INTELLECTUAL PROPERTY RIGHTS - BIODIVERSITY ISSUES Rupali Bajaj
LLM (IPR) Renaissance University
Abstract- Biodiversity is defined as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”It is the variety of different forms of life on earth, including the different plants, animals, micro-organisms, the genes they contain and the ecosystem they form. It refers to genetic variation, ecosystem variation, species variation (number of species) within an area, biome or planet. To ensure intra and intergenerational equity, it is important to conserve biodiversity. Some of the existing measures of biodiversity conservation include;
reforestation, zoological gardens, botanical gardens, national parks, biosphere reserves, germplasm banks and adoption of breeding techniques, tissue culture techniques, social forestry to minimize stress on the exploitation of forest resources. Biological diversity is the hallmark of life on earth. It is very backbone of sustainable development. The current Intellectual Property Rights (IPR) regime is encouraging commercialization of seed development, monoculture, protection of new plant varieties, microorganisms, and genetically modified organisms.
Keywords: Biodiversity Conservation, Ecosystem Services, Traditional Knowledge, Diffusion of Green Technologies, IPR Protection.
1 INTRODUCTION
India is one of the mega-biodiverse countries with different combinations of ecosystems.
The biodiversity of India occurs at three levels, namely, species, genetic and ecosystem and most of the times are associated with traditional knowledge and practices. The loss of biodiversity and commercialization of biore sources and associated knowledge have been causing great concern especially when the IPRs are applied to claim monopoly. The negotiations at international and national level for the protection of traditional knowledge and for the conservation of biological resources are now carried out on various issues of implementing the Convention on Biological Diversity (CBD), 1992. India being a party to the Convention is the first to implement it by enacting the Biological Diversity Act, 2002 with a three tired institutional mechanism established there under. However, the Act still needs more clarifications on the issues of implementation like benefit sharing. This article analyses and clarifies some of these issues and concerns and thus, suggests further actions for the effective implementation of the Act.
2 BIODIVERSITY CONSERVATION
Biodiversity conservation is about saving life on Earth in all its forms and keeping natural ecosystems functioning and healthy. This incorporates the preservation, maintenance, sustainable use, recovery and enhancement of the components of biological diversity.
Where - Conservation - is the sustainable use of resources and encompasses protection as well as exploitation and, Preservation - is an aspect of conservation meaning to keep something without altering or changing it. Sustainable development is another intricate aspect of biodiversity conservation. This refers to development that meets the needs of the current generation without compromising the ability of future generations to meet their needs. It simply refers to intra and intergenerational equity. A balance between the environment, development and society results to sustainable development which ensures biodiversity conservation. This is only possible in the presence of proper enforcement and implementation policies/ conventions and environmental institutions.
2.1 Why Conserve Biodiversity?
Biodiversity is the life support system of our planet- we depend on it for the air we breathe, the food we eat, and the water we drink. Medicines originating from wild species, including penicillin, aspirin, taxol, and quinine, have saved millions of lives and alleviated tremendous sufferings. Wetlands filter pollutants from water, trees and plants reduce global warming by absorbing carbon. Bacteria and fungi break down organic material and fertilize
the soil. It has been observed that native species richness is linked to the health of ecosystems, as is the quality of life for humans. The connections between biodiversity and our sustainable future appear closer and closer the more we look. We literally need to conserve biodiversity as our lives depend on i
2.2 Aesthetic value
Human beings derive great enjoyment from natural environment. The shapes, structure and colour stimulate our senses and enrich our culture. This illustrate majorly in the popularity of biodiversity conservation measures and the myriad of the many organizations which fight for the protection of different organisms. A lot of money is paid to conserve wildlife for their value in nature through so many organizations. Wild species enhance our appreciation and enjoyment of the environment through:
Leisure activities e.g. bird watching and nature trailing;
Spotting activities e.g. spot hunting, sport fishing, diving and mushroom picking;
Hearing, touching or just seeing wildlife;
Enjoyment as seen in art and culture e.g. dolls, teady bear.
There were negotiations for a legally binding instrument to address biological diversity and its loss to enhance fairness and equity in sharing of the benefits of biodiversity; this led to the opening of the Convention on Biological Diversity in 1992; (CBD, 2011).The convention was inspired by the growing concern all over the world for sustainable development. The convention objectives were:
Conservation of the biological diversity
Sustainable use of its components;
A fair and equitable sharing of its benefits.
This was the first global comprehensive agreement 2.3 Threats to Biodiversity:
Principal threats to biodiversity A threat by definition refers to any process or event whether natural or human induced that is likely to cause adverse effects upon the status or sustainable use of any component of biological diversity. Biodiversity is declining rapidly due to factors such as habitat alteration and destruction by the land use change, over exploitation of biological resources, climate change, pollution and invasive species.
Such natural or human-induced factors tend to interact and amplify each other
Habitat alteration and destruction
Habitat destruction renders entire habitats functionally unable to support the species present in the habitat. Biodiversity reduced in this process when existing organisms in the habitat are displaced or destroyed
Over exploitation of biological resources
Overexploitation remains a serious threat to many species, such as marine fish and invertebrates, trees, and animals hunted for meat. The grazing pressure on most of the high altitude grasslands of the Uttarakhand state both from migrant and local communities, is the extensive extraction of medicinal herbs in these areas resulting in their over exploitation (Rawat, 1998). Most industrial fisheries are either fully or overexploited, while destructive fishing techniques harm estuaries and wetlands
Climate change
As climate change will become more severe, the harmful impacts on ecosystem services will outweigh the benefits in most regions of the world. The Intergovernmental Panel on Climate Change (IPCC) project that the average surface temperature will raise by 2 to 6.40C by 2100 compared to pre-industrial levels. This is expected to cause global negative impacts on biodiversity (Millennium Ecosystem Assessment, 2005)
Pollution and invasive species
Thermal pollution is another threat to biodiversity. The potential consequences of organic pollutants in a freshwater ecosystem include eutrophication of fresh- water body, hypoxia in coastal marine ecosystems, nitrous oxide emissions
contributing to global climate change, and air pollution by NO in urban areas.
Occurrence of such problems varies widely in different regions.
For example pesticide linked decline of fish eating birds and falcons. Lead poisoning is another major cause of mortality of many species such as ducks, swans and cranes as they ingest the spent shotgun pellet that fall into lakes and marshes.
2.4 Diffusion of green technologies-role of IP
Effective responses to climate change require efforts by both the public and private sectors to develop and disseminate new environmentally sound technologies (ESTs) on a global scale, as well as to adapt them, to local needs. However, due to a number of market failures and specific uncertainties, the spread of green technologies is less than optimal, which necessitates additional incentives. Based on a review of recent literature, the present Global Challenges Report examines the role of enabling factors for the development, diffusion and financing of ESTs. It finds, that relevant policies promote, among others, funding mechanisms, business partnerships, and the protection and enforcement of intellectual property rights. The Report pays particular attention to the needs in developing countries, including emerging market economies, where the aforementioned challenges are particularly pronounced.
2.5 Biodiversity Research Trends and Gap Analysis from a Transboundary Landscape, Eastern Himalayas:-
The Kangchenjunga landscape, a transboundary complex shared by Bhutan, India, and Nepal, is one of the biologically richest regions in the Eastern Himalayas. Owing to the remarkable biodiversity, the three countries came together to enhance regional cooperation in conservation and development in 2012. To start a strategic conservation intervention, the status of our knowledge base on biodiversity of the landscape is the most important stepping stone. In this paper, we traced the history of biodiversity research in the Kangchenjunga landscape, and present the research trends over time and subject in�terests.
Meanwhile, we also identified key research and knowledge gaps and future priorities. For this, we analyzed 500 peer-reviewed journal articles (until 2014) relating to biodiversity, which were retrieved from the web platform „Google Scholar‟ and other peer-reviewed journals. The review showed that the landscape received attention from the scientific community as early as the 1840s, and grew progressively after the 1980s. Research on fauna (especially mammals) and flora (especially angiosperms) is most notable, but with major gaps in systematic research of their ecology, whereas invertebrates other than butterflies appear to be neglected. There is a need for systematic research with long-term monitoring that would allow us to understand changes occurring within the landscape.
2.6 Research Objectives:-
To Create the Awareness of Biodiversity across the Government and Society.
To Reduce the Drect Pressure on Biodiversity and promote Sustainable Use.
2.7 Biodiversity
India is classified among the 12 mega-diversity centres of the world. India's record in agro- biodiversity is equally impressive. There are 167 crop species and 320 species of wild crop relatives and several species of domesticated animals. India is considered to be the centre of origin of 50,000 varieties of rice, 1000 varieties of mango, 100 varieties of pepper, 27 breeds of cattle, 22 breeds of goat, 40 breeds of sheep, 18 breeds of poultry, 8 breeds of buffalo (the worlds total biodiversity) and several other varieties of pigeon-pea, turmeric, ginger, sugarcane, gooseberries etc and ranks seventh in terms of contribution to world agriculture.
India has a rich and varied heritage of biodiversity. It has 850 species of bacteria, 6500 species of algae, 14500 species of fungi, 2000 species of lichen, 2850 species of bryophytes, 1100 species of pteridophytes, 64 species of gymnosperms and 17500 species of angiosperms.
Biological Diversity Act, 2002 of India has defined various terms.
“Biological Diversity” means the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-systems [chapter IClause 2b].
“Biological resources” means plants, animals and microorganisms or partsthereof, their genetic material and by –products with actual or potential use or value but does not include human genetic material [Chapter I Clause 2c].
Intellectual Property Rights (IPR), as the term suggests, are meant to be rights to ideas and information, which are used in new inventions or processes. These rights enable the holder to exclude imitators from marketing such inventions or processes for specified period of time; in exchange the holder is required to disclose the formula or idea behind the product/process. The effect of IPR is therefore monopoly over commercial exploitation of the idea /information, for a limited period of time. The stated purpose of IPRs is to stimulate innovation, by offering higher monetary returns than the market otherwise might provide.
2.8 History of IPR and Biodiversity
The initial step towards making biodiversity a commodity evolved from the United Kingdom wanting to use high-quality seeds for agricultural production. This slowly led to the Companies selling registered seeds. Later the government rewarded individuals who improved seeds further. This led to the development of Breeders‟ Rights that become more commercialized and very soon restrictive.
For over 60 years, different forms of protection of new plant varieties through system of PBR have in existence in industrialized countries. In 1961, a “ Union Internationale Pour la Protection Des Obtentions Vegetales” (UPOV-International Union for the Protection of New Varieties of Plants) was established in Geneva for coordinating the intercountry implementation of PBR. Although the Convention was signed in Paris in 1961,it came into force only in 1968. It was revised in Geneva in 1972,1978,and 1991. The1978 Act came into effect in 1981. To be eligible for protection, varieties have to be: Distinct from the existing, commonly known varieties Sufficiently homogenous /uniform Stable and New in the sense that they must not have been commercialized prior to certain dates established by reference to the date of application for protection.
2.9 Value of Biodiversity
Diversity is the most ecologically sustained form. Diversified crops maintain soil fertility.
Diversity optimizes soil management in rain fed belts.
Diversity means insurance against crop failure.
Diversity optimizes labour availability. Diversity ensures food security.
Diversity of range of foods ensures nutritional balance.
Diversity provides a range of fodder to the cattle keeping them healthy and productive.
Diversity helps women control their farm economics and seeds.
The advent of new biotechnologies and the capacity to identify and incorporate exotic genetic material into commercial products has forced the pace of change in industry and in Intellectual Property (IP) systems. Extensive commercial exploitation of genetic diversity catalyzed by research and development for obtaining IPR will decide the future of our rich biodiversity
2.10 Legislations
In order to comply with the TRIPs (Trade Related Intellectual Property Rights)and CBD (convention on Biological Diversity) India has passed Indian Patent
(Second Amendment) Act, 2002 and the Biological Diversity Bill, 2002 respectively.
According to this Amendment Act, 2002 the duration of the term of patent has been extended to 20 years for all product and process (under the existing Act of section 53 as well as those included in the present bill) patents.
Now microorganisms will be patentable subject in India. In addition, new plant varieties will get PBR certification in India as India has joined recently in UPOV (1978 Act).
Earlier India has also passed Plant Protection Bill to develop a sui generis system (a system of its own). The deposit of biological materials has also been included in compliance with
2.11 Impacts of IPR
It is simply a tough task to offer an estimate of impacts of IPR on biodiversity. The benefits of genetic diversity are long term and rarely predictable. Humanity shares a common bowl containing only 20 cultivated crops that sustain 90% of out calorie requirements (FAO 1991). All 20 crops originate in developing countries .All are alarmingly vulnerable to pests and diseases and depend on genetic diversity for their continued survival. During this century, most authorities believe that an alarming proportion of the genetic variability of our major food plants-as it is available in the field-has become extinct. The conservation and development of the remaining crop diversity is a matter vital global concern.
When farmers look to increase their sale they often sow different and more commercially viable seeds. Sometimes various government schemes force them to adapt specific seeds or new plant varieties. Thus commercial agriculture tends to increase genetic uniformity and this, in turn leads to genetic erosion. IP system encourages commercial agriculture that accelerates genetic erosion. Biotechnology research focuses on commercial agriculture and leads to demand for IP protection with the same potentially negative consequences for genetic diversity.
The criteria for awarding PVP (Plant Variety Protection) certificate involve lower thresholds than the standards required for patents. There are requirements for novelty and distinctness, but there is no equivalent of nonobviousness (inventive step) or industrial application or utility. Thus PVP laws allows breeders to protect the varieties with very similar characteristics, which means the system tends to be driven by commercial considerations of product differentiation and planned obsolescence, rather than genuine improvements in agronomic traits.
Similarly, the requirements for uniformity (and stability) in UPOV type systems exclude the local varieties developed by farmers that are more heterogeneous genetically, and less stable. But these characteristics are those that make them more adaptable and suited to the agro-ecological environments in which the majority of poor farmers live.
Another concern is the criteria for uniformity. While proponents argue that PVP, by stimulating the production of new varieties, actually increases biodiversity but in reality requirement for uniformity, and the certification of essentially similar varieties of crops, will add to uniformity of crops and loss of biodiversity. Moreover similar concerns have arisen in respect of greater uniformity arising from the success of Green Revolution Varieties, leading to greater susceptibility to disease and loss of on-field biodiversity.
In addition, the privatization of genetic resources that have been engineered and patented accelerates the trend toward monocultural cropping. Furthermore an engineered organism may produce unanticipated harmful impacts on other species in its new environment that may cause further erosion and ecological degradation.
Improved seeds require more fertilizer and pesticide consumption, which has tremendous contribution towards biodiversity loss, and have direct impact on floral, faunal and microbial population. Moreover substantial royalties payment to the developed countries and multinational seed companies will greatly increase the debt burden that could further in social disruption if we consider the debt repayment such as the export of natural products.
3 Need of BIODIVERSITY
3.1 So why is biodiversity so important?
Everything in the natural world is connected. This means that everything we do as humans affects biodiversity, and biodiversity affects us. In the world of which we are a part, the more variety the better. This provides protection against things going wrong. Diverse ecosystems, and therefore diverse species and genes, make for a healthier, more resilient planet.
3.2 Biodiversity enhances an ecosystem’s ability to do these essential ecological processes:
Oxygen production
Form and build healthy soils
Filter water on its way to the sea
Pollinate crops and plants generally
Store and recycle nutrients
Resist feral invasion
A lessening of biodiversity in an ecosystem weakens the ability of that system to survive and perform the ecosystem services that we as humans benefit so much from. Basically, there are three types of biodiversity: species, ecosystem and genetic diversity. Species Diversity Suggested student activity: Unit of Work on “Birds” Yr ¾ upwards.
This includes every organism great and small – from amoebas to elephants – that currently exist, or have ever existed on our planet. This includes plants, fungi, insects, fish, reptiles & amphibians, birds and mammals, plus molluscs, worms, spiders, algae and other micro organisms. So far scientists have identified more than 1.4 million living species, with millions more yet to be discovered! Note: species‟ diversity also refers to the differences within species as well as the variety (total number) of species.
Ecosystem Diversity
Suggested student activity: outdoor game “Ecosystems Rule, ok!” Yr ¾.
An ecosystem is a community of organisms (living things) which depend upon each other for their existence. For example, you might expect to find kangaroos, or emus, or echidnas, in grassy woodland, but not in Antarctica, because these animals need the plants or bugs in the woodland, and conversely the plants need them: plants are tip-pruned by kangaroos, emus disperse and help germinate seed in their scats, and echidnas till the soil which also aids in germination of some seeds.
Examples of some local SA ecosystems are: woodland of the Mt Lofty Ranges, grasslands of the mid-North, mallee scrub, Port Adelaide mangroves, the Port Noarlunga reef, Murray River system, ponds, caves. On a more global scale, some examples are:
oceans, the polar and Antarctic ice sheets, rainforests and deserts.
Genetic Diversity
Suggested student activity: “The Brush-tailed Possum Game” Yr 6/7
Genes are simply traits that we inherit from our parents and can pass on to our children, for example, traits such as hair colour, eye colour, curly or straight hair and whether you can curl your tongue and so on. Genes are the basic units of life on Earth.
They are responsible for both the similarities and the differences between organisms, eg the changes in colour and markings of birds within a particular species. “Genetic diversity is the variety of genes within a species. Each species is made up of individuals that have their own particular genetic composition. This means a species may have different populations, each having different genetic compositions. To conserve genetic diversity, different populations of a species must be conserved.” Because our environment is constantly changing, we need a diverse range of genes to be able to adapt. Preserving variety within populations of species is essential for preserving the ability of that species to cope with environmental change. An organism‟s ability to adapt to environmental change will determine how well it survives in the long run. The greater the diversity of genes in a population, the greater the chances that some individuals will possess the genes needed to survive under conditions of environmental stress (such as climate change, drought, fire, famine, introduction of a new predator etc).
4 CONCLUSION
The successful development of biological diversity will depend upon creative relationship that can be nurtured between two opposite poles –formal innovative and community systems. For this to work, policymakers must implement technology transfer with a strong inclination towards active participatory approaches to research and extension. Active participation means exercising practical power and command over genetic resources by farmers and rural people that would be reciprocated by the formal system with their analysis, experimentation, professional, institutional and policy changes from time to time in order to discharge our international obligations and at the same time keeping in view of sustainability of biodiversity. Ultimately, the reason to conserve our genetic diversity and to encourage innovation out of these biogenetic resources is to improve the quality of human
life and this should be kept in mind always before any invention or policy changes, otherwise our very existence will be at stake.
REFERENCES
1. https://in.docworkspace.com/d/sAM0h8WbJuIg_tfbyyainFA
2. https://www.wipo.int/publications/en/details.jsp?id=3924&plang=EN 3. https://in.docworkspace.com/d/sANrIVxTJuIg_i-zzyainFA
4. https://www.researchgate.net/publication/294876262_Biodiversity_Concept_Threats_and_Conserva tion
5. https://in.docworkspace.com/d/sAPtB-QzJuIg_2pb1yainFA 6. https://in.docworkspace.com/d/sAAVHiJrJuIg_qK7ryainFA
