The issue of conservation of the biological resources of a country, whether these are local crops or useful plant varieties, available in remote areas of the country, has become a subject of debate in the paradigm of Intellectual Property Rights (IPR). The use of local knowledge and the traditional use of these biological resources are interwoven in the cultural milieu of a region.
Two major international agreements:
Following two major international agreements deal with this issue:
1. The Convention of Biological Diversity (CBD)
2. Trade Related Intellectual Property Rights (TRIPS)
It is worth mentioning that countries like, India, Mexico, Philippines, Peru etc, are coming up with the local country-specific legislation to effectively deal with this issue.
Experts’ Views:
Many experts suggest that IPR may be judiciously used to effectively protect the biological resources. Such use of IPR may range from preventing misappropriation to significant increase in utilization of various resources and investments towards their conservation.
However, others express quite a different view, voicing that the IPR system may work against conservation of biological resources by ‘undermining the knowledge system, culture and social structure.’
Recently there was a suggestion that each country should take some well articulated legal steps to conserve its precious biological resources. It must ensure that only those steps, which are compatible with the concept of ownership and the value system of the local population, are to be taken into account during IPR system of negotiation, related to such biological resources. These experts argue that an IPR system must support appropriate conservation through effective management of biodiversity.
There is yet another totally different school of thought leaders, who nurture a very strong view, which is as follows:
“The history of IPRs shows that the monopolistic hold of governments, corporations and some individuals over biological resources and related knowledge is continuously increasing. A substantial amount of this monopolisation is built upon, and through the appropriation of, the resources conserved and knowledge generated by indigenous and local communities.”
Some IPR related ‘scandals’ in this area:
Activities like the following, which are treated as IPR related scandals keep sending shock waves to many:
1. A Patent was granted vide the US Patent No. 5,401,504, to the healing properties of the ancient Indian herbal remedies turmeric ,which is a traditional knowledge to the Indians, since many centuries.
2. A Patent was granted vide the US Patent No. 5,663,484 to varieties of Basmati rice grown traditionally in both North India and Pakistan.
3. A Patent was granted vide the US Patent No. 5,397,696 to human cell line (human genetic material) of a Hagahai tribesman from Papua New Guinea.
These are just illustrative examples and not exhaustive.
Steps taken by some developing countries:
Alarmed by all these developments, some of the developing countries of the world are seriously contemplating the following:
1. Preventing indigenous traditional knowledge from being “pirated” with IPR claims driven solely by commercial interests.
2. Restricting access to biological resources with appropriate regulatory measures.
Measures taken by India:
A. Legal measures have now been taken by India to address this issue:
1. New plant varieties can now be protected in India under the New Plant Variety and Farmers Rights Protection Actin 2001 and cannot be protected through patents.
2. Protection of ‘Geographical Indications (GI)’, which identify goods as originating in the territory of a member or a region or a locality in that territory, where a given quality reputation or other characteristics of the goods is attributable to their geographical origin.
4. For registration of GI, all applicants will require applying in writing to the Registrar for the registration of such indications.
B. Following GIs cannot be registered in India :
• Use of which would be likely to deceive or cause confusion or contrary to any law.
• Comprising or containing scandalous or obscene matter or any matter likely to hurt religion susceptibility of any class or section of citizens of India.
• Which would otherwise be disentitled to protection in a court.
• Which are determined to be in generic names and are not or ceased to be protected in their country of origin or which have fallen into disuse in that country.
• Which, although literally true as to the territory, region or locality in which the goods originate, but falsely represent to the persons that the goods originate in another territory, region or locality.
C. Punishment for falsifying a Geographical Indication:
A sentence of imprisonment for a term between six months to three years and a fine between fifty thousand rupees and two lakh rupees is provided in the Act. The court may reduce the punishment under special circumstances.
D. Term of GI protection:
The registration of a GI shall be for a period of ten years but may be renewed from time to time for an unlimited period by payment of the renewal fees.
Conclusion:
Detailed studies regarding the involvement of community in conservation and protection of biodiversity along with their drivers and barriers will be of immense use. One-dimensional view of innovation, based only on profit motive, in the space of biodiversity and food security, especially for the developing countries, like India, calls for more enlightened debate within the civil society.
By Tapan Ray
Disclaimer: The views/opinions expressed in this article are entirely my own, written in my individual and personal capacity. I do not represent any other person or organization for this opinion