[Commons-Law] Struggle Over (Green) Gold Rush

[Ram]

>Wired News

Struggle Over (Green) Gold Rush 

Rowan Hooper 

In some ways, they are the Indiana Joneses of the 21st century. 

Bioprospectors head into the deepest parts of the jungle, scale the
highest mountains and, generally, brave extreme conditions in their
quest for "green gold" -- plants and animals with commercially
valuable properties. With the Amazon alone harboring medicinal plants
capable of treating anything from parasite infections to malaria,
toothaches to diabetes, the potential rewards are astronomical. But
who will reap them?

Just as when the mythical Jones plundered foreign lands for ancient
treasures, there is some controversy over who will benefit from any
discoveries. For example, if a cure for, say, cancer is found in the
Amazon, how much credit -- and payment -- will go to tribal people who
might have provided expert help?

If a contract is made, then the spoils will be divided accordingly. But if not? 

"If not," said Padmashree Gehl Sampath, a researcher at the Institute
for New Technologies in the Netherlands, "then the interesting
questions that arise are: Did the drug company get the government's
permission to access the genetic resources? Did the company have the
prior informed consent of the (indigenous) communities?"

Without such permission, the parties will have to come to an agreement
after the discovery, which is unlikely to be fair.

"This is why efficient national frameworks for bioprospecting assume
so much importance," said Gehl Sampath.

And so, on April 19, an expert panel discussion will take place at
U.N. headquarters in New York to debate strategies that developing
countries can adopt to attract investments in drug research based on
genetic resources.

The concept behind bioprospecting is not new. It could be argued that
the first bioprospector was Alexander Fleming, who noticed that a
piece of mold that had fallen into his Petri dish killed his bacteria
culture. The discovery landed him a Nobel Prize -- and the world got
penicillin.

That was before it became routine to apply for patents for biological
and chemical discoveries, and before multinational drug companies
became quite so large.

One of the first major deals was in 1991, when the pharmaceutical
giant Merck made an agreement with Costa Rica's National Biodiversity
Institute to collect and prepare specimens for inventory. The first
payment was $1 million, but it was far from clear how any future
monies generated from pharmacological discoveries would be shared with
indigenous peoples.

This is one reason the U.N. meeting has been called. Another is to
discuss Gehl Sampath's new book, Regulating Bioprospecting.

Gehl Sampath focuses on the economics of the contracting process. She
argues that potential investors have been put off by the poor
regulatory environment in source countries (usually developing
countries), and by the limitations of international processes designed
to govern regulation. Those "limitations" are meant to protect
indigenous peoples' rights to ownership of the traditional knowledge
associated with their land, and to promote sustainable development.

The most important is the Convention on Biological Diversity, which
came into effect in 1993, but which the United States has yet to
ratify. And then there is the Agreement on Trade-Related Aspects of
Intellectual Property Rights, commonly known as the TRIPS Agreement.

But not surprisingly, all that bureaucracy does not work well. 

"National regulations on bioprospecting should be more attuned to the
drug R&D processes, the contributions of the resources -- that is, the
actual contribution of traditional medicinal knowledge to drug
research programs -- and have to be enforceable," said Gehl Sampath.

If the regulations are not enforceable, researchers or companies can
exploit traditional medicinal knowledge and gain access to genetic
resources unfairly.

"One of the major reasons why companies have been discouraged from
investing in the past is the legal uncertainty caused by lack of
regulatory frameworks on bioprospecting at the national levels, or
frameworks that recognize rights on traditional medicinal knowledge
and (give) access in an extremely bureaucratic way," said Gehl
Sampath.

Of course, it's important to sort out the bioprospecting frameworks
for the sake of fairness, but also because it gives a hard financial
incentive to conserve the environment. With some governments, that's
the only argument that holds water.

"Bioprospecting can offer market incentives for the protection of
biodiversity if laws are well-designed," said Gehl Sampath. "A caveat,
though, is that this may be true only for those ecosystems which host
species that have non-marginal inputs to the drug R&D process."


Link: http://www.wired.com/news/medtech/0,1286,67244,00.html
  

-- 
Prabhu Ram,
Max-Planck-Institut for Intellectual Property, Competition and Tax Law,
MarstallPlatz 1, 
80539 Munich
GERMANY

Tel: + 49 89 24246226
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