Access To Community Knowledge- A Critical Analysis Of ABS Mechanism
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Category: General Law
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ACCESS TO COMMUNITY KNOWLEDGE- A CRITICAL
ANALYSIS OF ABS MECHANISM
Pranav Anand Ojha, Assistant Professor, School of Law (VSL) at VIT-AP University
ABSTRACT
Biodiversity was one of several issues which attributed massive criticism for the implementation of the Agreement on Trade-Related Aspects of the Intellectual Property Rights. The inclusion of traditional knowledge within its ambit heightened the issue. Traditional knowledge is the wealth of a community. However, the Trade-Related Aspects of the Intellectual Property Rights brought in the concept of privatisation along with the existing concept of identified authorship or ownership in Intellectual property rights. To tackle this, the Convention on Biological Diversity along with the Nagoya Protocol were adopted to curb this rapid privatization of natural resources and indigenous communities' cultural wealth.
The position of the researchers is that a uniform definition of access in domestic laws will make Access and Benefit Sharing with regards to traditional knowledge more effective for the stakeholders, that is, the users and the providers. The paper aims to analyse the meaning of access to ascertain when the same can be called sustainable and not exploitative. Most importantly, this paper will try to identify the stakeholders who get affected by all such formalities. Keywords: Access, Benefit Sharing, Biodiversity, Traditional Knowledge, Intellectual Property
Introduction The Earth hosts a vast range of life forms, known as biodiversity. The content and utility of biodiversity are both significant owing to the variety of species, genomes, and other components. Biodiversity is regarded as a collective inheritance of humanity because of its array of natural resources. The biodiversity-rich emerging nations preferred this approach. Nonetheless, industrialized nations, equipped with a strong intellectual property (IP) framework, advanced technology, and infrastructure, necessitated safeguarding for their original creations. This divergence of view led to the establishment of the International Union for the Protection of New Varieties of Plants (subsequently referred to as UPOV). Although UPOV acknowledged farmers' rights to plant resources, it primarily focused on plant breeders.
Subsequently, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) enhanced the intellectual property rights for plant types. With the expansion of intellectual property rights, there arose a perceived imperative to protect and preserve natural resources from exploitation. This resulted in the formation of the Convention on Biological Diversity (CBD). Established in 1992, the Convention is a seminal international treaty concerning the equitable and just allocation of benefits derived from the use of genetic resources, the sustainable usage of its components, and the preservation of biodiversity. Access and Benefit-Sharing (ABS) constitutes one of the three primary objectives of the Convention on Biological Diversity (CBD), alongside biodiversity conservation and sustainable utilization.
The ABS system was established to ensure that the benefits derived from the use of genetic resources, particularly plant genetic resources, are dispersed equitably and justly among the nations and communities that provide these resources. Why CBD? The Convention arose as a reaction to increasing apprehensions regarding the decline of biodiversity and the unjust utilization of genetic resources, especially by developed nations and private organizations, often without sufficient compensation or acknowledgment of the rights of provider nations and indigenous populations. Before the Convention on Biological Diversity, genetic resources were frequently regarded as a collective legacy of humanity, permitting unrestricted access and utilization without any requirement to distribute benefits.
This resulted in complications such as biopiracy, wherein genetic resources and traditional knowledge were appropriated without proper consent or equitable compensation. The CBD
aimed to rectify these disparities by creating a legal structure that acknowledges the sovereign rights of states concerning their genetic resources and requires the equitable distribution of benefits derived from their utilization. Access to Genetic or Biological Resources: The International Scenario To begin with, it would be unfair to term UPOV as merely a means to ensure plant breeders rights. It was also one of the first documents to talk about access albeit in an indirect manner. It provided certain rights to the farmers allowing them to keep and reuse protected seeds for personal use. 1 However, these privileges had a limited scope and did not mention about sharing of benefits derived from protected varieties that utilized farmers’ knowledge.
2 Thereafter, the United Nations (hereafter UN) General Assembly witnessing a concern over access to natural resources, acknowledged3 the States and its people’s sovereignty over natural resources. Yet the resolution failed to address the matter explicitly just like its predecessor. A breakthrough was achieved when the International Undertaking on Plant Genetic Resources for Food and Agriculture4 (hereafter IUPGRFA) came into existence. The IUPGRFA cast a duty on the respective states to “... allow access to samples of such (plant genetic) resources... where the resources have been requested for the purposes of scientific research, plant breeding or genetic resource conservation... ”5 The first resolution6 under the aegis of the IUPGRFA strengthened the position of free accessibility of genetic resources by holding it to be the common resource of humankind like that of IUPGRFA.
Per se, it seemed to be beneficial to the indigenous or local communities in safeguarding their traditional knowledge. However, the IUPGRFA did not imply that it was against the objectives laid down by the UPOV. This inevitably led to the developing countries 1 Charles Lawson, “The Breeder’s Exemption under UPOV 1991, the Convention on Biological Diversity and its Nagoya Protocol”, Journal of Intellectual Property Law and Practice, Vol. 10 No. 7, 2015, p. 526.
2 Id, at p. 6
3 United Nations, https://www.ohchr.org/Documents/ProfessionalInterest/resources.pdf., (last visited Jan. 25, 2025) United Nations Food and Agriculture Organization Resolution 8/83, https://www.fao.org/3/x5563E/X5563e0a.htm#Resolution9.,(last visited Jan. 25, 2025)
5 IUPGRFA, Article 5.
6 United Nations Food and Agriculture Organization Resolution 4/89, Agreed Interpretation of The International Undertaking (Nov. 29, 1989).
fearing the loss of rights to indigenous communities and/or the associated traditional knowledge. Amidst this chaos, the next resolution7 under the IUPGRFA was adopted. This resolution included not only countries and their respective regions but also the farmers in the procurement of benefits. The CBD was thereafter drafted to serve the requirements of both the developed as well as the developing countries. As mentioned earlier, the CBD established a framework wherein the access was to be provided on mutually agreed terms and with valid consent. Moreover, it was stated that the benefits arising out of such access had to be distributed on fair terms between the user and the benefactor. This was done to ensure a balance between the commercialization of biological resources (thus, protecting IP rights) and the rights of indigenous or local authorities.
8 International Union for the Protection of New Varieties of Plants, 1961 United Nations General Assembly Resolution, 1962 International Undertaking on Plant Genetic Resources for Food and Agriculture, 1983 Resolutions under the IUPGRFA Convention on Biological Diversity, 1992 Flowchart꞉ A gist of origin of Access
7 United Nations Food and Agriculture Organization Resolution 5/89, Farmers Rights (Nov. 29, 1989).
8 Supra note 3, at p 7
The ABS system under the CBD is designed to ensure that:
1. Access to genetic resources is subject to Prior Informed Consent (PIC) from the
provider country.
2. Benefits arising from the use of genetic resources are shared on Mutually Agreed Terms
(MAT) between the provider and the user. The ABS system is implemented through national legislation in provider countries, which establishes the legal framework for granting access to genetic resources and ensuring benefitsharing. The Nagoya Protocol on Access and Benefit-Sharing, adopted in 2010 as a supplementary agreement to the CBD, further elaborates on the ABS system by providing clearer guidelines on compliance, monitoring, and the rights of indigenous and local communities. How the ABS System is Applied? Access to genetic resources, as stipulated in Article 15 of the CBD, is governed by the sovereign rights of the provider country. National governments possess the authority to establish access conditions, which generally necessitate Prior Informed Consent (PIC) from the provider country and the formulation of Mutually Agreed Terms (MAT) for benefit-sharing.
The Nagoya Protocol strengthens these requirements and establishes a framework for compliance monitoring. The CBD and the Nagoya Protocol mandate the fair and equitable sharing of benefits derived from the utilization of genetic resources, encompassing both monetary and non-monetary advantages. Potential advantages encompass technology transfer, capacity-building, royalties, and involvement in research and development. The Nagoya Protocol underscores the rights of indigenous and local communities to provide access to genetic resources and to participate in the benefits derived from their utilization. The Nagoya Protocol mandates the establishment of checkpoints to monitor the utilization of genetic resources and the issuance of Internationally Recognized Certificates of Conformity (IRCC), thereby ensuring compliance with Access and Benefit-Sharing criteria.
The proposed measures aim to enhance transparency and ensure that users of genetic resources adhere to the Access and Benefit-Sharing criteria established by the provider country. The Nagoya Protocol and the Convention on Biological Diversity acknowledge the rights of indigenous and local
communities concerning their traditional knowledge linked to genetic resources. Access to this knowledge necessitates the prior and informed consent of the individuals involved, and the distribution of benefits must be equitable. The ABS system is implemented by bilateral agreements between provider and user countries, together with contractual arrangements like the Standard Material Transfer Agreement (SMTA) under the FAO International Treaty on Plant Genetic Resources for Food and Agriculture. The SMTA enables access to plant genetic resources for food and agriculture, enabling equitable benefit-sharing. Nonetheless, obstacles persist in the implementation of the ABS system, especially in guaranteeing compliance and tackling the dematerialization of genetic resources, wherein digital sequence information (DSI) is utilized without physical access to genetic material.
Benefits of the ABS Scheme The ABS initiative acknowledges the critical role of indigenous knowledge in the development of commercial products, particularly in the biotechnology and life sciences sectors. The ABS scheme distinguishes itself from conventional methodologies by acknowledging and appreciating the contributions of indigenous communities during the transfer or interchange of knowledge, as opposed to treating them as "raw material. " The scheme enables the equitable and fair distribution of the benefits that result from the utilization of genetic resources and related traditional knowledge. Potential advantages include financial compensation, technology transfer, capability enhancement, or participation in research and development initiatives.
Regardless of the profitability of the commercial products, this ensures that indigenous communities receive fair compensation for their contributions. Material Transfer Agreements (MTAs) are the foundation of the ABS scheme. These agreements are subject to contract law and incorporate principles from intellectual property law, technology transfer, and antitrust law. In order to guarantee that the terms of access and benefit-sharing are legally enforceable, the agreements establish a definitive legal framework that delineates the rights and obligations of both the provider (indigenous community) and the recipient (researcher or enterprise). The ABS scheme underscores the right of indigenous peoples to participate in the decisionmaking process for research initiatives that leverage their genetic resources or knowledge.
This ensures that indigenous communities have the ability to articulate their viewpoints on the application of their knowledge and to negotiate terms that protect their interests. The ABS scheme mitigates biopiracy and the illicit appropriation of indigenous knowledge and genetic resources by implementing Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT). This guarantees the protection of indigenous communities' rights and interests, as well as the ethical utilization of their knowledge. PepsiCo exported a seaweed, Kappaphycus alvarezii, from India to Malaysia, Philippines, and Indonesia which was grown by fishing communities collected and exported by women selfhelp groups trained by the company. The NBA was paid a royalty of 5% of FoB amounting to Rs. 3. 9 million by exporter.
Eventually the access permits have stopped due to the claims that the seaweed had become an invasive species Protection in India: PVPFR and the Biological Diversity Act (BDA), 2002 are the pioneers of protecting the diversity of Indian biological resources. It is consistently highlighted how India being an agriculture superpower is not a part of UPOV primarily due to concerns related to its impact on farmers' rights, traditional farming practices, and seed sovereignty. UPOV enhances the rights of breeders by giving them the exclusive rights to authorize or prohibit the production, sale, export, import, and stocking for these purposes of the propagating material of the protected variety. Breeders also have the right to receive equitable remuneration for the use of their protected variety.
These provisions have not been extended towards farmers while PVPFR’s Act provides Farmers’ Rights specifically CBD led to placing natural resources under the ambit of the country’s sovereignty. This was done to not only control the accessibility of resources of one country but also to protect them from misuse by other countries. Objectives of CBD were three-fold. • Preserving the diverse biological resources • Usage of all elements of biological diversity sustainably and • Distribution of benefits owing to such usage through means such as access to resources. With such objectives in place, CBD acknowledged the existence of indigenous or local
communities who have been preserving biodiversity for generations and are dependent on the same for their survival. CBD urges the contracting parties to safeguard their interests and share the benefits gained out of utilizing their traditional knowledge. India which is known for its diverse biological resources and traditional knowledge went ahead and ratified CBD soon after it was enforced. Thereafter, the Biological Diversity Act (hereafter the Act) was enacted in the year 2002. It followed the footsteps of CBD and thus, had the same objectives. But while CBD was applauded for articulating a topic that was not the direct subject matter of any previous international arrangement, it had its limitations as well. For instance, though the term access was mentioned in the objective itself, CBD did not define it.
Even the Nagoya Protocol which was specifically created for ensuring transparency and legality to access and benefit-sharing objectives of CBD did not provide a settled meaning to access. CBD states that access should be determined by States themselves and it would be their obligation to enable access to genetic resources. Access must be based upon prior informed consent and on mutually agreed terms between the users and the providers. While this seems like a fair arrangement, no procedure or guideline was specified to turn these into reality. These factors assume great importance for India as she is not only biologically rich but has culturally diverse traditional knowledge. Such knowledge has been an essential aspect of several local and indigenous communities which depend upon it for their livelihood and survival.
The least they deserve is a fair share of the benefits derived from their know-how. It is in this aspect; this paper is divided into three parts. The first part will shed light upon the origin of the word access and its interpretation. The second part will focus on how India has been treating access to traditional knowledge in light of the recent Biological Diversity (Amendment) Bill, 2021 and draft ABS Regulations, 2019. And the last part will be a means to portray the loopholes which require attention so that an effective process of access and benefit-sharing could be established vis a vis the growing IP arena. India and Access: Where do we stand? With the advancement of science, acting directly on the genetic material of living organisms became possible. This led to intense debates and rivalries over genetic resources.
To resolve such issues, with the implementation of an Access and Benefit Sharing (hereafter, ABS) mechanism, as one of its objectives. The CBD was signed in 1992 and came into force in 1993. Only after this convention, the sovereign rights of nations were agreed upon concerning their
bioresources and associated knowledge systems Before that, it was considered a common heritage. 9 Along with the sovereign rights states now have the sole competence to decide the ‘conditions’ to grant access to their genetic or biological resources. 10 The mechanism of ABS has been much needed for countries with rich biodiversity and traditional knowledge associated with it. India with diverse geological and physical elements, categorises herself as a megadiverse country. 11 Out of all the recorded spices, India is the home to eight per cent of them. 12 India is also one of the recognised centres for the traditional agricultural techniques in the world and those techniques are still closely associated with the local farmers. They are not only a key to the traditional techniques but also are intrigued to breed new ones.
Along with this, a rich heritage of traditional knowledge relating to the application and properties of biological resources is the legacy of India. Traditional knowledge with respect to the biological resources have always been used in India by the local communities and indigenous people to cure diseases, for nourishments and for everyday needs. This is evident from the number of recorded plant species having medicinal purposes associated with Ayurveda and the folk traditions of local communities, which is more than 4000 in number. 13 Recently those pieces of knowledge have been used vastly in the development of cosmetics, pharmaceuticals, plant breeds and other essentials at commercial levels. But these developments never benefitted the one who developed, nurtured, and evolved the age-old techniques and resources which have been the key to such developments.
They neither get the chance to be a part of the research nor get true recognition or adequate compensation. This was discouraging for those communities to further conserve the biodiversity and knowledge associated with that. Uses of these resources and traditional knowledge associated with their use were also needed to be protected from the growing IP rights regime especially after TRIPS. In an attempt to address these concerns, the mechanism 9 The Convention of Biological Diversity, https:// www. cbd. int/gbo1/chap-02. shtml, (lasr visited on Nov. 1, 2021). 10 Catherine Rhodes, Governance of Genetic Resources: A Guide to Navigating Complex Global Landscape, 2013. , p 49(Edward Elgar 2013) 11 Ministry of Environment and Forests, India’s Fifth National Report, Convention on Biological Diversity 2014, (2014)
12 Id, at 8
13 As early as 2009, it was stated that more than 4600 plant species were utilized as remedy by local communities, Proceedings of the Workshop on Local Traditional Knowledge Related to Biodiversity, Karnataka Biodiversity Board (2009), https://karunadu.karnataka.gov.in/kbb/english/Documents/workshop-proceedings.pdf, (last visited on Nov. 1, 2021)
of ABS has emerged both at the national and international levels. With the intent to benefit the communities having traditional knowledge, India became a party to the CBD on 19 May 1994 and thus to implement it, the Act was enacted by the Parliament. Through the Act, India entered the global regime of ABS. It was mandated by the convention that the state parties must prepare their policies to achieve the objectives enlisted. ABS, as suggested by one of the objectives of the CBD is “the fair and equitable sharing of the benefits arising from the use of genetic resources”. 14 It is a mechanism to ensure access to genetic resources and the traditional knowledge associated with them for the advancement of science, to meet the necessities and for the sharing of the benefits arising out from such use with the providers. 15 The mechanism was further elaborated within the Nagoya Protocol.
When India enacted the Act, it retained the objective of the CBD stating it to be “An Act 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, knowledge and for matters connected therewith or incidental thereto” The ABS mechanism is implemented in India through a three-tier system: National Biodiversity Authority, State Biodiversity Boards, and Biodiversity Management Committees at the local body level. The Act provides for a different mechanism for Indian and non-Indian users. As per section 2(g) of the Act, fair and equitable sharing suggests the determination of benefit sharing under section 21 by the National Biodiversity Authority which laid down certain grounds to determine such sharing.
But the Act has nowhere defined Access and left it for the rules and guidelines to be formulated by the central government. Furthermore, there is no judgement of the Supreme Court clearing all the ambiguities. In a general sense, it means, “acquisition of biological resources or their derivatives, community knowledge, innovations, technologies, or practices, and refers to the granting of permission to enter an area for the purpose of sampling, collecting, surveying, or acquiring genetic resources for general study, examination, or research for scientific or commercial purposes”16 The crucial question about
14 Supra note 3, at 7
15 Convention On Biological Diversity: ABS Introduction to Access and Benefit-Sharing,
https://www.cbd.int/abs/infokit/brochure-en.pdf, (last visited on Nov. 1, 2021). 16 Krishna Prasad Oli Tara Devi Dhakal, Access and Benefit Sharing from Genetic Resources and Associated Traditional Knowledge, ICIMOD
the point of access has been left open. Neither the Act nor the regulation or any precedent defines that when can it be stated that access has been made. Challenges of the ABS Scheme Indigenous communities often face unequal negotiating power when dealing with external parties such as researchers, companies, or governments. This imbalance is exacerbated by the lack of legal expertise and resources within indigenous communities, which can result in agreements that do not fully protect their interests. Additionally, conflicts may arise between indigenous communities and national governments over sovereignty and control of genetic resources. The reliance on contract law and MTAs creates a complex legal framework that can be difficult for indigenous communities to navigate without legal assistance.
This complexity can lead to bureaucratic hurdles and may prevent indigenous communities from effectively participating in the ABS process. While the ABS scheme aims to ensure fair compensation, the actual financial benefits for indigenous communities may be limited, especially if the commercial products derived from their knowledge do not generate significant profits. In some cases, benefits may be non-monetary, such as capacity-building or technology transfer, which may not always meet the needs or expectations of the communities The implementation of the ABS scheme can be challenging, particularly in countries with weak legal systems or limited capacity to enforce ABS agreements. This can result in situations where indigenous communities do not receive the benefits they are entitled to, even if agreements are in place.
Disputes over the interpretation of agreements may also arise, particularly regarding the scope of benefits or the rights of indigenous communities. The ABS scheme often intersects with broader issues of sovereignty and land rights, particularly when it comes to the control and management of genetic resources. Indigenous communities may face challenges in asserting their rights over land and resources, especially when national governments claim sovereignty over these resources. This can lead to conflicts between indigenous communities and governments, particularly when their interests are not aligned.