With attractive pinkish-white flowers and lush green foliage, the Madagascar rosy periwinkle appears at first to be an innocuous, decorative plant. Belying its appearance, the plant has incredibly potent qualities. In the early 1950s, the pharmaceutical giant Eli Lilly & Company began conducting research on the periwinkle, until then grown largely by poverty-stricken indigenous communities. Inspired by its use traditional medicine, researchers at Eli Lilly eventually isolated two extracts—vinblastine and vincristine. Both extracts have become powerful drugs, one to treat childhood leukemia, and the other to treat Hodgkins’ Disease. Together, these drugs generate over US$200 million in revenue for Eli Lilly each year, no part of which is seen or even heard of by the people of Madagascar.
The story of Eli Lilly and the rosy periwinkle is one example that relevant NGOs label as “biopiracy,” a term used to describe the appropriation, by outside forces, of legal rights over indigenous knowledge. This type of traditional knowledge (TK), including but not limited to native lore about plants and animals, is scantily protected under existing international intellectual property (IP) regimes. Furthermore, indigenous communities tend to be located in poorer countries in the “Global South,” where governments cannot easily afford to regulate or protect local rights to indigenous biodiversity.
In order to protect the rights of the governments and peoples of these countries, the current system must be adapted, with new laws created that recognize value of traditional knowledge. The question arises, however, of whether or not knowledge about indigenous biodiversity can be considered intellectual property. The end product, a compound developed from an original plant sample, might have a completelely different purpose than the original status of the plant in traditional knowledge. At the very least, however, benefit-sharing agreements between drug patent-holders and source countries is not only a moral issue in terms of uniform protection of rights, but at a more fundamental level, is necessary for protecting and promoting the livelihoods of the world’s poor.
International Standards: The West and the Rest
The current basis for international intellectual property law resides in a treaty signed by WTO member states, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement is a basic framework that protects the intellectual property rights of individuals and corporations across WTO nations. However, the standards of TRIPS stem from those of richer, developed nations. Pushed through the WTO by the US, European countries, and Japan, the agreement as a whole is generally viewed by advocates of developing countries as a forced concession to the developed world. Though fought and debated for a decade, by the beginning of 2005, all developing countries were bound to comply to TRIPS intellectual property standards.
The agreement, thus far, has mostly served to protect the interests of large, multinational corporations based in the developed world. Particularly with regard to prescription drugs, TRIPS has protected large pharmaceutical countries to the detriment of the citizens of poorer nations, who in many cases have the most need for such drugs but are the least able to afford them. The irony, then, comes full circle. In some cases, such as that of the rosy periwinkle, the indigenous people who provided the initial source of knowledge about a medicine are among the least likely to benefit from the resulting drugs, much less even hear about them or reap any monetary benefits at all.
Though in recent years, the issue of protecting traditional knowledge has risen in prominence among lawyers and activists alike, no effective legal mechanisms yet exist that proactively provide support for holders of TK. The 1992 Convention on Biological Diversity is the one treaty that came close to recognizing the rights of traditional knowledge holders by declaring that “traditional lifestyles” must be protected. However, there are no effective enforcement measures built into the treaty, and, notably, the United States still refuses to sign. In fact, the issue of traditional knowledge is often treated as just another bargaining chip by developing countries in international trade discussions. This type of general disrespect for TK from developed countries and developing country governments alike often stems from the inability of indigenous people to fight for the effective protection of traditional knowledge.
A Paradox for the Poor
Even if the enforcement of intellectual property rights seems detrimental to the development of poor countries, TRIPS appears here to stay. In the context of this reality, experts have pondered how today’s intellectual property rights can be made to work for developing nations.
Many academics are optimistic about the answer to this question. UC Davis Law Professor Madhavi Sunder cites the example of one Indian farmer in Kerala who patented his own method of planting rubber trees to produce higher yields, protecting his ideas when others tried to use them. If individuals in indigenous communities are educated on how to work within the TRIPS framework to protect their knowledge, the current regime could aid people in the Global South as opposed to harming them.
There are, then, two sides of the coin to this forced acceptance of international intellectual property rights by poor countries. One major area of concern is the right of access to affordable drugs—especially the important ones which fight epidemics such as AIDS and malaria, drugs that are currently covered by patents owned by large pharmaceutical companies. Though TRIPS provides an exception for compulsory licensing, wherein poor countries unable to afford crucial drugs to fight diseases may produce generic versions of drugs locally, Western countries, spurred by the outcry from pharmaceutical companies, are putting pressure on other governments to not revert to compulsory licensing unless circumstances are beyond dire.
Ironically, legal scholar Victoria Spier estimates that around 121 patented drugs globally are made from plants, 74 percent of which were “discovered pursuing claims from native fables.” Hypocritically, pharmaceutical companies profiting from TK often protest against patent-breaking by nations where they might have obtained the plants or inspirations for some of their patented drugs.
On the other hand, activists hope that increased recognition of intellectual property rights will help to eliminate biopiracy and patent pirating in general. However, this admirable goal seems far in the future for many poor and developing nations. According to economists, it would cost a poor country roughly US$2 million just to build a basic infrastructure for administering intellectual property rights. With many other more pressing development needs at present, it is unlikely the governments of poor countries will be able to dedicate resources for an intellectual property regime, something that is generally identified with the economies of much more developed Western nations.
