Skip to main content
NIHPA Author Manuscripts logoLink to NIHPA Author Manuscripts
. Author manuscript; available in PMC: 2016 Jan 15.
Published in final edited form as: Hastings Cent Rep. 2010 Jan-Feb;40(1):24–33. doi: 10.1353/hcr.0.0227

How should the benefits of bioprospecting be shared?

Joseph Millum 1
PMCID: PMC4714751  NIHMSID: NIHMS740548  PMID: 20169653

1. Introduction: the puzzle of benefit sharing

Bio-prospecting—the search for valuable chemical products in natural biological resources1—is an important potential source of novel chemical and biological products for medicine, agriculture, and other industries.2 But a great deal of the world’s “biodiversity” is found in developing countries, which often lack the research capacity to make use of it. Bio-prospecting in such environments therefore generally requires outside bio-prospectors and sponsors from the developed world. There is considerable concern about such bio-prospectors taking what is valuable without compensating the community from which their biological samples come or whose knowledge led to the valuable discovery. Such “bio-piracy” seems exploitative.

Consider, for example, the famous hoodia case.3 For millenia, the San people of southern Africa have used native plants of the hoodia genus as appetite suppressants. Their practice was documented by colonial botanists and hoodia’s properties were then investigated in the late 20th Century by the South African Council for Scientific and Industrial Research (CSIR) who attempted to isolate the active ingredients. In 1995, following nine years of development, the CSIR applied for a patent on the chemical components of the plant that suppressed appetite. Three years later they signed a licensing agreement with a private company called Phytopharm, who developed a program with Pfizer for commercialization of hoodia products for the lucrative Western weight loss industry. All this research and development proceeded without the knowledge of the San. Only in 2001, following extensive press exposure, did CSIR enter into negotiations with San representatives about whether and how the San ought to benefit from hoodia’s commercialization.

Clearly, there was something wrong with the behavior of the CSIR in this case. Many people think that the San should have been consulted about the analysis of hoodia using their traditional knowledge, and should have the opportunity to benefit from its development. Indeed, the Convention on Biological Diversity, to which 191 countries are signatories, requires the “fair and equitable sharing of the benefits arising out of the utilization of genetic resources.”4 However, the ethical justifications for such sharing have not been established beyond appeals to intuitions about justice and exploitation. Consequently, neither has what share of benefits is owed and to whom.

Current good practice for bio-prospecting consistent with the CBD is found in the benefit sharing arrangements of the US-sponsored International Cooperative Biodiversity Groups (ICBGs).5 It includes: first, benefit sharing agreements should be negotiated with the local community and require the prior informed consent of its members; second, benefits should be shared in return both for access to genetic resources and for the use of the community’s “traditional knowledge” about the pharmacological properties of local flora and fauna under study.6 From the perspective of Western accounts of property, both these principles appear strange.7 The first principle seems strange because it is natural to think that community members deserve a share of benefits in virtue of their ownership of the organisms containing the genetic resources. But ownership normally implies that people may do as they wish with their possessions (within moral limits). In this case, for example, individuals could sell plant products. Why, in the case of bio-prospecting, are individuals’ rights abrogated? Compensation for the use of traditional knowledge also seems strange. Compensation is required even when the originators of the knowledge are not alive, and where the knowledge is common within the community. But intellectual property rights (IPRs) over the knowledge then seem unwarranted. No one who has the knowledge worked to acquire it, so there is no compensatory basis for sharing benefits with them. Moreover, the knowledge is already public, so there is no need to encourage people to reveal it. In short, the standard justifications for IPRs do not apply.

The absence of rigorous theoretical justification for fair benefit-sharing arrangements, along with these puzzling features, might lead one to doubt the moral importance of benefit-sharing. After all, it might be thought, if the only available justifications are simple appeals to intutition, and the practice of benefit-sharing involves prima facie implausible principles, perhaps it need not be taken seriously.

This paper seeks to justify benefit sharing from within a Western perspective in a way that both gives guidance about what is owed to whom and explains these puzzling features. I argue that if members of a community have morally justified property rights over areas of biological diversity, then their rights over access to genetic resources should be considered collective rights. Consequently, the community as a whole is the appropriate party for bio-prospecting negotiations, and its share of benefits should be shared equally between its members. Determining a fair share of benefits is not straightforward, but must be linked to the market value of access, which will be established partly by negotiation. Here we should focus on preventing various transactional wrongs and distorting influences on the efficient operation of the market. The question of whether property rights in biodiversity are justified is clearly crucial. Though it is not the main focus of this paper, I sketch some considerations of justice that favor ascribing property rights to certain communities. Finally, I show how parallel arguments apply to traditional knowledge; until then, for simplicity, I concentrate on what is owed just for access to genetic resources.

This paper does not attempt to deal with all the important ethical issues regarding benefit sharing. First, in arguing for my claims I abstract away from the messy details of actual bio-prospecting ventures. I discuss idealized models in order to isolate the morally relevant structural features of these cases.8 Second, I assume throughout that bio-prospecting ventures can be reliably expected to lead to profitable discoveries.9 I also treat these benefits as though they are fungible, and so just consider economic benefits; this simplifies analysis of what counts as a fair allocation.

The principles I use to reach my conclusions are taken from mainstream Anglo-American moral and political thinking. It might seem peculiar to use a normative framework rooted in the Western tradition, given that many of the cultures whose members are the intended beneficiaries of the CBD reject Western concepts of property. The idea of land and the living world as amenable to individual ownership is frequently contrasted with a worldview that treats humans as a part of nature and the custodians of the land they inhabit.10 However, these Western concepts underlie the legal regimes that purportedly allow bio-piracy to take place. It is therefore vitally important to show that benefit sharing can be defended and explained even from within the Anglo-American philosophical tradition. This shows that no special pleading is required in order to defend indigenous people’s rights.

2. Property rights

In working out how to share the benefits of bio-prospecting, we must distinguish several questions. We need to know who deserves a share of benefits and what that share should be. Further, we need to know with whom benefit sharing arrangements should be negotiated, that is, who gets to decide whether and on what terms access to genetic resources is granted. Answering these questions requires determining who has rights over the genetic resources and, crucially, what sorts of rights these are.

2.1. What rights are held over genetic resources?

Within the Western paradigm this paper adopts, we may assume, without begging any important questions, that the rights in question are property rights. Property rights are bundles of rights that allow access to and control over tangible and intangible objects.11 There are three broad types of property: individual, collective, and common. Individual property is held exclusively by one person. Collective property is held by a group of individuals, so that the exercise of the attendant rights must be performed by the group as a whole. Common property is open to use by all, so long as they do not prevent others from also using it.12 Note that an object may have different characteristics in virtue of which people have different property rights over it. For example, the owners of most uncultivated Scottish land may not exclude others from walking on it.13 In this respect, the land is held in common. But the owner retains the right to build on her land that other people lack, and in this respect the land is individually owned.

We should also note the distinction between moral and legal considerations. Legal property rights are the creation of positive law. However, we can ask about the moral justification of these rights. Where they are morally justified I will speak of legitimate property rights. It is these rights with which I am primarily concerned.14

The practice of seeking PIC from community members implies that access to genetic resources is not generally believed to be governed by individual property rights. If someone has individual property rights over a resource, those rights allow her to make certain decisions about what happens to it without consulting others. For example, she may unilaterally transfer her rights over it. This is not true of genetic resources: individuals are believed to be permitted to alienate plant samples for scientific study, for example, only with the agreement of their community. This implies that the property rights in question are believed to be collective. But is this belief warranted?

2.2. Justifying collective property rights

In order to justify collective property rights over genetic resources, I now present a simplified model of bio-prospecting. This model allows us to see the morally relevant difference between property rights over genetic resources and property rights over most other physical property. The difference implies that someone’s rights over genetic resources in a piece of property are held collectively with other property-owners, even if her other rights over that property are not.

Consider a community living in a forest which is believed to contain many unique species. The area is valuable to people outside the community in two respects: it contains timber, and it has scientifically interesting genetic resources. Assume that the members of the community have legitimate property rights over the forest. These might be common, individual, collective, or some mixture. Clearly, if they are collective, then my argument is already complete. So assume that they are either common (i.e. everyone may harvest whatever she wishes) or individual (i.e. different individuals own distinct patches of forest).

As genetic resources, the biological specimens are valuable because of the information they contain. Studying them may reveal pharmacological characteristics that can be used, for example, to develop medicines. But to access this information, it is not necessary to access the whole forest—only samples of the relevant types of flora and fauna are needed.15

Suppose that the forest is individually owned by the community members. Let each piece of property contain roughly the same range of species and so the same genetic information. The genetic resources of each are therefore equally valuable. Call this ex ante value v. But then suppose some individual P sells access to the genetic resources on her property to an outside prospector. This agreement, if fair, will give v to P. Those parts of the genetic information that turn out to be valuable (ex post) will generally end up as public information but controlled by the bio-prospector, e.g. through the patent system. Then since accessing the genetic resources of other individuals in the community will not produce additional information, the value of their genetic resources is now much less than v. Similar reasoning applies if the land is commonly held, that is, if individuals are allowed to appropriate materials from the land and do with them as they wish: if one person appropriates and sells samples, or sells access, she prevents others from doing the same.

Contrast this with the sale of timber. If P sells timber from her land, this does not significantly reduce the value of other individuals’ timber: its ability to function (say) as a building material remains the same. Likewise, if she harvests timber from a common forest, she does not prevent others from doing the same (until they use up all the timber).

In general, where information is at stake, the sale (and subsequent publicity) of that information by one person reduces the value of the same information held by others. By selling access to her biodiversity, P imposes a cost on the other members of her community. But, all else being equal, if I impose a cost on someone without their consent then I owe them compensation.16 Indeed, ceteris paribus, I owe at least the value of the cost I imposed. This implies that the benefits of selling access should be distributed among all the people who have legitimate property rights in the genetic resources.

The cost that would otherwise be imposed on non-consenting others explains why the benefits of selling access to genetic resources should be distributed among the legitimate property owners in a community. However, it does not yet tell us who may decide whether that access will be sold and for what price. One possibility is that everyone affected by the sale of access should be able to veto it. But this would allow individuals too much power to prevent others from realizing their assets, since the community would be held hostage to its most reluctant members. With regard to its genetic resources, the community members’ interests rise and fall together: no deal, or a bad deal, affects everyone as much as a good deal.

Fortunately, we already have a model for how decisions that affect the interests of all members of a group may be made. This is the model of government. Legitimate governments, ideally, make decisions that take equally into account the interests of all those subject to them. Moreover, they are generally thought to be empowered to negotiate on behalf of their subjects and make agreements that bind them. This applies even when individuals disagree with the actions or policies of their government. This suggests that benefit sharing agreements can permissibly be made by legitimate governments of communities living in areas of biodiversity.

In practice, it may be difficult to find legitimate decision-makers for indigenous communities living in areas of biodiversity. It may be that the national government fails to represent fully the interests of such communities, and so negotiation is needed with other, local, parties. As with community consultation prior to human subjects research, it may prove necessary for researchers to facilitate the creation of ad hoc decision-making bodies that are able to represent the interests of community members. However, the practical difficulties involved in finding legitimate decision-making bodies should not drive us to the view that every individual must give informed consent to bio-prospecting. If unanimous agreement were necessary for actions affecting the interests of all the members of a community, no government could undertake such actions.17 And, as we have seen, not being able to take such actions would itself negatively affect community members’ interests.

The experiences of Natura, a Brazilian cosmetics company, illustrate these points. They have drawn on the traditional knowledge of indigenous communties to identify new ingredients, and developed on-going relationships with communities for the supply of raw materials. In her analysis of Natura’s development of access and benefit-sharing agreements, Sarah Laird notes that “Over time, the company found that it is important to work with communities that are organized, with an association, and to not deal with an individual or small group within a community.”18 Though individuals should not be able to make independent decisions about bio-prospecting, nevertheless appropriate representatives of communities can have the authority to do so.

My argument in this section has answered two questions: who should receive the benefits from bio-prospecting, and who may negotiate benefit-sharing agreements. I now consider an objection, before addressing the amount and distribution of the benefits.

2.3. An objection

I have argued that control over access to genetic resources should be a collective right, because if one person allows access to their genetic resources, this devalues the similar genetic resources held by others. However, there are cases in which someone’s actions predictably impose costs on others, but where we do not think compensation is required. These cases therefore appear to contradict the general principle cited above about compensating people for imposed costs.

Consider the timber market. Suppose you and I both possess stocks of timber. If I release mine onto the market, this will increase the supply of timber. In turn, if the market is functioning well, this will reduce the price of timber. I have thereby reduced the value of your property. But surely I do not owe you restitution for imposing this cost—otherwise all sales would be morally problematic.19

In response, we should distinguish prima facie and all things considered obligations. Imposing a cost on someone does not always entail an all things considered duty to compensate her. But this does not disprove the principle that imposing a cost on someone without consent creates a prima facie obligation to compensate her.20 It is just that this obligation may be overridden by other morally relevant factors.

Markets have two valuable features. One is that being able to exchange one’s possessions is an intrinsically important freedom. The other is that well-functioning markets lead to efficiency gains and facilitate increased productivity to the benefit of all.21 This latter feature explains why the price drop caused by increasing the supply of timber does not entail a duty to compensate other holders of timber: the relationship between demand, supply and price is one way in which markets regulate the amounts of different goods that get produced and so increase efficiency. Consequently, regulating this relationship would be bad for everyone.22 However, this argument does not work in the case of genetic information, since the explanation for the drop in price in the information case is not a decrease in demand relative to supply, but the fact that when one individual has sold the information there is no more information to be sold. There do not seem to be the same instrumental gains to society from allowing the first seller to take all of the payment for access to genetic information. Moreover, I suggest, there are not other moral factors that apply to the genetic information case and are sufficient to outweigh the prima facie obligation to compensate. Those who disagree must suggest such factors, or must provide reasons for thinking that the compensation principle is not, ceteris paribus, correct.

3. What is a fair share of benefits?

We have established that all the people with legitimate property rights over an area of biodiversity should receive a share of the benefits of bio-prospecting, and that they, or their legitimate representatives, have the right to decide whether to allow access to that biodiversity. Nothing has yet been established, however, about what share of the gains from bio-prospecting they are owed, i.e. what counts as a fair share of benefits.

Where multiple parties contribute to the creation of some social surplus (that is, some gain in excess of the combined cost of their contributions), the return each deserves should reflect his or her contribution. But there are multiple possible factors that might be cited in working out exactly how much someone deserves. These include: the relative importance of the individual’s contribution, the amount of effort she exerted, costs she incurred, and so forth. Here we are interested in the value of the contribution made by granting access to genetic resources, which is a capital investment. If we assume that the other people involved in bio-prospecting (e.g., scientific researchers) are being treated fairly by their employers, then we only need work out the value of this access relative to the value of other investments of capital made by the sponsors of research.23 This means we do not have to compare different types of desert base.24

The value of a capital resource is given by the benefits that it is expected to create—as a means to other goods, its value is determined by the value of those other goods. This provides a simple way to determine how much the resource is worth: we can look at how much people are willing to pay for it. Of course, this will reflect the value of the resource only if potential buyers and sellers make their decisions under the appropriate conditions. For example, they must have accurate information about what benefits can be realized with the resource, and neither they nor the holder of the resource should be taking advantage of some special position they are in, such as the possession of a monopoly. In short, the value of a capital resource, in terms of the compensation merited for its use, is given by its price in a well-functioning market.25

Ideally, we could work out how much something would cost in a well-functioning market by modeling the market. But a complete model is likely to be impossible. For example, the value of goods ultimately depends on people’s autonomous choices, and modeling such choices is a poor substitute for actually using them. We would do better, where possible, to bring the actual market closer to the ideal. This requires removing both sources of wrongful transactions and sources of poorly functioning markets. The former include deception and coercion, both of which are liable to lead people to agree to exchanges that they would not if acting freely. The latter include actions such as the exercise of market power to bargain down the prices offered by competing suppliers.

The tactic used here is a way to achieve fair transactions without having to specify a principle of fairness.26 Although such a principle is hard to specify, we can still identify certain factors that tend to lead to unfair divisions of benefits. These are factors that tend to affect the divisions people agree on, but which are irrelevant to the fairness of those divisions. For example, coercion, as well as being wrong in itself, tends to result in the coercee making agreements that favor the coercer, but the fact that coercion is involved is not a reason to think that the division of surplus value ought to favor the coercer. Hence, coercion tends to lead to unfair agreements. Preventing it therefore increases the probability of a fair division of benefits.

This tactic also means that we do not have to worry separately about exploitation. Take Alan Wertheimer’s account of exploitation, for example, according to which exploitation involves taking “unfair advantage” of someone.27 Judging whether or not a transaction is exploitative requires making a judgment about fairness. But if we have already eliminated the factors we think lead to unfair divisions, we have already done what we can to ensure that the transaction is fair, and so to avoid the possibility of exploitation.

To sum up, the share of the benefits of bio-prospecting that the holders of genetic resources deserve is given by the price that access to those resources would command in a well-functioning market. Ideally, this will be determined in negotiations between the interested parties. But such negotiations will produce a fair outcome only if distorting factors are compensated for, including the lack of relevant information or expertise, and the exercise of morally irrelevant power differences. Those involved in bio-prospecting negotiations should therefore strive to minimize these factors, or to aim for the result that they reasonably judge would be reached without them.

In principle, these considerations give guidance on how to establish a fair share of benefits. In practice, they are likely to be taken into account only if a system of governance is in place. The possibility of such a system is suggested by the formal and informal structures that already exist to encourage benefit-sharing arrangements. Formally, these include the CBD and guidelines like the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising Out of Their Utilization that have resulted from it, as well as national legislation, such as Brazil’s Bill 306/95 that governs access to genetic resources.28 Informally, there already exist organizations that put pressure on companies and research sponsors to conform to best practice. These include public examples of good practice, such as the ICBGs already mentioned, and NGOs who publicize cases of suspected “biopiracy.” Of course, these existing systems are not perfect; for example, pressure from foreign NGOs led to the downfall of the Maya ICBG project in Mexico, which many commentators regard as having been ethically benign.29 However, they do suggest that the theoretical requirements for fair benefit-sharing delineated in this paper could be instantiated.30

4. How should benefits be internally distributed?

The owners of areas of biodiversity could share their cut of the benefits of bio-prospecting between themselves in different ways. For example, they could distribute the benefits in proportion to the amount of land each individual owns, or according to whose property biological specimens were taken from. But the fairest way to internally distribute the benefits is suggested by the argument in Section 3 that explains why rights over genetic resources should be collective. Each owner of land containing the genetic resources stands to gain the same amount from allowing access to them, and to lose the same amount if others allow access without compensating her. In other words, each person’s property has the same value with regard to its genetic resources. Hence each deserves to gain equally, and so the benefits should be shared equally among everyone who has morally legitimate claims to property in the areas of biodiversity.31 This sharing could be implemented by simply dividing up the benefits; it could also be implemented by funding institutions that equitably support the community. For example, the Kani tribals of Kerala, India, receive a share of license fees paid for the manufacture of products from Jeevani (Trichopus zeylanicus travancoricus), a plant with anti-fatigue properties.32 These fees are paid into a trust for community development activities for all the Kanis.33

5. Inter-community benefit sharing

If my explanation of the grounds for benefit sharing is correct, the community (or, indeed, any other existing political entity) will only accidentally be the locus for benefit sharing. If an area of scientifically interesting biodiversity extends over the property of non-community members, then those people are equally liable to lose the value of their genetic resources through the bio-prospecting venture and so also deserve a share of benefits.34 This might seem problematic: not only does it make it harder to find legitimate negotiators, but it implies that the number of people who deserve compensation may not be known until the range of a genetically valuable species is ascertained.

The first of these concerns must just be accepted. It is a shame for bio-prospecting agreements that the boundaries of political communities are drawn differently from the boundaries of eco-systems, but this does not affect who has an ethical claim.35 However, it should be borne in mind that the larger the population occupying a particular eco-system, the smaller the compensation each individual deserves for its use (until the biological resources can be reasonably considered common property).

The second concern may be assuaged by careful consideration of exactly what benefit-sharing agreements are about. What counts as a fair price for access to a region’s genetic resources should be judged by the expected ex ante value of the resources.36 Now, the price might be paid upfront, or it might be offered as a pre-determined fraction of the ex post value. But either way, it can only be judged fair or unfair in terms of the ex ante benefits—there is no sense to saying that an agreement turned out to be unfair after the fact.37 This means that the extent to which benefit sharing should include additional communities depends on the extent to which the total genetic resources of the two communities are expected to overlap, not on whether they turn out to share some particular valuable species after the fact. Thus adjacent communities living in the same eco-system can reasonably demand that the benefits from exploiting that eco-system should be shared; communities who have just a few species in common will have nowhere near as strong a claim.38

6. The justification of property rights

The argument so far has been in support of a conditional: if members of a community have legitimate property rights over an area of biodiversity, then these rights are collective with regard to the genetic resources that area provides, the community as a whole deserves a fair share of the benefits resulting from use of the genetic resources, and the benefits to the community should be shared equally among the property holders. But nothing has yet been said in support of the antecedent claim that the members of indigenous communities actually have legitimate property rights.39 In this section I argue that there are likely to be reasons of distributive justice for attributing such rights to them.

To many people this argument may seem otiose. It may appear obvious that communities have legitimate property rights over the land they have historically inhabited. To question this would be hypocritical, given that members of the dominant groups of contemporary nation states frequently have legal property rights simply in virtue of their de facto control of land (by them or their ancestors). We should not hold indigenous people to a different standard than other land-users. While I am sympathetic to this line of thought, however, it will prove helpful to see how rights over valuable land may ultimately be morally justified.

Providing a moral justification for indigenous people’s property rights over areas of biodiversity is not straightforward. There are three standard ways to justify the assignment or acquisition of property rights: labor, personality, and instrumental accounts.40 Labor- and personality-based accounts both require that the people who acquire the property rights have transformed the property in some way. For example, John Locke’s labor theory requires that one have worked on an object in order to acquire initial property rights over it.41 These two types of account will therefore not normally apply to communities with regard to their biodiversity, which is the product (for the most part) of evolution by natural selection.42 The mere occupation of an area of land does not give someone property rights over it, according to these theories, even if she was there first.

Instrumental accounts justify property rights in virtue of the socially beneficial consequences of having the rights assigned in a particular way. It is possible that instrumental reasons could be given for assigning property rights to people occupying areas of biodiversity. Part of the purpose of the CBD is the conservation of biodiversity.43 Giving people who live in areas of biodiversity some economic interest in it can promote that goal, if they can best gain economically by conserving it. However, this instrumental justification alone cannot explain why indigenous people should have control over areas of biodiversity (rather than just payment for not damaging it). Neither does it explain our intuition that there is an issue of justice here: the holders of genetic resources deserve compensation, it is not merely that paying them is a good way to motivate conservation. However, that intuition can be explained, and the property rights justified, if they are viewed instead as instrumental to achieving distributive justice.

Over the last decade or so, political philosophers have become increasingly concerned with questions of global justice. Where once the requirements of justice were considered to end at the borders of the nation state, now the world community is seen as a possible subject of justice-related demands. In part, this is because the political and economic connections between states have been acknowledged. The policies of one state, and the actions of its citizens, affect the citizens of other states.44 But the concern with global justice stems also from widespread acknowledgement of the massive and preventable disparities in wealth between people in different countries. For example, it seems horribly unfair that 2.6 billion people live on less than two dollars a day,45 while the ten richest people have a net worth of $253 billion.46

Theories of justice disagree about how property should be distributed and re-distributed. However, it is hard to see how any serious theory could endorse the present global disparities: justice requires treating people as equals,47 but if some people are born into such extreme poverty that they have no way to escape it, they are scarcely treated equally with people who happen to be born into wealthy societies.48 We cannot hold the global poor responsible for their situation, we cannot claim that they have (or had) the same opportunities as wealthier people, and the unsavory historical events that led to present disparities give no reason to think that they result from fair transactions.49

However, it is one thing to acknowledge global injustice and another to act upon it. Political realities make a wholesale redistribution of resources unlikely. The best thing for a supporter of global justice to do may therefore be to support piecemeal changes that bring the world closer to justice. This may include supporting policies which are expected to improve the distribution of resources. One, I now argue, would be a policy of benefit sharing.

Many indigenous peoples, in both developed and developing countries, are relatively and absolutely very poor. This makes them excellent candidates for a justice based redistribution of resources in their favor. Given the global inequalities in wealth, we should expect the additional resources they deserve to be quite substantial. In particular, the value of the resources they are deserve is likely to exceed the ex ante value of the land they currently occupy. This means that there is good reason for such people to at least be given property rights over that land,50 with all that this implies regarding the ownership of genetic resources.51 Doing so would bring them closer to the situation they ought to be in.

Benefit sharing arrangements are one acknowledgement of people’s rights over the land they occupy. As the CBD and actual benefit-sharing agreements show, they are also politically practical. This gives the supporter of global justice reason to support benefit sharing agreements and the policies that facilitate them.

However, though considerations of justice give us reason to support benefit sharing agreements, we should bear in mind that these agreements are not equivalent to, nor sufficient for, justice. This has two important implications. First, the resources expended by third parties on facilitating fair benefit sharing agreements should be balanced against other uses of resources to promote global justice. We should, for example, be just as concerned to find mechanisms that help impoverished people who do not live in areas of scientifically valuable biodiversity, including by supporting their claims to land rights. Second, we should not be as concerned about the property rights over genetic resources of people whose present situation is not unjust. Indigenous people’s property rights over genetic resources, and the claims to benefit sharing that they warrant, are just a means to a distinct moral goal.

7. Traditional knowledge

For simplicity, I have focused on benefit-sharing where members of a community contribute only permission to access their genetic resources. A separate, though related, question is how to compensate a community whose knowledge helps with the bio-prospecting enterprise. For example, villagers in Samoa have a benefit-sharing agreement with US-based research institutions for shares of royalties from the use of prostratin, an anti-viral chemical derived from the bark of the native mamala tree (Homalanthus nutans).52 Their claim to compensation was thought to derive not just from their occupation of land containing the plant, but from their healers’ prior knowledge of mamala’s curative properties. In this section I suggest how parallel arguments to those concerning access to genetic resources could be developed to support the legal protection of traditional knowledge.

As I noted in Section 1, traditional knowledge frequently fails to meet the criteria for intellectual property on the standard justifications given in the Western tradition. As traditional knowledge it is not the product of work done by the people who possess it and, where it is already public among them, incentives are not required for its creation or dissemination.53 (I consider the case where the latter condition does not hold presently.) However, the knowledge may be valuable: information about the pharmaceutical properties of local organisms can help to direct research and thereby cut down considerably on the time and resources needed to find valuable chemical compounds.

Thus, normal IPR justifications do not apply, the knowledge has commercial value, and once someone with the resources to commercialize it acquires the knowledge, its possession by community members will lose this value. This implies that we are in a situation analogous to the case of access to genetic resources. Similar considerations of justice may justify sharing the benefits from using traditional knowledge with the communities who possess it. Again, we should judge a policy of ascribing rights over traditional knowledge according to whether it would promote independent goals of global justice. Regarding the nature of these property rights, if the knowledge is shared in the community, then whatever rights community members have over it should be collective, since the value of the knowledge is not increased by the existence of multiple tokens of it. And we may infer the same corollary: that benefits from the knowledge should be distributed equally among its holders. Finally, knowledge about the pharmaceutical properties of organisms may be spread across a number of communities. The use of that knowledge confers an obligation to share benefits with all who possess it. However, as the knowledge is shared with more people, it will become closer to simple common knowledge, compensation for which is unnecessary.54

It is worth noting that in the case of traditional knowledge, unlike with possession of genetic resources, there are sometimes specialists within a community (such as healers) who have privileged access to the knowledge. Thus it may not be public. This may change the details of the conclusions we draw regarding compensation for its use. If, say, traditional healers have invested work into learning their craft, or if incentives are required in order for that craft to be maintained in the culture, then a greater share of benefits might legitimately be claimed by these individuals. Fair benefit sharing agreements will need to take such details into account.55

8. Conclusions

I have argued for a conditional: if members of a community have legitimate property rights over areas of biodiversity or their knowledge about that diversity, then these rights are collective with regard to access to genetic resources or the use of traditional knowledge, the community as a whole deserves a fair share of the benefits of bio-prospecting, and the benefits to the community should be shared equally among the rights holders. Further, I suggested that there are reasons of distributive justice for regarding the members of indigenous communities as having such legitimate property rights. These conclusions comprise a defence of benefit-sharing from within a Western understanding of property and justice that is sometimes supposed to be antithetical to indigenous people’s claims.

Naturally, my conclusions are not sufficient to specify how benefits should be shared in particular cases. This is for two reasons. First, other moral considerations may make a difference. For example, if community members are employed (e.g. as technicians), then they may deserve special compensation for their work. Second, the details of particular bio-prospecting projects are important. For example, the parties involved in bio-prospecting, the nature of the benefits that are expected to be generated, and the involvement of the local communities will all vary from case to case. Nevertheless, the arguments I have given may help to both guide and justify current practice. For instance, they show why unanimous community agreement to bio-prospecting is unnecessary, they isolate the moral factors relevant to how the benefits of bio-prospecting should be shared, and they justify focusing on development when deciding where resources should be used to facilitate bio-prospecting with benefit sharing.56

References

  • 1.Reid WR, et al. Biodiversity Prospecting: Using Genetic Resources for Sustainable Development. Washington, DC: World Resources Institute; 1993. Cf. [Google Scholar]
  • 2.Beattie AJ, et al. Chapter 10: New Products and Industries from Biodiversity in Millennium Ecosystem Assessment. [Accessed 24 September 2009];Ecosystems and Human Well-being: Current State and Trends. 2005 :271–295. (Available at: http://www.millenniumassessment.org/en/Condition.aspx.) [Google Scholar]
  • 3.My summary here draws on Wynberg R. Rhetoric, Realism and Benefit Sharing: Use of Traditional Knowledge of Hoodia Species in the Development of an Appetite Suppressant. Journal of World Intellectual Property. 2004;7(6):851–876.
  • 4. [Accessed 8 August 2007];Convention on Biological Diversity. 1992 Jun 5; Available at http://www.cbd.int/convention/convention.shtml. Article 1. [Google Scholar]
  • 5.Seven such groups—each a public-private partnership that includes a developing country organization—are currently operating in different regions of the developing world. They seek to promote the three goals of improving human health, promoting scientific and economic activity in developing countries, and conserving biological diversity in a mutually reinforcing way ( Rosenthal J, et al. Combining High Risk Science with Ambitious Social and Economic Goals. Pharmaceutical Biology. 1999;37(Supplement):7. ).
  • 6.Cf. CBD, Article 8 (j).
  • 7.By “Western” here I refer to philosophical views now dominant in Anglo-American moral, political, and economic thought, which trace their roots back to the ancient greeks through thinkers such as John Stuart Mill and John Locke.
  • 8.For an example of an actual benefit sharing agreement see Soejarto DD. The UIC ICBG (University of Illinois at Chicago International Cooperative Biodiversity Group) Memorandum of Agreement: A Model of Benefit-Sharing Arrangement in Natural Products Drug Discovery and Development. J. Nat. Prod. 2004;67:294–299. doi: 10.1021/np0304363.
  • 9.The actual amount of such benefits is a matter of debate. Though many important medicines are derived from natural products ( Tan G, et al. Biodiversity as a Source of Anticancer Drugs. Current Drug Targets. 2006;(7):265–277. doi: 10.2174/138945006776054942. ), it is very rare that a natural chemical compound is useful enough to be brought to market (Rosenthal et al. 1999: 7).
  • 10.See, e.g., Bijoy CR. Access and Benefit Sharing from the Indigenous Peoples’ Perspective: The TBGRI-Kani ‘Model’. Law, Environment and Development Journal. 2007;(3/1):18.
  • 11.For a useful summary of the internal structure of rights see Sumner W. The Moral Foundation of Rights. Ch. 2. Oxford: Clarendon Press; 1987.
  • 12.Waldron J. Zalta EN, editor. Property. The Stanford Encyclopedia of Philosophy (Fall 2004 Edition) See URL = < http://plato.stanford.edu/archives/fall2004/entries/property/>. [Google Scholar]
  • 13.See Land Reform (Scotland) Act 2003.
  • 14.Thus I assume in what follows that indigenous people have legitimate property rights over the land they inhabit, despite the fact that these rights are frequently not acknowledged in law or the laws that should establish them are not honored (see, e.g., Bijoy 2007).
  • 15.This is a simplification in at least three respects. First, there may be significant genetic variation within a species. Second, a substantial number of samples might be needed for the various possible tests of their chemical properties. Third, the same biological sample may be re-screened for new compounds and properties of interest as new tests are developed. The essential point remains, however, that additional samples of a species contain rapidly diminishing amounts of extra genetic information about that species.
  • 16.There may be cases where someone has the right to impose costs on others. I consider an objection like this in Section 3.3.
  • 17.I have assumed that states can have legitimate authority over their citizens. In the same way, more local governments can legitimately represent their subjects, including by wielding collective rights. Were this false (as is claimed by anarchists, for example), then the consent of all members of a community would indeed be needed.
  • 18.Secretariat of the Convention on Biological Diversity (2008) Access and Benefit-Sharing in Practice: Trends in Partnerships Across Sectors. Montreal, Technical Series No.38: 82. [Google Scholar]
  • 19.Mill J. On Liberty. London: Longman, Roberts & Green; 1869. pp. 169–171. Cf. [Google Scholar]
  • 20.It might be thought that the principle applies only when the person affecting another’s interests has no right to do so. But this would put the cart before the horse: we are trying to work out who has the right to do what.
  • 21.Sen A. Development as Freedom. New York: Anchor Books; 1999. pp. 112–119. [Google Scholar]
  • 22.Farmers’ subsidies provide an example of how increasing supply can give legitimate cause for complaint. The European Union massively subsidizes its farmers so that they can produce food at artificially low costs. When a subsidized foodstuff is put on the market, it increases supply and reduces the price of the foodstuff. For farmers outside of the EU, in the developing world, this can render farming uneconomical. In this case, freedom is not enhanced: at best the European farmers have more options they can exercise and the farmers who now lack a market have fewer. Furthermore, the market is not well-functioning: the subsidies decrease the efficiency of the agricultural sector overall. In this case, therefore, a farmer whose prices have collapsed as a result of food-dumping has good reason to complain. (See, e.g., Oxfam Briefing Paper, ‘Stop the Dumping! How EU agricultural subsidies are damaging livelihoods in the developing world (2001). Available at http://www.globalpolicy.org/socecon/trade/subsidies/2002/10stopdumping.pdf)
  • 23.Thus, we assume that all the other parties to the transaction are being treated justly and then consider what else is needed to treat the holders of the genetic resources justly, too.
  • 24.This is helpful because of the difficulties involved in comparing different desert bases. To see this difficulty, consider how we should divide a social surplus between a machine-worker and the owner of the machine. The machine-owner may claim that the value of labor is given by its market price and so that is what the worker deserves. The worker may claim instead that reward should be proportionate to effort and so she deserves the majority of the surplus.
  • 25.Wertheimer A. Exploitation. Princeton, NJ: Princeton University Press; 1999. pp. 230–236. Compare. [Google Scholar]
  • 26.Wertheimer 1999, Chapter 7; cf. Daniels N, Sabin JE. Setting Limits Fairly: Can We Learn To Share Medical Resources? Oxford; New York: Oxford University Press; 2002.
  • 27.Wertheimer 1999: 10.
  • 28.BILL OF LAW No. 306/95 (Draft) translated by Vanira Tavares. [Accessed 28 September 2009]; (Available at: http://www.lclark.edu/law/clinics/international_environmental_law_project/brazil_genetic.php). [Google Scholar]
  • 29.For details see Berlin B, Berlin EA. Community Autonomy and the Maya ICBG Project in Chiapas, Mexico: How A Bioprospecting Project That Should Have Succeeded Failed. Human Organization. 2004;63(4):472–486.
  • 30.Thanks to an anonymous reviewer for the Hastings Center Report for encouraging me to address the issue of governance.
  • 31.Note that this conclusion applies to what people deserve because they have legitimate property rights over an area of biodiversity. It does not exclude the possibility that further redistribution of benefits might be required, e.g., for reasons of distributive justice.
  • 32.Anuradha RV. Sharing with the Kanis: A Case Study from Kerala, India. New Delhi: Kalpvriksha Mimeo; 1998. [Accessed 28 September 2009]. (Available at: https://www.cbd.int/doc/case-studies/abs/cs-abs-kanis.pdf.) [Google Scholar]
  • 33.Anuradha op. cit. p.10–11.
  • 34.For example, the San of South Africa are not the only group to claim traditional use of hoodia. San communities exist in Namibia and Botswana, and other non-San tribes use the plant. (Wynberg op cit. p. 852–3.)
  • 35.With regard to this concern, it is unfortunate that the CBD gives nation states sovereign rights over their biological resources (CBD, Preamble and Article 15.1). We must hope that where the biological resources of different countries overlap, this will engender cooperation, not competition.
  • 36.That is, the expected sum of: the probabilities of the various outcomes of bio-prospecting multiplied by their values.
  • 37.An analogy may help. Suppose you and I together win a bottle of wine at a bridge tournament. Living at a distance from each other, we cannot share it, so we toss a coin to decide who gets it. This is a fair arrangement, since the expected benefit for each of us is the same—half a bottle of wine. The fact that after the coin toss one of us will have a full bottle of wine and the other will have nothing does not impact the fairness of the agreement. (A biased coin, on the other hand, would make that agreement unfair, precisely because it would change the distribution of expected benefits.)
  • 38.There is a separate question concerning whether the benefits that should be given to communities living in areas of biodiversity should be calculated as a share of the ex ante (i.e. expected) value of the resources, or of the ex post value that the resources turn out to have. For example, is it preferable for a community to have fixed milestone payments made to them as a research project progresses, or to be given a chance to receive a potentially lucrative share of the royalties on an eventual product? In the abstract, it seems to me, the parties to benefit-sharing agreements should be free to negotiate for ex ante benefits, ex post benefits, or some mix of the two. There do not seem to be considerations of fairness that indicate that one arrangement is preferable. In practice, however, there are good reasons for benefit-sharing arrangements to include at least some ex ante benefits for communities. For any particular bio-prospecting scheme, the probability of a product being brought to market is quite low. Even if there are profitable products it will be a long time before they reach the market. But the communities with which we are most concerned have immediate needs. Consequently, immediate and certain benefits are in their interests. (Cf. Rosenthal J. Equitable Sharing of Biodiversity Benefits: Agreements on Genetic Resources; Investing In Biological Diversity: Proceedings of the Cairns Conference, OECD; 1997. .)
  • 39.Legally, this may vary between communities. As far as access to genetic resources is concerned, the CBD grants control over genetic resources to national governments. However, I am concerned with the moral justification of property rights, which is what determines the moral justification for benefit sharing. For a summary of the current legal situation see Gepts P. Who Owns Biodiversity, and How Should the Owners Be Compensated? Plant Physiology. 2004;134:1295–1307. doi: 10.1104/pp.103.038885.
  • 40.Waldron (2004).
  • 41.Locke J. Book II, Chapter 5: Of Property. London: Printed for C. and J. Rivington; 1824. Two Treatises of Government; pp. 144–159. [Google Scholar]
  • 42.It might be argued that the property rights are justified because the property has been inherited by the community members from ancestors who legitimately acquired it through one of these two methods. However, the legitimacy of such transfers is unclear. It may seem unjust, for example, for the actions of long-dead individuals to govern the property rights of living individuals, given how important property is to the welfare of the living. Moreover, in most of the cases in which we are interested the ancestors will not have performed the actions necessary for acquiring property rights according to these two theories, either. Areas of high biodiversity are normally the product of long periods of evolution by natural selection, rather than human labor (though see Head L. Second Nature: The History and Implications of Australia as Aboriginal Landscape. New York: Syracuse University Press; 2000. on the relationship between Australian indigenous people and the evolution of their biological environment). Lockean theories of property acquisition are always vulnerable to the objection that they may at most justify rights over the extra value contributed to a resource by a person’s labor, not rights over the whole resource. These objections are particularly powerful in cases like this where none of the value seems to come from human intervention. It therefore looks like a high burden of proof rests with proponents of the inheritance claim.
  • 43.CBD, Article 1.
  • 44.We can see this clearly, for example, with the World Trade Organization (WTO), whose agreements constrain national laws and are the result of negotiations between the WTO’s 151 member states.
  • 45.Latest World Bank figures for 2004. [Accessed 10 August 2007]; Available at http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:21299914~pagePK:64257043~piPK:437376~theSitePK:4607,00.html. [Google Scholar]
  • 46.Forbes estimates for 2004. Available at http://www.forbes.com/2004/02/25/bill04land.html. Accessed 10 August 2007. The two figures are not straightforwardly comparable, since the World Bank figures actually refer to 1993 purchasing power parity (PPP) dollars, i.e. 2.6 million people live on less than $2 a day could buy in the US in 1993 (judged by the cost of a standard basket of goods and services). However, the stark contrast should be clear.
  • 47.Kymlicka W. Contemporary Political Philosophy: An Introduction. 2. Oxford: Oxford University Press; 2002. pp. 3–5. [Google Scholar]
  • 48.Sreenivasan G. International Justice and Health: A Proposal. Ethics and International Affairs. 2002;16(2):81–82. doi: 10.1111/j.1747-7093.2002.tb00399.x. Compare. [DOI] [PubMed] [Google Scholar]
  • 49.Cf. Pogge T. World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms. Cambridge: Polity Press; 2002. pp. 203–204. A libertarian might think of the distributive requirements I mention as really being a form of rectification for past unjust transactions (see Nozick R. Anarchy, State, and Utopia. New York: Basic Books; pp. 152–153.pp. 230–231. ).
  • 50.There are at least two reasons for thinking that people should, ceteris paribus, be given property rights over the land they currently occupy rather than some other, equally valuable, property. First, there are substantial costs associated with moving people around. Second, all else being equal, people are likely to gain more utility from occupying their present land than some property which does not have significance for them. Recall, also, the assumption from Section 2 that there are not other groups who have legitimate claims to the land occupied by people living in areas of high biodiversity.
  • 51.An additional consideration of fairness is worth noting. The poverty of people in many countries in the world can be traced (in part) to the unjust actions of others, including the ancestors of people currently living in the developed world. These people frequently asserted legal property rights on the basis of de facto control. It would therefore be hypocritical, to say the least, to deny the members of poor communities property rights over the land they occupy, while preserving the property rights of the rich.
  • 52.Vastag B. Traditional medicine, novel partnership. The New Scientist. 2006 Oct 28;192(2575):54–55. [Google Scholar]
  • 53.Compare Section 6.
  • 54.Berlin B, Berlin EA. Commentary 1.1: Private and Public Knowledge in the Debate on Bioprospecting: Implications for Local Communities and Prior Informed Consent. In: Lavery J, et al., editors. Ethical Issues in International Biomedical Research: A Casebook. Oxford; New York: Oxford University Press; 2007. pp. 29–30. Cf. [Google Scholar]
  • 55.My thanks to Joshua Rosenthal for this point.
  • 56.Thanks to Reidar Lie, Joshua Rosenthal, and the editorial committee at the Hastings Center Report for helpful comments on earlier drafts of this paper.

RESOURCES