BIOPIRACY The commercial development of naturally occurring biological materials, such as plant substances or genetic cell lines, by a technologically

advanced country or organization without fair compensation to the peoples or nations in whose territory the materials were originally discovered. For decades, new drugs have been found in exotic animals and plants. Genes from rare species and subspecies are also useful in producing new breeds, whether by genetic engineering or ordinary cross-breeding. The drugs, and nowadays the new breeds as well, are typically patented. This causes trouble for developing countries that could use them. Patent monopolies on plant and animal varieties, on genes, and on new medicines, threaten to harm developing countries in three ways. First, by raising prices so far that most citizens have no access to these new developments; second, by blocking local production when the patent owner so chooses; third, for agricultural varieties, by forbidding farmers to continue breeding them as has been done for thousands of years. Just as the United States, a developing country in the 1800s, refused to recognize

patents from advanced Britain, today's developing countries need to protect their citizens' interest by shielding them from such patents. To prevent the problems of monopolies, don't establish monopolies. What could be simpler? But developing countries need support from world opinion in order to do this. It means going against a view that companies strongly advocate: that biotech company investors are entitled to monopolies, regardless of how they affect anyone else. It means going against treaties that these companies have prevailed on the US to impose, through threats of economic warfare, on most of the world. To challenge an idea which is backed by so much money is not easy. So some have proposed the concept of "biopiracy" as an alternative approach. Instead of opposing the existence of biological monopolies, this approach aims to give the rest of the world a share in the profits from them. The claim is that biotechnology companies are committing "biopiracy" when they base their work on natural varieties, or human genes, found in developing countries or among indigenous peoples--and therefore they ought to be required to pay "royalties" for this.

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work for them, an easy way to cement forever their regime of monopolies. With a show of magnanimity, they can concede a small part of their income to a few lucky indigenous peoples; from then on, when anyone questions whether biological patents are a good idea, they can cite these indigenous peoples along with the fabled "starving genius inventor" to paint such questioning as plundering the downtrodden. What people outside the developed world really need, for their agriculture and medicine, is to be exempt from all such monopolies. They need to be free to manufacture medicine without paying royalties to multinationals. They need to be free to grow and breed all sorts of plants and animals for agriculture; and if they decide to use genetic engineering, they should be free to commission the genetic modifications that suit their needs. A lottery ticket for a share of royalties from a few varieties and genes is no compensation for losing these freedoms. It is indeed wrong for biotech companies to convert the world's natural genetic resources into private monopolies--but the wrong is not a matter of taking someone else's rightful property, it is a matter of privatizing what ought to be public. These companies are not biopirates. They are bioprivateers.

Biopiracy" is appealing at first glance, because it takes advantage of the current trend towards more and bigger monopoly powers. It goes with the flow, not against. But it will not solve the problem, because the problem stems from the trend that this concept legitimizes and fails to criticize. Useful varieties and genes are not found everywhere or with even distribution. Some developing countries and indigenous peoples will be lucky, and receive substantial funds from such a system, at least for the twenty years that a patent lasts; a few may become so rich as to cause cultural dislocation, with a second episode to follow when the riches run out. Meanwhile, most of these countries and peoples will get little or nothing from this system. "Biopiracy" royalties, like the patent system itself, will amount to a kind of lottery. The "biopiracy" concept presupposes that natural plant and animal varieties, and human genes, have an owner as a matter of natural right. Once that assumption is granted, it is hard to question the idea that an artificial variety, gene or drug is property of the biotechnology company by natural right, and thus hard to deny the investors' demand for total and world-wide power over the use of it. The idea of "biopiracy" offers the multinationals, and the governments that

producing the product, occasionally even interfering with the lifestyles of the community which is the original source of the patented information anyway. In such cases, farmer and community livelihoods are threatened. Biopiracy is the illegal, irregular or inequitable access to and use of biological resources and its derived products, as well as the associated traditional knowledge of indigenous people, especially through the use of intellectual property rights to obtain exclusive rights. Over the past few years, resources like ayahuasca, maca, quinoa and related traditional knowledge related to them, have become part of inventions which are protected by patents or other intellectual property rights, with no recognition to their origin. It is this misappropriation or illegal access to these resources and knowledge which the concept of biopiracy seeks to describe. Peru has strong expectations that access to its resources and to indigenous peoples traditional knowledge is based on fairness and equity, with due compliance with existing legal norms and regulatory frameworks.

Biopiracy refers to the monopolization of genetic resources such as seeds and genes taken from the peoples or farming communities that have nurtured those resources. It also refers to the theft of traditional knowledge from those cultures. Today the main source of biopiracy occurs by corporations, academic institutes and governments claiming intellectual property over genetic resources - patents on life (eg gene patents) or claiming plant breeders rights. The introduction of new biotechnologies such as genetic engineering has facilitated a new wave of biopiracy. Biopiracy is the theft or usurpation of genetic materials especially plants and other biological materials by the patent process. To generalize, corporations of the western world have since the past two decades or so, been reaping immense profits by patenting the knowledge and genetic resources of Third World communities, which also form biodiversity hotspots. Very often, the knowledge processes and resources that are patented are widely known within a community. Once patented, the patent owner can effectively prevent competitors from

METHODS IN BIOPIRACY
When writing a paper in law, there are two basic models of method to choose from: the regulation oriented approach and the problem- and interest oriented approach. These models are each being described in a three step model by the Swedish professor Peter Westberg. In the regulation oriented approach, a certain rule is presented as an object for the examination. Thereafter, this rule is reformulated to the certain problem that the author is about to exam. The last step in the model is the exam in itself, a penetration which is usually done in the form of an analysis. In the problem- and interest oriented approach, the first two steps are connected to the papers introduction. The first step is to present the object of the paper as an actual phenomenon in our legal life. The second step is a phase of inventory. The author shall in an appropriate and perspicuous way explain what the problem is with the phenomenon, which interests should be concerned at the treatment of the problem, what alternatives or complementary solutions there might be to the problem and so on. In the last step the actual examination is done. This

can be analytical-descriptive, but it can also be synthetic, critical or constructive, the common case is a mixture of the different methods. The disposition is relatively free. This paper is written from such a problem- and interest oriented approach. The approach was chosen because of the width of the subject. Biopiracy is a big subject and cannot be treated only from a certain rule or regulation. There are many aspects to the problem other than legal: human, ethical, sociological, philosophical, economical and so on. The problem- and interest oriented approach therefore fits the subject of biopiracy better than the regulation oriented approach. The regulation oriented approach has some room in the paper, since it is hard or even impossible not to look at the current regulations as a source of information as the accuracy of theories, arguments and explanations must be tested. This goes especially for the part where the CBD and TRIPS are being compared. The examination is always normative in a way, since rules must be constructed, criticised or explained. The approach makes it possible to have a focus on the empirical part of law, something that is obvious in this paper. It is the practical and not the theoretical law that is being examined which leads the author to examine, describe and explain regularities and irregularities in the chosen subject.

PREVIOUS RESEARCH ON BIOPIRACY There is only one written publication, fully dedicated to the subject of biopiracy, the book Biopiracy the Plunder of Nature and Knowledgewritten by the Indian author Vandana Shiva. Mrs. Shiva is one of the worlds most dynamic and provocative thinkers on the environment, 9womens rights and international affairs. She is a physicist, ecologist and activist and has won the Right Livelihood Award, also known as the alternative Nobel Peace Prize, in 1993. She also directs the Research foundation for Science, Technology, and Natural Resource Policy, is an Associate editor of the Ecologist. She has her own homepage concerning mostly biopiracy [www.vshiva.net]. Another book by Mrs. Shiva, related to the subject of biopiracy is - for the interested reader who wants to learn more - Stolen Harvest. Biopiracy is a controversial book and it is written by a radical scientist, who is not a lawyer, but it has helped to keep the debate on biopiracy alive and many of the Internet resources cite the book or build their texts upon it. There are also many NGOs such as the TWN, GRAIN and the ETC who all have done some impressive research about biopiracy and their results and views are found easiest on the Internet.

CONSEQUENCES ON BEING A BIOPIRATE LEGAL PENALTIES The ultimate legal sanction criminal penalties may apply. It may and has happened that hunters have been jailed or fined for poaching or trespassing. In the biodiversity context, there is at least one case. A researcher was temporarily detained in Australia for unauthorised collection of plant materials. 61 As the development in the field runs nowadays, we are likely to see more countries where collecting of biological materials without benefit sharing agreement is likely to find its way into the list of criminal violations in some countries, so that biopiracy could result in a jail sentence, but as for now, the legal penalties are few and relatively gentle.

CANCELLED PATENTS ON NATURAL PRODUCT INVENTION Patents on natural product inventions are subject to attack unless all public knowledge about the species in question and its use are fully disclosed. An ongoing trend is that organisations of the bioresource-rich but economically poor countries of the developing world demonstrate a willingness to attack natural product patents on the basis of traditional knowledge, motivated by principles of justice, rather than the economic forces usually underlying patent disputes. Such examples of importance are the patents of Neem , Turmerich, Ayahuasca, the Hoodia cactus and the Tepezcohuite which all can be read about below. Thereare a lot more but these are the most important.

LOSS OF PROFITS FROM ILLEGAL REMOVAL OF BIOLOGICAL MATERIAL If a researcher removes biological material illegally from a source country, and then profits from the material, the source country or affected person could recover all or some of the profits, in a national court, based on a theory of misappropriation and related doctrines. Thus, there is a legal risk for someone who fails to reach agreement on an ABS before taking a sample home. A court is likely to impose more

onerous conditions than one that could be negotiated at the outset, when success is still a highly unlikely outcome.

LACK OF CLEAN TITLE TO BIOLOGICAL MATERIAL A clean title means that the biological material was obtained legitimately, and with prior informed consent from whoever had initial control over it. If there is no clean title, the value of the material is severely reduced. The collector cannot pass it on to collaborators, partners or other third parties. There is more to it; if the supplier certifies that a sample was properly obtained, and it was not, the recipient could assert a contractual claim for damages back against the collector. DENIAL OF ACCESS TO SAMPLES As a practical matter, if a collector does not agree to provide an equitable

share of benefits, in advance, to the source of biological samples, the collector may well be denied access to the samples The long term consequences will be that the possibilities for fieldwork will dry up. BLACKLISTING He or she who breaks the rules will suffer from bad reputation. He or she will find it increasingly difficult to find doors open for further research. A company who one associates with biopiracy may end up with weak patents, be exposed in media, lose sources of supply, face the prospect of consumer and government boycotts, import barriers, loss of market share and may face financial penalties.

DIFFERENT CASES OF MEDICINE BIOPIRACY

azadirachtin. This compound makes it useful in many fields including leprosy, diabetes, constipation, contraception, mosquito-repellent and even as an antiseptic tooth brush.

THE HOODIA CACTUS

The Tepezcohuite is a thorny tree with a wide distribution, but the only place where it holds healing properties is in Chiapas, Mexico. It is primarily used to treat skin lesions, especially for healing burns. It has antiinflammatory, anti-bacterial, anaesthetic and epidermal regeneration properties and is nicknamed the Miracle Plant. THE NEEM

It is a fast-growing evergreen tree that contains a number of potent compounds, notably a chemical found in its seeds named

Hoodia (and the similar Trichocaulon) are two succulent plants indigenous to southern Africa. For long, they have been used by San and Khoi shepherds of the harsh arid environments of southern Africa to reduce hunger and thirst. The South African Army also uses it to suppress appetite. CSIR, one of Africas largest scientific and technological research institutions and the UK Company Phytopharm have entered into an agreement to develop an appetite suppressant, which has been named P57 derived from Hoodia. As we all know, obesity is one of the main public health problems in developed countries, so the market potential is huge

THE JAMUN

TURMERIC

It is a plant; known for its anti-diabetic properties. It is common knowledge and everyday practice in India. Their use in the treatment of diabetes is documented in authoritative treatises such as the Wealth of India, and the Treatise on Indian Medicinal Plants. AYAHUASCA

To many people from India, Turmeric is considered as a magic cure-all. This orange root has been used for thousands of years to treat sprains, inflammatory conditions and wound healing. It is a key component of ayurdevic medicine.

It is used by the Amazon basin for medicinal use and religious ceremonies and it is central for many groups in the region. According to their cosmology, this is a sacred plant that has bestowed upon their knowledge about nature, cures for many illnesses and hallucinations that show past and future.