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INTRODUCTION

The Convention on Biological Diversity (CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) have significant implications for the nexus of Intellectual Property Rights (IPRs), biodiversity, and associated knowledge systems. CBD requires parties to safeguard biodiversity and the traditions and knowledge of the indigenous and other local communities associated with this biodiversity. It also lays down the basic elements for access to biodiversity resources and associated knowledge systems. The TRIPS Agreement obliges member states to modify their national IPR regimes to meet much-enhanced international standards, which can have significant implications for biodiversity and the associated knowledge systems. It is often said that there is a direct conflict between TRIPS and CBD. It needs to be checked whether the two threaten each other or work hand in hand.

CONFLICT 

The objectives of this act, which are quite like those of CBD, include the protection of biological variety, equitable and fair distribution of the benefits and profits resulting from it, its sustainable uses, and preservation of traditional knowledge and such matters therein. In addition, the Biodiversity Act, like the CBD, recognises the rights of the community and has included a restriction against non-citizens, organisations, and associations that are not of Indian occurrence from obtaining biological resources or traditional knowledge related to those that are of Indian occurrence for research, bio-survey, commercial use, or bio-utilization purposes18 without permission from the National Biodiversity Authority, which was established under this statute.

The National Biodiversity Authority must also give its prior approval before a foreign individual or organisation can apply for a patent on biodiversity that originated in India. The act has given the National Biodiversity Authority the authority to set benefit-sharing fees or royalties in respect of commercialising biodiversity via any IP right, in accordance with the principles of CBD that an equitable sharing of profits and benefits must occur between those who are commercialising the biodiversity of developing nations and those who are protecting and playing a key role in its primary existence. Furthermore, in accordance with CBD article 15.1, the application of patents by foreign nationals and organisations on biodiversity that originated in India demonstrates India's commitment to its territorial integrity. Also, to advance India's goal of biodiversity preservation and protection, these restrictions restrict access to it.

When comparing the Biodiversity Act's conformity with TRIPs and CBD, it falls short in this area. For this reason, the Indian Patents Act was once again changed in 2005 after being previously amended in 2002, to address its flaws with regard to compliance with TRIPs.

But the clash between TRIPs and CBD is vividly depicted by the absence of harmony and chancy between the Biodiversity Act and the Patent Act. While the CBD recognises a state's sovereign claim over resources that originated on its territory and biogenetic diversity, the Biodiversity Act goes beyond the CBD by recognising sovereignty over all biological resources that occur there.

The Biodiversity Act obviously violates TRIPs21's national treatment concept and article 27's stipulation that IP rights should be enjoyed equally and freely regardless of the place of invention or production by giving foreign nationals differential treatment in patent proceedings. As a result, it is determined that TRIPs and the Biodiversity Act are at odds. In contrast, the Patent Act of 2005 was revised and put into effect in order to comply with TRIPs. 22 The Paten Act seeks a non-discriminatory and more expansive implementation of India's IP framework, in contrast to the Biodiversity Act, which attempts to protect and conserve biodiversity.

The fundamental concept is that for both IP regimes to function well, they must cooperate. Yet, the nature and objectives of both statutes make them more incompatible than compatible. An example of such is the Biodiversity Act's profit-sharing clause and the stringent acknowledgement and enforcement of everyone’s intellectual property rights. Even yet, there is significant symmetry between the two pieces of legislation, as seen by sections 6 and 7 of the Biodiversity Act and section 10 of the Patents Act regarding prior informed permission. 23 Although the Patent Act was specifically changed in 2005 to comply with TRIPs, the prior informed consent rule still runs counter to its provisions, including articles 62, 32, 29 and 27.1. Prior informed permission is generally in accordance with article 15.5 of the CBD. Talking about the Biodiversity Act once more, it is important to note that while it imposes strict treatment for foreign nationals and organisations, it is also crucial to keep in mind that conserving and protecting biodiversity cannot be achieved solely by imposing strict treatment or restrictions on foreign nationals and organisations. Rather, national, national organisations must also receive careful consideration.

CONCLUSION

The only international agreement that protects a nation's biological resources is the Convention on Biological Diversity. The main resources of the nation, which are exclusively owned by its citizens, are its biological resources and its indigenous peoples' traditional knowledge. Therefore, it is necessary to guarantee protection against the unauthorised and unlawful exploitation of biological resources by any other country at the global level. TRIPs strive to defend corporate interests resulting from IP rights on a worldwide scale, whether or not they are related to biodiversity, whereas CBD aims to protect such biodiversity while upholding national sovereignty and respecting the rights of local populations over their biodiversity.

It would be incorrect to interpret the relationship between these agreements as having harmony because the goals of these agreements are incompatible. The tension is also evident in Indian statutes that are somewhat based on the CBD and TRIPs, such as the Biodiversity Act and Patents Act, but not to the same extent as the former. The commercialization and preservation of biogenetic resources are at the centre of the entire conflict. To prevent exploitation, there needs to be an appropriate balance struck between protecting our resources and classifying them as intellectual property. After all, this pandemic has taught us that protecting nature is our first, best, and most cost-effective line of defence against future pandemics.

REFRENCES

1. The relationship between the TRIPS agreement and the convention on biological diversity and the protection of traditional knowledge at https://www.iprsonline.org/ictsd/docs/wto_IPCW403.pdf/

2. WTO Documents Online at https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E

3. TRIPS vs. Convention on Biological Diversity: Rivals or Partners? At https://www.kashishworld.com/blog/trips-vs-convention-on-biological-diversity-rivals-or-partners/ 

4. https://blog.ipleaders.in/study-relationship-wtos-ip-agreement-convention-biological-diversity/