The world is increasingly interconnected, and biological diversity is a critical factor in the survival and prosperity of all living organisms. It serves as the foundation of sustainable development by ensuring that crucial ecological processes such as pollination and nutrient cycling can continue. However, the current legal system for Intellectual Property Rights has created a structure that incentivizes seed development, monoculture, and the protection of biodiversity that is protection of new plant varieties, microorganisms, and genetically modified organisms for commercial purposes. This approach can harm biodiversity by promoting the exploitation of biogenetic resources, which are primarily located in developing countries.
Intellectual Property Rights laws enable the patenting of genes and organisms, which allows companies to own the rights to specific genetic resources. Companies then use these patents to control the production and sale of products derived from these genetic resources, leading to the monopolization of seed production, resulting in monoculture. Monoculture, in turn, limits biodiversity as it reduces the number of plant varieties cultivated in a given area. This, in turn, affects the local ecosystem, disrupts vital ecological processes, and increases the risk of plant diseases and pests.
The commercialization of genetic resources and the resulting monoculture also have adverse social and economic impacts on farmers and communities in developing countries. They lose control over the resources they rely on for their livelihoods and food security. It can also lead to the loss of traditional knowledge and practices for sustainable agriculture, which have been passed down through generations. Therefore, the current system of Intellectual Property Rights needs to be re-evaluated to ensure that it does not hinder biodiversity conservation or the development of sustainable agriculture.
Article 27(3) of the TRIPS agreement grants countries the option to obtain a patent for a new plant variety or create a sui generis law to protect the plant or its modifications and obtain a patent for the modified plant. The International Union for the Protection of New Varieties of Plants (UPOV), or Union Internationale pour la Protection des Obtentions Vegetables, was established in 1961 in Paris to provide intellectual property protection for new plant varieties. This convention aims to promote the development of new plant varieties for the benefit of society by incentivizing plant breeders through intellectual property protection of biodiversity.
To protect farmers’ rights, the Indian government enacted the protection of biodiversity that is Protection of Plant Varieties and Farmers’ Rights Act in 2001. This legislation protects plant varieties and farmers, encourages the development and cultivation of new plant varieties, and ensures traditional, rural, and tribal communities receive compensation and benefits. Additionally, it safeguards the traditional rights of farmers.
The Biological Diversity Act of India outlines the meaning of biological resources and biodiversity as the variety among living organisms, their multiple cells, and the ecological complexes they are part of, including diversity within species and between ecosystem species. Unlike other sustainability issues, biodiversity is vital for sustainable development because its loss is irreversible. The extinction of one species in one region can result in cascading extinctions worldwide. Biodiversity conservation is essential as we rely on it for food supplies and medicines. 82% of plant species currently contribute to about 90% of India’s per capita food plant supply. Additionally, around 80% of the world’s population uses traditional medical systems, which depend on biodiversity. Therefore, the protection of biodiversity is crucial.
UN Convention on Biological Diversity (CBD)
The Rio De Janeiro Convention was signed in June 1992 and took effect on December 29, 1993. The convention has 196 member parties.
Biological Diversity Act, 2002
This legislation was created to fulfill the Convention on Biological Diversity obligations. The convention aims to ensure that local communities receive a fair share of the benefits of conserving biological resources. The legislation also governs the acquisition and dissemination of knowledge related to biological resources. It provides protection of biodiversity and rehabilitation for species. Violations of this legislation, or “biopiracy,” are subject to punishment under Section 58 of the Biological Diversity Act of 2002. The punishment for violation may include imprisonment for up to five years or a fine of up to 10 lakhs, and in severe cases where damages exceed the fine, the penalty can be higher than 10 lakhs.
Article 8(j) of the Convention on Biological Diversity (CBD) deals with the issue of traditional knowledge. The contracting parties have committed to safeguarding and maintaining indigenous and local communities’ knowledge, innovations, and practices relevant to sustainable use. Traditional knowledge is often found in rural areas, where people use ancient remedies and formulas for medicinal purposes. Traditional knowledge is a vital source of income in developing countries, as it is often more affordable than modern alternatives like Ayurveda, Siddha medicine, Unani medicine, and yoga. Traditional knowledge encompasses a wide range of knowledge domains, including agricultural, scientific, technical, ecological, and medicinal knowledge related to biodiversity. Protecting and promoting traditional knowledge is crucial for preserving the culture, livelihoods, and sustainable development of indigenous and local communities.
Traditional Knowledge Digital Library
Collaboration between AYUSH (Ayurvedic, Yoga & Naturopathy, Unani, Siddha & Homeopathy) and CSIR (Council of Scientific & Industrial Research) led to a database in 2001 for traditional medicine systems in India such as Ayurveda, Siddha, Unani, yoga, and others. This database aimed to convert ancient texts into 34 million A4-sized pages with attached patents in English, French, German, Japanese, and Spanish.
Studies in India have shown that around 2,000 patents are granted annually for Indian medicine systems.
Impact of Intellectual Property Rights on Biodiversity
The standards for granting plant variety protection of biodiversity laws enable breeders to safeguard varieties with similar features, resulting in a system prioritizing commercial factors like product differentiation and planned obsolescence rather than actual improvements in the plant’s agricultural traits. Furthermore, the rules for uniformity in UPOV-like systems exclude the native varieties that farmers cultivate, which are genetically diverse and less stable. However, these characteristics make these varieties more flexible and well-matched to the agricultural environments in which most impoverished farmers operate.
The benefits of genetic diversity are uncertain and long-term. According to a report by the Food and Agriculture Organization, most of our calorie intake comes from only 20 cultivated crops, mostly from developing countries. As a result, they are more vulnerable to pests and diseases and require genetic diversity to survive. Unfortunately, it is believed that a significant amount of the genetic variability in our food plants has been lost in the 21st century. Therefore, preserving and developing existing crop diversity is a global concern.
To achieve effective biodiversity conservation and development, there needs to be a collaboration between formal innovation and community frameworks. Encouraging technology transfer and inclusive participation in research and development through policy is critical. This requires poor farmers and rural people to have control over genetic resources, while the formal system must make institutional and policy changes to preserve biodiversity. Ultimately, the goal is to enhance the quality of human life by preserving biodiversity and promoting innovation in biogenetic resources.
History of IPR and Biodiversity
The UK was the first country to use biodiversity as a commodity, primarily to obtain high-quality seeds for agricultural production. This led to the business of selling registered seeds, and the government incentivized innovation in this sector by rewarding those who further improved the seeds. As a result, Plant Breeder’s Rights (PBR) were established to commercialize genetic resources. For more than 60 years, developed countries have employed Plant Breeder’s Rights (PBR) to create various types of plants. The International Union for the Protection of New Varieties (UPOV) was formed in Geneva in 1969 to coordinate the implementation of PBRs between countries. The Convention also established the eligibility criteria for new varieties to be protected under the Convention. The International Union for the protection of biodiversity that is Protection of New Varieties (UPOV) set out three conditions that must be met by new plant varieties seeking protection under the Convention. The first condition is that the variety must be entirely distinct from already known varieties. The second condition is that the new variety should be uniform, homogeneous, and stable. Lastly, the variety should not have been commercially exploited before the date of application for protection of biodiversity.
Furthermore, in addition to establishing the UPOV Convention, some countries have also utilized patents to protect genetically modified organisms (GMOs). The USA, in particular, was the first country to patent an engineered bacterial strain in 1972, created by Dr. Ananda Mohan Chakrabarty, an Indian microbiologist. The advancement of biotechnologies has allowed for the identification and commercial use of exotic genetic resources, significantly impacting the development of Intellectual Property Rights regimes worldwide. The increased commercialization of biogenetic resources and research and development for obtaining Intellectual Property Rights will ultimately determine the future of global biodiversity.
India is recognized as one of the 12 mega diversity centers worldwide, possessing 167 crop species, 320 wild crops, and several species of domesticated animals. It is considered a hub for the origin of various plant and animal species and is among the top ten nations in its contributions to global agriculture.
Intellectual Property Rights Legislations to Protect Biodiversity
Two main Conventions deal with protection of biodiversity – Trade-Related Intellectual Property Rights (TRIPs) and Convention on Biological Diversity (CBD).
India introduced the Indian Patent Second Amendment Act in 2000 and the Biological Diversity Bill in 2002 to conform with the TRIPs and CBD.
These legislations made microorganisms a patentable subject in India and increased the patent term to 20 years for all products and processes. India has also initiated the procedure to accede to the UPOV Convention, which implies that the new plant varieties in India must have Plants Breeder Rights certification. Depositing biological material has also been incorporated to conform with the Budapest Treaty.
Geographical indications (GIs) are a powerful tool in intellectual property law that can benefit local communities by promoting their products, increasing their brand value, and creating a market for them. GIs are gaining traction worldwide and are increasingly seen as one of the most effective ways to identify and protect products derived from biodiversity. A GI is a sign or indication that identifies the geographical origin of a product and links it with the qualities associated with that particular place. For instance, the Allahabad Surkha, a distinct and popular variety of guava grown in the Allahabad region of Uttar Pradesh in India, is an agricultural product that can be recognized for its red core and unique flavor. This variety of guava owes its diverse qualities to various geographical factors such as temperature, humidity, soil, and water, which are present in the region where it is grown.
Using geographical indications (GIs) in marketing products has been a well-established practice in European countries, and it has proven successful for producers. Examples of superior products registered as GIs include Champagne, Scotch whisky, Feta cheese, and Harris tweed. Any products made by local communities using indigenous resources and traditional knowledge are eligible to be registered as GIs. These products may include traditional foods, textiles, handicrafts, and medicines. Registering a product as a GI can increase its market value and improve pricing for biocultural products. This controlled and efficient commercial utilization of biocultural products can lead to the socio-economic empowerment of indigenous communities, which are critical to the biodiversity system and will play a significant role in protecting it.
The Relationship between IPR and Biodiversity
The current IPR regime promotes the commercialization of seed development, monoculture, and protecting new plant varieties, microorganisms, and genetically modified organisms, leading to the continuous depletion of rich biodiversity. Therefore, there is a need for an alternative mechanism that can balance the formal intellectual property systems and the sustainable aspects of biodiversity.
Although developed nations do not possess significant genetic resources, they have advanced research and development facilities to study biogenetic resources mainly obtained from underdeveloped countries. As a result, there is an unsecured flow of biogenetic data to developed nations. In contrast, genetic data flows to the Global South through patents and Plant Breeder’s Rights, leading to visible and invisible effects.
The benefits of genetic diversity are difficult to predict and have long-term effects. According to a Food and Agriculture Organization report, 90% of our calorie requirements come from only 20 cultivated crops originating from developing countries. These crops are vulnerable to pests and diseases and rely on genetic diversity. It is widely believed that a significant proportion of the genetic variability of our food plants has been lost in the -21st century. Therefore, conserving and developing the existing crop diversity is of global concern.
It is essential always to remember that preserving biodiversity and promoting innovation in biogenetic resources is ultimately aimed at improving the quality of human life. Before making any policy’s changes or introducing new technologies, it is crucial to consider the potential impact on human existence. Failing to do it could result in serious consequences.
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