Читать книгу Reclaiming the Commons - Vandana Shiva - Страница 18

As part of our international commitment, the Indian government enacted the Biological Diversity Act (BDA) in 2002.⁴ This is one of the major instruments available to the government for the protection of indigenous knowledge systems. I was appointed a member of the expert group to draft the national law, both because of my experience on an international level at the CBD as well as my experience with creating Navdanya, the movement for the conservation of biodiversity, which preceded both the national and international law on biodiversity conservation.

The preamble of the act states that it is “an Act to provide for the 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 Act defines biodiversity as follows:

“Biological diversity” refers to the variability among living organisms from all sources and the ecological complexes of which they are part, including diversity within species or between species and of ecosystems.”

As a national implementation of the United Nations Convention on Biodiversity 1992 it reaffirms:

“The sovereign rights of the States over their biological resources and the duty to protect their rich biological diversity and associated traditional and contemporary knowledge system relating thereto.”

It also ensures fair and equitable benefit sharing; given that both biodiversity and biodiversity knowledge is collectively held by local communities, who have been defined as “benefit claimers” in the act:

‘“Benefit claimers’ means the conservers of biological resources, their byproducts, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application.”

The act defines “commercial utilization” in 2(f):

‘“Commercial utilization’ refers to the end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavors, fragrances, cosmetics, emulsifiers, oleoresins, colors, extracts, and genes used for improving crops and livestock through genetic intervention, but does not include conventional breeding or traditional practices in use in any agriculture, horticulture, poultry, dairy farming, animal husbandry or beekeeping;”

The permission of State Biodiversity Boards is necessary for commercial utilization to ensure fair and equitable benefit sharing with the communities from whom the resources and traditional knowledge have been taken:

“No person, who is a citizen of India or a corporate body, association or organization which is registered in India, shall obtain any biological resource for commercial utilization, bio-survey and bio-utilization for commercial utilization except after giving prior intimation to the State Biodiversity Board concerned:

Provided that the provisions of this section shall not apply to the local people and communities of the area, including growers and cultivators of biodiversity, and vaids and hakims,* who have been practicing indigenous medicine.”

This law established itself as a model law, later becoming the basis of the Nagoya Protocol on Access and Benefit Sharing; it regulates commercial actors, while respecting the freedoms of traditional communities who have conserved biodiversity and age-old knowledge.

The Biodiversity Act 6(1) also links biodiversity to intellectual property to prevent biopiracy:

“No person shall apply for any intellectual property right, by whatever name called, in or outside of India for any invention based on any research or information on a biological resource obtained from India without obtaining the previous approval of the National Biodiversity Authority before making such application.

Provided that if a person applies for a patent, permission ofthe National Biodiversity Authority may be obtained after the acceptance of the patent but before the sealing of the patent by the patent authority concerned.”

The institutional mechanisms created by the Act are as follows: the arrangement of a National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs), and Biodiversity Management Committees (BMCs) in local bodies. The NBA consists of a chairperson, ten ex officio central government representatives, and five non-official specialists/ experts. Its main functions are to lay down procedures and guidelines to govern activities such as granting permission to foreign companies for obtaining any biological resource, and for transferring the results of any research, exemption of certain biological resources normally traded as commodities, etc. The NBA and SBBs are required to consult BMCs in decisions relating to the use of biological resources/related knowledge within their jurisdiction; and the BMCs are to promote the conservation, sustainable use, and documentation of biodiversity. Their main role is to prepare the People’s Biodiversity Register (PBR) in consultation with local people, which includes comprehensive information on the availability of local biological resources, and the traditional knowledge associated with them.

Chapter II of the Act covers the Regulation of Access to Biodiversity. Section 3 deals with the certain persons (a non-citizen, a non-resident, a company not incorporated/registered in India) who should not undertake biodiversity related activities without approval of the National Biodiversity Authority. Section 4 pertains to the results of research which shall not be transferred to certain persons (a non-citizen, a non-resident, a company not incorporated or registered in India) without approval of the National Biodiversity Authority. Section 6 revolves around the application for intellectual property rights and says that:

“No person shall apply for any intellectual property right, by whatever name called, in or outside of India for any invention based on research or information on a biological resource obtained from India without obtaining the previous approval of the National Biodiversity Authority before making such application.”

Chapter V of the Act gives certain mechanisms for the equitable sharing of benefits. The NBA, under Section 19 and Section 20, demands equitable sharing of benefits which arise out of the use of accessed biological resources, their by-products, innovations, and practices associated with their use and applications and related knowledge. Furthermore, if any amount of money is ordered by way of benefit sharing, the NBA may direct the amount to be deposited in the National Biodiversity Fund.

The various arrangements for benefit sharing as elaborated under the Act are:

•Grant of joint ownership of intellectual property rights to the National Biodiversity Authority, or where benefit claimers are identified, to such benefit claimers

•Transfer of technology

•Location of production, research, and development units in such areas which will facilitate better living standards to the benefit claimers

•Association of Indian scientists, benefit claimers, and the local people with research and development in biological resources, bio survey and bio utilization

•Setting up of venture capital fund for aiding the cause of benefit claimers

•Payment of monetary compensation and non-monetary benefits to the benefit claimers as the National Biodiversity Authority may deem fit

The corporations who wanted free access to our biodiversity and knowledge to then make patents are very active through their lobby groups in trying to erode the Biodiversity Act. Thus, the Association of Biotechnology Led Enterprises (ABLE), a lobby group of the biotechnology industry has made “recommendations on Biodiversity Law provisions and its compliance.” ABLE has also tried to challenge the Seed Price Control Order which the government passed to address the agrarian crisis and farmers’ distress. I intervened in the case in the High Court of Bangalore, and ABLE’s case on behalf of Monsanto and the biotechnology industry was dismissed while the Seed Price Control Order was upheld.

After having wreaked havoc with farmers’ rights and in farmers’ lives, as well as illegally collecting royalties from Indian farmers for Bt cotton, in spite of not having a patent under 3(j) of the Patent Act, the biotechnology industry is trying to subvert our sovereignty, our national legislation for the conservation of biodiversity, our people’s rights, as well our Patent Act by claiming that:

“As the BDA is currently being interpreted, the effect on agricultural research is adverse at best and crippling at worst. If access to biological resources is blocked or the route is made so difficult to traverse, the development of new and improved varieties will be affected. This, in turn, affects the availability of the latest tools and products to Indian farmers.”

The distorted logic of the industry is based on the false claim that their GMOs have helped farmers, and therefore they should have unconditional, unregulated access to India’s biological and genetic wealth, and be able to take patents.

The claim is false because as Section 6 shows, Bt cotton has resulted in a severe crisis for Indian farmers. Secondly, Monsanto does not, and cannot have patents on seeds under Section 3(j) of India’s Patent Law. Thirdly, it is now recognized that industry might introduce new varieties, but these are not “improved” in the context of health, nutrition, resource use efficiency, or climate resilience.

On totally false claims, industry is trying to dismantle laws that we have put in place in order to protect our biodiversity and our communities. It is deliberately trying to cover up its technological failures, sell these failed technologies as “miracles”, burdening farmers with high cost seeds that fail to control pests, while also claiming a right to biopiracy.

If a particular industry recommends that no permission should be taken for accessing biological material from India for making a patent application in India or anywhere in the world according to section 6(1) of the Biodiversity Act it (ABLE and the biotechnology industry) represents the desire to have a right to biopiracy.

Not only are corporations trying to undermine the Biodiversity Act, they are also trying to undermine the Patent Act.

Section 10(4)(ii)(d) of the Patents Act [2005] requires that the Patent Applicant should disclose the source and geographical origin of the biological material in the description of the patent application. Industry is falsely presenting this requirement as independent of the Biodiversity Act by citing the transitional arrangement of 2002 as final law when it was merely a temporary mailbox arrangement. They then falsely mention that the Biodiversity Act was not in place at the time of the Patent Amendment 2002, therefore making the two unrelated.

Contrary to their misleading claim, the Patent Amendment Act of 2005 is the final Act, and it has fully taken the Biodiversity Act into account. Industry is trying to argue that patent applications in countries outside India cannot be subjected to Indian laws. This has been the basis of all biopiracy. And preventing biopiracy through regulation of access is one of the objectives of the Biodiversity Act. Again, the demand by industry to undo the access clauses in the act is a demand for a right to engage in biopiracy.

They want to unscientifically claim that organisms in wastewaters such as sewage waste and agricultural waste are not biological resources.

Additionally, they want to claim that if they say they are contributing to conservation and sustainable use of biodiversity, they should have no obligation to follow the rules of the Biodiversity Act.

My work on biodiversity conservation, shaping laws to protect biodiversity and our knowledge began when the chemical companies wanted to use GMOs to claim patents, imposing those patents on seeds and lifeforms through TRIPS. Luckily, we have been successful in implanting Biodiversity and Patent laws that protect the planet and people, not just corporate profits. Even after thirty years, the chemical industry, which is now the biotechnology industry, is still trying desperately to own life for limitless profits. Thirty years ago, they were trying to impose IPRs for their monopolies. We contested them then, preventing TRIPS from becoming an instrument of colonization. The contest between sovereignty and colonization, between biodiversity, corporate greed, and unaccountability continues. Our national laws related to Biodiversity and IPRs are shaped by the sovereignty of biodiversity, of farmers, and of local communities.