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Biodiversity and the Law
Intellectual Property, Biotechnology and
Traditional Knowledge
Edited by Charles R. McManis
London • Sterling, VA
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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
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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
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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
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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
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Chapter 29 Answering the Call: The Intellectual Property and Business
Formation Legal Clinic at Washington University 468
Charles R. McManis
Index 475
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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
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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
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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
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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
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[...]... 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
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the American Phytopathological Society and the William
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