Biopiracy And Indigenous Rights In India: Laws And Legal Protection
Introduction
Biopiracy is a significant problem that violates the intellectual and cultural property rights of indigenous peoples all over the world. It consists of multinationals using biological resources and traditional knowledge mostly without permission or fair compensation. It is particularly worrying in countries with great biodiversity such as India, where traditional knowledge in Ayurveda, medicine, and agriculture has been safeguarded for centuries. Cases of neem and turmeric being patented by foreign companies are examples of the exploitation of indigenous people using their traditional knowledge for profit, without recognition of the rights of local communities. In addition to the loss of income, biopiracy is a form of exploitation that strips indigenous people of their sovereignty and threatens their cultural existence. Although India has initiated some reforms with legal instruments like the Biological Diversity Act 2002, the effective application of the Act and its legal impacts has been a challenge. Fighting biopiracy is important to protect indigenous rights, and importantly, it is also essential for ensuring ethical and sustainable use of traditional knowledge within global commerce.[1]
Table of Contents
Laws Regarding Biopiracy And Protection Of Indigenous Rights In India:
India has drafted different legal tools, whose objectives are to ban biopiracy of biological resources, and, to recognize and compensate indigenous people for their contributions. One important law regulating biopiracy in India is the Biological Biodiversity Act of 2002[2], which was enacted to regulate access to biological resources to conserve biological resources and for equitable sharing of benefits.
The Act sets up the National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs), and Biodiversity Management Committees (BMCs) to regulate the use of bioresources. It requires that foreign nationals and institutions request prior approval from the NBA to access biological resources and that Indian scientists get NBA approval before transferring research outcomes to foreign institutions. Businesses intending to utilize biological resources must also notify the SBB, who is required to restrict access if there is inconsistent compliance with conservation and equitable benefit-sharing. The Act makes provision for a National, State and Local Biodiversity Fund. The funds are expected to support conservation and defend the rights of indigenous people.[3]
Another significant piece of legislation is The Patents Act, 1970, amended in 2005 to bring it into compliance with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and to prevent the patenting of traditional knowledge. The amendment incorporates a requirement to disclose the source and geographical origin of biological material used in the invention. Section 3(p) of the Patents Act explains that traditional knowledge cannot be patented, except when there is significant scientific modification, thus foiling attempts to exploit indigenous intelligence for commercialization. This section has a purpose in the matter of the turmeric and neem patent dispute, where India prevailed on the basis of Section 3(p) in revoking the patents by foreign companies on these two treatments from nature.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) further establishes the rights of indigenous peoples through the recognition of the rights of tribal people to have access to forest land and forest biodiversity. This law helps to legally vest indigenous peoples with titles and provides some protection against exploitation because the library of plant biodiversity and forests sustained the Indian ancestors for centuries prior to colonization.
The FRA recognizes and respects the traditional knowledge of indigenous people, which they used for a forest-based living. This law protects the traditional custodians and prevents other parties from appropriating resources of the indigenous peoples without their consent or benefitting from the economic resources of the land that were supplied by the original custodians. Another important legislative example of protecting a product that is location-based with traditional or cultural significance would be The Geographical Indications (GI) Act of 1999. The GI Act provides protection against the unwarranted commercialization of local products and provides that local communities should receive economic benefits from the traditions they have created. An example of GI protection in India is Basmati rice, which has protected local communities from multinational companies misappropriating this product. Another noteworthy legislation is the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FRA), that protects the intellectual property rights of plant breeders and farmers, in regard to plant varieties.
The Act acknowledges the role of traditional farmers in preserving plant diversity and states they should be fairly compensated for the commercial use of their varieties. It allows for the registration of traditional plant varieties for the purpose of preventing biopiracy and patents by multinationals. Unfortunately, while these laws have great potential, the implementation of laws has proved problematic. These challenges include low awareness of their legal rights amongst Indigenous peoples, bureaucratic red tape and problems with monitoring infringements.
International Conventions and Treaties[4] :
Treaties and conventions at the international level are critical to preventing biopiracy and concerning the rights of indigenous peoples. For example, the TRIPS Agreement obliges its member states under Art. 27(3)(b) to provide for the protection of plant varieties, through either the patent system or some ‘sui generis’ form of protection or both; but the TRIPS Agreement does not elaborate as to what may constitute a ‘sui generis’ form of protection. This lack of specification has, at least in part, resulted in some confusion over the treaty obligations of developed and developing nations.
Art. 22.3 protects Geographical Indications (GI) similarly by barring registrations of a trademark that could mislead persons as to the product’s origin. The Convention on Biological Diversity takes recognition of indigenous people and notes their reliance on biodiversity as well, that these communities play an important role in biodiversity. The Convention on Biological Diversity seeks to protect and conserve traditional knowledge, while promoting the means for traditional communities to receive ‘fair and equitable’ sharing of benefits arising from traditional knowledge under Article 8(j). As much as possible, States are also granted sovereign rights over biological resources, but in a manner that gives adequate recognition and compensation to indigenous peoples for their contributions. The Nagoya Protocol (2010) builds on the CBD to establish legally binding standards regarding access and benefit-sharing (ABS) of genetic resources. It specifies and creates mechanisms for the Nation-State to regulate access, compelling researchers and businesses utilizing indigenous resources to get specific permission before applying the resources. The Protocol further directs that any benefits associated with the use of indigenous resources are to be equitable and fair and specifies that knowledge holders are not to be exploited. These international agreements are meant to both prohibit the appropriate use of indigenous resources at each step, but also encourage fair trade practices, and entice sustainable conservation of biodiversity, and strengthen the rights of indigenous peoples in relation to economic and environmental interests.
Conclusion:
In summary, biopiracy is a serious concern because it does not just rob those around, and opportunities for education and well-being, but legitimates corporations to monetize traditional knowledge for unfair compensation. India has a robust legal framework already in place to deter unauthorized use and promote equitable benefit-sharing with its Biological Diversity Act 2002, the Patents Act 1970 (amended 2005), the Forest Rights Act 2006, the Geographical Indications Act 1999, the Protection of Plant Varieties and Farmers’ Rights Act 2001, to name a few.
Although there are issues related to enforcement, awareness and other regulatory matters, at international level, international treaties like TRIPS, Convention on Biological Diversity, and the Nagoya Protocol measures provide supportive mechanisms in the protection of indigenous peoples’ rights through equitable benefit-sharing, supported by their respective agreements to recognize and advocate for their rights. Moving forward it will be important to have a multi-stakeholder mechanism involving state governments, indigenous peoples, and international organizations to support implementation and raise awareness, along with ensuring the access and use of traditional knowledge is done in a fair and sustainable way.
[1] Minority Rights Group International (Year) Biopiracy: Increasing threat to survival of Asian indigenous culture. Available at: https://minorityrights.org/biopiracy-increasing-threat-to-survival-of-asian-indigenous-culture/ (Accessed: 24TH March,2025).
[2] International Journal of Law, 6(4), Available at: https://www.lawjournals.org/assets/archives/2020/vol6issue4/6-4-24-231.pdf (Accessed: 24 March 2025).
[3] National Biodiversity Authority (2002) The Biological Diversity Act, 2002. Available at: http://nbaindia.org/uploaded/docs/biological-diversityact-ii.pdf (Accessed: 24 March 2025).
[4] International Journal of Law, 6(4), Available at: https://www.lawjournals.org/assets/archives/2020/vol6issue4/6-4-24-231.pdf (Accessed: 24 March 2025).
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