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Introduction Intellectual Property Rights (IPRs) have the potential to influence almost every sphere of human creativity. In recent times this topic has been generating wide - ranging discussions and debate. In India, there is an increasing awareness on the issues and implications of the new trade regime brought about by the World Trade Organisation (WTO) and the inclusion of Intellectual Property Rights (IPRs) within its purview. India is currently continuing
her efforts towards globalisation and liberalisation of trade. The consequent
readjustments in the economic, industrial, legal and R&D policies are
generating a wide range of concerns and speculations. The issues relating
to biodiversity, genetic engineering, environmental safety, agriculture
and food security have been widely debated and yet, many aspects in these
areas remain unclear and underestimated. These issues are yet to
be fully understood and therefore the process of policy response has to
rely on case studies, public debates and impact assessments.
India - Some Basic Facts and Figures India’s population has crossed 1 billion by the dawn of this millennium. Despite the wide socio-economic range of this large population, India has a significant resource of science and technology personnel. The national investment in R&D is 82% of GNP of which 73% comes from the Government (Central and State) and only 16% are funded by private industries. Over 64% of India's population is directly engaged in agriculture and a good proportion of the population is indirectly dependent on agriculture which in this country is more than an economic activity. It is a way of life and the basis for the social fabric of rural India. Agricultural production accounts for 31% of the GDP. Globally, India is the largest producer of tea, second largest producer of rice, fruits, vegetables and sugar, third largest producer of cereals, fourth largest producer of wheat and major oilseeds and fifth largest producer of cotton. India is one of the 12-mega diversity of the sites in the world. The country is known to have over 47,000 plant and 75,000 animal species. About 15,000 species of plants have been identified as very important from the point of view of medicinal and economic value. Over 400 formulation of different herbal medicines are already in the market. The country is a repository of not only biodiversity, but also a rich diversity of traditional knowledge and alternate systems of medicine. These systems have played a significant role in conserving the natural biodiversity and in diversified agricultural practices Historical perspective
of IPR in India
The Indian contribution to the global pool of patents is insignificant while there are about 33 million patents published worldwide and about half-a million is added every year. As Dr.R.A.Mashelkar, Director General of CSIR puts it, there has been no culture of patenting in India. Today, the patent awareness in India is on the rise. This is largely due to the imperative to comply with the provisions of WTO. It is not surprising therefore that the last five years has seen a vigorous drive on patenting and encouragement of innovative R&D. The country as a whole recognises an urgent need to foster innovation and creativity to meet the challenges of this new regime. Following the signing
the GATT agreement in 1994 and the Convention on Biological Diversity in
1992, India is pursuing efforts to put in place the necessary legal framework.
At the same time, India is also examining the implications of this convention
vis-a-vis other agreements executed earlier such as the TRIPS and avoid
inconsistencies.
India is a signatory to the following conventions relating to IPR. Bern Convention for Copyright
1886
India is a founder member of WTO and is therefore a party to TRIPS agreement under GATT, which came into force on 1.1.95. Being a developing country India was entitled to a transition period of five years up to 1.1.2000 for most provisions of TRPS. An important exception is the introduction of product patents in areas of technology not covered so far, for which time is available up to 1.1.2005. The patent amendment bill, 1999 is the second amendment to the Indian Patent Act, 1970 and is expected to fulfil these requirements. The Indian Patents Act 1970 does not allow the patenting of plants or animals or microorganisms. Although it does not contain any such specific exclusion, the definition of an invention seems to exclude microorganisms. However, under the article 27.3(b) of the TRIPs agreement, India is obliged to introduce patents for new varieties of plants or have an effective sui generis law to protect them. For product patents on microorganisms and non-biological processes, India has time up to 1.1.2005. These requirements are not consistent with the requirements of CBD of which India is a signatory. The Biological
Diversity Bill, 2000 has been introduced to implement the provisions of
the CBD in India. This Bill is pending consideration shortly at the
monsoon session of the parliament. The salient features of this Bill include:
The protection of plant varieties (PPV) and Farmers' Rights Bill is also pending consideration by the Parliament at its monsoon session. This bill strives to stimulate investments for the growth of the seed industry, ensure plant breeders' rights as well as farmers' rights. Debatable Issues
1. Biodiversity and genetic resources - Private protection versus Communal rightsDeveloping countries are generally biodiversity - rich countries and developed countries are biodiversity- poor countries. The value of biodiversity is now very well recognised and that bioresources and biodivesity essentially serve as feed stock of medicine, industry, health care and social development. The fundamental issue here is to balance the imperatives between equitably sharing the benefits of biodiversity and the responsibility of preserving and sustainably using biodiversity. There are certain inherent contradictions and often-conflicting objectives between TRIPS and CBD that challenge this balancing act. This is not only true for India, but also for the over 130 countries that are signatories to both TRIPS and CBD. Specifically, TRIPS promotes individual, private property rights over products and processes whether they are biodiversity- based or not. On the other hand, CBD recognises the collective rights of local communities on the biodiversity. It is well recognised that the survival of human well being depends on the conservation and free availability of biodiversity and not its protection by private property rights. Thus, in the area of biodiversity, CBD must take primacy over TRIPS and the amendments at the forthcoming TRIPS review must incorporate provisions of equity and ethics. All life forms and related knowledge from traditional systems must be excluded from TRIPS Legislation for access to genetic resources must ensure privileged access for non-commercial research and development efforts, particularly in critical areas for developing countries. The ensuing example illustrates the kind of conflicts that are likely to arise in providing free access for non-commercial R&D There are over 1300 gene
banks holding over 6 million accessions of genetic resources all over the
world. These gene banks provide access to plant genetic resources
for food and agriculture. The CGIAR system has one such gene bank
supported by policies of unrestricted availability to bona fide users.
This is a public funded facility held in trust for human kind by FAO through
an agreement in 1994 to support research of benefit to developing countries.
In spite of this agreement, there have been several cases of material from
CGIAR system finding its way to commercial breeders in industrialised countries
who have tried to patent it. Consequently, in 1998, the Chairman
of the CGIAR called for an immediate halt to the granting of any form of
plant breeders’ rights or any other form of IPRs on the varieties held
by the CGIAR’s International Agricultural Research Centres.
2. Protection of Traditional knowledge The Convention on Biological Diversity came in to existence in order to protect the hitherto unprotected genetic resources in the public domain, which was freely accessible to everybody. The bioresources are accompanied by rich traditional knowledge on the use of these resources. This knowledge is also in the public domain. However, from a legal point of view, traditional knowledge and innovation are non-existent and therefore unprotected. This is in sharp contrast to the protection of industrial innovations, which, under certain conditions can be protected by Intellectual Property Rights. In recent years, there is an increasing market shift to products from bioresources. A majority of these products are derived from public domain knowledge, including traditional knowledge, usually patented by a minor inventive step. It is one thing to patent a product ab initio from its raw material but quite another to free ride on public domain knowledge that has seen the test of time and generations of human innovation. Suggestions have been made at the WTO committee on Trade and Environment that for patents based on traditional knowledge, the country of origin must be disclosed and prior informed consent be sought. This suggestion was rejected for its impracticability. Nevertheless such solutions are necessary in international intellectual property law if developing countries are to be notified and fairly and equitably compensated for commercial use of their resources and traditional knowledge. There is a need to build international consensus on this issue. A pioneering effort in this direction was made by the M. S. Swaminathan Research Foundation in 1998 through a report to the UN outlining a conceptual framework for equitable sharing of benefits from plant genetic resources. In a country where much of the traditional knowledge is in the oral realm handed down over generations by word of mouth, there is a need to consolidate and record this information in a form suitable for legal use. Above all, there is an urgent need to provide a legal recognition and status for traditional knowledge, thereby paving the way for protection through property rights There are many grey
areas that need to be understood- the nature of the knowledge, its patentability,
definition of the community holding the knowledge, inter-generational equity
and so on.
3. Agriculture and Food Security Given the importance of agriculture in the Indian economy, there have been extensive public debate and speculation on the legal amendments relating to the agricultural sector. The newly introduced PPV bill has been bitterly criticised as framed on the lines of the UPOV convention. It is seen as being exclusively in favour of private enterprises and commercial plant breeders and against the interest of the farmers. UPOV has left the onus of farmers' rights to be framed by the sovereign nations. In India, private seed companies originally initiated plant breeders' rights in the late 80's after the adoption of the New Seed Policy in 1988. The govt. of India then liberalised the import of seeds for joint ventures, including hybrid seeds for several important crops. Such developments, no doubt, could have a positive impact on private R&D in this sector. However, the increasingly propreitary nature of biotechnologies, declining publicly funded R&D in this sector and the diminishing role of international and national agricultural research centres will adversely affect the diffusion of such technologies. This is likely to place developing countries at a greater disadvantage, perpetuating a vicious cycle of dependency on multinational enterprises. The marginal farmer is likely to be marginalised further. This is primarily due to the fact that under the present conditions, the incentives for generation and diffusion of IPRs are entirely different. The solution lies in understanding clearly, the role of the commercial breeder vis-à-vis the farmer. The latter performs the roles of a breeder, conserver and cultivator. Hence these roles have to be adequately compensated. He is entitled to the rights as any other breeder. In addition his conservation efforts must be recognised and rewarded. As a cultivator, he must be entitled the privilege of planting back seeds from his harvest and given rights for limited exchange. General Guidelines
2. To engage multi-stakeholder dialogues and public debates to facilitate understanding of the fuller implications of the legal amendments. The debates and dialogues must necessarily be based on hard evidence through case studies and impact assessments 3. Implementation of the legislation must involve the lowest grassroot level communities and must be well balanced to represent all the stakeholders 4. To formulate and put in place more appropriate incentives for sustained diversified farming systems that safe guard the rights of local communities. 5. The vigilance function on access to resources and grant of IPRs in the case of bioreources must not in anyway hinder access for bonafide research towards basic human needs 6. Alongside punitive measures it would be desirable to eventually institute economic incentives for adherence to best practices 7. Definition of bonafide use of genetic resources would facilitate regulation to access. 8. Need for uniform standards for reference database for effective functioning of the legal instruments. 9. Capacity building at every level of management of the IPR legislations. 10. Stimulating the informal sector to use the vast body of traditional knowledge in the public domain for the small scale sector 11. Promote and encourage innovations in socially useful sectors through "Utility Certificates" or "Petty Patents" (strictly for use within the country). Japan and Germany used such mechanisms in the 1940's to upgrade and strengthen their innovative capacity. These mechanisms could serve as precursors to legal IPRs. 12. Strengthen the role of the dispute settlement mechanism Conclusion In responding to the imperatives of the global trade regime, it is necessary to re-visit the objectives behind subscribing to the new regime. The objectives clearly go beyond competition based on volume and value of goods and services that a country can place in international trade. They rest on sustaining the human well being. Bibliography 1. Intellectual Property Rights in Indian Agriculture, No.44, ICRIER Report by Ahluwalia Isher, 1998. 2. Intellectual Property Rights in Biology, Eds. D. Balasubramanian et al Proceedings of a seminar organised by the Indian National Science Academy, 1996, Mysore, India 3. Biodiversity, Biotechnology and Intellectual Property Rights- Implications for intellectual Property Rights, Jai Prakash Mishra, World Journal of Intellectual Property, p211 4. Trade, Intellectual Property, Food and Biodiversity - A discussion paper by Geoff Tansey, Quaker Peace and Service, London, 1999 5. TRIPS versus CBD - Global Trade and Biodiversity in conflict, Grain Newsletter, no.1. URL: http://www.grain.org/publications/issue1.htm 6. Legal Protection of Genetic Information and Related Traditional Knowledge, Susette Biber-Klemm, NFP 42, National Research Program ' Foundations and Possibilities of Swiss Foreign Policy' March 2000, URL: http://snf.ch/NFP42/ 7. Gearing up for the
Efficient Management of Intellectual Property Rights in the 21st Century,
N/R. Subbaram and G. Thyagarajan, 1998 COSTED Occasional Paper No.4
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