This article is written by Dhruv Shah, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com.

Introduction

“Which one of the following has the maximum genetic diversity in India?” I was recently asked this question in my examination with the options of Wheat or Mango and it may seem shocking to some that the correct answer is not our ever-grown ‘wheat’ but ‘mango’ a seasonal fruit, which has more genetic diversity in our country. There are about 1500 varieties of mangoes grown in India with 1000 being grown for trade. To clarify for my professor reading this article, Rice has the highest genetic diversity among all the crops grown in our country. This was just a small insight into the unparalleled beauty of our Biodiversity. This article aims to highlight the conflicting nature of the relationship between WTO’s IP Agreement and its impact on the Convention on Biological Diversity (CBD). After all, in current times biodiversity is not just about distinguishing and preserving the flora and fauna as it possesses a unique aspect of intellectual property that is very integral to avoid its exploitation and to reduce conflict with other international instruments.

What is biodiversity?

Biodiversity embraces the variety of all life on earth. Biodiversity forms the web of life on which we are an inherent part and upon which humans are dependent for their living. Biological diversity impacts all life on the earth, not only humans. The biological resources of the earth are indispensable to the economic and social growth of mankind. In the late ’80s, there was speculation that biological diversity is a worldwide asset of tremendous value to present and future generations. But at the same time, it was seen that the menace to species and ecosystems is increasing at an appalling speed which has never been as it is today.

India is one of the most diverse countries in the world. When it comes to traditional and indigenous knowledge, both coded and informal, India has an abundance of it. India is also a singing party to the Convention on Biological Diversity, 1992. Acknowledging the sovereign rights of states to use their biological resources, the Convention intends that the parties expedite access to genetic resources by other Parties which are subject to national legislation and on terms mutually agreed between them. The birth of this law can be traced back to the Convention on Biological Diversity (CBD), which was signed at the Rio Summit in 1992.

Convention on Biological Diversity (CBD)

CBD is one of the three conventions pledged by governments at the 1992 Rio Earth Summit. It is probably the most significant international agreement ever adopted. It takes into account that setting social and economical goals for the use of biological resources and the benefits derived from genetic resources is key to the process of sustainable development and that this in turn will aid the growth of conservation. The Convention on Biological Diversity was influenced by the world community’s growing commitment to sustainable development. The objectives are just to fulfil the following three goals: 

1. Conservation of biological diversity;
2. Sustainable use of components of biological resources;
3. Fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

Wto’s IP Agreement (TRIPS)

There has been a conclusion that those local and indigenous communities in developing countries, who have fostered this biological diversity and depend upon it, are equally under danger from the same forces. Not only their livelihoods but their traditional knowledge systems and practices of innovation, amassed over generations, and they are prior rights to this heritage, are being jeopardized by industry’s hunger to exploit and deplete biodiversity and claim exclusivity over life forms.

The 1993 Convention on Biological Diversity (CBD) is a legally binding pledge to stop this destruction and preserve our biodiversity. After the CBD came into force, the World Trade Organisation (WTO) was developed with quite a different agenda. Intellectual property in the WTO is known as “TRIPS” — trade-related aspects of intellectual property rights. The World Trade Organisation was set up six months after CBD came into force. It encourages and oversees global rules on trade. The institution is chiefly occupied with eliminating what it determines to be ‘trade distortions’ and ‘trade barriers’.

In the last round of GATT negotiations, which gave birth to the establishment of WTO, the omission of strong intellectual property rights in developing countries was said to be a barrier to trade, which cost industrialized countries almost $200 billion in lost royalties per annum. TRIPs were thus oriented towards bringing developing countries’ IPR laws to the point which transnational trading interests deem essential.

CBD and TRIPs: The big conflict

The origin of the conflict between CBD and TRIPs could be found at the very beginning of these agreements. The fundamental objectives, principles, and responsibilities under these agreements would lead to becoming the cause behind the conflict due to their opposite nature. The Convention is based on the principle that local communities yield and are dependent on biodiversity and should continue to gain benefits from it. The WTO oversees a global trading system, much of which is formed on the private monopoly rights of transnational corporations over biodiversity.

True these rights and objectives conflict. Yet both treaties provide legally binding commitments for governments. The links between the TRIPS agreement and the environment are complicated. Discussions on these issues are mainly taking place in the TRIPS Council and in consultations on “outstanding implementation issues”, a set of concerns that developing countries and others have put forward about the proper implementation of the present WTO agreements.

With wide support from other developing countries, a group of developing countries has reaffirmed their proposal on amending the TRIPS Agreement that requires patent applications to reveal the source of biological materials (and any traditional knowledge) which have been utilized in the inventions. The aim here can be deemed to be two-fold:

1. To avoid patents being issued for inventions that are not genuinely new.
2. To help ensure that inventors have adhered to countries’ regulations on receiving permission to use the biological resources and on sharing the benefits with the owners of those resources.

Some scholars are of the view that such a proposal is a necessity when it comes to accomplishing the shared objectives in this area, which can be most efficacious realized in different ways without involving the patent system. In between these two positions, support has been expressed for a more limited patent disclosure requirement at the international level, limited to the origin or source of genetic material and related traditional knowledge and without any substantial implications for patentability. The conflict between CBD and TRIPs over the rights to biodiversity will force parties to decide which agreement should take priority over the other. According to scholars, there are three areas of outright contradiction: in their objectives, systems of rights, and legal obligations. The CBD and TRIPs have conflicting objectives because the agenda of TRIPs is to privatize, not to protect, biodiversity. 

The objective behind CBD is to strengthen developing countries’ capacities to conserve and use biological diversity, taking into consideration all rights over those resources, and including the right to enjoy the benefits arising out of these resources.

On the other hand, the objective behind TRIPs is to provide private property rights over products and processes, be they biodiversity-based or not, to guarantee that corporate interests are safeguarded equally worldwide. The uniform legal regime which TRIPs aim to accomplish would provide exclusive control to those who claim to have ‘invented’ new plants, animals, micro-organisms or uses thereof.

Issues faced by members of these conventions and treaties

All member states of the CBD and TRIPs agreements face these issues which they cannot avoid. Both treaties are legally binding for signatories, but their responsibilities pull countries in opposite directions. There is a high chance that a country that seeks to implement community rights with a good intention, and does so through a CBD-framed policy, could find itself in severe violation of the TRIPs Agreement.

On further investigation, we can come to the belief that the fundamental conflict between CBD and TRIPs can be summed up as two sides of a coin where on one side the CBD recognizes that states have national sovereignty over their biological resources and on the other TRIPs try to introduce private individual rights over the same.

Indian perspective

India is one of the few countries which possess a significant and relevant amount of biological resources, reviewing its response to the TRIPs-CBD conflict can help comprehend the practical implications of this conflict on other developing countries as well. India has always been at its front foot for the rights and safeguarding of its biodiversity because it is home to almost 49,000 species of plants and 8% of total global biological resources. The dispute between India and the USA regarding patenting of turmeric is notoriously famous and has led to the revocation of the US patent over the plant after India objected to it.

The acceptance of intellectual property statutes in India was partly the outcome of global pressures from various countries and international organizations for awarding protection to private intellectual property rights. For the safeguarding of its biological resources, India introduced a new legislation namely the Biological Diversity Act, 2002. Now while analyzing India’s stand in the conflict between TRIPs and CBD, the Biodiversity Act carries much significance since its legislation conformed to some of the provisions of the TRIPs.

Here the Biodiversity act falls short while comparing compliances adhered by it of CBD and TRIPs. This is why the Indian Patents Act was again amended in 2005 after initially being amended in 2002, to overcome its shortcomings regarding adherence to provisions of TRIPs. Although lack of unity between the Biodiversity Act and the Patent Act makes the TRIPs-CBD conflict evident. Whereas the CBD acknowledges the sovereign right of a state over biogenetic diversity and resources originated in its territory, the Biodiversity Act extends even CBD by forging sovereignty over all biological resources occurring in its territory.

Resolving the conflict (saving the relationship)

The end goal conflict should be the preservation of our resources and the prevention of their exploitation. If the CBD is to be implemented to sustain the goal of ensuring humanity’s survival and well-being, then imperative measures need to be taken to guarantee that its very objectives are not eroded by the narrow agenda of TRIPs. It is essentially a matter of:

1. Acknowledging that the CBD has predominance over the WTO when it comes to biodiversity and traditional knowledge.
2. To make sure that the review of the TRIPS Agreement allows sovereign states to omit all life forms and related knowledge from IPR systems.
3. On an urgent basis recognize prior ensuring humanity use of all the rights of indigenous peoples and local communities over their biodiversity and associated knowledge.

Conclusion

The Convention on Biological Diversity is the only international treaty that safeguards the biological resources of a country. Biological resources and the traditional knowledge of indigenous people are the prime assets of the country owned solely by the people of that country. Thus, there is a need, at the global level, to ensure protection against unauthorized and illegal exploitation of biological resources by any other country. TRIPs aims at globally safeguarding the corporate interest arising out of the IP rights whether they are biodiversity-related or not whereas CBD aims at the protection of such biodiversity while preserving the national sovereignty and recognizing the rights of local communities over their biodiversity. The aims of these agreements are conflicting in nature and it would be wrong to view the relationship between these agreements as one’s having harmony. 

Indian statutes such as the Biodiversity Act and the Patents Act being somewhat based on the CBD and TRIPs respectively can be seen to embody the conflict as well, although not to an extent as great as the former. The whole battle revolves around the privatization and conservation of biogenetic resources. There is a need to achieve a proper balance between the preservation of our resources and organizing them under the purview of intellectual property to prevent their exploitation. After all, this pandemic has taught us that protecting nature is our first, best, and most cost-effective line of defence against future pandemics.

References

• https://www.researchgate.net/publication/257985751_The_interface_between_TRIPS_and_CBD_Efforts_towards_harmonisation
• https://science.thconflictewire.in/environment/why-conserving-biodiversity-is-crucial-to-prevent-future-pandemics/
• https://www.americanprogress.org/issues/green/reports/2020/04/20/483455/confronting-pandemic-must-save-nature-save/
• https://news.un.org/en/story/2020/05/1064752
• https://indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf
• https://sustainabledevelopment.un.org/milestones/unced
• https://www.wto.org/english/docs_e/gattbilaterals_e/indexbyround_e.htm
• https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf

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