In India, there is a lot of ambiguity and confusion in the matter of protection of rights of various interested groups, with respect to plant species, their natural or experimentally produced varieties, and their traditional or modern uses. The recent issue of the grant of patent rights on some aspects of the products of neem, turmeric, pepper and basumati rice in the US, has given a rude shock, to the Indian scientists and the Government. Hopefully the country’s administrators and scientists who shape policies will rise to the occasion and set the matters in the right perspective to protect the material and intellectual property rights (IPR) on our resources within and outside the country.

There is no culture of patenting in India, especially in life sciences. There is generally no awareness of the need and significance of patenting, even among the scientific community which generates the intellectual property. Some of the indifference on the part of the scientific community is certainly due to an unresponsive administrative policy. In the western countries the scientists and technologists, even when they conduct research with government funds, are a party to the patents granted, and monetarily benefit from them. In India, funding agencies, like the CSIR, reserve patent rights to themselves, keeping the scientists and technologists, who have provided the essential physical and intellectual means for the patentable material, as just slave labour. It should be enlightening to examine as to how the private seed and agricultural support companies employing retired scientists thrive while the governmental organisations that earlier employed them did not do so creditably.

There is no second word on the urgent need for officially recognising and suitably rewarding the rights of various parties involved in the utilisation of existing or new natural resources.

In the current fluid state, it is only possible to address the issues involved in the protection of various rights, and press for a legal international protection of such rights. There have been discussions and proposals, but these did not yet lead to legislation. Swaminathan (1993), Gadgil and Devasia (1995) and Ganguli (1998) have discussed the issues of IPR with particular reference to the rights on cultivated plant varieties and their use, while Dhar and Nagaraja Rao (1999), and Prakash (1999) discussed IPR issues related to biodiversity and biotechnology. The points discussed in these articles are relevant to issues concerning medicinal plants and associated matters. Consequent upon the signing of the Paris Convention that came into force on December 7, 1998, the Government of India have introduced, in March 1999, amendments to the Patents Act, 1970. This is a bright sign of change of attitude and Policy, but this would take quite some time to materialise into positive action. A lot of effort is needed to make functional regulations basing on the Acts of the Parliament.

PARTIES TO MATERIAL AND INTELLECTUAL PROPERTY RIGHTS

In the context of medicinal plants, one or more of the following rights need to be recognised and protected:

a) the rights of owners of the land (individuals, communities, government) used for the cultivation of the plants, which involve payment of land rental value;

b) the rights of the owners of the land (individuals, communities, government) from which naturally grown or cultivated plant material has been collected, which involve payment of land rental value plus the physical material value;

c) the rights of local village or tribal communities, whose use of a particular species is exclusive to that area/community, which involve payment of royalties for the utilisation of such information;

d) the rights of plant breeders, scientists, technologists, etc., who have

i) discovered a hitherto unknown therapeutic use for a species;

ii) discovered a new therapeutically active chemical compound in a species known or unknown as a medicinal plant;

iii) developed a new variety of a species using technology; and

iv) developed a new process for use in medicine; all of which involve payment of royalties.

Rights at a and b above are material property rights. Those at c and d, are intellectual property rights (IPR), which will accrue only if the relevant information is not published prior to a specified date. Such recognition will encourage enterprise in cultivation and improvement of medicinal plants.

INTERNATIONAL ORGANISATIONS TO REGULATE RIGHT PROTECTION

GENERAL AGREEMENT ON TARIFFS AND TRADE AND WORLD TRADE ORGANISATION

INTERNATIONAL UNION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS

CONVENTION ON BIOLOGICAL DIVERSITY

INDIA AND NATURAL RESOURCE RIGHTS

India is a signatory to several international agreements. After suitable amendments to the Patients Act by the Parliament, it is necessary that legal, administrative and scientific measures are initiated without delay, so as to ensure that the international agreements are strengthened in our own interest of protecting the products of traditional efforts of farmers and of research of our scientists. We should choose a system which on the one hand will help to protect the work of Indian plant breeders and farmers and on the other hand, facilitate international collaboration in a mutually beneficial manner (Swaminathan, 1993).