The Indian Persepective
India has a rich variety of biodiversity and is one of the 12 mega-diversity centres. It is also considered to be the centre of origin of various crops, plants, cattle, sheep, spices etc and greatly contributes to the world’s biodiversity. As India is a signatory to both the Trade-Related Intellectual Property Rights Agreement and the Convention on Biological Diversity, after their formulation, the Indian Patent (Second Amendment) Act of 2002 and Biological Diversity Bill of 2002 was passed. The duration of the term of patents, addition of microorganisms under the ambit of patents, granting PBR certificate to the new plant varieties are some of the key highlights of the Act. Intending to protect the biodiversity, India had also passed the Plant Protection Bill in compliance with the Budapest Treaty. Further, protecting the forests and wildlife in the country is a fundamental duty of the citizens.
The Role Of Intellectual Property Laws
Analyzing the role and impact of Intellectual Property Laws is highly essential. With the varied use of plant varieties and biodiversity, a lot of commercial agriculture has paved the way and hence, the conservation of these plant varieties is the need of the hour. The Intellectual Property laws help in attaining this objective and protects the commercial agriculture and genetic erosions. The standard and criteria for obtaining the Plant Variety Protection certificate is easier when compared to the criteria for obtaining patents and is governed by product differentiation. The current Intellectual Property system aims to promote homogenize agricultural production. Further, traditional knowledge can also be protected through intellectual property laws.
Challenges Faced In Protecting Biodiversity
Upon analysing the Convention on Biodiversity and the TRIPS Agreement, it is very much evident that there is a sharp contrast between the two implementations. There is always a demand from the developing countries to harmonize both the CBD and TRIPS Agreement and make the people applying for IP protection to disclose all the relevant information related to the origin, proof, consent, access and benefit-sharing agreement etc as mandated by the Nagoya Protocol and the Convention on Biodiversity. However, this concern is strongly opposed by the developed countries, and there lacks a logical explanation for this rejection. Hence, there are still chances of increased bio-piracy in these areas. It is pertinent to note that this problem requires cooperation from the international communities.
Bio-piracy and Bio-prospecting are another major concern for the developing countries. The term ‘bio-piracy’ emerged after the CBD and TRIPS. Bio-prospecting refers to the exploration of wild plants and animals for obtaining genetic and biochemical resources and using them commercially. It can be considered to be ethical by satisfying certain legal conditions. It can be attributed as a method to promote medical and scientific research for invention. However, bio-piracy refers to the exploitation of traditional knowledge of the indigenous people and thereby developing the medical resources in a commercial manner. Bio-piracy leads to the loss of control of a particular product by a specific traditional group of people. This often leads to various legal repercussions and often contradicts the national regime. The issue of bio-piracy was practically considered only after the implementation of the Convention on Bio-diversity. It can further be stated as the use of a particular resource without the consent of the country from which the source was obtained. Later, intellectual property protection is claimed for such bio-pirated inventions and resources.
The Conflict Between CBD And TRIPS
Protecting the genetic resources through efficient laws have always been the greatest concern. There exists a conflict between community rights and private rights. Further, there are numerous challenges faced by the countries about formulating the administrative aspects and jurisdiction related issues. It is pertinent to note that the Convention on Bio-diversity predates the TRIPS Agreement however, various lacuna exists in both these conventions. It has nominal authority and the inclusion of penal provisions are mentioned only in the TRIPS Agreement. Hence, protecting the intellectual property rights lacks clarity. It is often recognized that intellectual property rights harms the effective implementation of the CBD regulations. This curtails the intellectual property rights and makes it ineffective in itself as there is a constant imbalance in the international frameworks. Further, TRIPS Agreement aims to protect the intellectual and private rights of the inventors while the CBD aims at conserving the use of biological diversity. Further, traditional knowledge is completely ignored in the TRIPS Agreement and poses great difficulty to the indigenous people.
The Convention on Biodiversity upholds the sovereignty principle and gives the countries the power to regulate the foreigner’s access to biological resources and establishes the benefit-sharing arrangements. Whereas, the TRIPS agreement gives the patent right to use other countries biological resources. While analysing both these provisions, it can be inferred that there is a sharp contrast between both these conventions and agreements and thereby makes it ineffective and inappropriate.
Analayse The Case Of ‘TURMERIC’
Turmeric is commonly used as a spice in India and is considered to be rich in medicinal value. It is often used as a medicine to cure rashes and wounds from time immemorial. In the year 1995, the University of Mississippi Medical Centre was granted a US patent for using turmeric for healing the wounds. In the wake of granting the US patent, the Council of Scientific and Industrial Research (CSIR), India filed a case for re-examining the grant of patent to the University of Mississippi. The CSIR contended that the value of turmeric and its use have been originated in India and that granting patent can only be made possible for novel innovations and not for existing ones. Various documentary evidence from the Sanskrit scripts were also placed for consideration. Later, the patent was cancelled and India’s claim was protected. The turmeric case is a landmark decision wherein the patent based on traditional knowledge was challenged before a court of law for the first time. Various other claims for neem, basmati rice, pepper etc can be found. All these claims imply that there is always a strong exploitation of traditional knowledge by obtaining a patent.
Hence, it could be concluded that there is an evident legal lacuna in the international frameworks for protecting the traditional resources. Further, the intellectual property to a great extent violates the indigenous people’s traditional knowledge. However, with the help of intellectual property laws itself, the exploitation of traditional resources can be restrained. Adequate penal provisions and compensation amounts must be prescribed in the enacted laws for curbing the exploitation of resources. There must be further cooperation between the international frameworks in regulating intellectual property rights and considering the value of traditional resources. Further, by granting the geographical indication status to a group of people, in turn, ensures in protecting the right of the people and prevents further exploitation.
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