TITLE: Intellectual Property Rights and Biodiversity: Are India's Proposed Biodiversity Act and Plant Varieties Act Compatible AUTHOR: Mr Ashish Kothari PUBLICATION: submitted to BIO-IPR for posting DATE: 22 January 1998 SOURCE: The author can be contacted as per details below. INTELLECTUAL PROPERTY RIGHTS AND BIODIVERSITY: ARE INDIA?S PROPOSED BIODIVERSITY ACT AND PLANT VARIETIES ACT COMPATIBLE? ASHISH KOTHARI Kalpavriksh, Pune India has acceded to two international treaties of great significance in the 1990s, and it is important to consider their implications for domestic legislation and actions. The two treaties --- the Convention on Biological Diversity (CBD) and the Trade Related Intellectual Property Rights (TRIPs) part of the World Trade Organisation?s set of agreements --- have differing goals. The first attempts to conserve biological diversity, encourage the sustainable use of biological resources, and ensure the equitable sharing of benefits arising from such use. The latter attempts to provide protection to intellectual property, in particular that related to trade, in such a way that innovators and inventors are enabled to generate benefits commensurate with the intellectual inputs they have put into a product or process. Several observers have pointed out that these two treaties have potentially conflicting requirements, though officials and proponents of the two have strained over the last few years to show that there is an essential complementarity between them. Whether contradictory or complementary, however, what is particularly important from India?s point of view is to consider whether the follow-up actions that we are taking as a nation are in harmony with each other or not. This brief note explores the relationship between two of the three follow-up legislative actions that India is proposing to take: the Biological Diversity Act and the Plant Varieties and Farmers? Rights Protection Bill. Both have had a long history of formulation, both have been finalised in 1998, both are currently with the Union Cabinet for approval, and both may be placed in the budgetary session of Parliament in February 1999. There is a third piece of legislation, which is also relevant: the proposed Patents Bill, and its precursor the patents ordinance issued by the Central Government in early 1999. These are however, not being analysed in this note. The Biological Diversity Act: Main Features Like the Convention on Biological Diversity, the proposed Biological Diversity Act (BDA) aims to achieve three things: conservation of biodiversity, sustainable use of biological resources, and equitable sharing of benefits arising from such use. To achieve these, the Act contains several important clauses. It: 1.prohibits transfer of Indian genetic material outside the country, without specific approval of the Indian Government through a due process; 2.stipulates that anyone wanting to take a patent or other intellectual property right (IPR) over such material, or over related knowledge, will have to seek permission in advance; 3.provides for the levying of appropriate fees and royalties on such transfers and IPRs; 4.regulates access to such material by Indian national also, to ensure that there is some control over over-exploitation (e.g. of medicinal plants), and that there is some sharing of benefits to all concerned parties; however, it provides some relaxation in the case of research; 5.provides for measures to conserve and sustainably use biological resources, including habitat and species protection, conservation in gene banks, environmental impact assessments of all projects which could harm biodiversity, and so on; 6.empowers local communities to have a say in the use of resources and knowledge within their jurisdiction, and to enter into negotiations with parties who want to use these resources and knowledge; 7.provides for the development of an appropriate legislation or administrative steps, including registration, to protect indigenous and community knowledge; 8.empowers governments to declare Biodiversity Heritage Sites, as areas for special measures for conservation and sustainable use of biological resources, as also notify threatened species to control their collection and use; 9.stipulates that risks associated with biotechnology (including the use of genetically modified organisms), will be regulated or controlled through appropriate means; 10.provides for the designation of repositories of biological resources, at national and other levels. The BDA envisages the creation of Funds at local, state, and national levels, which will be used to support conservation and benefit-sharing activities. These funds will be generated from fees, royalties, donations, etc. The BDA proposes to set up bodies at three levels, to carry out the above functions. At the national level, there will be a National Biodiversity Authority (NBA), which will screen proposals for transfer of genetic resources abroad, advise the central government of measures for conservation, sustainable use, and benefit-sharing, suggest the use of the National Biodiversity Fund, and oppose, where necessary, IPRs in India and abroad which violate the Act's provisions. The NBA will consist of a chairperson who has eminence in the field, representatives of relevant government agencies, and non-governmental members including members of local communities and a representative of industry. At the state level, there will be State Biodiversity Boards (SBB), which will oversee use and conservation of biodiversity within state jurisdiction; for instance, they can specify limits of which and how many plants a pharmaceutical company can harvest from its forests. SBBs will also manage the State Biodiversity Funds. At local levels, there will be Biodiversity Management Committees, which will have a voice in regulating the transfer, use, and conservation of resources and knowledge at community and individual level. These Committees or other local bodies will also have a say in the utilisation of the various Funds set up under the BDA. Importantly, the BDA provides citizens with the power to approach courts if they detect violations. One of the most regressive aspects of an earlier (Swaminathan Committee) draft of the BDA was that it did not provide such locus standi, but strong citizen's pressure made the MoEF add it in. The penalties provided in the BDA are imprisonment for a term upto 5 years, or fines upto Rs. 10 lakhs. The Plant Varieties and Farmers? Rights Protection Bill 1998 Roughly modeled on the International Convention for the Protection of New Plant Varieties (UPOV), the Plant Varieties and Farmers' Rights Protection Bill (PVFRPB) contains the following major provisions: 1.Registration of new varieties of plants, provided they fulfil the criteria of novelty, distinctiveness, uniformity, and stability; 2.Protection for registered varieties for periods ranging from 15 to 18 years (depending on the kind of plant variety); this protection would include the exclusive right to produce, sell, market, distributed, import, or export the variety or its propagating material, and to license other persons to do the same; 3.Deposition of sample seeds or propagating material by the applicant; 4.Exclusion of plant varieties from being registered if such exclusion is necessary for public purposes; such exclusion could extend to entire genera/species; 5.Rights of researchers to use the registered variety for experimentation; 6.Rights of farmers to save, use, exchange, share, or sell the produce of, any registered variety (except selling for the purpose of reproduction under commercial marketing arrangements); 7.Revocation of protection if it is found that the breeder supplied incorrect or inadequate information at the time of application, or did not provide the necessary seeds or propagating material, or if the registration was found not to be in public interest; 8.Compulsory licensing in cases where the breeder is not making the seed available in reasonable price or quantity or regularity; 9.Rights of communities and persons to claim significant contribution to a registered variety, and to receive compensation if such a claim is upheld. Like the BDA, the PVFRPB has an elaborate administrative regime. A Plant Variety and Farmers' Rights Protection Authority, consisting of a person of eminence in agriculture as chairperson, and various government officials from relevant ministries and agencies, will be overall in-charge. Various committees of experts can be appointed by this Authority. The Authority will contain a Plant Varieties Registry, with a Registrar General and other Registrars to process applications. The Registry will maintain a National Register of Plant Varieties, which are given protection under the PVFRPB. A Plant Varieties Protection Appellate Tribunal will hear complaints about the decisions and conduct of the Authority and the Registry. Violations will invite penalties ranging from 3 months to 2 years imprisonment, and Rs. 50,000 to Rs. 10 lakhs fine. Potential Contradictions between the Two Acts The BDA and the PVFRPB are not entirely compatible; depending on how their clauses are interpreted, there could be a fundamental contradiction. From the point of view of environmental sustainability and social justice, the overarching goals that any society should have, the BDA is clearly the more progressive and comprehensive legislation. If imaginatively implemented (itself likely to be very difficult, but that is a subject for a separate debate), it could lead to: ·greater efforts at conserving India's fast-dwindling biological diversity; ·more sustainable use of biological resources, curbing the industrial, commercial, and domestic over-exploitation that is currently taking place by both Indian and foreign agencies; ·greater and fairer sharing of benefits arising from the use of such resources, especially between local rural communities and urban populations, and between India and other countries; ·steps towards protecting the knowledge and practices of local communities, and of the country as a whole, from being mis-appropriated and misused, and towards providing incentives for these communities and individuals to continue innovating; ·greater devolution and decentralisation of control and management functions relating to biological resources, with the aim of ensuring more efficient conservation and sustainable use. The PVFRPB has a much narrower focus. It is meant primarily to provide incentives to the private and formal sector, in particular financial incentives. This, it is hoped, will lead to continued and increased investment into plant breeding, and to innovations in this field. Indirectly, the agricultural establishment hopes, this will benefit farmers, as they will get access to 'improved' varieties. We will here not go into the question of whether formal sector breeding has benefited the vast majority of India's farmers or not. Does the PVFRPB directly benefit the farmer, or the local community of which the farmer is a part? Does the PVFRPB complement the BDA in its objectives of conservation, sustainable use, and equitable benefit-sharing? The answer is 'no', if the following lacunae in the PVFRPB are considered: 1.The Authority set up by the PVFRPB has no farmers' representative on it, not even NGO representatives; it is made up almost entirely of government officials (Section 3); 2.Given the stringent requirements for obtaining protection under the PVFRPB (the Novelty, Distinctiveness, Uniformity, and Stability criteria, Section 11), it is unlikely that farmers' varieties will be able to receive protection (assuming of course that farmers would even want to do this, which is doubtful in most cases); 3.The PVFRPB does not require (Section 11) that if the variety for which protection is being sought is based on farmers' varieties or knowledge, permission ought to have been taken from the farmer/community, and an appropriate benefit-sharing arrangement should have been worked out (India is legally bound by the Convention on Biological Diversity to take steps requiring prior consent and equitable benefit-sharing); 4.The PVFRPB's single paragraph on farmers' rights (Section 27) is restricted to the ability to save, reuse, exchange, and sell protected varieties; while this is more than many other countries provide, it does not extend to being able to protect their own varieties and knowledge; nor does it take into account the more holistic definitions of Farmers' Rights that are part of the international and national debate on this subject; 5.While communities have been given the right to make claims if they believe they have contributed to the development of a variety for which protection has been given (Section 45), the onus to prove this is on them. How many farmers will even get to know about the what has been protected, whether their varieties or knowledge has been used or not, etc? The PVFRPB does make it mandatory for applications to be advertised (Section 17), but again, will such advertisements even reach the concerned rural populations? 6.Even if some farmers do manage to make such a claim (Section 45), and the claim is upheld, their only consolation will be some compensation that they will get, at the discretion of the Authority (Section 45(3)); there is no clause to revoke the protection if it is found that the applicant has unfairly appropriated farmer/community resources or knowledge; 7.A previous version of the PVFRPB had an important provision to set up a national gene fund, made up of applicant fees etc., which would be used to provide incentives and rewards to deserving farmers; this provision has been dropped from the latest version. There is no explanation as to why this has been done. 8.There is no explicit provision in the PVFRPB by which the registration of a plant variety is subject to requirements of environmental impact assessment. While in theory the Authority can ask for such an assessment if it feels that public interest (in this case environmental security) could be affected, the chances of this happening are remote, given the composition of the Authority. Putting the above lacunae together, it is clear that the PVFRPB is unlikely to meet the requirements of the CBD, in particular those relating to respecting, protecting, and taking prior permission for the use of, local community knowledge. This proposed Act is oriented to protecting the interests of the formal (including private) seed industry, rather than farmers and local communities. It contradicts the thrust, both in letter and in spirit, of the BDA. Are the respective ministries which are pushing these Acts (Ministry of Agriculture for PVFRPB and Ministry of Environment and Forests for the BDA) aware of these contradictions. To some extent, it seems they are. The MoEF has reportedly apprised the MoA of India' obligations under the CBD, in particular about prior consent and equitable benefit-sharing with local communities, and asked that appropriate clauses be introduced in the PVFRPB. In turn, the MoA has objected to the sweeping scope of the BDA, and has asked that plant varieties, which are given protection under the PVFRPB, should be exempted from the provisions of the BDA. Unfortunately, in an act reflective of the relative power of the two ministries within the government, the MoEF reportedly introduced a last-minute change providing such exemption. The MoA has apparently made no reciprocal gestures. Conclusion: What should be done? It is, first of all, objectionable that India should have gone into a UPOV kind of plant variety protection legislation. There was no need for this, even under the TRIPs clauses. TRIPs clearly allows each country to have its own sui generis system of the plant variety protection; India could well have gone into a radical alternative which started with the protection of farmers' varieties and knowledge, and provided protection to formal sector breeders only as a corollary. Given that these two laws are not yet in place, there is still time to make amends. At the very least, the above lacunae in the PVFRPB should be plugged, through: 1.Adding farmers' representatives and NGO members in the Authority and other institutional bodies set up under the Act; 2.Making it possible for some kind of protection to be given to farmers' varieties, perhaps through a registration system (see point 4 below); 3.Making mandatory the consent of, and appropriate benefit-sharing arrangements with, farmers and communities whose varieties and knowledge is accessed in formal sector breeding; 4.Building in a more comprehensive definition of Farmers Rights, which includes the right to protect their varieties and knowledge, to continue having access to the biological and other material which are important inputs into their farming system, and to the cultural and social conditions which make continued innovation and biodiversity use possible; 5.Putting the onus on formal sector breeders to prove that they have not wrongly appropriated farmers' varieties and knowledge in developing a new variety; 6.Making it mandatory to revoke any protection which is found to violate Farmers' Rights as defined above; 7.Re-inserting the provision for setting up a national gene fund, meant exclusively to reward and compensate deserving farmers, as incentives for continued conservation and use of biological diversity; 8.Facilitating a whole range of incentive measures for farmers and local communities to revive, or continue, practices and knowledge systems which promote the conservation and sustainable use of biological diversity; and 9.Ensuring that the granting of plant breeders' rights, if at all done, does not in any way undermine the maintenance of biological diversity in farmers' fields. It is apparent from the above that, if environmental sustainability, social justice, and the welfare of India's people are our primary goals, there is an urgent need to harmonise the various legislative measures being taken up as follow-up to international agreements. In the case of the two proposed laws reviewed above, the primary course of action that would achieve this is to plug the major gaps in the Plant Varieties and Farmers' Rights Protection Bill, as indicated above. Only this would make it a law which truly protects the rights of farmers and local communities, and conserves the biological diversity which is the basis for all agricultural improvements, while also providing incentives for formal sector breeding processes. India has the option of developing a truly sui generis law which suits its social and ecological conditions: why not take up the challenge? Ashish Kothari Kalpavriksh , Aptmt. 5 Shree Dutta Krupa, 908 Deccan Gymkhana, Pune 411004 Telefax: 91-20-354239; Email: ashish(at)nda.vsnl.net.in January 22, 1999