Josep-Antoni Gari

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) is a decisive international document in the line of the current trends supporting global and unrestricted trade world-wide. It was issued in 1994, within the institutional efforts giving birth to the World Trade Organization. In 1999, article 27-3b of the TRIPs Agreement, dealing with the extension of intellectual property rights over life forms and processes, shall be reviewed. Since most of these life forms and processes belong to or involve biodiversity, the topic must be evaluated in the wide context of the biodiversity issue. That is our first and principal claim.

We will ground the discussions about intellectual property rights and biodiversity on a few of research cases and experiences, both local and international. They are mostly based on original field research and comprise a study on biodiversity flows and political struggles over the Andean crop quinoa (Chenopodium quinoa), a research on biodiversity conservation and development struggles among the indigenous peoples of Pastaza, in Western Amazonia, and experiences from the last Conference of the Parties to the Convention on Biological Diversity.

The research-cases illustrate that the issue of intellectual property rights over biodiversity is not a technical one, as many people and institutions argue, but strongly political. The biodiversity issue involves a wide, plural and divergent network of processes, peoples, social actors, institutions, power scales and interests. Every particular way of control of biodiversity has direct effects on some actors, on their access and use of biodiversity, on their food security, and on the conservation of biodiversity. In particular, the intellectual property rights supported by the World Intellectual Property Organization, the World Trade Organization, and their hybrid TRIPs Agreement, erode, when applied to biodiversity forms and processes, the ecological practices and innovations of many peoples world-wide. In essence, conservation, use and control of biodiversity are issues inextricably linked with each other. Thus, any policy dealing with the control over biodiversity may threat both the conservation and the equitable use of biodiversity, instead of supporting the very conservation and equitable share of biodiversity.

Our hypothesis is that the decision on intellectual property rights over life forms and processes cannot be hold exclusively in the light of global trade or technical considerations. However, the perspective should rather be the relevance of biodiversity to ecosystem resilience, food security, and indigenous and rural development. Moreover, traditional ecological knowledge and practices should result strengthened from any system of control and use of biodiversity, rather than eroded, because these knowledge and practices are essential tools for both local biodiversity conservation and local development. In consequence, democracy and development world-wide are deeply involved in the issue. Any property right over biodiversity should exist specifically to benefit both the in-situ conservation and the equitable access and use of biodiversity, two of the very objectives of the Convention on Biological Diversity.

In conclusion, the conservation of biodiversity, the empowerment of local and indigenous communities on the basis of their ecological knowledge and practices, the maintenance of food security, and the equity in the benefits arising from biodiversity are crucial elements to be considered in the discussions about intellectual property rights over life forms and processes. This paper hopes to offer relevant experiences and criteria to the national delegations to the 1999 review of article 27-3b of the TRIPs Agreement. In essence, the paper raises awareness that conventional property rights over biodiversity do not ensure but rather may threaten biodiversity conservation, food security, and traditional ecological knowledge and practices. If these elements are however to be supported, as for instance claimed in the Convention on Biological Diversity, alternative systems of control and sharing of biodiversity must be explored. The conservation, use and control of biodiversity are closely linked with each other. Therefore, isolated and unidimensional policies emphasizing one of the mentioned components while ignoring the remaining ones are misleading. Thus, because the control of life forms and processes involves important ecological, democracy, development and political issues, as well as a plurality of social actors, the unidimensional and industry-oriented system of intellectual property rights as defined in the TRIPs Agreement seems inappropriate and unreasonable for the biodiversity issue.

We start our journey around biodiversity with quinoa (Chenopodium quinoa), a plant cultivated in the Andes for centuries. It is an annual plant, belonging to the group of pseudocereals, that produces a grain rich in both protein and energy. It was an essential crop for the Inca Empire. Currently, it is an important crop for the livelihoods of many Andean indigenous communities and for the economy of some Andean countries. Research has been conducted on both the quinoa biodiversity and the implications of a patent on a quinoa variety and on a methodology to produce quinoa hybrid varieties that was granted in 1994 and abandoned in 1998. A summary of some preliminary results of this research ¹ follows with a discussion.

Biodiversity of quinoa plant is significant. In the Andes, both wild and cultivated varieties coexist. Quinoa biodiversity comprises at least 45 cultivated varieties.² These varieties can be classified under 5 main ecotypes: Valle [Valley], Altiplano [High Plateau], Yungas [Warm Valleys], Salares [Salt Flats], and Nivel del Mar [Sea-level]. These ecotypes illustrate the wide ecological adaptation of quinoa. Thanks to its biodiversity, quinoa grows in high altitudes up to around 4,000 metres, in the salt flats of the Southern Bolivian High Plateau, in the Andes-Amazonia transitional region in Eastern Bolivia called Yungas, and in sea-level and rather temperate regions of the Central-Southern coast of Chile, among other places. Besides, it is worth mentioning that quinoa provides high sources of both protein and energy to Andean indigenous people in places like the Bolivian salt flats, where drought, salinity and altitude make quinoa the only crop which grows.

In consequence, quinoa biodiversity comprises varieties that prove essential for both the livelihood and the commercial activities of many communities living in some habitats of the Andes. This wide quinoa biodiversity is linked to both its cultivation along the Andes and the ecological practices traditionally involved. In essence, quinoa biodiversity is inextricable from the ecological practices of the Andean indigenous peoples, who have for very long time maintained, accelerated and directed the genetic and evolutive processes of quinoa plant. That has produced a high biodiversity and a unique ecological adaptation in quinoa.

The relevance of indigenous ecological knowledge, practices and innovations on biodiversity is also supported by further studies on genetic diversity in quinoa. On the one hand, statistical analysis on the genetic diversity of quinoa show that the borders between ecotypes are not strictly defined,³ suggesting a permeable and active border between ecotypes and varieties. On the other hand, this high genetic permeability also applies to wild and cultivate varieties. The study of the morphogenetic variation among South American populations of quinoa suggests that no biological distinction between wild and cultivated varieties exists, but some wild populations are much closer to some cultivated ones than to other wild populations.⁴ In conclusion, quinoa biodiversity is an open, permeable and active flow between cultivated varieties, between defined ecotypes, and across the wild-cultivated border. Thus, the current biodiversity of quinoa is the result of the coevolution between different cultivated varieties, diverse varieties from different ecotypes, and wild and cultivated populations. This wide, complex and multidirectional genetic exchange and variation of quinoa in the Andes is directly connected to the traditional ecological practices of the local indigenous people. Otherwise, quinoa biodiversity would not be so high, extended and adapted through the Andes, and there would be clearer-defined and rather more stable borders between both varieties and ecotypes. Therefore, the case of quinoa in the Andes proves that biodiversity is a flow in which genetic, evolutive and ecological processes coevolve with the indigenous ecological practices and innovations.

On the other hand, in 1994 a patent was granted in the USA to two professors of Colorado State University (USA Patent No. 5,304,718) claiming the following: (a) cytoplasm male-sterile plants and seeds of Apelawa variety of quinoa, and (b) the methodology of using and producing cytoplasm male-sterile quinoa plants. In quinoa, cytoplasm male-sterility is a characteristic found in many varieties. It is especially useful because all the progeny is necessarily hybrid and it maintains the male-sterile condition. Thus, male-sterile forms intrinsically give rise to new hybrid varieties, which may prove of special value, whereas the potential of a further hybridization is preserved. Andean farmers have for long time known this genetic feature of quinoa, they have also been able to identify male-sterile plants, and they have been using them to create new hybrids. Thus, the property right does not only cover a particular variety, in this case the variety named Apelawa because of a small community in Titicaca Lake (Bolivia). The property right also searches to control the methodology of identification and use of cytoplasm male-sterile plants for the purpose of breeding new hybrids. The intellectual property rights system claims control of the both aspects of plant variety and plant manipulation, and thus the control of ecological practices of Andean indigenous farmers. The Andean farmers are the original and true holders of quinoa biodiversity flows, comprising essentially both the patented variety and the patented methodology of production of hybrids and new varieties.

Around this patent there are ethical issues clearly involved, like the mentioned appropriation and non-recognition of the traditional ecological practices involved in the generation and conservation of local biodiversity. But the patent principally threatens food security and biodiversity conservation for Andean communities. Property rights erode the local production and commercialization of quinoa. A patent or intellectual property right exists to restrict the control, use and, in particular, the commercialization of plant genetic resources. A patent, which is formally described as a tool to recognize research investment, is in fact an instrument that controls and restricts the access and use of the patented object or process. In this particular case, through the intellectual property system in its current trends, Andean farmers would be prevented from exporting the quinoa that they had produced by means of using cytoplasm male-sterile types. Food security of Andean farmers results clearly eroded. In consequence, the Bolivian National Association of Quinoa Producers (ANAPQUI) mobilized with other institutions and non-governmental organizations world-wide against that patent.⁵

Furthermore, the intellectual property rights over quinoa undermine the very Andean ecological practices and, thus, the process that has fuelled biodiversity flows of quinoa in the Andes. The patent strengthens the Western paradigm of nature and science, but undermines the indigenous ecological practices and innovations. The patent reinforces biological research carried out far away from the Andes, because intellectual protection is granted for such research, but barriers to access traditional varieties and to use traditional methodologies emerge. The Andean farmers are dispossessed of the last assets they had for an autonomous livelihood: the control over both their traditional ecological practices and the local flows of biodiversity. Scientific research and technological innovation among local peoples are based on a different cultural and ecological system, which will become dismantled in a global patent system. In conclusion, intellectual property rights over biodiversity do not just involve ethical concerns, but essentially a potential to erode the local food security and the knowledge and practices that feed the very local biodiversity flows.

Research recently conducted in Western Amazonia among the indigenous peoples of Pastaza emphasizes the relevance of the coevolution between biodiversity flows and traditional ecological practices to both food security and biodiversity conservation. In fact, the mentioned coevolutive process contextualizes dialectically biodiversity and the local people. In the case of the indigenous peoples of Pastaza, the traditional ecological practices and the current indigenous political movements around biodiversity illustrate the importance of dealing with the biodiversity issue in its wide as well as local context.

The indigenous peoples of Pastaza, comprising mostly the Amazon Quichua and Shiwiar peoples in whom the research focused, inhabit Pastaza region, Northwards of Pastaza river, in the Ecuadorian Amazonia. The region is about 30,000 square kilometres, and its main indigenous body, the Organization of Pastaza's Indigenous Peoples (OPIP), comprises about 150 indigenous communities.

The indigenous peoples grow at least 45 different plant species in their family farms and in their house gardens. These species provide them a wide array of benefits such as food and medicines. Besides, the indigenous ecological practices comprise activities such as shifting agriculture based on farms of about 0.5 to 1 ha, which is a size very suitable for the later ecological succession in the rainforest. When their main agricultural activities are completed, the indigenous peoples plant many different fruit tree species in the former farms. That contributes to the ecological organization of the rainforest and to the promotion of local biodiversity, because many animals and, in particular, birds come to this growing forest attracted by an abundance of fruit. The planting of trees is thus an indigenous practice that gives rise to true anthropogenic forests in Amazonia, an issue already discussed by Posey, Anderson and Posey and Bale.⁶ That illustrates the deep human involvement in biodiversity processes in Amazonia. Besides, the indigenous people exchange cuttings of cassava (Manihot esculenta), the main crop, between families and between communities. Such cuttings belong to new varieties that provide any particular nutritional, agricultural, adaptative or cultural value, thus maintaining and spreading biodiversity through communities and the through whole indigenous lands.

In relation to plant genetic varieties, the indigenous ecological practices in the farms also comprise the management and generation of diverse genetic varieties, especially for crops such as cassava (Manihot esculenta), banana (Musa sp.), papamandi (Xanthosoma sp.), taro (Colocasia esculenta), sweet potato (Ipomoea batatas) and squash (Cucurbita sp.). In the case of cassava, more than 50 varieties have been identified in the community of Sarayacu,⁷ and the indigenous peoples generally cultivate around 20 to 30 varieties (OPIP, 1992: 14; and OPIP and Terra Nuova, 1998). In the other mentioned plants, the indigenous peoples of Pastaza traditionally use between 2 and 7 varieties.⁸ That leads us to conclude that there is a positive correlation between the human importance of a plant (in cultural, nutritional, and agricultural terms) and its genetic biodiversity. This correlation is maintained by the very indigenous ecological practices, which connect culture and biodiversity flows. Cassava is the most important plant for the indigenous peoples, because it provides large amounts of food, it is the raw material for chicha, the main indigenous drink, and it has a great adaptation to Amazonian ecosystems, among many other cultural values. The high genetic biodiversity generated and maintained by the indigenous peoples reflects the cultural and nutritional importance. The other mentioned plants enter the category of important crops in terms of cultivation, because they constitute the core of a dozen of crops that together with cassava are the background of the indigenous farms and the indigenous nutrition. Their notable genetic biodiversity reflects also such cultural and nutritional dimension. This positive correlation between the cultural importance of a crop and its genetic biodiversity is due to the traditional ecological practices. We believe it happens in many places around the world. All that illustrates the extent of the coevolution between traditional cultural practices and biodiversity flows.

In the Amazonian strip close to the Andes, indigenous ecological practices and culture have been dismantled because of the penetration of mainstream development models. The building of roads has opened the Western strip of Pastaza region to the arrival of settlers from the Andes and elsewhere, to the establishment of plantations and monocultures, to the introduction of alien species for pastoral and farming projects, to the loss of traditional ecological practices, and to an indigenous cultural erosion. Biodiversity loss has been a consequence of such mainstream development that emphasize agricultural exports. In communities at the colonized strip, just a few plants are cultivated, and cassava biodiversity has reduced to even 3 varieties only. Monocultures of naranjilla, sugar cane and tea have largely spread, and pastures for cattle have been introduced. There is clearly a decontextualization of biodiversity, which has caused the erosion of food security, the strong market-dependence of the communities, the impoversihment of nutrition and health, and the abandonment of cultural and ecological practices. That has led to a social fragmentation and the destruction of the ecosystem resilience, because the introduced farming projects are incompatible with the Amazonian ecosystems and cultures at Pastaza.

In parallel to that, research conducted by institutions in the North has lead towards the granting of intellectual property rights to some plant species linked to indigenous ecological and cultural practices in Amazonia. Two cases are clearly linked to the indigenous peoples of Pastaza: the plants ayahuasca and sangre de drago. Ayahuasca (Banisteriopsis caapi) is a plant that the indigenous peoples of Pastaza grow in their farms for very relevant medicinal, ritual and sacred purposes. In fact, ayahuasca is a sacred plant for the majority of the Amazonian indigenous peoples. A patent of ayahuasca was granted to Mr. Loren Miller, president of the USA-based International Plant Medicine Corporation, causing large criticisms world-wide. The Coordinating Body of the Indigenous Organizations of the Amazon Basin (COICA), in its fifth congress held in May 1997, declared Mr. Loren Miller "enemy of the indigenous peoples" and prohibited his entrance to any indigenous territory.⁹ After this resolution, the Inter-American Foundation (IAF), an organization linked to the USA government, broke the agreements and ended the projects with COICA. Thus, deep political struggles emerge around intellectual property rights over biodiversity. On the other hand, the plant sangre de drago (Croton sp.), which is also widely used in Amazonia for its medicinal value, has interested researchers in industrialized countries for medical-commercial purposes. In 1992, the USA-based company Shaman Pharmaceuticals started contacts with the indigenous community Jat£n Molino, in the territory of Pastaza. In the period 1992-94, when most of Shaman Pharmaceuticals' research on sangre de drago was conducted, the company gave the community around USA$ 1,500, technical assistance to improve the air strip, one cow, a first-aid kit, some copies of a handbook on traditional medicine, salaries for 30 people for plant collection work, and a few medical examinations to the community members.¹⁰ Later, Shaman Pharmaceuticals was searching intellectual property protection in the USA over medicinal values derived from sangre de drago, basically to treat a respiratory virus and herpes. The inequalities linked to the intellectual property rights illustrate different perspectives and discourses on biodiversity, conflicting with each other.

To face mainstream development models and the commodification of biodiversity and local communities, the indigenous peoples of Pastaza are launching a set of institutions and projects around its main body, the Organization of Pastaza's Indigenous Peoples (OPIP). These institutions include a centre for research on native animals for productive purposes (F tima Centre), an ethnobotanical park for botanical research and study (Omaere Ethnobotanical Park), a project to rescue and improve traditional ecological practices in agriculture emphasizing biodiversity use (Nunguli Project), a co-operative to offer credits to family and community projects based on Amazonian biodiversity and on the indigenous traditional practices (Palati Co-operative), and a wide Amazonian research institute (Amazanga Institute). These indigenous movements arise as an alternative to mainstream development. They emphasize a coevolution between local biodiversity, indigenous ecological practices, food security, culture and self-development. In essence, the socio-political movements of the indigenous peoples of Pastaza propose the contextualization of biodiversity in the very human and ecological environments in Amazonia. The maintenance of a contextualized biodiversity proves to benefit both biodiversity conservation and local self-development.

In conclusion, mainstream development models and its most recent trend, bioprospecting backed by intellectual property rights, produce a commodified biodiversity and decontextualize biodiversity in its local environments. Many indigenous peoples have been involved through traditional ecological practices in the maintenance of biodiversity flows, which ensure ecosystem resilience, food security and cultural identity. Intellectual property rights granted to alien institutions and individuals have severe effects on biodiversity conservation and local development. For instance, they threat indigenous control over their local biodiversity flows, they entail a failure in the recognition of the large importance of traditional ecological practices in the maintenance and generation of biodiversity, and they reproduce a commodified biodiversity that becomes useless to ensure local food security and self-development. Besides, the hopes of Amazonian-based research and technological innovation are in danger if native resources and practices are commodified and controlled out of Amazonia. Local research and development needs local people to control their biodiversity flows, but not large and useless promises from a decontextualized biodiversity, which is moreover controlled by alien elite and secured in far laboratories and germplasm banks.

In May 1998, the IV Conference of the Parties to the Convention on Biological Diversity was held in Bratislava. One of the main issues to be discussed was the implementation of article 8j and related articles of the convention. Article 8j supports two key issues: (a) The respect and maintenance of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles, and (b) The equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices. Some events during the discussions on article 8j at this United Nations conference illustrate the current impasse between different social actors and power relations on biodiversity issues.

Article 8j is one of the most decisive and controversial articles of the convention. It suggests the empowerment of many indigenous and local communities because of their role in biodiversity conservation through their knowledge, innovations and practices. Because the IV Conference of the Parties to the Convention on Biological Diversity was going to deal with the implementation of article 8j and related articles, many indigenous peoples and local communities world-wide mobilized to design a common position. For instance, few months before the conference, they held a Workshop on Traditional Knowledge and Biodiversity and the II International Indigenous Forum on Biodiversity ¹¹ to discuss biodiversity, intellectual property, and rights of the local communities. During the IV Conference of the Parties, the issue was tackled in the plenary, and a contact group was established to discuss ways to advance positions regarding article 8j. The main discussion was about creating a working group on the implementation of article 8j and related articles that would work intersessionally. Key discussions were held about the nature and composition of such working group, with positions ranging from a close, state-based and "expert-composed" working group to an open and plural working group. Indigenous peoples and local communities actively defended the latter option, since they are directly both interested and affected by the implementation of article 8j and related articles. Representatives from non-governmental organizations and research organizations also supported a plural working group in plenary sessions and other conference meetings.

Towards the end of the conference, in the last session of the contact group on article 8j, a decision had to be adopted in relation to the establishment of the mentioned working group. The decision would then be proposed to and approved at the plenary the following day as a binding decision of the conference. Some countries led by Brazil opposed the presence of observers at the discussions and deliberations of the contact group. These observers comprised basically representatives from indigenous peoples, local communities, and non-governmental organizations. The president of the contact group surrendered to such pressures and decided to give the floor to observers for 10 minutes, after which they should abandon the room. The deliberations would then only be held by state representatives without any witnesses.

Outraged by such an unreasonable decision, four observers talked. An indigenous representative spoke first in his own indigenous language, leaving the floor understanding nothing and the official translators in silence. His use of an indigenous language became a clear metaphor of the lack of understanding between the actors involved, while a clear denounce of the state's persistent ignorance of the rights and cultures of indigenous peoples. Later, this author, representing the non-governmental organizations, argued that we had been invited by the Executive Secretary of the Convention on Biological Diversity to observe the process and to participate as observers, and, moreover, that to deny attendance to a discussion on the implementation of article 8j and related issues to the very local communities and indigenous peoples is neither democratic nor constructive. He ended his address by saying that once again the indigenous peoples and the local communities around the world were excluded and prevented from talking and listening. Next, a representative from a Brazilian non-governmental organization criticized the discriminatory position of the Brazilian state towards the Brazilian indigenous peoples. And, finally, a representative from a Latin American peasant organization talked about their recurrent loss of freedom of expression, loss of cultural voice, loss of power, land and decent lives. During these addresses, in an improvised but meaningful act, observers were covering their mouths with an adhesive label, and like that we abandoned the room.

These sad events, happening at a very United Nations conference, illustrate what we called above the impasse of social actors. Most international institutions and states are unable to attend to and uninterested in the viewpoints of social actors at other scales, in particular indigenous peoples and powerless farmer communities. This large democratic failure, in addition to severe effects on human rights, is at the roots of unsuccessful biodiversity conservation, local development, and equitable share of biodiversity. The research cases in the Andes and Amazonia discussed above illustrate the relevance of indigenous peoples and local communities in maintaining biodiversity flows while contextualizing biodiversity in its very social and ecological environments. However, international institutions and national states persist denying political personality to indigenous peoples, powerless local communities, and new social movements, while states discredit them. The conventional intellectual property system reproduces such attitudes, because it is too state-based and industry-oriented from its very origin.

The Convention on Biological Diversity approved in 1992 did an important step by empowering states in relation to their biodiversity. That was an step to prevent alien appropriation and misuse of national biodiversity resources, closing the gap of control of biodiversity between the holders and the potential usurpers. However, the idea behind the convention was not to transfer control of biodiversity from a Northern industry-based elite to a Southern state-based elite, but the empowering of the very local people in the control of biodiversity. The same inequalities of the pre-convention period are reproduced by the state claims of sovereignty on biodiversity. The impasse of scales persists; it just transferred some control from corporations to states, but local peoples remain ignored, dispossessed and unable to control their very biodiversity. The approval of patents on life forms and processes in the TRIPs Agreement will enforce this impasse and, thus, will intensify the decontextualization of local biodiversity and local peoples.

The case of Andean crop quinoa illustrates that biodiversity is not an object but a flow. This flow is rooted on the coevolution between biodiversity and traditional ecological practices. This coevolution between biodiversity and the ecological practices of Andean farmers is essential to their food security and to their paths of development. In the globalizing world, Andean farmers need a deeper control of their biodiversity flows and their ecological practices, so they become empowered to pursue development. In this way, Andean biodiversity and local people remain contextualized. And such contextualization produces and reproduces biodiversity conservation and food security. Conventional intellectual property rights fragment and decontextualize biodiversity flows because they produce a nature to fit in laboratories. Besides, they allow the appropriation of traditional ecological knowledge and practices. Such decontextualization threats local food security and the maintenance of the coevolutive processes that sustain biodiversity flows.

The case of Amazonia explores the relevance of biodiversity contextualized in indigenous cultural and ecological practices. That supports biodiversity conservation and the livelihoods of the indigenous peoples. The new social movements of the indigenous peoples of Pastaza propose, on the one hand, to support indigenous ecological practices and, on the other hand, to advance research on local biodiversity and on the indigenous ecological practices themselves. Their view of self-development feeds a contextualization of biodiversity and local people. They search alternatives to empower the local and common control over biodiversity, rather than the fragmented, decontextualized and individual production of biodiversity through conventional intellectual property rights.

The case of the last United Nations meeting around the Convention on Biological Diversity illustrates the impasse between social actors and scales of power. This impasse of scales will be intensified with the conventional system of intellectual property rights, because it is clearly unidimensional and cannot cope with the plurality of actors and processes involved in biodiversity.

In the middle of these struggles, some experiments have been advanced towards the improvement of relationships between local people and transnational corporations. Partnerships and bilateral agreements seems to have spread recently. We believe that they may improve some of the ethical concerns, but they are far from supporting both the contextualization of biodiversity flows and the development of local people. These agreements improve the payment in monetary terms of the appropriation of traditional practices and biodiversity, but do not embody a whole perspective into biodiversity, food security and local development. Not money but political and scientific empowerment is what many indigenous peoples and local communities need for their very development. If the control of biodiversity remains in elite hands, but is lost in the hands of local people, the promises of development result undermined.

The extension of the conventional intellectual property system towards life forms and processes is claimed as essential to the advancement of the modern biotechnological research. Such research is, of course, essential, and not only for Northern countries but for many people world-wide. However, while conventional intellectual property rights support North-based research, they erode local practices and innovations. Intellectual property systems reproduce the capitalist fragmentation of nature-society relationships. Many peoples of the South are becoming suppliers of biodiversity and knowledge, while dispossessed of the control over such biodiversity and knowledge flows. Countries of the North are specializing in the production of a transformed nature for benefiting medicine, food and agriculture. The new assets may even return to local people in the South, but in the form of an alien commodity. This process carries the decontextualization of biodiversity and intensifies the powerlessness of local people in the South.

An alternative system of control over life forms and processes should benefit both the highly modernized science of the North and the traditional ecological practices of the South in an equitable basis, not through any sort of compensation. The South and, in particular, its very indigenous peoples and local communities, will be able to conserve biodiversity and to advance their self-development and food security if they are empowered to do that. But not if they are forced to accept a commodified and decontextualized biodiversity.

A few observations for the revision of article 27-3b of the TRIPs Agreement

In the light of both the research and the discussions held above, a few proposals and observations follow. They are designed to inspire policy-makers and to develop a common African position for the review of article 27-3b of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement). These observations are:

1. The review of article 27-3b of the TRIPs Agreement should be made in relation to the wide context of the biodiversity issue. Only in this way biodiversity may be contextualized and will ensure equitable development to those more needed of it.
2. The biodiversity issue involves different social actors and power scales. The plurality of actors and processes involved or interested in biodiversity must be considered. The conventional intellectual property system is unidimensional and cannot cope with the social and ecological plurality of biodiversity.
3. Around biodiversity there are different nature-society paradigms. The conventional intellectual property regime was born and is designed for industry-based technological research, where most of the people involved and affected are in a similar paradigm of resource use, development aims, and cultural processes. The extension of this regime to biodiversity forms and processes will inextricably lead to global inequalities among the different existing paradigms of biodiversity.
4. An alternative system of control of biodiversity must be explored. That system should be established to facilitate the access and use of biodiversity world-wide while ensuring the ability of local people to control the biodiversity flows and their traditional ecological practices. In essence, such system should be clearly designed to promote food security, locally-based innovations, world-wide alliances among research institutions and local people and, principally, to avoid the decontextualization of biodiversity.
5. The key issue is to link effectively and in equity the conservation, the use and the control of biodiversity. The loss of control over biodiversity and ecological practices means, for many indigenous peoples and local communities, the inability to continue with their ecological practices, to ensure their food security and to maintain local biodiversity flows.
6. Intellectual property rights on life forms and processes do not involve just ethical concerns, but especially development, cultural and deep political issues. Constituted within the capitalist paradigm of nature, intellectual property rights produce a commodified and decontextualize biodiversity that, through power relations, becomes imposed to peoples under different paradigms of nature-society.
7. Unequal empowerment of the North interests on biodiversity intensifies the dependence of the South. Development among many indigenous peoples and local communities requires the control of biodiversity at the grassroots. Development shall not be both possible and equitative through compensation and imposed technology-transfer, but essentially from a large effort from the very grassroots.
8. The work conducted by Northern-based research institutions, which are the main voice advocating property rights over life forms and processes, must be recognized as contributing to the health and living conditions of many people world-wide. However, their important role should not be supported to the detriment of local biodiversity conservation and traditional ecological practices, which are also key issues for humankind. Therefore, an alternative system that supported Northern biomedical research, traditional ecological knowledge and practices, and local biodiversity conservation is required.

In conclusion, the property rights over life forms and processes are the last great ambition of capitalism to produce a commodified nature, which is apparently very promising and powerful, but in fact intensifies the uprooting of peoples, communities, and local biodiversity processes world-wide. The production of a biodiversity that cares for ecosystem resilience, indigenous cultural practices, local food security, and modern biomedical research is required instead.

Because of several reasons mentioned above, extension of the TRIPs Agreement towards life forms and processes contravenes the spirit and the text of the Convention of Biological Diversity. The convention’s main objectives comprise the conservation of biodiversity and the equitable share of the benefits of biodiversity (article 1). However, the conventional intellectual property regime erodes the traditional ecological knowledge, practices and innovations that feed large biodiversity flows. Such traditional ecological knowledge, practices and innovations are supported in the convention (e.g. article 8j).

In essence, a contextualized biodiversity is to be promoted. In this contextualization, the coevolution between the very indigenous and traditional ecological practices and the local biodiversity flows is indispensable. The conventional intellectual property rights regime precisely erodes such practices and causes the decontextualization of biodiversity. The promising research projects of Northern biotechnological institutions in health, food and agriculture terms are important and shall be supported. However, they cannot proceed in ways that erode the very means of live, culture and biodiversity of the local powerless peoples. An alternative system to both benefit all and conserve biodiversity must be urgently explored, not abandoned.

1 Gari, 1997.

2 Tapia, 1997.

3 Risi and Galwey, 1989.

4 Wilson, 1988.

5 ANAPQUI et al., 1997.

6 Posey (1985), Anderson and Posey (1989) and Bale (1989).

7 Sarayacu, 1998: 89-90.

8 OPIP and Terra Nuova, 1998.

9 COICA, 1997: 14.

10 Reyes, 1996.

11 Madrid, November 1997.