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Biological Diversity[1]

Table of Contents

QUESTION BANK

Explain the salient features of Biological Diversity Act, 2002.
Convention on Biological Diversity.
Write brief note on Biodiversity.
Biological Diversity.
Explain meaning of Biological Diversity and discus the relation between biological diversity and Intellectual Property Right.

Short Notes

Convention on Biological Diversity.

I. Introduction-

The Earth’s biological resources are vital for humanity’s social and economic development. Biological diversity is a global asset of great value to present and future generations. However, recently, there has been a great threat to biodiversity, as never before. It is very important to protect biodiversity for the sustainable development of human beings. Protecting biological diversity is important because it is linked with humanity and its development. Without protecting the environment and biodiversity, man’s life would be very difficult on Earth.

Biodiversity is the basis of all life on planet Earth. The earth’s biosphere consists of a functional structure of diverse ecosystems, which compose complex partnerships. Biodiversity is a general term related to many environments and species, such as forests, marine life, freshwater, soil, crops, plants, animals, and microorganisms.

II. Definition and Meaning of Biological Diversity-

We will discuss some definitions of biological diversity as follows-

1. Art. 2 of the convention of ‘biological diversity’ defines-

“Biological diversity” means the variability among living organisms from all sources, including, among other things, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”.

2. According to S.2 (b) of the Biological Diversity Act. 2002-

“Biological diversity” means the variability among living organisms from all sources and the ecological complexes they are part of and includes diversity within species or between species and eco-systems”.

In conclusion, biological diversity is the diversity of all life forms on Earth. It includes the various races and species of all microbes, plants, and animals that live on Earth, as well as their genetic differences. Thus, biodiversity encompasses the variety of all life on Earth.

III. Conventions on biological diversity at the International level[2]–

Various efforts have been made to protect biological diversity at the international level. Art. 27 of the Universal Declaration of Human Rights in 1948 favours protection of Patent rights. Protecting the rights of the people concerned with the natural resources on their lands is important. Indigenous people are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs and visual and performing arts[3].

Traditional knowledge is an important biological diversity attribute and an important sustainable development source.

However, due to the increased demand for bio-products, the commercialization of traditional knowledge adversely affected the livelihood of conventional knowledge-holding societies. It has also caused a great threat to the biodiversity. Some firms and persons started bio-piracy by obtaining patents on traditional knowledge. Patents on turmeric, basmati rice, Neem, etc., even though Americans obtained traditional knowledge and products from India. Therefore, the need was felt to protect traditional knowledge and bio-resources. The developing countries raised their voices to protect them at the international level. Therefore, in 1985, the World Intellectual Property Organisation (WIPO) and UNESCO adopted a model law on protecting expressions of folklore[4] against illicit exploitation and other prejudicial actions. Similarly, in 1989, FAQ[5] introduced the concept of Farmers’ Rights in its International Undertaking on Plant Genetic Resources. The Convention on Biological Diversity (CBD) 1992 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) 1994 on Biological Diversity have played very important roles in assessment, benefit sharing and protection of traditional biodiversity knowledge.

A. Convention on Biological Diversity (CBD) 1992-

194 countries passed the UN Convention on Biological Diversity 1992 with the following objects-

(i) conservation of biological diversity,

(ii) sustainable use of components of biological diversity, and

(iii) fair and equitable distribution of benefits arising out of utilization of genetic resources and appropriate transfer of relevant technology.

The convention recognises the sovereign rights of the States to use their own biological resources. The convention also expects the parties to it to facilitate access to genetic resources by other member States for environmentally sound purposes. The convention also recognises the contribution of local and indigenous committees to the convention and sustainable utilization of biological diversity through traditional knowledge, practices and innovation. It provides for the equitable sharing of benefits with the people mentioned above, arising from utilising their knowledge practices and innovation (Art. 8 (j)).

B. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) 1994-

Art. 27 (2) and (3) of the TRIPs Agreement contain the most important provisions for protecting biological diversity.

According to Art. 27 (2), Member State should exclude from patentability inventions-

(i) and prevent within their territory of the commercial exploitation of those activities which are necessary to serious prejudice to the environment.

(ii) plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.

In other words, the above exceptions from patenting allow States to exclude a range of products from patents and other intellectual property rights to protect biological diversity from commercial exploitation. Patenting allows the exclusive right of commercial exploitation of patented products. Thus, States are allowed to exclude natural genes from patents or plant breeders from commercial exploitation.

IV. Biological Diversity Act, 2002-

We have discussed provisions to protect biological diversity at the international level. However, the Biological Diversity Act 2002 has been passed to protect biodiversity in India.

A. Objects of the Act-

The objects and reasons for enactment of the Act are as follows-

India is one of the twelve mega biodiversity countries. It accounts for 7 to 8% of the world’s recorded species. India is also rich in traditional and indigenous knowledge, both coded and informal.
India was a party to the International Convention on Biological Diversity in 1992. Therefore, the Biological Diversity Act of 2002 was passed to give effect to the convention.
The Convention’s important object was to recognize the sovereign rights of States to use their own biological resources. Therefore, India needed to recognise this.

B. Salient features of the Act-

The Biological Diversity Act. 2002 has the following features-

1. Restriction on access to biological resources-

Regulation of access to the country’s biological resources to seek equitable share in benefits arising from the use of the biological resources and associated knowledge relating to biological research.

Conserve and sustain the use of biological diversity.
Respect and practical traditional local community knowledge relating to biological diversity.
Sharing of benefits-

To secure the sharing of benefits with local people as conservers of biological resources and holders of knowledge and information relating to the use of biological resources.

5. Developing biological diversity heritage-

Conservation and development of areas important from the standpoint of biodiversity by declaring them as biological diversity heritage sites.

Protection and rehabilitation of threatened species.

7. Constitution of Committees-

Involvement of the institution of self-government in the broad scheme of implementing the Act through the constitution of committees.

C. Important provisions of the Act.-

We will discuss some important provisions of the Biological Diversity Act 2002 as follows-

1. Important Definitions (S. 2)-

We will discuss some important definitions mentioned under S. 2 of the Act as follows-

a. Biological Diversity (S. 2 (b)-

“Biological Diversity” means the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-systems”. [also discussed above in definitions].

b. Biological Resources (S. 2 (c))-

“Biological Resources” means plants, animals, micro-organisms, or part thereof, as well as their genetic material and by-products (excluding value-added products) with actual or potential use or value, but does not include human genetic material.

c. Benefit Claimers (S. 2 (a)-

“Benefit Claimers” means the conservers of biological resources, their by-products, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application.

2. Regulations and Access to Biological Diversity –

(a) Limitation on obtaining biological resources and knowledge related to it (S. 3)-

No person who is-

(i) a citizen of India but a non-resident (NRI),

(ii) a body corporate,

(iii) an association, or

(iv) organisation not incorporated or registered in India, or

(v) a corporation registered in India, which has non-Indian participation in share capital or in management-

-shall, without previous approval of the National Biodiversity Authority, obtain any biological resource occurring in India or the knowledge associated thereto for the purposes of research or commercial utilization or bio-survey and bio-utilization.

(b) Limitations on the transfer of results of research (S. 4)-

Similarly, S. 4 does not permit any person to transfer the results of any research relating to any biological resources occurring in or obtained from India for monitory consideration or otherwise to (i) any Peron who is not a citizen of India, or (ii) through citizen of India who is non-resident, or (iii) body corporate or organisation which is not registered or incorporated in India or (iv) which has any non-Indian participation in its share capital or management, without the previous approval of National Biodiversity Authority. However, the publication of research papers or dissertations of knowledge in any seminar or workshop, per the Central Government’s guidelines, is permissible.

(c) Limitation on seeking intellectual property rights (S. 6)-

Any person seeking any intellectual property right in or outside India for any invention based on any biological research or information on the biological resource obtained from India is required to obtain prior permission from the National Biodiversity Authority (S. 6)

However, collaborative research projects approved by the Central Government need not obtain permission from the National Biodiversity Authority (S.5).

Indian citizens, corporations, associations or organisations registered in India, etc., are required to give prior intimation to the State Biodiversity Boards to obtain biological resources for commercial utilization. However, local people and committees in the area, including Vaids[6] and Hakims[7] are exempted from such requirements (S. 7).

3. Equitable sharing of benefits (S. 21)-

The National Biodiversity Authority has been empowered to determine ways and means of monitory benefit sharing among the persons who have grown, cultivated and conserved biological resources.

The benefits shall be shared in any of the following manners-

(i) Grant of joint ownership of intellectual property rights to the National Biodiversity Authority, or where benefit claimers are identified, to such benefit claimers.

(ii) Transfer of technology.

(iii) The location of production, research, and development units in such areas will facilitate better living standards for the benefit claimers.

(iv) Forming an association of Indian scientists, benefit claimers and the local people for research and development in biological resources, bio-survey, and bio-utilization.

(v) Setting up venture capital fund to aid the cause of benefit.

(vi) Payment of monetary compensation and other non-monetary benefits to the benefit claimers, as the National Biodiversity Authority may deem fit.

Where any amount of money is ordered through benefit sharing, the National Biodiversity Authority may direct the amount to be deposited in the National Biodiversity Fund.

(4) Bio-Diversity Heritage Site (S. 37)-

In consultation with the local bodies, the state government has noticed areas of biodiversity importance as biodiversity heritage sites.

(5) Bio-Diversity Fund (S. 27, 32 and 43)-

The Act has constituted a national, state, and local biodiversity fund to benefit bonafide claimants, conserve and promote biological resources, and develop the area.

(6) Authorities under the Act-

The Act makes provision for the establishment of-

(i) National Biodiversity Authority (S. 8).

(ii) State Biodiversity Board (S. 22) and its function (S. 23) and powers (S. 24).

(iii) Biodiversity Management Committees at the local level.

These authorities have to carry objects of the Act.

(7) Punishments-

Ss. 55, 56, 57 and 58 make provisions for punishments for different offences of individuals, associations or companies. Contravention of the provisions of the Act, specifically relating to the unauthorised use of biological resources and bio-piracy, has been made a cognizable and non-bailable offence (S. 58).

The Act has made provisions for punishing up to five years of imprisonment and a fine up to ten lakhs or even more if the damage caused exceeds ten lakhs (S. 55).

D. Relation between Biosocial Diversity Act, 2002 and Intellectual Property-

The Biological Diversity Act. 2002, provisions were made to balance the interests of intellectual property rights holders and preserve biodiversity. The Act has made provisions for not obtaining biological resources, not transferring the results of any research, etc., without prior approval of the National Biodiversity Authority. The Act has made provisions for forming national, state, and local funds to protect biodiversity and persons relating to it. At the same time, the Act promoted collaborative research in the field of biological diversity. It also provides for transferring or exchanging biological resources and information between institutions and Governments.

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[1] जैव विवीधता म्हणजे वेगवेगळया स्तौत्रांतील उद. जमिन, पानी इ. जिवांमधील वैधिध्य यामध्ये सर्व प्रकारचे प्राणी, वनस्प्ती, व जिवांचा समावेष होतो.

[2] जैवविवीधते संबंधी अंतरराराष्ट्रीय अधिवेषन/नियमावली

[3] Art. 29 Draft Declaration on Indigenous Rights.

[4] लोकसाहीत्य

[5] Food and Agriculture Organization of the United Nations.

[6] वैदय

[7] हकीम