Access Benefit Sharing & India’s Standpoint

The article 1 of the CBD sets out:

fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources to technologies, and by appropriate funding.

Similarly, Article 8(j) of the convention contains provision to:

“encourage the equitable sharing of the benefits arising from utilization of knowledge, innovations and practices of indigenous and local community embodying traditional lifestyles relevant for conservation and sustainable use of biological diversity”.

Thus, access to the genetic resources and sharing of benefits arising out of the use of these resources makes the core of the CBD. But in the operationalising the benefit sharing provisions of the CBD are hindered with many complexities. Not much progress has been made in implementation of the core objectives of the CBD.

What is the major issue?

• The CBD envisages the provisions that access to genetic resources and realization of benefits is subject to national legislation through formalization of prior informed consent (PIC) and mutually agreed terms (MAT). India has its own concerns about this.
  

What does India say?

• India has been a victim of Bio-piracy. India says that national action alone is not sufficient to ensure realization of benefits to the country of origin or provider country.
• In many cases, the genetic material is sourced from one country is utilized in another country for developing products and processes on which patent protection is obtained. So, the source country does not get any shares in the benefit.
• India says that the onus of benefit sharing must also be shared by the user country to create an enabling environment and confidence through legislative measures can be build up.

What is the suggestion by India?

To ensure that the onus of benefit sharing must also be shared by the user country to create an enabling environment and confidence through legislative measures, India, along with the support of other like-minded developing countries, has been advocating in various international fora including that of CBD, WTO (World Trade Organization) and WIPO (World Intellectual Property Organization), that Article 29 of the TRIPs (Trade-Related Aspects of Intellectual Property Rights) agreement dealing with disclosure in patent application should require mandatory disclosure in patent application of the origin of biological resources / traditional knowledge used in the technological invention, and an undertaking that the prevalent laws and practices of the country of origin have been respected. Incorporation of such a provision would reconcile the inherent contradictions in the provisions of TRIPs and CBD.

What are the legislations in India at national level for IPR on biological resources?

In India, at national level, we have the Biological Diversity Act (2002). This act provides that prior approval of National Biodiversity Authority is necessary before applying for any kind of intellectual property rights (IPRs) based on any research or information on a biological resource obtained from India.

Apart from that, in India, the Patents (Second Amendment) Act provides for disclosure of the source and geographical origin of the biological material / associated knowledge, used in an invention.

In case of non-disclosure or wrongful disclosure of source of biological material and associated knowledge, there are provisions of opposition to the grant of patent or revocation of the patent.

Is India successful in its doctrine at International Level?

India along with other developing countries is still pushing hard with these arguments but at the international level, the proposal has not yet met with success in the TRIPs Council. However, due to India’s strong arguments in meetings under the aegis of the CBD as well as in WSSD (World Summit on Sustainable Development), the 7th Conference of Parties (CoP-7) to the CBD took a landmark decision regarding development of an international regime on access and benefit sharing, after almost ten long years of entry into force of the Convention.

• The Nagoya Protocol is a major step towards strengthening India’s stand and giving shape to the advocacy on access and benefit sharing.
• The Access and Benefit sharing protocol, finalized at Nagoya recently, demonstrates the seriousness towards this standpoint of India.