Biodiversity is a defining feature of life on earth. It provides the foundation
for sustainable development. However, disputes on how to balance the
preservation of biodiversity with intellectual property rights have dominated
the 1990s. Two international agreements-the Convention on Biological Diversity (CBD)
and the Trade Related Intellectual Property Rights (TRIPS) agreement of the
World Trade Organization-have had a significant impact on the intersection of
intellectual property rights (IPRs), biodiversity, and related knowledge systems
(WTO). In full compliance with the CBD, biodiversity is to be protected. The CBD
also establishes the fundamental conditions for access to biodiversity resources
and related knowledge systems.
The existing Intellectual Property Rights (IPR) framework promotes the
commercialization of genetically modified organisms, monoculture, and novel
plant types. As a result, our biogenetic variety is irrevocably disappearing.
Finding a way to create an alternate strategy that will combine the formal
Intellectual Property (IP) system with sustainable biodiversity characteristics
There is a lot of action at the national level in response to the discussion on
a global scale. Many nations are creating laws or other regulations in response
to the foregoing conventions or to order address the relationship between IPRs
Disputes on how to balance the preservation of biodiversity with intellectual
property rights have dominated the 1990s. The intersection of intellectual
property rights, biodiversity, and related knowledge systems is impacted
significantly by two international agreements: the Convention on Biological
Diversity and the Trade Related Intellectual Property Rights agreement of the
World Trade Organization.
The CBD establishes the fundamental conditions for
access to biodiversity resources and related knowledge systems that obliges
parties to protect biodiversity and the customs and knowledge of the indigenous
and other local groups involved with it.
The TRIPs Agreement requires
participant nations to alter the domestic intellectual property laws to conform
to significantly higher international requirements. These might have an impact
on biodiversity and related knowledge systems.
The World Intellectual Property
Organization and other international organizations are also becoming more
involved in this area. The WTO procedure has one distinct advantage over the CBD
in enforcing compliance since it can impose trade sanctions against a
disobedient participant, whereas the latter has no such measures.
The CBD principles that are most pertinent to the discussion of biological
resources and IPRs can be summed up as follows:
- States have sovereign control over the biological resources that are within their borders and shall ensure their conservation and sustainable use;
- Although states shall have the authority to control access to their biological resources, they shall endeavour to create conditions that facilitate such access;
- On mutually agreed terms and conditions access shall be granted;
- The party giving access to genetic resources must fairly and equitably share the advantages with the party granting such access;
- The broader application of indigenous and other local groups' knowledge, inventions, and practices must be conducted with their consent and participation.
Several aspects of the TRIPs Agreement have implications for the above principles of the CBD:
- It requires developing nations to modify their current intellectual property protection regimes and adopt ones that are comparable to those in place in industrialised countries;
- It proposes comprehensive coverage under national patent regimes and mandates that patents shall be available for inventions, whether products or processes, in all fields of technology. The overarching objective is to extend patent protection to selected forms of life which were hitherto not considered patentable by most countries;
- The TRIPs Agreement stipulates that protection must be offered "either
by patents or by an effective sui generis system or by any combination
thereof" in relation to plant varieties.
There is a lot of action at the national level in response to the discussion on
the global scale. Several nations are creating laws or other regulations in
response to the mentioned accords or to address the connection between IPRs and
biodiversity in plenty of ways.
The following goals are what nations are working
- Protection of indigenous knowledge (traditional and modern) from being
"pirated" and used in IPR claims by industrial/commercial interests.
- Regulation of access to biological resources in order to put an end to
alleged historical "theft" of these resources by the more powerful sectors
of the global society and allow communities/countries to gain control and
benefits from their use.
A Brief History Of IPR And Biodiversity
IPRs, as the name indicates, grant legal protection to ideas and information
used to create new products or procedures. In return for being required to
provide the formula or strategy behind the product/process, these rights allow
the holder to prevent imitators from commercializing the innovations or
procedures for the specified period. IPRs' stated goal is to promote innovation
by providing greater financial rewards than the market would otherwise be able
While IPRs like copyrights, patents, and trademarks have existed for
millennia, the extension of IPRs to living things and the associated information
and technology has just lately. The United States Plant Patent Act, which
granted IPRs to asexually reproduced plant types, was approved in 1930.
that, several nations gave plant varieties some protection, and in 1961, signed
a global convention to protect the latest sort of plants. The majority of
signatories who founded the Union for the Protection of New Varieties of Plants
were industrialized nations (UPOV). This statute became operative in 1968.
Plant varieties or breeders' rights (PVRs/PBRs) offer the right's holder some
control over how "their" varieties to get marketed. The monopolistic aspect of
PVRs/PBRs has been intensified by a 1991 modification to the UPOV, and several
nations have essentially abolished the exemptions for farmers and breeders.
However, industrialised nations are discussing the merits of PBRs as a type of
monopoly that will promote plant breeding.
The International Convention for the
Protection of New Varieties of Plants (UPOV Convention), which was finalised in
1978 and, as previously said, updated in 1991, strengthened the non-competitive
hold of plant breeders, was the culmination of this.
Organization for Economic Co-operation and Development (OECD) nations made up
the majority of the UPOV Convention's membership. The requirement to protect
plant selection property rights, however is presently extended by the travel
Agreement to any or all international organisation Member States.
These plant rights were only recognised in a few countries until very recently,
they could not be enforced in other countries. With the TRIPs Agreement's sign
language, this has changed, though. The term "biodiversity" refers to the
complete range of variation present among and among the species of living things
in their natural settings.
This system of intellectual property rights is
promoting monoculture, the commercialization of seed production, and the
preservation of the most recent plant varieties, microbes, and genetically
modified creatures. Different words are stated in the Asian nation's Biological
Diversity Act, 2002.
The agro-biodiversity record of India is similarly impressive. There are 320
species of wild crop relatives, 167 crop species, and several additional
domesticated animal species. India ranks sixth in terms of its contribution to
global agriculture and is said to be the source of a vast and diverse legacy of
The Relationship Between IPR And Biodiversity
IPR serves two purposes in relation to biodiversity: firstly, it protects
products made with particular raw materials found in the biodiversity system,
such as the expensive furniture made with Kashmiri wood from a specific species
of teak tree found in the Kashmir region and second, it secures products that
are derived directly from conventional wisdom, such as the use of Malabar Pepper
as a medicine. IPR serves these two purposes concerning biodiversity. The
geographical indicators system established by intellectual property law protects
The growing demands across the world, for herbal and organic
products in urban communities today demonstrates the significance of goods
generated directly or indirectly from biodiversity outside of rural, tribal, and
indigenous sectors. The use of its derivatives in improving soil fertility,
reducing crop failures, balancing the nutritional value of products, and
guaranteeing food security has had the most influence on biodiversity in the
The growth of increased output through commercial
agriculture research and development has led to the creation and utilisation of
new plant types. Intellectual property laws can halt commercial agriculture and
genetic deterioration as, it is essential to preserve these novel plant species.
As evidenced by the dynamic history of mankind, innovation is motivated by
motivations other than financial gain, such as social recognition, reform,
goodwill, and the necessity to exist. Asian farmers created hundreds of
thousands of rice varieties from a single species to meet varied ecological and
Traditional healers, farmers, and others are motivated to
innovate to address society needs by the spirit of social welfare. It is simpler
to identify these innovators who are operating inside the biodiversity system
because to the protection provided by intellectual property regulations, which
also serve as a strong incentive for innovation.
IPR And CBD
Two intriguing IPR-related clauses are found in the CBD. According to Article
16.5 of the CBD, Contracting Parties must work together to make sure IPRs
"supportive of and do not run counter to the CBD's objectives." However,
"subject to national legislation and international law."
According to Article
22, the CBD's provisions do not impact a nation's rights or responsibilities
under "current international accords, unless the exercise of those rights or
obligations would seriously harm or endanger biological diversity." Many
individuals have come to the conclusion that there is a foundation for halting
the seemingly unstoppable march of the IPR regimes mentioned above after reading
the documents together and in the spirit of the CBD.
However, it is necessary to look at how IPRs really affect biodiversity in order
for this argument to be valid. This is a challenging topic since many
implications are hard to evaluate. But the following must be taken into account:
- The resources and expertise of resource-rich but economically underdeveloped nations and people have been appropriated by industrial and commercial interests thanks to current IPR laws, further impoverishing them and denying them the advantages of technological progress;
- The tendency toward systemic standardisation of agricultural production and medicinal plant use is projected to be considerably intensified by IPRs. Any company in the agricultural industry, for instance, that has invested a substantial sum of money in getting an IPR, would want to promote its variations as much as possible. Although IPRs would undoubtedly not be the sole cause, the outcome might seriously reduce the variety of indigenous crops;
- In some cases, both public sector and small-scale private sector crop variety development may be stifled by species-wide IPRs (like those for transgenic cotton and soybeans);
- Paying large amounts of royalties to industrial nations and businesses might significantly raise the debt loads of many nations. This might exacerbate the already widespread environmental and social disturbance brought on by debt repayment strategies like exporting natural goods;
- If the stricter regimes that UPOV 1991 sanctions are imposed on their countries, these regimes would also increase the financial burden on farmers, further discouraging innovation; farmers who innovate on seeds through re-use, exchange with other farmers, and other means would be increasingly discouraging from doing so;
- IPRs' ethical implications are significant, and for many groups and individuals, they constitute the main justifications against the present IPR regimes. The fundamental premise that nature exists independently from and only for the purpose of people makes the patenting of living forms unacceptable to many traditional communities and contemporary conservationists. Many civilizations who believe information is primarily, if not entirely, in the public domain find the privatisation of knowledge abhorrent.
IPR And WTO Agreement Of Trips Agreement
Along with patents and "sui generis systems" for plant selection protection, the
TRIPs Agreement also covers a wide range of IPRs that influence biodiversity
conservation. However, the benefits are shared (including with traditional
groups), and what technologies are produced and distributed with consequences
for biological variety conservation and private usage is defined by patent
protection and sui generis regimes.
The TRIPS Agreement mandates that Members grant patent protection to inventions
in all fields of technology, including goods and processes, that are novel,
creative, and have a marketable use (Article 27.1). This broad mandate is
subject to several required exclusions that may be important for the successful
execution of the CBD's goals.
Members may, for starters, deny patents for
discoveries where doing so would be required to "protect order public or
morality, together with to shield human, animal or plant life or health or to
avoid serious prejudice to the environment" (Article 27.2). Second, Members are
not compelled to award patents on plants or animals, despite the fact that they
are required to do so for non-biological and basically biological methods used
in the assembly of plants and animals (Article 27.3(b)).
Third, subject to
specific restrictions, Members may grant limited exceptions to the exclusive
rights granted by patents (Article 30). Finally, under certain conditions,
Members may permit third parties to exploit a patented innovation without the
patent owner's consent (Article 31). The WTO is still unsure of the extent and
value of those rules in assuring conformance with CBD goals.
Sui Generis Systems Of Plant Variety Protection
Sui generis protection for plant varieties is a condition that results from the
exemption to patentability in Article 27.3(b). Members are required to give
protection for plant varieties, either through patents or an "effective sui
generis system," according to Article 27.3(b). A sui generis system is one that
the Member selects for the preservation of plant varieties and may be created to
meet the specific needs of that Member. Members can choose a combination of sui
generis and patent protection.
The way those laws on protecting plant selection are interpreted and applied may
have a big impact on how the CBD is put into practise. The TRIPS Agreement's
allocation of information rights may have an influence on how profits from the
use of genetic resources are distributed. Sui generis protection, together with
access, profit sharing, and knowledge transfer may be a strategy for achieving
the CBD's goals. Sui generis protection, if improperly defined, might greatly
hinder access and benefit sharing, the preservation of indigenous and aboriginal
people' customs, and technology transfer.
Challenges Of Biodiversity
Preservation of and Respect for the Knowledge, Innovations, and Practices of
Indigenous and Local Communities: The possibility of misappropriating
traditional knowledge may rise as a result of current IPR systems like patents.
There is also worry that the current IPRs do not offer native and indigenous
populations enough incentives to protect and, if necessary, profit from their
traditional knowledge. It is obvious that current IPR systems, like patents, are
frequently ineffective at protecting traditional knowledge.
They are frequently
expensive and difficult to access, and they are unable to protect traditional
knowledge, which is frequently held collectively and handed down through the
generations. Some communities may employ other IPRs, such as geographical
indications, copyright, and trademarks, although their applicability and scope
of protection are constrained.
Transfer of Technology: First, IPRs, patents, and sui generis systems for plant
variety protection may have a significant influence on the types of technologies
created and whether they are suitable for "the conservation and sustainable use
of biological diversity or create use of genetic resources and do not
significantly harm the environment."
In this sense, the technologies that the CBD is considering include both those that directly emerge from the exploitation
of genetic resources (such as biotechnology) and a larger class of technology
that is "relevant to" biodiversity conservation and property use (for example-
agriculture and land use technologies).
Second, as required by the CBD, IPRs may significantly impact access to and the
transfer of technology to developing nations on "fair and most advantageous
conditions." The TRIPS Agreement contains responsibilities for the transfer of
technology along with its goals in article 7 (which identifies the transfer of
technology as one of the TRIPS Agreement's primary goals) and Article 66.2.
(which require incentives to be established to encourage technology transfer to
the least developed countries).
As noted, however, little has been done to
implement these provisions, and concern has been raised about the requirements
of Article 27.3(b) relating to IPR protection over plants, microorganisms, and
micro-biological processes, and the consequent control of the elements of
Convention and Sustainable use of Biodiversity: The preservation and sustainable
use of biological variety may be impacted in additional ways by the IPRs
established under the TRIPS Agreement. These effects on biodiversity
conservation are frequently indirect to quantify precisely.
Conventions On Biodiversity
The Convention on Biological Diversity (CBD) entered into force in 1993 to
prevent the signatories improper exploitation of the biological resources and
traditional knowledge of developing nations. The objectives are:
- Sovereign rights of members on their genetic resources,
- Prior consent from the country of origin to facilitate foreign access,
- Equitable sharing of advantages and transfer of technology at intervals between the members,
- The IPR regime should not negate the CBD's objectives.
- The FAO Global Plan of Action focuses on the fact that the primary mechanism to shield the rights of the suppliers of genetic resources is the rights of farmers. However, the CBD entails a wide range of beneficiaries. CBD offers minimum guidance in the context of the character and mixture of advantages, what constitutes a good and equitable share and who all are the beneficiaries.
Consequently, there is a clear legal gap in the international frameworks for
protecting common resources. Additionally, the possessions substantially
contradict the native peoples' cognitive structure. However, the use of
historical resources is restricted frequently by the use of intellectual
The laws that have been passed should have enough punitive measures and
compensation amounts for reducing resource exploitation. The international
frameworks should work together more to regulate property rights and take the
value of historical materials into account. Additionally, providing a group of
people the geographical designation standing assists in protecting the people's
rights and deters further exploitation.