Policy on ABS in India
Presentation byDesh Deepak Verma, India

for the Japan-India Workshop on Access andBenefit Sharing of Genetic Resources andTraditional Knowledge
in the context of CBD
8 December 2006, Tokyo, Japan

“There is enough on this earth for everybody’s
need but not for everybody’s greed”

Convention on Biological Diversity• CBD – the first comprehensive global agreement addressing all
aspects of biodiversity.
• CBD envisages reciprocity of arrangements between developedand developing countries not seen before.
• CBD – a framework agreement that provides for country-driven
approach to its implementation.
• Three objectives of the Convention:o Conservation of biodiversity
o Sustainable use of its components
o Fair and equitable sharing of benefits arising out of the useof genetic resources• 189 countries Parties to CBD, India a Party.

CBD – Access and benefit sharing•

Pre-CBD, biological resources considered as common heritageof mankind•

CBD recognizes sovereign rights of nations over their
biological resources, and enjoins upon Parties to facilitate
access to genetic resources on mutually agreed upon terms
and with prior informed consent of country of origin ofresource, so as to ensure fair and equitable sharing of benefits
arising out of use of resource with provider country (Article 15)•CBD also stipulates Parties to ensure equitable sharing ofbenefits arising from use of traditional knowledge associatedwith biological resources (Article 8j).

ABS – Action at National level• Pursuant to ratification of CBD, India initiated wideranging extensive and intensive consultations withall stakeholders.
• Enacted Biological Diversity Act in 2002 andBiological Diversity Rules in 2004.
• Act aims at regulating access to biologicalresources and associated traditional knowledge toensure sharing of benefits with the country and itspeople.
• India one of the few countries to have enacted ABSlegislation.

ABS – Action at National level• India has also amended its Patent Act to provide formandatory disclosure in patent application of source
and geographical origin of biological material andtraditional knowledge used in invention.
• Amended Patent Act also provides for pre-grant
opposition and revocation of granted patents on
grounds of non-disclosure or wrongful disclosure ofsource or geographical origin of biologicalresources and traditional knowledge.

ABS provisions of Biological Diversity Act, 2002
• Biodiversity Act has three-tier structure for its implementation :NBA, SBBs and local level BMCs.
• NBA deals with all matters relating to requests for access byforeign individuals / institutions and transfer of results ofresearch to foreigners.
• While granting approvals, NBA imposes conditions which
secure equitable sharing of benefits from use of biologicalresources and associated knowledge.
• Benefits to include monetary gains, grant of joint ownership ofIPRs, transfer of technology, association of Indian scientists inR&D, setting up of venture capital funds etc.
• NBA approval also required before seeking IPR based on
biological material and TK obtained from India.
• NBA has power to oppose grant of IPRs in any other country on
bioresources / TK obtained from India.

ABS provisions of Biological Diversity Act, 2002
• SBBs constituted by State Governments deal with mattersrelating to access by Indians for commercial purposes. Indianindustry required to provide prior intimation to concerned SBB
about use of biological resources.
• SBB has power to restrict any such activity which violates
principle of conservation, sustainable use and equitable
sharing of benefits.
• Local institutions of self government are required to set up
BMCs in their respective areas for conservation, sustainable
use, documentation of biodiversity, and chronicling of
knowledge relating to biodiversity.
• NBA and SBB are required to consult concerned BMCs on
matters relating to use of biological resources and associatedTK within their respective jurisdictions.

ABS provisions of Biological Diversity Act, 2002
• This mandatory consultation of BMCs by NBA and SBBs
ensures formalisation of PIC by communities throughinvolvement of BMCs in decision making process.
• Act provides exemptions :– To local people for free access to use bioresources within India.
– To growers and cultivators, vaids and hakims to use bioresources.
– Through notification by Central Government of normally tradedcommodities so as not to affect trade.
– To collaborative research through government-sponsoredinstitutes subject to overall guidelines and approval of Central
Government.
– To value added products.

Biopiracy from India•Patents secured in USA and Europe e.g. on use ofneem, wound healing properties of haldi,
hypoglycaemic properties of brinjal, karela andjamun.

•Use of these biological materials already known inIndia.

•For neem and haldi, it was proved their use is priorart; hence these patents were revoked.

Biopiracy from India•

Recent studies on patents granted at USPTO, EPO
and UKPTO indicate increase in misappropriation ofgenetic resources and traditional knowledge.

•Biopiracy cannot be resolved with revocation ordomestic legislation alone.

•Need for documentation of traditional knowledge atnational level through e.g. TKDL.

•An international regime for operationalising ABS
provisions of CBD required for addressing biopiracy
effectively.

International Regime on ABS under CBD•

Framework for implementation of core objective of
CBD on ABS provided in Articles 15 and 8j, however,not much progress made till 2004.

•Seventh CoP to CBD in 2004 adopted a landmark
decision to negotiate an International regime on ABS
under CBD.

•Two negotiation meetings held so far.

•CoP-8 has decided that negotiations for IR on ABS becompleted by 2010.

IR on ABS – Potential advantages• IR would be beneficial to both developed anddeveloping countries.
• Harmonisation of national legislations a prerequisite for smooth conduct of businessbetween provider and user countries.
• IR thus expected to be tool of equity and fairplay between developed and developingcountries.

IR on ABS – Some key issues• Access should be facilitated only upto
sustainable level, and not exploitative level.
• Sustainable level to be decided by provider
country, would vary from region to region.
• Countries thus need to agree for defining
guidelines to facilitate provider country to
decide on sustainable level.

IR on ABS – Some key issues• Defining parameters of benefit sharing
much more challenging.
• Benefit could be separated from accessin terms of time, space and distance.
• Also problem in quantification ofbenefit.
• Equitable sharing of benefits anotherdifficult question.

IR on ABS – Some key issues• Debate over country of origin and country
providing resource also needs to be settled.
• In case where biological resource or TK isheld by more than one community, sharingof benefits would become more complicated.
• Need to explore answers to these difficult
questions during negotiations of IR on ABS.

THANK YOU