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Legislation for a genetic heritage
by
Bhagirath Choudhary
Keywords:  Regulation, Biodiversity, India.
Correct citation: Choudhary, B. (2001), "Legislation for a genetic heritage." Biotechnology and Development Monitor, No. 48, p. 19-21.

In this article the author expresses his views on current national and international legislative efforts to regulate and protect indigenous genetic resources and the products that local people have developed from them. Drawing on the Indian experience, he explores the development of effective policy.

India like many other developing countries is home to a rich variety of genetic resources. Among the living organisms that make up its varied ecosystems, Indian scientists have identified some 126,000 endemic species including 45,000 plants and 81,000 animals. This natural wealth includes many varieties of crops and animals that indigenous and local communities have developed over the centuries. Today, many Indian farmers continue these traditions, developing seed by careful identification and propagation. The varieties that have emerged contain a unique pool of genes well adapted to local conditions.

Rights

Exclusive economic rights can be secured by patenting. Through the recent emergence of a global patenting system commercial enterprises and particularly transnational corporations are increasingly able to appropriate local genetic resources and traditional knowledge to create commodities attractive to world markets. It can be argued that the deficiencies of intergovernmental regulations dealing with intellectual property rights (IPR) and the conflicts between them have not provided sufficient safeguards against the widespread theft of genetic resources. Problems at the international level have led to delays in national legislation as policy makers await developments in the international arena.

As patent offices in the USA, the European Union and Japan continue to grant patents to slightly modified agricultural genetic resources and medicinal products grown, developed, and used in large parts of India, the Indian Government's Council for Scientific and Industrial Research (CSIR) is becoming more vigilant. The patent unit analyses and assesses the potential of patent claims, collects authoritative documentation and files challenges. It has success- fully mounted challenges to such patents as the one granted by the United States Patent and Trademark Office (USPTO) on the healing properties of turmeric.

Action

At the international as well as national level, efforts are being made to preserve and protect local genetic resources from commercial exploitation. The CBD, for example, allows contracting parties to develop a legal framework and take administrative measures to preserve, protect and promote indigenous and local knowledge and practices and to restrict 'bio-prospecting'. However, such measures do not safeguard farmers' and breeders' rights. A clear and strict international convention is required and in this context the provisions of the CBD, WIPO, TRIPS and USA patent law should be re-examined.

National level protection in India

The Indian Government has passed three parliamentary acts over the past few years in an attempt to protect the nation's biological diversity and the interests of its researchers, plant breeders and farmers. This three-pronged strategy involves the Protection of Plant Varieties and Farmers' Rights Act 2001, the Biodiversity Act 2001, and the Geographical Indication of Goods (Registration and Protection) Act 1999. These are discussed below.

Varieties and farmers rights

The Protection of Plant Varieties and Farmers' Rights Act 2001 aims to protect plant varieties developed through public and private sector research and developed and conserved by farmers and traditional communities. It provides legal rights to farmers to save, use, share or sell their farm seed and stimulates plant breeders and researchers to develop new and improved varieties. Generally, this law envisions that farmers will be treated like commercial breeders and receive the same kind of protection. The act prescribes the establishment of the Plant Varieties Protection Authority that not only registers the new varieties developed by breeders and farmers but also ensures fair and equitable benefit sharing and financial compensation.

The act has been criticized for failure to provide a holistic framework to recognize the variety of stakeholders engaged in agricultural management and seed improvement that have rights to their resources. Secondly, it encourages farmers to get a variety registered, and so fundamentally accepts the registration criteria of the UPOV convention, which is mainly devised for commercial breeders. Thirdly, in the case of benefit sharing, the claimants can neither stop the registration of the variety nor claim IPR on their own variety. They are merely awarded monetary compensation instead. Fourthly, the bill does not discuss the crucial issue of pricing mechanisms for high quality seeds and planting materials, which is a major problem for farmers. Fifthly, it lacks a broader provision on the need for impact assessment of varieties offered for registration. Finally, it has been criticized for containing provisions that allow the registration of essentially derived plant varieties.

Biodiversity

India's interpretation of the CBD is reflected in the Biodiversity Act 2001. It provides for the establishment of a National Biological Authority (NBA) with extensive powers to protect biological resources. Foreign agents require NBA approval in order to access biological resources or inventions derived from them and provisions for equitable benefit sharing are clearly stipulated. NBA approval must also be obtained before biological resources can be exported and proposals have been made to set up biodiversity funds and management committees at national, state and local levels.

Critics of the bill argue that it does not assert national sovereignty over biodiversity even though in the context of the CBD the sovereignty provision is an important check to foreign patent seekers. Neither does it provide measures to limit the potential environmental and health risks associated with the introduction of genetically modified organisms (GMOs). However, the business community is critical of the strict licensing requirements of the NBA, arguing that restrictions on foreign collaborative ventures will inhibit the growth of the Indian biotechnology industry.

Geographical indication

The Geographical Indication of Goods (Registration and Protection) Act was adopted in 2000 and aims to provide a comprehensive framework to facilitate the registration, conservation and protection of goods with a unique geographical identity. The act provides for the establishment of a Geographical Indication Registry and an Appellate Board to take necessary action against infringement.

Future

As we have seen, India is exploring ways of protecting and developing its natural resources. However, the Government needs to incorporate explicit and robust measures into national law to restrict the patenting of new products that are made with traditional knowledge or that utilize material derived from living organisms originating in India. In this process the role of indigenous and local communities must be recognized by the equitable sharing of the benefits arising from the utilization of their knowledge, innovations and practices.


Bhagirath Choudhary

National Institute of Science, Technology and Development Studies (CSIR), Pusa Gate, Dr. K S Krishnan Marg, New Delhi-110012 India.
Phone (+91) 11 5764064; Fax (+91) 11 5754640; E-mail bc@nistads.res.in

Sources
Ghijsen, H. (1998), "Plant variety protection in a developing and demanding world" Biotechnology and Development Monitor, No 36.

WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources Traditional Knowledge and Folklore (first session). www.wipo.org

Center for Science and Environment (CSE), Down to Earth. Preview: www.oneworld.org/cse

A fuller version of this article is available on request.



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