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Access and Benefit Sharing (ABS) is a framework that governs how genetic resources are accessed and how benefits from their use are shared between users and providers. The concept has evolved through phases, beginning with open access, followed by the introduction of ABS obligations via the Convention on Biological Diversity (CBD), and further developed through the Nagoya Protocol. In India, the Biological Diversity Act 2002 and associated rules provide a structured process for accessing biological resources and determining fair benefit sharing agreements.

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22 views6 pages

Bio Ipr PDF

Access and Benefit Sharing (ABS) is a framework that governs how genetic resources are accessed and how benefits from their use are shared between users and providers. The concept has evolved through phases, beginning with open access, followed by the introduction of ABS obligations via the Convention on Biological Diversity (CBD), and further developed through the Nagoya Protocol. In India, the Biological Diversity Act 2002 and associated rules provide a structured process for accessing biological resources and determining fair benefit sharing agreements.

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Mohd Yousuf
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ACCESS AND BENEFIT SHARING

• The concept of ABS is well known in the international arena, it is yet to be internalised in the working of the
stakeholders concerned and secure greater compliance in India.
• Without adequate fundamental understanding of the concepts of ABS and the existing legal obligations and
procedures, the entire process is, often, impacted by poorly informed decisions – on access, sharing of benefits and
adherence to established procedures.
CONCEPT OF ABS

• Access and benefit-sharing (ABS) refers to the way in which genetic resources may be accessed, and how the
benefits that result from their use are shared between the people or countries using the resources (users) and the
people or countries that provide them (providers).
• ABS is the sum of two decoupled activities, a conditional access followed by an actual sharing of benefits up front or
at a later stage.
• “Access ”to genetic or biological resources refers to the legitimate way in which a user obtains samples of biological
resources for the purposes of research, industrial application or commercial use, in compliance with the procedures
established under the concerned laws.
• “Benefit sharing” is a reciprocal obligation created on such users to pay back the providers a fair and equitable share
of the benefits arising from the utilisation of biological resources so accessed.
• Here providers can be an individual or a group of individuals or a community or a country where the resources are
physically present.
• There is no established formula to estimate what is “fair and equitable” sharing, it is internationally recognised as a
form of compensation given to the provider who has been maintaining and conserving the resources accessed by the
user based on mutually agreed terms.

Emergence of the Concept of Access and Benefit Sharing

It is convenient to look at the evolution and development of the concept of ABS, as it stands now, in three phases:
• the historical phase of open access with no benefit sharing- The International Union for Protection of New Varieties of
Plants (UPOV Convention) 1978
• introduction of ABS obligations through CBD- Article 15 of the CBD provides that in exercise of such sovereign rights,
countries have the authority to determine access to their genetic resources. The CBD further mandates that access
to genetic resources shall be subject to prior informed consent (PIC) of the countries of origin and mutually agreed
terms (MAT)
• iii. growth of the concept of ABS through the Nagoya Protocol- mandates that in cases where local and indigenous
communities have established rights over genetic resources, the countries must come up with measures to ensure
their PIC or approval and involvement for accessing such genetic resources and associated traditional knowledge
NATIONAL FRAMEWORK ON ABS IN INDIA

• Sections 3, 4 & 6 of Biological Diversity Act 2002 and Rules 14-19 of the Biological Diversity Rules 2004 lay down a
clear, predictable and transparent process for access to Indian biological resources and/or associated traditional
knowledge.
• Divya Pharmacy v. Union of India, High Court of Uttarakhand, India, 2018
Whether an Indian company having no foreign participation in terms of shareholding and management is mandated to Access and
Benefit Sharing (ABS) of biological resources or fair and equitable benefit sharing (FEBS) with local communities under the
Biological Diversity Act, 2002 was the question in Divya Pharmacy v. Union of India.
DETERMINATION OF BENEFIT SHARING AGREEMENTS

• Changes made in section 21: Determination of fair and equitable benefit sharing by NBA
• Limiting exemptions for AYUSH

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