Biopiracy In The Name Of Bio-prospecting
AUTHORED BY :
TANYA GUPTA | BBA LL.B(H)
AMITY LAW SCHOOL, NOIDA
Indigenous individuals have for a very long time economically utilized and lived in their regular habitat. Be that as it may, with the development of biotechnology and provisos in the protected innovation rights laws their conventional learning has by one means or another end up noticeably inclined to biopiracy.
For better comprehension of the present issue we might first comprehend what conventional information is.
Traditional knowledge (TK) is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.
Bio – prospecting or biodiversity prospecting is the exploration, extraction and screening of biological diversity and indigenous knowledge for commercially valuable genetic and biochemical resources. Biodiversity prospecting is the process which does not always involve use of knowledge of people that belongs to a certain group but deriving valuable chemical compounds from plants, animals and micro-organisms which are of greatest commercial value when collected with indigenous knowledge or found in territories traditionally inhabited by indigenous people.
The stealing of knowledge from traditional and indigenous communities can be termed as bio piracy. The knowledge belongs to traditional and indigenous communities or individuals. It is the breach of contractual agreement on how the traditional knowledge has to be used and accessed for the benefit of the owner of such knowledge and bio prospecting without consent of local communities.
Bio piracy can be said to be a crime in the field of bio diversity where the developed countries patent the biological resource of third world countries of the world as their own without sharing the benefits they gain from its commercial exploitation while bio- prospecting is an agreement where they mutually agree to share the benefits with the community to whom the knowledge belongs.
In the present time there have been many cases of bio piracy where biotech and pharmaceuticals companies use the knowledge which has for a long time been used by a community without acknowledging them.
Bio- piracy in the name of bio prospecting is practised by not using the biological resource as per the agreement or in the assigned manner. With increasing incidents of bio piracy to prevent it and for protection of interests of the communities to which such traditional knowledge belongs international conventions and regional legislations have been made.
An effective system for protection of intellectual property has been provided in TRIPS , it provides for different mechanisms for protection of intellectual property like patents, trademarks, copyrights etc;. but currently it says that :
Members may exclude 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. However, any country excluding plant varieties from patent protection must provide an effective sui generis system of protection. Moreover, the whole provision is subject to review four years after entry into force of the Agreement (Article 27.3(b)).
Developing countries are currently demanding that implementation of TRIPs be deferred until its impact on biodiversity is clearly understood and made subject to the Convention on Biological Diversity.
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity is an international agreement which aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way .
The Biological Diversity Act, 2002 as per the article 15 of Convention on Bio-diversity the act provides for equitable sharing of benefits arisen from using the knowledge of indigenous people. For the proper implementation of the provisions of the act , the act provides for setting up of National Biodiversity Authority.
The first major bio-prospecting agreement took place even before convention on biodiversity took place. The agreement was made between US based pharmaceutical company MERCK and INBio to share the biological resources like plants, insects and micro-organisms from Costa Rica rainforests, but the agreement ignored the rights and roles of indigenous people. Costa Rica rainforests hold 5-7% of the worlds remaining biodiversity.
At that time this agreement was widely critisized on the ground that if any such similar agreement is replicated it would lead to depletion of bio diversity because Merck got access to indigenous biological resources with cheap labour.
“A country where every pebble and every stone is earned by someone else” were the words of an activist named jaya jetlie when her labour organization along with hundreds of farmers protested against the US patent of Basmati Rice.
The Basmati Rice was patented by the US compay RiceTec. They altered the strain through crossing with the western grain and successfully claimed it as their invention. This case is an example how TRIPS fails with regard to patenting biotechnological processes.
The same ricetec company was again in news when it filed a patent application for jasmine rice. Jasmine rice belongs to Thai farmers and to the thai communities. It is nurtured in Isan, the northeast, since their grandparents.
Turmeric a widely used tropical herb is grown in east India. It is used as a food ingredient, medicine – treating common cold, blood purifier, anti-parasitic and as a dye.
The US awarded patent on subject matter use of “turmeric powder and its administration”, both oral and topical for wound healing in 1995. The Indian council of scientific research had then objected to the patent granted and provided documented evidences of prior use to USPTO. Due to extensive researches, 32 references were located in different languages namely Sanskrit, Urdu and Hindi. Therefore USPTO revoked the patent.
Hence, the TK that belonged to India was safeguarded in Turmeric case.
Neem tree is legendary to India, from its roots to its spreading crown, the Neem tree contains a number of potent compounds, notably a chemical found in its seeds named azadirachtin. It is used as an astringent in so many fields. The barks, leaves, flowers, seeds of neem tree are used to treat a variety of diseases ranging from leprosy to diabetes, skin disorders and ulcers. Neem twigs are used as antiseptic tooth brushes since time immemorial. The opponents’ submitted evidence of ancient Indian ayurvedic texts that have described the hydrophobic extracts of neem seeds were known and used for centuries in India, both in curing dermatological diseases in humans and in protecting agricultural plants form fungal infections.
The patent for Neem was first filed by W.R. Grace and the Department of Agriculture, USA in European Patent Office. The said patent is a method of controlling fungi on plants comprising of contacting the fungi with a Neem oil formulation.
The EPO identified the lack of novelty, inventive step and possibly form a relevant prior art and revoked the patent. Apart from this, several US patents were recently taken out Neem-based emulsions and solutions.
BIOPIRACY IN THE NAME OF BIO PROSPECTING AGREEMENTS-
PHARMACOGNETICS of Bethesda, Maryland (USA) supplies biological specimens from the tropical forests of Latin America to pharmaceutical, chemical, agricultural, and cosmetic companies. The company is partly-owned by the Pan-American Development Foundation (PADF), a private, voluntary organization which has provided technical assistance to indigenous and rural groups throughout Latin America for over 30 years. The company will use its connection with PADF to organize plant identification and establish contacts with indigenous groups. Will indigenous communities be fully informed that the non-profit PADF is also part-owner of a for-profit commercial business that will collect thousands of biological specimens each year, screen them for specified biological activity, and then isolate and obtain patents for the active compounds?
MAXUS PETROLEUM of Dallas, Texas is in the business of extracting not just petroleum, but also tropical plants, from Ecuador’s primary tropical forest. The company is building a 120-km. road for oil exploration, and has contracted with the Missouri Botanical Garden to collect and catalogue plants it encounters along the way. Conveniently, the road traverses the Yasuni National Park and Waorani Ethnic Reserve. According to Maxus, 1200 plant species have already been gathered, 18 of which are new to the scientific world, and 200 new species in Ecuador.
The west seems to be in awe of Indian traditional knowledge. Time and again it is seen that they are patenting indigenous knowledge of Indian land. This time the USPTO granted patent for “method of producing atta flour”.
In he patent application ita was clearly stated that the patent is required not for any novelty in plant or manufacturing but on the very traditional method of producing Atta. Monsanto’s infamous patent on Indian wheat (EP0445929B1 ) claims to have “invented” wheat plants derived from a traditional Indian variety, and products made with the soft milling traits that the traditional Indian wheat provides.
The first statement in Monsanto’s patent remarks “This invention relates to plants and to products derived therefrom”.
The plant is essentially derived from the traditional Indian wheat which Indian farmers have collectively evolved and conserved over millennia. Monsanto is claiming as its inventions the traits of Indian wheat evolved for India’s food culture and cuisine, based on ‘rotis’ and ‘chapattis’. The patent is thus a piracy not just of millennia of breeding by Indian farmers but also of millennia of innovation in food qualities.”
It seems as if the west is trying to make the Indian food, culture and economy invisible.Making India ‘s Food, Culture and Economy Invisible. Such false claims are made all through the patent. About 600 million Indians utilize delicate processing low gluten wheat as a staple as ‘chapatis or rotis’. For a great many years, we have eaten wheat fitting to our sustenance culture. The option is accessible on a wide scale in India in our day by day nourishment. This is the option Monsanto is endeavouring to privateer. Monsanto’s claim covers wheat plants got from Indian wheat assortments and items produced using delicate processing wheat.
In the west as it is eaten as bread, wheat is chosen for high elasticity and high water absorption, so that it rises. The patent application is a clear proof of how the west is trying to monopolise every single thing in which India has some supremacy.
It might happen that Monsanto could extend these rights to India under the Patent Cooperation Treaty (PCT) and hence charge royalties from farmers growing traditional wheat varieties! Even if the patent is not recognised in India, Monsanto’s biopiracy patent in Europe and USA prevents India from deriving benefits from the growing market in US and Europe chemical free, low gluten wheat products.
At display additionally 60% of Indian populace is engaged with farming. The underlying foundations of India lie in age old customary rural occupation. Cultivating for Indians isn’t just a wellspring of wage – it is a wellspring of culture and character. The principle thought process behind hereditarily changed seeds which can be acquainted by created nations is with govern the creating countries. On the off chance that this is executed the results will be much more risky at that point anticipated. The poor ranchers need to purchase its own particular seeds from west, we can’t enhance or contribute some other cross breed assortment of seeds, poor economy, and different types of hereditary infections.
One of the best misfortunes to our general public has been the obliteration of our indigenous seeds, with a specific end goal to advance HYV and GM seeds. They have been wrecked, clearing a path for HYV and GM seeds sold by huge organizations. India is seeing a frantic race of organizations to develop more GM harvests, for example, maize, mustard, sugarcane, sorghum, pigeonpea, chickpea, rice, tomato, brinjal, potato, banana, papaya, cauliflower, oilseeds, castor, soyabean and therapeutic plants.
GM seeds are being advanced by World Bank, FAO and CGIAR (Consultative Group on International Agricultural Research which is completely overwhelmed by the US and huge companies).it is simple for the GM seeds enrolled in the US to discover their approach to India even while different nations, for example, EU, Australia, New Zealand, parts of Brazil and a few states even in the US, similar to Vermont and parts of California, are prohibiting them!
Everybody consents to the way that usage of GM yields will make unsalvageable harm untamed life, biodiversity and can antagonistically influence natural and traditional seed through cross-sullying and the real concern is that so far no legitimate tests have been done to demonstrate their reactions on man and brute.
Monsanto and other substantial makers of GM seed are urgent to get into India as they are being constrained out of different nations. In India , as well, we should challenge and push out these MNC creatures and their savage GM seeds, synthetic toxic substances and dangerous poisons.
Possibly we can take a lesson from Argentina, Bolivia and Venezuela to frame our own particular bootleg market for seeds. The opportunity has already come and gone that Indian government consider our ranchers and age old rural occupation and quit seeking after its savage intentions and interests.
Biopiracy being an extremely complex issue identifies with different branches of law. There are various arrangements, writings and statements under worldwide law, protected innovation Rights, ecological laws, controlling biopiracy. However in light of contrast in topic and protest, every once in a while these arrangements appear to repudiate each other. On one hand laws identified with International Trade, IPR or some other business matters goes for expansion of advantage then again laws managing condition insurance and indigenous individuals’ rights search for to a greater degree a manageable and moral approach. These distinctive points consistently result in opposing results once in a while prompting irreconcilable situation.
Keeping in mind the end goal to give a universal casing work to the assurance of IPRs, WTO in 1995 presented Trade Related Aspects of IPRs Agreement (TRIPs).Implementation of the TRIPs assertion, which permits licensing the live forms, has really supported biopiracy.
Principle of Sui Generis
Article 27(3)(b) of the TRIPs Agreement requires part state to give assurance to plant assortments, either by patent or under a sui generis framework, or a blend of both. Subsequently, a discussion has risen between the created and creating countries.
TRIPS do perceive geographic indication to distinguish the root of a decent in a specific region of a part, or a district or area in that territory. As per the provisions of the understanding the enlistment of a trademark which utilizes a topographical sign in a deceptive way should be denied or nullified ex officio, as was connected in Basmati case.
The doctrine of common heritage of mankind
Article 1(1) of FAO’s International endeavour on Plant Genetic Resources for Food and Agriculture, 1983, states that the endeavour depended on “the all around acknowledged rule that plant hereditary assets are a typical legacy of humankind and subsequently ought to be accessible without restriction”. Meaning along these lines that no one can claim sovereignity over those assets.
On one hand, the difficulties postured by the individuals who reared progressive plant assortments from existing ones prompted calls by plant raisers’ correct holders for the improved insurance of their rights through change in the common plant assortment administrations, then again the indigenous groups and their supporters start to yell for the security of their own assets and conventional information from misappropriation by the holders of plant reproducers’ rights and licenses. Subsequently, the normal legacy idea was looked into and inevitably disposed of with the selection of the CBD.
Convention on Biological Diversity
The Convention on Biological Diversity not just perceives the reliance of indigenous individuals on biodiversity yet additionally their remarkable part in monitoring life in earth.
It is consequently that the convention gives that the gatherings have attempted to regard, save and keep up the information, advancements and practices of indigenous and neighbourhood groups applicable for the preservation of Biodiversity. Likewise stresses to advance their more extensive application with the endorsement of information holders and to empower fair sharing of advantages emerging out of the utilization of biodiversity. It additionally perceives states power over its own particular assets, subsequently getting profited from these assets without the earlier consent of such state isn’t admissible.
The Nagoya Protocol
Sanctioned in 2010, the Nagoya Protocol determines the methods by which the CBD can be connected. The convention for the most part manages Access and Benefit Sharing (ABS). It goes for better direction of access to hereditary assets and urges states to set up an organization to which firms and scientists must demand working licenses. States ought to likewise guarantee the setting up and running of a fair system of sharing any advantages emerging from the utilization of resources.
INDIA AND BIOPIRACY LAWS: THE ROAD AHEAD
The Protection of Plant Varieties and Farmers Rights Act, 2001
The demonstration perceives the part of agriculturists as cultivators and conservers and the commitment of customary, rustic and ancestral groups to the nation agro-biodiversity by remunerating those for their commitment through advantage sharing and ensuring the conventional privileges of the ranchers. The demonstration sets up a National Gene Fund to advance the preservation and practical utilization of hereditary assets of agro-biodiversity and a Plant Varieties and Farmers’ Right Authority to play out all capacities identifying with the assurance of plant assortments.
The Patent Act, 1970
Act announces any plants and creatures in entire or any part thereof, or any customary knowledge not to be considered as an innovation under the demonstration. Since they are not a creation, no individual can guarantee for the patent privileges of these things.
Besides, after alteration in 2002 and thusly in 2005, the Act requires “compulsory divulgence of source and topographical beginning of the natural material in the determination when utilized as a part of an invention. if there should arise an occurrence of an inability to unveil this data, or investment in wrongful reveal this data, or partake in wrongful exposure, at that point the changes allow restriction to, or disavowal of, the patent.
The Biological Diversity Act, 2002
According to the Article 15 of the CBD, the demonstration directs the entrance to organic assets and related conventional information to guarantee fair sharing of advantages emerging out of their utilization. In December 2012, the First National Biodiversity Congress, 2012 (Congress) held in Kerala, sorted out by Ministry of Environment and Forest, the NBA, and SBBs to address various biodiversity issues, together with the administration of customary Knowledge and access and advantage sharing of hereditary assets.
The Traditional Knowledge Digital Library (TKDL)
In 2001, Indian Government propelled an exceptionally yearning undertaking to protect the customary learning from biopiracy. A computerized library with a question recognize all conventional utilization of India’s indigenous organic assets, sourcing from various books in neighborhood dialects was opened. Qualities, uses and bibliographical wellsprings of different plants are distinguished and interpreted in five distinctive global dialects. The point is to set up an able system to build up anteriority of customary Knowledge in instances of biopiracy. To battle biopiracy and dishonest licenses, the library is set up as archive of 1200 definitions of different frameworks of Indian prescription, for example, ayurveda, unani and siddha. The library additionally has 50 conventional ayurveda books digitized and accessible online.One can state this is an exceptionally novel and imaginative activity that can be a decent case for other creating countries.
Geographical Indications of Goods (Registration and Protection) Act, 2003
GIG Act, 2003 is a sui generis enactment authorized by association legislature of India, with a mean to ensure the land signs of the nation. Under this demonstration an item is characterized by a geological zone where it is generally found. It likewise propel item standards, give indexing and order and upholds regulation. Darjeeling tea turned into the primary GI labeled item in India, in 2004– 05, from that point forward 193 products had been added to the rundown as of March 2013.
Inside such a limited capacity to focus time, the way Indian government responded to the misrepresenting issue of biopiracy is excellent for other creating nations. Be that as it may, similar to Robert Frost said “miles to go before I rest”, there is part to be done to kill this emergency from the indigenous group.
In this season of Patent wars, each time somebody claims even a little bit of India i.e. Bharat as their own, the country goes into a spiral. Inconvenience, issue, uneasiness and resolve to battle it out once again do demand the Government, natural gatherings and NGOs around the country. Indian government and different establishments are battling the war for the claim of more than 40 items all through the globe. The dread that another person may get hold of the directly finished the proprietorship, exchange and showcasing of Indian products around the globe, is more than somewhat jarring and perhaps which is all well and good, as happened not far back with the neem, basmati, haldi thus numerous other Indian conventional merchandise.
In darkest of circumstances, there exists an expectation. However, India is presently attempting to secure its indigenous group’s rights and conventional learning through enactments under its city laws, yet as we as a whole know it isn’t sufficiently adequate. There exists a need of an ‘umbrella’ enactment overseeing the whole scene of Indigenous Community and their Traditional learning.
As the time requests the indigenous individuals do have a privilege of self assurance of their future, so the patent laws ought to mirror their great genuine innovators instead of following the out dated western meaning of “development” by controlling qualities. Indigenous individuals ought to have the entrance to data identified with insurance of their conventional learning utilizing different worldwide and city traditions that must be adhered to.
Both profound quality and equity request that the created nations treat Indigenous individuals of creating nations with deference; they do require the help of national and global laws, instrumentalities and comparable toehold at the debatable work area.
It is to be noticed that the IP world has recognized the significance of effective documentation of indigenous TK like India’s TKDL-assume a part in guarded assurance inside the current IP framework. As proposed by World Intellectual Property Organization (WIPO) as a worldwide measure to control bio-robbery and misappropriation of TK the accompanying methodologies are talked about. Innovations in view of or created utilizing hereditary assets (related with customary learning or not) might be patentable or secured by plant reproducers’ rights. The other couple of measures considered, talked about and created by WIPO are right off the bat, cautious insurance of hereditary assets which goes for forestalling licenses being allowed over hereditary assets (and related conventional learning) which don’t satisfy the current necessities of curiosity and creativity. The said measure additionally involves the conceivable preclusion of patent applications that don’t conform to Convention on Biological Diversity (CBD) commitments on earlier educated assent, commonly concurred terms, reasonable and impartial advantage sharing, and revelation of cause. Furthermore, WIPO individuals need to make it required for patent applications to demonstrate the source or starting point of hereditary assets, and also proof of earlier educated assent and an advantage sharing understanding.
India needs to remind the US — at this delicate snapshot of mankind’s history — that we have developed the most profound information of Ayurveda, and the wealthiest Biodiversity in Agriculture, not through privatization and IPRs but rather through the rationality Vasudhaiva Kutumbhakam, the Earth family.
At the point when the US discusses solid patent laws, it is confining itself to the corporate intrigue. On criteria of corporate rights at the cost of nature and individuals, US laws are solid. On grounds of moral contemplations and social and biological equity, they are powerless. Rather than India being harassed to crush her civilisational inheritance of Vasudhaiv Kutumbhakam, her deliberately and fairly developed laws identified with Biodiversity, the Rights of Mother Earth, and privileges of individuals to their aggregate scholarly and social legacy, it is the ideal opportunity for the US government to quit being an instrument of the morally, experimentally and legitimately unreasonable development of worldwide organizations to characterize life as their innovation and property.
1 http://www.wipo.int/tk/en/tk/ last visited on 04th February,2018.
2 http://www.etcgroup.org/content/bioprospectingbiopiracy-and-indigenous-peoples last visited on 04th February,2018.
3 https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm#patents last visited on 04th February,2018.
4 https://www.cbd.int/abs last visited on 04th February,2018.
5http://www.etcgroup.org/fr/node/482 last visited on 04th February,2018.
6 http://www.etcgroup.org/fr/node/482 04th February,2018.
7 https://www.countercurrents.org/bhargava140709.htm 04th February,2018.
8 https://www.countercurrents.org/bhargava140709.htm 04th February,2018.
9 https://www.countercurrents.org/bhargava140709.htm last visited on 04th February,2018.
10 http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng last visited on 04th February,2018.
11http://lawmantra.co.in/biopiracy-the-vanishing-point-of-traditional-knowledge-by-sidhant-tigga-and-sachin-mishra/ last visited on 04th February,2018.