03 Jan A New Horizon in Biopiracy Trends? Preliminary Considerations on Digital Sequence Information on Genetic Resources
[Sara Dal Monico is a PhD fellow in International Law at Ca’ Foscari University of Venice]
Digital Sequence Information of Genetic Resources
These days (almost) anything can be stored digitally, even the DNA of a plant or seed. One of the latest and emerging debates which has taken over at the Conference of the Parties of December 2022 (CoP) of the Convention on Biological Diversity (CBD) concerns Digital Sequence Information (DSI), which consists of the digital writing (or description) of DNA and RNA, later stored in databases accessible by both private and public actors. In the context of the CoP 2022 of the CBD, DSI was discussed in regards to genetic resources as a possible path to ensure the conservation of genetic resources. DSI of genetic resources (currently a placeholder term without an agreed definition) refers to the process through which the DNA of genetic materials is decoded and digitally stored in databases accessible potentially everywhere. This might entail, for instance, as Hammond theorizes, that:
“corporate crop breeders interested in making tomatoes more tolerant of salty conditions might turn their attention to the genetic sequences of tomato plants from the Galapagos Islands and coastal areas of Ecuador and Peru. With enough genetic data, they might identify mutations that make the plants salt- tolerant, from the digital sequences of these tomato plants. Gene-editing techniques can then be used to introduce those mutations into commercial cultivars for sale in North America or Europe”.
DSI: A New Form of Biopiracy?
The use of DSI of genetic resources could be a way to promote the sustainable conservation and use of genetic resources and biodiversity (one of the objectives of the CBD, enshrined in Article 1), or may be the newest frontier of biopiracy, which could be referred to as digital biopiracy. Biopiracy is a term which was drafted by Pat Mooney, biodiversity expert and co-founder of RAFI (now ETC Group – Erosion, Technology and Concentration Group), who in the 1990s defined it as “the appropriation of the knowledge and genetic resources of farming and indigenous communities by individuals or institutions who seek exclusive monopoly control (patents or intellectual property) over these resources and knowledge.” The term was later picked up and further developed by Vandana Shiva, Indian political activist and environmentalist, who described the inner workings of biopiracy as a new form of imperialism, defining it as biocolonialism. According to Shiva, biopiracy “refers to the use of intellectual property systems to legitimize the exclusive ownership and control over biological resources and biological products that have been used over centuries in non-industrialized cultures”.
The phenomenon therefore entails a misappropriation of both genetic resources and of the traditional knowledge concerning the use of the resource, which is later patented for profit by the biopirates which do not share any revenues with the local or indigenous communities. Until now, biopirates had to “physically” reach a place and search for genetic resources, enter into contact with indigenous and local communities to discover how a certain plant or seed might be used, go back to their country with the genetic resource and the know-how acquired and lodge a patent application. Indeed, biopiracy entails both a misappropriation of the genetic resource as well as of the traditional knowledge associated with that particular genetic resource.
If looked at from the perspective of human rights, biopiracy entails several violations of the rights of indigenous peoples. As a misappropriation of their traditional knowledge, it amounts to a violation of their cultural rights, which include the rights to access to culture and to take part in cultural life as per Article 27 of the International Covenant on Civil and Political Rights (ICCPR), as well as Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Several articles in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 make references to the cultural rights of indigenous peoples (Articles 8, 11, 12, 16) and particularly Article 31 which enshrines the rights of indigenous peoples to maintain, control, protect and develop their cultural heritage and traditional knowledge. UNDRIP is however not binding, although the declaration was adopted at the UNGA with an “overwhelming majority”, said the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, with only four votes against (Australia, Canada, New Zealand and the United States and 11 abstentions), hinting at a possible customary nature of the declaration.
Biopiracy also entails a violation of their right of access to and management of their natural resources, enshrined in Article 26 of UNDRIP, and recalled also in Articles 31 and 32. Owning and disposing of their natural resources is attached to the principle of self-determination as per Article 1 of ICESCR and recalled in Article 25 as well. The same right is enshrined in Article 1 of ICCPR again attached to self-determination and recalled in Article 47 as well.
Is the International Legal System Lacking Behind?
The physical barriers to biopiracy could be easily overcome with DSI as genetic resources can be easily accessed via an internet connection, especially if such databases are to be made publicly accessible. The legal instruments at the international level which have tried to tackle biopiracy, though never directly, since a definition of biopiracy has not been yet enshrined in any legally binding document, are few. The framework under the CBD of 1992 was not adequate to tackle biopiracy. An attempt was made to strengthen the framework with the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (hereinafter Nagoya Protocol), the additional Protocol to the CBD concluded in 2010.
This new digital trend in biopiracy begs the question whether the instruments which were drafted to tackle the issue are equipped to deal with DSI and the new digital dimension of biopiracy. The answer is not really there yet, or at least pointing towards the negative. The CBD and the Nagoya Protocol seem to be inadequate to respond to the challenge posed by DSI in the context of biopiracy. This issue was indeed brought to the attention of the CBD CoP meetings in December 2022, though the ultimate decision revealed rather undecided positions of the parties: firstly, there was not even agreement over the use of the term “digital sequences information”. The outcome, decision 15/9, stressed that any benefit arising from the use of DSI should be shared fairly and equitably (para. 1); while at the same time encouraged the deposit of DSI on genetic resources, which should include information on geographical origin and relevant metadata (para. 3); yet the decision also recognized that the tracking and tracing of all DSI on genetic resources is not pratical (para. 5, emphasis added). At paragraph 10, the decision recognised that monetary and non-monetary benefits arising from the use of DSI should benefit indigenous communities, and at paragraph 9 that a fair and equitable benefit-sharing solution on DSI should “take into account the rights of indigenous peoples and local communities, including with respect to the traditional knowledge associated with genetic resources that they hold” (para. 9(i)). This last paragraph clearly hints at the risk of biopiracy which might derive from DSI, and it should be considered as a positive note that the (human) rights of indigenous peoples have been taken into account in a context where the main focus to tackle the problem from a legal perspective has been patents and intellectual property law.
In the Annex to the decision where the “issues for further consideration” were enlisted, letter (m) referred to the role, rights and interests of indigenous peoples with particular attention to traditional knowledge. This could show a timid recognition on behalf of the international community that biopiracy is a human rights issue which needs to be addressed as such. However, specific references to biopiracy are absent from both internationally binding documents and as well as decision 15/9. Hopefully, future attempts at tackling biopiracy as well as digital biopiracy at the international legal level will first and foremost define the notion specifically and will take into account the human rights dimension of the phenomenon, hence not only regulating prior informed consent and equitable benefit sharing, but also recognize the value of genetic resources and traditional knowledge for indigenous peoples from a human rights perspective.