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The Convention on Biological Diversity (CBD) is the first global comprehensive agreement to address all aspects of biological diversity, including conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of benefits arising from its use. The Convention was signed by nations during the 1992 Rio Earth Summit. Since its entry into force in 1994, the CBD has been ratified by 180 Parties. India is a Party to the Convention on Biological Diversity.
One of the three objectives of the Convention on Biological Diversity, as set out in its Article 1, is the “fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources to technologies, and by appropriate funding.”
A framework for the implementation of this third objective of the Convention with respect to access to genetic resources is provided in Article 15 of the Convention. In addition, Article 8(j) contains provision to encourage the equitable sharing of the benefits arising from utilization of knowledge, innovations and practices of indigenous and local community embodying traditional lifestyles relevant for conservation and sustainable use of biological diversity.
Access to genetic resources and sharing of benefits arising out of the use of these resources form the core of the CBD. However, operationalising the benefit sharing provisions of the CBD has been beset with many complexities, and therefore not much progress could be made in implementation of this core objective of the CBD even after ten years of entry into force of the Convention.
While CBD envisages that access to genetic resources and realization of benefits is subject to national legislation through formalization of prior informed consent (PIC) and mutually agreed terms (MAT), India has been emphasizing that such national action alone is not sufficient to ensure realization of benefits to the country of origin or provider country. This is particularly so in cases where genetic material sourced from one country is utilized in another country for developing products and processes on which patent protection is obtained. The onus of benefit sharing must also be shared by the user country to create an enabling environment and confidence through legislative measures so as to ensure compliance of PIC stipulations and equitable sharing of benefits as visualized in the Convention.
To ensure this, India, along with the support of other like-minded developing countries, has been advocating in various international fora including that of CBD, WTO (World Trade Organisation) and WIPO (World Intellectual Property Organisation), that Article 29 of the TRIPs (Trade-Related Aspects of Intellectual Property Rights) agreement dealing with disclosure in patent application should require mandatory disclosure in patent application of the origin of biological resources / traditional knowledge used in the technological invention, and an undertaking that the prevalent laws and practices of the country of origin have been respected. Incorporation of such a provision would reconcile the inherent contradictions in the provisions of TRIPs and CBD.
At the national level, India has enacted the Biological Diversity Act (2002), which provides that prior approval of National Biodiversity Authority is necessary before applying for any kind of intellectual property rights (IPRs) based on any research or information on a biological resource obtained from India. Further, the Patents (Second Amendment) Act provides for disclosure of the source and geographical origin of the biological material / associated knowledge, used in an invention. It also provides for opposition to the grant of patent or revocation of the patent in case of non-disclosure or wrongful disclosure of source of biological material and associated knowledge.
At the international level, the proposal has not yet met with success in the TRIPs Council, though India along with other developing countries is still pushing hard with these arguments.
As a result of India’s strong arguments in meetings under the aegis of the CBD as well as in WSSD (World Summit on Sustainable Development), the 7th Conference of Parties (CoP-7) to the CBD took a landmark decision regarding development of an international regime on access and benefit sharing, after almost ten long years of entry into force of the Convention.
Recognizing the urgent need to develop human resources, capabilities, and legal and public policy to enable countries rich in biodiversity to take an active part in the new economy associated with the use of biological diversity and biotechnology, seventeen countries rich in biological diversity and associated traditional knowledge have formed a group known as the Like Minded Megadiverse Countries (LMMCs).
These countries are Bolivia, Brazil, China, Colombia, Costa Rica, Democratic Republic of Congo, Ecuador, India, Indonesia, Kenya, Madagascar, Malaysia, Mexico, Peru, Philippines, South Africa, and Venezuela. The LMMC Group, which holds nearly 60-70% of all biodiversity, is now well recognized as an important negotiating block in the UN and other international fora.
The LMMCs will meet here from 17th to 21st January 2005 to discuss the issues relating to access to genetic resources and associated knowledge, intellectual property rights (IPRs) in relation to biological resources, and traditional knowledge. The meeting, being hosted by India in its capacity as the President of the Group, will help in evolving a common position of the LMMCs for developing an international regime on Access and Benefit Sharing (ABS) and is expected to result in finalization and adoption of the New Delhi Ministerial Declaration of LMMCs on ABS.
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