Law Speak - Safeguarding our genetic resources

THE law comes down hard on those who pirate DVDs or download music for free. Because, it violates an owner's "intellectual" rights. He has created a new innovative product, so others should not steal the rewards properly due to him.
Yet, for years, big corporations mainly from countries of the North, have been taking the biological resources essentially from developing countries for free. And making products – such as medicines, cosmetics, nutraceuticals and such like – based substantially on the traditional knowledge of indigenous communities as to the use of these resources. But no benefits accrued to the countries from where the resources were taken or to the traditional knowledge holders. The World Health Organisation reports that three quarters of all modern medicines are directly related to the traditional knowledge of indigenous peoples.
This was clearly inequitable. So developing countries pushed to end this biopiracy of their resources and the traditional knowledge of their native communities. Two international treaties accomplished this – the Convention on Biological Diversity, and the 2010 Nagoya Protocol on Access and Benefit Sharing. These international binding agreements acknowledged the right of a country to require any one who wanted to access any genetic resource (seeds, plant materials, microorganism, etc) or associated traditional knowledge – to get its consent and the prior informed consent of the indigenous community whose traditional knowledge was being sought.
The access was conditional upon sharing of benefits derived from the development of any product with the provider. With this, a person who took such resources (like seeds) out of the country without first getting a country's permission and entering into a benefit sharing agreement would be a biopirate. Malaysia will soon be able to act against such offenders once its draft ABS (access and benefit sharing) law is presented to, and approved by, Parliament.
But new technologies are emerging which may make it possible for a biopirate to smuggle her loot in a pen drive. I am referring to synthetic biology. This allows for genes of resources to be sequenced – nowadays very rapidly, in large amounts and at greatly reduced costs. And this genetic information is stored in a data bank. A company can access this information and create new products by synthesising or manipulating the sequences. It thus becomes possible to recreate a living organism in a matter of days. So then there is no need to access the actual genetic material from the fields of farmers and from indigenous communities and forests of developing countries. This effectively side-steps the access and benefit sharing laws of a country whose resource is sequenced. This deprives the providers and the indigenous communities of their rightful dues.
As an example, under a national ABS law, a company will have to physically access a plant for its active compound so as to develop into a lucrative medicinal drug. Then it will have to negotiate a benefit sharing agreement with the provider country.
Now all the company has to do is to get the genetic information of the active compound from the data bank. And avoid any payment or other benefits to the provider country when it creates a product based on that information.
Developing countries have been pressing for this theft of the genetic information to be addressed in international multilateral fora such as the ongoing meeting of parties to the treaties mentioned earlier. But there is fierce resistance from developed countries such as Japan – which has been notorious in raiding the rich biological resources of developing countries to create and enrich itself without sharing benefits with the providers in any meaningful way.
Developing countries are hopeful that the negotiations will succeed in declaring that any use of the genetic information to create products without sharing the benefits in a fair and equitable way with the providers will be biopiracy of their resources – and a breach of the two treaties under international law.
Gurdial is presently attending the meeting of the Conference of Parties in Cancun, Mexico where this issue is being actively debated. Comments: letters@thesundaily.com