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Access and Benefit sharing in Indian context: A developing

country perspective

Dr. Yogesh Gokhale

TERI, New Delhi

yogeshg@teri.res.in

India is a megadiverse country with 10 biogeographic zones, 2

Biodiversity Hotspots and over 89,000 species of animals and 46,000

species of plants documented. Use of about 8000 species by local

communities in India is documented so far.

2

Attribute Himalaya

Western Ghatsand Sri Lanka

Plant

Species10000 5916

Endemic Plants

3160 3049

Endemics

% (World)

1.1 1.0

%Habitat

Remainin

g

25 23

•About 605 protected areas

•25 Ramsar sites

•14 Biosphere Reserves

CONVENTION ON BIOLOGICAL DIVERSITY (CBD)

• India signed the CBD on 5th June 1992 and ratified it on 18th

February 1994.

• The Preamble of CBD mentions that –

Conservation of biological diversity is a common concern of

humankind

States have sovereign rights over their own biological

resources

Desirability of sharing equitably benefits arising from the

use of traditional knowledge, innovations and practices relevant

to the conservation of biological diversity and the

sustainable use of its components

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Biopiracy – from Hortus Malabaricus to Rauwolfiaserpentina

“Hortus Malabaricus” composed between 1678-1703 by van Rheede, a Dutch resident of Kochi, documented the knowledge of four local physicians from Malabar. Contribution to the Linnaean system of classification of species.

Traditional Indian systems of medicine possess knowledge of anti-hypertension properties of Rauwolfia serpentina, which is now available in form of allopathic medicine without any acknowledgement and benefit sharing.

Drug for Hepatitis B from species of Phyllanthus got Nobel prize to Dr. Blumberg in 1988.

Scenario prior to CBD - 1992

Defending Turmeric and Basmati

• Turmeric

– In 1995 two NRIs were granted patent in US for wound healing property of turmeric, fact known in India traditionally over centuries.

– CSIR argued the lack of novelty for granting patent and won the case.

• Basmati

– Rice Tech. Inc. registered ‘Texmati’ rice under US Trade Mark Registry

– The supportive claims (15-17) resembled with Basmati rice variety of India and Pakistan

– The re-examination of patent resulted in the disqualification of claims of Rice Tech. Inc in 2000.

– The claims (15-17) are of the nature of Geographical Indicators (GI) i.e. rice grown in certain micro-climate found in specific regions

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Increasing trend of misappropriation of TK

150002003

50002000

No. of patents filed at USPTO, UKPTO, EUPTO

Year

The study by NISCAIR shows that there has been

increasing trend in the patent applications in USPTO,

UKPTO and EPO based on the Indian traditional medicine

systems as mentioned below:

Traditional knowledge and the genetic resources have got immense economic value (Global estimate for selected products - US $ 500 billion )

What is Traditional Knowledge?

•• Dynamic process Dynamic process –– evolving and adaptive with evolving and adaptive with time e.g. Turmeric to Australian Acaciatime e.g. Turmeric to Australian Acacia

•• Trial and errorTrial and error

•• Inherited from generation to generationInherited from generation to generation

•• Community and confidential knowledgeCommunity and confidential knowledge

•• Importance of local context Importance of local context –– e.g. need, virtue, e.g. need, virtue, experience, etc.experience, etc.

•• Knowledge about natural history of ecosystems, Knowledge about natural history of ecosystems, plants, animals, agriculture, medicines, culture, plants, animals, agriculture, medicines, culture, folklores, food recipes, Yoga, ……..folklores, food recipes, Yoga, ……..

•• Mostly nonMostly non--codified in form e.g. Local health codified in form e.g. Local health practices (bone setters, etc.)practices (bone setters, etc.)

•• Ayurveda, Ayurveda, SidhaSidha, , UnaniUnani exceptions of codified exceptions of codified formform

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International mechanisms related to Biodiversity and Traditional knowledge

• CBD – biodiversity and the associated knowledge as sovereign resources of host countries, rather than a common heritage of humankind.

– (Articles 8(j), 15.2.,15.6, 15.7, 16.3 and 19.1)

– Bonn Guidelines (2002) are voluntary in nature and are a useful first step of an evolutionary process for access and benefit sharing based on BD and TK

Like Minded Megadiverse Countries Initiative at CBD

• The Group of 17 Like Minded Megadiverse Countries

(LMMCs) have come together since 2002.

• The Group holds more than 70% of all biodiversity, and 45%

of the world’s population.

• It is an important negotiating block in the UN and other

international fora on issues related to Access and Benefit

Sharing based on commercial use of biodiversity and

associated traditional knowledge.

• India was the President of the group of LMMCs between

2004-6 and came out with New Delhi Declaration.

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• Inconsistency between CBD and WTO –GATT (TRIPs)

- TRIPs does not require the disclosure of the source of the biological material and the

knowledge associated with biodiversity.

- TRIPs also provides for the patenting of micro-organisms, though it excludes other plants and

animals.

International mechanisms related to Biodiversity and Traditional knowledge

To consolidate India position on ABS

Need of legally binding international regime on ABS Need of legally binding international regime on ABS

which should consider:which should consider:

-- Disclosure of origin / source of genetic resources Disclosure of origin / source of genetic resources

and associated traditional knowledgeand associated traditional knowledge

-- Disclosure of legal provenance of genetic Disclosure of legal provenance of genetic

resources and associated traditional knowledgeresources and associated traditional knowledge

-- Consequences of nonConsequences of non--disclosuredisclosure

-- Necessity of Prior Informed Consent of the Necessity of Prior Informed Consent of the

knowledge and genetic resource holder/sknowledge and genetic resource holder/s

-- Mandatory Mandatory suisui generisgeneris provisions for equitable provisions for equitable

sharing of benefitssharing of benefits

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The magnitude of dependence of communities on biodiversity and the traditional knowledge and the livelihoods needs to be understood in the context of countries like India.

Dependence of communities on biodiversity

• Substantial dependence on NTFPs (non timber forest produces) for subsistence

• India has 1,70,000 forest fringe villages partially / fully dependent on natural resources for survival

• Traditional medicinal systems – Ayurveda, Siddha, Unani and widespread local health traditions (LHTs). 70% Indians depend on LHTs.

• Cultural service of people are closely associated with nature e.g. Pipal tree, sacred groves

• One of the centres for domestication of plants and animals in the world – rice, chicken

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National mechanisms related to Biodiversity and Traditional knowledge• Biological Diversity Act, 2002

– Conservation and sustainable use of biodiversity

– Regulate access of biological resources, associated knowledge for fair and equitable benefit sharing

– Respect and safeguard the knowledge of local communities regarding biodiversity

– To secure sharing of benefits with local people as conservers of biological resources and associated knowledge

– Declare areas of conservation importance as Biodiversity Heritage Sites

– Protection and rehabilitation of threatened species

– Three tier institutional structure (NBA, SBB, BMC) in consonance with the Panchayati Raj Act of India

• Protection of Plant Varieties and Farmer’s Rights Act, 2001– enable farmers as an individual or a community or through an NGO

to claim plant breeder’s rights

– emphasizes benefit sharing in case of use of farmer’s varieties

• Indian Patents Act, as amended in 2002– Provides for the detailed disclosure of source / origin of the biological

material, local knowledge

– Failing to provide details would lead to revocation of the patent

• Traditional Knowledge Digital Library– Mechanism for prior art for traditional knowledge

– TKDL is shared wit European Patent Office in February 2009

– Help offered by India to SAARC countries

National mechanisms related to Biodiversity and Traditional knowledge

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Kani Model – A stand alone example• TBGRI scientists understood secret of stamina

of Kani tribals in forest walks due to Arogyapacha use in 1987 in Kerala.

• Drug was developed named ‘Jeevani’ by AryaVaiday Shala and TBGRI.

• 50% of the royalty was shared with Kanis by forming Charitable Trust.

• Consistent efforts of scientists to rectify the benefit sharing model till date.

• Today 70% of Kanis are members of the Trust and receiving the benefits in some form.

• The process started prior to CBD due to conscious of the scientists working with the tribe.

Challenges for ABS implementation in India

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• Establish institutional structures to detect access of biological resources for commercial purposes

• Documentation of local knowledge and database creation

• Improving technical capabilities for validation of the local knowledge

• Need of clear guidelines for accessing the local resources and knowledge for commercial use

• Encouraging Indian companies to share benefits with the local communities by developing TK based products

Challenges for ABS implementation in India

TERI’s work on developing ABS criteria (2007) submitted to NBA

• projected/potential demand for the product.

• Investments likely to be made by the entrepreneur in Research and Development

• Value addition made to the original form of biological resources and/or associated knowledge for developing product

• Proportion of the bioresource and/or the associated knowledge in the final product

• Market trends for similar products

• Estimated costs of conserving the biological resources

• Estimated costs of socio-economic development shall be decided in consultation with local bodies.

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ABS experiences at national level: Herbavate – ointment on Eczema based on

TK

• Herbal formulation from the TK of 7 people fro GujarathState in India

• Efforts of Honeybee network (SRISTI, NIF)

• Validation of knowledge by Sadhbhav-Sristi-Sanshodhan, a natural product lab

• Patent has been filed in India in the name of grassroots innovators

• Troikaa pharmaceuticals Pvt Ltd., Ahmedabad has launched the product

• Benefits are shared with the community and the individual TK holders.

• http://www.herbavate.com/herbavate.htm

Lessons to take forward the process

• ABS needs to be considered in the context of larger institutional

legislative framework for the conservation and sustainable use of

biodiversity

• Mapping of knowledge is extremely essential to benefit the

communities from the market process

• National level efforts of ABS need to be supported to understand

the local aspects of while implementing ABS mechanism. It will help

to recognize the extent of benefits generated and shared, nature of

benefits and means of distributing the benefits

• The onus of disproving misappropriation of the BD and TK

should lie with the user and not to the source country and

International Regime should provide mechanism for it

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Thank you