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Press Releases PLENARY SESSION 15-01-2013 - 12:30 The EU must combat the "biopiracy" of multinationals that exploit plants with medicinal properties and traditional remedies originating from developing countries but fail to share the profits with indigenous peoples, say MEPs in a resolution adopted by a show of hands on Tuesday. Biopiracy - the practice of patenting and marketing the use of traditional knowledge and genetic resources of indigenous peoples without authorization from source countries - can impede the economic progress of developing countries and runs counter to EU development policy goals, says the resolution, which notes that 70% of the world’s poor depend directly on biodiversity for their survival and well-being. "Ninety percent of the world's biological heritage is found in developing countries, yet the vast majority of patents are held by developed ones. Our rules for using natural resources and traditional knowledge are very ill-defined and companies exploit this legal uncertainty to use traditional knowhow. The EU must help to ensure that benefits are shared fairly, in line with its commitment to combat poverty", underlined author of the resolution Catherine Grèze (Greens, FR). Lack of legal protection Although there are international agreements to protect indigenous peoples’ rights to their genetic resources and traditional knowledge, there are no mechanisms to enforce them. Existing intellectual property law can even have adverse effects, as it assesses traditional knowledge solely from a mercantile point of view, say MEPs. To prevent biopiracy, MEPs urge that the grant of a patent be made conditional upon a requirement to disclose the origin of genetic resources and traditional knowledge used in inventions and provide evidence of consent from authorities in the provider country and also evidence of fair benefit sharing. How can the EU help? The EU should not push developing countries into trade agreements that entail far-reaching intellectual property standards, as these do not currently meet the needs of traditional knowledge holders, say MEPs. The EU should help developing countries to build legal and institutional mechanisms and understand patent application systems, they add. MEPs welcome a recent proposal by European Commission to implement the Nagoya Protocol which aims to protect the rights of countries and local communities that allow their genetic resources and associated traditional knowledge to be used.

The question of the direction of the flow of valuable resources, whether genetic or indigenous agricultural or medical knowledge, is extremely relevant to constructing the intellectual public domain as well. As Vandana Shiva points out, representing the cultural property of non-European peoples as "natural" or "primitive" equates such properties as "unowned" and up for grabs by erstwhile and entrepreneurial "civilized" proprietors. Any formulation of the intellectual public domain must take account of the culture-vound nature of our concepts of property and how:

The concept of intellectual property is foreign to the traditions of many non-Western cultures, especially indigenous cultures. Indeed, 'indigenous peoples do not view their knowledge in terms of property at all - that is, something that has an owner and is used for the purpose of extracting economic benefits - but in terms of community and individual responsibilities' (Battiste and Henderson 2000: 71). At the same time, Eurocentric culture has long denied that traditional indigenous knowledge or practices had any value at all, or if so, that they were part of the intellectual commons and thus free to be appropriated and used without recompense. As Lander (2002: 260) puts it, 'since the Eurocentric colonial assumption is that the only possible knowledge is Western university and industrial knowledge, it follows that only knowledges which correspond to this paradigm can be registered and protected as intellectual property. All other ways of knowing can be freely appropriated.'

The correct identification of plants is important in the nonscientific, commercial world as it is to ecologists and taxonomists. Genetic markers are broadly known as “DNA barcode forensics” and are being employed to ensure the identity and purity of commercial products in order to protect endangered species in illegal trading. A well-documented DNA barcode (rbcl and ITS2) helped to find that 59% of the products contained plant species not listed on the labels (many of them “fillers”) which has not only aroused attention in the scientific world but also made national news on New York Times. The news resulted in a backlash from the herbal supplement community concluded by recommending that the commercial herbal industry should routinely use DNA barcoding as a verification of the authenticity of constituents in all herbal products [35, 36].

Natural products are more competitive in the international market and increase consumer health, and now problems are encountered due to quality failures; i.e., Ceylon Cinnamon has a risk of losing the international market value due to the adulteration [31, 37]; true cinnamon stands out as the most expensive in the global market [38]. Adulterants from the genuine products in cases where there is a high physical resemblance between the entities, or in the instances of change in the physical form, could be discriminated using molecular markers [39].

Collecting societies are common in the copyright area, where they serve copyright owners by reducing their transaction and enforcement costs. [FN17] *248 The proposal being put forward here, however, differs somewhat from the usual copyright collecting society model. Rather than having many bio-collecting societies at the national level, it would be better to have one global bio-collecting society ("GBS"). The operation of one GBS could be more easily scrutinized by the various interested actors than the operations of many national collecting societies. Better transparency, in short, would be one outcome of a GBS. It might also be argued that international organizations, for the most part, serve the interests of indigenous groups better than state organizations. States, not uncommonly, have been opponents of indigenous groups in the context of land claims and rights issues. Political-economic elites wielding the power of the state present the greatest danger to indigenous groups. [FN18]

Another important difference between copyright collecting societies, which tend to serve the interests of copyright owners alone, and a GBS would be that the GBS would be chartered in a way that attended to the broader purposes that are specified in the CBD and perhaps also the International Undertaking on Plant Genetic Resources. The protection of indigenous knowledge by a GBS would be a primary rather than absolute duty.

Piracy is a central theme running through the international discourse on patent rights. The concept was utilized as a rationale for including intellectual property rights within a global trade agreement; in particular, the United States asserted that it was losing millions of dollars a year because of global piracy of copyrighted and patented works.' One major response to these piracy claims was the creation of the World Trade Organization (WTO), along with the adoption of the landmark Trade-Related Agreement on Intellectual Property Rights (TRIPS), which established minimum levels of intellectual property standards for all member states. However, these developments did not mark the end of global patent policy disputes or piracy rhetoric. A decade after the creation of the WTO and minimum intellectual property rights, piracy continues to be a compelling theme, but the term is being used by parties with divergent interests. In particular, the United States and European "Western" countries have enacted a series of bilateral and multilateral agreements based upon the premise that higher levels of protection are necessary to combat global piracy. On the other hand, many developing countries have argued that these Western countries engage in their own piracy-"biopiracy"-by taking genetic resources and associated traditional knowledge from biodiverse developing countries without permission, then patenting related inventions, but failing to share any of the resulting commercial profits. The process of obtaining private rights over products derived from third world resources or knowledge that is considered sacred or beyond private ownership is considered to be morally offensive to many citizens of developing countries, as well as those with sympathetic interests in other countries. Moreover, many of these citizens view Western countries and companies with great suspicion since usurpation of resources, harking back to colonial imperialism.

It has been argued that a person has a natural right over his own idea and their appro- priation by others amounts to stealing. The society has a moral duty to protect and give recognition to this property right (Machlup F., 1950, p. 10). But, the innovator himself has misappropriated the traditional knowledge of the aboriginal people. Apart from safeguarding the interest of the innovator, the interest of the indigenous community at large needs to be protected.

Patenting the products or processes by using traditional knowledge of the developing countries is unethical. Firstly, because the indigenous knowledge is used and applied without taking a prior consent or without giving any recognition to the local commu- nity and without sharing any benefits with the aboriginal people. Secondly, the knowledge which was being discovered by the local communities and which was once freely available in the society is now being stolen from indigenous people and is being charged for. In order to safeguard the interest of indigenous people, patenting of traditional knowledge must be precluded.

Giddens (1990: 64) argues that one of the consequences of modernity is global-

ization - 'the intensification of worldwide social relations which link distant localities in such a way that local happenings are shaped by events occurring many miles away and vice versa'. Globalization is thus a function of the 'stretching' of social relations precipitated by the increased space-time distancing and disembedding of modernity. Ayahuasca healing beyond the Amazon

WHAT IS BIOPROSPECTING and How Does it Relate to Indigenous Peoples? Biodiversity prospecting is the exploration, extraction and screening of biological diversity and indigenous knowledge for commercially valuable genetic and biochemical resources. While it is true that biodiversity prospecting does not always involve the use of indigenous knowledge, it is clear that valuable chemical compounds derived from plants, animals and microorganisms are more easily identified and of greatest commercial value when collected with indigenous knowledge and/or found in territories traditionally inhabited by indigenous peoples. The following are just a few examples(2): Between 1956 and 1976 the U.S. National Cancer Institute screened over 35,000 plants and animals for anti-cancer compounds. The program was terminated in 1981 because of its failure to identify a greater number of new anti-cancer agents. A retrospective study conducted on the project concluded that the success rate in finding valuable species could have been doubled if medicinal folk knowledge had been the only information used to target species.(3) Scientists have found that 86 percent of the plants used by Samoan healers displayed significant biological activity when tested in the laboratory.(4) Crude extracts of plants used by one healer in Belize, gave rise to four times as many positive results in lab tests for anti-HIV activity than did specimens collected randomly.(5) It is generally acknowledged that about one in 10,000 chemicals derived from mass screening of plants, animals and microbes eventually results in a potentially profitable drug. By contrast, Shaman Pharmaceuticals, Inc., the U.S.-based company that collects plants by talking to indigenous healers and watching them work, claims a success rate of 50%. Shaman's formula for success: Where three different communities are found to use the same plant kind for medicinal purposes, Shaman targets the plant for further study. About half the plants collected by Shaman's researchers come up positive in screening tests, making the "filter" of indigenous knowledge 5,000 times more effective than random collection. Today, there is greatly renewed interest in natural product screening--especially for medicinal compounds. In 1980, none of the U.S. pharmaceutical industry research budget was spent on research into higher plants. Today, it is estimated that over 200 companies and research organizations worldwide are screening plant and animal compounds for medicinal properties. The renaissance of natural product screening and recognition of the value of indigenous knowledge is fueled, in part, by the realization that species, their genetic material, and the ecosystems of which they are a part are rapidly disappearing from the face of the earth. In the mid-1980s, pharmaceutical industry analysts warned that each medicinal plant lost in the tropical rainforests could lose drug firms possible sales of more than $200 million.(6) With advances in molecular biology and the availability of more sophisticated diagnostic tools for screening, it is increasingly cost effective for pharmaceutical corporations and others to conduct natural product research. In high-technology laboratories, extracts from biological specimens undergo rapid and precise screening procedures that allow for the isolation of chemicals displaying a specifically targeted activity. As a result, the market for buying and selling exotic biological specimens is expanding rapidly. It is conservatively estimated that the market for natural product research specimens within the pharmaceutical industry alone is (US) $30-60 million per annum.(7) Biodiversity prospecting is not new, of course. For decades, plant collectors from industrialized countries have ventured southward in search of valuable genetic material for agricultural plant breeding. But no money changed hands in the process, nor was recognition given to the indigenous farming communities who selected, maintained and improved traditional crop varieties. As recently as 1991, Monsanto Inc. (a U.S.-based agrochemical corporation) was recruiting company employees "who are traveling somewhere exotic and wouldn't mind digging up a few soil samples for the sake of science" to volunteer to pick-up specimens for Monsanto's agricultural screening programs. "You never know what you're going to find or where you're going to find it...Nothing's off limits," according to Monsanto spokesperson, Margann Miller-Wideman.(8) You never know what you're going to find or where you're going to find it... Nothing's off limits. -- Monsanto THE CONVENTION ON BIOLOGICAL DIVERSITY: A Boost for Bilateralism and Biopiracy The Convention on Biological Diversity entered into force in December, 1993. The Convention offers a multilateral facade for addressing conservation and sustainable use of biodiversity, but offers no multilateral mechanisms for making it happen. In reality, the Convention promotes bilateral deals (commercial contracts and other agreements for access to biodiversity) while failing to provide a strong plan of action based on broad, multi-country collaboration (especially South-South) for access to--and development of--biological diversity. On the positive side, the Convention recognizes that states have sovereign rights over their natural resources, and that terms and conditions for access to these materials are within the domain of national legislation. The Convention also recognizes the "knowledge, innovations and practices of indigenous and local communities" and specifically "encourage[s] the equitable sharing of benefits arising from the utilization of such knowledge, innovations and practices" (Article 8(j) ). The Convention sanctions bilateral agreements by making repeated reference to "mutually agreed terms" for access to genetic materials (Article 15.4), subject to "prior informed consent" of the State (Article 15.5). 3). The Convention's language on intellectual property rights (Article 16.2 and 16.5) is confusing, and subject to varying interpretations. One representative of the pharmaceutical/agro-chemical industry has commented that the Convention does not compromise intellectual property systems, and may even go further than GATT, in legitimizing industrial intellectual property systems.(9) As it stands, the Biodiversity Convention offers passive endorsement of bilateral contractual agreements that will pit indigenous communities and countries against one another. While multinational corporations are free to patent bio-materials, there are no effective guidelines and conditions defined for recognizing and rewarding the contributions of indigenous peoples and other informal innovators who are responsible for nurturing, using and developing biodiversity worldwide. BILATERAL CONTRACTS FOR BIODIVERSITY PROSPECTING--Bioprospecting Agreements The first major bilateral contract for bioprospecting was made public in September, 1991 (prior to the Convention on Biological Diversity) when Merck & Co. (a U.S.-based pharmaceutical corporation) announced a 2-year, $1.135 million deal with the Instituto Nacional de Biodiversidad (INBio) of Costa Rica, a private, non-governmental research institute. INBio agreed to provide Merck's drug-screening programs with chemical extracts from wild plants, insects and microorganisms. In return, Merck agreed to give INBio a two-year research budget of $1.135 million, an undisclosed share of royalties on any resulting commercial products, and technical assistance and training to establish in-country capacity for drug research. INBio also agreed to contribute 10% of its up-front payment from Merck and 50% of any royalties it may eventually receive to Costa Rica's National Park Fund. Although the Merck/INBio agreement was hailed by some as a "model" agreement for bioprospecting, it ignores the rights and roles of indigenous peoples. According to Alejandro Argumedo of the Indigenous Peoples' Biodiversity Network, there is at least one indigenous reserve within the INBio collecting area. Among the para-taxonomists who have been hired by INBio to collect biological specimens are indigenous peoples.(10) Costa Rica's rainforests are estimated to hold 5-7% of the world's remaining biodiversity. If the Merck/INBio deal were widely replicated, the South's biodiversity could all be auctioned off for the paltry sum of about $10 million per annum. Merck's sales in 1991 were $8.6 billion, while Costa Rica's GNP that year was $5.2 billion. Merck's research budget in 1991 was roughly $1 billion. Indeed, Merck has three drugs with sales in excess of $1 billion each. Given that pharmaceutical companies invest an average of $231 million on research for each new drug, the discovery charge for one single new drug arising from the deal is barely loose change. For Merck, the Costa Rica contract bought exceedingly cheap labour and access to unidentified biological treasures (and superb public relations).. It is often difficult for indigenous peoples' organizations to know precisely with whom they are negotiating, or to whom they are ultimately providing information and genetic materials.”

Biodiversity of Sri Lanka has a vast potential to be transformed as a source of funding. Most Multinational biotechnology companies rely on the genes of living organisms as its raw materials where they reiterate the old “Gold Rush” as new “Gene Rush” with the ultimate goal of future profits. Imminent danger to Sri Lankan biodiversity has been raised due to this quest for genetic resources among biopirates. Recent developments relating to biopiracy have been entered on a large alarming scale. Sri Lanka after its 30 years of civil war is looking towards sustainable development. Sustainable development must equip with the environment protection where conservation of biodiversity plays a significant role [28, 29].

Nonetheless, the early European explorers sailed east and west in search of gold, silver, and rare spices, and medicinal plants were the treasure they found. In his book “The Customs of the Kingdoms of India,” Marco Polo (1254–1324) wrote “We shall tell you next of the great kingdom of Malabar [Southwestern India] there is a great abundance of pepper and ginger, besides cinnamon in plenty and coconuts.” Moreover, in the year 1293, Marco Polo sailed homeward bound from China, pausing at Seilan (Ceylon or Sri Lanka) along the way. He wrote “On leaving the island of Andaman and steering for 1,000 miles a little South of West, the traveller reaches the island of Seilan (Ceylon). The actual size is better circumstanced than any other island in the world” [1, 2].

The writings of Marco Polo were instrumental in the development of Spice Route [3] which was later utilized in colonial “Plant Hunting” that began in 1400 and peaked in the sixteenth and seventeenth centuries [4]. Following the Spice Routes, Christopher Columbus voyaged across the Atlantic Ocean with the blessings of the Spanish Court and sorted new route to the east through which wealth of knowledge on plant-based riches were obtained. Charlton noted that Columbus collected many valuable plants including Tobacco from Cuba in the year 1492 [5].

In the past, the focus of biopiracy has been on corporations taking the knowledge of Indigenous groups for commercial purposes, but the new pio-neers of biopiracy are different and require different controls. Many of these corporations, which were once spread out and diversified, are merging to create super-conglomerates, which carry knowledge and thousands of patents with them, making it harder not only for Indigenous people to retain their knowledge and break into the market but to even launch a successful campaign against the corporations at all.7 4 In 2019, PepsiCo sued a potato farmer, Haribhai Devjibhai Patel, from the Western Indian province of Gu- jarat for planting a patented potato variety called FC5. 75 PepsiCo sued for 140,000 USD; Patel makes 3,500 USD a year.76 The suit was dropped after protests from Indian farmers, but there are still major international concerns about the patent power held by large corporations and their control over the future of farming freedom.7 7 The concern is not misplaced either. Four players control 50% of the seed business - Bayer, Corteva, ChemChina, and Limagrain.7 8 Many major seed producers place limits on how farmers can use varieties they purchase. 79 Buyers must sign agreements that prohibit them from saving or using the seeds again the next season or producing derivatives. 80 This forces them to return to the major corporations every year to purchase seeds and creates an unwilling reliance on the seed giants for continued existence. 81 For example, in India over 80% of all cotton grown is Monsanto GMO Bt cotton, which was introduced in 2002.82 In perhaps an ironic turn of events, many grassroots movements are further alleging that not only are super-corporations the problem, but billionaire moguls like Bill Gates, who is claimed to be leading the way in seed piracy, agro-neocolonialism, and the spread of unsustainable farming technology. 83 The Green Revolution, which began in the early 1960s, pushed for the production of more food via advanced farming methods, genetically modified crops, and pesticide use, but was also the backdrop for Indigenous seeds (specifically in Mexico and India) to be taken and placed into international seed vaults.8 4 After the seeds were removed, they were replaced with chemical monocultures of wheat, rice, and other grains - the Indigenous populations had no say or choice in the matter. 85 The impact ofthis was significant, causing a loss "of distinct Indigenous crops from cultivation and also . . . extinction." 86 This is especially relevant since in the 20th Century, 75% of agrobiodiversity has been lost and seed diversity is paramount to restoration 87

Some critics regard globalization and its political, economic and cultural I implications as examples of neo-colonialism. For example, the inherent Euro-centrism in discourses of modernity and globalization are cited as evidence of their continued movement towards socio-political and epistemological hegemony (Lander 2002; Quijano 2000). In particular, there is concern over globalization's homogenizing tendencies in the cultural arena. The imperatives of the flow of global capital are seen as causally linked to the spread of modern Euroamerican ideology and culture. Indeed, the process of globalisation began in the West and has mainly fostered the expansion of Western ideas, values, lifestyles and technology' (Smith et al. 2000: 2). By this understanding, culture and ideology are seen as flowing from 'west' to 'rest', an insidious foisting of Mickey Mouse, Coca-Cola, and MTV - and an implicit neoliberal agenda - on traditional indigenous and other non-Western cultures (Barber 1995; Massey 1995; Rodrik 1997). Given the interrelationship between biological, linguistic and cultural diversity - and the threats posed to these by the seemingly ineluctable forces of globalization - such concern may be well-founded (Maffi 2001).

Not surprisingly, biopiracy origins start in a similar place as the destruction of Indigenous food systems - with the arrival of settlers to uncolonized lands. One of the first examples of bioprospecting14 to be written about was in the 1570s when the Spanish physician Francisco Hernandez led the first scientific colonial expedition to Mexico and Central America to collect plants that might cure illnesses abroad.15 During his three year trip, he relied on traditional Indigenous knowledge from healers, leaders, and botanists about herbal remedies and then exported the plants back to Spain.16 Following this, settlers around the globe were quick to find other goods - coffee, cotton, and spices to name a few - that local inhabitants used for traditional purposes and export them for commercial purposes.17 In fact, the looting of India's subcontinent of their spices, which sold for high prices back in England, is arguably the reason that to this day the East India Company (founded in 1600) is still known as one of the largest corporations of its kind in history.18 The building blocks of modern day biopiracy have been in the works for hundreds of years, and the problem has only grown with the arrival of complex economic and justice systems that have protected the colonization of nature and left the discoverers with no method of redress. Indigenous groups are systematically left out of intellectual property frameworks due to lack of access to legal information and have also "had no practical opportunity to participate in the development of national or international intellectual property systems" until very recently.19 Now with robust patent, licensing, copyright, and trademark protections in the US and other Western nations, Indigenous populations are faced with the growing problem of watching their traditional medicines become protected intellectual property in lucrative trade industries - specifically pharmaceuticals, though the market has grown to beauty products, biotech, and agriculture. In 2021, the herbal supplement market reached 151.9 billion USD,20 and the pharmaceuticals industry was estimated to be worth 1.42 trillion USD.21According to the US National Institute of Health, consulting with Indigenous populations doubles the success rate of finding plants that are commercially viable for these markets. 22 On the whole, though, Indigenous communities have not seen any of this profit that they contributed to making.23 As an example, in the years of 1994-1998, researchers from the University of Wisconsin obtained a patent on brazzein, a sweet berry protein native to Gabon, claiming they had discovered it.24 This berry had been in use by the native populations of Gabon for centuries, but none of the Indigenous groups, or the country, saw the benefits of the patent.25 In recent years, the incredibly strong lobbying efforts of biotech and pharmaceutical companies have incentivized the taking of traditional knowledge by making it a lucrative business. 26 The monopolies that these opportunity to participate in the development of national or international intellectual property systems" until very recently.19 Now with robust patent, licensing, copyright, and trademark protections in the US and other Western nations, Indigenous populations are faced with the growing problem of watching their traditional medicines become protected intellectual property in lucrative trade industries - specifically pharmaceuticals, though the market has grown to beauty products, biotech, and agriculture. In 2021, the herbal supplement market reached 151.9 billion USD,20 and the pharmaceuticals industry was estimated to be worth 1.42 trillion USD.21According to the US National Institute of Health, consulting with Indigenous populations doubles the success rate of finding plants that are commercially viable for these markets. 22 On the whole, though, Indigenous communities have not seen any of this profit that they contributed to making.23 As an example, in the years of 1994-1998, researchers from the University of Wisconsin obtained a patent on brazzein, a sweet berry protein native to Gabon, claiming they had discovered it.24 This berry had been in use by the native populations of Gabon for centuries, but none of the Indigenous groups, or the country, saw the benefits of the patent.25 In recent years, the incredibly strong lobbying efforts of biotech and pharmaceutical companies have incentivized the taking of traditional knowledge by making it a lucrative business. 26 The monopolies that these corporations and certain conglomerates create on intellectual property rights can make it difficult for Indigenous communities to enter the market with their own products and occasionally bars them from using the resources at all without running aground of patent protections or licensing agreements.

Not surprisingly, biopiracy origins start in a similar place as the destruction of Indigenous food systems - with the arrival of settlers to uncolonized lands. One of the first examples of bioprospecting14 to be written about was in the 1570s when the Spanish physician Francisco Hernandez led the first scientific colonial expedition to Mexico and Central America to collect plants that might cure illnesses abroad.15 During his three year trip, he relied on traditional Indigenous knowledge from healers, leaders, and botanists about herbal remedies and then exported the plants back to Spain.16 Following this, settlers around the globe were quick to find other goods - coffee, cotton, and spices to name a few - that local inhabitants used for traditional purposes and export them for commercial purposes.17 In fact, the looting of India's subcontinent of their spices, which sold for high prices back in England, is arguably the reason that to this day the East India Company (founded in 1600) is still known as one of the largest corporations of its kind in history.18 The building blocks of modern day biopiracy have been in the works for hundreds of years, and the problem has only grown with the arrival of complex economic and justice systems that have protected the colonization of nature and left the discoverers with no method of redress. Indigenous groups are systematically left out of intellectual property frameworks due to lack of access to legal information and have also "had no practical opportunity to participate in the development of national or international intellectual property systems" until very recently.19 Now with robust patent, licensing, copyright, and trademark protections in the US and other Western nations, Indigenous populations are faced with the growing problem of watching their traditional medicines become protected intellectual property in lucrative trade industries - specifically pharmaceuticals, though the market has grown to beauty products, biotech, and agriculture. In 2021, the herbal supplement market reached 151.9 billion USD,20 and the pharmaceuticals industry was estimated to be worth 1.42 trillion USD.21According to the US National Institute of Health, consulting with Indigenous populations doubles the success rate of finding plants that are commercially viable for these markets. 22 On the whole, though, Indigenous communities have not seen any of this profit that they contributed to making.23 As an example, in the years of 1994-1998, researchers from the University of Wisconsin obtained a patent on brazzein, a sweet berry protein native to Gabon, claiming they had discovered it.24 This berry had been in use by the native populations of Gabon for centuries, but none of the Indigenous groups, or the country, saw the benefits of the patent.25 In recent years, the incredibly strong lobbying efforts of biotech and pharmaceutical companies have incentivized the taking of traditional knowledge by making it a lucrative business. 26 The monopolies that these opportunity to participate in the development of national or international intellectual property systems" until very recently.19 Now with robust patent, licensing, copyright, and trademark protections in the US and other Western nations, Indigenous populations are faced with the growing problem of watching their traditional medicines become protected intellectual property in lucrative trade industries - specifically pharmaceuticals, though the market has grown to beauty products, biotech, and agriculture. In 2021, the herbal supplement market reached 151.9 billion USD,20 and the pharmaceuticals industry was estimated to be worth 1.42 trillion USD.21According to the US National Institute of Health, consulting with Indigenous populations doubles the success rate of finding plants that are commercially viable for these markets. 22 On the whole, though, Indigenous communities have not seen any of this profit that they contributed to making.23 As an example, in the years of 1994-1998, researchers from the University of Wisconsin obtained a patent on brazzein, a sweet berry protein native to Gabon, claiming they had discovered it.24 This berry had been in use by the native populations of Gabon for centuries, but none of the Indigenous groups, or the country, saw the benefits of the patent.25 In recent years, the incredibly strong lobbying efforts of biotech and pharmaceutical companies have incentivized the taking of traditional knowledge by making it a lucrative business. 26 The monopolies that these corporations and certain conglomerates create on intellectual property rights can make it difficult for Indigenous communities to enter the market with their own products and occasionally bars them from using the resources at all without running aground of patent protections or licensing agreements.

The real pirates are those developed countries, especially the US, who benefited and prospered from the plundering of natural resources from the developing and less developed countries without paying any royalty to the source countries at all. Between 25-50 % of current prescription pharmaceuticals come from plants, either directly or through modifications by biochemical methods, and the value of drugs to the U.S. pharmaceutical industry coming from plant species is estimated at over 30 billion USD per year.2 A multinational company or individual who wishes to develop a new product often makes use of the traditional knowledge of local people in deciding upon a plant, animal or other biological source to study.

After the successful production of commercially useful products from those organisms, the company applies for a patent in its own name on those products. In most cases, the inventor not even acknowledges in his patent application that his product was derived from information provided by a local community. Biopiracy therefore can be described as the unjustified extraction of the environmental heritage and traditional knowledge from various regions of the earth for economic exploitation and industrial monopolization.7

The unethical acquisition of biological resources or traditional knowledge can damage trust and cooperation between researchers and communities, hindering collaborative efforts that could otherwise benefit both scientific discovery and conservation efforts.

Notorious examples of biopiracy relate to medicinal plants and the ancient traditional knowledge related to them.

The greatest criticism of the expropriation of indigenous medical knowledge by for-profit companies is that it is simply unfair.55 These critics argue that pharmaceutical companies are permitted to realize millions of dollars in sales from some traditional remedies with little or no payment to the actual indigenous knowledge holders.56 Critics of the Turmeric Patent leaned heavily on the perceived unfairness of patenting a remedy that had been used to heal wounds in India for hundreds of years.57 It was also an issue in Eli Lilly’s use of the Madagascar rosy periwinkle, which generates $100 million in sales for the company annually.58 Ironically, the patenting of traditional knowledge may cause the sale of products embodying traditional knowledge to the traditional knowledge holders at monopoly prices.59 Such sales, however, would have to occur within the United States to obtain the benefit of the monopoly a U.S. patent would provide.60 The most egregious examples of the exploitation of traditional knowledge can occur when individuals and companies are prevented from utilizing knowledge that they had been using for centuries. An American patent does not preclude exportation of the patented invention to foreign countries, but it does prevent importation of products embodying the claimed invention to the U.S.61 Due to the threat of legal action, many such entities in countries that serve as the source of traditional knowledge have been precluded from using that knowledge.62 For instance, despite a history of the use of kwao krua by the indigenous people of Thailand, threats of legal action have disrupted local production of the herb.63 In India, individuals and companies had been using extract from neem trees for centuries to repel insects and bacterial diseases.64 Once a patent on a variation of this extract was granted to W.R. Grace & Co., the company sought to force Indian companies producing neem-based products to license its technology.65 Local companies feared that this patent would preclude them from exporting goods to the U.S. market and would drive up the price of neem seeds.66 By depriving Indian companies of their ability to export certain neem-based products to the world’s largest economy, the neem patent deprived Indian people of their ability to exploit their indigenous knowledge within the world economy.67 This led to a worldwide campaign to cancel the patent.68 By allowing for patent protection on inventions derived from traditional knowledge, the use of the traditional knowledge itself amongst indigenous people may be eroded.69 Not only is the patenting of these traditional remedies unfair to the indigenous knowledge holders, it is also unfair to the public, who grants the “inventors” of these remedies the right to exclude others.70 The grant of patent protection to inventors is based on a quid pro quo with society. Inventors agree to disclose their discoveries to the public through the patent’s specification and, in return, the public grants them an exclusive right to exploit those discoveries for a limited time. In this way, both the inventor and the public benefit from the protections that patent law provides. This paradigm breaks down, however, when the discovery to be disclosed is already known to the public. If the invention has been used publicly for thousands of years, there is no benefit to the public in granting the patentee the exclusive right to exploit it. When well-known traditional knowledge is patented, there can be no quid pro quo, and the public does not get the benefit of its bargain.

As a result of bio piracy there are many negative effects on bio diversity such as extinction of endemic living organisms, depletion of bio diversity, and privatization of bio treasures of the country. Further, this practice affects the economy of the country as well. Bio piracy is an extremely lucrative business. Due to the profitable nature of this process most racketeers tend to exploit bio resources of developing countries and obtain Patent for those. The emergence of monopoly over seeds and medicines through patents is becoming a major threat to farmers, livelihoods and public health. Not only the economical disadvantages but cultural and social aspects of human life have been threatened by bio piracy. Bio piracy directly attacks the upper hand that Sri Lanka enjoys on the top of the list of countries with biodiversity. Furthermore, it affects the cultural identity and the traditional knowledge of the indigenous people in the country. Privatization of traditional knowledge through Patenting has created severe consequences on living patterns of people. As such, bio piracy does irreparable damage to bio diversity which ultimately leads to destruction of the entire environment.

Cooperative Food Sovereignty is critical to biodiversity.

Under digital colonialism, foreign powers, led by the US, are planting infrastructure in the Global South engineered for their own needs, enabling economic and cultural domination while imposing privatised forms of governance. To accomplish this task, major corporations design digital technology to ensure their own dominance over critical functions in the tech ecosystem. This allows them to accumulate profits from revenues derived from rent (in the form of intellectual property or access to infrastructure) and surveillance (in the form of Big Data). It also empowers them to exercise control over the flow of information (such as the distribution of news and streaming services), social activities (like social networking and cultural exchange), and a plethora of other political, social, economic and military functions mediated by their technologies. The control of code is foundational to digital domination. In Code: and Other Laws of Cyberspace, Lawrence Lessig famously argued that computer code shapes the rules, norms and behaviours of computer-mediated experiences in ways similar to architecture in physical space (e.g. imperial railways designed for colonisation).21 ‘Code is law’ in the sense that it has the power to usurp legal, institutional and social norms impacting the political, economic and cultural domains of society. This critical insight has been applied in fields like copyright, free speech regulation, Internet governance, blockchain, privacy, and even torts. What has been missed, however, is how US dominance of code – and other forms of digital architecture – usurps other countries’ sovereignty. Digital forms of power are linked through the three core pillars of the digital ecosystem: software, hardware and network connectivity.22 (Software is the set of instructions that define and determine what your computer can do. Hardware is the physical equipment used for computer experiences. The network is the set of protocols and standards computers use to talk to each other, and the connections they make.) Software functions as the coded logic that constrains and enables particular user experiences. For example, software determines rules and policies such as whether or not users can post a message anonymously at a website, or whether or not users can make a copy of a copyright-restricted file like an e-book. The rules that a programmer codes into the software largely determine technological freedoms and shape users’ experiences using their devices. Thus, software exerts a powerful influence on the behaviour, policies and freedoms of people using digital technology. Control over software is a source of digital domination primarily exercised through software licences and hardware ownership. Free Software licences allow people to use, study, modify and share software as they see fit.23 By contrast, nonfree software licences grant a software designer control over users by precluding the ability to exercise those freedoms. With proprietary software, the humanreadable source code is closed off to the public, and owners usually restrict the ability to use the software without paying. In the case of Microsoft Windows, for example, the public must pay for the programme in order to use it, they cannot read the source code to understand how it works, they cannot change its behaviour by changing the code, and they cannot share a copy with others. Thus with proprietary licensing, Microsoft maintains absolute control over how the software works. The same goes for other proprietary apps, like Google Play or Adobe Photoshop.24 By design, non-free software provides the owner power over the user experience. It is authoritarian software. Control over hardware is a second source of digital domination. This can take at least three forms: software run on third-party servers, centralised ownership of hardware, or hardware designed to prevent users from changing the software. In the first scenario, software is executed on someone else’s computer. As a result, users are dispossessed of their ability to control it. This is typically accomplished through Software as a Service (SaaS) in the cloud. For example, when you visit the Facebook website, the interface you are provided executes on third-party hardware (i.e. on Facebook’s cloud servers). Because users cannot change the code running on Facebook’s servers, they cannot get rid of the ‘like’ button or change the Facebook experience. ‘There is no cloud’, the saying goes, ‘just someone else’s computer’. Corporations and other third parties design cloud services for remote control over the user experience. This gives them immense power over individuals, groups and society.25 In the second scenario, people become dispossessed of hardware ownership itself. With the rise of cloud computing, it is possible that hardware manufacturers will soon only offer low-powered, low-memory devices (similar to the terminals of the 1960s and 1970s) and computer processing and data storage will be primarily conducted in centralised clouds. With end-users dispossessed of processing power and storage, software and data would be under the absolute control of the owners and operators of clouds.26 In the third scenario, hardware is manufact ured with locks that prevent users from changing the software on the devices. By locking down devices to a predetermined set of software choices, the hardware manufacturer determines which software is allowed to run when you turn on your device.27 Thus, hardware restrictions can prevent the public from controlling their devices, granting device manufacturers power over users. Control over network connectivity is a third source of digital domination. Net neutrality regulation proposes that Internet traffic should be ‘neutral’ so that Internet Service Providers (ISPs) treat content flowing through their cables, cellular towers and satellites equally. According to this philosophy, those who own the pipes are ‘common carriers’ and should almost never be allowed to manipulate the data that flows through them.28 This constrains the ability of wealthy media providers to pay for faster content delivery speeds than less wealthy providers (such as grassroots organisations, small businesses, and common people). More importantly, by treating traffic equally, net neutrality prevents network discrimination against various forms of traffic critical to civil rights and liberties. For example, the Tor browser facilitates anonymous Internet communications, but the use of the Tor network can be detected by ISPs and throttled (i.e. slowed to a crawl).29 Net neutrality prevents this form of discrimination and protects the end user’s freedom to utilise the Internet as they wish, without third-party favouritism, blocking, or throttling. Let us consider some concrete examples as to how software, hardware, and networks constitute sources of power and control related to social justice in the Global South.