No matter what you call these globe-trotting researchers (often pharmaceutical companies or entities hoping to attract the favorable attention of pharmaceutical companies), this is what their detractors say they do:
- Go someplace that has flora or fauna with unusual or unknown characteristics. In a lot of these places, the people who live there are poor. Possibly, given more money, the locals would have already paved over the flora, killed off the fauna, and built modern roads, houses, and stores. At least, when I visited the Peruvian Amazon a few years ago, that’s what a couple of the local folks I met said they’d prefer to do.
- Ask local healers which plants or animal parts are medicinal, and for what, and exactly how to prepare them and how they work.
- Go home with the collected knowledge and materials and lab-tweak them into a mass-producible, marketable, globally shippable product.
- Patent it and make a lot of money.
- Never pay the so-helpful locals one thin dime.
Some have argued that this business model is just fine. After all, the visitors end up spending a huge (and readily calculable) sum of money to develop their products, and have to subsidize the projects that don’t pan out. The money equivalent of the locals’ prior work is nearly impossible to quantify, and the normal human reaction is to ignore what one doesn’t understand. At least one American legal scholar even proposes that, not only should the materials be fair game as the “common heritage of mankind,” but traditional knowledge should not be protected or compensated because it is “already in a public domain of sorts, albeit perhaps a very small” local one; all this flap about biopiracy is just poor people being greedy. (Oh – and he proposes in the same paper that people who aren’t skinny are “obscene” and could easily become properly skinny if they weren’t simply lazy and lacking in willpower).
A counterargument goes like this:
- Without access to local knowledge, a researcher would have to evaluate, on average, 10,000 plant species to find one with promising medicinal qualities. By contrast, 75% of traditional botanical cures are proven valid after scientific study.
- Whether or not the sources of materials used in the cures are a “common heritage of mankind,” the knowledge that the materials are cures, and how to prepare and use them (after all, many are poisonous in the wrong doses or without correct pre-processing), is a product of human effort, often over several generations.
- Sometimes the whole local community knows about the cures, but often the knowledge is restricted to certain individuals or closed societies of healers. Even if that does constitute a “public domain,” things in the public domain aren’t necessarily free for the taking. If you want a book whose copyright has expired, you still have to buy it (unless it’s been uploaded to a free-access Website somewhere).
In short, locals’ knowledge is something they and their forebears worked to develop, it has economic value to the researchers, and the locals have a right to compensation for it. Their poverty doesn’t figure in this argument; if researchers happened to discover that a Beverly Hills garden club had developed a potentially lucrative cure, those pearl-bedecked ladies who lunch would be entitled to compensation too.
The international Convention on Biodiversity is working to make sovereign governments responsible for protecting both their genetic resources and their traditional knowledge, and ensuring that local knowledge-holders get some share of the benefits when a cure is developed and widely marketed. The US is not a member. The approach has its critics, who point out that, among other things:
- Many of the national governments now accountable for policing bioprospecting cannot afford the infrastructure to watch and intervene in the far-flung stretches of back-country where these activities often take place.
- Many of the individuals and communities holding traditional knowledge are minorities that have not traditionally been well-served by their national governments. They have understandably become reluctant to attract governmental attention, much less ask for help against prestigious visitors with money.
- If national governments collect the shared benefits, the percentage that reaches those who actually contributed the knowledge is not necessarily guaranteed.
- No one will be able to afford to develop new medicines anymore if traditional knowledge costs ANYTHING AT ALL, and then everyone in the world will get sick and die, and then they’ll be sorry. This is the usual rhetorical refusal to recognize any middle ground between opening the floodgates and dying of thirst.
Still, CBD has raised a lot of international consciousness about the alternative of fair trade for traditional knowledge. This is good. However, some of the consciousness isn’t as accurate as it could be. Many otherwise authoritative people keep going around claiming that if someone patents a product based on a traditional cure, the people who developed the traditional cure can’t use it anymore. THIS IS NOT WHAT PATENTS DO in any country I know of. Neither products of nature (like the raw materials) nor prior art (like the traditional knowledge) is patentable, because patents are only granted for new inventions. Let’s be fair; the learned, albeit fat-bashing, fellow professional I cited above points this out too. But it really can’t be said enough.
There is a potential loophole, using U.S. patent law as an example, but it’s not as wide as it looks. To be “prior art” under U.S. patent law, something either has to be known in the U.S. or published anywhere in the world. Many local communities don’t publish their traditional knowledge. However, “known in the U.S.” covers the whole geographical area over which a U.S. patent can be enforced, so U.S. residents’ traditional knowledge is protected as prior art. An unpublished foreign traditional cure is not prior art in the U.S., but neither can a U.S. patent prevent the traditional cure from being used outside the U.S. (though it can prevent the original knowledge-holders from exporting their cure TO the U.S.).
The net happiness of the human world would almost increase if products that kept people (or human-friendly animals and plants) healthy were readily available. If biopiracy ever worked, it doesn’t work anymore now that the whole world is watching. On my trip to Peru, my hardest-working traveling companion managed to fax LA from a town with no paved streets, two days down the Amazon from Iquitos. Give fair trade a try. It’s, well, fair.