This is a comment by SKT Nasar on the opinion by Howard D. Grimes et alia (2011) on ‘Food Security Needs Sound IP’ published in The ScienceDaily On-line
So long as agriculture continues to be practised on land and partly in water, it shall remain a sensitive issue for socio-politico-economy of world’s peoples. There is as yet no factory-based mass scale industrial system of agricultural production that draws raw inputs from freely available natural resources and specific advantage of agro-ecosystems.
Intellectual Property Rights (IPR) regime originated initially for trade-related industrial production systems which agriculture is considered to be not. That is why global application of IPR to agriculture took long and circuitous paths through decades. IPR in agriculture and other biology-based technologies faces controversies till date.
The opinion by Howard D. Grimes et alia (2011) on ‘Food Security Needs Sound IP’ skips ground realities in India and similarly situated countries. The primary contention of Howard D. Grimes et alia is that protection of IPR needs improvement to help promote transfer of sustainable agricultural technologies remodelled into inexpensive tools accessible to ‘world’s poorest populations’ and that such technologies are ‘most likely to be developed by the industrialised countries’. Their contention is unacceptable.
Attention is drawn here to just two among many international instruments: World Trade Organisation (WTO) and Convention on Biological Diversity (CBD).
India became a member of the WTO on 1 January 1995. It also brought to reality in an updated form the failed attempt in 1948 to create an International Trade Organization (ITO). WTO is concerned with all trade-related aspects among and between countries. Member countries are required to frame laws for equity in transborder trade. One major aspect of WTO is Trade Related Aspects of Intellectual Property Rights (TRIPS). In conformity with WTO, TRIPS and Agreement on Agriculture (AoA), a number of acts have been promulgated in India. Several of existing laws have been amended or extended in scope and application. A few of such laws are Indian Patents Act, Protection of Plant Varieties and Farmers’ Rights Act, Geographical Indication Act, Seed Act etc.
The CBD is another international legally binding treaty with three principal goals: conservation of biological diversity (biodiversity), sustainable use of its components and fair and equitable sharing of benefits arising from genetic resources. India is a party to the United Nations CBD signed at the Earth Summit, Rio de Janeiro on 5 June 1992. The BD Act 2002 is in existence in India as Law. Rules (BD Rules 2009) under this law have been implemented.
Global IPR regime initiated by WTO-TRIPS-AoA should be considered together with CBD in the Indian context. Government of India, on the recommendations of the National Biodiversity Authority, framed rules in 2009 for ground level implementation of the provisions of BD Act. An important feature is elaboration of Traditional Knowledge (TK). These rules are called the ‘Rules for Protection, Conservation and Effective Management of Traditional Knowledge Relating to Biological Diversity’. TK has been defined under these rules as:
“the collective knowledge of a traditional community including of a group of families, on a particular subject or a skill and passed down from generation to generation, either orally or in written form, relating to properties, uses and characteristics of plant and animal genetic resources; agricultural and healthcare practices, food preservation and processing techniques and devices developed from traditional materials; cultural expressions, products and practices such as weaving patterns, colors, dyes, pottery, painting, poetry, folklore, dance and music; and all other products or processes discovered through a community process including by a member of the community individually but for the common use of the community”. Despite the enormous volume of TK-based products, their production systems have not been categorised as industry simply because these belong to the unorganised sector and benefits thereof are public good freely accessible to all. Unknown or unrecorded individuals and communities are TK inventors which is why IPR system disregarded TK as patentable. This simple fact illustrates that IPR is basically meant to channel profit to inventors and their mentors but not to all as the common property. Normal patent laws tend to provide time-bound ownership to individual inventors and for inventions demonstrating novelty and capability of industrial application. Agrodiversity-suited agricultural practices, location-specific biodiversity and community-based TK, on the other hand, have collective ownership held in perpetuity from generation to generation, are incremental, informal and occur over time. India and the international community, following long and tortuous debates, finally accepted to recognise and protect TK by suitable laws. Since common laws were inadequate, a sui generis (i.e. unique unto itself) IPR law was considered indispensable to protect TK. The question was how to make appropriate laws for TK protection. India provides for collective rights of communities over TK, location-specific or community-specific innovative products, forest management and biodiversity through separate laws. These rights must be used for the common good of all. Other uses for commercial, scientific and research purposes may be allowed only with prior informed consent (PIC) to be obtained from the traditional community. Misappropriation of TK (in any form of appropriation, monopolisation, including claims of private ownership and/or intellectual property rights etc.) which deprive the concerned traditional community from using, conserving and protecting TK is not permissible. TK and biological resources must be utilised for equitable access and benefit sharing (ABS). Under BD Act, local BD Management Committees (BMC) of the panchayat level is responsible for creating and updating local-level BD Registers. India has already put on the web the Traditional Knowledge Digital Library (TKDL). Such digital database enables Indian citizens and Patent Offices around the world to search and examine any TK to prevent grant of erroneous patents and to deter biopiracy. It is conceded here that, regrettably, Indian laws driven by commitments to WTO and CBD are not implemented as these ought to have been. The reasons for this lacuna are lack of awareness by scientists and other stakeholders in agriculture and absence of the required infrastructure.
Indian agriculture is a gigantic producing-consuming market. It is faced with unprecedented challenges. The global developments in cutting edge technologies in conjunction with open market economy encourage the national potentials to gain a comparative advantage. With WTO and CBD related commitments to an altering World Order, Indian agriculture calls for commensurate action to national benefit. Agriculture has grown larger than mere cropping of organisms. India needs manpower to steer the agriculture sector through international disputes, trade intrigues and local-level litigation. People’s Biodiversity Registers and documentation of innovations of all kinds and at all levels should become indispensable through mass awareness and action.
An improved protection of IPRs recommended by Howard D. Grimes et alia shall fail to provide the public good that ‘the world’s poorest populations’ actually need. IPRs in all its forms, shades and extensions, including Community and Farmers’ Rights, must be concurrently considered en bloc to create common public good. Only then shall IPRs benefit world’s agriculture.
SKT Nasar
Kolkata, India
sktnasar@hotmail.com
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