Transcript Operationalising of Benefit Sharing Mechanisms

Developments related to Access to
Biodiversity, Genetic Resources and
related knowledge in India
P. Pushpangadan
National Botanical Research Institute
(Council of Scientific &Industrial Research)
Rana Pratap Marg, Lucknow-226001
29th August 2005
NASC Auditorium, New Delhi
21st Century
Biodiversity was considered to be a
common property till 20th century. It
was in the Earth Summit in 1992 at Rio
that the first the world forum agreed on
the sovereign rights of states over their
Biodiversity. This was enshrined in the
Convention on Biological Diversity was
signed in June 1992.
Traditional Knowledge System (TKS) OR
Indigenous Knowledge System (IKS)
Community-based functional knowledge
developed, preserved and maintained over
many generations by the local and
indigenous communities through their
continuous interaction, observations and
experimentation with their surrounding
environment.
TKS/ IKS is
Unique to a given culture or society.
Result
of
co-evolution
and
co-
existence of indigenous cultures and
their traditional resource use.
Access to Bioresources &
associated knowledge
• Access in this context refers to the
ability of individual(s) or
organizations(s) to acquire, exchange
or use bio resources found in nature
for multitude of purposes including
commercial application.
UN Convention on the Biological
Diversity (CBD)
•
•
•
Recognizes sovereign rights of nations over
biological diversity.
Binds the parties to respect, preserve and
maintain Traditional Knowledge (TK)
Stipulates just and equitable sharing of
benefits arising from sustainable use of TK
and traditional resources.
WTO & TRIPs
•
WIPO was established in Geneva in 1970
•
Patent Corporation Treaty (PCT), 1970
•
WIPO became a UN agency in 1974
•
General Agreement of Trade and Tariffs
(GATT) Ministerial meetings (1986-1994), Uruguay
Round Conference (URC), 1994
•
Final Round of URC and Declaration of the final Act
to form WTO on 15th April 1994
•
World Trade Organization (WTO) came into being
in 1995
•
WTO administered Trade Related
Intellectual Property Rights (TRIPS)
aspects
of
The fundamental conflicts
between CBD and WTO
 CBD recognizes the sovereign rights of
nations over their biological resources and
associated knowledge systems.
 WTO do not recognize any informal
knowledge/ innovations of traditional
communities for intellectual property
rights. Do not insulate Traditional
Knowledge (TK) from intellectual piracy.
IPR & TK
 IPR: The prime driving force behind
industrial growth and development in the
west in 19th & 20th centuries.
 Do not recognize the informal system of
innovation of indigenous people.
 Do
not
provide
mechanism
for
compensation or benefit sharing with
indigenous people.
Relevant Provisions of TRIPs on
Biological Resources
 Under Article 27, virtually all inventions are to be
patented if they are new, involve an
innovative/inventive step and are capable of
industrial application.
 Exceptions to patentability include plants, animals
( other than microbes) and biological processes for
the production of the above. However plant
varieties must be protected either by sui generis or
by patenting (27.3(b)).
CBD Provisions for Access & Benefit Sharing
(Article 15)
Article 15.1: Authority to determine access
Party has the authority to determine access to genetic
resources, subject to national legislation.
Article 15.2: Access for environment-friendly uses
Each Party shall endeavor to facilitate access to genetic
resources for environmentally sound uses by other
contracting Parties and not imposes restrictions that run
counter to the objectives of the Convention.
Article 15.4: Mutually Agreed Terms
Access to genetic resources shall be on mutually agreed
terms.
CBD Provisions for Access & Benefit Sharing
Article 15 Contd.
Article 15.5: Prior Informed Consent
Access shall be subject to Prior Informed Consent of
the Contracting Party providing such resources, unless
otherwise determined by that Party.
Article 15.6: Scientific research and development
Party receiving genetic resources from another Party
shall endeavor to develop and carry out scientific
research based in genetic resources provided by other
Contracting Parties with full participation of, and where
possible in, such Contracting Parties.
CBD Provisions for Access & Benefit Sharing
Article 15.7: Equitable Benefit Sharing
Parties to take legislative, administrative or
policy measures, as appropriate, with the aim
of sharing in a fair and equitable way the
results of research and developments and the
benefits arising from the commercial or other
utilization of genetic resources with the
Contracting Party providing such resources,
and such sharing shall be upon mutually
agreed terms.
TRIPS-CBD Relationship
 Absence
of
explicit
compatibility,
Difference of approach and priority given to
issues which are ultimately related. This has
led to violation of the CBD (Articles 8,15
&16).
 TRIPs ignores a vast range of valuable,
traditional knowledge (TK) because it
doesn't meet the standards of patentability.
TRIPS-CBD Relationship
(Contd..)
 TRIPs undermines CBD in cases of biopiracy,
by putting the burden of proof on the source
country rather than patentee. Identification of
unique source material as required in Art.29 of
TRIPs is insufficient. Lack of transparency in
the patent application procedure.
 TRIPs doesn't require the recognition of
domestic laws protecting access to genetic
resources and TK and subsequent benefit
sharing.
Bonn Guidelines of the CBD on
Access and Benefit-sharing
The sixth meeting of the conference of Parties to the CBD
in April 2002 (COP 6) deliberated on the interpretation of
Article 15, and arrived at Decision V!/24. This decision
brought forth the “Bonn Guidelines on Access to Genetic
Resources and Fair and Equitable Sharing of the Benefits
arising out of their utilization”. One of the stated
objectives of the Guidelines is to contribute to the
development of mechanisms and access and benefit
sharing regimes that recognize the protection of
indigenous knowledge, innovations and practices of
indigenous and local communities.
Main Provisions of Bonn
Guidelines
•
The facilitation of prior informed consent of both
the national government of the country of origin of
the resource for transmittal as well as indigenous
and local communities.
•
The development of mutually agreed terms to
facilitate legal certainty and the minimization of
cost.
•
The specification of non-monetary benefits the
collector will provide, and whether, and under what
conditions, the collector may transfer the collected
genetic resources to another party.
FAO- International Treaty on Plant Genetic
Resources for Food and Agriculture (ITPGR(2001) and ABS process
The Treaty, which has come into force since 2001,
aims at conservation and sustainable use of plant
genetic resources for food and agriculture
(PGRFA) and the fair and equitable sharing of the
benefits arising out of their use for sustainable
agriculture and food security. The Treaty provides
for an efficient, effective and transparent
multilateral system to facilitate both access to and
fair and equitable sharing of benefits arising from
the utilization of PGRFA on a complementary and
mutually reinforcing basis (Article 10.2).
FAO- International Treaty on Plant Genetic Resources for
Food and Agriculture (ITPGR- (2001) and ABS process
(Contd.)
In accordance with Article 10.1 of the Treaty, 64 plant genetic
resource groups (35 food crops + 29 forage crops) for the
food and agriculture have been currently brought under the
Multilateral Systems of Access and Benefit Sharing (Annex I
of the ITPGR). The treaty also obliges its Parties to take
necessary legal or other appropriate measures to provide
access to other Contracting Parties through the Multilateral
Systems, and insists that the facilitated access shall be
provided pursuant to a standard Multilateral Transfer
Agreement (MTA), containing all access & benefit sharing
provisions under 12.3 a, d and g and 13.2 d (ii) of the Treaty.
The Treaty also restricts the recipient Party to claim any
intellectual property or other rights on the genetic resources
or their genetic parts or components in the form received
from the Multilateral System (Article 12.3 d).
World Summit on Sustainable
Development 2002
•
WSSD Plan of Implementation
Article 44(o) calls upon States to:
“Negotiate an international regime
on benefit sharing relating to
genetic
resources
within
the
framework of the CBD taking into
consideration the Bonn Guidelines”
Access and Benefit
Common Approaches
Sharing:
CBD and ITPGR, and the Bonn Guidelines
provide a broad framework for ABS
procedures. The main features of ABS
mechanisms include: (i) Prior Informed
Consent (ii) Mutually Agreed Terms (iii)
Material Transfer Agreements, and (iv)
Benefit–sharing
agreements
through
monetary and non-monetary means.
ABS Policies and Programmes:
The Indian Initiatives
The Biological Diversity Act 2002 (No.18 of 2003)
The core of the ABS provisions and their effective implementation
in the territorial jurisdiction of India is dealt with in the Biological
Diversity Act 2002(enacted on December 11, 2002 and received the
assent from President of India on February 5, 2003) and in the
Biological Diversity Rules 2003 (in force since April 15,2003). The
Act provides for regulated access to biological and genetic
resources by bona-fide end-users for different purposes, including
scientific research, commercial uses, bio-survey, bio-utilization,
conservation and other sustainable uses, etc. The over all
implementation of the Act will be coordinated by three functional
bodies viz. The National Biodiversity Authority (NBA), the State
Biodiversity Boards (SBB), and the Biodiversity Management
Committee (BMC). NBA is the national competent authority to
discharge all decisions pertaining to ABS.
ABS Policies and Programmes: The Indian Initiatives (Contd..)
The Protection of Plant Varieties and Farmers’ Rights
(PPVFR) Act, 2001 (Act 53 or 2001)
The PPVFR Act 2001 and the Rules framed under this Act,
called the PPVFR Rules 2003, deal primarily with the protection
of plant breeder’s rights over the new varieties developed by
them and the entitlement of farmers to register new varieties
and also to save, breed, use, exchange, share or sell the plant
varieties, which the latter have developed, improved, and
maintained over many generations. The Act is a deviation from
the 1991 UPOV Model and can be regarded as an alternate ‘sui
generis’ system that accord protection of the rights of the
formal innovations of a plant breeder and the informal
knowledge system and traditional plant varieties of the farmers
as well (Sahai, 2003). The important provisions contained in
this Act relevant to ABS are those on the protection of farmers
rights and the mechanisms suggested for compensation or
benefit-sharing (Brahmi et al. 2004)
ABS Policies and Programmes: The Indian Initiatives (Contd..)
Indian Experiment in Benefit Sharing: “TBGRI Model”
or “Kani Model” or “Pushpangadan Model”
India has the distinction of being the first country in the world
in experimenting a benefit-sharing model that implemented
the Article 8(j) of CBD, in letter and spirit. It was the Tropical
Botanic Garden and Research Institute (TBGRI) in Kerala
(where Dr. P. Pushpangadan was director) that demonstrated
indigenous knowledge system merits support, recognition
and fair and adequate compensation. The model, which later
on came to be known as “TBGRI Model” or “Kani Model” or
“Pushpangadan Model”, relates to the sharing of benefits with
a tribal community in Kerala, the Kanis, from whom a vital lead
for developing a scientifically validated herbal drug (Jeevani)
was obtained by scientists of TBGRI.
ABS & Like-Minded Megadiverse
Countries(LMMC)
•
•
•
Cancun Declaration (February
2002)
Cusco Declaration on Access
to Genetic Resources, TK and
IPR(November 2002)
Kuala Lumpur Communiqué
on Institutional Building (July
2003)
ABS REGIME: LMMC
STRATEGIES
 Development of Uniform Model of MTA to
ensure:
• Sovereign Rights
• Statutory Rights
• Legal Rights
• Customary Rights, if any, of
participants/stakeholders
 Enactment of National ABS Laws:
40 CBD Parties enacted/in the process of
enactment
ABS REGIME: LMMC STRATEGIES
 Claims of Country of Origin vis a
vis Country Providing Genetic
Resources :
• Parties to Claim All Legal Rights
on All Benefits from the use of
Genetic Resources & TK by Third
Parties
• MTAs and MATs should include
such legitimate claims and rights
ABS REGIME: LMMC STRATEGIES
 Claims of Country of Origin vis a vis
Country Providing Genetic Resources :
Constraints
• Proof of Country of Origin/Centre of Origin of
exotic species in ex-situ depositories
• Determination of Ownership and authority of
PIC on Pre-CBD ex-situ collections
• Lack of accurate Accession data on records of
ex-situ introduction of exotic and native
species
• Absence of evidence on Genetic Origin/Wild
Ancestries of domesticated or cultivated
species
ABS STRATEGY: CONCERTED ACTIONS
REQUIRED BY LMMC
• Enactment and Harmonization of
National Legislations on ABS by all
LMMC members.
• Capacity building at country level in
terms of:  Easily understood definitions
 Completion of Steps of PIC, MTA and
MAT
 Building resources inventories under
different property regimes