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Biodiversity legislation reflects India's obligations
This is the first part of a four part series on biodiversity,
patents and plant variety bills that reflect India's obligations
under the TRIPS and Biodiversity Convention.
INDIA IS a member of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) of the World Trade
Organisation (WTO) and the Biodiversity Convention. It is seeking
to implement its obligations concerning these two agreements and
bills have been introduced in Parliament for this purpose. Two of
the bills, the Protection of Plant Varieties and Farmers' Rights
Bill and the Patents (Second Amendment) Bill constitute India's
response to some of its obligations under the TRIPS agreement.
The Biological Diversity Bill seeks to implement the principles
of the Biodiversity Convention in domestic law. Each of the three
bills has been referred to parliament committees for further
examination. The Joint Committee on the Plant Varieties Bill is
the only one that has completed its work and it has been
announced that this bill will be taken up in priority in the
Budget session.
The three bills have their own distinct focus but they share in
common an attempt to define property rights over biological
resources (real property rights) and property rights over
knowledge or inventions related to biodiversity (intellectual
property rights). The allocation of real and intellectual
property rights over biological resources has become an important
issue in recent years both in India and abroad. This is linked to
increasing concerns over the conservation of biological and
genetic resources and to the increasing economic value of these
resources. Before turning to the responses that the three bills
seek to give, it is necessary to examine the broader context into
which they fall since they are heavily influenced by developments
at the international level.
Gene banks
As far as real property rights are concerned, control over
biodiversity and natural resources has been of concern for a long
time in all decolonised countries. In fact, the assertion of
sovereignty over natural resources by newly independent countries
was seen as central to the realisation of economic independence.
Sovereignty has remained the fundamental principle around which
the conservation and use of biodiversity is based. Despite the
insistence on sovereignty, there was also a broad consensus for
sharing resources, in particular in the field of agriculture. It
is on this basis that international gene banks were set up, for
instance, under the auspices of the Consultative Group on
International Agricultural Research (CGIAR). The principle
governing these gene banks was that states would freely
contribute specimens and in turn be able to freely draw upon the
accessions kept there. One of the reasons for countries willingly
contributing resources to these collections was that most
countries are dependent on other areas of the world for some of
their main food crops.
If the issue of real property rights has been considered for a
long time, the question of intellectual property rights has
become central following the rapid development of genetic
engineering in the past couple of decades. Debates are heated
because the current trend reverses a century of developments in
intellectual property law. Nature and nature-related knowledge
used to be excluded from patentability but recent developments go
a long way towards accepting the patentability of life forms. If
patents on life forms are first controversial at a conceptual
level, there are a host of other issues of concern. Indeed, the
management of biological resources in India is directly linked to
the fulfilment of at least two of the most basic needs, namely
food and health.
Protection of plant varieties
Controversies over the introduction of patents or similar
intellectual property rights are linked to some of the
characteristics of these rights. Patents are monopoly rights
granted for 20 years under TRIPS to a person or entity whose
invention is deemed to be 'state-of-the-art'. The allocation of
monopoly rights to inventors is based on the perceived need to
reward the research effort and allow them to recoup the costs of
their research. In effect, patents provide incentives for the
development of the private sector in areas where free market
principles do not offer sufficient incentives for the development
of the industry. TRIPS provides that patents should generally be
available in all fields of technology. India also has the
specific obligation to protect plant varieties either through
patents or an alternative property rights system (sui generis
system).
As far as plant varieties are concerned, a specific international
convention, the International Convention for the Protection of
New Varieties of Plants (UPOV) introduces a particular kind of
monopoly intellectual property rights known as plant breeders'
rights. These rights also seek to foster the development of a
seed industry but differ slightly from patents insofar as they
provide some exceptions for other breeders to do research on the
basis of a protected variety and some exceptions for the benefit
of farmers. However, the latest revision of UPOV adopted in 1991
has strengthened the rights of breeders to such an extent that
the distinction with patents is becoming increasingly blurred.
UPOV has acquired significance in recent years for India since it
has been proposed as a possible sui generis system for countries
having to introduce intellectual property rights over plant
varieties.
On the whole, the current international legal framework favours
the appropriation of biological resources and related knowledge
through sovereign rights and private property rights. It
generally seeks to increase incentives for the commercial
exploitation of these resources and knowledge. One of the
consequences is that the role of common property rights which are
still very important in many rural communities for the fulfilment
of basic food and health needs is progressively sidelined.
The three bills that are now before Parliament do not question
the current international framework. Even though it can be argued
that India's choices are limited as long as it chooses to remain
a member of the WTO, the Plant Varieties Bill illustrates the
fact that even where international treaties give countries some
leeway, this is not necessarily being fully used. Other factors
make the implementation of TRIPS and the Biodiversity Convention
a tricky affair. First, the goals of the TRIPS Agreement and the
Biodiversity Convention are partly contradictory. However, even
if there are contradictions, India must fulfil all its
international obligations at the same time and cannot give any
preference to TRIPS. Second, the broader forces of globalisation
and privatisation are making it extremely difficult to rely on
old principles like that of sovereignty. Asserting sovereign
rights over biological resources and related knowledge is, for
instance, partly irrelevant today given the quantity of resources
and information which have already been taken out of the country.
The constraints of the international legal framework
notwithstanding, the government has some freedom in drawing up a
property rights model for biological resources that applies to
transactions within the country. In the current bills, local
actors, from farmers to local communities, tend to become passive
agents whose contribution to biodiversity management is generally
not recognised through property rights but through some form of
compensation determined by a central authority.
At present the bills reflect mainly India's obligations under the
TRIPS and Biodiversity Convention. There are, however, a number
of other treaties which are equally relevant, such as human
rights treaties recognising fundamental rights like the right to
food. Given the close link between control over biological
resources and food security, it seems imperative that the bills
should take a broader view of the situation and recognise the
basic importance of these resources to the direct survival of
most people in the country, instead of looking at them mainly
from the perspective of trade and markets. This can only be
realised if property rights are shared among the various actors
who manage biological resources and not through the introduction
of monopoly rights benefiting nearly exclusively bigger
companies, including foreign multinational companies. In other
words, it is not possible to consider the allocation of property
rights in the field of biodiversity only from the perspective of
trade or environmental concerns given the significant socio-
economic consequences that the introduction of new forms of
property rights can have for a majority of the population.
Philippe Cullet
(The author is with the International Environmental Law Research
Centre, Geneva, email: pcullet@vsnl.net)
(To be continued)
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