The need to deal with biopiracy

 To make countries abide by each other’s ABS procedures, a global protocol has been agreed.As India prepares to host environment ministers and the biodiversity bureaucracy from across the world at the next Conference of Parties (COP) of the international Convention on Biological Diversity (CBD) in Hyderabad in October, ordinary people and local communities ask the question – since the national law to implement the CBD, ie the Biological Diversity Act (BD) Act was enacted in 2002, have we actually been able to stop ‘biopiracy’ of our genetic resources or people’s knowledge?

The question also needs to be asked because the globally accepted benefit sharing concept was meant to arrest biopiracy and effect ‘inclusive growth.’India’s National Biodiversity Authority (NBA) was set up in 2003. There is no instance in public memory or on official record of the NBA ever having invoked Section 18(4) of the BD Act. The said legal provision gives NBA the function and power to oppose the grant of any intellectual property right (IPR), such as a patent, in any foreign country on any biological resource obtained from India or knowledge associated with such biological resource that is derived from India.

Fine or imprisonment

In fact, the CAG environment audit report of 2010-11 had pointed out that the NBA then did not have any information on IPR granted on India’s TK outside India. Thus far, there is no instance either of the penalty provisions of the BD Act being invoked.

As per the law, those contravening the Act by applying for any IPR without the approval of the NBA, or breaching the ABS agreement and failing to ensure flow of 'benefits' agreed to, face punishment. This is meted out either as a fine or by imprisonment extendable to five years.

Meanwhile, as publicly announced by the environment secretary in July 2012 at another CBD meeting in Delhi, 100 Access and Benefit Sharing (or ABS) agreements have been signed by the government through the NBA from 2006 to date.1 ABS implies that a user of genetic resources or related knowledge is now using them with permission. The access to local resources is granted to the applicant for research, commercial utilisation, etc.

In return, the NBA charges a standard 5 per cent of estimated benefits as its administrative fee, apart from the costs of the prescribed forms and any other royalty imposed on the applicant.

 It is to be seen if these monetary collections going into the National Biodiversity Fund translate into real ‘benefits’ for at least 100 local communities in India, so as to be life-changing. For the challenge with respect to many of these agreements is to reach out to the legitimate local ‘benefit claimers,’ which are yet to be fully identified in most cases.
It was voices from the ground against the IPR system in countries like India that had led to the signing of the CBD at the Rio Earth Summit in 1992. They have been trying to highlight not only the negative consequences of grant of illegal patents on local resources and related know-how.

But also that the IPR system is inherently incapable of recognising and ‘rewarding’ collective knowledge systems. More so that it commodifies and commercialises both knowledge and resources, something  fundamentally opposed to local people’s cosmovision.

For local communities biopiracy is the ‘stealing’ of knowledge. The term is used to suggest bioprospecting without the consent of the locals or breach of a contractual agreement on the access and use of local knowledge to the detriment of the provider. The ABS system lays out procedures by which this can be legally obtained. To make countries abide by each other’s ABS procedures, a global protocol on ABS has been agreed to under CBD in Nagoya, Japan in 2010.

India has signed it, but the protocol is yet to enter into force. Even if and when it will, it does not say ‘no’ to IPR. So the Government of India should re-think its strategy before ratifying the Nagoya Protocol.

The main part of the problem — the IPR system, largely remains untouched. Even though our Patent Act does not regard TK as an ‘invention’ that is patentable. Yet not all other countries recognise India’s TK as prior art.

And our biodiversity law does not altogether disallow either IPR on inventions based on R&D on India's biological resources or their commercial utilisation. Access to India's biowealth has only been legalised. Moreover it is no longer just the foreign MNC that is seeking such access. It has taken on an Indian face. However, will our real biodiversity keepers remain the excluded groups?