TOPIC: BIODIVERSITY AND BENEFIT SHARING

SUBJECT: INTELLECTUAL PROPERTY LAW

INTRODUCTION

The Biological Diversity Act of 2002 was enacted by the Indian Parliament to address
concerns related to the conservation and sustainable use of India’s rich biodiversity. The
Biological Diversity Act 2002 came into force on 5th February 2003 and complements the
Wildlife Protection Act of 1972.

The need for such an Act arose from the realization that India is one of the world’s most
biologically diverse countries, with a wide range of flora and fauna that are unique to the
country. However, biodiversity was under threat from various factors, including habitat
destruction, over-exploitation, climate change, and other human activities.

In addition, the traditional knowledge of local communities about the use and conservation of
biodiversity was being eroded, and there was a need to protect and promote their rights in this
regard. The Biological Diversity Act of 2002 was thus designed to provide a legal framework
for the conservation and sustainable use of India’s biodiversity, while also ensuring that the
benefits arising from its use were shared equitably among all its citizens, particularly local
communities.
SALIENT FEATURES OF BIOLOGICAL DIVERSITY
ACT, 2002

The Biological Diversity Act of 2002 is a comprehensive legislation that seeks to regulate
access to India’s biodiversity, promote its conservation and sustainable use, and ensure the
equitable sharing of benefits arising from its use. Some of its salient features include:

REGULATION OF ACCESS TO BIODIVERSITY –

Section 3 of the Act provides for the establishment of the National Biodiversity Authority
(NBA) to regulate access to India’s biodiversity.

Section 4 of the Act specifies that any person or organization seeking to access India’s
biodiversity for research or commercial purposes must obtain prior approval from the NBA.

CONSERVATION OF BIODIVERSITY –

Section 36 of the Act requires the government and local authorities to take measures to
conserve and protect India’s biodiversity, including through the establishment of protected
areas and the promotion of in-situ conservation.

SUSTAINABLE USE OF BIODIVERSITY –

Section 8 of the Act recognizes the importance of using biodiversity in a sustainable manner
and encourages the development of practices that support sustainable use.

Section 7 of the Act requires that the use of biodiversity should not cause damage to the
environment or the loss of biodiversity.

BENEFIT SHARING –

Section 21 of the Act requires that any benefits arising from the commercial use of India’s
biodiversity must be shared equitably with local communities and other stakeholders.

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Section 24 of the Act provides for the establishment of a National Biodiversity Fund to
support the conservation and sustainable use of biodiversity.

INTELLECTUAL PROPERTY RIGHTS –

Section 29 of the Act recognizes the intellectual property rights of local communities and
traditional knowledge holders over the use and conservation of biodiversity.

Section 3(1) of the Act provides for the establishment of a State Biodiversity Board in each
state to facilitate the conservation and sustainable use of biodiversity, including by ensuring
the protection of the rights of local communities and stakeholders.

OFFENCES AND PENALTIES –

Section 55 of the Act sets out penalties for non-compliance, including fines and
imprisonment.

Section 56 of the Act provides for the seizure of equipment and products used in
contravention of the Act.

CONCEPT OF BENEFIT SHARING

Benefit sharing is a vital aspect of protecting traditional knowledge (TK) and biodiversity
associated with biological resources. It involves ensuring that those who contribute to the
conservation and development of traditional knowledge and biodiversity receive equitable
monetary and non-monetary benefits.

Under the Biological Diversity Act of India, benefit sharing is mandated for various
activities:

Research: Entities conducting research involving traditional knowledge or biological

resources must share benefits with benefit claimers and local communities.

Commercial Utilisation: Those engaged in commercial activities using traditional

knowledge or biological resources must share the benefits derived.

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Bio-Survey and Bio-Utilisation: Entities involved in these activities must share benefits
obtained from survey and resource utilisation.

IMPORTANCE OF BENEFIT SHARING -

By implementing benefit sharing provisions, the Act aims to:

 Recognize and reward indigenous communities and individuals for their

contributions.
 Ensure equitable distribution of commercial benefits.
 Safeguard traditional knowledge and biodiversity.
 Promote conservation and sustainable development practices.

ACCESS AND BENEFIT SHARING (ABS) MECHANISM

The Biological Diversity Act, 2002, envisages the ABS mechanism as a legal framework.
This regulatory framework has been put in place in the Act to regulate activities of
commercial utilization, research, bio-survey and bio-utilization of biological resources
occurring in or obtained from India.

ABS is one of the most important areas of emerging biodiversity jurisprudence. Access and
Benefit Sharing is a mechanism which secures fair and equitable share in the benefits arising
out of access and utilization of biological resources for commercial purposes. The benefits
thus secured are channelled to the benefit claimers and for the conservation of biological
diversity.

PROVISIONS OF THE ACT –

Sections 3, 4, 6, 7 and 21 of the Biological Diversity Act, 2002 are in essence the regulatory
provisions under the ABS mechanism envisaged by the Act.

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SECTION 3: Any person or entity having any foreign element, seeking access to any
biological resource and/or associated knowledge or to obtain any biological resource
occurring in India, for commercial utilization, research or bio-survey and bio-utilization shall
have to seek prior approval from the NBA before such access or obtainment.

SECTION 4: Any person who seeks to transfer to any person or entity having any foreign
element, the results of research relating to biological resource occurring in, or obtained from
India, has to apply and obtain prior approval of NBA before such transfer. The consideration
for transfer under this section may be monetary or otherwise. The provision exempts
publication of research papers or dissemination of knowledge in any seminar or workshop
provided such publication is in conformity with Central Government Guidelines made in this
regard.

SECTION 6: Any person who seeks to apply for any Intellectual Property Right, anywhere,
within or outside India, for any invention based on any research or information on a
biological resource obtained from India has to apply and obtain prior approval of National
Biodiversity Authority, before applying for such IPR. In cases where the IPR sought is a
patent, the approval from National Biodiversity Authority may be applied and obtained
subsequent to acceptance of the application for patent but prior to sealing of the patent.

SECTION 7: Any Indian person or entity not covered under the earlier category, seeking to
access and obtain biological resources for commercial utilization or bio-survey and bio-
utilization for commercial utilization has to give prior intimation to the relevant State
Biodiversity Board, from whose State the biological resources are sought to be accessed or
obtained. Local people and communities practising indigenous medicine including vaids and
hakims, and growers and cultivators of biological diversity of the local area are exempted
from this provision.

SECTION 21: It is the duty of the National Biodiversity Authority to ensure that the terms
and conditions under which approval is granted to an application made to it, secure the
equitable share in the benefits that would arise from the utilization of biological resources
and associated knowledge, in accordance with mutually agreed terms between the applicant,
local body concerned and the benefit claimers.

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EXEMPTIONS FROM THE ABS MECHANISM –

Sections 5 and 40 contain certain exemptions from the ABS mechanism.

SECTION 5: If any research institution in India is engaged in its institutional capacity in a

collaborative research project with such institution in another country, relating to transfer or
exchange of biological resources or associated information, it is exempted from applying for
approval under this Act, provided that such collaborative research project has the approval of
Central Government and is in conformity with the Central Government Guidelines made in
this regard.

SECTION 40: Pursuant to Central Government notifying any item including biological
resources normally traded as commodities under this section, the same becomes exempted
from the purview of the Act.

EXAMPLES OF BENEFIT SHARING IN INDIA -

Kani Tribe's Traditional Knowledge in Medicinal Plants : The Kani tribe of Kerala holds
traditional knowledge about medicinal plants. They entered into an agreement with the Indian
Council of Forestry Research and Education (ICFRE). The tribe receives royalties for the
commercial use of their traditional knowledge.

Amla (Indian Gooseberry) Patent Case: A German company tried to patent an amla extract
traditionally used in India for health benefits. India challenged the patent, providing evidence
of traditional use. The patent was revoked, acknowledging the prior art and traditional
knowledge linked to amla.

Honey Gatherers in Uttarakhand: The Van Raji tribe in Uttarakhand practices sustainable
honey gathering from Himalayan cliffs. To support their traditional knowledge and
sustainable practices, the government initiated projects to provide fair prices and training in
beekeeping.

Basmati Rice Geographical Indication (GI) Tag: Basmati rice has a long history of
cultivation and traditional knowledge in India. A GI tag was obtained to protect the interests

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of farmers and preserve traditional knowledge. It prevents unauthorized use and benefits
farmers and communities involved in cultivation.

Traditional Farming Practices: Indigenous farming communities in India have unique and
sustainable agricultural practices. Some organizations and companies partnering with these
communities ensure they benefit from sharing their traditional knowledge. This supports
economic development while preserving traditional methods.

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 CONCLUSION

The intrinsic value of biological diversity, as well as its ecological, genetic, social, economic,
scientific, educational, cultural, recreational, and aesthetic values, must be appropriately
managed for the welfare of humans in order to promote better, healthier, and more peaceful
living on earth. The Biological Diversity Act is a milestone in balancing the debate on
Environment and development. The enabling provisions under the act have brought
commendable benefits in ensuring the development of local communities through benefit
sharing of the benefits associated with the use of resources.

These examples highlight India's efforts to protect traditional knowledge, conserve

biodiversity, and promote sustainable development through benefit sharing mechanisms.
These mechanisms ensure that local communities' rights and contributions are acknowledged,
respected, and rewarded when their knowledge and resources are utilized for commercial
purposes.

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