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
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
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
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
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.
- The variety must exhibit complete distinctiveness from existing known
varieties. The new variety should genetically differ from the existing
- The new variety should display uniformity, homogeneity, and stability in
its characteristics. The new variety should not differ from its own
- 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
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
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.