BIOPIRACY Imitations Not Innovations - Biopirateria

Biopiracy: Imitations Not Innovations 15
Partly as a result of these well-known cases, developing countries, holders of
traditional knowledge, and campaigning organizations are pressing in a multitude
of fora for IK to be better protected. Challenging patents granted on indigenous
knowledge is not a solution to the problem because generally such patents go
unnoticed and secondly, challenging such patents in foreign nations is expensive
and time-consuming, which is a major problem for resource-poor developing
nations. The solution to this problem must lie in action on the part the ‘offending’
nations, they should amend their intellectual property regimes so as to protect
and recognize IK.
This situation calls for the regulation of access to bioresources and associated
IK. A mandatory regulation of access to bioresources and associated knowledge
according to the provisions of the Convention on Biodiversity (CBD) and other
pro-community international agreements is a necessity to prevent the incidence
of biopiracy. Such regulation would involve the consent of the rural and indigenous
communities in cases where biological resources and/or knowledge are accessed.
As a corollary to this regulation, it would also involve benefit-sharing (monetary
and/or non-monetary) with these communities in the benefit accruing out of
the use of biological resources and associated IK.
In the wake of the advances in biotechnology and the extension of patent
protection to living organisms, both developed and developing countries realized
the importance of regulating access to bioresources. This was the basis for the
conclusion of the CBD in 1992. The Convention on Biological Diversity, 1992,
inter alia, recognizes the sovereign rights of States over their biological resources; the
close and traditional dependence of many indigenous and local communities
embodying traditional lifestyles on biological resources; the desirability of sharing
equitably benefits arising from the use of traditional knowledge; and innovations
and practices relevant to the conservation of biological diversity and the sustainable
use of its components. Article 8(j) of the CBD provides that “Each contracting
party shall, as far as possible and as appropriate, subject to its national legislation,
respect, preserve and maintain knowledge, innovations and practices of indigenous
and local communities embodying traditional lifestyles relevant for the conservation
and sustainable use of biological diversity and promote their wider application
with the approval and involvement of the holders of such knowledge, innovations
and practices and encourage the equitable sharing of the benefits arising from
the utilization of such knowledge, innovations and practices”. Further, Article
15 of the CBD lays down provisions for the access of genetic resources, according
to which access is subject to Prior Informed Consent (PIC) from the donor state
on Mutually Agreed Terms (MAT) between donor and recipient. It also requires