IMPACT OF INTELLECTUAL PROPERTY RIGHTS ON BIODIVERSITY

Written by: GAYATHRI MENON

INTRODUCTION

Biodiversity means the variety of life on earth. It describes the total variability among and within the species of living organisms in their natural habitat. The Biological Diversity Act 2002 of India[1] defines biological diversity as 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 eco-systems. Over time, there has been a reduction in biodiversity due to climatic conditions and human factors and there is a dire need to protect biodiversity.

Intellectual Property Rights (IPR) are the rights given to ideas and information which can be used for new inventions and processes. The rights protect the ideas and exclude imitators from marketing such inventions or processes for a specific period of time. The whole idea of IPR is to give rights to the holder and in return, he or she should disclose the idea behind the product/process. The primary aim of IPR is to stimulate innovation by offering high marketing returns which the market may not otherwise provide. Patents are hence given to the creators for a period of twenty years as a form of encouragement. This also assures them a place in the commercial market.

HISTORY OF IPR AND BIODIVERSITY

The first step to commercialise biodiversity was taken in the United Kingdom where they wanted to use high-quality seeds for agricultural production. The companies slowly started selling registered seeds which led to the government rewarding individuals who improved the seeds further. This eventually led to the development of Breeder’s Rights that became more commercialised. In the U.S, it began with the introduction of the U.S Plant Patent Act which gave IPRs to asexually produced plant varieties. In the year 1968, the International Union for the Protection of New Varieties of Plants[2] was established in Geneva for coordinating the inter-country implementation of Plant Breeder’s Rights. Plant Varieties’ Rights or Plant Breeders' Rights (PVRs/PBRs), gave the right-holders limited regulatory powers over the marketing of 'their' varieties. The decision of the US Supreme Court to grant patent rights to microbiologist Ananda Chakrabarty for a genetically engineered bacterial strain paved the way for granting patents on life. This decision by the Court legitimised the view that anything made by humans, not found in nature can be given a patent. U.S Chief Justice Burger of the U.S Supreme Court was of the opinion that anything under the sun made by man is patentable. Soon genetically altered animals, microorganisms, and even altered human genetic materials were given patents. This was restricted to certain countries. However, this changed with the signing of the Trade-Related Intellectual Property Rights[3] which required all the signatory countries to accept patenting of microorganisms and microbiological processes and to accept some ‘effective’ form of IPRs on plant varieties, either through patents or some ‘sui generis’ version.

DEVELOPMENT OF LAWS REGARDING BIODIVERSITY

India became a part of the Convention on Biological Diversity (CBD)[4] to promote biodiversity and to conserve it. In order to comply with the decisions of the CBD and TRIPS, India passed the Biological Diversity Act, 2002 and the Patent Amendment Act, 2002[5]. The Biological Diversity Act, 2002 aims to ensure sustainable utilisation of resources and protect the biodiversity of India. The Patent Amendment Act 2002 extended the duration of the patent to 20 years for all products and process patents. Microorganisms were allowed to be patented and new plant varieties will be given a PBR certification in India in compliance with the UPOV Act which India became a part of. In the year 2001, the Government had also passed the Protection of Plant Varieties and Farmers Right Act[6] which aims to protect the rights of the farmers as they are the ones who are cultivating the plants and they have vast knowledge on the same.

IMPACT OF IPR ON BIODIVERSITY

The impact of Intellectual Property Rights on biodiversity has been a subject of great debate and there is limited information to show the effect IPRs on biodiversity and conservation.

Various countries have rights over their genetic resources and its’ sustainable use. One impact of IPRs (especially patents) has been the direct or indirect misappropriation of these resources and traditional knowledge which has been called biopiracy. Patents have been critiqued to legitimise biopiracy. The Convention on Biological Diversity has recognized the complex relationship between IPR and biodiversity. Article 16(5) is particularly relevant in the sense that Contracting Parties “[...] recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives”.

Many scientists are of the opinion that an alarming proportion of genetic variability in food plants has become extinct and the conversion and development of the remaining genetic varieties is a huge global concern. Farmers often sow different and commercially more valuable seeds to boost their sales and certain government schemes force them to stop and adapt specific seeds and new varieties. The Intellectual property system, by encouraging commercial agriculture, leads to an increase in genetic uniformity which in turn leads to genetic erosion.

Farmers usually use the local varieties which are more heterogeneous genetically and which are less stable. These are the characteristics that make them more adaptable and suitable for agricultural environments. The requirements for uniformity in UPOV type systems exclude these varieties. Proponents are of the opinion that stimulating the production of new varieties actually increases biodiversity but in reality, with the requirement of uniformity of crops, it is leading to the loss of biodiversity.

The privatisation of genetic resources that have been patented and engineered leads to monocultural cropping. For instance, the prairies of the U.S once hosted thousands of varieties of grasses which now host only a handful of varieties of grass. Similarly in India, the farmers who produced some thousand varieties of rice that have been developed through traditional practices over centuries are now forced to produce only a few varieties as the TRIPS Rules prohibits the farmers from growing the varieties that have been patented. Moreover, an engineered organism may produce unanticipated harmful impacts on other species in its new environment and may cause economic degradation.

Most of the countries have to pay a substantial amount of money to industrial countries and corporations which could increase the debt burden of many countries. Farmers who innovate seeds through reuse and exchange from other farmers would be discouraged to do so if restrictions are imposed on their countries.

Ethical aspects of IPR are of serious concern. Many communities are against the idea of patenting life forms as many are of the belief that nature exists apart from humans. The idea of privatisation of knowledge also does not go well with many communities and people.

Scientists often experiment with genetics. The simple act of moving a single gene from one area to another within a cell makes it new and eligible to get a patent. Sometimes variations in genes can produce desirable traits that can be produced and marketed. The process of finding and isolating plants with the most desirable traits leads to the decline of the other plant species as only those which produce the desirable genes are cultivated. Hence it leads to the loss of biodiversity.

CONCLUSION

In conclusion, the patent system has stimulated the development of products and technology only in very few sectors such as the pharmaceuticals. In other sectors, it is mainly said to have anti-competitive effects. They serve to strengthen only the market leaders which keeps the other competitors at bay. The policymakers have over the years tried to reduce the adverse effects of IPR through various policies and legislations, but the anti-competitive implications of patents is a source of concern. They should always remember that the reason we need to conserve diversity and resources is to improve the quality of human life and any mistake might put the whole of humanity at stake and should be avoided at all costs.

[1] The Biological Diversity Act, 2002 [2] International Union for the Protection of New Varieties of Plants available at https://www.upov.int/export/sites/upov/publications/en/pdf/upov_data_bei_04_01.pdf (Visited on May 12th,2021) [3] Agreement on Trade-Related Aspects on Intellectual Property Rights available at https://www.wto.org/english/docs_e/legal_e/27-trips.pdf (Visited on May 13th,2021) [4] Conversion on Biological Diversity available at https://www.cbd.int/doc/legal/cbd-en.pdf (Visited on May 13th,2021) [5] The Patent Amendment Act, 2002 [6] Protection of Plant Varieties and Farmers Right Act,2001