The system of Western intellectual property fails to apply its own standards—it rewards piracy instead of creativity—the false narrative of innovation is the pretense of international biopolitical control

As introduced above, biopiracy discourses challenge the normative version of nature, knowledge and society and how these are alternatively brought together but also forced apart when passed through IPR systems in the bioeconomy. This has been done by presenting two overlapping critiques of the IPR system’s treatment of the natural and cultural aspects of particular “inventions”, and this has been a key component to the discourse around various instances of biopiracy that have become problematic over the last several decades. The first of these critiques suggests that there is too much “nature” in the inventions claimed, and as such in the relevant aspects of living things themselves, for them to be eligible to be considered as invented rather than merely “discovered”. The second suggests that there is also too much “culture” in these “inventions” for them to be considered as new or novel, and thus eligible creations for patentability. The allegation that this knowledge is “too cultural” is made in two ways, first by invoking specific instances of prior human influence in the shaping of these organisms (such as in the case of patent claims on traditional medicines or on agricultural products such as seed strains), and also by invoking a much more holistic perspective on the relationship between humans and nature at the most general which put humans squarely back into a nature that they are actively participating in. The particular artefacts being challenged by the allegation of biopiracy are thus positioned uniquely at the nexus of nature/culture – they are at once profoundly “natural” as they are derived from plants, animals, or even people themselves, but are also profoundly cultural, because they speak to how these particular natural artefacts have come about as part of, are shaped by, and exist in relation to culture. The next section will examine the nature and cultural aspects of the biopiracy discourse more closely. Too natural – discovery as invention In their study of anti-GMO campaigns, Heller and Escobar explain that, “biodiversity activists emphasize preserving the natural co-evolution of organisms and cultures, and thus, embed human beings and culture inside natural systems.”34 Later in that same analysis they expand: for the [biodiversity] activists, as they theorize local practices, nature is not an entity ‘out there’ but is produced through the collective practices of humans integrated with it (Descola & Palsson, 1996).[ 35] From this perspective, the reductive view of biodiversity in terms of genetic resources to be protected through intellectual property rights is incoherent and untenable. The position of Heller and Escobar’s activists is also echoed in much of the biopiracy discourse, with many of the biopiracy activists taking issue with, to use Haraway’s formulation, “who gets to count as nature’s author”.37 Much of the rhetoric invoked in this regard relies heavily on a certain principle of self-evidence and a deliberately essentialist reading of patent law. By this logic, if the invention derives from nature in any way it must therefore be a product of nature, ergo it is not patentable. For instance, the text of the Treaty Initiative to Share the Genetic Commons, which was spearheaded by Jeremy Rifkin and his organization, the Foundation on Economic Trends states: That the intrinsic value of the Earth’s gene pool, in all of its biological forms and manifestations, precedes its utility and commercial value, and therefore must be respected and safeguarded by all political, commercial and social institutions, That the Earth’s gene pool, in all of its biological forms and manifestations, exists in nature and, therefore, must not be claimed as intellectual property even if purified and synthesized in the laboratory, That the global gene pool, in all of its biological forms and manifestations, is a shared legacy and, therefore, a collective responsibility More than simply relating the ownership of nature via IPR to a point of legal interpretation (ie, the product of nature doctrine), the activists that contest biopiracy do so in ways that call this system of property itself into question. As seen in the excerpt quoted above, many of these groups often invoke an essentialized version of nature which posits that there is something inalienably “natural” about nature that renders its ownership unethical, or even impossible. There are a number of justifications on which this rests, many of which speak to the social embroiling(s) of nature, where nature as such is understood to have coevolved with society’s understandings of it. As RAFI explains in a press release related to a particularly acrimonious “biopiracy” debate regarding an International Consultative Biodiversity Group39 project in the Chiapas region of Mexico: No "Wild Kingdoms": Bioprospectors must assume - unless there is proof otherwise - that all materials they encounter have been nurtured and enhanced by communities. [In the Maya-ICBG case a] large community garden was mistaken for a "natural" forest. Similarly, soils, insects, and fungi first assumed to be unused upon closer scrutiny have been found to have longstanding medicinal or other purposes. 40 Other actors who attempt to draw attention to biopiracy present nature’s creative and reproductive capacity to serve as self-evidence of the futility and hubris of attempting to “own” nature. This logic is carried forward by Vandana Shiva, in much of her writing on biopiracy. In Biopiracy: The plunder of nature and knowledge, for example, she writes that “biotechnology, as the handmaiden of capital in the postindustrial era, makes it possible to colonize and control that which is autonomous, free, and self-regenerative”.41 Later in the same account, she explains: Certainly, the idea of owning life is not new; people own their pets and farmers own their livestock. Yet IPRs create a new concept of ownership. It is not just the implanted gene, or one generation of animals, that is being claimed as intellectual property, but the reproduction of the entire organism, including future generations covered by the life of the patent. 42 Shiva’s point here presents IPRs as the tool through which seeds, in this case, are denied their “naturalness” and become patentable, and thus commodifiable at what she sees as the most intimate of levels. For her, the IPR system is an ill-equipped and inappropriate mechanism for deciding what constitutes something which is “from nature”. Further, the distinction which is currently made between the natural and the invented does not go nearly far enough in recognizing nature’s own inventive capacity and thereby imposes a false notion of human invention onto the natural. In these cases, though Shiva knows well that there is a time limit to patents, these particular patents cross over into a more symbolic realm, and do so on behalf of the IPR system more generally. When considered in terms of nature’s perceived self-evidence as “natural” and its autonomy, including its autonomy to reproduce, then the limits that would be placed upon these organisms by seeing them as patentable would make them “too natural” to be considered invented. Too cultural – public domain or private ownership? Along with arguing that these contentious inventions are “too natural” to be patented, those alleging biopiracy also see the place of culture/society in this system as problematic. These critiques challenge the logic behind a perceived separation of the public and the private domains as they pertain to ownership and control over inventions that can be seen to have some form of prior cultural basis, such as in the case of TK. In brief, the problem in these instances appears to be that there is a claim that there is too much knowledge already there, albeit unrecognized by the system, to allow these “inventions” to be patented. Much of the thrust of this “too cultural” aspect of the biopiracy discourse thus takes issue with the recognition of prior art in patent claims. In many of the cases where biopiracy has been alleged, one of the claims made is that prior art has not been adequately taken into account by the patent system. This is often explained away by those in favour of robust IPR regimes as simply untrue, or, at worst, as a case of a “bad patent” being issued, where prior art was indeed not recognized. Biopiracy activists, however, often present this as a more fundamental, systemic problem with what is allowed to “count” as prior art within the IPR system. Specifically, it is claimed that Euro-American IPR systems are blind to types of prior art that might not exist in immediately accessible formats. For example, this was a major point of contention in both the neem and turmeric biopiracy challenge cases. The neem case refers to a patent granted to WR Grace and Co. for an insecticide/fungicide derived from the neem tree, which was subject to a very public patent challenge.43 The turmeric case refers to US patent 5, 401, 504, granted initially to two scientists from the University of Mississippi for the use of turmeric for healing wounds. As Genetic Resources Action International (GRAIN) explains: “The Indian government challenged the patent as blatant theft, and provided endless research papers predating the patent providing that turmeric has long been used in India to heal wounds. In the face of this overwhelming evidence, the US Patent and Trademark office rejected all 6 patent claims”.44 With specific reference to the turmeric case, Shiva takes issue with those that would attempt to dismiss biopiracy as merely a slight systematic oversight that allowed for “bad” patents to be issued: This indigenous knowledge and use consists of "prior art". No patent should be given where prior art exists since patents are supposed to be granted only for new inventions on the basis of novelty and nonobviousness. These criteria establish inventiveness, and patents are exclusive rights granted for inventions. […] If there were only one or two cases of such false claims to invention on the basis of Biopiracy, they could be called an error. However, Biopiracy is an epidemic. […] The problem is not, as was made out to be in the case of turmeric, an error made by a patent clerk. The problem is deep and systemic. And it calls for a systemic change, not a case by case challenge. If a patent system which is supposed to reward inventiveness and creativity systematically rewards piracy, if a patent system fails to honestly apply criteria of novelty and non-obviousness in the granting of patents related to indigenous knowledge, then the system is flawed, and it needs to change. It cannot be the basis of granting patents or establishing exclusive marketing rights. The problem of Biopiracy is a result of western style IPR systems, not the absence of such IPR systems in India.45 Recalling the argument from the previous section that suggests that it is the movement of these contested objects out of the realm of nature into a separate realm of culture which makes them patentable, the claim here is that there is also too much culture, albeit rendered invisible and unrecognized, in these inventions for them to count as sufficiently inventive enough to be patentable. In many ways, this can also be seen to be an issue about what is allowed to count as a sufficient means through which to make the requisite movement from the natural to the knowledge-based. It is clear that in the dominant paradigm, which suggests that cases of biopiracy are simply “bad patents”, the biosciences are seen to be sufficient enough interlocutors to facilitate this transition. If one can demonstrate that the specific product of nature which enables their invention has been sufficiently removed from nature - for instance, a particular gene sequence has been isolated and purified - then the invention is rendered patentable. However, in many of the cases where biopiracy is being alleged, there is a question as to whether TK is able to count as fulfilling a similar function. In the last sentence of the passage quoted above, Shiva strikes out at this deficit model of IPR protection, which suggests that biopiracy only occurs where the IPR system is not evolved or robust enough to provide sufficient protection. Here, she links this claim with a critique of the IPR system itself, suggesting that the IPR system is, in fact, instrumental in causing biopiracy. The point where biopiracy interjects here is in claiming that TK is either invisible to the system, or is wilfully ignored by it. In these cases, if TK were recognized as a suitable enough interlocutor to make this nature-to-culture movement, then the claimed inventions would not be able to demonstrate that they have moved their invention far enough out of culture so as to make it patentable. Put another way, if TK were recognized as a suitable enough way to intervene on “products of nature” so as to make them useful for humans, then the inventions or discovery projects that are alleged to be engaged in biopiracy would already be part of the public domain, and hence unpatentable. One of the most confusing aspects of the biopiracy discourse has been the issue of what is to be done to address the relationship between TK and the IPR system. If the “too cultural” critique were understood as being solely about a claim for reparations, or about laying the groundwork for the future profitability of TK as it appears to be for many who have used the term46, then it would not move the debate too far from merely adjusting the parameters of the IPR system to include TK in some way. For many of the biopiracy activists, simply adjusting the IPR system to include TK would be an incomplete version of biopiracy. For them, advocating this position side-by-side with one which suggests that the system itself is fatally flawed in its treatment of living things is unproblematic. It would be misleading, however, to attempt to portray this as a way in which “biopiracy” as a whole has betrayed itself. Conversely, the wide take-up of the term is a reminder that, once deployed into the charged atmosphere around IPR and biotechnology, these terms are constantly in flux and come to mean different things to different actors across the spectrum. This is also further evidenced in how the terms have been used by developing world governments, who have widely used the term biopiracy in some of their submissions to international forums such as the WTO and the CBD(c.f. Peru’s explanation of its National Anti-Biopiracy Commission47). Many of these submissions focus on developing some system for a “declaration of origin” for genetic material, with the idea being that the benefits from the exploitation of genetic resources would flow back to those countries from where the material “originated”. Of course, this does not converge with many of the biopiracy activists, who suggest that IPR-based systems of ownership are themselves largely at fault for biopiracy48. Again, the way in which the term itself has shown an ability to lend itself to related but quite different applications, demonstrates ultimately how effective a “political” term it can be.