52 Pages Posted: 18 Aug 2005
Biodiversity and biotechnology, according to received wisdom, can scarcely coexist. The global south is home to most of earth's threatened and endangered species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable pharmaceutical companies and seed breeders in the industrialized north to commit biopiracy. Advocates for less developed countries urge legal parity for each side's source of value, either through a reduction in the protection accorded conventional forms of intellectual property or through formal recognition of traditional knowledge. By contrast, the United States has characterized the Convention on Biological Diversity as a threat to the global life sciences industry in general and to American life sciences companies in particular. Both sides magnify the significance of the dispute, having reached an apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation.
I contest these conventional views of the relationship between biodiversity and biotechnology. Both sides of the debate have overstated the significance of bioprospecting. Commercial development aids biodiversity primarily by overcoming perverse economic incentives to consume scarce natural resources that may turn out to have greater value from a global, long-term perspective. It is erroneous to frame the issue as whether intellectual property in the abstract can coexist with the international legal framework for preserving biodiversity. I expose this fallacy through the application of three conceptual filters: genotypes versus phenotypes, genes versus memes, and pharmaceutical versus agricultural applications of biotechnology.
To be sure, the notion of intellectual property is elastic enough to embrace all of the intangible assets at stake, including raw genetic resources, advanced agricultural and pharmaceutical research, and the ethnobiological knowledge that often transforms a locally useful organism into a globally valued application of biotechnology. It will not do, however, merely to acknowledge that intellectual property can be reshaped to embrace ethnobiological know-how and other forms of traditional knowledge. Whether traditional knowledge should be treated as an independent form of intellectual property presents an altogether distinct question. Ethnobiological knowledge should not be given proprietary status. As a general rule, intellectual property should be recognized only when it would spur innovation. With respect to biological knowledge already diffused within a traditional community, intellectual property confers no additional incentive to invent or discover. These ideas therefore belong in the global public domain.
Keywords: biodiversity, biotechnology, biopiracy, bioprospecting, intellectual property, patents, trade secrets, traditional knowledge, ethnobiological knowledge, genetic resources, Convention on Biological Diversity, Trade-Related Aspects of Intellectual Property Rights, genes, memes, public domain
Suggested Citation: Suggested Citation
Chen, James Ming, Biodiversity and Biotechnology: A Misunderstood Relation. Michigan State Law Review, Vol. 51, 2005; Minnesota Legal Studies Research Paper No. 05-24. Available at SSRN: https://ssrn.com/abstract=782184