A
Review of Intellectually Property Right and Biodiversity
Mamta
Saini1*, Dr. Anjani Kumar Sharma2
1 Research Scholar, Lords University, Alwar, Rajasthan, India
saini.mks25@gmail.com
2 Professor, School
of Law, Lords University, Alwar, Rajasthan, India
Abstract: At the national and international
levels, the connection between biodiversity and intellectual property rights
(IPRs) is a hotly debated topic. The bulk of the world's biodiversity is found
in poor countries, which desire equitable ownership and fair benefit-sharing
from genetic resources, while wealthier nations support tighter monopolistic
protections to spur innovation and ensure profits. The difficulties of striking
a balance between the commercial exploitation of biological resources and
biodiversity protection are highlighted by international accords like the TRIPS
Agreement and the Convention on Biological Diversity (CBD). With special
attention to India's flexible strategy as a signatory to several treaties, this
analysis explores the changing legal and regulatory frameworks pertaining to
patents, geographical indications, plant breeders' rights, farmers' rights, and
sovereign rights. Review the pressing need for a new and more inclusive global
governance structure by highlighting the increasing conflict between the
demands for fair benefit distribution, economic exploitation, and conservation
concerns.
Keywords: Intellectual Property Rights, Convention
on Biological Diversity, TRIPS, Geographical Indications, Sovereign Rights.
1.
INTRODUCTION
The issue of who owns biological
resources—made more contentious by their increasing economic importance—is at
the heart of the national and international debate over biodiversity
management. [1] Industrialized and developing countries'
ownership patterns in this sector couldn't be more different. While developed
countries support increasing monopolistic IPRs to profit from biodiversity and
related innovations, developing countries own most of the world's remaining
biodiversity and hence have a right to claim ownership of the resources.
Developed nations also have more genetic engineering research capacity.
Concerns regarding biodiversity's
economic potential, its role in sustainable development, and conservation needs
have all been addressed by the convention on biological diversity and other
international legal frameworks for the management of biological resources.
There are three main goals: ensuring
the components are used sustainably, distributing benefits from genetic
resources fairly and equitably, and protecting biodiversity. [2] The TRIPS
Agreement's uniform structure of IPRs has had a particularly negative impact on
poorer countries. Stronger protection of IPRs is opposed on the grounds that it
would widen the gap between rich and poor countries throughout the globe. This
is due to the fact that the northern countries will gain from the TRIPS
Agreement, which restricts the commercialization of genetic resources and
biological variety, while the former will have access to better technologies.
Since the TRIPS Agreement & the CBD came into effect in the first half of
1990, there has been intense political and scientific discussion regarding
their relationship due to the claims that the two agreements are
"incompatible," which have led to problems, disputes, and
inefficiencies in their implementation [3]
The constantly evolving international legal framework, its influence on national laws and policymaking concerning sustainable development and biological resource management, and the growing need for a renewed approach to IP protection are all outcomes of recent global developments. As a signatory to multiple international accords, India has formulated its own legal framework for managing biological resources, which remains dynamic and continually adapting. These global trends directly shape local laws and practices in India.
Typically, IPRs are granted to
groups or people for creative works and innovations, providing the creator or
inventor with the incentive of a temporary right to prohibit others from using
their work without permission.
A definition proposed for IPRs is a
combination of "ideas, inventions and creative expressions" and the
"public willingness to bestow the status of property" ascribed to
them. Organizations and individuals may now legally own their ideas and
innovations in the same way that they can own tangible assets. Anyone with
ownership of an IP has the legal right to direct and profit from any and all
uses of that IP. One of its underlying assumptions is that everyone would reap
the benefits of more invention and creativity if everyone had the legal right
to own and profit from their creations.
Additional types of protection have
evolved to meet the unique requirements of knowledge producers; these include
utility models, rights of plant breeders and farmers, rights of integrated
circuit designers, and others. The term "sui generis" refers to
something distinctly different from the previously mentioned types of
protection.
IPR, these mechanisms may help
safeguard it. In addition, "trade secrets" are legally protected in
many nations as a means of keeping private knowledge that may provide an
advantage in the marketplace. Here we have yet another kind of intellectual
property rights. Geographical indications, farmer's rights, plant breeder's
rights, and patents are the most pertinent to a conversation about
biodiversity.
Please find below a list of IPRs
along with brief descriptions of each:
IPRs
are most often associated with patents. The only legal right to produce, use,
or sell an innovation for commercial purposes is known as a patent. No one
other than the patent holder may profit from an innovation without the patent
holder's explicit consent, which is often followed by royalties. As with other
forms of intellectual property rights, a patent serves as both an incentive to
continue inventing and a compensation for the innovator's work by granting them
a temporary monopoly. When it comes to the limited scope of use for the
protected invention, patents provide the most stringent protection for IPRs
compared to other forms of IPRs . Patented plant varieties, for instance, are
notoriously difficult to utilize in subsequent breeding efforts compared to
Plant Breeders Rights types. The owner of a patent has extensive say over who
may utilize their patented invention. As an example, the Neem tree has been the
subject of ninety patents throughout the globe.
A
patent primarily includes
·
Typically, a patent will be issued for an
innovation that is both new and practical (i.e., may be used in an industrial
setting) and that relies on an innovative step that is not apparent to
professionals in the area. [4]
·
You may get a patent for a new way of
creating an old product, for example, but you can also get a patent for a
product itself.
·
It's worth noting that several governments
prohibit the patenting of certain processes or items (such food or
pharmaceuticals) in the interest of the public good.
·
A patent is valid for a certain amount of
time. Twenty years is currently the standard on a global scale.
·
A patent may be purchased, rented, or
sold.
·
Typically, a patent is only enforceable in
the nation of its granting. Unless a local application is made, it will not be
valid in other countries. [5]
·
The increasing tendency of making patents
relevant locally or worldwide, however, is altering this.
·
Applicants for patents are often required
to reveal to the government's Patent Office the process by which an expert in
the field might reproduce the innovation.
A trademark is a unique
symbol, term, logo, form, slogan, etc. used to identify a product or service as
belonging to a particular person or business. Customers are able to tell one
manufacturer's products and services from another with their help. Another kind
of trademark is a brand. Famous trademarks include TATA Tea, Microsoft,
Coca-Cola, Boroplus, and Godrej.
A good's quality, name,
and reputation as they pertain to a certain geographical location are the
determinants of whether it is awarded a Geographical Indication (GI). An
important component of a GI is a product description that links the product to
a certain geographic area. The product's qualities, reputation, and location
should all be considered. The acquisition of GI protection precludes the use of
the GI to designate products made in any other country. A GI differs from other
forms of IPRs in that it grants rights to a group of individuals rather than just
one. To sum up, GI does not provide monopolistic rights to any entities. A GI
may be requested by any manufacturer whose product meets the criteria mentioned
before. Consider the Champagne area, where several wineries utilize the GI
"champagne" designation. [6] Because they prohibit the wrongful use of
a product's name rather than the product itself, they are similar to
trademarks. Products with geographical indicators include Mysore silk,
Darjeeling tea, Champagne, and Scotch whiskey. It should be mentioned that a GI
is not required to specifically mention the place of origin (for instance,
"Basmati" does not indicate a specific region but rather that the
product is from India or Pakistan in the case of Basmati rice).
Unlike technical elements
like the design of a watch, the form of a vehicle, wallpaper or carpet
patterns, or the design of an item of jewelry, industrial designs safeguard the
aesthetic qualities of an object, including its shape, texture, and pattern.
Secrets in the business
world include things like manufacturing techniques and company strategies,
which have monetary value. As long as they are kept secret, they are protected
by laws that prohibit their acquisition by commercially unfair means and their
unauthorized dissemination. Nevertheless, it is not considered unlawful to
uncover information accidentally, a process known as reverse engineering. The
Coca-Cola recipe and Microsoft's Windows source code are two examples of famous
trade secrets.
The aforementioned IPRs
are all considered "industrial property" since they are practical
business developments. Grouped under the umbrella term "artistic and
literary property" are examples of copyrights and other forms of
intellectual property. The purpose of copyrights is the same as that of patents:
to recognize the authorship of a piece of art, literary work, or computer
program and to allow that creator to receive royalties for its use. It stops
anyone from making copies, translating them, airing them, etc. without the
creator's consent. Nevertheless, with prior authorization, you are permitted to
make restricted uses of protected content. Unless otherwise stated, all books,
novels, music, and movies that are available on CDs or audiocassettes are
protected by copyright.
PBRs are a subset of IPRs
that pertain only to certain types of plants. An example of a plant species
that comprises many kinds is rice, which may be further divided into Basmati
rice, Jasmine rice, and so on. So, getting a patent and getting a PBR are two
whole different things.
PBRs are founded on the
idea that new plant types are more accurately described as 'improvements' than
'inventions,' the latter of which are eligible for patent protection. On the
other hand, PBRs and patents are both recognized in certain nations as valid
means of protecting plant types. Plant breeders sometimes discover that repeat
sales of their varieties are reduced due to farmers' customary practices of
selling, exchanging, or sowing seed from the previous year's harvest. Farmers
may be forced to purchase fresh seed from breeders if PBRs limit their capacity
to sell or sow seeds from PBR-protected plant varieties, as a result of a
country's intellectual property law. [7]
Key
characteristics of a PBR include:
The owner of a PBR has the sole
right to sell or cultivate the protected plant variety, or they may let another
party to do so in exchange for payment.
New plant varieties may only be protected by PBRs if they meet certain criteria:
Distinct:
It has to have distinguishing
features that allow it to be easily identified from other known types.
Uniform:
To ensure consistent quality
throughout harvests of the same variety, it should exhibit standard or uniform
traits; planting and propagation circumstances should be the sole sources of
variance.
Stable: Reproduction must result in
offspring that are genetically identical.
Novel: It need to be an entirely novel
kind, distinct from all others. (Some nations, including those that are part of
the UPOV international convention, evaluate new varieties based on whether or
not they have been commercially marketed before, rather than whether or not the
variety exists.) [8]
Farmers’ rights: Concepts of farmers' rights emerged
from worldwide discussions about the unfair handling of plant breeders' work
and the lopsided distribution of advantages between germplasm suppliers and
technology developers. Farmer incentives and pay were nonexistent, in contrast
to the financial incentives and remuneration available to plant breeders under
intellectual property protections such as Plant Breeders' Rights (PBRs). Equal
distribution of genetic resource advantages and incentives for farmers to
preserve and share these resources were the underlying motivations for the
establishment of farmers' rights.
Sovereign rights: Interstate relations are structured
on the basic premise of sovereignty. All nations are considered to be legally
equal and no authority is higher than states; this is the fundamental concept
upon which international law is founded. When it comes to biological resources,
the idea of national sovereignty is crucial. What we mean by "permanent
sovereignty over natural resources" is that every state has the freedom to
use and develop its own biological resources how it sees fit. It is the
cornerstone of international law on the distribution of duties and rights in
this area, since it is a universal issue. This principle implies that we must
all work together to preserve and manage biological variety, as well as
acknowledge its global significance. ‘This approach does not compel any
particular state to engage in the protection and management of in situ
biological resources; rather, it aims to ease and encourage global
collaboration in these areas. Down at home, the concept of sovereignty also has
consequences. When a state asserts its sovereign rights, it is conceptually
comparable to when an individual asserts their property rights.
The wide range of living forms found
on our planet, including plants, animals, microorganisms, genes, and
ecosystems, is collectively known as biodiversity. A profusion of life that has
developed over millions of years highlights the interdependence of all forms of
life and the roles they play in the natural world. It is most loosely defined
as the variety seen within and between species, although it encompasses all
forms of life or the ecological processes that maintain them. Generally
speaking, when we talk about biodiversity, we're talking about the variety of
land, sea, and water creatures, as well as the ecological systems to which they
belong and the genetic, species, and ecosystem-level variation that we see. [9] There
are three main types of biodiversity: genetic, species, and ecosystem.
Varieties of crops and animals are examples of genetic variety due to
variations in DNA within a species. India is home to 47,000 plant species, or
more than 11% of the world's total, and about 90,000 animal species, making it
one of the most biologically varied nations in the world.
·
The wide range of genes found in all known
species of plants, animals, and microbes is known as genetic diversity. Within
and across species, as well as within populations, genetic diversity is
present.
·
The variety of living species is known as
species diversity.
·
Ecosystem diversity encompasses a wide
range of habitat types, biotic community composition, and ecological process
types. Additionally, there is a great deal of diversity within ecosystems
themselves, both in terms of the variety of habitats and ecological processes.
Humans continue to rely on basic
biological systems and processes for their survival, health, happiness, and
quality of life. The wild and tamed parts of biological variety provide
humanity with all of its food, many medicines, & industrial goods.
Additionally, ecosystems provide recreational opportunities and tourist
attractions, and biotic resources are essential to these industries. As a
whole, life's vast variety is priceless, likely making ecosystems and creatures
more robust. There are significant social and cultural benefits to biodiversity
as well. Primary producers, mostly plants, are crucial to the survival of
humans and the vast majority of other species. An essential advantage of
protecting biodiversity is the availability of wild plant genes, which may
supplement the limited genetic background of these well-established food crops
with traits like resistance to diseases, increased production, and varying
degrees of tolerance to diverse environmental conditions. [10]
Rightful ownership of biological
resources has been a growing trend since the 1930s. IPRs on living things were
first implemented in the United States. Asexually reproduced plant species are
now eligible for IPRs thanks to the 1930 US Plant Patent Act. Many other
nations have now extended IPRs to include other types of plants. [11] Subsequently,
and especially in the last two or three decades, private investment in
agricultural research has surpassed that of the governmental sector. One method
that private investors may get their money back was via IPRs on plant types.
Second, the field of life sciences has been experiencing unprecedented growth
in innovation due to developments in nanotechnology and biotechnology,
particularly in the last two decades. “This expansion has sparked discussions
about what exactly constitutes an invention and, by extension, what kinds of
IPRs such as patents and Plant Breeders' Rights can protect.” [12] A common argument in favor of patenting
or otherwise protecting genetically altered organisms is that they are
innovations rather than things that happen in nature.
For instance, EU
member states have decided to grant patents on genes that have been removed
from their original habitat. This is because, according to these countries,
genes cannot exist in isolation in nature and instead necessitate creative
human intervention, which is what makes them patentable inventions rather than
discoveries of things that already exist in nature. [13]
4.
MANAGING BIODIVERSITY AND
INTELLECTUAL PROPERTY
At
both national and international levels, there has been increasing controversy
over the management of biological resources, largely due to the growing
recognition of biodiversity’s economic potential, particularly through advances
in genetic engineering. Consequently, international legal frameworks such as
CBD have had to balance the dual imperatives of biodiversity conservation and
its potential economic use in supporting development. From a legal perspective,
the issue is significant because newly developed biotechnological products are
often easy to replicate, prompting strong demands from the biotechnology sector
for IP protection over GMOs, seeds, and animals.
However,
the TRIPS Agreement, while primarily focused on intellectual property, has
deeply influenced the capacity of India and other developing nations to design
legal frameworks for managing their biological resources, despite its limited
direct connection to environmental governance.
5.
CONCLUSION
Ecological stability, food security,
and sustainable development are all supported by biodiversity, which is a vital
resource on a global scale. The growth of intellectual property laws, however,
has made biological resources into assets that are hotly debated, widening the
gap between rich and poor countries. The TRIPS Agreement tends to reaffirm the
domination of technologically sophisticated economies, in contrast to
mechanisms such as the CBD that emphasize conservation and equitable
benefit-sharing. Protecting indigenous knowledge and resources while still
conforming to international standards for intellectual property and commerce is
a formidable task for India, a country with a wealth of natural history.
Stronger acknowledgement of farmers' rights, community involvement, and
sovereign control over resources are essential components of effective
biodiversity management, as are incentives for innovation and fair access. In
the end, it will take a more coordinated and collaborative effort to save
biodiversity as a collective heritage critical to human existence and
prosperity, rather than just as a commodity for markets.
References
1.
Philippe Cullet and Jawahar Raja: The
management of biological resources: case of India
2.
Article 1 of CBD
3.
CIPR 2002, p. 12.
4.
ICTSD 2004, p. 2.
5.
ICTSD 2004, p. 7
6.
CIPR 2002, p. 12. 9 UPOV 1991, Article
7.
Convention on Biological Diversity, 1992
8.
NBSAP-ICSF 2002, p. 6
9.
Plotkin, M.J. (1988). The outlook for new
agricultural and industrial products from the tropics. In: E.O. Wilson (ed)
Biodiversity. National Academy Press, Washington DC.
10.
Kothari et al 1999, p. 207
11.
CIPR 2002, p. 58
12.
Barber et al 2002, p. 382.
13.
Rangnekar 2002a, p. 27, viii.