto consider
only the economic effects of granting or withholding patentrights" (Gold, 1996,p. 80).

For their part, most of thosethat makeallegationsof biopiracy almostuniversallyarticulate

someform of ethical position in their argumentsabout the implications of patentson life.
One of the most prominent ethical positions t hat emergesin this debateclaims that the

patentingof life forms in is

general unethical on groundsthat it should not be possibleto
"own" life or life processes.Briefly, this position holds that there is somethinginalienable,

or uncommodifiable, about all life and life processesthat make it unethical to own them.
While it is difficult to lump all of the activist groupsadvancingthis position together,this is

still a central point for most. of them and is bound up heavily with their work and
assumptionsabout neoliberalism, the nature of the global economic system and the
perceived marginalizing of environmental concerns within it (Action Aid, 2003;
Greenpeace,2004; Shiva, 1997,2001b). This particularissueis importantto considerwhen
discussingthe contestedethical positions involved in the biopiracy debateandwill be more
thoroughly addressedin a subsequentchapter,along with associatedconcernsabout the
"privatization" of seedstock and the erosion of farmersrights. One of the aspectsof this
debatethat will be covered addresseshow, often, the most prominent ethical concern is
basedaroundthe perceptionthat the patentingof Traditional Knowledge (TK) andrelated

productsof nature itself seversthe ties which bind this knowledge,and theseorganismsto
society.

The issue of how this knowledge was first accessedhas also been subject to ethical

challenges.Often times, a claim of biopiracy is made in situations where a particular

companyis allegedto haveunethically useda leveragedknowledgeof westernIPR rulesto

33
accessand ultimately benefit from TK. The communities from which the materialswere
collected,it is alleged,haveno similar focus on IPR, andoften no formal conceptof Euro-
American IPR whatsoever(Dorsey, 2001,2003; ETC Group, 2002; Harry & Indigenous
Peoples Council on Biocolonialism, 2001). As such, these groups were at a distinct
disadvantage,IPR-wise, and were thus unable to articulate claims (or counter-claims)to
"invention" or prior art. In casesof allegedagricultural biopiracy, a similar logic applies,
holding that the seedstrainsthat were the subjectof the patentclaims filed by agrochernical

companieswere based on seed strains that were collected or derived from traditional
varietiesthat were often seenat the time (and still are by many) asthe "commonheritageof
humankind".
I

Many of the concernsthat inform this perspectiveare wrapped up in what Parry (2000;
Parry, 2004) refersto as"the fate of the collections" that form part of major seedbanksand

other centresof ex situ germplasmstorage.In her work, she draws attention to what she
seesas "a grave risk that the existing global trade in biological materials for life-sciences
research(which provides economicreturnsfor many communities) is being progressively
underminedby the emergenceof an untraceable,and henceun-recompensable,trade in
'bio-infon-nation"' (Parry, 2004, p. 151). Shecontendsaswell that, when examinedin the

contextof the new regimesof technologyand IPR, therehasbeenlittle attentionpaid to the

fate of existing collections of germplasmin botanical gardens,germplasmstoragebanks,

and other suchex situ sitesof conservation.Or, assheputs it "Where were thesematerials
taken,andhow have they sincebeenused?Who hasbenefitedand who is likely to benefit
from the exploitation of thesematerialsand how?" (Parry, 2004, p. 150).
1

The notion that there exists an often unequalaccessto the IPR system is usually closely
bound up with the allegation that the companies involved in the contested patent
applications rarely sought to obtain the prior informed consent of those who were the
"originators" of the knowledge in question(Pottage,1998;Wu, 2000). Wherecompanies
did, there is often a great deal of debateas to the legitimacy of this consenton various

grounds, largely to do with issues of whether those that provided the consent were
authorized to do so by the community, whether it was obtained by going through the

34
appropriatecommunity channelsand/orwhetherthosethat gaveit understoodall that was
implicated in the giving of this prior informed consent.5

One of the related concernsis how this consentwould affect other communitiesthat also

use the resource in question. As will be borne out in Chapter 5's discussion of the
International CooperativeBiodiversity Groups (ICBG)-Maya project, it is often the case
that a particular resourcemight be usedwidely and indeedfor a variety of purposes,across
a given area. Indeed, even within relatively small geographical areas, there can be
considerabledebate about who is an acceptablerepresentativebody to be providing
informed consent for a given population (Greene, 2004). When the resourcesare used

widely, across regional, national, or even cultural borders, the notion of who the
appropriatebeneficiaries are becomesall the more difficult to ascertain.Would an ABS
agreementwith one group who useda particular plant precludeother groups,who usethe
sameplant in a similar (or evendifferent) way from signing their own ABS agreement,or
otherwiseexploiting that knowledge commercially?

Economic

At risk of presentingtoo simple an explanationof the economic logic of the current IPR

system,one of the most commonly cited economic justifications for the existenceand
proliferation of IPR is the innovation argument.Put simply, this argumentpostulatesthat in
order to ensurethe economic benefit that flows fr om continued innovation in society,the
time, effort and resourcesthat go into the processof "inventing" should be rewardedwith
certain limited protectionsallowing the "inventor" to benefit from their "invention". This
notion is quite ftindamentalto the principles of intellectual property and assuchasbeenat
the heart of the rhetoric advanced in support of the inclusion of IPR in economic
globalization endeavours(Holmer, 2002; United StatesTrade Representative,2004).

The innovation argument, traditionally, has been balanced with ideas about the existence of

an intellectual commons that actually provides much of the knowledge that inventors can
draw upon in developing their own inventions. Correspondingly, it was felt that there

should be some form of counterbalance pertaining to the process of fencing off certain
areasof the commons with the exclusivity rights conferred by IPR, initially thought of as a

5T'hiswasoneof themainissuesproblematized by RAM in their criticismsof the ICBG-Mayaprojectin

Chiapas,whichwill be discussed
in greaterlengthin Chapter5.

35
kind of limited monopoly. The dangerhere was that the granting of monopoly rights in

perpetuity (via patents)would limit the competition necessaryfor the working of markets.
The concernaboutmonopoly led to the creationof two particular aspectsof the IPR system

- the idea of disclosure and the related notion of a limited time frame for a patent's
exclusivity. This is derived from what was seenas the social function of patent law in
general,which holds that the inventor must disclosewhat makesup the particular "thing"
being patented(e.g. a descriptionof the thing being patentedthat is detailedenoughso that

one "skilled.in the art" could reproduceit) andthat the nionopoly be kept to a definedtime
period, with the invention becoming part of the public domain after that period (Drahos,
1996; Dutfield, 2000a, 2003; Sell, 1998). Put at its most simplest, this systemallowed
inventors to take ideas from the intellectual commons; use these as a basis for their
inventions; benefit from them for a limited duration; all provided that they describedtheir
invention (or idea) in sufficient detail that when their patentran out the invention could be
by
made one skilled in the for
art and used,ostensibly, the good of society.

The pursuit of ever more encompassingand longer-lasting IPR has also beenmet with a

great deal of criticism. In particular, there have been concernsraised aboutthe effect that
patentscanhave on researchin science,technology, medicine and agriculture.Oneof these
concernsinvolves the "patent thicket", which is describedby Shapiro asanoverlappingset

of patent rights requiring that "those seeking to commercialize new technology obtain
licensesfrom multiple patentees"(2001, p. 1). The problem with a patent thicket, it is

surmised,is that the density of patentsaround a particular areawill actually serveto hinder

researchin that area, for the simple fact that researcherswould be worried about the
possibility of their researchinfringing'on someoneelse's patent. Closely relatedto this is

the notion of the "patent submarine" which describesan instance where, "drawing on
publishedsources,
a companyor Public Organisation
Research (PRO), suchasa university,
developsa method for genetictesting or analysisusing geneticmaterial and subsequently
discoversthat suchmethodsinfringe a patent" (Oldham, 2004, p. 37). Thesetwo concepts
be
can seenasquite closely relatedto the notion of an anti-commonsthat hasbeenput forth
by several IPR scholars, where scientific researchis actually limited by the increased
importanceof secrecybred by the IPR system(Heller & Eisenberg, 1998).

The IPR system and "patents on life" also necessarily require the imbuing of ideas
themselyeswith a certain measureof valpe - in essence,turning ideasinto commodities.
This is fundamental to the notion of IPR generally, but is also fundamental to most

36
allegationsof biopiracy, as it is in
only acceptingthe idea that there is somewrong being
done by treating ideas in this way or in (mis-)appropriating them for economicgain that
theserelationshipsbecomesproblematic. It seemsfairly clear that the patenting of these
materialsor their constituentpartswill not affect day-to-daytraditional usesof the genetic
knowledge 6
of use. In fact, the legalitiespertainingto this aspect
its
materialpatentedor the
of the issueare often misunderstood,andmight do with someclarification of what,legally,
a patent does and does not grant its holder. If we use the US as an example,the United
StatesPatentand Trademark Office (USPTO) provide this clarification:

[a patentgives its holder] the right to excludeothersfrom making, using, offering for

sale,or selling the invention throughout the United Statesor importing the invention
into the United States"[ ] The exact natureof the right conferred must be carefully
...
distinguished,and the key is in the words "right to exclude" in the phrasejustquoted.
The patent does not grant the right to make, use, offer for sale or sell or import the
invention but only grants the exclusive nature of the right. Any person.is ordinarily
free to make, use,offer for saleor sell or import anything he/shepleases,and a grant
from the government is not necessary.The patent only grants the right to exclude

others from making, using, offering for sale or selling or importing the invention.
Sincethe patentdoesnot grant the right to make,use,offer for sale,or sell, or import
the invention, the patentee'sown right to do so is dependentupon the rights of others
andwhatevergeneral laws might be applicable.A patentee,merely because he/she has

received a patent for an invention, is not thereby authorized to make, use, offer for

sale,or sell, or import the invention if doing so would violate any law (2001, p. 23).

If this is taken into consideration,then, since the patents in question are usually rather

narrow in scope,many of the people ostensibly affected by these patentswould still be

to
allowed seek out and use their plants, etc. in their "natural" state, as they have been
doing for years. If this is understood,then the problem articulated by those that allege
biopiracy seemsto lie, at least in part, in the act of alienation or ownership itself, and with
the individual (mis)attribution of such ownership

The primacy afforded economicargumentsfor IPR lendsitself to a very particular version

of the it
natureof property as pertainsto biodiversity and TK. Specifically, it framesthe use
of biodiversity in economicterms of rights, "ownership", and individualism,
possessive all

6 Unlessthe patenting were to contribute to an artificially high demandfor the plant, assuggestedhas
happenedas a result of the 'boom' in the trade in herbal medicines(Edwards, 2004).

37
while bringing it into the sphereof IPR and the "commodification" of knowledge.In so
doing, it createsan opportunity to make IPR and its underlying discourseof rights and

entitlementsthe filter through which passessociety's interaction with biodiversity andthe

knowledgeand applicationsthereof. This is perhapsbestseenthrough a look at the way,in

which bioprospectinggetsseenin terms of the "commercial usesof biodiversity" and that

its economic valuation in this way is a potential solution to problems of environmental
degradationor biodiversity loss (ten Kate & Laird, 1999).Although this ideawill form one

of the central themes of the next chapter, it can be seenhere simply as a way for the
environment (seen as biodiversity) can ensure its preservation if, and only if, it is

understoodand valued in economicterms.

The idea that the value for biodiversity is best realized through the property system is
echoedin calls from prominent membersof the pharmaceuticalcommunity encouraging
traditional populationsto patenttheir knowledgeof biodiversity in orderto preventpossible
instancesof biopiracy (seePfizer SeniorVP for CorporateAffairs, RobertMallet, quotedin
Forgrieve,2002) as well as in the emergenceof companiesdevotedalmost exclusively to
developingproductsbasedon TK, suchasShamanPharmaceuticals(Dorsey,2001,2003;
King, 1991).It is also bome out in the notion of benefit-sharingthat has receiveda great
deal of attention as a possible baffle to biopiracy and which will be discussedin greater
detail at a later point in the thesis.

Again deploying a seemingly fluid and at times even apparently internally contradictory

argumentativestrategy,many of the activist organizationscampaigningagainstbiopiracy

also use an economic logic in their arguments.One of the claims underpinning economic
arguments against biopiracy arguesthat the use of patentedmaterials generateeconomic
benefit for the Westerncompaniesthat hold them evenwhen the patentsare basedon TK

either in the form of medicinesbasedon traditional medicinesor commercial seedpatents

basedon traditional seedgerrnplasm.One of the often cited claims is that a large part of

current medicine is basedon TK, and that this is worth over 3 billion dollars a year. As
RAM claimed in a 1994 report, "at least 7000 medical compounds used in Western

medicine are derived from plants. The value of developing-country germplasm to the
pharmaceuticalindustry in the early 1990swas estimatedto be at least $32000million per
year.Yet developing countrieswere paid only a fraction of this amountfor theraw material
and knowledgethey contribute" (I 994b).The value of commercialseedstockderivedfrom
traditional varieties,though rarely quantified assuch,is allegedto be of comparablevalue.

38
This can be seento resonatewith more straightforwardly legal argumentsaboutprior art,
but it is clearthat the activists arealso interestedin placing the idea of biopiracy in relation
to popular ideas of the monetary value of traditional resourcesthat are used in the west,
particularly medicines.

Cultural

One of the current points of contestation within the discourse of IPR has been the
relationshipbetweenIPR and cultural productions.Coombe (1998) questionswhether it is

appropriateto place cultural products under the rubric of IPR, particularly as it can be
virtually impossible and is, in her view, inappropriateto identify one singularauthorwhere
it pertainsto cultural artefacts.This is largely becausemany of theseartefactsaremadeup

of many different interpretations, understandings, etc, and often involve active

reinterpretationsthat allow us to usethe "most powerful, prevalent,and accessiblecultural
forms to express alternative visions of social worlds" (Coombe, 1998, p. 42). IPR,

accordingto Coombe and as it pertainsto these particular cultural forms is involved in an

inappropriatecommodification of culture. In other words, sheasks:"What havewe doneto
'culture' by insisting that all signifying forms be treatedas information" (Coombe, 1996,

quotedin Strathefn, 1999)?

Parallelsare often drawn betweenthe useof IPR for biological diversity and the (mis)use

of IPR for cultural productionssuchastraditional art (Brown, 1998). By way of example,

thereare direct analogiesmadebetweena famouscaseof biopiracy, the SanlHoodiaissue
to
and a claim cultural (mis)appropriationto do with San cultural As
artefacts7. Stephenson

points out, the San view the use of IPR with respectto Hoodia in the samecontext as the
government's alleged unauthorized use of ancient San rock paintings that have been
imbued with a great deal of cultural significance (Stephenson,2003). Similar issueshave
been addressed by Blakeney (2000) with reference to Australian instances of

misappropriatedusesof traditional artwork and designs.

The IPR/culture debate also speaksto one of the most significant areasof discordance
betweenthe IPR systemand many of thosewho advocatefor a recognition of the TK at the
heart of biopiracy cases- the decontextualizationof the knowledge that is the subject of

patentsor, what Posey (2002) has called the "commodification of the sacred".As might be

expected,this has ftirther articulations in the analogies drawn between allegations of

This casewill be dealt with in much greaterdetail in Chapter6.

39
biopiracy, cultural piracy and land claim issues.Indeed,as Conklin (2002) points out, an

almost universal feature to claims of biopiracy is an associatedclaim of misappropriated

land.

Thesetensionsalso serve to demonstratethe importance of cultures of IPR (or the lack

thereof) in these debates.In Euro-American societiesvarious social, legal and political
forces are bringing about a considerablyexpandedscopeof legal mechanisms,grouped

underthe rubric of IPR, to cover cultural productions.It is this systemof IPR that hasbeen
globalized (Correa, 2000; Correa& Yusuf, 1998; Khor, 2002; Sell, 1998)via TRIPs and
assortedbilateral trade agreements,and it is this regime,with few if any exceptions,that is
at issue in claims to biopiracy in that it provides the arenain which'this knowledge of
genetic materials is *
patented. This does not make it the only system of
knowledge/ownership,however,(Parry, 2002; Strathern,1909).There area multiplicity of

systemsof ownership and knowledge at play at different sites and in different cultures,
many of which are alien to the fundamentalpremisesthat underlie Euro-American IPR.
Onehelpful way of explaining this particular point will be outlined in a subsequentsection

of this chapter on the "nature" of nature, addressing the issue of the culture/nature
separation.

Political

The typical deploymentof biopiracy is rarely devoid of domesticand internationalpolitical

implications. In someof its articulations, such as when it is usedby national government

representativesin international trade forums, it has definite political goals and outcomes.
The political applications of the term attachto broaderconceptsof North/South politics,

and as such it is often articulated within a familiar political discourse that paints the
internationaltrading relationship asan imbalancedand hegemonicone,which hasimplied
links to colonialism (World Trade Organization Committee on Trade and Environment,
2000; World Trade Organization GeneralCouncil, 2001). In short, biopiracy and IPR in
this senseis linked to a narrativeof Euro-Americanexploitation of the global south,where
in this casethe biodiversity resources,which are disproportionatelylocatedin developing

countries,are pillaged (Action Aid, 2000,2003; GeneticResourcesAction International,

2000; Shiva, 1997,2000b). The deployment of biopiracy along these lines is something

which will be consideredat much greaterlength in Chapter5.

40
In order to best enable this type of reasoning in international politics, the notion of
biopiracy usually gets treated as a resource issue, and as such the argument is often

predicatedon the potential future value of biodiversity discoveries. It appearsto be the

logic of thosemaking the allegationsthat if and when this biodiversity-IPR relationship is
in
understood resource(i. e. potentially economically exploitable) tenris, such allegations
can provide a certain degree of leverage in present or future international trade
negotiations.In fact, in the rhetoric of many from the developing world, biodiversity is
emergingas a unique resourceto be capitalized in the changing global economy(World
Trade Organization Committee on Trade and Environment, 2000). This is echoedin the

calls from thosesupportersof strongIPR systems,who claim that thesesystemswill enable

developing countries to exploit their comparativeadvantagesin biodiversity (Rausser&
Small, 2000), while at the same time providing the necessarystable IPR environment

required for transnationalcorporationsto do business,therebybringing economicbenefit

(Maskus,2000). This hasbeencounteredby increasinglyvocal calls to readdressthe issue

of patentson life, coming from many governmentsin the developing world particularly
with respectto the TRIPs agreement,and most particularly the review of Article 27.3(b)
(World Trade Organization, 2000; World Trade Organization Committee on Trade and
Environment, 2001; World Trade Organization Council for Trade Related Aspects of
Intellectual Property Rights, 2000).8Thesehave also beenarticulated alongsidecalls for

proactivemeasuresin the WTO and TRIPs to avoid misappropriationof geneticmaterials

and TK (World Trade Organization Council for Trade Related Aspects of Intellectual
PropertyRights, 2003).9 The political articulations of the term will becomemore evident
in much greater depth in Chapter 6's discussionof the "solutions" put forth to address
biopiracy.

Likewise, the articulation of a conceptsuch as biopiracy can be a very effective political

strategyfor groupsof indigenouspeopleusing it. Conklin (2002) identifies casesin Brazil

where relatively small numbersof people that form part of an indigenous population can
gain a great deal of national and international political influence through articulations of

8Article 27.3. states:Members may also exclude from patentability: [ ]

...
(b) plants and animals other than micro-organisms, and essentiallybiological processesfor the
production of plants or animalsother than non-biological and microbiological processes.However,
Membersshall provide for the protection of plant varietieseither by patentsor by an effective sid generis
systemor by any combination thereof. Theprovisions of this subparagraph shall be revielvedfour years
after the date ofentry intoforce ofthe WTOAgreement. (World Trade Organization, 1994,emphasis
added)
9 Seethe following chapter for a discussionof the way in which the TRIPs agreementhasbeennegotiated
and contestedat the WTO, particularly where it pertainsto the issueof patentson life and article 27.3(b).

41
biopiracy andsubsequentlinkageswith internationalenvironmentalgroups,aswell aswith

groupsinvolved in the resistanceto biopiracy. As she explains,

By mobilizing againstthe threat of foreign pirates stealing from the treasurechestof

Amazonia'sbiogenctic riches,Native Brazilian activistshaverepositionedthemselves

asdefendersof the national patrimony and suitably patriotic participantsin the nation's
new democratic party politics. The issueof biopiracy thus works simultaneouslyat
severallevels, from the global to the local, articulatingconcernssharedby localNative
communities, Brazilian nationalism, and international environmental discourse.It
speaksto the concernsof potential allies in the national arenawithout alienating key
foreign supporters and affirms the legitimacy of Native peoples' privileged

environmentalknowledge (Conklin, 2002, p. 1058).

Demonstratedclearly here by Conklin, is the way in which the discourseof biopiracy and

particularly its strategicdeploymentcanhavea greatdealof political influence,which can

crossmany different local, national and international political spheres.

Social

This particular aspectof the literature holds that biopiracy and the notion of patentson life
(as well as the apparenttendency of the patent systemto expand in order to encompass

other areasnot foreseenunder the system- in the sameway that it has beenexpandedto
encompass"life") run counterto the original social function of patent laws. In their initial
formulations,patent laws were seento havea primarily social function, in that they would

serveto promote innovation by allowing peopleto take ideasfrom the "public domaitf'and
add their own intellectual labour to them, secure in the knowledge that whatever
marketableproducts were to come from this would be theirs for a defined period of time.
As alludedto above,this was seenasa trade-off which is within the public interest,so long

asthe specific invention developedin this way returnedto the public domainaftera limited
period of time.

While this may be true in principle, in practice, there is a growing criticism of this

particular system emerging, and, more specifically, a criticsm of the in

way(s) which it
carriesout this social function. This is a position which is most prominently advocatedby
IP scholarssuch as Drahos (1996; 1999),who arguethat allowing an ever expandingpart

of the public domain to be coveredby claims to IPR can actually serveto limit innovation,

42
therebydirectly contraveningthe original social goal of the system:somethinghe refersto
as "information feudalism" (Drahos & Braithwaite, 2003). The argument is basedon the
idea that, due to overly expansiveIPR coverage,innovation in society would actually be
limited becausean inventor would haveto draNvon too many alreadypatentedinnovations
for their own invention. The fact that, in order to make their own invention feasible, an
inventor would haveto negotiatelicenseswith a whole array of other patentholdersactsas

a form of disincentiveto makingnew inventions(Mackenzie,Keating, & Cambrosio,1990)

suchasin the patentthicket, anticommonsandpatentsubmarineconceptsdiscussedabove.

Concluding thoughts on biopiracy as an IPR issue

Obviously, a categorizationexercisesuchasthe one I haveundertakenin this Chapterwill,

invariably mis- or under-representsomeof the complexities of these issues.As set out in
the initial caveat,thesesix categoriesare presentedhere to provide a context in which to
begin to understandthe interplay betweenbiopiracy andIPR. The next sectionwill outline
in more detail the type of analysisthat will be usedin order to advancethis understanding

and will further historically contextualize the framework that emerged to enable the
thinking that leadsto claims of biopiracy.

Biosociality, biocconomy/biovalue and genetic essentialism

Another of the ways in which biopiracy has enteredinto various debatesthrough the last

severalyearshas beenin relation (direct or indirect) to the notion of the bioeconomy.The

OECD gives the most thorough account of the bioeconomy in their project, The
Bioeconomy to 2030, with the aim to "design a bioeconomy policy agenda for
governments"(2006). They however,
acknowledge, that it is a term which is "interpretedin
different ways by different actors". For their purposes,they suppose"the bioeconomyto be
the aggregatesetof economicoperationsin a societythat usesthe latentvalueincumbentin
biological products and processesto capturenew growth and welfare benefits for citizens

andnations" (Organization for Economic CooperationandDevelopment,2006,p. 1). The

significanceof this new aspectof the economyhas not beenrestricted to thosein OECD
policy-making circles, and the notion that there is a direct connectionto be madebetween
the economyand the "latent value incumbentin biological products and processes"is not
alien to social scientists.A particular tension in the process(es)through which economic
value is derived from biodiversity and TK is also at the very core of the biopiracy
discourse,and it is thus instructive to considerhow somesocial scientistshavereflectedon

43
certain aspects of this set of processes, and ultimately on this apparently burgeoning aspect

of the relationship betweenthe economyand the environment.

Much of the current thinking in the social sciences has focused on the human and
biomedical aspects of the bioeconomy. Although there is no doubt that the somatic

elements of biocapital are principal drivers, it is not necessarilyappropriateto limit the

tenn to its usein this context. In fact, asRoseputs it, "[fln a sense,contemporaryprojects
to embodyhumandesiresand aspirationswithin living entities- organisms,organs,cells,
molecules- in order to extract a surplus- be it food, health or capital - can be tracedto
to
much earlier attempts put the vital propertiesof the natural world to work for humans,as
with the domesticationof animals and plants" (2007, p. 18). Of course,bringing the vital
propertiesof the to
natural world work for humans did not stop at the mere domestication

of animalsandplants, asmany of the original, "biocapitalist" forays into the natural world
involved someof the earliestplant variety protection instrumentsthat enabledin largepart
the businessof seedsto becomethe multi-billion pound industry it hasbecometoday. The
OECD themselvesalso do not limit their understandingof the bioeconomy to its human

and
aspects, in fact they identify agriculture as one of the six main sectorsof the coming
bioeconomy.10Indeed,the increasein the promissory aspectsof GMO technologyto insert
humangenesinto GMO plants" blurs the boundariesbetweenthe human and non-human

aspectsof the bioeconomy in more overt ways.

The somatic focus is an understandableone, however, as much of the current thinking

about the biocconomy (in many sectors) owes a debt to Foucault's (1997) idea of
"biopower". To that end,there arethree conceptsthat I would like to draw on and develop
here,that will locate my own questionsaboutbiopiracy, and IPR more generally,within a

wider analysisof forms of biopower. I will advancethesethree perspectivesas different

to the
ways understand production of biocapital, though I will stretchthese in
concepts new
ways. This is necessarybecausealthough they have beendevelopedin relation especially
to human genetics,I will be attemptingto apply them to include plant genetics,or, more
appropriately, the interaction betweensociety,plant, and human genetics.In the following

section,I will introduce Walby's notion of biovalue, Rabinow's idea of biosociality, and
Nelkin's conceptof genetic essentialism.

10Indeed,the non-humanaspectsof the bioeconomyAlsoappearquite fundamentally in someof the other

sectors,such as industry (with the developmentand application of new biological products in industry)
and energy(with the developmentof new bio-fuels).
11Seefor instancethe headlineof The Guardian newspaper'sG2 section from April 30, asking in bold
letters"Rice with human genesin it, anyone?" (Adam, 2007)

44
Biovalue

Waldby provides a possibleframeworkfor conceptualizingsomeof the transitionseffected

by the bioeconomy when she articulates her notion of "biovalue". As she explains,
"biovalue refers to the yield of vitality producedby the biotechnological reformulation of
living processes"(Waldby, 2002, p. 3 10). Shegoeson to describeone of the incentivesto

produce"biovalue", the production of exchangevalue, which is particularly interestingfor

this analysis. As she explains, "the production of 'biovalue' is caught up with the
production of. capital value. The processof producing 'biovalue' is also the processof
technicalinnovation that enablesthe patentingof cell lines,genesandtransgenicorganisms
asinventions,securingtheir statusasintellectual property andpossiblesourcesof profit for
their inventors"(Waldby, 2002 p.3 10). While Waldby is here presenting biovalue as it
relates to stem cells, the parallels to biopiracy appearfairly clear. If we understandthe
deployment of biopiracy as being centrally concernedwith a critique of the dominant

regime of IPR then we can seehow it is seekingto call into questionsthe production of,
biovalue via IPR. When andwherethe production of biovaluevia IPR intersectswith TK in
the interest of producing biovalue (for example,via endeavourssuch as bioprospecting)
then theselinks becomeeven more evident.

As Escobar (1996) would have it in his call for a "postructural political ecology", the
of
reconceptualization nature brought aboutby its engagement with capitalismis indicative

of capital entering a new "ecological phase".This refers to his claim that capital hasnow
entered into a novel phase in its relationship with "nature", that sees it altering
understandingsof "nature" in severalways, helped along with the pervasivespreadof the
sustainabledevelopmentdiscourse12 , which he presentsasa function of the sameprocessof

capitalism's ecological phase.This leadshim to arguethat thesekinds of developmentsare

examplesof the expanseof regimesof "bio-power" and "biosociality", both themeswhich
will be picked up in the next section.

Biosociality

Rabinow provides a concept, biosociality, which could also prove useful as an aid to

conceptualizingthe problem of biopiracy. As he explains,

12Which was integral in the developmentof the idea of 'bioProspecting'.

45
 in the future, the new genetics will ceaseto be a biological metaphor for modem

societyandwill becomeinsteada circulation network of identity terms and restriction

loci, aroundwhich andthrough which a truly new type of autoproductionwill emerge
[called biosociality]. If socio-biology is culture constructedon the basisof a metaphor

of nature, then in biosociality nature will be modelled on culture understoodas

practice.Nature will be known and remadethrough techniqueandwill finally become
artificial, just as culture becomesnatural (Rabinow, 1996b,p. 242).

While much of Rabinow's basisfor advancingthis argumentcomesfrom his analysisof the

social reconfigurationsbasedon knowledge of hunian genetics,there appearsto be fertile

groundshereto extendthis conceptto encompassour understandingof the relationshipthat

we haveto plants and to their I
genes. will arguethat biopiracy can be better understoodby

seeingit ascreating,claiming or entailing a certainkind of bioso.ciality, albeita biosociality

stretchedsomewhatout of Rabinow's original notion, with its anthropocentricandsomatic
focus.

One of the principal tasks that Rabinow setsforth for biosociality is to challengewhat is

called the nature/culturesplit. It is my senseof the conceptthat it can be in

extended, that
to but
spirit, encompassplant genetics, more specifically, to the
encompass ways in which
understandingsof genetics, irrespective of their original biological basis (i. e. plant or
human) can come to serve as powerful tools of organization, mobilization and
If,
understanding. as some have encouragedus to do (c.f. Latour, 1993), we think of the
culture/naturesplit asitself in part a function of our modem society and somethingthat can
not be taken for granted,then biopiracy seems an ideal lensthroughwhich we canexamine,

understandand (re)negotiate the boundaries of nature and culture. Thus, if we use

biosociality to take forward the idea of challenging the nature/culturesplit, then it would

seemthat we needa more expansivedefinition of the social which includes more thanjust
elementsof human "nature". We will need a "culture" that includes plant genetic and
biological information as part of its network, rather than parcelled off into the "nature" of
the nature/culturesplit. Put anotherway, if indeed biosociality is about overcoming this
nature/culturesplit, where is the if
split more evident not in its separationof people and
plants?And where is this particular separationmore evident than in the IPR system,with
its precept that people can be, ultimately, the inventors of plants or even see parts of
themselves(albeit in a much more limited way) recognizedas the product of another's
invention? At its most basic, extending the concept to enable us to examine groups

problematizing biopiracy as "biosocial" groupings, could help to explain how we

46
understandand organize not only our relationship with our environment, but would also
enableus to strike at the very heart of the nature/culturesplit.

Part of the reasonfor challengingthe nature/culturesplit, Rabinow suggests,is to removea

residual fear of the "unnatural" and embraceour ability to act on nature - to render it
"cultural". As part of this, Rabinow envisions the possibility of group formation around

new, biosocial, identities, wherepeopleare empoweredby their knowledge of, and ability
to act uponnature.As such,oneof the aspectsof Rabinow's biosociality thathasbeenmost
influential is his suggestion that there will be a "likely formation of new group and
individual identities and practicesarising out of thesenew [biosocial] truths'.' (1996a,p.
102) In his formulation of it, he further explains that he is "not discussing some
.
hypothetical gene for aggressionor altruism. Rather, it is not hard to imagine groups
formed aroundthe chromosome17, locus 16,256,site 654,376allele variantwith a guanine

substitution.Such groupswill havemedical specialists,laboratories,narratives,traditions

and a heavy panoply of pastoral keepersto help them experience,share,intervene, and
'understand' their fate" (Rabinow, 1996a,p. 102).

Oneof the things that shinesthroughRabinow's analysisis that he seesthesenewly formed

groupsascoming to understandthemselvesthrough, and consequentlyorganizing around

specific hunian geneswith specific functions, and seesthe possibility of groupfori-nation
as
having "narratives,traditions anda heavypanoply of pastoralkeepers"to helpthemacton

andunderstand their fate. This is clearly a far cry from a patenton "A novel insecticideand
Toliar fungicide derived from a neem seed extract comprising neem oil which is

substantiallyfree of azadirachtinand salannin" (Locke, Larew, & Walter, 1991),as in the

biopiracy controversyaroundneem.However, in his analysis,Rabinow offersup examples

of how the traditional "boundaries" of nature are being overcome and how we are
increasingly able to act upon what we oncesaw as its former ontological primacy. One of
the primary, if not the primary thing that is at issuewith Rabinow's hypotheticalbiosocial
groupsareparticular versionsof nature.Either his group organizedaround"chromosome
17, locus 16,256, site 654,376 allele variant with a guanine substitution" is "naturally"
condemnedautomatically to a life suffering through a certaintype of breastcanceror they
acknowledgethis truth within a versionof naturethat allows them to intervene,act on, and
understandthat particular "truth" asone that is asmuch culturally and artificially relevant
as "naturally" so. Looking at biosociality in this way - as a contestation about which

47
particular versions of nature will dominate, makes clearer how this particular kind of
analysismight be useful to the study of biopiracy.

The notion of naturein this biosociality hasto be more substantiallyunpackedbeforeit can

suggestthat we understandallegationsof biopiracy, andthe solutions that they offer up, as

biosocial ones.Rabinow's pieceis saturatedwith a version of naturewhich dealsonly with
its human face. In his version of nature we need not fear the "unnaturalness"of new
technologiesandthe impact they might haveon our notions of humanness.Ingrainedin his
analysisseemsto be an older and persistentdistinction betweenhumansand the "rest" of
nature,however 13
construed. The enculturationof naturehas to include how we come to
understandit through its regulation and inclusion in regimesthat seekto capitalize on it.
Contestations about biopiracy are advanced to challenge the assumption that this

enculturation of nature will be understood through "old" analogies of authorship and

property.

However, it is clear from the earlier passagethat, for Rabinow the notion of a non-human
"nature" is not really consideredas relevantto the conceptof biopower or to biosociality.
Later in the piece introducing biosociality, however, he does leave open a window for a
further form of analysis.He quotesDagonet:

Dagonet argues that nature has not been natural, in the sense of pure and untouched by
human works, for millennia. More provocatively, he assertsthat nature's malleability

offers an 'invitation' to the artificial. Nature is a blind bricoleur, an elementary logic

of combinations, yielding an infinity of potential differences. These differences are not

prefigured by final causes,and there is no latent perfection seeking homeostasis. If the

word 'nature' is to retain a meaning, it must signify an uninhibited polyphenomenality
of display. Once understood in this way, the only natural thing for man to do would be
to facilitate, encourage, accelerate its unfurling: thematic variation, not rigor mortis.
Dagognet challenges us in a consummately modem fashion: 'Either we go toward a

sort of veneration before the immensity of 'that which is'or one accepts the possibility
of manipulation (Rabinow, 1996a, 108). 14
p.

13Here we might get a bit of enlightenmentfrom Actor-Network theory, and in

particular its treatmentof
human and non-humanactorsas equivalent as will be broachedin Chapter6.
14The quote continues: "for Dagognetthe main obstacleto the full exploration
and exploitation of life's
potentials is a residual naturalism. He tracesthe roots of 'naturalism' to the Greeks.The artisanor artist, it
was held, imitates that which is nature. Although man works on nature,he doesn't changeit ontologically
becausehumanproductions never contain an internal principle of generation.This naturalismhas endured.
From the Greeksto the present,a variety of naturalismshaveheld to the following axioms: 1) the artificial is
neverasgood asthe natural; 2) generationfurnishesthe proof of life (life is auto-production);3) homeostasis

48
It is by recognizingthe capacityfor manipulation,and the ramifications thereof,that many

of the biopiracy narrativesmove for-wardto enact biosocial truths. Part of acceptingthe

possibility of manipulation involves recognizing the human elementsof nature,and vice
versa. With its crude separationbetween the natural and the "invented", the dominant
paradigmof IPR becomesa rather disingenuousway of approachingnature,and society's
relationship with it. Ultimately, part of accepting the possibility that nature can be
intervenedupon hasto include the manipulation of the social structureswhich fix its place
in society- how nature is governed,owned and controlled.

He proceeds in this seminal article to use the emergenceof modem food, which is
"industrially processed to emphasize uniformity and commoditized as part of an
internationalization of world agriculture and distribution". The trend continued,
demonstratingthat it was now "possible not only to producefoods at industrial levels not

constrainedby the 'natural rhythms' or inherent biological qualities (even if people had
bred for these), but even to get people to buy and eat them." It is in this context, he

suggests,that the demandfor "wholesome" foods has"even accelerated,andwill continue

to accelerate,the improvement, the enculturation of nature drawing on tradition as a
resourceto be selectively improved"-(Rabinow, 1996a,pp. 104-105).

Rabinow (1996a) then goes on to describe a way in which "traditional tastes pose a

challengenot a threat to techno-science;the more one specifieswhat is missing from the

new product, the more the civilizing processproceeds"(p. 106) and, ultimately, where
these "traditional" tastes are incorporated, engineered,and ultimately form part of the
techno-scientific agricultural crop. Though the points about how traditional tastes get
incorporatedare important ones,Rabinow is still seeingfood hereasa "natural" input into

a "social" milieu, with the deliberate aim of meeting certain biopolitical criteria (he
suggestsnutrition). This, of course,still assumesa fairly rigid demarcationseparatingthat
hypothetical tomato from its consumer.

Rabinow's version of nature is also a highly individualized one, where people come to
know and manipulate their own natures. If we can imagine groups' organization

(Auto-regulation) is the golden rule. Contemporarynormativejudgmentscontinueto affirm the superiorityof

the biological, the insecurity of humanworks, the risks linked to artificiality and the certitudethat the initial
situation- the Golden Pond or the Sierra- was incomparablybetter."

49
consolidatingaroundthis knowledgeof nature,which hasbeenrenderedin sucha form so
as to be controllable, to a certain extent, then we can equally imagine a group formation
that questionsthe substanceof this controllability on a number of grounds,including the
ethical. This group would recognize that such a knowledge was possible, and would
recognizethis clearly as a way in which nature is, as such, renderedcultural. What they
would, andin fact alreadydo, take issuewith, is what shapethis control and,precisely,this
renderingprocesstakes.

Rabinow further explainsthat therewill be a "likely formation of new groupandindividual

identities and practicesarising out of thesenew [biosocial] truths" (I 996b, p. 102). If, as
Rabinow suggests,thesewill be new groupsforming aroundbiosocialidentitiesfosteredby

new developmentsin scienceand technology, then it would seem possible to consider

groupscontestingthe legal and ethical substanceof developmentsin the world of "patents
on life" as engaging in biosocial interventions. They are, it could be said, making
challengesthat seekto reframe the current definitions of what counts as "natural" in the
world of knowledge,invention andownership,whennatureis "known andremadethrough
techniqueandbecomesartificial". Indeed,in making theseinterventions,thosedeploying
conceptslike biopiracy are seekingto problematizethe dominant narrativesthat suggest
that what counts as natural is universally attainable with referenceto a systemof IPRs
predicatedon the recognition of a singularsetof inventors.Further, they areadvocatingfor
a recognition of the natural that acknowledgesthat the nature/culture separationitself is
artificial and is, for their purposes,unsuitableasa basisfor the systemthat is chargedwith
demarkingsomeof the boundariesaroundwhat counts as knowledge, as ownershipand,

ultimately, as life itself It is as if, for their is

purposes,nature at once too natural and too
cultural to be separatedin this way by the IPR regime.

As will be evidenced by the analysis in Chapters4 and 5, one of the most prominent
features of biopiracy activism is the formation of groups who use specific cases of
biopiracy as focal points for activism. In most cases,the particular instancesof biopiracy
that have been problematized have organized around specific legal artefacts, namely
specific patents or around specific sets of practices, such as specific bioprospecting
projects.Perhapsone of the most obvious suchorganizationwas the "neem team", which
was a group of actorswho organizedaroundEP0436257, and contestedthe patent at the
EPO. As discussedin Chapter4 and at greaterlength elsewhere(Hamilton, 2006), these

particular actorscametogetherto contestthis patentfor severalreasons.Among themwere

50
its symbolic importance,their chanceof legal success(i.e. the patent could be overturned

on its own legal merits or lack thereof) and their ability to mobilize resourcesover the
costly and time-consuming to
processrelated a patent challenge.While it is true that none

of theseparticular actors saw neemitself as integral to their identity, the rhetoric that they
producedin much of their publicity material clearly demonstratedthat they sawthis patent
asrepresenting broaderand more fundamental issueswith the IPR systemandwith society
more broadly issueswhich have direct impact on how we perceive "life". For them,this is
-
clearly an issuethat had a much broadersignificance to the understandingof the place of
nature and of knowledge in social life. The fact that they came together around
EP0436257, in order to help them experience,share, intervene, and "understand" the

patentand its ramifications, that

suggests they may be engagedin biosocial reshapingsof
the IPR system,or at least to our understandingsof it.

It might be tempting to suggesthere that thesegroups,if they are biosocial ones,position

themselvesas defendersof a holistic, naYveversion of "pure" and untouchablenature.A
crucial point to underscorehere is that many, though certainly not all, of those groups
contestingbiopiracy are not, entirely, positing themselvesas valiant defendersof a nature
that we cannot possibly act upon. They do not deny that such a knowledge and such an
interventioninto natureis possible.In fact, in their hyperbole,they arerecognizing,perhaps

more than any other group of actors,that just such a knowledge and intervention is most
certainly possible, and is, indeed, already well underway. One of the things that will be
demonstratedthrough this thesis is that many of those contesting biopiracy make
deliberatelysimplistic and alarmist claims aboutthe "state of the art" in biotechnologyand
bioscience.More than the stateof the art, however, they participate greatly in promoting
the stateof the possible, even if such a "possible" were taken to its most extreme.

In my argument, I will take up and develop two of the key points of Rabinow's
biosociality: the notion that biosocial thinking, which engagesin knowing and remaking
naturein such a way so that it becomesartificial, could standas the basisfor overcoming
the nature/culturesplit, and; the ideathat thesenew biosocial understandingsof natureand
society can lead to the formation to
of groups, and new group identities. In examining
biopiracy through this biosocial lens, it will help to clarify some of the specific points of

contentionin the biopiracy polemic, andreflect on how thoseinvolved canbe seento be,at
somelevel, renegotiatingthe boundariesof our understandingsof nature/culture.

51
GeneticEssentialism

As I have argued earlier in this chapter,the transfon-nationsof understandingthat have

occurredin the idea of the geneover the last severaldecadesis central to the development-
of the conceptof biopiracy. Again, it is possible to extend conceptsthat were originally
advanced to help us understandthe transformationsin human geneticsof the later part of
the 20'hcentury in order to understandthe underpinningsof argumentsabout biopiracy.
Nelkin & Lindee's (1995) notion of "genetic essentialism"is one such conceptthat can be

used to help understandwhat is being contestedin the articulation of this concept of

biopiracy. While I accept that their thesis of genetic essentialism itself might be too

essentialistandcould overstatethe role that geneticsdoesandwill play in our society,there

is no question that one of the principal things at stake in contestationsof biopiracy is

precisely our understandingsof genesand the science (and IPR) that go along with it.
Nelkin & Lindee's argumentthat genetic essentialism"reduces the self to a molecular

entity, equatinghuman beings, in all their social, historical, and moral complexity, with
their genes"(1995, p. 2) canbe seenin part to describethe kind of geneticessentialismthat
is embeddedin the legal understandingsof genetics(seeMcAfee above) but also in their

presentationas contestedobjects in battles about the nature of the IPR system and the
apportioning of the benefits which come from it's application to genesand genescience.
Also useful is their developmentof the conceptsof the DNA mystique and the gene of

popular culture, which, "is not a biological entity - hasa symbolic meaningindependentof
biological definitions" (Nelkin & Lindee, 1995,p. 16). In particular, Nelkin & Lindee's

concept of the gene as an immortal text, suggeststhat it has "become a supergene,an

almost supernaturalentity that hasthe power to define identity, determinehumanaffairs,
dictate human relationships, and explain social problems" (1995, p. 52). Looking at this

closely, we can begin to seehow this conceptof the genecanbe stretchedto speakto some
of the concernsabout biotech that inspire the allegation of biopiracy and also begin to see
the way in which the idea of the gene is enrolled by those seeking to challenge the
hegemonyof the biotech sector.If genesare afforded the power to dictaterelationshipsand

explain problems, then they can also be seenas powerful signifiers, eliciting powerful
responsesand ultimately,leadingto strugglesfor who will be allowed to exert control over
them. If we look at the way in which the image of the genehas beenusedto problematize
the IPR system and its relationship with biotech, some of their ideas can be stretched
further, particularly when they speak of genesbecoming "a convenient way to address
troubling social issues" (Nelkin & Linqee, 1995, p. 194) and conclude that "genetic

52
essentialism,for all its grandioseclaims, is a narrow way of understandingthe cultural
meaningof the body [it ...I erasescomplexity and ambiguity" (Nelkin & Lindee, 1995,p.
196). In this last short excerpt, if "the cultural meaning of the body" were replacedwith
"the cultural meaning of biodiversity" this could provide a useful way to understandthe

current controversiesabout genepatenting and biopiracy. The danger, of course,of this

samegeneticessentialismbeing extendedto biodiversity is that it would strip natureof its
complexity and ambiguity in the sameway that Nelkin and Lindee suggestit strips them
from the body.

Again at risk of oversimplifying a rich field of enquiry, there are a few tools that these
theoriescanprovide us with to aid us in understandingthe issueof biopiracy. In part they
can help us to seethat part of what is at stakehere is a contest for the popular image of
nature and the gene - scientists and bioprospectorsstill ride on the wings of the DNA
mystique and the potential miracle cures that could be unlocked via the genes of
biodiversity while the activists useconcernsaboutthe geneaspolitical augers,resonating

all the while with perceivedsocial uneaseaboutgeneticandgenomicsin general(from sex

selectionto GMO) and especiallythe problemsthat canoccurwhen combininggenesasthe
essenceof life with the expanseof capitalism andbiocapital on an evermoreintimatelevel.

On nature

Another of the important theoretical contributions to the study of biopiracy comeswhen

examining some of the theoretical insights that have come from studying nature itself.
Many of the processesthat are bound up with biopiracy, such as bioprospecting, are

contingenton a recastingof naturewhich comesaboutaspart of the bioeconomy.In many

ways, the roots of this recastingof naturecan be traced back to the reconfiguration of the
natural that many feel comesabout with modernity, what can be termed the separationof
nature and society (Latour, 1993)and the rise of what Urry and Macnaghton (1998) call
"human exceptionalism". Urry and Macnaghton go on to explain their theory that
15
traditional perspectiveson the environment overlook the key role that embeddedsocial
practicesplay in our experiencesof the environment, and particularly in how societies
make the demarcation(s)betweennatureand society.

With this said, however, it is important to take on board Soper's warning that:

15They outline three: 'environmental realism' 'environmental idealism' and 'environmental

instrumentalism'

53
 both nature-endorsingand nature-scepticalperspectivesneedto incorporatea greater

awarenessof what their respective discourses on nature may be ignoring and

politically repressing [ ...] and just as a simplistic endorsementof nature can seem
insensitive to the emancipatory concernsmotivating its rejection, so an exclusive

emphasis on 'discourse' and signification can very readily appear evasive of

ecological realities and irrelevant to the task of addressingthem (1996, p. 23).

Along those samelines, she points out someof the problems with "allowing 'culture' to
have referenceto an independentdomain of reality having determinate effects, while
denying any such referenceto 'nature"' (Soper, 1996, p. 30). As she explains about the

ecological vs. constructivist perspectiveson nature:

just as someforrns of ecological rhetoric about naturecan be chargedwith being too

ready to abstract from the political effects of its cultural representation,so the
constructivist rhetoric can be accusedof being too ready to deny the naturewhich is
not the creation but the prior condition of culture (Soper, 1996,p. 3 1).

Soperis correctin her conclusionthat thesetwo perspectivesarenot entirelyun-rectifiable,

and I will proposebelow that perhapsEscobar'snofion of "hybrid natures" is one way to

bridge what appearsto be a significant gulf.

From an IPR perspective,concernsaboutthe possibleproblemsinherent in 'enclosing the

commons' and more specifically, concernsaboutthe forms of ownership of 'nature' itself

that patentswere seento grant eventually led to the idea of the natural commons.This
particular element of the debateowes its genesisto severalescalating factors occurring
mainly in the 20thcentury. For easeof explanation,I will divide this sectioninto different
partsthat addressseparatebut relatedaspectsof this transition: firstly how naturecameto
fall within the purview of the intellectual property system;secondly,how socialnotions of

naturehavebeenradically recastover the last century and finally how looking at someof
the broader discussion about the ways in which lPRs for living things, as well as the
conflict aboutbiopiracy, can situateitself at leastpartially within someof the work that is
being done to examine the nature/culture separation, such as Rabinow's biosociality,
discussedabove, and the different approachesthat will be discussedat greaterlength in
Chapter7.

54
Nature and IPR

A great deal of the activist and popular literature on the subject of biopiracy or IPR on

plants and other living material takes as its starting point the often intuitive reactionto the
issueof biopiracy - that, irrespectiveof who may have "invented" it, it is quite simply not
to
possible patent things as they are found in nature. This notion is representedin the IPR

system by the products of nature doctrine, as explained above. However, the ability to
extendIPR to "living" things is, in fact, not new, hearkeningback to the initial attemptsat
patentingcommercially sold plant hybrids of agriculturally significant crops(Kloppenburg,
1988a).While thesemay not haveexplicitly beenpatents,per se,they canbe seento be the

point where the idea of property was expandedso as to encompass things that may be
"natural" though that obviously had human input into their creation.16
some

It can also be said that this first foray of the IPR system into the realm of the "natural"

greatly facilitated the further creep of the IPR systeminto ever more living things. Perhaps
the singlemost important creepof the IPR system'sscopeand scalecamein the muchcited
Diamond v. Chakrabarty (1980) case,the final appeal of which the US SupremeCourt

ruled on in 1980.This particular caseconcernedChakrabarty's"invention" of a genetically

modified bacterium that was able to break down crude oil. Chakrabarty,supportedby his

employer, General Electric, submitted a patent claim on the bacteria, claiming that by

geneticallyaltering the bacteria,he had "invented" somethingthat was not found in nature,
and was thus fell within the idea of invention in patent law (Gold, 1996).In their decision,

the US SupremeCourt reiteratedthe Committee Reportsthat accompaniedthe 1952Act

recodifying the US patentlaws that "Congressintendedstatutory subjectmatterto 'include

anything underthe sun that was madeby man"' and that "[ ...] the patenteehasproduceda
new bacterium with markedly different characteristicsfrom any found in nature and one
having the potential for significant utility. His discovery is not nature'shandiwork, but his

own; accordingly it is patentablesubjectmatter [ ]" (Diamond, CommissionerofPatents

...
and Trademarks v. Chakrabarty, Certiorari to the United StatesCourt of Customsand
PatentAppeals, 447 US 303,1980).

I will not dwell on the particulars of this casehere, but will use it only as a benchmarkto
indicatethe point atwhich, for the first time.legally, "anything underthe sunthatwasmade

16This human input camethrough the processof hybridization, which was, and remains,a staplepractice
of the commercial seedindustry, and were the first living organismsto be covered by anything
resemblingIPR. SeeKloppenburg (1988) for a more thorough Cý examination.

55
by man" [sic] was seen as potentially patentable. The space opened by Dialnond v.
Chakrabarty in terms of what was, or could be patentablewas cavernous,and generateda

great deal of interest and excitement. In many senses,the area which was subsequently
openedup alertedmany to the potentially lucrative possibilities inherent in thesenew IPR
developmentsand kicked off what someIPR scholarshave called a kind of an intellectual

property "land grab" (Boyle, 1996).They also openedup many of the avenuestaken by
those who were critical of this process,and are one of the germination points for the
emergenceof biopiracy over a decadelater.

Any attempt to chronicle the history of biopiracy as an activist responsewould also be

remissif it did not begin with its antecedentsin the "seedwars" of the 1980sandearly 90s.
The seedwars defined, for a set of activist actors,someof the principal issuesto do with
IPR and "patents on life". Essentially,the seedwars were the "international controversy

over the ownership of gennplasmand other related issues"(Juma, 1989,p. 169)that was
fought at a variety of international meetingsthrough the 70s and 80s.17

Especiallypertinent in the seedwars was a concernfor the germplasmof the global south.
One of the great precipitators of the seedwars was the somewhat limited vision of the
importanceof existing germplasmresourcesfor global agriculture. A central concernof
thosegroupsagitating aboutthe ownershipand control of seedsand germplasmin general
was that when plant geneticmaterial fell increasinglyunderthe rubric of IPR therewas no
guaranteethat it would be able to remain as a "free" resourcethat could be tradedamong
fanners.Alongside this were two relatedconcerns,one dealingwith IPR andthe otherwith

appropriation.The first concernwas that, astherewere no IPR rules for plantswhena great
deal of agriculturally germplasmwas collected from the developing world, 8- they were

seenasthe "common heritageof mankind" [sic] (c.f. Kloppenburg& Kleinman, 1988).The

fear was that there was effectively no IPR restriction on who could go into germplasm
banks to get the raw germplasm,and thus, the material contained in theseex sitit banks

could then be used for researchpurposesand would provide the raw material neededfor
what amounted to potentially lucrative hybridization efforts by large agro-chemical
corporations.Thus, therewas a greatdealof concernraisedaboutthis seeminglyone-sided

17One
of the most influential events-of the 'seed wars' was the publication of the book Seedsof Change,
which was written by Pat Mooney, who would go on to found RAFI.
"Much of which actually formed the basis of the seedsthat were to be used in the GreenRevolution,
somethingthat, it was turning out at the time, was quite lucrative for the multinational seedcompanies
who had developedthesehybrid varieties, primarily by mixing varieties from the developingworld.

56
application of IPR to plant geneticresourcesand the rhetorical lines were drawn - it was
"common heritage" when collected in the developing world, but IPR protected seed

varietieswhen sold back by commercialseedcompanies,who were ableto controlthe trade

anduseof the seedsvia IPR contracts.Whenthis useofthe "common heritage"principle to
collect in the first placewas contrastedwith the enclosingand exclusive natureof IPR and
combinedwith the ideathat much of this germplasmthat was initially collectedfrom these
areaswas then now being sold back (protectedall the while by IPR), the seedwars began.
It is most certainly true that while there were a great deal many other aspectsto the seed

wars, it is this one, and the actors involved as well as the argumentsthat they put forth,
which providesthe direct precursorsto the conflict aboutbiopiracy which loomedheavyin
the IPR debatesof the 1990s.

At the risk of (over)stating the obvious, it is important here to outline just how some of
these issues,galvanized around the seedwars of this time period would be recast.and
redeployedin the 90s as part of the discourseof biopiracy. Especially important to this
connectionwere the actors, as many of the people who were engagedin the seedwars
continuedto gatherand organizearoundissuesof IPR in plants, and it was in that context
that they.first "came across" biopiracy. This particular configuration of actorsand issues
will be consideredat greaterlength in the next chapter.

Environmentalism

Another of the most influential developmentswhich contributed to the emergenceof the

conceptof biopiracy was the rise of the environmentalmovement, particularly in how it

enabledseveral transitions in social conceptionsof nature. As Hayden (2003) explains,
amongthe most significant of thesearethosethat advancethe conceptsof biodiversity and
sustainabledevelopment that appearto prevail today. In particular, sheusefully discusses
the transition in the American ideology of naturethat shifts the perspectivestowardsideas
of wildernessand conservation.In examiningthis shift, shepoints out that this layssomeof
the conceptualfoundation that would later seethesedefinitions, or at leastthe conceptual
spacethat they createlead, not only to the creation of the category of "the environment",
but also to the ideason naturethat pervadethe international environmentalagreementsof
the 1990s,particularly the CBD.

Theseideasabout nature can also be tracedthrough and relatedto the birth and growth of
the Euro-American environmentalistmovementand its idea that nature, in particular "the

57
environment" was something that we all held in common (Sachs, 1994). Following on
from that notion were severalothereventsin the environmentalistmovementthat attempted
to advance the idea that the earth was a "common home which needs care and
maintenance"(Urry & Macnaghten,1998,p. 47). This new concept of the environment,
and of humans'place in it, catalyzeda great deal of political pressureihat carriedthrough
until the 1990s,when, on the 20thanniversaryof the first Earth Day and of the formation of
the United Nations EnvironmentalProgram,the UN convenedthe Earth Summit in Rio de
Janeiro. The Rio Summit also begat the CBD, whose importance to biopiracy will be

consideredmore thoroughly in the next chapter.

With respectto the usesof nature, one of the common themesto much of the biopiracy
discoursepositions indigenouspeoples(often imaginedasan entire,homogenouscategory)

positionedagainsta "western" capitalist system(with similarly homogenousactors)which

is not equippedto managethe environmentresponsibly. While the advancementof these
ideas can pose the danger of lapsing into formulations reminiscent of the "ecologically

noble savage"(Redford, 1991) they have often beenthe site of fertile discussionaboutthe
construction of nature and its relationship to society and social institutions such as IPR
(Escobar,1998,1999), which will be discussedat much greaterlength later.

(anti-) Globalization & Anti-GMO

The discourse of resistancecharacterizing biopiracy has intimate connections to and

antecedentsin two movements, which are themselves multi-faceted. These are the
movementsorganizedin oppositionto "economic globalizatioif 'and thosein oppositionto
the GMOs. In many ways, it is at the intersection of the issues that these groups are
to
responding where the impetus for the resistanceto IPR and patentson life has emerged
and takenshape.As Osgoodexplains," [civil society]reactionsto biotechnologyhavebeen
intertwined with anti-capitalismandanti-globalizationcampaigns,creatinga headycocktail

of fear of 'Franken-foods', rejections of the globalising economy, and mistrust of both

governmentregulators and corporatepublic relations campaigns" (2001, p. 254). If one
takes the perspectivethat biopiracy is in large part a responseto certain aspectsof the
"biotechnology boom" of the latter part Of the 20thcentury, or that this at leastprovided a

significant enabling framework, then the following examinationof its connectionto (anti-)
globalization and to anti-GMO activism will help in explaining its solidification.

58
Economic Globalization

The generalcritique of "globalization" that is advancedaspart of the rather nebulousidea

of "anti-globalization" is multi-faceted and difficult to capture. In simplified terms, the

argumentis that there exists an imbalancein the exerciseof power in international trade
and international relations arenasthat privileges the interestsof the developedworld over
thoseof the developingworld. Intrinsically connectedwith this notion of "globalization" is
the rise to prominenceof the transnationalcorporation (TNC) andof the influenceof TNCs
on their homecountry governments.This relationship is seento take the shapeof a system
where TNCs have a very close relationship with the governments of the developed
countriesin which they are based,
andtherebyhave a greatdeal of influence in the shaping
of the positions of thesecountries at international trade meetings as well as influencing
domestic policy. The relationship the TNCs have with the governanceand shaping of
internationaltradepolicy inevitably leadsto themhaving a significant role in the shapingof
the mechanismsof international trade themselves.Thus, by this logic, the trading system
that is negotiatedthrough channelssuchasthe WTO is seento advancethe interestsof the
powerful countries, and specifically the interestsof their TNCs.

As I have indicated elsewherein this thesis,the notion of IPR is absolutely critical to any
engagement with the discourseof biopiracy as it provides one of the principal conceptual
frames - the patent - within which much of the debatetakes place. As will be discussed
further through the course of the thesis, the expansive influence of the biotech and

agrochernical sectors was not entirely coincidentally linked with the international

expansion of IPR. Indeed, since the protection of IPR is of central concern to the
biotechnologyand the pharmaceuticalsectors,they havedemonstrateda longstandingand

consistentinterest in expandingthe IPR in

protections world trade agreements,none the
least of which is the TRIPs agreementof the WTO. Their influence on the shapingof the
TRIPS agreementat the Uruguay Round is seized upon as evidence of their integral
involvement and keeninterestin the negotiationof a global regime of IPR thatwould serve
to protect their interests.The IPR concernsof the biotech firms are associatedwith an
interest in guaranteeingthat their innovations in biotech will be protected as they move
transnationally,but also in ensuringthat they will continueto havethe ability to useIPR to
securepatentson biological research(i. e. on living things), somethingthat is vital to their
operations. The perception that these companies are able to influence the expanseof
internationaltrade in a fashion that is so clearly conduciveto their.interestsoften attaches

59
itself to the themesof globalization that are articulated in the realm of the more general

resistanceto economic/corporateglobalization outlined elsewhere.

Oneof the conceptscentralto the vision of globalization put forth by the anti-globalization

movementis the imageof global homogenizationof various systemsto thepoint wherethe

systemsusedto organizerelations(social, legal, economic,etc.) in the developedcountries
are imposedon developing countries.In essence,this arguesthat a certain "globalization"
of legal, economic, corporateand other systemswill lead to developing countriesbeing
forced, through a variety of direct and coercive means, to adopt the same regulatory

systemsasthe developedworld. Oneof the important featuresof this particulardynamic,it

is argued,is that it solidifies the Westernsystemasthe most legitimate and in somecases
the only viable system of social organization. This argument forms a focal point for
19
resistanceto this economic/corporateglobalization. This is particularly manifestedin the
resistanceto the TRIPs agreementand its presentation as a "globalization" of Euro-
American IPR regimes,which will be discussedin Chapter3.

A useful way to understand how the issue of biopiracy is bound up with the anti-

globalization project is to look at its take up by organizations that are themselveskey

players in the anti-globalization movement. It is not at all uncommon to see biopiracy
appearamong the "usual suspects"style issueslists that are often uncritically acceptedby
those propagating the idea that economic globalization is a process that is inherently
harmful to the developingworld. As an exampleof this connection,takethepresentationof
biopiracy as one of the issuesconfronted as part of the famous "battle of Seattle" anti-

globalizationprotestsof 1999.Dr. VandanaShivaappearedat oneof the 'teach-in' sessions

of this protest,discussingthe 'global fight againstbiopiracy' (I 999a). Her presentationin
this forum servedto solidify the "problem of biopiracy" as one that could be understood
within the ambit of broaderconcernsabout "globalization".

Resistance to GMOs

The widely chronicled movement focusing on a resistanceto GMOs was one of the
foundationalmovementsin the protestagainstbiotechnologyTNCs. Insofarasbiopiracyis
in large part a similar responseto the expansion in importance and influence (at least

economically speaking)of the biotech and agro-chernicalindustries, it has a greatdeal of

19Literature on this topic is extensive,although generally see(Bello, 2000,2001,2002; Khor, 2000;

Scholte,2000)

60
correlation with this particular movement, and shares many of its issues, strategies,
argumentsand supporters.

One of the principal controversiesengagingthe biotechnology industry through the 1990s

was that of GMOs. This is relevant for my examination of the evolution of the term
biopiracy for severalreasons.Many of the concernsthat were articulated in the relatively

widespreadpopular opposition to GMOs touchedon precisely the sameideological fears

that underpin the concerns about biopiracy. Another reason this is relevant to the
developmentof biopiracy is becausemanyof the sameactors,particularly environmentalor
developmentNGOs were involved in propagatingthe ideathat GMOs and biopiracy were

related. Additionally, concerns about IPR and the "ownership" of GMO seedswere
intimately bound up with the anti-GMOs movement.As such,IPR was asmucha foil in the

anti-GMOs movement as it was in the seed wars movement, both of which were
instrumentalin the rise of biopiracy.

As they explain in their sectionof a broaderstudyon biotechnologycontroversy,Wagneret

al. (2002) isolate what they call an "ideological rejection" of biotechnology as one of the
possible "rejection" scenarios that emerge when Europeans evaluate biotechnology.
Interestingly, they cite this ideological rejection, which they define as judging
"biotechnology againstthe backgroundof generalthoughts,valuesand assumptionsabout
the natureof humansand their relationshipwith their environment [ ...dealing with ...] the
question of whether or not humans should be permitted to interfere with the "'natural'
harmony of nature" (Wagner et al., 2002, p. 254) as common acrossnational boundaries.
This notion has a direct correlation with some of the controversiesthat emergedaround

allegations of biopiracy. In large part this ideological rejection of biotechnology as the

interferenceof natureis clearly articulatedin argumentsthat postulatethat "life". however
broadly conceivedof in thesecases,is so "natural" that it would be unnaturalto own it via

patentsand IPR in general. The argumentsabout the inalienability of naturethat make it

impossible to "own" were at the heart of many of the criticisms of biopiracy and as such

connectdirectly to, and in someways almostpiggyback on fearsabout the "unnaturalness"

of GMOs.

The linkage between activism on GMOs and activism pertaining to biopiracy was also
helpedalong by the fact that it was usually the sameorganizationsor individuals who were

promoting both agendas- often explicitly making the claims to their connection. In

61
addition, the linkages were easierto make, conceptually speaking,becausein addition to
the activism coming from the samesources,those who were painted as the promotersof
GMOs were also often those that were involved in the patenting actions that cameto be

seenthrough the lens of biopiracy. The connection betweenthe role of IPR and that of
geneticengineering is exemplified here in an excerpt from Shiva's 1997 book, Biopiracy:

Biopiracy is the Columbian'discovery' 500 yearsafter Columbus. Patentsarestill the

meansto protect this piracy of the wealth of non-Western peoples as a right of

Westernpowers. Throughpatents andgenelic engineering, new colonies are being

carvedout. The land, the forests,the rivers, the oceans,

and the atmospherehave all
beencolonized, eroded,and polluted. Capital now has to look for new colonies to
invadeand exploit for its further accumulation. Thesenew colonies are, in my view,
the interior spaces of the bodies of women, plants, and animals. Resistanceto
biopiracy is a resistanceto the ultimate colonization of life itself - of the future of

as
evolution well as the future of non-Western traditions of relating to and knowing

nature(Shiva, 1997).

In this passageShiva, one of the main anti-GMOs and anti- biopiracy activists makes

explicit the connection between patents and genetic modification as they pertain to
concernsabout "nature" both geneticmodification and (mis)allocationofpatents
-equating
on life with a form of colonialism but also, ultimately with a denial of "nature". In this
light, witnessthe involvementofpossibly themostwell-known internationalenvironmental
NGO, Greenpeace(2004), who starteda "patents on life" campaign that containsmany

referencesto biopiracy.

On most occasions,the link betweenthe activism on GMOs and that on biopiracy was
made in two ways, namely by invoking essentializedideas of "nature" as inalienable and
alsothrough the useof IPR as a bridge betweenthese two concerns - those about "nature"

and those about the ownership and control of resources,particularly those resources
connectedto the food supply. As discussedin later the
chapters, connectionwas made in

this regard by further expanding the remit of the term biopiracy to include any kind of
misplacedpatentclaims on seedsthat could be seen as"public" resources.What was being
invoked here was a scenariothat held that there was an increasing amount of the global
food supply, especially commercial seeds,that were being held in an increasingly fewer

numberof handsvia claims madesupportedby the regime of IPR.

62
Heller and Escobar (2003) actually make the link between these two particular

controversies,IPR/biodiversity and GMOs, by claiming variousdevelopments(suchasthe

protests on these themesthat made up some of the anti-WTO protests of Seattle 1*999),
demonstrate"a new kind of activism that is transnationaland built aroundnew biological
technologies as they are deployed in systems of global capital" (2003, p. 155).
Additionally, they advancethe idea that theseparticular contestationstake place within

what, they refer to as "transnationalized genetic landscapes" that "involve the novel
intersection of genetic knowledge with forces of globalization" and are "multiplicities
linking organisms,ecologies,histories,and culturesin complex and unprecedentedways"
(Heller & Escobar,2003,p. 157).In theselandscapes,they argue,"biodiversity andGMOs

are not issuesor objects but powerful networks for the production of nature and culture"
(Heller & Escobar, 2003, p. 157). They go on to isolate several areasof concordance
betweenthesetwo networks, suchasgeneticessentialism,andnaturalism,aswell assome
differences,suchasthat that emergeswhen anti-GMOs activists "often appealto a type of

genetic naturalism that condemnshuman beings for disrupting a static, pristine nature.In

contrast,biodiversity activists emphasizepreservingthe natural co evolution of organisms

and culturesand thus, embed human beingsand culture inside natural systems" (Heller &
Escobar,2003, p. 157).

Bauer and Gaskell (2002) provide some helpful approachesto conceptualizing the
controversy about biotechnology. In particular, they look at the ways in, which the
controversy in the 1990s involved a number of actors, including interest groups, who
wielded varying amounts of influence but who all contributed in ways to the various
aspectsof the controversy, including its amplification and/ormitigation. One of the useful
conceptsthey introduce is to term interest groups such as environmental NGOs as ...issue

using
entrepreneurs' biotechnology as a way of sustaining and building their general
project" (Bauer & Gaskell, 2002, p. 390).

Bauer and Gaskell suggest that there is a certain kind of co-production that goes on
betweenthe proponents and detractorsof biotechnology. In the interest of providing a
of
certainsense urgency to the issuesthat they arebringing forth "advocatesandopponents
have one thing in common: they push the significance of biotechnology asan issuein the

public domain. In they

consequence combineforces to draw others into the biotechnology

movement" (Bauer& Gaskell, 2002, p. 391). The notion that thesetwo setsof actorsco-
produce a certain senseof urgency provides an interesting preface for the notion of

63
signification spirals which will be introducedmore thoroughly in assessingpopular media
representationsof the term.

In many ways, the connectionsthat are madewith GMOs also capitalized on the general

millennial fervour that camealong with advancesin biotechnology.As Bauerand Gaskell

pointed out above,there was a certain vestedinterest for the companies,and additionally
for the opponentsof biotech to "up-sell" the possibilities of biotechnology for everything
from solving World hunger to saving the environment. The following excerpt, from the
LJNDP Human Development Report 1999 is somewhattypical of much of the kind of

endlessandunchartedpossibilities notions aboutthe "biotech revolution" and its possible

role in development:

In biotechnology the ability to identify and move genetic materials acrossspecies

typeshasbroken the boundsofnature, creatingtotally new organismswith enormous
but unA7iownimplications. [ I technologiesare fuelling globalization, openingnew
...
marketsand giving rise to new actors.[ ... ] Geneticengineeringleadsto complexlinks
betweenfarmers and indigenouspeople in bio rich countries and the multinational

pharmaceuticaland agricultural industries(1999, p. 15, emphasisadded).

Conclusion

As indicatedat the outset,this chapterhadthe difficult task of attemptingto situatea rather

mercurial term, biopiracy, within an existing literature that spanneddebatesin sociology,

law, anthropology, ethnobotany,international relations, environmentalism,and a host of

other disciplines. Oneof the main aims was to situatethe conceptof biopiracy within some
of the literature that informs it, (and, in turn, that it informs) in order to clarify the lines of

contestationandwhat is at stakein contestationsof biopiracy. This chapterwas alsouseful

in introducing someof the conceptsthat will inform the analysispresentedin the restof the
thesis.

As biopiracy is a discourse that is intimately bound up with IPR, I began with an

examinationof the various ways that this conceptcan be seenasan IPR issue.In examining
the legal, ethical, economic, cultural, political and social aspectsof understandingit as a
legal issue, I have positioned biopiracy as an issue that can crosscut some of these

categories,and has been positioned at the point where these various aspectsof IPR
converge. Along with positioning at the legal crossroads,I have also linked it with

64
contemporary political concerns about "the enviromnenf' and those about anti-
globalization. In keepingwith a vision of biopiracy as a passage
point, it is the intersection

of those two dialogues - environmentalism and (anti) globalization - that provides

biopiracy with a great deal of its initial momentum.

Conceptually, the discussion of the gene and genetic essentialism;of the bioeconomy,
biovalue and biosociality; and that of nature will be the most pertinent to the ensuing

analysis.The idea of genetic essentialism,and that the legal "gene" is not especiallythe
genomicgenewill be useful in understandingsomeof the simplificationsthat arepresented
as part of biopiracy campaigns,as well asthe way in which the genehasbeenunderstood
in IPR regimes.Much of the biopiracy discoursethat will be discussedthrough the course

of this thesis will be set against a backdrop of the bioeconomy, and for this reasonthe
discussion of the bioeconomy/biocapital and of biovalue will be particularly useful to

contextualizingthis analysisfurther andto critically assessingthe proposed"solutions" to

biopiracy. Finally, the notions of natureand its relationship to culture and to IPR become

particularly pertinentto the final stagesof my analysis.In many ways, all of theseconcepts
come together in an analysis of biopiracy's relationship to the IPR aspects of the
bioeconomy, especially to do with how the IPR system is used to createand maintain a

separationbetweennatureand culturein thebioeconomy.Rabinow'snotion of biosociality,

itself intimately tied to ideas'Ofnature/culture,will be revisited aspart of this analysis,and

will prove especially instructive to the thesis' conclusions on the role of the biopiracy
discourse in helping to understand broader understandings of nature/culture in the
bioeconomy.

65
Chapter 3- Biopiracy's historical context

This chapterwill outline how thosethings that becomecontestedin the biopiracydiscourse

- knowledge,ownership andnature- cometo be placed into a contestableframe andcome

themselvesto be seenas governablecategories.The other purpose of this chapter is to
situate the emergenceof biopiracy within a certain contemporaryhistorical context. By
contemporary history, I am suggestingthat the three principal transitions that will be
outlined in this chapter were all instrumental in the emergenceof biopiracy but were
themselvesaffected by its deployment. In addition, these three particular events, the
emergenceof a more global perspectiveor "creep" of IPRs, the CBD, and the inception of
the conceptof bioprospecting- are all still evolving, and their histories continueto evolve
and intertwine with that of biopiracy as a term and a concept.It should also be noted that,
as is the natureof thesetypes of networks,the three particular transitions describedbelow
are also themselvesinfluenced by one anotherand are engagedin a certain processof co-
evolution. Particularly in the case of the TRIPs agreementand the CBD, there is an
ongoing,and still highly uncertain,processof negotiationasto how they will co-existat the
international level, if this is at all possible.

This chapterwill thus look at thesethree developmentsin turn. Firstly, it will look at the
TRIPs agreement, and the work that it does to expand Euro-American notions of

patentability, especiallypatentsfor living It

organisms. will then turn to look at the CBD,
and particularly the work that it does to define the notion of genetic resources,making
thesea contestablecategorythrough making them national resourcesand through setting
the objective that they be shared. Finally, this chapter will look at the practice of
bioprospecting, and clarify its relationship to the CBD, especially as it pertains to the

generationand sharing of benefits from geneticresources.

Oneof the reasonsfor structuringthe following argumentin this way is to demonstratethat

is
what also at issuewith claims of biopiracy is a contention about how in
and what ways
genetic resourcesand biodiversity becomegovernable.In particular, this argumentwill
focus on how the developmentof thesethree particular sets of practices can be seenas

elementswithin a developing political rationality which, as Rose and Miller explain,

"render[s] reality thinkable in such a way that it is amenableto political deliberations"
(1992, p. 179). Thus, in looking at the TRIPS agreement,at the CBD and the notion of

66
bioprospecting,I will be examining the origins and developmentof theseinstruments(in
the caseof TRIPs andthe CBD) andpractices(in the caseof bioprospecting)andlooking at
the ways in which they render reality thinkable with respectto biocapital - specifically,
how nature gets recast and redeployed in multiple ways as intellectual property and'
ccgenetic
resources".

TRIPs. - how nature becomes(intellectual) property

"The TRIPSagreementrepresentsa radical change,a 'conceptualleap'in the history of

intellectual property" (Correa, 1997,p. 1).

It is impossibleto understandthe contemporarydiscourseof biopiracy without at least a

cursoryunderstandingof the notion of IPR. The last chapteroutlined someof the basicsof
intellectual property (e.g. criteria for patentability, the patenting of "natural" entities or
"life", etc.) and focused additional attention on some of the ways that these have been

problematized(e.g. the ethics of patentinglife forms, the fraught issuesof accessto these
materials,the controversiesabout prior informed consent, ).
etc. Carrying on from those
perspectives,it is vital to understand the emerging international "creep" of IPR to
understandsome of the central contestationsat issue in claims of biopiracy.

This sectionwill commenton the most significant effort at expandingthe Euro-American

systemof IPR to encompassa moreglobal ambit,the GATT/WTO's TRIPs agreement.The

TRIPs agreementis almost universally acknowledgedto be the most ambitious attempt at

expandingIPR to a global scale.As Correa,a prominent commentatoron the issueof IPR

and the developing world, explains:

The TRIPs Agreement is the most far-reachingand comprehensivelegal regime ever

concluded at the multilateral level in the area of intellectual property rights (IPRs).
[ ] the TRIPs Agreement constitutes a major qualitative leap which radically
...
modifies not only the context in which lPRs are consideredinternationally, but also
their substantivecontent,andthe methodsfor their enforcementanddisputesettlement
(Correa & Yusuf, 1998,p. xvii).

The TRIPs agreementcameinto force in 1994aspart of the WTO, which cameaboutwith

the culmination of the Uruguay Round of GATT negotiations. TRIPs "prescribes
domestically enforceable norms for the protection of intellectual property rights as a

67
condition of membershipof the WTO (Blakeney,2004, p. 3), andmakesup oneof the most
important partsof the WTO agreements.The story of TRIPs, however, beginsin the early

and mid 1980s when it was increasingly being recognized that the existing GATT
framework, with its focus on trade and tariffs in more traditional trade fields (such as

natural resources)was insufficient to deal with the scaleand'substanceof trade that was
happeninginternationally. As a result of this, there were a series of negotiationsabout

expandingGATT to include someof the other areasthat were emergingasimportantin the

international economy. In particular, the negotiations focused on creating a new

organization,of which the prior GATT would bejust onepart. The new organization,the
WTO, would be basedon four pillars: the GATT, the General Agreement on Trade in
Services,the TRIPS Agreementand a strongdisputeresolution mechanism.The inclusion

of servicesandIPR alongsideGATT demonstratedthebroadenedvision of what countedas

international trade in new conceptionsof a "global economy".

The richer countriesof the world had long featuredIPRs provisions in their bilateral trade

negotiations.The US in particular had this orientation, and for two decadesprior to the
coming into effect of the TRIPS agreement,focused on very robust systemsof IPR in their
bilateral andmultilateral tradenegotiations.Additionally, the US pursueda very aggressive

policy of punishing those countries that did not fall into line on their IPR provisions.
Throughtheir Special301 provisions, the US put pressureon thosecountrieswho, they felt,
were not rigorous enough in protecting intellectual property, especially the IPR of US
companies. "Section 182 of the Trade Act of 1974 (commonly known as "Special 301")

requiresUSTR [United StatesTrade Representative]to identify annually thosecountries

that deny adequateand effective intellectual property (IP) protection or that deny fair and
equitablemarket accessto US IP products." (United StatesTrade Representative,2001, p.
23068). Along with identifying those countries, it gives the USTR recourseto penalize
thosecountriesthat run afoul of this instrument.

The impetusfor the US pushing such a dramatically IPR-orientednegotiation strategyfor

the multilateral GATT instrumentscamefrom a particular readingof globaltradebalances,
and the particular political influence of several industries which had strongly vested
interestsin the maintenanceandencouragementof robust systemsof intellectual property.
As Drahosputs it in attemptingto answerthe questionof why the TRIPs agreementbecame
so central to the US at GATT, and why they chosethat particular moment to push IPR:

68
 One answeris that those US corporationslike IBM, Pfizer and Microsoft which had
large intellectual property portfolios were worried aboutthe loss of profits due to the

piracy of their products. [ ... ]A second answer and one that helps to explain the
supportof Congressis the widespreadfears over the loss of US competitiveness.A
third answeris the belief that the US was losing power in the world (1995, p. 7).

Drahoschartsthe specific influence of this group of corporations,the Advisory Committee

for Trade Negotiations, which was made up of representativesfrom the software, ag-
biotechnology, pharmaceutical and motion pictures & recording industries, and was
designedto "provide direct input by the US businesssectorinto US tradepolicy" (1995,p.
8). This particular group was thus influential in the negotiation of the TRIPs agreement,

even to the point of actually proposing sectionsof text which eventually becamepart of
agreementitself. As Sell points out, "[e]ven a casual observer of current trends in
developing countries must be struck by the extent to which the policies have come to

resemblethe wishesof the United Statesandother wealthy industrializedcountries"(1998,

p. 181).

While the importance of IPR to severalkey industries in the developedworld is widely

acknowledgedand their political influence in policing theserights is fairly well known, it is

somewhatmore complex to explain how developing countrieseventually cameto accept
the text of the TRIPs agreementas part of GATT. Clearly, as one commentatorin the
Economistput it: "There is little evidenceto show that truly downtrodden placeswhich
introducerobust intellectual property protectionreap any of the much-toutedbenefits

putting in a rigorous patent system will not make Angola a hotspot of biotechnology
innovation any time soon; a licence to drive is little usewithout a car" (Economist,2002,

pp. 11-12).

Without a clear economic incentive, getting the countries of the developing world

committed to a robust standardof IPR protection worldwide would prove to be a difficult

and complex issue for the US. Many developing countries felt that this could serve as a
hindranceto their developmentas it could slow down the growth of their industries.20
Another consideration at the time of the TRIPs negotiations was that there were many

20The irony that many of the developedcountries,especiallythe US, actually did much their
of
'developing' by flaunting IPR and other trade rules that would now be called IPR was also not lost on
many making this argument.

69
countriesin the developing world that had little to no experiencewith IPR regimes,and
thus were at a significant disadvantagein that respect.As Drahos points out,

at the time the US began to negotiate with South Korea on intellectual property
protection, there were no law schoolsin South Korea teaching intellectual property
law andtherewere no Korean lawyersexpertin intellectualpropertylaw. TheKoreans

were noviceswhen it cameto intellectual property and asnovicesthey were subjectto

the disciplining effect of expert knowledges(1995, p. 15).

There arethosethat contendthat someof the developingcountriesinvolved in the process

were eventually convincedto agreeto the tenns of TRIPs by the assurancethat also on the
table in future years would be the issue of developed world agricultural subsidies,
somethingwidely acknowledgedthen asnow to be a major hindranceto developingworld
internationaleconomiccompetitiveness.Othersaremore forceful in their analysesof what

was happening.As Sell explains,

The most important factor in the recent spread of intellectual property protection

policies has been coercion; the United States has applied significant pressure on
developing countries to offer stronger intellectual property protection. [ ] the US
...
government learned that exhortation alone was ineffective, but that linking trade and
intellectual property protection could yield the desired results [ ] The link between
...
US power and the move toward the market by developing countries is the US ability to

exploit the vulnerability of targeted states. The United States possessesconsiderable

market power, and access to the US market is critical for many developing countries
(1995, pp. 321-322).

Ultimately, and despitetheseperceivedimbalances,the TRIPs agreementwas included in

the WTO, andcameinto effect asAnnex IC of the MarrakeshAgreementEstablishingthe
World Trade Organization, signed in Marrakesh,Morocco on 15 April 1994.

From an implementation perspective,the TRIPs agreementrequires countries that are

signatoriesto the WTO to implement the minimum standardsof IPR outlined by thetext of
the agreement. Additionally, where countries fqil to do so, it brings IPR-related
internationaldisputesunderthe remit of the WTO's disputeresolutionmechanism.Despite

prevalent confusion, the TRIPS agreementdoes not itself arbiter IPR cases,nor does it

70
 21
serveasa worldwide patentclearinghouse,or an arbiter of specificpatentclaims. Sinceit
only servesto outline the minimum protections required, the TRIPs agreementis often
complementedwith domestic IPR regimeswhich go beyond its provisions. In fact, at the
time of TRIPs' implementation, most developedcountries already had systemsof IPR
whose provisions went far beyond those outlined in TRIPs. When it was originally
implemented,however, it was recognized that the member countries of the WTO had
different levels of existing IPR regulation, aswell as different level of capacityto develop

and implement legislation. To this end, the WTO agreedupon a schemewhereby certain
countries,most notably those in the developing world, would be allowed more time to
bring their IPR laws into line with thoseof TRIPS.

Ostensibly,extendingthe notion of IPR in this way would provide an elementof securityto

westerncorporationswho would thus be assured that their IPR would be protectedasthey

moved abouttransnationally (Maskus,2000). Additionally, the thinking went, this would
facilitate technology transfer, and would give a boost to nascent industries in the
developingworld (notably thosethat would rely on IPR protection for their profits). The
developmentof TRIPS was thus linked with a particular economic orthodoxy of the time,

which relied on the notion that robust IPR regimeswere pivotal for economic growth. As
the previous chapter tou&hed on, however, there is nothing taken for granted within
economic thinking that suggeststhat strong systems of IPR are essentialto economic
development.Rather,the inclusion of IPR asa significant tradeissueis evidenceof theway
in which IPR, and thosethat supportits ends,gainsprominenceby essentiallycarrying the
day, and managingto convince enoughpeople of its importance(Blakeney, 1996).

The treatmentof living organismsasproperty, hasin fact beenone of the most significant

and controversial featuresof this IPR expansionproject. The previous chapter outlined
someof the nuances about the IPR system'streatment
of living including
organisms, a brief

sketch of the importance of the Dianiond v. Chakrabarty decision, and the spacethat it

openedup for patentson living things. Along with the impact that this had in the domestic

ag-biotechnologyandphannaceuticalsectors in the developedworld, robustIPR for living

things also increasingly becamea strategy of IPR promotion as part of an international
trade agenda.

2' Although such a scenariowould not be impossibleif we considerthe hypothetical scenariowhere a

patent is granted in a certain territory but not in another- there might be grounds to take such a caseto
the disputeresolution mechanism,as it would essentially involve the laws of one country interfering with
a foreign country company's ability to do businessin the first country.

71
Accordingly, one of the more controversialelementsof the TRIPs negotiationprocesswas
the issueof IPR provisions for living organisms.In this vein, one of the most significant
controversiesregarding the negotiation of the TRIPs agreementhad to do with Article
27.3(b) which allowed countriesto excludefrom patentability certain organismsaslong as
they provided for their protection through a suitablesui generis system(Eiutfield, 2000a).
Apparently the article was so contentiousthat it had a mandatoryreview of its provisions
built into it, scheduledfor five years after it came into force. The review itself seemsto
havestagnatedat the WTO, and it remainsunclearwhat its role is going to be, or how it is
to
going proceed.Indeed,one of the main reasonsthat the Cancunmeeting of the WTO fell

apart is widely acknowledged to have been the developing country's resistance to

undertakeany discussionson future of
aspects the WTO beforeaddressingcurrentongoing
concerns,none the least of which was to do with 27.3(b).

One of the principal sticking points in the review processrevolves around a question of

what would count assid generis under the terms of 27.3(b). Severalsubmissionsfrom the
Africa Group, Brazil and India have all focused on an agendathat does not allow for
patents on life, and claim this to be a legitimate sid generis system. For their part, the
United Stateshasbeenpushinghard to formalize what countsassid generis,advancingthe
International Convention for the Protection of New Varieties of Plants (UPOV), and
its
especially renegotiated form, UPOV '91 as the only legitimate form of sui generis
protection.

The following submissionfrom India outlines someof the relevant debates:

Patentsare granted under national patent laws and have territorial application only.
The TRIPs Agreement provides minimum standardsof protection for intellectual

property rights including while

patents, WTO membersare free to grant a higher level

of protection under their national laws. Thus, India is free to deny patents on life
forms, excepton micro-organismsandmicrobiological and non-biological processes,

as per the provisions of the TRIPs agreement (World Trade Organization Committee

on Trade and Environment, 2000, p. 2). 22

22As will be outlined in greater detail in Chapter5, India's position, like that of many other developing
countries,has shifted somewhatin the intervening years,appearingto now favour disclosureof origin,
rather than focusing on removing living things from patentability.

72
In many ways, this can also be seenasa contestationaboutthe way in which living things

canbe madegovernablein the form of property by IPR in living things in differentregions,

and by whom these decisions are made. In effect, the revision of the Article is also a
revision of what counts,or, moreover,what can count asa sid generissystemfor protecting
plants and animals.

One of the other sticking points has been a largely developing country led push towards

clarifying the relationship betweenthe CBD andthe WTO's TPý11?

s agreement.At issuein
this pushfor clarification, amongother things, is that the CBD considersgeneticresources
to be nationally sovereignresourcesandthat one of the objectivesis to sharethe benefitsof
thesegeneticresources.On the surface,it would appearthat this is incompatiblewith some
of the notions of individual property rights that are fundamental to IPR regimes.
Additionally, recognizing these rights as nationally sovereign ones grants considerable
leverageto thosecountriesrich in biodiversity. In so doing, the situation is alsoimaginable

wherethis limits the ability of other international market actorswho might seekto access
thesegeneticresourcesand might feel that they have an equal right to benefit from them.
This might include, for them, taking out a patentto protect the innovationsthat they make

with that biodiversity. As this report from United Nations Conference on Trade and
Development(UNCTAD) explains:

The Uruguay Round left open a number of issues (protection of biotechnological

inventions,protection of geographicalindications,disputesin casesof 'non-violation')

on which further negotiationswere called for as part of the 'built-in agenda' of the
WTO. Little progresshasbeenmadeon theseissues,despitethe interestofdeveloping

countries in clarifying, in particular, the relationship betweenthe TRIPs Agreement

and the Convention on Biological Diversity (2002, p. 58).

For their part, the Brazilians explain that:

Brazil considersthat TRIPs and the CBD should be mutually supportive and promote
the sustainableuse of resources.[ ... ] In the absenceof clear standardsdefining the
scopeof patentability of micro-organism (as discussedabove) and a framework in
TRIPs that clarifies the relationship of that Agreement with Members' obligations

underthe CBD, implementationof the TRIPs Agreementmay result in conflicts with

the Convention. [ ... J Brazil considersthat amending Article 27.3(b) of the TRIPS
Agreementto accommodateprinciples of the CBD will be a necessaryoutcomeof the

73
 review of that Article. Failure to clarify this relationshipmayturn out to bedetrimental
to both instruments. In order to explore a mutually beneficial relationship, one
importantstepwould be to ensurethat patentingof geneticresources
-plants, animals
or microorganisms- doesnot run counterto the basic principles of the CBD (World
Trade Organization Committeeon Trade and Environment, 2001, p. 5).

Setting asidethe TRIPs/CBD question temporarily, what the TRIPs agreementpartially

completes internationally is a transition, already underway in many of the developed

countries,to seeingliving organisms(or parts thereof) that have beensomehowmodified
by humanintervention, asintellectual property. Again, while this hasbeena featureof US

and other developedworld IPR for a long time, the international expansionof this notion
opensup new areasfor IPR capitalization,andnew ways of thinking aboutbiocapital on a
much more global scale.

Convention on Biological Diversity - how nature's property gains value

"Biological resources " includes genetic resources, organisms orparts thereof, populations,

or any other biotic componentof ecosysten7s

with actual or potential use or valuefor
humanity.

"Geneticresources"nieansgenetic material of actual or potential value.

-- excerptsfrom Article 2- Useof terms,CBD, emphasisadded

One way to approach the CBD is to examine it in terms of the work that it has done to bring

certain categories into being for international environmental parlance. For the purpose of
the current analysis of biopiracy, the category of genetic resources becomes especially

significant. Even the notion of the "environment" as such took on new kinds of
governmental significance after the first UN environmental meeting in 1972, and with the
creation of several international legal instruments such as the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) in 1973. As discussed in

the previous chapter, although thinking about these matters in terms of "the environment"
itself is a rather new formulation, it is one which has achieved substantial purchase in a

relatively short time. Perhaps central to this is the move to define what once would have
been considered "environment" as "biodiversity". The OxfordEnglish Dictionary tracesthe
history of the term's use as such:

74
 biodiversity&U, diversity of plant and animal life, asrepresentedby the numberof

extant species.
1987 Nalure 30 Apr. 871/1 Here *biodiversity increaseswith the introduction of

understory vegetation. 1988 E. 0. WILSON Biodiversity p. vi, The forum was

conceivedby Walter G. Rosen...Furthermore,he introducedthe term biodiversity[at a
forum held on 21-5 September1986in Washington,D.C.]. 1988ConservationBioL II.
307 If s becoming a byword in both houseand home, and a causec6l6breamongrain
forest researchers,but biodiversity has yet to receive the support it deservesfrom

marineecologists.1989 Thnes31 Mar. 5/4 The bio-diversitycampaignis anattemptto

bring the seriousnessof the global situation to the attention of people in all walks of
life. 1991Nature ConservancyMay-June21/2 The idea of sustainabledevelopment

which acknowledgesthat human economies,human cultures and biodiversity are

inextricably linked (2007).

As Guyer and Richards explain in a slightly more nuancedfashion,

The term 'biodiversity' came into generalusethrough the work of the distinguished
American biologist E.O. Wilson. From the outset the term was political as well as
biological. Wilson himself has explainedthat it was his attempt to try and protect a

specific academicinterest(in whole organisms)from the radical reductionist currents

in molecular biology then threateningto rule the roost (1996, p. 5).

The CBD was Probably the most significant development in the move towards

understanding"the environment" in terrns of biodiversity, and was one of the principal

developmentsto come out of the 1992 UN Earth Summit. Article I of the convention

explains:

The objectives of this Convention, to be pursued in accordancewith its relevant

provisions, are the conservation of biological diversity, the sustainableuse of its

components and the fair and equitable sharing of the benefits arising out of the
utilization of genetic resources,including by appropriateaccessto genetic resources
andby appropriatetransferof relevanttechnologies,taking into accountall rights over
those resourcesand to technologies, and by appropriate funding (Convention on
Biological Diversity, 29 December,1993).

Although this and the title of the convention itself suggest that it is devoted to the

conservationof biodiversity, in actuality the conventiongoesfar beyondconservationin its

75
purview (McGraw, 2002). Among other things, what the convention doesis to recognize
more explicitly a new categoryof resources(i. e. geneticresources)to mandatethe sharing
of the benefitsof theseresources,and also to position the value of theseresourcesin new
ways.

The story of the negotiationsfor the CBD really requiresa history unto itself, but there are
two developmentsin particular which are most relevant for the purpose of this analysis.
What follows will be a brief history of the CBD, but one which is gatheredaround

particular elementsof the CBD which introducea new category,geneticresources,andnew

ways to operationalizethis category,through presenting genetic resourcesas nationally
sovereignonesbut also oneswhose "benefits" should be shared.

Geneticresources

The notion of genetic resourcesis one that is integral to the CBD's objectives.However,

what counts as genetic resourcesis not so simply defined, agreedupon, or has a history
which is simple to trace and thus it can lend itself to multiple readings.What follows will
be an examinationof the ways in which recognizing geneticresourcesasa categorygrants

naturea new economic, but also a new political and ethical status.

The first international recognition of geneticresourcesasa categorycamethoughthe Food

and Agriculture Organization (FAO)'s creation of a Commission on Plant Genetic

Resourcesin 1983, whose first major action was the development and adoption of the
"International Undertakingon PlantGeneticResources"(Hamilton, 1993).Theobjectiveof
the Undertaking is "to ensure that plant genetic resourcesof economic and/or social
interest, particularly for agriculture, will be explored, preserved, evaluated and made

available for plant breeding and scientific purposes.This Undertaking is basedon the
universally acceptedprinciple that plant geneticresourcesare a heritage of mankind and
consequentlyshould be availablewithout restriction" (Food and Agriculture Organization,
1983,p. 1).

It is generallyacknowledgedthat the impetusfor this particular undertakingcameaboutto

addressa concernraisedby the countriesin the developingworld about the systemfor how
thesekinds of resourceswere being defined. Specifically, it hasto do with a tensionin how
the notion of commonheritagewas being usedat the time. The concernon the part of these

76
developing countries came about in recognizing the significance of an increasingly
lucrative agri-businessindustry, andrecognizingthat thevaluethat wasbeingderivedfrom
industry inherent in 23
the plants' geneticsthemselves. The original
this was one that was
source material from which the lucrative seedsstrains of Monsanto and their ilk were
derived came from genetic material that originated from several areasin the developing

world. This geneticmaterial was collectedin a variety of ways and at a variety of sitesover
a substantialperiod of time, but much of it was gatheredinto germplasmbanks such as
those associatedwith the Consultative Group on International Agricultural Researchor
InternationalRice ResearchInstitute. Seedcompaniesobtainedgeneticmaterialfrom these
banks under the principle that the resourcescontained within them were the common
heritage of mankind [sic], and used these genetic materials to develop proprietary seed

strainsthat were sold worldwide. The tensionin this systemarosewith a recognition that,
as Kloppenburg puts it, "[w]hereas germplasmflows out of the South as the 'common
heritage of mankind', it returns as a commodity" (1988b, p. 10). The surge of interest

aroundtheseissueswould becomeknown as the "seed wars", that were touchedon in the

previous chapter.

Much of the interest about this particular issue - that there was an apparent imbalance in

who was making a profit from genetic material in seeds- came about because of a book
published by Pat Mooney in 1979, called Seeds ofthe Earth. The book proved to be quite
controversial on the whole, but even those most critical of it, such as Frankel, who referred
to it as "propagandist and political but not a scientific statement [ ] full of half-truths and
...
untruths, spurious references and misleading quotations taken out of context"
acknowledges Witt's assertion that "it is Pat Mooney's book Seeds ofthe Earth ... where
many developing country delegates at the FAO learned of the whole topic of genetic
resources" (1988, p. 40). Though he does not substantially engage With it, what Frankel
hints at in this piece is that this manifests a transition from seeing genetic resources and

their attendant concerns as falling within the realm of science (which, according to Frankel,

operates entirely apolitically in the interest of preserving a broad genetic base for

agriculture) to a realm of politics which concerned itself with a new set of issues now
bundled with genetic resources, such as compensation and equity, which were articulated

alongside conservation. It is my sense that the importance of this shift cannot be

2' Thelinkswith the GreenRevolutionareobvioushere.TheGreenRevolutionwasdrivenby seed

strainsthat were made with germplasm,from internationalgermplasmbanks,that would originally have
come from the developing world. In many ways, concernsabout geneticresourcesfollowed on from those
about the GreenRevolution.

77
underestimated:the new recognition of geneticresourcesin this way essentiallymadethe
scienceof "genetic resources"all the more overtly political, or, in a way, brought nature
more visibly into the world of politics.

We also see here two starkly contrasting visions of common heritage.being presented.
Although all seem to be willing to support the idea that plant genetic resourcesare a

common heritage of mankind, there is a fundamentaldifference of opinion about where

theseresources,andultimately this heritagebegin and end.The fact that the basisfor these
commercial seedstrains cameoriginally from genetic material of the South is something
that the Southern countries felt justified their claims that this furthered a colonial-type
exploitation. The seedcompanies,and the developedcountriesin which they were based,
claimed that though the sourcegeneticmaterial from thesestrainsmay indeedhavecome
from seed banks which stored germplasm collected from all over the world, their
intervention into the breedingwas somethingwhich could not havehappenednaturally,and
thus obtaining IPR protection for the seed strains was justified as it rewarded their
innovation. In some ways, this can be seenas a fundamentalquestion about policing the

nature/culturedivide, and demarkingwherenaturestopsandculture beginswith respectto

geneticresources.By one reading,plant geneticresourcesas conu-nonheritageof human
kind are too "natural" to be subjectto IPR - they are, after all, products of nature(plants)

andthus not patentableor amenableto being seenasanyone'sspecific property,leastofall

that of a particular country. Privately developedstrainsof plants, however,areput together
with natural material which is apparently too socially worked upon to be considered
natural, and are thus invented and hence subject to patentability. In advancing this
particular reading of common heritagefor geneticresources,those interests(mostly from
the developedworld) are engagedin drawing boundariesaboutwhat.countsasnatural and
thus common heritage in international environmental governanceregimes. In contesting
this definition and claiming that if the original material was consideredcommonheritage
becauseit was found in nature,so to speak,then by the samelogic, the material produced
by the companiesshould be considerednatural as well, since they, after all, are plants all
the same.Theseand other contestationsaboutthe relationshipbetweennatureandIPR will
be dealt with more thoroughly at a later point (Chapter7).

Although it did not invent the category of genetic resources,the CBD made some very

substantialcontributions to how it came to be interpreted. The CBD also gave rise to

further conflicts about exactly what shapeour understandingof genetic resourceswould

78
take, and who would come to decidethis. In a way, the CBD takes stepsto make nature
thinkable in new ways. The notion of geneticresourcesasa sourceof economicvalidation
for natureis, of course, intimately bound up with the idea of property, and ultimately that

of IPR. IPR servesasthe meansof translationbetweengeneticresourcesandtheir benefits,

the ones,%vhichare ostensibly to be sharedas per the CBD's third objective. As McAfee
explains,

The equationof 'biodiversity benefits' with 'genetic resources',enshrinedin the CBD

text, representsa discursive conquest by the short-sighted instrumentalism of the
environmental-economicparadigm. It reducesbiological diversity to its purported
essenceas a commodity, presumablyseparablefrom its complex relationship with
other 'units' of nature, and valuable only to the extent that it is consumed(1999, p.
16).

The politicization of genetic resources continued though the 1980s in the negotiations that
led up to the completed CBD in 1992. One of the most pertinent contributions of the CBD

to the interpretation of genetic resources was to recognize, for the first time, that these

resources (however ambiguously understood) were nationally sovereign resources. Article

15, on Access to Genetic Resources, explains in section 1, "Recognizing the sovereign

rights of States over their natural resources, the authority to determine access to genetic

resources rests with the national governments and is subject to national legislation"

(Convention Biological Diversity, 29 December,1993). 24

on

This recognition was seenas a further victory of sorts for the countries of the developing

world, in part becauseareasof rich biodiversity are disproportionately located in these

It
countries. was also seen in this light becauseit was felt that this recognition could prove
economicallybeneficial in the future, aswell asperhapsgiving them somecontemporary
leverageby emphasizingthe impact of pastNorthern encroachmenton the "ownership" of

plants that originated in, and were largely the result of "research" and developmentby

practitioners (e.g. farmers or medicine people) of the developing world (Kloppenburg,

1991).

The initial proposal for what becamethe CBD camefrom the United Stateswho, in 1987,
sponsored a resolution at UNEP for "an all-encompassing convention on the conservation

2' The article continues in defining the terms under which genetic resourcescan be accessedby other
contracting,
C)parties.

79
of species" (McGraw, 2002, p. 11). Despite this fact, negotiationsabout what would be
included in the convention's mandatewere relatively quickly taken down a road that the
United Stateswas increasingly unwilling to tread (McConnell, 1996). The United States
declaredin 1991that it would not sign the CBD, having madethis decision in the lead-up

negotiations(McConnell, 1996).Therewere severalreasonsthat the US electednot to sign

the convention,but the most obvious at the time was that it felt that it would provide some
haranguesfor the US biotech industry. The issues of common heritage and national

sovereignty were a particular sticking point in this regard. The US feared that the
convention, and especially its recognition of genetic resourcesas nationally sovereign
resourceswould accordtheseresourcesa value which could.openup the door for potential
reparationpaymentsto the countrieswho provided the initial sourcematerialfor given seed
strains,or, it could openup the spacefor argumentsin favour of limiting the scopeof IPR
25
regimes plants. It is telling that the US hasproven leery of signing the conventiondue
for
to the threat that it might poseto their regimesof IPR, thus perhapsmaking all the more
explicit the increasinglink betweengeneticresources,nature,and IPR. Nevertheless,the
United States still sends sizable delegationsto all CBD meetings, often significantly

outnumberingthe delegationsfrom developingcountries,and maintains a keeneyeon the

goings on at the Convention.

Of course,asthe previous chapterhasoutlined, naturehaslong beenseenin various ways

asa resource,and for a long time prior to the CBD, as a national one at that. What setsthis
new conceptof resourcesapart is that it relatesspecifically to the genetic aspectof these
resources,somethingwhich createsa dramatically new category in our understandingof
our environment. No. longer, it would seem, are issues of resources limited by the
tangibility or evencorporeality of resources.Thus, geneticresourcesbecomethinkableand
contestablein new ways, in a word, they becomegovernable.

The notion of national sovereignty also opens up another field of contestation: what
happensin situations where the keepersof a particular genetic resourceshave a rather

ambivalent,or, worse, hostile relationshipwith the statethat governstheir territory? With

this recognition, the CBD set in motion a whole other territory of engagementfor many
groupswho had long beenfighting for rights to their land - they now also fought over the
geneticresourcescontainedtherein.

25Interestingly, the debateabout 'common heritage' was continued at the CBD, and ultimately the term
common heritagedoesn't figure in the agreement,having beenreplacedwith the apparentlyless
contentious'common concern'.

80
Similarly, the CBD's objective that the benefits of geneticresourcesbe sharedalso opens

up a considerablespacefor contestation.Defining the parametersand practice of benefit

sharing is ongoing in the CBD, and likely will be for sometime. Indeed, it is also widely
speculatedthat another reasonfor the US recalcitranceto sign the Conventionhas to do
with concernsover the "sharing of the benefits" issue, especially as it pertains to IPR
concernsaswell asconcernsover technologytransfersaspectsof the convention,which are
also bound up with the notion of benefit-sharing.The importanceof benefit sharingto the
ideaof biopiracy however, is key, asit gavea lot of legitimacy to claims of biodiversity as

a potentially lucrative resourcewhosebenefits should be sharedequally.

Ultimately, however,the analysisput forth heredemonstrateshow the CBD canbe seento

be operatingat many levels simultaneouslyto openup a new territory of engagementin the

ongoingcontestationabouthow, by whom, and in what waysour environmentwill cometo

be governed.

Bioprospecting - how nature's value, via property, gets shared

As the previous sectionelucidated,the CBD brought aboutnew perspectiveson nature(as

biodiversity), geneticresources(and their nationally sovereigndomains) and also on how
these resources,in a general sense,should be distributed (via benefit sharing). Despite
having defined its objectives in such a way, the CBD left unansweredquestionsof how
these objectives would be implemented. The third objective of the CBD, the fair and
equitable sharing of the benefits from the use of genetic resources,has proven to be no
exception.It was into this particular vacuum that sprungthose advocatingthe practice of
bioprospecting,championingthe commercialusesof biodiversity,which will be thesubject

of the following section.

As is widely acknowledged,the processof collecting plants (medicinal or otherwise)from

the regions of what now make up the developing world is not a new process.Nor, as
evidencedby the various professionaland academiccommunities(and theirjournals such
as the Journal of Ethnobiology, begun in 1981) that arise around the discipline of
ethnobiology is the notion of connectingtraditional or localized knowledge for potential
medical or agricultural benefit really new either. There is even a Society for Economic
Botany, foundedin 1959to "foster andencouragescientific research,education,andrelated

81
activities on the past,present,and future usesof plants, andthe relationship betweenplants
andpeople,and to make the resultsof suchresearchavailableto the scientific community
andthe generalpublic through meetingsandpublications" (Society for EconomicBotany,
2005).

Practicesof collecting and re-disserninationgbiological materials in various forms were

widespreadlong before the conceptsof ethnobiology, ethnobotanyand economicbotany

emerged and enlisted their devotees(Parry, 2000,2004). For example, even a rather
cursory visit to the website of the Royal Botanical Gardensat Kew tracesthe garden's
history back severalhundredyears,andindicatesthat the economicbotany collection, first

openedin 1847 "illustrates the extent of human use of plants around the world" (Kew,
2005). They go on to indicate that "while the majority of the objectswere acquiredduring
the 19thand early 20th centuries,the Collections continueto grow today andnow number
over 78,000 objects. These include present-day material as well as archaeological
specimensandnineteenthcentury curiosities" (Kew, 2005). Looking aroundelsewhereon
the site, you can seethe director of the garden's expressionof delight at being named a
UNESCO World Heritage Site in 2003, somethingwhich "recognisesthe importanceof
Kew's uninterrupted contributions to botanipal and environmental science since 1759,
togetherwith its unique collection of plants from all over the world" (Kew, 2005). Indeed,
this is not a phenomenonlimited in any way to the United Kingdom, or even to former
colonial powers. Similar botanical gardensexist all over the developedworld, with manyof
the most prominent in the United States,and they presentsimilar histories of collections
kept for a similar variety of reasons- scientific enquiry, prestige, exoticism, etc.

In a more contemporary setting, the early 1990s saw a kind of (re)turn to nature for

pharmaceuticaldrug discovery. This processwas called bioprospecting,andwas designed

to capitalize on new advancesin the technology of chemical screening which made
screeningfor bioactive compoundsmoreefficient. Thesetechnologicaladvancesmadeit so
that companiescould screenplants much faster and more effectively, thus increasingthe
possibility of finding a medically viable chemical basedon screeningof plants from areas
of rich biodiversity in the developing world. It was also contendedthat when scientists
in
worked tandemwith traditional peoples,their efficiency of pinpointing medicallyviable
compoundsincreasedby asmuch as400 % (Kloppenburg, 1991;Shiva, 1997)andthat, by
1991, "roughly 74% of the 121 plant-derived compounds currently used in global

pharmacopoeiahavebeendiscoveredthroughresearchbasedon ethnobotanical.
information

82
on the useof plants by indigenouspeople" (King, 1991). Bioprospectingwasalsoseenasa
way to operationalize,via benefit sharing,the third goal of the CBD, that of sharing the
benefits of genetic resources(Reid, 1994).

One of the seminal texts responsiblefor fueling the initial enthusiasmfor bioprospecting

was the World ResourcesInstitute (WRI)'s Biodiversity Prospecting: Using Genetic

Resourcesfor Sustainable Development,published in 1993 (Reid, Laird, Meyer et al.,
1993). The book was an edited volume, and was a contribution to the UNEP Global
Biodiversity Strategy in May 1.993. In essence,the book was advocating biodiversity

prospecting(the compoundingof which gives us the word "bioprospecting") asa strategy

for environmentalpreservation.The premiseof the book was "that appropriatepoliciesand
institutions are neededto ensurethat the commercial value obtained from genetic and
biochemicalresourcesis a positive force for developmentand conservation"(Reid, Laird,
Meyer et al., 1993).The introductory pieceof the book outlined the goalsof "biodiversity

prospecting" as being "the exploration of biodiversity for commercially valuable genetic

and biochemical resources"- citing ThomasEisner's earlier advocacyof what he called
"chemical prospecting" (c.f. Eisner & Beiring, 1994). They also felt that "done well,
biodiversity prospectingcan contributegreatly to environmentallysounddevelopmentand

return benejItsto the custodiansofgenetic resources (Reid, Laird, Meyer et al., 1993,p. 2,
emphasisadded).

The premiseof the chemicalprospectors(and later the bioprospectors)is basedon a sense

that if the (actualor potential) commercialbenefitsof biodiversity are recognized,this will
provide an impetus to preservethe environment with the expectation that the preserved
biodiversity would be able to pay for itself if it was dealt with properly, therebyjustifying
its conservation. This is an example of what McAfee (1999) calls "green
developmentalism".This stanceon the merits of bioprospecting followed closely along

with (andto a large extent coevolvedwith) the CBD's goal to ensurethe equitablesharing
of the benefits of biodiversity as detailed in the previous section.

For its part bioprospecting, as a set of practices can be seen to fundamentally include the

promissory notion of 6iocapital (Thompson, 2005), but also includes what Franklin (2003)

refers to as ethical biocapital, a set of practices that build ethical concerns into the
"science" that is at issue. In the case of bioprospecting the biocapital value will come from

the identification of and research on bioactive agents isolated from previously un- or under-

83
studied plants, possibly flagged by some kind of TK. The promissory element of this
biocapital comesabout as an inherentpart of the bioprospectingprocess- the notion that
there is something that is out there that is worth "discovering", and that this could
potentially reaplucrative rewardsfor thoseinvolved. The practice of bioprospecting,in its
earliest incarnations(as opposed,perhaps, to its current catch-all signifier as a shorthand
26
for collecting expeditions) hadbenefit sharingasoneof its most fundamentaltenets.This

wasjustified in ethical terms as being a way in which thosewho were the stewards,so to
speak,of this biodiversity should be rewarded, or at the very least not exploited, for the
knowledge and genetic resourcesthey were now offering the world. This is effectively
demonstratedin Hayden's (2003b) study of a bioprospectingarrangementin Mexico. The

practiceof bioprospecting,however, as
wasnot uncontroversial, some of the casestudiesin

the next chapter, such as that of ShamanPhan-naceuticals,will elucidate. One of the

persistent challenges for bioprospecting as a practice designed to harmonize with the
objectivesof the CBD was to clarify someof its tenets,namely how could the "benefits" of
biodiversity be measuredand how could it be assuredthat thesebenefits, whateverthey

were, would be fairly and equitably shared,and with whom.

It is in this way that bioprospectingsetitself apartfrom earlier kinds of collectingof nature.

In her ethnography of a bioprospecting program in Mexico, Hayden describes the
"ambivalent promise of bioprospecting-a distinctly late twentieth century practice that

stands at the very centre of contemporary contests over indigenous rights, corporate
accountabilities, and ethical scientific research" (2003b, p. 1). Significantly, Hayden
further points out that its newnesscomesin that now the taking of thesegeneticresources

comeswith a "mandate to give back" (2003b, p. 1).

It can alsobe said that a certain elementof its "newness" comesaspart of its link with IPR
to
as a means recognize the benefits of particular genetic resources.This comesabout as
part of the practice that would have nature justify its own existenceand the reasonsfor its

conservation by demonstratingits economic potential. This potential would be recognized

ostensiblythrough its its
pharmaceuticalapplicability, and value in this regard would be

actualizedthrough the lucrative processof selling patented medicines. Indeed,one of the

most prominent feature of many bioprospecting projects is to develop new drugs that will

26Indeed,the Oxford English Dictionary (OED) definesbioprospectingas "noun the searchfor plant and
animal species from which medicinal drugs and other commercially valuable compoundscan be
obtained". This particular definition has led to increasingmisunderstandingsand misrepresentationsabout
the origins of bioprospectingas a practice.

84
be broughtto market.27The Natural ProductsBranch of the National CancerInstitutein the
United States,which was responsiblefor someof the first collecting projectsthat could be

seento fall underthe rubric of 28

bioprospecting explainsin their "QuestionsandAnswers"
section,that they are :

Responsiblefor coordinating programsdirected at the discovery and developmentof

novel, naturally derived agentsto treat cancerandAIDS. TheNPB areresponsiblefor:

1) acquiring crude biological materialsof plant, marineandmicrobial origin forNCI's
drug screeningprograms;2) coordinating researchdirected toward isolation of new

agents;and 3) assistingin the large-scaleproduction of new agentsfor preclinical and

clinical development(National CancerInstitute, 1999).

What also seemsto be relatively new about this practice is the notion that thesetypes of

collections and even this processitself might be problematic. Their problematic statusis
renderedby severaldifferent developmentstwo of which havealreadybeenmentioned,the
encroachmentof IPR into living things, and the (re)valuation of genetic resourcesof
biodiversity. In addition to thesetwo new developments,thesekinds of collection become

more problematic when we considerwhat Parry (2004) calls the fate of the collections -
concernsaboutwhat will happenwith, andwhat the is
status of, the vast amountsof genetic
in
material previously collected and now stored germplasmbanks aotted throughout the
(mostly developed)world.

Conclusions

This chapter examined the movementswhich contributed to reshaping the conceptsof

nature,of property, and of how thosetwo relate in the valuation (and redistribution of that
value) of the "benefits" of nature/biodiversity.In the first section,dealingwith theexpanse
in scopeand scaleof IPR, I demonstratedhow the notion of what could be patentedwas

reshaped,and how the territorial reach of the IPR paradigm was greatly extended:The
secondsectionshowedhow the ideaof natureandhow it is valued was similarly reshaped.

27This promissory notion of value coming from biodiversity has also led to persistentconfusion about
bioprospectingin practice. As writers such as Greene(2002; Greene,2004) have pointed out, it is
extremely unlikely that compoundsthat are found via bioprospectingwill actually lead to any kind of
commercial application. Despite the fact that blockbusterdrugs have proven elusive in bioprospecting,the
practice still generatesa great deal of expectation,which addsto the confusion about the 'value' of
grietic resources.
ý In actuality, the NCI's natural products branch actually began its collecting operationsin the 1950s,
long before the notion of benefit sharing, and has actually in a way had to renegotiatetheir practicesto
deal with new a new climate in drug discovery.

85
The creationof the CBD, especiallyits categoryof "genetic resources"and its recognition
that these resourceswere, to a large extent, sovereign ones, was instrumental in this
reappraisalof nature's value. Finally, the third sectionpicked up on anotheraspectof the
CBD, the notion that the benefitsflowing from geneticresourcesshould be sharedequally,

and examinedthe roots of bioprospecting-a set of practiceswhich were set in motion to

operationalizethis aspectof the CBD.

In general, these last two chaptershave situated the emergenceof biopiracy within a

contemporaryhistory that seesit as emergingin relation to transitions in IPR, but also in

relation to shifts in how natureis perceived,understood,governed,andcapitalizedupon.In
addition, they have reflected on how it emergesin relation to various setsof practices,such
as bioprospecting,which have come about aspart of thesesametransitions.The chapters
which follow will build on this foundation, andwill begin to examinethe relatedquestions
ofjust how the allegation of biopiracy is deployed,and what, exactly, arethe consequences
of that deployment.

86
Chapter 4 -An anatomy of biopiracy and its amplification

In 1999, an article in the lifestyle section of the Seattle Post-Intelligencer wrote about the

process of including new words in the Oxford English Dictionary (OED). The article
explained that one of the words that was being considered for inclusion in the 2000
dictionary was biopiracy, defined as "the plundering of developing nations by
multinationals in search of natural products with potential commercial value" (Goodnow,
1999).29

As part of the broaderattemptto chronicle the rise of the term and the consequences
of its
deployment,this chapterwill take a closer look at the term's emergence,and will sketch

out how the term camefrom being unheardof in the early part of the 1990sto its becoming
included in one of the most significant dictionaries of the language by the end of the
decade.Thus,the purposeof this chapteris to pull together,for the first time, the historical
trajectory of the term biopiracy.

As such, this chapter will initially look in greater depth at some of the key casesof
biopiracy that contributed to shaping the idea and how these caseswere addressedby
NGOs who were key actors in the term's deployment.Following that, I will examinethe

emergenceof the term in the media, and the ways which the concepthas beentreatedby
the popular media through the last decade.Finally, I will concludeby showing how this is
relevantto the take-upof the term, andhow it will inform the subsequentchapter'sanalysis
of the deployment of the term. It should also be noted that several examples of the
biopiracy discoursewill be alluded to here for the sakeof historical continuity, but I will
defer a deeperanalysis of them to the next chapter,when I examine in greaterdepth the

effects that the deployment of this term have had.

29Its current form, in the Compact Oxford Dictionary is : "noun bioprospecting, regardedas a form of
exploitation of developing countries" (CompactOxford EnglishDictionary,2005). It is alsorecognizedby the
2000 fourth edition of the American HeritageDictionary as "noun: the commercial developmentof natural
occurring biological materials,suchas plant substancesor genetic cell lines, by a technologically advanced
country or organizationwithout fair compensationto the people or nations in whose territory the materials
were originally discovered"(AmericanHeritage Dictionary of the English Language,2000).

87
It is additionally important to note that the analysis presentedhere should be seenin the

contextof the historical transitionsintroducedandoutlined in the last chapter.That chapter

introducedsome historical transitions to do with

a) the CBD andthe consequent"geneticresourcisation"of biodiversityaswell

asthe ascription of biodiversity rights to national governments(separatingit thus
from the "common heritage" model that prevailed previously);
b) the adventof bioprospectingasa processthat would both provideresources
and researchleadswhile also making manifest biodiversity's ability to "pay for
itself' and;

C) the "globalization'?of an IPR regime ever-increasingly calibratedto deal

with IPR claims on new aspectsof biotechnology, many of which had living
components.This was achievedlargely through the advancementof the notion of
a global regime that prescribedminimum IPR requirementsfor membernations
of the WTO in addition to a number of other less high profile agreementson
plants, etc. that had significant IPR components worked into their bilateral
negotiations.

It was, in large part, the convergenceof thesethree historical transitions that openedthe

spacefor biopiracy's emergencein the early to mid 1990s.

Before progressingwith this anatomyof biopiracy it will be useful to provide a conceptual

frame to aid in interpreting the eventschronicled below. This will be especiallyimportant
becausethe task of this chapteris to engagewith the rather slippery processof attempting
to chartthe rise of both a term, biopiracy, and what it means- the conceptthat it expresses
with all assumptionsand understandingsthat come bundled with it.

For the sectionon famous casesand media representations,I will borrow someanalytical
tools from a rather "old" sociological concept, that of "signification spirals", as most
effectively used by Hall et. al. (1978) in their study on the rise of "mugging" as first a
concept,then a category of crime in Britain. While the parallels between biopiracy and
mugging might seem initially to be obscure,their analysis of how mugging came to be
thought of asit did can elucidatethe questionat hand aboutjust how biopiracy cameto be
understoodas a problem.

88
In developingthe conceptof the signification spiral, Hall et. Al. were influencedoriginally
by Wilkins' notion of the devianceamplification spiral. Wilkins explains the escalation

notion as such:

In the village information about the systemisftd into the system,and it is likely that
this information influencesthe perceptionsof membersof the systemwith regardto
the natureof the system.Informational feedbackloops may form part of the basisof
experienceto which the conceptof devianceis itself related (1964, p. 85).

The idea that the information which becomesinfluential is fed into the system,and thus

contributesto its own escalationleadsto Hall et. al.'s insights,which will be applicableto
the biopiracy discourse in a few interesting ways. For those familiar with Hall et. al.'s
applicationof the notion of "signification spirals" andwith their argumentin general,it will
be obvious that there are severalaspectsthat do not apply to the analysis in this caseand
thus the framework, as with much social analysis,is not an altogetherperfect fit. It will,
however,help to introduce conceptsandanalytical devicesthat are sufficiently useftil asto
be of some merit in understandingthe rise of biopiracy and thus the introduction of
"signification spirals" hereshouldbe seensimply asa tool ratherthan a theoreticalexercise
in itself

The most significant discrepancybetweenHall et. al.'s useof the conceptandmine is that,
in their analysis,Hall et. al. advancethe term as one that is usedby the stateapparatusto

reinforce a hegemonicideal targetedat a specific minority. Although theseconceptswere

developed in relation to cultural studies, my senseis that they can be used to assess
to
reactions new developmentsin biotechnology and the biosciences,particularly when
theseintersectwith deeply held ideasabout nature and the commons.

The way that I will be using it here would most likely be, in Hall et. al.'s terms,

constitutive of a form of counter-hegemonywhere a specific minority is deploying

terminology againsta larger state,corporate,or international apparatus.This is, of course,
not the traditional way in which the conceptis used.In effect this is deliberatelyturning the
spiral on its head;where activists use deliberately simplified and subsequentlyamplified
versionsof the scopeand scaleof the problem (particularly over-emphasizingthepotential
value of patentedlifeforms and the scaleof "ownership" conferred by patents)to have it
relate to what they seeas the greaterissueof limiting patentson life

89
When that difference is setaside,then the notion of "signification spirals" is actually quite

applicable to the context studied in this chapter. In their analysis, Hall et. al. identify a
"signification spiral" as a "self-amplifying sequencewithin the area of signification: the

activity or event with which the signification deals is escalated- made to seem more
threatening- within the courseof the signification itself'(1 978,p. 223). Additionally, they
identify severalelementsthat are often containedin "signification spirals" including .....
.
the identification of a specific concern; ] 'convergence',or the linking, by labelling, of
...
this specific issue to other problems; [ ... the notion of 'thresholds; which, once crossed,
can lead to an escalatingthreat the prophesy of more troubling times to come if no
action is taken..." (1978, p. 223). They then continueto foreground'convergence'(1978,p.
224) and 'thresholds' (1978, p. 225) as the two escalating mechanismsof the spiral,

somethingthat will be particularly pertinent in the forthcoming analysisof the emergence

of biopiracy.

In large part, the signification spiral in this caseis not evenas dependenton conventional

media exposureas it was in Hall et. al.'s analysis,largely becauseof the activists' expert
use of "new" media - especially email, online newsgroupsand the world wide web - to
disseminatetheir message.In a way, this helps bridge the gap betweenHall et. al's notion
that the signification spiral is seenin more conventionalmedia asrepresentedby the state
and my contention that the developmentof biopiracy is in this sensea signification spiral
turned on its head, where a small social group is actually able to have a great deal of
influence on broader state,international or corporatebusinesspractices.

Somefurther insight into this can be provided by looking briefly at the conceptof "moral

panic" which is a closely relatedconceptthat emergedaroundthe sametime andwas most

famouslyusedby Cohen(2002) in his Folk Devils andMoral Panics. Although in his book
Cohenstudiesthe moral panic aroundthe conflict betweenthe Mods andthe Rockers,what
his studywas also useful in doing was analysingthe ways in which particularincidentscan,
for some actors, be seen to speak for deeper and more endemic social ills. In his
introduction to the third edition, Cohenreflects a bit on the role that "good" moral panics

can play in reflecting on his later application of the term to studies of mass atrocities.
Although the objects of study he is talking about here might seem far removed from
biopiracy, thinking about moral panics in this way points to something which might be

useful to think with when consideringthe deploymentof biopiracy as a concept;

90
 Instead of exposing moral panics, my own cultural politics entails, in a sense,

encouragingsomethinglike moral panicsaboutmassatrocitiesand political suffering

- and trying to expose the strategies of denial deployed to prevent the
acknowledgementof theserealities (Cohen, 2002, p. xxxiii).

The notion that moral panics can, in effect, be selectively deployed, but not only by

comparativelypowerful actors such as the mass media or "the state", is somethingwhich

the
resonatesNvith study of biopiracy that is in
presented this thesis.

Like many moral panics,biopiracy getsenabledby a number of inter-relatedfactors. It is

the combinationof theseand other factors,discussedaboveand in the rest of this chapter,
which make this particular form of "moral panic" or signification spiral a useful way of
thinking about biopiracy. Biopiracy will be shown to be a concept that came about at a
particular moment in time, enabledin part by an ability to exploit new forms of media,and
was able to link itself up with related concerns, such as GMOs, which were gaining
prominenceat the time.

Finally, it is important to note herethat I am not attemptingto usethe ideaof "signification

spirals" to defusethe argumentsof thosethat advancethe fight biopiracy.

against Although

one could easily use this conceptto consolidatean idea that the argumentfor biopiracy is

no more than an alarmist "moral by

panic" advanced self-interestedactivists, it is not my
intent to advancethis analysishere. Rather,I would follow Hall et. al.'s explanationthat
"signification spirals do not dependon a necessarycorrespondencewith real historical
developments[ ] they may represent such real connections accurately, or they may
...
mystify by exaggeratingthe nature or degreeof the convergence,or they may produce
altogetherspurious identities" (1978,p. 224). In the caseof biopiracy, my contentionis that
the advanceof biopiracy most assuredlyhad somebasisin reality but is equally important
for the rhetorical strengththat its imagery provided the activists.

The origin of biopiracy

It was the championing of the processof bioprospectingthat first elicited protestsfrom a

numberof groupsconcernedabout issuesaroundpatenting life and that led to the coining

of a new tenn: biopiracy. The tenn appearsto have made its first appearancein a RAM

91
Conununiqllj30 of November 30,1993 titled "Bio-Piracy: The Story of Natural Colored
Cottons of the Americas", that dealt with patents on naturally coloured cottons. According

to RAFI, a plant breeder, named Sally V. Fox, obtained patents on two varieties of natural

coloured cotton that she derived from seedsthat she got from "a collection held by the US
Department of Agriculture in California". Thus, we see that in this Coninniniqui, RAFI
first use the term "bio-piracy" to address this issue under the rubric of their longstanding

concerns about plant breeder access to traditional germplasm held in seed banks (Rural
Advancement Foundation International, 1993).

Thesegroups,however, originally advancedthe term more as a sort of sarcasticparody of

bioprospecting(seefor examplethe RAM communiqu6from November 30,1994 entitled
"Bioprospecting/Biopiracy and Indigenous Peoples). Taking issue with the notion of
bioprospectingas a conduit for environmentaland/or geneticpreservation,development

and indigenousempowerment,RAFI claimed at the time:

Northern-basedinstitutions seekaccessto tropical biodiversity for the primary purpose

of developing patented and profitable products. No matt& how convincing the

rhetoric, conservation and equity are secondaryissues.Under the vast majority of
current bioprospecting agreements,when indigenous peoples share inforination or
genetic materials they effectively lose control over such resources,regardlessof
whether or not they are compensated(I 994a, p. 1).

RAM also discussedbioprospecting's connection with the CBD and referred to the

coriventionas a "boost for bilateralism and biopiracy". In making this claim, they explain
that the convention"promotes bilateral deals(commercial contractsand other agreements
for accessto biodiversity) while failing to provide a strongplan of action basedon broad,

multi-country collaboration (especiallySouth-South)for accessto -and developmentof -

biological diversity" (Rural AdvancementFoundation International, 1994a).

RAFI has been remarkable in the successthey have had positioning themselves as
influential actorsin the world plant and geneticIPR system.In large part this built on the

work that they, and the individuals involved with them (especially director Pat Mooney),
had already begun dealing with such as issues of. genetic erosion, consolidation of

ownershipin agriculture andother concernsaboutindigenouscommunitiesandagriculture

30'Communique' is the term given by RAFI/ETC to their occasionalreports, papers,etc.

92
(Fowler & Mooney, 1990;Mooney, 1983).In fact, Mooney is often cited asthe originator

of the term biopiracy, and a large part of its initial deployment came in responseto a US

governmentpatent on the cell line of a Panamanian Guaymi woman, patent number WO

92/08784.JeanChristie, then RAFI's director of international liaison explainedat the time
that they hadbeenworking with the AmericanType CultureCollection3ldatabaseto search
for patentclaims on microorganismsand"it was in the courseof searchingthe ATCC data
for microorganismsfrom "India" that RAFI stumbledacrossthe patent claim on a Guaymi
"India(n)' woman's cell line" (Christie, 1996). The patent itself came out of the Human
GenomeDiversity Project (HGDp)32initiative, and was grantedto the US government's
Secretaryof Commerce,who as a matter of coursegets listed as inventor on government

research.Specifically, the patent was on an immortal cell line derived from a Guaymi

woman. After RAFI alerted the Guaymi Congress,they joined with RAFI in protesting
the
against patent,and eventually hadthe US governmentwithdraw their applicationfor the

patenton the cell line (Christie, 1996).The Guaymi patentwas also related,via the HGDP,

with another that was heavily problematized by RAFI, a patent on an immortal cell line
derived from a sampletaken from the Hagahaitribe of PapuaNew Guinea(Jenkins,1988;
Pottage,1998).

RAM's position at the vanguardof this partipular movementwas exemplified with a report
they produced for the United Nations Development Program (UNDP) on conserving
indigenousknowledge (Rural AdvancementFoundationInternational, 1994b).This report

proved to be quite influential in part becauseit was one of the first to draw attention to
patents that allegedly did not give adequateacknowledgement to the RAM claim that
"almost all biodiversity in traditional areas has been discovered, developed, and/or

protected by indigenous communities" (Rural Advancement Foundation International,

1994b,p. 5). In particular, it focused on patentsthat were taken out in whole or in part
basedon some form of TK of a plant's bioactivity. This particular report also focused

attention on a number of other issuesthat have been interwoven with the discourse of
biopiracy, namely the possibleproblemswith the IPR system'sfocus on individual rather

31An American based 'patent culture repository' institutions that exist to store samplesof biopatented
-
materials.
32A project aiming to "investigate'the variation occurring in the human genome by studying samples
collected from populations that are representative of all of the world's peoples" and to housea collection of
thesesamples.The initiative was precipitatedby a sensethat many of thesegenetically diversepopulations
were close to extinction, and set out to collect samples (blood, hair, cheek swabs) from several identified
"isolatesof historic interest" (Mls), asthey referredto the definedtribes. For more info on the HGDP, seein
general (Christie, 1996; Human Genome Diversity Project, 1993; Rural Advancement Foundation
International, 1994a, 1994c)

93
than collective rights, aswell asthe possibleproblemsof overly broad patentsandpatents
on life on the whole.

There were severalother organizationsthat were involved in the original propagationof the
term biopiracy. For example,althoughnot aswidely cited asRAR, an organizationcalled
Cultural Survival were important in propagatingthe conceptthrough the early and mid-
1990s.In 1991,they devoted an entire issueof their main publication, Cultural Survival
Quarterly to "Intellectual property rights: The politics of ownership" which featured

articles from key players in the field, amongthem StephenKing. King was the founderof
ShamanPharmaceuticals,responsiblefor oneof the most famousbioprospectingschemes
in the Amazon, which has beenextensively documented,and will feature prominently in
the biopiracy timeline below (Conklin, 2002; Dorsey, 2001,2003).

Key cases

Given the fact that it is widely acknowledgedthat plant collection for various purposeshas
been going on for a considerableamount of time without much incident, why was it this

particular configuration of actors, laws and biological material that elicited this form of
response?This sectionwill addresssomeof the reasonsthat it was theseactorsand these
casesin particular that were so passionatelydebatedin the 1990sand early part of the
2000s.

In particular, this section will considerhow the understandingof biopiracy as a problem

was advancedconsiderablyby referenceto specific instancesof biopiracy and the use of

thesecasesasexamplesof perceivedbroaderproblemswith the patentsystem.As a result,
there were several fairly well publicized patent challengesadvancedby various groups
acting in the nameof preventing biopiracy. In large part, theseparticular caseswereseento
be seminalin the fight againstbiopiracy becauseof the perceivedlegitimacy conferredon
the conceptby some kind of official legal recognition. As will be explained below, the
activists involved were highly tactical in their choice of these cases.They appearto be
chosenin largepart becauseof the chanceof successlegally speaking,but alsobecauseof
the perceivedsymbolic resonanceof theproductsbeingpatented.Thechallengersappeared
to grade their chanceof successbasedon a perception that the patent claims are overly
broad (and thus more susceptibleto challenge)and also the challenger's ability to access

94
 sufficient material that would demonstrateprior art (thus negating the "novelty" element
required for patentability).

Chronicledherearethree of the most significant biopiracy patentsfrom the 1990s,namely

neem,basmatiand tunneric. In addition to patentchallenges,activist groupssuchasRAM

, attacked high-profile bioprospecting endeavours,and thus promoted the link between
bioprospecting and biopiracy. In light of that, I also chronicle here three key

programs/organizationswho were accusedof biopiracy namely ShamanPharmaceuticals,

the International Collaborative Biodiversity Groups and the pharmaceutical company
Merck via their arrangementwith the CostaRican INBio organization. In many ways, the

public confrontation that the activist groups engagedin was an example of the way in
which this canbe seenas a "signification spiral" - wherethe exposurethat this instanceof
biopiracy was given servedto escalateit even further. Of particular note in the following

examples will be the way in which activists focus on linking their argumentsabout
biopiracy to other concernssuch as colonialism and persistentdeveloping-world poverty
(an exampleof "convergence").Also evidentfrom the following historiesis the delineation

anduseof thresholds,somethingthat is alsocentralto the broadercampaignengagedin by

theseactivist groups.

Contested Patents

Neem (Azadirachta indica)

Perhapsmost celebratedamongthe pantheonof famousbiopiracy casesis neem.The case

of the neempatentwas seenasproviding an excellent test casefor biopiracy activists, and

can be seenas an excellent exampleof the role of celebrity-style casesin popularizing the
idea of biopiracy. The neem tree itself is steeped in the cultural, agricultural and

pharmaceutical lives of many peoples in Burma, India and beyond. It is generally

acknowledgedthat the tree hasbeenusedwidely in thoseregions for a myriad of purposes,
from use as teeth cleaner all the way through uses as a spermicide and fungicide. In

addition, the tree is also prized as a shade-giverand source of firewood. Although its
usefulnesswas widely realized in India, the neem tree began to capture international
imaginationswhen it was exportedto various parts of Africa at various points in the 20th

century. Its hardiness and multi-usefulness proved helpful, and its insecticidal and

95
fungicidal propertieswere also increasinglynotedthrough this period (National Academy

of ScienceOffice of International Affairs, 1992).

Mirroring the turn to "nature" for pharmaceuticals evidenced in the bioprospecting

enthusiasmof the early 1990s,therewas a similar turn to "nature" in researchon pesticides.

In this context, neem generateda great deal of excitement as it was seento be one of a

generationof "biological pest-controlmethodsthat can do the job with fewer side effects"
(Stone, 1992). The tree was apparently so exciting that it prompted the US National
Academy of Sciencesto concludethat it was a "tree for solving global problems" and that
it "may usherin a new era in pestcontrol, provide millions with inexpensivemedicines,cut
down the rateof humanpopulation growth, andperhapsevenreduceerosion,deforestation,
992).33They recognizedas well
and the excessivetemperatureof an overheatedglobe"(1
the Indian connectionof neem,and explained:

That neemcan foil certain insect pestsis not news to Asians. For centuries,India's
farmershaveknown that the treeswithstandthe periodic infestationsof locusts.Indian

scientiststook up neem researchas far back as the 1920s,but their work was little
appreciatedelsewhereuntil 1959 when a German entomologist witnessed a locust
plaguein the Sudan.During this onslaughtof billions of winged marauders,Heinrich
Schmutterernoticed that neemtreeswere the only greenthings left standing.On closer
investigation, he saw that although the locusts settled on the trees in swarrns,they

always left without feeding. To find out why, fie and his studentshave studied the
componentsof neernever since(National Academy of ScienceOffice of International
Affairs, 1992).34

Indeed it was in India that the Western agricultural possibilities of neern were first
imagined,when Robert Larson (later to be namedasan inventor on the WR Gracepatentin

question)first heardof.its propertieswhile working in India andbeganimporting seedsinto

the US to be assayed.The attention was also sharedby other researchers,and there were
even several neern congressesheld in the early 80s to discuss its various applications

33Although they went on to qualify this statementby sayingthat the promiseswere still rathervagueandthat
they meanttheir study to be one that helpedto advancethe realization of that promise,the level of enthusiasm
is clear, if only from the title of the book alone.

34The quotecontinues:"Schmutterer'swork (as well asa 1962article by three Indian scientistsshowing that
neemextractsapplied to vegetablecrops would repel locusts) [(Pradhan,Jotwani, & Rai, 1962)] spawneda
growing amountof lively research.This, in turn, led to three international neernconferences,severalneern
workshopsand symposia,a neemnewsletter,and rising enthusiasmin the scientific community. By 1991,
several hundred researchersin at least a dozen countries were studying various aspectsof neem and its
products.(National Academy of ScienceOffice of International Affairs, 1992)"

96
(Stone, 1992).W. R. Gracebecameinterestedin what Larsonwas doing, and in particular
the discovery of the presenceof a natural pesticide, azadirachtin,presentin neernseeds.
They bought the product rights from Larson, and began marketing it as Margosan-0 in
1992.Grace'sNEEMIX was the first neem-basedproduct clearedin the US for useon food

crops (Wolfgang, 1995).

In 1994,the EuropeanPatentOffice grantedW.R. Graceand Co. a patent describedas

A novel insecticideand foliar fungicide derived from a neemseedextract comprising

neemoil which is substantiallyfree of azadirachtinand salannin,said neemoil being

prepared by extracting dried, coarsely ground neem seeds with a non-polar,
hydrophobic solvent to obtain a neem oil extract, and then removing the solvent to

obtain the neemoil. Theseneemoil pesticidesexhibit the ability to repel insectsfrom

plant surfaces,prevent fungal growth, and kill insect and fungal pestsat various life
stages(Locke eta]., 1991).

The patentclaimed, among other insecticidal and fungicidal applications:

10. Use of the insecticide and foliar fungicide according to Claims I to 5 for

controlling insect pests and fungi comprising contacting the insect or fungi with a
neemoil formulation containing 0.1 to 10% neem oil which is substantially free of
azadirachtin and salannin, 0.005 to 5% emulsifying surfactant and 0 to 99% water
(Locke et al., 1991).

The patentwas eventually transferredto Thermo Trilogy, a former affiliate of WR Grace,

in 1996(Certis USA, 2005).

The story of the neernpatent challengebeganin 1993when the Neern Campaignof India

was launched"by farmers in India who fearedthat their geneticresourcesand traditional

knowledgewere coming increasinglyunderforeign control throughthe legalmechanismof

patents" (Bullard, 2005). This particular challenge of the patent at the EP035, was also
advancedquite considerably as a cause celebre by three people who filed the patent

opposition- Dr. VandanaShiva, director of the New Delhi basedResearchFoundationfor

Science,Technology and Ecology; Linda Bullard, then Vice-president(eventualpresident

35There was also a far lesssuccessfulpatentchallengefiled at the USPTO by JeremyRifkin.

97
and now former president) of the International Foundation of Organic Agriculture
Movements (IFOAM) and; Magda Aelvoet then president of the Green Group in the
EuropeanParliament (and, at the time of the press release,Belgian Minister of State).
Thesethreeformed an integral part of the "neernteam", who were an internationalgroupof

activistsworking againstpatentson neem(Shiva, 2000a,2005).The selectionofpatent and

opponents (as those that file opposition to a patent are referred to) was far from
coincidental. As Bullard herself explains in her briefing paper following the defeat of
Thermo Trilogy's appealon the patent's revocation:

The threepartnersconsciouslychoseto opposethis particularpatentin partbecauseof

who its "proprietors" were: They wished to illuminate how governmentsof wealthy
countries-in this casethe United States-and multinational corporations-in this
casethe infamous W.R. Grace(whoseexploits are chronicled in the book and movie
"A Civil Action") -collude to stealbiological resourcesfrom the south by meansof
the patent system. It is also not by accident that these particular three Opponents
joined forces to launch the Opposition: an organization from the country where the

resourcewas stolen, an international organization representing organic users and

producersof Neem products throughout the world, and an environmental political
party, well positionedto pursuechangesin the legal systemitself to outlaw Biopiracy.
And from within these organizations it was women who initiated the action and

sustainedit-an Indian, a Belgian, and an American (2005: seealso Shiva, 2000a).

It is worthwhile at this point to examine some of the symbolism invoked here, as it is

typical of much of the imagery of biopiracy. This particular passageraises a familiar
spectrein the biopiracy narrative- that of the large multinational corporation,in this case
W.R.Graceintent on deceiving and ultimately stealing from the people of the developing

world. In this instance,Grace'sother public relations debacleis invoked, with referenceto

the 1998film "A Civil Action" which was basedon a book of the samenameby Jonathan
Harr. The book, and subsequentlythe film, chronicled the actions of severalcompanies,

one of them Grace,who were involved in dumping of toxic chemicalsnear their plant in
Woburn, Massachusetts.As a result of the lawsuit depictedin the film, Graceeventually

paid 8 million USD to 8 Woburn families who brought the lawsuit (Wilmsen, 1999).Using
the Woburn caseand the film as somesort of precedenthasthe obvious effect of painting

98
them asa companywho seemto manifesta serial disregardfor the environmentandfor the
in
communities which they 36
operate.

The presentationof biopiracy in this instancealso relies heavily on the imageryof the third

world farmer. Again, the imageof the developingworld fanner is one that factorsheavily
in the rhetorical imagery of biopiracy campaigners,who generallyrelatethe involvementof
large corporations to the disaster scenariowhere small, subsistence,developing world
farmers are no longer able to control, save or even afford the seedsthey need for their

subsistenceand livelihood.

Finally, the fact that those challengingthe patent are women is clearly pointed out in this

passage.This imagery is also common,and is regularly usedto further invoke ideasof the
feminine asassociatedwith the naturaldrawing a greatdealof inspiration from someof the

centraltenetsof ecofeminsm.Thesearepersistently,asevidencedhere,contrastedwith the

image.of the large, aggressive,unsympathetic, unrelenting, patriarchal TNC bent on

controlling resourcesand, ultimately it would seem,nature's creative/reproductivepower

itself Shiva further developsthe rationale behind challenging this particular patent:

We started the campaign becauseof the importance of neem in our culture, our

agriculture and our health systems.We picked the fungicide patent becauseit was
owned by the U.S. Governmentand a big multinational corporation (MNC). It was
therefore a powerful symbol of biopiracy and the flaws of Western industrial IPR
systems.Neem is an important symbol becauseit is usedon a large scalefor medicine
andagriculture in India. If biopiracy canoccur with suchcommonly usedknowledge,
what would be the fate of lessprevalentexamplesoftraditional innovation?Neemwas
also important becauseit is an ecologically soundalternativeto hazardouspesticides.
Our campaign "No more Bhopals, plant a ncem" started in 1984 at the time of the
Bhopal disaster. Neem has been a central part of the ecological and sustainable
agriculture work that we have done in India through national networks on organic
farming. Finally, neernis a symbol of freedomasthe "Free Tree." Its scientific name,
Azadirachlin Indica, is derived from Azad Darakt which meansfree tree. Liberating

36This is not to be confusedwith anotherwell-publicized environmentalcaseinvolving W.R. Grace,and a

settlementthey negotiatedwith peoplefrom Libby, Montanawho hadbeenaffectedby asbestosdueto a mine
operatedin Libby by WR Grace.It is also importantto note that neitherof thesecaseshaveany legal bearing
on the neempatent or the related challengeto it.

99
 the free tree thus becamethe symbol of our liberation movementto free knowledge
systemsand biodiversity from biopiracy (Shiva, 2000a,p. 508).

The patentchallengewas filed by the membersof the "neem team" on the groundsof lack

of novelty, lack of inventive stepand becausethe invention would be contrary to morality

and on the grounds of insufficiency of disclosure (T 0416/01 - 3.3.2,2005). In May of
2000, the Thermo Trilogy Patentwas found to lack novelty and an inventive step,andwas

consequentlystruck down (T 0416/01 - 3.3.2,2005). The court relied quite heavily on

several,documentspresentedby the opponents(Shiva et. al.), in particular a 1981articleby
H.B Singh and U. P. Singh in Australian Plant Pathology on the usesof neem.In addition
to that, the board cited affidavits submittedby Mr. A. D. Phadkeand Prof. U.P. Singh in
supportof the opponents' claims that the patent did not demonstratesufficient novelty. In
particular, the court noted that in the 1980sMr. Phadkehad himself carried out tests of
neem'sfungicidal effects in a similar fashionto that describedin the patentapplication (T
0416101- 3.3.2,2005).

This decisionwas promptly appealedby Thermo Trilogy on severalgrounds,such as the

opposition fee paid by the opponents;whether the opponentsneededa representativein
order to file the opposition (particularly Shiva, who was a non-European)and; questions
about whether the demonstrationof prior use (especially the recollection of Mr. Phadke)

was insufficient (T 0416/01 - 3.3.2,2005). In March, 2005, the Boards of Appeal of the
European Patent Office ruled in the appeal that the technical requirements (i. e. fees,

representation,etc.) were met appropriately. They also ruled that, since there was no
disputebetweenthe partiesaboutthe existenceof the Singh & Singh article, that document

was so relevant that the question of prior use "can be decided on the basis of [that
document] alone" (T 0416/01 - 3.3.2,2005) thereby rendering it moot whether Mr.
37
Phadke'srecollection was valid or not. Thus the board dismissedthe appeal,largely on
the strengthof the claim to prior use in the Singh & Singh article.

The board's upholding of their decisionto revoke the patentwas hailed as an unqualified

victory by the forces countering biopiracy. The joint pressreleasesent out by the three
challengers'organizations(International Federationof Organic Agriculture MoVements,

37It shouldbe noted,however,that the board did not especiallycall it into questionbut felt that thematerialin
the Singh & Singh article was "highly relevant for the presentcase". The principle questionof the appeal
hinged on the amount of time that lapsedbetweenhis field tests of a neem fungicidal preparationand the
patent,andthe fact that he often had to consult outsidematerial (especiallylab books) during his testimony.

100
ResearchFoundationfor Science,& The Greens/EuroPean
FreeAlliance in the European
Parliament, 2005) hailed this as "a landmark victory in the world's first case against
biopiracy" anda decisionthatwould "bring to a closethis ten yearbattle in theworld's first
legal challengeto a biopiracy patent" (International Federation of Organic Agriculture
Movements et al., 2005). They went on to quote their counsel, Prof Dr. Fritz Dolder,
Professorof Intellectual Property with the Faculty of Law at the University of Basel,who

claimed that "this is the first time that the EPO has legally concluded a biopiracy case"
(International Federation of Organic Agriculture Movements et al., 2005). This is

significant principally becauseof the evidentlegitimacy that the activists feel this decision
confers on the idea of biopiracy as a prevalentproblem.

Basmati

In biopiracy terms, the basmati caserefers to US patent 5,663,484,awardedto RiceTec,

Inc., and referring to "novel rice lines and to plants and grains of these lines and to a

method for breeding these lines. The invention also relates to a novel means for
determining the cooking and starch properties of rice grains and its use in identifying
desirable rice lines (Sarreal, Mann, Stroike, & Andrews, 1997). The patent was

challenged(incidentally, amongthe challengerswere VandanaShivaandher organization,

the RFSTE) andeventually saw significant claims in the patentcancelled.The substanceof
the argumentfor cancellationwas essentiallythat the claimsto patentabilityweretoo broad
and encroachedtoo much on what was already widely known as "basmati". As Shiva
explains:

On September2,1997, the Texas-basedRiceTec Inc., was granted patent number

5663484on Basmati rice lines and grains. RiceTec got patentrights on Basmatirice

and grainswhile alreadytrading the rice in its brandnamessuchas Kasmati, Texmati,

andJasmati.The patentwill allow RiceTecto sell internationallywhat it claimsto bea
new variety of Basmati,developed under the name of Basmati.
,
RiceTec's patentedBasmati variety was derived from Indian Basmati crossedwith

semi-dwarf varieties including indica varieties.Thesevarieties are farmers' varieties

bred over centurieson the Indian subcontinent.[ ] (Shiva, 2000a, p. 85).
...

Shiva and the PX,STE pressuredthe governmentand ultimately petitioned the Supreme
Court of India in an attempt to get the governmentto take up the basmati patent in more

official circles, such as the WTO. In responseto this pressureand to the SupremeCourVs

101
decision,the Indian governmentfiled a petition with the USPTOto getcertainclaimsof the

patentcancelled(ResearchFoundationfor ScienceTechnology andEcology,2001).Certain

of the claims in the patentwere eventually cancelledbasedon the evidence in
presented the
38
Indian patent challenge.

There was a rather interesting contestationthat emergedafter the basmatichallengeasto

whetherIndia had "won" or "lost" the patentchallenge.At issuewas the degreeto which it

could be said that the cancellationof someclaims could be seento be a vindication of the
position that the entire patenton basmatiwasuntenable.Although the USPTOamendments
appearedsatisfactory for the Indian governmentwho didn't pursuethe matterfiniher, some
of the NGOs involved were disappointedin the government's apparentunwillingness to
pursue the generalmatter of a basmatipatentfurther (Rai, 2001; ResearchFoundationfor
ScienceTechnology and Ecology, 2001). Nevertheless,in responseto what she saw as

misleadingmedia reports that India had "lost" in not getting completepatent cancellation
basedon prior art or geographicalindicators39 Shiva embracedthe partial cancellationasa

victory, and even claimed that "the basmati victory is the Seattle in the domain of
biodiversity and TRIPs" (Shiva, 2001a).

Turmeric

This particular instanceof biopiracy refersto US patent5,401,504, grantedinitially to two

from the University Mississippi for the use of turmeric for healing 40
wounds.
scientists of

38In the reexaminationcertificate for US 5,663,484the applicant amendedthe abstractasfollows, and made
the correspondingchangesin the claims section(the bracketedtext is text that was in the original patentbut
has beendeleted,and the italicised text indicatesadditions made to the patent):

The invention relatesto novel rice lines, Bas 867, RTI 117, and RTI 121, and to plants and grains of these
lines [and to a method for breedingtheselines. The invention also relatesto a novel meansfor determining
the cooking and starchpropertiesof rice grainsand its usein identifying desirablerice lines.Specifically,one
aspectof the invention relatesto]. Thenovel rice lines [whoseplants] are semi-dwarf in stature,substantially
photoperiodinsensitiveand high yielding, andproducerice gains havingcharacteristicssimilar or superiorto
thoseof good quality basmatirice. Another aspectof the invention relatesto novel rice grainsproducedfrom
the novel rice lines. [The invention provides a method for breedingthesenovel lines. A third aspectof the
'invention relatesto the finding that the "starch inderif '(SI) of the arice grain can predict the grain's cooking
and starchproperties,to a method basedthereonfor identifying grainsthat can be cookedto the firrimessof
traditional basmatirice preparations,and to the use of this method in selecting desirablesegregantsin rice
breeding programs.]

39There was a move from someto have basmatiprotectedasa geographicalindicator (one of the trademark
aspectsof IPR that allows a country or region to protect geographicalplace namesthat refer directly to a
product- i.e. Champagne,
C, etc.) but this was not the substanceof the Indian challengeat the USPTO and was
also not deemedsufficient by the RFSTE.
40The patentclaims section reads:
"We claim:

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As Genetic ResourcesAction International (GRAIN) explains: "The Indian government

challengedthe patent as blatant theft, and provided endlessresearchpaperspredatingthe

patent providing that turmeric has long beenused in India to heal wounds. In the face of
this overwhelming evidence, the US Patent and Trademark office rejected all 6 patent
claims" (2000). As GRA114alludesto, the patentwas challengedby the New Delhi based
Council for Agricultural Researchon the groundsthat it was not novel, becauseturmeric
had been used in this way for thousandsof years in India. Activists cited the patent's

cancellation as a vindication of one of their long held positions on biopiracy - that the
patenting of traditionally usedplants ignored "prior art" and thus defied the requirement
that patents be "novel". The denial of prior art was seento be a particularly hubristic
flourish of the US patent system, as typified here by Shiva: "Prior foreign activity

anticipatesa US patentonly when the foreign activity is in a tangible, accessibleform such

asa publisheddocumentor a patent.However,prior foreign knowledge,useand invention
are all excluded when the question of prior art is consideredin relation to a US patent
application" (1998). Activists suchasShivaalso felt that the acknowledgementof prior art
claims in this manner could signal a forrn of sea change,or at least a victory for those
opposedto biopiracy in indicating an increasedwillingness or ability of the USPTO to
considerclaims to prior art madeon behalf of traditional usesof plants outsideUS borders
(Shiva, 1998).

Thesethreehigh-profile casesof biopiracy seemto sharea few things in common.The first

andperhapsmost significant is their problematizationby activists - in order for something

to be biopiracy someonehasto call it that and pursueit accordingly. Second,andperhaps
equally as important, is the tacit acknowledgementof the (multiple different kinds of)
claims to biopiracy by the IPR system,in the form of a cancellationof a grantedpatent,in
whole or in part, basedon acknowledgementof prior art.

In their synopsesof these cases,the activist organizationsuse biopiracy as a condensed

signifier for the myriad issuesthat they see around patents on life. The vindication for

1. A method of promoting healing of a wound in a patient, which consistsessentially of administeringa

wound-healingagent consisting of an eýfectiveamount of tunrieric powder to said patient.
2. The method according to claim 1, wherein said turmeric is orally administeredto said patient.
3. The method according to claim 1, wherein said turmeric is topically administeredto said patient.
4. The method according to claim 1, wherein said turmeric is both orally and topically administeredto
said patient.
5. The method according to claim 1, wherein said wound is a surgical wound.
6. The method according to claim 1, wherein said wound is a body ulcer." (Das & Cohly, 1995)

103
"prior art" they claim in the cancellation of these patents allows them a spacethrough

which to advancetheir other agenda,which is the limiting and ultimate outlawing of

patentson life. It is tempting to claim thusthat, in championingthe system's"successes"in
acknowledgingprior art, the activists thus tacitly acknowledgethe appropriatenessof the
systemitself - that thesethings are, in fact, patentableand that the problem lies with the
scopeof the patentsand the apportioningof ownershipandthe benefitsthereof Although it
is most certainly true that the activists in this caseare doingjust that, I arguethat this isjust

one part of a broader set of concerns,which will be outlined further in the following
chapter.

The way the ten-n was taken up as part of the bundle of issues associatedwith the

expansionof the global trade and regulatory system,particularly the globally expanding
scopeand scale of the GATT/WTO, should also be seenas an important driver for the
widening exposureof the term. Especiallypertinentin this regardwere concernsabouthow
the TRIPs agreementwould deal with forms of TK. In this context, the practice and
promise of bioprospectingcompetedwith the "problem of biopiracy". It was in this period,
particularly in and aroundthe (re)negotiationof the parametersof article 27 that questions
of biopiracy were presented, negotiated and renegotiated. The most active
problematizationsof biopiracy came around the time of the mandatedrenegotiation of
Article 27.3 (b) in 2000, and allegationsof biopiracy made it into official submissionsto
variousmeetingsof the WTO (World TradeOrganization,2000;World TradeOrganization
Committeeon Trade and Environment,2000,200 1; World TradeOrganizationCouncil for
Trade RelatedAspects of Intellectual Property Rights, 2000; World Trade Organization
GeneralCouncil, 2001). The Indian governmentwas especiallyvocal in its condemnation

of biopiracy at the WTO, andthis was representedin its requeststo havea considerationof
biopiracy form a part of the TRIPS review. It is also no coincidencethat what also links
thesethree casesis that they all involve products and "prior art" from India. This is an
aspect of the biopiracy debate that will be taken up in greater detail in the following
chaptersto do with the consequencesof biopiracy's deployment.

104
"Biopirate" organizations

ShamanPharmaceuticals

The period of the late 1990swas also one of the periods of greatestconfrontation with

respectto the relationship betweenbioprospectingand biopiracy. In particular, therewere

severalkey bioprospectingoperationsthat cameunder fire from activist groupswho were
alleging biopiracy. The most prominent strictly private venture was Shaman
Pharmaceuticals,which was once seen as the most promising, private, bioprospecting

operation.As has been chronicled elsewhere(Dorsey, 2001,2003), the fate of Shaman

pharmaceuticals can be seen as emblematic of the "rise and fall" of the fate of
bioprospectingthrough the 1990s.

Prominentwithin the initial hype of bioprospectingwas the voice of StephenKing (King,

1991,1994), who was a vice presidentwith Shaman,writing in various placesabout the
new promisesthat bioprospectinghadfor reciprocallyapportioningthe financial benefitsof
biodiversity to the providers of indigenousknowledge.Indeed,Shamanhad at its heartthe

notion of benefit sharing,and a perspectivethat the way forward for all wasbioprospecting
in the purest senseof it - that is to say in accordancewith the WRI perspectivethat it

should include some form of benefit sharing. The actions of Shamanin Ecuador came
under questionfrom RAFI, who claimed at the time:

ShamanPharmaceuticalswent to the Amazon to get sangrede drago(dragon'sblood),

an indigenouspeoples' medicinal plant from which Shamanhas isolated its patented
pharmaceutical. The company talks about 'reciprocity' in its relations with the
indigenouspeopleswho it tapsfor resourcesand knowledge,but so far the indigenous

people who are Shaman's sangre de drago sourceshave received a few thousand
dollars while Shamanhasraisedmillions in the US capital market (1997).41

Despiteits initial promiseand considerablesupportfrom venturecapitalistsandthe employ

of many prominent ethnobotanists,"the medicine did not pan out back in the lab"
(Christensen,1999)andpersistentresearchsetbackswith their principal drug-a diarrhoea

1The patentsthey are referring to is WO 9206695,EP 553253 and US 5211944

105
medication geared towards AIDS patients - contributed to the company's filing for
bankruptcy.They re-emerged,however reformed/rebrandedas ShamanBotanicals,who

sold "Normal Stool Forinula andNSF-IB" from 42

their website. The rise andvery quick fall
of Shamanwas seenby many activists andactivist academicsasthe possibledeathknell for
bioprospecting- as Dorsey writes, "it seemsas if science,political economy and the

vagariesof developmentwork 'beat the Shaman"' (2003, p. 145). While theseclaims are
possibly a bit ambitious, the caseof Shamanis indeedpointed to as a cautionarytale in the
annals of bioprospecting and indicative of the additional problems that come when, as
Hayden (2003) puts it, plants come with people attached.

International CooperativeBiodiversity Groups (ICBG)

It was alsoat this time that the eventswerebeing set into motion for what would emergeas

one of the most acrimonious bioprospecting/biopiracydebates,involving the ICBG. As

Brown explains, the ICBG was "a major US initiative [ ] administeredby the Fogarty
...
International Centre for Advanced Study in the Health Sciences,part of the National
Institutesof Health (NIH), with additional funding from the National ScienceFoundation

andthe U. S. Agency for InternationalDevelopment"(2003,p. 109).The initial phasesaw5

ICBG projects funded, four at various sites through Central and South America. In the

spirit of bioprospecting,the ICBG were also quite cautiousto include elementsof North-
Southcollaboration in the form of benefit sharingand technology transfer, which is often

cited as an equally important aspect of the CBD's goal of the sharing of benefits of
biodiversity. The ICBG schemewas probably the largestofficial bioprospectingventure,

andassuchprovided a targetfor RAM et al. in their campaignagainstpatentson life. From

quite early on, RAM was critical of the ICBG, even mentioning them in one of their first
Coninniniquis about biopiracy:

Although "benefit sharingagreements"are frequently mentioned,the specifictermsof

benefit sharing are strictly confidential. While the rhetoric is more than a little

convincing, the reality is that indigenouscommunities can expect to gain very little
and give up a great deal. By and large, the terms and conditions under which
indigenouspeoplesmight benefit financially arecontrolled by Northern corporations
that are free to claim intellectual property on indigenousknowledge and biodiversity.

42A 2005 visit to the website, w%v%v.shaman..com, was greetedonly with the messagethat "Normal Stool
Fon-nulaandNSF-IB areout of stock and areno longer available" without any further explanationprovided.
As of the time of writing, the website seemsto have beentaken offline altogether.

106
 Indigenouscommunitieswill find thesesameintellectual property systemsculturally

and ethically alien, as well as politically and economically inaccessible.

Pharmaceuticalcorporations participating in the ICBG programmeshave agreedto

profit sharing through "donation" of a percentageof royalties from the sales of

productsdevelopedthrough the ICBG program,and inclusion of indigenousor local
people as inventors on patents.Soundsgood? For indigenouspeoples,the dreamof
windfall profits is illusory. (1994aý3

The fact that the ICBG projects were much maligned by organizations such as RAM

understandablycauseda considerablyacrimoniousrelationship betweenthemandsomeof

the ethnobotanistswho were awardedICBG grants(Berlin & Berlin, 2003; Greene,2004;
Hayden, 2003b), not to mention some of the indigenous organizations involved in the

negotiationof benefit sharing agreementsto do with ICBG plant collection (seeChapter

5).

One of the 5 sites identified as part of this project was a site in the Chiapasregion of
Mexico, which emergedasthe most contentiousof the five. The anthropologistsat the head

of the Maya-ICBG (the onemost problematizedby RAFI), Brent and Ana Berlin havebeen
heavily critical of RAFFs involvement, and their critiques will be dealt with more
thoroughly in Chapter5's examinationof activist deploymentsof biopiracy.

Merck-INBio

Around the sametime that the idea of biodiversity as a resourcewas being fleshedout in
forums like the negotiation groupsleadingup to the CBD the world's first bioprospecting

agreementwas being negotiatedbetweenCostaRica's Instituto Nacional de Biodivcrsidad

(INBio) and Merck & Co.

Although the particulars of INBio and especially the contract with Merck are well
chronicled elsewhere(Aldhous, 1991; Brown, 2003; CabreraMedaglia, 2004; Castree,
2003; Dorsey, 200 1; Martinez-Alier, 1997;Reid, 1994;Roberts, 1992; ten Kate & Laird,
1999), and indeed some claim that INBio has almost beenpositioned as an "obligatory
in
passagepoint evaluationsof bioprospecting's successor failure" (Castree,2003), its

significanceto the presenthistory merits a brief outline.

43Incidentally, this was the samedocumentwhere RAM mentionedShamanas biopirates for the first time.

107
The contract,madepublic in 1991, was brokeredin part by ThomasEisner, a professorat
Cornell University, (Aldhous, 1991), who had long been a proponent of what he called
"chemical prospecting" (Eisner, 2003; Eisner & Beiring, 1994) as a strategyto promote
biodiversity conservation. INB io was conceived of as a private, not-for-profit national
biodiversity institute which was an offshoot of the CostaRican government'screationof
the Ministry of Natural Resources,Energy and Mines (MIRENEM). As part of this
organization,an overlappingthreegoal mandatewas developed:establishingconservation
areas,determiningwhat biodiversity was in theseareasandintegrating the non-destructive
use of this biodiversity into the intellectual and economic fabric of national and
internationalsociety (Gomez et al., 1993)- what ten Kate and Laird called a "save,know,

use" strategy(1999, p. 253). Integral to its mandatewas a reconfigured understandingof

biodiversity as a resource, and a resourcethat would "survive only to the extent that

societiesuseit for intellectual andeconomicdevelopment"(Gomezet al., 1993).As stated

at the time, INBio's immediate objectiveswere to undertakean inventory of CostaRica's
biodiversity, place it in a computerizedfannat focusedon easeof use,ensurethe perpetual

preservationof the collections, facilitate national and international accessto information

about this biodiversity and increase"biological literacy" by providing information and
fostering its use (Gomez et al., 1993).

In many ways, the agreementwas spawnedby a combination of factors that wereuniqueto

CostaRica - one being that it enjoyeda relatively stablepolitical climate (Castree,2003),

and anotherbeing that there is an overwhelming amount of biodiversity locatedin Costa

Rica, with someestimatesplacing this at 5-7% of the world's biodiversity (Roberts,1992).
Essentially,the agreementbetweenINBio andMerck hadMerck pay INBio $1 million "up
front" in exchangefor INBio sendingthem a certain number of plant and animal samples
for them to screen. In addition to the initial payment, the contract guaranteedan

undisclosedportion of royalties if any of the sampleswere to be turned into commercially

marketeddrugs. Outside of the strictly financial remunerationsprovided, in the words of
JorgeCabreraMedaglia, a lawyer for INBio, "important technologyhasbeenacquired(not
always involving biotechnology)" (CabreraMedaglia, 2004). Additionally, the screening
involved a mixture of in silit and ex silit research, which was seen to enhancethe
burgeoningCostaRican biotechnologysector.In this samespirit, the projectalsopioneered
the use of "para-taxonomists" who were "rural Costa Ricanswho are given a six-month
courseon the fundamentalsof biology and specimensampling (devisedoriginally by Dan

108
Janzen44)prior to being releasedinto the field" (Castree,2003). Additionally, accordingto
Roberts,witing in Science,"the other unusualfeature is that 10% of the upfront money,

and 50% of the royalties goesdirectly into conservation" (Roberts, 1992).

What is often overlooked yet important to note is that the Merck partnershipwas not the

only bioprospectinginitiative enteredinto by INBio. In fact, in a 10 year retrospectiveof

the TNBio program, CabreraMedaglia lists 9 contractswith industry, including contracts
with suchbioprospectingheavyweightsasPhyteraandDiversa(2004).Although theMerck
agreementendedin 1999,it generated27 patents,and althoughthere are not asof yet any
royaltiesnor productson the marketasa result of INBio's bioprospectingcontracts,"some
productsare under development,especiallyin the ornamentaland herbal areas"(Cabrera
Medaglia, 2004).

As mentioned,fundamentalto this scenariowas the acknowledgementthat bioprospecting

was the most effective way to achieve the goal of biodiversity conservation.When the
economic and intellectual property value of this biodiversity could be realized, the
incentive to preserveareasof threatenedbiodiversity would be renderedclear. INBio in

generaltried to work aroundthe somewhatsensitiveareaof the "ownership" of theseplants

by ostensiblycollecting only "wild" varietiesasopposedto anthropogenicones.As will be
dealt with in other sectionsof this study,this approachto an attemptedwaiver of property

rights is not without its critics.

The INBio contract came under heavy and sustainedcriticism from some in the activist

community, most notably from RAM and GRAIN, who claimed it was oneof "biopiracy's
latestdisguises"(Bell, 1997).RAM wasparticularly vociferous, claiming in the previously

cited Bioprospecting/Biopiracy Coniniuniqui that:

Although the Merck/INBio agreementwas hailed by someasa "model" agreementfor.

bioprospecting, it ignores the rights and roles of indigenous peoples. If the
Merck/INBio deal were widely replicated, the South's biodiversity could all be

auctioned off for the paltry sum of about $10 million per annum. [ ...] Given that
phan-naceuticalcompaniesinvestan averageof $231 million on researchforeach new
drug, the discovery charge for one single new drug arising from the deal is barely
loose change.For Merck, the CostaRica contract bought exceedingly cheaplabour

and accessto unidentified biological treasures(and superbpublic relations) (1994a).

44A famousethnobotanistwho was affiliated with, the project.

109
In many of the sameways that the Merck-InBio agreementwaspointedto by proponentsof
bioprospectingas a potential model for thesetypes of projects, it was equally seizedupon
by those opposedto the idea of bioprospecting, who claim that there is essentially no
bioprospecting,only biopiracy.

Role of celebrity cases

There are a few things that are important to identify after outlining this study of the most
influential flashpointsin the contemporaryhistory of biopiracyandbeforemoving on to the

next chapter'sexaminationof what havebeensomeof the effects of the deploymentof the

term.

The most important aspect of the evolution of this particular discourse is that these

examples by no means cover all of the potentially contentious patents or collection

programsthat occurredunderthe rubric of bioprospecting.The interestingthing aboutthis
particular history is the careful choice of cases- how and why were these particular
exampleschosen,and how and why did they have the effects that they did?

One thing that must be flagged about these casesis that they appearto be all relatively

carefully chosen (if we stepback from the obvious fact that someonehad to patentthem in
the first place,thereby setting up one sideof the biopiracy equation,the contentiouspatent).
This was alluded to by Shiva when slid was speakingof the neernpatent,and why it was

chosenin large part for the resonancethat a misplacedclaim to ownershipwould likely be

seento have in a region of the world, India, where neemwas widely usedfor the patented
purpose.In addition, those that were the "face" of the challengerswere also relatively
carefully chosen,or, where they were not directly representedin court challengesor other
face-to-face type encounters,were relatively carefully representedthrough claims to
tradition, indigeneity, etc. Oneother aspectof thesecontestationsis that, amongthosewho
contestthesepatents,thesepatentsare seenas relating to a much bigger struggle. These
aspectsof the biopiracy equation, so clear in many of the contestationsoutlined in this
sectionof the intellectual history, will be bome out ftirther in other sectionsof this project
dealing with the consequencesof the deploymentof such a volatile concept.

110
The next sectionwill engagemore with how thesecaseswere treatedby thepopularmedia,

and will evidence somewhatthe role of strategic problematization that was chronicled
abovewith referenceto biopiracy flashpoints.

Popular media and biopiracy

In a climate of heightenedawarenessof biodiversity asa potentially lucrative resourceand

of the possible problems of ownership associatedwith the exploitation of this resource,

therefollowed a reasonableamountof exposureof the issuesand the actorsin the popular
press.A searchon the Lex.is/Nexis database,which indexesmore than 32,000 sourcesof
reference,showsno "hits" on the term biopiracy before 1993,and then only three in that
year (see Figure 1). The media "take-up" of the term in this period was of central
importanceto its being accordedsignificanceand statusasa viable "problem". Returning
for a momentto the Hall et. al. discussionof "signification spirals", there aretwo concepts
that they introduce that are helpful to understand the role that biopiracy's media
representationplayed in its being acceptedas a pressinginternational issue.

The first conceptto bearin mind whenreadingthe forthcoming presentationof mediatake

up is that of convergence.Hall et. al. explain that convergence,in the "signification spiral"
senseof it, is a "way of linking two or more activities in ordeKto draw parallels between
them" (1978,p. 224). As it pertainsto biopiracy, convergencetakesthe Bannof linking the
concept both historically to colonialism but also giving it contemporary linkages with
broaderconcernsaboutGMOs and globalization, somethingdealt with previously.Hall et.

al. go on to explain that the net effect of convergenceis "amplification, not in the real
eventsbeing described,but in their 'threat-potential' for society" (1978, p. 224). This is
particularly useful in understandingthe propagation of biopiracy, becausemuch of the
activist representationof biopiracy was of the "slippery slope" variety, where caseswere
problematizedand promotedasindicative of potential future developmentsin the scopeof
intellectual property, and the ability of companiesto indiscriminately patent seedsand

medicinal plants, irrespectiveof their origins.

This alsorelatesdirectly to the other conceptadvancedby Hall et. al. in their discussionof
"signification spirals", that of thresholds.Their concept of thresholds holds that "there

seemto be certain thresholdswhich mark out symbolically the limits of societaltolerance"

(Hall et al., 1978,p. 225). Although they rely on the permissiveness,legality and extreme

ill
violence thresholdsfor their analysis,in many ways a similar matrix of thresholdscould
apply to the emergenceof biopiracy in the 1990s.In particular, they also recognizein their
analysisthat mapping threats togetherhas the result of escalation,especially if they can
groupthesethreatstogetherin sucha way that they challengethe limits ofthe "permissive"
boundary and hint at a challengeto passingthrough to a higher threshold. In the caseof
biopiracy, the thresholdsinvolve to what extent we, as a society, are willing to permit

a) "ownership" of life (in the form of human and/or plant.genes)and

b) IPR on agricultural or medical knowledge that can be seen to have

come from the "public domain", especially from marginalized groups

of indigenouspeoples.

Implicit in this is the what Hall et. al. call the "thin edgeof a larger wedge" analogythat
holds that if *wepermit biopiracy in the form that it is taking, it opensthe proverbial door to

more and more expansivepatentson life, and the increasing enclosureof aspectsof the
public domainespeciallyin the realm of agriculture, culminating in the completecontrol of
the seedindustry by TNCs.

The first referenceto biopiracy in a mainstreammedia sourcecomesin a Financial Pines

article from 1993that dealt with concernsaboutthe GATT patentsdraft (which would later
become the TRIPs agreement,one of the four pillars of the WTO). The article cites

concernsby unnamed"environmental andthird world developmentgroups[... who] argue

that [the draft text] should outlaw patentson life-forms altogether on the groundsthat it
sanctions'bio-piracy' or the expropriation of poor-country resourcesby rich-country drug
multinationals" (Williams, 1993).Thesegroups,though remaining unnamedin the article
are almost certainly some combination of people from RAFI, the Third World Network
(TWN), Cultural Survival or GRAIN.

Most of the articles in 1994 dealt with the aforementioned RAFIAJNDP report on
indigenousknowledge. Many of thesetreatedbiopiracy as a new term, introducedby the

report. In addition, many picked up on the claim, madein the report, that theseactsof bio-
piracy were costing the Third World billions of dollars in lost royalties for drugsthat were
developedbasedon TK. RAFI figured prominently in many of thesearticles, asthe main

proselytizer of biopiracy, if nothing else.

112
In 1995, the term found another application in the activity around the aforementioned
Hagahaicase,which appearedto strike a chord with the public consciousnessof the time
becauseof its underlying themesof the potential inherent in the marriage of scienceand
intellectual property. Interestingly, in its initial manifestation,the term biopiracy was used
in large part to characterizethe patenting of human geneticmaterial (amongthe Guyami

andthe Hagahai),aswell asbeing usedin the LJNDP/RAFIreport. The trend continuedin

1996, with stories on the Hagahai patent but also general stories attributing the term
biopiracy to an alleged processof geneticresourcemisappropriation in plants.

500
450 -
400 -
350 -
300
Elbiopiracy
2 250 -
.r- . 0 bioprospecting
200 -
.
150-
00 -
50 -
rum FM
0
10 p &,
SP (,: S§l (Zý (Zýb RýK
"
'Cýý
N(>ý Nq Nq P
Noj Nc N(P N(>- Nq rPIVr

YEAR

Figure I- Reference to biopiracy and bioprospecting in Lexis/Nexis 1992-200445

Also of note is that usageof the terrn "bioprospecting" apparentlygainsprevalencearound

the sametime and at the samepaceasbiopiracy despitearguably being in existencea lot
longer (though mostly under a different name).This type of co-evolution is an interesting

one,and,asdescribedabove,biopiracy's relationshipto a renewedvigor for bioprospecting

cannotbe understated.

45The termsusedin this searchwere: "biopiracy or bio-piracy or biopirate bio-pirate"

or and"bioprospector
bio-prospector bio-prospectingor bioprospectingor bioprospectoror bio-prospector" to generate'hits' on
biopiracy and bioprospecting, respectively. The spike in 'hits' on bioprospecting in 2001 and beyond is
largely due to the search criteria used, which picked up an Australian bioprospecting company, called
"Bioprospect LTD", whosestock wasconsistentlylisted in the f mancialpages(from their founding in 200 1)

as a matter of course.

113
The conceptfurther demonstratedits malleability in the mediathroughthe late 90swhile at
the sametime galvanizing around certain issues,particularly to do with the key patent
challengesmentionedabove.Alongside this, there seemedto be a growing take-upof the
term by southernmedia outlets anddevelopingworld policy bodies,aswell asbeing taken
up as a plank in the growing dissent about globalization, however broadly conceived.
Through the latter part of the 1990s,media representationsof biopiracy often camein the
form of discussions of relatively celebrated patent claims, and the associatedpatent

challenges.Also being taken up prominently in this time period, especially in US media,

were allegations of biopiracy associatedwith a bioprospecting agreement involving
Yellowstone Park, and particularly the microorganisms living in and around the world
famous geysersthere. In many ways, it was the reaction to thesethat was instrumentalin
bringing biopiracy and associatedconcernsabout patentson life to the fore.

In 1996,the term was still relatively un-exposed,and most mention of it in popular press

was of the Hagahaicase,however there appearsto be a significant spike in popular media

representationsof biopiracy in 1997. Much of the exposure at this point still directly
involved RAFI and its director Pat Mooney. In many ways this was part of the fallout of
their coining of the term andpersistentactivism on the subject.A significant numberof the
mentions of biopiracy in 1997 dealt with the turmeric case,which was discussedabove.
This year alsoprovided anotherlandmark in the formation of the term biopiracy, with the

publishing of Shiva's (1997), Biopiracy: The Plunder ofNature and Knowledge by Zed
Books. Oddly enoughthe book itself doesnot deal explicitly with actual casesof biopiracy

per se,but carrieson from her earlier work developingconceptsaboutintellectualproperty.

In this regard, it is probably most significant in that it linked together some of the

multiplicity of arguments advanced in the biopiracy periphery. At the heart of these

argumentsare conceptsof nature, gender,indigeneity and Third World identities, among
others. These are presented in many ways as a binary relationship with capitalism,
globalization and science. The argument.put forth in this book, typical of much of the
discoursearoundclaims of biopiracy, is that the useof IPR is a form of colonialismin itself

- one that servesto deny traditional medical and agricultural practices,ftirther enslavethe
people of the developing world and is a form of monoculture that is -fundamentallyanti-
nature.

The term continuedto gain mainstreammediaexposurein 1998,Nvithcontinuedreferences

to the Yellowstone and turmeric cases.Another high profile case of biopiracy, that of

114
basmatirice (discussedin greaterdetail above)also emergedin the popular mediain 1998.
In examining biopiracy in 1998, there is another emergenttrend that merits comment,

namely the "take-up" of the term by media in the "South", especially India. In the Lexis-
Nexis databasesearch presentedin Figure 1, there were a very significant number of

entriesfrom Indian sources.The fact that Indian sourcesare inherently under-represented

in a forum like Lexis-Nexis points to the resonancethat the concept and its perceived

consequenceshas in India. A cursory assessmentof this suggeststhat it is used rather

unproblematicallyto leverageclaims to Indian IPR rights,especiallyinternationally(e.g. at
the WTO) and invokes the imagery of colonialism and the Third World.in its narrative of
the exploitation of Indian plants by western companies.Though under-developed,and
beyond the scope of this project, the argument seemsto be borne out by the fact that
biopiracy is often used,in theseinstances,alongsidediscussionsof the WTO and India's

negotiating strategytherein.

Along with further discussionsof the basmatipatent(aswell asa similar patentonjasmine

rice), the media continued dissemination of the term through 1999. The trend that saw
greater and greater take-up of the term among Indian media outlets also continued.
Towards the end of the year, however, there was another event that served to bring
biopiracy to an evenwider audience- the WTO meetingin Seattle.This meeting,but more

significantly the infamous "Battle in Seattle" protests,brought biopiracy more squarely

within the purview of issuesadvancedby the anti-globalizationmovement. Alongsidecalls
for an endto agricultural subsidiesandthe other perceivedindignities of the WTO andthe
internationaltrading systemwere calls to stop the processof biopiracy. It shouldbe noted
herethat many of thesecalls were coming from the sameactorswho had beenactiveon the
issuethroughout the previous few years and saw this as an opportunity to disseminateit

wider and also to further cement its relationship as interrelated with the other related
elementsof "globalization" as they understoodit.

Popular media representationsof biopiracy in 2000 continued along many of the same
themesas in 1999.As might be expecteddue to its high profile, there was a great deal of
exposureof the neemissue,which in many storieswas usedasthe consummatecasestudy
to demonstratethe concept. An increasing number of stories were generatedby media
outlets in the South, particularly India, largely focusing on various international
negotiationsthat would allow them to concentrateon the "prevention of biopiracy". That
much of the exposurefrom thesesourceswas focusedon the 'prevention' of biopiracy is

115
telling, asit would standto reasonthat if somethingis to be protectedagainst,theremustbe
at leasta certain acknowledgementthat it is possible or already happening.In the caseof
India, this -wasalso officially borne out in someof the submissionsthey madeto official
bodies,namely the WTO, as alluded to aboveand further discussedat a later point. There

was an additional mention at somepoints in 2000, as well as in the following yearsabout

an alleged instance of biopiracy involving the Mexican enola bean, also known as the
"yellow bean"
.

To date,the greatestinterestin biopiracy from the popular presswas seenin 2001. Interest

around the basmati issue continued, but media treatmentsof bioPiracy also expandedto
encompasssome new areas.In particular, there were three areasof congregationfor the
media storiesthat were pertinent to taking the debateaboutbiopiracy forward. The first was
the identification of new instancesof alleged biopiracy (in particular the Hoodia case,
which was to becomea very influential as
case, will be bome out in Chapter6). Thesecond

was the increasedlinking of biopiracy as an issue that is of direct concernto the WTO,
particularly in the lead up to negotiations for its Doha Round, where many of the
developingcountriesbeganto foregroundbiopiracy asan issuethat wasprescientto TRIPs

and to the WTO in general.A third focal point for the media "take-up" of biopiracy in this
period was in coverageof the emergingcontroversyaroundthe ICBG, and especiallythe
ICBG-Maya program.

As might be anticipated given that the issue of IPR was a central one for developing
countriesat the WTO, much of the linking of IPR and the Doha round was doneby popular
media sources from the developing world, who were reporting on their respective
countries' negotiating strategies.Although Indian media sourceswere always relatively
involved in propagatingthe idea of biopiracy as an important one, in 2001 there appeared
to be a new take-up of the conceptamongother Asian media sources,particularly thosein
South-EastAsia, more specifically Malaysia, Thailand and the Philippines.

The Hoodia issuewas anotherthat got taken up by media in 2001. Along with the Maya-
ICBG issue,this casewas pointed to asa further exemplification of the potential perils of
the marriageof scienceand IPR in the biocconomy.Although it will be discussedfurther in
later chaptersdealing with the "solutions" to biopiracy, it should be notedthat the popular

mediawas directly involved in the evolution of the Hoodia caseasan instanceof biopiracy.
Indeed,it was an article in The Observernewspaperthat heightenedthe San'sawarenessof

116
a patent that had been granted covering the plant they had been using as a thirst and
appetite suppressant for hundreds of years (Barnett, 2001; Wynberg, 2004).

Finally, perhaps the most intriguing take-up of biopiracy by media in 2001 was the

controversysurroundingthe Maya-ICBGprogramin Chiapas,Mexico. The ICBG program,

and more particularly their standoff with RAFI will form part of the substanceof the next
chapter,where the deploymentof the term is in
analysed greaterdepth. Suffice to say for
this aspectof the analysis,that 2001 sawthe emergenceof this particular controversyas a
major issuein the biopiracy canon,and one in which the media played a very significant
role. The role that the use of the term biopiracy played in this specific flashpoint will be

analysedaspart of Chapter5's analysisof biopiracy's deployment.

Exposureof the term continuedapacein 2002 and2003, with it continually beingaffiliated

with issuesof world trade and the WTO. Many of the aforementioned cases of biopiracy

were dealt with in various articles, with the most common theme among those that
mentioned biopiracy being the ongoing issue of the Maya-ICBG. Most pertinent from the

media treatment in theseyears was the seemingly growing and relatively unproblematic
acknowledgementof biopiracy assomethingthat be
should actively prevented or at leastas
something that should be in
avoided the ongoing evolution of the global trade system.
Where they were cited in the popular media,the celebrity casesof biopiracy were pointed
to ascautionarytales of the IPR andthe trading systemgoneawry, which seemsto indicate
that there was a growing acknowledgementof the processitself, yet one that was heavily
basedon the more traditional Euro-American principle of equity as opposedto a more
fundamentalquestion about patentson life in general.

In 2004, biopiracy was further entrenchedas somethingthat should be actively worked

againstin the further evolution of the international trade system.Consistently,the popular

mediareferenced biopiracy amid the various warnings and issuesraised by NGOs around
international meetings, particularly those of the CBD in Malaysia, and the ongoing

negotiationsin various partsof the WTO. In addition to this, therewas an additionalcaseof

alleged biopiracy that merited mention in a couple of news sources.The case in question
involved the patentingof microorganismsfrom the causticlakesof Kenya's Rift valley by

a companycalled Genencor, who are marketing the organismsfor use in fading denim in
the making of jeans. The Kenyan Wildlife Service launchedproceedingsin the US on

117
biopiracy grounds,claiming that the organismswerecollected(bioprospected)without their

consent(Barnett, 2004).

Conclusions

What beginsto emergefrom the datapresentedhereis that the conceptitself hasundergone

modifications as it gets taken up in various circles. In this chapter, we have seenhow

biopiracy builds on the work of activists already active -in the world of IPR and plants,

particularly regarding concernsabout geneticerosion and corporateownershipof genetic

patents.Being alreadyversedin issuesof IPR andpaientson life, the activists cameacross
two things which they thought took the issue further, the Guyami patent and
bioprospecting,which led to the introduction of the term biopiracy. The term then proved

useful to characterizesomeof the other relationshipsin biotechthat RAM and otherswere

trying to problematize,especiallywith the (mis)appropriationof geneticmaterialfrom the
people and plants of the South.

Perhapsmost importantly in understandingbiopiracy, it should be recognizedthat within

this time period the term continued to exhibit its flexibility, as it appearedto be equally
applicableto allegationsof "piracy" involving human geneticmaterial, aswell asthe TK
associatedwith agricultural cropsandmedicinal plants.From their challengesto individual
patentsto their criticism of entire bioprospecting endeavours,the activist groups most
involved in producing this discourse,RAFI, GRAIN, Dr. Shiva and the like, usethe term's

slipperinessand rhetorical strengthto move betweenhumanandplant problematizationsof

IPR for living materials.With the acknowledgementof the term by popular mediasources,
theseactivists, who were central in disseminatingit through thesemedia channels,were
able to play effectively on nascentfears about advancesin science and corresponding
advancesin MR.

What is going on hereis the careful constructionand disseminationof a threat.The activist

groupsthat have soughtto problematizebiopiracy and the bundle of issuesthat they hope
to packagewith it have deployed this term strategically, and often to great effect. They
have carefully chosenwhich casesto problematize and how to do so. The term has also

capturedthe imagination of many in the popular press and elsewherewho have been
integral in fuelling the signification spiral, wherethe term is escalatedby its very usage.In

a more generalway than the activists, however,the media are escalatingthe term within a

118
framework that speaksto mounting misunderstandingaboutthe scopeand scaleof IPR as

well as the promisesand potential pitfalls in the scienceof geneticsas a whole.

The way that theseactivists presentthe issue,and the way that it has beentaken up by the

mediaon the whole lead into broaderquestionsasto not only how the term andthe concept
get taken up, but also how they are understood.In the final chaptersof this thesis, I will
advancethe possibility that this is indicative of a more fluid interpretationof the notion of
"biosociality". In particular, the activists' equation of human genetic material 'with plant

genetic material, at least as far as the IPR is

system concernedwhen coupled with the
evident resonancethat this has had in the popular media, is not insignificant, and will be
examinedin greaterdetail in later sectionsof this thesis. The next chapter,however, will
concernitself with analysingseveralinstancesof biopiracy's deploymentin greaterdepth.

119
Chapter 5- The deployment of biopiracy

Earlier chaptershave demonstratedthat biopiracy is being used in the media, by activists

and at the meetingsof international organizationssuchasthe WTO. This chapterwill focus

more on exactly how and to what effects the term is being usedby various actorsin these
arenas.It will look at three instancesin depthin order to demonstratehow, in many cases,
biopiracy is deployedto havean immediateand focusedeffect on specific casesbut is also

usedas a tool for contestingandultimately shapingthe contoursof an emergingregimeof

biocapital. Looking at these three instancesas I do here shows the ongoing processof

negotiationthat is being undertakento deten-ninethe role that biopiracywill have,if any,in

the particular versionsof the bioeconomicregimesthat are being developed.

If we acceptthe claim from earlier chaptersthat there is a dimension of the bioeconomy

that is contingenton IPR provisions, then we alsocanseecontroversiesframedasbiopiracy
as a contestationof how TK and the biodiversity of the developing world will be placed
within this bioeconomy. The three examplesconsideredhere look at whether biopiracy
gets included in our understandingof the bioeconomy at all, and if so, whether it is as a
form of an ABS agreementdonebadly, or assomethingmorebroad,servingto questionthe

use of the IPR systemitself as the bestway to derive value from biodiversity.

I will first examinethe acrimonious conflict that emergedaround RAM's allegationsof

biopiracy aimed at the Maya-ICBG project and its directors, prominent ethnobotanists
Brent andAna Berlin of the University of Georgia.The Maya-ICBG casedemonstratesan

example of the way in which biopiracy is usedand debatedin relation to the practice of
bioprospecting.One of the things being negotiatedin this conflict is what will count as
biopiracy in the emergentregimesof biocapital that bioprospectingcontributesto shaping.
If we havea systemwherein natureandthe TK thereof is askedto justify its preservationin

economicterms,then this contestationis aboutwhat shapesthatjustification will take,but

more importantly what the social consequences
of this will be. Who will be able to decide
on claims to inclusion/exclusion,(mis)appropriation,etc. and on what grounds?In effect,
contestationssuchasthis one are asmuch aboutthe specific caseat issueasthey are about
advancingan acceptanceof the idea of biopiracy.

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I will then analyse some examples of the way in which biopiracy is used by some
developingworld governmentsin their submissionsto internationalmeetingssuchasthose

at the WTO and the CBD. This will demonstrate how biopiracy gets taken up by
developing country governments who view it as a powerful conceptual lever in
international negotiations. This is evident especially in the regimes of trade and the

environment,most notably where thesecan be seento overlap, such as in regimesfor IPR

and geneticresources.The usageof biopiracy here,though sharingmuch with the activist
usageof the term, closesoff somesignificant areasof the debate,notably whetherIPR is an
appropriateframework with which to approachtheseissues.In so doing, theterm is usedto
set forth a set of relationships that add biopiracy to the panoply of developing world
concernsand include it into a broaderset of economic, social legal and ethical issues.

Finally, I will discuss the responseto that usage from the United States who have

persistentlybeen the IPR system'smost vigorous international promoter. This sectionwill

outline US refutation of claims that biopiracy is an inherentbyproduct of the international
IPR infrastructure.In this particular "take-up" of biopiracy, the US polices a line in which
there is nothing wrong with the IPR system.They maintain that instancesof biopiracy
actually have little to do with the system at all, but rather result from defects either in

specific applications of the system's criteria for patentability, or through the lack of, or
malfunction in, the ABS systemsof individual countries.

When taking theseexamplestogether,what we seeis the way in which biopiracy is being

used by different actors acrossa range of spectra. What also becomes clear in doing so is
the malleability of the term, but also how it is a term very much in flux, with a numberof
competing perspectives on what, exactly, it is going to mean in expanding regimes
governingthe bioeconomy,particularly as it pertainsto the relationship betweenIPR and
biodiversity.

Use by activists - Maya/ICBD

The first example of biopiracy's deploymentdealswith its use by activist groups,in this

caseRAFI. As alluded to in a previous chapter,one of the most acrimoniousconflicts over

allegationsof biopiracy began in 1998/99involving the Maya-ICBG in
project Chiapas,

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Mexico.46RAFI alleged at the time that the program was involved in biopiracy, and the

resultantcontroversydemonstratedthe power that the term hasto produce effects, in this

caseessentiallyforcing the cessationof a major US-governmentfunded researchproject.

The ICBG program is a group of projectsjointly funded by several componentsof the

United States'National Institutesof Health (NIH), and is describedas"a uniqueeffort that

addressesthe interdependentissues of drug discovery, biodiversity conservation,and

sustainableeconomic growth" (National Institute of Health, 2006). The projects were
initiated in 1992, and awardedin severalsubsequentyears,the most recent being 2005.
They aim to

integrateimprovementof humanhealththroughdrug discovery,creatingincentivesfor

conservation of biodiversity, and promotion of scientific researchand sustainable

economic activity that focuseson environment,health, equity and democracy.This
programis basedon the belief that discoveryand developmentof pharmaceuticaland
other useful agents from natural products can, under appropriate circumstances,
promote scientific capacity development and economic incentives to conservethe
biological resourcesfrom which these products are derived (National Institute of
Health, 2006).

The secondround of ICBG projects,in 1997,saw funding grantedto Brent andAna Berlin

of the University of Georgia, two ethnobotanistswith a long§tanding relationship with

indigenouspeoplesin Chiapas,Mexico. The project beganin 1998,and "focusedon three

primary goals: drug discovery, medical ethnobiology and biodiversity conservation,and

sustainedharvest and economic development". There were also 4 specific aims, which
were 1) "to discover and preclinically evaluatebioactive agentsfrom pharmacologically
important speciesof vascularplants' found in Chiapas";2) "discover, isolate,andevaluate
bioactive speciesof immediate health significance and potential economic value to the
local Maya populations"; 3) "enrich the holdings" of local herbaria and produce an
innovative Ethnoflora of the Highlands of Chiapas, published in Spanishand the local
languagesand 4) "strengthen existing academicexchanges"between the University of
Georgia[where the Berlins were based]andtheir partneruniversity in Mexico, ECOSUR.

46It should also be noted that the place that the ongoing Zapatistaindigenousmovement hastaken up
amongthoseprotesting 'globalization' cannotbe dismissedin making this particular biopiracy caseas
acrimoniousand widely recognizedas it has become.

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These four goals were seen as being achieved through fully implementing the major

objectivesof the Convention on Biodiversity (Berlin & Berlin, 2004).

The project soon becameincredibly controversial. In an article provocatively subtitled

"How a bioprospectingproject that should have succeededfailed", Brent and Elois Ann
Berlin chronicle the Maya-ICBG saga from their perspective as implementers of the

project. They frame the controversyasultimately one which hinged on a differencein what
they referred to as "philosophical positions" on the access-to-genetic-resources
debate.
"The first holds that indigenousand local communitiescanraisetheir healthandeconomic

standardsby participating in projects that promote the sustainableusesof the biological

resourcesundertheir control. The secondclaims suchprojects,rather than providing local
indigenouscommunities with opportunities for improving their marginalized status,are

actually deliberateacts of economic colonialism" (Berlin & Berlin, 2004, p. 472).

They claim that a:

number of conflicting and contradictory argumentswere raised against the Maya

ICBG project. One set of criticisms claimed that local communities were ultimately

exploited pawnsin a prospectingplan aimedto enrich money-hungrypharmaceutical

firms whose work was being carried out by mercenary biopirates. More serious

argumentsopenly questionedthe autonomyof local communities'control of their own

biological resources.(Berlin & Berlin, 2004, p. 479).

They also identify the starting point of the conflict asbeing an allegation of biopiracy that

came about via "a posting on the RAFI website in December 1999, [RAFI Director]
Mooney mounted a relentless and sophisticatedInternet campaign against the project,
labelling it biopiracy, a term he claims to have coined [reference omitted]" (Berlin &
Berlin, 2004, p. 478).

The press release in question was entitled "Biopiracy Project in Chiapas, Mexico
Denounced by Mayan Indigenous Groups", and was widely circulated by RAFI on
December1,1999. In it, RAM claimed that

The bioprospectingprogramhasoutragedsomeindigenouspeoples' organizationsin

Chiapaswho claim that their indigenousknowledgeandresourcesare being stolen.In

a written declaration distributed in Chiapas,the Council stated: 'We, as traditional

I

123
 indigenoushealers have organizedfor the past 15 years to assertand improve our

customarymedical practices... We have appealedto national and state authoritiesto

suspendthis project. Now we are appealingto all indigenouspeoplesto refuseto allow
the researchersof ECOSURto removeplants and information from our communities'
(I 999b).

They go on to cite a representativeof the Council, who statesthat "the project explicitly
to
proposes patent and privatize resources and knowledge that have always been
collectively owned", and that the project is in "open" violation of the InternationalSociety
of Ethnobiology (of which ProfessorBerlin is "a past presidentand member"Ys Codeof
Ethics, as well as violating Mexican laws on accessand prior informed consent.Brent
Berlin himself is also quoted in the RAM report, as rejecting the proposedsuspensionof
the project: "I'm convincedthat the questionwould not evenbe askedif thesegroupswere
fully informed aboutthe project. It's really critical that you stressour willingnessto resolve

our differences[in Chiapas].The concernsof the ConseJo[Council] arenot being ignored.

The issueis seriousand must be resolvedsothat everyoneis awareof what the solution is.
The main problem is that we've not beenable to sit down and talk" (Rural Advancement
FoundationInternational, 1999b).

On their website,the Berlins posteda responseto this initial pressrelease,entitled "Whose

Knowledge?WhoseProperty?WhoseBenefits?" In it, theyclaim that "a fundamentalissue
that forms the basis of the attack on the Maya ICBG is whether an NGO comprised of
traditional Maya healers(OMIECH andtheTraditional HealersCouncil of Chiapas)hasthe
right to claim proprietary control of all Maya knowledge.
ethnomedical " Underthe heading
"Whose knowledge", they go on to explain that:

is
so wide spread generalizedknowledgeof the useof medicinal herbs in thetreatment
of common conditions that no Maya word exists for the role of 'herbalist'. This
knowledge is openly shared between Maya households, communities, and

municipalities and outsiders" (Maya ICBG, 2006).

They acknowledge,however, that the "intellectual property issue" is not asestablishedin

existing law. As such,they explain that their efforts work transparentlywith the "National
Institute of Ecology and other governmentalinstitutions to further the developmentof such
laws". They frame the basic questionof the (intellectual) property situation as : "how can

we. best assure equitable distribution of benefits about particular biological resources

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collected from some individual's (or group of individuals' lands) when the intellectual
property (hadit ional knoWedge)associatedwith theuseof thoseresourcesis widely shared
throughoutthe Highland Maya area" (Maya ICBG, 2006)?Their answeris an explanation
of how and why they created PROMAYA, an organization set up especially for the
purposesof distributing the benefitsaccruingfrom any revenuesresulting from theresearch
of the Maya ICBG. The Berlins explain that "PROMAYA will be made up of a general
assemblyof Maya representativesand a board of directors", and will managea trust fund
"in sucha way asto ensurewide and equitabledistribution of financial benefits,directedat
the entire region of the ChiapasHighlands including thosecommunities that choosenot to
cooperatein the research"(Maya ICBG, 2006). The first deposit into the trust fund was
$30,000 USD donated by Brent Berlin himself. The fact remains, however, that
PROMAYA was a new organizationj createdfor the purposesof the project, and did not
have any formal comiection with existing Mayan representativeorganizations.Thus, in

effect, as Hayden (2003b) explains,the Berlins have effectively createdtheir own willing
interlocutor who will implement benefit sharing for the Maya-ICBG.

The Maya-ICBG conflict escalatedquickly, fuelled in part by continuedpressreleasesfrom

RAFI. One of the conflict's most notable flashpoints was at the Seventh Congressof
Ethnobiology, held at the University of Georgia itself-

the Georgia meeting provided a recipe for how not to manage conflict. Pit an
indigenous peoples' organization against a national researchinstitution, add well
known scientists, stir in an international advocacy CSO (RAFI) and a respected
University with a historic tradition in bio-exploration, and mix it all in the pressure

cooker that is Chiapas. Beyond this, the Congress allowed a level of physical
intimidation, verbal abuse, and sexist slurs, the likes of which RAM has rarely

witnessed in 23 years of international advocacy (Rural Advancement Foundation

International, 2000).

The project ultimately fell apart.As the Berlin and Berlin explain:

it was not long beforethe project had beenbrandedasan exampleof the worst kind of
biopiracy, one that aimedto enrich the multinational gene-giantsby expropriatingthe
traditional knowledgeof poor indigenouspeoplesto satisfy their corporategreed.List
serverson the worldwide web beganto postreportsaboutthe project on a regularbasis
and,by the end of 200 1, storiesabout'biopiracy in Chiapas'were found on nearly200

125
 websites.Finally, our Mexican host institution was no longer able to withstand the
public pressureandthe project becamea political liability of suchmagnitudethat they
were forced to withdraw (2003, p. 634).

For their part, predictably, RAFI/ETC hailed the cancellationof theproject asa "victory for
indigenouspeoplesin Chiapas" (2001).

Bioprospecting or biopiracy?

The Maya-ICBG controversy hinged on two broad concerns.Firstly, there was concern

about who is able to represent indigenous peoples, and how that representationis
understood.A secondconcern dealt with spatial and temporal concernsabout how the
geneticresourcesin questionareaccessedandwhat will happento thesematerialsand the
related TK that is collected onceit is "decontextualized".

Representation

The first of these concernscan be seenas intimately related to questionsof access,to

materials and knowledge, as well as it is to questions about representation.As Greene

explains:

[t]he tendency of NGOs to distort claims of indigenousrepresentationin protest of

bioprospecting are matched by the tendency of researchers,agents of public
institutions, and pharmaceuticalcorporationsto do the samein their own support.Both

sides seek out and attempt to legitimate indigenous allies in accordancewith their
institutional, political, or economic goals (2004, p. 222).

Consistently,through the public side of this confrontation, RAM hammeredat the notion
that in the absenceof total consentfrom Chiapas,even if it were acknowledgedthat such
consentwas unattainablegiven the circumstances,the project had to be stopped.In many
ways, they claim that this absenceof consentcomes about precisely becausethere is no
coherentrepresentativebody for the Indians of Chiapas.In the absenceof this body and
this political climate, it is surmised,fidl consentfrom all of the potential resource-holders
is impossible. In responseto ICBG's assertionthat it will share the benefits with all

organizations,even those who do not participate in the program, RAM explains:

126
 although this is undoubtedly intended as a generousact, it missesthe fact that the
targetknowledge and biological resourcesto be collected and commercializedderive
from all of the communities. Unless all agree,soine will have their rights violated.
Theoretically, the agreementof evenone community could legally allow the projectto

privatize the knowledge/resourcesof all the communities.Again, the questionis Wiat

shareof the Chiapascommunitiesmakesthis project acceptableand who makesthat
evaluation (1999a)?

For their part, the Berlins actually agreethat there is no representativeorganizationfor the
Indigenouspeoplesof Chiapas,but statethat the lack of such a body means,essentially,
that the consentthat they did get was sufficient to go aheadwith the project.They quotethe
headof the ICBG program, JoshuaRosenthalas saying that

the lack of an 'established,credible and broadly representativegovernancesystemof

the [local Maya] communities involved' was key to the demiseof the Maya ICBG.
This can, of coursebe read in two ways, one, that the consentthat was thus given by
those groups working with the Maya-ICBG could not have been representativeand
was thus invalid, or, secondly, that this kind of unified political consent was
impossible,andthus the researchwasjustified in moving aheadwith the consentthat it
did get, which was the casethat the Berlins take forward through the rest of the article
(quoted in: Berlin & Berlin, 2004, p. 481).

Clearly, there is a very stark difference in perspectiveand interpretation on what, exactly,

constituteslegitimate Hayden
representation. explains,

The Berlins' efforts at self-defence-arguing that they were following the rules,that in
fact they weren't trafficking in specializedhealers' knowledgebut rather 'generalized
folk knowledge; (a curious effort to delineate an indigenous public domain?), the
insistencethat despite all the objections they were engagedin a project that was
'democratic, transparent, and just' - were, in the end, swamped by wider and

effectively more resonantconcernsabout the (lack of) essential

pre-conditionsfor such
ethical appropriations(2003b, pp. 104-105).

Along with questionsabout who is most (in)appropriateto representthe communities in

question,there were also questionsabout what shape non-participation would take. Both

sidesagree that COMPITECH was approached initially by the Maya-ICBG projectandthat

they declined to participate in the project. For the Berlins, the main issue seemedto be

127
about how this organization's non-participation should be interpreted vis a vis other
representativeorganizations.They sum it up as such: "... doesone personwho opposesa
project that offers an opportunity for sustainabledevelopment, social, and economic
benefits prevent all others from taking advantageof the opportunity? Does control of
intellectual property only apply to veto power of a single individual? Our answeris that it
doesnot" (Berlin & Berlin, 2003, p. 635).

For their part, RAM puts a slightly different twist on the notion of prior informed consent,
introducing what they refer to as "no intention of consenting". In effect, they are taking
issuewith how the notion of PIC assumesthere to be somepre-existing consentthat need

only be suitably uncoveredor addressedfor it to be granted.For RAFI, an outright"no", on

whatevergrounds,must be consideredas a viable responseto invitations to participation.
The implications of that "no" were chronicled above.

Intellectual property

Alongside the concernsabout the "parametersfor ethical practice", there is also a second,

perhapsmore important issueat stakein the Maya-ICBG controversy:what will happen,or

even couldpossibly happenwith this material once it is collected. One of the main axes
along which this disagreementis chartedhas to do with spatial and temporal elements.
Specifically, the territorially bounded(or relatively unbounded)nature.of knowledgeand

plants,andthe indefinite futures (in termsof what usesthe plants, their geneticmaterial or
the knowledge of their usagescould be put to in the future) for plant material and
knowledgeonce collected.

The two sidesof this particular conflict also differ substantiallyon this point. The Maya-
ICBG, for their part, focusedprimarily on the immediateaspectsof access,collection and

exploitation. They presentedthis in somethingof a pragmaticframework that seesthis, in

the immediate term, as the best chancethe Maya have to enter the global economy and
bring themselvesout of economicmarginalization. RAM focus on the fact that plants and
TK as such do not submit themselves so readily to local, national or community
boundaries,and the biodiversity and TK in question may well be used by others in the

region in similar or identical ways.

128
RAM alsotake an "infinite future" kind of approachto the collections that areundertaken,

and look much further than the initial accessingof the material towards what possibleuses
the material could be put to, how it could be engineered,who will own it, etc. This also
appearsto be one of the fundamentalflexing points in the debate.In their literature on the
matter, RAM consistently state that they "believe that exclusive monopoly intellectual
property over products and processesconstrain innovation and disenfranchisesociety"
(1999a).

RAM is also quite explicit in stating that they don't opposebioprospectingas such, but

rather that they strongly opposeseveralaspectsof its being carried out, specifically those
aroundconsent(who is able to give it, and what happensin its absenceor refusal):

Thesesix points [from an email debatebetweenRAM and the ICBG] should not lead

us to the conclusion that bioprospecting is forever impossible - or that the vast

knowledge and resourcesof indigenousand local communities must remain forever
fortressedagainst the needsof humanity. The opposite is true. Traditionally, this
knowledgeis shared.Only the adventof patentprivatization and monopolyhasforced
the closureto free exchange.If thesetraditions can be respectedthen therewill be few
constraintsto bioprospecting.Our responsehasto be to ensurethe moral, legal, and
regulatory environment necessaryfor consenting peoples to share their wisdom
honourably and equitably for the benefit of everyone (1999a).

Initially, it might seemthat the argumentspresentedby either side arejust an exercisein

entrenchmentand speakingat cross-purposesand in manyways,this would be correct.In a

more expansiveway, however,what alsobecomesclear is that theseactorsareinvolved in
negotiating,however acrimoniously, what shapebioprospectingis going to take aspart of
the bioeconomyin the future. As such,they are also engagedin defining what role the CBD
will have in this, and, in a way, what shapethe CBD itself is going to take, especially
around the issue of TK. They are also engaged in establishing or dismissing what
bioprospecting'srelationship is going to be with how biopiracy comesto be understood.
RAFI, for their part, equate biopiracy with bioprospecting. "Even the best intentioned

projects seem destined to devolve into biopiracy" (Rural Advancement Foundation

International, 1999a). The Berlins seem to use it as a way to demonstrateRAFI's
reactionarism and don't feel that it is an appropriate way to frame this particular
relationship.

129
What is alsobeing negotiatedin thesecommunicationsandthrough this controversyis the

role that IPR is going to play in bioprospecting,and in the ways in which we capitalize
upon TK and genetic resources,such as they are. For the adherentsof bioprospecting,it
seemsunclear,evenwhere they saythey will not be patentingthe knowledgeor thegenetic
resourcesthemselves,how they will be able to capitalize on these resources(in order to
generatebenefits which can eventually be shared)without involving the IPR system.For
thosecontendingthat there can be no bioprospectingwithout biopiracy (given the current
regulatory state),the IPR systemis one that is at the heart of their concerns.

One of the things characterizingmany activist allegationsof biopiracy is a deliberateand

productive simplification of scienceand IPR. From a scientific perspective,much of the

biopiracy activism relies on simplified versionsof the relationship betweena geneand a

whole organism. This is directly to

related a simplification of the IPR involved, often in

claiming that a patent awardedon a particular gene, for instance,could equatewith this
being a "patent on" an organismor species,etc. In this vein, there is also a simplification of

what the IPR in thesecasesentails - specifically the suggestionthat a patent on a given

genethus somehowconfers ownershipon the rest of the genes,on an entire organism,in
perpetuity. The full ramifications of this simplification and elision will be dealt with more
thoroughly in the next two chapters.

In their pressreleaseregardingthe "victory againstbiopiracy" upon the cancellationof the

Maya-ICBG project, RAM demonstratetheir elision betweenIPRs systemsandbiopiracy,
in explaining:

The decisive rejection of the ICBG-Maya [sic], and the continuing struggles of
indigenouspeoplesin Chiapasto defendtheir collective rights over biodiversity and

worldwide, including
traditional knowledge,offers valuablelessonsfor bioProspectors
the US-government'sremaining ICBG projects in Latin America, Asia and Africa.
Ultimately, neither well-meaning anthropologistsnor civil society organizationscan
make decisions for indigenous peoples;nor can outsiders appoint organizationsto
determinewho will legitimately representthe interestsof indigenous communities.
The collective rights of indigenous peoples must be respected, as well as the
fundamentalright of local communitiesto veto projectsthat target their resourcesand
knowledge.
In a world where biological productsand processesarebeing privatized andpatented,
and where Farmers Rights are being trampled by intellectual property and trade

130
 it
agreements, is not surprisingthat proprietary rights are confounding negotiationsat
the local, national, and internationallevels.Equity-basedbioprospectingis a myth in
the absenceof regulatory mechanismsthat safeguard the rights and interests of
farmers,indigenouspeoplesand local communities (2001).

The Berlins recognizedthis too, and statedafter the fact that:

The Maya ICBG was seizedupon by thesesocial organisationsas an instrumentfor

achieving their broader goals against biotechnological researchand development.

ThoseMaya communitieswith which the project had signedagreements,lacking any

umbrella organisationto representthem asa whole, were unableto react or chosenot

to becomevictims of the acrimoniouscampaignsof the highly organisedgroupsthat
opposedus (2003, p. 635).

This aspectof the biopiracy narrative is often seizedupon asa fatal flaw for the movement.
Surely, it is noted, that thesekinds of oversimplifications of what is "actually" happening
demarktheseactivists asnaYvealarmists.If allegationsof biopiracywere simply aboutIPR,
then this might indeedbe the case.However, as describedabove,allegationsof biopiracy
often involve significant elisions about both the IPR and the science involved and are
targetedat a rangeof issues,not simply thoseof IPR. Theseelisions rely on productiveand
deliberatesimplifications of both IPR (what exactly is being patentedandwhat this means)

and science(to do with how one could understandthe relationship betweena patenton one
aspectof an organism and that organism as a whole). We can look at this reading of the
patent slightly differently and seehow the allegation of biopiracy is actually designedto
raise questions about the generation of biocapital through patents on parts of living

organisms.In effect, what is at issuein this claim of biopiracy is not the substanceof the
patentor eventhe substanceof the science,but rather how - by what logics?,underwhose
systems?- thesekinds of material come to be ownable at all.

Interestingly,both of the main partiesin this debate,championedrespectivelyby RAF1and

the Berlins, saw the (ir)resolution of this conflict ashaving far reaching implications. The
Berlins explain:

NGOs havetaken on the role of gatekeepersregardingaccessto biological resources,

autonomous,independent
insertingthemselvesinto the political vacuumthat separates
local and indigenouscommunitiesand stateand national governmentsand,in the case

131
 of the Maya ICBG, legitimate outside researchprojects. These groups often do not
speak for local communities but their ready accessto the press and tile Internet
provides them with a platform that allows them to be identified as the voice of the
Indian peoples of the world [ ] Such rhetoric has been so successfulthat in the
...
debate in Mexico, NGOs have
access-to-biological-resources-for-commercial-uses
eff6ctively assumedsufficient power to paralysenational policy on bioprospecting
(2003, p. 636).

RAM explainedthat, for them, "Chiapasis not a casestudy nor a model nor anexperiment.
It is as it has always been- both a beaconand a warning bell" (2000).

Take up - use by governments

One of the most visible ways in which biopiracy has been taken up is by developing

country governmentsat the national and international levels. At the national level, many
developing-countrygovernmentshaveenactedstrategiesto addressbiopiracy within their
territories, andtheseare often linked to strategiesto raisethe issuein internationalforums.
For example,Peru hasrecently beenquite active in this regard,and hasmadesubmissions
to assortedinstrumentsof the WIPO, the CBD and the WTO.

Peru hascreateda "National Anti-Biopiracy Commission,whose basic task is to develop

actionsto identify, prevent and avoid actsof biopiracy which involve biological resources
of Peruvianorigin and traditional knowledge of the indigenouspeoplesof Peru" (World
Trade Organization Council for Trade Related Aspects of Intellectual Property Rights,
2005a,p. 3). The Commission,though still in its early stages,will ultimately institute:

actionsagainstpendingpatentapplicationsor patentsobtainedor developedfrom the

use of a biological resource or traditional knowledge without the prior informed
consentof the country of origin of the resourceor of the indigenouspeople owning
rights in the knowledge, and without providing for any type of compensationto that
country or indigenouspeople (World Trade Organization council for Trade Related
Aspectsof Intellectual Property Rights, 2005b, p. 4).

Peru is certainly not alone in attemptingto addressthe questionof biopiracy and accessto
TK and geneticresourcesat the national level. Other examplesof this type of regulatory
intervention include the Andean Community Decision (Dutfield, 2004, pp. 143-148),the

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Philippines Executive Order 247 (Dutfield, 2004, pp. 138-142)and laws in India, Brazil

and other countries.

Based on these submissions,the problem of biopiracy, for the Peruvian anti-biopiracy

commission,appearsto arise when there is inadequateABS systemsusedto govern the

relationshipbetweenthe relevantparties,suchasthe "owners".of the knowledge.For them,
it doesnot apparentlystem from an inherentflaw in the IPR system,or the use of the IPR

systemto generateeconomic benefits from genetic resources.Thus, in this formulation,

developing country governmentssuch as that of Peru take forward the biocapitalistic

elementsof geneticresources,the ideathat thesegeneticresourcescan generateeconomic

value. Understood in this way, the problem of biopiracy is one which relates more to
conventionally understoodnotions of theft, or certainly of a mis-allocation of economic
benefits derived from biodiversity than it does to a fundamental problem with the IPR

model.

Biopiracy is also being leveragedhere as further evidence of the developing world's

claims
persistent that they are being disserved
by existing internationaltradingframeworks.
Oneof the ways that this claim hasbeenmadehasfocusedon the internationalarchitecture
for IPR, particular the notions of prior art, declaration of origin, and the potential
imbalancesthat come with a country being askedto police its "own" biodiversity in the

patentsystem.If we look closer at someof the material producedby Peru in this capacity,
we can see them bringing these points forward. In several of the reports that they put
forward, Peruidentifies "Major problemsin the analysisof potential casesof biopiracy" as
being:

- issues of translation (especially in the caseof Japanese

patentsnot being translated
in a satisfactory or complete ways). This leads to additional costs in translation,
thereby further prohibiting the study of the potentially contentiouspatents.

- Inadequatedescriptionsof what is being protected by the patent

- The neglect of oral and other forms of traditional knowledge transmission in

considerationof prior art

- The biological resource-genetic
resourcerelationship raisesproblems in controlling
and identifying thosecasesin which there is illegal accessto geneticresources.This
has beenexacerbatedby the fact that, in recentyears,many resourcesof Peruvian

origin have been exported as raw material for direct consumption or industrial

133
 processing,with a view to immediateeconomicbenefits(World Trade Organization
Council for Trade RelatedAspectsof Intellectual Property Rights, 2005a,p. 6).

Finally, the Peruvian delegationput fonvard that:

it should be emphasizedthat, for Peru, as a centre of origin of resources(and

traditional knowledge), it is not easy to set up a perinarient system to identify all
applications and/or patents that involve its resources (or related traditional
knowledge).Consequently,the National Anti-Biopiracy Commissionis endeavouring
to show technically that, at the present time, patents that should not be granted
(becausethey do not meet the novelty and inventive step criteria) are in fact being

granted as a way of giving concrete examples in support of review of the TRIPS

agreementand the need to improve the prior art searchsystems currently used by
intellectual property offices around the world, particularly when the subject is an
invention derived from biodiversity (World Trade Organization Council for Trade
RelatedAspects of Intellectual Property Rights, 2005a,p. 6).

The fact that developing country governmentsare taking the biopiracy bannerforward is
by
not greetedentirely enthusiastically activist groups working on IPR and TK issues.
As
GRAM, an NGO which has been at the forefront of activist endeavoursin the realm of
international IPR and agriculture, explain:

[ ] who said biodiversity belongsto anyoneto begin with? There'san assumptionof

...
ownership that causesany discussion of biopiracy as a problem to end up with the
wrong solution. Under the guise of correcting some kind of misappropriation, we
actuallyjust facilitate appropriation.[ ... ] WhenMegadiversecountry governmentssay
that the internationalregime can endbiopiracy, they're taking a purely legalisticview.
If accesstakes place in accordancewith national legislation, it is by definition not
biopiracy. For them, a certification systemwhich makes it difficult or impossibleto

accessand/or patentgenetic materials without government permission would indeed

greatly reducebiopiracy, if not eliminate it (2005, p. 6).

For the real holders and managers of biodiversity, most of whom are rural

communities and indigenous this

peoples, is not necessarily
very helpful. Biopiracy by

government institutions and other so-called public institutions is often more

commonplacethan biopiracy by foreign corporations. Many countries "laws, and
governmentofficials,. interpret national sovereigntyover geneticresourcesasmoreor
lessequivalentto stateownership,translatinginto little or no sayfor communitiesover

134
 the pumping of resourcesfrom their land or water. And even where there is some
formal requirementto consult or even get consent, in practice there is seldoma real

opportunity to say no" (Genetic ResourcesAction International, 2005, p. 6).

The issues that. this type of criticism brings forth are vital ones, and ones which will be

examinedin greaterdepth in the following chapter examining the various "solutions" to

biopiracy that the tenn itself has servedto bring about.

Co-opting Biopiracy

Another interpretationof biopiracy presentsit asa systematicimpossibility: the discovery

of somethingin its natural state,or if knowledge of its use is already obvious or widely
known, renders it unpatentable.At its most extreme, this view sees biopiracy as an

alarmist and overly simplistic misunderstandingof the IPR systemin generaland often
presentsallegationsof biopiracy as apparentlytypical of a naYveanti-capitalist idealism
espousedby those labelled as "anti-globalization" -a position which will be studied in
greaterdetail in the following chapter.

In the current chapter, however, we will seehow this particular reading of biopiracy is
takenforward by the United Statesin ongoingdebatesat the WTO. Thesedebatesdealwith
what the IPR systemshould be responsiblefor in terms of the economy and development
more broadly, and with what shapethe internationalIPR regimewill takeasa consequence.
To this end,the United Stateshasbeenin an ongoing dialogueof official submissionswith

severalother WTO members,mostly from the developing world. Indeed, the Peruvian
submissionsfrom the previous sectionform a major part of this dialogue.Onethemeof this
dialogueis a developingworld pushfor TRIPs to included a mandatorydisclosureof origin
for patentsthat involve genetic or biological resources.In a seriesof submissionsto the
WTO Council for Trade-RelatedAspectsof Intellectual PropertyRights, the United States

puts forth a vigorous argumentfor how a mandatorydisclosureof origin would not actually
achievethe objectivesthat its developing-countryadherentsclaim, nor thoseof the TRIPS
agreement(and to a lesserextent, the CBD) that have beenagreedupon by all members.
The impetusfor this seriesof submissionsis that "the United Statesviews with the utmost

cautionany proposalsthat would adduncertaintiesin patentrights that may underminethe

role of the delicately balanced patent system in its primary purpose of encouraging
innovation,technologicalprogressandeconomicdevelopment"(World TradeOrganization
Council for Trade RelatedAspectsof Intellectual Property Rights, 2004, p. 1).
The US delegation further state that "the most effective means to achieve the state

objectives is through tailored, national solutions to meet practical concernsand actual

needs.The introduction of new patent disclosure requirements will not achieve these
important objectives and may have significant negative consequences"(World Trade
OrganizationCouncil for TradeRelatedAspectsof IntellectualPropertyRights,2004,p. 4).
They also stressthroughout this seriesof documentsthat "the act of patentingper se, does

not amountto misappropriation", nor is the patent systemable to ensurethe transferralof

benefits.Crucially, on the subjectof prior art, the US delegationexplain that it is their view
that:

[a] patentoffice is not positionedto examinedocumentation,unilaterally providedby

applications, in responseto requirementssuch as those proposed regarding source

and/ororigin, prior informed consent,or evidenceof benefitsharing.To implementan
appropriatestandardof review within the patentsystemfor thesematterswould create
significant new administrative burdensand substantialnew costs, including training
and system development, for the patent offices of all members [ ...] (World Trade
OrganizationCouncil for TradeRelatedAspectsof IntellectualPropertyRights,2004,

p. 4).

In effect, what the US is doing hereis championingnationally basedcivil, criminal or other

legal solutionsto the issueof biopiracy - ratherthan including suchproposed"safeguards"
into the IPR systemitself, as requestedby various developing country delegations.In the
last of the series,the U. S speaksmost directly to the submissionof Peru,andin partto their

conceptof biopiracy:

It is true that the TRIPS Agreement,asan agreementcovering trade-relatedaspectsof

intellectual property, does not include provisions to protect genetic resourcesfrom

misappropriationandtheft. However,the absenceof suchprovisionsdoesnot indicate

a conflict. Rather,thoseactsfall outsidethe purview of the TRIPS Agreementandare
appropriately the domain of a separateregulatory system.
A major premise of Peru's latest submission is that patent applications that
...
"(directly or indirectly) incorporategenetic resourcesand traditional knowledge
...
ha[ve] beenobtained illegally, irregularly or questionably,to say the least." It is not

clear how the mere fact that a pending patent application, or a granted patent, that
refersto geneticresourcesor claims an invention that may havesomerelation to these
resourcescan leadto a conclusionthat the geneticresourcesor intellectual knowledge

136
 at issuehasbeenobtained"illegally, irregularly, or questionably." [ ... ] Peru'sconcept
of "bio-piracy" appears to be limited solely to the context of pending patent
applicationsand grantedpatents. As discussedpreviously, patenting in and of itself
doesnot amount to misappropriation.
The arguments of the proponents of the proposed new disclosure requirements seemto
imply that all biological resources automatically contain an economic and intellectual

contribution worthy of protection. [ ] In reviewing the arguments made in

...
IP/C/W/459, An invention, by definition, must be new and involve an inventive step.
If an invention does not meet these criteria, it is not patentable. The proponents appear

to have assumed that what is known about a genetic resource prior to research and
development is what leads the inventor to the patented invention. Such is not the case
in many, if not most, circumstances. Many inventions are the culmination of

numerous researchers seeking a solution to a problem, or the result of an unexpected

finding while seeking information on an unrelated experiment (World Trade

Organization Council for Trade Related Aspects of Intellectual Property Rights, 2006,
2-3 ). 47
pp.

By invoking a particular version of IPR, the US is hereinvolved in policing the boundaries

of the conceptof IPR, and attemptingto defendIPR againstwhat it perceivesto be attempts

at expanding both what IPR regimes can legally be required to include as grounds for
(un)patentability, but also againstwhat IPR can be understoodto be. Their repetition of
their idea that "patenting in and of itself doesnot amount to misappropriation" presentsa
narrow readingof the patent system,that its
assumes effects to be limited to economicand
legal domains.As such,the only readingof biopiracy that would be possiblewould be one
in which it came about as Part of mere glitches in the patent system,be it a "bad" patent,

where the examiner has not taken prior art sufficiently into account, or some form of
deficiency in national ABS laws.

In these cases,it seemsovertly clear that any potential unsettling of the patent system

should be avoided at all costs.In a way, this presentsa different reading of biocapital and
the bioeconomythan that put forth by the developingcountry governmentsoutlined above

- where there is value seento be inherentin geneticresources.Under the US readingof the

situation,in caseswherethe country of origin is apparentlyunknown,or in situationswhere
the materialwhich hasbeendevelopedinto an invention was accessedby being purchased
or otherwiselegally obtained, then claims to misappropriationare unfounded.
47Somefootnotesincluded in the original documentfrom which this passagewas extractedhave been
removed.

137
We arethuspresentedwith two different versionsof the situation. Onewould havegenetic

resourcesof all kinds saturatedwith actual or potential value, which would rightfully
accrueto the country from where the geneticresourcewhich has been developedinto an
invention originally came.The other seesthe value in thesegenetic resourcesonly'%vhen

someform of humaninventive artifice is mixed with them. This leadsto the questionasto
whether there are two visions of nature which are competing for place in the global
biocconomy- one which seesgeneticresourcesasvaluablein themselvesasstartingpoints
for invention and the other which seesthese only taking on value when turned into an
invention by their mixture with humanintervention.The simplestanswercouldbethat each

proponentis herepanderingto what they feel to be their particular country's strength- the
developingcountriesare rich in biodiversity but weakerin the industriesthat give it a new
form of biocapitalistic value, while the other proponent,theUS area world leaderin adding

value to geneticresourcesvia R&D but comparativelyscarcein biodiversity. In theprocess

of doing so, however, both are engagedin shapingthe contoursof the regime which will
come to govern theseresources,and how they are capitalized upon. There is, of course,a
third perspectiveon the situation which is presentedin this chapter- exhibited by RAFI,
who seetheseresourcesas fundamentallytranscendingbioeconomical concerns.

Conclusion

In this chapter,I have presentedtwo separateexamplesof biopiracy's deploymentin the

interestof arguing how biopiracy is usedtactically, acrossseveralforums, andby different

actors for starkly different purposes.Likewise, I have also put forward and example of
how biopiracy is being deniedby actorssuchasthe US within someof thosesameforums.

Initially, this chapter presentedtwo particular uses of biopiracy which diverged quite

strongly. The discussion of the use of biopiracy by activists problematizing a

bioprospecting operation in Mexico saw it used in an attempt to discredit a particular
bioprospectingproject, but also to attempt to have the label of biopiracy attachedto all
bioprospecting. If attempts to have all bioprospecting considered biopiracy, then the
discipline of bioprospecting, and many of the careersof those engagedin it, would be
irrevocably altered.Additionally, what is understoodby the term biopiracy would alsotake

on different proportions.

138
In the other example,the imagery of biopiracy was adoptedand taken forward by several

governmentsfrom the developingworld in their dealingsat internationalforumsconcerned

with the environment,trade and IPR. This particular useof the term, though relatedto the
activist use,standsmarkedly in contrastwith how it is usedin the first example.Far from
re-emphasizingthe notion of commonheritage,or someideathat patentson life shouldbe
limited if not bannedoutright, the use by these governmentsshifts its meaningto focus

more on issuessuch as disclosureof origin. This shift seesbiopiracy again employedas a

wedge,but this time with a different basis,and a different desiredoutcome.In the first use
of the term, it was set up as a form of a block, used in an attempt to shut down or
dramatically reconfigure a project, and ultimately, in essence,a whole discipline. In its

usageby Peruand others,the notion of biopiracy takeson a different meaning,onesteeped

in the ideathat countriescan and shouldmaintain ownershipover "their" geneticresources.

In the third example,the notion of misappropriationof geneticresourcesis refutedoutright.

In the process,this presentsanotherversion of biopiracy - that it could not possibly exist.
This notion will be engagedwith much more thoroughly in the final sectionof the thesis,
thoughhereit is presentedin order to demonstrateanotherpart of the processof biopiracy's
deployment- the fact that many engagedin negotiatingwhat biopiracy will cometo mean
dismiss it outright. It is offered up here as a contrastto the other two, and their particular

versionsof biopiracy. In this way it servesas a reminder of just how contestedthis field
remainseventhough the notion of biopiracy is gradually being ensconcedin international
parlance,in largepart dueto its adoptionby Peruand other nations. In the end,thecontrast
betweentheseexamplesservesas a testamentat once to how our understandingof what

constitutesbiopiracy is itself in flux, and at the samehow it likely always will be, as it
attachesitself to different aspectsof an ever-fluid set of disciplines combined in the
bioeconomy.

The analysispresentedin this chapterwill provide a useful grounding asthe thesismoves

towards the closing chapters' analysisof the impacts of biopiracy's deployment. One of
clearestand most significant differencesbetweenthe perspectivespresentedhere is how,
for some of the actors involved, these patents, or the move towards patenting genetic

resources,have symbolic as well as legal or economic significance. For those activists

contestingbiopiracy, the patentsthat are at issue take on a significance that far exceeds
their role as economic artefacts that, as the US would have it, serve solely the role of
incentivizing inventors andhaveno significancebeyondtheir economicfunction.For these

139
activists, the patentsact as symbols of a problem with the bioeconomy itself, and how it
values"life" and "nature". In effect, theseactivists can be understoodas engagingin what
Rabinow (1996a) calls "biosocial" formations, and are actually working to overcomethe
division betweennatureand culture uponwhich the IPR systemis predicated.For them,the

contestedinventions, are simultaneouslytoo natural andtoo cultural to be patentable.The

notion of too natural/too cultural is somethingthat I will turn to in the final chapter.The
next chapter,however, will analysethe way in which the relative successof this term's
deployment(analysedin the currentandthe precedingchapter)and its resultanttake-upby

a numberof different actorsin different areashasgenerateda numberof different solutions

to the challengesthat it advances.

140
Chapter 6- "Solving" biopiracy

The previouschaptersof this thesishavedemonstratedhow biopiracy, asboth a term anda

concept, has seen a wide "take-up" since it was first deployed by activists in the early
1990s.This chapterwill examinehow, asa part of this take-up,there havebeena seriesof
"solutions" that have been mobilized in order to addressthe challengesthat biopiracy

presents,especiallythoseto do with the IPR systemitself; accessto geneticresourcesand

the relatedknowledge of their uses;the sharingof benefits; and the ethical implications of
patenting life. The examplesand analysispresentedin this chapterwill examinehow the
way in which biopiracy is problematized shapesthe forms in which various strategies,
techniquesand practices are generatedand deployed as solutions.

At its broadest,there are threepossibleapproachesto "solving" the problem of biopiracy,

and eachof thesethreeparticular problem/solutionconstructswill be consideredin turn in

this chapter. The first approach favours leaving the existing system unchanged, or
maintaining the status quo. This perspective addressesbiopiracy as a systematic
impossibility, and generally works to either marginalize it, or, at worst, treat it as an

anomaly in the system.

The second,the adjustmentapproach,acknowledgesthat therearecertainlimitations to the

existing systemof access,identification, extraction,patentingand(possibly)profiting from

products of biodiversity. This approachseeksto find better mechanismsto accessand
ultimately share the "benefits" of this exploitation of genetic resourcesthrough better
implementing or building on existing tools. Since the most prominent aspect of this

particular problem/solution dealswith the strengtheningof ABS mechanisms,a casestudy

of one suchbenefit sharing agreement,the caseof Hoodia and the SanBushmen,will be
consideredaspart of this section.As biopiracy is many things to many people,and indeed
involves many things and many people,this casestudy will presentits analysisusing tools
developedaspart of ANT. ANT will prove particularly useful to this analysisbecauseof its
focus on the way in which heterogeneousactorscometogetherto negotiateoutcomesfor a

problem that they perceive to share (even where they might disagree on the specific
contoursof the problem itself).

141
The third problem/solution for biopiracy is a kind of anti-solution which claims the
"problem"with biopiracy to be one which is more endemicto the JPRsystemitself. As a
ftindamentalpart of its logic, this particular approachoffers up critiques of both the status

quo and the modification approachesand concludesthat biopiracy can only be addressed
through a more thorough rethinking of the various mechanismsimplicated in the biopiracy
matrix, or the total abolition of patentson life generally.Oneof the most interestingaspects
of thesethree approachesto the biopiracy "problem" is the way in which, in eachof the
cases,the solution proposedis co-producedwith a particularunderstandingof the notion of
biopiracy. While this may not be surprisingin itself, what is interestingis the way in which

many of thesesolutions, by being advancedinto suchan undefinedand chargedclimate as

that which emergesaround biopiracy, are also actively engagedin contestationsabout
what, exactly,this term will meanaswe addressit in the future. In effect, we arewitnessing
the negotiationof the contoursof the issueof biopiracy itself, asthe ways which areagreed
upon to addressit will be absolutely integral to how we understandit.

The solutions consideredhere are not meant to present-anexhaustivelist of the possible

solutions to biopiracy, but merely to suggestone possible typology for understandingthe

different impetusesbehind the manifold solutionsthat havebeenproposed.Examiningthe
issue of biopiracy in this fashion also helps to cast light on the way in which proposed

solutionsto a given problem can go a long way towards defining that sameproblem,which
will aid in a more comprehensiveunderstandingof the consequencesstemming from the
deploymentof biopiracy.

Maintain the status quo

Throughout the period when biopiracy has been "taken up" in various forums, there has

always beena forceful argumentput forth from severaldifferent sectorsthat biopiracy is

simply impossible.This argumentis advancedon severalgrounds,not the leastof which is
by referring back to the productsof naturedoctrine the simple discovery of somethingin
-
its naturalstateis not patentable.Likewise, the prior art criteria meansthat if knowledgeof

an invention's use is already obvious or widely known that invention too is rendered
unpatentable.At its most extreme, this view seesbiopiracy as an alarmist and overly
simplistic misunderstandingof the IPR systemin generaland often presentsallegationsof
biopiracy asapparentlytypical of a naYveanti-capitalist idealismespousedby thoselabelled

as "anti-globalization". For instance,a report funded by the PharmaceuticalResearchand

142
Manufacturersof America (PhRMA) from Alan Oxley and the Australian APEC Studies
Centre entitled "Tivo myths 'Green Gold' and 'biopiracy"' claims that their research
"revealed that there are virtually no casesof biopiracy (defined as forcible and illegal

removal of property) asclaimed by the Secretariatto the Conventionon Biodiversity,UNEP

and non-governmentalorganizations like the Third World Network" (Australian APEC
Studies Centre, 2006, p. 1). Oxley, the head of the APEC Studies Centre and a former
Australian ambassadorto the GATT hasalso foundeda "free-markef'NGO, World Growth
because"we [World Growth] think that public policy debatein international matters on

globalization, the field's beenleft too opento groups who don't support free marketsand
don't think globalization is a good idea.We think the reverse"(IntellectualPropertyWatch,
2006).

For his part, in a recent article Chen claims that "[m]ost allegations of biopiracy are so
thoroughly riddled with inconsistenciesand outright lies that the entire genre,pending
further clarification, must be consignedto the realm of 'rural legend"' (2005,p. 1).In their

respectiveanalysesof the biopiracy issue, these two commentatorsprovide extremely

normativeapproachesto the biopiracy question.Oxley's groupdefinebiopiracyin a limited
way andonewhich demonstratesa certainignoranceof the way in which the'termhasbeen
usedin international forums. They define it as "forcible and illegal removal of property",

and in so doing basetheir justification on a very limiting, and somewhatself-fulfilling

definition of biopiracy. In order for geneticresourcesto be forcibly or illegally removed,as
they suggest,there needsto be a universal acceptanceof the norms of Euro-American
property and legal jurisdiction in thesesameresources,eventhough this is often precisely
what is at issuein allegationsof biopiracy. Little thought is apparentlygiven to the way in
which the term is used by many to approachproblems or discrepanciesthat might exist
within the current systemitself, for instance,in the mannerin which geneticresourcesare
defined as property, somethingwhich will be taken up at greaterlength below.

One of the most typical ways in which this narrative is advanced is by normatively

appealingto the seeming transparencyand "actually" limited nature of the JPRsystem.

Hank Greely, a prominent US legally-trainedbioethicist puts it as such (with referenceto
the RAM allegationthat the patentingof an immortal cell line derived from a Hagahaiman
in PapuaNew Guinea, amountedto the patenting of a person):

143
 [t]he patentdoesn't patenta person.It doesn't evenpatenthumangeneticmaterial.It's
the cell line, a viral preparationderivedfrom the cell line, andthreedifferent bioassays
to seewhether peopleare infected by this virus. And the idea that the US government
ownsthis personor his geneticmaterial is absoluterubbish.[T]he donorsinvolvedcan
continue,obviously, to usetheir own DNA to run their bodies.They could also,ifthey
chose,patentanything they wantedto patentthat asan 'invention' from their DNA (in
Pottage,1998,p. 157).

Theseexamplesmakethe claim that those alleging biopiracy not only wilfully or accidentally
disregard the science (the patent doesn't patent human genetic material, though the activists

assert it does) but also fundamentally misunderstand the IPR involved (they apparently
claim that this patent thus confers ownership of a person). This approach to.the problem of
biopiracy clearly assumes that biopiracy is misunderstood, over-hyped, alarmist and/or

mythological - it is simply not happening, or, is actually impossible. For them, alongside
their polemical and often conspiratorial assertions about the general "anti-globalization"
basis for these claims, they allege that the problem stems predominantly from a deficit in

the way IPR is presented or approached. To quote Oxley again:

There's a world of difference betweenthe property rights ofa geneticresource,owned

and securedwhichever way you do it, an'dthe intellectual property right derived in
invented products. Philosophically, this proposal denies the significance of the
invention. The claims that biopiracy is the problem in the end root down to examples

of misapplicationof intellectual property law. And when you go hunting to say,'What

biopiracy are you talking about?' nearly all instancesthey put forward don't constitute
biopiracy, they constitute a transactionwere someonewho's figured that something
has happenedthat isn't fair, which is an entirely different matter to whether legal

rights have been protectedor not (Intellectual Property Watch, 2006, p. 6).

thesegroupsacceptthat there might be biopiracy, the solution

In the isolatedcases,%vhere
for them is simply to addressthe deficits in individual casesof biopiracy - be they deficits
in the specific criteria of patentability, or in how the benefits are apportioned,if indeed
benefits even exist. For them, if prior art can be demonstratedin alleged instancesof
bioPiracy, then there can be no patent claim on the given invention as it is not novel.
Likewise, if a patentis filed on somethingsimply "discovered" in nature,it alsowill not be

granted,as it lacks an inventive step. Further, those advocatingthis position arguethat if

there ever were a patent erroneously issued, then the system would correct itself if

144
presentedwith thejustification to do so (e.g. demonstrationof prior art, obviousness,etc.),
via the patentreview processbuilt into any IPR system.Thus, the "obvious" natureof the
system's workings is here seento preclude any chancefor biopiracy - IPR becomesa
solution in itself.

This particular approachto biopiracy - that there is actually no biopiracy aslong aswe are

able to accessall the relevant information about a particular invention - has beenapplied
practically in a couple of ways. One of the most celebratedhasbeenwhat is referredto as
"defensive publishing", where vast storesof TK are brought together in databases,or on

websites,to fonn a repository for "prior art" in an accessibleform. The idea behind this is
that when the stateor other intermediarycompilesdatabasesof TK in an accessibleformat
this would serveasa meansto demonstrateprior art, either for patent examinerssearching
for it, or for those actors seekingpatentson it.

One example of the defensive publishing approach was the Traditional Ecological
KnowledgePrior Art Database(TEK*PAD), which was setup originally by the "American
Association for the Advancement of Science in partnership with a range of other

organisationsintent on protectingthe rights of indigenouspeople" (BBC News, 18March,

2003). It was seenas a way to "addresstraditional knowledge that is alreadyin the public
domain and promote its use as prior art [ ] In addition to information already in the
...
public domain,T.E.K. * P.A. D. allows forthe option of defensivedisclosure,fortraditional
knowledge holders who wish to place information in the public domain in order to pre-

empt patentingby others." (Traditional Ecological Knowledge Prior Art Database,2004,

emphasisadded).48

A partnershipbetweenseveralministries andi nstitutions within the Indian governmenthas

alsoembraceda similar option, and is undertakinga project to compile a databaseof Indian
TK, called the Traditional Knowledge Digital Library (TKDL) to be sent to patent

examinersworldwide. The TKDL is describedas:

a collaborative project behveenNational Institute of Science Commmication and

Information Resources(NISCAIR), Council of Scientific and Industrial Research,
Ministry of Science& TechnologyandDepartmentofAYUSH,Ministry of Healthand
Family Welfare, which is being implementedat NISCAIR. An inter-disciplinaryteam

48The website for TEK*PAD, bttp://sbr.aaas.orehek/teknad.htm, though active until 2006 now appears
to have beentaken off of the web, with no explanation.

145
 of Traditional Medicine (Ayurveda, Unani, Siddha,Yoga) experts,patentexaminers,
IT experts,scientistsand technical officers are involved in creation [sic] of TKDL for
Indian Systemsof Medicine (Traditional Knowledge Digital Library, 2007).

The TKDL has been couched in a terminology which posits it as a direct counter to

perceivedendemicbiopiracy, andcitesthe contentiousturmeric andbasmatipatentsaspart

of its inspiration. In their websitepagetitled "Bio-piracy of Traditional KnoWedge", they
featurea subheadingwhich detailshow the TKDL will serveasa "tool for prevention [sic]

of misappropriationsof traditional knowledge" (Traditional Knowledge Digital Library,

2007). The TKDL is designedto make it easierfor patent examiners(and, to an extent,
inventors) to accessinstancesof prior art that might stand in the way of patents on

particular TK derived inventions. As one official with the project explained "it seeks
explicitly to build a bridge between the knowledge contained in an old Sanskrit verse
(Shloka)andthe computerscreenof a patentexaminer in Washington" (quotedin Reddy,
2006). The project hasproven somewhatcontroversial,however,with somesuggestingthat
compiling such a database might actually serve to facilitate biopiracy by serving as a
possibleresearchtool for companies looking for new avenuesof bioactivity, who could
then usethe TK that particular plants might be bioactive to extract some form of "novel"
invention from them (Jayaraman,2002).The parametersof applicability for thesedatabase

projects remains somewhatunclear, though it seemsfairly clear that simply identifying

general uses of certain plants and TK practiceswill likely be insufficient to count asrobust

or significant enoughprior art to make patentsinvalid.

However it is approached,either by dismissing it out of hand as a confusedor malicious

fiction or by going along with the systemthrough defensivepublishing, this perspectiveon
biopiracy is basedon the assumptionthat wherebiopiracy hasbecomean issue,it is dueto

an instance of the rules of IPR being mis- or incompletely applied, or to a wilful or

accidentalmisunderstandingof the IPR system.Thereareseveraltrenchantcritiquesof this
particular perspective,including the inherentassumptionthat all of the relevantactorshave
the same,perfect, accessto the system'scorrective mechanisms-a critique which will be
taken up more thoroughly in a later sectionon new property paradigms.

146
Adjustment of the existing system - ABS and disclosure of origin

Most of the solutionsproposedto the problem of biopiracy suggestthat the way to address
biopiracy is to adjust aspectsof the existing systemfor accessing,identifying, researching,

exploiting, conserving, patenting aspectsof, or otherwise using genetic resources.This

sectionwill focus on two broad types of solution which are both enactedby strengthening
certain aspectsof the existing systems.Initially, it will look at an approachthat stresses
changes in the existing IPR rules for genetic resources,and focuses on a proposed
requirementto disclosethe origin of the geneticmaterial that forms the basisof aparticular
invention. The other solution involvesputting into practicearrangementsfor prior informed

consentand benefit sharing, usually drawing on the ABS stipulations in the CBD. The
CBD is particularly important to this equation in practice as benefit sharing necessarily

requires a specific site and a defined group. It also requires the negotiation of specific
conditions of access,which will usually be conductedwithin a national framework which
recognizes,at leastto a certain degree,a country's claim to geneticpatrimony over a given
geneticresource- somethingwhich is brought about by the CBD.

TRIPSICBDharmony and disclosure oforigin

Much of the "take-up" of the conceptof Wopiracy by developing world governmentshas

beenre-presentedin their participation in international negotiations,generallythoseabout
trade or the environment.Many of the developing countriesthat are the most vocal about
the needfor legal protection of TK haveconsolidatedaroundthe conceptof a disclosureof
origin as a potential way around the existing deadlock resulting from allegations of
biopiracy. Much of the discussionaboutdisclosureof origin comesaboutaspart of calls to

clarify the relationship between, and ultimately to harmonize the rules of the CBD and
TRIPs regimes, as was suggestedby the WTO's Doha Ministerial Mandate. Nath's

suggestion,made on behalf of India at the outset of the Hong Kong ministerial process,
typifies this approach:

on the unfinished agendaof developmentinherited from the Uruguay Round is the

imbalancein the TRIPs Agreementbetweenprivate IPRsand the intellectual heritage

of communities.There is growing populardiscontentamongdevelopingcountriesover

bio-piracy and the misappropriation of their traditional knowledge for commercial

gain. The Hong Kong Mini sterial must pavethe way for the launch of negotiationson
the issues pertaining to the relationship between the TRIPs Agreement and the

147
 Convention on Biological Diversity (World Trade Organization Ministerial
Conference,2005, p. 2). 1

The conferenceof the parties at both the CBD and TRIPs have given a fair amount of

spaceto this issue, with little that has been conclusively decided at the time of writing.
Nevertheless,it seemsclear that many countriesin the developing world feel that an IPR

regime which requires that the origin of the geneticresourcesupon which an invention is
basedbe disclosedwill provide the impetusfor a benefit sharingagreementbaseduponthe

exploitation of theseresources.In 2002,the delegationsof Brazil, China,Cuba,Dominican

Republic, Ecuador,India, Pakistan,Thailand,Venezuela,ZambiaandZimbabwesubmitted

a proposalto amendthe TRIPs agreementto bring it more in.line with the provisions of the
CBD. The proposedamendmentread, in relevant part, as follows:

that Members shall require that an applicant for a patent relating to biological
materialsor to traditional knowledgeshall provide, asa condition to acquiring patent
rights:

disclosureof the sourceandcountry of origin of the biological resourceand

of the traditional knowledgeused in the invention;

evidence of prior informed consentthrough approval of authorities under

the relevant national regimes;

evidence of fair and equitable benefit sharing under the relevant national
regimes (World Trade Organization Council for Trade RelatedAspectsof
Intellectual Property Rights, 2002).

This proposal is also significant becauseit conflates disclosure of origin with providing

evidence of sufficient ABS in patent applications. If enacted,this would considerably

expandthe remit of what is generally required of patent applicants,who would ordinarily
only be requiredto demonstratethat their invention met the requirementsfor patentability.
This notion that.a disclosureof origin would solve the problem of biopiracy hasmet with

considerablescepticismfrom many fronts in international IPR debates,most notably from

the US. In a responseto this proposedamendment,the US explains that:

India, Brazil and other co-sponsorsof the paperallege that 'the lack of safeguardsin
the TRIPS context has led to a situation where ... genetic resourcesand traditional
knowledge are often erroneously dealt with as if they formed part of the public
domain' and that 'no consideration is given to the fact that genetic resourcesand

148
 associated traditional knowledge constitute a fundamental contribution to the
attainmentof the invention'. However, it is not the 'lack of safeguards'in the TRIPS
contextthat createsany 'erroneous' treatmentof the relevantresources,but insteadthe
lack of clearly defined national systems directly regulating the use of genetic

resources,particularly in the context of accessand benefit-sharing (ABS) systems.

Many countries have only recently enactednational ABS regimes, or are still in the

processof doing so. The implementationand effectivenessofthese systemsshouldbe

carefully examined before considering new proposals,such as those relating to the
patent system, which would likely result in legal uncertainty and other negative
consequences(World Trade Organization Council for Trade Related Aspects of
Intellectual Property Rights, 2006, footnotesomitted).

This is a particularly interesting stance,as it is in effect arguing that the fault lies neither

with the international regulatory regime, nor with the companiesengagedin the alleged
exploitation. Rather,the fault lies with the developingcountriesthemselves,through their
inadequateenactingand enforcementof ABS regimes.This displacesthe solution, suchas
it is, from the TRIPs agreementor the IPR system to those countries themselves,and

absolves the TRIPs agreement entirely. Additionally, they also advanceda claim asto how
this systemwould prove ineffective and unduly onerousfor those applying for patents:

We further note that there appearsto be a presumption by the proponents,without

empirical evidence, that an invention related to a genetic resource is automatically

basedupon illegal accessor misappropriationabsentconcreteevidenceto thecontrary.
However, as discussedabove,many geneticresourcesare indeedcommercially sold,
legally obtained,and independentlyresearchedand developedinto inventions. Even

within publicly accessibleinternational and national gene banks, there are many
resourceswhere the country of origin is unknown. Even assumingarguendo,that new
disclosure requirementscould achieve the purported goals, new patent disclosure

requirementswould be unworkable given the absenceof knowledge of country of

origin for numerouspublicly availableresources.However,aspreviouslystated,such
neiv disclosure requirementscreate legal wicertainty and increasedburdensoil the
patent system,as ivell as negativeeffectsoil benefit sharing, hut will notprevent the
purported acts of misappropriation or bad patents. These objectives must be
accomplishedthrough national ABS systemsupon accessto the material initially.
Theseexampleslead to the conclusionthat new patent disclosurerequirementswill

not achievethe desiredobjectives and that incorporation of such requirementsin the

patentsystemwould stifle innovation and unden-ninethe patentsystem(World Trade

149
 OrganizationCouncil for TradeRelatedAspectsof IntellectualPropertyRights,2006,

emphasisaddedand footnotesomitted).

Immediately evident in this passageis that the US, as they do elsewhere,refrains from

using the term biopiracy (for obvious yet very telling reasons)andinsteadprefersto referto
these cases as instances of "purported acts of misappropriation or bad patents".
Additionally, we can again seehow this stanceattemptsto move the discussionof this

particular issueaway from the internationalrealm in that

suggesting the problemis actually
most appropriatelyaddressedthrough the enactmentof ABS regimesat the national level.
The role of ABS is somethingwhich we will turn to in the next section.

If we recall the CBD's role in recognizinggeneticresourcesasnational resources,thenit is

likely that one of the driving factors of this particular version of the solution - to better
harmonizeTRIPS andthe CBD - might comeabout for national economicreasons.Given
that the vast majority of the world's biodiversity is located in the developing world (c.f.
Kloppenburg, 1988a)and that the geneticresourceselementsof this biodiversity are now

recognized as falling within national remits,then somecountriesmight legitimately seethis

as a way for them to leveragetheir comparativeadvantagein this sector.Indeed,this has
beendiscussedat WIPO, where a presentationat the High Level Interregional Roundtable

on Intellectual property for the LeastDevelopedCountries(LDCs), Geneva,September30,

1999explainedthat:

As an outcome of the Uruguay Round negotiations, many developing and least

developedcountries have accepted the obligation to establish high standardsof
intellectual property protection, as a means of promoting free trade. It may be

argued that biodiversity, and the traditional Ifflowledge associated with using it
in a sustainable manner, are a comparativeadvantage of those least developed

countries that are biodiversity-rich, enabling them toparticipate more effectively

hi global markets and thus rise abovethe current levels ofpoverty and deprivation.
This is an example of how protection of traditional knowledge at the national and
international levels may be seen as a potentially powerful tool for advancing the
integration of least developedcountries into the global economy"(Quoted in: World
Intellectual Property Organization Intergovernmental Committee on Intellectual
Property and Genetic ResourcesTraditional Knowledge and Folklore Fifth Session,
2003, emphasisadded).

150
Oneof the strategiesthat suggestsitself from this would be for biodiversity rich developing

countrieswhich havea correspondingcapacityto developpharmaceuticalsor commercial

seedstrainsto advocatefor the enactingof robust systemsof protection for IPR so long as
these systemsare equally robust in identifying the country of origin and of agreeingto
accessand benefit sharing conditions related to that access.Thus, many of the countries
that are the most vocal about the threat of biopiracy to their genetic resourcesmake this
allegationfor altogetherdifferent reasonsthan thosethat arealleging that thepatentingand
resulting commodification of geneticresourcesthemselvesarea violation of somebroader
notion of a humanor natural commons.At this point, therewould likely be different but no
less legitimate concernsraisedby many of the indigenousgroupswho are engagedin the
issue,who feel that, at present,thereareinadequateor incompleteprovisionsin the CBD to

ensurethat the benefits from these"national" allocationsof geneticresourcesflow to those

TK holderswho were the "inventors" of the geneticresourcein question.The response(s)

of the "no patents on life" activists is what we will turn to in the final section of this
chapter.

In addition to these concerns,there are also possible confusions which arise when the

geneticpatrimony of a given resourceis in question,suchas when two or more countries

might lay claim to the same genetic resource.Complications could also arise when, as
relied upon heavily by the US in their statementabove,the sourcecame from a "global"
geneticresourcesbank. There arealso situationswherethe country from which the genetic
resourceat issue was obtainedfor the purposeof researchmight not have been the country
where it is most likely to havegeneticallyoriginated (if sucha thing were evenpossibleto
ascertain).This would add another layer of confusion over the existing problems with
disclosureof origin asa solution to biopiracy. Countriescould evenusethesedemarcations

of "origin " asmeansto carveout particular nichesfor themselves,often to the exclusionof

their neighborswho might have equal claim to the resourcein question,thereby adding a
more South-Southangleto the traditional view of biopiracy asa North-Southissue.Recent
work has pointed to someof the challengesthat this bring up for sovereigngovernments
looking to establish and calculate what, exactly, can constitute "their" national genetic

resources(Tamminen, 2006). Whatmore's researchon the International Undertaking for

Plant GeneticResourcesalso engageswith this question,and reflects someof the tension
,
which emergeswhen trying to interpretthe significanceof "the cut betweenthe global and
the national in the spaceof the polity, the line that configuresthe 'we' in whosenamethe

151
collective governs,carving out isjurisdiction over PGR asa'heritage of humankind' from
49
the practicedterritorialities of sovereignnation states"(2002, p. 97).

There is also, for thesecountries,likely to be a great deal of domestic political benefit in

shaping theseissuesas ones of national resourcesand competitive advantage. As Hayden
(2003) suggestsin her study of bioprospectingin Mexico, for instance,one of the reasons

which led to bioprospecting taking hold in Mexico in the way that it did was that it was
peggedin part to a national project of championingtheseresources,both geneticand TK,
as being part of a focus on reestablishingtheseasa point of national pride. This canbe seen
aswhat Whatmore refers to as a "project of nation building whether throughthe legacies
of
colonial scienceor ongoing practiceof statemodernization" (2002, pp. 102-103).In many
cases,there would also be significant domestic political and possibly economic gain for
some if theseresourceswere thought of as being integral both to an economicanda socio-
in 50
cultural flowering a particular country.

Accessand Benefit Sharing

If biopiracy is assumedto be an issueof a misallocation of IPR, a lack of prior informed

consentin initially accessingbiodiversity or as a glitch in the systemfor redistributing the

benefitsof geneticresources,then the solution that suggestsitself is one of benefit sharing.
As with the solutions looked at aboye,benefit sharingrespondsto biopiracy understoodin a

particular way but does not offer many alternative ways through which the benefits from

thesegeneticresourcescould be actualizedin any way other than through the IPR system.

Benefit sharinghas long featuredquite prominently in the discoursesof the plant genetic
resources movement (as chronicled in Chapter 3) as well as in the discourse of
One
ethnobotanists. of the earliestnotions of benefit sharingfor TK and biodiversity came

49In this samebook, Whatmore also provides somevaluable insights on the in situ/ex situ questionwhich
has consistentlysurfaced in international discussionson PGR, especially pertaining to the location of
resourcesin situ in the countries of the developingworld, and their relationship to corresponding
locations in ex situ collections. (SeeWhatmore,2002 for more information, and seethe discussionin
Chapter2 to contextualizethe significance of this further).
50Hayden
addressesthe national strategyof the Mexican governmentto (re)integratetraditional medicines,
their knowledgesand practicesinto a national championingof innovation and, in a way, inventive capacity.
This is reminiscent of a move in some countries, such as in Vietnam, towards (re)validating traditional
medicine and consequentlythe existing national 'scientific' capacity by creating initiatives to describe,
collate, and encouragethe useof, traditional medicalknowledges.I am indebtedto Ayo Wahlbergfor helping
me to develop my understandingof this areamore completely.

152
in the form of the Declaration of Belem, agreed at the First International Congressof
Ethnobiology in Belem, Brazil in 1988,which urged among other things that:

" Henceforth, a substantialproportion of developmentaid must be coveredto efforts

aimed at ehnobiological inventory, conservation,and managementprograms;
" Mechanismsbe establishedby which indigenousspecialistsarerecognizedasproper
Authorities and are consulted in all programsaffecting them, their resources,and
their environments;

" Proceduresmust be developedto compensatenative peoplesfor the utilization of

their knowledge and their biological resources;

" All medical programsinclude the recognition of and respectfor traditional healers
andthe incorporation of traditional healthpracticesthat enhancethe healthstatusof
thesepopulations;

" Ethnobiologists make available the results of their researchto the native peoples
with whom they have worked, especially including dissemination in the native
language(International Society of Ethnobiology, 1988).

indeed, though it is often overlooked,benefit sharing is also somethingwhich formed a

fundamentalpart of the practice of bioprospecting.Though originally conceivedof as a

way to identify and exploit the benefits of geneticresourcesand TK, bioprospectingalso

to
aimed ensure that thesebenefitsbe shared by the bioprospectorsandthosethat helpedto
provide the TK or the stewardshipof the resources.

The issueof accessand benefit sharinghasalso beenintegral to the CBD, featuring asone

of its Objectives,and it hasbeen in this forum that much of the discussionaboutthe issue

of biopiracy and benefit sharing has taken place. To that end, Article 15 of the CBD,
addressesthe issue of Access and Benefit Sharing which, along with recognizing-the
sovereignrights of statesover their naturalresources,stressesthat "Access,wheregranted,
shall be on mutually agreedterms and subject to the provisions of this Article. " (Article
15.4) and that "Access to geneticresourcesshall be subjectto prior informed consentof
the ContractingParty providing suchresources,unlessotherwisedeterminedby that Party.
(15.5)" (Convention on Biological Diversity, 29 December,1993).

The provisions for ABS outlined in Article 15 have given rise to some of the more
extensivedebatesat the CBD, andthey havecommissioneda working groupspecificallyto
addressthe issuesput forth in Article 15. The Bonn Guidelines on Access and Benefit

153
Sharingwere one of the most significant developmentsto emergefrom this group. In the
introduction to the Guidelines, Hamdallah Zedan, the Executive Secretaryof the CBD

statesthat:

The Guidelinesare expectedto assistParties,Governments,and other stakeholdersin

developingoverall accessand benefit-sharingstrategies,and in identifying the steps
involved in the processof obtaining accessto genetic resourcesand benefit-sharing.
More specifically, the guidelines are intended to help them when establishing
legislative, administrative or policy measures on access and benefit-sharing
(Conferenceof the Partiesto the Conventionon Biological Diversity, 2002, p. iv).

Article 80) of the convention also deals quite specifically with ABS, stating that:

8. Each contracting party shall, as far as possibleand as appropriate,[ ]

...
0) Subject to its national legislation, respect, preserve and maintain knowledge,
innovationsand practicesof indigenousand local communitiesembodyingtraditional
lifestyles relevant for the conservationand sustainableuseof biological diversity and

promotetheir wider application with the approval and involvement of the holdersof
suchknowledge, innovationsand practicesand encouragethe equitablesharingof the
benefits arising from the utilization of such knowledge, innovations and practices;
(Convention on Biological Diversity, 29 December, 1993).

This sectionhasalso,predictably, spawneda greatdeal of discussionwith little consensus

to date.This has led the Convention's secretariatto convenea working group on Article
80), dealingspecifically with the implementationof the article and its relationshipwith the
Convention as a whole. The following extract from the UN Pennanent Forum on
IndigenousPeoples,submitted aspart of a broaderlist of recommendationsprovides one

perspectiveon the potential scope and scale of the remit of Article 80), and the wide-
ranging potential importancethat it signifies for many concernedactors:

Recommendation 9

Convention on Biological Diversity

57. The Forum recommends the establishment of an international ethical code on bio-

prospecting in order to avoid bio-piracy and ensure the respect for indigenous cultural
and intellectual heritage. Under the framework of the Convention, a mechanism should
be established for the repatriation and devolution of genetic materials collections to
indigenous peoples. The Forum recommends to the Convention secretariat that the

154
 global taxonomy initiative incorporatean ethical principles and social framework for
the protection of indigenouspeoples.rights to their lands,traditional knowledgeand
resources-beforeits implementation(United Nations PermanentForum on Indigenous
Issues,2003, p. 12).

Recentdiscussionsat the WTO havealsotakenup the accessandbenefit sharingdebatein

earnest,with submissionsfrom Peru among others discussinghow individual countries

have respondedto "identifying and preventing" biopiracy. The view of many developing

country governmentsis that the prevention of biopiracy is something which needsto be

addressedexplicitly by the various international agreementsthat could be seento traverse
its territory (most notably the TRIPs agreement,the CBD and WIPO). To that end, as
discussedin the last chapter,Peru has createda "National Anti-Biopiracy Commission,

whose basic task is to develop actions to identify, prevent and avoid acts of biopiracy
which involve biological resourcesof Peruvian origin and traditional knowledge of the
indigenouspeoplesof Peru" (World TradeOrganizationCouncil for TradeRelatedAspects

of Intellectual Property Rights, 51

2005a).

The Commission,though still in its early stages,will ultimately institute "actions against

pendingpatent applications or patentsobtainedor developedfrom the useof a biological

resourceor traditional knowledge without the prior informed consent of the country of
origin of the resourceor of the indigenouspeople owning rights in the knowledge, and
without providing for any type of compensationto that country or indigenous people"
(World Trade Organization council for Trade Related Aspects of Intellectual Property
Rights, 2005b, p. 4). Thus, it would seemthat in this regulatory realm, the problem of
biopiracy is seenpredominantly asonewhich comesaboutbecauseof glitchesin thepatent

system(i. e. "bad patents"); shortcomingsin how the material or knowledgewas accessed;

problemswith the benefit sharing undertakenas part of the patent or any combination of
the above. Peru's fonnulation, and that of other countries who have taken similar

"Other submissionsfrom Peruexplain that this Commission: hasthe task of developingactionsto identify,
prevent and avoid acts of biopiracy with the aim of protecting the interestsof the Peruvian State.Its main
functions areto: establishand maintain a registerof biological resourcesand traditional knowledge;provide
protection againstactsof biopiracy; identify and follow up patentapplicationsmadeor patentsgrantedabroad
that relateto Peruvianbiological resourcesor collective knowledge of the i,ndigenouspeoplesof Peru;make
technical evaluations of the above-mentionedapplications and patent grants; issue reports on the cases
studied; lodge objections or institute actions for annulment concerning the above-mentionedpatent
applicationsor patentgrants;establishinformationchannelswith the main intellectualpropertyofficesaround
the world' draw up proposals for the defence of Peru's interests in different forums (World Trade
Organizationcouncil for Trade RelatedAspectsof Intellectual Property Rights, 2005b) (IP/C[W/441)

155
perspectivesforth, can also possibly be seenin light of the issueof establishinga national
comparativeadvantage,as discussedin the previous section.

Ultimately, the end goal of establishing a declaration of origin or of policing national

genetic resources would be to create the context for some form of benefit sharing
agreement,wherein the economicvalue derived from the biodiversity andTICwould be in
part channelledback into the country andperhapsthe specific group of peoplefrom which
it ostensiblyoriginated.Therehasbeena greatdeal of discussionaboutbenefitsharing,but

comparativelylittle by way of actually putting it into practice.Nevertheless,therearea few

seminalexamplesof the in
way which benefit sharingcould be carried out in caseswhere
biopiracy has been alleged. One of the most celebratedof these caseswill be discussed

next.

Casestudy in benefit sharing: Hoodia

Given that ABS agreementsare one of the most frequently discussedways of combating
biopiracy, the following casestudywill chronicle onesuchagreement,andreflect on how it

can be seen as enmeshedin a network of heterogeneousactors who come together to

addressa sharedissue.Sincethis case,aswith many benefit deals
sharingcases, with such
heterogeneousactors and different approaches,I will addressthis particular issue by

rooting the analysis in ANT (Callon, 1986,1997; Law, 1992,1999a, 1999b; Law &
Hassard,1999).

Particularly relevant to this casestudy will be the tools developedby ANT practitioners

which focus on how ANT can clarify how "heterogeneousactivities are brought into a
relationshipwith one another"particularly through the useof intermediaries,actorsandthe
processof translation (Callon, 1997). The notion of obligatory passagepoints (OPPs),
which must be passedthrough by all actors to ensurethe successof the network is also
particularly helpful to this analysis. ANT's treatment of non-human actors in the same
terms as human ones will also be quite useful when following the biological entities, as
actors,through the various networks that they passthrough and participate in.

The examplethat will be usedin this study involves, essentially,tracing the translationof
Hoodia into P57 and then into a patentwith an attachedbenefit sharing agreement,taking
into accountthe significanceandramifications of this translation.The first partNvillattempt

156
to define the OPPsthat haveemergedin the developmentof theHoodiaIP57actor-network.
The secondsection will look at how ANT can be used to chart the way in which the
heterogeneousaspectsof the Hoodia patent and those actors involved in it are brought
together.Central to this will be an examinationof the translationtools that allow Hoodia,
P57, the patentitself, the IPR systemand the myriad human and organizationalgroupsto
develop a relationship with one another,and ultimately to negotiate an ABS agreement.
While many ANT studies are aimed at tracing the contours of networks via the
intermediaryof scientific practice,this particular studywill apply the tools of ANT to trace
this network via the intermediary of IPR. In effect, this will provide anotherfacet to this
analysis, and will examine the role that the practice of IPR plays in consolidating this
particular network around the conceptsof geneticresourcesand ABS mechanisms.

In defining the passagepoints traversedby the various actors in this particular actor-

network, it is to
vital acknowledgeseveralpassagepoints that have already been passed
through by the various actors in other network relationships in which they have
participated.Though this is to be expectedwhen various actor-networkscometogether,the
system of IPR and the CBD, as laid out in earlier will be particularly pertinent to this
example. The existing matrix of IPR system(s) has had a considerable impact on the
Hoodia examplewhile also being reconfiguredby it and other scenariosarticulatedunder
the mantle of biopiracy. Again, as consideredelsewherein this thesis, one of the key
developmentsin the IPR systemhasbeenthe expansionof the definition of IPR to include
living things, as well as its expansionto a more global scale.This global expansionof the

scope of IPR was part of a network in its own right, as well as serving to inform the
in
strategiesof other actors reproducing itself into the future. It is particularly relevanthere
becauseof the centrality of IPR in the Hoodia example - without the ability to patent

articles derived from living things (i. e. P57) as well as the ability to profit from it
(conferredin large part by the attribution of IPR), this network would not havecomeabout
in the way that it has. As discussedpreviously, the CBD has also proven integral in
introducing the notion of a resourcevalue for nature (a forin of biovalue), in the fonn of

geneticresourcesalong with introducing the notion that thereshouldbe a process

of benefit

sharingattachedto the valuation of thosesameresources.Thesetwo aspects,biovalueand

benefit sharing,will be pertinent as the ongoing debateabout knowledge, ownershipand
life provide referencepoints for thoseactorssetting out to problematizethis asan issueof
biopiracy.

157
The actorsthat are going to be significant to this network arethe SanBushmen,theHoodia

plant itself, Phytopharm,the CSIR and Pfizer. It should be noted here that in the spirit of
ANT, the definition of theseentities asactorsencompasses the internal truncationprocess
that seesthem representedby particular representatives,which also allows them to be
displacedandreassembledat particular times andplaces(Callon, 1986).This is alsoborne

out in the development of this network, and will be seen with the emergenceof
representativesfrom each of these groups, from the South African San Council and the
Working Group on Indigenous Minorities in SouthernAfrica (WIMSA), to the lawyers
from Phytopharm and even to P57, acting as a representativefor the properties of the
Hoodia plant. Understandably,all of theseparticular negotiationsarethe productof myriad

other relationshipswith the environment,other networks, etc andthus the actorscannotbe

consideredto be part of specifically boundedhomogeneousgroupings.I will now examine
someof the particular passagepoints that are relevant to this network.

1) There is a plant (Hoodia) that is said to have certain effects on humans

As concernsthis particular OPP, one can trace a number of different negotiationsthat

occurredto define it. Firstly, one could advancethat the Hoodia plant itself wasinvolved in
developingthe particular chemical andgeneticbalancethat makeit up, perhapsin response
to environmental stimulus or other factors. At some point, the Bushmen identified the
particular effect that Hoodia could have on human beings, namely that it could act as an
appetiteand/orthirst suppressant.It wasthen accordeda certainsignificanceor importance
to the Bushmen based in large part on these properties. In 1937, an account of the
properties of Hoodia, by Dutch ethnobiologist R. Marloth was published (Stephenson,
2003). This is a particularly significant step in the process of translation, as it marks

perhaps the first time that the plant that the Sanknew became Hoodia, and was brought to
the attention of networks in other physical localities, though it should here be noted that
many accountsseemto indicate that it (and its properties) were widely known and used
amongBushmencommunitiesthroughoutsouthernAfrica, notjust SouthAfrica itself This
was followed in 1963by the beginning of the involvement of the CSIR, who investigated

and subsequentlyprovided scientific evidenceof the particular properties of Hoodia. In

many ways, this can be seenas a pivotal moment of literal translation, as this particular
plant became,at least for someactorsin the network, Hoodia (Wynberg, 2004).

158
2) Theplant can be categorizedlquantifiedas having certain properties and defined
limits as to its character

Having "proven" that Hoodia possessedcertain properties,the spaceopenedfor a more

focused involvement with the IPR system (which, at that time was itself growing and

actively involved in shapingitself). Oneof the goalsof the CSIR in isolating the particular
appetite-suppressant
properties of Hoodia was to securesome form of IPR protection for
their "invention", as this would allow them to exploit it commercially. A prerequisitefor
this, wasthat therebe an agent,in this caseP57, isolatedfrom the product's naturalstate,as
part of the Hoodia plant. In 1996, the CSIR started filing patents around the world to
its
protect "invention" of P57 (Stephenson,2003).

3) The acknowledgementof commercially applicable IPR in the HoodiaIP57plant

The isolation of a specific appetite suppressingcompound from Hoodia (subsequently

called P57 by Phytopharm)openedup the spacefor patentclaims on it and this represents
the ultimate form of translation in this particular network. In the act of demonstratingand
isolating the propertiesof Hoodia - essentiallytranslating somepropertiesof Hoodia into

something that could be representedas P57 the dominant system of science,and its
-
sibling IPR,fbi-eed a translation.

Despitehaving beeninitially dismissedasdisappeared- invisible in the network - the San

re-enteredthe network at this point by assertinga claim on Hoodia and the knowledge of
its uses.One of the intriguing parts of this developmentwas that becausethe patent in

question was on P57 rather than on Hoodia itself (see Figure 2), the patent would not

strictly limit the San's traditional usageof the plant - they would still be able to use it

exactly as before for the same Also,

purpose(s). because the agent P57 had been distilled
from the plant and synthesized,it would standto reasonthat the San's accessto Hoodia

growing in the wild would also not be restricted.At this point, the questionthat must have
beenput to the Sanwas: what exactly is the problem with the Hoodia patentasis? It would

appear,from the perspectiveof the Sanat that particular moment in time that the problem
was that someonehad appropriatedtheir knowledgeandpatentedit in orderto makemoney
off of it and that they would not benefit from that appropriation. Chapter 2 deals more
comprehensivelywith positive and positive and negativerights with respectto patents.In
this case,however, it is important to clarify that becausethe patent was on an appetite

159
suppressantderived from Hoqdia, thenHoodia in its natural stateremainsfreefor all to use
as they see fit. The process of isolation, however, is somewhat of a prerequisite for
patentability, and as such, the isolation of the P57 extract is a key step towards ensuring
commercialviability for the pharmaceuticalproduct. If andwhen P57 is understoodto be
"the" appetitesuppressingcomponentof Hoodia, then a patent on its use becomesquite

relevant indeed.

Though it might seemintuitive that the San,"inventors" of the useof Hoodia asanappetite

suppressant,should be entitled to benefit from commercial applications thereof, this

emergesas one of the central OPP points in this given network, and is one of the key
questions at the heart of the issue of biopiracy. In effect, it is by problematizing the
relationship in the terms that they used - i. e. that the San deserve some form of
compensationfor the use of their "invention" for profit, the discourse of rights and
entitlementtakesover, and cementsthe IPR network that is key to this example.

The other aspectto this particular OPPthat deservesrecognition is the acknowledgement

by the actorsin the network that the IPR vestedin P57 is only viable and worthwhile if it

can be exploited commercially. This would seem abundantly clear with respect to
Phytopharm,who areunderstandablynot interestedin patentsor researchthatwill not offer
them any economicbenefit. It also seemsthat the Sanhaverecognizedthe value of IPR for
commercialexploitation for their own reasons.In fact, asStephensonpoints out, they have
recognizedthe need to prevent interpretationsof the P57 patent thatwould view it as not
novel dueto its prior usageby the Santhemselves(Stephenson,2003)! In addition,in order
to avoid potentially damagingcustomerand "public opinion" backlash,the Sanand CSIR
have a mutual interest in ensuringthat their benefit sharing agreementis not perceivedas

onewherethe Sanare co-optedby the interestsof the CSIR. Finally, the Sanrecognizethat
the "profitability and public perceptionof the legitimacy of the end product standsto be
enhanced if it can be truthfully marketednot only as derived from practicesthat the San,
[ ] have followed for thousandsof years,but also as having been developedwith their
...
cooperationand informed consentandwith assurancesthat a fair shareof the revenuewill
be returnedto the San" (Stephenson,2003, p. 37).

Ultimately, however, all actors seemto recognize that the IPR related to P57 is useless

unlessthereis a commercially viable product that comesof it. The CSIR lack the capability
or the mandateto developdrugson their own, hencetheir licensing of the Hoodia patentto

160
Phytopharm.Phytopharm, for their part, are dependenton licensing their discoveriesin
to from thesediscoveries being turned into 52
drugs. Enter anotheractor,
order makeprofits
Pfizer, who signeda licensing agreementwith Phytopharm.Thus, it canbe seenthat in this

particular chain of IPR, the castingof HoodiaIP57 as it hasbeencast is heavily contingent

its
on making money, in this casethrough its commercial applicability for Pfizer. Indeed,

although Pfizer returned the patent, it was picked up by Unilever, who are, at the time of
writing, pursuing clinical trials of the Hoodia extract product (Phytopharm p1c, 2007).

Thereis an additional concernwhich hoversaroundthe Hoodia issue,which alsohasto do

with what is likely to be a limited timeframe in to a

which make profit from Hoodia. As has

often beendiscussed,
the herbal medicine and dietary supplementmarket areconsiderably
lessregulated(Bodeker,2003) than the marketthat Phytopharmis attemptingto breakinto
(i. e. the pharmaceuticalmarket for anti-obesity drugs). As a consequenceof this, and as

will be attestedto by anyonewho has beenthe target for unsolicited email touting products
suchas "Hoodialean ", there is a burgeoningmarket emergingto sell variouspreparations
of the Hoodia plant asherbal appetite This
suppressants. could have a numberof effectson
the San-CSIR-Phytopharmventure,including the fact that it could considerablyerodetheir
(if
market share people can get Hoodia from suppliers advertising on the internet, or their
health food store, where does the market for it as a pharmaceuticallie?) but could also

potentially damagethe reputation of products derived from Hoodia (i. e. if someonewere

peddling inferior, dangerous, or otherwise problematic versions of Hoodia), thereby

perhapscreating someconsumerresistance.

4) Theacceptanceofbenefit sharing as an acceptableperformance oftranslation to

makethe relationship equivalent

With the acceptanceof the transition that saw Hoodia go from a plant usedby the Sanon
hunting trips to a bundle of IPR in the form of a patent licensedto Pfizer by Phytopharm,

coupled with Phytopharm's acknowledgement of the San's existenceand their TK about

the properties of Hoodia, the network was compelled to find a way to make this

52"Phytopharm is a leading drug discovery companyusing traditional plant remediesas an enabling

technology to develop pharmaceuticalproducts. We keep our core competencesin house(pre-clinical,
clinical strategyand management)and outsourceall laboratory work and clinical testing to specialists-
thus enabling Phytophann,despiteour small size, to operateon a world-class level". (Phytopharm2003
annualreport)

161
relationship equivalent. After a long process,the framework that was agreedupon was

some form of benefit sharing agreementwhich would seethe San receive 8 percentof all
milestone payments received by CSIR from Phytopharm, as well as 6 percent of all
royalties that the CSIR53receives once the drug is commercially available (Wynberg,
2004).

As is the nature of the network being exemplified here, the benefit sharing agreementis

contingenton an acknowledgement that there is a plant (Hoodia) that hascertainproperties

that are quantifiable and distillable (via the intermediaryof bioscience),and that theseare
commercially exploitable (via the intermediary of IPR). Acknowledged in the benefit

sharing agreementis that the San are participants in the HoodiaIP57 network that passes
through theseparticular OPPs.The implications of the benefit sharing agreementwill be
discussedin greater detail in the following section. At this point, however, it must be

acknowledged that the CBD's mandate to sharethe benefits of geneticresourcesprovides

in
an essentialstructuring role providing the framework through which notions of genetic

resourcesand, indeed, benefits, can be understood in this case. In this way, the CBD
becomesan invaluable tool of translationto link P57, the San,the CSIR, Phytopharmand
the entire pharmaceuticalsystemmore broadly.

From Hoodia to P5 7 to S. A. Patent 983170

As discussed in previous ANT studies, one of the important steps involved in solidifying a

network is the development of translation tools, or devices of interessements(Callon, 1986)

that allow heterogeneous things and groups (both human and non-human) to be treated as

equivalent. In addition, these devices of interessement lock the actors into place
temporarily, to stabilize their identity but also to stabilize the tools (in this case, a

reasonably shared understanding of what is meant by knowledge and ownership) which

will be used for the purpose of translation. The Hoodia case, and biopiracy in general-

provide a fascinating example of these "heterogeneous sociotechnical relations" (Law,

1999a). Indeed biopiracy is concerned with contestations about notions of nature, power

and, quite literally, knowledge. As discussed above, absolutely central to an ANT

perspective on biopiracy is the commodification of knowledge in order to make it

53As a pointof clarificationabouttheownershipof thepatent,theCSIRpointsout: "the patentremainsa

CSIRownedSouthAfrican patent,but Phytopharm -through investments
significant in further
developmentand clinical trials - acquiredthe rights to commercialization" (Council for Scientific and
Industrial Research,2004)

162
transactable.When constructing the network that brings together TK of plants, the TK
holders, and the western pharmaceuticalindustries the common language - the tool of
translation - is IPR. In order for that to takeplace,there hasto be someagreedupon notion
of ideasandknowledgethat allows thesethings to be commodified, and thus transacted.In
short, the way in which the San's knowledge of Hoodia can converse with that of
Phytopharmis through the languageof ownershipand entitlement- Phytophannand the
San agreethat the commercial exploitation of the knowledge of the San is somethingthat

should be acknowledgedand that the Sanhave a certain right to be compensatedfor.

A second important point of translation in this debate is the fascinating way in which
Hoodia becomesequivalentwith P57.This is equally ascentralto claims of biopiracy asit
is to claims that the benefit sharing agreementnegotiatedin this network cancelsout the

notion of biopiracy. At the outset,it should be madeexplicitly clear in legal terms that the
patent on P57 grantsPhytopharmonly the monopoly on this particular Hoodia derivative,
and not on all Hoodia plants, or other applications thereof. Indeed, Figure 2, and extract
from the abstractof US patent 6376657showsthat the patent claims:

Figure 1- Excerpt from the Hoodia extract patent

(1)

A pharmaceuticalcompositionwhich containsan extractobtainablefrom a plant of the

genusTrichocaulon or Hoodia containing an appetite suppressantagent having the

formula (1). A process for obtaining the extract and a process for synthesizing

compound(1) and its analoguesand derivatives is also provided. The invention also
extends to the use of such extracts and compound (1) and its analoguesfor the
manufacture of medicamentshaving appetite suppressantactivity. The invention
further providesnovel intennediatesfor the synthesisof compound(1) (Van Heerden

et al., 2002).

163
For peoplethat usethis as a casestudy in biopiracy, Hoodia and P57, however,haveto be

made equivalent. In short, in order to claim biopiracy or even to claim that the San have
some inherent financial or IPR interest in P57 in this particular configuration, P57 and
Hoodia essentiallyhaveto be the samething. This equivalencybetweenHoodia-P57-S.A.

patent983170-benefitsis a perfect exampleof the way in which IPR is employedto create

andmaintain a separationbetweennatureandculture in the biocconomy, somethingwhich
will be the focus of the next chapter.

In terms of translation,however, ultimately what is being translatedin this network is the

knowledgeof the San,and the specific propertiesof theHoodia plant into somethingwhich
is commercially viable for the pharmaceutical industry. Inexorably bound up in this

network is the systemof IPR. As Callon (1998) would have it, this is a perfect exampleof
the way in which objects in a market society, in this example the Hoodia plant and the
knowledgeof its use(s),can be turnedinto entitiesthat can,for the purposesof transacting,
be disentangledfrom -thenetworks that make it up. As he puts it: "to constructa market
transaction,that is to say to transform somethinginto a commodity, it is necessaryto cut
the ties between this thing and other objects or human beings one by one. It must be
decontextualized,dissociatedand detached"(Callon, 1998,p. 4).

In many ways,this speaksto the heartof the contestationaboutbiopiracy. In this particular

instance,in order to satisfy requirementsfor patent protection Hoodia, or specifically the

appetitesuppressingpropertiesthereof, have to be decontextualizedto the point where it

54
can be attributed,by the IPR system,to a single author who would hold the patent. This
requires, as Callon says, cutting the ties betweenthis thing and other objects or human
beings.Thus,with the isolation andmove towardsexploitation of P57,the tiesbetweenthe
Sanandthe appetitesuppressantpropertiesof Hoodia arecut, asarethosebetweenHoodia

and its appetite suppressingproperties (which now exist in the forin of P57). They are
brought back together and recast, however, with the benefit sharing agreement.The

recasting,however,is donein a dramaticallyreconfiguredsystemof ownership,knowledge

and power. There are interesting correlations here with what Posey refers to as the
"commodification of the sacred"(1999). It would appearthat for many in situationssuchas
this, it is preciselythis decontextualization,so vital for theperformanceof thenetwork,that
is a problem, and is a site of considerableresistance.In fact, one of the most significant

54The issueof decontextualizationwill be consideredat greater length in the next chapter,with particular
referenceto the notion of the nature/cultureseparation.

164
points of disagreementamongthe relevantactorsin the bioprospecting/biopiracynetwork
more broadly deals with this decontextualization- for some in the network it seems
possibleto disaggregatea product of nature(i. e. the Hoodia plant) from its cultural uses,
indeedthis is even necessaryto obtain a patent while for others,this is impossible.

As mentionedearlier, the notion of materially heterogeneousnetworks and the fact that

actorsmay be both human and non-human,is applicablehere. In this particular example,

the most obvious non-humanactor to play an important part is the Hoodia plant itself. As
alludedto earlier, the Hoodia plant is conceivedof in different ways by different actorsin
the network, and can be said to be actually transformedby theseconceptualizations.The
principal question that arises from this is: Is Hoodia the sameas P57? Clearly for some
actors in this network, i. e. those who advancethis as a potential instance of biopiracy
(whetheror not they considerit rectified by the benefit sharingagreement)or who advocate
that the San should be entitled to someform of remunerationfor their contribution to its
development,it is. For others in the network, i. e. thoseinvolved with the isolation of P57

and concernedwith the mechanicsof the patent itself, i. e. that this is somethingthat is
unique, novel and not found in nature(and is not the Hoodia plant on the whole), it cannot
be. Thus, we see the emergenceof another translation mechanism,namely the benefit

sharingagreement,as a pertinent contributor to the workings of this network. The benefit

sharing agreement,in this capacity, allows for translation between those that view the
relationshipbetweenthe San,Hoodia andP57 suchthat the Sanarerecognized,to a limited
extent,ashaving had someinput into the "discovery" asit were, of P57.Essentiallythen,it
is the benefit sharing agreement,along with the IPR systemthat acknowledgesthat these
two can, in some settings,be seenasthe samething. But the question remains,however,
whetherthe IPR systemon its own would have performed the sameftinction.

It seemsclear that it was through the translating efforts of the IPR systemand the benefit
San form in 55
sharing agreementthat the were given some of stake the patent , and were
guaranteeda certain remunerationfor the commercial exploitation of their knowledge of
the use of a particular plant. What remainsunclear in this scenario,however, is to what
extent this form of translation was called into being solely by the systemitself. That is to
it
say, seemsquite clear that the methodof translation(thebenefit sharingagreement)wasa
tool that is contingent on the acceptanceof the parametersof the IPR system.It becomes

55Though clearly not as inventors, or holders of any of the patent rights.

165
rather clear at that point that alternative fonns of translation are cut off as possible
solutions.

Thus, for most forms of ABS, with the Hoodia casebeing a prime example,the IPR system
is positioned as a central part of the network. One of the results of that centrality, is a

necessaryadoption of certain norms which make up part of the IPR system. Recalling
Chapter2's discussionof the role of the author in IPR, one of the particular norms which
thus getsensconcedin ABS regimesandother "solutions" to the biopiracy problem is that
of authorship. Put at its most blunt, the IPR system,asit is currently structured,assumes,
and even requires the notion of authorship to be limited to authors who can be easily
identified. The prevalenceof this highly individualised notion 6f ownershipalsostructures
the notion of benefit sharing,asit hasbeendescribedhere.In effect, the role of the author
in the IPR system,and the role of the IPR systemin ABS agreements,servesto force the

notion that there must be a clearly identified beneficiary for a benefit-sharingagreement.

This is one example of how the practice of IPR, so fundamentalto the workings of these

particular solutions to the biopiracy problem, have proven to.be inadequatefor many who
see the problem itself quite differently. This is something which will be consideredat

greaterlength in the next section.

New property paradigms - no patents on life

The previous two problem/solution perspectiveson biopiracy deal with biopiracy in

different ways, the first by attacking its very possibility, and the secondby proposing

assortedmechanismsto prevent it. Thoughthey differ considerably,thesetwo "solutions"

to biopiracy shareone thing in common they are willing to addressit using existing tools
and frameworks, either by clarifying the terms of the existing systemto demonstratethat
biopiracy cannotexist, or working with existing frameworks(suchasABS) to addresshow
the practice of exploiting genetic resourcescan be pursued in a better way. The third
approachconsideredhere,however,generallyviews biopiracy asdemonstratinga fatal flaw
in the existing IPR treatmentof living organismsand TK. This third perspectiveis themost

adamantof the three that biopiracy is real, widespread,and that there exists little prospect
of addressingthe problem within existing frameworks. Indeed, possibly one of the only
unifying aspectsof the different sub-perspectivesthat make up this third approachto
biopiracy is that they concentratea large part of their efforts on demonstratinghow the

existing solutions are fundamentally inadequatefor the complex task(s) at hand. To that

166
end, those that are th,, staunchestin advocating the no patents on life position also
participatein the debateswhich formulatethe other two responses,andoffer up critiquesof
both the statusquo and the adjustmentsolutions in doing so. This section will begin by

considering their general criticisms of the other two approaches,before moving on to

critique someof their proposedsolutions to the biopiracy issue.

It should be noted at the outsetthat this particular perspectiveon biopiracy is often much
lessprescriptivethan its counterparts.This is largely a function of the obstinacywith which

many approachdialogue with those that advocateworking within the existing systemto
addressthe problem, and often in evenagreeingon what the problem with biopiracy is and
how its solution might be approached.In order to best examine this discourse,I have
divided the critiques of existing practicesthat are offered up as part of this approachto
biopiracy into two types - material and ethical critiques - although they are often

unproblematically advocatedalongsideone another.

Indeed,asreflected on in an earlier discussionaboutthe deploymentof biopiracy, it would

appearthat those who criticise the solutions to biopiracy, especially ABS-basedones,are

ableto do sorelatively unproblematicallyfrom two seeminglycontradictorypositions. On
one hand, thesegroups feel that IPR (or benefits derived from exploiting IPR) is not the
appropriatesystem through which to make decisions about what the benefits of genetic
resourcesare, nor how those benefits should be (re)distributect. On the other hand,

shnultaneously,they also feel that one of the main issueswith benefit sharingis that it will
not grant all parties equal access to the economic benefits generated from the
commodification of the biological resourcesin question.Although this positionmight seem
internally contradictory- sayingthat the systemdoesn't let the right groupsprofit enough,

while at the same time saying that the profit motive of the system is itself flawed - it
appearsto be a position held relatively unproblematicallyby many of the activistsinvolved
in opposing biopiracy. If we take that into account, it seemsclear that something like
benefit sharing for instance,if invoked asa "solution" to biopiracy, is unlikely to address

all of the relevantethical concernsraisedby thoseopposedto patentson life, or patentson

TK. Or, put anotherway, although theseare often conflated for rhetorical purposes,for

many campaigningagainstbiopiracy, what is significant it is not who owns it, but that it is
owned at all.

167
Material critiques: Sharing the crumbs?

The first setof critiques that are offered up aspart of a generalopposition to the role of the
IPR systemin the biopiracy network canbe typed asmaterialcritiques.Thesecritiquestake
issuewith the substantiveaspectsof the systemsthat addressbiopiracy, anddo sowith the

aim of demonstratingthat theseproposed"solutions" areinherentlyflawed.Therearethree

interrelated material critiques of existing approacheswhich will be consideredin this

section: the issue of accessto the corrective mechanismsof the IPR system; the current
system's treatment of authorship and prior art; and concerns with existing ABS
mechanisms.

The early parts of this chapterintroduceda perspectiveon biopiracy which suggeststhat

the IPR systemitself is the most effective way of dealing with instancesof biopiracy, if in
fact biopiracy actually exists. In order to accept the argument that the way to counter
biopiracy is simply to activatethe systems'corrective mechanisms(i. e. point out examples

of prior art or contest the "invented" aspectof products of nature) there needsto be an
acceptancethat the systemworks the samefor all thosewho end up as a party to it. What
this ignores is that there persists a differential accessto the IPR system's corrective
mechanisms.In actuality, patentchallengescost a substantialamountof money,canextend
over severalyears,require specialistknowledge of the patent system,and so on. Thus, in
fact, the patentsystemhasbarriersto participation built into it, somethingwhich is focused

on by thosewho suggestthat the systemneedsrecalibrating, or outright rethinking. This

was somethingwhich was pointed to by the "neem team" in their opposition to the W.R.
Gracepatent,as analysedpreviously (seeChapter4).

Another substantialpoint of concernfor anti-biopiracy activists, aspresentedin the Maya

ICBG casestudy from Chapter 5, has to do with the notion of prior art and how it is
broachedwithin IPR systems.In particular, many feel that establishedpatent systems
(especiallythat of the US) are remiss in the way that they handle claims to prior art that

comefrom sourcesthat arenot readily accessibleto their patentexaminers.Concernsabout

what would "count" asprior art in the new more globally orientedpatentregime featurein
international political dialogues on the issue, but are also central to the biopiracy

campaigners.Fearsabout the scopeof prior art consideredby examinerswere airedaspart

of the review of TRIPs Article 27.3(b) which elicited this responsefrom the US:

168
 if information is not written down, that information is completely inaccessibleto

patentexaminerseverywhereasprior art when they areexaminingpatentapplications.

It is possible,therefore,for a patentto be issuedclaiming as an invention technology
that is known to a particular indigenouscommunity. The fault lies not with the patent
system,however, but with the inaccessibility of the knowledge involved beyondthe
indigenouscommunity (World Trade Organization, 2000).

Ap roached in this way, the IPR system adjudicates which forms of knowledge are
Pp
"accessible"andthus subjectto claims of novelty/invention or, conversely,claims of prior

art. As such, only those claims which are deemedto be in an accessibleform will be
consideredin the patentopposition process.This conflicts substantiallywith the versionof
accessibleknowledge that is offered up by many who are critical of the IPR system's
treatmentof "other" forins of knowledge.For example,a group of Brazilian shamansmade
the following submissionto WIPO:

As traditional indigenous peoples who inhabit diverse ecosystems,we possess

knowledge on the sustainablemanagementand use of this biological diversity. The
knowledge is collective and is not a commodity that may be commercializedas any

good in the market. Our knowledgeon biodiversity is notseparalefrom our identifies,

our laivs, our institutions, our system of values and our cosmological view as
indigenouspeoples[ ] As indigenousrepresentatives,we affinn our oppositionto all
...
forms of patentability arising out of the useof traditional knowledge and lve request
the creation of mechanismsof punishmentto prevent the threat of our biodiversity
(World Intellectual Property Organization Intergovernmental Committee on
Intellectual Property and Genetic ResourcesTraditional Knowledge and Folklore
SecondSession,2001, pp. 2-3, emphasisadded).

The notion that this knowledge would be inseparablefrom identities, laws, institutions,

value systemsand cosmologiesis, of course,one which is fundamentally alien to the IPR

system. They further expandon this notion of TK in proposing:

[ ] that Governmentsrecognizetraditional knowledgeasknowledgeand science,by

...
conferring equitabletreatmentin relation to the Westernscientific knowledgeand by
establishing a policy on scienceand technology that recognizesthe importance of
traditional knowledge (World Intellectual Property Organization Intergovernmental
Committeeon IntellectualPropertyandGeneticResourcesTraditional Knowledgeand
Folklore SecondSession,2001, p. 4).

169
Thus, what is at work here is a contest over what is able to "count" as an appropriate
translationmechanismfor the IPR system.If TK, reproducedin any of its varied forms, is
not sufficient to count asprior art, then groupssuchasthe Brazilian shamansquotedabove
will not accept the IPR system as an effective enough interlocutor for their concerns
stemmingfrom the exploitation of TK and geneticresources.

As hasbeenevidencedat severalpoints in the precedingfew chaptersand was stressedby

the Shamansquoted above,there are many who feel that the nature of somekinds of TK
makesit especiallyunsuitableto the IPR system,which focuseson individual, identifiable,
authors, and is not calibrated to handle claims to invention which fall outside of that
particular purview. Reddy, however, offers up an especially pertinent concernwith the
proliferation of the concept of collective knowledge and authorship which is often
presentedaspart of claims to biopiracy. As sheexplains,"becausecollective ownershipor
community authorship is often assumedin benefit-sharing agreements,the underlying
questionin state-sponsoredschemesof heritagecompensationlike [the TKDL] is always:
Whoseheritageare we compensating"(Reddy, 2006, p. 177)?

Her principal concern lies with the other side of the collective ownership issue, and the

possibility it presentsto further constrainpublic use,or simply to constrainit in different

ways than would be done by the IPR system's recognition of singular authors. As she
explains with particular referenceto the Indian TKDL defensivepublishing strategy:

Thus, if stateschemesattemptto assertcontrol over heritageby publicizing Ayurvedic

medical knowledge,the indigenousresponsesseekto removeheritagefrom the public

domain by further privatizing it. And all these circulating heritage claims and

counterclaims,individually andtogether,raiseseriousquestionsaboutthe assumptions

underlying cultural ownership of traditional knowledge: questionsabout collective
authorship and original attribution; questions about the primal authenticity of
traditional, local, or indigenousknowledge; questionsabout commensurabilitywith
other forms of knowledge or Western science; and questions about community
representation(Reddy, 2006, p. 164).

Reddy also points out anotherpossiblecomplication here, in that:

170
 even if culture needsthe law to regulateand protect it, the law in turn, however well
intentionedand necessary,producesculture, producesknowledge,and thus produces
further claims and counterclaims of ownership over_TMK. making heritage
legible is a double-edgedsword: it transforms cultural objects and marginalizes

cultural producers,but it also createsnew types, categories,and subjectivities to be

managedand controlled (2006, p. 180).

This points us to anothersetof material concernswhich are advocatedaspart of a critique

of the ABS systemswhen thesesystemsarebilled as a solution to biopiracy. The first and

most obvious of theseconcernsare the material challengesassociatedwith defining what
the benefits are, who should distribute them, how these should be distributed and who
precisely should be the recipients.If we look to the neemcaseagain,sinceneemis widely
used in India and elsewhereas a fungicide, the issue of benefit sharing would take on
unmanageableproportions.How would onebegin to establishwho should be the recipient
of the benefits in a casewhere the knowledgethat is being exploited could legitimately be
saidto derive from the practice of millions of peoplein India andelsewhere?Therearealso
concernsaboutthe fact that benefit sharingagreementsmay be peggedto the commercial
successof a given plant patent,andthus thereis no guaranteethat benefitsareforthcoming.
This was also a central issuein the Maya-ICBG case,with RAFI consistentlypointing out
that much of the knowledge and geneticresourcesthat would make up part of the project
were used much more widely than the area and groups covered by the benefit sharing
agreement. In many situations, this is made more complex when the element of
expectationsarebrought in, especiallyin casesof pharmaceuticalbioprospectingin remote
areas. despitethe fact that it is quite widely acknowledgedthat lucrative, blockbusterdrugs
'
are very rarely forthcoming from bioprospecting-type programs (Greene, 2004). The
confusion over benefits is additionally complicated when the substanceof the material

remunerationsincluded in benefit sharing agreementsis considered.Often, very pointed

and ultimately somewhat prosaic concernshave been raised with respect to the actual
amountsof (potential) remunerationsinvolved. In the caseof the San,and other casesof
biopiracy, this haspromptedsometo claim that theseinvolve sharingonly the "crumbs" of
the benefits (Wynberg, 2003).

On the surface, all three of these critiques - that there is a differential accessto the

corrective mechanismsof the IPR system,that prior art is not adequatelyrecognizedand

that ABS agreementsare unlikely to be effective enoughin sharingthe benefits with those
entitled to them - might be seenasinvoking a more normative versionof the IPR paradigm.

171
For instance,returning to the neemexamplefrom Chapter4 it would seemclear that the

contestedpatent would not have beenruled invalid if the information required to do so

were in an "inaccessible" format. The neem case was "won" on the grounds that an
accessibleform of prior art (a scientific journal article) was disregardedin the initial
granting of the patent. In other words, the "anti-biopiracy victory" cameabout due to the
IPR system's own self-correction mechanism.However, in their press releaseson the

matter,the activist opponentsof the patentclaimed that the patentwas overturnedbasedon

the court's recognition of this being a caseof biopiracy - thus, for the activists,TK counted
as prior art in this case. Likewise, a concern with the mechanics of benefit sharing
agreementsis not necessarilyin itself an indictment of the entire ABS paradigm.

Herewe seewhere one of the fundamentalandproductive conceptualelisions madeby the

biopiracy activists comesin. It is the elision betweenthesematerialconcerns- dealingwith
the amountsof money, the mechanicsof the IPR or ABS systems,etc. - which are often
unproblematically advocatedalongsidemore fundamental
ethicalconcernswith whetheror
not IPR is an appropriate forum to use to deal with thesekinds of knowledges,and the
benefits that they might generate.For example, the collection of essaysin the recent
EdmondsInstitute book, called TheCatch: Perspectivesin Benefit Sharing presentssome

very forceful critiques of the notion of benefit sharingas a possible inoculation againstor
remedyfor biopiracy. Many of the essaysseemto focus on what the respectiveauthorssee
as this same contradiction in the notion of benefit sharing in the CBD, between the
ascription of value to theseresources(a value which can be sharedwith the appropriate
people via benefit sharing) and the use of the IPR systemto recognize this value. They
advocatetwo positions which overlap: that the benefits of thesegenetic resourcesare so
greatasto be incalculable, andthat they havealways beenseenasa collective anda public
wealth, thus fundamentally incompatible with the individual rights associatedwith IPRs.
As Ribiero puts it in her essayin the volume:

The immensewealth of knowledge of plants, animals, insectsand other elementsof

nature- knowledgeon which the world hascometo dependfor food, health,clothing,

and many other aspectsof humanlife - originatedin indigenouscommunitiesandrural
communities acrossthe planet. That knowledge is and has always beena collective
and public wealth, managedby local communities for the benefit of humanity (2005,
pp. 37-38).

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Ethical critiques: no patents on life?

Alongside their material critiques, thoseadvancingthe "no patentson life" perspectiveon

biopiracy also adherestrongly to an ethical positionwhich suggeststhat the patenting of
living things is inherently unethical and should not be allowed. In addition to refuting the

other two typesof solution to biopiracy, thesegroupsalsooffer a few different solutionsas

part of their "no patents on life" approachto biopiracy. Though they differ somewhatin
their various approaches, these are in many ways anti-solutions, and what these
perspectivesshareis that they move substantiallyaway from IPR as a model of the way to
access,exploit and reapportion the benefits from genetic resources. This perspective,
however,remainslargely basedaroundthe premisethat there should be no patentson life

whatsoever.

For many, productsof natureare still seenas"natural" and thus unpatentableirrespective

of the human ingenuity that has gone into rendering them into their patentablestate.For
example, the Foundation on Economic Trends' Treaty Initiative to Share the Genetic
Commons,which has gatheredthe supportof a number of NGOs and other activists calls
for a prohibition on "all patentson plant, microorganism,animal, andhumanlife including

patentson genesand the products they code for, in their natural, purified or synthesized
forin, as well as chromosomes,cells, tissues, organs and organisms including cloned,
transgenicandchimeric organisms" (Foundationon EconomicTrends,2002). Therehave
also beenseveralother activist campaignsto opposemore broadly the notion of "patents
on life" andthe monopoly control of geneticresourcesthat this is seento facilitate. Indeed,
for many,biopiracy speaksthe loudestto this notion. The approachesof RAFI/ETC Group,
Shiva and other discussedat various points in the precedingchaptersproposejust suchan

approachto biopiracy, which is in effect a solution which actually removes biopiracy

entirely from an IPR framework and setsit deliberately againstit. For them, then, one of
the main points of the biopiracy discourse is that the IPR system is not adequateor
appropriatewhatsoeverto deal with the kinds of ethical concernsthat they put forward.

Among the more conventional solutionsis an invocation of the wording in Article 27.3(b)

of the WTO's TRIPS agreement,which allows countries to exclude from patentability

"plants and animals other than micro-organisms,and essentiallybiological processesfor
the production of plants or animals other than non-biological and microbiological
processes"aslong asthey provide for the protection of plant varieties with an adequatesid

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generis system (World Trade Organization, 1994). A number of the ýroposals for sid
generis systems seriously limit patents on life in general (World Trade Organization
Committeeon Trade and Environment,2001; World TradeOrganizationCouncil for Trade
Related Aspects of Intellectual Property Rights, 2003). For instance, in 2000 the
Organization for African Unity drafted and formally endorseda model law that would

prohibit patentson life outright (Organizationfor African Unity, 2000). It shouldbe noted
here, however, that there has been a shift in tactics by many of those countries initially

promoting this law or promoting other mechanismsto prohibit patentson life. For example,
asquotedelsewherein this thesis,India was oncea supporterof a regime that favoured"no
patentson life" (World Trade OrganizationCommitteeon TradeandEnvironment,2000,p.
2). Recent submissions,however, would seem to demonstratethat they are currently
backing the notion of a declarationof origin which is (in recognizing property right so long

as the origin of the contestedgenetic material is made explicit) quite a far cry from "no
patentson life". Along with this seemingshift in the attitudesof many of the developing
countrieswho have been most vocal in this regard, recognizing a systemof sid generis
rights which places living things outside of the realm of patentability standsagainstthe
position of many of the powerful countriesin the WTO, who advocatefor a robust,though
not necessarilyunlimited, system for the patenting of plants and animals.

The sid generis languagehas also beenpicked up on by other actors. For instance,the

earlier excerptedcommunicationfrom the Brazilian Shamansoffers up a wide-rangingset

of proposalsfor how to addressTK and nature within current IPR systems:

We proposethe adoption of a universal instrument of legal protection of traditional

knowledge- an alternative,sid generissystemdistinct from the regimesof protection

of intellectual property rights andthat addresses,amongother aspects:the recognition

of indigenouslandsand territories and consequentlyits demarcation;the recognition
of the collective property of traditional knowledgeasnot subjectto expiration in time
and as non-negotiableand of the resourcesas public interestgoods;the right of local
indigenouspeoplesand communitiesto deny accessto traditional knowledge andto
the existing genetic resourcesin their territories; the recognition of the traditional
fortris of organizationof the indigenouspeoples;the inclusion of the principle of prior
informed consentand a clear dispositionwith respectto the participationof indigenous

peoplesin the fair and equitabledistribution of benefitsresulting from the useof these
resourcesand knowledge; and the continuity of free exchange of resourcesand
traditional knowledge among indigenous peoples (World Intellectual Property

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 Organization Intergovernmental Committee on Intellectual Property and Genetic
ResourcesTraditional Knowledge and Folklore SecondSession,2001, pp. 4-5).

Despite persistentrevisitings of the issue,the notion of just what would count as a sui

generis system under the terms of 27.3(b) is still very much up for deliberation. What
remains clear, however, is that for a number of actors, a legitimate form of sid generis
systemwould require outlawing patentson life outright. The marginalizationof discussions
about 27.3(b) in the last severalyears (seethe discussionin Chapter 2), and the shift in
perspectivecoming from many developingcountries,canperhapsprovide a ratherominous
senseof the ability of 27.3(b) to be put to useby those seekingto outlaNvpatentson life on
the whole, and it looks unlikely that this will prove suitable enough for their purposes.

It might be tempting to overstate the essentializedversion of nature which seemsto

characterizemany of theseethical perspectiveson biopiracy.Thoughit is certainlytrue that
there are several versions of ethics that are at play in allegations of biopiracy, and that
many of them are indeedbasedon essentializedversionsof nature,the way in which these
two setsof critiques, material and ethical, can be deployed side by side enablesa more
nuancedreading of the ethical position at play. One of the effects of this close association
of the material and ethical, condensedinto the single signifier of biopiracy, is that it focuses
on nature/culturein a way which the other perspectivesseemto ignore. Indeed,although
often couchedin a languagethat suggeststhat all "nature" shouldbe unpatentable,a closer
look at some of the biopiracy narrative also reveals a very deep sensethat part of the
(un)ethicsof patenting life relatesquite closely to what is seenasa problematic separation
betweennatureandculture which comesaboutvia IPR. In effect,advocatingthesematerial

and ethical critiques as two parts of the same critique allows us to seethe unbreakable
connectionbetweennature/culturewhich is at the heart of many concernsaboutbiopiracy,
and which will be reflected on at much greaterlength in the next chapter.

Returningto the neemexamplefrom Chapter4, we can seehow, alongsidecontestingthe

patent itself on the grounds of misappropriation,what was also being contestedwere the
aspectsof the systemthat allowed this patentto be grantedin the first place.If we assume
that the systemwas working as it should when the neempatent was initially granted,then
this hints at some of the limitations that the current systemhas when handling claims to
"invention", and indeedof "natural" that fall outsideof its understandingof theseconcepts.
Additionally, framing the neem case as one of biopiracy rather than simply one of a

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hiccoughin the IPR systemspeaksto the concernsthat comewith understandingpatentsto
be not simply legal instruments,but also as carrying with them a considerableamountof

symbolic weight. This, in turn, has a bearing on how people engage with notions of
patentability, and IPR more broadly. Again, what is problematic for many contesting
biopiracy, it is not necessarilywho "owns" theseresourcesof this TK, or evenvvhowill
benefit from them, but that the debateis framed in IPR terms to begin with.

Conclusion

Thus, the various understandingsof what the problem with biopiracy is, andthe solutions

presentedto addressthose understandingsare indeed multifaceted and manifold. These

solutions remain, however, profoundly contingent on what the problem of biopiracy is
understoodto be. The first sectionof this chapteranalyseda setof solutions,the statusquo,
"there
which claimed, essentially, that was no problem at all. This perspectivesought to
position biopiracy as somethingwhich was over-exposed,and,were it to actually occur in
isolatedcases,assomethingwhich could quite easilybe dealtwith usingexistingcorrective

mechanisms.

The secondperspective,the adjustmentperspective,acknowledgedthat perhapsthe claims

of biopiracy were a bit more significant than simply isolatedhiccoughsin the IPR system.
Generally,those advancingthis position felt that the systemneededa bit of adjustmentin

order to function for all of those who standto benefit from its usefulnessin apportioning
the benefits which stem from the exploitation of genetic resources.One of the most
prominent adjustmentsthat this solution proposesis a better way of going aboutABS. To
that end,drawing on someof the analytical tools developedby the proponentsof ANT, the
SanlPhytopharmlHoodiaexampledemonstratedhow negotiationsby a setof heterogeneous

actors,working within a network, were ableto generatea sharedunderstandingof what the

problem was, and thus, what an acceptablesolution to it would be.

For anotherset of actorsinvolved in generatingproblem/solutionsto biopiracy, neither of

thesetwo other kinds of solutions went nearly far enoughto recognizethe scopeand scale
of the problem.A main part of their versionof the biopiracy problem/solutionwasaimedat
outright condemnation of both the status quo and adjustment approachesto solving
biopiracy (and also, as a result, towards understandingwhat the problem with it was).
Albeit in a seemingly internally contradictoryway, theseactorswere able to join material

176
critiques of why the IPR systemitself or the practice of ABS were doomedto failure with a
position on patents on life more generally which saw them as inherently unethical. For
these actors, these patents or bioprospecting projects stood on one hand as legal and
economicartefacts,but also simultaneouslyasdeeply symbolic examplesof what they saw
to be the problem with the encroachmentof IPR into nature, into culture, and into how
theseare seenin relation to eachother.

Disparateas they may seem,common to all theseapproacheswas that the way in which
biopiracy was understood as problematic contributed to further establishing what was

meantwhen the term was used,but was also fed back to contribute to an understandingof
how it shouldsubsequentlybe solved.In looking at the applicationsof this analysis,it may

well be the casethat the routes proposedby one of thesefirst two suggestionsprovesthe
most viable. Going along those routes, however, will necessarily involve cementing a
particular version of what biopiracy is. That version will necessarilyacceptthat the benefit
that we extractfrom geneticresourcesshouldbe seenprimarily in economicterms,andthat
the patent system is the most effective delivery systemthat we currently have to derive
those benefits. This will, invariably, alienate many significant actors in the biopiracy
network. If there is interest in obtaining someform of consensuson the way forward, then
what doesseemclear, however, is that the only way in which the biopiracy discoursecan
be fully addressedis if we are preparedto engagewith it on a terrain that allows room for
different conceptsof property, of benefits(andtheir sharing)andof different approachesto
how we decidewhat counts as natural and invented in IPR systems.

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Chapter 7- Too natural/too cultural : biopiracy as biosociality

Some of the earlier chaptershave analyzedhow the allegation of biopiracy comesto be

as
positioned part of an emergentbioeconomy, especiallywith respectto how natureand
the naturalwill be understoodin the relationshipsthat areengenderedby this new aspectof
the economy. This chapter will link the threads of those discussions,and will further
contextualizehow the conceptsof natureand culture are involved in, and reshapedby the
allegation of biopiracy. Throughout this chapter, I will be reflecting back on my earlier
discussionof Rabinow's biosociality, andwill usehis notion that biosocial understandings

can leadto an overcoming of the nature/culturesplit to demonstratehow biopiracy relates

to conceptsof nature and culture, as they are reshapedin what Franklin (following Ian
Wilmut) refersto as an era of biological control where "we can no longer assumethat the
biological 'itself' will impose limits on human ambition" (2003, p. 100).

To this end, this chapter will concern itself with outlining several ways in which the

allegation of biopiracy is brought to bear on, and is itself affected by biosocial

understandingsof nature/culture.As I notedearlier, mostdiscussionsof biosocialityto date
have focusedon identity formation, and therehave beenfew analysesof the implications
for the nature/culturesplit. I will begin herefrom the assumptionthat thesetwo aspectsof
the theory (nature/culture and identity formation) cannot be so easily separatedin
consideringbiosociality, and that, in fact, the overcoming of nature/cultureis requiredfor
new identities to be formed in the way in which Rabinow suggests.The key insight that
will be provided by looking at the groupsorganizedaroundallegationsof biopiracy as,in
part, biosocial oneswill be to highlight the way through which biosocial modesof thought
enablegroupsto come to understandand come to influence their "natures". This form of
56,
participatory nature which seespeople actively coming to intervene on a re-cultured
nature,is one which is useful to understandwhen considering the ways(s) in which anti-
biopiracy groups attempt their own interventions in specific patent casesas well as on a
broadersystemiclevel addressingpatentson life.

In order to develop the nature/culture aspects of biosociality, and to apply them to

biopiracy, it is important to first clarify what is implied by nature.and culture in this

analysis. It draws a great deal of inspiration from Latour's (1993) thinking on

56Though Hayden also usesthe term 'participatory nature' .in her book, WhenNature GoesPublic (2003),
1 am using it here in a different sense.

178
nature/culture, and especially what he calls the "modem constitution" which seesthe
partition of nature and culture, or humansand non-humans,as a distinctively "modem"
intervention. In that spirit, this chapterwill considerhow the IPR systemfunctionsto enact

and ultimately police that same separation of nature and culture on behalf of the
bioeconomy.The first sectionof this chapterwill reflect on particular conceptionsof nature

as they relate to the bioeconomy. Specific attention will be paid to the NNýays
in which
biopiracy eventually comes to bear on the particular version of nature/culture which

underwritesthe IPR systemat the coreof the geneticresourcesregimefor the generationof

biocapital. The secondsection of this chapterwill analyze in depth the role that the IPR

systemplays as a tool of translation enablingthe conceptualizationof a particular version

of nature/culture based around genetic resources. It is this particular version of
nature/culture,which seesthese two realms as cordoned off from one another, which
ultimately createsthe spacefor the patent claims at issuein allegations of biopiracy. The
concluding section will focus on how thosecontesting biopiracy employ a rationale that
outlines how the patentsor projects allegedto be biopiracy are problematic becausethey
are at once too natural and too cultural for them to be consideredpatentableby the IPR
system.The chapterwill concludeby reflecting on how seeingbiopiracy in this way opens
up the spacerequired to re-interpret what is at stakewith the biocapitalization of genetic
resources.

The nature of "nature"

In orderto betterunderstandthe role that natureitself plays in the version of nature/culture

presentin the bioeconomyand being contestedby biopiracy, it will be helpful to introduce

someof the aspectsof naturethat arebeing actively reshapedby the bioeconomyin the era
of biological control. Indeed, is
what at stake for many when they contest biopiracy are
competingversionsof what shapethe natureof this particular nature/culturewill take. It is
the interaction between nature and the other forces seen to be at work in biopiracy,
especiallycommodification, capitalism and globalization that is the substanceof much of
the concernaroundbiopiracy andpatentson life. Examinedbelow will be Escobar'snotion
of "hybrid natures"and Rabinow's conceptof biosociality.Thesetheoriescanhelp develop
new understandingsof the complex nature/cultureswhich emergein the new climate of
biodiversity as a resource,the expansionof IPR, and the growing interest in TK aboutthe

usesof biodiversity.

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One of the features of the reshapedunderstandingof nature identified earlier is that it

requires actors to consider, simultaneously,severalversions of nature/culturewhich are

madepossible.Escobarprovides a way to understandand developthesenew narrativesof
life and culture, in his discussionof "hybrid natures". Hybrid natures,Escobartheorizes,

area way to think of naturesas"hybrid andmultiform, changingin characterfrom placeto

place and from one set of practices to another" (1999, p. 2). He theorizes that "in fact,
individuals and collectives are compelled today to hold various natures in tension"
(Escobar,1999,p. 2). This notion is especiallyhelpful to this analysisfor severalreasons,

most importantly the way that the notion of "hybrid natures"enablesus to understandhow

certain actors can hold several versions of nature, often seemingly contradictory ones,
simultaneously.For example,utilizing this framework,we areableto go beyondthe typical
criticism of anti-biopiracy activists to seethe double meaningat work when they areargue
on one hand that biopiracy is a misappropriation(or, in effect, a theft) while at the same
time arguing,on the other, that the whole notion of patentson life andthe economicbenefit
that accruesfrom that is itself problematic.It is precisely this slipperinessand fluidity that
gives the allegation of biopiracy much of its rhetorical strengthand thus its influence. By
drawing on someof the examplesfrom earlier chapters,the following sectionwill illustrate
two ways in which this happens.

In the first instance,thosealleging biopiracy are able to move fluidly betweendistinctions

on "kinds" of life in their critiques, especiallybetweenthoseof humansand non-humans.

The Hagahai and Guaymi cases, for instance, get problematized alongside cases of

agricultural biopiracy as equivalently egregious examples of the problems with IPR.

Moreover,the way in which the Hagahaicaseis problematizedalongsideotherambassador

casesof biopiracy demonstrateshow the IPR rules that govern what many think of as
apparently very different domains of life (human and non-human) come to be seen as
equivalent. Pat Mooney reflected on theseconnections,and on RAFFs role in opposing
them, as early as 1997:

If we struggled to look beyond plant genetic resources to grasp agricultural

biodiversity, the Convention [on Biological Diversity] forced us to look wider still.
RAM beganto deal with the livestock breedsthat dependupon crops and forages.We
also looked beyondfood cropsto medicinal plants. As someof our colleagueslooked
on in amusement,we dug into microbial resourcesin the soil and oceans.Then, one
day, we came face-to-facewith ourselves-the piracy of human genetic material.As

with crop germplasm, there are issuesof erosion and of ownership. Despite the

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 South's faith in 'sovereignty' as protected under the Convention [on Biological
Diversity], the signing of the 1992 treaty, in fact, openedup a whole new world of
biopiracy (1997, p. 106).

Far from this being a misunderstandingof the "real" way in which IPR works, the elision

pointed to by Mooney here serves to further escalate-the threat that biopiracy is seento

pose. This invocation of patents on humans alongside those on plants also deals with
different versions of nature, or, more appropriately, collapses human and non-human

naturesinto a single nature,which is affectedby regimesof IPR. Whereasthe version of

nature that prevails in the IPR model suggeststhat nature is inherently separatefrom

culture, and that human nature is separatefrom non-humannature, this version of nature
sees these two as part of the samenature. In this instance,by collapsing human and non
humannaturesinto one version of naturethesetwo naturesare madeequivalent,and each
is th9reforeseenasno more or lessvulnerableto commodification via IPR. Oncethesetwo

versionsof natureare understoodas part of the samenature,thenthe perceived dangersthat

come with the commodification of plant genetic resources and biodiversity are brought

more acutely into focus for these actors. In making these two natures equivalent and
collapsing them into a single nature, it is not to suggest that this "new" nature is a
monolithic nature. Rather, it is itself one version of nature among many, hybrid natures
which are allowed to co-exist. Moreover, this new version of nature, where the line
betweenhumanand non-humannaturesis irrelevant, opensup a rangeof possibilities for

understandingthe relationship between nature and culture, and, ultimately serves to

challengethe nature/culturesplit

If we. use Rabinow's concept of biosociality to take forward this challenge of the

nature/culturesplit, as he then
suggests, this link betweenhuman and non-humannatures
be
can seenascrafting a more expansivedefinition of the social which includesmore than
just elementsof hunian "nature" and moves towards a version of nature which is more
inclusive. Indeed,the example of Dolly the sheep,,which Franklin so thoroughly studies,

provides an example of how the boundariesbetween human and non-humannaturesare

seenas ever more fluid. As she correctly points out, Wilmut and other scientistssaw the
birth of Dolly as having immense significance to humans, and to human reproductive

science.Indeed,this usheredin the ageof biological control, which was seenas"offer[ing]

our successorsa degreeof control over life's processesthat will come effectively to seem
absolute" (quoted in Franklin, 2003). Likewise, the insertion of human genesinto various

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GM crops (a version of pharming, where genes to produce certain beneficial human

proteins,enzymes,andother things), raisesprofound questionsaboutthe boundarieswhich

demarkthe relationship betweenhumanandnon-humannature.Though by most accounts
the moving of genesaround in these examplesis not especially technically difficult or
ethically fraught for the scientistsinvolved57given the currentstateof practicein the field,
the ramifications of it were seenby someto be much further reaching.Without delving into
the ethical controversiesthat have sprungup around this particular issue,there can be no
clearer example of just how the realms of human and non-human nature, however
artificially createdin the first place, are increasingly encountering and acting upon one
another.

Additionally, those critiquing practiceslike bioprospectingoutright as biopiracy (such as

some of the criticisms of the San benefit sharing agreement)are able to suggestthat the
problem is simultaneously that this nature is not being valued enough, economically
speaking (i. e. the agreement that governs benefit sharing does not provide financial
remunerationwhich is consistentwith the value of TK provided) but also that the IPR
is
system not the appropriateway to go about valuing theseresources.In simultaneously
advocating these two seemingly contradictory criticisms, we can see these activists as
providing an instance of just such hybrid naturesat work. What is seenhere is how two
versions of nature - one that recognizesthe economic value that can be derived from it
through more traditionally IPR basedmeans and one that denies the legitimacy of that
process outright - are held in tension by the actors involved. Ultimately, what this
demonstratesis the way in which nature is understood as inherently hybridized. Once
is
nature understood in this way, it can be recognized that it owes its constructionasmuch
to the ways in which we construct it as to its own inherent properties.

Rabinow's biosociality, as explained earlier, also brings about a nature where groupscan
"experience,share,interveneand 'understand"' their fates,with respectto their particular
"natural" truths. In this way, he suggeststhat the boundariesbetweena version of nature
that actsupon a passivegroup of individuals and a culture which is seeminglyimpotent in
the face of an external, ambivalent nature,are being broken down and being reconfigured

57Prof. Christopher Leaver, from Oxford university is quoted in an article on the subject in The
Guardian - "You could synthesisethis thing, if you knew the sequence,in the lab. It doesn'tactually
have to come from a human," he says."It's DNA. It's a chemical." (Radford, 2005)

182
into a biosocial understandingwhere"nature will be known andremadethroughtechnique

andwill finally becomeartificial, just asculture becomesnatural" (Rabinow, 1996,p. 242).

Implicitly, this knowing and remaking of nature to render it artificial comes about as a
dynamic, varied and negotiatedprocess,brought about by a panoply of actorsat multiple

sites.Rabinow explains that biosocial groupswill enlist medical specialists,laboratories,

narratives,traditions and pastoral keepers.These categoriescould also be expandedto
include, among other things, lawyers, policy makers, activists, and multiple other actors

acrossa whole seriesof governmentalsites.When the volume of actorsand sitesat which

this new biosocial.ity is negotiated is renderedintelligible, then the significance of this
particular analytical framing is broughta bit more into focus. Thesenew versionsofnature
will alsonot themselvesbe unitary, homogenous,or singularandwill insteadnecessarilybe
multiple and hybridized versions of nature. In this case, it becomes possible to see
Rabinow's individuals or biosocial groups, empoweredby the biosciencestowards new

ways of knowing and intervening in nature, organizing around (multiple or hybridized)

versions of nature that they can identify with, but also that they can work, on to render
cultural and, in effect, can exercisea certain measureof control over.

Most significantly, if the notion that new groups will form around biosocial identities
fosteredby new developmentsin scienceandtechnology is expandedslightly, it is possible
to considergroupscontestingthe legal and ethical substanceof developmentsin the world
of "patents on life" as engaging in biosocial interventions equivalent to those taking
ownershipof certain medical conditionsfrom which they suffer,asin Rabinow'sexamples.
Both the groups from Rabinow's analysisand the biopiracy groups make challengesthat

seekto reframethe current definitions of what counts as"natural", in the latter casein the
context of knowledge,invention andownership.They areable to do so more overtly if and
when nature is "known and remadethrough technique and becomesartificial" and can,
Rabinow suggests,thus overcome nature/culture.Put another way, if biosocial groups

organizeto act on "their" natures,theremight be no limit to what shapethosegroups,those

natures,or thosekinds of actionscantake. Oncenature is understoodas somethingwhich
can be experienced,sharedand intervenedupon - as somethingwhich becomesinherently
cultural - then we are presentedwith a meansthrough which we can overcomenature's
separationfrom culture. Thoseformulating the discourseof biopiracy seea naturewhich is
one in which culture and society participates and thus biosocial nature becomes a
participatory nature- one that ceasesto exist asexternalto society but becomesrather one
which
, to
societycontributes shaping. Indeed, taking into considerationtheir protestationof

183
private ownership of what they see as "naturally" public resourcesover the last several
decades,many of thesegroupshavelikely held this or a similar understandingof naturefor

a long time.

For Rabinow, these new "biosocial" groupings are set againstan earlier form of nature-

culture interactionwhere peoplewere much more passiverecipientsof nature.In thesenew

"social" natures, nature can just as easily (though no more completely) be shapedby
biotechnologyas it can by the regimesthat we put in place to govern it. Another example

of this permeability betweennature andculture in terms of biosocial identitiescanbe found

in the ways in which, for many involved in shaping the biopiracy discourse,there is an
inseparableconnectionbetweentheir identities and the TK andnatureat issuein claims to
biopiracy. Someof the scenariospresentedin the earlier review of the literature focus on
how aspectsof land, culture andnaturecanall be intrinsically relatedto identity. Oneof the
best examplesof this comes from the Hoodia case discussedin earlier sections of the
thesis.For the San,engaginginitially with the notion that their knowledge of the Hoodia
plant had been patented,this was seenas being a similar form of cultural appropriationto
an instance where some of their sacred drawings were co-opted and used without
permissionon souvenir memorabilia (Stephenson,2003). Understandingssuch as these,
with their ability to move fluidly betweenrealmsof knowledge and naturemakethe claim
for a spacewhich canrecognizehow identity, culture and land are all intrinsically linked to

a version of nature , and so are inseparable from it. Moreover, when allegations of
biopiracy are made side by side with claims to land expropriation or cultural theft, it can
highlight how a separationof nature/culturesuchasthe oneinherent in IPR is not takenfor

granted in these casesby these actors. If these groupings around instancesof biopiracy
allow us to acceptthat such a dramatic separationdoesnot have to be taken for granted,
then it can servein this way to overcomethat very separation,in very "biosocial" ways. I
turn in the next section to an analysisof this separationitself.

Genetic Resources and biocapital - moving nature into culture

I earlier describeda version of the bioeconomywhich is increasingly gearedtowards the

emerging category of "genetic resources".As described in Chapter 3, there has been a

considerableshift, since the early 1980s,towards conceiving of "the environment" as

"biodiversity". This also allows for a possiblesite for the extraction of capital value when
biodiversity gets recast as "genetic resources". This understanding of "nature" as
"biological or genetic resource" can be interpreted as being the basic component of a

184
.
system of biocapital - in this case,the extraction of economic value from biodiversity.
Though nature has of course long beenthought of as a resourcein economic terms, this

particular version of its resoutcepotential is unique in that it mirrors more generalfeatures

of speculative finance capital by positioning its potentiality as the resource. The
proliferation, and indeedthe fact that much of the value that may be containedamongthe
diversity of flora and fauna is unknown, or more appropriatelyincianbent,is what gives it,

using Thompson's (2005) term, its "promissory value".

lPRs are intrinsically important to this particular regime in several ways. IPR plays a

significant role in what Thompson refers to as the "constitutively promissory" mode of

capital, where capital is "theorized less as accumulated,as is customary in theories of
capitalism", andmore as a "shift from the primary dimensionbeing the pastandpresentýo
its being somethingthat unfolds over time in the future. Likewise, it signals a shift away
from production,productivity, andprofit, andtowards knowledge,technologiesof life, and

promise" (2005, p. 258). When this shift occurs, there is a vital need for there to be a
system to ensure that the investment in generating this promissory capital (i. e. by
discovering a medicinal plant's bioactivity and potential medical usefulness)is rewarded

with the right to makea profit off of it - echoing,of course,oneof the fundamentalnotions
of any IPR regime.

IPR is also important to this sectorof the bioeconomyasiý is increasingly not the quantity

of the given natural resourcethat is economically significant to this biocapital regime,but

rather the information that it contains.It is no longer a questionof growing, gathering,or

harvesting the biomaterial itself, but of extracting the information within it and

commodifying that information so that it can be used in industrial processes,

pharmaceuticaldevelopmentor elsewhere.In this way, IPRs become increasingly more
significant in fields suchaspharmaceuticals,asthe greatestcostscome in the researchand
developmentphase,which is gearedtowardsdiscovering a plant's bioactivity and then to
developing that further. This is in contrast to more conventional notions of capital's

relationship to natural resources, which are structured more around extracting and
accumulatingthe resource.Thus, in this particular biocapitalist regime, it is the plant's
information - genetic or otherwise - that is valuable, rather than the physical plant itself,

and thus it is through the promissory realm that IPR gets implicated in this project at the
most intimate of levels (Parry, 2004). Thesepoints on the natureand culture of IPR will be
examinedin greaterdetail in subsequentsections.

185
The role ofIPR in normalizing a market based approach to biodiversity

IPRs arealso significant to this regimefor the legitimizing or normative function that they

provide. In particular, they provide the frame of referencewhich allows this regime to be
understoodasthe best,or eventhe only one through which we can govem the relationship
betweennatureand culture. This is an exampleof what Jasanoffrefersto asco-production,

which she stressesis where "in broad areasof both presentand past human activity, we
gain explanatorypower by thinking of naturalandsocialordersasbeingproducedtogether.
co-production is shorthandfor the proposition that the ways in which we know and
representthe world (both nature and society) are inseparablefrom the ways in which we
chooseto live in it" (2003, p. 2). This co-production is important becauseit provides a
convenientway to understanda rathercomplicatedsetof processes,andthuscontributesto
IPR being taken for grantedas a way to engagewith nature/culture.

In the caseof IPRs for biodiversity-based"inventions", part of the processis presenting

theseregimesas somehownatural or inevitable approachesto the nature/culturequestion.
One of the most important ways in which regimes such as this are justified is through

making referenceto market analogies,often in very normative ways. SunderRajan's work

on stem cells provides an interesting take on this normalizing of the market model for
science:
that 'market logic' is not natural,but rathera strategic-rhetoricalinvocationthat allows
the (re)structuring and negotiation of biocapitalist terrains. In other words, the
apparentnaturalization of complete commodification as the condition for scientific
innovation masksthe fact that commodification is selectedand contested,subjectto

conflicting interestsand ethical representations.(2003, pp. 95-96)

In his formulation, he suggestsan intimate relationship betweenthe commodification of

scienceandthe naturalization of a marketlogic. In the caseof geneticresources,this notion

is built upon to include conservation,in what Escobarsuggestsis an ecological phaseof

capitalism, where instead of exploiting resources, there is an economic justification

provided for conserving them. "Capital thus develops a conservationist tendency,

significantly different from its usual reckless,destructiveform" (1996, p. 47). It is in this
way that the promissory aspectof this particular form of biocapital is enacted- themissing
ingredientto the blockbuster drug is assumedto be out there,we needonly ensurethat we

are provided the time and spaceto find it, and we needto ensureit will still be there long

186
enough to do so. Thus, in echoing Sunder Rajan, we can see the naturalization of the
economicnecessityfor conservingnature- commodification as conservation.

We can see a resonancehere with regimes for genetic resources,and to see how this

rationale can be used to exPlain how all biodiversity comes to be seen as (naturally) a
promissory resource. As Jasanoff explains,

As a social technology,patentsnaturalizethe ideaof property, appearingto recognize

property rights that are, quite simply, already present.Taken as merely ratifying an
underlying statusquo, patentsare regardedasapolitical with respectto both the 'what'
questions(what can be owned?) and the 'who' questions(who can own it) that they
regulate; patents operate, in this respect, not as norms but as tools. A counter
analysis... would point out, however, that patents are not simply declaratory
instrumentsthat affirm a prior order of ownership, but that they createand maintain

property rights in specific forms that are anything but preordained(2005, p. 207).

Previous chaptershave also reflected on how these resourcesare seen to be unevenly

distributed geographically,thus addinganother,geopoliticalfacetto their beingunderstood

as resourcesand as a point of significant tension in international discussionof the issue.

This extraction of value from biodiversity via the IPR system also coevolves with an

expansein the IPR regime itself (see Chapter 3). Things which were previously not
patentableare now patentable,and countriesthat previously had weak or nonexistentIPR
regimesare now required to enforce Euro-American style IPR regimes as a condition of
their participation in the "global economy" or at leastthe global economyasprescribedby
the WTO's TRIPS agreement.Having reflectedon the role of IPR in normalizing a market
basedapproachto biodiversity and to naturemore broadly, let us now turn to examinethe

role that IPR plays in creating and policing a nature/cultureseparation.

Nature/Culture in IPR

In someof her earliesttheorizing on the conceptof the nature/cultureseparation,Strathern

explainsthat " [t] hesewesternnature-cultureconstructs,then,revolve aroundthe notion that

the onedomain is opento control or colonization by the other.Suchincorporationconnotes
that the wild is transformedinto the domesticandthe domesticcontainswithin it primitive
elementsof its pre-domesticnature" (1980, p. 181). It is this domestication,where nature
becomesculture, thht mimics the ways in which somethingwhich is extractedfrom nature,

187
ostensibly by human artifice, enters into the realm of the social and is thus subject to

commodification through IPR. Without rehashingthe history from my earlierreview of the

literature, it will still be useful to probe a bit deeperinto the realms of cultural and natural
"invention" to help contextualizethis point further.

One of the central functions of IPR in the bioeconomyhas to do with the way in which it
to
acts create and maintain a separationbetween nature and culture. Maintaining this
separationmakesIPR's role fundamentalto the particular regime for biocapitalproduction
that was describedabove- the extraction of economic value from biodiversity. Recalling
the product of naturedoctrine that was discussedat lengthin Chapter2, it seemsreasonably
clear that objects simply discovered in nature cannot be patented.As such, part of the
processof applying for and ultimately getting a patent on inventions derived from living
things is to demonstratethat an object/inventionhasbeentakenfar enoughout ofnature so
as to be moved into the realm of the invent-able,and hencethe patentable.

The IPR regime canthus be seenasperforming a vital part of the nature/culturesplit which
is required for the functioning of the bioeconomy. It does so by establishing that things

rooted in nature are unpatentable,as they could only be discoveredthere, whereasthings

existing in the realm of culture have been"invented", thus cannotbe construedasnatural,
and are thereforepatentable.As Jasanoffexplains,

Patentsnot only underwrite a schemeof property rights, but they order the processof
invention in two ways that could be seenas intrinsically political. One is to designate

classesof things that can be consideredproperty. The extension of patentsto new

domainsalters basic notions of what is a commodity and who can assertownership

over it. When a patent is awarded for a biological product, it has the effect of
removing the thing being patentedfrom the category of nature to the category of
artifice (2005, p. 204).

Thus, componentsof biodiversity can be brought in to IPR regimes by overcoming the

notion that they are simply discoveredin nature.Nature can no longer be an inventor of or
by itself

From the culture side of nature/culture,IPR allows those things that exist as social or

cultural artefacts- ideasor concepts,for example- to be, with a slight but essentialbit of
modification, controlled for a limited time by those who invented them. The rationale

188
behind patentingis that an inventor might take ideasout of the public domain,modify them
in some way, and be entitled to enjoy the benefit of the fruits of their labour. After a
defined period of time, this patentedideatoo gets enteredinto the pool of ideasthat have

gonebefore (via the disclosurerequirementand the time limits to patents),which cometo

make up the public domain. As discussedearlier, the basisfor this is
system the romantic
notion of the individual authorwho createsnew inventions by, it would seem,pulling them
out of the ether.This founding myth of the IPR systemobviously leadsto very particular
understandingsof what can count asinventible (or perhapsmore interestingly what can be
consideredasalreadyinvented),but alsowho can count asan inventor. This systemallows
for lines of separationto be drawn around inventions and knowledge, often in ways that

remain blind to the potential that they may follow on from a certain collective heritage.As
Coombewrites:

The rangeof Westernbeliefs that define intellectual and cultural property laws- that
ideas can easily be separatedfrom expressions,that expressionsare the singular

productsof the individual minds of Romanticauthors,that theseexpressiveworks can

be abstractedfrom the meaningful words in which they figure to circulate asthe signs

of unique personality,that cultures haveessencesembodiedin objects that represent

unbroken traditions - are not universal values that expressthe full range of human
possibility, but particular, interestedfictions emergentfrom a history of colonialism
that hasdisempoweredmany of the world's peoples(1998, p. 247).

One cannot,of course,merely move to patentanything that exists in the public domain or

which is already patented. This is precluded by the concept of prior art, which is
fundamentallyrelated to two criteria for patentability - novelty and inventive step (non-
Recalling
obviousness). some of the discussion from Chapter2, WIPO, in their Intellectual
Property Handbook,explain: ...Prior art' is, in general,all the knowledgethat existedprior
to the relevant filing or priority date of a patent application, whether it existed by way of
disclosure" (2004) 58The significance of prior art comes into playwhen
written or oral .
considering whether an invention meets the aforementioned novelty and inventive step
criteria.

5' They do acknowledgethat the notion of what, precisely 'should constituteprior art at a given time' has
beenthe subject of somedebate.SeeChapter2 for a more thorough description of the conceptof prior
art.

189
Thereforean inventor must alsomakeexplicit how separatefrom the "state of the arC'their
invention is. They must describehow, although it might draw on existing ideasfrom the

public domain, their invention incorporatesan inventive step, is indeed novel and is thus
patentable.Thus, in the caseof biotechnologyinventions,in additionto demonstratinghow
far out of naturean invention is, an inventor also has to demonstrateholvfar out oftulture
(this common pool of ideas in the public domain), though still not in nature, it is. This
demonstration, encapsulatedin a patent, is a very nuanced and particular notion of

property, albeit one which has seenwide normative take-up. In the caseof biotechnology

patents,the movementfrom the realm of the natural into the realm of the cultural is what
renderstheseparticular "products of nature" patentable.Precisely what is contestedby
those alleging biopiracy is both that thesetwo realms are separable,and that movement
from one to the other is possible,

Figure I illustrates this particular transition more clearly. As can be seen, those inventions

that are based on the "natural" have to demonstrate that they have been moved out of that

realm, and have as such passed through the cultural realm, where they have been acted
upon by human artifice in order to become patentable.

Figure 2- The role of IPR in separating nature/culture

In creatingand maintaining this separationthe specific mode of biocapital at issuehere-

genetic resources- employs (while also being shapedby) a specific type of IPR which
provides the conceptualframework to re-affirm a particular version of nature.This version
of natureexists outside of culture's sphereof influence, and remainsan external,passive,
resourcepool from which we can draw our new geneticresources.This version of nature
does not go far enough in recognizing its cultural underpinnings- the only version of

190
participation in nature that is allowed automatically reconfiguresthat natureas a possible
ownable commodity, somethingwhich will be taken up more thoroughly in the following

section.

Too natural/too cultural

Two overlapping critiques of the IPR system's treatment of the natural and cultural aspects

of particular "inventions" have been key components to the discourse around various
instances of biopiracy that have been studied so far in this analysis. The first of these

critiques suggests that there is too much "nature" in the inventions claimed, and as such in

the relevant aspects of living things themselves, for them to be eligible to be considered as
invented rather than merely "discovered". The second suggests that there is also too much

"culture" in these organisms for them to be considered as new or novel, and thus eligible

creations for patentability. The allegation that this knowledge is "too cultural" is made in
two ways, firstly by invoking specific instances of Prior human influence in the shaping of
these organisms (such as in the case of patent claims on traditional medicines or on

agricultural products such as seed strains) and also by invoking a much more holistic

perspective on the relationship between humans and nature at the most general which put
humans squarely back into nature. The particular artefacts being challenged by the

allegation of biopiracy are thus positioned uniquely at the nexus of nature/culture - they are
at once profoundly "natural" as they are derived from plants, animals, or even people

themselves, but are also profoundly cultural, because they speak to how these particular

natural artefacts have come about as part of, are shaped by, and exist in relation to culture.
The next section will examine these in turn.

Too natural - discovery as invention

In their study of anti-GMO campaigns, Heller and Escobar explain that, "biodiversity

activists emphasizepreservingthe naturalco-evolutionof organismsandcultures,andthus,

embedhumanbeingsand culture inside natural systems"(2003,p. 157).Later in that same
analysisthey expand:

for the [biodiversity] activists, asthey theorize local practices,nature is not an entity
'out there' but is producedthrough the collective practicesof humansintegratedwith
it (Descola and Palssson 1996). From this perspective, the reductive view of

191
 biodiversity in ternis of geneticresourcesto be protectedthrough intellectualproperty

rights is incoherentand untenable(Heller & Escobar,2003, p. 161).

In part, the connection between humans and nature has led many to suggestthat the
differencebetweendiscovery and invention hasbeenall too liberally interpretedin the last

several years, as was touched on in Chapter 3. This is seen to be something which

underminesthe contemporary patent system, leading to the granting of "bad" patents,
especially patents that blur the discovery/invention, obviousnessor novelty lines. As
discussedin Chapter 6, for some actorslooking to establishthe IPR systemitself as the

most appropriatemechanismfor addressingbiopiracy, if/when biopiracy occurs it comes

about dueto thesemalfunctions in the system'sinterpretationof its own criteria. To many
of those contestingbiopiracy, however, even this concessionis insufficient. For them, if
any invention claimed is derived from nature,it should not be patentable. They take issue
with, to useHaraway's formulation, "who getsto count asnature's author" (1997,p. 100).
Much of the rhetoric invoked in this regard relies heavily on a certain principle of self

evidenceand a deliberately essentialistreading of patent law. For them, if the invention

derives from nature in any way it must therefore be a product of nature, ergo it is not

patentable.

More than simply relating the ownershipof naturevia IPR to a point of legal interpretation
(i. e. the product of naturedoctrine), the activiststhat contestbiopiracy do soin wayswhich

call this systemof property itself into question.They often invoke an essentializedversion
of naturewhich posits that there is somethingso inalienably "natural" aboutnatureso asto
renderits ownershipunethical, or evenimpossible.There are a numberofjustifications on
which this rests,many of which speakto the social embroiling(s) of nature,wherenatureas
suchis understoodto havecoevolvedwith society's understandingsof it. Othersdealwith
issuessuch as the nature's creative and reproductive capacity serving as self-evidenceof
the futility and hubris of attempting to "own" nature. This logic is carried forward by
Vandana Shiva in much of her writing on biopiracy. In the book titled Biopiracy: The

plunder of nature and lawivIedge, she writes that "biotechnology, as the handmaidenof
capital in the postindustrial it
era, makes possible to colonize and control that which is
autonomous,free, and self-regenerative"(Shiva, 1997,p. 45). Later in the sameaccount,
she explains:

192
 Certainly, the idea of owning life is not new; people own their pets and fan-nersown
their livestock. Yet IPRs create a new concept of ownership. It is not just the
implanted gene, or one generationof animals, that is being claimed as intellectual

property, but the reproduction of the entire organism, including future generations
coveredby the life of the patent(Shiva, 1997,p. 96).

Shiva's point here presentsIPRs asthe tool through which seeds,in this case,are denied
their "naturalness"and becomepatentable,andthus commodifiable at what sheseesasthe
most intimate of levels. For her, the IPR system is an ill-equipped and inappropriate
mechanismfor deciding what constitutessomethingwhich is "from nature". Further, the
distinction which is currently madebetweenthe natural andthe inventeddoesnot go nearly
far enough in recognizing nature's own inventive capacity and thereby imposesa false

notion of human invention onto the natural. When she considersthe impact of IPRs on
on
reproducti shealso introducesa concernfor the future, suggestingthat oncethethreshold
of ownershipis crossedfor seedstherewill be irreversible implications for the futureof the
organism.Sheseesthe net of property castingitself widely in this case,and no longerjust
ensnaringthe presentincarnationof the organism,but alsoits future incarnations.Werethis
ideaput to a staunchIPR advocate,they would likely counterwith the ideathat patentsare
inherently time bound. It is here where this particular distortion of the mechanicsof IPR

rules becomesa very productive featureof much of the biopiracy discourse.In thesecases,
though Shiva knows well that there is a time limit to patents,theseparticular patentscross
over into a more symbolic realm, and do so on behalf of the IPR systemmore generally.
When considered in terms of nature's perceived self-evidence as "natural" and its

autonomy,including its autonomyto reproduce,then the limits that would be placedupon

these organisms by seeing them as patentable would make them "too natural" to be
consideredinvented.

Too cultural -public domain or private ownership

The previous sectionexplainedhow thosealleging biopiracy contestthe place of natureas

it is representedin the act of moving an invention "out" of nature and into culture, thus

making it patentable.Along with contestingthesecontentiousinventionsas"too natural"to

be patented,the place of culture in this systemis also seenasproblematicby thosealleging
biopiracy. The main cultural critiques being advancedfocus on challenging the logic
behind what they perceive to be a separationof the public and the private domainsasthey

193
pertain to ownershipand control over inventionsthat canbe seento havesomeform Ofpre-
existing, cultural basissuch as in the caseof TK.

Much of the thrust of this "too cultural" aspectof the biopiracy discoursetakesissuewith
the recognition ofprior art in patent claims. In many of the caseswhere biopiracy hasbeen
alleged,oneof the claims is that prior art hasnot beenadequatelytaken into accountby the
patent system.This is often explained away by those in favour of robust IPR regimesas
simply untrue, or, at worst, as a caseof a "bad patent" being issued,where prior art was
indeed not recognized. Biopiracy activists, however, often present this as a more
fundamental,systemicproblem with what is allowed to "counf 'as prior art within the IPR

system.Specifically, it is claimed that Euro-American IPR systemsare blind to types of

prior art that might not exist in immediately accessibleformats. For example,this was a
major point of contention in both the neemand turmeric biopiracy challengecases.In her
writing on biopiracy in India, Shiva takesissuewith thosethat would attempt to dismiss
biopiracy as merely a slight systematic oversight that allowed for "bad" patents to be
issued:

This indigenousknowledgeand useconsistsof "prior art". No patentshould be given

whereprior art exists sincepatentsaresupposedto be grantedonly for new inventions
on the basis of novelty and non-obviousness.Thesecriteria establish inventiveness,
and patentsare exclusive rights grantedfor inventions. [ ... ) If there were only one or
two casesof such false claims to invention on the basisof Biopiracy, they could be
called an error. However, Biopiracy is an epidemic. The problem is not, as was

madeout to be in the caseof turmeric, an error madeby a patentclerk. The problem is

deepand systemic. And it calls for a systemic change,not a caseby casechallenge.

If a patent system which is supposed to reward inventiveness and creativity

systematically rewards piracy, if a patent system fails to honestly apply criteria of
novelty and non-obviousness in the granting of patents related to indigenous
knowledgethen the systemis flawed, and it needsto change.It cannot be the basisof

granting patentsor establishingexclusivemarketing rights. The problem of Biopiracy

is a result of westernstyle IPR systems,not the absenceof suchIPR systemsin India
(1999b).

Recalling the argumentfrom the previous sectionthat suggeststhat it is the movementof

thesecontestedobjects out of the realm of nýture into a separaterealm of culture which

194
makesthem patentable,the claim hereis'thatthere is also too much culture, albeit rendered
invisible andunrecognized,in theseinventions for them to count as sufficiently inventive

enoughto be patentable.Further, in postulating biopiracy here as an "epidemic" Shiva is

feeding into the terrn's escalation,in a mannerrelatedto the signification spiral discussed
in Chapter 4. As in the other examples there, the tenn is being pressedtowards two
thresholdssimultaneously:one which would seeit acceptedasa real problem and another
which would demonstratehow severethe problem of biopiracy really is.

In many ways, this can also be seento be an issue about what is allowed to count as a

sufficient meansthrough which to make the requisite movement from the natural to the
cultural. It is clear that in the dominant paradigm, which suggeststhat casesof biopiracy
are simply "bad patents",the biosciencesare seento be sufficient enoughinterlocutorsto
facilitate this transition. If one can demonstratethat the specific product of nature which

enablestheir invention has been sufficiently removed from nature - for instance, the
particular gene sequencehas been isolated and purified - then the invention is rendered
patentable.However, in many of the caseswhere biopiracy is being alleged, the issue
becomeswhetherTK is ableto count asftilfilling a similar function. In the last sentenceof
the passagequoted above, Shiva strikesout at this deficit model of IPR protection, which
that
suggests biopiracy only occurswhere the IPR systemis not evolved or robust enough
to provide sufficient protection. Here, shelinks this claim (which is a featureof the status
quo approachto biopiracy discussedin Chapter6) with a critique of the IPR systemitself,
suggestingthat the IPR system is, in fact, instrumental in causing biopiracy. The point
wherebiopiracy interjects hereis in claiming that TK is either invisible to the system,or is
wilfully ignored by it. In these cases,if TK were recognized as a suitable enough
interlocutor to make this nature-to-culturemovement,then the claimed inventions would

not be able to demonstratethat they havemoved their inventionfar enoughout oftulture

to it
so as make patentable. Put if
anotherway, TK were recognizedas a suitable enough
way to intervene on "products of nature" so as to make them useful for humans,then the
inventions or discovery projects that are allegedto be engagedin biopiracy would already
be a part of the public domain, and henceunpatentable.

One of the most confusing aspectsof the biopiracy discoursehasbeenthe issueof what is
to be doneto addressthe relationship betweenTK and the IPR system.If the "too cultural"
critique were understoodasbeing solely about a claim for reparations,or aboutlaying the
groundwork fofthe future profitability of TK as it appearsto be in many of the developing

195
world governmentpresentationsof the term (as discussedin Chapter6), then it would not
move the debatetoo far from merely adjustingthe parametersof the IPR systemto include
TK in some way. For many of the biopiracy activists, however, this would be an
incompleteversion of biopiracy. For them, advocatingthis position side-by-sidewith one

which suggeststhat the system itself is fatally flawed in its treatment of living things is
unproblematic. Even where they claim that one of the issuesthat makes biopiracy so
seriousis that there is inadequateremunerationprovided for the contributions of TK, they
use this as an example of the exploitation intrinsically brought about by this systemof
biocapital, and use this as another ]ever to pressurethe system for wholesale change.
Nevertheless,biopiracy hasproven sopowerful a term that it is often narrowly usedto refer

solely to casesof (mis)appropriationand misallocation of benefits for inventions derived

from TK, somethingwhich confoundsmany of the activists working in the area.It would
be misleading,however,to attemptto portray this asa way in which "biopiracy" asa whole
has betrayed itself. Conversely, the wide take-up of the term is a reminder that, once
deployed into the charged atmospherearound IPR and biotechnology, these terms are

constantlyin flux andcometo meandifferent things to different actorsacrossthe spectrum.

Too naturaLlToocultural

Even in the most conventional understandingsof IPR, were it demonstratedthat an

invention were either too natural (i. e. was found in nature,assuch) or too cultural (i. e. was

alreadyknown or was obvious) then it would be unpatentable.What setsbiopiracy apart

and gives it its rhetorical and force,
conceptual however, is the conflation of thesetwo, or,
rather,their re-combination.The conflation of thesetwo tenetsof argument(too natural/too
cultural) into one single semanticpoint - biopiracy - demonstratesthe ways in which a
cascadeof ethical questionscan be combinedin the complicatedand ambivalentworld of
the biosciences.In assertingthat the contestedelementsof biopiracy aresimultaneouslytoo
natural and too cultural, some light is shed on how the natural and the cultural are
representedin contemporary configurations of IPR and bioscience, notably at the point
where theseintersectwith TK.

What becomesclear is how, in effect, the realmsof natureandculture areonly separatedby

the separationsthat we build into them. The too natural/too cultural heuristic stepsaway
from the IPR system's normative treatment of nature/culture and acknowledgesthe

separation which has been constructed between them. In so doing it facilitates an

understandingof the world that allows for greaterfluidity of movementbetweenthesetwo

196
realmsand greaterpotential for defining how we choose to live in it. Returning to Shiva's
Biopiracy, we are provided with a further insight into how theseactivists are able to hold
these two elementsof critique together: "In the seed,cultural diversity convergeswith
biological diversity. Ecological issuescombine with socialjustice, peaceand democracy
(1997, p. 126).

As figure 4 illustrates, the key to understandingbiopiracy is to seeit asbeginningwith the

separation of nature culture (via IPR), and persisting through the transfer of those
combined realms into actual IPR claims. Most versions of biopiracy, such as those
chronicled in the last chapter, assumebiopiracy begins after these artefactshave moved
acrossthe line of patentability and have galvanized into a particular contestedpatent. In
actuality, the allegation is gearedtowards problematizing an aspect of the relationship
which beginsmuch earlier, at the point when nature and culture are separatedby the IPR
Thus,
process. thosethat allege biopiracy begin from an altogetherdifferent starting point
in relation to nature/culture.Understoodin this way, biopiracy first becomesproblematicat
the point at which, nature and culture are separatedby the IPR system rather than, as is
usually assumed,at the point of the creation of the resultant contestedpatent.

NO -kiry
I ---------------------------------------------------------------------------------------------
.-.? ............................. W
................ ................ - .................

!
1 04

nature culture

unpatentable
patentoible

Figure 3- Too natural/too cultural - How biopiracy becomes problematic

197
As this illustrates,the key to understandingthe biopiracy discourseis in seeingit ascoming

about to addressa process.Any understandingof biopiracy, therefore, must begin at the

point at which thesetwo realms are separatedto assesshoiv the patent comesabout and
how it actsto separatenatureand culture, ratherthan beginningto look at it oncethe patent
has beenapplied for or even granted.For many of thosealleging biopiracy, it is asmuch,

and often more, about the processthat allows this to happenas it is about the patent that
results from it. Once this is recognized,then it becomesclear that most of the solutionsto
biopiracy, in working on the end results- contentiouspatents- will incompletely address

what is for many the central issue.

Conclusion

As demonstratedpreviously, the apparentlyessentialistposition that is advancedby many

of these activists has provided a convenient foil for many who seek to marginalize the
argumentagainst biopiracy assimply an alarmist fiction typical of naYveanti-capitalist or
anti-privateproperty groups. What thesecritics of the biopiracy narrative take for granted,
often without realizing it, is the notion that the two spheresof nature and culture are
separable and that IPR, done properly, is the only way to create and maintain this
separation.If theseinstancesof biopiracy areunderstoodasbeingproblematicbecausethey
are at oncetoo natural, and at the sametime too cultural, then this false separationof these
two realmsis brought into a sharperfocus, and it provides a glimpse at how this binary can
ultimately be overcome.

In looking at these questions as bigsocial ones, they can be examined as questions

concernedwith what form nature is going to take, as we rewrite it via culture. There are
two very different versions at stake- either we stay uncritically with nature as potential
in
property, which caseit is seenas from
separate culture andpatentableassuch;or we re-
inscribe society intrinsically into nature,and vice-versa.Thus, the argumentaboutwho is
being overly (and naively) essentialistabout the questiongets entirely turned on its head.
Many of those advocating for strong IPR systems as a solution-in-itself for biopiracy
dismissthosecalling for anything but asnaYve.Theseadvocates,however,take for granted
is to
a naturewbich external culture, whose lays
usefulness dormantuntil it is (re)awakened
by the geniusinventor, who movesit out of the natural andinto the cultural therebymaking
it both useful and patentable.The version of nature that underlies this processis one in

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which the cultural aspectsof nature are covered up, and thus the two realms are kept
separate.

For their part, however, the activists groups are prepared to engagewith a nature the

cultural-ity ofvvhich ismade explicit. This would necessitatethe crafting of a regimewhich

modelsour engagementwith nature,andultimately our understandingof it, on thosethings
that we decide culturally through processesthat acknowledge the deep intertwining
betweennature and culture. The most important facet of this "too natural/too cultural"

of biopiracy activism is that the separationof thesetwo spheresis impossible.

assessment
Nature is so saturatedwith society, and society with nature,for it to be possiblefor one to

attemptto impinge too much on the other (i. e. for an individual - on behalf of society- to
claim dominion over certain aspectsof naturein the form of individual patents).As Latour
calls for, we need to move towards a "parliament of things", which acknowledgesand
builds upon the idea that "[h]alf of our politics is constructedin scienceand technology.
The other half of Nature is constructedin societies.Let us patchthe two back together,and
the political task can begin again" (1993, p. 144). Examining thesequestionsasbiosocial
onescanadvanceus, however slightly, in this political task, and can begin to leadus down
the path towards new ways of coming to understandthis separationand, ultimately, to
overcoming it.

Thus, if we recall the three problem/solutionconstructsfrom the previous chapter,we can

see how the first two approachesto solving biopiracy, the status quo and modification
approaches,do not go far enough in recognizing the "cultural-ity" of these natural
inventions. Only thethird, the "no patentson life" solution, with it's halting, sometimes
incompleteand often entirely intransigentperspectivesrecognizesthat thesetwo realms,

nature and culture, are not separablein the way that IPR makes them so. The version of
nature that is advocatedby the first two Perspectivesis one which still seesnature as
somethingexternalto its cultural attachments,which can be patentedandhave its benefits
redistributedby ABS. A perspectivesuchasthis onedoesnot go far enoughin recognizing
how much culture goesinto those"natural" inventions to begin with, nor indeedhow those
two realms,culture and nature, however inter-penetrable,are inherently fused.The most
valuable contribution made by the third version is its conviction that a new version of
nature/culture needs to be developed and advanced - one which recognizes the
inseparabilityof thesetwo realms,andfinally allows us to movebeyondlimited versionsof
the relationship betweenthem. If we take this aspectof the biopiracy discourseforward,

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then we are provided with a window, however slight, through which to glimpse at new
versions of property, or of our relationship with nature/culture.This can affect how we
understandboth of thoserealms and, indeed,their immutable connectionsaswe negotiate
the parametersof the bioeconomy.The ramifications of this new spacefor thinking through
nature/culturein the bioeconomy will be consideredin the following chapter.

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Chapter 8- Conclusion

As I beganwriting this concluding chapterI receivedan email from "Intellectual Property

Watch", an IPR-related listserv, proclaiming a "major breakthrough" on a proposal for a
WIPO DevelopmentAgenda. I clicked on the link, which led me eventually to a WIPO

pressrelease,quoting the WIPO director, Dr. Kamil Idris, welcomingthis developmentand

saying it "marked a milestone in the history of the organization" (World Intellectual
PropertyOrganization,2007). Although at the time of this writing the documentshavenot

yet been made accessible,and although many of the issueswhich appearto have been
included aspartsof this developmentagendaarefar beyondthe scopeof this thesis' areaof

concentration, I am compelled to reflect on how this field has changed, even in the
relatively shorttime that I havebeenworking within it. Indeed,what instancessuchasthis
one attestto is the fact that the landscapein this field is considerablyin flux, asthe notion
that an agreementon developmentwould form a centrepieceof WIPO's mandatewould
have seemedquite far-fetched as little as a decadeago. Early indications that this new
Development Agenda might include provisions for a declaration of origin for genetic

resourcefurther underscoresthis, andmovesthe debateconsiderablyftirther from the seed

wars of the late 1970sand early 1980s.As far it
as may seemto have moved, however, I
am also compelled to reflect on the persistentcentrality of a number of questionswhich
havebeenand remain pertinent, in various guises,to discussionsof IPR and living things
throughout these past few decades.How do we define genetic resources?How can we
claim IPRs in living things?How do we decidewhat the benefitsflowing from thesethings
are?Moreover, how do we decide who should be the beneficiaries,and how should this
redistribution happen,if at all? It is into this chargedand perpetually changing(yet oddly
consistentin the issuesaroundwhich it fluctuates)spacewhich the allegation of biopiracy
has interjecteditself, and has had considerableinfluence.

I explainedat the outsetthat this thesistook shapearound two particular realizationsthat

emergedduring the initial researchstages.On one hand, most of the existing literature in
the area seemedto suggest that in order to do research on the "serious" aspectsof
biodiversity, TK, nature,culture, the bioeconomy,IPR, etc. a researcherhad to stay asfar

as possible away from using the term biopiracy, even though many acknowledgedits
existence.Thesestudiesappearedto treat biopiracy as too alarmist or "emotional" a ten-n
for it to be useful in understandingthe processesthat were being enactedin the various

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fields acrosswhich biopiracy has been deployed. On the other hand, when looking at
instancesof biopiracy more closely, it was clear that there was something incredibly

powerful that was put in motion when a certain situation or object was namedbiopiracy.
Biopiracy was not a self-evident or naturally occurring phenomenon:in effect, thesecases

of biopiracy were called into being whenthey were referredto assuchby particular actors,
andthis enabledme to realize that therewere important areasof the discoursethat werenot
being suitably addressedby existing scholarship,regardlessof discipline. What became

clear to me in addressingthese two realizations about biopiracy was that there was not
enoughattentionbeing paid to the term's performative role - what are the impactsthat the
term itself is having, and what arethe consequences
of the useof this term by thesevarious
actors,in this way, at thesesites?At its simplest, it can be said that, when examining the
consequences of the term's deployment,while most scholarshipfocuseson analyzingwhat
biopiracy is, an equally if not more important setof questionsaddressesjust what it is that
biopiracy does.In the precedingchaptersof this thesis,I have attemptedto addressthose
two particular questions,amongothers,andhavedevelopedandpresenteda different view
of the allegation of biopiracy, albeit probably one that few of the actors most directly
involved in championingor debunkingthe term itself would ally themselveswith. In part,
however, this hypothetical disagreementpoints to what has been one of the primary

concernsof this thesis - stepping away from valorising one particular version of what
biopiracy is, to concern itself more with what biopiracy does - what relationships are

conditioned by referring to these relationships in terms of biopiracy? What options are

closeddown by thosesamereferences?How can the solutionsto biopiracy be themselves
involved in how we come to understandthe significance of the term?

One of the first challenges was methodological. From a methodological perspective,

studying the question of biopiracy in the way that I have sets forth a unique set of
challenges.In drawing on the term itself for the corpus of its researchmaterial, this
research has had to be methodologically responsive. It has consistently had to be
conversant,inter-literate and preparedto straddle,however uncomfortably, a number of
different disciplinary approacheswho might lay claim to a particular, or, as they would
have it the definitive understandingof biopiracy. This thesishas thus employeda kind of
hybridized methodology, drawing on the.approachesdeveloped by scholars from four

particular traditions, for its textual and discourseanalysis studies. The sets of questions
developedby those studying various aspectsof governmentality were influential in the

analysispresentedin earlier chapters.In particular, thesemethodswereinstrumentalin this

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chapter'sdemonstrationof biopiracy asa conflict which emergedin relationto a reshaping
of the IPR system,of how society understoodits relationship to nature, and how different
actorscameto rethink the benefitswhich flow from it. This chapterusedgovernmentality's
focus on how things cometo be knowableandpracticableto illustratehow theexpansionin
the scopeand scaleof patentability worked alongsidethe notion of geneticresourcesand
benefit sharingto createa context intowhich biopiracy could interject itself.

The methodologiesdevelopedby those studying signification spirals in the media were

especially helpful to the chapterswhich concernedthemselveswith how biopiracy was

being deployed.Thesechaptersusedthe conceptof signification spiralsto explainhow the
term itself becomesself-escalating- its very usein the mediaand in the contestationsover
key casescan serveto escalatethe term's influence and the threat it is seento pose.Even

more so, this signification spiral can serveto move the term past a thresholdof normative
acceptanceinto a realm where it can be broadly understood as more or less true
(nonethelessin its severaldifferent versions),and can be actedupon as such.

The tools developedby practitioners of ANT also proved particularly useful for parts of
this analysis.The study of the problem/solution constructsin Chapter 6 drew heavily on
ANT tools and it was particularly helpful in studying how heterogeneousactors came
togetherarounda sharedsetof concerns.This chapterusedANT to showhow, eventhough
they may havebegunfrom very different understandingsof the situationat hand,a network
of actors gatheredaround.a shared issue, in this caseHoodia, and came to negotiate a
benefit sharing agreementas a solution to their sharedproblem.

Ultimately, however, it was my application of the key questionsthat havebeendeveloped

by thoseanalysingbiosociality which gavethe most significant insight into the biopiracy

question.As discussedat greaterlength below, theseinsights were not meantto be usedin

assessingthe veracity of claims to biopiracy (i. e. making a determinationof what biopiracy
is) but were insteadconcernedwith analysingthe impact that the use of the term has had
(what biopiracy does).Thesequestionswereput to usewith the end result of furthering the

understanding of, and ultimately providing the tools to overcome, the version of
nature/culture which is in flux in these relatively early days in the development of a
particularly bioeconomic sector- that of the exploitation of genetic resources.

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Utilizing this customizedmethodology,andin the interestof providing someinsight on the

above mentioned questions about biopiracy, this thesis took forward three principal
substantivequestions- how doesbiopiracy come about, how is it deployed,and what are
the consequencesof that deployment?The first two substantivechapterssituatedbiopiracy

within broader bodies of material in fields which provided the enabling context for the
term's emergence.Initially, Chapter2 examinedbiopiracy from within the literature on
IPR, the environment and development,as biopiracy has been thoroughly enmeshedin
thesediscoursessincethe term was first deployedand this remainsthe areawherethe term
remains most debated. This chapter's literature review also reflected on biopiracy's

relationship to environmentalism and the connection(s) between the anti-globalization

movementand anti-GMO activists, introducing some of the productive linkages that are
often madeby theseactivists acrossthosefields.

I went on, in Chapter3, to arguethat biopiracy came about in large part in relation to the
history of the CBD, genetic resourcesand the seedwars; the IPR system,especiallythe
WTO's TRIPS agreement;andthe practiceof bioprospecting.In doing so, I demonstrated
how thesethreetenetsof bioPiracy's historical network presentedthreerelatedtransitions.
In examining the TRIPs agreementand the expansein scopeand scale of the intellectual

property system, I demonstratedhow what many saw as "products of nature" came

ultimately to be viewed as potential (intellectual) property. Likewise, my examinationof
the developmentof the CBD showed how this new form of biodiversity as intellectual
property gainsvalue, through the notion of geneticresources.This chapteralso examined
the developmentof the practice of bioprospectingand showedhow it wasintimatelyrelated
to the CBD's notion of benefit sharing,which was instrumentalin seeingthe benefitsfrom
this new version of nature as potentially valuable, and redistributableproperty.

Taken together, thesetwo chaptersanalyzedhow the allegation of biopiracy had clear

in
antecedents previous eventsand their attendant It
controversies. went further, however,

and demonstratedalso how this allegation came about within a changing set of relations
involving a reshapingof the conceptof the environment as "biodiversity", the conceptof

nature as genetic resources,and the expansionin the scopeand scale of the IPR system.
These chapters also introduced some of the theories which would be instrumental in

shaping the argumentsdeveloped in later chapters,particularly those pertaining to the

bioeconomy,to nature/cultureand to biosociality.

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The secondblock of chaptersfocusedon the deploymentof biopiracy. It presentedthe key

caseswhich were taken up in media representationsof biopiracy, and also analyzedsome

of the more focusedusesof the term by activists groups.The analysisin Chapter4 focused
on the proselytizing role of ambassadorcasesand the role that the media has played in
disseminatingthe term. It showedhow thesecases,when presentedboth in the media and
by these activist actors, were examplesof signification spirals where, through its very

usage,the term becamefurther escalated.As part of this escalation,I also showedhow the
term becamefurther normalized as part of broader understandingsof how serious the
"scourge" of biopiracy was. It was shown how the promotion of ambassadorcasesby

certainsetsof actors,and the eventualre-presentationof thesecasesin the mediaservedto

further feedthe signification spiral at play in this example.The escalationthat resultsfrom
thesetreatmentsof biopiracy is instrumentalin seeingthe term "taken up" as widely as it
has been,and is thus integral in a broaderrecognition and entrenchmentof biopiracy asa

phenomenonwhich needsaddressing.

The self-escalatingimpact of the biopiracy discoursewas examined in greaterdetail in

Chapter5, which chronicled two different types of biopiracy's deployment, eachin their

own way indicative of the "success"of the term's deployment.The first examplelooked at
the use of the term by RAM againstthe ICBG-Maya project, and its directors, Brent and
Ana Berlin. The analysis presentedin this Chapter demonstratedhow several different

versionsof biopiracy were at play in this particular scenario,most notably how the concept
be (or
could attached not) to the definition of bioprospecting,but also more fundamentally
to the set of practiceswhich make up the discipline of bioprospectingas a whole. Along
with the very literal contestationsaboutthe successor failure, and the ultimate viability of
this specific project, this Chapter showedthat what was also at play in this particularly
acrimonious contestation was a shaping of what the terms biopiracy and indeed
bioprospecting would mean as they were advanced into ever more interdisciplinary
forums. Were the biopiracy activists successfulin linking biopiracy to bioprospectingin
this instance,it would inevitably havefar reachingconsequences
which could threatenthe
entire practiceof bioprospecting,aswell asthe careersof its practitioners. Crucially, then
what was also at play - alongside the issue of whether this program would (or should)
succeedand be allowed to be taken forward - was a contestation about whether all
bioprospectingshould be treatedas biopiracy. The chapterwent on to analysehow, in so
doing, this particular issuewas moved out of a much smaller and more local network (for
instancethat of the ethnobotanycommunity who were principally those who took up the

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bioprospectingbanner,aswell asthosemore localized indigenousand activist groupswho

were directly implicated) to one that was, rather suddenlyfor some,played out on an ever
larger and more intemational stagewith itswide exposurethrough the Intemet.

This chapter also analyzed how the term was being used by developing country

governmentsin international forums, suchasWIPO, the WTO and the CBD. This section

of the chaptershowedhow the "success"of this term in being widely taken up allowed it
to take on other meaningsfor other setsof actorsinvolved in competing for what, exactly,
biopiracy would come to referenceas it was more widely used. Based on the examples
discussedin this chapter, I arguedthat developingcountry governmentstook the term and

presentedit in a way that was much different than the way in which RAM and other
activists had originally intended it to be used. I showed how, instead of seeing it as
somethingwhich cameabout as a result of the IPR systemitself, thesegovernmentsused
this term in such a way as to move the discussioninto more normative realms where the
"real" problem with biopiracy was seento stemmostly from a rich global West exploiting

and effectively "stealing" the resourcesof a biodiversity rich but ostensibly economically
poor global South. In this case,the IPR system's role in what they consider biopiracy
remains unchallenged,so long as "their" genetic resourcesare recognizedas such (e.g.
through a declaration of origin). Taken together, these two chapters showed how the
disputes over biopiracy served to index the wide divergence of conflicting views

concerningincreasingtechnologicalandlegal encroachmentsinto the realm of what many

considerinalienably "natural". They further demonstratedhow biopiracy is not deployedin
a uniform way with designson a uniform outcomeor by a unified set of actors.Rather,it is
deployedfluidly by a number of different actorsin a way which has ramifications across
the boundariesof disciplines (academicor otherwise),of regulatoryfora, and,asconsidered
in the chaptersthat followed, ultimately, acrossthe nature/culturedivide.

In the last setof chapters,I focusedon the impactsof biopiracy's deployment.In Chapter6,
I showedhow the way in which biopiracy is used in different settings leadsto different

understandingsof what the problem actually is, and hence,what the solution to it should
be. The analysisin this chapterestablishedthat biopiracy was involved in a feedbackloop

of sorts, where the "success"of the term in being taken up by actors acrossthe spectrum
contributed to generating solutions to the problems it set out. These solutions were
themselvesshownto be connectedto what the problem of biopiracy was understoodto be,
but were also inherently fed back into shapingthat sameunderstanding.

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These problem/solution relationships are extremely important to an understandingof
biopiracy, andthis chaptershowedhow the threeproblem/solution constructsstudiedhave

eachbeeninfluential in how the conflict over biopiracy hastaken shapeover the courseof
the last decadeand a half. Much of the initial controversyanalysedin this chapterfocused
on establishingwhether biopiracy was actually occurring. What becameclear through my
analysiswas that, for someactorsinvolved in this process,oncebiopiracy is understoodas
fact it opensup an entire cascadeof possibilities of interpretation,leverage,remuneration,
transformation,etc. Likewise, if its veracity could be rejected,that samesetofpossibilities,
levers,andso on, would be closeddown. What I referredto asthe "status quo" perspective

on biopiracy was adamantthat biopiracy was not possiblewithin the parametersof the IPR
system, or in the rare caseswhere it may have occurred, it was only a slight, easily
correctible malfunction in that system.By contrast,the adjustmentapproachto biopiracy
understoodthe problem with biopiracy to be somethingwhich wasreal, but which couldbe
best addressedby adjusting the system slightly to ensure that the benefits from the

exploitation of geneticresourcesflowed more clearly to thosewho were entitled to.them.

The "no patents on life" approachwas the most adamantthat biopiracy was indeed a

widespreadand extremely pernicious problem, but saw it as intrinsically linked to much

more fundamental,and ultimately fatal, problems with the IPR system,and with the bio-
economyof which it was a part.

The last chapter developed the examination of the impacts of biopiracy's deployment
further, and illustrated how biopiracy impacts on, and is impacted by the conceptsof
biosociality, hybrid natures and nature/culturein relation to the reshapingof categories
broughtaboutby defining the contoursof the bioeconomy.This chapterconsideredtherole
that the IPR systemplays in the bioeconomy,particularly in illustrating how it is integralto
creatingandpolicing a nature/culturedivide. This chapterdeliberately counteredmany of
the contemporaryunderstandingsof biopiracy which presentit asan interventiondesigned
to addressthe processof accessand benefit sharingor a particularcontestedpatent.Instead,
this chapterpresenteda more holistic and more comprehensivevision of the biopiracy
discoursewhich treats it as a processwhich begins its challengewith ways in which IPR

separatesnature/cultureand carriesit through, if necessary,ABS and the patentsystem.It

showedhow the acceptanceof IPR asa fundamental,indeedformative, elementof the new
bioeconomy also necessitatesthat we acceptthat such an economy is predicatedon our

ability to separatenature and culture, or natureand society. In so doing, I arguedthat IPR

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becomesa powerful conduit in our understandingof nature, as life, and also that the

existenceof IPRs reshapethe very meaningof knowledgeandthe possibility of knowledge

being owned.Scienceand the law werehereshown to sharea kind of systemiccomplicity

- science renders nature"knowable" as an element within culture (hence,inventable),and

the law, via IPR, thus rendersnatureproprietary. In presentinga more completeversion of
biopiracy this chaptershowedhow it needsto be understoodasa processwhich challenges
the role of the IPR in the bioeconomyin a particularly biosocial way.

This chapter adoptedthe premise that if we take seriously the claim that an emerging

epistemeof biosociality will allow us to overcomethe nature/culturesplit, thenwe haveto

recognizethat nowhere is that nature/culturesplit more evident than in the separationof
humans from plants. This was not suggestingsome version of deep ecology, where
individual trees should have the samerights as individual humans.Rather, I wished to

arguethat, in our biosocial approachesto nature,we can embracethe overcomingof this

split, and craft regimesthat allow us to move beyond conventionalvisions of the ways in
which humansinteract with nature.Whenthis understandingis applied to an IPR andTK
setting, then, we can imagine a systemwhich does not take individual property rights
systems as a given for the way in which we engage with nature. Moreover, this
perspectivecan aid in imagining an overcomingof this outmodedconceptof propertyand
its related concept of how private property will increaseinnovation. Ultimately, it can

allow us to finally know and remake our nature (and the rights, property or otherwise
associatedwith it) by taking into accountour cultural understandingof it, andof what we
want it to be.

Many of the groups contestingbiopiracy which were studied here advocatefor different

understandingof nature and the natural. Though they might not phrase it as such, they
presenta version of nature which acknowledgesthat the nature/cultureseparationthat is
integral to the IPR systemis predicatedon a certain fiction. For them, this makesIPR an

unsuitablebaseupon which to rest the systemwe chargewith demarking the boundaries

aroundwhat countsasknowledge,asownershipand, ultimately, asnatural.In otherwords,
along with the ability to know and remakenature so that it becomescultural, biosocial
natureslet us bring that culture to bearon what shape"our" naturetakes.In making these
interventions,those deploying conceptslike biopiracy seekto problematizethe dominant

narratives that suggestthat what is recognized as natural or as invented is universally

attainablewith referenceto a systemof IPRs.This also reshapesthe very conceptof nature

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that is at work here, shifting from a singular, external nature to multiple yet equivalent
natures, or, as Escobar (1999) would have it, hybrid natures where individuals and
collectives are able to hold different version of naturesin tension- one of which could be
seento be a biosocial version of nature.

When considering the three approaches/solutionsto biopiracy which were presentedin

Chapter 7 in light of biosociality, it becomesclear that only one was able, however

problematically, to addressthe full complexity of the situation at hand. Only the "no
patentson life" approachwent far enoughin rejecting the version of nature/culturewhich
underpins the IPR system and thus, by consequences,its application to ABS-oriented
If to
solutions. we are carry these insights forward, however it is not the obstinacy or
intransigencewhich often characterizesthis position which we must champion. Rather,

what shouldbe taken forward from this particular version of the biopiracy discourseis the
perspectiveon nature/culture that it offers. Though I will speculate briefly on this in the
remainingparts of this chapter,ultimately the possibilities that are offered up by this new
understandingof nature/culturefor the biocapital ageis somethingthat I cannotaddressin
the presentthesis.It is the task of future researchto push into this space,in the interestof
it
opening wide enoughfor negotiation to take place.

This researchhas deliberately stayedaway from prescriptions about how to best address
biopiracy. As a whole, this researchhasdeliberatelyturned away from the policy question

- assessingwhat is to be done about biopiracy - to explore and challengethe terms of the

debateitself. In large part, this was conditionedby the way in which the researchquestions
the
shaped research,namely becausethey were concernedwith the impacts of biopiracy,

rather than its veracity. Indeed, one of the central conclusions of this thesis - that the
solutions to biopiracy are entirely contingent on how the problem is understood (and
indeed, themselvescontribute to that very understanding)does not lend itself easily to

answeringwhat some might see as more pragmatic questionsabout how to address,or

"solve" biopiracy. While I respectthat, for many, this would not be best suited to their

purposes,I remain convincedthat the questionsand answersprovided in this thesiswill be

valuableonesto the study and further understandingof biopiracy, and its place within the
new bioeconomy - complete with all the sometimes cumbersomeshifts, stutters, and
changesthat it brings.

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As I bring the thesis to a close, I am compelledto reflect not only on the consequences
of
the existing versionsof biopiracy's deploymentthat I havepresentedhere,but also on the
potential consequences
of the new view of biopiracythat I here.
present Ultimately, looking

at biopiracy as I have encouragedwe do here allows for pressing beyond the current
limited, overly-normativeunderstandingsof what is at.stakein this particular controversy.
Rather than viewing biopiracy as simply an IPR or ABS issue, and dismissing any

perspectivesthat do not align with those as naYveor simplistic, viewing biopiracy as

concerned with certain aspects of the process of generating biocapital from genetic
resourcesallows us to open those categoriesup for ftirther analysis and negotiation.
Although the approachto biopiracy which I have provided here decidedly doesnot lend
itself to easyprescriptions about the way to address,or to dismiss biopiracy, there are,
however,someareaswhere thesefindings canhavea more direct impact. For instance,if a

set of actorsare seekingto examinehow to addressbiopiracy in a policy setting in such a

way that seesall of the stakeholderconcerns adequately then
represented, Chapter 6's

considerationsof biopiracy problem/solutionsmight comeinto play. Ultimately, this thesis

provides an example of how the activities of a relatively small network of extremely
precocious and dedicated actors working on influencing a particular version of
nature/cultureforce opena spaceto rethink nature/culturein the bioeconomy.Thoughthey
do it especiallyasit pertainsto TK, IPR andto non-humanversionsof nature(which are,as
has been demonstrated,increasingly merging with human natures) this can serve as an

examplewhen studying other areasof the bioeconomy.

Ultimately, biopiracy remainsa conceptwhich confoundssimplecategorization,both in its

intent and its effects, and is not something easily addressedor understood.Interpreting
bioPiracy in the way it has beendone here helps to clarify the widespreadand prevailing

misunderstandingsor misrepresentationsof the "nature" of biopiracy, especially ones

undertakenwithin the parametersof the dominant narrativesof biotechnology, bioscience

and IPR law. Put more simply, examining biopiracy in this way has servedto clarify and
take seriouslythe role of this particular controversyin the contemporarypolitics that take
shapearoundnew regimesof IPR, new developmentsin biotechnologyand,ultimately, the
contours and boundaries of what counts as natural and as invented in the biocconomy.
Indeed,biopiracy canbe seenasa profoundly biocconomiccontroversyandit is reasonable
to assumethat controversiessuchasbiopiracy becomecommonplaceif new developments
in the bioeconomyare not adequatelyput in context. When biopiracy is put in context,we

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are presentedwith a permeablenature/culture- brought about by the age of biological
control, andintervenedupon by a numberof perhapsnon-traditional actors,suchasNGOs.

At the end, in seeking to sum up, it may be instructive to return to the beginning, and

consider how the last several chaptershave contributed to addressingthe two research
problems that initially presentedthemselvesand shapedthe character of this research
project. When looked at in light of my argument in these chapters,thesetwo questions
actually answereachother. If I soughtto understandwhy it was that much of the research
on the subjectstayedaway from the ten-nbiopiracy, I had to look at the impactsthatthe use
of the term had- in structuring relationships,understandings,andultimately in generating
solutions which themselvesfed back into the understandingof the term. As this analysis
progressed,however,it transcendedthesequestions,of course,and took the understanding
of biopiracy in entirely new directions.Oneof the main lessons,perhaps,is a warning. We
cannottry and study the controversiesthat comeabout alongsidenew developmentsin the
biosciencesor the bioeconomyas separatefrom those samedevelopments.That is to say
that though they are often marginalized,or seenas problems unto themselvesthat can be
parceledoff from the "real" issuesthat comewith thesenew developments,controversies
like biopiracy are, in fact, right at the heart of these same developments.They are
influential in shaping our thinking, and thus our legal, ethical, policy and other kinds of

choicesas we come to addresswhat shapethesenew regimeswill take, and where these

new entities - these new nature/cultures- are positioned as we move aheadinto a more
formalized bioeconomy.Although biopiracy may well lack critical purchaseasaneffective
term around which to structure policy responsesto ever more pressing, and ever more
public questionsof ABS and IPR in the bioeconomy,wrappedup within it is a version of
somethingmore powerful: a meansthrough which to glimpse what Escobarcalls "new
narrativesof life and culture" (1996,p. 65) that move awayfrom materialistandessentialist
views of natureand its relationship with society.Thesewill be vital to the developmentof
the new bioeconomy,and the version of biopiracy presentedhere may help to glimpse at
the beginning of some of these new narratives, and will hopefully reinforce just how
important thesewill be.

211
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