Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life

Abstract

“Hyperownership” describes in a word the present international legal landscape with respect to genetic material. At issue is who should own or control access to the subcellular genetic sequences that direct the structure and characteristics of all living things, or, in popular usage, nature’s or God’s blueprints for life. Traditionally, genetic material belonged to a global commons or open system. No one exclusively owned this material and countries freely shared it. In sharp contrast, today exclusive ownership and restrictions on the sharing of genetic material are the international norm.

What kind of goods are plant genetic resources for food and agriculture? Towards the identification and development of a new global commons

“…6 The recognition of countries' sovereign rights over genetic resources was amplified in the Convention on Biological Diversity (1993), and obligations for tracking, reporting and enforcing access and benefit sharing agreements were recently adopted in the form of the Nagoya Protocol (not yet in force). From the mid-1980s, up to the present day, there has been a rapid world-wide proliferation of national and regional intellectual property, and access and benefit-sharing laws that allow owners, countries, communities, and individuals to exclude others access to various subsets of PGRFA for various purposes (Safrin 2004). The most relevant of those laws are:…”

Laws and regulations associated with ownership of human biological material in South Africa

“…Safrin [11] refers to this as the 'legal enclosure of genetic material' , which she attributes to two developments:…”

“…In either case the action of both these groups incurs both social and economic repercussions. Additionally, the development of excessive sovereign control or ownership of genetic material is likely to lead to over-regulation, [11] with bureaucratic red tape impeding important genetic research.…”

“…This allowed all countries to share their genetic resources freely. [11] An example of open source in genetics is the Human Genome Project, an endeavour that required the collaboration of a number of different institutes sharing their information and data, therefore forcing each of them to decide on flexible research standards.…”

“…Many developed countries allow for genes that have been isolated, extracted and functions determined, to become a commodity, gain commercial value and allow for their patenting. [11,12] In South Africa, current laws, such as the Biodiversity Act, [14] restrict access to genetic material for the purpose of acquiring remuneration but the exclusion of human genetic material from the Act once again leaves a gap for exploitative means.…”