In India the Biological Diversity Act [also called biodiversity act] was passed by the Central Government in 2002.
The salient features of the Biodiversity Legislation are briefly presented below:
1. Purpose:
The purpose of The Biodiversity Act – 2002 is to protect India’s rich biodiversity [genetic resources] and associated knowledge against their use by foreign individuals, institutions or companies without sharing the benefits arising out of such use, and check bio-piracy.
2. Structures of Biodiversity Act-2002:
The biodiversity Act provides for establishment of a three tiered structure at the national, state and local level as given below:
(i) National Biodiversity Authority (NBA):
All matters relating to requests for access by foreign individuals, institutions or companies, and all matters relating to transfer of results of research to any foreigner will be dealt with by the National Biodiversity Authority. The headquarters of National Biodiversity is located in Chennai.
(ii) State Biodiversity Boards (SBB):
All matters relating to access by Indians for commercial purposes will be under the purview of the State Biodiversity Boards (SBB). The Indian industry will be required to provide prior intimation to the concerned SBB about the use of biological resource. The State Board will have the power to restrict any such activity, which violates the objectives of conservation, sustainable use and equitable sharing of benefits.
(iii) Biodiversity Management Committees (BMCs):
Institutions of local self-government will be required to set up Biodiversity Management Committees in their respective areas for conservation, sustainable use, documentation of biodiversity and chronicling of knowledge relating to biodiversity. NBA and SBBs are required to consult the concerned BMCs on matters related to use of biological resources and associated knowledge within their jurisdiction.
3. Research on Biological Resources:
There is no requirement under the legislation for seeking permission of the National Biodiversity Authority for carrying out research, if it is carried out in India by Indians, as well as under collaborative research projects that have been drawn within the overall policy guidelines formulated by the Central Government.
The only situations that would require permission of the NBA are:
(i) When the results of any research which has made use of the country’s biodiversity is sought to be commercialized,
(ii) When the results of research are shared with a foreigner or foreign institution, and
(iii) When a foreign institution/ individual wants access to the country’s biodiversity for undertaking research.
4. Exemptions:
The legislation provides for the following exemptions:
(i) Exemption to local people and community of the area for free access to use biological resources within India.
(ii) Exemptions to growers and cultivators of biodiversity and to Vaids and Hakims to use biological resources.
(iii) Exemption through notification of normally traded commodities from the purview of the Act.
(iv) Exemption for collaborative research through government sponsored or government approved institutions subject to overall policy guidelines and approval of the Central Government.
(v) The value added products have been excluded from the definition of biological resources.
(vi) The Indian researchers neither require prior approval nor need to give prior intimation to SBB for obtaining biological resource for conducting research in India.
5. Indian industry and Biodiversity Act:
The Indian industry is required to give prior intimation to the concerned SBB about obtaining the biological resources for commercial purposes. The SBB will have the power to prohibit or restrict any such activity, which violates the objectives of conservation, sustainable use and equitable sharing of benefits.
6. Ayurvedic Industry:
The Act does not aim at banning the use of medicinal plants. It provides that for commercial use of resources and related knowledge by Indians only, prior intimation to the State Biodiversity Board is required. Hakims and vaids will continue to have free access to resources and knowledge.
7. Biodiversity Bill and Plant Varieties Protection Act:
There is no overlap between Biodiversity Bill and Plant Varieties Protection (PVP) Act. The scope and objectives of these two legislations are different. The PVP legislation accords intellectual property rights to a person for developing a new plant variety.
On the other hand, the biodiversity legislation is primarily aimed at regulating access to biological resources and associated knowledge so as to ensure equitable sharing of benefits arising from their use. In order to harmonize both the legislations, an exemption has been provided under Section 6(3) of the Biodiversity Bill for applicants seeking protection under the PVP Act.
The Act [Section 6(1)] provides that prior approval of NBA is necessary before applying for any kind of IPRs based on any research or information on a biological resource obtained from India. However, in case of patents, permission of the NBA may be obtained after acceptance of the patent but before sealing of the patent. This has been done to protect the priority date of the patent applicant.
8. Heritage Sites:
The Act [Section 37] provides for designating heritage sites. These are areas of biodiversity importance, which harbour rich biodiversity, wild relatives of crops, or areas, which lie outside the protected area network. The purpose is not to cover the already designated protected areas such as national parks and wildlife sanctuaries.
9. Threatened Species:
The Act [Section 38] provides for notifying threatened species and prohibits or regulates their collection. It also provides for taking appropriate steps to rehabilitate and preserve those species, thereby ensuring their conservation and management.
10. Repositories:
The Act [Section 39] provides for designating some premier institutions of the country (e.g. Botanical Survey of India, Zoological Survey of India, National Bureau of Plant Genetic Resources etc.) as repositories for keeping different categories of biological resources for safe custody and posterity.
11. Check on Bio-Piracy:
To check bio-piracy, the proposed legislation provides that access to biological resources and associated knowledge is subject to terms and conditions, which secure equitable sharing of benefits. Further, it would be required to obtain the approval of the National Biodiversity Authority before seeking any IPR based on biological material and associated knowledge obtained from India.
12. Benefit Claimers:
The benefit claimers are conservers of biological resources, creators and holders of knowledge and information relating to the uses of biological resources. While granting approvals, NBA will impose conditions, which secure equitable share in the benefits arising out of the use of biological resources occurring in India or knowledge relating to them. These benefits could include monetary gains, grant of joint ownership of IPRs, transfer of technology, association of Indian Scientists in R & D, setting up of venture capital fund etc.
In cases where specific individuals, or group of individuals are identifiable, the monetary benefits will be paid directly to them. Otherwise, the amount will be deposited in the National Biodiversity Fund.
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