When biopiracy takes root

There is a huge diversity of Indigenous Peoples, cultures, languages, and knowledge systems around the world. These systems, developed over hundreds or thousands of years, have greatly contributed to the development of the foods we eat, traditional and modern medicines, and fibres and materials used in our homes and our clothes. Although often described as “traditional”, Indigenous knowledge systems originate from empirical observation and repeated practice, and like other knowledge systems they continuously evolve over time to incorporate new information and as local conditions change.

Indigenous insights on the properties of plants, animals, and other non-human inhabitants of ecosystems have often been sought by researchers and companies for the development of new technologies and innovations. This process, sometimes referred to as “biodiscovery”, frequently occurs in the sectors of agriculture and food, biotechnology, pharmaceuticals, cosmetics, forestry, and others to create products that are marketed globally. 

Resorting to biodiscovery can offer numerous advantages for those developing new products. For example, in the pharmaceutical industry, where research and approval timelines are long, product development processes are expensive, and intellectual property and regulatory protection strategies are risky, Indigenous knowledge can help bring products to market more quickly. 

However, there is criticism against biodiscovery as “free riding” on knowledge developed by Indigenous and other local peoples. When the role of their knowledge is not sufficiently recognized in scientific investigation, product development, or commercialization, and where the users of this knowledge do not appropriately share benefits with ancestral knowledge holders, it can be called “biopiracy”. 

The case of the kava (Piper methysticum), a plant in the pepper family that is native to the Pacific, appears to be a prime example of misappropriation of knowledge developed by Indigenous and local communities. Kava has attracted hundreds of patent applications, many of which relate to its anti-anxiety and sedative effects, long known to Pacific peoples. Despite this massive interest, there are no known agreements today for securing permission or implementing benefit-sharing for research and patent claims.

Oil produced from the nuts of the Moroccan argan tree (Argania spinosa L.) provides another example. Argan oil is now used in hair and skin care products around the world for essentially the same purposes for which Amazigh (or Berber) women used it for over 1,000 years. While some major international companies with relevant patents selling argan-based products have set up benefit-sharing agreements with Amazigh women’s cooperatives, others appear never to have shared benefits with Amazigh communities. 

Not all commercial use of Indigenous knowledge linked to genetic resources constitutes biopiracy; some projects are mutually beneficial. For instance, the Indjalandji-Dhidhanu people in Australia have worked with researchers at the University of Queensland to build upon their Indigenous knowledge of spinifex, a hardy perennial tussock grass traditionally used for a variety of purposes. The collaborative research agreement includes provisions for benefit sharing. A spinoff company is now developing medical gels from cellulose nanofibers extracted from spinifex, and a composite material from the grass has been patented. Benefits that have already been shared under the agreement include employment opportunities for First Nations youth and funding for training and educational opportunities for Indigenous Australians.

The root of the biopiracy question lies in a historical transformation: the moment the global community began treating biological resources not as a shared heritage, but as proprietary assets.

The circulation of plants, animals, and other components of biodiversity around the world and the sharing of associated knowledge between different human groups is nothing new. Well before the era of European colonization, there were broad global movements of different species and knowledge about how to cultivate and utilize them. People have long traded domesticated animals, spices, herbal medicines, foods and beverages, and fibre products across vast distances, frequently drawing upon knowledge developed by other groups to understand how to use the items obtained.

For most of human history, international law treated such biological resources as the “common heritage of humankind”, meaning that anyone could obtain and use them without needing to obtain permission or to share benefits with resource providers. However, with new developments in the science of genetics starting in the mid-twentieth century, products based on or derived from biodiversity came to be understood as “genetic resources”. This corresponded with new ways of assigning value to the components of biodiversity based on potential, rather than only actual uses. 

The situation changed dramatically in the 1990s with a few developments. First, intellectual property rights were harmonized under the World Trade Organization (WTO) agreements, changing how states allowed intellectual property protection relating to genetic resources. In 1992, when the Convention on Biological Diversity (CBD) placed genetic resources under state sovereignty, it also laid the foundation for systems designed to prevent the misappropriation of traditional knowledge. More recently, the 2010 Nagoya Protocol on Access and Benefit Sharing created an international template for users and providers of genetic resources and traditional knowledge to negotiate agreements governing how these assets may be utilized. 

The reinforced international framework of rules and agreements, built over the past 30 years, has brought about some positive change. Today, many countries require prospective users of Indigenous knowledge to first secure clear consent from the knowledge holders and sign agreements detailing how benefits will be shared. 

Additionally, an increasing number of laws require that applicants for intellectual property rights – particularly patents – disclose the origin of any genetic resources or traditional knowledge used to create the invention. Such “disclosure of origin” requirements may be adopted by a growing number of countries following the finalization of the 2024 World Intellectual Property Organization Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge.

But despite these measures, biopiracy continues to occur due to exploitable gaps in the system. For instance, the rules may be bypassed by collecting genetic resources or traditional knowledge from a country where no restrictive legislation has been adopted or by obtaining genetic resources from historical collections made prior to the entry into force of the convention. Furthermore, while much attention is paid to patent abuse, other forms of intellectual property, such as plant breeders' rights and trademarks, also facilitate the misappropriation of Indigenous knowledge. Without major change, the persistence of these gaps means biopiracy will remain an unfortunate reality.