======================Mod 1=======================

What is Biodiversity?

Biodiversity describes the richness and variety of life on earth. It is the most complex and
important feature of our planet. Without biodiversity, life would not sustain.

The term biodiversity was coined in 1985. It is important in natural as well as artificial
ecosystems. It deals with nature’s variety, the biosphere. It refers to variabilities among
plants, animals and microorganism species.

Biodiversity includes the number of different organisms and their relative frequencies in an
ecosystem. It also reflects the organization of organisms at different levels.

Biodiversity holds ecological and economic significance. It provides us with nourishment,

housing, fuel, clothing and several other resources. It also extracts monetary benefits
through tourism. Therefore, it is very important to have a good knowledge of biodiversity
for a sustainable livelihood.

Types of Biodiversity: Biodiversity is of three types: 1.

Species diversity 2. Genetic diversity 3. Ecological diversity 1.

Species Diversity: According to Biological Species Concepts (BSC), species is a basic unit
of classification and is defined as a group of similar organisms that interbreed with one
another and produce offspring’s and share a common lineage. Species diversity refers to
biodiversity at the most basic level and is the ‘variety and abundance of different types of
individuals of a species in a given area’. It includes all the species on Earth, ranging from
plants such as bacteria, viruses, fungi, algae, bryophytes, pteridophytes, gymnosperms,
angiosperms and all the species of animals including unicellular protozoans to mammals.
Certain regions support more diverse populations than others. Regions that are rich in
nutrients and have well balanced climatic factors, such as moderate temperature, proper
light and adequate rainfall, show high degree of diversity in their life forms. The tropical
areas support more diverse plant and animal communities than the desert and polar areas, as
for example, a tropical forest has higher species diversity as compared to a timber
plantation. The regions 2 that are rich in species diversity are called hotspots of biodiversity.

2. Genetic Diversity: ‘Genetic diversity pertains to the range of diversity in the genetic
resources of the organisms’. Every individual member of a plant or animal species differs
from other individuals in its genetic constitution. Each individual has specific characters,
which is due to the genetic makeup or code. The genes present in the organisms can form
infinite number of combinations that causes genetic variability. Thus, we find that each
human, who is representative of the same species, i.e. Homo sapiens, is distinct from
another. Similarly, there are many varieties within the same species such as rice, wheat,
apples, mangoes, etc. that differ from one another in shape, size, colour of flowers and taste
of fruits and seeds due to the variations at the genetic level. The term ‘gene pool’ has been

1
used to indicate the genetic diversity in the different species. This also includes the diversity
in the wild species, which through intermixing in nature over millions of years have given
rise to newer varieties. The domesticated varieties of agricultural crops and animals have
also evolved from the wild gene pool. The genetic variability is essential for healthy
breeding population, the reduction in genetic variability among breeding individuals leads to
inbreeding which in turns can lead to extinction of species. In the recent decades, a new
science named ‘biotechnology’ has emerged. It manipulates the genetic materials of
different species through various genetic re-combinations to evolve better varieties of crops
and domestic animals. Genetic diversity has the following importance: (i) It helps in
speciation or evolution of new species; 3 (ii) It is useful in adaptation to changes in
environmental conditions; (iii) It is important for agricultural productivity and development.

3. Ecological/Ecosystem Diversity: Each ecosystem consists of organisms from many

different species, living together in a region connected by the flow of energy and nutrients.
The Sun is the ultimate source of energy for all the ecosystems. The Sun’s radiant energy is
converted to chemical energy by plants. This energy flows through the different systems
when animals eat the plants and then are eaten, in turn, by other animals. Fungi and bacteria
derive energy from the decomposing dead organisms, releasing nutrients back into the soil
as they do so. An ecosystem, therefore, is a collection of living components, like microbes,
plants, animals, fungi, etc. and non-living components, like climate, matter and energy that
are connected by energy flow. Ecological diversity refers to the ‘variability among the
species of plants and animals living together and connected by flow of energy and cycling
of nutrients in different ecosystems or ecological complexes’. It also includes variability
within the same species and variability among the different species of plants, animals and
microorganisms of an ecosystem. Thus, it pertains to the richness of flora, fauna and
microorganisms with in an ecosystem or biotic community. The richness of the biosphere in
terms of varied life forms is due to the variations in the ecosystems. The earth has a number
of ecosystems like grasslands, forests, semi arid deserts, marine, freshwater, wetland,
swamp, marshlands etc. each one having its distinct floral, faunal and microbial
assemblages. Ecological diversity represents an intricate network of different species
present in local ecosystems and the dynamic interaction among them. The ecological
diversity is of great significance that has developed and evolved over millions of years
through interactions among the various species within an ecosystem.
—————————————————————————————————————
———

Biotechnology and biodiversity

Biotechnology is generally considered to be “any technique that uses living organisms to

make or modify a product, to improve plants or animals, or to develop microorganisms for
specific uses”. Modern biotechnologies offer vast potential for improving the quality and
increasing the productivity of agriculture, forestry and fisheries. Genes from plants, animals
and microorganisms that flourish in the forests, fields and seas of the developing world are
the strategic raw materials for the commercial development of new pharmaceutical,
agricultural and industrial products. Whereas genetic wealth, especially in tropical areas
2
such as rainforests, was once a relatively inaccessible trust fund, it is fast becoming a highly
valuable currency.

Introduction of modern biotechnologies in the developing world is frequently compared to

the Green Revolution. While the Green Revolution involved introducing new varieties of
primarily wheat and rice in selected areas, biotechnology has the potential to affect all
crops and tree species, as well as fish and livestock, in any corner of the globe. The Green
Revolution was introduced to the Third World largely by international institutions, but the
“Gene Revolution” is primarily in the hands of the private sector, with transnational
corporations being the leading players. With few exceptions, scientific and technical
capacity in the biosciences is centred in the industrialized world. As a consequence,
biotechnology research, by and large, does not focus on the needs or interests of poor
farmers in marginal areas of the world. Emerging biotechnologies have considerable
potential to enhance food and agricultural production in the developing world, but they
could also add to existing inequities by displacing traditional agricultural products,
accelerating genetic erosion and introducing new environmental hazards.

Molecular biology is the most powerful tool of biotechnology. In the area known generally
as genetic engineering, scientists can transfer genes between unrelated species endowing
such “transgenic” plants, animals and microorganisms with properties that they could
probably never have acquired in nature. As yet, only a handful of genetically engineered
products are available commercially, but hundreds are in the pipeline.

Genetic engineers can design crop varieties containing natural insecticidal genes, fish with
human growth hormones, and faster growing trees. It must be stressed, however, that
genetic engineering consists essentially of mixing and matching genes from different
species. It cannot create genetic material, replace lost material or eliminate the need to
conserve living resources.

Molecular biology is important in characterizing and conserving biodiversity. For example,

molecular markers can help establish the extent of diversity within a species and to identify
genes of interest to breeders. Such techniques can also help establish priorities for
conservation.

Biotechnology to protect biodiversity

Biotechnology already assists the conservation of plant and animal genetic resources
through:

• new methods for collecting and storing genes (as seed and tissue culture);
• detection and elimination of diseases in gene bank collections;
• identification of useful genes;
• improved techniques for long-term storage;
• safer and more efficient distribution of germplasm to users.
Tissue culture is just one example. The technique, which involves growing small pieces of
plant tissue or individual cells in culture, provides a fast and efficient way of taking
3
numerous cuttings from a single plant. In many cases, entire plants can be regenerated from
a single cell because each cell contains all the necessary genetic information. After selecting
a disease-free cutting, for example, scientists can mass-produce copies that are genetically
identical. This is the basis of plant cloning, or micropropagation of plants.

In gene banks, tissue culture is now used routinely to preserve the genetic information of
plants which have seeds that do not store well, are sterile or have poor germination rates.
Plant cells maintained on a growth medium in a test-tube replace seeds or plants. Plants
stored in this way include sweet potatoes, bananas and plantains, apples, cocoa and many
tropical fruits.

Biodiversity: obstacle or…

Biotechnology contributes to conservation and the sustainable use of biodiversity, but

several areas exist where modern biotechnology may hinder development or create serious
hardship for rural communities.

Substitution. The economies of developing countries are threatened by biotechnology

research that promises to eliminate or displace traditional export commodities, often a
primary source of foreign exchange. Current research, for example, focuses on substitutes
for tropical oils and fats —ranging from cocoa butter to castor oil. Biosynthesis in the
laboratory of high-value ingredients such as vanilla, pyrethrum and rubber could ultimately
transfer production out of farmers' fields and into industrial bioreactors. Without ample
opportunity to plan and diversify, developing country farmers and their botanical exports
may suffer massive displacement, wreaking havoc on already weak economies.

A new wave of genetic erosion?

Biotechnology may threaten the genetic diversity on which it depends. In the absence of
conservation, commercial biotechnology may unleash a new era of genetic erosion. A
commercial venture in Chile, for example, can propagate up to 10 million eucalyptus
seedlings, all identical clones, in automated nurseries. Similarly, commercial semen and
embryo transfer services for domestic animals raise concern about the displacement of
traditional livestock breeds. Cloning could accelerate replacement or dilution of indigenous
stock by imported breeds, leading to a loss of genetic diversity.

Biosafety. A related concern involves the ecological risks of introducing genetically

engineered plants into centres of diversity. Transgenic varieties, a good number of them
resistant to herbicides, have been produced in more than 40 crop plants. Gene flow to weeds
from resistant plants could have far-reaching consequences. The resulting herbicide-tolerant
weed could be difficult to control, harming future crop production as well as the
surrounding ecosystem. Will biotechnology firms seeking to penetrate markets in
developing countries take into account the risks posed in regions where wild and weedy
relatives of major food and industrial crops are found? Will the developing countries have
the capacity to monitor and assess the risks?

4
…opportunity for development?

Biotechnologists could develop new varieties and breeds adapted to low-input agriculture or
harsh conditions, or improve processing. Biotechnology may help create markets by
developing new industrial, medicinal and aromatic crops. Given their richness in
biodiversity, several developing countries that have the capabilities, such as Brazil, China
and India, could produce new high-value products based on local flora. The congenial agro-
ecological settings and availability of relatively cheap labour should be conducive to large-
scale production of new high-value crops, enabling such countries to maintain their
comparative advantage in these commodities.

The use of biotechnology to develop biofertilizers and to detect and control pests and
pathogens will be particularly helpful to poor farmers. Such technologies could also bring
trading advantages by removing non-tariff barriers arising from the presence of pesticide
residues or pest infestation in food commodities that otherwise have an export, and therefore
income-generating, potential.

The fundamental question posed by biotechnology remains: Who will control the new
technologies and benefit from them? FAO is trying to strengthen national capacities to
exploit biotechnology for sustainable, low-input agriculture, and to encourage
biotechnology research on products/commodities that are important to developing nations. It
is also fostering the best uses of biotechnologies to identify and conserve genetic resources.
Finally, FAO is developing a Code of Conduct that covers the issues raised above

——————————————————————————————-

Numerous economic factors support recognising biodiversity’s benefits. Some economists

debate whether biodiversity is essentially valuable regardless of its benefits to humans.

In a varied environment, no one species can fully utilise all possible niches. Because human
economic activity is strongly reliant on Earth’s ecosystems, maintaining appropriate bio
productivity is vital.

Humans are not the only ones who can be creative. In addition to the three billion bits of
information in a human genome, the human species has several variations. There are
millions of living species on Earth, each with valuable information. More than half of all
chemical formulations are bio-derived. In the long run, however, keeping every species’
genetic data may be just as important.

Value Of Biodiversity

Biodiversity and its linked ecosystems are increasingly valued by policymakers. While
biodiversity is important for ecological services like clean water, it may also benefit society
by increasing jobs. The article focused on the importance of biodiversity and the benefits
provided to disadvantaged rural people. Jobs in biodiversity-sustaining industries including

5
fisheries, forestry, and agriculture are closely linked to biodiversity. More individuals
working in water management and related industries are also working in ES.

Economic Role Of Biodiversity

For all humans, biodiversity is first and foremost a source of food and water. Crop diversity
is often referred to as agro biodiversity. The majority of people view biodiversity as a
reservoir of resources that may be tapped to create food, pharmaceutical, and cosmetic
items.

Among the significant economic goods that biodiversity provides to humanity are the
following:

Biodiversity of Food

Crops, animals, forestry, and fish all contribute to the creation of disease-resistant and high-
yielding types.

Medication

Since time immemorial, wild plant species have been utilised medicinally. Quinine, for
example, is derived from the cinchona tree (it is used to treat malaria), digitoxin is derived
from the foxglove plant (it is used to treat chronic cardiac problems), and morphine is
derived from the poppy plant (pain relief). According to the National Cancer Institute, more
than 70% of potential anti-cancer medications originate from tropical rainforest plants.
Animals may also be used, most notably in research. Only 5,000 of the estimated 250,000
identified plant species have been studied for prospective medicinal uses.

Industry

Biodiversity may be used to provide energy (through biomass), such as fibres for clothing
and wood for housing and warmth. Oils, lubricants, perfumes, scents, colours, paper, waxes,
rubber, latex, resins, poisons, and cork are all commercial goods generated from numerous
plant species. Wool, silk, fur, leather, lubricants, and waxes are all examples of animal-
derived supplies. Additionally, animals can be employed as a means of conveyance.

Tourism and recreational activities

Biodiversity provides economic benefits to a number of regions, including several parks and
woods, where natural flora and animals provide beauty and delight to a large number of
people. Ecotourism, in particular, is a rapidly developing kind of outdoor enjoyment.

Socio Economic Importance Of Biodiversity

6
Globally, biodiversity is decreasing, and economists are more aware of the implications.
From species richness and abundance-weighted species counts to more complex
assessments that take taxonomic distance and function into account, we discuss the
numerous definitions of biodiversity. Then we’ll talk about the immediate and indirect
economic benefits of conservation.

An empirical approach for determining direct and indirect values is presented together with
current studies showing their relevance. The use of asset accounting to track biodiversity
values progression is addressed in the context of sustainable development. Finally, we
examine outstanding challenges in biodiversity value.

Economic Value of Biodiversity

The economic worth of biodiversity is quantifiable in terms of the multiple advantages it

generates, both real and intangible. These include manufactured and sold goods that are
obtained directly or indirectly from biodiversity, as well as non-marketed goods that
contribute to both human well-being and the economy. These advantages can already be
proved to be large in regions where they are quantified through market activity. By
demonstrating these benefits, it is demonstrated that market failures result in potentially
significant loss. Additionally, by illustrating the quantifiable yet unquantifiable advantages
of biodiversity, a persuasive argument for governmental action may be established.

Conclusion

Recognising the benefits of biodiversity is supported by a number of economic issues. Some

economists argue that biodiversity is important in and of itself, regardless of human
benefits. Biodiversity is necessary for ecological services which includes clean water and
more, it may also benefit society by increasing jobs. The significant economic goods that
biodiversity provides to humanity are as follows:

1. Biodiversity of Food

2. Medication
3. Industry

4. Tourism and recreational activities

————————————————————————

Conservation and sustainable use of biodiversity

Last update:5 February 2024

Biodiversity is currently being lost at up to 1,000 times the natural rate. Some scientists are
now referring to the crisis as the ‘Earth’s sixth mass extinction’, comparable to the last great
7
extinction crisis 65 million years ago. These extinctions are irreversible and pose a serious
threat to our health and wellbeing. Designation and management of protected areas is the
cornerstone of biodiversity conservation. However, despite an increase in the total number
of protected areas in the world, biodiversity continues to decline.

An integrated landscape approach to conservation planning plays a key role in ensuring

suitable habitats for species. However, many protected areas are not functioning as
effectively as originally intended, due in part to limited resources to maintain these areas
and/or enforce relevant legal frameworks. In addition, current protected area networks may
need to be re-aligned to account for climate change. Efforts to preserve biodiversity must
take into account not only the physical environment, but also social and economic systems
that are well connected to biodiversity and ecosystem services. For protected areas to
contribute effectively to a secure future for biodiversity, there is a need for measures to
enhance the representativeness of networks, and to improve management effectiveness.

• Growth in protected areas in many countries is helping to maintain options for the
future, but sustainable use and management of territory outside protected areas
remains a priority.

• Measures to improve environmental status within conservation areas, combined with

landscape-scale approaches, are urgently needed if their efficiency is to be improved.

• Lack of adequate technical and financial resources and capacity can limit the
upscaling of innovative solutions, demonstrating further the need for regional and
subregional co-operation.

• Capacity building is a key factor in the successful avoidance and reduction of land
degradation and informed restoration.

• Capacity development needs should be addressed at three levels: national, provincial

and local.

• There is a need for capacity building to enable sources outside government to inform
relevant departments and policies on biodiversity (e.g. through consultancies,
academia and think tanks).

Sites, connected landscapes and networks

Conserving biodiversity and promoting sustainable use
UNESCO works on the conservation of biodiversity and the sustainable use of its
components through UNESCO designated sites, including biosphere reserves, World
Heritage sites and UNESCO Global Geoparks. In 2018, UNESCO designated sites
protected over 10 million km2, an area equivalent to the size of China. These conservation
instruments have adopted policies and strategies that aim to conserve these sites, while
supporting the broader objectives of sustainable development. One such example is the
policy on the integration of a sustainable development perspective into the processes of the
World Heritage Convention.

8
UNESCO is also the depository of the Convention on Wetlands of International Importance.
Countless species of plants and animals depend on these delicate habitats for survival.

The MAB Programme and the World Network of Biosphere Reserves: connecting
landscapes and reconciling conservation with development
Biosphere reserves are designated under UNESCO’s Man and the Biosphere (MAB)
Programme and promote solutions reconciling the conservation of biodiversity with its
sustainable use at local and regional scales.

This dynamic and interactive network of sites works to foster the harmonious integration of
people and nature for sustainable development through participatory dialogue, knowledge
sharing, poverty reduction, human wellbeing improvements, respect or cultural values and
efforts to improve society’s ability to cope with climate change. Progress has been achieved
in connecting landscapes and protected areas through biosphere reserves, however further
efforts are needed.

———————————————————————————————————

Inter relationship between biodiversity, biotechnology, and intellectual property rights

Relationship Between Intellectual Property Rights (IPR) And Biodiversity

By Bhagavath P | Views 12631
0 0 0 Blogger0 pocket1 Digg0
Biodiversity and Intellectual Property Rights (IPR) have converged to create a complex and
diverse environment where legal frameworks, financial incentives, and moral considerations
all come into play. In general, biodiversity means all living organisms including plants,
animals, microorganisms, and their ecosystem.

The rich range of life forms that make up biodiversity on Earth not only contributes to
ecological harmony but also to future technological advancement and economic growth.

In this context, IPR mechanisms like patents, plant breeders' rights, and access and benefit-
sharing agreements have emerged as tools that can support technological development and
conservation efforts while also posing issues with fair resource distribution and the
preservation of traditional knowledge. Research, innovation, conventional wisdom, and the
sustainable management of biodiversity are all examined in this discussion of the crucial
role that IPR plays in the field of biodiversity.

What is biodiversity?
Basically, biodiversity refers to the different variety of life forms in an ecosystem including
plants, animals, microorganisms, and other living organisms, and the genetic information
they contain in a specified geographical area. It encompasses the diversity of species,
genetic variations within those species, and the ecosystems in which they interact.
Biodiversity is recognized as a valuable and protected resource under various international
and national laws, as well as treaties and agreements.

9
Article 27(3) of the TRIPS agreement offers countries the choice to either secure a patent
for a fresh plant variety or establish a unique law (sui generis) to safeguard the plant itself or
its changes, and then get a patent for the altered plant.

Section 2(b) of Biological Diversity Act, 2002 - "Biological diversity" means 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 of ecosystems.

Section 2(c) of Biological Diversity Act, 2002:

"Biological resources" means plants, animals, and micro-organisms or parts thereof, their
genetic material and by-products (excluding value-added products) with actual or potential
use or value but does not include human genetic material.

Biological Diversity Act 2002:

The Biological Diversity Act 2002 came into force on February 5, 2003, to provide a legal
framework for protecting biodiversity in India. This act outlines rules and guidelines for the
sustainable use, protection, and equitable sharing of benefits arising from the utilization of
biological resources and associated traditional knowledge.

The act often includes provisions related to access and benefit sharing, the protection of
traditional knowledge of indigenous and local communities, and the establishment of
national biodiversity authorities to oversee these matters. It establishes the National
Biodiversity Authority (NBA) to oversee matters related to access, benefit-sharing, and
conservation of biological diversity.

The act also empowers State Biodiversity Boards at the state level to regulate all local
matters relating to biodiversity. The legislation also laid down provisions for the
conservation of species and rehabilitation to protect endangered species.

This legislation imposes a ban on Biopiracy. Biopiracy is the illegal and frequently
unauthorized exploitation of biological resources, along with traditional knowledge and
genetic material sourced from indigenous and local communities. Usually driven by
individuals or groups aiming to secure patents or financial gain from these resources,
biopiracy encompasses the appropriation of both biological and cultural heritage.

This happens without offering appropriate compensation or advantages to the communities

that have nurtured and advanced these resources across multiple generations. The act also
laid down a penalty of Rs. 10 lakhs for violating any provision of the act, the penalty can
exceed Rs. 10 lakhs in some situations like Biopiracy.

Intellectual Property Rights (IPR) relating to Biodiversity:

The United Kingdom was the first legislation to have legislation on biodiversity in the
world, the main aim of having such legislation was to protect farmers' Intellectual property
by protecting their newly invented seeds and crops. The UK became the first country in the

10
business of selling registered seeds and rewarding the individual who invents the new seed,
here the invention refers to the genetic change in the nature of the seed that already exists.

Most of the developed nations introduced Plant Breeder's Rights (PBR). The purpose of
establishing Plant Breeder's Rights (PBR) was to facilitate the commercialization of genetic
resources. Over the span of over six decades, developed nations have utilized Plant
Breeder's Rights (PBR) to cultivate a wide array of plant varieties.

International Union for the Protection of New Varieties (UPOV):

In 1969, the International Union for the Protection of New Varieties (UPOV) was
established in Geneva to facilitate the harmonization of Plant Breeder's Rights (PBRs)
across countries. This convention also introduced criteria for determining the eligibility of
new plant varieties for protection. UPOV laid out three essential requirements that new
plant varieties must fulfill to qualify for protection under the convention.
1. The variety must exhibit complete distinctiveness from existing known varieties. The
new variety should genetically differ from the existing variety.
2. The new variety should display uniformity, homogeneity, and stability in its
characteristics. The new variety should not differ from its own category.
3. The variety must not have undergone commercial exploitation prior to the date of
application for biodiversity protection.
India holds the distinction of being one of the twelve global mega-diversity centers,
boasting a rich biodiversity. The country is endowed with diverse natural resources,
including 167 crop species, 320 wild crops, and a diverse range of domesticated animals. It
stands out as a significant hub for the origination of numerous plant and animal species,
contributing significantly to global agriculture and securing a place among the top ten
nations making valuable contributions to the field.

Intellectual Property Rights (IPR) legislation governing Biodiversity:

Trade-Related Intellectual Property Rights (TRIPs) and Convention on Biological Diversity
(CBD) are the two notable conventions that deal with the protection of biodiversity in terms
of intellectual property.

India introduced the Biological Diversity Act in the year 2002 to comply with the
international treaty TRIPs and CBD. These laws facilitated the patenting of microorganisms
in India and extended the patent duration to 20 years for both products and processes.
Furthermore, India has taken steps to join the UPOV Convention, necessitating Plant
Breeder's Rights certification for new plant varieties within the country. The inclusion of
biological material deposit procedures has also been integrated to align with the provisions
of the Budapest Treaty.

Geographical indications (GIs) in Biodiversity:

Geographical indications (GIs) are the main source of IPR that protect the biodiversity in
India. Article 22 of the TRIPS Agreements defines a geographical indication as "signs that
originate in a member or identify a good location in an area or locality where a given
quality, reputation, or specialty is assigned to its geographical location Is given Is essentially
11
acceptable". Any product that is produced with traditional knowledge by the local
communities using their ancient technique can be registered as a GI. A fundamental criterion
for conferring Geographical Indication (GI) protection is the requisite production of the
product in the designated geographical region for a continuous span of at least one hundred
years.

Example: Darjeeling Tea: Darjeeling tea is known for its unique flavour and quality,
attributed to the geographical region of Darjeeling in West Bengal. It has received
Geographical Indication status to protect its origin and the specific characteristics associated
with tea grown in this region.

Kanchipuram Silk Sarees: Kanchipuram, a town in Tamil Nadu, is renowned for its
traditional silk sarees. These sarees are known for their distinctive designs, vibrant colours,
and high-quality silk, all of which are linked to the geographical region.

Marketing these GI products resulted in economic growth in many aspects, as these

products have their unique origin, and they admire a large scale of customers. Some
examples of worldwide GI products are Scotch whisky, Harris tweed, and Feta cheese.

Conclusion:
The existing Intellectual Property Rights (IPR) framework encourages the
commercialization of seed development, monoculture practices, and the safeguarding of
novel plant varieties, microorganisms, and genetically modified organisms. This trend
contributes to the ongoing reduction of diverse biodiversity. Consequently, there arises a
necessity for an alternate mechanism that can harmonize the established formal intellectual
property systems with the sustainable considerations of biodiversity.

This approach can potentially have detrimental effects on biodiversity by facilitating the
exploitation of biogenetic resources, which are predominantly situated in developing
nations. Developing nations like India should have clear and simple legislation to protect
biodiversity, the commercialization of biodiversity should be regulated by improving the
existing legislation in India.

———————————————————————————————————

Role Of IPR In Protection Of Biodiversity

IPRs as a means to Conserve Biodiversity

12
INTRODUCTION

Intellectual Property Rights are a growing trend these days. They constitute an important
field of law and are of many types,such as patents, copyrights, trademarks, trade designs,
plant varieties, geographical indications, etc. Intellectual property rights are intangible rights
which safeguard an idea, design, creation, innovation or blueprint. They are usually granted
for uniqueness of schemes or thinking processes or a major upgradation of an already
existing invention. Thus, the producer or innovator can ensure that his discovery cannot be
imitated and his efforts do not go in vain. IPRs have been popularized in the past decade
owing to the increased awareness in the people.In the past, lack of awareness resultedin
inventions being copied and used without proper authorization. Not only did this dilute the
creativity of the official innovators, but also demotivated them since they invested their
time, energy and efforts to invent new products. After intellectual property rights were laid
out, multiple laws were enforced so as to counter such infringement. Some of the most
popularly known intellectual property legislations are The Copyright Act of 1957, The
Trademark Act of 1999, The Patent Act of 1970 and The Designs Act of 2000. Owing to
these laws no one can make use of an innovation, original work, design or mark without a
prior permit.

IPRs not only aim to protect the interests of creators, but are also enforced for the protection
of biodiversity on the planet. Biodiversity refersto all kinds of living organisms found in an
area which maintain balance and support life. In legal terms biodiversity is 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 of ecosystems. In other
words, it is the variety and variability of life on Earth. In India biodiversity and their legal
protection is governed by inter alia The Biodiversity Act of 2002. The Act has provisions to
ensure that law considers the preservation of life on Earth.

CONVENTION ON BIOLOGICAL DIVERSITY

The Convention on Biological Diversity (CBD) was held in Rio de Janeiro on 1992 and
came into force in 1993. Initially, there was a prevalent fear among the people that IPRs
would restrict access to genetic resources and limit the sharing of their benefits in the forms
of patents or copyrights. However, the Convention made sure that international measures
were taken for the sustainability of biodiversity while at the same time equal consideration
was given to the importance of IPRs. It also aims to conserve the indigenous knowledge
relating to innovations and practices for sustainable use.

HOW ARE IPRS RELATED TO BIODIVERSITY

In recent times, IPRs have expanded to the field of biodiversity. They focus on genetically
enhanced microorganisms, plant varieties, seed production and monoculture. Many fields
like the industrial sector, agricultural sector, manufacturing sector and pharmaceutical sector

13
have laws in place to make sure that they support sustainability of biodiversity as well. At
the same time, they need intellectual property laws for their smooth functioning.

LEGISLATIONS RELATING TO IPR AND BIODIVERSITY

India passed The Biological Diversity Act in 2002 and The Indian Patent Second
Amendment Act in 2000 to comply with the regulations of CBD, making microorganisms
patentable in India. Nowadays, India has also started to certify plant breeders who specialize
in breeding new varieties of plants.

In the current scenario, intellectual property rights have made patentability of gene-altered
organisms and plant varieties possible.Countries can obtain these patents to protect the plant
or its modifications and obtain a patent for the modified plant. The Union Internationale
pour la Protection des Obtentions Vegetables (UPOV) is a convention that promotes the
breeding of new plant varieties through intellectual property protection of biodiversity.

Plant Breeding Rights: Plant Variety Rights is a form of IPR governed by the Plant Variety
Protection And Farmers Rights (PPVFR) Act of 2001. These rights provide legal protection
of a registered variety/breed of plants to the breeder. The act was enforced in India to
accelerate agricultural development and promote the development of new varieties of plants.
Under the Act four categories of plants can be protected:

◦ New varieties
◦ Extant variety
◦ Farmers' variety
◦ Essentially derived variety
Biological Diversity Act:The Biological Diversity Act was passed to balance the growth of
intellectual property rights as well as conservation of biodiversity and rehabilitation of
species in India. It penalizes the serious violators with a fine upto 10 lakh rupees or
imprisonment upto 5 years. Biodiversity authorities on the national and state level are set up
to lay down the rules and regulations regarding them.

GI Tags: Geographical Indication (GI) tags are a means to label certain products designating
them to be from specific regions which cannot be found elsewhere. Such products have
unique features and are governed by The Geographical Indications of Goods (Registration
and Protection) Act of 1999. The act seeks to provide for registration and better protection
of geographical indications relating to goods in India. GIs guarantee that a product meets
certain standards and is of high quality. Some examples of GI labelled products are Nagpur
oranges, Darjeeling tea, etc.

ABS Mechanisms: Access and Benefit Sharing (ABS) Mechanisms make sure that no
individual, institution or country can withhold information relating to genetic resources.
This knowledge should be accessible to everyone in the interests of preserving biodiversity.
IPRs provide a framework for the proper sharing of genetic information through ABS. The
14
provisions of ABS were suggested by the Convention of Biological Diversity and were put
in force by the Biological Diversity Act, 2002. The National Biodiversity Authority oversees
the ABS related activities.

Copyright Act: The Copyright Act was enforced in 1957; it also protects literary works
which may include folklore and traditional knowledge. The protection of traditional
knowledge not only promotes the preservation of cultural heritage associated with
biodiversity but also supports the rights and interests of indigenous and local communities.

TRIPS Agreement:The Trade Related Aspects of Intellectual Property Rights (TRIPS)

Agreement was enforced in 1995 in all member nations of the World Trade Organisation. It
recognises the need of balancing IPRs with other domestic policy objectives. One of these
objectives is the preservation of the biodiversity which surrounds us. It deals with
technology transfer, climate change, public health and interests, biotechnology and
innovation policy. They maintain fairness in trading on an international level.

CONCLUSION

The growth of genetic diversity development is unpredictable and long lasting. The term has
a very wide interpretation, from plant breeding varieties to genetically enhanced resources.
These advancements ultimately lead to improving the quality of human life. For these
advancements to be made, intellectual property rights must be granted to inventors for their
contributions. However, the promotion of innovation must not compromise the already
existing life around us. Biodiversity needs to be preserved for sustaining life on Earth as we
know it. A controlled and efficient equilibrium has to be maintained in order to reach a point
which is beneficial to all otherwise the consequences could be dire. As we are already aware
climate change, depletion of natural resources, endangerment of various species etc are
serious issues which can be solved through the introduction of new technology and
biogenetic resources. Laws have been placed at national and international levels for this
purpose but there is still lack of knowledge at the local level and in rural regions. India has
implemented multiple IPR laws to mitigate this problem but there is still a long way to go
for intellectual property rights and conservation of biodiversity to go hand in hand.

————————————————————————————

https://krishisanskriti.org/vol_image/07Aug202210081806%20%20%2039-42.pdf (iska
summary lena from chat gpt)

—————————————————————————————

======================Mod 2=======================

The Convention on Biological Diversity (CBD) is a legal instrument signed by 196 countries. It is concerned with
the preservation of biological variation, the sustainable use of its components, and the fair and equitable sharing of
the advantages generated from genetic resource exploitation. The CBD’s ruling body is the Conference of the

15
Parties (COP). Every two years, the supreme authority of all nations (or Parties) that have ratified the treaty meets
to evaluate progress, determine goals, and agree to work plans.

What is United Nations Environment Program (UNEP)?

The United Nations Environment Programme (UNEP) is the leading global environmental authority within the
UN system. It guides and inspires nations and people to improve their quality of life without compromising that of
future generations. This is primarily by spearheading environmental action, promoting strong environmental
governance, supporting scientific research, facilitating international cooperation, and raising awareness and
building capacity for sustainable practices.

History of UNEP
In 1972, the United Nations Conference on the Human Environment was held in Stockholm, Sweden. This
landmark event brought together nations from all corners of the globe. From that gathering, UNEP sprouted.

UNEP's first home was in Nairobi, Kenya. From there, it began spreading its roots. It tackled problems like acid
rain, ozone depletion, and deforestation. It also nurtured international agreements like the Montreal Protocol.

The year 1993 marked a turning point. The Convention on Biological Diversity, also known as the CBD, was
signed by 150 countries. This agreement recognized the importance of protecting all living things, from the tiniest
insect to the tallest tree.

Today, UNEP is a mighty forest, with branches reaching into every corner of the globe. It fights climate change,
protects endangered species, and cleans up polluted air and water. It also helps countries develop sustainably,
ensuring a healthy planet for future generations.

What is the Biological Diversity Convention?

The Biological Diversity Convention (CBD) is a global agreement signed by 196 nations. It aims to conserve the
variety of life on Earth, sustainably use its resources, and equitably share benefits arising from genetic resources.
It covers all levels of biodiversity, from ecosystems and species to genes. It promotes action through national
strategies, international cooperation, and knowledge sharing.

Earth Summit
The Earth Summit is officially known as the United Nations Conference on Environment and Development
(UNCED). It wasn't just one event but a series of decennial meetings held since 1972 to define ways to stimulate
sustainable development at the global level. These summits bring together world leaders, environmental experts,
and representatives from civil society to address critical issues like climate change, biodiversity loss, and poverty.

Basics and Backgrounds of the United Nations Convention on

Biological Diversity (UNCBD)
◦ The United Nations Convention on Biological Diversity (UNCBD) is a United Nations convention that is
in charge of the global protection of biological diversity.
◦ The United Nations Convention on Biological Diversity, colloquially known as the Biodiversity
Convention, is a multilateral treaty that was opened for signature during the 1992 Rio Earth Summit.
◦ It is a crucial document in terms of long-term growth. It is within the United Nations Environment
Programme (UNEP) purview.
◦ The CBD is signed by 196 nations. India is a signatory to the Convention as well.
◦ The convention is legally binding on those who sign it. It is made up of the treaty’s ratifying nations.
16
◦ The Secretariat is located in Montreal, Canada.
◦ Only two United Nations member nations are not Parties to the CBD: the United States and the Vatican.
◦ The UN Convention on the Rights of the Child (UNCBD) was one of two historic binding agreements
agreed at the 1992 Earth Summit. The other was the Climate Change Convention.
◦ More than 150 countries signed the treaty during the Summit, and over 175 countries have ratified it since
then.
The United Nations Convention on Biological Diversity’s
Goals and Objectives (UNCBD)
◦ Its overarching goal is to inspire activities that will lead to a more sustainable future.
◦ Biodiversity is considered at all levels by the Convention on Biological Diversity, including ecosystems,
species, and genetic resources.
◦ It also includes biotechnology, such as the Cartagena Protocol on Biosafety.
◦ Indeed, it encompasses all potential fields that are directly or indirectly connected to biodiversity and its
role in development, ranging from science, politics, and education to agriculture, economics, and culture,
among other things.
Administration of the United Nations Convention on
Biological Diversity
◦ The Conference of the Parties (COP) is the CBD’s governing body, and it is made up of all states that
have signed the treaty.
◦ There have been twelve COP summits thus far. The most recent meeting was held in Pyeongchang, South
Korea, in October 2014. India hosted COP-11 in Hyderabad in 2012.
◦ The CBD Secretariat is headquartered in Montreal and is part of the United Nations Environment
Programme.
◦ A Subsidiary Body for Scientific, Technical, and Technological Advice (SBSTTA) is composed of
professionals from member states who are experts in relevant subjects.
◦ It is crucial in making scientific and technical suggestions to the COP.
Functions of the UNCBD for UPSC
◦ Asserting biodiversity’s inherent importance.
◦ Affirming biodiversity protection as a shared interest of the population.
◦ Accepting responsibility for preserving biodiversity in the state and ensuring that this biodiversity is used
responsibly.
◦ Affirming the state’s right to use biological resources as a sovereign right.
◦ Taking a cautious approach to biodiversity conservation
◦ Emphasizing the importance of local communities and women.
◦ Supporting poor nations’ access to technology and looking for new and extra financial resources to
alleviate the region’s biodiversity loss.
Issues Addressed by UNCBD
The Convention on Biological Diversity (CBD) addresses several important issues related to the environment and
biodiversity. Here are some key points:

◦ The CBD aims to protect and preserve biodiversity. It recognizes that biodiversity is essential for the
well-being of humans and the planet.
◦ The CBD promotes using natural resources in a way that doesn't harm the environment. It encourages
practices that allow us to benefit from nature's resources without causing long-term damage.
◦ The CBD emphasizes the fair sharing of benefits that come from using genetic resources. This means
ensuring that communities and countries that provide these resources receive fair compensation.
◦ The CBD recognizes the value of genetic resources found in plants, animals, and other organisms. It
highlights the importance of conserving and using these resources sustainably.
◦ The CBD aligns with the concept of sustainable development. It seeks to meet the needs of the present
generation without compromising the ability of future generations. It recognizes that conservation and
sustainable use of biodiversity are vital for achieving sustainable development.

17
◦ The CBD has a supplementary agreement called the Cartagena Protocol on Biosafety. This protocol
regulates the movement of genetically modified organisms (GMOs). This is to ensure their safe handling,
transfer, and use, with the aim of protecting biodiversity and human health.
Significance of the UNCBD for UPSC
◦ CBD is a watershed moment in international environmental legislation.
◦ For the first time, it acknowledged that biological variety conservation is a “shared concern of humanity”
and an essential component of the development process.
◦ It also addresses the rapidly growing sector of biotechnology, including technological creation and
transfer, benefit-sharing, and biosafety.
◦ Because the Convention is legally binding, countries who sign up are obligated to follow its requirements.
◦ Unlike previous conservation efforts, which were oriented at saving specific species and habitats, the
Convention emphasizes that ecosystems, species, and genes must be utilised for human benefit.
◦ It is applicable to all ecosystems, species, and genetic resources.
◦ It connects conventional conservation efforts to the economic purpose of utilising biological resources in
a sustainable manner.
◦ It establishes standards for the equitable and fair distribution of the advantages derived from the
exploitation of genetic resources, particularly those planned for commercial use.
◦ The Convention also recognises indigenous and local communities’ close and traditional dependence on
biological resources, as well as the need to ensure that these communities share in the benefits resulting
from the use of their traditional knowledge and practises relating to biodiversity conservation and
sustainable use.
Protocols Developed by CBD
The Convention on Biological Diversity (CBD) stands as a global treaty. But its reach extends beyond the treaty
itself, strengthened by important protocols: the Cartagena Protocol on Biosafety, the Nagoya Protocol on Access
and Benefit-sharing, and the Aichi targets. Let's delve into what these protocols do and how they support the
CBD's mission.

Cartagena Protocol
◦ The Cartagena Protocol on Biosafety is a convention that governs the international movement of living-
modified organisms (LMOs). It has evolved from one country to another using modern biotechnology.
◦ It went into force on September 11, 2003.
Objective
◦ The Protocol specifies rules for controlling the import and export of LMOs between countries.
◦ Parties are also required under the Protocol to guarantee that LMOs supplied from one nation to another
are handled, packed, and transported in a safe way.
◦ The shipments must be accompanied by paperwork that clearly identifies the LMOs, defines any criteria
for safe handling, storage, transit, and usage, and includes contact information for more information.
Nagoya Protocol
◦ The Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Benefit Sharing is a global
agreement that implements the access and benefit-sharing sections of the Convention on Biological
Diversity (CBD).
◦ Plant, animal, and microbe genetic resources are becoming increasingly important in the production of
specialty enzymes, improved genes, and tiny molecules.
◦ These can be employed in a variety of applications, including crop protection, medicine discovery, the
manufacture of specialty compounds, and industrial processing.
◦ The CBD approved the Nagoya Protocol in Nagoya, Japan, in October 2010.
Aichi Targets
◦ The Convention on Biological Diversity (CBD) approved the ‘Aichi Targets’ during its Nagoya summit.
◦ It is a short-term strategy that includes a set of 20 ambitious yet feasible goals known as the Aichi
Targets.
Strategic Goal

18
Targets

Strategic By mainstreaming biodiversity throughout government and society, we

Goal A can address the fundamental causes of biodiversity decline.

Strategic Reduce direct impacts on biodiversity and encourage long-term usage.

Goal B

Strategic To enhance biodiversity through preserving habitats, species, and genetic

Goal C variation.

Strategic Increase the advantages of biodiversity and ecological services to

Goal D everybody.

Strategic Implementation may be improved by including participatory planning,

Goal E knowledge management, and capacity building.

————————————————————————————————————————

https://www.cbd.int/abs/infokit/revised/web/factsheet-bonn-en.pdf (TK PRINT)

————————————————————————————————————————

Introduction

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from Their Utilization is a landmark international agreement under the
Convention on Biological Diversity (CBD). Adopted on October 29, 2010, in Nagoya, Japan, the
Protocol aims to implement the third objective of the CBD, which focuses on the fair and equitable
sharing of benefits derived from genetic resources. It serves as a legal framework to ensure that
nations and indigenous communities benefit from the commercial and scientific use of their
biodiversity.

Historical Context and Need for the Protocol

The CBD, adopted in 1992, sought to address global biodiversity conservation, sustainable use, and
equitable benefit-sharing. However, despite its provisions, developing nations and indigenous
communities often found themselves excluded from the economic benefits arising from the use of
their genetic resources by international corporations and researchers.

In response to these concerns, the World Summit on Sustainable Development (2002) called for a
legally binding instrument under the CBD to enhance benefit-sharing mechanisms. Subsequently,
negotiations over six years led to the adoption of the Nagoya Protocol, which provides a transparent
and legally robust mechanism for equitable benefit-sharing.

Objectives and Scope

19
The Nagoya Protocol aims to promote the conservation and sustainable use of biological diversity
by ensuring that benefits arising from the utilization of genetic resources and associated traditional
knowledge are shared fairly.

The Protocol applies to:

1. Genetic resources covered under Article 15 of the CBD.

2. Traditional knowledge associated with genetic resources held by indigenous and local
communities.

3. Benefit-sharing mechanisms related to both commercial and non-commercial research and

development.

Key Provisions

1. Access to Genetic Resources (Article 6)

The Protocol mandates that countries exercise sovereign rights over their genetic resources and set
conditions for access. Users must obtain prior informed consent (PIC) from the provider country
before using genetic materials for research or commercialization.

2. Fair and Equitable Benefit-Sharing (Article 5)

The Protocol requires that benefits derived from the utilization of genetic resources be shared fairly
and equitably through mutually agreed terms (MAT). These benefits may be monetary (e.g.,
royalties, licensing fees) or non-monetary (e.g., technology transfer, capacity building, and
collaborative research).

3. Traditional Knowledge Protection (Article 7 & 12)

Indigenous and local communities must be consulted before their traditional knowledge is accessed
or used. The Protocol recognizes their rights and provides a framework to protect their knowledge
from unauthorized use.

4. Compliance Mechanisms (Article 15-17)

The Protocol introduces legal certainty and enforcement mechanisms for benefit-sharing
agreements. Countries must establish checkpoints and monitoring systems to ensure that users
comply with the terms of access and benefit-sharing.

5. Global Multilateral Benefit-Sharing Mechanism (Article 10)

In cases where genetic resources exist in transboundary regions or lack identifiable providers, the
Protocol proposes a global mechanism to ensure fair benefit-sharing.

Implementation and Challenges

Implementation Measures

20
Countries implementing the Protocol are required to:

• Designate national focal points and competent national authorities to regulate access and
benefit-sharing.

• Establish Access and Benefit-Sharing Clearing-Houses to facilitate information-sharing.

• Develop legal, administrative, and policy frameworks for domestic implementation.

Challenges

• Legal Complexity: Many countries struggle with the legal and institutional framework
required for full implementation.

• Enforcement Issues: Ensuring compliance by multinational corporations and research

institutions is challenging.

• Awareness and Capacity Building: Many indigenous communities lack awareness of their
rights and the mechanisms available for benefit-sharing.

• Scientific and Technological Barriers: Developing nations may face difficulties in

negotiating fair terms due to limited scientific and legal expertise.

Significance and Impact

The Nagoya Protocol plays a crucial role in promoting biological conservation, sustainable
development, and social justice. By ensuring equitable sharing of benefits, it incentives the
preservation of biodiversity-rich areas and supports indigenous communities. The Protocol also
strengthens international cooperation in biotechnology research, enhancing the role of biodiversity
in addressing global challenges such as climate change, food security, and public health.

Conclusion

The Nagoya Protocol represents a significant step toward fair and sustainable management of
genetic resources at the global level. While challenges remain in implementation and enforcement,
its provisions establish a robust framework for ensuring that biodiversity-rich nations and
indigenous communities receive their fair share of benefits. Moving forward, stronger international
collaboration, legal harmonisation, and capacity-building efforts are essential to realizing the full
potential of this landmark agreement in biodiversity governance.

———————————————————————————————————————

Cartagena Protocol

The full name of the treaty is Cartagena Protocol on Biosafety to the Convention on
Biological Diversity.

• The international treaty concerns the movement of LMOs (living modified

organisms) resulting from modern technology from one nation to another.

21
◦ LMOs are defined under the protocol as living organisms that have a novel
combination of genetic material secured from the use of modern technology.
• It is a supplementary agreement to the CBD like the Nagoya Protocol.
• The Protocol was adopted in 2000 and it came into force in 2003. The protocol was
adopted in Montreal in 2000 but is named after Cartagena, the original city in
Colombia where the protocol was supposed to be adopted. It was delayed due to
some outstanding issues.
• The Cartagena Protocol on Biodiversity seeks to protect biodiversity from the
potential risks caused by LMOs arising from modern technology.
• The protocol was adopted because of the tremendous advancements in biotechnology
and the associated concerns about its safety and usage with respect to biodiversity.
• It seeks to implement an internationally harmonised regime for biosafety in order to
ensure the safe utilisation of modern biotechnology.
• The Protocol has provisions for an Advance Informed Agreement (AIA) procedure.
◦ The AIA is for ensuring that countries are given enough information to make
informed decisions before agreeing to import LMOs into their country.
◦ There are four components to the AIA:
▪ Notification by the exporter (This is a detailed written description of
the LMO by the exporter, well in advance of the first shipment)
▪ Acknowledgement of notification receipt by the importer
▪ Decision procedure (Approve/prohibit/ask for more information, etc.)
▪ Review of decisions
• The Cartagena Protocol also sets up a Biosafety Clearing-House (BCH) to enable
information exchange on LMOs between countries.
◦ It is also intended to help countries implement the Cartagena Protocol.
◦ The BCH is an information-sharing mechanism for relevant technical,
scientific and legal information.
• The Protocol gives a precautionary approach to the issue of transfer of LMOs from
one country to another.

22
Cartagena Protocol Scope

The Protocol is applicable for transboundary movement, transit, handling and use of all
LMOs that may have harmful effects on the conservation and sustainable use of biological
diversity, also considering risks to human health.

• The Cartagena Protocol chiefly governs the following:

◦ LMOs that are intentionally introduced into the environment (trees, seeds or
fish).
◦ Genetically modified (GM) farm commodities (grain and corn used for animal
feed, food or for processing).
• It does not cover pharmaceuticals for humans addressed by other international
agreements and organisations or products derived from LMOs, such as cooking oil
from GM corn.
• LMOs are classified as the following under the Protocol:
◦ LMOs for intentional introduction into the environment – subject to AIA
procedures.
◦ LMOs for direct usage as food or feed, or for processing – subject to
simplified procedures which include informing through the BCH.
◦ LMOs for contained usage (like bacteria for lab experiments) – these are
exempt from AIA procedures.
Cartagena Protocol and India

India is a party to the Cartagena Protocol (ratified in 2003). The nodal agency (Competent
National Authority-CNA) in the country for the implementation of the Protocol is the
Ministry of Environment, Forest and Climate Change (MOEF&CC), Government of India.
23
• Regarding setting up of procedures for regulating LMOs, India was one of the early
movers in the development of a biosafety regulatory framework, way back in 1989,
and has a systematic and structured science-based regulatory system.
• In the Indian regulations, the terms Genetically Engineered Organism or Genetically
Modified Organism are used, which are synonymous with LMOs.
• In India, series of guidelines are available for risk assessment and risk management
of GMOs.
—————————————————————————————————
Sovereign Rights over Biological Resources and Intellectual Property Rights

Introduction

The global debate over sovereign rights to biological resources and intellectual property
rights (IPRs) has intensified in the wake of international agreements such as the
Convention on Biological Diversity (CBD) and the Trade-Related Aspects of
Intellectual Property Rights (TRIPs) Agreement under the World Trade Organization
(WTO). These agreements shape the way biological resources are accessed, utilized, and
commercialized, particularly in developing countries where biodiversity is rich but
regulatory frameworks are evolving.

The CBD recognizes the sovereign rights of nations over their biological resources,
asserting that access to such resources should be subject to prior informed consent and
mutually agreed terms. On the other hand, the TRIPs Agreement aims to standardize
intellectual property protection, including patents on genetic resources and biotechnological
innovations, which can potentially conflict with national sovereignty and traditional
community rights. This essay explores the legal, ethical, and policy-related tensions
between sovereign rights and intellectual property regimes, analyzing their impact on
biodiversity conservation and equitable benefit-sharing.

Sovereign Rights over Biological Resources

The CBD, adopted in 1992, fundamentally altered the legal status of biological resources by
recognizing the sovereign rights of nation-states over the genetic resources found within
their territories. This principle was a response to historical exploitation, wherein industries
from developed nations accessed biological resources from biodiversity-rich regions
without compensating local communities or national governments.

Key Principles of Sovereignty under CBD

1. Sovereign Control: Each country has the right to regulate access to its biological
resources through national laws and policies (Article 3, CBD).
2. Access and Benefit Sharing (ABS): Countries must facilitate fair access to genetic
resources and ensure equitable sharing of benefits arising from their use, including
research, commercialization, and knowledge transfer (Article 15, CBD).
24
3. Prior Informed Consent (PIC): Any entity—whether foreign corporations,
researchers, or individuals—seeking access to a country’s biological resources must
obtain permission from the national government and local communities (Article 15.5,
CBD).
4. Traditional Knowledge Protection: The knowledge, innovations, and practices of
indigenous and local communities must be respected, and their participation in
decision-making should be ensured (Article 8(j), CBD).
However, these principles face serious challenges from international intellectual property
regimes, particularly TRIPs, which mandates broad patentability and often undermines
national control over biological resources.

Intellectual Property Rights and Their Conflict with Sovereign Rights

Intellectual property rights, particularly patents on genetic resources, have become a

contentious issue in biodiversity governance. The TRIPs Agreement, adopted in 1994,
requires WTO member states to establish strict intellectual property protection for
inventions, including microorganisms, biotechnological processes, and plant varieties.

TRIPs and Its Implications

1. Mandatory Patent Protection: TRIPs requires countries to grant patents for

biotechnological innovations, including genetically modified plants and
microorganisms, reducing the ability of sovereign states to regulate such patents
under domestic laws.

2. Biopiracy and Misappropriation: Several instances exist where traditional

knowledge and native biological resources have been patented by multinational
corporations without compensating the indigenous communities who originally
discovered their properties. Examples include:

◦ Turmeric Patent Case: The U.S. Patent Office granted a patent on turmeric’s
wound-healing properties, despite it being traditional knowledge in India. The
patent was later revoked following legal challenges.
◦ Neem Patent Case: A patent on neem-based biopesticides was granted in
Europe, leading to a lengthy legal battle that resulted in its revocation.
◦ Basmati Rice Patent Dispute: A U.S. company attempted to patent a variety
of Basmati rice, raising concerns over the privatization of native plant
varieties.
3. Loss of Farmers’ Rights: TRIPs mandates that plant varieties must be protected
either through patents or an effective sui generis system (Article 27.3(b), TRIPs).
This provision has led to Plant Breeders’ Rights (PBRs), which often grant
monopoly rights to seed companies, limiting farmers' ability to save, exchange, and
replant seeds.

25
4. Lack of Benefit-Sharing Mechanisms: Unlike the CBD, which emphasizes benefit-
sharing with the countries or communities providing genetic resources, TRIPs
contains no provision ensuring that patent holders share benefits with
indigenous knowledge holders.

Legal and Policy Conflicts between CBD and TRIPs

The tension between sovereign rights under the CBD and patent rights under TRIPs
creates legal and policy dilemmas for countries trying to protect their biological resources
while complying with international trade obligations.

Contradictions Between the Two Agreements

CBD TRIPs
Recognizes national sovereignty over
Treats genetic resources as patentable commodities.
biological resources.
Requires prior informed consent before No requirement for consent from local communities or
access. national governments.
Promotes bene t-sharing with indigenous
No mandatory bene t-sharing mechanism.
communities.
Allows countries to exclude certain life Encourages broad patentability, including
forms from IPRs. microorganisms and plant varieties.

Many developing countries argue that TRIPs should be amended to align with CBD
provisions by:

• Ensuring mandatory disclosure of the origin of biological materials in patent

applications.
• Making prior informed consent and benefit-sharing mandatory for patents
involving genetic resources and traditional knowledge.
• Providing legal mechanisms to revoke patents that violate national sovereignty and
indigenous rights.
However, industrialized nations often resist such amendments, arguing that stronger IPR
protections drive innovation and investment in biotechnology.

Strategies for Reconciling Sovereign Rights and IPRs

To strike a balance between sovereign rights over biological resources and the intellectual
property regime, several policy interventions can be considered:

1. Strengthening Domestic ABS Laws: Countries should develop strong national laws
governing access to genetic resources and equitable benefit-sharing mechanisms
to ensure compliance with the CBD.

26
fi
fi
2. Using the Flexibilities in TRIPs: Article 27.3(b) allows countries to create their own
sui generis system for plant variety protection, which could integrate farmers' rights
and traditional knowledge protections.
3. Pushing for TRIPs Amendments: Developing countries should push for TRIPs
revisions that mandate disclosure of biological resource origins, evidence of prior
informed consent, and fair benefit-sharing arrangements.
4. Creating Alternative Protection Systems: Instead of traditional patents,
mechanisms such as community intellectual rights, geographical indications, and
defensive publication (which prevents patents by placing knowledge in the public
domain) could be adopted.
5. Regional Cooperation: Countries in regions such as South Asia, Africa, and Latin
America can collaborate on common frameworks for biodiversity conservation and
IPR negotiations in international forums.

Conclusion

The debate over sovereign rights over biological resources and intellectual property
rights is a critical issue in global environmental governance. While the CBD empowers
nations to regulate access to their genetic resources, the TRIPs Agreement prioritizes
private patent rights, often undermining national sovereignty and indigenous rights. The
growing threat of biopiracy and corporate monopolization of genetic resources
underscores the urgent need for policy harmonization between biodiversity laws and
intellectual property regimes.

To ensure equitable and sustainable use of biodiversity, it is essential to reform

international IPR laws, strengthen domestic biodiversity regulations, and advocate for the
rights of indigenous communities and traditional knowledge holders. Only through
integrated legal frameworks and global cooperation can we reconcile the tensions
between sovereignty and commercialization in the realm of biological resources.

—————————————————————————————————
Access to Genetic Resources, Informed Consent, and Equitable Benefit Sharing

Introduction

Genetic resources, found in plants, animals, and microorganisms, hold immense potential
for medical, agricultural, and industrial advancements. These resources can be accessed
from natural ecosystems (in situ) or stored in collections such as seed banks or botanical
gardens (ex situ). However, the ethical, legal, and economic implications of accessing these
resources have led to the establishment of international frameworks that regulate their use.

The Convention on Biological Diversity (CBD), adopted in 1992, established the

foundation for Access and Benefit-Sharing (ABS) mechanisms. These mechanisms ensure
that genetic resources are accessed legally, with the prior informed consent (PIC) of the
provider country, and that the benefits arising from their use are shared equitably between

27
users (research institutions, pharmaceutical companies, agribusinesses) and providers
(countries, indigenous communities, or private entities).

This essay explores the key principles of ABS, the role of informed consent, and the
concept of equitable benefit-sharing, emphasizing their significance in biodiversity
conservation, sustainable development, and the protection of indigenous knowledge.

Access to Genetic Resources

Importance of Genetic Resources

Genetic resources are crucial for various industries, including:

• Pharmaceuticals: Many modern medicines, including antibiotics and cancer

treatments, are derived from genetic material found in nature.
• Agriculture: Crop varieties with improved resistance to pests and climate change are
developed using diverse genetic resources.
• Cosmetics and Biotechnology: Natural compounds are widely used in the beauty
and wellness industries.
Despite their importance, genetic resources are not evenly distributed worldwide.
Developing countries, rich in biodiversity, often face challenges in protecting their
genetic wealth from unregulated exploitation (biopiracy).

Legal Framework Governing Access to Genetic Resources

The CBD and the Nagoya Protocol on Access and Benefit-Sharing (2010) provide
international legal frameworks to regulate access to genetic resources.

• Article 15 of the CBD:

◦ Recognizes the sovereign rights of states over their natural resources.

◦ Requires that access to genetic resources be based on prior informed consent
(PIC).
◦ Mandates mutually agreed terms (MAT) between users and providers to
ensure benefit-sharing.
• The Bonn Guidelines (2002):

◦ Provide voluntary guidance to countries in implementing ABS mechanisms.

◦ Encourage transparency in access agreements and fair benefit-sharing.
• Nagoya Protocol (2010):

◦ Legally binding treaty that strengthens ABS implementation.

◦ Establishes compliance measures for benefit-sharing obligations.
◦ Requires disclosure of origin of genetic resources in patent applications.

28
These international agreements aim to prevent the unregulated extraction of genetic
resources and ensure that local communities and national governments receive fair
compensation.

Prior Informed Consent (PIC)

Definition and Purpose

Prior informed consent (PIC) is the permission granted by a competent national authority
before a user accesses genetic resources. This ensures that providers (governments,
indigenous communities, private landowners) retain control over how their resources are
used.

PIC is based on:

• Transparency: Users must disclose their intentions, research objectives, and

potential commercial applications.
• Legal Frameworks: Each provider country has specific laws outlining who can
grant access, how agreements are negotiated, and what restrictions apply.
• Indigenous Rights Protection: If traditional knowledge is involved, indigenous and
local communities (ILCs) must also give consent.
Challenges in Implementing PIC

• Lack of Awareness: Many indigenous communities lack legal awareness of their

rights, leading to unauthorized access.
• Weak National Laws: Some countries have no clear ABS legislation, making
enforcement difficult.
• Conflicts Between Users and Providers: Disagreements may arise over research
intentions, benefit-sharing mechanisms, and long-term commitments.
To address these challenges, national focal points and competent national authorities
(CNAs) are established to facilitate the PIC process.

Equitable Benefit-Sharing

What is Benefit-Sharing?

Benefit-sharing refers to the fair distribution of advantages derived from the use of
genetic resources between users and providers. These benefits can be monetary (royalties,
licensing fees) or non-monetary (technology transfer, capacity-building, joint research).

Types of Benefits

Monetary Bene ts Non-Monetary Bene ts

29
fi
fi
Royalties on commercialized
Training programs for local researchers
products
Licensing fees Access to scienti c data and research ndings
Technology transfer for sustainable resource
Pro t-sharing agreements
use
Milestone payments Strengthening conservation efforts

Case Studies on Benefit-Sharing

1. Hoodia Plant (South Africa)

◦ The San indigenous community used Hoodia for centuries to suppress
hunger.
◦ Scientists discovered its potential as an appetite suppressant.
◦ Initially, the San people were not consulted, leading to protests.
◦ A benefit-sharing agreement was later established, ensuring financial
compensation.
2. The ICBG Bioprospecting Program (Panama)

◦
Aimed to ensure equitable sharing of benefits from genetic research.
◦
Led to scientific infrastructure development, local training, and research
opportunities for Panamanian scientists.
◦ Encouraged conservation efforts in the region.
Challenges in Benefit-Sharing

• Patent Restrictions: Many genetic resources are patented without acknowledging

their origin, preventing providers from claiming benefits.
• Lack of Enforcement: Despite legal frameworks, many companies bypass benefit-
sharing obligations.
• Complex Negotiations: Establishing mutually agreed terms (MAT) is often time-
consuming and requires legal expertise.
To improve benefit-sharing, countries must strengthen domestic legislation, enforce
international agreements, and ensure indigenous participation in negotiations.

Role of Indigenous and Local Communities (ILCs)

Why is Indigenous Knowledge Important?

Indigenous knowledge has helped in identifying medicinal plants, crop varieties, and
sustainable resource management practices. Many pharmaceutical and agricultural
innovations owe their success to traditional knowledge.

Protection of Traditional Knowledge Under ABS

30
fi
fi
fi
• Article 8(j) of the CBD: Requires that traditional knowledge associated with genetic
resources is respected, preserved, and utilized with the consent of indigenous
communities.
• Nagoya Protocol: Ensures that traditional knowledge holders receive fair benefits
when their knowledge contributes to product development.
• Community Protocols: Indigenous groups can create customary laws to govern
access to their knowledge and genetic resources.
Case Study: Basmati Rice (India-Pakistan)

• The U.S. RiceTec Corporation patented a variety of Basmati rice, claiming it as a

new invention.
• This sparked international protests, as Basmati is traditionally grown in India and
Pakistan.
• After legal battles, India successfully revoked the patent, reinforcing the need for
strong traditional knowledge protection laws.

Conclusion

The ABS framework, built on the principles of prior informed consent and equitable
benefit-sharing, is crucial for protecting genetic resources, preventing biopiracy, and
ensuring sustainable development. The implementation of these mechanisms requires:

• Strong national and international legal frameworks

• Indigenous participation in ABS negotiations
• Transparent and enforceable benefit-sharing agreements
By ensuring fair access and just compensation, the ABS mechanism promotes
conservation, respects indigenous knowledge, and supports global scientific and
economic progress. Strengthening ABS laws and enforcing compliance will be key to
protecting biodiversity and ensuring fair distribution of its benefits for future
generations.

—————————————————————————————————————
—

Protection of Traditional Knowledge under the Convention on Biological Diversity

(CBD)

Introduction

Traditional knowledge (TK) refers to the collective knowledge, innovations, and practices
developed by indigenous and local communities (ILCs) over generations through their
interactions with the natural environment. This knowledge plays a crucial role in
biodiversity conservation, sustainable use of natural resources, and scientific
advancements in medicine, agriculture, and other fields.

31
However, the growing commercialization of genetic resources has led to concerns about the
misappropriation and exploitation of TK without fair recognition or compensation. In
response, the Convention on Biological Diversity (CBD) and its related instruments, such
as the Nagoya Protocol, have established legal frameworks to ensure the protection,
preservation, and equitable benefit-sharing of traditional knowledge.

This essay explores the significance of traditional knowledge, the role of the CBD in its
protection, key legal provisions, challenges, and real-world case studies illustrating the
importance of safeguarding TK.

Traditional Knowledge and its Importance

Traditional knowledge is vital for:

1. Biodiversity Conservation: Indigenous communities have long been the stewards of

biodiversity, maintaining ecosystems through sustainable practices.
2. Medicinal and Pharmaceutical Advancements: Many modern medicines,
including antibiotics, painkillers, and anti-cancer drugs, originate from TK-based
remedies.
3. Agricultural Practices: TK has contributed to the development of drought-resistant
crops, organic farming, and sustainable land management techniques.
4. Climate Change Adaptation: Indigenous knowledge helps communities predict
climate patterns, conserve water, and develop resilient ecosystems.
5. Cultural Heritage and Identity: TK forms an integral part of the spiritual, social,
and cultural lives of indigenous communities worldwide.
Despite its value, TK is at risk due to biopiracy, commercial exploitation, and lack of
legal protections. The CBD recognizes these challenges and aims to establish a fair and
equitable system for the protection of TK and its rightful custodians.

Protection of Traditional Knowledge under the CBD

The Convention on Biological Diversity (CBD), adopted in 1992, was the first
international treaty to formally recognize and protect traditional knowledge. It sets out
key principles for ensuring that indigenous communities retain control over their knowledge
and benefit from its commercial use.

Key Legal Provisions in the CBD

1. Article 8(j) - Protection of Traditional Knowledge

◦ Calls for the respect, preservation, and maintenance of TK associated with
biodiversity.
◦ Emphasizes that TK should be used with the approval and involvement of
the indigenous communities concerned.
◦ Encourages the equitable sharing of benefits derived from TK applications.
32
2. Article 15 - Sovereign Rights over Genetic Resources
◦ Recognizes the sovereign rights of states over their genetic resources,
including TK.
◦ Requires that access to genetic resources be subject to prior informed
consent (PIC) from the provider country and local communities.
3. Article 16 - Access to and Transfer of Technology

◦ Calls for the transfer of technologies based on TK to indigenous

communities in a fair and transparent manner.
4. Article 18 - Technical and Scientific Cooperation

◦ Encourages collaboration between indigenous communities and scientific

researchers while protecting TK rights.
To strengthen these provisions, the Nagoya Protocol on Access and Benefit-Sharing
(2010) was introduced to ensure that the utilization of genetic resources and TK is
accompanied by fair compensation and legal safeguards for indigenous groups.

Key Mechanisms for Traditional Knowledge Protection under the CBD

The CBD and its supporting frameworks establish several mechanisms to safeguard TK:

1. Prior Informed Consent (PIC)

• Indigenous communities must approve the use of their TK before any research,
commercialization, or external access is granted.
• Ensures that knowledge holders are not exploited by corporations or researchers.
2. Mutually Agreed Terms (MAT)

• Contracts between TK holders and users must include fair benefit-sharing

arrangements.
• Helps prevent biopiracy and unauthorized patents on TK-based products.
3. Equitable Benefit-Sharing

• Any financial or non-monetary benefits (such as technology transfer or

employment opportunities) from TK-based products must be shared fairly with
indigenous communities.
4. The Working Group on Article 8(j)

• Established by the CBD to discuss and implement protections for TK.

• Provides a platform for indigenous voices to shape international policies.
5. Traditional Knowledge Information Portal

• A global database that promotes awareness of TK rights and helps indigenous

communities access legal support.

33
These mechanisms empower indigenous communities by ensuring they remain active
participants in decisions affecting their knowledge and resources.

Case Study: Biopiracy and the Hoodia Plant

One of the most well-known examples of traditional knowledge exploitation is the case of
the Hoodia plant in South Africa.

• The San indigenous people had used Hoodia for centuries as a natural appetite
suppressant.
• In 1996, the South African Council for Scientific and Industrial Research (CSIR)
patented the active compounds of Hoodia without the knowledge or consent of the
San people.
• Pharmaceutical companies sought to commercialize Hoodia-based weight-loss
products, initially excluding the San from any financial benefits.
• After legal battles and media attention, a benefit-sharing agreement was reached,
ensuring that the San people received royalty payments and funding for
community development.
This case highlighted the importance of PIC and equitable benefit-sharing, reinforcing
the need for strong legal frameworks to protect indigenous rights under the CBD.

Challenges in Protecting Traditional Knowledge

Despite legal provisions under the CBD, several challenges persist:

1. Lack of Legal Enforcement

◦ Many countries lack strong domestic laws to implement CBD protections.
◦ Corporations often bypass regulations and exploit TK without consequences.
2. Biopiracy and Unauthorized Patents

◦ Pharmaceutical and biotech companies patent indigenous knowledge without

recognizing its origins.
◦ Many patents have been challenged, but legal battles are costly for indigenous
communities.
3. Limited Indigenous Participation in Policy-Making

◦ Indigenous communities often have little representation in international

negotiations on TK protections.
◦ Power imbalances between corporations, governments, and TK holders make
fair agreements difficult.
4. Commercialization vs. Cultural Rights

◦ Some indigenous communities prefer not to commercialize their knowledge

but are pressured to do so for financial survival.

34
◦ Balancing cultural preservation with economic benefits remains a complex
issue.

Recommendations for Strengthening TK Protection under the CBD

To enhance the protection of TK, the following steps should be taken:

1. Stronger National Legislation

◦ Countries should develop and enforce laws that criminalize biopiracy and
mandate indigenous approval for TK use.
2. Mandatory Disclosure in Patent Applications

◦ Patent applicants should be required to disclose the origin of genetic

resources and TK in their applications.
3. Increased Indigenous Representation

◦ Indigenous leaders should be included in CBD negotiations and national

policy-making processes.
4. Global Monitoring and Databases

◦ The Traditional Knowledge Information Portal should be expanded to track

unauthorized commercial uses of TK.
5. Community Education and Capacity-Building

◦ Indigenous communities should receive legal training and financial support

to defend their TK rights.

Conclusion

The CBD provides a strong foundation for the protection of traditional knowledge,
emphasizing prior informed consent, equitable benefit-sharing, and indigenous
participation. However, challenges such as biopiracy, weak enforcement, and power
imbalances continue to threaten indigenous knowledge systems.

To truly protect TK, governments, corporations, and international bodies must work
collaboratively with indigenous communities to enforce fair, transparent, and culturally
sensitive legal mechanisms. By doing so, the world can ensure that traditional knowledge
remains a vital, respected, and fairly compensated resource for future generations.

—————————————————————————————————————
—

Introduction

Technology transfer is the process by which technological knowledge, skills, innovations,

and expertise are shared across different entities, including countries, institutions, and
industries. It plays a crucial role in driving innovation, economic development, and
35
addressing global challenges such as environmental sustainability and public health. The
Convention on Biological Diversity (CBD) highlights the importance of technology transfer
in achieving its core objectives: conservation of biological diversity, sustainable use of its
components, and fair and equitable sharing of benefits arising from the utilization of genetic
resources.

Importance of Technology Transfer

1. Enhancing Global Innovation and Development

Technology transfer facilitates the dissemination of cutting-edge knowledge and practices,

enabling developing nations to benefit from advancements made in more technologically
advanced regions. This contributes to reducing the technological gap and promoting
sustainable development.

2. Environmental Conservation and Sustainable Use of Resources

Under Article 16 of the CBD, technology transfer is identified as a key mechanism for
achieving biodiversity conservation and sustainable resource utilization. Technologies such
as integrated pest management, sustainable forest management, and remote sensing help
monitor and protect biodiversity.

3. Economic Growth and Industrial Advancement

By enabling access to new technologies, developing nations can build industries around
them, fostering economic growth. The biotechnology sector, for instance, benefits
significantly from technology transfer, as it helps develop novel products and processes that
contribute to both economic and environmental sustainability.

4. Addressing Global Health Challenges

The transfer of biotechnological innovations is essential for improving healthcare and

combating global health crises. Advancements in medical research, pharmaceutical
developments, and healthcare technologies can be shared between nations to ensure
widespread access to life-saving treatments and preventive measures.

Role of Intellectual Property Rights (IPR) in Technology Transfer

Intellectual Property Rights (IPR) play a complex role in technology transfer. While they
protect innovation and provide incentives for research and development, they can also create
barriers to access, especially for developing nations.

• Encouraging Innovation: By protecting patents, IPR ensures that inventors and

companies receive adequate returns on their investments, motivating further research.

36
• Challenges for Developing Countries: Strict patent regulations may limit access to
essential technologies, making it difficult for developing nations to implement
necessary advancements in biodiversity conservation and healthcare.

• International Cooperation: Articles 16(3) and 16(4) of the CBD advocate for
legislative and policy measures that promote fair access to patented technologies for
developing nations.

Policy Measures and Strategies for Effective Technology Transfer

To maximize the benefits of technology transfer, the following strategies must be

implemented:

1. Encouraging Fair and Favorable Terms – Article 16(2) of the CBD emphasizes
that technology transfer should be provided under fair and concessional terms,
particularly for developing countries.

2. Capacity Building and Training – Enhancing the ability of recipient nations to

adapt and utilize new technologies effectively through education and technical
training programs.

3. Public-Private Partnerships – Collaboration between government institutions,

private sector entities, and research organizations can drive innovation and facilitate
technology dissemination.

4. IPR Flexibilities and Licensing Arrangements – Mechanisms such as compulsory

licensing and patent pools can help ensure that essential technologies remain
accessible to those who need them most.

Conclusion

Technology transfer is a fundamental component of global development, particularly in

achieving the objectives of the Convention on Biological Diversity. It bridges the gap
between developed and developing nations, fostering innovation, economic growth, and
sustainable environmental practices. While intellectual property rights serve to protect
innovation, a balanced approach must be adopted to ensure that they do not become barriers
to access. Through cooperative international policies and strategic implementations,
technology transfer can serve as a powerful tool for achieving equitable and sustainable
global progress.

—————————————————————————————————————
——

TRIPS: Article 27 – Patentable Subject Matter

Introduction

37
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is a
comprehensive international legal framework that sets minimum standards for the protection
and enforcement of intellectual property (IP) rights. It was negotiated as part of the World
Trade Organization (WTO) agreements and came into effect in 1995. Article 27 of TRIPS
specifically addresses patentable subject matter, laying down the fundamental rules
regarding what can and cannot be patented across member states. This provision aims to
harmonize global patent standards while allowing some flexibility for countries to tailor
their patent laws to national priorities and socio-economic needs.

Scope of Patentable Subject Matter

Article 27(1) of TRIPS establishes that patents shall be available for any inventions,
whether products or processes, in all fields of technology, provided they meet the three
essential criteria:

1. Novelty – The invention must be new and not previously disclosed to the public in
any form.
2. Inventive Step (Non-Obviousness) – The invention must not be an obvious
improvement or modification of an existing technology to a person skilled in the
relevant field.
3. Industrial Applicability (Utility) – The invention must be capable of industrial
application, meaning it can be used in some kind of industry, including agriculture,
medicine, and manufacturing.
This provision ensures that patents are granted based on merit and encourages innovation
across diverse technological fields. The emphasis on non-discrimination ensures that all
fields of technology, including pharmaceuticals, biotechnology, and artificial intelligence,
receive equal treatment under patent law.

Exclusions from Patentability

Article 27(2) and 27(3) allow WTO members to exclude certain subject matters from
patentability based on public interest, ethical concerns, and socio-economic considerations.

1. Protection of Public Order and Morality

Under Article 27(2), member states can deny patent protection to inventions that are
contrary to public order or morality. This includes technologies that may encourage illegal
activities, human exploitation, or environmental harm. However, the interpretation of this
exclusion varies by country, depending on their cultural and legal frameworks. For example,
some nations may refuse to patent human cloning technologies or genetically modified
human embryos due to ethical concerns.

2. Exclusion of Certain Life Forms and Biological Processes

Article 27(3) provides flexibility in excluding:

38
• Diagnostic, therapeutic, and surgical methods for the treatment of humans and
animals.
• Plants and animals (other than microorganisms) and biological processes for their
production, except for non-biological and microbiological processes.
This provision is particularly significant for developing countries concerned about the
ethical implications of biotechnological patents and the monopolization of genetic
resources. Countries can prevent biopiracy and ensure that indigenous knowledge and
biodiversity are not exploited by foreign corporations without proper benefit-sharing
mechanisms.

Implications for Developing and Developed Countries

1. Impact on Access to Medicines

One of the most debated aspects of Article 27 is its impact on access to affordable
medicines, particularly in developing nations. Since pharmaceutical patents are protected
under TRIPS, it limits the ability of low-income countries to produce or import generic
versions of essential drugs. This has led to calls for greater flexibilities in the agreement,
including the use of compulsory licensing under TRIPS Article 31, which allows
governments to authorize the production of generic medicines in situations of national
emergency or public health crises.

2. Biotechnology and Agriculture

The exclusion of plants and animals from patentability under Article 27(3) allows countries
to safeguard traditional knowledge and biodiversity. However, developed nations with
strong biotech industries advocate for broader patent protection, including genetically
modified organisms (GMOs), leading to international disputes over patent rights in
agriculture. There is growing concern over multinational corporations patenting genetically
modified seeds and imposing restrictions on farmers in developing countries.

3. Balance Between Innovation and Public Interest

While Article 27 aims to promote technological advancements by granting patent rights, it

also highlights the need for a balanced approach where patents do not become barriers to
public welfare, particularly in areas like healthcare and food security. Some countries have
taken steps to implement alternative mechanisms such as patent pools, open-source
licensing, and regional patent exemptions to address the inequalities arising from strict
patent laws.

Policy Measures and Legal Interpretations

The interpretation and implementation of Article 27 have been subject to various legal
challenges and policy debates. Some notable aspects include:

39
1. Compulsory Licensing and Parallel Importing – Countries can issue compulsory
licenses to produce patented products without the patent holder's consent in cases of
public necessity.
2. Patent Linkage and Data Exclusivity – Some developed countries have attempted
to link patent protection with regulatory approvals, potentially delaying the entry of
generic medicines.
3. Differential Patent Treatment for Developing Nations – Under the Doha
Declaration, least-developed countries were given extended deadlines to comply with
TRIPS provisions, particularly for pharmaceutical patents.
4. Patent Evergreening – Some companies engage in strategies to extend patent
monopolies by making minor modifications to existing drugs, raising concerns over
fair competition.
Conclusion

Article 27 of the TRIPS Agreement plays a critical role in defining the scope of patentable
subject matter while offering necessary exclusions to safeguard public interests. The
flexibility provided under the agreement enables WTO member states to tailor their patent
laws according to national priorities. However, debates continue over the fair application of
patent rights, particularly concerning access to essential medicines, biotechnology, and
indigenous knowledge. Future negotiations and policy adaptations may be required to
ensure that the TRIPS framework aligns with both innovation incentives and global socio-
economic needs. Ensuring equitable access to technology while promoting innovation
remains a crucial challenge for policymakers worldwide.

—————————————————————————————————————
——

Conflict Between the Convention on Biological Diversity (CBD) and the Trade-Related
Aspects of Intellectual Property Rights (TRIPS) Agreement

Introduction

The conflict between the Convention on Biological Diversity (CBD) and the Trade-Related
Aspects of Intellectual Property Rights (TRIPS) Agreement represents a major contradiction
in global policy. The CBD, which came into force in 1993, aims to promote biodiversity
conservation, sustainable use of biological resources, and fair and equitable benefit-sharing.
TRIPS, on the other hand, is a 1995 WTO agreement that enforces intellectual property
rights (IPRs), including patents on biological resources and traditional knowledge. While
CBD recognizes the collective rights of indigenous and local communities, TRIPS enforces
private monopolies over biodiversity-related knowledge, leading to deep-seated legal and
ethical conflicts.

Core Areas of Conflict

1. Ownership and Sovereignty Over Biological Resources

40
CBD recognizes national sovereignty over biological resources and mandates that access to
these resources should be based on prior informed consent and mutually agreed terms
(Article 15). This provision ensures that countries maintain control over their genetic
resources and that any commercial use must benefit the source country. TRIPS, however,
pushes for a global standard of private ownership through patents, undermining national
control and local community rights. This results in a system where corporations and
individuals from developed nations can claim ownership over biodiversity that has been
nurtured by indigenous communities for centuries.

2. Intellectual Property Rights vs. Community Rights

CBD acknowledges the role of indigenous and local communities in preserving biodiversity
and ensures their rights over traditional knowledge (Article 8j). These communities have
developed and maintained plant varieties, medicinal practices, and agricultural techniques
over generations. However, TRIPS allows patents on life forms and related knowledge
without necessarily recognizing community contributions. This leads to the privatization
and monopolization of shared knowledge, often without any compensation or recognition
for the communities that have preserved and nurtured these biological resources.

3. Access and Benefit-Sharing (ABS) vs. Patent Protection

One of CBD’s major principles is benefit-sharing, which ensures that communities

providing genetic resources receive fair compensation. This can take the form of royalties,
capacity-building initiatives, or knowledge exchange. However, TRIPS does not have
provisions to enforce equitable benefit-sharing and instead allows corporations to patent
genetic resources and profit without necessarily compensating source communities. This
often results in a situation where the communities that have protected and maintained
biodiversity are excluded from the economic benefits that arise from its commercialization.

4. Restrictions on Biopiracy

CBD aims to curb biopiracy by ensuring that the exploitation of biological resources and
associated knowledge follows ethical and legal guidelines. The agreement promotes prior
informed consent and benefit-sharing arrangements. However, TRIPS facilitates biopiracy
by allowing companies to patent naturally occurring genes, plants, and traditional medicinal
knowledge without recognizing their original sources. This has led to several controversial
cases where companies and research institutions have patented plant varieties and medicinal
compounds that have been used for centuries by indigenous communities, effectively
denying them access to their own knowledge.

5. Patents on Life Forms and Genetic Resources

TRIPS Article 27.3(b) mandates that all member states provide IPR protection for plant
varieties, either through patents or sui generis systems. This provision has been highly
controversial, as it forces countries to provide private ownership rights over biological
resources, even when such ownership contradicts traditional community rights. CBD
41
opposes such provisions, arguing that life forms and genetic resources should not be
privatized but rather used for the common good under national and community rights. Many
developing countries argue that traditional knowledge and biological diversity should
remain in the public domain rather than being subject to corporate monopolization.

Impact on Developing Countries

Developing nations, which are rich in biodiversity but often lack strong IPR frameworks,
face major challenges due to TRIPS. The agreement pressures them to implement patent
laws that may favor multinational corporations over local communities. This results in:

• Loss of control over indigenous genetic resources: Countries and communities lose
the ability to regulate and benefit from their own biodiversity.
• Increased costs of accessing seeds, medicines, and other biodiversity-based
products: The enforcement of patents increases the price of essential goods that were
traditionally accessible to all.
• Legal disputes over ownership of traditional knowledge: Communities often lack
the resources to contest patents granted to foreign corporations.
• Reduction in traditional farming practices due to patents on plant varieties:
Farmers are restricted from saving and exchanging seeds, leading to greater
dependence on corporate-controlled seeds and agricultural inputs.
Case Studies of CBD-TRIPS Conflicts

Several high-profile cases highlight the conflict between CBD and TRIPS:

1. Neem Patent Case (India): The neem tree has been used in India for centuries for its
medicinal and pesticidal properties. A U.S. company was granted a patent on neem-
related products, which was later revoked after legal challenges based on traditional
knowledge.
2. Turmeric Patent Dispute: Turmeric has long been used in India for medicinal
purposes. A U.S. patent on turmeric’s wound-healing properties was challenged and
revoked, as the knowledge was found to be traditional and not novel.
3. Basmati Rice Patent Controversy: A U.S. company attempted to patent a variety of
basmati rice, a traditional staple in South Asia, leading to widespread protests and
legal actions.
Proposed Solutions to Reconcile CBD and TRIPS

1. Recognizing CBD’s Primacy Over TRIPS: Governments should affirm in law that
national and community rights over biodiversity take precedence over corporate
intellectual property claims.
2. Exclusion of Life Forms from Patentability: TRIPS should be revised to allow
countries the option to exclude all life forms and related knowledge from patent
systems.
3. Strengthening National ABS Laws: Countries should implement stronger access
and benefit-sharing regulations to ensure fair compensation for biodiversity-related
knowledge.
42
4. Supporting Community Rights Over Biodiversity: Indigenous and local
communities should be granted legal protection over their traditional knowledge and
biodiversity resources.
5. Reforming TRIPS Article 27.3(b): This provision should be reviewed to align with
CBD’s objectives and prevent the privatization of genetic resources.
6. Promotion of Open-Source and Commons-Based Approaches: Alternative legal
frameworks such as open-source biotechnology and commons-based licenses can
help protect biodiversity without resorting to corporate monopolies.
7. International Legal Harmonization: A global consensus should be established to
ensure that trade agreements do not override environmental and community rights
treaties like the CBD.
Conclusion

The conflict between CBD and TRIPS is a pressing issue that needs immediate global
attention. While TRIPS protects corporate interests by enforcing strict IPR regimes, CBD
ensures that biodiversity remains a shared resource benefiting all. To harmonize these
agreements, policymakers must prioritize biodiversity conservation, fair benefit-sharing,
and the rights of local communities over commercial monopolies. Unless proactive
measures are taken, TRIPS will continue to undermine the goals of CBD, leading to
increased biopiracy and the monopolization of genetic resources by multinational
corporations. The need for policy reforms and international cooperation is critical to ensure
that biodiversity remains a global commons rather than a privately owned commodity.

————————————————————————————————————

UPOV Convention

—————————————————————————————————————

International Treaty on Plant Genetic Resources for Food and Agriculture

43