An interesting Commentary on the problem of releasing the flu sequences has been posted on the blog Anthropologique by its proprietor, J. F. Brinkworth. I disagree with it, but he makes some pertinent points.
Brinkworth believes WHO is not at fault for failure to release the Indonesian sequences and he provides some information of which I, and probably most others, are not aware:
Indonesia has very, very stringent nucleic sequence I.P. laws. All genetic material recovered there is their property. Their Convention of Biological Dviersity Law No.5 (1994) and Cultural Practices Law No. 12 (1992) effectively prevent all non-Indonesians from removing biological materials from the country for study (academic or commercial). If you are granted permission to remove the material, Indonesia is still the owner and licensee of that material. The WHO and CDC cannot release those sequences. It is not within their legal wherewithall. Nature and Science are aware of this – what’s eating at me is that when the story is referenced, no one ever notes that the release of these sequences would violate Indonesia law, international patent and property conventions and make research in that country much more arduous for foreign researchers.
Indonesia is what is referred to as a mega-biodiverse country. As such,they are a hotbed for pharmaceutical research. They have stringent laws governing genetic material export to ensure that they get a return on the research that is undertaken there by corporations. Given that the same patent protections are offered pharmaceutical companies in this country, I don’t have a problem with this. Everyone deserves the guarantee of a return on their investment. (Anthropologique)
The sequence issue goes beyond what WHO has or has not done or the Indonesian Intellectual Property (IP) laws. WHO has yet to ask Indonesia to release the sequences even though a high Indonesian official has stated publicly they would be inclined to authorize the release. Nor is the sequence issue just an Indonesian one. CDC is said to have thousands of sequences it has not released and the same might be true of other national laboratories and agencies. It is not likely that all of them are held hostage to Indonesian IP laws, or any IP laws for that matter. But there is a bigger issue, here, and that is these IP laws themselves.
Why is it permissible for anyone — the government of Indonesia, a pharmaceutical company, a university, and individual scientist — to patent the genetic sequence of a naturally occurring life form? They should not be patentable by anyone, period. An H5N1 sequence is not the property of the country of Indonesia, any more than it is the property of Roche or GlaxoSmithKline or anyone else. Is the Second Law of Thermodynamics someone’s property? Does quantum mechanics belong to someone? If I measure a constant of nature (e.g., the speed of light) can I patent it? These things are not property in any but the most distorted and perverted sense of that word, which unfortunately is becoming the normal use of the “property.”
Mr. Brinkworth has stated he thinks the H5N1 disease threat is overblown. I don’t know how he could know this, since those of us who follow it closely have no idea whether it is or not. But it is irrelevant. What is relevant is a point he himself makes:
Do you have any idea how many HIV sequences are held without release by pharmaceutical companies? Thousands. When people read this story do they consider how much human proteomic information relevant to TB, HIV and cancer research is being held by companies hoping to make a profit on licensing the sequences and structures? TB and HIV kill 100s and 1000s x more people annually alone than H5N1 has in the last 2 years. Again, I ask why undermine a nation and put everyone’s research and health in jeopardy? If you want the sequences, put the pressure on Indonesia and make arrangements for free academic but fee-based commercial use.
Yes, put pressure on the Government of Indonesia, on WHO, on CDC and everyone else responsible for not releasing biological information (not property) of genuine public health and scientific importance. Let’s do the same with TB and HIV information which is also not property.
Treating genetic sequences as “property” subject to patents is Beyond the Pale. What have we come to? If the law allows this (and in some cases it does), it is time for new laws.