Where the murkiness of biopiracy as a general matter leaves little room for legal theory to anchor, the relative clarity of specific instances of biopiracy may provide sufficient factual information from which to develop appropriate legal theories. In particular, the way biopiracy has been used to misappropriate the traditional knowledge (TK) of the Shuar Nation of Ecuador suggests that there may be legal theories for which the process of misappropriation may give rise to liability under international law as well as under developments in the domestic laws of the United States and Ecuador. The possible efficacy and legal coherence of any such theory are dependent upon an understanding of the background of the problem of biopiracy, the general and specific methods used by biopirates, and a clarification of the nature of the interests in question as misappropriated property.
Part II of this Article provides an outline of the importance of biodiversity and TK for medical and pharmaceutical interests and develops a generic model of bioprospecting, which has been used as a cover for acts of biopiracy. The model is drawn from general experience as well as the specific facts in our possession. This section then details how the bioprospecting and biopiracy process actually works in practice, including an outline of the operations of biopiracy in the specific case of the Shuar.
Part III raises the proposition-widely accepted as conventional wisdom-that indigenous societies have no legally recognizable concept of property and a fortiori cannot have a notion of TK as a property value. This section then addresses the ensuing question of whether TK has the requisite qualities to be considered protectable property at all, and proposes the central principle that indigenous people indeed have concepts of property well recognized in contemporary analytical jurisprudence. Moreover, this section suggests that these same insights are firmly established in legal anthropology as well as in conventional jurisprudence. Finally, the section deals specifically with TK as property, contained within the secretive Shaman tradition of the Amazon Rain Forest, recognizing that it is because the Shaman TK was held to be a secret in the first place that bioprospecters have used extraordinary means of deception to misappropriate such knowledge.
Part IV explores the concept of TK in the context of the development of such ideas as the “new property,” which includes, in particular, intellectual property, providing an appraisal of the problems of protecting TK against the ideological assumptions and misconceptions of certain aspects of intellectual property law. This Article concludes by proposing that the concept of property under the Inter-American system may well include TK as property for the purpose of protecting such property under the Inter-American Convention.
Winston P. Nagan, Eduardo J. Mordujovich, Judit K. Otvos, & Jason Taylor, Misappropriation of Shuar Traditional Knowledge (TK) and Trade Secrets: A Case Study on Biopiracy in the Amazon, 15 J. Tech. L. & Pol'y 9 (2010), available at http://scholarship.law.ufl.edu/facultypub/458