IPR Toolkit- India

Biological Diversity

The United Nations Convention on Biological Diversity held at Rio de Janerio in the year 1992 reaffirmed the rights of the Sovereign states over their biological resources. India, being a signatory to this Convention passed the Biological Diversity Act, 2002 which is intended to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge. The Biological Diversity Act, 2002 along with The Biological Diversity Rules, 2004 are the prevailing laws for biological diversity in India. This Act primarily addresses access to genetic resources and associated knowledge by foreign individuals, institutions or companies, which is intended to ensure equitable sharing of benefits arising out of the use of these resources and knowledge to the country and the people.

Under this Act, a person who is not a citizen of India or who is a citizen of India but is a non-resident (as defined in clause 30 of Section 2 of the Income Tax Act, 1961), or a body corporate, association or organization that is not incorporated or registered in India or if incorporated or registered in India has any non-Indian participation in its share capital or management, is prohibited from obtaining any biological resource occurring in India or knowledge associated thereto for research or commercial utilization or for bio-survey or bio-utilization without the prior approval of the National Biodiversity Authority. Such a person must seek the permission of the National Biodiversity Authority by making an application in the prescribed format and on the payment of the prescribed fee. The forms and the prescribed fee for the same are available at http://www.nbaindia.org/applications/application.htm.  Moreover, no person may apply, for any intellectual property right, without the prior approval of the National Biodiversity Authority, whether within or outside India, for any invention based on any research or information on a biological resource obtained from India. The National Biodiversity Authority shall dispose of the application for permission made to it within a period of ninety days from the date of receipt of the application. On receipt of the application, the National Biodiversity Authority may make the enquiries that it deems fit including consulting the expert committee constituted for this reason. Thereafter it could either grant approval to the application subject to any terms and conditions or after hearing the affected person, reject the application. The reasons for the rejection of the application have however to be recorded in writing. The National Biodiversity Authority issues a public notice of every approval granted by it. Furthermore, a person who has been granted approval cannot transfer any biological resource or knowledge associated thereto which is the subject matter of the approval without the prior approval of the National Biodiversity Authority. The prior approval of the National Biodiversity Authority is also required before any person can transfer the results of any research relating to any biological resources occurring in, or obtained from India for monetary consideration or otherwise to any person who is not a citizen of India or who though a citizen of India but is a non-resident (as defined in clause 30 of Section 2 of the Income Tax Act, 1961) or a body corporate, association or organization that is not incorporated or registered in India or if incorporated or registered in India has any non-Indian participation in its share capital or management.

Even a citizen of India or a body corporate, association or organization, which is registered in India has to give prior notice to the State Biodiversity Board before obtaining any biological resource for commercial utilization, or bio-survey and bio utilization for commercial utilization. This however does not apply to local people and communities of the area, including growers and cultivators of biodiversity and vaids and hakims (indigenous doctors) who have been practicing indigenous medicine.

 The National Biodiversity Authority, while granting approvals, is also charged with ensuring that the terms and conditions subject to which approval is granted secures equitable sharing of benefits arising out of the use of accessed biological resources, their by-products, innovations and practices associated with their use and applications and knowledge relating thereto in accordance with mutually agreed terms between the persons applying for the approval, local bodies concerned and the benefit claimers.

Under the Act, each State in India must constitute its own Board known as the State Biodiversity Board which would advise the State Government on matters relating to the conservation of biodiversity, sustainable use of its components and equitable sharing of the benefits arising out of the utilization of biological resources and also regulate by granting of approvals or otherwise requests for commercial utilization or bio-survey and bio-utilization of any biological resource by Indians.   

Any person who is aggrieved by the order of the National Biodiversity Authority or a State Biodiversity Board or by any determination of benefit sharing may file an appeal to the High Court. Any person who contravenes the provisions regarding seeking prior approval of the National Biodiversity Authority or abets in its contravention is liable to be punished with imprisonment for a term which may extend to five years or with fine which may extend to ten lakh rupees (approximately $25, 000) and where the damage caused exceeds ten lakh rupees (approximately $25, 000) then such fine maybe commensurate with the damage caused or with both imprisonment and fine. This provision is a matter of grave concern to the industry as they might inadvertently contravene this provision and be liable to fine and imprisonment.

Legislation in India

The Biological Diversity Act, 2002 along with The Biological Diversity Rules, 2004 

International Treaties to which India is a signatory

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

The United Nations Convention on Biological Diversity

Biological Diversity Related Websites

http://www.wto.org
http://www.cbd.int
http://www.nbaindia.org