How many of you have heard of the Biological Diversity Act, 2002? I had heard about the Act long ago but somehow never got down to actually trying to understand it and when I did get down to it while researching for this post I was quite stunned with both, the importance of this Act and the seemingly muted discussions of such an important piece of legislation in the mainstream press. Unlike The Patent Act which is considered the ‘sexier’ branch of IP law, affects the industry and hence vigorously debated even in the mainstream media the Biological Diversity Act, 2002 has hardly gotten any coverage in the mainstream press despite its direct impact on millions of rural citizens of India. This example is probably another vindication of P. Sainath, the Magsaysay Award winner, thesis that the Indian media, especially the English media, has turned a blind eye to all matters affecting rural India.
The Act is actually a result of the United Nations Convention on Biological Diversity signed at Rio de Janeiro in 1992. The Act states its main aims as conservation, sustainable utilization and equitable sharing of benefits arising out of utilization of genetic resources. India has been designated as one of the 12 Mega-Biodiversity countries in the world. The extremely informative website of the National Biodiversity Authority says that this is because “With only 2.4% of the land area, India already accounts for 7-8% of the recorded species of the world. Over 46,000 species of plants and 81,000 species of animals have been recorded in the country so far by the Botanical Survey of India, and the Zoological Survey of India, respectively. India is an acknowledged centre of crop diversity, and harbours many wild relatives and breeds of domesticated animals.” The National Biodiversity Strategy and Action Plan (NBSAP) commissioned by the Ministry of Environment & Forests very rightly pointed out that it is imperative for India to conserve its biodiversity for its own sake because of the fact that it sustains the lives and livelihoods of over 70 per cent of India’s population.
So how does the Act go about this? The basic principle of both the Convention and Legislation is to assert a nation’s and people sovereignty over the biological resources by creating a intellectual property rights over those resources. Once the rights are created the biological resources can be exploited with only the approval of the local people and the state through the National Biodiversity Authority and the various State Biodiversity Authorities. The State decides on the level of involvement of foreign parties and the fixing of the equitable sharing of profits, with the community, that may accrue from the possible research and commercialization of the communities biological resources. For e.g. If RiceTec were to lift basmati strains from a research university they will have to pay for it now. The Act also ensures that no one may be granted a patent for an invention created from a biological resource without the approval of the NBA.
Despite the noble intentions of the legislation it has run into considerable trouble. The activists accuse the government of using the legislation to merely facilitate the commercialization of the biological resources instead of focussing on the conservation element. Local communities on their part are opposed to the Act arguing that they have absolutely no say in the panchayat level Biological Management Committees leaving them in the undesirable position of having to part with their biological resources without having a say in how those resources may be used or how much they may charge for the use of the resources. The truth I’m sure lies somewhere between.
Dr. Nair sent me this interesting mail on the Bio-Diversity post:
“The Biodiversity Act 2002 of India is a BLOT on India’s scientific progress. This ACT is horrendously discriminatory against Indian Researchers. The ACT is managed by people who don’t know, why they are there, what is expected of them ?
While discussing and analysing the B.D.Act, please see both sides of the coin. The Committee has blocked all herbal patents, even when an undertaking is given that the raw material is 100% captively cultivated from own seed/plant resources and there is no bio-burden. While there is TOTAL ROADBLOCK on grant of Indian filed patents based on natural products, there is no roadblock on exploitation of very same resources, if a patent is granted abroad and the raw materials are shipped out of India.
The whole B.D. Act requires to be relooked in the context of fulfilling its original objectives and preventing its misuse for progress of science.”
I believe that the BD Act is in fact a very important legislation that one must consider with regard to patenting. The body created within BD Act, the National Biodiversity Authority has the right to reject patents which it believes, use biological resources.
Even the Patents Manual stipulates that the applicant is required to submit the permission from the National Biodiversity Authority any time before the grant of the patent.the Patents Act does not explicitly recognize this power. For example it is not clear whether the NBA’s refusal would over-ride the patent office’s approval or whether the NBA’s refusal could be grounds for challenging a patent.
These roles have to be made clear especially since there have been so many bodies created out of legislative initiatives. Instead of creating newer legislations or rules or bodies, the existing ones must be examined for their efficiency or lack of it.