Inequity, in Commerce over Biodiversity, to the Benefit Claimer!

Bioresources, in all their varieties, are viewed as “Green Gold”, as the products besides, contributing to the wellbeing of humanity, have, as a matter of fact, been earning rich dividends to its producers. Exploring and further mining of the vastness of its potential, in the market place, has been a subject of great consideration among biotechnologists, food processers, health care specialists and the like. Food and Pharmaceutical Industries, for instance, have demonstrated, over time, that they are real money-spinners. Of late, with the increasing application of science and technology in these sectors, the scope for increase in the new and improved varieties and the demand for such products and the consequent economic benefits, has been, on the ascendant. The inventors and innovators of such products and processes associated with them, have always been given due recognition and ensured a share in the profits of the investing entrepreneurs, for their intellectual labour, in the well evolved law, on the subject. However, the plight of the Practitioners, Carriers, inheritors and the Conservators of the Traditional Wisdom associated with these resources, in this regard, has been quite pathetic. They have been treated as a Class apart. Let alone, getting duly rewarded for their “anonymous and silent” contribution to conservation and environmentally sustainable use of bioresources, the legal regime hardly recognised and conferred any right or entitlement, to them. Since traditional practices and knowledge systems are in the Public Domain, the Intellectual Property Law has no place or space for them. While one of the principles of law underlying any transaction that there shall not be any, “Unjust Enrichment”, the hard law, at the enforcement level, made little attempt to pay attention to the unfortunate plight of this vulnerable victims, who are the real custodians and conservators of the traditions and practices. Nor those, who made a business out of them and earned huge profits, hardly cared to share the benefits with the ones who provided the source, base and capital for such ventures. It was an Ordering that was both iniquitous and unjust. These communities and individuals remained, “the eternal tenants of an extortionate system”, till recently. Wheels of time began to turn, to highlight this sorry state of affairs, leading to a host of legal developments over the issue. It is of great interest to examine the evolution of the law on the point. How the changes, over time, attested their contribution, provided legal recognition, by according a status of a right holder in law and developed mechanisms for a share in the benefits besides, safeguards against any mischief, that would lead to its denial to them. It is, indeed, fascinating to see how and to what extent the law has been able to ensure arresting the pernicious practice of “unjust enrichment” of those who least deserved it. Hence this study. The enquiry here traces the developments of the law—both international and domestic- on the subject. The primary focus would be on the two major laws concerning, Biological Diversity and the Protection of Plant Varieties and Farmers’ Rights. Included in the analytical frame of the study would be a relative assessment and evaluation of the two domestic legislations, in their endeavour in ensuring and securing the benefits of trade, to the custodians, conservers, holders, carriers, inheritors and practitioners of the time tested and time-honoured traditions, associated with biological resources.