Explanatory Notes on Certain Sections of the Biological Diversity Act, 2002:

For better understanding of the sections, the following definitions and terms are explained:

(i) Biological Resources: Plants, animals, micro-organisms, their parts, genetic material and by-products, having actual or potential use or value.

• • • • • • Value added products based on biological resources are excluded.[1]
          • Human genetic material is excluded.

(ii) Commercial Utilization: This means the end use of a biological resource for commercial use such as

• • • • • • Drugs;
          • Industrial Enzymes;
          • Food Flavours;
          • Fragrance;
          • Cosmetics;
          • Emulsifiers;
          • Oleoresins;
          • Colours;
          • Extracts; and
          • Genes used for improving crops and livestock through genetic intervention.

In cases where the utilization of biological resources is for the following purposes, then they are exempted from being categorised as commercial utilization under the provisions of this Act

• • • • • • Conventional Breeding;
          • Traditional practices in use in any agriculture;
          • Traditional practices in use in any horticulture;
          • Traditional practices in use in any poultry;
          • Traditional practices in use in any dairy farming;
          • Traditional practices in use in any animal husbandry; or
          • Traditional practices in use in any bee keeping,

(iii) Research: This is the process of study or systematic investigation that involves-

• • • • • • Any biological resource;
          • Any technological application that uses biological systems, l iving organisms and/or their derivatives.

The purpose of the research as above explained will be for making or modifying products or processes for any use.

(iv)Bio-survey and Bio-utilization: The survey or collection for any purpose of –

• • • • • • Species;
          • Sub-Species;
          • Genes;
          • Components of biological resources; and
          • Extracts of biological resources.

This also includes characterisation, inventorisation and bio-assay of biological resources and their components.

(v) Prior Approval: The approval of National Biodiversity Authority has to be applied for and obtained prior to commencement of access and obtainment of biological resources and/or knowledge associated with biological resources occurring in India. A default in obtaining prior approval shall be an offence, for penalty under the Act.

Section 3: The following persons/entities seeking access and/or obtainment of biological resources occurring in India, for commercial utilization, research or bio-survey and bio-utilization shall have to seek prior approval from the National biodiversity Authority before such access and/or obtainment:

• • • Non-Indian Individual;
    • Any company, society, trust, organisation, association, institution etc., registered or incorporated outside India;
    • A Non-Resident Indian;
    • Any company, society, trust, organisation, association, institution etc., registered or incorporated in India, having non-Indian participation in its share capital and/or management.

Section 4: Any person who seeks to transfer to any of the following persons the results of his/her/its/their research relating to biological resource occurring in, or obtained from India, has to apply and obtain prior approval of National Biodiversity Authority before such transfer –

• • • Non-Indian Individual;
    • Any company, society, trust, organisation, association, institution etc., registered or incorporated outside India;
    • A Non-Resident Indian;
    • Any company, society, trust, organisation, association, institution etc., registered or incorporated in India, having non-Indian participation in its share capital and/or management.

The consideration for transfer under this section may be monetary or otherwise.

This section exempts publication of research papers or dissemination of knowledge in any seminar or workshop provided such publication is in conformity with Central Government Guidelines made in this regard.

Section 5: If any research institution in India is engaged in its institutional capacity in a collaborative research project with such institution in/of another country, relating to transfer or exchange of biological resources or associated information, it is exempted from applying for approval under this Act, provided the following conditions are satisfied:

• • • The collaborative research project is in conformity with the Central Government Guidelines made in this regard;
    • The approval of Central Government is obtained under the above stated guidelines;
    • A copy of the approval so obtained from the Central Government along with all relevant details is submitted to the National Biodiversity Authority.

This section includes Government sponsored institutions of India and such institutions in other countries, engaged in collaborative research projects.

Section 6: Any person who seeks to apply for any Intellectual Property Right, anywhere, within or outside India, for any invention based on any research or information on a biological resource obtained from India has to apply and obtain prior approval of National Biodiversity Authority, before applying for such IPR.

In cases where the IPR sought is a patent, the approval from National Biodiversity Authority may be applied and obtained subsequent to acceptance of the application for patent but prior to sealing of the patent.

Where the IPR sought is relating to rights under any law for protection of plant varieties in India, such application for IPR is exempted. In such cases, the authority granting the right has to endorse a copy of the relevant document granting the right, to National Biodiversity Authority.

Section 7: Any Indian citizen or company, society, trust, organisation, association, institution etc., wholly owned and managed by Indians, seeking to access and obtain biological resources for commercial utilization and/or bio-survey and bio-utilization for commercial utilization has to give prior intimation to the relevant State Biodiversity Board, from whose State the biological resources are sought to be accessed or obtained.

Local people/communities practising indigenous medicine including vaids and hakims, and growers and cultivators of biological diversity of the local area are exempted from this provision.

Section 40: Pursuant to Central Government notifying any item including biological resources normally traded as commodities under this section, the same becomes exempted from the purview of the Act.

Such exemption is available only when the notified item is normally traded as commodity. When the same item is used as a resource in a process or for the development of a product, such item is not exempted and shall be treated as a biological resource, the access and obtainment of which is regulated by the provisions of this Act.