Bills on Intellectual Property Rights - I
Biodiversity legislation reflects India's obligations
The Hindu, 22 February 2001, p. BS-4
This is the first part of a four part series on biodiversity, patents and plant variety bills that reflect India's obligations under the TRIPS and Biodiversity Convention.
INDIA IS a member of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organisation (WTO) and the Biodiversity Convention. It is seeking to implement its obligations concerning these two agreements and bills have been introduced in Parliament for this purpose. Two of the bills, the Protection of Plant Varieties and Farmers' Rights Bill and the Patents (Second Amendment) Bill constitute India's response to some of its obligations under the TRIPS agreement.
The Biological Diversity Bill seeks to implement the principles of the Biodiversity Convention in domestic law. Each of the three bills has been referred to parliament committees for further examination. The Joint Committee on the Plant Varieties Bill is the only one that has completed its work and it has been announced that this bill will be taken up in priority in the Budget session.
The three bills have their own distinct focus but they share in common an attempt to define property rights over biological resources (real property rights) and property rights over knowledge or inventions related to biodiversity (intellectual property rights). The allocation of real and intellectual property rights over biological resources has become an important issue in recent years both in India and abroad. This is linked to increasing concerns over the conservation of biological and genetic resources and to the increasing economic value of these resources. Before turning to the responses that the three bills seek to give, it is necessary to examine the broader context into which they fall since they are heavily influenced by developments at the international level.
As far as real property rights are concerned, control over biodiversity and natural resources has been of concern for a long time in all decolonised countries. In fact, the assertion of sovereignty over natural resources by newly independent countries was seen as central to the realisation of economic independence.
Sovereignty has remained the fundamental principle around which the conservation and use of biodiversity is based. Despite the insistence on sovereignty, there was also a broad consensus for sharing resources, in particular in the field of agriculture. It is on this basis that international gene banks were set up, for instance, under the auspices of the Consultative Group on International Agricultural Research (CGIAR). The principle governing these gene banks was that states would freely contribute specimens and in turn be able to freely draw upon the accessions kept there. One of the reasons for countries willingly contributing resources to these collections was that most countries are dependent on other areas of the world for some of their main food crops.
If the issue of real property rights has been considered for a long time, the question of intellectual property rights has become central following the rapid development of genetic engineering in the past couple of decades. Debates are heated because the current trend reverses a century of developments in intellectual property law. Nature and nature-related knowledge used to be excluded from patentability but recent developments go a long way towards accepting the patentability of life forms. If patents on life forms are first controversial at a conceptual level, there are a host of other issues of concern. Indeed, the management of biological resources in India is directly linked to the fulfilment of at least two of the most basic needs, namely food and health.
Protection of plant varieties
Controversies over the introduction of patents or similar intellectual property rights are linked to some of the characteristics of these rights. Patents are monopoly rights granted for 20 years under TRIPS to a person or entity whose invention is deemed to be 'state-of-the-art'. The allocation of monopoly rights to inventors is based on the perceived need to reward the research effort and allow them to recoup the costs of their research. In effect, patents provide incentives for the development of the private sector in areas where free market principles do not offer sufficient incentives for the development of the industry. TRIPS provides that patents should generally be available in all fields of technology. India also has the specific obligation to protect plant varieties either through patents or an alternative property rights system (sui generis system).
As far as plant varieties are concerned, a specific international convention, the International Convention for the Protection of New Varieties of Plants (UPOV) introduces a particular kind of monopoly intellectual property rights known as plant breeders' rights. These rights also seek to foster the development of a seed industry but differ slightly from patents insofar as they provide some exceptions for other breeders to do research on the basis of a protected variety and some exceptions for the benefit of farmers. However, the latest revision of UPOV adopted in 1991 has strengthened the rights of breeders to such an extent that the distinction with patents is becoming increasingly blurred.
UPOV has acquired significance in recent years for India since it has been proposed as a possible sui generis system for countries having to introduce intellectual property rights over plant varieties.
On the whole, the current international legal framework favours the appropriation of biological resources and related knowledge through sovereign rights and private property rights. It generally seeks to increase incentives for the commercial exploitation of these resources and knowledge. One of the consequences is that the role of common property rights which are still very important in many rural communities for the fulfilment of basic food and health needs is progressively sidelined.
The three bills that are now before Parliament do not question the current international framework. Even though it can be argued that India's choices are limited as long as it chooses to remain a member of the WTO, the Plant Varieties Bill illustrates the fact that even where international treaties give countries some leeway, this is not necessarily being fully used. Other factors make the implementation of TRIPS and the Biodiversity Convention a tricky affair. First, the goals of the TRIPS Agreement and the Biodiversity Convention are partly contradictory. However, even if there are contradictions, India must fulfil all its international obligations at the same time and cannot give any preference to TRIPS. Second, the broader forces of globalisation and privatisation are making it extremely difficult to rely on old principles like that of sovereignty. Asserting sovereign rights over biological resources and related knowledge is, for instance, partly irrelevant today given the quantity of resources and information which have already been taken out of the country.
The constraints of the international legal framework notwithstanding, the government has some freedom in drawing up a property rights model for biological resources that applies to transactions within the country. In the current bills, local actors, from farmers to local communities, tend to become passive agents whose contribution to biodiversity management is generally not recognised through property rights but through some form of compensation determined by a central authority.
At present the bills reflect mainly India's obligations under the TRIPS and Biodiversity Convention. There are, however, a number of other treaties which are equally relevant, such as human rights treaties recognising fundamental rights like the right to food. Given the close link between control over biological resources and food security, it seems imperative that the bills should take a broader view of the situation and recognise the basic importance of these resources to the direct survival of most people in the country, instead of looking at them mainly from the perspective of trade and markets. This can only be realised if property rights are shared among the various actors who manage biological resources and not through the introduction of monopoly rights benefiting nearly exclusively bigger companies, including foreign multinational companies. In other words, it is not possible to consider the allocation of property rights in the field of biodiversity only from the perspective of trade or environmental concerns given the significant socio- economic consequences that the introduction of new forms of property rights can have for a majority of the population.
Bills on Intellectual Property Rights - II
Protection of plant varieties
The Hindu, 1 March 2001, p. BS-4
This is the second part of a four part series on biodiversity, patents and plant variety bills that reflect India's obligations under the TRIPS and Biodiversity Convention.
THE PROTECTION of Plant Varieties and Farmers' Rights Bill constitutes the Government's response to its obligations under TRIPS concerning plant varieties. It is specifically required by a provision which forces all states to introduce intellectual property rights over plant varieties but allows them to choose the form of protection. The Bill was introduced in December 1999 and referred to a parliamentary committee which submitted its report in August last together with a substantially revised version of the Bill. This Bill should have been adopted by January 1, 2000 according to TRIPS deadlines and is to be considered in priority in the current session.
The Government has chosen not to impose patents over plant varieties but rather to devise its own system of intellectual property rights. Further, it was agreed that the UPOV Convention should not be ratified but that a law suited to the specific conditions of the country should rather be drafted. In its present form, the Bill focuses on the establishment of plant breeders' and farmers' rights. It is striking that the proposed regime for plant breeders' rights largely follows the model provided by the International Convention for the Protection of New Varieties of Plants (UPOV). It introduces rights which are meant to provide incentives for the development of the commercial seed industry. The criteria for registration are thus the same as those found in UPOV, namely novelty, distinctiveness, uniformity and stability. The Bill not only incorporates elements from the 1978 version of UPOV but also includes some from the much more stringent 1991 version, such as the possibility to register essentially derived varieties.
The second main aim of the Bill is to introduce farmers' rights. It is here that the Joint Committee has substantially changed the proposed law. Indeed, the first version only contained a short provision on farmers' rights which did not do justice to the complexity of the issue and was definitely not sufficient to justify the title of the Bill. After a series of hearings, the committee came to the conclusion that the Bill was unbalanced and decided to add a whole chapter on farmers' rights.
In the new version, the Bill seeks to put farmers' rights on a par with breeders' rights. It provides, for instance, that farmers can, like commercial breeders, apply to have a variety registered. Generally, the Bill envisions that farmers should be treated like commercial breeders and should receive the same kind of protection for the varieties they develop. The new provisions are significant in theory because they try to establish farmers' and breeders' rights as equal rights but they are unlikely to have a major impact in practice. This is due to the fact that the Bill accepts the registration criteria of the UPOV convention. These criteria have been developed exclusively with commercial breeders in mind and can generally not be applied for the registration of farmers' varieties since these are unlikely to fulfil all the conditions.
In its 1999 version, the bill tried to compensate the lack of substantive farmers' rights with the introduction of two schemes for channelling to them some financial compensation. The idea behind `benefit-sharing' is that actors who have contributed to the development of a protected variety but cannot claim property rights are awarded monetary compensation instead.
The first scheme allows individuals or organisations to submit claims concerning the contribution they have made to the development of a protected variety. The final decision is taken by the authority established under the Act which determines the amount taking into account the importance of the contribution in the overall development of the variety and its commercial potential. The second benefit-sharing avenue allows an individual or organisation to file a claim on behalf of a village or local community. The claim relates to the contribution that the village or community has made to the evolution of a variety.Benefit- sharing in the plant variety Bill is problematic in several regards. First, it formalises the fact that some actors involved in plant variety management, such as farmers, cannot easily obtain property rights even though the possibility is now open to them in principle. Second, the Bill only conceives benefit- sharing as financial compensation even though other sharing schemes exist. Third, benefit-sharing focuses mainly on the genetic material that has been used in the development of a protected variety. Possible intellectual contributions to the development of a variety are not taken into account.
The Bill in context
It is important to keep in mind that the Bill has only been drafted in response to TRIPS obligations. It is therefore surprising to see that some of the core provisions of the Bill derive directly from an international treaty devised for countries with fundamentally different ground realities. Nothing in TRIPS forces states to adopt or even refer to UPOV.
After the revisions proposed by the committee, the Bill has acquired a much more balanced approach. However, the fact that the criteria for registration of plant varieties are those devised for commercial breeders may not allow farmers to benefit much from the provisions of the Bill. In its current form, it is clearly visible that the chapter on farmers' rights was added as an afterthought to a regime meant to benefit mostly commercial breeders. There is a need to recognise that the variety of actors engaged in agricultural management have rights to their resources or knowledge.
More fundamentally, the link between agriculture and the fulfilment of basic food needs should acquire primacy while introducing intellectual property rights on plant varieties. The most immediate consequence of the relevance of fundamental rights and basic needs is the need to circumscribe commercial activity so that it does not impact on food security at the individual level.
Patents Amendment Bill
The Patents Act of 1970 deals with patents in general and is not specifically related to biological resources. However, it addresses a number of issues that are of relevance in the present context. It rejects, for instance, the patentability of all methods of agriculture and is generally much more restrictive than similar laws in western countries. TRIPS now forces significant alterations to this Act. Thus, where only a product patent could be obtained for no more than seven years for food or medicine related inventions, TRIPS now requires the availability of product and process patents for 20 years.
The Patents (Second Amendment) Bill of 1999 generally seeks to modify the Act to allow compliance with TRIPS. There is not much scope to diverge from the rather precise TRIPS obligations if Parliament wants to avoid further confrontation with the World Trade Organisation (WTO). However, the exceptions contained in TRIPS have not necessarily been used to their full extent. Further, the present Bill does not consider at all the impact of the strengthening of patent rights on the realisation of fundamental rights such as the right to food and health, despite their close links.
With regard to environmental protection, the Bill includes some of the TRIPS exceptions related to environment and health. It also addresses the question of biopiracy by imposing the disclosure of the source and geographical origin of biological material used in a patented invention. Further, non-disclosure of the geographical origin or the anticipation of the invention in local or indigenous knowledge constitute grounds for opposing or revoking a patent.
Bills on Intellectual Property Rights - III
Biodiversity Bill insists on sovereign rights
The Hindu, 8 March 2001, p. BS-4
The Biodiversity Bill has been drafted in response to the Biodiversity Convention (CBD). However, the CBD is not as specific and demanding as TRIPS and substantial scope is left to states to adopt laws that fit their needs and priorities. The bill reflects, for instance, the government’s strong reaction to biopiracy or the illegal appropriation of resources or knowledge. The bill is also partly informed by the desire to avoid a direct confrontation with WTO obligations in this field.
Focus on access and sovereignty
Generally, the bill does not provide a comprehensive framework for the conservation and sustainable use of biological resources. In fact, it focuses mainly on the question of access to resources. Its response to the current challenges is to assert the country’s sovereign rights over natural resources. It therefore proposes to put stringent limits on access to biological resources or related knowledge for all foreigners. While the idea is to stop access by western country nationals and companies and reduce biopiracy, it is surprising to see that all foreigners are treated alike. In fact, there are a number of small and least developed countries which might greatly benefit from facilitated access to India’s vast biological resources to foster the fulfilment of basic food and health needs. Restricting access to these countries and reducing the flows of material to international research centres may serve some short-term interests but seems to go, for instance, against the professed solidarity among developing countries.
Generally, the bill’s insistence on sovereign rights reflects current attempts by all actors around the world to assert property rights over the resources or knowledge they control. In principle, an isolationist path may constitute a viable alternative for a vast country but the question of access must be seen in a broader context. Over the past couple of decades, a network of international centres (CGIAR) have been set up to foster the exchange and availability of resources for all countries. India has, like many other countries, substantially benefited from the principle of freely sharing knowledge and resources. Indeed, the CGIAR centres provided some of the Green Revolution varieties that had significant impacts on overall food production. The system proposed by the bill is likely to result in fewer flows of resources to CGIAR centres from India, and other countries are likely to adopt a similar attitude in reaction. It is doubtful whether this constitutes an appropriate strategy in a situation where the CGIAR collections over which India has no independent control account for about 40% of the worldwide accessions for food crops. Further, nearly all countries are dependent from moderate to very high degrees on genetic resources from other regions for their main staples. It is therefore unlikely that closing the avenues for sharing resources and knowledge will contribute to solving the widespread problem of malnutrition.
Access within India
While the bill focuses on preserving India’s interests vis-à-vis other states in rather strong terms, its main impact within the country will be to concentrate power in the hands of the government. Indeed, Indian citizens and legal persons must give prior intimation of their intention to obtain biological resources to the state biodiversity boards. The bill is even more stringent in terms of intellectual property rights since it requires that all inventors obtain the consent of the National Biodiversity Authority before applying for such rights. The impacts of this clause are, however, likely to be limited since patent applications are covered by a separate clause. Further, the Authority has no extra-territorial authority and cannot monitor applications for intellectual property rights outside of India.
The bill addresses the question of the rights of holders of local knowledge by setting up a system of benefit-sharing. The proposed scheme is innovative insofar as it provides that the Authority can grant joint ownership of a monopoly intellectual right to the inventor and the Authority or to the actual contributors if they can be identified. However, sharing property rights sharing is only one of the avenues that the Authority can choose to discharge of its obligation to determine benefit-sharing. Further, it is in the Authority’s power to allocate rights to itself or a contributor such as a farmer contributor and the latter has no right to demand the allocation of property rights. Other forms of benefit-sharing include technology transfers, association of benefit claimers with research and development or the location of production, research and development units in areas where this will facilitate better living standards to the benefit claimers. The focus on non-financial benefits is notable because these tend to be more long lasting than monetary compensation.
Concerns relating to property rights
The bill generally focuses on the rights of the state (sovereign rights) and monopoly intellectual property rights such as patents. The implication is that most property rights will be in the hands of the state and private companies. This has the unfortunate consequence that the bill does not provide a framework for the rights of other holders of biological resources and related knowledge. The proposed system thus implies that resources and knowledge which are not allocated to private entities through intellectual property rights are deemed to be freely available. Further, the bill does not give current rights holders, such as individual farmers or local communities, the capacity to defend their rights in the same way that it seeks to equip the state to fight biopiracy.
This problem is reflected in several ways. First, where benefit-sharing is allocated in the form of money, the Authority has the power to determine whether the money should be paid directly to benefit-claimers or used generally for biodiversity management activities. Thus, even identified benefit-claimers do not have a right to the money that is paid by the entity using their resources or knowledge. Similarly, where the Authority chooses to grant property rights to local innovators, they do not have a right to the allocation but are dependent on the Authority’s goodwill. This can be compared with the situation of applicants for patent rights who need the Authority’s approval but cannot be stopped from applying for the right. Third, the bill is conspicuously shy in its treatment of traditional and local knowledge. It only requires the Central Government to ‘endeavour to respect and protect’ such knowledge. It is unfortunate that the bill does not deal with this aspect directly since it otherwise seeks to provide a comprehensive framework for property rights. Further, the formulation employed implies that the government does not intend to provide individual or common property rights for these types of knowledge.
On the whole, the biodiversity bill provides a property rights framework which seeks to be very firm on the question of access from outsiders even though the practical impacts of this stand will be limited because it cannot apply to resources already outside of the country. The bill accepts the introduction of intellectual property rights over biodiversity provided for in the TRIPS Agreement but does not directly seek to make sure intellectual property rights are subordinated to the goals of the Biodiversity Convention as provided for in the convention. One of the striking features of the proposed regime is that it completely obliterates common property arrangements whose importance and extent in the context of the management of biological resources is still immense.
Bills on Intellectual Property Rights - IV
Concerns with proposed laws
The Hindu, 15 March 2001, p. BS-4
THE BIODIVERSITY, patents and plant variety bills constitute direct responses to international treaties ratified by India, in particular with regard to the property rights models they endorse.
The three bills generally reflect the trend towards the appropriation by States and private actors of a multiplicity of property rights, the gradual dismissal of common property rights regimes and the denial of the principle of free exchange of resources and knowledge as the basic premises for managing genetic resources.
These developments are clearly related to the new opportunities offered by genetic engineering and the consequent increase in economic value abscribed to biological resources.
The framework proposed at the international level is problematic in several ways as it tends to sideline some of the most fundamental concerns in the field of biodiversity management such as the fulfilment of basic food and health needs for all individuals.
Sovereignty, biological resources
Since decolonisation, it has been agreed that states have sovereign rights over biological resources. States can relatively easily control the exploitation of resources such as coal but this is much more difficult in the case of biological resources.
Indeed, biological resources can be relatively easily taken out of any given country, for instance, in the form of seeds. Further, there have been extensive exchanges of resources through the CGIAR centres over the past decades and these centres hold a significant share of the world's genetic resources related to food crops. The insistence of the Biodiversity Bill on India's sovereign rights is thus surprising. However, this also reflects the fact that states that hold significant biodiversity resources have not found better ways to assert control over them.
Generally, it must be stressed that sovereign rights are unlikely to have significant impacts in practice. As the state's control over biological resources is relatively weak, it is likely that other property rights established under the bill, mainly monopoly intellectual property rights, will be pre-eminent.
This implies that the main beneficiaries of this regime will be the private sector, partly the local industry but also - and maybe mainly - multinational companies.
Property rights on bio resources
As noted, the introduction and strengthening of private property rights constitutes one of the most significant elements of the new regime. However, if the introduction of intellectual property rights has been strongly encouraged concerning the products of research based on biological resources, there has been a significant resistance in the research and business communities to giving property rights on biological resources and knowledge used as the basis for research in laboratories.
The consequence is that farmers, local communities and other managers of biodiversity are not given intellectual property rights to their knowledge. In exchange, the concept of benefit-sharing has been introduced in a bid to recognise the contribution of these actors while usually denying them property rights.
The bills reflect this conception to a large extent. In the case of the plant variety bill, benefit sharing is only associated with monetary compensation. This type of benefit-sharing is a direct response to the imposition of monopoly rights which imply that only one actor gets all the benefits concerning a given invention. This constitutes a denial of the fact that biological resources are tended by a variety of actors.
In fact, the response should be to establish a property rights system where different actors can get different property rights instead of providing monopoly rights to some and only financial compensation to others.
Coordination between the bills
As noted, the three bills deal in part with the same subject matter. For instance, plant varieties are only a sub-set of biological resources. It is therefore surprising that the biodiversity bill's definition of biological resources does not exclude plant varieties given the existence of a separate plant variety legislation.
Overlaps do not stop at the level of definitions. The biodiversity and plant variety bills which both deal with fundamentally similar issues and subject matters each seek to set up their own national authority instead of providing a single common body.
Further, both adopt benefit-sharing as a compensatory mechanism but they set up benefit-sharing mechanisms that are distinct and unrelated. As noted, the plant variety bill only talks of financial compensation while the biodiversity bill includes a number of other possibilities, including the sharing of property rights.
In practice, this may lead to considerable difficulties given the overlapping mandates of the two bills. Further, while the procedure for granting benefit-sharing is set out in some details in the more specific plant variety bill, the biodiversity bill is much less clear in this regard.
In effect, the overlaps and inconsistencies between the different bills range from conceptual to technical implementation issues.
The lack of coordination between the bills can be traced back to the fact that the Government is seeking to implement different international treaties in each case. However, if the international law is scattered in different treaties dealing with different fields such as trade and environment, this cannot constitute an excuse for overlooking the fact that these treaties address a single ground reality, in this case the conservation and use of biological resources.
The bills and their broader context
The adoption of the three bills under consideration will have significant impacts for all local actors involved in the management of biodiversity, from all individuals working in the agricultural sector to local private and public sector units.
Indeed, TRIPS imposes some fundamental changes to the country's current property rights framework. Even though TRIPS seems paramount at this juncture, it is essential to recognise that the property rights framework being devised will also have significant social and human impacts. Indeed, biological resources are not only economic resources but also constitute the primary food supplies of all individuals.
There is thus a direct link with some fundamental human rights such as the rights to food and health, whose fulfilment is intrinsically related to the proposed property rights framework. This implies that TRIPS cannot be read independently from domestic or international human rights instruments.
Indeed, this was recognised by the Law Commission in its proposed biodiversity bill which provided that no intellectual property right should be granted on species used for alimentary or medicinal purposes.
The current bills reflect partly the difficulties that the country is having in responding to the varying and partly contradictory international obligations it has contracted.
However, a large part of the regime proposed through the bills is not specifically called for by the treaties themselves. Indeed, there is for instance absolutely no need to adopt any of the provisions of the UPOV Convention in the plant variety bill.
Overall, even if India must today adapt to a new environment which does not favour the sharing of knowledge and resources, it seems essential that the sustainable management of biological resources and the fulfilment of basic needs of the majority of the population, or in other words basic human rights, should not be sidelined in the process.