Unit 02

Introduction to Biodiversity Act

• The Biodiversity Act, 2002 was enacted to regulate access to biological resources and
associated knowledge, and to ensure equitable sharing of benefits arising out of their
use. The main objective of the Act is to conserve and sustainably use India's rich
biodiversity, while ensuring equitable sharing of benefits with the local communities
who have conserved these resources for generations.
• Some of the salient features of the Biodiversity Act, 2002 are:
1.Regulating access to biological resources: The Act provides for the regulation of access to
biological resources, including plants, animals, and microorganisms, and associated knowledge. It
requires that anyone seeking to access these resources must obtain prior approval from the
National Biodiversity Authority (NBA) or the State Biodiversity Board (SBB).
2.Prior informed consent and benefit-sharing: The Act requires that prior informed consent (PIC)
be obtained from the local communities who have conserved these resources for generations, and
that benefits arising out of their use be shared with these communities. The Act provides for the
creation of a National Biodiversity Fund and State Biodiversity Funds for this purpose.
• Protection of traditional knowledge: The Act recognizes the importance of traditional
knowledge associated with biological resources and provides for its protection. It
requires that anyone seeking to access this knowledge must obtain prior approval from
the NBA or the SBB, and that benefits arising out of its use be shared with the local
communities who have conserved it.
• Establishment of biodiversity management committees: The Act provides for the
establishment of biodiversity management committees at the local level to assist in the
conservation and sustainable use of biological resources. These committees are
responsible for identifying and documenting local biodiversity, and for preparing people's
biodiversity registers.
• Prohibition on transfer of biological resources outside India: The Act prohibits the
transfer of biological resources outside India without the prior approval of the NBA. It
also requires that any transfer of biological resources within India must be accompanied
by a transfer agreement that specifies the terms and conditions of use and benefit-sharing
Caselaws
• The Bio-Diversity Act 2002 seeks to regulate access to biological resources and associated
traditional knowledge. The act was enacted with the objective of conserving biological
diversity, promoting sustainable use of its components, and ensuring equitable sharing of
the benefits arising out of the use of biological resources. The act also aims to protect the
rights of indigenous and local communities who have traditionally used biological
resources and associated knowledge for their livelihoods.
• Bio-Diversity Act 2002 is the requires for obtaining prior approval for accessing biological
resources and associated knowledge. In the case of National Biodiversity Authority v.
FRLHT (2010), the Supreme Court of India upheld the requirement of prior approval and
stressed the importance of obtaining informed consent from local communities before
accessing biological resources and associated knowledge. The court held that the Bio-
Diversity Act 2002 seeks to protect the interests of indigenous and local communities and
that the prior approval requirement is essential to ensure that their rights are not violated.
• The Bio-Diversity Act 2002 also recognizes the rights of indigenous and local communities
over biological resources and associated knowledge. In the case of Kalpavriksh v. Union of
India (2011), the Bombay High Court held that the rights of local communities over biological
resources and associated knowledge are fundamental to their culture and way of life. The court
held that the Bio-Diversity Act 2002 seeks to protect the rights of local communities and that
any violation of such rights would be a violation of their fundamental rights.
• Bio-Diversity Act 2002 requires the registration of traditional knowledge associated with
biological resources. In the case of Turmeric Patent (1997), the US Patent and Trademark
Office granted a patent on the use of turmeric as a wound healing agent. The patent was
challenged by the Council of Scientific and Industrial Research (CSIR) of India, which argued
that the use of turmeric for medicinal purposes was well-known in India and that the patent
was based on traditional knowledge that was not new or inventive. The challenge led to the
revocation of the patent and highlighted the importance of protecting traditional knowledge
associated with biological resources
Convention on Biodiversity
• The Convention on Biological Diversity (CBD) recognizes the important role of intellectual
property rights (IPRs) in the conservation and sustainable use of biodiversity. The CBD has
several relevant provisions that guide the relationship between IPRs and biodiversity
conservation efforts, including:
• Access and Benefit-Sharing (ABS):
The CBD establishes principles and guidelines for access to genetic resources and the fair and equitable
sharing of benefits arising from their use. This includes the use of IPRs to protect traditional knowledge
associated with genetic resources and to ensure that the benefits of the use of these resources are
shared fairly and equitably with the communities and countries that provided them.
• Disclosure of Origin of Genetic Resources:
The CBD requires parties to take measures to ensure that the origin of genetic resources and traditional
knowledge associated with genetic resources is disclosed in patent applications and other relevant
documents. This disclosure requirement helps to prevent the misappropriation of genetic resources
and traditional knowledge, and ensures that the benefits of their use are shared fairly and equitably.
• Prior Informed Consent (PIC):
The CBD requires parties to obtain prior informed consent from the countries and communities that
provide genetic resources and traditional knowledge associated with genetic resources. This helps to
ensure that the use of these resources is based on mutually agreed terms that take into account the
interests and rights of the providers of these resources.
• Technology Transfer:
The CBD recognizes the importance of technology transfer in promoting the conservation and sustainable
use of biodiversity. This includes the transfer of technology related to the use of genetic resources and
traditional knowledge associated with genetic resources, as well as the transfer of technologies that
promote sustainable agriculture, forestry, fisheries, and other sectors that depend on biological resources.
• Intellectual Property Rights and Traditional Knowledge:
The CBD recognizes the importance of protecting and promoting traditional knowledge associated with
genetic resources, and calls for the development of sui generis systems for the protection of this
knowledge. The CBD also encourages the use of IPRs to protect traditional knowledge, provided that such
protection does not undermine the rights of the holders of this knowledge.
Nagoya Protocol
• The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from
their Utilization is a legally binding international agreement under the Convention on Biological Diversity. The
Protocol was adopted on 29 October 2010 in Nagoya, Japan, and entered into force on 12 October 2014.
• The Nagoya Protocol aims to promote the conservation and sustainable use of biodiversity, and to ensure the fair and
equitable sharing of benefits arising from the utilization of genetic resources. It recognizes the sovereign rights of
countries over their own genetic resources and requires that any access to such resources must be done with prior
informed consent and under mutually agreed terms. This includes access to traditional knowledge associated with
genetic resources.
• The Protocol also requires that any benefits arising from the utilization of genetic resources be shared fairly and
equitably between the provider country and the user of the genetic resources. This includes not only monetary
benefits, but also non-monetary benefits such as the sharing of research results, capacity building, and the transfer of
technology.
• In terms of intellectual property, the Nagoya Protocol recognizes the importance of ensuring that any intellectual
property rights arising from the utilization of genetic resources are subject to prior informed consent and benefit-
sharing agreements. This means that if a company or researcher develops a new product or technology based on
genetic resources that were accessed from a provider country, they must ensure that they have obtained prior
informed consent and that a benefit-sharing agreement is in place.
Patent Laws and Equitable Benefit Sharing of
Indian Biological Diversity
• Intellectual property (IP) laws are an essential aspect of modern legal systems as they provide protection to the innovations and
creativity of individuals and companies. Patents are a critical component of IP laws, which provide exclusive rights to inventors for
a limited period to prevent others from using their inventions without permission. The equitable sharing of benefits arising from the
use of biological resources and associated traditional knowledge is another important aspect of IP laws, particularly in the context of
Indian biodiversity.
• Patent Laws and Equitable Benefit Sharing:
• Patent laws are designed to promote innovation and creativity by providing inventors with exclusive rights to their inventions for a
limited period. However, the use of biological resources and associated traditional knowledge in the development of patented
products raises questions about the equitable sharing of benefits derived from such resources. In the context of Indian biodiversity,
the traditional knowledge of local communities is often used in the development of new products, which raises concerns about the
fair and equitable distribution of benefits.
• The Biological Diversity Act, 2002 (BDA) in India recognizes the importance of equitable benefit-sharing and provides for the
establishment of the National Biodiversity Authority (NBA) to regulate access to biological resources and associated traditional
knowledge. The NBA is responsible for ensuring the fair and equitable distribution of benefits arising from the use of such
resources.
• Intellectual property rights are crucial for promoting innovation and creativity. They give inventors and creators an exclusive right
to use, sell, or license their creations, which can incentivize them to continue inventing and creating. However, we must also
recognize that there is a need to protect the rights of local communities and ensure that they benefit from the use of their traditional
knowledge and resources. This is where the concept of equitable benefit-sharing comes in.
• Equitable benefit-sharing is the fair and just distribution of benefits derived from the use of genetic
resources and traditional knowledge, with particular attention paid to the needs and priorities of local
communities. It recognizes that indigenous peoples and local communities have valuable knowledge and
resources that can be used for research and commercial purposes, and that they should receive a fair share
of the benefits resulting from their use.
• One of the main international agreements that promote equitable benefit-sharing is the Convention on
Biological Diversity (CBD). The CBD recognizes the importance of traditional knowledge and genetic
resources and seeks to ensure that their use benefits the local communities that have traditionally used and
conserved them. The Nagoya Protocol, which is a supplementary agreement to the CBD, establishes a legal
framework for the access to and sharing of benefits arising from the utilization of genetic resources.
• However, despite the existence of these agreements, there are still challenges in their implementation. For
example, there is a lack of clarity on how to identify and document traditional knowledge and genetic
resources. Additionally, there are issues around obtaining the free, prior, and informed consent of local
communities before their knowledge and resources are used. There is also a need for greater awareness and
understanding of the importance of equitable benefit-sharing among all stakeholders, including
governments, researchers, and the private sector.
Role of Intellectual Property Rights in the
protection of Bio Diversity.
• Biodiversity refers to the variety of life on earth, including the diversity of species, ecosystems, and genetic resources. This
diversity is essential for sustaining the planet's ecological systems, human well-being, and economic development. However, the
increasing human activities, such as habitat destruction, overexploitation of natural resources, and pollution, have led to the loss
of biodiversity at an alarming rate. Therefore, the protection of biodiversity is crucial to maintaining the planet's health and
ensuring sustainable development.
• Intellectual property rights (IPRs) are legal mechanisms that protect the rights of creators and innovators to their intangible
creations, such as inventions, literary and artistic works, and symbols. IPRs are often considered as tools for promoting
innovation, creativity, and economic growth. However, IPRs can also play a crucial role in protecting biodiversity by
incentivizing the conservation and sustainable use of biological resources.
• IPRs can serve as a tool for achieving the goals of the Convention on Biological Diversity (CBD), an international treaty that aims
to promote the conservation and sustainable use of biodiversity.
1.Patents and Biodiversity:
Patents are IPRs that grant exclusive rights to the patent holder to prevent others from making, using, or selling the patented invention. In the context
of biodiversity, patents can be used to protect the rights of inventors who develop new technologies or products that use biological resources
sustainably. For instance, patents can incentivize the development of new drugs derived from natural sources, such as plants or animals, which can
contribute to human health and the conservation of biodiversity.
• However, patents can also have negative impacts on biodiversity if they are used to monopolize the use of genetic resources or traditional
knowledge of indigenous communities. It is important to take a note on the concept of "biopiracy," which refers to the exploitation of biological
resources or traditional knowledge without the consent or compensation of the communities that have developed them. IPRs should be designed in
a way that respects the rights of indigenous communities and ensures the equitable sharing of benefits derived from the use of biological resources.
2.Trademarks and Biodiversity:
Trademarks are IPRs that protect the distinctive signs or symbols used by businesses to distinguish their goods or services from
those of others. In the context of biodiversity, trademarks can be used to promote the conservation of traditional products or practices
that are linked to biological resources. For example, trademarks can be used to promote the sustainable use of traditional medicinal
plants or agricultural products, which can contribute to the preservation of biodiversity and the livelihoods of local communities.
• Trademarks can also be used to promote eco-tourism, which can contribute to the conservation of biodiversity by
creating economic incentives for the protection of natural areas.
3.Geographical Indications and Biodiversity:
Geographical indications (GIs) are IPRs that identify products that originate from a specific geographic region
and possess qualities or characteristics that are linked to that region's natural or cultural heritage. In the context of
biodiversity, GIs can be used to protect traditional products that are linked to specific ecosystems or cultural
practices. For example, GIs can be used to protect the names of agricultural products, such as coffee or tea, that are
grown in specific regions and possess unique qualities that are linked to the local environment and cultural practices.
• GIs can also contribute to the conservation of biodiversity by promoting the sustainable use of natural resources
and the preservation of traditional knowledge and practices.
 Stimulation Activity
The biotechnology company, BioTech Innovations, is interested in developing a new
product based on genetic resources found in a particular plant species that is endemic
to a remote area in the Amazon rainforest. The company believes that these genetic
resources could have important commercial applications, and wants to negotiate
access to them with the local indigenous community, the Yanomami. The Yanomami
have long-standing cultural and spiritual ties to the plant species in question, and
believe that they have a right to control access to and benefit from its genetic
resources. They are open to negotiations with BioTech Innovations, but want to
ensure that their traditional knowledge is respected and that any benefits derived
from the use of the genetic resources are shared equitably. The negotiation could start
with the representatives from the Yanomami community making a presentation to the
BioTech Innovations team, outlining their cultural and spiritual relationship with the
plant species, and their expectations for any benefit-sharing agreement. The BioTech
Innovations team could then present their business case and the potential benefits that
could be derived from the genetic resources.
1. Throughout the negotiation, the two teams would need to navigate issues such as the definition
of fair and equitable benefit-sharing, the scope of BioTech Innovations' access to the genetic
resources, and the conditions under which the Yanomami's traditional knowledge could be
used.
2. As the negotiation progresses, the teams could also face unexpected challenges, such as
disagreements over the value of the genetic resources or misunderstandings about the legal
frameworks surrounding ABS and PIC.
3. The negotiation could be moderated by a third-party mediator, such as a government official
or a non-governmental organization, who could provide guidance and help the teams to find
mutually acceptable solutions.
4. At the end of the exercise, the teams could debrief and reflect on the challenges they faced and
the strategies they used to overcome them. They could also discuss the broader implications of
ABS and PIC for intellectual property law and sustainable development, and consider
alternative approaches that could be taken to address these issues.