WHAT IS INTELLECTUAL PROPERTY?
Intellectual Property or IP, as its name would suggest, alludes to the innovations of the human intellect or mind. The central objective of IP is to inspire the creation of more intellectual products which can range from works of literature to any kind of character or design. Intellectual Property Rights or IPR allow the maker or the owner of the product to flourish and reap benefits of his/her ingenious creation.
Most common types of IPRs are-
- Patents–Under Section 2(j) of the Patents Act, 1970, any “invention” or “product” which is new, indicating the application of an inventive step, and is suited for usage in an industry is patentable in India. Sections 3 and 4 of the Act expound upon different categories of innovations which are non-patentable.
Patent law aims to provide room for technological advancements by conferring certain rights upon the owner wherein he/she can exclude others from manufacturing, selling, and using his/her creation for a certain period.
- Copyrights–Copyright Act, 1957 protectsto an original creator in the form of moral and economic rights. Composers of authentic and original pieces of works (books, music, films, and so on) can avail protection under this law.
- Trademarks – A conventional Trademark could be in the form of some kind of design, logo, or name and can be availed by any individual or establishment to set apart its services.
- Trade Secrets –Trade Secrets is another type of Intellectual Property Rights and it consists of various forms of information such as formulas, designs, techniques, processes, etc.
HISTORY OF IPRs:
Any type of object, whose creation is the consequence of the applicability of one’s brain-power and potential, can be termed as “Intellectual Property”. As a result, different rights and laws existnot only to safeguard these ideasbut also to encourage originality and creativity.These laws extend protection to the owners of the original pieces in the form of patents, trademarks, and copyrights.
The process of utilizing Intellectual Property Rights has taken off in recent times, yet it is by no means a contemporary concept. Chefs in Sybaris, Italy were granted year-long monopolies for cooking unique culinary recipes, as early as in 500 B.C. The notion of “Patent” can be traced back to the Venetian Patent Statute which was enacted on March 19, 1474. Meanwhile, the Parliament of Britain passed the Copyright Act in 1710 which is believed to have set the ball rolling for contemporary Copyright laws. In 1790, the Federal Copyright Law was passed by the United States.Asthe world entered into a new age of globalization and industrialization, the procedure of attaining rights over goods that were his/her brainchild became more significant.
In India, the Patents Act, 1970 was eventually passed on 20 April 1972. The Copyright Act, 1957 which regulates copyright laws in the country acquired the status of applicability on 21 January 1958. Further, the Trademark Act, 1999 is the governing legislation for trademark laws in the country. The aforementioned Acts have undergone several amendments since their introduction.
BIOLOGICAL DIVERSITY AND IPR: UPOV
The term “Biodiversity” is an abridgment of “Biological Diversity” and was developed byWalter G. Rosen in 1985. Biodiversity is an astoundingly large term as it comprises various forms of life on earth and the variety of interactions taking place in our surroundings. In fact, in the context of Sustainability, Biodiversity is of immense significance.
As previously mentioned, the main objective of IPR is to encourage inventive ventures. These rights and Biodiversity have been related to each other for a very time. The Plant Patent Act of 1930 which was passed by the US was revolutionary legislation as it enabled the patenting of plant varieties that were produced through the agency of asexual means.
The International Union for the Protection of New Varieties of Plants or UPOV was ratified in 1961 with the intent of championing the production of brand new varieties of plants. Since its adoption, the convention has been amended over the following years. To attain breeders’ rights, the following criteria need to be fulfilled:
- The new plant variety must be novel
- It must be distinctive
- It must be uniform
- It should be stable The Plant Breeders’ Right or PBR which certifies rights to breeders over intellectual propertysafeguards the work of the plant breeders and it also has a direct impact on the quality of the seeds as competition exists among potential breeders. PBR is also known as PVR or Plant Variety Rights.
Dr.Ananda Mohan Chakravarty, an Indian-American microbiologist who is well known for his contributions in the field of genetic modification, had developed a bacteria that could essentially break down crude oils. In the ensuing legal battle between Chakravarty and Sidney A. Diamond, the commissioner of Patents and Trademarks, the United States Supreme Court had delivered the verdict in favour of the former stating that a living, man-made micro-organism was indeed patentable.
TRIPS AGREEMENT; ARTICLE 27.3(b)
The General Agreement on Tariffs and Trade (GATT), which came into effect in 1948, aimed at the considerable curtailment of barriers to international trade and played a substantial role in the proliferation of world trade and world economy. It was later replaced by the World Trade Organization (WTO) in April 1994.
The Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS, which became effective on 1 January 1995, is one of the 14 multilateral treaties under WTO and was set up to provide a boost to the preservation of Intellectual Properties as IPs were becoming increasingly important in international trading.It is considered to be the most comprehensive multilateral treaty on intellectual property.
TRIPS covers the following:
- Copyright and related rights
- Patents comprising the protection of new types of plant varieties
- Geographical indications including appellations of origins
- Industrial designs
- Undisclosed information (Trade Secrets and Test Data)
TRIPS lays down minimum standards for the safeguarding of various types of IP and also provides for enforcement of IPRs and dispute resolution. The same standards and provisions are binding upon the members of the WTO.
Article 27.3(b) of the TRIPs agreement has generated a lot of discussions as it is related to biological diversity and genetic materials.The agreement, under this Act, compels governments of member nations to provide for the protection of plant varieties through the agency of patents, a sui generis, or the amalgamation of both. “Plants and animals, other than microorganisms” and “essentially biological processes for the production of plants and animals, other than non-biological and microbiological processes” can be excluded by the governments.
The term “sui generis” is a Latin phrase that translates to “of its own kind”. It was argued that the implications of the term were very broad and no proper parameters were set with relation to the same. The controversial article was slated for a review in the year 1999. Para 19 of the Doha Declaration mandated the clarification of the relationship between CBD and TRIPS.
CONFLICT BETWEEN BIOLOGICAL DIVERSITY ACT, 2002 AND PATENTING
India is tremendously rich in biological resources and is a party to the Convention on Biological Diversity (CBD), as a result of which the Biodiversity Act, 2002 was adopted for the preservation and protection ofthe biodiversity of the country.
Under Section 6 of BDA, 2002, prior assent of the National Biological Diversity or the NBA is required for application of IPR. In the absence of prior approval, the application of IPR is banned for any innovation taking place in or outside of the country which is built on biological resources acquired from India. However, certain relaxations are provided under the same.
Section 3 of the Act mandates the approval of the NBA before any foreign citizen, any foreign corporate, NRI, or any Indian Corporation with non-Indian management can access the biological resources of the country for any kind of work. Meanwhile, the State Biodiversity Boards or the SBB plays a huge role in the achievement of any biological resource or information related to it by an Indian entity (Section 7 of BDA, 2002).
Therefore, the Biological Diversity Act is at loggerheads with the Patents Act in our country as the conception of the former has formulated a lot of roadblocks against the patenting of biological innovations in India.
IMPACT OF IPR ON BIODIVERSITY
Genetic Erosion refers to the process wherein a plant or animal species are threatened by the progressive loss of its unique gene. The Union for Protection of New Varieties of Plants or UPOV requires the seeds for the various plants to be homogenous and uniform. Limitations are imposed on the variety of seeds that can be produced and marketed which might eventually result in loss of diversity. Furthermore, PBR or PVR aids in the promotion of monopoly. An increase in prices is another disadvantageous aspect of the IPR process.
The farmers are accustomed to their age-old agricultural practices which are threatened by the working of the UPOV. The convention on Biological Diversity or CBD has expounded upon the importance of agriculture in the fields of “economic activity” and “sustainable development”. However, “uniformity” is required of the breeders by the UPOV which leads to the loss of diversity in the field of agriculture.
Another implication of the IPRs is the privatization of information.
It is well-known that developing countries were looking forward to the 1999 review of the TRIPs agreement as several of these counties were left dissatisfied with the initial provisions. A major area of conflict is that the CBD provides the developing countries with effective IPRs but the same cannot be said about the TRIPs agreement.
Many countries contend that there is a conflict between TRIPS and CBD. However, countries such as the US, Japan, etc. have rebuffed these claims.
Genetic diversity, therefore, is essential for sustenance of life. Biological inventions and biodiversity can go hand-in-hand without the exploitation of the resources surrounding us. As E.O Wilson once said,“We should preserve every scrap of biodiversity as priceless while we learn to use it and come to understand what it means to humanity.”
By-
Abantika Ghosh
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