National Legislation on Community Rights over Bioresources

Shilpy  Chatterjee

With the advent of biotechnology,bioresources have become much sought after resource.The commercial interest encouraged the conclusion of international agreements like the Uruguay GATT Round and the TRIPS Agreement.The national laws dealing with IPR and bioresources have compliance with these international obligations.Nevertheless,there are components in the national legislation that are protective of the rights of indigenous communities over the bioresources.They are as follows:

Protection of Plant Varieties and Farmer's Rights (PPVFR) Act :

India has put in place a law to grant Farmer's Rights and Plant Breeder's Rights.This legislation was necessitated by the commitments that India made in the agreement on Trade Related Intellectual Property Rights (TRIPS) when it  ratified the Uruguay GATT Round in 1994.Article 27.3 (b)of TRIPS, which deals with the protection of new plant  varieties,offers for a sui generis system.The sui generis system refers to the grant of Plant Breeders' Rights,of an "effective" kind, without defining the kind.It was only due to the aggressive and sustained campaign on the part of the NGO community that forced the government to choose sui generis system as against patents. Gene Campaign has been in the forefront of this campaign from the start. Gene Campaign's position right from the start has been that if we have to grant the Plant Breeders 'Rights our legislation will have to grant a strong Farmer's Rights at the same  time. The Farmer's rights in this legislation allow the farming community to retain the same control over seed production and use what they have always had. These rights are an acknowledgement of the past and present contributions  made by the farming community to the conservation of agro-biodiversity and their role as dynamic breeders of new varieties, which anchor the food security of the world.

Farmer's Rights: Farmers have the right to sow, resow, exchange, save, share and sell all kinds of seed including seeds of protected varieties,in the way he has always done. However, farmers are not allowed to sell protected  variety seeds under any brand name. These are protections against the MNCs trying to gain control over the seed industry. Selling seeds is a major source of income for the farmers and an important livelihood activity.

Benefit sharing through National Gene Fund: PPVFR acknowledges that farmers have played a central role in  conserving and improving traditional plant varieties. It also acknowledges that all new varieties are ultimately based on traditional varieties. Therefore, plant breeders have to pay money into the National Gene Fund, in return for using traditional varieties to breed new varieties.

Disclosure of origin: when breeders apply for protection of their new varieties, they have to provide full disclosure of the geographical source, origin and parentage of their varieties. These requirements are meant to guard against biopiracy.

Terminator technology banned: breeders are banned from breeding plant varieties that use terminator technology. Terminator technology varieties produce seeds that are sterile.

Innocent infringement: The Act protects farmers from being prosecuted for innocent infringements of the provisions of the Act.A farmer cannot be prosecuted for infringement of rights specified in the Act if he can prove in court that he  was unaware of the existence of such a right. This is a significant departure from the general legal rule that ignorance of law is no exception Thus the farmers are made aware of their rights, as they have little access to the developments at the national level.

The Biodiversity Act:

The objective of the Biological Diversity Act (henceforth BD Act) is threefold.

1. conservation of biological diversity;

2. sustainable use of biodiversity;and

3. fair and equitable sharing of the benefits arising out of the use of biological resources, indigenous knowledge and other matters connected with it.

The Act is India's response to the Convention on Biological Diversity.

The issues concerning village communities are as follows: Permission for using biological resources: Anybody, other than the local community, accessing the biological resources and traditional knowledge needs to take the permission of the National Biodiversity Authority.

Benefit sharing with communities: the Act provides for various kinds of benefit sharing with local communities, including transfer of technology, financial benefits, joint research and development, venture capital funds and joint ownership of IPRs.

Biodiversity funds: National, State and local biodiversity Funds will be set up to receive money for benefit sharing arrangements, and to channel this money to communities. This money will be used for the conservation and socio-economic development of the community.

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