India is known as the country of tradition and culture. The diverse range of flora and fauna is the most valuable and the biggest asset of the country. The rural population of our country solely depend upon the traditional and cultural values for livelihood [1]. A very small portion of this traditional knowledge is documented and due to this the monopoly of the indigenous resources is granted to those who gain benefit from it without having any knowledge about it. This mainly refers to the process called bio piracy.
Introduction
Bio Piracy is generally a process through which the monopoly rights of natural resources and traditional knowledge are given to those who have exploited the traditional and indigenous resources, when the actual right should be given to the indigenous community who have the traditional knowledge about it. Most of the under developed or the developing countries will have immense genetic diversity but will lack modern technology while the developed countries will have adequate technology but no genetic diversity which is the main reason for bio piracy by developed countries. This has resulted in the hampering of the survival and livelihood of the farmers or communities who have spent their time and worked hard for restoring the heritage. India is one among the major victims of bio piracy due to the plethora of plant varieties, animal species and traditional knowledge that is seen in the country. Many big corporations and multinationals have exploited and looted our centuries old traditional knowledge and biodiversity for their own monetary profits. Our indigenous species like melons, wheat varieties, and rice varieties, medicinal plants like ashwagandha, turmeric, and neem etc. are well known victims of bio piracy. The law against bio piracy is inadequate and most of the regimes which are already existing regarding bio piracy are biased towards big multinational corporations [3] and therefore, there is an immediate need to amend and modify existing laws as well as to bring in new legislations for the protection of our bio diversity and also for the government, NGOs and other nature enthusiasts to put genuine effort in order to curb this looting practice and to protect our valuable natural resources.
The scope of the paper is to understand the concept of bio piracy existing in India and how it has resulted in the decline of our ethical and cultural values of the country. The paper also includes famous cases of bio piracy in India and the cultural and moral rights of the indigenous community. The paper limits its research to India and does not discuss other developing or under developed countries who have become the victims of bio piracy. Also the study is based completely based upon secondary sources of data and no primary data has been collected to derive any conclusions
Bio Piracy
Bio piracy is basically the usage of biological resources and traditional knowledge without any authorization from the local communities, who are the actual holders of the resources and the traditional knowledge. The problem of bio piracy is mainly affected by developing or undeveloped countries as they have a plethora of biological resources but do not have access to adequate technology. The biological resources in most of the developed countries are destroyed due degradation during the ice age. Since they have the money and technology for the development, the only thing that they lack is biodiversity which they try to take from countries that are blessed with rich biodiversity. The main industries that are affected by bio piracy are the pharmaceutical and agricultural sector. Today’s farmers depend mainly upon the method of plant breeding with the prime objective of enhancing the quality of plants but a problem arises when a company develops a plant species and takes the monopoly and sells it to the farmers. But the seeds which are developed by hybrid plants are not generally useful for farming purposes and the companies most of the time protect their knowledge as trade secret.[5] This will result in the economic downfall for small farmers as it is extremely difficult to buy seeds from a company each and every time. Further, most of the indigenous and local communities depend upon the traditional knowledge and biological resources which surround them for their everyday life, it is extremely important to protect and preserve biodiversity and the rights of the local groups. Before 1930, the plants on biological resources were not considered as an invention and therefore no particular protection for patents was granted. Later, the Plant Variety Act, 1970 provided patent protection to plant varieties that were new and distinct.[6]
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Case example of Bio Piracy in India
Neem
One of the famous examples of bio piracy in India is the patenting of the anti-fungal properties of the neem plant. The neem tree which is indigenous to the Indian subcontinent is known to have plethora of medicinal values as well as agricultural applications.[7] In the year 1994, a patent was granted to a company called W.R Grace and U.S government for a specific process of curbing fungal infection on plants with the use of oil made out of Neem that has 0.1 to 10 percentage of neem oil that is extracted through hydrophobic method which is substantially free of Azadirachtin, 0.005 to 5.0 percentage emulsifying surfactant and 0.1% water. The granting of patent of the anti-fungal properties of the neem plant was opposed, as neem was an indigenous plant variety of India and the traditional knowledge to use neem for medicinal purposes and anti-fungal application in agriculture started in India centuries before itself. Hence, the patent cannot be granted since it does not fulfil the two important essentials for granting patent, i.e. innovation and novelty. Due to inflaming protest from several Indian farmers, political and social activists, scientists, the granted patent was revoked in May, 2000. [8] If the patent wasn’t revoked then it would have led to many implications such as commoditization of neem that would have badly affected the livelihood of the indian farmers as they won’t be able to afford expensive seed made by the patent company.
Basmati Rice
Another famous blatant case of bio piracy was the basmati rice lines and grains. This was the second bio piracy victory of the country. Basmati rice is an indigenous rice variety of India and one of the most used rice in the country. A Texas based company called Rice Tec Inc filed a generic patent on basmati rice on 8th July, 1994. The company was trying to get a monopoly over the basmati rice lines and grains for planting, harvesting and cooking in the United States patent and trademark office. The company also went forward with the claim that they invented the rice, though they still acknowledged the fact that it has been obtained from different rice successions from India. The company also claimed that they are eligible for a patent since they invented a novel variety of basmati lines and grains. After a lot of protest against the granting of patent to the company Rice Tec Inc, the United States patent and trademark office revoked most of the provisions of the Basmati patent. [9]
Indian Wheat
In the year 2004, the European patent office which was situated in Munish struck down the patent that was granted to Monsanto for Nap Hal, an Indian wheat variety. The patent was granted to Monsanto, a company which is known as one of the biggest seed corporations on May 21 in the year 2003 by the European patent office by giving a title “plant” [10]. The institute of RFST along with various other organizations filed a petition, Research Foundation for Science, Technology & Ecology & Another V. U.O.I & Other [11]against the granting of patent of Nap Hal to the Monsanto corporations which resulted in the revocation of the patent.[13]
Turmeric
Turmeric is one of the most famous plants that is known to miraculously cure almost all health problems and is known to be used by Indians for thousands of years due to its immense health benefits and anti-inflammatory properties [13]. The University of Mississippi applied for a patent on the use of turmeric for wound healing properties and the patent was granted to them in 1994. The university claimed that the turmeric was mainly used in India for curing sprains and for anti-inflammatory applications but there was no proof on the use of turmeric for treating external wounds [14]. The Indian Council for Scientific and Industrial Research disputed the patent by submitting relevant records and Sanskrit tests, including a research that showed the use of turmeric in treating wounds which was published in 1953. On the basis of submitted proofs, the U.S patent and trademark office revoked the patent which was given to the Mississippi University on the use of turmeric for healing external wounds.[15]
International Treaties and Bio piracy
It is important to protect the rights of the patent owners as well as to make sure that the right of the indigenous group or the local communities who are already acquainted with the traditional knowledge as well as the use of biodiversity are not violated [16]. Many branches of law such as international law, intellectual property law, environment law have tried to come up with different ways to regulate bio piracy. But the main problem is that many provisions under these laws focus upon commoditization and profit maximization of products while many others aim to provide conservation of environment and biodiversity and to protect the rights of the indigenous groups. This contradiction has resulted in the discord and therefore to tackle this issue many international treaties such as TRIPS, Convention of Biodiversity have inculcated many laws to strike a balance between profit maximization and protection of biological resources and the rights of the indigenous community
TRIPS Agreement
Trade Related Aspects of IPR Agreement or TRIPS agreement was brought by the World Trade Organization in the year 1965 to protect the intellectual property rights in an international platform. TRIPS agreement helped in the international standardization of laws pertaining to intellectual property rights. The TRIPS agreement has resulted in the encouragement of bio piracy as the agreement gave patenting to life forms. According to section 27(3)(b) of the TRIPS agreement any country who is a member to the TRIPS agreement should grant protection in the form of patent or under the system of sui generis or both for the plant varieties indigenous to the member country [17]. This doctrine has caused disagreements between developed countries and developing countries. TRIPS agreement also recognizes geographical indication. As per Article 22(3) of the TRIPS agreement, the trademark that has been registered will be considered invalid if it is found that the geographical indication used by the owners of the goods for the registration of trademark is misleading or confusing to the consumer of the goods. The same principle was used in the Bio piracy issue for basmati rice.[18]
Convention on Biological Diversity
The convention of biological diversity aims to protect, conserve and maintain the indigenous species and the traditional knowledge practices of the local groups after understanding the value and importance of the unique part that the biodiversity performs in conserving the earth and life. Article 8 of the convention of Biological diversity provides and focus upon the wider use of traditional knowledge after receiving the permission of the local groups who holds the knowledge for the purpose of sharing the knowledge to a larger group of people so that they are also equally receiving the benefits that are getting from the use of biodiversity [19]
Nagoya Protocol
The Nagoya Protocol, which mainly aims to provide a means for the application of the convention of biodiversity was approved in the year 2010. The main idea of the protocol is to access as well as to share benefits that are getting out of the biodiversity. The protocol helps for to get an easier access towards the genetic and biological resources by improving the regulations.[20] The protocols also includes rules for the states such as to start new agency for the regulation of operating license for researchers and related firms and to form better mechanism for the purpose of sharing the benefits arising from the use of the biological resources and monitoring the working of thee mechanisms.[21]
India’s fight against piracy of biological resources and traditional knowledge
India has faced lots of impediments and challenges to protect the indigenous plant varieties and the traditional knowledge that belonged to our country. The struggles have indeed helped to make some significant growth in the protection of biodiversity. After proper research, the country understood the value as well as the need to protect biodiversity and to also make sure that all the benefits arising from the use of our biodiversity reaches the country of origin. India is one of the most prone countries for bio piracy mainly because of the abundant varieties of plants and biodiversity in the country [22]. In the past years, India has been successful in knocking down the patent that was granted to various companies of the United States. This was actually the first time when a country which belonged to the third world category succeeded in a fight against the developed and powerful countries. The importance of the role played by the biological resources was well known and therefore to protect the biological resources and traditional knowledge of our country from piracy, the Government of India enacted a new law called the Biological Diversity act in the year 2002. The act mainly intends to protect, preserve and recognize the biodiversity which belongs to our country and to provide a much improved and regulated access to the resources without exploiting the biodiversity for profit. The act tries to safeguard the traditional knowledge and the biodiversity which belongs to our country as well as to share the benefits emanate from the use of these resources in an equitable manner. Another important law which intends to prevent bio piracy is the patent act 1970 which requires “mandatory disclosure of source and geographical origin of the biological material in the specification when used in an invention [22]”. It is very important to understand that if the party claiming for grant of patent fails to provide the geographical origin or tries to give a wrongful geographical origin then such acts will result in the revocation of the patent [23]. The protection of the rights of the farmers as well as the plant varieties from bio piracy and commercial exploitation is also guaranteed under the Protection of plant varieties and farmers right Act, 2001. This act recognises the importance of protection of plant species by conservation and exploration for the agriculture purpose and food which is very vital in fulfilling the goal of national security which is also imperative for the sustainable development [24]. The geographical Indication of foods act which was ratified in the year 2003 is another important law which recognised the geographical origin of the products. The act aims to categories different products on the biases of its place of origin [25]. The first product in India to receive a GI tag is Darjeeling tea. The government of India also established the traditional knowledge and digital library in the year 2001 in order to prevent the piracy of biological resources and traditional knowledge which belonged to the local communities of our country. The library identifies different biological species that belong to the country. The information in the library is made available in 5 diverse languages so that a larger number of people can make use of it. The library includes the detailed information about the uses, characteristics as well as the bibliographic sources of various kinds of resources. The main objective behind the launch of this library is to create a highly capable mechanism for the purpose of preventing the piracy of traditional knowledge and to fight against unethical patents. The library includes various medicine systems of our country such as Ayurveda, Unani, and Siddha etc.
Analysis
After properly analysing the cases it is obvious that the laws pertaining to intellectual property are not strong enough to protect the rights of the local communities of our country. The laws have lots of loopholes which afford an opportunity to big companies and corporations to misuse the traditional knowledge of the indigenous community for their own personal profits.The laws have terribly failed to safeguard the rights of these communities which has resulted in the bio piracy of the indigenous biodiversity as well as the traditional knowledge. Now, traditional knowledge is considered as a free effort for the purpose of merchandising as well as a method to earn profit without giving anything in return to communities who are the actual brain behind the traditional knowledge. In Divya Pharmacy v. U.O.I [26], the High court of Uttarakhand held that no company shall derive any biological resources without taking permission from the local community. The court added that these communities are solely responsible for conserving and protecting the natural resources and traditional knowledge and therefore have all rights upon these resources. The recently amended Indian patent law has taken into consideration the problems faced by the indigenous communities and have added a new provision. According to the new provision, for a material to be patented in India, the disclosure of the place of origin of the bio species or traditional knowledge is made mandatory. Other provisions were also included in the act which called for revocation of patent if the place of origin of the material is wrong or not revealed. In order to protect traditional knowledge from bio piracy, many new provisions were also inculcated in the act which lays down the ground for revocation of the patent such as Section 25 which says “anticipation of invention by available local knowledge including oral knowledge” In the case of Novartis v. Union of India [27], a drug making company called Novartis filed an application for the grant of a patent over a drug which was used for treating cancer in India called Glivec. The supreme court rejected the application made by the Swiss company as the substance that is present in the drug called imatinib mesylate was an already patented product and the new drug called Glivec was the same substance with minor modifications and therefore the court held that the patent cannot be granted to the Novartis company as it can’t be said to be an invention under section 2(1)(j) and section 2(1)(ja) of the Patent act 1970. It is also evident that the major reason for piracy of biological resources and knowledge is not just the intentional companies and corporations but also the government. Government is not providing the indigenous groups with sufficient protection to sustain their livelihood and therefore there is an urgent need to have a proper biodiversity management system in the country. Also our Indian Judiciary have also negligently pronounced erroneous judgements pertaining to bio piracy such as in the case of Environment Support Group vs National Biodiversity [28] In this case the Biodiversity Board of the state of Karnataka have filed a petition against the company called Mosanto for bio piracy of a local variety of eggplants. But the High court of the state has dismissed the petition against the company without any valid grounds. Therefore, it is very clear that the Government of our country, judiciary as well as the legislatures are equally responsible as much as the multinational companies for bio piracy happening in our country
Conclusion
India is no doubt a country rich in biodiversity and traditional knowledge and therefore is one of the countries that is the most vulnerable to bio piracy. The traditional knowledge as well as the biodiversity of our country is exploited and looted by developed countries without equitable sharing of benefits. The indigenous community of our country is found to have minimum interest in sharing their traditional knowledge with an outsider for any monetary gain. They are always willing to share their knowledge to people without expecting any return or advantages from them. Therefore the indigenous group of our country is stuck in the vicious cycle of poverty while the multinational companies that take advantage of this acquire more and more money. Most of the local groups or indigenous communities are not aware about the Intellectual Property rights and the practice of Bio piracy. All these practices have unfavourably affected our cultural and ethical values. There is an urgent need to bring changes and amendments in the existing patent law pertaining to the protection of traditional knowledge and biodiversity from being plagiarized by big multinational companies.
Suggestions
- A separate, new legislation should be brought in to protect the biodiversity and traditional knowledge of our country from bio piracy. The legislation should provide the indigenous community absolute right over their knowledge and resource
- Digital libraries should be encouraged more as a well-managed database will make piracy of traditional knowledge a difficult task for the multinational giants.
- ·A strong mechanism should be incorporated such a sui generis system for the protection of biodiversity.
- ·The indigenous groups should be made aware about the intellectual property rights and the practice of bio piracy and how it is going to negatively impact them.
REFERENCES
[1] Edward Hammord, “Bio piracy watch”, 1,Third world network, 2013.
[3] U.Vinay Tripathi, “Bio Piracy Myth or reality”, Manupatra, 2014.
[4] Gupta Avantika Tripathi, Vimal, Sharma Swati, “Bio piracy in India: A decline in cultural values”, 4, International research journal of environment sciences, ,2015.
[5] Sayan Bhattacharya, “Bioprospecting, biopiracy and food security in India : The emerging sides of neoliberalism”, International letters of social and humanities sciences,2014.
[6] Id.
[7] United Nations Development Programme, “Biopiracy and the patenting of staple food crops”, Human development report, 1999.
[8] Id.
[9] Shiva V, “Bio piracy: The plunder of Nature and Knowledge” , South end press, 2006.
[10]Suvarna Pandey, “Biopiracy related to traditional knowledge and patenting issues”, Patent Attorney, S. Majumdar & Co., New Delhi, available at: http://www.birac.nic.in/webcontent/dib.pdf (last visited on 17 December, 2020).
[11]WP (Civil) No. 64 of 2004.
[12]Id.
[13]Supra 7.
[14]Rakesh Kalshian, Turmeric Biopiracy, available at: http://www.outlookindia.com/article/TurmericBiopiracy/20184 ( Last visited on 16 December, 2020).
[15]Divya Bhargava, Patent Act: Biopiracy of Traditional Indian Products-an overview, available at: http://www.countercurrents.org/bhargava140709.ht m (Last visited on 16 December, 2020).
[16] Meera Kumar, Biopiracy Related Issues, available at: http://www.simplydecoded.com/2013/07/14/biopirac y-related-issues/ (1 (last visited on December 16, 2020).
[17] The TRIPs Agreement, 1995,Art. 27.3b.
[18] Valérie Boisvert and Armelle Caron, “The Convention on Biological Diversity: An Institutionalist Perspective of the Debates”, 36(1) Journal of Economic Issues, 151, 152 (2002].
[19] [1] Article 8(j), Convention on Biological Diversity, 1992.
[1] Supra 8
[20]Michael A. Gollin, Biopiracy: The Legal Perspective,available at http://www.actionbioscience.org/ biodiversity/gollin.html (Last visited on 16 December 2020, 10:30 pm).
[21]S. Udgaonkar, “The recording of traditional knowledge: Will it prevent ‘bio-piracy’?”, Current Science Journal, 2002
[22] Section 4(D) of Patent Act, 1970
[1] Section 64 of Patent Act, 1970.
[1] V.K. Chauhan, “Protection of Traditional Knowledge in India by Patent: Legal Aspect”, IOSR Journal ,(2012)
[1] Section 1 (3)(e), Geographical Indications of Goods (Registration and Protection) Act, 2003.
[26] 2018 SCC Online Utt 1035
[27] [1] Civil Appeal Nos. 2706-2716 of 2013
[28] 2014 (1) AKR 598
BY RACHNA R KURUP | SYMBIOSIS LAW SCHOOL HYDERABAD