Position of IPR in Indian Biodiversity

ABSTRACT

The aim of this article is to bridge the Intellectual property and Biodiversity in Indian Context. The article also includes provisions relating to the Biodiversity Act, 2002 and analyses the provisions in the current IPR arrangement.

INTRODUCTION

Biological diversity, also abbreviated as Biodiversity refers to the variety of life forms present on the planet earth. The BioDiversity Act of India lays down the definition of it as “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 ecosystem.”. It is the spine of earthly life and also a crucial aspect of sustainable growth. IPR, as the term suggests, provides legal protection to information and ideas that can lead to new inventions. IPR includes patents, trademarks, copyright, but the idea of it being extended to living organisms is new.

However, the concept of IPR in relation to Biodiversity is two-fold: firstly, about the product of which the raw material is present in biodiversity and secondly, about the mechanical human art which constitutes the biodiversity system. The later one is protected through the system of Geographical Indications (GI tags) under intellectual property. 

HISTORY OF IPR AND BIODIVERSITY

The first step taken towards making Biodiversity, a commodity was taken by United Kingdom in their want to use high quality seeds for agriculture, with time this led to the companies developing their own seeds and selling them, the government also lent support to this and began rewarding the individuals who enhanced the seeds further this became the base for the establishment of Plant Breeders Right. Under this right of PBR over 60 new plant varieties have been protected by various countries. To co-ordinate the PBR among the nations, In 1961 Union Internationale Pour la Protection Des Obtentions Végétales” (UPOV-International Union for the Protection of New Varieties of Plants)  was  established in Geneva which was later revised in the year 1972,1978 and 1991, in furtherance of it’s motives.

INTERNATIONAL LEGISLATIONS

The principal international agreement on IPR is TRIPS agreement of World Trade Organisation, this agreement provides uniform and minimum standards for the security and compliance of IPRs by all WTO members, The TRIPS Agreement, states in its preamble, “to promote the effective and adequate protection of intellectual property rights” and “to reduce international trade distortions and impediments,” which arise from the implementation of IPRs. TRIPs also ensures granting of patents for innovations and processes in all fields of technology. Patents are applicable to the implementation of “sui generis” system in which CBD plays a major role. The country’s sovereign right over it’s Biodiversity is recognised by the CBD which plays a major role in deciding who has to be given access to the genetic information resources, and what enhancements are to be made in technology for the safeguard of biodiversity and its sustainable use.

INDIAN SCENARIO AND IT’S LEGISLATIONS

India is the 8th most biodiverse region in the world which has arisen over the last 3 billions years of evolutionary history. Additionally, India is also a home to one-fifth of the total human population and is undergoing rapid change in it’s economy from an agrarian society to a diversified one. A major outcome of this is loss and fragmentation of natural habitat, which is considered a primary threat to biodiversity. India ratified CBD (Convention of Biological Diversity) in the year 1992, which led to the formulation of its own legislation i.e Biodiversity Act, 2002. The main aim of this act is to protect the country's biological diversity, ensure sustainable use of natural resources and ensure equity in sharing benefits arising out of it. The act ensured to be implemented at national, state and local levels through a decentralised three tier system through this NBA (National Biodiversity Authority) is created at national level which is a statutory, autonomous body which plays advisory, facilitative and regulatory role to the relevant bodies and Ministries of Government.

In addition to this, in compliance with the TRIPs India also passed Indian patent (Second Amendment) Act, 2002 which extended the duration of patents to 20 years for all processes and products. It also made micro-organisms a patentable subject in India and enabled PBR certification in India.

BRIDGING INTELLECTUAL PROPERTY AND BIODIVERSITY IN INDIAN CONTEXT

To estimate the impact of IPR on Biodiversity is not an easy task. However, the social and economic impact of IPRs is truly visible in developing countries and one of the greater impacts is rights i.e. patents. Although India had a legislation governing patent laws since 1970 but it underwent major modifications after the TRIPs agreement and being a developing nation India got grace period till 2005 to ensure its adherence to International obligations which lead to the introduction of The patent (amendment) Act, 2005. The patent act is connected is with the Biodiversity act, Section 10(4)(d)(ii) The act mentions that it is necessary to disclose the geographical and biological source used for invention at the beginning of filling for the patent and it has to be essentially approved by NBA however exemption is only granted when the biological source of invention is in foreign land and a declaration has to be submitted to avoid any further inconsistency.

Another important aspect that bridges BDA Act with Patent law is provided Under the Section 6 which clearly states that, “No application for Intellectual Property Rights can be filed in any country without prior NBA (National Biodiversity Authority) approval. The first provision states that when application is filed, NBA permission may be obtained after the acceptance of patent but before the grant of patent by the concerned authority, also section 2(c) of the Biodiversity Act, 2002 aims towards patenting biological inventions and puts a regulatory burden on the applicant to comply with. The latter part of the section states that while granting approval under section 6 of BDA Act, NBA may impose bene it sharing fee or royalty or both or impose conditions including the sharing of financial bene arising out of commercialisation of such rights. However, failing to comply with the provisions of BDA act, any person can be prosecuted and penalized if the offences are cognizable and non bailable in nature. Section 55(1) and section 55(2) expressly mentions the provisions of punishment. 

CONCLUSION

In the words of Winston Churchill, “To improve is to change; To perfect is to change often” law is never static; it evolves with time and as per the needs of the society. 

The sustenance and growth of Biodiversity will depend upon the harmonious relationship that can be nurtured between two inverse shafts – formal innovative and community system and to actively achieve this we need mechanism that facilitates active and easy technology transfer and promotes active participation in research and development. In the Indian context there has been a constant debate between the two statutes which are the Patents act and Biodiversity act, but it is crucial to acknowledge that both of them go hand in hand to protect the rights of the parties. The need of the hour is to protect the Biodiversity and to ensure this both the bodies (National Biodiversity Board and Indian Patents office) have to develop an efficient feedback apparatus regarding their procedure and functioning.

                                                                                                                                     Author: Aditya