New roads, but a long way to go
The Biological Diversity Act, though a significant piece of legislation of recent origin, faces difficulties in its attempts to assert our rights over biodiversity resources and our claims for a share of benefits from their commercial utilisation. On the occasion of Earth Day on April 22, MADHAV GADGIL looks at the challenges of documenting biodiversity and associated knowledge systems.
Documenting bidoversity poses numerous problems. Evolving a people-oriented approach is one. Pic. AP
OUR recent Biological Diversity Act (2002) is a most significant piece of legislation. It responds to concerns arising out of developments in biotechnology and information technology, and from the ongoing erosion of biological diversity. These developments imply that all organisms even seemingly insignificant ones like microbes and worms on land, in rivers and in the sea are potentially resources of considerable economic value, worthy of efforts at conservation, scientific investigation, and of securing rights over the associated intellectual property. This has prompted the development of two often conflicting international agreements, the Trade Related Intellectual Property Rights provisions (TRIPS) of the General Agreement in Trade and Tariff (GATT) and the Convention on Biological Diversity (CBD).
The latter has two noteworthy stipulations. One is the sovereign rights of countries of origin over their biodiversity resources. The other is the acceptance of the need to share benefits flowing from commercial utilisation of biodiversity resources with holders of traditional knowledge. There is as yet no proper resolution at the international level of how these will be implemented in view of the fact that the normal Intellectual Property Rights and TRIPS provisions do not stipulate any sharing of benefits for holders of knowledge in public domain, nor the sovereign rights of countries of origin over their genetic resources. The Biological Diversity Act is a part of the Indian attempt to make some progress and to put into operation these two important provisions of the CBD.
This ambitious act aims to promote the conservation, the sustainable use and the equitable sharing of benefits of our biodiversity resources, including habitats, cultivars, domesticated stocks and breeds of animals and micro-organisms. With this in view, it provides for the establishment of a National Biodiversity Authority, state biodiversity boards and biodiversity management committees at the level of panchayats, municipalities and city corporations. It was initially designed as an umbrella act, and to herald a new age, overriding many of the earlier acts such as the Forest Act formulated in the colonial era. As passed, however, it only has the status of a complementary act and will have to be used side by side with a range of other acts, including, in particular, those pertaining to forest, wildlife, panchayati raj institutions, plant varieties and farmers' rights, and patents.
There are a number of potential conflicts in the working of these various acts that need to be resolved carefully to ensure that this act can effectively address the many new and significant challenges resulting from scientific and technological developments and from the growing strength of panchayati raj institutions. In particular, one needs to guard against the many entrenched interests ensuring that the National Biodiversity Authority and the various State Biodiversity Boards end up being ineffectual because of the provision in the act that they must accept all directives of the Central and State Governments. There are other possibilities, too, of loopholes that may render the act toothless. For example, any biological resource that is considered a commodity, or biological material that is blended and mixed, may be exempted from the provisions of the act. Finally, there is always a danger that the regulations may encourage harassment and corruption, rather than effective action. It is to be hoped that public awareness and pressure will overcome these hurdles.
This act is an important step in the attempts to assert the sovereign rights of the people of India over their biodiversity resources, and to claim a share of benefits flowing from commercial utilisation of these resources involving the use of any associated knowledge of Indian origin, even if it be in the public domain or held as a part of an oral tradition. There are difficulties in carrying out these intentions. No international agreement has as yet been arrived at as to how to put into effect the relevant CBD provisions. Even if such an agreement is arrived at, the United States may not accept it, as it has not signed the CBD. Furthermore, the CBD recognises sovereign rights of countries over biodiversity resources for which they are the countries of origin, and not over all biodiversity resources occurring within the country as provided in our act.
Rare Lear's macaw
The CBD stipulates the sharing of benefits in the context of knowledge associated with biodiversity resources only for indigenous communities and not all communities, nor does it mention classical knowledge such as those contained in Ayurvedic texts. Since the TRIPS provisions do not accept any sharing of benefits for holders of knowledge in the public domain, and since even the CBD makes no mention of sharing of benefits pertaining to knowledge in such classical texts, we might find it difficult to sustain benefit sharing claims for such knowledge as specified in the act. We can, of course, use such information as evidence of prior art, as was done successfully in the case of the U.S. patent on the use of turmeric lotion. Furthermore, India cannot really lay exclusive claim to knowledge contained in Ayurveda; Sri Lanka and Nepal, for instance, have ancient and still vibrant traditions of Ayurveda, and India needs to arrive at co-operative arrangements with such countries in this context. Nevertheless, these difficulties will primarily arise in the case of products by foreign companies manufactured and marketed abroad. It is certainly possible to enforce the provisions of the act on products being marketed in India, by both Indian and foreign companies, even if manufactured outside India. It is therefore a reasonable step to stake very broad claims to take advantage, to the extent possible, of whatever provisions are eventually worked out at the international level.
We will have to set up a biodiversity information system of unparalleled size and complexity in order to implement the provisions of this act. This will have to compile information on issues, such as the status of the country's ecological habitats, and populations of a whole range of biodiversity elements; regimes of legal as well as customary property rights, access rights, and conservation practices; harvest, transport, trade, and markets in biodiversity; processing of biodiversity resources to generate value added products; demand for and consumption of biodiversity resources and their products; existing technologies and new innovations pertinent to biodiversity, both at grassroots, and in the more sophisticated industrial sector; and finally, intellectual property rights, customary as well as through the legal regime, over biodiversity resources. The information system will have to feed into development planning at all levels, from panchayats, through districts, states and the country as a whole. It will have to support the panchayati raj institutions, and others like village forest committees in coming up with natural resource management plans tailored to their own locality specific and society specific contexts. It will have to help promote sustainable use and economic activities such as local level value addition, as well as serve more sophisticated biotechnology based enterprises.
It should help direct proper flows of benefits of commercial uses of biodiversity to holders of traditional knowledge, as well as to grassroots innovators. It will also be relevant to actualising the provisions pertaining to farmers' rights in the Protection of Plant Varieties and the Farmers' Rights Act.
This poses many challenges. These will include making an inventory of elements of biodiversity with thousands of entities; species, genes, ecosystems, all exhibiting tremendous variation in space and time. Given the existing paucity of information, this would require putting in place a system that will draw on much relevant information that rests with the country's often illiterate barefoot ecologists, and embodied in oral traditions. Many uses of biodiversity that will need to be documented are also in the informal sector, and are often unrecorded. Much of this informal body of information is largely derived through a process of trial and error, and is a mixture of empirically valid knowledge shared with beliefs that may not stand scrutiny. For instance, a large number of herbs are said to contain antidotes against snake venom; it is likely that many of these only help by providing a psychological boost to victims of snake-bite. All this information, therefore, needs to be carefully assembled and validated.
The Griffon vulture
While organising this information, we will need to keep in view intellectual property rights concerns and guard the interests of all segments of our population of the tribals, of dispensers of herbal medicines, as well as those of modern enterprises such as pharmaceutical industry.
Meeting this challenge will not only require cross-disciplinary scientific activities, but more importantly the conduct of a cross-cultural dialogue amongst scientists, scholars in the classical tradition such as Ayurvedic or Yunani practitioners, and holders of folk traditions and knowledge. This is a tremendous opportunity for the scientific community to evolve a new, people-oriented approach to doing science and managing information and to bridge the digital divide. One of our major national failures over the 55 years of independence has been in the field of primary education.
The Literacy Mission, launched in the late 1980s, and pursued with such vigour by large numbers of volunteers has undoubtedly been a striking achievement in this context. The challenge of working with people to document biodiversity and associated knowledge could develop into a worthy successor to the Literacy Mission.
Madhav Gadgil is with the Centre for Ecological Sciences, Indian Institute of Science, Bangalore.
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