Loss of Biodiversity, Technology and the Impact of IPR on Conservation - Law of Intellectual Property and Biodiversity

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1. Reasons for loss of biodiversity
2. Technology and socio-economic growth
3. Impact of IPR on biodiversity conservation: the case against
4. The case for
5. International responses in outline
How this is examined

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. The second half of Unit I asks three linked questions: why is biodiversity being lost, what has technology done for growth and at what cost to diversity, and does IP help or hurt conservation? An LL.M. answer should give both sides of the IP argument and end with a reasoned view on how the law can be designed to reduce the harm.

1. Reasons for loss of biodiversity

The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), in its Global Assessment (2019), ranked the direct drivers of loss in this order:

Changes in land and sea use: clearing forests for farms, plantations, mines, dams, roads and cities; draining wetlands; destroying mangroves.
Direct exploitation of organisms: overfishing, hunting, wildlife trade and overharvesting of medicinal plants (red sanders and sandalwood smuggling are Indian examples).
Climate change: shifting ranges, coral bleaching, changed flowering and breeding seasons.
Pollution: pesticides, fertiliser run-off, plastics, industrial effluent.
Invasive alien species: in India, Lantana camara, Parthenium (congress grass, which arrived with imported wheat in the 1950s) and Prosopis juliflora.

The same report estimated that around a million animal and plant species face extinction. Behind the direct drivers lie underlying causes:

Market failure: biodiversity is a public good whose value (pollination, flood control, genetic options) does not appear in prices, so it is undervalued.
The tragedy of the commons: Garrett Hardin’s 1968 essay argued that open access resources are over-used because each user gains the full benefit of extra use while the cost is shared. Elinor Ostrom later showed that communities often manage commons well under their own rules, a finding that supports community rights.
Poverty and inequality: the poor depend most on biodiversity and have the least ability to protect it.
Perverse subsidies and policy: subsidies for chemical inputs, monoculture plantations and land conversion.
Genetic erosion in agriculture: replacement of farmers’ varieties by a few high-yielding varieties.

2. Technology and socio-economic growth

The syllabus asks about the importance of technological growth and its impact on socio-economic growth. The Indian story has three phases.

The Green Revolution (from the mid-1960s). High-yielding dwarf wheat and rice, irrigation, fertiliser and assured procurement turned India from food aid dependence to self-sufficiency in cereals. The costs were genetic erosion (landraces abandoned), soil and water degradation in Punjab and Haryana, pesticide pollution and a narrowed diet. M.S. Swaminathan, its leading scientist, later called for an “evergreen revolution” that raised yields without ecological harm.

Biotechnology. Recombinant DNA techniques allowed genes to be moved across species. Bt cotton, approved in 2002, remains the only GM crop in wide commercial cultivation in India; the 2022 approval for environmental release of GM mustard (DMH-11) is under challenge in the Supreme Court. Genome editing came next; India exempted certain genome-edited plants without foreign DNA (SDN-1 and SDN-2) from the GM approval rules in 2022, and genome-edited rice varieties were released in 2025. Biotechnology converts biodiversity into an industrial input, which raises its economic value and the stakes of who controls it.

The bioeconomy. Pharmaceuticals, AYUSH products, seeds, enzymes, cosmetics and nutraceuticals all depend on biological resources. Technology also helps conservation: gene banks (the National Bureau of Plant Genetic Resources, New Delhi), cryopreservation, DNA barcoding to detect illegal trade, satellite monitoring of forests, and the Traditional Knowledge Digital Library.

The lesson for law: technology raises growth but tends to concentrate value in those who hold the technology, while the costs fall on the providers of resources. The CBD’s answer was to link access to genetic resources with access to technology (Articles 15, 16 and 19).

3. Impact of IPR on biodiversity conservation: the case against

Uniformity. Plant variety protection requires distinctness, uniformity and stability (DUS). Uniform varieties spread over large areas replace diverse, variable farmers’ varieties.
Monoculture incentives. IP rewards the few varieties that sell widely. Seed firms have no interest in maintaining many locally adapted varieties. Vandana Shiva describes this as the “monocultures of the mind”.
Biopiracy. Patents on known uses of neem, turmeric and basmati showed how IP can appropriate resources and knowledge without consent or benefit sharing (see the Plant Varieties paper note on biopiracy). Shiva’s Biopiracy: The Plunder of Nature and Knowledge (1997) and Protect or Plunder? (2001) argue that IP treats indigenous knowledge as raw material and Northern science as invention.
Restrictions on seed saving. Patents and UPOV 1991-style rights limit farmers’ saving and exchange, the practices that keep crop diversity alive.
Genetic use restriction technologies (“terminator” seeds) make saved seed sterile. The CBD Conference of the Parties in 2000 recommended against field testing and commercial use, and India’s PPV&FR Act bars registration of varieties involving technology injurious to the life or health of human beings, animals or plants.
Concentration. A handful of firms control much of the world’s commercial seed and agrochemical market, partly through patent portfolios.
Public domain asymmetry. TK is treated as free prior art, while improvements built on it are privatised.

4. The case for

Value creates incentives to conserve. If genetic resources can earn royalties, states and communities have a reason to protect them. The 1991 agreement between Merck and Costa Rica’s INBio, under which Merck paid for samples and promised royalties that funded conservation, was the model often cited.
Benefit sharing needs IP. Royalties and joint ownership, the main monetary benefits, presuppose that a product is protected.
Plant variety protection rewards breeding and can be designed to reward farmers and communities as well, as the PPV&FR Act does with farmers’ varieties and community compensation.
Geographical indications and collective marks reward traditional varieties tied to a place (Navara rice, Coorg orange, Nanjanagud banana), giving growers a reason to keep them.
Disclosure in patent specifications puts information in the public domain, and a source-of-origin requirement helps trace resources for benefit sharing.

A reasoned view. Philippe Cullet (Intellectual Property Protection and Sustainable Development, 2005) argues that IP is a tool of policy, not a natural right, and must be shaped to serve sustainable development. On that view, the question is not whether IP is good or bad for biodiversity but which design choices limit the harm: exclusions from patentability (section 3(j) and 3(p) of the Patents Act), disclosure of origin (section 10(4)), opposition and revocation for non-disclosure or anticipation by TK, farmers’ rights, prior approval of the NBA for IP based on Indian resources, and benefit sharing. Bioprospecting deals such as Merck–INBio produced far less money than predicted, so benefit sharing alone cannot fund conservation.

5. International responses in outline

The CBD (1992) linked conservation with benefit sharing and asked that IP be supportive of its objectives (Article 16(5)). TRIPS (1994) required patents in all fields of technology but allowed exclusion of plants and animals (Article 27.3(b)), and the Doha Declaration (2001) asked the TRIPS Council to study its relationship with the CBD. The Nagoya Protocol (2010) set up compliance measures, and the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (2024) requires disclosure of origin in patent applications. The Kunming-Montreal Global Biodiversity Framework (2022) set 23 targets for 2030, including the protection of 30% of land and sea. These are treated in Unit II.

How this is examined

Likely long questions. “Discuss the causes of loss of biodiversity and the role of law in arresting it.” “Critically examine the impact of intellectual property rights on the conservation of biodiversity.” “Technological growth is necessary for socio-economic development but threatens biodiversity. Discuss.”

Likely short notes. Genetic erosion; invasive alien species; terminator technology; tragedy of the commons; Green Revolution and biodiversity; bioprospecting.

For the IPR question, set out the case against and the case for under headings, then close with the design features of Indian law that try to reconcile IP with conservation.