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QUESTION BANK
1. Explain the salient features of Biological Diversity Act, 2002.
2. Convention on Biological Diversity.
3. Write brief note on Biodiversity.
4. Biological Diversity.
5. Explain meaning of Biological Diversity and discus the relation between biological diversity and Intellectual Property Right.
Short Notes
1. Convention on Biological Diversity.
SYNOPSIS
II. Definition and Meaning of Biological Diversity
1. Article 2 of the Convention on Biological Diversity (CBD) defines it as follows:
2. Section 2(b) of the Biological Diversity Act, 2002 defines it as follows:
III. Conventions on Biological Diversity at the International Level
A. Convention on Biological Diversity (CBD) 1992
B. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994
IV. Biological Diversity Act, 2002
A. Objects of the Act
B. Salient Features of the Act
1. Restriction on access to biological resources:
2. Conservation and sustainable use:
3. Respect for traditional knowledge:
4. Sharing of benefits:
5. Developing biological diversity heritage: 6. Species rehabilitation:
7. Constitution of Committees:
C. Important Provisions of the Act
a. Biological Diversity (Section 2(b)):
b. Biological Resources (Section 2(c)):
c. Benefit Claimers (Section 2(a)):
2. Regulations and Access to Biological Diversity
(b) Limitations on the transfer of research results (Section 4)
(c) Limitation on seeking intellectual property rights (Section 6)
3. Equitable Sharing of Benefits (Section 21)
4. Biodiversity Heritage Sites (Section 37)
5. Biodiversity Funds (Sections 27, 32, and 43)
6. Authorities Under the Act
7. Punishments
D. Relation Between the Biological Diversity Act, 2002 and Intellectual Property
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The Earth's biological resources are absolutely vital for humanity's social and economic development. Biological diversity serves as a global asset of monumental value to both present and future generations. However, in recent times, global biodiversity has faced unprecedented threats at a scale never seen before in human history. It is highly imperative to protect biodiversity to ensure the sustainable development of human civilization. Safeguarding biological diversity is essential because it is inextricably linked with the survival of humanity and its progressive development. Without actively protecting the environment and conserving biodiversity, sustaining human life on Earth will become exceedingly difficult.
Biodiversity forms the foundational basis of all life on planet Earth. The Earth's biosphere consists of a functional structure of diverse ecosystems, which compose complex, interdependent partnerships. Biodiversity is a comprehensive, general term relating to many environments and species, encompassing forests, marine life, freshwater bodies, soil systems, agricultural crops, plants, animals, and microorganisms.
The meaning of biological diversity is understood through established international frameworks and corresponding domestic laws:
1. Article 2 of the Convention on Biological Diversity (CBD) defines it as follows: "Biological diversity" means the variability among living organisms from all sources, including, among other things, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.
2. Section 2(b) of the Biological Diversity Act, 2002 defines it as follows: "Biological diversity" means the variability among living organisms from all sources and the ecological complexes they are part of and includes diversity within species or between species and eco-systems.
In conclusion, biological diversity denotes the absolute variability and diversity of all life forms on Earth. It encompasses the various genetic variations, races, and unique species of all microbes, plants, and animals that coexist on Earth, as well as their intricate genetic differences. Thus, biodiversity encompasses the variety of all life on Earth.
Various robust efforts have been made to protect biological diversity at the international level. While Article 27 of the Universal Declaration of Human Rights (UDHR) in 1948 Favors the protection of human intellectual property rights, international law simultaneously recognizes the critical need to protect the rights of indigenous people regarding the natural resources located on their ancestral lands. Indigenous peoples are entitled to the full recognition, ownership, control, and protection of their cultural and intellectual property. They possess the inherent right to special measures to control, develop, and protect their sciences, technologies, and cultural manifestations, including human and other genetic resources, traditional seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, industrial designs, and visual or performing arts.
Traditional knowledge is a vital attribute of biological diversity and serves as an important source for global sustainable development. However, due to the exponentially increasing commercial demand for bio-products, the uncontrolled commercialization of traditional knowledge has adversely affected the livelihoods of conventional, knowledge-holding societies. It has also caused a severe threat to global biodiversity. Various foreign firms and individuals-initiated acts of bio-piracy by obtaining unauthorized patents on long-standing traditional knowledge. Notable examples include foreign entities obtaining patents on the medicinal and agricultural uses of turmeric, basmati rice, and neem, despite these products and their traditional applications originating from India.
Consequently, a pressing need was felt to protect traditional knowledge and domestic bio-resources. Developing countries actively raised their voices to protect these assets at international forums. Therefore, in 1985, the World Intellectual Property Organization (WIPO) and UNESCO jointly adopted a model law designed to protect expressions of folklore against illicit exploitation and other prejudicial commercial actions. Similarly, in 1989, the Food and Agriculture Organization (FAO) of the United Nations introduced the concept of Farmers' Rights within its International Undertaking on Plant Genetic Resources. Subsequently, the Convention on Biological Diversity (CBD) of 1992 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994 have played very important roles in the assessment, benefit-sharing, and protection of traditional biodiversity knowledge.
The United Nations Convention on Biological Diversity, 1992, has been ratified by 194 countries with the following primary statutory objectives:
(i) the conservation of biological diversity,
(ii) the sustainable use of the components of biological diversity, and
(iii) the fair and equitable distribution of benefits arising out of the utilization of genetic resources, alongside the appropriate transfer of relevant technology.
The Convention explicitly recognizes the sovereign rights of nation-states to exploit and manage their own biological resources. Concurrently, the Convention expects contracting parties to facilitate access to genetic resources by other member states for environmentally sound purposes. The framework formally recognizes the monumental contribution of local and indigenous communities to the conservation and sustainable utilization of biological diversity through their traditional knowledge, innovations, and practices. Under Article 8(j), it mandates the equitable sharing of benefits arising from the utilization of such traditional knowledge, practices, and innovations with the respective indigenous communities.
Articles 27(2) and 27(3) of the TRIPS Agreement contain the most critical international provisions regarding the protection of biological diversity. According to Article 27(2), member states may exclude certain inventions from patentability, and prevent their commercial exploitation within their territory, if such prevention is necessary to safeguard public order or morality, or to avoid serious prejudice to human, animal, or plant life, or to prevent serious prejudice to the environment.
Furthermore, under Article 27(3)(b), members may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.
In other words, these international exceptions from patenting allow sovereign states to exclude a wide range of natural biological products from patents and other intellectual property rights, thereby protecting biological diversity from predatory commercial exploitation. Because patenting grants an exclusive right of commercial monopoly, these provisions empower states to exclude natural genes, native plant varieties, and traditional plant breeders from unauthorized commercial exploitation by corporate entities.
While international frameworks provide global standards, the Indian Parliament enacted the domestic Biological Diversity Act, 2002 to systematically protect and regulate biodiversity within India.
The statement of objects and reasons for the enactment of this legislation includes the following parameters:
The Biological Diversity Act, 2002 exhibits the following core features:
1. Restriction on access to biological resources: The Act comprehensively regulates access to the country's biological resources to secure an equitable share in the benefits arising from the commercial use of these resources and the associated knowledge relating to biological research.
2. Conservation and sustainable use: It mandates active state mechanisms to conserve and sustainably utilize biological diversity.
3. Respect for traditional knowledge: It ensures respect, preservation, and practical application of the traditional knowledge held by local communities relating to biological diversity.
4. Sharing of benefits: It establishes a clear legal structure to secure the fair sharing of commercial benefits with local people, recognizing them as the primary conservers of biological resources and the traditional holders of knowledge relating to their use.
5. Developing biological diversity heritage: It provides for the conservation and development of ecologically fragile areas by declaring them officially as biological diversity heritage sites.
6. Species rehabilitation: It mandates the active protection, conservation, and environmental rehabilitation of threatened or endangered species.
7. Constitution of Committees: It actively involves institutions of local self-government (such as Panchayats and Municipalities) in the broad scheme of implementing the Act through the statutory constitution of local committees.
The Act relies on specific statutory definitions to enforce its regulatory mechanisms:
a. Biological Diversity (Section 2(b)): "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 eco-systems.
b. Biological Resources (Section 2(c)): "Biological resources" means plants, animals, 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.
c. Benefit Claimers (Section 2(a)): "Benefit claimers" means the conservers of biological resources, their by-products, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application.
No person who is (i) a citizen of India but a non-resident (NRI), (ii) a body corporate, (iii) an association, or (iv) an organization not incorporated or registered in India, or (v) a corporation registered in India which has any non-Indian participation in its share capital or management, shall, without the previous formal approval of the National Biodiversity Authority (NBA), obtain any biological resource occurring in India or any associated knowledge for the purposes of research, commercial utilization, bio-survey, or bio-utilization.
Similarly, Section 4 strictly prohibits any person from transferring the results of any research relating to biological resources occurring in or obtained from India for monetary consideration or otherwise to (i) any person who is not a citizen of India, (ii) a citizen of India who is a non-resident, or (iii) a body corporate or organization not registered or incorporated in India, or (iv) an entity which has any non-Indian participation in its share capital or management, without securing the previous approval of the National Biodiversity Authority. However, the publication of technical research papers or the dissemination of knowledge in public seminars and workshops is entirely permissible, provided it complies with the official guidelines issued by the Central Government.
Any individual or entity seeking any form of intellectual property right (such as a patent) inside or outside India for an invention based on any biological research or information obtained from a biological resource native to India is mandatorily required to obtain prior permission from the National Biodiversity Authority under Section 6.
Conversely, under Section 5, collaborative research projects that have been expressly approved by the Central Government are exempted from seeking permission from the National Biodiversity Authority. Furthermore, under Section 7, Indian citizens, domestic corporations, and local associations registered in India are required to give prior intimation to the respective State Biodiversity Boards (SBB) before obtaining biological resources for commercial utilization. Crucially, local people and indigenous communities in the area, including traditional practitioners such as Vaids and Hakims, are completely exempted from these statutory restrictions.
The National Biodiversity Authority is legally empowered to formulate and determine the specific ways and means of monetary and non-monetary benefit-sharing among the persons who have grown, cultivated, and conserved the biological resources. The benefits can be structured and shared in the following manners:
(i) The grant of joint ownership of intellectual property rights to the National Biodiversity Authority, or directly to the identified benefit claimers.
(ii) The formal transfer of advanced manufacturing technology to domestic entities.
(iii) Directing the commercial location of production, research, and development units within such local areas to facilitate better living standards for the benefit claimers.
(iv) Forming a functional association of Indian scientists, benefit claimers, and local citizens for joint research, bio-surveys, and bio-utilization.
(v) Setting up a venture capital fund to financially aid the cause of local benefit claimers.
(vi) The direct payment of monetary compensation and other non-monetary benefits to the benefit claimers as the National Biodiversity Authority deems fit.
Where any monetary benefit-sharing is ordered from an applicant, the National Biodiversity Authority may direct the money to be deposited directly into the centralized National Biodiversity Fund.
In direct consultation with local bodies, State Governments are empowered to officially identify, notify, and protect areas of unique biodiversity importance as statutory Biodiversity Heritage Sites (BHS).
To ensure smooth financial management, the Act has established three distinct tiers of funding: the National Biodiversity Fund, the State Biodiversity Fund, and the Local Biodiversity Fund. These funds are deployed to financially benefit bona fide claimants, conserve and promote biological resources, and support the socio-economic development of the local areas.
The Act creates a powerful, three-tiered institutional structure to carry out its statutory objects:
(i) The National Biodiversity Authority (NBA) established at the central level under Section 8.
(ii) The State Biodiversity Boards (SBB) established at the state level under Section 22, with distinct functions under Section 23 and regulatory powers under Section 24.
(iii) The Biodiversity Management Committees (BMC) constituted at the local self-government level.
Sections 55, 56, 57, and 58 lay down stringent criminal penalties for violations committed by individuals, associations, or corporate entities. Under Section 58, any contravention of the Act—specifically relating to the unauthorized extraction of biological resources and acts of bio-piracy—has been made a cognizable and non-bailable offence. Under Section 55, the Act provides for severe criminal punishments extending up to five years of imprisonment and a fine of up to ten lakh rupees, or even higher if the environmental damage caused exceeds ten lakh rupees.
The provisions of the Biological Diversity Act, 2002 were explicitly drafted to strike a sustainable balance between the commercial interests of intellectual property rights holders and the ecological preservation of biodiversity. By mandating that no person can obtain biological resources or transfer research results to foreign entities without the prior approval of the National Biodiversity Authority, the Act prevents the bio-piracy of India's natural wealth.
The statutory creation of national, state, and local funds ensures that the financial gains derived from IPR monopolies flow back to protect the indigenous communities who preserved the resources. At the same time, the Act actively promotes scientific progress by exempting approved collaborative research projects and providing clear statutory pathways for the legal transfer and exchange of biological resources and technical information between global institutions and sovereign governments.
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