76 The role of IPR in protection of Biodiversity
Bio means Life and diversity means when things are different from each other. Therefore, biodiversity refers to diverse life present in the ecosystem. It includes all kinds of flora and fauna and even micro-organisms. Biodiversity is necessary in nearly every aspect of our lives. Biodiversity is important to us for a multitude of reasons, some of which are utilitarian while some are intrinsic. This means that we appreciate biodiversity both for the benefits it gives to us and for its intrinsic value.
IPR is there to provide legal protection to concepts and information used to build new technologies or methods. These rights allow the holder to prevent imitators from marketing certain innovations or processes for a set period of time in exchange for disclosing the formula or concept underlying the product/process. As stated previously, IPRs are intended to encourage innovation by providing better financial returns than the market would otherwise supply. Different types of laws such as copyright, trademark, patent form a part of IPR. It helps traders and merchants to create a monopoly overexploitation of a unique idea for a specific period of time.
Through this article, I aim to bring out how these two subjects cross paths and the impact IPR has on Biodiversity.
Biodiversity and Laws related to it
India has an impressive record when it comes to agro-biodiversity. India has approximately 167 species of crop and around 320 species of wild crop relatives and a variety of animal species. It is considered a land of the rich heritage of biodiversity. In order to implement provisions of the CBD and TRIPs agreement, we brought legislation to protect our vast species of flora and fauna. It’s called Biodiversity Act, 2000 (BDA), it helps in regulating access to and use of its biological resources. With the implementation of the act, micro-organisms are subject of a patent as well. However, because of the Biodiversity Act’s broad definitions of biological resources and commercial exploitation, including the Patents Act’s lack of clarity on the concept of “when employed in an invention,” there is a lot of ambiguity about when such authorization should be sought. The scope of the Act extends to all the species occurring in and obtained from India. The BD act mandates that prior approval from National Bio-diversity Authority has to be obtained for making an application for IPR. It also advises the government on selecting biological heritage sites. Another legislation brought by parliament is the Plant Varieties and Farmers’ Rights Act, 2001 which aims to provide an effective system for protecting plant variations, farmers’ and plant breeders’ rights, and encouraging the development and cultivation of novel plant varieties.
International trends in Biodiversity
The convention on Biodiversity (CBD) is a legal instrument to safeguard biological diversity, to promote sustainable use and fair and equitable benefits sharing which arises out of utilizing genetic resources. CBD seeks following things for protection of biodiversity: (a) states should have sovereign control over the resources within their borders and shall work to conserve the same. (b) State shall facilitate access over their biological resources on mutually agreed terms with prior consent (c) The wider application of indigenous and other local communities’ knowledge, innovations, and practices must be done with the agreement and participation of the holders of such knowledge.
Initially not many countries recognized plant rights, but after signing TRIPs agreement the signatory countries have implemented laws related to the same. As TRIPs agreement mandates all signatory countries to accord (a) Patents to micro-organisms and “microbiological processes;” and (b) to provide a protection to plant varieties through some form of IPR or any sui generis system, this is to take care of the concerns that CBD expressed.
The Plant Varieties and Farmers’ Rights Act, 2001(PVFRA) aims to enforce A27.3 (b) of TRIPs, as it is India’s sui generis plant variety protection scheme and the Biological Diversity Act, 2002 (BDA) is to comply the CBD objectives of access to genetic resources and sharing of economic benefits.
How IPR impacts Bio-diversity
Major proportions of our genetic variable plants are becoming extinct and it is important to preserve them at this point. At this point, it has become a global concern. IPR comes into play as upcoming bio technology focuses on commercial agriculture and leads to genetic diversity. Plant Variety Protection (PVP) provides protection to plant varieties. The threshold provided in PVP is lower than patent. As a result of PVP legislation, breeders can protect varieties with extremely comparable features, implying that the system is mostly driven by product commercial considerations. Rather than true gains in agronomic qualities, distinctiveness and intentional obsolescence are used. The increasing trend in privatization of engineered and patented genetic resources has accelerated the monoculture cropping.
As stated in A16.5, CBD expresses that contracting parties should ensure IPRs to be supportive and not contradicting the objectives of CBD. Through A22, CBD states that the provisions will not affect the rights and obligations of the parties to any internationals agreements unless such rights or obligations pose a serious threat to biological diversity.
The impact of IPR regime on Biodiversity has been examined below:
- Through the ongoing IPR regimes the industrial and commercial interests have been able to appropriate the resources and make use of the technological innovations.
- IPRs are anticipated to accelerate the tendency of agricultural production and medicinal plant usage systems becoming more homogeneous. In agriculture, for example, any company that has spent a lot of money securing an IPR would want to promote its variations in other countries.
- Getting a patent allows the proprietor to regulate who can utilize the benefits of the resources and so claim commercialization benefits
The growth of biological variety will be dependent on the nurturing of creative relationships between two opposing poles – formal inventive and communal systems. To make this work, policymakers must conduct technology transfer with a strong preference for active participatory research and extension initiatives. It is also important that IPR regimes help not only developed countries but also economically poor and impoverished countries to get benefit of the technological advancement when it comes to use of resources. The reason why people oppose the current IPR regimes is due because how unethical it is. Many ancient communities and modern conservationists despise the patenting of life forms because it assumes that nature exists independently from and primarily for the benefit of humans. Many societies despise the privatization of knowledge, which they consider to be mostly, if not entirely, in the public domain. There is no denying that a lot of work is still needs to be done in order to include active participation of farmers and rural people to be able to reciprocate by the formal system with their analysis, professional and policy adjustments from time to time in order to fulfil our international responsibilities while at the same time maintaining our national security. Time must be taken into account in order to ensure biodiversity’s long-term viability.
Contributed by:– Nidhi Jha, intern at LLL