Jownal of Intellectual Property Rights Vol 5 July 2000 pp 197-205

Biodiversity and .IPR- Ethics and Politics

Syamal Krishna Ghosh

Nagarjuna Agricultural Research and Development Institute C-15, Vikrampuri, Secunderabad 500 009

Indian subcontinent, one of the 12-mega biodiversity centres in the world, is bestowed with varied agro-climate that has consequently given rise to great diversity in agri-hor­ticultural crops, ethno-botanically important species. It has expertised itself in evolv­ing new crop varieties. The plant genetic resources of Indian subcontinent played a major role in experiencing green revolution through increased aglicultural produc­tivity of the food crops as well as 70 per cent of the population depends on the herbal and Ayurvedic medicine. The human beings, 8cience and technology and ever-chang­ing economic & political scenario are exploiting the spectrum of biodiversity without any effort for its sustenance. Since 1946, International agencies have been involved in the conselvation of genetic resources, which has resulted the Convention on Biological Diversity in June 1992 during Rio de Janeiro Earth summit with the objective to prevent unfair exploitation ofbio-wealth and traditional knowledge of developing nations. The global concern has drifted,biodiversity into commercial era, which is leading further concerns for access, trade- related disputes and conventions. The situation became much stiffer with the introduction of General Agreement on Tariff and Trade (GAm agreement and Intellectual Property Rights (IPR). India being a signatory of GATT is compelled to develop both product and process patent system for innovations in the field of food, health and environment management. The IPR regime and rapid commercialization of agriculture with the advent of biotechnology is also leading to biopiracy and bio-colonialism of the bio-resources. On the other hand, the recent tools of biotechnology such as transgenic and T-GURT technologies offer both challenges and opportunities for growth and development of mankind. These technologies may have potential negative effect on biodiversity and most of the concerns regarding the possible effect are theoretical in nature except very few studies, which are addressing the potential risk. These new technologies need critical review on the Indian context as well as on the global ecological concern for exploitation. The fact is that India must avoid taking extreme decisions regarding biodiversity and concerted effort is needed for the protection of the sovereign right of our country over the biological resources and convelting them to economic wealth . So our national effort is obvious to accept the IPR framework to safeguard biological resources and to promote traditional knowledge of these biodiversity through mul­tidisciplinary approach to make "Green Revolution" an "Evergreen Revolution".

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Over the last few decades, the impact of science and technology on society and eco­system has intensified the deterioration of biological wealth as well as ecosystem lead­ing to the loss of biodiversity in the form of species and genes. The ever-changing world economic and political scenario is always exploiting the spectrum of biodiversity with­out any effOli for its sustenance. On the other hand, the socio-economic changes led human beings from gregariousness to fam­ily system; tribes to modern society; agrar­ian society to commerce; and individual to global concerns. The global concern is drift­ing the agriculture into the commercial era, which is leading the futiher concerns for access, trade related disputes and conven­tions.

Since, ancient times the human beings are exploiting the nature and biodiversity to ful­fil their day-to-day needs for sustenance. The agriculture has evolved through the selec­tion of plant species from thousands and even today the conscious effOli of selection is on from the variants for improving the productivity. Since 12,000 years the several thousand plant species is under selection by human tendencies, which resulted into a 120 cultivated species. Among these 120 culti­vated species only nine crops supplies 75 per cent of the food requirement of human be­ing. The modern farnung as well as the in­evitable growing demand from ever-increasing population is forcing us to depend on fewer and fewer crop varieties day by day.

The human activities are directly related to changes in biodiversity and eco-system, which benefits the mankind. The benefits depend on the availability of new and im­proved resources and access of these re­sources. So, to get benefit from these vast bio-resources continuous improvement is

essential through scientific knowledge and technology . Now in the era of global changes, sustainable development and so­cio-economic shifts, the biodiversity has be­come the "key to the maintenance of the world". The vast genetic resources of India require a great effoti for its conservation, evaluation, characterization, preservation and maintenance. Nowadays the availability of many mod ern technologies, such as biotechnology may help in characterizing, preserving and maintaining the bio-wealth which are related to economy as well as to our ecosystems. The identification, conser­vation and management of India's genetic potential require multidisciplinary approach from the environmentalist, ecologist, geneti­cist, botanist and economist.

Biodiversity

Biodiversity describes the total variability present among and within the species of living organisms in their natural habitats. The term 'species' includes both the dooes­ticated and developed cultivars as well as the non-cultivated wild relatives. Because of the 'wild-weed-crop complex' a continuous ex­change of genetic material is possible be­tween the wild relatives and cultivated forms. The biodiversity evolves continu­ously through dynamic process and acts as the source of gene flow for improving the agricultural production via conventional breeding and genetic engineering.

Indian Scenario

India is one of the 12-mega biodiversity countries in the world, which attracts inter­national business players to exploit the coun­tries rich and enormous biodiversity. Indian subcontinent is bestowed with great diver­sity in agri-horticultural crops which in­cludes almost 49,000 known plant species.

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Among which 17,000 belong to higher plant species and 8,900 species of ethno-botanical importance on which around 75-80 per cent of population of developing countries de­pends for herbal and Ayurvedic medicine l

.

Enormous diversity is observed for most of the field crops, vegetables, plantation and tuber crops. Its diversity is unmatched be­cause India is having 16 different agro-cli­matic zones, 10 vegetative zones and 15 biotic provinces. The plant genetic re­sources of Indian subcontinent played a ma­jor role in increasing agricultural productivity level of different crops from Green revolution period.

The Himalayan region of India provides the largest number of 2,532 endemic species. India also observes a very rich source of wild relatives of crop plants which includes 326 wild relatives of crop plant species. India also has 18,000 flowering plants 23,000 fungi, 30 million microorganisms, 2500 algae and 1800 bryophytes. Not only this plant wealth shows diversity, even the new species intro­duced in the past by the ancient traders got acclimatized over time and represents rich diversity because of spatial and climatic iso­lation. The proper documentation of these species though difficult task., but offers great opportunity to our country to claim ownership of this natural, economically im­portant germplasms2.

International Agencies to Safeguard Biodiversity

Since 1946, FAO has been involved in the conservation and use of genetic resources for agriculture. The meeting organized by FAO (1961) on plant exploration and intro­duction can be considered as the informal starting regarding ex situ conservation of biodiversity for agricultural purpose on in­ternational scale. The Consultative Group on

International Agriculture Research (CGIAR) has taken over these areas around 1972 and conservation of PGR became strict for the international agriculture research centers supporting 'Green Revolution'. After the establishment of International Bureau of Plant Genetic Resources (IBPGR, 1974) FAO as an intergovernmental agency estab­lished a FAO Forum, the Commission on PGR (CPGR) and the legal guide lines on the conservation and access to PGR as the Inter­national Undertaking on PGR (IUPGR) dur­ing 1980's.

In the same period United Nations Environ­ment Programme (UNEP) also started focussing on biodiversity issues and Plant Genetic Resources (pGR) as Convention on Biological Diversity and signed by 171 coun­tries in June 1992 during Rio de Janeiro Earth summit. In this summit during CBD a decision was taken by signatories that PGRs are no longer the common heritage of man­kind but coming under the sovereignty of the individual country3.

Convention on Biological Diversity

Convention on biological diversity (CBD) came into force in 1993 with the objective to prevent unfair exploitation of bio-wealth and traditional knowledge of developing nations by the signatories from 171 countries includ­ing India.

CBD reaffirms:

- Sovereign rights of the members on their genetic resources,

- Prior consent from the country of ori­gin to facilitate foreign access,

- Equitable sharing of benefits and transfer of technology within the mem­bers, and

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- IPR regime should not counter act the CBD 's objectives.

The main draw back of CBD is that it does not provide ariy right to the nation or people regarding bio-wealth exchanged before 1993. The pertinent information regarding the germplasms is readily available today in developed countries rather than developing countries where it originated.

However, ,conservation, access and use of PGR are not only the main concern of FAO gl.ooal plan of Action but Conference of Par­ties (CoP) of the CBD is also held responsi­ble3

. During the first CoP itwas decided that regarding the access of PGR, benefit shar­ing, farmers' right may be negotiated by the F AO Commission of Genetic Resources for Food and Agriculture (CGRFA), which was the revised form of CPGR after the adoption

-of CBD. The FAO global plan of Action fo­cuses on farmer's right as a primary mecha­nism "to protect the right of the providers of genetic resources" whereas the CBD in­volves a much wider range of beneficiaries. The convention offers little guidance as to the nature and mixture of appropriate bene­~ts what constitutes a fair and equitable share and indeed who should be beneficiar­ies.

Intellectual Property Rights (IPR) and Bio-wealth

The patent is the legal right of the inventor and granted to the inventor to claim the exclusivity over the innovation over a period of time to get economic benefit from com­mercial application and widely recognized. The IPR regime developed to reward inven­tor for his innovative step (novelty) by pro­tecting mechanical and chemical innovations and to act as driving force to­wards rapid industrial growth in the devel­oped countries, Afterwards the living

organisms also came unt;t.er me current IPR regime and 'first patent<granted to General Electric, USA fot the oilteating bacteria iso­lated by Ananda Mohan Chakraborty , Then the issue of reward to pu ~lic domain be<;ame the major concern because inventors do not have adequate resources to do so on their own.

India is a signatory of General Agreement on Tariff and Trade (GAm in which Trade­Related Intellectual- Property Rights (fRIPS) is one of the important components 4. According to TRIPS all the memoer coun­tries are compelled to develop both product and process pat~nt protection for domestic as well as foreign innova~ions in the field of food, health and environment management

Biopiracy vs Biodiversity ,

The IPR regimeiri context with living organ­isms fail to provide the reward to public domain which does not come uQder formal science but provides material as wei I as tra­ditional knowledge for future innovations. The failure of IPR regime of today to allow sharing of benefits 'with the public domain

'resulted into oio-piracy. The TRIPS'protects the inventions of the scientists, ientrepre­neurs developed with in the system oHomal ' science particularly from the developed ~a­pons. Whereasthe ~esources' as well as :the sharing of traditional knowledge in the pub­lic domain does not rece'ive acknow­ledgement under IPR regime.

For example, since time immemorial the bas­mati rice was under cultivation among 'thes~ farmers of India and Pakistan patented by Rice Tec. Inc., USA 5. Similarly, in case of neem, its oil is used in different parts of rural India due to its pesticidal properties. This neem oil contains azardichtin, the pesticidal principle, which has short shelf life making transportation impo~sible. By inventing the

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stabilizing agent an USA transnational cor­poration (W.R Grace' & Co.) protected with a patent making huge benefits without shar­ing the oenefits. In another case, the healing ability of turmeric powder, India revoked the patent as CSIR presented the published evi­dence. In case of basmati and neem the lack of published evidence and specification of' patent claim made the case more complex, whereas the proofs of public domain knowl­edge is of little use in contesting the patents.

The rapid commercialization of agriculture wit!! the advent of biotechnology is leading to bio-piracy and bio-colonialism of the bio­resources by trans-national corporation (fNe) 6. The developing world acknow­ledged the benefits of biotechnology for its food security in the new millennium but wor­ried about the manipulation of its bio-wealth by technologically advanced developed countries. The developed countries are able to sequence the genomes cost effectively and quickly, which is leading bio-piracy be­cause patents are based on DNA sequences.

With the help of patent law and IPR regime, some of the traditional food items (i.e. bas­mati rice ap.dchickpea) and medicines (neem extract, peeper extract, Isabgul and karela) already patented. They claimed them as first to specify these characteristics, as novelty and uniqueness is the require­ment of patenting and awarded with patents. But since long this bio-wealth is used by the tribals' and other traditional users when re­search has not started in this direction. Therefor~, if anyone should have the IPR it is those traditional users. If they do not have the right according to patent law the tradi­tional users will be appearing as theft and TNC can ma~e an attempt to enjoy royalty from the ancient users.

The main aim on TNC after getting the IPR is the maximization of economic return with

the help of devised legal agreements, which may lead colonial exploitation, i.e. Bio-colo­nialism6

. The resource poor developed na­tion is trying to get the advantage of unexplored bio-wealth of 'technologically . poor developing countries with the help of modem sophisticated technology, which in ,.--tum putting forth the concern of bio coloni-alism.

Transgenic vs Biodiversity .

The developing countries are provided with enormous bio-resources coupled with fa- ' vourable environment to harbour this flux of genetic material. The hue and cry on the impact of transgenic crops in the developing countries mostly are theoretical in nature except very few studies, which are address­ing the potential risk 7. The concerns regard­ing the possible effect of transgenic o~ biodiversity are probably raised because of lack of understandings about modem com­mercialized agriculture 8.

The transgenic crop may affect the stability and diversity of an eco-system but it is the trait or the acquired property, which inter­acts with the environment, determines the potential impact but not the transgenic plant per se. In transgenics the new gene intro­duced irrespective of the boundaries whereas conventional breeding adds vari­ants of a given gene (new alleles). The gene may probably result in any side effects be­cause it finds itself in different genetic con­text and express differentially ' (position effects) on the present genome.

After green revolution with the advent of modem fanning the high yielding varieties gradually replaced the land races and tradi­tional varieties. However, these varieties and their wild relatives are not important as cul­tivated crops but they are valuable for future

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crop improvement programme. In conven­tional breeding the reproductive barrier lim­its the use of diversity for improvement whereas the genetic manipulation tools al­low the transfer across the reproductive and species barriers.

The probable risks are mostly theoretical and are described as the transgenic plant itself may become a weed as well and the introduced gene may be sexually transmit­ted into wild relatives and traditional varie­ties 9. Thus there is a possibility of the transgenic plant volunteers in nature and thus endangering natural habitat. Though the gene tlow from a transgenic crop would depend on the mode of reproduction. In case of self-pollinated crop the extent is less than 5 per cent whereas in cross pollinated crop it is up to 50 per cent as well as in case of wild and weedy relatives the gene flow is very very less 0 10. This effect in case of weedy species is not that dangerous to cause ex­tinction. Similarly, in case of nonnal crop varieties excess seed rate can compensate the loss. Hence, the fear of loss of entire biodiversity needs further critical examina­tion.

In the past several exotic species like Triti­cale (a cross between durum wheat and rye), Trithordeum (a cross between wheat and oat) released for cultivation, these risks also prevailed but did not receive the attention. Similarly,in the case of the herbicide resis­tant cultivars, where there is a chance of transmission of the resistant genes into wild­weedy relatives, did not centre into contro­versy as the transgenic.

T-GURfs vs Biodiversity

Trait - Genetic Use Restriction Technology (I'-GURTs), i.e. terminator, verminator and traitor technology are developed to claim monopoly over the market by creating the

chemically dependent plants with proprie­tary genes and declares biological warfare for the new millennium 11. These T-GURT seeds are genetically modified to produce specific traits like sterility, tolerance to salt, drought, pest ,etc. A key attraction of all T­GURTs is that they will give companies bet­ter protection against unauthorized copying than patents 12 .

The poor farmers of Asia, Africa, Latin Amer­ica and other under developed and develop­ing nations depend fully on their farm saved seed for crop production. These technolo­gies will not allow them to save seeds, which can cause disasters on humanity and world food security. The Consultative Group on International Agriculture Resea rch (CGIAR) has promised not to incorporate these T-GURT technologies on their crop­breeding programme due to its effect on the sustainable agriculture. On the contrary, these technologies have potential negative impact on biodiversity if the gene got trans­ferred 11,12.

The seeds are suitable for consumption or not because of the toxin produced to inacti­vate the gennination is a debatable issue because these are not focussed properly all are theoretical 13. The toxin may not have any direct effect but poised the serious ques­tion regarding indirect health hazards. The other major concern is that not only the human beings do interact with the seeds but also the birds, animals, insects, soil bacteria, fungi and numerous microorganisms will in­teract - so the question is how will this toxin affect the ecosystem and ecology.

On the contrary, the activation of tenninator gene requires pre-soaking of the seed in tetracycline and for a seed company han­dling of such huge amount of this antibiotic and dispose it of is another serious threat to environment and health. It does not have

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any direct effect on human health but can effect the beneficial microorganisms of our dailr dynamics and may prove to be seri­ous 3. The large-scale use of tetracycline for seed treatment may adversely affect the beneficial microbes of the soil.

The serious implication of these TGURT technologies may lead to sterility and the loss of entire biodiversity 14. Though the gene flow from a terminator crop would de­pend on the mode of reproduction. In case of self-pollinated crop the extent is less than 5 per cent whereas, in cross pollinated crop it is up to 50 per cent. But once the pollen of terminator plant pollinate and form the seed it will lead to 'suicide'. This effect in case of weedy species is not that dangerous to cause extinction as the chance of gene flow is very very less, similarly in case of normal crop varieties excess seed rate can compensate the loss. Hence, the fear of loss of entire biodiversity and fertility needs further criti­cal examination 15.

Indian Biodiversity Act

Being a signatory in the wro agreement the foreign nationals will have access to our bio-wealth and as CBD member also India has to oblige to give access to bio-resources on equitable sharing basis to all stake hold­ers. To give the right of access India is the first country to formulate the regulation i.e. Biodiversity Act (BDA) to oversee the right to preserve and conserve it properly without unfettered authority.

The Government of India, which addressed the following issues, has drafted the Biodi­versity Act:

(a) The responsibility entrusted on cata­loguing bio-wealth, peoples' knowl­edge and conservation efforts to define public-domain resources.

(b) Peoples' knowledge shall be regis­tered at local, state and national level and protected with the help of suigen­eris system of IPR.

(c) Prior consent from the national author­ity has to be obtained by the foreign agency for accessing biological re­sources and related knowledge.

(d) The royalty can be shared by the per­sons or group of persons, who has ex­clusively contributed to the knowledge/ resource, otherwise shall be deposited in national biodiversity fund.

(e) Prior permission must be obtained from India if any person applying for IPR in India/ abroad for the biological resources from India.

(0 The national authority has the right to oppose the IPR granted in relation to biological resources/ knowledge de­rived from India.

(g) The people would be rewarded for bio­diversity conservation efforts and knowledge.

In the BDA the concept of local community is also considered to pay public's interest dominance to decide whether the bio-wealth of that area would be exploited or not. This biodiversity bill would be regulating the ac­cess to bio-resources as well as without its permission no export of biological resources can be done.

Future Strategies

• Assessment of resources, its need, oppor­tunities and capacities of the country for sustainable use and bio prospecting (ge­netic and biochemical value of bio-re­sources) of its genetic resources.

• Legislation and national policies to share the benefits and concerned knowledge

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arising out of the bio-resources with them whom providing them, as a condition of access.

• Policies and strategies to add value to genetic resources and generation of greater income as well as other social and developmental benefits from environ­mentally sustainable activities.

• Encouragement of the traditional users and rural youths for the protection ofbio­diversity by providing some benefits and incentives for the conservation of it.

• Development of multidisciplinary ap­proaches 16, institutional links and mechanisms for mutual bio-prospecting partnership within country, foreign na­tionals and other users.

In TRIPS Agreement one clause deals with geographical appellations, which indicates "goods originating in the territory of a mem­ber state, where a given quality, repletion or other characteristics of the goods is essen­tially attributable to its Geographical Appel­lation". This clause is an advantage for India, which would prevent unfair competition, misleading public and of great importance in the context of agricultural exports 4. The another advantage is that India enjoys varied agro-climate from alpine in Himalayas to tropical in south, from arid in Rajasthan to highly humid in Assam and West Bengal 17.

This has consequently given rise to varied flora, which includes the entire range of In­dian biodiversity in agri-horticultural crops and expertise ourselves in evolving new crop varieties. India already experienced green revolution in which biodiversity played ma­jor role ip increasing the productivity by developing new high yielding varieties. In­dia also has a huge brainpower, which can be utilized for the innovation, and discovery of new products but what we need is the

formulation of proper biodiversity protec­tion strategy. In spite of all these advantages why not India will develop proper protection system for her immense bio-wealth as wen as push our agricultural system to the status of industry 2.

The tools of ~iotechnology offer both chal­lenges and tremendous opportunities for growth and development of mankind. These technologies should be used to complement the traditional methods for enhancing pro­ductivity and quality rather than to replace the conventional methods 12. In the light of today's urgent needs there should be all out effort to use new technological inputs for the developm~nt of our society as well as to make "Green Revolution" a "Evergreen Revolution".

Another central problem is the approach to­wards the most sophisticated biological plant and animal system. Adaptability is the single major factor, which allows them to exist in the world (Darwin's natural selec­tion) is ignored in reality, which has an eco­logical and social impact. The global needs as well as the global ecological concerns should be understood rationally while tak­ing the advantage of new and obviously use­ful technologies for the future.

The recent tools open the new avenues to make use of diversity without depleting bio­diversity. The biodiversity is depleted by one species because of its uncontrolled growth i.e. Homo sapiens 8. At this present time research and development strategies should be eco-friendly, economically viable, pro­gressive growth in productivity and sustain­ability because the further damage to our natural resources may not lead to food secu­rity. The fact is that India must avoid taking extreme decisions and has to integrate itself in the world economy otherwise we will be alienated in the global economy. It is high

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time for the protection of the sovereign right of our country over the biological resources and converting them to economic wealth.

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4 Tewari S & Singh R , TRIPS and its impact on agriculture, Pesticides World, April-May 1998, 12-14.

5 Ghosh S K, Ramachandra N G & Sadananda A R, The aroma of Basmati fades. Science Express, The New Indian Express, 23(131) 1999,2.

{) Tibbs H, Bio-wealth in jeopardy, Pesti­cides World, Oct. -Nov, 1998, 12-13. ,

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13 Crouch M L , How the terminator ter­minates? An explanation for the non­scientist of a remarkable patent for killing second generation seeds of crop plant!:;, An occasional paper, 1-11, 1998, The Edmonds Institute, 20319-92nd Avenue, Edmonds, Washington, USA

14 Kumar S & Bhat V, Traitor technology­a threat to national food security, Cur­rent Science, 77 (7) 1999, 844.

15 Ghosh S K & MandaI D, Biotechnol­ogy- the promoter or terminator , Farmer and Parliament, 34(3) 1999, 19.

16 Ananthakrishnan TN, Multidimen­sional links in biodiversity research, Current Science, 77(3) 1999,356-358.

17 Dubey N K, Bioprospecting - options for India, Current Science, 78(4) 2000, 369-370.