Biopiracy: What It Is and How the Act Answers It

In one line

Biopiracy is taking a country's biological material or traditional knowledge without permission or payment and claiming a monopoly over it somewhere else.

In exam wording: biopiracy is the appropriation, usually through an intellectual property right obtained abroad, of biological resources or of traditional knowledge originating in a provider country, without the prior informed consent of that country or of the communities concerned and without sharing the benefits; Indian law answers it in three ways, by requiring approval before the material is taken under section 3 and before an intellectual property right is granted under section 6 of the Biological Diversity Act 2002, by allowing the National Biodiversity Authority under section 18(4) to oppose the grant of such rights outside India, and by making non-disclosure of the source and geographical origin of biological material, and anticipation by knowledge available within a local or indigenous community, grounds of opposition under section 25 and of revocation under section 64 of the Patents Act 1970.

What the word means, and what it does not

It is not a term of art. No Indian statute uses it. It is a description of a pattern, and different writers draw its boundary differently.

The pattern has four elements. Material or knowledge originating in one country; taken without the consent required by that country's law; used to obtain an exclusive right elsewhere; and no benefit returned.

What it is not. Lawful access with consent and benefit sharing is not biopiracy, however commercially one-sided the bargain. Nor is the use of knowledge that is genuinely in the public domain, unless the country's law nevertheless requires consent for the physical material.

Why the Convention alone could not stop it

Article 15 gives the provider country the right to require consent. It gives it nothing to do once the material has gone. A patent granted in another country is granted under that country's law by that country's office, and India's statute does not run there.

Three answers follow, and Indian law uses all three.

Answer one: stop it at the source

Section 3 requires previous approval before a foreign person, a non-resident Indian, or a body that is foreign or is controlled by a foreigner, obtains a biological resource occurring in India or associated knowledge for research, commercial utilisation or bio-survey.

Section 4 requires the prior written approval of the Authority before the results of research are shared with or transferred to such a person. The same section requires registration with the Authority where the results are used for further research, and prior approval where they are used for commercial utilisation or for obtaining intellectual property rights, within or outside India.

Section 7 requires prior intimation by an Indian for commercial utilisation.