Accessing Plant Genetic Resources and Sharing the Benefi ts: Experiences in India

Abstract

Recent negotiations under the Convention on Biological Diversity and the adoption of Nagoya Protocol on
Access and Benefi t Sharing have placed biodiversity-rich developing countries in a better position to gain from
their bioresources and to enhance their capacity to provide more incentives for conservation and sustainable use
of biodiversity. India responded to its national obligations by enacting the Biological Diversity Act, 2002. This
legislation, and the Biological Diversity Rules, 2004 framed under it, provide for a three-tier legal framework
for regulating access to bioresources (and associated traditional knowledge) while promoting fair and equitable
sharing of the resulting benefi ts. Indian citizens are free to access bioresources for research purpose but they
are required to intimate the concerned State Biodiversity Boards (SBBs) prior to obtaining them for commercial
purpose. On the other hand, persons other than Indian citizens, as defi ned under section 3 (2), are essentially
required to obtain prior approval of National Biodiversity Authority (NBA) for accessing India’s bioresources
whether for research use or for commercial purpose. To promote benefi t sharing, NBA’s prior approval is also
required whenever an Indian researcher/institution intends to transfer bioresources or results of research on them
to the latter category of users. Furthermore, no person shall apply for seeking IPR protection over any innovative
process/product, based on the use of bioresources, occurring in India or obtained from India, without prior approval
of NBA and signing the agreement on benefi t sharing. Applying for protection of plant variety under PPV&FRA
is, however, exempted from this provision. Approvals are granted by NBA on a case by case basis, keeping
in view the recommendations of an Expert Committee and imposing terms for benefi t sharing in monetary or
non-monetary mode. Implementing the Act’s provisions presents a challenge since it requires active partnership
and effective coordination involving the NBA at the national level, SBBs at the state level and Biodiversity
Management Committees at the local level. Also considering that India’s national legislation combines the role of
the regulator (enforcing authorized access to bioresources) with that of the promoter (promoting conservation and
sustainable use of bioresources, benefi t sharing provisions, and also creating public awareness), and the advisor
(advising the central and state governments on some key issues and national concerns). India’s experiences in
implementing its national legislation may be of immense regional and international interest.