TOPIC – THE ROLE OF IPR IN PROTECTION OF BIODERSITY

Subject – 307 Intellectual Property Rights

Submitted by – Hiya Bharali

UID – SF0121023

Semester – 3rd

Faculty – in- charge – Ms Sharmistha Boruah

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

A BRIEF HISTORY OF IPRS AND BIODIVERSITY

IPRs, as the name implies, provide legal protection to concepts and data that are used to develop
new inventions or processes. These rights require the holder to prohibit imitators from selling
such inventions or processes for a specified period of time; in exchange, the holder must disclose
the formula or plan behind the product/process. The stated goal of IPRs is to stimulate innovation
by providing higher financial returns than the market would otherwise provide. While IPRs such
as copyright, patents, and trademarks have been around for centuries, the extension of IPRs to
living entities and associated knowledge/technologies has only recently occurred. The United
States Plant Patent Act of 1930 granted IPRs to asexually reproduced plant varieties. Many
different countries then extended various levels of protection to plant varieties, until a global
Convention for the Protection of New Types of Plants was signed in 1961. The majority of
signatories were industrial countries that had also formed a Union for the Protection of New
Plant Varieties (UPOV). This legal document became effective in 1968.

Plant varieties or breeders' rights (PVRs/PBRs) grant the holder limited restrictive powers over
the sale of 'their' varieties. Until recently, most countries allowed farmers and breeders to be
exempt from such rights if they did not engage in branded commercial transactions. However, a
1991 amendment to the UPOV tightened the noncompetitive nature of PVRs/PBRs, and a few
countries have almost completely eliminated the exemptions for farmers and breeders.

Plant varieties have historically been exempted from the international patent regime in
recognition of farmers' ancient practises of seed saving and exchange. However, industrialised
countries are debating the value of PBRs as a type of monopoly that will encourage plant
breeding activity. This culminated in the International Convention for the Protection of New
Varieties of Plants (UPOV Convention) in 1978, which, as previously stated, was amended in
1991, further strengthening plant breeders' noncompetitive position. Until recently, the UPOV
Convention was primarily composed of countries from the Organization for Economic Co-
operation and Development (OECD). The journey Agreement, on the other hand, currently
extends the need to protect plant selection property rights to any or all international organisation
Member States.
Furthermore, patents with full noncompetitive restrictions square measure currently applicable to
plant varieties, microorganisms, and genetically modified animals in several countries. The
United States Supreme Court upheld biologist Ananda Chakrabarty's patent claim for a
genetically engineered microorganism strain in 1972. This validated the notion that something
created by humans and not found in nature could be patented. Genetically modified animals,
such as the infamous 'onco-mouse' of university (bred for cancer research), were also granted
patents not long ago. Finally, many patent claims are created, and only a few are granted, on
human genetic material, as well as material that has been barely altered from its natural state.

Until very recently, plant rights were only recognised in a few countries, and they couldn't be
enforced in other countries. However, this has changed with the TRIPs Agreement's sign
language. Biodiversity refers to the full range of variation that exists among and among species
of living organisms in their natural habitats. This Intellectual Property Rights (IPR) regime
promotes seed development, monoculture, and the protection of new plant varieties,
microorganisms, and genetically modified organisms. The Asian nation's Biological Diversity
Act of 2002 defined various terms.

"Biological Diversity" refers to the variability among living organisms from all sources, as well
as the ecological complexes of which they are a part, and includes diversity among species or
between species, as well as diversity of ecosystems. Material possession Rights (IPR), as the
term implies, are rights to concepts and data, that square measure being used in new inventions
or processes. These rights require the holder to prohibit imitators from selling such inventions or
processes for a specified period of time; in exchange, the holder must disclose the formula or
plan behind the product/process. Thus, the impact of IPR is a monopoly over industrial
exploitation of the thought/information for a limited period of time. The stated goal of IPRs is to
stimulate innovation by providing higher financial returns than the market would otherwise
provide. To comply with TRIPs (Trade Related Intellectual Property Rights) and the CBD
(Convention on Biological Diversity), India passed the Indian Patent (Second Amendment) Act,
2002, as well as the Biological Diversity Bill, 2002. The patent term has been extended to 20
years for all product and process patents under the 2002 Amendment Act. Microorganisms are
currently a patentable subject in India.
The relationship between IPR and Biodiversity

The current IPR regime is primarily concerned with promoting seed development, monoculture,
and the protection of new plant varieties, microorganisms, and genetically modified organisms.
As a result, rich biodiversity is constantly dwindling. As a result, an alternative mechanism is
required to achieve parity between formal intellectual property systems and the sustainable
aspects of biodiversity.

Although developed countries lack genetic resources, they are better equipped for research and
development. They study biogenetic resources, which are mostly obtained from less developed
countries. As a result, there is an unprotected (not protected by intellectual property rights) flow
of biogenetic data to developed countries. On the other hand, through patents and Plant Breeder's
Rights, there is a protected (secured by IP rights) flow of genetic data to the Global South. This
practise has both visible and invisible consequences.

INDIAN SCENARIO

Biodiversity

India is one of the world's twelve mega-diversity hotspots. India has an equally impressive
record in terms of agro-biodiversity. India is taken into account to be the centre of origin of an
enormous and varied heritage of biodiversity and ranks seventh in terms of contribution to world
agriculture. There are 167 crop species, 320 wild crop relatives, and several domesticated animal
species. India is thought to be the origin of 50,000 varieties of rice, 1000 varieties of mango, 100
varieties of pepper, 27 breeds of cattle, 22 breeds of goat, 40 breeds of sheep, 18 breeds of
poultry, 8 breeds of buffalo (the world's total biodiversity), and several other varieties of pigeon-
pea, turmeric, ginger, sugarcane, gooseberries, and so on. India has a diverse and rich
biodiversity heritage. It has 850 bacteria species, 6500 algae species, 14500 fungi species, 2000
lichen species, 2850 bryophytes species, 1100 pteridophytes species, 64 gymnosperm species,
and 17500 angiosperm species.

Legislations

To comply with TRIPs (Trade Related Intellectual Property Rights) and the CBD (Convention
on Biological Diversity), India passed the Indian Patent (Second Amendment) Act of 2002 and
the Biological Diversity Bill of 2002 respectively. According to the 2002 Amendment Act, the
term of a patent has been extended to 20 years for all product and process patents (under the
existing Act of Section 53 as well as those included in the current bill). Microorganisms will now
be patentable in India. Furthermore, because India recently joined UPOV, new plant varieties
will receive PBR certification in India (1978 Act). Previously, India passed the Plant Protection
Bill in order to create a unique system (a system of its own). In accordance with the Budapest
Treaty, the deposit of biological materials has also been included.

CONVENTION ON BIOLOGICAL DIVERSITY

The Convention on Biological Diversity (CBD) entered into force in 1993 with the goal of
preventing signatories from unfairly exploiting developing countries' bio wealth and traditional
knowledge. CBD's goals are as follows :

 Members' sovereign rights to their genetic resources

 Prior consent from the country of origin to facilitate foreign access, equitable sharing of
benefits and technology transfer among members, and
 IPR regime should not undermine the CBD's objectives.
 The FAO Global Plan of Action emphasises the fact that farmers' rights are the primary
mechanism for protecting the rights of genetic resource suppliers. The CBD, on the other
hand, benefits a wide range of people. CBD provides minimal guidance in terms of the
nature and mix of benefits, what constitutes a fair and equitable share, and who all are the
beneficiaries.

IPR and the CBD

The IPR regime is important in protecting information. The data contained within genetic
resources has a high industrial value. IPR may be a private right. As a reward for innovation, the
holder is granted exclusive rights to prevent competitors from using a product or a process.
Patent rights allow the holder to limit who can use the resources and thus claim the edges of
exploitation. The TRIPS Agreement's patent system, for example, allows the holder of a product
patent to prevent third parties from creating, using, offering for sale, selling, or importing the
product.

Thus, IPR determines who will use genetic resources and influences the distribution of benefits
resulting from their use. IPR can have an impact on who benefits from genetic resources, which
has implications for biodiversity conservation and use. Because of the value associated with
IPRs, industrial interests are exerting increasing pressure to obtain intellectual property rights
over genetic resources. This pressure, as well as the ensuring IPR systems, is posing challenges
for policymakers seeking to put the CBD's objectives into action.

IPR AND ALSO THE WTO AGREEMENT OF TRIPS AGREEMENT

The TRIPs Agreement includes many types of IPR that have an impact on biodiversity
conservation, such as patents and "sui generis systems" for plant selection protection. Patent
protection and sui generis systems determine who has access to genetic resource information, but
the benefits are shared (including with others) traditional communities), and what technologies
are developed and transferred with implications for biological diversity conservation and
property use.

PATENT PROTECTION

Members are required by the TRIPS Agreement to provide patent protection for inventions in all
areas of technology, whether products or processes, that are novel, involve an inventive step, and
are commercially applicable (Article 27.1). This broad requirement is subject to some necessary
exceptions that can be relevant to the successful implementation of the CBD's objectives. First,
Members may exclude inventions from patentability where it is necessary to "protect public
order or morality, as well as to protect human, animal, or plant life or health, or to avoid serious
harm to the environment" (Article 27.2). Second, while Members must grant patents on
microorganisms and non-biological and essentially biological processes for plant and animal
assembly, they are not required to grant patents on plants or animals (Article 27.3(b)). Third,
subject to certain conditions, members could offer limited exceptions to the exclusive rights
conferred by patents (Article 30). Finally, in certain circumstances, Members may allow third
parties to use the patented invention without the permission of the patent owner (Article 31). So
far, the WTO has not clarified the scope and utility of those provisions in ensuring compatibility
with CBD objectives.

IPRs vs. Biodiversity vs. TRIPS vs. CBD

In order to look onto the ambit of IPRs in biodiversity, two major provisions of CBD must be
taken into consideration i.e

 Article 16.5 (Access to and Transfer of technology)

 Article 22 (Relationship with Other International Conventions)

Where these 2 Articles ensure the responsibility of the State on protecting the IPR with some
exception stating “existing international agreements, except where the exercise of those rights
and obligations would cause a serious damage or threat to biological diversity”.So on
considering the above mentioned Articles the impacts of IPRs on biodiversity need to be
examined in order to grasp the essence of the need of IPR on biodiversity. So on analysing the
impact it is found that

 IPR will accelerate the trend toward homogenization of agricultural production and
medicinal plant use systems, and increasing species-wide IPRs (as with transgenic cotton
and soybean) will stifle the development of public and small-scale private sector crop
varieties.
 Payment of significant royalties could increase many countries' debt burdens,
exacerbating environmental and social disruption.
 A farmer's innovations through reuse and exchange with other farmers would discourage
innovation (on considering UPOV 1991 regime)
 It also jeopardises ethical considerations.
 Even the TRIPs agreement is likely to exacerbate the aforementioned aspects, and in particular,
its attempt to homogenise IPR regimes works against a country's or community's freedom to
choose its own path.

CONCLUSION

Biodiversity protection is essential for a sustainable society in which people can use natural
resources without causing undue harm to them. IPR has a significant impact on local
communities and traditional residents, who are the true custodians of biodiversity-derived
knowledge and resources. A friendly IPR rule will effectively protect indigenous peoples from
exploitation and biopiracy for commercial gain, while also encouraging the expansion of
knowledge and creativity through the use of biodiversity system products.

REFERENCES

1. WWF International & CIEL, Joint Discussion Paper, March 2001.

2. WIPO-UNEP Study on the Role of Intellectual Property Rights in the sharing of benefits arising
from the use of Biological resources and associated traditional knowledge.
3. Intellectual Property Rights and Biodiversity: Processes and Synergies Background paper for
Workshop on TRIPs and CBD Global Biodiversity Forum Cancun, Mexico, September 5-7,
2003.
4. https://www.cbd.int/convention/