There's No Such Thing as Biopiracy ... And It's a Good Thing Too
James Ming Chen
University of Louisville - Louis D. Brandeis School of Law
McGeorge Law Review, Vol. 37, 2006
Minnesota Public Law Research Paper No. 05-29
Tales of northern exploitation of biological wealth and ethnobiological knowledge from the global south have become so frequent, so familiar, and so uniform that allegations of biopiracy now follow a predictable script. I come not to praise the biopiracy narrative, but to bury it. Most allegations of biopiracy are so thoroughly riddled with inconsistencies and outright lies that the entire genre, pending further clarification, must be consigned to the realm of rural legend. Despite its implausibility, however, accusations of biopiracy set the rhetorical baseline in many debates within the international law of environmental protection and intellectual property. The time has come to dismantle the myth of biopiracy root and branch.
This article assesses claims of biopiracy according to the layered model of information platforms. Every information platform consists of three distinct layers - physical, logical, and content - and biological information is no exception. The conventional biological distinction between phenotypes and genotypes separates the physical from the logical layer of information in individual biological specimens and in species at large. Ethnobiological knowledge is best characterized as the inventive transformation of genetic information into commercially valuable applications. An appropriately utilitarian view of property and its relationship to each layer of biological information dissolves any allegation of biopiracy.
Moreover, this article considers what the proponents of the biopiracy narrative have been seeking and how the global community might give the global south what it needs (if not necessarily what it wants). Although the overarching goal of compensating traditional communities for their contribution to the global storehouse of biological knowledge remains out of reach for the moment, more modest - and in many ways more beneficial - intermediate objectives are quite feasible. Simple reforms of existing patent law can prevent outsiders from securing intellectual property in knowledge already developed by traditional communities. In addition, countries rich and poor should develop a framework for regulating the practice of bioprospecting and encourage the professionalization of parataxonomy.
Number of Pages in PDF File: 35
Keywords: biopiracy, bioprospecting, intellectual property, patents, trade secrets, information platforms, layered model, physical layer, logical layer, content layer, prior art, parataxonomyAccepted Paper Series
Date posted: August 17, 2005
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