‘Biological diversity’ or ‘biodiversity’ is an umbrella term used to describe the number, variety and variability of living organisms in a given assemblage thereby embracing the whole of ‘Life on Earth’. The loss of the world’s biological diversity is causing major concern today and there are increasing deliberations day and night on the question of approaches to be adopted for the conservation of biodiversity. One such approach is to ascribe economic value to the biodiversity i.e. to adopt the economic approach. In this approach, the emphasis is on economic activities related to biotechnology, recombinant DNA technology, genetic engineering, pharmaceutics and cosmetics etc. for which, biodiversity provides the basic building blocks. Thus, the economic approach is pedestaled on a neo- economic concept the bio-economy, which is an economy based on ecological sensitive products and services produced by the use of biodiversity.
Biopiracy has deeply infected the bioeconomy of the majority of the third world countries and hot-spots of biodiversity as a global pandemic and is hastily depleting the rich bioresource of these nations including India. Biopiracy is detrimental not only to the environment or biodiversity but also affects the life of local population in numerous ways like food security, availability of medicines/cosmetics or protection against dreaded diseases etc. Because of the global nature of biodiversity as well as biopiracy, it is advocated that environment protection, biodiversitiy conservation and sustainable development approaches may be best performed only through global governance for environment.
However, efforts through global governance like constituting various intergovernmentalcommittees at international level, biodiversity authorities and committees working under it at national level and state biodiversity boards and constituent committees at the village and community levels has been ineffective in protecting biodiversity from biopiracy. At the same time, such decentralization of global environmental governance has given rise to rift among legal authorities to regulate actions relevant to the threat of biopiracy and mandate to address it. Thus, this issue of biopiracy and related activities, which threatens protection of biological resources and environment, requires a fresh insight. This article attempts to briefly highlight the historical genesis of the term biopiracy and other related terms used to denote similar activities.
The genesis of the word biopiracy shows that it is a compound word made up of ‘bios’ referring to living and ‘piracy’ that referring to the robbery at sea. It is pertinent to the objectives of this paper to highlight the historical genesis of the combining words in order to bring out the true nature of the wrongs for which the term biopiracy is used today and critically analyze appropriateness of the use of this term for such wrongs.
Thousands of years ago, great Roman lawmaker Cicero defined ‘piracy’ as a crime against civilization based on the doctrine of “hostishumani generis”, that means pirates were branded as the enemies of all mankind. So, it is clear that “piracy” refers to felonious theft on the open seas and is a criminal offence. Defining pirates this way meant that any government could take custody of them and try them. It also meant that individuals who committed acts of piracy lost the right to be protected by their home country.
The Black’s Law Dictionary defines “piracy” as:
Those acts of robbery and depredation upon the high seas, which if committed on land, would have amounted to a felony. Brigandage committed on the sea or from the sea.
In the same dictionary, “brigandage” is defined as:
“robbery and banditry as perpetuated by a band of robbers or brigands; plundering and outlawry.”
Under the piracy definition, Black’s Law Dictionary also includes a reference to a provision, 18 USC § 1651 of the U.S. Code, entitled “Piracy under law of nations.” According to this section of the U.S. Code, “piracy” is criminal offence warranting a steep penalty:
Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.
Hence, the true meaning has nothing to do with any form of IPR infringements (that are largely civil wrongs), although, the term is used as a synonym for copyright infringement. The editors of Black’s Law Dictionary too have taken notice of this by mentioning that ‘the term is also applied to the illegal reprinting or reproduction of copyrighted matter or to unlawful plagiarism from it; and, similarly, to the unlawful reproduction or distribution of property protected by patent and trademark laws. The practice of using “piracy” synonymous to the infringement of IPRs in creative works as “piracy” predates statutory copyright law. Prior to the Statute of Anne 1709, the Stationers’ Company of London in 1557 received a Royal Charter for exclusive right of publication and those who violated the charter were labeled pirates. Piracy traditionally refers to acts intentionally committed for financial gains, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as “piracy”. Thus, the term “piracy” has been often used to refer to the unauthorized manufacturing and selling of copyright works that are products of other peoples’ talents, skills and investment.
Although national copyright legislations of most of the countries generally do not include a legal definition for “Piracy”, some of the international legal instruments in the copyright arena like Article 12 of the Berne Convention for the Protection of Literary and Artistic Works, 1886 uses the term “piracy” in relation to copyright infringement, stating “Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection.”
Similarly, article 51, note 14 (b) of TRIPS Agreement, 1994 hints to the aforementioned meaning of the term “piracy” and states:
“Pirated copyright goods shall mean any goods which are copies made without the consent of the right holder or person duly authorised by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation”.
Further, Article 61 of the TRIPs and section 4 Article 23 (1) of the Anti-Counterfeiting Trade Agreement (ACTA), 2011 requires criminal procedures and penalties in cases of “willful trademark counterfeiting or copyright piracy on a commercial scale”. In the same vein, ACTA, 2011 uses the word ‘Piracy’ at several places in its text.
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