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Relationship Between Intellectual Property Rights (IPR) And Biodiversity

Biodiversity and Intellectual Property Rights (IPR) have converged to create a complex and diverse environment where legal frameworks, financial incentives, and moral considerations all come into play. In general, biodiversity means all living organisms including plants, animals, microorganisms, and their ecosystem.

The rich range of life forms that make up biodiversity on Earth not only contributes to ecological harmony but also to future technological advancement and economic growth.

In this context, IPR mechanisms like patents, plant breeders' rights, and access and benefit-sharing agreements have emerged as tools that can support technological development and conservation efforts while also posing issues with fair resource distribution and the preservation of traditional knowledge. Research, innovation, conventional wisdom, and the sustainable management of biodiversity are all examined in this discussion of the crucial role that IPR plays in the field of biodiversity.

What is biodiversity?

Basically, biodiversity refers to the different variety of life forms in an ecosystem including plants, animals, microorganisms, and other living organisms, and the genetic information they contain in a specified geographical area. It encompasses the diversity of species, genetic variations within those species, and the ecosystems in which they interact. Biodiversity is recognized as a valuable and protected resource under various international and national laws, as well as treaties and agreements.

Article 27(3) of the TRIPS agreement offers countries the choice to either secure a patent for a fresh plant variety or establish a unique law (sui generis) to safeguard the plant itself or its changes, and then get a patent for the altered plant.

Section 2(b) of Biological Diversity Act, 2002 - "Biological diversity" means 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 ecosystems.

Section 2(c) of Biological Diversity Act, 2002:

"Biological resources" means plants, animals, and micro-organisms or parts thereof, their genetic material and by-products (excluding value-added products) with actual or potential use or value but does not include human genetic material.

Biological Diversity Act 2002:

The Biological Diversity Act 2002 came into force on February 5, 2003, to provide a legal framework for protecting biodiversity in India. This act outlines rules and guidelines for the sustainable use, protection, and equitable sharing of benefits arising from the utilization of biological resources and associated traditional knowledge.

The act often includes provisions related to access and benefit sharing, the protection of traditional knowledge of indigenous and local communities, and the establishment of national biodiversity authorities to oversee these matters. It establishes the National Biodiversity Authority (NBA) to oversee matters related to access, benefit-sharing, and conservation of biological diversity.

The act also empowers State Biodiversity Boards at the state level to regulate all local matters relating to biodiversity. The legislation also laid down provisions for the conservation of species and rehabilitation to protect endangered species.

This legislation imposes a ban on Biopiracy. Biopiracy is the illegal and frequently unauthorized exploitation of biological resources, along with traditional knowledge and genetic material sourced from indigenous and local communities. Usually driven by individuals or groups aiming to secure patents or financial gain from these resources, biopiracy encompasses the appropriation of both biological and cultural heritage.

This happens without offering appropriate compensation or advantages to the communities that have nurtured and advanced these resources across multiple generations. The act also laid down a penalty of Rs. 10 lakhs for violating any provision of the act, the penalty can exceed Rs. 10 lakhs in some situations like Biopiracy.

Intellectual Property Rights (IPR) relating to Biodiversity:

The United Kingdom was the first legislation to have legislation on biodiversity in the world, the main aim of having such legislation was to protect farmers' Intellectual property by protecting their newly invented seeds and crops. The UK became the first country in the business of selling registered seeds and rewarding the individual who invents the new seed, here the invention refers to the genetic change in the nature of the seed that already exists.

Most of the developed nations introduced Plant Breeder's Rights (PBR). The purpose of establishing Plant Breeder's Rights (PBR) was to facilitate the commercialization of genetic resources. Over the span of over six decades, developed nations have utilized Plant Breeder's Rights (PBR) to cultivate a wide array of plant varieties.

International Union for the Protection of New Varieties (UPOV):

In 1969, the International Union for the Protection of New Varieties (UPOV) was established in Geneva to facilitate the harmonization of Plant Breeder's Rights (PBRs) across countries. This convention also introduced criteria for determining the eligibility of new plant varieties for protection. UPOV laid out three essential requirements that new plant varieties must fulfill to qualify for protection under the convention.
  1. The variety must exhibit complete distinctiveness from existing known varieties. The new variety should genetically differ from the existing variety.
  2. The new variety should display uniformity, homogeneity, and stability in its characteristics. The new variety should not differ from its own category.
  3. The variety must not have undergone commercial exploitation prior to the date of application for biodiversity protection.
India holds the distinction of being one of the twelve global mega-diversity centers, boasting a rich biodiversity. The country is endowed with diverse natural resources, including 167 crop species, 320 wild crops, and a diverse range of domesticated animals. It stands out as a significant hub for the origination of numerous plant and animal species, contributing significantly to global agriculture and securing a place among the top ten nations making valuable contributions to the field.

Intellectual Property Rights (IPR) legislation governing Biodiversity:

Trade-Related Intellectual Property Rights (TRIPs) and Convention on Biological Diversity (CBD) are the two notable conventions that deal with the protection of biodiversity in terms of intellectual property.

India introduced the Biological Diversity Act in the year 2002 to comply with the international treaty TRIPs and CBD. These laws facilitated the patenting of microorganisms in India and extended the patent duration to 20 years for both products and processes. Furthermore, India has taken steps to join the UPOV Convention, necessitating Plant Breeder's Rights certification for new plant varieties within the country. The inclusion of biological material deposit procedures has also been integrated to align with the provisions of the Budapest Treaty.

Geographical indications (GIs) in Biodiversity:

Geographical indications (GIs) are the main source of IPR that protect the biodiversity in India. Article 22 of the TRIPS Agreements defines a geographical indication as "signs that originate in a member or identify a good location in an area or locality where a given quality, reputation, or specialty is assigned to its geographical location Is given Is essentially acceptable". Any product that is produced with traditional knowledge by the local communities using their ancient technique can be registered as a GI. A fundamental criterion for conferring Geographical Indication (GI) protection is the requisite production of the product in the designated geographical region for a continuous span of at least one hundred years.

Example: Darjeeling Tea: Darjeeling tea is known for its unique flavour and quality, attributed to the geographical region of Darjeeling in West Bengal. It has received Geographical Indication status to protect its origin and the specific characteristics associated with tea grown in this region.

Kanchipuram Silk Sarees: Kanchipuram, a town in Tamil Nadu, is renowned for its traditional silk sarees. These sarees are known for their distinctive designs, vibrant colours, and high-quality silk, all of which are linked to the geographical region.

Marketing these GI products resulted in economic growth in many aspects, as these products have their unique origin, and they admire a large scale of customers. Some examples of worldwide GI products are Scotch whisky, Harris tweed, and Feta cheese.

The existing Intellectual Property Rights (IPR) framework encourages the commercialization of seed development, monoculture practices, and the safeguarding of novel plant varieties, microorganisms, and genetically modified organisms. This trend contributes to the ongoing reduction of diverse biodiversity. Consequently, there arises a necessity for an alternate mechanism that can harmonize the established formal intellectual property systems with the sustainable considerations of biodiversity.

This approach can potentially have detrimental effects on biodiversity by facilitating the exploitation of biogenetic resources, which are predominantly situated in developing nations. Developing nations like India should have clear and simple legislation to protect biodiversity, the commercialization of biodiversity should be regulated by improving the existing legislation in India.

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