Bills on Intellectual Property Rights-IV: Concerns with proposed laws

THE BIODIVERSITY, patents and plant variety bills constitute direct responses to international treaties ratified by India, in particular with regard to the property rights models they endorse.

The three bills generally reflect the trend towards the appropriation by States and private actors of a multiplicity of property rights, the gradual dismissal of common property rights regimes and the denial of the principle of free exchange of resources and knowledge as the basic premises for managing genetic resources.

These developments are clearly related to the new opportunities offered by genetic engineering and the consequent increase in economic value abscribed to biological resources.

The framework proposed at the international level is problematic in several ways as it tends to sideline some of the most fundamental concerns in the field of biodiversity management such as the fulfilment of basic food and health needs for all individuals.

Sovereignty, biological resources

Since decolonisation, it has been agreed that states have sovereign rights over biological resources. States can relatively easily control the exploitation of resources such as coal but this is much more difficult in the case of biological resources.

Indeed, biological resources can be relatively easily taken out of any given country, for instance, in the form of seeds. Further, there have been extensive exchanges of resources through the CGIAR centres over the past decades and these centres hold a significant share of the world's genetic resources related to food crops. The insistence of the Biodiversity Bill on India's sovereign rights is thus surprising. However, this also reflects the fact that states that hold significant biodiversity resources have not found better ways to assert control over them.

Generally, it must be stressed that sovereign rights are unlikely to have significant impacts in practice. As the state's control over biological resources is relatively weak, it is likely that other property rights established under the bill, mainly monopoly intellectual property rights, will be pre-eminent.

This implies that the main beneficiaries of this regime will be the private sector, partly the local industry but also - and maybe mainly - multinational companies.

Property rights on bio resources

As noted, the introduction and strengthening of private property rights constitutes one of the most significant elements of the new regime. However, if the introduction of intellectual property rights has been strongly encouraged concerning the products of research based on biological resources, there has been a significant resistance in the research and business communities to giving property rights on biological resources and knowledge used as the basis for research in laboratories.

The consequence is that farmers, local communities and other managers of biodiversity are not given intellectual property rights to their knowledge. In exchange, the concept of benefit- sharing has been introduced in a bid to recognise the contribution of these actors while usually denying them property rights.

The bills reflect this conception to a large extent. In the case of the plant variety bill, benefit sharing is only associated with monetary compensation. This type of benefit-sharing is a direct response to the imposition of monopoly rights which imply that only one actor gets all the benefits concerning a given invention. This constitutes a denial of the fact that biological resources are tended by a variety of actors.

In fact, the response should be to establish a property rights system where different actors can get different property rights instead of providing monopoly rights to some and only financial compensation to others.

Coordination between the bills

As noted, the three bills deal in part with the same subject matter. For instance, plant varieties are only a sub-set of biological resources. It is therefore surprising that the biodiversity bill's definition of biological resources does not exclude plant varieties given the existence of a separate plant variety legislation.

Overlaps do not stop at the level of definitions. The biodiversity and plant variety bills which both deal with fundamentally similar issues and subject matters each seek to set up their own national authority instead of providing a single common body.

Further, both adopt benefit-sharing as a compensatory mechanism but they set up benefit-sharing mechanisms that are distinct and unrelated. As noted, the plant variety bill only talks of financial compensation while the biodiversity bill includes a number of other possibilities, including the sharing of property rights.

In practice, this may lead to considerable difficulties given the overlapping mandates of the two bills. Further, while the procedure for granting benefit-sharing is set out in some details in the more specific plant variety bill, the biodiversity bill is much less clear in this regard.

In effect, the overlaps and inconsistencies between the different bills range from conceptual to technical implementation issues.

The lack of coordination between the bills can be traced back to the fact that the Government is seeking to implement different international treaties in each case. However, if the international law is scattered in different treaties dealing with different fields such as trade and environment, this cannot constitute an excuse for overlooking the fact that these treaties address a single ground reality, in this case the conservation and use of biological resources.

The bills and their broader context

The adoption of the three bills under consideration will have significant impacts for all local actors involved in the management of biodiversity, from all individuals working in the agricultural sector to local private and public sector units.

Indeed, TRIPS imposes some fundamental changes to the country's current property rights framework. Even though TRIPS seems paramount at this juncture, it is essential to recognise that the property rights framework being devised will also have significant social and human impacts. Indeed, biological resources are not only economic resources but also constitute the primary food supplies of all individuals.

There is thus a direct link with some fundamental human rights such as the rights to food and health, whose fulfilment is intrinsically related to the proposed property rights framework. This implies that TRIPS cannot be read independently from domestic or international human rights instruments.

Indeed, this was recognised by the Law Commission in its proposed biodiversity bill which provided that no intellectual property right should be granted on species used for alimentary or medicinal purposes.

The current bills reflect partly the difficulties that the country is having in responding to the varying and partly contradictory international obligations it has contracted.

However, a large part of the regime proposed through the bills is not specifically called for by the treaties themselves. Indeed, there is for instance absolutely no need to adopt any of the provisions of the UPOV Convention in the plant variety bill.

Overall, even if India must today adapt to a new environment which does not favour the sharing of knowledge and resources, it seems essential that the sustainable management of biological resources and the fulfilment of basic needs of the majority of the population, or in other words basic human rights, should not be sidelined in the process.

Philippe Cullet

(The author is with the International Environmental Law Research Centre, Geneva. E-mail: pcullet@vsnl.net)

(Concluded)

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