The Role of IPR In Protection of Biodiversity on The International Level
Author: B.Jayasuriyan, Saveetha School Of Law
The term IPR itself suggests that it was meant for rights to ideas and information in which that are used for the purpose of new inventions or processes and the current paper specifically lies on the ambit of the role of IPR in protection of biodiversity in an international perspective. So, when it comes to biodiversity the major ambient in which this falls on to is environment and on considering such the major issue falls on seeds, plantation, etc., So on analysing such the common aspect with regard to such on IPR are discussed on concerning the existing regimes.
Keywords: IPR, Biodiversity, CBD, TRIPS
The aspects of making biodiversity as a commodity started its evolution from United Kingdom for the purpose of agricultural production by using high – quality seeds, and on following such the companies started to sell such high-quality seeds. Later the intervention of the government was started which rewarded the individual/company that develops the seeds into furthermore and such in turn resulted in the breeder’s rights, then such made its foot on commercialisation. When commercialisation rises on one side, the aspect of restrictive usage was increased with it.Due to such new plant varieties were introduced and with more new creations and varieties the rights and recognition was started to fall under the ambit of jeopardy. In the year 1961, a “Union Internationale Pour la Protection des Obtentions Vegetables” (UPOV-International Union for the Protection of New Varieties of Plants) was established in Geneva for the purpose of coordinating the intercountry implementation of PBR. Although the Convention was signed in Paris in 1961, it came into force only in 1968 and it was revised in Geneva in 1972,1978, and 1991.
Impacts of IPRs on Biodiversity
The social and economic impacts and importance of IPRs can be seen clearly in developing countries and one of the greater impacts is the rights i.e., Patents. The Patent on the new variety seeds provides a sovereign right for the countries which make such and to some extent on the aspect of sustainable use of such. And there were various arguments in which that are constantly made with regard to the ambit of the need for IPR on Biodiversity and the major arguments were in a negative perspective stating,
- The tendency to homogenize agricultural diversity;
- Displacement of native and traditional crops;
- Restriction to exports of traditional medicinal plants (thereby impacting in situ conservation efforts);
- Restrictions on saving, using and selling farm saved seeds by small farmers and indigenous communities, among others.
On looking into the role of IPR in protection of biodiversity, there are certain important aspects in which that are mandatorily needed to be considered i.e.,
- The World Intellectual Property Organization (WIPO) Intergovernmental Committee on Genetic Resources
- Traditional Knowledge and Folklore the Food and Agricultural Organization (FAO) International Treaty on Plant Genetic Resources for Food and Agriculture
- The Convention on Biological Diversity, 1992 (CBD)
- TRIPS (Trade Related Intellectual Property Rights)
IPRs vs. Biodiversity vs. TRIPS vs. CBD
In order to look onto the ambit of IPRs in biodiversity, two major provisions of CBD must be taken into consideration i.e.,
- Article 16.5 (Access to and Transfer of technology)
- Article 22 (Relationship with Other International Conventions)
Where these 2 Articles ensure the responsibility of the State on protecting the IPR with some exception stating “existing international agreements, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity”.So on considering the above mentioned Articles the impacts of IPRs on biodiversity need to be examined in order to grasp the essence of the need of IPR on biodiversity. So on analysing the impact it is found that,
- IPR shall intensify the trend to homogenise agricultural production and medicinal plant use systems and on increasing species-wide IPRs (like on transgenic cotton and soybean) would stifle the development of public and small-scale private sector crop variety
- Payment of substantial royalties could increase the debt burdens of many countries and such intensify the environmental and social disruption
- Innovations through reuse and exchange with other farmers by a farmer would discourage innovation (on considering UPOV 1991 regime)
- It also causes jeopardy on ethical aspects
Even the TRIPs agreement is only likely to greatly intensify the above-mentioned aspects and to be specific its attempt to homogenise IPR regimes militates against a country’s or community’s freedom to choose its way.
Space within Existing Regimes
- Under Article 8 though the environmental protection is not explicitly built into this, could be justified as being in “public interest”.
- Article 27(2) -safeguard against “serious prejudice” to the environment so the grant of patent shall be under jeopardy
- Article 27(3) allows countries to exclude plants and animals from patentability
Space within CBD:
- Article 16(5) and Article 22 could provide countries with some manoeuvrability with regard to IPRs stating conservation, sustainable use, and/or equitable benefit-sharing.
IPR is one of the essential components which provides recognition and rights for new innovation and on considering such in the ambit of biodiversity, most of the arguments and the regimes were on the negative ambit. But currently the regimes need to be modified for effective protection on new innovations on the aspects that include biodiversity as its major ambit.
- WWF International & CIEL, Joint Discussion Paper, March 2001.
- WIPO-UNEP Study on the Role of Intellectual Property Rights in the sharing of benefits arising from the use of Biological resources and associated traditional knowledge.
- Intellectual Property Rights and Biodiversity: Processes and Synergies Background paper for Workshop on TRIPs and CBD Global Biodiversity Forum Cancun, Mexico, September 5-7, 2003.