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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