This article on ‘IPR Role in Biodiversity Protection in an International Overview‘ is written by Aman Sharma. A 1st-year student from the Faculty of Law DU, and an intern at Legal Upanishad.
Introduction
In this article, we will focus on the IPR role in Biodiversity Protection in an International Overview and how IPR is affecting biodiversity. Life on earth is confined by diversity and this is the strength of sustainability. However, due to IPR interferences, the threat remains prevalent in biodiversity. The article will explain some of the examples where a clash happened between IPR and bio-diversity. And the macro view of PepsiCo’s IPR on potato production and the turmeric patent granted by the US Patent Department.
What is Intellectual Property?
Property, in simple words, is anything that is owned by a person or entity. It could be real, personal, or intellectual. Intellectual property is the innovative work of man’s mind. Progress in science and technology is interrelated with the protection provided by the IPR. This encourages more innovation. If no protection is given to innovations, then the development of nations will come to a halt.
Types of Intellectual Property
- Trademark: A trademark or service mark is a word, name, symbol, device, slogan, or connotation that identifies and distinguishes goods used to indicate the source, quality, and ownership of a product or service. A trademark is used in the marketing of a product.
- Copyright: It’s a legal right given to the author or owner of a particular subject for a limited time period.
- Patents: A patent right is given by the state, which provides the owner with an exclusive right over its innovation.
- Trade Secrets: It’s the unique property of a company’s product. For example, the formula for making Coca-Cola drinks comes under trade secret.
- Geographical Indications: It’s a unique sign or a product that is associated with a geographical area.
In 1994, many capitalist nations concluded the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). GATT established the WTO, and along with it, IPR was introduced as a part of an international convention.
IPR Role in Biodiversity Protection
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has some provisions in it to safeguard bio-diversity.
- Article 27(2) allows for the exclusion of inventions from patentability where commercial use needs to be prevented to safeguard the environment.
- Article 27(3), allows countries to not provide patents on plants and animals as well as plant varieties.
- Article 22 allows for the protection of products that are defined by geographical indications.
Indian Scenario
India has a variety of populations in animal and plant terms. As India is a party to both TRIPS and the Convention on Biological Diversity (CBD), after their formulation, the Indian Patent (second amendment) Act of 2002 and the Biological Diversity Bill of 2002 were passed. To safeguard bio-diversity, India has also enacted the Plant Protection Bill in compliance with the Budapest Treaty. Furthermore, Article 48A of the Indian Constitution says that the state shall protect and help improve the wildlife of the country.
Case of Turmeric
Turmeric widely used in India for a long time and has a medicinal value which is even written in ancient texts. It is often used on wounds to heal. In the year 1995, the US Patent dept. granted the University of Mississippi Medical Centre with a patent for using turmeric for healing wounds. The US patent department granted the patent. On this pretext the Council of Scientific and Industrial Research (CSIR), India filed a case against the grant of patent to the University of Mississippi. The grounds on which the case was filed were that patents can be granted only to inventions which help improve mankind. Later the Patent was cancelled. It was for the first time a patent was challenged on the pretext of ancient texts and traditional knowledge.
PepsiCo IPR on Potato
The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Authority on December 3, 2021, revoked a PVP (Plant Variety Protection) certificate granted to PepsiCo. India for a potato variety. Therefore, the IPR granted to the potato variety will be taken back. Now the farmers will be able to produce any variety of potatoes in their fields.
Suggestions
- Role of Civil Society Org.: They are working on the ground level and can be a powerful tool to challenge and resist the destructive nature of the IPR regime. NGOs have been struggling against the piracy of indigenous knowledge, which has led to the use of local products being impossible due to the patent granted to them. Empowering NGOs with more legal backing can make them ready to fight against the IPR regime.
- Social Awareness: Making people aware of the importance of traditional knowledge and bio-diversity can help fight the injustice done by big companies.
- Develop International Agreement: For safeguarding native people and local traditional knowledge. And the agreement should be binding.
- More Filing of Patents: As per the report, China has filed the most international patent applications in the year 2020. In India too, we can help people to file more patents so that we can save our national biodiversity.
Conclusion
Intellectual Property Rights are a tool that can be of great use to the inventors by giving them the right to their inventions. As the big companies are using IPR to gain a monopoly over the usage of some products is wrong. To save the bio-diversity and to keep using the IPR in a good way they both should co-exist. The IPR Role in Biodiversity Protection is important to appropriate penal clauses and the right amount of reimbursement. There must be further cooperation at the international level to safeguard property rights and traditional resources. Further granting the geographical indication status to a group of people, ensures the protection of the right of people and resources. Bio-piracy will no longer take place which refers to the misuse of knowledge of traditional people.
References
- Sabuj Kumar Chaudhary (2003) The impact of IPR on Biodiversity Retrieved:http://eprints.rclis.org/7905/1/Impact_of_IPR_on_Biodiversity.pdf
- D. Dupuis (2001) Biodiversity And Intellectual Property Rights Retrieved:https://www.ciel.org/Publications/tripsmay01.PDF
- Ashish Kothari and R.V Anuradha (1999) Can two co-exist Biodiversity and IPR. Retrieved:https://www.cbd.int/doc/articles/2002-/A-00308.pdf