Biopiracy and Legal Safeguard of Intellectual Properties

Abstract:

The issue of biopiracy revolves around the exploitation of indigenous knowledge and resources without equitable compensation, presents a pressing challenge. This paper digs into legal, ethical, regulatory frameworks and national legislations, to confront this matter. It underscores the necessity of preserving indigenous heritage and biodiversity, suggesting enhanced patent regulations and amplified community engagement as viable solutions. This paper encourages a collaborative effort to protect the rights and cultural heritage of indigenous communities in the face of the looming threat of biopiracy to global biodiversity.

Keywords – Biopiracy, Traditional Knowledge, Patents, Legal, Safeguard

Introduction

The historical exploitation of resources by colonial powers has transformed into a contemporary challenge known as biopiracy. In the present day the knowledge and resources of indigenous communities are utilized without fair compensation, predominantly driven by commercial interests in pharmaceuticals, cosmetics, and agriculture. This practice poses a significant threat to both the heritage and rights of indigenous communities and the overall biodiversity of our planet.

Balancing technological advancement with the preservation of traditional wisdom becomes a critical concern in the context of biopiracy. Unrestrained exploitation not only jeopardizes biodiversity but also undermines the cultural legacy of indigenous groups. As companies and nations continue to secure patents and intellectual property rights without ensuring fair compensation to the guardians of traditional knowledge, the ethical and legal dilemmas surrounding this issue become increasingly pressing.

This research paper seeks to explore the multifaceted landscape of biopiracy and the measures adopted both internationally and domestically to counteract this phenomenon. It examines the intricate legal, ethical, and regulatory frameworks. The primary aim is to dissect the existing challenges, particularly the loopholes within current systems.

Addressing these gaps in the legal framework is crucial to differentiate genuine innovation from traditional knowledge, with the goal of protecting and preserving indigenous heritage and biodiversity. The paper further discusses the need for a more comprehensive approach, suggesting tighter patent regulations and increased involvement of indigenous communities in the patent approval process as potential solutions to combat bio piracy.

Research Methodology

The foundation of this study’s research methodology lies in the acquisition and examination of secondary data as well as primary in nature drawn from a spectrum of sources such as articles, blogs, official publications, official Documents and content accessible from the World Intellectual Property Organization’s (WIPO) official website.

Review of Literature

Vandana Shiva’s ‘Biopiracy: The Plunder of Nature and Knowledge’ critically examines the Western reductionist perspective on nature. Shiva exposes a troubling reality where the West exploits the ‘third world’ and appropriates indigenous knowledge. The review navigates the complexities of patents and intellectual property rights, highlighting the systemic issues beyond individual actions. Shiva’s work is a pivotal resource for understanding the global challenges of Biopiracy and knowledge exploitation.

Janna Rose’s article “Biopiracy: when indigenous knowledge is patented for profit” explores the issue of biopiracy, where researchers exploit traditional knowledge without permission, often from less affluent countries. This article also goes beyond drug development, pointing out instances in agriculture and industry, such as foreign firms patenting Indian products. Despite legal frameworks since 1994 aiming to protect bioresources, conflicts persist. The article also studies French Guiana and underscores the importance of prior agreements.

Aayush Sharma’s “Geographical Indication Tagging Of Agricultural Products And Foodstuffs” article explores Geographical Indications as intellectual property, covering its definition under TRIPS, the legal framework in India, and its application to agricultural products and foodstuffs. It highlights the economic potential of GI while addressing concerns such as unethical marketing practices. The thin line between a recipe and a GI tag, exemplified by controversies like the ‘rasgulla’ origin, is discussed, emphasizing the need for historical origin and distinctive characteristics in GI tagging.

Martin Fredriksson’s “Biopiracy or bioprospecting: Negotiating the Limits of Propertization” article examines the shift from biopiracy to bioprospecting, emphasizing the Nagoya Protocol’s role in establishing fair standards for genetic resource use. It evaluates the Convention on Biological Diversity’s redefinition of ownership, the Nagoya Protocol’s mechanisms like Prior Informed Consent and Mutually Agreed Terms, and critiques its dependency on state implementation. The review also explores clashes between globalized and localized property regimes, noting concerns about the Nagoya Protocol’s lack of intellectual property considerations.

Evolution of Legal Safeguards Against Biopiracy

Throughout history, while pirates pillaged ships sailing the high seas, European nations such as Spain, Great Britain, Germany, and other global empires practiced their own form of exploitation. This concept began with the spice trade by early colonial powers, expanding to the colonization of various countries and regions, appropriating resources like coffee, sugar, and cocoa. Luxury goods of that era were seized and traded from colonies in Africa, Asia, and Latin America. Although many colonies were relinquished by the mid-20th century, it didn’t halt companies and wealthy nations from exploiting biological resources. The commercialization of biological materials for medicines, cosmetics, and agriculture became a thriving industry.[1]

The establishment of the General Agreement on Tariffs and Trade (GATT) in 1947 aimed to streamline global trade dynamics. Following this, the Trade-Related Intellectual Property Rights (TRIPS) framework emerged, mirroring Columbus’ land entitlements from 1492, striving to find a balance between trade and intellectual property.[2] Since 1994, the Agreement on TRIPS has mandated World Trade Organization (WTO) member countries to establish legal frameworks safeguarding plant and animal varieties in agricultural and commodity contexts. However, this provision has been seen by some countries as counterproductive for protecting their bio resources.[3]

In the early 1990s, the term “biopiracy” was coined by Canadian environmentalist Pat Roy Mooney and gained attraction within environmental and social rights movements.[4] Within activist circles, the ‘biopiracy’ discourse emerged to critique multinational companies for patenting and appropriating genes, breeds, and natural resources that Indigenous communities had developed and used for centuries.

And from the early 2000s, numerous national governments have amended their laws to better protect their bio resources, aligning with the guidelines outlined in the 1992 Convention on Biological Diversity.3

Safeguard Against Biopiracy

Intellectual property rights play a pivotal role in fortifying the expansive landscape of human creativity and innovation. They serve as a crucial defensive mechanism against biopiracy, affording individuals the means to establish ownership or control over the commercial utilization of their innovations, spanning biological resources, traditional knowledge, or genetic materials. Through the acquisition of patents, copyrights, or other IPRs, creators and inventors erect a protective barrier, shielding their work from unauthorized use or exploitation. This protective function serves as a deterrent, significantly limiting the unauthorized commercialization of resources and mitigating acts of biopiracy. The intricate web of patents and traditional knowledge, when explored in greater depth, provides a more nuanced and comprehensive understanding of their impact and application in this context. Diving deeper into the intricacies of patents and traditional knowledge reveals the complex interplay between legal frameworks and the preservation of cultural heritage. It unveils the delicate balance required to foster innovation while respecting the rights of indigenous communities. Furthermore, this exploration sheds light on the evolving nature of intellectual property in the face of advancing technologies and the globalized exchange of knowledge, emphasizing the ongoing need for adaptive and inclusive legal mechanisms to protect the diverse tapestry of human creativity.

Safeguarding against biopiracy stands as a paramount concern, particularly for indigenous communities and nations blessed with rich biodiversity. Biopiracy, marked by the illicit exploitation of biological resources or traditional knowledge devoid of proper consent or equitable compensation, demands a multifaceted approach encompassing legal, ethical, and regulatory measures. A pivotal component in countering biopiracy entails the judicious management of patents and intellectual property rights. Nations, recognizing the gravity of the issue, establish robust legal frameworks to supervise access to genetic resources and traditional wisdom. These frameworks aim to ensure that exclusive rights to indispensable heritage resources are not unjustly claimed. Rigorous scrutiny of patent applications becomes a crucial safeguard, effectively preventing the granting of patents for pre-existing traditional knowledge or biological resources. In this comprehensive strategy, numerous international and national forums are instituted to shield indigenous groups from the inherent dangers of biopiracy. These forums serve as platforms for collaboration, enabling collective efforts to protect the rights and cultural heritage of indigenous communities. By addressing the menace of biopiracy, this unified endeavour contributes significantly to the global conservation of biodiversity.:-

INTERNATIONAL LEGISLATION AND FORUM

•The Convention on Biological Diversity (CBD)

The Convention on Biological Diversity (CBD) was founded in 1992, CBD is all about preserving nature’s diverse richness and making sure we use biological resources in sustainable ways. To battle against bio piracy, it sets up rules and processes like asking for permission beforehand and making sure everyone benefits fairly from using these resources. These steps ensure that access to these resources is fair, discourage any kind of exploitation, and push for responsible, long-term use, all to protect the interests of the communities that provide these resources.[5]

• The Nagoya Protocol 2014

The Nagoya Protocol is established by The Convention on Biological Diversity in 2014. It’s all about making sure that benefits from using genetic resources are fairly shared. To stop unfair practices like bio piracy, it sets rules for accessing these resources, making sure everyone agrees beforehand, and ensures those who provide these resources get a fair piece of the benefits.5

• The United Nations Permanent Forum

The UN  Permanent Forum on Indigenous Issues plays a crucial role as a platform for indigenous communities and serves as a vital platform for indigenous communities globally. Here, these communities have their voices amplified, particularly on concerns like bio piracy. It’s a gathering where people unite to discuss their worries, exchange stories, and offer solutions to uphold their rights and preserve their traditional knowledge. Through this forum, these groups strive to influence policies and international actions that protect indigenous wisdom and resources. The forum’s recommendations and advocacy efforts are instrumental in the continuous battle against bio piracy, ensuring the safeguarding and reverence of indigenous heritage.[6]

NATIONAL LEGISLATION AND POLICIES

• Indian biological diversity act, 2002

The Indian Biological Diversity Act of 2002 helps prevent bio piracy by making it necessary for anyone wanting to use India’s biological resources and traditional knowledge for research or business to get permission first. This ensures that the benefits from using these resources are shared fairly and that unauthorized exploitation is avoided. The act aims to protect the rights of local communities and indigenous people who have traditional knowledge.[7]

• The Patent Act, 1970

The Patent Act of 1970 prevent bio piracy by not allowing patents on things that occur naturally like substances, plants, and animals in their natural form. This is to stop people from claiming ownership or exclusive rights over traditional knowledge and biological resources without making significant changes or improvements to them.[8]

• Protection of Plant Variety and Farmer’s Right Act, 2001

The Protection of Plant Variety and Farmer’s Rights Act of 2001 is enacted to stop biopiracy by making sure farmers and breeders have their rights protected. It ensures that the people who actually come up with new plant varieties, often farmers and indigenous communities, get to keep the ownership and benefits related to these varieties. This helps prevent others from using these varieties for profit without permission, aiming to respect and fairly compensate those who’ve put effort into developing and preserving these plant varieties.[9]

• The National Green Tribunal Act,2010

The National Green Tribunal Act of 2010 helps not explicitly dealing with biopiracy, indirectly helps in protecting the environment. By addressing environmental issues, the tribunal’s decisions contribute to safeguarding diverse biological resources and their ecosystems. This ultimately aids in preventing bio piracy by preserving these essential natural elements.[10]

• The Forest Act, 2006

The Forest Rights Act of 2006 serves a multifaceted purpose, extending beyond its primary aim of addressing biopiracy to encompass the empowerment of forest-dwelling communities and the protection of their resource rights. This legislation is intricately designed to grant these communities not only legal recognition but also the authority to manage and benefit from their resources sustainably. By conferring rights upon these communities, the Forest Rights Act acts as a dynamic deterrent against biopiracy. The empowerment it provides enables local populations to actively participate in the decision-making processes related to the utilization and conservation of their resources. This hands-on engagement becomes instrumental in preventing unauthorized exploitation, as the communities become proactive stewards of their environment and the act also contributes to the overall well-being of these local populations. It becomes a catalyst for socio-economic development by fostering sustainable resource management practices. This, in turn, has a ripple effect on the preservation of their unique resources and traditional knowledge, as the communities are vested with the responsibility and agency to safeguard their cultural heritage.[11]

• Geographical Indication of Goods ( Registration and Protection) Act, 1999

The Geographical Indication of Goods (Registration and Protection) Act of 1999 in India helps stop biopiracy by protecting products linked to specific regions. This prevents others from using or exploiting the reputation and quality of goods associated with certain areas without permission. It safeguards the traditional knowledge, cultural heritage, and natural resources connected to those regions.[12]

• National Intellectual Property Rights Policy

National Intellectual Property Rights (IPR) policies play a crucial role in safeguarding against bio piracy. These policies are designed to protect the traditional knowledge of indigenous communities and the diverse biological resources. They typically involve obtaining consent from these communities before using their knowledge or resources, ensuring that benefits are fairly shared, and implementing more rigorous scrutiny during the patent approval process to prevent patents being granted for knowledge or resources acquired unlawfully.[13]

• Traditional Knowledge Digital Library

A Traditional Knowledge Digital Library (TKDL) is a crucial tool in the fight against biopiracy. It works by digitally documenting traditional knowledge and medicinal formulations. This database allows patent examiners to access and cross-check existing traditional knowledge, making it easier to reject patent applications that rely on information already in the public domain. As a result, it prevents patents from being granted for traditional knowledge that belongs to indigenous communities.[14]

Important Cases Related Biopiracy

• The Neem Patent Case

The legal battle between Neem India and W.R. Grace & Company revolved around a patent dispute over the Neem tree’s medicinal properties. India opposed the patent granted to W.R. Grace & Company, arguing that these properties were part of India’s traditional knowledge and shouldn’t be patentable. The case highlighted issues of bio piracy and the ownership of traditional wisdom. Ultimately, the European Patent Office supported India’s stance, revoking the patent in 2005, a significant moment in the ongoing conversation about safeguarding traditional knowledge.[15]

•The Basmati Patent Case

The Basmati Patent Case, the legal battle between Rice Tec, Inc. and The Queen’s University, was about patenting Basmati rice. It became a dispute when Rice Tec, Inc. sought patents for specific Basmati rice strains in the U.S. This raised concerns and discussions about claiming rights over a traditional Indian rice variety. It brought up debates about bio piracy, the use of traditional knowledge, and the commercialization of native crops. In the end, the U.S. Patent and Trademark Office granted patents but with some restrictions, acknowledging the cultural and traditional importance of Basmati rice[16].

•The Turmeric Patent Revocation Case

The legal dispute known as Turmeric Patent Revocation Case between the Foundation for Revitalization of Local Health Traditions and the United States Patent and Trademark Office (USPTO). The crux of the matter revolved around a U.S. patent that asserted turmeric’s efficacy in wound healing, sparking a broader discourse on the contentious issue of patenting traditional knowledge. Championing the cause, the Foundation challenged the legitimacy of the patent by contending that turmeric’s therapeutic properties were well-established in the traditional practices of Indian medicine. Their argument centered on the notion that phenomena deeply rooted in historical and traditional knowledge should not be subject to patent protection. The case resonated beyond the legal sphere, prompting discussions on the ethical implications of integrating traditional practices into the Western intellectual property framework. The Foundation’s stance reflected a broader concern about safeguarding cultural heritage and indigenous wisdom against potential exploitation through patenting. In a significant decision, the USPTO ultimately revoked the patent. This ruling signaled a pivotal acknowledgment of turmeric’s extensive historical usage in traditional healing across cultures. The case served as a precedent, highlighting the need for a nuanced approach when considering patents that involve elements of traditional knowledge, striking a delicate balance between fostering innovation and respecting cultural heritage.[17]

• Kani tribe’s medicinal knowledge case

In this case Traditional Knowledge Digital Library (TKDL) and the US Patent and Trademark Office legal battle revolved around patents that were based on the medicinal wisdom of the Kani tribe. It drew attention to the need to safeguard traditional knowledge from being claimed unjustly through patents. The TKDL stepped in as a critical tool, offering evidence to challenge and nullify these patents by demonstrating the pre-existence of this traditional knowledge.[18]

Conclusion and Suggestions

The problems of biopiracy regarding exploitation of indigenous resources and traditional knowledge for commercial gain, is a complex and urgent global concern. It brings to light the ethical and legal challenges in balancing technological progress with the preservation of age-old wisdom.

The effectiveness of global and national frameworks, such as the Convention on Biological Diversity (CBD), the Nagoya Protocol, and specific legislations like India’s Biological Diversity Act and Patent Act, is pivotal in establishing a regulatory framework for ensuring equitable access and benefit-sharing, as well as preventing unauthorized exploitation. However, despite their significance, these conventions and acts exhibit certain loopholes, particularly in addressing the nuanced distinction between genuine innovation and what is inherent in traditional knowledge. This gray area poses a formidable challenge in the protection of indigenous wisdom and biodiversity. Ambiguities within existing legal frameworks make it difficult to discern and safeguard true innovations from elements already ingrained in traditional knowledge. This lack of clarity creates a vulnerability that could potentially result in unjust claims and the misuse of traditional resources. Addressing this challenge requires a concerted effort to close these gaps in the regulatory landscape. The emphasis should be on refining definitions and criteria to better distinguish authentic innovations from established traditional knowledge. By doing so, the aim is to strengthen the legal mechanisms in place, providing a more robust defense against the threats posed by biopiracy and fostering a fair and sustainable approach to access and benefit-sharing in the realm of biodiversity.

To tackle these loopholes, we might need to tighten up the rules for giving out patents or rights within the legal systems. This would mean making sure that only genuinely new and distinct advancements are the ones getting patents. Also, involving indigenous communities in the process of checking patents could really help in figuring out what’s traditional knowledge and what’s a real new thing. Maybe setting up specific groups or systems focused on making this call could be a step forward. Creating clearer guidelines for the people who decide on patents would also help them better separate traditional wisdom from modern innovations, ensuring fairness for both sides.

At last, addressing biopiracy requires a comprehensive, multi-faceted approach involving legal, ethical, and regulatory strategies. Balancing the preservation of traditional knowledge with technological innovation is a delicate task. The existence and reinforcement of international and national frameworks, coupled with important legal cases, stand as guiding lights in the ongoing struggle to protect indigenous heritage and biodiversity from exploitation.

Pratap Rabha

Jalpaiguri Law College


[1] Imran, Yoonus; Wijekoon, Nalaka; Gonawala, Lakmal; Chiang, Yu-Chung; De Silva, K. Ranil D., “Bio piracy: Abolish Corporate Hijacking of Indigenous Medicinal Entities” National Library of Medicine (Nov. 09, 2023, 09:15PM)  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7910072/

[2] Christina Majaski, “General Agreement on Tariffs and Trade (GATT)” Investopedia (Nov. 09, 2023, 09:45PM) https://www.investopedia.com/terms/g/gatt.asp

[3] Janna Rose, “Bio piracy: when indigenous knowledge is patented for profit” The Conversation (Nov. 09, 2023, 10:01 AM) https://theconversation.com/biopiracy-when-indigenous-knowledge-is-patented-for-profit-55589

[4] Martin Fredriksson, “Biopiracy or bioprospecting” Routledge (Nov. 9, 2023, 10:09AM)

https://www.diva-portal.org/smash/get/diva2:1153590/FULLTEXT02.pdf

[5] The Convention on Biological Diversity, https://www.cbd.int/ (Last visited on Nov. 09, 2023, 11:30PM)

[6] United Nation News https://news.un.org/en/story/2011/03/370182 (Last visited on 10, 2023 , 12:20AM)

[7] Prof S.Kannaiyans, An Overview on The Biological Diversity, 2002, 1-18 (2023)

http://www.nbaindia.org/act/act_english.htm.

[8] J.V. Abhay, An overview of the Indian patent system under the patents Act, Shradul Amarchand Mangaldas( Nov. 10, 2023, 01:01AM)

[9] Vikaspedia https://vikaspedia.in/agriculture/policies-and-schemes/crops-related/protection-of-plant-varieties-and-rights-of-farmers/protection-of-plant-varieties-and-farmers-rights-act-2001 (Last visited on Nov. 10, 2023, 01:15 PM)

[10] Shreya, Overview of National Green Tribunal Act, 2010, Iblogpleader (Nov 10, 2023, 10:05AM)

[11] Krishnadas Rajagopal, What is Forest Rights Act?, The Hindu( Nov. 10, 2023, 10:31AM)

https://www.thehindu.com/sci-tech/energy-and-environment/what-is-forest-rights-act/article26419298.ece.

[12] Sharma A’s, India: Geographical Indication Tagging Of Agricultural Products and Foodstuffs, Mondaq (Nov. 10, 2023, 01:45PM)

https://www.mondaq.com/india/trademark/898690/geographical-indication-tagging-of-agricultural-products.

[13] PIB Delhi, Intellectual Property Rights Policy Management framework.

https://dipp.gov.in/sites/default/Files/national-IPR-Policy20114October 2020.pd.(last visited Nov. 10, 2023, 01:50)

[14] WIPO  https://www.wipo.int/tk/en/tk/ (Last visited on Nov 11, 2023, 01:30PM)

[15] Tarun Khuranas, Neem Patent Case, Mondaq (Nov. 11, 2023, 2:45 PM)

 http://www.countercurrents.org/bhargava140709.html

[16] Prabir Purkayasthas, The Basmati Patent Case, Delhi Science Forum ( Sept. 11, 2023, 3:15PM)

 http://www.delhiscienceforum.net/intellectual-Property-rights/87-victory-on-basmati-by-amit-sen-Gupta-.html

[17] K. S. Jayaramans, US patent office withdraws patent on Indian herb, Nature (Sept. 12, 2023, 09:07 AM)

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3038276/

[18]Ana Carvalhos, Intellectual property and traditional knowledge, 9 (2023)

https://www.wipo.int/edocs/pubdocs/en/tk/920/wipo_pub_920.pdf

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