Who owns biodiversity, and how should the owners be compensated?

At the World Summit on Sustainable Development, held in Johannesburg in 2002, the Secretary General of the United Nations, Mr. K. Annan, outlined five major areas slated for progress in achieving a sustainable future for humanity. These five areas were water and sanitation, energy, health, agricultural productivity, and biodiversity and ecosystem management. Agricultural productivity depends in part on the availability of biodiversity for the development of improved cultivars. Hence, it has become clear that biodiversity has become one of the cornerstones of sustainable development. Biodiversity is defined here as the sum of genetic and phenotypic differences existing in living organisms (including viruses, although they do not fit the precise definition of a living organism) at the molecular, individual, population, and ecosystem levels. The increased emphasis on biodiversity is the result of, on the one hand, an increased demand, driven by factors as diverse as plant breeding, drug development, and ecosystem services, and, on the other hand, by decreasing supplies, caused by overpopulation and globalization and the ensuing habitat destruction and cultural homogenization. Until the 1970s, biodiversity was considered to be part of the ‘‘common heritage of humankind.’’ Under this regime, biological resources are treated as belonging to the public domain and are not owned by any individual, group, or state. Its consumption is ‘‘nonrival’’ (its use by one person does not compete with its use by another) and nonexcludable (no person can exclude other persons from its use; Herdt, 1999). For millennia, common heritage has been implicitly used as the principle governing the diffusion of crop and animal genetic resources from centers of domestication, their exchange among farmers, and their introduction into new continents, in particular between the Old and the New Worlds after 1492. The common heritage principle has also been used in the development of international and national gene banks, which still operate in the spirit of this principle (Shands and Stoner, 1997). Furthermore, this concept was given legal status in international conventions, such as the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage, the 1979 Moon Treaty, and the 1982 Law of the Sea Convention. Included in these treaties are several legal elements, including the availability, free of national sovereignty or private property claims, management for the benefit of mankind as a whole, exclusive use for peaceful purposes by all states, and free and openly accessible scientific research. Contrary to popular belief, common heritage does not imply a lack of rules regarding the management and access to the shared resources. For example, one of the essential rules is the reciprocity in access among farmers and plant breeders across economic sectors and national borders (Brush, 2003). Furthermore, Brush (2003) points out that common heritage is logical within farming communities where land and other natural resources are communally owned, seed is exchanged or shared, invention is collective, provenance is ambiguous, and natural and artificial selection are intertwined. Because of the transaction costs of proprietary management of seed, common heritage arguably is the best way to satisfy the frequent necessity to change or acquire seed in nonmarket economies. There have been exceptions to the rule of open access (Brush, 2003). These have included restrictions by countries to the export of planting materials (e.g. Cinchona by Peru and Bolivia in the 19th century and coffee [Coffea arabica] by Ethiopia in the 20th century) or attempts by colonial powers to monopolize certain resources (e.g. nutmeg [Myristica fragrans] by England, The Netherlands, and Portugal in the 17th century). Nevertheless, the overarching principle has always been one of free access and exchange. The last three decades have seen a significant change in the regime governing access to biodiversity. From a common heritage of mankind, biodiversity is evolving into a resource under the sovereignty of nation states and is subject to intellectual property rights (IPRs). This change is not without controversy. How and why this evolution is taking place and what type of ethical issues it raises is the topic of this essay.