The search for valuable new products from among the world’s stock of natural biological resources
is mostly carried out by people from wealthy countries, and mostly takes place in developing countries that
lack the research capacity to profit from it. Surely, the indigenous people should receive some compensation
from it. But we must build a robust defense for this intuition, rooted in the Western moral traditions that are
widely accepted in wealthy countries, if we are to put it into practice and enforce it.
Bioprospecting—the search for valuable chemi- Consider the famous Hoodia case.2For millennia,
cal products in natural biological resources—
the San people of southern Africa have used native
is an important source of novel chemical and
plants of the Hoodia genus as appetite suppressants.
biological products with potential uses in medicine,
Their practice was documented by colonial
agriculture, and other industries.1 But a great deal of
botanists, and Hoodia’s properties were then investi-
the world’s “biodiversity” is found in developing
gated in the late twentieth century by the South
countries, which often lack the research capacity to
African Council for Scientific and Industrial Re-
make use of it. Bioprospecting in such environments
search, which attempted to isolate the active ingredi-
generally requires outside bioprospectors and spon-
ents. In 1995, following nine years of development,
sors from the developed world. This has led to con-
CSIR applied for a patent on the chemical compo-
cern that bioprospectors will take what is valuable
nents of the plant that suppressed appetite. Three
without compensating the community from which
years later, they signed a licensing agreement with a
the samples come or whose knowledge led to the dis-
private company named Phytopharm that developed
covery. Critics label such practices “biopiracy.”
a program with Pfizer for commercialization ofHoodia products for the lucrative Western weight
Joseph Millum, “How Should the Benefits of Bioprospecting Be
loss market. All this research and development pro-
Shared?” Hastings Center Report 40, no. 1 (2010): 24-33.
ceeded without the knowledge of the San. Only in
24 H A S T I N G S C E N T E R R E P O RT
tional knowledge also seems strange.
Compensation is required even when
benefit from Hoodia’s commercializa-
benefit from Hoodia’s development.
biodiversity are justified is clearly cru-
need to encourage people to reveal it.
signatories, requires the “fair and eq-
uitable sharing of the benefits arisingout of the utilization of genetic re-
IF MEMBERS OF A community have morally justified
sources.”3 However, the ethical justifi-cations for such sharing have not been
property rights over areas of biological diversity, then their
established, beyond appeals to intu-itions about justice and exploitation.
rights over access to genetic resources within these areas should
Consequently, what share of benefitsis owed—and to whom—is also un-
be considered collective rights. Consequently, the community
as a whole is the appropriate party for bioprospecting
prospecting consistent with the Con-vention on Biological Diversity is
negotiations, and its shares of benefits should be apportioned
found in the benefit-sharing arrange-ments of the U.S.-sponsored Interna-
tional Cooperative BiodiversityGroups, or ICBGs.4 These arrange-ments specify, first, that benefit-shar-
ments apply to traditional knowledge.
Until then, for the sake of simplicity, I
to genetic resources and for the use of
physical access to genetic resources.
fit-sharing. If the only available justi-
coveries.7 I also treat these benefits as
limits). In this case, for example, indi-
should be considered collective rights.
ers, even if her other rights over that
the group as a whole. Common prop-
erty is open to use by all, so long as no
fied, I will speak of legitimate proper-
In working out how to share the to be governed by individual property Suppose that the forest is individu-
and so the same genetic information.
therefore equally valuable. Call this exante value v. But then suppose some
fair, will give v to P. Those parts of the
be valuable (that have ex post value)
What rights might be held? Within
lieved to be collective. But is this belief
Why property rights in biodiversity should be held collectively. It will help
than v. Similar reasoning applies if
mon. Individual property is held ex-
clusively by one person. Collective
terests of all those subject to them.
an analysis of Natura’s access and ben-
value of other individuals’ timber: its
ular government actions or policies.
licity) of that information by one per-son reduces the value of the same in-formation held by others. By selling
IN PRACTICE, IT may be difficult to find legitimate
access to her biodiversity, P imposes acost on the other members of her
decision-makers for indigenous communities living in areas of
community. But, all else being equal,if I impose a cost on someone with-
biodiversity. The national government might not represent
out her consent, then I owe her com-pensation. Indeed, I owe at least the
fully these communities’ interests, making negotiation with
value of the cost I imposed. This im-plies that the benefits of selling access
other local parties necessary. Although individuals should not
should be distributed among all thepeople who have legitimate property
be able to make independent decisions about bioprospecting,
appropriate community representatives can do so.
imposed on nonconsenting others ex-plains why the benefits of selling ac-
Apparent counterexamples. I have
by reduced the value of your property. prima facie and all-things-considered
is, what counts as a fair share of ben-
change one’s possessions is an intrinsi-
sources, which is a capital investment.
ing to specify a principle of fairness.21
lead to unfair divisions of benefits.
er, the fact that coercion is involved is
of surplus value ought to favor the co-
reflect the value of the resource only if
(Trichopus zeylanicus travancoricus), a
sure that the transaction is fair, and so
will produce a fair outcome only if wecompensate for distorting factors
IF I SELL GENETIC information, the reason that
such as the lack of relevant informa-tion or expertise, and the exercise of
information drops in value is not a decrease in demand relative
morally irrelevant power differences. Those negotiating bioprospecting
to supply, but the fact that after one individual has sold the
arrangements should either minimizethese factors or aim for the result that
information, there is no more information to be sold. Thus,
they judge would be reached withoutthem.
allowing the first seller to take all of the payment does not
seem to benefit society in the same way.
fair share of benefits. In practice, theyare likely to be taken into accountonly if a system of governance is in
from it, such as the Bonn Guidelineson Access to Genetic Resources and Fairand Equitable Sharing of the BenefitsArising Out of Their Utilization, as
sponsors to conform to best practice.
erty in the areas of biodiversity.26 This
pected ex ante value of the resources.30
determined fraction of the ex post
fair or unfair only in terms of the ex
nous people should have control over
ante benefits—there is no sense to
ply by paying them not to damage it.
that there is an issue of justice here—
deserve compensation, and that pay-
cide who gets it. This is a fair arrange-
toss, one of us will have a full bottle of
The argument so far has been in Instrumental accounts justify the present global disparities: justice
the rights assigned in a particular way.
the Western tradition. As traditional
ical realities make a wholesale redistri-
whose present situation is not unjust.
pected to improve the distribution ofresources. One, I now argue, would
THE INTUITION THAT there is an issue of justice
here—that the holders of genetic resources deserve
developed and developing countries,are relatively and absolutely very
compensation—can be explained, and their property rights
poor. This makes them excellent can-didates for a justice-based redistribu-
justified, if these rights are viewed as instrumental in achieving
tion of resources in their favor. Giventhe global inequalities in wealth, we
distributive justice. Giving indigenous peoples at least
should expect the additional re-sources they deserve to be quite sub-
property rights over the land they occupy would bring them
stantial. In particular, the value of theresources they deserve is likely to ex-
closer to the situation they ought to be in. Benefit-sharing
ceed the ex ante value of the land theyoccupy. This means that there is good
arrangements are one acknowledgment of these rights.
reason for such people to at least begiven property rights over that land,with all that this implies regarding the
nomic Goals,” Pharmaceutical Biology 37,
ICBG (University of Illinois at Chicago In-
Model of Benefit-Sharing Arrangement inNatural Products Drug Discovery and De-
velopment,” Journal of Natural Products 67
share benefits with all who possess it.
bate. Many important medicines are derived
from natural products; G. Tan et al., “Biodi-
versity as a Source of Anticancer Drugs,”Current Drug Targets 7, no. 3 (2006): 265-
77. Nonetheless, it is very rare for a natural
“Combining High Risk Science with Ambi-
tious Social and Economic Goals,” 7.
8. See C.R. Bijoy, “Access and Benefit-
Hastings Center Report for helpful com-
Sharing from the Indigenous Peoples’ Per-
ments on earlier drafts of this paper.
spective: The TBGRI-Kani ‘Model,’” Law,Environment and Development Journal 3, no.
9. See W. Sumner, The Moral Foundationof Rights (Oxford, U.K.: Clarendon Press,
thor’s own. They do not reflect any po-
work into learning their craft, or if in-
10. See J. Waldron, “Property,” The Stan-ford Encyclopedia of Philosophy, fall 2004 edi-
tion, ed. E.N. Zalta; http://plato.stanford
legitimate property rights over the land they
inhabit, although frequently, either these
1. See W.R. Reid et al., Biodiversity
rights are not acknowledged in law, or the
Prospecting: Using Genetic Resources for Sus-
laws that should establish them are not hon-
tainable Development (Washington, D.C.:
World Resources Institute, 1993); A.J. Beat-
12. This is a simplification. In fact, there
tie et al., “New Products and Industriesfrom Biodiversity Millennium Ecosystem
can be significant genetic variation within a
Assessment,” in Ecosystems and Human Well-
Ihave sought to defend benefit-shar- Being: Current State and Trends (Washing- run different tests, and sometimes the same
ton, D.C.: Island Press, 2005), 271-95.
biological sample can be rescreened for newcompounds and properties of interest as
new tests are developed. The essential point
berg, “Rhetoric, Realism and Benefit-Shar-
is that additional samples of a species con-
ical to indigenous people’s claims.
ing: Use of Traditional Knowledge of Hood-
tain rapidly diminishing amounts of extra
ia Species in the Development of an Ap-
genetic information about that species.
petite Suppressant,” Journal of World Intel-lectual Property 7, no. 6 (2004): 851-76.
legitimate authority over their citizens. Sim-
ilarly, local governments can legitimately
Article 1, June 5, 1992; http://www.cbd.int
represent their subjects, including by wield-
considerations may make a difference.
4. Seven such groups—each a public-pri-
14. S. Laird, “Natura, Brazil: The Use of
vate partnership that includes a developing
country organization—are currently operat-
Based Sourcing of ‘Biological Materials’ in
ing in different regions of the developing
the Personal Care and Cosmetics Sector,” in
world. They promote the three goals of im-
Access and Benefit-Sharing in Practice: Trends
proving human health, promoting scientific
in Partnerships Across Sectors (Montreal,
and economic activity in developing coun-
tries, and conserving biological diversity. J.
32 H A S T I N G S C E N T E R R E P O RT
ed?” Plant Physiology 134 (2004): 1295-
applies only when the person affecting an-
other’s interests has no right to do so. But
property rights over an area of biodiversity.
this would put the cart before the horse: we
Further redistribution of benefits might be
34. J. Locke, Two Treatises of Government,
are trying to work out who has the right to
required by, for example, distributive jus-
book II (London, U.K.: Printed for C. and
16. A. Sen, Development as Freedom,
(New York: Anchor Books, 1999), 112-19.
Kanis: A Case Study from Kerala, India,”
rights are justified because the property has
17. Farmers’ subsidies provide an exam-
Convention on Biological Diversity, Biolog-
ple of how increasing supply can give legiti-
from ancestors who legitimately acquired it
Union massively subsidizes its farmers so
er, the legitimacy of such transfers is unclear.
that they can produce food at artificially low
It may seem unjust for the actions of long-
costs. When a subsidized foodstuff is put on
are not the only group to claim traditional
the market, it increases supply and reduces
use of Hoodia. San communities exist in
the price of the foodstuff. For farmers out-
event, the ancestors will often not have per-
side of the Union, in the developing world,
tribes use the plant; Wynberg, “Rhetoric,
formed the actions necessary for acquiring
Realism and Benefit-Sharing,” 852-53.
property rights according to these two theo-
this case, freedom is not enhanced: at best
vention on Biological Diversity gives na-
they can exercise, and the farmers who now
tions sovereign rights over their biological
lack a market have fewer. Furthermore, the
resources (see Preamble and Article 15.1).
market is not functioning well: the subsidies
We must hope that where the biological re-
decrease the efficiency of the agricultural
below 1 Billion, Says World Bank,” http:
sources of different countries overlap, this
sector overall. See Oxfam Briefing Paper,
will engender cooperation, not competition.
Subsidies Are Damaging Livelihoods in the
of a series of products—the probabilities of
efits given to communities living in areas of
parties to the transaction are being treated
39. W. Kymlicka, Contemporary Political
fairly and then consider what else is needed
Philosophy: An Introduction, second ed. (Ox-
sources’ ex ante value or on their ex post
to treat the holders of the genetic resources
ford, U.K.: Oxford University Press, 2002),
value. For example, should a community re-
ceive fixed milestone payments as a research
different grounds for establishing desert is
chance to receive a potentially lucrative
Justice and Health: A Proposal,” Ethics and
difficult. Consider how we should divide a
share of the royalties on an eventual prod-
International Affairs 16, no. 2 (2002): 81-
uct? In the abstract, it seems to me, the par-
and the owner of the machine. The machine
ties to benefit-sharing agreements should be
41. See T. Pogge, World Poverty and
free to negotiate for ex ante benefits, ex postHuman Rights: Cosmopolitan Responsibilities
serves should be determined by the market
benefits, or a mix of the two. In practice,
and Reforms (Cambridge, U.K.: Polity Press,
price value of the labor, while the worker
2002), 203-4. A libertarian might think of
claims that she deserves the majority of the
least some ex ante benefits. Any given bio-
the distributive requirements I mention as
prospecting venture is unlikely to produce
rectification for past unjust transactions; see
profitable products, and any products will
R. Nozick, Anarchy, State, and Utopia (New
20. See A. Wertheimer, Exploitation
take a long time to get to the market. But
York: Basic Books, 1974), 152-53 and 230-
(Princeton, N.J.: Princeton University Press,
many communities have immediate needs.
Consequently, immediate and certain bene-
fits are in their interests. See J. Rosenthal,
some other, equally valuable property, but
“Equitable Sharing of Biodiversity Benefits:
Agreements on Genetic Resources,” in In-
property is less likely to be useful to people.
23. Bill of Law No. 306/95 (Draft), tr. V. vesting In Biological Diversity: Proceedings of
the Cairns Conference, Organisation for Eco-
Novel Partnership,” The New Scientist (Oc-
ject/brazil_genetic.php, accessed September
44. See. B. Berlin and E.A. Berlin, “Pri-
24. For details, see B. Berlin and E.A.
on Bioprospecting: Implications for Local
Diversity grants control over genetic re-
sources to national governments. However,
sent,” in Ethical Issues in International Bio-
I am concerned with the moral justification
Have Succeeded Failed,” Human Organiza-medical Research: A Casebook, ed. J. Lavery
of property rights, which is what determines
tion 63, no. 4 (2004): 472-86.
the moral justification for benefit-sharing.
See P. Gepts, “Who Owns Biodiversity, and
for the Hastings Center Report for pressing
Start Thinking About Reducing Secondhand Smoke! Issue Twelve Back to school with Update from the national STARSS community Linda in New Brunswick reported that the Family Wellness Challenge was a Because school-aged success, and she hopes to continue it on an annual basis. STARSS fit into children are headed to the healthy environments piece of the event ver