In light of the upcoming WIPO Diplomatic Conference on Genetic Resources and Traditional Knowledge, Prashant Reddy brings us a post highlighting India’s sub-par experience with its own Biological Diversity Act, 2002. Noting how the Indian Government is in the process of coming up with a new bill with significant amendments, Prashant suggests that perhaps other countries should look to learn from India’s experience. As our regular readers would know, Prashant has been one of our most prolific bloggers and his posts can be found here, here and here.
Learning from India’s Disastrous Experience in Protecting Itself against Biopiracy
Prashant Reddy T.
Image from here
As the World Intellectual Property Organisation (WIPO) gears up for the preparatory work leading up to the Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge in 2024, the world could learn some lessons from a pending legislation in India which aims to amend the Biological Diversity Act, 2002.
Originally, the Biological Diversity Act, 2002 which drew upon the principles of the Convention on Biological Diversity was the Indian response to the demand for protection against biopiracy – wherein the traditional knowledge of communities is “stolen” by corporations without fair and equitable compensation. This law basically recognised the sovereignty of the Indian state over all biological resources in the country and created a rather elaborate structure wherein prior permission or intimation would be required from a national authority or state boards, depending on the nationality of the company or researcher, to access biological resources in India for the purposes of research. Further permissions would be required from the national authority prior to sharing research results or before seeking intellectual property rights over the research generated from the biological resources. At this time, the national authority could negotiate benefit sharing on behalf of local communities who provided access to traditional knowledge or could just impose a mandatory sharing of monetary benefits which would be deposited in a fund used to boost biodiversity conservation activities in India. This entire structure was backed by elaborate criminal punishments, including imprisonment that could extend to 5 years.
The original sin
The result of the above system, especially the criminal punishments was a chilling effect on research since a hitherto unregulated sector now required legal opinions from lawyers before even the most mundane of research activities. These activities included publishing papers, filing of patent applications or where research results were shared. Even the simple exchange of biological samples that was commonplace amongst labs was becoming slow, expensive and uncertain.
Indian scientists did begin to complain as early as 2008. Ten years later they were still complaining. In 2018 in a piece published in Science and endorsed by 172 scientists from 35 countries, including India pointed out how “The CBD inspired many biodiversity-rich nations to entertain unrealistic expectations regarding the commercial value of their native species” and how “Anticipated benefits from the commercial use of genetic resources, especially those that might flow to local or indigenous communities because of regulated access to those resources, have largely been exaggerated and not yet realized. Instead, national regulations created in anticipation of commercial benefits, particularly in many countries that are rich in biodiversity, have curtailed biodiversity research by in-country scientists as well as international collaboration”.
Apart from scientists, two other very powerful lobbies were unhappy with this new regulatory regime. The first was the seed lobby. India has a rather huge seed industry, worth $6.3 billion dollars. Plant breeding is all about exchange of biological material across borders and India has been a huge beneficiary of such exchanges. The mainstay of India’s green revolution, the Norin-10 variety of wheat, which made the country less dependent on foreign wheat imports, was the result of a cross of Japanese and Mexican varieties.
The second lobby unhappy with the Biological Diversity Act was the vast Ayurvedic and other traditional remedy industry in India who were ambushed by this complex bureaucratic framework. Many of these companies were facing demands from the state level bureaucracies to apply for permission etc. prior to using biological resources in the manufacture of their products. Things got progressively worse for these companies after an adverse judgment from a High Court in north India and a shocking “raid” by the state biodiversity officials on a domestic company using biological resources without getting the permissions that were allegedly required under the Biological Diversity Act – the legal basis for the raids was very questionable since a simple reading of the law exempts Indian businesses from many of the onerous requirements imposed on foreign businesses.
While the costs of this new law were quickly mounting up, the NBA has not been able to demonstrate a single instance where local communities with access to traditional knowledge benefited from this law. Protection of TK and local communities was one of the main objectives of the Biological Diversity Act and the principal justification of the aforementioned regulatory structures. The secondary justification, which is preserving biological diversity can be met through other frameworks such as a taxation-based access system that would raise the funds required from preservation activities.
Defanging the law
The Government of India did respond to these complaints by creating exemptions through the executive and legislative routes. For the powerful seed industry, the government began the process of exempting from the purview of the Biological Diversity Act, some of the 64 food crops recognised by the International Treaty on Plant Genetic Resources for Foods and Agriculture (ITPGFA)(which unlike the CBD, treats 64 food crops as common biological resources across the world) to which India is a signatory.
Similarly, for the Ayurvedic industry, the Indian government introduced, two years ago, in Parliament a far-reaching amendment to the Biological Diversity Act, 2002 which sought to decriminalise most violations under this law and radically alter some of the core concepts of this law. One such amendment excludes domestic companies from having to provide any “intimation” to the state biodiversity board before accessing biological material and associated traditional knowledge of communities, if the knowledge was codified traditional knowledge, or if the biological resources were “cultivated medicinal plants and its products”. Similarly, an existing exemption that applied to only local communities that were growing or cultivating biological resources, will now be extended to all registered Ayush practitioners (this is a huge community of people purporting to be practising traditional medicine in India).
The sweeping amendments do not stop there. The existing law which required the National Biological Authority to ensure access and commercialisation agreements to be based on “mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers”, will now be amended to remove the reference to “local bodies concerned and the benefit claimers”. This phrase will be replaced with the following: “Biodiversity Management Committee represented by the National Biodiversity Authority”. Simply put, the NBA which is a non-representative body will settle the terms of access to biological resources (including their commercialisation). Local communities who are likely benefit claimers will not have a say in the process.
Coupled with the decriminalization of most offences, the above amendments, will mean that the amended Biological Diversity Act will be a fundamentally different law from the original one enacted in 2002. Since a Joint Parliamentary Committee has assented to most of the proposed amendments, the bill is likely to be passed by both houses of the Indian Parliament this year.
If India, after twenty years of having a Biological Diversity Act cannot show any victories (significant or otherwise) for communities with access to traditional knowledge, it may be time to admit that there is something fundamentally wrong with how developing countries are going about this entire debate to protect traditional knowledge. Perhaps it is time to admit that the IP is the wrong framework to protect traditional knowledge and look for solutions elsewhere. Given the radical rewriting of India’s own biological diversity law, it will be interesting to see the position that India takes at the Diplomatic Conference next year.