Bioprospecting and Indigenous Cultural Rights: Creating Authorship, Agency, Empowerment and the Next Generation of Biopirates?

20 Pages Posted: 10 Dec 2010

See all articles by Jocelyn Getgen Kestenbaum

Jocelyn Getgen Kestenbaum

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: December 9, 2006

Abstract

The term bioprospecting refers to the pharmaceutical industry’s practice of collecting “traditional knowledge” and medicinal plants to “discover,” develop, and market new drugs. Although the practice of collecting pre-dates the time of Linnaean botany, pharmaceutical companies have recently renewed an interest in bioprospecting and, as a result, have also raised moral, legal and ethical questions in the scientific, intellectual property, human rights, and distributive justice communities. More specifically, the power relations and bargaining among actors as to whom the potential benefits of these practices and their subsequent uses belong spring debates in multiple areas of the international arena. Interestingly, these new relationships built on promises of patents and benefit-sharing also coincide with current developments and regime shifts in international intellectual property lawmaking. The 1992 U.N. Convention on Biological Diversity (CBD) and recent discourse of the Doha Round challenging the 1994 Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) demonstrate these shifts and present new opportunities and challenges for communities in developing nations.

Keywords: bioprospecting, indigenous rights, collective rights, cultural rights, agency, biopiracy

Suggested Citation

Getgen Kestenbaum, Jocelyn, Bioprospecting and Indigenous Cultural Rights: Creating Authorship, Agency, Empowerment and the Next Generation of Biopirates? (December 9, 2006). Available at SSRN: https://ssrn.com/abstract=1722710 or http://dx.doi.org/10.2139/ssrn.1722710

Jocelyn Getgen Kestenbaum (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
212-790-0860 (Phone)

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