Intellectual Property RightsLegal Implications of Biopiracy

INTRODUCTION

Traditional Knowledge is vital towards establishing an identity of various local and indigenous communities as a whole. It is imperative when it comes to establishing the identity of a community, whether with regards to physical territory or social boundaries. It also helps to create markers, that distinguishes the traditional knowledge of one community from another. Biopiracy can be simply defined as an attempt to commercially exploit materials that occur in nature, and more often than not, fall within the realm of traditional knowledge.

Any attempt at the exploitation as well as extraction of commercial benefits that can be derived from traditional knowledge leads to the wrongful misappropriation of such resources. There is a need to take steps in order to mitigate the legal implications of Biopiracy as a whole, as well as steps for the promotion, preservation and protection of such resources thereof.

This article shall be elaborating on various aspects of Biopiracy, as well as the legal implications, which have historically as well as contemporaneously posed a threat in various parts of the world.

DEFINING BIOPIRACY

The usage of the term ‘Biopiracy’ has emerged with respect to the unlawful usage of genetic resources as well as the knowledge that can be classified as traditional, especially with respect to developing countries. A slightly altered definition states it to be an appropriation, hit by illegality due to usage by non-local commercial entities. Generally, it is associated with biotech companies in the west, who try to exploit resources that have been traditionally used by indigenous persons.

According to the Action Group on Erosion, Technology and Concentration (hereinafter referred to as “ETC Group”), Biopiracy is “appropriating genetic resources and the knowledge of farming as well as indigenous communities in order to seek profits from the same and create a monopolistic situation.” Thus, it can be stated that there is no straight-jacketed definition of Biopiracy as a whole. However, it can be better understood with respect to the legal implications associated with it.

BIOPROSPECTING-BALANCING INTEREST

The terminology, ‘Bioprospecting’, was formulated as a response to the contentious relation shared between the biologically available resources vis-à-vis commercial interests, globally. Formerly defined by Walter V. Reid, it is understood widely to be the biodiversity-based exploration of resources of commercial value as well as the lookout for commercially viable biochemicals.

When viewed from the vat age point of indigenous communities, it can be defined as an extraction of their traditional innovations, while as viewed from the lens of the global corporates, it opens avenues for maximum utility of hit hero unused resources, and thereof, maximization of profits.

CAUSE OF BIOPIRACY

Corporate hijacking of traditional entities has been a longstanding issue with various causes. Some of the most widely known causes for the same include extraction for commercial benefits, furthering the cause for globalized goods and benefits derived from them thereof, and other benefits, mostly commercial in nature. Biopiracy has been a cause of concern for the developing nations in particular, which boast a rich diversity. In the Nagoya Protocol, a resolution has been proposed to the endemic problem of Biopiracy, but a lot needs to be done in practicality to crease out the bottlenecks in the issue.

EFFECT OF BIOPIRACY

European Companies tend to make gigantic profits based off the biological and traditional properties and knowledge that has been collected based on the existing of endemic as well as native plants, in indigenous areas. The global share of such trade involving herbal as well as other traditional sources is increasing, at a rapid pace, to the tune of 15% in one year. Biopiracy is also known to disrupt at a major pace attempt at the conservation of traditional resources.

LEGAL REGULATIONS GOVERNING BIOPIRACY

According to the UN Convention on Biological Diversity (1992), states have the sovereign right over the resources under their national jurisdiction and the power to control who has access to such resources in accordance with the rules of international law. The agreement also obligates the parties to fairly and equally distribute the advantages and outcomes of any research and development based on genetic resources with the party that provided those resources. Furthermore, the legal framework that allows for Biopiracy is the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which is meant to protect intellectual property. Biopiracy mostly affects pharmaceutical and agriculture businesses.

Despite encountering obstacles from Biopiracy, India has made significant advancements in a short period of time when it comes to the protection of its biodiversity and traditional knowledge. In its National Policy and Macro level Action Strategy on Biodiversity (1999), India, a signatory to the Convention on Biological Diversity, identified the following as some of its primary objectives:

1. securing the participation of State. Governments, local communities and people, NGOs, etc.
2. realizing the value of biodiversity through research and development; and

• ensuring that India receives the benefits as the country of origin of biological resources, and that its indigenous peoples benefit.

The Biological Diversity Act of 2002 (hereinafter referred to as the “Act”) controls access to biological resources and related traditional knowledge in accordance with the Convention on Biological Diversity’s Article 15 requirement, which is to ensure fair distribution of the benefits resulting from their usage.

The National Biodiversity Authority (hereinafter referred to as “NBA”), an independent body that advises the Central Government of India on conservation issues, sustainable use of biological resources, and fair and equitable sharing of benefits resulting from the use of such resources, was mandated to carry out the provisions of the Act. Similar to this, under the rules set forth by the Central Government, State Biodiversity Boards (hereinafter referred to as “SBBs”) provide advice to State Governments on the same matters. Thus, it can be understood, that there is adequate regulatory framework, both nationally and internationally to help combat the issue of Biopiracy

LEGAL IMPLICATIONS OF BIOPPIRACY

Biopiracy has many adverse effects on biodiversity, majorly the effect concerning depletion of traditional resources and associated knowledge, and also extending to the untimely extinction of contemporaneously living organisms, and other effects that affect the realm of environment.

However, when it comes to legal implications concerning Biopiracy, firstly, the lack of sufficient domestic frameworks in many jurisdictions, and another categorization of non-signatories of UN Convention on Biological Diversity (1992), often preclude many nations from seeking appropriate legal recourse in the first place.

Secondly, due to a lack of a universal framework concerning Biopiracy in particular, the abysmal protection accorded to traditional resources has rather encouraged the practice of Biopiracy due to lack of legal shackles to subdue it in toto. Thirdly, poor law enforcement also contributes in lack of deterrence when it comes to Biopiracy.

Lastly, conflicts between Domestic and International Regime, coupled with public illiteracy on the issue of Biopiracy based laws often pose contradistinctions which are hard to crease out, leaving the natives in a lurch as to the best available legal remedies in cases of Biopiracy.

Howsoever, notwithstanding the above impediments, Biopiracy can have several legal consequences. Bio-theft can be punishable by way of fines on the receipt of proof regarding the centralization of a resource, which is not ought to be exploited commercially. Furthermore, many countries have arrested bio-pirates who aim to syncretize traditional material with commercial aspects. Howsoever, there is no uniform consequence that follows an incident of Biopiracy and the legal implications differ from one jurisdiction to another.

AMLEGALS REMARKS

It can be concluded that a global agreement on the complicated subject of Biopiracy is yet to be introduced. The legal protections for those in possession of genetic resources and traditional knowledge are currently underutilized and hence have minimal impact. In light of this, Biopiracy still occurs.

Despite the fact that requiring mandatory disclosure is a great way to track compliance and stop Biopiracy, regardless of any disclosure requirement will suffice. It is crucial to analyze the potential effects on research and development and to create regulations that would not obstruct science or would only do so in the most minimal way.

Biopiracy is an important issue that needs to be urgently addressed in India due to the significant negative impact it has on the country’s biodiversity, traditional knowledge systems, and the livelihoods of local communities. Effective measures need to be taken to prevent the illegal exploitation of biological resources and traditional knowledge, protect biodiversity, and ensure that the benefits of these resources are fairly shared with local communities. This requires the development of robust legal and regulatory frameworks and the involvement of all stakeholders, including local communities, Government agencies, and the private sector.

For any query or feedback, please feel free to get in touch with falak.salwani@amlegals.com or mridusha.guha@amlegals.com