Impact of IPR on Biodiversity

Introduction

The Biological Diversity Act of India [1] lays down the definition of biological resources and biodiversity as the variability among living organisms, multiple cells, and ecological complexes of which they are part and includes diversity within species or between species of the ecosystem[2].

Biological diversity is the spine of sustainable development. Conservation of biodiversity becomes important because, unlike other sustainable issues, the loss of biodiversity is irreversible. This also implies that the extinction of one species in one part of the world may result in cascading extinctions worldwide. Our reliance on biodiversity is witnessed by our dependence on it for food supplies and medicines. At present, 82% of plant species contribute to about 90% of the nation’s per capita supplies of food plants. In addition, about 80% of the world’s population relies on traditional medical systems. Therefore, its protection is of utmost importance.

This article discusses the importance of the conservation of biodiversity. It explores the relationship between intellectual property rights and biodiversity. Additionally, it analyses various provisions in the current IPR regime which poses threat to biological diversity.

The relationship between IPR and Biodiversity

The current IPR regime is mostly involved in furthering the commercialization of seed development, monoculture, and protection of new plants varieties, microorganisms, and genetically modified organisms. As a consequence, rich biodiversity is continuously being withered. Hence, the need of the hour is to have an alternative mechanism in place which could draw parity between formal intellectual property systems and the sustainable aspects of biodiversity.

Developed nations, though not rich in genetic resources, are better equipped with research and development facilities. They research biogenetic resources which are mostly accessed from the lesser developed nations. Due to this, there is an unprotected (not secured by IP rights) flow of biogenetic data to the developed nations. On the other hand, there is a protected (secured by IP rights ) flow of genetic data to the Global South through patents and Plant Breeder’s Rights. This practice has both noticeable and invisible effects.

History of IPR and Biodiversity

The United Kingdom was the first country to evolve the usage of biodiversity as a commodity with regard to its desire to use high-quality seeds for agricultural production. This gradually resulted in the business of selling registered seeds. Later, the government encouraged innovation in this sector by rewarding individuals who improved seeds further. Consequently, this resulted in the establishment of Plant Breeder’s Rights (PBR) that furthered the commercialization of genetic resources. For over six decades the industrialized nations have continued to produce different forms of plant varieties through the system of PBR. In 1969, the International Union for the Protection of New Varieties (UPOV)[3] was established in Geneva for coordination of the inter-country implementation of PBR’s, which came into force in 1968. This Convention also laid down the conditions to be fulfilled by the new varieties to be eligible for protection under the Convention. These conditions are as follows-

1. Completely different from the existing commonly known varieties;

2. Sufficiently homogeneous, uniform, and stable; and

3. No commercialization before the date of application of protection.

In addition to this Convention, few nations also used patents for genetically modified organisms (GMO’s). The USA was the first country to patent an engineered bacterial strain in 1972[4] which was invented by the Indian microbiologist Dr. Anada Mohan Chakrabarty.

With the invention of new biotechnologies, we can identify exotic genetic resources and subsequently use them as commercial products. This has remarkably changed the pace of the IPR regime across nations. Augmented commercialization of biogenetic resources and research and development for obtaining IPR will eventually decide the fate of our rich biodiversity.

India is grouped among the 12 mega diversity centers [5] of the world. With 167 crop species and 320 species of wild crops, relatives, and several species of domesticated animals [6], India is considered to be the center of origin for a variety of plant and animal species. It is also among the top ten nations in terms of its contribution to world agriculture.

IPR Legislations to protect Biodiversity

Two main Conventions deal with the protection of biodiversity - Trade-Related Intellectual Property Rights (TRIPs) and Convention on Biological Diversity (CBD) [7]. To comply with the TRIPs and CBD, India passed the Indian Patent Second Amendment Act, 2000, and the Biological Diversity Bill, 2002 respectively. These legislations made microorganisms a patentable subject in India and also increased the term of the patent to 20 years for all products and processes. India has also initiated the procedure to accede to the UPOV Convention which implies that the new plant varieties in India need to have Plants Breeder Rights certification. In compliance with the Budapest Treaty, the deposit of biological material has also been included.

Current IPR regime eroding Biodiversity

Various government schemes compel farmers to sow commercially viable seeds or new plant varieties. This commercialization augments uniformity in genetic resources, thus curbing genetic diversity. This, in turn, leads to irreversible genetic erosion. The current IPR regime enhances the commercialization of agriculture which has increased the depletion of genetic resources. Research in the biotechnology sector also centers on agri-business and prompts interest for IP rights, thus entailing similar negative consequences of genetic erosion.

The threshold required for Plant Variety Protection (PVP) is way lesser than it is required for patents. Though there is the requirement of novelty and distinctiveness, there isn’t any mention of industrial applicability or utility. Hence, as per current PVP laws, the system is driven by commercial requirements of product distinctiveness rather than actual development in agronomic traits.

Similarly, other requirements of PVP of being stable and uniform fail to incorporate local varieties developed by peasants. These varieties developed locally are genetically non-uniform and less stable. However, these features of local varieties help them to adapt to the agro-ecological environment of the Global South. Further, greater uniformity means increased vulnerability to the same disease, which in turn leads to erosion of on-field biogenetic resources. The privatization of biodiversity has led to patented engineered species which has increased the practice of mono-cultural plantation. Another risk to biodiversity by patented engineered species is that they might create the unexpected harmful effect on other bio-organisms on change of environment that could further endanger biodiversity.

Conclusions and Suggestions

The advantages of genetic diversity are long-term and hardly predictable. As per the Food and Agriculture Organization’s report, humanity shares the common bowl having only 20 cultivated crops that accounts for 90% of our calorie requirements. These crops originate from developing countries, which means that they are more susceptible to pests and diseases and depend on genetic diversity for their continued survival. In the 21 century, it is widely believed that an alarming proportion of the genetic variability of our food plants has become extinct. The conservation and development of the existing crop diversity is a matter of global concern.

The effective advancement of biodiversity will rely on fostering relationships between two inverse shafts – formal innovative and community frameworks. To achieve this, we need policies that encourage technology transfer and inclusivity in active participation in research and development. Dynamic cooperation implies poor farmers and rural people exercising control over genetic resources and this is reciprocated by the formal system having experimentation, institutional, and policy changes every now and then to fulfill the worldwide commitment to preserving biodiversity. Eventually, the motivation to save our biodiversity and to energize innovation in biogenetic assets is to make the quality of human life better. This ought to be remembered always, before any innovation or policy alteration; else human existence will be put in question.

[1] Biological diversity act of India https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf

[2] Section 2(b) of Biodiversity act 2002 https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf

[3] International Union For The Protection Of New Varieties https://www.upov.int/portal/index.html.en

[4] https://www.natureasia.com/en/nindia/article/10.1038/nindia.2020.192

[5] https://www.omicsonline.org/blog/2015/08/27/19447-Mega-Biodiversity-of-India.html

[6] https://www.omicsonline.org/blog/2015/08/27/19447-Mega-Biodiversity-of-India.html

[7] Convention on Biological Diversity, https://www.un.org/en/observances/biological-diversity-day/convention#:~:text=The%20Convention%20on%20Biological%20Diversity,been%20ratified%20by%20196%20nations.