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Biodiversity And The Role Of Intellectual Property Rights

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 is essential.

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 and biodiversity.

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:
  1. States have sovereign control over the biological resources that are within their borders and shall ensure their conservation and sustainable use;
  2. Although states shall have the authority to control access to their biological resources, they shall endeavour to create conditions that facilitate such access;
  3. On mutually agreed terms and conditions access shall be granted;
  4. The party giving access to genetic resources must fairly and equitably share the advantages with the party granting such access;
  5. 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:
  1. 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;
  2. 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;
  3. 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 to accomplish:
  • 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 to.

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.

After 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.

Until recently, 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.

Indian Scenario
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 biodiversity.

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 latter.

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 agricultural sector.

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 socioeconomic demands.

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.

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.

Patent Protection

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 biological diversity.

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 property regulations.

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.


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