Analysing Access and Benefit Sharing Mechanisms

 S Bala Ravi

Despite adhering to the Bonn guidelines and the provisions in the Convention on Biological Diversity,the legal instruments on access and benefit sharing in India present certain apparent and real conflicts in their provisions.

Access and benefit sharing (ABS)is an important principle of equity,recognised and legitimised by the Convention on Biological Diversity (CBD).Two recent Indian legislations,which deal with the ABS system are the Protection of Plant Varieties and Farmers ’ Rights Act ((PPVFR Act), 2001 and the Biological Diversity Act (BD Act),2002.

Biological Diversity Act

The BD Act has no explicit provision to involve the concerned local community in decision making with prior informed consent on traditional knowledge associated with the use of genetic resources.The Act,however, provides for the ‘involvement committee ’,which is instituted at each Panchayat.The benefit-sharing system provided in the BD Act is largely in conformity with the Bonn Guidelines on ABS, with case-to-case variation.Royalty and milestone payment,license fee are some of the common forms of benefit sharing.

Protection of Plant Variety and Farmer’s Rights Act

The primary goal of this Act is to institute plant breeder ’s right (PBR)with concurrent safeguard to the traditional rights of farmers on seeds.The Act,however,provides quite liberal access to national genetic resources.This Act under the provision on researcher ’s rights, allows free access without prior informed consent to any genetic resource, including those protected for its PBR by any person for conducting experiment or research or breeding.  The exception is that prior informed consent is essential for using a variety protected under this Act for repeated use as a parental line for the commercial production of a new variety from whom it was accessed. The

process of decision-making on benefit sharing, according to this Act, does not totally follow the concept of mutually agreed terms involving the concerned stakeholders.The PPFVR authority almost unilaterally determines the benefit share.The concerned breeder is required to deposit the awarded benefit share in the National Gene Fund created under this Act within a timeframe,from where it flows to the eligible parties.

Conflict between BD Act and PPVFR Act in ABS

According to the BD Act,prior approval from NBA is mandatory for accessing Indian plant genetic resources for research or for commercial utilisation by persons who are non-resident Indians or nonIndian citizens or who work in India for a body corporate, association or organisation,which is not incorporated or registered in India or has non-Indian participation in its share capital or management.Contrary to this,the PPVFR Act allows free access without prior informed consent to any genetic resource,including those varieties protected by plant breeder ’s right by any person for conducting experiment or research or breeding,with the one exception mentioned earlier.Unlike the BD Act,the PPVFR Act does not differentiate between parties as Indian citizens or institutions or otherwise or whether the breeding undertaken is conventional or non-conventional. However,for the purpose of benefit sharing,the PPVFR Act discriminates on the nationalilties of beneficiaries as Indian citizens or institutions or otherwise.In this context,it is important to underscore that the jurisdiction of the PPVFR Act is national,while the liability for benefit sharing could be transnational.

Therefore,establishment of an the above discussed provisions of these two Acts bring forth two important issues.First is the inconsistency between the BD Act and PPVFR Act on the eligibility for benefit sharing.The BD Act provides a quid pro quo relationship between ‘commercial utilisation ’ and benefit sharing.Interestingly,the BD

Act itself is self-contradicting by linking the eligibility for benefit sharing with ‘commercial utilisation ’,‘utilisation ’and ‘use ’ of genetic resources..

According to the PPVFR Act, claim for a variety registered under this Act can be made within a period of six months from the date of publication of its registration. But in India, most varieties require at least three to five planting seasons to attain their potential commercial market.This apparent limitation denies perpetual entitlement of communities or other parties for benefit sharing, whenever a genetic resource or its derivative is used for evolving newer commercial varieties.

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