Biodiversity and the Law Intellectual Property, Biotechnology and Traditional Knowledge Edited by Charles R. McManis London • Sterling, VA ES_BL_8-3 13/3/07 11:50 Page iii First published by Earthscan in the UK and USA in 2007 Copyright © Charles R. McManis, 2007 All rights reserved ISBN: 978-1-84407-349-8 hardback Typeset by MapSet Ltd, Gateshead, UK Printed and bound in the UK by TJ International Ltd, Padstow Cover design by Andrew Corbett For a full list of publications please contact: Earthscan 8–12 Camden High Street London, NW1 0JH, UK Tel: +44 (0)20 7387 8558 Fax: +44 (0)20 7387 8998 Email: earthinfo@earthscan.co.uk Web: www.earthscan.co.uk 22883 Quicksilver Drive, Sterling, VA 20166-2012, USA Earthscan is an imprint of James and James (Science Publishers) Ltd and publishes in associ- ation with the International Institute for Environment and Development A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data has been applied for This publication has been printed on FSC-certified and totally chlorine-free paper. FSC (The Forest Stewardship Council) is an international network to promote responsible management of the world’s forests. ES_BL_8-3 13/3/07 11:50 Page iv Contents List of Figures and Tables ix List of Chapter Authors and Conference Participants xi Acknowledgements xxxi List of Acronyms and Abbreviations xxxii Chapter 1 Biodiversity, Biotechnology and Traditional Knowledge Protection: Law, Science and Practice 1 Charles R. McManis Part I Biodiversity: What are We Losing and Why – And What is to be Done? Chapter 2 The Epic of Evolution and the Problem of Biodiversity Loss 27 Peter Raven Chapter 3 Naturalizing Morality 35 Ursula Goodenough Chapter 4 Across the Apocalypse on Horseback: Biodiversity Loss and the Law 42 Jim Chen Chapter 5 Impact of the Convention on Biological Diversity: The Lessons of Ten Years of Experience with Models for Equitable Sharing of Benefits 58 James S. Miller Chapter 6 Biodiversity, Botanical Institutions and Benefit sharing: Comments on the Impact of the Convention on Biological Diversity 71 Kate Davis Chapter 7 The Link Between Biodiversity and Sustainable Development: Lessons from INBio’s Bioprospecting Programme in Costa Rica 77 Rodrigo Gámez Chapter 8 On Biocultural Diversity from a Venezuelan Perspective: Tracing the Interrelationships among Biodiversity, Culture Change and Legal Reforms 91 Stanford Zent and Egleé L. Zent ES_BL_8-3 13/3/07 11:50 Page v Chapter 9 From the ‘Tragedy of the Commons’ to the ‘Tragedy of the Commonplace’: Analysis and Synthesis through the Lens of Economic Theory 115 Joseph Henry Vogel Part II Biotechnology: Part of the Solution or Part of the Problem – Or Both? Chapter 10 Biodiversity, Biotechnology and the Environment 137 Barbara A. Schaal Chapter 11 Principles Governing the Long-run Risks, Benefits and Costs of Agricultural Biotechnology 149 Charles Benbrook Chapter 12 Costa Rica: Biodiversity and Biotechnology at the Crossroads 168 Ana Sittenfeld and Ana M. Espinoza Chapter 13 Biotechnology for Sustainable Agricultural Development in Africa: Opportunities and Challenges 174 Florence Wambugu Chapter 14 Biotechnology: Public–Private Partnerships and Intellectual Property Rights in the Context of Developing Countries 179 Gurdev S. Khush Chapter 15 Agricultural Biotechnology and Developing Countries: The Public Intellectual Property Resource for Agriculture (PIPRA) 192 Sara Boettiger and Karel Schubert Chapter 16 Commentary on Agricultural Biotechnology 202 Lawrence Busch Chapter 17 The Birth and Death of Traditional Knowledge: Paradoxical Effects of Biotechnology in India 207 Glenn Davis Stone Part III Traditional Knowledge: What Is It and How, If At All, Should It Be Protected? Chapter 18 From the Shaman’s Hut to the Patent Office: A Road Under Construction 241 Nuno Pires de Carvalho vi BIODIVERSITY AND THE LAW ES_BL_8-3 13/3/07 11:50 Page vi Chapter 19 Traditional Knowledge: Lessons from the Past, Lessons for the Future 280 Michael J. Balick Chapter 20 The Demise of ‘Common Heritage’ and Protection for Traditional Agricultural Knowledge 297 Stephen B. Brush Chapter 21 Traditional Knowledge Protection in the African Region 316 Rabodo Andriantsiferana Chapter 22 The Conundrum of Creativity, Compensation and Conservation in India: How Can Intellectual Property Rights Help Grass-roots Innovators and Traditional Knowledge Holders? 327 Anil K. Gupta Chapter 23 Holder and User Perspectives in the Traditional Knowledge Debate: A European View 355 Geertrui Van Overwalle Part IV Ethnobotany and Bioprospecting: Thinking Globally, Acting Locally Chapter 24 Politics, Culture and Governance in the Development of Prior Informed Consent and Negotiated Agreements with Indigenous Communities 373 Joshua Rosenthal Chapter 25 Ethics and Practice in Ethnobiology: Analysis of the International Cooperative Biodiversity Group Project in Peru 394 Walter H. Lewis and Veena Ramani Chapter 26 Ethics and Practice in Ethnobiology: The Experience of the San Peoples of Southern Africa 413 Roger Chennells Chapter 27 Commentary on Biodiversity, Biotechnology and Traditional Knowledge Protection: A Private-sector Perspective 428 Steven R. King Chapter 28 Answering the Call: Public Interest Intellectual Property Advisers (PIIPA) 441 Michael A. Gollin CONTENTS vii ES_BL_8-3 13/3/07 11:50 Page vii Chapter 29 Answering the Call: The Intellectual Property and Business Formation Legal Clinic at Washington University 468 Charles R. McManis Index 475 viii BIODIVERSITY AND THE LAW ES_BL_8-3 13/3/07 11:50 Page viii List of Figures and Tables Figures 7.1 Costa Rica: Selected social, economic and environmental indicators (1940–2000) 78 7.2 Costa Rica foreign exchange (US$) generated by selected agricultural and forest products and tourism (1950–2000) 80 7.3 Direct payment of forest watershed protection service in Heredia, Costa Rica 81 8.1 Places and peoples of the Venezuelan Guayana 95 8.2 Diversity of gardens in Piaroa communities: Number of cassava varieties per unit area 100 8.3 Cumulative species area curve in four 1-ha forest plots inventoried in the Sierra Maigualida Region 101 8.4 Relationship between medicinal plant inventories and age in four Jotï communities 103 8.5 Multidimensional scaling plot of response similarity for medicinal taxa 104 9.1 Public goods analysis 122 17.1 Maps of India showing location of Andhra Pradesh and Gujarat and Warangal District showing census villages 214 17.2 Seed vendors 215 17.3 All village charts: Trends in the most popular five cotton seeds 218 17.4 Village specific trends 219 17.5 Buying Bt: Farmers buying cotton seeds at a shop in Warangal 224 19.1 Erosion of traditional knowledge on Pohnpei, FSM 282 19.2 Predicted extinctions of traditional knowledge 283 19.3 Chart of activities that developed as part of the Belize Ethnobotany Project 285 22.1 Relationship between natural, social, ethical and intellectual capital and intellectual property (Gupta 2001) 336 24.1 Maya ICBG intellectual property and benefit sharing agreement framework 384 25.1 Know-how licence 405 Tables 5.1 Types of benefits that may arise from bioprospecting programmes 60 5.2 Types of biodiversity access legislation (following Glowka, 1998) 65 7.1 Costa Rica’s evolution indicators (1940–2000) 78 ES_BL_8-3 13/3/07 11:50 Page ix 7.2 Most significant research collaborative agreements with industry and academia (1991–2002) 85 7.3 Monetary and non-monetary benefits derived by INBio from bioprospecting 86 8.1 Venezuela’s global ranking in terms of biodiversity components 94 8.2 A Piaroa taxonomy of cassava preparation and consumption forms 99 8.3 Statistical summary of plants used by the Jotï 102 17.1 Bt seeds on market and sales in India 209 17.2 Village summary (households surveyed) 217 17.3 Planting sizes: Counts and column percentages 221 17.4 Knowledge 222 19.1 Traditional skills on Pohnpei and their levels of importance 289 22.2 Resource right regime 337 x BIODIVERSITY AND THE LAW ES_BL_8-3 13/3/07 11:50 Page x List of Chapter Authors and Conference Participants Rabodo Andriantsiferana is a researcher and director at the Centre National d’Applications des Recherches Pharmaceuticque (CNARP) in Madagascar. She is also involved or has been involved in many other organizations and projects, among them: principal investigator in the International Cooperative Biodiversity Group (ICBG) programme in Madagascar: Biodiversity Utilization in Madagascar and Suriname; principal investigator in the project funded by the United Nations Development Programme (UNDP)/ONE: Valorization of Medicinal Plants in Menabe (Morondava) in Madagascar; President of the Interministerial Committee for the Study and Regulation of Traditional Medicine, Madagascar; member of the Regional Committee of Experts for Traditional Medicine in Africa; member of the National Committee Prunus Africana; member of the Western Ocean Indian Islands Sustainable Use Specialists Group: Focal Point for Medicinal Plants; member of the Specialists Group of Plants of Madagascar; and member of the Convention on International Trade in Endangered Species (CITES) Committee for Plants. Alejandro Argumedo, a Quechua agronomist from Peru, is an expert in issues related to human rights and the environment. He is an active member of a network of native peoples working within national, regional and international processes for the recog- nition of indigenous peoples’ cultural, environmental and human rights. He is currently associate director of the Quechua-Aymara Association for Sustainable Livelihoods ‘ANDES’, a community-based organization of Cusco, Peru; and International Coordinator of the Indigenous Peoples’ Biodiversity Network (IPBN). Argumedo is actively involved in the development of local strategies for the protec- tion and promotion of indigenous peoples’ knowledge and innovations and in the international debate about the ownership and protection of indigenous knowledge. He has been involved recently in the establishment of the ‘Call of the Earth Circle’, an indigenous peoples’ expert group on intellectual property and indigenous knowl- edge (www.earthcall.org). Michael J. Balick studies the relationship between plants and people, working with traditional cultures in tropical, subtropical and desert environments. He is a special- ist in the field known as ethnobotany, working with indigenous cultures to document their plant knowledge and local floras, understand the environmental effects of their traditional management systems and develop sustainable utilization systems – while ensuring that the benefits of such work are always shared with local communities. Dr Balick also conducts research in New York City, in a National Institutes of Health (NIH)-funded project to study traditional healing practices of the Dominican ES_BL_8-3 13/3/07 11:50 Page xi community in Washington Heights. In addition to ethnobotany, Dr Balick is an expert on the uses of palms, an economically important family of plants in the tropics. From 1986–1996, working with Drs Douglas Daly, Hans Beck and others, Balick had a major commitment to The New York Botanical Garden contract with the Developmental Therapeutics Program of The National Cancer Institute, collecting bulk samples of higher plants for screening as potential anti-AIDS and anti-cancer therapeutics. His focus in this work was on ethnopharmacological investigations, primarily in the Central American nation of Belize. Dr Kelly Bannister is an assistant professor in the School of Environmental Studies and a research associate with the POLIS Project on Ecological Governance in the Faculty of Law, University of Victoria (British Columbia, Canada). She holds a post- doctoral fellowship from the Social Sciences and Humanities Research Council of Canada. Dr Bannister has BSc and MSc degrees in biochemistry/microbiology from the University of Victoria. She completed a PhD in ethnobotany/medicinal plant chemistry in 2000 at the University of British Columbia in the Department of Botany and a post-doctorate in law and environmental studies at the University of Victoria. Her doctoral research was in collaboration with the Secwepemc First Nation of British Columbia, and examined antimicrobial properties of Secwepemc food and medicinal plant resources. Dr Bannister also undertook a review and critical analysis of the Canadian intellectual property rights system for its potential use in protecting the Secwepemc plant knowledge shared during her dissertation research. Dr Bannister works with several First Nations in British Columbia as well as inter- nationally on research-related issues of sharing cultural knowledge, with an emphasis on non-legal mechanisms such as community protocols. Her current research examines ethical and legal issues, as well as policy and practical barriers, in develop- ing ethical and equitable collaborative research between communities and universities. She founded the Community-University Connections initiative at the University of Victoria in 2000 to explore and address these issues (http://web.uvic.ca/~scishops). Roger Beachy is president of the Donald Danforth Plant Science Center in St Louis, Missouri. He previously held academic positions at Washington University, St Louis and The Scripps Research Institute, LaJolla, California. His work in 1986 to produce virus resistance in tomato and tobacco via genetic engineering has been replicated by other researchers to produce many types of plants with resistance to different virus diseases. Research from his lab is reported in more than 250 journal articles and book chapters and has led to ten pending and issued patents. Dr Beachy is a member of the National Academy of Sciences, a fellow in the American Association for the Advancement of Science (AAAS), the American Academy of Microbiology and the Academy of Science of St Louis. In 2001 he received the Wolf Prize in Agriculture and an honorary Doctor of Science degree from Michigan State University. Dr Beachy has received the Dennis R. Hoagland Award from the American Society of Plant Physiologists, the Ruth Allen Award from xii BIODIVERSITY AND THE LAW ES_BL_8-3 13/3/07 11:50 Page xii [...]... before the California Supreme Court, the US District Court for the Northern District of California, the US Court of Appeals for the Ninth Circuit, and the US Court of Appeals for the Eleventh Circuit Prior to joining the law faculty at USC, she was an attorney in the IP Group of Venture Law Group, 2000–2001; Fellow and Lecturer, Samuelson Law, Technology, and Public Policy Clinic, Boalt Hall School of Law, ... 13/3/07 xiv 11:50 Page xiv BIODIVERSITY AND THE LAW fieldwork on these topics in Peru (1970–1986), Turkey (1990–1994) and Mexico (1995–) He has been a consultant to the World Bank, the Office of Technology Assessment, the UNDP, the Food and Agricultural Organization of the United Nations (UN) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) Dr Lawrence Busch is University... Inventions and the UN Food and Agriculture Organization (UN-FAO) Commission on Plant Genetic Resources, and advised the Mexican and Chinese governments on plant breeders’ rights legislation Roth represents Monsanto on committees of the American Seed Trade Association and the International Seed Federation Manuel Ruiz is a Peruvian lawyer and the Director of the International Affairs and Biodiversity. .. archeological excavation and survey for the Derubin Local Aboriginal Land Council; and an artist Peter Jaszi is professor of law and director of the Glushko-Samuelson Intellectual Property Clinic and Program on Intellectual Property and the Public Interest He is on the Editorial Board of the Journal of the Copyright Society of the USA; has held many memberships, including American Association of Law Schools, Educators’... office: How long and winding is the road?’, Revista da ABPI, no 41 (Jul/Aug 1999); ‘Requiring disclosure of the origin of genetic resources and prior informed consent without infringing the TRIPS Agreement: The problem and the solution’, Washington University Journal of Law and Policy, no 371 (2000); and The primary function of patents’, University of Illinois Journal of Law, Technology and Policy, no... controlling their assets and in building capacity to direct their economic future Its programmes and strategies focus on assisting tribes and native communities so they control, create, leverage, utilize and retain their assets First Peoples Worldwide focuses the majority of its attention outside the US in promoting the rights of indigenous peoples for self-determination and control over their social and economic... fieldwork among the Piaroa and Hotï ethnic groups of the Venezuelan tropical forest His current research projects include: an applied study of Hotï and Eñepa ethnocartography and land demarcation; an inventory of wild plant products traded in the markets and streets of the Caracas metropolitan area; and the persistence, loss and change of ethnobotanical knowledge and practices among indigenous and rural... xvi 11:50 Page xvi BIODIVERSITY AND THE LAW led to the establishment of the National System of Conservation Areas within the first Ministry of Natural Resources (presently the Ministry of the Environment), and to the creation of INBio, as a private, non-profit, public interest organization Dr Gámez has been also associated with numerous national and international initiatives in biodiversity conservation... of Biodiversity (INBio) as its Director of Bioprospecting, with direct responsibility for facilitating the sustainable economic use of biodiversity and biotechnology She has served in several national and international committees dealing with biodiversity and biotechnology including the National Biotechnology Committee, the Inter-American Commission on Biodiversity and Sustainable Development and the. .. research around the world to preserve endangered plants and animals and is a leading advocate for conservation and a sustainable environment In recognition of his work in science and conservation, Dr Raven has been the recipient of numerous other prizes and awards, including the prestigious International Prize for Biology from the government of Japan He has held Guggenheim and John D and Catherine T MacArthur . since 2001; and consultant to the Peruvian interim government for the Committee for the Intellectual Property and xxii BIODIVERSITY AND THE LAW ES_BL_8-3. Physiologists, the Ruth Allen Award from xii BIODIVERSITY AND THE LAW ES_BL_8-3 13/3/07 11:50 Page xii the American Phytopathological Society and the William