6.1. Choices

Amidst all the confusion created by the stampede for the new booty of biodiversity and the North-South tug-of-war over access and ownership, it is difficult to see the way ahead for those opposed to the North's utilitarian model of biodiversity management. Bioprospecting is rapidly gathering momentum, and industry's eagerness to glean what it can before the rules and regulations are tightened up is placing great pressure on governments and local communities all over the world to respond to its demands.

Three main strategies stand out as options which could be adopted to deal with the weighty questions of equity, rights and access to the global genetic pool are being considered in all the major global agreements and action plans for the environment. This issue is taking greater and greater precedence in the Biodiversity Convention, Agenda 21, and the Commission on Sustainable Development. Indigenous groups are becoming highly vocal in this arena, and at the 1995 Biodiversity Convention meeting, a post was created in the secretariat specifically to address the concerns of indigenous people. A growing number of voices are pointing out the limitations of existing approaches to dealing with access, rights and equity. In the debates, three broad strategies for addressing these issues stand out:

o compensation or reward - whereby compensation, in monetary or some other form, is given to a government, community or individual in recognition of its contribution to the development of a product

o intellectual property rights - whereby communities or individuals gain legal rights to their resources and knowledge, and therefore have control over their use

o reclaiming the commons- involving a rejection of existing mechanisms and advocating a much broader, stewardship-based approach to bioresource management.

The first two approaches require working with the system and adapting it to make it more equitable. The last requires a more radical reversal of the existing approach to biodiversity management. The pros and cons of each of these approaches will be discussed in turn.

Compensation

This approach can be beneficial if local people are interested in cash or other forms of compensation and they have a strong hand in the negotiations. For many indigenous peoples, however, this approach is sacrilegious since it entails commodifying the sacred. Many groups find them selves caught in a difficult situation where they do not approve of the compensation mechanism, yet fear that if they do not engage in a deal they will lose their resources and knowledge without gaining anything. As Darrell Posey points out, the compensation approach is largely being advocated by the North - it is not the preferred option for indigenous peoples, but they are often not aware that they may have alternative options.

Bilateral deals Both monetary and non-monetary forms of compensation are being considered in bioprospecting deals. With monetary compensation, one of the greatest challenges of the compensation approach is assessing a fair price. Assessing the value of biodiversity is a far cry from assessing the value of tin or steel, partly because knowledge is implicit in the value of the 'commodity' and partly because the potential applications of a plant, chemical or gene are often unknown at the time of collection. The examples given in Chapter 4 demonstrate that corporations tend to regard compensation to local communities as a token gesture rather than treating them as equal partners in the deal.

Another problem lies in the fact that companies often consider that agreeing a price and writing a cheque is all they need worry about. They have little concern for ironing out a detailed agreement on who the beneficiaries are, in what form the benefits are given and how they are distributed (see Chapter 4.1).

A further problem is to establish intermediate forms of compensation and incentives that bridge the 10-15 year period sometimes required to develop a marketable drug. It is essential to ensure that false expectations of large immediate benefits do not develop in the source countries, but some form of short-term assistance could be provided. This could range from assistance in infrastructure development to support for social services, education and healthcare.

Christine Kabuye also notes that one of the difficulties in pursuing a compensation mechanism in bilateral deals, as advocated by the Biodiversity Convention, is that biodiversity is seen as being the property of sovereign states. If this is the case, governments will be the beneficiaries in any bilateral deals, and the communities which provided access to the resources and knowledge may not benefit at all.

According to GRAIN, in these kinds of deals the North calls the tune - it identifies the products it is interested in, largely determines the terms, and bases the assessment of a 'fair deal' on Northern ethical considerations. Consequently, these kinds of deals often tend to be paternalistic and oversimplistic in nature.

Conservation compensation Owing to the shortcomings of bilateral deals, alternative mechanisms have been proposed. Farmers' Rights (Box 6.1) is one such initiative. The main attraction of the Farmers' Rights approach is the elimination of a legal mechanism for intellectual property protection. Indigenous communities could be compensated on the basis of development needs and opportunity, without reference to law courts, patent offices or legal departments.

According to Jack Kloppenburg a multilateral system of compensation is particulary important for agricultural crops, for a number of reasons

o Unlike the bioactive agents sought by pharmaceutical companies, which are easily definable, the genetic material of value for agricultural development is not static and cannot be isolated. Even if a specific gene sequence can be linked to a certain characteristic, such as disease resistance, it must be embedded in many different varieties adapted to local or regional agronomic conditions in order to be effective.

o Only a multilateral framework can provide equitably for compensation for materials for which there is no unique ethnic or geographic provenance.

o Bilateral deals cannot be achieved for the majority of the genes collected in the world's communal genebanks, which are recognized as common heritage.

However, according to some critics a multilateral approach is open to abuse because the central fund is used not to compensate individual farmers or indigenous people, but to reward meritorious work that encourages conservation and sustainable use (see Chapter 4.3). There is no guarantee that farmers in a particular country will actually benefit from the compensation, because their government is the recipient of the reward.

Intellectual property right mechanisms

The advantage of IPRs is that they provide a certain amount of security and a defence against piracy. The drawbacks of IPRs are discussed more fully in Chapter 3, but can be summarized by two main points. Firstly, IPR provides for a monopolistic appropriation which may foreclose benefits to others. And secondly, Northern IPR law - the dominant model does not, and cannot, recognize informal community innovation (Box 6.2). Again, as with compensation, IPR would not be the mechanism of choice for indigenous peoples and farmers, but given the momentum given to this model by GATT and the Biodiversity Convention, many groups are considering ways of adapting and improving the IPR system.

Modifying the patent system Several mechanisms have been suggested to ensure greater equity in the existing IPR system. One suggestion, advocated by RAFI, is to adopt new deposit rules for gene bank accessions, requiring the attachment of detailed information about the source of the material, including names of individuals or communities where appropriate. This information would remain attached to all patent applications. Other ideas include the protection of all gene bank materials from patenting; introducing IPR ombudsmen to investigate patent claims on behalf of indigenous communities; and the establishment of a fund to cover IPR costs, such as maintaining gene bank deposits, and funding patent tribunals and legal representation for indigenous communities.

None of these suggestions would impose an unacceptable burden on the system and could be factored in to the existing fee structures used by patent offices.

Plant breeders ' rights In the 1960s, there was controversy in Europe over whether monopoly rights should be granted for food, chemicals, plants and animals by drawing them into the patent regime. It was eventually decided that plants and animals should stay out of the patent regime and a new system was drawn up for the protection of plants. The Union for the Protection of New Varieties of Plants (UPOV) was formed in 1961 and its convention was signed by a number of states - mainly from Europe and the US.

UPOV, however, has never really been effective internationally. Evidence began to appear showing that because of PBR, multinational companies were starting to take control of the breeding sector. It was also argued that the PBR system promoted a further impoverishment of genetic diversity because of its requirements for uniformity. To date there are only 18 signatories, and the gathering momentum of acceptance of the patent system as the preferred method of protection for life forms means that UPOV may well fade further into the background. This is somewhat ironic given that patents are a much more serious threat to the concerns which originally held back the adoption of PBR.

The major difference between patents and PBR lies in the scope of the protection granted (see p. 85). While patents can protect the entire genetic make-up of an organism, PBR does not provide ownership over the germplasm of the seed, it gives only a monopoly right for the marketing of a specific variety. Like patents, and for similar reasons, the PBR system has been undergoing change. There has been a progressive strengthening of the protection offered, which appears to favour commercial breeders and undermine the interests of farmers.

Sui generis systems Given that both the Biodiversity Convention and GATT allow the adoption of sui generis systems of IPR as an alternative to patents (see p. 81), there is scope for countries to introduce alternatives. However, who judges the acceptability of sui generis systems has yet to be clarified.

Many indigenous communities and governments are not aware that IPR systems include a number of options that do not imply exclusive monopoly control over inventions. Among these options are Community Intellectual Property Rights (see Box 6.3), the Model Law on Folklore (see Box 6.4) and Inventors' Certificates. The latter provides the option of discarding financial compensation altogether in favour of non-monetary awards and non-exclusive licensing arrangements. Governments can adjust the terms of compensation to promote local innovations in domestic or export markets, or to attract a foreign invention where access to the invention is deemed to be in the national interest.

Intellectual integrity RAFI has proposed the development of a framework that would allow indigenous communities to ensure the intellectual integrity of their ongoing innovations rather than to obtain intellectual property rights. This would ensure recognition of peoples' innovations, ensure access to them and protect them from piracy, without having to assign ownership to an individual or group. This could include some aspects of the various proposals described above, along with a few others. Indigenous communities would not need to endorse IPR systems in order to have their intellectual integrity protected. UN and other agencies would do this for them. Implicit in such a framework would be a strong focus on information exchange and information, so that indigenous groups can contribute more meaningfully to policy formulation and their views can be understood more deeply by people with a Northern value system and world view.

Traditional resource rights Traditional Resource Rights build on the concept of IPR and refer to a bundle of rights that can be used for protection, compensation and conservation. The term 'property' is omitted, since property for indigenous peoples frequently has intangible, spiritual attributes, and, though worthy of protection, can belong to no human being. The term encompasses a wide range of international agreements already in existence, and TRR could be used as the basis of a sui generis system of protection. IPRs are only one of these bundles of rights, and the term also encompasses human rights, religious rights and religious freedom, environmental integrity, cultural heritage rights, neighbouring rights, and customary law and practice, among others.

US lawyer Dinah Shelton suggests that international human rights law may provide the best framework for protection for communities and local environments in the future. Human rights bodies increasingly call for environmental protection because of the connection between human rights violations and environmental degradation. Invoking these rights could introduce more justice into the process of determining access to, and control over, biological diversity and local peoples' knowledge. TRR is a favoured mechanism amongst indigenous people because it is rights-driven, not economically motivated. It goes beyond other sui generis models, in that it seeks to protect not only knowledge but also asserts the right to selfdetermination and to safeguard culture in its broadest sense.

Reclaiming the commons

Both the IPR and compensation mechanisms described above see biodiversity very simplistically and are concerned primarily with the products of biodiversity rather than its more holistic counterpart, which defines it more broadly in terms of systems and relationships (see Chapter 4.4). The dominant world-view cannot accommodate this definition of biodiversity. Addressing the question of biodiversity conservation and management in this context requires more than just tinkering with the current system. A radical shift is required not only to change practices but also to alter the underlying philosophy and value system (Chapter 6.2).

The process of reclaiming the commons involves community empowerment that is explicitly linked with local ecological and economic regeneration. In relation to biodiversity, this means empowering communities, enabling all people to secure their rights and needs. It is through these processes that people are empowered to care for the environment and democratize control over the end uses of knowledge and biological resources.

References

1. Kloppenberg, J. (1994). W(h)ither Farmers' Rights? Paper written for a seminar held by GRAIN in Montezillon, Switzerland.

2. The Crucible Group (1994), People, Plants and Patents, IDRC, Ottawa.

3. Posey, D.A., Dutfield, G. et al. (1994). Beyond intellectual Property Rights- Protection, Compensation and Community Empowerment. Report for WWF-International.

4. Shelton, D. (1995). Fair Play, Fair Pay-Strengthening Local Livelihood Systems through Compensation for Access to and Use of Traditional Knowledge and Biological Resources. Report for WWFInternational.

5. Posey, D. (1995). Indigenous People and Traditional Resource Rights: A basis for Equitable Relationships? Green College, Oxford, UK.