The Bill of Contentions
by Anil Agarwal

The Indian Biodiversity Bill has been cleared by the Parliamentary Standing Committee and is now before the house for approval. Not before time. Given 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 would seem unnecessary to discuss it further. But it is important to ask why at the end do we have such an unimaginative and fossilised document, which does not reflect the emerging learning 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 benefits of knowledge with local communities. But what we have done has been to nitpick and to 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 recognised the need to reward and compensate traditional knowledge users. But TRIPS, negotiated two years after CBD, undermined this victory. Under TRIPS, an invention can be patented provided that it is new, involves an inventive step, and is capable of industrial application. Unfortunately, as traditional knowledge is invariable in the public domain, it has no protection or value under TRIPS.

Trip-fixers have been suggesting that the agreement should expand the geographical indications protections. Yet another way to tweak TRIPS is that patent applications would have to provide full disclosure of the biological source material and all known information relating to the knowledge and practices of the use of the biological material by communities. In addition the applicant must show evidence that prior informed consent of the government or local community has been obtained. As yet, not surprising given how obdurate the US is about these issues, little breakthrough is promised in the negotiations.

Instead what is possible is that if the CBD related legislations gain ground these can be used aggressively to challenge TRIPS. The first such law was passed in the Philippines in 1995 and since then innovative legislative work has progressively improved with 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 then monitoring compliance. The Indian law is even more backward than the Philippines and the so-called national biodiversity authority will have a stranglehold on just about every decision and contract related to access and benefit sharing.

It has increasingly become 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 but one that minimises bureaucracy. The legislation recognises 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 realised that there is rarely any royality payment as the products take years to be commerialised, all recent legislation (except India) provide for user fee and milestone payments, besides royalties.

The other vexed issue has been how these laws can protect knowledge, which is already in the public domain. The Costa Rica biodiversity act innovates by providing 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 Organisation 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 by recognising 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 has found one way by arguing that the consent of all communities is not required but best efforts must be made to inform others and to take into account their concerns. But clearly as these legislations get used, or abused, governments will find ways ahead. But only if they want to. They can also take the Indian route to nowhere. Use the excuse to give all controls to the faceless authority to decide in everybody's interest, which soon becomes nobody's interest or concern. Sad. But predictable.

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)