This article is written by Aashi Jain of 2nd Year of Dharmashastra National Law University, Jabalpur, an intern under Legal Vidhiya
ABSTRACT
Intellectual Property is the oil of 21st Century
-Mark Jetty
IPR, or Intellectual Property Rights, refer to legal rights granted to creators and inventors over their intellectual creations or innovations, providing exclusive rights to use, reproduce, and profit from their work. These rights include trade secrets for private information, copyrights for creative and literary works, trademarks for branding, and patents for inventions.
From discovery of Bulb by Thomas Edison, invention of Airplane by Wright Brothers to the works of the great Shakespeare, all their works fall under the purview of Intellectual property.
Legal, ethical, and economic factors play a role in shaping the complex environment that exists at the dynamic junction of Intellectual Property Rights (IPR) and genetic resource preservation. This abstract investigates the effects of intellectual property rights (IPR) frameworks, such as patents, trademarks, and copyrights, on genetic resource conservation, use, and fair benefit-sharing. It emphasizes the importance of sustainable practices, the difficulties of biopiracy, and the acknowledgement of traditional knowledge by highlighting case studies and international accords such as the Convention on Biological Diversity (CBD). In the end, resolving these problems calls for a reasonable strategy that supports creativity while preserving biodiversity and upholding the rights of indigenous groups.
Keywords
IPR, Genetic Resource, CBD, Biopiracy, TRIPS, Innovation, Protection
INTRODUCTION
One of the most contentious topics on the agenda in the discussions of numerous national and international organizations is the connection between genetic resources and intellectual property rights. IPR-based genetic resource protection is a complex topic with interrelated ethical, legal, and financial aspects. One major problem is biopiracy, or the unauthorized use and access of genetic resources.
IPR highlights the need to strike a balance between the advantages of using genetic resources and the rights and interests of indigenous people as well as the preservation of biodiversity. As biotechnology develops, it is more crucial than ever to safeguard these resources and make sure that genetic materials are used in a sustainable, just, and fair manner. Researchers and corporate businesses have become more interested in genetic resources in the last few decades. Simultaneously, intellectual property rights (IPR) legislative frameworks have been reinforced to provide increased protection for seeds and pharmaceuticals. As genetic resources, seeds are crucial to agriculture and the world’s food security. In a similar vein, traditional knowledge and genetic resources derived from medicinal plants are essential for the creation of novel medications. Therefore, it is critical to comprehend the complex link that exists between genetic resource conservation and intellectual property rights. and hankering after strong legal systems that uphold the interests of all parties concerned while fostering innovation. A more complex understanding of this interaction helps us to see how important intellectual property rights (IPRs) are to the long-term sustainable use and management of genetic resources, opening the door to a day when conservation and innovation coexist.
IPR: THE CUSTODIANS OF CREATIVITY
Imagine having a brilliant idea for a song, a revolutionary innovation, or a one-of-a-kind design. Your creative invention is protected by intellectual property rights, which prevent others from simply stealing it and passing it off as their own original creation. Intellectual property (IP) is the legal domain that includes mental creations like inventions, literary masterpieces, and artistic works, among others. The creator of these works of art is granted a bundle of unique rights known as intellectual property rights, which allow him to exploit his inventions for an extended length of time without worrying about being copied. The United States Constitution, which was drafted in 1787, was the first legal text to acknowledge these rights. Subsequently, as a fundamental part of its guiding principles, the UDHR’s Article 27 expanded these rights to include the protection of authors’ “moral and material interest” in their “scientific, literary, or artistic productions.” The careful balancing act between encouraging innovation and maintaining ethical norms has become crucial in the current era of rapid technology breakthroughs.[1]
The protection of intellectual property rights is crucial for promoting creativity, originality, and innovation. They provide artists and inventors with the incentive to devote their time and financial resources to the creation of new concepts and goods. For the person who created the work, motivation comes from knowing that their efforts will be rewarded. Without intellectual property rights (IPRs), anyone might freely copy works without the original creator’s consent or authorization, which would remove all motivation to develop. Indian artists produce the art, which subsequently draws in international funding. This contributes to the nation’s GDP growth and increase in foreign exchange. Additionally, this helps consumers since it gives them access to high-quality goods, which enhances their quality of life. New capabilities and technology have also led to an increase in work opportunities. This ecology contributes to economic expansion.
Recognizing the legal safeguards that intellectual property offers is necessary to comprehend its function. Legal repercussions may follow infringement of intellectual property rights, safeguarding not only the artists’ legal rights but also the integrity of the free market that values creative expression.
TYPES OF INTELLECTUAL PROPERTY
There are four primary categories of internationally recognized intellectual property rights:
Patents
The exclusive rights to their inventions are granted to inventors by patents. The Registration and Protection of Patents in India are regulated under the Patents Act of 1970. With the protection of a patent, an inventor can prevent third parties from creating, utilizing, importing, or selling their creation. It encourages economic expansion and provides incentives for technological breakthroughs. Percy Schmeiser was found to have violated Monsanto’s patent by cultivating genetically engineered canola plants without obtaining Monsanto’s seeds, according to the Supreme Court of Canada. The ruling placed a strong emphasis on patent holders’ rights as well as the enforceability of patents on genetically modified crops [2].
Copyrights
Original works of art, music, theater, and literature are protected by copyrights. The Copyrights Act of 1957 grants creators exclusive rights over their works of art while defending their rights. The ability to duplicate, distribute, perform, exhibit, and modify one’s own creations is granted by copyrights. This supports the preservation of cultural manifestations and the promotion of creativity.
Trademarks
Trademarks are unique symbols, signs, or logos that are used to identify and set one entity’s goods and services apart from another. In India, trademark protection and registration are governed by the Trade Marks Act of 1999. Building consumer trust, market reputation, and brand recognition all depend heavily on trademarks.
Trade Secrets
Trade secrets are exclusive knowledge and techniques that provide companies a competitive edge. Trade secrets are kept private, in contrast to patents and copyrights. Important information like formulas, production procedures, client lists, and company plans are kept confidential by businesses. Businesses are encouraged to invest in R&D by the protection of trade secrets, which gives them a competitive advantage in the marketplace.[3]
GENETIC RESOURCES AND ITS LEGAL FRAMEWORK
Genetic material of plant, animal, microbial, or other origin having functional units of heredity that have actual or potential value is referred to as a genetic resource (GR) under the 1992 Convention on Biological Diversity (CBD). A few examples are agricultural goods, animal breeds, and medicinal plants. Due to their widespread usage in contemporary scientific research as well as the many generations of use by local communities and indigenous peoples, some genetic resources (GRs) are linked to traditional knowledge (TK) and traditional practices. GRs that occur naturally are not regarded as intellectual property (IP). Since they are not creations of human brain, they cannot be directly protected as intellectual property. However, through the IP system, inventions based on or created utilizing GRs (and related TK) are eligible for protection, either in the form of a patent or other IP rights.[4] It was decided by the US Supreme Court that patents could be granted for genetically modified organisms, or GMOs. Microbiologist Chakrabarty created a bacterium that could degrade crude oil, which was useful for cleaning up oil spills. The court determined that because the bacterium was created by humans, it qualified for patent protection under US law. A precedent for the patentability of genetically modified organisms was established by this case.[5]
The agricultural and health industries, particularly those reliant on plant genetic resources, are the most significant in terms of both turnover and development impact. In terms of contemporary agriculture, the use of GR in biotechnology and the breeding of new plant varieties in particular holds the potential to improve yields and boost resilience to pests, viruses, water scarcity, and herbicides, among other factors, ultimately resulting in increased food security. There is still a great deal of untapped potential in GR use. Microorganisms found in the ecology of hydrothermal vents on the ocean floor and seabed, for instance, are examples of GR that exist in the harsh conditions of the deep sea and have characteristics that could be extremely valuable from both a scientific and commercial standpoint. GR, however, has a wider range of multifaceted values in addition to their economic advantages. The ecological, genetic, social, scientific, economic, educational, cultural, recreational, and aesthetic aspects of biological variety and its components—of which GR is one—are acknowledged in the preamble to the Convention on Biological variety (CBD).[6]
The “erosion” of genetic resources and traditional knowledge, the availability of fewer public funds for conservation efforts, the creation of social injustice when traditional communities are not compensated for the use of their knowledge, and the growing mistrust between the business community and biodiversity-rich nations regarding the potential commercial use of these resources are all threatened by continued unauthorized access and careless use.[7]
Biotechnology, molecular biology, and bioinformatics have advanced at a rapid pace, resulting in the creation of new legal, political, and technological frameworks governing the use of genetic resources (GR). Three significant international agreements that have significantly impacted access to genetic resources (GR) are the Convention on Biological Diversity (CBD )[8], the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). These developments have created a complex ecosystem where regulating access to genetic resources is now possible.[9]
Effective management of our natural resources is essential to human existence on Earth and to the preservation of all living things. The Convention on Biological Diversity (CBD) prioritizes biodiversity conservation as a critical endeavor in this regard. The 1993 enactment of the CBD solves these issues. Its main objective is to protect biological diversity, but it also seeks to establish the just and equal distribution of gains from the utilization of genetic resources. The CBD states that every nation has sovereign rights over its natural resources, including genetics resources. Prior informed consent (PIC) from the nation supplying the resources is necessary in order to access them, and steps must be made to guarantee the fair and equitable sharing of research and development results derived from genetic resources. 196 nations are party to the Convention as of May 2024.
TRIPS LOOPHOLES
In order to live on this planet, we must manage its natural resources, which is a crucial step in safeguarding all living things. In order to achieve this, the Convention on Biological Diversity, or CBD, has made biodiversity conservation its top priority. These kinds of circumstances are reflected in the Convention on Biological Diversity (CBD), which went into force in 1993. Although the primary goal of the CBD was initially to protect biological variety, one of its other goals is to ensure that the advantages of using genetic resources are shared fairly and equally. The Convention on Biological Diversity (CBD) and TRIPS clash, underscoring the need for greater harmonization in order to meet the objectives of global sustainability.[10]
ISSUE & CHALLENGES
In order to balance innovation, equity, and conservation, there are a number of intricate and interconnected concerns that are brought up by the protection of genetic resources through Intellectual Property Rights (IPR). The main problems are as follows:
1. Biopiracy and Misappropriation
ETC Group is credited with coining the phrase “biopiracy.” One of the biggest problems is biopiracy, in which organizations take advantage of genetic resources and related traditional knowledge without the right permission or payment to the native populations that have protected and used these resources for many years. This approach not only denies these communities the benefits they are legally entitled to, but it also jeopardizes efforts to maintain traditional knowledge.[11]. A more famous biopiracy case is that of neem (Azadirachta indica), involving the patenting of its natural therapeutic qualities without taking into account the traditional wisdom of India, which sparked a legal challenge and international criticism. The ethical and legal difficulties of safeguarding genetic resources and traditional knowledge under the current intellectual property regimes were brought to light by this historic case.[12]
2. Lack of Benefit-Sharing Mechanisms
A fair and equitable benefit-sharing arrangement from the commercial use of genetic resources is frequently not ensured by the current IPR regimes. Due to this shortfall, the proceeds from the sale of these resources do not sufficiently support the nations or communities from whence they originated. This exacerbates inequality and may even discourage efforts to conserve biodiversity.[13]
3. Absence of Disclosure Requirements
IPR-based patent systems do not always require applicants to reveal the source of genetic resources or related traditional knowledge. Due to the lack of transparency, it is challenging to keep an eye on how genetic resources are being used and to guarantee adherence to international accords that prioritize benefit-sharing and access, like the Nagoya Protocol and the Convention on Biological Diversity (CBD).
4. Conflict with Traditional Knowledge Systems
The ideals of originality and private ownership that underpin IPR systems, especially patents, might be at odds with the social and communal aspects of traditional knowledge systems. The holders of traditional knowledge may become marginalized as a result of this misalignment, and they may find it difficult to safeguard their intellectual property under the current legal systems.
5. Ethical Concerns
The commoditization of genetic resources and living forms raises serious ethical questions. Concerns concerning the ethics of possessing living things, the effects on biodiversity, and the security of food supply are brought up by the patenting of genetic sequences, plants, and microbes. When resources that are essential to indigenous groups’ traditional and spiritual activities are at stake, the matter becomes even more divisive.
6. Enforcement Challenges
It is difficult to enforce intellectual property rights (IPR) pertaining to genetic resources, particularly in developing nations with weak administrative and judicial systems. The intended advantages of IPR protections may be undermined by widespread non-compliance and the unlawful exploitation of genetic resources as a result of this lax enforcement.
CONCLUSION
The intersection of Intellectual Property Rights (IPR) and the protection of genetic resources calls for careful and inclusive governance. While IPR frameworks encourage innovation and economic progress, they must evolve to ensure fair access and equitable sharing of benefits, crucial for sustainable global development. Safeguarding genetic diversity and respecting traditional knowledge through strong legal frameworks is essential to prevent biopiracy, honor indigenous rights, and preserve our planet’s rich genetic heritage. This responsibility highlights the need for collaborative efforts that balance innovation with the conservation of our natural and cultural resources for future generations.
REFERENCES
- Striking A Balance Between Intellectual Property Rights And Human Rights In The Era Of Technology And Innovation, https://www.livelaw.in/lawschool/articles/intellectual-property-rights-human-rights-technology-and-innovation-252986
- Shielding Creativity: Understanding Intellectual Property Rights in India, https://www.lexisnexis.in/blogs/shielding-creativity-understanding-intellectual-property-rights-in-india/
- Intellectual Property and Genetic Resources, https://www.wipo.int/edocs/pubdocs/en/wipo-pub-rn2023-5-10-en-intellectual-property-and-genetic-resources.pdf
- Intellectual Property Rights on Genetic Resources and the fight against poverty, 2011, https://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/457063/EXPO-DEVE_ET(2011)457063_EN.pdf
- Genetic Resources, Traditional Knowledge and Intellectual Property Rights: Promoting Synergies for Sustainable Development, https://www.ciel.org/Publications/iprights.pdf
- “Beyond Access and Benefit-Sharing: Lessons from the Law and Governance of Agricultural Biodiversity”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2796658
- Intellectual Property Rights (IPR) issues related to access and use of genetic resources
- https://www.researchgate.net/publication/334393285_Intellectual_Property_Rights_IPR_issues_related_to_access_and_use_of_genetic_resources
- “Biopiracy related to Traditional Knowledge & Patenting issues”,
- https://www.birac.nic.in/webcontent/dib.pdf
- “Intellectual Property Rights: Bioprospecting, Biopiracy and Protection of Traditional Knowledge – An Indian Perspective”, https://www.intechopen.com/chapters/78249
- “WIPO concludes treaty to protect genetic resources, traditional knowledge”,
- https://www.business-standard.com/world-news/wipo-concludes-treaty-to-protect-genetic-resources-traditional-knowledge-124052500803_1.html
[1] Mohd. Rehan Ali & Khan Obaida, Striking A Balance Between Intellectual Property Rights And Human Rights In The Era Of Technology And Innovation, LIVE LAW, 21 March 2024, https://www.livelaw.in/lawschool/articles/intellectual-property-rights-human-rights-technology-and-innovation-252986
[2] Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902, 2004 SCC 34 (CanLII)
[3] Shielding Creativity: Understanding Intellectual Property Rights in India, LEXISNEXIS, March 26, 2024, https://www.lexisnexis.in/blogs/shielding-creativity-understanding-intellectual-property-rights-in-india/
[4] Intellectual Property and Genetic Resources, WIPO, https://www.wipo.int/edocs/pubdocs/en/wipo-pub-rn2023-5-10-en-intellectual-property-and-genetic-resources.pdf
[5] Diamond V. Chakrabarty, 447 U.S. 303 (1980)
[6]Sebastian, Intellectual Property Rights on Genetic Resources and the fight against poverty, 2011, https://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/457063/EXPO-DEVE_ET(2011)457063_EN.pdf
[7] Genetic Resources, Traditional Knowledge and Intellectual Property Rights: Promoting Synergies for Sustainable Development, CIEL, September 2, 2002, https://www.ciel.org/Publications/iprights.pdf
[8] Elsa Tsioumani, “Beyond Access and Benefit-Sharing: Lessons from the Law and Governance of Agricultural Biodiversity”, SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2796658
[9] Prathiba Brahmi, Vandhana Tyagi, Intellectual Property Rights (IPR) issues related to access and use of genetic resources, RESEARCH GATE, January 9, 2019
[10] Supra 5
[11] Suvarna Pandey, “Biopiracy related to Traditional Knowledge & Patenting issues”, BIRAC, https://www.birac.nic.in/webcontent/dib.pdf
[12] EPO Decision on Neem Case (T 0412/93
[13] Supra 8
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