Abstract
Biodiversity plays an important role in the ecosystem, and it is an invaluable asset for ecological stability and balance. However, States and people have started exploring and exploiting biodiversity. This has raised a significant concern, to protect biodiversity from exploitation. This article delves into the intersection of IPR and the protection of Marine biodiversity. It provides a list of challenges in protecting biodiversity and an in-depth analysis of Legal Frameworks that are helping in preserving marine biodiversity for future generations.
Introduction
In 1980, Lovejoy coined the term “Biological Diversity” which denotes the number of species present in a group. This term was further compounded by Walter G. Rosen in 1985. He proposed this term to tell the varieties present in ecosystems. Biodiversity is described as a rich variety of Flora and Fauna present on Earth that can be explored for the benefit of humankind.
Generally, when we hear biodiversity, a picture of flora and fauna will occur in our minds. The main aim of this study is to get the focus on protection of Marine biodiversity. As the name suggests Marine means something related to the sea or ocean and biodiversity means the variety of life. Marine Biodiversity refers to the variety of life present in seas or oceans on Earth.
More than 70% of the Earth’s surface is covered by water and only some part of this area is nationalized which can be regulated by the states. Now-a-days Marine Genetic Resources (MGRs) have become a major point for scientific research. The commodification of these resources has sparked discussions regarding the fair distribution of benefits, access rights, and environmental effects of bioprospecting. Intellectual Property Law greatly determines how marine biodiversity will be taken advantage of and protected, which affects conservation efforts and economic incentives.
Intellectual Property Rights and Marine Biodiversity
Intellectual Property Rights that include patents, Trademarks, and Geographical Indication provide incentives to the person, group of persons, or any company that is making technological advancements for the benefit of mankind in marine biotechnology.
Over the past years, many marine compounds have been patented for their therapeutic applications. For example, the drug Trabectedin, which was developed from the marine organism Ecteinascidia turbinata, is an anti-cancer drug that has been patented and commercialized all over the world. However, the trend of privatizing marine genetic resources through IPR raises concern over the related issues of monopolization and equitable access.
There are International Legal Frameworks such as the Convention on Biological Diversity (CBD) and the Nagoya Protocol that focus on equitable benefit sharing and access to the Indigenous communities for the protection of their traditional knowledge and fair compensation for their efforts to provide the resources.
Challenges in Marine Biodiversity Conservation and IPR
Despite various laws for the protection of Biodiversity including the IP Laws for benefit-sharing, incentivizing the concerned person for encouraging development. There are many challenges that hinder the effective preservation of Marine Biodiversity.
- Biopiracy and Exploitation of Marine Genetic Resources
Intellectual property laws are for the benefit of sharing with the Indigenous community to protect the interest of those communities who are protecting Bio- resources for the benefit of mankind but big giants who are deriving financial benefits from those bio–resources are doing biopiracy. Biopiracy refers to the unauthorized use of Bio – resources. Biopiracy can be done in two ways direct biopiracy and indirect biopiracy. In direct biopiracy, companies directly use or exploit the bio-resources without the permission of National Authorities and without following the proper rules and regulations. In indirect biopiracy, companies do all the things in accordance with the law and use bio-resources associated with traditional knowledge without paying compensation to indigenous communities.
- Legal Gaps in Areas Beyond National Jurisdiction (ABNJ)
Marine biodiversity exists almost entirely in areas beyond national jurisdiction. The legal status of genetic resources in these areas is still murky, which encourages reckless exploitation by commercial interests. For example, If somebody is developing any Intellectual property by using the bio-resources present in High Seas then who will take the credit for that product? How that person can protect his exclusive rights over that innovative product? Thus, the United Nations is in the process of negotiating a treaty on the BBNJ to address this issue and set up rules of governance.
- The Limited Accessibility of Marine Genetic Resources
Patents might stimulate research but may nonetheless inhibit access to marine genetic resources, especially for developing nations lacking the requisite funds for biotechnological R&D. This creates a gap between technologically advanced nations and biodiversity-rich economically impotent areas.
- Ethical and Environmental Implications
The collection of marine organisms for commercial and research purposes can disrupt ecosystems and threaten marine biodiversity. Unsustainable bioprospecting practices might lead to species depletion, habitat destruction, and irreversible ecological damage. This will be a direct violation of Laws that are made for protection of the traditional knowledge and biodiversity.
- Patentability of MGR – Based inventions
Any Marine – microorganisms can be developed and modified by the human intervention and may convert into a product which is not naturally present in nature. This biotechnological invention involves inventive steps and economic significance. Hence, that invention is qualified for patent protection. These biotechnological patents are purposefully excluded from the patentable subject matter depending upon country to country. This leads to a big question, how the interest of the innovator can be protected?
Legal Frameworks Governing Marine Biodiversity and IPR
National laws and international treaties interact in intricate ways to form a legal framework governing marine ecosystems that acts to conserve marine biodiversity and promote sustainable use of resources. Such frameworks outline the obligations of states in administering common resources of the ocean as well as setting legal parameters to implement conservation efforts.
- United Nations Convention on the Law of Sea (UNCLOS)
This UN body assigns the rules, regulations, rights, and duties of the states to protect the coastal regions, coastal environment, and oceans of the national boundaries and the High Seas. However, UNCLOS does not specifically talk about Marine Biodiversity, but Part XII of UNCLOS covers preserving and protecting the marine environment.
- International Convention for the Prevention of Pollution from Ships (MARPOL), 1973
MARPOL Convention was adopted by the International Maritime Organization in 1973. The main aim of this convention is to mitigate the pollution from accidental and operational causes of the ships. The Convention now has six technical Annexes, each containing restrictions to prevent and minimize pollution from ships, including accidental pollution and pollution due to routine operations. Most of the Annexes have been designated Special Areas, with stringent limitations on operational discharges.
- Convention on Biological Diversity (CBD), 1992
This convention does not specifically talk about Marine Biodiversity but focuses on the exploration and exploitation of Biodiversity. Parties to this convention have to focus on the sustainable use of biological resources and proper benefit sharing with the indigenous communities. In India, The National Biodiversity Authority was also established under this convention for the protection of Biodiversity Hotspots in India.
- Nagoya Protocol, 2010
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) is a supplementary agreement to the Convention on Biological Diversity. This protocol, in fact, sets itself to implement one of the CBD’s three objectives-that is, the equitable sharing of benefits arising from the use of genetic resources- and now does so with clear legal parameters.
Conclusion
The intersection of Intellectual Property Rights and Marine Biodiversity is a complex issue. With the development and benefits of mankind from natural resources the sustainable use of those resources and preservation for the future generation should be kept in mind. These legal frameworks and benefit sharing play a crucial role in this that helps in fostering sustainability. The global government should consider IPR to encourage the development and proper benefit sharing to the indigenous community.
Written by Esha Jaiswal, Legal Intern at Intepat IP
