Biological resources have been defined in the Act to mean plants, animals and micro-organisms or parts thereof. It also includes their genetic material and by-products with actual or potential use or value. However this does not include human genetic material.Commercial utilization means use of biological resources for financial gain.It includes drugs, industrial enzymes, food flavours, fragrance, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used for improving crops and livestock through genetic intervention, and excludes  conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping.The definition is an inclusive one. Such a definition leaves a lot of scope for confusion in cases like collection of forest products by local communities and selling them in the local market. Since products like fruits, leaves or fuel wood necessarily constitute biological resources, whether selling them constitutes ‘commercial utilization’ and hence requires prior intimation to the SBB is a gray area. If construed in this manner, such a provision can cause substantial hardship to the communities dependent on those resources.   

B.      Access by a person other than a citizen of India

Any person who is

a) not a citizen of India

b) citizen of India but a non-resident

c) a  corporation which is neither  incorporated nor registered in India 

d) a corporation which has  a non-Indian participation in its share capital or management, has to follow a procedure before accessing any biological resource occurring in India or knowledge associated with it.

Fee: Rs.10,000/-through cheque or demand draft.

Punishment in case of violation  There can be imprisonment for a term that may extend to 5 years and/or fine upto Rs.10 lakhs. In case the damage caused due to such contravention exceeds 10 lakhs rupees, fine will be proportionate to the damage caused.

II.    Transfer of research results

For transferring any result from research on biological resources occurring in India a procedure has to be followed. To transfer research results to a foreigner, non-resident Indian citizen or a corporation that is not incorporated or registered in India or which has non Indian participation in its share capital or management, one has to obtain approval from the National Biodiversity Authority (henceforth NBA).

Fee: Rs.5000/-through cheque or demand draft.

Punishment in case of violation  Any person who contravenes or attempts to contravene is punishable with imprisonment for a term that may extend to 5 years and/or fine upto Rs.10 lakh. In case the damage caused due to such contravention exceeds 10 lakh rupees, fine may be proportional to the damage caused.

For transfer to an Indian citizen or corporation, no such procedure is provided under the Act.

It is pertinent to mention here that publication of research papers or dissemination of knowledge in a seminar or workshop is not considered as “transfer”. However the publication should be as per the guidelines issued by the Central Government.

Collaborative research projects with other countries involving transfer or exchange of biological resources or information relating to it can be exempted from such approval. Those projects should conform to guidelines issued by the Central Government and should be approved by the Central Government.

Collaborative research projects based on agreements concluded before the commencement of the Act shall also be exempted, but only to the extent that they are not inconsistent with the provisions of the Act or any guideline issued by the Central Government in this regard.

III.   Obtaining Intellectual Property Rights

Any person who wants to obtain intellectual property rights in India or abroad, on an invention based on any research or information on a biological resource obtained from India, has to obtain prior approval from the NBA. However if the application for rights is made under any other law relating to protection of plant varieties, then the approval from the NBA is not required.

In case of a patent, approval from the NBA may be obtained after acceptance of the patent, though before the sealing of the patent by the concerned authority.

Fee - Rs.500/-through cheque or  demand draft.

Punishment in case of violation of this provision - imprisonment for a term that may extend to 5 years and/or fine up to ten lakh rupees. In case the damage caused due to such violation exceeds ten lakh rupees, fine may commensurate with damage caused.  

The NBA while granting approval under this section can impose conditions including the sharing of financial benefits arising out of the commercial utilization of such rights.

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