I have just read Chapter 4, "Ethnobotany Blues" of Michael Brown's book, Who Owns Native Culture?. The book is interesting, and is telling me a lot I had not known about the interaction of intellectual property rights and the movement to protect the cultures of indigenous peoples. There is an accompanying website which is now serving as a clearinghouse for information about the struggles over control of these cultures.
Much of the chapter is about the International Cooperative Biodiversity Groups (ICBG) program that was started in early 1990's by the National Institutes of Health (NIH), the National Science Foundation (NSF), and the U.S. Agency for International Development (USAID). The program provided grant funding for such groups and is still continuing.
I was involved in the creation of the program from USAID, and want to take this opportunity to respond to the chapter. In general, I think Brown, an anthropologist, did a good job in the chapter and in the book as a whole, and in fact the chapter provided me information that I had not had because I lost contact with the program when I retired from USAID in 1996.
The ICBG did screen plant species for candidate chemicals for development of new pharmaceuticals. Each funded group included a partner capable of carrying out such screening, and this purpose was a justification for NIH's central role in its management. (The commercial firms participated on their own dime, and did not receive grant funds from the government.) Indeed, part of the justification for the program was that it took advantage of new screening techniques developed by industry that made the screening process more efficient that such processes had been in the past by allowing simultaneous screening for several kinds of activity. The public subsidy to the program as a whole was in part justified by the hope that there would be an emphasis on screening for drugs against the diseases of the poor in developing countries, which is of relatively little interest to commercial firms due to limited markets for such products.
The ICBG also did systematic botany (and one project I recall systematic studies of insect species), identifying species present in ecosystems and their distribution, and seeking to collect examples as well as to discover new species. This aspect was the interest of the NSF. Brown's two case studies (Peruvian Amazon and Chiapas Mexico) both involved the collection of plant species from under-collected areas, and their deposit in appropriate collections where they would be described and maintained. Indeed, one of the features that interested me in the science of the effort was the likely expansion of knowledge about the way evolution had distributed useful compounds across species.
The program focused on developing nations since that is where one will find more diverse plant species, and species less likely to have been studied in universities and corporate labs. We, the organizers and our consultants, of course understood that traditional uses of such plants by indigenous cultures for medical purposes could provide indications that the species involved would be chemically active. However, collection and screening was not to be limited to or even focused primarily on species used in traditional medical practice. We also assumed, correctly I still believe, that very large investments would be required to find any pharmaceutical of commercial value after appropriate leads had been developed through screening of plants.
USAID was interested in the program first to assure that funds were available to make it possible for scientists from the countries where the collections would be made to be fully involved and for those collections to be deposited in appropriate institutions in their home country. It was recognized that such involvement was imperative to leave added scientific capacity in the country, and that such investments were not likely to be made by industrial firms, nor by U.S. universities nor U.S. government domestic science agencies. USAID was also involved because of the belief that showing the potential economic value of the biodiverity in developing countries would encourage their conservation. The potential to develop new drugs against malaria and other tropical diseases was also an inducement.
The program sought to find innovative solutions to recognizing the moral rights of those from which collections were made to benefit from things found in those collections. We prepared the field by consulting experts, asked each group seeking a grant to make an appropriate arrangement and describe it in the grant proposal, and had those arrangements carefully reviewed in the proposal review process and incorporated in grant documents. Of course, we didn't know what we were doing, as this appeared to be breaking new ground. Unfortunately, Porter's chapter suggests we didn't do a good enough job in dealing with IPR, and that problems have arisen in some of the groups. On the other hand, his chapter suggests that ethnobotanists are better at dealing with IPR now than they were 15 years ago, and I hope that that is in part the result of the interest we created and the experience that was gained from the ICBG program.
As I said, the book is useful, as is this chapter. However, I have some problems with it. One is that the chapter did not describe the nature of the ICBG fully, focusing unduly on the degree to which it would lead to commercial exploitation of traditional knowledge.
Especially of concern is the fact that the author did not speak for the potential beneficiaries of the drugs that might be developed from the ICBG research. He describes later in the chapter the development of anticancer drugs as a result of materials found in plant sources. Do the tens of millions of people who might benefit from such a discovery have no right to health and longevity if the tribe living where the plant was first used object?
The chapter failed to deal with the history of granting intellectual property rights for pharmaceutical development. That is not historically an old phenomenon, but it has grown rapidly in the 20th century. I think that there is more than a correlation between the development of the intellectual property rights domain, the growth of research pharma, the rapid development of pharmaceutical technology, and the reduction of some kinds of disease burdens. Surely intellectual property rights law can be improved and will need to be modified to meet changing needs, but Brown should at least consider the possibility that it is better at encouraging the development of new and important drugs that alternatives before us, including the alternative of protecting the cultural traditions of indigenous peoples.
I happen to believe that the basis of U.S. patent law is appropriate. Knowledge should be in the public domain. Patents are granted in part to prevent knowledge being guarded as a trade secret. They grant only a temporary exclusion of others from certain, commercial applications of new knowledge. They do so in order to stimulate innovation.
I personally see little utility in giving people a perpetual right to exclude others from the exploitation of knowledge developed by their ancestors, which is apparently what some people want for the pharmaco-medical knowledge of indigenous peoples.
This approach, if taken to its logical conclusion, would exclude all such indigenous peoples from the use of knowledge developed not only in advanced Western societies but also by other indigenous peoples. Obviously, the balance would be negative for the very people we seek most to help and protect. (Check out my recent posting on the Nine Wonders of Intangible Heritage.)
The chapter does make an interesting and probably valid point that the institutions of indigenous societies are different than ours. As a consequence, not only is it sometimes difficult for scientists and businessmen from the United States to identify appropriate representatives of indigenous communities, sometimes the very effort to do so is doomed to fail because the communities have not institutionalized such representation and will not properly understand the questions as to who is to represent them. Equally, NGO's seeking to take up the cause of the indigenous population against the outside scientists and businessmen may find it impossible to find an appropriate authorizing agency (although they seem less sensitive to the problem than did the scientists we funded.) The worst scenario is when the scientists and business people feel that they have been authorized by one group who legitimately represents the community, the NGO feels that it is authorized to speak for a different group which it feels legitimately represents the community, and the two groups are rivals and disagree!
The chapter deals with Shaman Pharmaceuticals, a firm that pioneered the use of ethnobotany in its research to develop new pharmaceutical products and which sought to feedback some funding to the communities from which it got its leads. The chapter recognizes that far from making huge profits, the company lost lots of its investors money. It has since failed entirely. The business of bioprospecting is a hard one, and one not likely to reward unwary investors. It is not the profit bonanza pictured by the press and NGO.s.
I must admit the discussion of the Rural Advancement Foundation International (RAFI) made me angry. This NGO was apparently very active in opposing bioprospecting by commercial firms in areas in which indigenous peoples lived, on the basis that they considered such efforts exploitive. Of course, I am all for people expressing their views and advocating for the weak. However, I disagree fundamentally with RAFI (which apparently has since changed its name to the ETCGroup but continues to "address the socioeconomic and ecological issues surrounding new technologies that could have an impact on the world’s poorest and most vulnerable." RAFI is now apparently advocating against a range of technologies from biotech to nanotech which offer real hope to help indigenous peoples.
I feel that the media tends to pay undue attention to NGO's that oppose technologies. Years ago Douglas and Wildavsky suggested that in our modern age NGO's could survive and thrive by making loud charges against "pollution", thereby gaining lots of small donations from people slightly interested in their charges. I fear the media finds the controversy generated by such NGO's worthy of broadcast, since it interests audience and draws attention, which in turn draws advertisers and revenues. We need a media that gives more weight to expert scientific judgment and less weight to populist alamists.
Sunday, July 22, 2007
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Michael Brown has kindly allowed me to post this response to my comments.
I appreciate the kind words about Who Owns Native Culture?, a book that assesses (circa 2003) emerging global conflicts over the control and ownership of culture in the broadest sense.
The chapter on ethnobotany and bioprospecting is the longest in the book, both because the issues it addresses are complex and because in the public arena claims of biopiracy overshadow other forms of “cultural appropriation,” the rubric of choice when talking about the ability of a powerful group to benefit from the unauthorized commercialization of another group’s knowledge or cultural creations. The chapter was not presented as a comprehensive introduction to the ICBG program. My comments on the ICBG were largely limited to background information needed to contextualize high-profile conflicts in Peru and Mexico into which ICBG researchers found themselves unwillingly drawn. I think the ICBG approach had much to recommend it at the level of principle, and my understanding is that some of its projects have performed as hoped in Africa and elsewhere. But in Latin America, the ICBG had the misfortune of launching its efforts just as a continent-wide crisis (what sociologists call a “moral panic) over the globalization of IP was gathering momentum. Public opinion focused less on what ICBG projects were actually doing and more on the fear that they were expanding and refining technologies of exploitation that would exclusively benefit Big Pharma.
The situation is scarcely better four years after the book appeared in print. Indeed, so great is the hostility to anything perceived as biopiracy that in some Latin American countries--Brazil in particular--fundamental field-based research in biosystematics and ecology has become difficult or impossible to pursue. This is a scientific tragedy of major proportions.
My opinion is that this problem will not be resolved by continuing to urge Latin American nations to follow the American model of ultra-strong IP protection--which, by the way, is resented even by many countries in the developed world. Nor is it to declare “culture” to be a form of property and therefore a resource that must be surrounded by iron-clad legal protection. The solution will come by reimagining forms of IP that, unlike the current model, acknowledge the contribution of local communities and establish norms for sharing profits with them.
As for John Daly’s observation that a cultural-protection approach might deny “tens of millions of people” access to life-saving drugs, my response is to offer an analogy. If a powerful corporation or government agency came to you with the claim that your house and surrounding property contained a valuable commodity that could offer inestimable benefit to humanity, and you were asked to share this resource with the understanding that you would realize no personal benefit while the organization undertaking this operation stood to gain hundreds of millions or even billions of dollars in profits, might you not hesitate before granting permission? Might you not at least express a modest interest in sharing in these profits should they appear? Now multiply that moment of hesitation, driven by a desire for fair play and true reciprocity, by 500 years of colonialism, and you’ll know why many indigenous groups respond to bioprospecting with such visceral hostility. I’m not saying that their response is always justified or tactically sound. My goal in the book was simply to document its roots and to urge the developed world to seek more flexible, cultural sensitive approaches to the search for useful information in the indigenous world.
A final point. Mr. Daly argues that the Western IP regime has been shown to be the best way to advance human knowledge and improve human well-being. This is a plausible claim but usually presented with little supporting evidence. Lawrence Lessig and other “copyleft” thinkers have long argued that US authorities need to do a better job of testing such claims empirically, especially when it comes to scaling the length of copyright and patent terms and even the assumption that copyrights, patents, and trademarks encourage creativity in every domain where they are currently applied. (See this recent NY Times article for evidence that patents often cost more than the benefits they provide.) IP is a statutory regime, not a natural law, and it should therefore be held accountable to relevant facts. Unfortunately, in the US today IP is largely determined by corporate lobbyists and the legislators who do their bidding. As citizens we need to keep the pressure on our representatives to make sure that IP protections last only long enough to provide reasonable incentives for creativity--after which, as Mr. Daly says, this information returns to the public domain. And we must reward real creativity, not the unauthorized transfer of knowledge from powerless groups to more powerful ones.
Professor Brown made a perfectly logical choice in not fully describing the ICBG program, but I wanted to respond because I thought that the program was more important than might have been appreciated by those who read only his book for information on the project.
I would respond to Prof. Brown's question about expropriation of something found in my house (which I like) in a few of ways.
* An alternative example might be public policy that quarantines people with communicable disease. Life and death situations involve public policy choices that may impose burdens that appear and are unfair on some people for a greater good. We don't reimburse people for being quarantined in their homes or a hospital room.
* I actually believe that it is reasonable to provide incentives to people to do the right thing, more than to reimburse them for perceived injustice. Thus I support paying people growing traditional cultivars of important crops to keep the germplasm available in case it is needed in future crop improvement. Growing such crops presumably involves a loss in economic productivity, which should be reimbursed in addition to an incentive for performing a useful service. So too, I am willing to pay for the preservation of biological diversity in wilderness areas (in the form of payment to the indigenous peoples who live there) because I value the knowledge that such diversity exists and I feel it may be useful. I don't mind being taxed for such purposes. So too, I am willing to provide profits to the companies that do the research to find new drugs,prove their safety, efficacy and effectiveness, and take the risk of marketing them. I don't mind granting them reasonable monopoly on the sales of new drugs as that incentive to develop others.
* I don't think we should send money to the people who live in the Fertile Crescent where our key food grains were domesticated thousands of years ago because of the service provided by their ancestors.
* As Prof. Brown points out in his chapter, it appears that companies are willing to pay residents of communities where bioprospecting is done, charging that as a cost of doing business, if public policies are created calling for such payments by all the firms developing drugs from bioprospecting results. The problem here is one of getting all the stakeholders to agree on such a public policy.
Actually, I do not advocate that all countries (Latin American or other) accept the same IPR policies. The United States was happy to have policies that encouraged piracy of foreign intellectual property until it produced enough new technology and other material to be protected that it could benefit more from reciprocal agreements than from pirating. I think piracy makes sense for some countries still. The situation is changed now, of course by the Trade Related Intellectual Property convention of the WTO, and some Latin American countries -- including Brazil -- will benefit from strong IPR regimes. However, those countries should make their own decisions as to how to structure their own regimes to best advance the interests of their peoples.
I fear I was not clear. I do not believe that we can not improve IPR law and regimes in the future. Indeed, I think Lessig (who knows more about these issues than I ever will) is probably right that putting some technology into the commons is probably the better policy. What I meant to say was that we have seen unprecedented pharmaceutical progress in the last half century or so under the existing (albeit evolving) IPR regime, and we should be careful of unintended negative consequences before we make major changes in that regime.
I actually think that we should encourage the transfer of knowledge among all groups. I don't think groups, whatever their power, should withhold their knowledge from others except under very limited and clearly defined circumstances (e.g. "trade secrets" to promote industrial innovation, "how to make weapons of mass destruction" to protect public safety, even "religious dogma" by people who believe that sharing such knowledge with unauthorized people would pollute it and or them). I realize that those who have more capacity to appropriate knowledge and utilize it effectively will benefit most from such a system.
I am worried by the failure of people to appropriate knowledge from others, and especially about the failures of people in traditional societies and poor nations to benefit from what is known about how to improve their health, nutrition, economic efficiency, etc. Indeed, I would love to see knowledge expropriated by force if necessary from the corrupt governments so prevalent in developing nations, of the nature of their corruption, and shared widely with the citizens affected by that corruption.
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