Ab  With only 2.4 per cent of the land area, India already accounts for 7-8 per cent of all the recorded species of the world.

       It provides habitat to more than 46,000 species of plants and 81,000 species of animals.

       These resources are of enormous economic value. On one hand they provide livelihood for millions of local people, and on the other, agriculture, pharmaceutical and biotechnology companies across the world (including India, of course) make gigantic profits from products developed from germplasms.

                       Jadibuti Baba                              Professor Ghaaspus                                           Mr Moneybags

The steady disappearance of the world’s biodiversity had been recorded earlier, but the problem reached scary heights in the late 1980s. The loss during this decade was described by experts as “the most catastrophic” in the last 65 million years! It was also becoming quite obvious by then, that these resources were the fodder for a booming market.

Want to know exactly how booming it was? Well, the worldwide biotechnology business in 1992 was estimated to be US $ 50 billion. Add to this the volume of resources used as raw materials by wings of the agriculture and pharma industry, and you would arrive at a truly staggering figure.

There was another, uglier, more complicated issue that was raising its head in the arena of international trade. The developing world or the South was waking up to the fact that companies from the industrialised nations or the North were doing business with their reserve of genetic raw material. Because the South provides habitat for almost 80 per cent of the planet’s biodiversity, and the industries were helping themselves to it indiscriminately! They were also accessing the traditional knowledge of the local communities on the properties and uses of these resources. But none of the phenomenal profits flowing out of these products were being shared with the countries ‘of origin’. Neither was any compensation for the loss of the valuable species being offered to their people.

Clearly, time was ripe for business negotiations of a unique kind. It was in this environment that the Convention on Biological Diversity came into being.

The final draft of the Convention on Biological Diversity was tabled in the historic Rio Summit in 1992. The last lap of the negotiations was severely hampered by the divided interest of the two squabbling camps. While the North was pushing for easy access to germplasms while delaying discussion on profit sharing, the South were determined not to allow access without a legal share of the profits!

However, disputes were resolved, albeit with certain conditions, and the Convention was signed by 156 nations at the end of the Rio Summit. The US, predictably, was the only country to reject the CBD, on the ground that it found its text an “assault” to the concept of Intellectual Property Rights (IPR) and related issues. Obviously the US government was under tremendous pressure from powerful business houses and corporate groups such as the Pharmaceutical Manufacturers Association. So what does the CBD text highlight? It focuses on three main issues:

      Conservation of biodiversity;

      Its sustainable use;

      And fair and equal sharing of benefits arising out of its use.
 

  Community covered!  

The most dynamic component of the Convention is that it recognizes the rights of the ‘communities’ on wild and domesticated resources. That’s not all. It also makes the signatory countries commit to setting up a system of benefit sharing, to compensate communities for the use of bioresources and related knowledge by national or multinational or pharmaceutical, agricultural and biotechnological companies. The gene-rich South is to get biotechnology in return for the bioresources it provides. . There is a catch though.

While CBD is a legally binding treaty, it does not spell out specific targets, or list out species and areas to be protected. It provides the guidelines, but leaves it to individual nations to flesh them out and work towards the final objectives.

Today it has 192 signatories, and only four countries, Andorra, Holy See, Somalia and, yes, the United States have not signed it as yet.

Now let us take a closer look at the Charter. Understanding the nitty gritties of each article of the Convention will take time, so lets focus on the two components that directly relate to the business of biodiversity. The one which defines the rights of the local people and the one which talks about safe handling and use of genetically modified organisms.

Definitely the most talked about article in the convention text of CBD. Article 8 j says “Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices”

Rather long winded, isn’t it? Suffice to remember two important points:

• Nations must have their internal mechanisms to protect the traditional knowledge of their own community, enforced through a legislation.
• The law must ensure equitable sharing of the profits, which arise from use of this traditional knowledge.

Incase you are wondering why such a big deal is being made out of “approval and involvement of the holders of such knowledge, innovations and practices”, consider this: A study in 2000 revealed that worldwide, 7000 patents had been granted for the unauthorized use of traditional knowledge or the misappropriation of medicinal plants.

Researchers stated that of the more than 130 clinically useful prescription drugs that are derived from plants, over 70 per cent attracted the attention of pharmaceutical companies because they were being used in traditional systems of medicine.

The term was coined in 1993 by a Western NGO, RAFI. Biopiracy defines the industry’s systematic manner of taking over genetic resources and knowledge systems of local communitis, and then seeking exclusive monopoly control (usually patents) over these. Here are some tales of piracy that have shaken the world

Turmeric (Curcuma longa Linn): cooking up a storm

Generations of Indians who grew up using ‘grandmother’s remedy’ of using hot turmeric paste on scrapes and cuts were furious when two expatriate scientists at the University of Mississippi Medical Centre claimed rights on it. Suman K. Das and Hari Har P. Cohly were granted a US patent (no.5, 401,504) on use of turmeric in wound healing in 1995.Our Council of Scientific & Industrial Research (CSIR) filed a case with the US Patent and Trademark Office (USPTO), citing ancient Sanskrit texts as evidence. The patent was revoked in 1997. It was a landmark case. A patent based on the traditional knowledge had been successfully challenged.

Neem (Azadirachta indica): bitter but not sweet

Every bit of neem--from branch to bark to leaf – has been used in Indian households and by medics for centuries. In 1994, European Patent Office (EPO) granted a patent to the US-based company, W. R. Grace and the US Department of Agriculture for a neem oil based pesticide. A group of NGOs and farmers’ representatives challenged it in 1995 claiming that the formulation is already in use in farmlands. In May 2000 the patent was revoked.

Basmati: no alien aroma

In 1997, the USPTO granted a patent to a US agribusiness house, Rice Tec, to call a variety of aromatic rice, Basmati. Since this grain grows exclusively in the Himalayan foothills in India and Pakistan, just as Scotch whisky is produced only in Scotland, angry protests erupted in the subcontinent.

The Agricultural and Processed Food Exports Development Authority (APEDA), on behalf of Indian rice traders challenged the patent. It was withdrawn after years of legal tangle. But varieties that ape the celebrated basmati strain, can still be cultivated anywhere in the world. Simply by altering their names.

When CBD was negotiated in 1992, one of the key issues set aside for discussions later was the question of regulating the unique risks presented by Genetically Modified Organisms (GMOs). The text mentioned that countries must ‘consider the need for’ a biosafety protocol to ensure safe handling of GMOs. Experts in the South gave three specific reasons why a protocol on biosafety was needed:

There is a strong possibility of Northern biotech companies would transfer their research work and production units to developing nations with loose or non existent regulations;

Pesticides banned in the North were being exported to the South. Similarly, GMOs that fail safety standards of the West may be shipped to the less developed countries where the governments were more permissive;

The traditional exporters of agricultural products may suffer a financial setback when importing countries begin to produce the same products at home using genetic engineering, and this had to be considered.

The Protocol faced stiff opposition from countries in the West, especially the US, who were in turn being prodded hard by the industry bloc.

But after years of hectic negotiations the Cartagena Protocol on Biosafety was adopted in January 2000. It’s root is in the Principle 15 of Rio’s declaration on environment and development – which is based on Precautionary approach. It seeks to protect biodiversity from any risk that modern biotechnology may pose. It is a shield against any ‘living modified organism, (LMO)’, which is any genetically modified organism that is essentially living and can grow. Typically an agricultural crop variety

The precautionary approach says that if an LMO is considered as a threat to biodiversity, it can be restricted from introduction’. Even in the absence of adequate scientific evidence, t a LMO can be banned on the basis of ‘apprehensions’ it can be stopped.

What has India done till now?

Traditional Knowledge Digital Library (TKDL)

This is a website which documents traditional medicinal systems of Ayurveda, Unani, Siddha, Yoga and Homeopathy. It has records of more than two lakh formulations from various scriptures of Sanskrit, Persian and other languages. It was conceived so as to contest any patent claim on a product or a process that is already in use in any part of our country. As revoking a patent after it has been granted is an extremely time and money consuming process, TKDL is a very useful and proactive initiative.

The website follows the format of the International Patent Office. For instance, the scientific name of Tulsi, Ocimum Sanctum, is recorded there, along with it’s thereapuatic composition, that is, a description of its use as a medicine.

National Biodiversity Act, 2002

This Act was passed by Parliament after five years of deliberations. It is in response to the CBD stipulation on ‘national legislation’ for conserving biodiversity. India already had a host of related laws—the Indian Forest Act, 1927, the Wildlife (Protection) Act, 1972 and the Forest (Conservation) Act, 1980, but a separate legislation was required still. NBA’s main focus is Article 8 j. It establishes a procedure to check biopiracy and to ease the process of benefit sharing. It also plugged the gaps in Indian Forest and Wildlife Protection Acts. The key sections of the Act are :

• (Section 3) (Access to biological resources or Associated knowledge). This in effect means that outsiders (mainly foreigners) cannot undertake Biodiversity related activities without approval of the National Biodiversity Authority
   
• (Section 4) (Transfer of Research Results). Results of research cannot to be transferred to certain persons without approval of the National Biodiversity Authority
   
• (Section 6) (Seeking IPR) Application of IPR rights not to be made without approval of the National Biodiversity Authority.