Genetic Resources and Biodiversity as Part of the \

Genetic Resources and Biodiversity as Part of the "Knowledge Commons"?

7 November 2013

Bioprospecting – the collection, screening and scientific use of plant genetic information to improve food crops and for the development of pharmaceuticals, cosmetics and other consumer goods – is testimony to the ever-increasing value of biodiversity in the global economy. But in what does the challenge of a global genetic resource management consist and why should scientists and the wider public care about its social implications?

For one thing, bioprospecting is systematically pursued by biotechnology-advanced countries very often in poor, much less industrialized countries that are home to the vast majority of biological diversity. Scope and practices of commercializing these valuable biochemical compounds and genetic material have given rise to concerns about the diminishing public good character of the resources they are based on. This can be seen mainly in relation to the unprecedented importance of intellectual property protection, primarily patents, for research and development of products that rely on organic sources. Patents confer time-constrained rights of exclusive commercial exploitation of inventions in exchange for the guarantee that all the relevant information concerning the process and/ or product of invention will afterwards enter the public domain. Particularly in areas that demand enormous and high-risk financial investment such as drug development, this seems a reasonable deal to incentivize innovation. It does, however, also increasingly involve complex problems of innovation ethics and policy.

A number of interrelated facts are responsible for this situation. The nature of intellectual property, originally shaped by the demands of the industrial revolution and almost unchanged for centuries, has been undergoing profound transformations since the 1970s in confrontation with the development of the life sciences and biotechnology. The spectrum of things considered “inventions” and consequently considered patentable has been enlarged progressively to encompass genetically modified organisms (e.g. the famous “oncomouse”) and genetic sequences (see for instance the controversy on the BRCA1 and BRCA2 genes). As a consequence, the border between the natural and the artificial or man-made has become more visibly blurred. This in turn has generated ongoing ethical and political debate: Should we allow animals and genes to be owned or monopolized in the form of patents? On what grounds? Does this conflict with the dignity of life forms or other parties’ claims to the future potential of genetic information? And what about the claims of researchers and companies to be rewarded for their work?

There is also a striking lack of evidence concerning the impact of patents on the provision of innovation as a public good – the main ground on which patents are usually justified. On the contrary, there are studies which suggest that patent protection particularly on essentially biological processes and products can have negative effects on the diffusion of knowledge, skew markets through monopoly pricing, and involve cases of exploiting genetic resources and attached traditional knowledge by commercial companies in developing countries. The latter are known as “biopiracy,” in which multinational (pharmaceutical) companies make use of the knowledge of indigenous populations for profit without recompense or even acknowledgement. Cases of biopiracy that made headlines include e.g. the Indian neem tree, Bolivian quinoa or the Mexican Enola bean.

The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) demands that member states develop and enforce intellectual property legislation. While there is a certain freedom to decide about the scope of patent protection for ethically contentious issues such as patents on living organisms and genes, it does not apply to traditional knowledge often attached to genetic resource management in biodiversity-rich countries.

This growing pressure of privatizing genetic resources has long elicited criticism by activists and academics revolving around the idea to reclaim these resources as ‘Commons’. One of the most famous is Indian physicist and philosopher Vandana Shiva, who has been writing extensively about the need to rethink genetic resources as part of a global commons. Nobel prize winning economist Elinor Ostrom studied local commons regimes of natural resources such as forests and irrigation systems. Recently, Ostrom and her colleague Charlotte Hess enlarged the focus of their work to include the “New Commons,” mainly of informational kind – including genetic resources.

But what type of commons should genetic resources derived from the worlds’ biodiversity be, given the context sketched above? Current legal frameworks such as the Convention in Biological Diversity (CBD) and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) have abandoned the concept of global commons or as a common heritage of mankind in favor of state sovereignty and mechanisms of benefit-sharing to compensate provider countries in bilateral and multilateral bioprospecting agreements. While this might empower poor but biodiversity-rich countries in regulating access and use of genetic resources from their territories, TRIPs simultaneously presses them to compete with biotechnology-rich, mostly Western countries on their terms.

These asymmetries boil down to the idea that traditional conceptions of property rights to tangible and intellectual assets do not seem to apply well to the challenges of a global genetic resource management. More precisely, to a governance framework that would aim to balance both conservation of resources and equitable access to the benefits of genomic technologies. Genetic resources have material and prospective informational aspects, and classic patents have not been conceived to regulate also ethical issues of transnational innovation policy. As knowledge resources, symbolizing both intrinsic cultural and instrumental scientific and economic value, genetic resources are not doomed to degradation and depletion as in the infamous scenario of the Tragedy of the Commons.

As long as radical changes to intellectual property and national sovereignty over natural resources are out of sight though, the public nature of these goods must be sustained by different means. Interestingly, the original concept of the common heritage of mankind had already outlined the commons as a value rather than a property regime to sustain resources and artifacts beyond national interests. These ideas could be applied profitably also to genetic resources seen as a part of a Knowledge Commons to be instituted. For the area of pharmaceutical product development new global governance structures just to this effect have recently been proposed, e.g. the “Global Institute for Justice in Innovation” (Buchanan, Cole & Keohane) or “The Health Impact Fund” (Pogge & Hollis). These and similar institutions would have two fundamental aims: to bring innovation ethics on the political agenda in the first place, and potentially counterbalance unequal access to genetic resources due to some of the limitations of our current (intellectual) property regime.