Countering Biological Piracy: A Revolutionary New Bill
(Submission to the Standing Committee examining the
Biological Diversity Bill 2000)
Ashish Kothari
Kalpavriksh, Pune
Summary: The note below
(Section 1) points out that the Biological Diversity Bill 2000 is a progressive
bill, and has the potential for protecting India's biological resources and
knowledge from being destroyed and stolen. The note points out several of the progressive
provisions in the Bill (Section 2). However, there are also some lacunae
and weaknesses, which need to be plugged before the Bill is enacted. These
lacunae are pointed out in the note (Section 3). Finally, for effective implementation,
there is a need to quickly go into the exercise of framing subsidiary rules
and guidelines, which are listed below (Section 4).
Section 1. Introduction
The Biological Diversity Bill
(BDB) 2000, is a potentially revolutionary act. With some modifications, appropriate
rules and guidelines, and proper implementation, the BDB could:
1. Protect India's biological resources from being
destroyed and stolen, and thereby protect the country's ecological security;
and
2. Empower the country's exploited forest-dwellers,
fisherfolk, farmers, pastoralists, and healers to take part in natural resource
management, and to gain long-overdue recognition and benefits.
We in India have long become
used to news of foreigners taking away our genetic material (crops, medicinal plants,
micro-organisms), and the traditional knowledge related to these, and then
claiming their intellectual ownership over them or related products. Basmati,
neem, turmeric…the list is long. Last year the Indian Government won a
significant victory in getting a completely ridiculous patent on turmeric in
the USA revoked; this year NGOs managed to get neem-based patents revoked in
Europe. Such victories, however, remain piecemeal responses; the deeper problem
is that we have had no legal and administrative arrangements which could
prevent biopiracy in the first place. The BDB now provides the framework for
tackling such theft, as also for moving towards the conservation and
sustainable use of plants and animals, including crop and livestock diversity.
Section 2. Progressive
Elements of the Bill
The BDB will help in
conservation of biodiversity, sustainable use of biological resources, and
equity in the use and benefits from such use of resources, through its various
provisions. In particular, the following progressive elements need to be
highlighted:
1. Prohibition on
transfer of Indian genetic material outside the country, without
specific approval of the Indian Government through a due process (Chapters
II and V);
2. Stipulation that anyone wanting to take a patent or
other intellectual property right (IPR) over such material, or over related
knowledge, will have to seek permission in advance (Articles 6 and 18(4));
3. Provision for the levying of appropriate fees and
royalties on such transfers and IPRs (Articles 6(2) and 19(3));
4. Regulation of access to such material by Indian
nationals also, to stop over-exploitation (e.g. of medicinal plants), while
exempting local communities from unnecessary restrictions (Article 7);
5. Provision of measures for the equitable sharing of
benefits of various kinds, including transfer of technology, monetary returns,
joint R&D, venture capital funds, and joint IPR ownership (Article 21);
6. Provision of measures to conserve and sustainably use
biological resources, including habitat and species protection (such as
declaration of Biodiversity Heritage Sites), environmental impact assessments
(EIAs) of all projects which could harm biodiversity, integration of
biodiversity into all sectoral plans, programmes, and policies (Articles 36,
37, 38);
7. gives local communities a say in the use of resources
and knowledge within their jurisdiction, and to charge fees from parties who
want to use these resources and knowledge (Article 41);
8. provides for the protection of indigenous knowledge,
through appropriate legislation or administrative steps such as registration at
local, state, and national levels (Article 36(4));
9. stipulates that risks associated with the use of
genetically modified organisms, will be controlled through appropriate means (Article
36(3ii);
10. provides for the designation of institutions as
repositories of biological resources (Article 39);
11. Setting up of National, State, and Local Biodiversity
Funds, to be used to support conservation and benefit-sharing (Articles 27,
32, 43);
12. Overall, the BDB helps India to follow up on its
obligations and commitments under the U.N. Convention on Biological Diversity,
a legally binding international treaty that India was one of the first
countries to sign and ratify.
Section 3. Lacunae in
the Bill, and Ways to Deal with Them
The following lacunae and
weaknesses also exist in the BDB, which require appropriate modifications in
the draft before it is enacted:
1. By far the most serious defect is the exemption given
(Article 6(3)) to persons applying for rights under laws relating to the
protection of plant varieties. Specifically, this would relate to the
Protection of Plant Varieties and Farmers' Rights Bill 1999 (which is also
currently in Parliament), which will, once enacted, provide corporations and
scientists who are breeding new varieties of crops, to gain intellectual
property rights. Article 6(3) is an anti-people and anti-biodiversity
provision. The Plant Varieties Bill as it is currently drafted, does not
provide for adequate protection of farmers' varieties and knowledge, or for
prior consent from farmers or compulsory and direct benefit-sharing
arrangements where farmers' varieties or knowledge is used. Exempting persons
who gain IPRs through the Plant Varieties Bill, from the provisions of the BDB,
will only provide a loophole for corporations and others to continue taking the
varieties and knowledge of farmers without due respect, acknowledgement, and
sharing of benefits. This exemption must be removed, and all persons
approaching the government for IPRs under the Plant Varieties Bill must also be
required to conform to the provisions of the BDB.
2. The other serious defect is that the BDB does not
provide citizens with the power to approach courts if they detect violations.
Only official agencies have been given this power (Article 59). Such a
power is available to citizens in all other environmental acts, so there is no
reason to exclude it from the BDB. Indeed, the final expert committee draft of
the BDB presented to the MoEF contained such a locus standi to citizens.
The provision for citizens to approach the courts must be re-inserted.
3. The BDB is unnecessary soft on Indian corporate and
other entities, requiring only "prior intimation" for the use
of bioresources (Article 7), rather than permission as in the
case of foreigners. This is unjustified, given that Indians (especially
industrial corporations) are not necessarily any more responsible towards the
environment or towards local communities. It is important that corporate and
other formal sector entities, e.g. pharmaceutical companies, seek prior
permission before exploiting medicinal plants and other biological resources,
and also engage in direct benefit-sharing with local communities.
4. Also in the case of corporate sector use of biological
resources, the BDB does not include a revenue-generating provision. A provision
for a biodiversity tax on industries using biological resources, should
be included; the proceeds from this can go to one of the appropriate Funds set up
by the BDB;
5. The empowerment of local community bodies under the
BDB is somewhat incomplete. Communities do not have their own right to enforce
protection of their knowledge or generate benefits (except charging collection
fees), they remain dependent on the National Biodiversity Authority and the
State Biodiversity Boards to ensure this. Also, there is no explicit
requirement to include local community representatives on the State
Biodiversity Boards. Article 22(4) only includes non-governmental
"experts", a term that may leave out members of local communities
unless specifically defined to include them. The following changes are
needed:
5.1 Article 41(2) should be modified to read: "The
National Biodiversity Authority and the State Biodiversity Boards shall seek
the concurrence of the Biodiversity Management Committees while taking any
decision…" (rest remains the same).
5.2 Article 22(4) should include a provision for at least
3 members who are farmers, fisherfolk, adivasis, or other local community representatives
who have experience with conserving and sustainably using biodiversity
resources.
6. It is strange that the BDB specifies a location for
the National Biodiversity Authority (NBA), viz., Chennai (Article 8(3)).
It is unusual for a law to specify such a thing, as it unnecessarily binds the
decision of location forever, and any change in location would require an
amendment in law. The location of the NBA should be left unspecified.
7. The BDB does not contain a requirement for the
national and state governments to provide a periodic update on the state of
biodiversity in the country or in each state. A provision for a periodic (every
2-3 or so) report on the State of India's Biodiversity, and similarly
for each state, should be included in the BDB (however, this could also be
included as a subsidiary rule subsequent to the enactment of the law).
Section 4. Future
Steps: Rules and Guidelines under the Bill
There are many complex issues
in implementing the BDB, which will need to be tackled through subsidiary rules
and guidelines, including:
1. Clear contractual agreements for the transfer of
genetic resources and related knowledge, and for the sharing of benefits;
2. Guidelines on research agreements, which, being exempt
from some of the provisions of the Bill, will have to be strictly regulated;
3. Clearcut procedures for Indian entities to intimate
SBBs on proposed use of bioresources, and for states to be able to control
over-exploitation, especially by industrial houses;
4. Guidelines for distributing the benefits within and
between communities, taking into account problems of political, economic, and
gender inequities;
5. International networking to ensure that the use by
foreigners of our resources and knowledge, is tracked, and that misuse is
quickly detected and tackled;
6. Modifications in existing EIA procedures, to integrate
all biodiversity aspects;
7. Guidelines for periodic assessment of national
policies and laws (e.g. on agriculture and industry) from the biodiversity
point of view;
8. Measures for legal protection of registers and
databases of local community knowledge;
9. Procedures to ensure transparency and public
accountability in the functioning of the NBA, SBBs, and BMCs; and
10. Further powers to local bodies to manage their
biological resources and protect community or individual knowledge, and
capacity-building to use these powers.
In conclusion, I would
reiterate that the Biological Diversity Bill 2000 is a progressive and
much-needed legislation, and should be enacted as fast as possible, with the
necessary modifications suggested above.
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Ashish Kothari
Kalpavriksh, Aptmt. 5, Shree
Dutta Krupa, 908 Deccan Gymkhana, Pune 411004
Tel/fax: 020-5654239; Email:
[email protected]
1 September, 2000