The Bill of Contentions
by Anil Agarwal

The Indian Biodiversity Bill has finally been cleared by the Parliamentary Standing Committee and is now before the house for approval.  Provided that it has been over nine years since we signed the Convention on Biological Diversity (CBD) and that the bill has been drafted and redrafted it seems rather unnecessary to further discuss it . But it is important to ask why we still have such an unimaginative and outdated document, which in no way reflects the emerging knowledge and experience in the world.

It is indeed amazing because our academics and activists have been articulate in presenting ideas on biodiversity piracy and sharing the benefits of knowledge with local communities.  But what we have done has been to nitpick and enact a bill steeped in bureaucratic procedures and unnecessary regulations.

I am particularly sad because this is a fascinating area of law, which has the potential of challenging the much-hated formal intellectual property rights system of the Trade-Related Aspects of Intellectual Property Rights (TRIPS).  The biodiversity convention was a victory for the south as it recognized the need to reward and compensate traditional knowledge users.  But TRIPS, negotiated two years after CBD, undermined this victory by allowing an invention to be patented assuming that it is new, involves an inventive step, and is capable of industrial application.  Unfortunately, as traditional knowledge is invariably within the public domain, it has no protection or value under TRIPS.

Trip-fixers have been suggesting that the agreement should be expanded to geographical protection.  Yet another way to tweak TRIPS is to require patent applications to provide full disclosure of the biological source material and all known information relating to the knowledge and practices of the use of the material by communities.  In addition the applicant should be required to show evidence that prior informed consent of the government or local community has been obtained.  As of today there is little promise of any breakthrough in negotiations due to the obstinate nature of the US.

But what is possible is for the CBD related legislations to gain ground in order to aggressively challenge TRIPS.  The first such law was passed in the Philippines in 1995 and since then innovative legislative work has progressively improved with the experience of countries in implementing this rather new concept.  For instance, a key problem with access and benefit sharing legislations has been the over-regulation of the state in granting permissions, overseeing contracts, and monitoring compliance. The Indian law pertaining to this matter is even more backward than that of the Philippines.   The so-called national biodiversity authority will have a stronghold on just about every decision and contract related to access and benefit sharing.

It has become increasingly clear that regulation by the state has led to complicated procedures and delays and has driven away genuine bioprospectors and users of the knowledge and biological resource.  It is also clear that the gold rush for biodiversity is waning as drug companies are not finding million dollar cures in the jungles.  Learning from these developments, the 1999 legislation of Peru brings in a critical change as it learns to set up a strong regulatory framework which also minimizes bureaucracy.  The legislation recognizes the rights of local communities over their knowledge and their right to enjoy benefits collectively.  It then allows the use of the contracts as the legal instrument to share benefits.  And the community can negotiate this prior informed consent document.  Also, as governments have realized that they will rarely receive royalty payment from these products, all recent legislation (except India) provide for user fees and milestone payments.

The other vexed issue has been how these laws can protect knowledge which is already in the public domain. The Costa Rica biodiversity act is innovative as it provides for community intellectual rights, which give legal recognition to knowledge associated with traditional biological or cultural practices in the public domain, even without formal declaration.  On the other hand, the model law of the Organization of African Unity provides for inalienable and collective rights and no one, including members of a local community, can make exclusive claims over collective knowledge or resources.  Peru builds on this idea by recognizing that knowledge in the public domain can be included in contracts.  And traditional knowledge not in the public domain remains a trade secret of communities and puts the burden of proof on the agency using this resource without consent.

Then there is the unresolved issue of who represents the community and what happens when multiple communities share the same knowledge.  Peru’s solution is to argue that the consent of all communities is not required, but the best possible effort must be made to inform others and to take their concerns into account.  But clearly as these legislations are used or abused governments will find ways ahead if they want to.  They can also take the Indian route to nowhere by using the excuse of giving all controls to a faceless authority to decide everybody's interest, which soon becomes nobody's interest or concern.

The biodiversity bill has the potential of challenging the much-hated formal intellectual property rights system of the TRIPs.

– The late Anil Agarwal
Centre for Science & Environment
New Delhi

(This article is also available online at http://www.cseindia.org/html/dte/dte20020115/dte_edit.htm)