Bio-piracy: Creating Proprietary Rights in Plant Genetic Resources

Journal of Intellectual Property Law Volume 2 | Issue 1 Article 4 October 1994 Bio-piracy: Creating Proprietary Rights in Plant Genetic Resources James O. Odek University of Nairobi Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Biotechnology Commons, Genetics Commons, Intellectual Property Law Commons, Plant Biology Commons, and the Plant Breeding and Genetics Commons Recommended Citation James O. Odek, Bio-piracy: Creating Proprietary Rights in Plant Genetic Resources, 2 J. Intell. Prop. L. 141 (1994). Available at: https://digitalcommons.law.uga.edu/jipl/vol2/iss1/4 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Odek: Bio-piracy: Creating Proprietary Rights in Plant Genetic Resource BIO-PIRACY: CREATING PROPRIETARY RIGHTS IN PLANT GENETIC RESOURCES James 0. Odek* Since the Age of Exploration, researchers and travellers have transported discovered plant species back to their own countries as new foods and raw materials for plant breeding. During expeditions to conquer and subjugate most of the developing countries, explorers screened agricultural materials for new and useful crops. The Great Columbian Exchange brought the tomato to Italian cuisine and introduced the potato to Ireland.' The Royal Botanical Gardens at Kew benefited beyond measure from British travellers and colonialists in South America; indeed, the majesty of Britain as a colonial power in the eighteenth and nineteenth centuries was arguably due to the pre-eminence of the gardens. "[Clontrol over plants often meant much wealth and power."2 The concept that exotic plant species found in nature were freely accessible to the taker commenced during this epoch.' Presently, developing countries are passionately protesting that scientists from multinational corporations are prospecting for plant species in their tropical forests, protecting discoveries through breeders' rights, and merchandising the plants back to them at exorbitant prices." To developing countries, these practices constitute uncompensated exploitation of their "plant genetic resources" in the name of intellectual property rights. The increasing importance of plant biotechnology as a determinant of international competitiveness has fostered a challenge to the * Lecturer of Public Law, University of Nairobi, Kenya; Advocate, High Court of Kenya; LL.B., 1987, University of Nairobi; Diploma of Law, 1988, Kenya School of Law; LL.M., 1989, Yale Law School; S.J.D. Candidate, University of Toronto. 1 Rebecca L Margulies, Note, ProtectingBiodiversity: Recognizing InternationalIntellectual PropertyRights in Plant Genetic Resources, 14 MICIL J. INTL L 322, 328 (1993). 2LAWRENCE BUSCH ET AL., PLANTS POWER, AND PROFIT. SOCIAL, ECONOMIC, AND ETHICAL CONSEQUENCES OF THE NEW BITECHNOLOGIES 59 (1991). 3 Margulies, aupra note 1, at 328. 4 See CALEISrous JuiA, THE GENE HUNTERS: BIOTECHNOLOGY AND THE SCRAMBLE FOR SEEDS 169-170 (1989) (observing that industrialized nations collect and 'improve Third World resources before selling such resources back at high prices). 141 Published by Digital Commons @ Georgia Law, 1994 1 Journal of Intellectual Property Law, Vol. 2, Iss. 1 [1994], Art. 4 J. INTELL. PROP.L. .142 [Vol. 2:141 concept of free access to plant genetic resources by developing countries. An analysis of plant breeders' rights is incomplete without scrutiny of the ownership and legal status of the plant genetic resources crucial to the sustenance of plant biotechnology. Yet an inquiry into ownership is deficient without a discussion of the issue of dominion over plant germplasm in gene banks. As a corollary to this issue, questions of compensation, access, and genetic bio-piracy become germane. At the heart of these issues lie two equitable considerations. The first consideration is whether developing countries should pay for new plant varieties developed by Western seed companies from species obtained from the Third World. 5 The second factor is whether plant genetic resources should be commodities, and if so, who should have proprietary rights? This Article offers an analysis of these issues and addresses the following issues: (1) the nature of plant genetic resources; (2) the significance of these resources; (3) the role the concept of a "common heritage of mankind" plays in justifying the uncompensated extraction of plant genetic resources; (4) the extent to which developing countries stand to gain from making elite plant genetic resources subject to a concept of a common heritage of mankind; (5) the cases for and against commoditization of plant genetic resources; (6) the resolution of the question of ownership of plant genetic resources; (7) the extent to which the Biodiversity Convention and Agenda 21 address ownership of plant genetic resources; (8) possible proposals to resolve the legal status of plant genetic resources; and (9) entities in which proprietary rights over plant genetic resources could be vested. I. SIGNIFICANCE OF PLANT GENETIC RESOURCES Scientifically, the term "plant genetic resources" refers "to the genetic information found in the chromosomes of the nucleus and 5 See Bill Paul, Third World Battles for Fruit of Its Seed Stocks, WALL ST. J., June 15, 1984, at 34 (characterizing dispute between developing countries and Western seed companies as 'seed wars"). https://digitalcommons.law.uga.edu/jipl/vol2/iss1/4 2 Odek: Bio-piracy: Creating Proprietary Rights in Plant Genetic Resource 1994] BIO-PIRACY 143 associated subcellular structures of plants;" the chemical chromosomal information carried in gene alleles of living plant cells.7 This genetic material is found in every living cell of every plant. Plant genetic resources include genetic material from "all agricultural crops, fruit, nut and forest trees, forage crops, medicinal and ornamental plants, unexploited plants, wild relatives and ecosystem diversity."' These resources are divided into primary, secondary and tertiary gene pools.9 The economic significance of these resources exists in their potential value to industry, medicine,10 agriculture, and energy development." In medicine, for instance, the rosy periwinkle of Madagascar has yielded two compounds used to treat Hodgkin's disease and juvenile leukemia successfully.' A vine, Ancistro cladus korupensis, with enormous potential for treatment of AIDS, has been found in the Korup forest of Cameroon."3 In agriculture, scientists expect genetic engineering to increase efficiency and productivity and to improve the nutritional quality of food.14 The development of insect-resistant crops, through agricultural biotechnology, may minimize dependence on chemical pesticides." These genetic resource (...truncated)