In the previous issue of the series on Biopiracy Vis a Vis Indian Legislations the historical use of the term piracy and its gradual association with offences related to violations of Intellectual Property Rights (IPR) were identified. The preceding section discusses about the origin of the term biopiracy and efforts of ethno biologists, environmentalists and social thinkers to carve an appropriate definition of it.

The term biopiracy was first coined by Pat Mooney, the president of Rural Advancement Foundation (RAFI), 1984 and is defined as, “the use of intellectual property systems to legitimize the exclusive ownership and control of biological resources, without recognition, compensation or protection for contributions from indigenous and rural communities” (Mooney 2000; Delgado 2006 and Robinson 2010). Contemporarily in India, biopiracy has been described as, ”the use of intellectual property systems to legitimize the exclusive ownership and control over biological resources andbiological products and processes that have been used over centuries in nonindustrialized cultures” (Shiva 2001). Biopiracy has been described as, “It is the collection of biological material for industrial exploitation of their genetic or molecular components, in disagreement with the current national law. The biopiracy can be illegal when a law prohibits it, or simply immoral when there isn’t a formallaw to control it.” The biopiracy, thus, is robbery or more formally, the undue appropriation of the biological and genetic materials and/or communal knowledge associated to them in disagreement with the social, environmental and cultural laws and without the previous consent of the all interested parties” (Hathaway 2002). Emphasizing on the role of local communities in conservation and sustainable use of bioresources, the term biopiracy has also been defined as ‘the patenting of plants, genes, and other biological products that are indigenous to a foreign country’ without compensating the keepers of those resources and the holders of knowledge appropriated during the ethnobiological research process (Margo 2003). Biopiracy has again been considered as equivalent to theft and has defined biopiracy as “where there is access to or acquisition of biodiversity (and/or related traditional knowledge) without prior informed consent, including prior informed consent about benefit sharing, on the part(s) of those whose biodiversity (or traditional knowledge) has been ‘accessed’ or ‘acquired’, there is biopiracy – i.e., theft” (McGown 2006). Hinting to the fact that how IPRs may promote biopiracy, recently it has been described more expressively as, “the misappropriation of indigenous communities’ biological resources, especially medicinal plants and associated traditional knowledge (TK), through the use of intellectual property rights” (Zainol et al. 2011). Thus, biopiracy refers to the use of intellectual property systems to legitimize the exclusive control and ownership, which is otherwise illegitimate, over biological resources and biological products and processes that have been used over centuries in non-industrialized cultures. In other words, biopiracy is the unauthorized and illegal appropriation of any biological resources. For e.g., the appropriation of aromatic, ornamental, or medicinal plants, flowers, seeds and microorganisms, animals (including humans) and the traditional cultural knowledge that accompanies it without the proper authorization is considered biopiracy. The appropriation is illegal because it is done in violation of international conventions and, where there exist, domestic laws (DeGeer 2003).

In earlier days, there were no law regarding obtaining samples of plants, microbes and animals by anyone, and were considered to be “Common Heritage of Mankind” and freely accessible to one and all. At the most the collector was required, in some instances to obtain an informal permission from the local communities or landholders and in cases of national lands, a Permit (Gollin 1999). Therefore, people used to take natural or biological materials from anywhere in the world without any repercussions. The expression “Take-andrun” that appropriately described the old approach of collecting bioresources has been lately dubbed “biopiracy” (Gollin 1999).

But the situation has changed now and the third world countries, whose flora and fauna has been ruthlessly exploited by the developed nations for ages, are raising protests. With the signing of the Convention for Biological Diversity (CBD) at the Earth Summit in Rio de Janeiro, Brazil, in 1992, participatory nationsagreed to no longer consider biological resources the “Common Heritage of Mankind” but conceded the rights to distribute such resources to the individual nations that housed them. Thus, with the change in scenario from considering biological resources as the “Common Heritage of Mankind” to asserting sovereign patrimony over them today, the paradigms and laws which earlier considered appropriation of biological resources as legal, have also changed and now biopiracy is considered as illegal and a crime backed by legal sanctions in most of the developing nations (Zainol et al. 2011).

Bioprospecting: A synonymous term commonly used in relation to the acts of biopiracy is biodiversity prospecting or “bioprospecting”. The term ‘bioprospecting’, was coined by Eisner in 1991 (Eisner 1989; 1991) and used in his several articles, triggered much expectation about the scientific use of biological materials, particularly where they were associated with indigenous knowledge and uses of the materials. Bioprospecting is exploration of biodiversity for commercially valuable genetic and biochemical resources (Reid et al. 1993). The relevant terms as defined in the Biological Diversity Act, 2002 of India are Bio-survey and Bio-utilization. Bioprospecting is the exploration of wild plants and animals for commercially valuable genetic and biochemical resources. It involves the systematic search for genes, natural compounds, designs and whole organisms in wild-life with a potential for product development (Mateo et al. 2001). It has been argued that bioprospecting is nothing more than a sophisticated form of biopiracy (Shiva 2007). It is the exploration of biological material for commercially valuable genetic and biochemical properties (Laird and Wynberg 2012). The practice of bioprospecting by the researchers and other collectors is not necessarily a problem, until they prospect without permission or expropriate the results of their investigations without payment or acknowledgement to the local people (Laird and Kate 2002; Lewis-Lettington and Mwanyiki 2006; Millum 2010). The downfall of the “Common Heritage of Mankind” principle resulted in the proclamation of the sovereign ownership over such resources by the respective individual nations (Overwalle 2005; Brody 2010 and Zainol et al. 2011). Consequently, the terms “biopiracy” and “bioprospecting” began to be used simultaneously in the global arena to describe the acquisition of these newly protected resources. The twoterms refer to essentially the same thing i.e. the extraction of biological resources from areas of biodiversity, but they have categorically different undertones. The former having been coined by opponents of such activity and the latter being preferred by the practitioners of this type of resource extraction. Bioprospecting is the search for biological resources and accompanying indigenous knowledge primarily for the purpose of commercial exploitation. While bioprospecting is not inherently contrary to the interests of indigenous peoples or a threat to biodiversity, it facilitates biopiracy (Velez 2004). In other words, bioprospecting identifies biological resources and TK with commercial potential, while biopiracy appropriates these resources and knowledge (or privatizes them for commercial gain) without obtaining prior informed consent (PIC) or awarding just compensation. In fact, in its initial form, bioprospecting was indeed seen as a way to access, collect and exploit biological resources and TK and as a way to justify the conservation of this biodiversity (by demonstrating its economic value) and the redistribution of the benefits from harnessing those economic values (King 1996).