1. Concept of Biodiversity
It is a coined term, combination of "Biology" (a Greek word, again a combination of "Bio" i.e. Life and "logy" i.e. study) and "Diversity". refers to variations, in the present context, genetic variations. The expression Biological Diversity was first thought of by Mr. Thomas Lovejoy. And a shorter version of it was coined by an entomologist[1], Mr. E. O. Wilson in 1986 in the report for First American Forum of Biological Diversity organized by National research Council.[2]
The concept can be simplified as "Biological Diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and ecosystems.[3] Thus it covers plants, animals, trees and the entire biological spectrum. The present biodiversity on the earth is a corollary of 3.5 billion years. Since the advent of human on earth, the ecological resources have been continuously subject of exploitation. More specifically the today's "Techno-World" era has experienced maximum loss of ecosystem, consequences of which we can very well observe in our vicinity.
2. Whether the Intellectual Property Rights can be claimed on Biodiversity and Plant Verities?
Granting intellectual property is a familiar method for converting public goods into private ones. It allows the market to work where it otherwise would not, by permitting a person to exclude others from using his or her ideas or plants, except under license or royalties. And the right to exclude effectively becomes the right to profit from selling the idea or plant. There is much debate over the suitability of patents and other forms of Intellectual Property Rights (IPRs) for the protection of plant genetic resources for food and agriculture. For example, the Crucible Group, comprising knowledgeable people from all relevant sectors - formal, informal, commercial, academic, trade and policy - made 28 recommendations in their report "People, Plants and Patents", including:
No. 14.) "Sovereign states cannot be required to adopt systems of IP in areas that risk the well-being of their peoples or that jeopardise the biological diversity within their borders. Neither should countries be expected to adopt unrealistic time frames to enact IP provisions related to international trade agreements. 15. Any potential conflict between IP proposals and other initiatives for plant genetic resources conservation and exchange should be taken fully into account in interpreting responses to the GATT agreement."
Thus practically, one may very well argue that, Plant varieties, except those which are products of human brain cannot be covered under IP, still as we have signed the TRIPs agreement, Article 27.3(b) the member countries are now under obligation to apply IPRs to living material, and plant varieties. The countries have to balance between the rights of industrial innovators, and the rights of local communities, farmers, indigenous peoples and consumers within the country.
3. Legal state of affairs:-
3.A. International Scenario
Various International conventions and treaties have taken place for providing measures and incentives for protection of biodiversity. The Uruguay Round in General Agreement on Trade and Tariffs for the first time included life forms and genetic resources within the ambit of Intellectual property. Later, two major international agreements took place, which shaped not only international but the domestic sphere of biodiversity laws. One is Trade Related Aspects of Intellectual Property Laws of World Trade Organization and another is the Convention on Biological Diversity, impacts of which have caused long lasting effects on member countries
Art. 27(3) (b) of the TRIPs Agreement allows patenting on everything and so it obligates the member states to protect the plant varieties (which come under the purview of biodiversity) either by way of patenting or by any convenient statutory stipulations. Another option for implementing this provision was Union for the Protection of New Varieties of Plants (UPOV). This system was initially developed in Europe and now the Industrialized countries are using it.
Convention on Biological Diversity (CBD), object clause speaks about conservation of biological diversity, the sustainable use of it's components and fair and equitable sharing of benefits arising out of the utilization of genetic resources. The equitable sharing of profits on the basis of appropriate access to genetic resources, appropriate transfer of relevant technologies and appropriate funding. Thus the implementation of TRIPs may amount to loss of materials, knowledge and benefits for the originators of that knowledge and the associated biological resources, especially the people and communities in the informal sector. The TRIPs agreement comes in divergence with Convention on Biological Diversity as the TRIPs compels for patenting the plant varieties and Convention on Biological Diversity articulates equitable distribution of resources and profits gathered from those resources. The various provisions of TRIPS, mainly Art. 27.3(b) thus could undermine the objectives of the Convention on Biological Diversity - principally, the conservation of biological diversity and the sustainable use of its components.
3.B. National Scenario:-
The intergovernmental processes that intend, on the one hand, to safeguard biological resources for food and agriculture and, on the other hand, to privatize these resources have a responsibility to obtain balance between two. International protection of privately owned resources, guaranteed through legally enforceable Plant Breeders' rights (PBRs) and patents, is in the ascendancy, because of the TRIPs Article 27.3(b). In contrast there are the following international agreements, among others:
The ratification of the CBD by 171 Parties and the Decisions by the Conference of the Parties (COP) on Agricultural Biological Diversity (Decisions III/11 and IV/6);
The agreement to the Leipzig Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture (GPA) by 159 Members of FAO;
The FAO International Undertaking on Plant Genetic Resources [for Food and Agriculture] (IU) agreed to by 111 countries.
Each of these agreements and decisions, are mutually supportive. They may provide long-term equitable sharing of the benefits from the use of biological resources for food and agriculture as their purpose is to safeguard these resources for future generations through, inter alia, facilitating their sustainable use.
3.C Indian Scenario
Art. 51-A of the Constitution speaks about Fundamental Duties, which include "…. Protection and improvement of natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures…." [Art. 51-A (g)] and "……..to develop the scientific temper, humanism and the spirit of inquiry and reform….."[(Art. 51-A (h)]. Accordingly, India entered as a signatory to Convention on Biological Diversity and then the Biological Diversity Act in India, was passed in the year 2002. The Act provides for conservation of biological diversity, sustainable use of its components (in short, attain sustainable development) and equitable sharing of benefits acquired from of biological resources. These objectives are mainly derived from the Convention on Biological Diversity which was adopted by UN, in the Conference on Environment and Development, held at Rio de Janeiro in June 1992. The object clauses of the Convention on Biological Diversity provide for the conservation of biological diversity, the sustainable use of components of biodiversity, fair and equitable sharing of the benefits exploited from the genetic resources, this was inclusive of appropriate access to genetic resources and also apposite transfer of relevant technologies, considering the rights over those resources and technologies, and also by appropriate funding. The Convention reaffirmed that states have sovereign rights over their biological resources and that the states are responsible for conserving these resources and using the same in a sustainable manner. The member countries are expected to format laws, which are compatible with the provisions of Convention on Biological Diversity.
The Indian Act is essentially inclusive of following provisions for becoming CBD compliant.
The Act defines Biological diversityas "the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of ecosystems." And "Biological resources" as plants, animals and microorganisms or parts thereof, their genetic material and by-products with actual or potential use or value but does not include human genetic material.
Thus the Act basically intends to protect all the genetic algorithms, including products, resources and the inter-genetic processes under it.
The prominent provisions under the Act are:
(i) Conservation and sustainable use of biological diversity.
(ii) Conservation and development of areas important from the standpoint of biological diversity by declaring them as biological diversity heritage sites.
(iii) Protection and rehabilitation of threatened species.
(iv) To respect and protect knowledge of local communities related to biodiversity.
(v) Regulation of access to biological resources of the country with the purpose of securing equitable share in benefits arising out of the use of biological resources, and associated knowledge relating to biological resources.
(vi) To secure sharing of benefits with local people as conservers of biological resources and holders of knowledge and information relating to the use of biological resources.
(vii) Involvement of institutions of self-government in the broad scheme of the implementation of the Act through constitution of committees.
3.D. The proposed amendments in the Act
Following are the proposed policies under construction for implementation under the Act.
1. National Biodiversity Authority:- A NBA may be established for regularizing Foreign interference with the natural resources and fair and equitable sharing of benefits exploited from bio resources. The Foreign R & D may be regulated through it. The profit sharing from the R and D as well as the projects, conducted by the foreign bodies and institutions using Indian Resources. Fair and equitable shares can be collected from them, which will ultimately be an economic boost to India.
2. State Biodiversity Boards (SBB) and Biodiversity Management Committees (BMC):- The SBB and BMC may be set up at state level for imposing controllary regulations on use of Biodiversity. They will keep check on the exploitation of resources so also on proper implementa6tion of the provisions of BDA.
3. National Biodiversity Fund: NBF will be a rehabilitative support for the biodiversity, at both, central as well as state level. The Funds will be effected for conservation and recuperation of the biodiversity resources which are being utilized. This will help in maintaining the eco-balance.
Principally the variance starts with an issue, whether the plant varieties and bio-products can be couched under the IP. If natural resources are not brainchild of human, how they can be covered under the IP regime. Definitely, the products and processes obtained from biodiversity may be covered under IP, where the human brain is involved into procedure of making.
From the above, it becomes clear that though there are enough provisions for the protection of biodiversity at national as well as international level, but these laws themselves are in conflict with each other. The provisions of TRIPs agreement are in conflict with provisions of CBD. Also the very object clause of BDA has come in divergence with TRIPs provision.
Whatever the arguments may be, now the member countries of TRIPs are expected to maintain balance between the provisions of National and International Laws in a compatible way, so as to attain balance the equitable sharing of productions arising out of utility of bio diversity. Also they have to be careful so as to not to encroach upon the interests of agro-people.
And the most important thing to be remembered is that, ultimately, the mother earth is to be saved from losing its natural environmental balance. The human factors, may be in the nature of law or otherwise, should not come in her way of maintaining environmental equilibrium.
Some interesting facts:
1. Large transnational corporations like Monsanto, DuPont and others have been investing into biotechnology in such a way that patents have been taken out on indigenous plants which have been used for generations by the local people, without their knowledge or consent.
2. In Brazil, which has some of the richest biodiversity in the world, large multinational corporations have already patented more than half the known plant species. (Brazil is estimated to have around 55,000 species of flora, amounting to some 22% of the world's total. India, for example, has about 46,000)
3. In Texas, a company called RiceTec took out the patents on Basmati rice (which grows in the Indian and Pakistan regions) and have created a genetically modified Basmati Rice, while selling it as normal Basmati
Following measures can be taken for such growing problems:
The resources which are rapidly wearing away can be protected by state laws and the global food security can be assured with their sustainable use.
The genetic resources like plant varieties can be left in public domain and can be made accessible to the public in general and the vested IPRs in these recourses can be limited upto reasonable restrictions; so that the future generations ca also avail such genetic resources.
Farmers can be encouraged by protecting their rights to save, use, exchange and sell seeds etc. in their customary manner.
Farmers can be benefited by the commercial use of these resources, which they have developed and conserved.[4]
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[1] The person who conducts scientific study of insects.
[2] The book- Biodiversity Law and Practice" by Mr. Yeshwant Shenoy, Published by Law Book Center, Kochi.- pg. 1
[3] Art. No. 2
[4] Ref:- http://www.globalissues.org
Neha Jagtap
Email: neha@legalpundits.com
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