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Biodiversity and Intellectual Property Rights – can the two exist

June 05, 2021
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Image source: https://thecolumnofcurae.wordpress.com/2020/09/07/protection-of-bio-diversity-under-intellectual-property/

This article is written by Kinjal Keya who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction 

Biodiversity refers to the variableness amidst the living beings originating from all the sources and the environmental systems of which they are part, further it is inclusive of the diversity at the interspecies and intraspecies level and also of ecosystems. Biodiversity is an asset to human life and provides a sustainable path towards achieving developmental goals. Intellectual property rights refer to the mechanism for protection granted to inventors and originators of inventions, ideas, products, etc to safeguard them from commercial exploitation. Both these concepts share a considerable degree of interdependence as inventions and products are derived from the resources present in biodiversity. 

Interdependence amongst biodiversity & intellectual property law

The function of IPR regarding biodiversity is two-fold, firstly with reference to those products which are manufactured by using specific raw material occurring in the biodiversity system, for instance, the premium furniture made from Kashmiri wood obtained from a specific kind of teak tree found in the Kashmir region and secondly, those products which are directly derived from traditional knowledge, for instance, the use of Malabar Pepper for medicinal purposes is based on the traditional human knowledge which forms a part of the biodiversity system.

The latter is protected through the system of geographical indications under intellectual property law. The role of products originating directly or indirectly from biodiversity is not merely limited to rural, tribal, and indigenous spheres, in the modern-day and age, there is a growing market demand for herbal and organic products in urban societies across the globe. The influence of Biodiversity is of the greatest significance in the agricultural sector, its importance lies in the fact that its derivatives are used for promoting the fertility of the soil, protecting against crop failures, balancing crop’s nutritive value, and ensuring food security. The growth of research and development in commercial agriculture for improving production has led to the invention and usage of new plant varieties, the conservation of these novel plant varieties is an emergent need and intellectual Property laws provide a viable model for protecting commercial agriculture and genetic erosion.

The dynamic evolution of humankind has been a witness to the fact that innovation is driven not merely by monetary benefit but by factors such as social recognition, reform, goodwill, and the cause of sheer survival. The example of Asian farmers developing hundreds of thousands of varieties from a single species of rice to suit diverse ecological and social needs lends support to this. The spirit of social welfare motivates traditional healers, farmers, and others, for using their knowledge to innovate to meet the needs of society. Intellectual property laws act as a tool for recognition of these innovators working within the biodiversity system, it provides an adequate incentive for innovation. Studies of communities involved in biodiversity conservation and sustainable usage for innovation and knowledge sharing have demonstrated that tenurial security, social recognition through the grant of intellectual property rights, and other non-monetized incentives drive such innovation more than merely the promise of monetary gain.

Challenges to sustainable usage of biodiversity

The exponential increase in demand for products derived from the resources of the biodiversity such as organic fertilizers and herbal medicine implies new opportunities for the local communities as the financial benefit through sharing of resources and knowledge can contribute to their socio-economic development. The local communities act as the guardians of the biodiversity resources as they have been dependent on them for generations and their upliftment will have a direct positive impact on the biodiversity. However, instances of local communities benefiting from commercial usage of their resources and knowledge have been rare as the bulk of the prophets have gone to companies that use them.

The cases of biopiracy and misappropriation of traditional knowledge are becoming increasingly common. This is due to the lack of awareness about intellectual property rights among the local communities and also the fact that traditional knowledge regarding utilization of biodiversity resources is passed on from generation to generation spread across many families residing in a large geographical area makes protecting a herculean task.

There is a two-fold argument underlying the flaw of existing international safeguards for protecting biodiversity resources. Firstly, The Convention on Biological Diversity (1992) and Nagoya Protocol (2010) set the responsibility on states to ensure that companies that utilize traditional knowledge, natural resources, and other forms of biodiversity derivatives for commercial purposes duly share the benefits derived from them fairly and equitably with the local communities. But these agreements apply to resources collected after the CBD and Nagoya Protocol came into force and do not deal with those resources or sets of traditional knowledge that were already in the public domain.

Secondly, rather than depending on the multinational companies for possible ‘benefit-sharing by them which is a more complex and time-consuming process, the local communities stand to gain comparatively a lot more by selling biocultural products themselves, and working towards a full ‘benefit capture’ approach. The most essential premise is that the development and profit-sharing in the local communities will ensure the maximum safeguard of the biodiversity resources. 

Protecting Traditional Knowledge through Geographical Indications under IP

Traditional knowledge, innovations, and practices play a multifaceted role in agriculture and food, human and animal health, clothing, shelter, architecture, art, and culture; it is an inextricable part of the biodiversity heritage.  Geographical indications, an effective instrument under intellectual property law, can help the local communities in endorsing their product, enhancing its brand value, and creating a market space for it. GIs are gaining popularity globally and are increasingly being looked upon as one of the most effective tools for recognizing and protecting Biodiversity derived products.

A geographical indication is an indication or a sign which describes the geographical origin of the product and associates it with the qualities which are there due to that place of origin. For example, agricultural products such as the Allahabad Surkha (a unique and popular variety of guava found in the Allahabad region of Uttar Pradesh in India) which has a distinct flavor and taste and can be easily recognized due to its red core. This is the reason due to which it is called – ‘surkha’ meaning red. The diverse qualities shown by this variety of guava are attributable to the geographical factors of the region where it is grown in like temperature, humidity, soil, water, etc. 

Usage of GI in marketing products has been a successful and established practice in European countries and it has shown beneficial results for the producers. Prominent instances of usage of GIs include Champagne, Scotch whisky, Feta cheese, Harris tweed. Products made by local communities through the application of indigenous resources and traditional knowledge are eligible to be registered as geographical indicators, they may include traditional foods, textile, handicrafts, and medicines. It provides additional market value and improved pricing for biocultural products. Controlled and efficient commercial utilization of these products will help in the socio-economic empowerment of indigenous communities that are pivotal to the biodiversity system and will play the most significant role in its overall protection. 

Utilization of the current framework to protect biodiversity resources

The Biological Diversity Act of 2002 was enacted for conserving biological diversity, promoting a sustainable approach in using the products derived from biological resources, and equitable sharing of the gains made through the resources and traditional knowledge. The vision of the Biodiversity Act is progressive in nature and it provides for provisions to preserve traditional knowledge. Implementation of its provisions can bring a substantial change by traditional knowledge holders and local communities to sage. The present implementation approach of this legislation has been limited to documentation of knowledge in preparing the PBR(People’s Biodiversity Register) and is in dire need of enhancement. 

The protection for Plant Varieties and Farmers’ Rights (PVFR) Act, 2001 also has the potential to protect biodiversity in the field of agriculture, as it recognizes the farmer not merely as a cultivator, but also as a conserver of the agricultural gene pool and a breeder who has successfully bred several varieties. Section 14 (c) of the act provides for such farmer’s varieties to be registered either by the farmer or by an association of farmers (Section 16(d), PVP Act, 2001) or by any other person authorized on behalf of the farmer to make such application (Section 16E, PPVFR Act 2001). This law recognized age-old practices which included sowing, using, and sharing farm produce which also plays an essential role in contemporary concepts like organic farms and resource-rich plantations. 

Conclusion

Protecting biodiversity is essential for ensuring a sustainable society where humans can utilize the resources derived from nature without disproportionately harming it. The role of IPR is highly significant in strengthening the local communities and traditional dwellers who are the real custodians of the resources and knowledge derived from biodiversity. People friendly IPR regime will efficiently protect the indigenous people against commercial exploitation and biopiracy and will facilitate an atmosphere of growth of knowledge and innovation using the derivatives of the biodiversity system. 

References

  1. Sahai, S, Kumar, U, and Ahmed, W (2005) Indigenous Knowledge: Issues for Developing Countries. Gene Campaign. Delhi. Para 59. 
  2. Biodiversity And Intellectual Property Rights: An Existing Conundrum by Kavya. H, available at https://allindialegalforum.in/2020/11/06/10891/ 

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