Biodiversity: Concept, Significance and Key Terms
Law of Intellectual Property and Biodiversity · Unit I · Topic 1 of 14 · 8 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
The examinable core. Unit I opens with definitions. Examiners expect you to give the CBD definitions of “genetic material”, “genetic resources” and “biological resources” accurately, set them against the Indian Act, and explain why the gap between them matters for IP.
1. The concept of biodiversity
“Biological diversity” was used by conservation biologists from the 1980s; the contraction “biodiversity” became common after the 1986 National Forum on BioDiversity in Washington and the volume edited by E.O. Wilson, BioDiversity (1988). The legal definition is in Article 2 of the Convention on Biological Diversity (CBD), 1992:
“Biological diversity” means “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”
Section 2(b) of the Biological Diversity Act, 2002 (BDA) adopts the same idea: 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 eco-systems. The 2023 amendment added that “biodiversity” means the same thing. Three levels follow from the definition:
- Genetic diversity: variation in genes within a species, such as the thousands of rice landraces bred by Indian farmers. This is the raw material of plant breeding and biotechnology, and so the level that IP law touches most directly.
- Species diversity: the number and variety of species in an area.
- Ecosystem diversity: the variety of habitats and ecological processes, such as forests, wetlands, mangroves and coral reefs.
Biodiversity is unevenly spread. Most of it lies in the tropics and in developing countries, while most biotechnology capacity and IP ownership lies in industrialised countries. India is one of the megadiverse countries and contains parts of four global biodiversity hotspots (the Himalaya, the Indo-Burma region, the Western Ghats and Sri Lanka, and Sundaland through the Nicobar Islands). This North–South gap is the political background to the whole paper.
2. Significance
- Ecological: the Millennium Ecosystem Assessment (2005) classified ecosystem services as provisioning (food, water, timber, medicine), regulating (climate, floods, pollination), cultural (spiritual, recreational) and supporting (soil formation, nutrient cycling). Diverse systems are more resilient to shocks.
- Agricultural and food security: Nikolai Vavilov identified centres of origin of cultivated plants, one of them in the Indian region. Breeders return to landraces and wild relatives for genes for disease resistance and drought tolerance. Uniform crops are vulnerable, as the Irish potato famine of the 1840s and the US southern corn leaf blight of 1970 showed.
- Medicinal: many modern drugs are derived from plants, microbes or animals, and Ayurveda, Siddha, Unani, Sowa Rigpa and tribal medicine depend directly on wild and cultivated species.
- Economic: biological resources feed the pharmaceutical, seed, cosmetics, food and enzyme industries. This is why access and benefit sharing became a legal question.
- Cultural and religious: sacred groves (the devarakadu of Kodagu, the kavu of Kerala), sacred species and community knowledge tie biodiversity to identity.
- Ethical: the CBD preamble affirms the “intrinsic value” of biological diversity. The Supreme Court adopted an ecocentric approach in Centre for Environmental Law, WWF-I v. Union of India, 2013 INSC 254, (2013) 8 SCC 234, directing the translocation of Asiatic lions to a second home and stating that the protection of endangered species is a constitutional duty that does not depend on human benefit alone.
- Intergenerational: the BDA defines “sustainable use” (section 2(o)) as use that does not lead to long-term decline of biodiversity, so that it meets the needs and aspirations of present and future generations.
Constitutionally, Article 48A (inserted by the 42nd Amendment, 1976) directs the State to protect and improve the environment and safeguard forests and wildlife, and Article 51A(g) makes it a fundamental duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
3. Genetic material and genetic resources
Article 2 of the CBD defines:
- “Genetic material”: “any material of plant, animal, microbial or other origin containing functional units of heredity.”
- “Genetic resources”: “genetic material of actual or potential value.”
The ITPGRFA (Article 2) uses the same definition of genetic material and defines plant genetic resources for food and agriculture as any genetic material of plant origin of actual or potential value for food and agriculture. Two features matter. First, “functional units of heredity” points to genes, so a purified chemical with no DNA is not genetic material in the strict sense. Second, value is built into the definition: a resource becomes a “genetic resource” because someone can use it.
Derivatives. Because bioprospectors often use the chemical compound and not the gene, the Nagoya Protocol (2010) defined “derivative” as a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity, and “utilization of genetic resources” as research and development on their genetic or biochemical composition. The 2023 amendment imported this into Indian law: section 2(fa) defines “derivative” as a naturally occurring biochemical compound or metabolism of biological resources, even if it does not contain functional units of heredity.
4. Biological resources
The CBD’s definition is broad: biological resources “includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.” Genetic resources are therefore a subset of biological resources.
The BDA, as amended, provides in section 2(c) that “biological resources” include plants, animals, micro-organisms or parts of their genetic material and derivatives (excluding value added products), with actual or potential use or value for humanity, but does not include human genetic material. Points to note:
- The original 2002 text spoke of “by-products”; the amendment substituted “derivatives”, aligning the Act with Nagoya.
- Value added products (section 2(p)) are excluded: products which may contain portions or extracts of plants and animals in unrecognisable and physically inseparable form. A finished herbal tablet is outside the Act; the raw herb is inside it.
- Human genetic material is excluded and is dealt with by bioethics and research regulation instead.
- “Access” is now defined (section 2(a)) as collecting, procuring or possessing any biological resource occurring in or obtained from India, or associated traditional knowledge, for research, bio-survey or commercial utilisation.
5. Benefit-sharing
The CBD does not define benefit-sharing, but it is the third objective in Article 1 (“the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”), and Article 15(7) requires parties to take measures so that results of research and development and benefits from commercial and other use are shared with the providing party on mutually agreed terms. The Bonn Guidelines (2002) and the Annex to the Nagoya Protocol list the forms:
- monetary: access fees, up-front and milestone payments, royalties, licence fees, research funding, joint ownership of IP;
- non-monetary: sharing of research results, participation in research, transfer of technology and knowledge, training, institutional capacity, food and livelihood security.
In the BDA, “fair and equitable benefit sharing” is sharing as determined by the National Biodiversity Authority under section 21 (section 2(g)). “Benefit claimers” (section 2(aa), as substituted in 2023) are the conservers of biological resources and their by-products, creators or holders of associated traditional knowledge (excluding codified traditional knowledge only for Indians), and information relating to the use of such resources. The exclusion of codified knowledge is the most debated change of 2023 and is discussed in the notes for Units III and IV.
How this is examined
Likely long questions. “Explain the concept and significance of biodiversity. Distinguish between genetic material, genetic resources and biological resources.” “What is benefit-sharing? Examine the forms of benefit-sharing under the CBD, the Nagoya Protocol and the Biological Diversity Act, 2002.”
Likely short notes. Genetic resources; biological resources under the Biological Diversity Act; derivatives; benefit claimers; value added products; digital sequence information.
Quote the CBD definitions exactly, then the BDA definitions as amended in 2023, and use the derivative and DSI points to show why the definitions decide how much ABS law can reach.