This article is written by Raghav Singhal pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from lawSikho.com.
Table of Contents
Introduction
Silent killer, murderous, carcinogenic, lethal, noxious, Cannabis had been addressed by all these adjectives in the world. Cannabis is most commonly labeled as the most addictive drug present on the earth. The most commonly affected community from Cannabis is Youth. Youth are becoming Cannabis Junkies and crumbling their life to hell. Cannabis is frequently consumed by some mindless creatures for relaxing and cooling effects.
According to a survey conducted in 2018 more than 11.8 million youth primarily among the teenagers of 10th, 12th grade and college students caught consuming marijuana for daily purposes just to relax and rejuvenate themselves.
As rightly said by –William Hazlett that “We do not see nature with our eyes, but with our understanding and our hearts.” Accordingly, Cannabis is also a plant that can have both positive and negative effects. In this article, we will find out what exactly Cannabis is, how Cannabis can be used, and what are the legal rights associated with Cannabis.
What is Cannabis
Cannabis is attributed to a group of three plants possessing hallucinatory properties, known as Cannabis sativa, Cannabis indica, and Cannabis ruderalis. We have found that when the flowers, stems, seeds, and leaves of a Cannabis plant are dried, the most common product left after drying is ultimately used and consumed by the pharmaceutical industries for medication purposes and also illegally used by the public at large for their pleasure.
Different people interpret Cannabis in many different ways and names. Some call it hash, some say weed, marijuana, pot, and whatnot. There is the term marijuana which is most popular in the youth and has been falling out due to its racist history. All these products which are derived directly or indirectly from the Cannabis plant contain tetrahydrocannabinol (THC) and cannabidiol (CBD) compounds which possess highly psychoactive effects in humans but concurrently they are used in different ways in the industries.
The pharmaceutical industry is the major industry that uses Cannabis plant extracts in the manufacturing of certain medicines. Research is done over and over and inventions are done on the Cannabis plant to make new medicines that can treat different diseases. At present Cannabis plants are used in treating diseases such as ALS, Cancer Epilepsy, Seizures, Aids, Multiple Sclerosis, chronic pain, and a lot more.
Invention and creation are an outcome of someone’s brain intellect. Since these inventions need a lot of R&D and hard work of the inventor, these creations need to be protected under IP laws i.e, patents laws, because ultimately invention has its commercial value and is vulnerable to get stolen leading in violation of the creator right.
Different forms of narcotics
Presently narcotics substances persist in society by different names, forms, and manners. The National Cancer Institute defines narcotics as substances that deal in treating pain. Cannabis plants contain cannabinoids that directly hit and act on cannabinoid receptors in our brain cells.
Narcotics are also known as Opioids. Opioids directly induce with the receptors and give a delirious effect and overdoses can even cause death. Opiates to the great extent constitute Morphine and codeine.
Some of the popular substances are analyzed below:
Marijuana
The trending drug among the youth is marijuana, it is the most prevailing drug used after Alcohol and Tobacco and is as pricey as Gold. The commercial value of Marijuana is next to gold prices as Marijuana is also sold in the TOLA unit. 1 Tola = 10 grams.
Marijuana has many synonyms like weed, herb, grass, pot, ganja, mary-jane, and slangs. Marijuana is consumed in many forms. The dark-greenish dried mixture of the Cannabis flower is put into hand-rolled joints, some mixes the herb in hookah flavor, water pipes (bongs), and some mixes leaf in the food as well such as candies, cookies, brownies. Marijuana is also brewed in tea for medical purposes.
Hashish
It is also an extract of the same Cannabis plant which is commonly known as Charas in India. Same as all narcotics substances, charas too possesses noxious effects. Charas is also dried and molded and sold in different forms such as cakes, chocolate balls, etc.
Cocaine
This is the most impetus drug that originated from the coca plant; it is not extracted from the Cannabis plant. It is mainly used to get relief from fatigue. This is present in crystal powdered form and is consumed by snorting through the nasal passage. This is uncommon in India in natural form; it is mainly found in the South American regions for ages.
Poppy
Poppy seeds are derived from the poppy plant itself which are mainly used in cakes and top of bangles in retail. Poppy seeds are less addictive and also have less amount of opium content present in it. Opium is mainly used for medicinal purposes and is a prescription medicine in the opioid class.
The use of these Narcotic substances should be encouraged for medicinal purposes instead of using them for relaxing and mood elevators. So that these naturally occurring Cannabis plants should be proven to be a boon for humanity. The illicit use of this life-saving plant by the community is directly or indirectly bringing stigma to this godsend blessing.
Intellectual property rights
According to the Cambridge Dictionary, the general meaning of the word intellect is possessing an ability to think and understand things differently, especially complicated ideas. So anyone who attains this type of intelligence will be considered an intellectual person.
Intellectual property Law is attributed to protecting the creation of one’s mind, and includes inventions, literary and artistic works, design, logo images used in the industry by creators; these are also considered as the intangible property of the creator.
In this era of progressive world, day in day out people come up with new ideas, inventions, and research in different fields and once these inventions or literary work comes into the public domain it becomes vulnerable to get stolen leading to the damage of creativity and hard work. Remarkably the IP laws play a significant role in providing legal protection and also aiming in cultivating the habitat in which the best creative brains can quirk.
For the smooth functioning of the Trade between different nations, an international organization (WTO) was set up in 1995 which executes the agreement on (Trade-Related Aspects on Intellectual Rights) TRIPS. The TRIPS agreement contributes to providing gauging standards for many types of intellectual property rights (IPR). Intellectual property (IP) mainly consists of Trademarks, Copyrights, and patents.
Utility patents
Utility patents are the rights solely admitted to the invention holder allowing the persons to protect their invention from being used communally. These types of patents are accessible exclusively in the particular state which awards it, by equipping the patent holder to use the invention without the threat of being stolen for up to 20 years.
However, the word Communal is interpreted as “Commercial” meaning thereby that these utility patents prevent the invention to be sold.
Some features of the Utility patents:
- The first and the foremost thing is that the utility patents protect the products and not on the process,
- There should be a novelty, at the time of opting for utility patents,
- The time limit for patents usually varies from 6-15 years and can be extended to 20 years.
- utility patents are more suitable for incremental inventions
Plant breeders’ rights
Plant breeder rights are similar to the patents and only apply to the breeder who is developing a new variety by any of the growing methods. The rightful owner of the PBR patents prohibits any other person from using it without the proper permission from the owner.
However, in other fields such as technology and literature, the main and the powerful legal protection granted to the rightful owner are patents and in the agriculture field, the most popular legal protection granted to the breeder is Plant Breeder Rights (PBR).
After validating all the basic benchmarks of novelty, stability, and homogeneity the PBR rights are granted. The protection of PBR is in the form of National Legislation. If the breeder has opted for the PBR protection on variety in one region then the same breeder has no rights on the similar type of variety used in other regions.
PBR under the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) is a component of the World Trade Organization (WTO). Signatories of WTO (currently about 150) are committed to complying with the TRIPS requirements of a harmonized minimum level of IP rights protection.
Although the TRIPS text is quite exhaustive in most regards, only a single sentence refers to PBR. Article 27.3(b) reads, in part, that WTO members must provide plant variety patents, “an effective sui generis system, ” or both. Most countries new to protecting plants are opting for PBR over patents. PBR is a sui generis system, but what constitutes “effective” is less clear.
India is an observer in the international union for the protection of new varieties of plants (UPOV). Under the UPOV rights are granted to the breeders and not to the farmers.
Cannabis – a lethal substance
Cannabis-related products are always in a wrangling situation, even though the breeders or the inventors have their patents rights protected on their new variety products, these patents lack utility most of the time. Cannabis being a psychotropic substance is used illegally worldwide. So to curb the illegal use many agencies are working diligently in making strict laws over it.
One such act is the Narcotic Drugs and Psychotropic Substances Act, 1985. All the inventions, discoveries are done with an initial motive of commercializing their novelty products at large. patent holders tend to sell their inventions and make profits out of them. Many big giants companies purchase the patents or some of them give royalty to the rightful owner in return.
This tension between state and federal law presents obstacles for Cannabis entrepreneurs. At the time of exports, many countries’ Narcotics laws hinder the export of products declaring them as illegal in their countries. Although the exporter country is selling Cannabis made products that are used in the Pharmaceutical industry.
But due to the lack of awareness and no amendments in the Narcotics and IP Laws many countries including India have weak laws regarding the patentability of Cannabis-related Products. As all the exporters, collaborators, contributors are wishing to get their IP rights protected simultaneously there is a dispute with the Federal drug laws.
Fundamentally there is a lack of product patentability in India largely in agriculture and agrochemical industries. This is creating a big problem in the pharma industry in India as many companies are doing reverse engineering of the patented products and indulge in making the cheaper version of the products.
Subsequently after the expiration of the international patents on the drugs the pharma companies started penetrating the international markets after developing the generic drugs.
Cannabis is always misapprehended in India when it comes to its industrial use. For a long time in India, many companies and start-ups have been struggling with the commercialization of Cannabis in India. NDPS act restricts the people to sell and consume Cannabis in India and has also imposed imprisonment of up to 20 years and a fine if anyone is caught indulging in these types of activities.
Recently, the US House of Representatives passed a bill to decriminalize the use of Cannabis. This is the first step towards legalising the recreational and medicinal use of Cannabis or marijuana in that country.
The UN has also passed a resolution removing marijuana from Schedule IV of the Single Convention on Narcotic Drugs, 1961, where it was listed alongside deadly opioids. India has voted in favor of this resolution. While there is growing consensus on the decriminalization of marijuana in India, opium, a narcotic derived from poppy, can never be grown in your garden pot.
Conclusion
There are many myths and illusions regarding Cannabis. People use Cannabis in a destructive way leading to sabotaging the herbal drug (Cannabis) due to lack of the right information. We live in an era where we have Laws, on everything we can think of so that one should not be deprived of his/ her right on such things.
Many countries have legalised the medicinal use of Cannabis in their countries and many laws are developed which guards people against wrongly using the herb. Many patents are granted to Cannabis in many countries for its medicinal uses.
Simultaneously if we go through the patents Laws in India there is no such law that grants protection of the law on the substances which are suited for being used as drugs, medicines, or food itself. However, protection is granted on the processes of manufacture of such substances but no legal protection regarding the patent laws are not granted to the pharmaceutical products in India.
Especially in India the patents on Cannabis plants lack utility because of the persisting stigma on the Cannabis plants India is losing its valuable resource. India has a large variety of Cannabis with them and this should be high time India should see through this sector and change and amend the rules accordingly.
References
- https://jCannabisresearch.biomedcentral.com/articles/10.1186/s42238-020-00057-7
- https://www.drugabuse.gov/publications/drugfacts/marijuana
- https://www.mondaq.com/india/patent/865888/patents-and-the-indian-pharmaceutical-industry
- https://www.marijuanaventure.com/sabotage-how-to-avoid-it/
- https://jCannabisresearch.biomedcentral.com/articles/10.1186/s42238-020-00057-7
- https://thewire.in/business/is-india-missing-out-on-the-Cannabis-dollar
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