Draft Model Law: Collectors of Resources

Draft Model Law: Collectors of Biological Resources (Control and Licensing) Act, prepared by Gurdial Singh Nijar, In Defence of Local Community Knowledge and Biodiversity: A Conceptual Framework and the Essential Elements of a Rights Regime, pages 40-46 (Appendix 2) (1996).

Collectors of Biological Resources

(Control and Licensing) ActAn Act to provide for the control regulation and licensing of collectors of biological resources and for matters connected therewith.

1. This Act may be cited as the Collectors of Biological Resources (Control & Licensing) Act.

2. In this Act unless the context otherwise requires

'body of persons' means a group of persons not being an incorporated body or group;

'collector' means any individual body of persons, company or firm or institution or any one or more of them engaged or involved in the collection of biological resources whether as a business or howsoever otherwise (within the jurisdiction of the country).

'company' means any company incorporated, formed or registered under any written law for the time being in force in the country relating to companies and includes any body incorporated or established under any law in force in the country.

'Controller' means the Controller of Biological Resources appointed under this Act.

'Convention' means the Convention on Biological Diversity.

'firm' means an unincorporated body of persons associated together for the purpose of carrying on business.

'inspector' means an inspector appointed under this Act.

'licensed 'collector' means any collector licensed under this Act to engage in or carry on or undertake the collection of biological and plant genetic resources whether as a business, on a one-off occasion or howsoever otherwise.

'prescribed' means prescribed by the Minister under this Act.

3. For the purpose of this Act the Minister may appoint an officer to be styled the Controller of Biological Resources and such number of Inspectors of Biological Resources and other officers and servants as the Minister may deem fit.

4.1 No collection of biological resources shall be engaged in, carried on or undertaken except by a collector in possession of a licence issued under the Act.

4.2 A collector who desires to engage in or carry out or undertake the collection of biological resources may apply to the Controller for a Licence and any such application shall be made in the prescribed form and be accompanied by such documents as may be designated by the Controller. Every such document shall be verified by means of a statutory declaration made by the collector.

4.3 Upon receiving an application for a licence under this section, the Controller may grant the licence applied for or refuse to grant such a licence; and in granting such a licence the Controller may impose thereon such conditions (including the period during which the licence shall be valid) as he may deem fit and proper.

4.4 Subject to Section 8, the Controller may at any time vary, cancel or alter the conditions imposed on the grant of a licence or impose any new or additional conditions; or, where the licence is not subject to any condition, impose thereon such conditions as the Controller may deem fit for carrying out the provisions of this Act provided that no restrictions/conditions shall be imposed which run counter to the Convention.

5.1 Subject to the exercise of power of waiver by the Minister under subsection (2), the licence applied for under Section 4 shall not be granted unless the Controller is satisfied that:

(a) the collector is financially sound;

(b) the collector is in a position to meet his obligations under this Act;

(c) the applicant is not himself nor is any member or partner thereof a person convicted of an offence involving fraud or dishonesty or an undischarged bankrupt, if the application is made respectively by a person or a body of persons or a firm; and

(d) no one who is convicted of an offence involving fraud or dishonesty or who is an undischarged bankrupt is holding office as director, manager or secretary or other similar office or position, if the application is made by a company, or is holding office as president, secretary or treasurer or other similar office or position, if the application is made by a society.

5.2 The Minister may in his absolute discretion waive any or all of the conditions set out in subsection (1) (a), (b) or (d) or substitute any or all of the said conditions or such other conditions as he may consider fit and proper.

6. The Minister may give to a licensed collector such directions as he considers fit and proper for the purpose of ensuring compliance with this Act, and any such direction shall be made in writing and shall be binding on the licensed collector to whom the direction is made.

7. If any licensed collector:

(a) is carrying on his undertaking, in the opinion of the controller, in a manner detrimental to the interest of the public;

(b) has insufficient assets to cover his liabilities;

(d) has ceased to carry on the undertaking;

the Controller may subject to the provision of Section 8 relating to the giving of opportunity of being heard, revoke the licence issued to the licensed collector or suspend it for such period as the Controller may determine.

8. Before revoking or suspending a licence under Section 7 or before varying, cancelling or altering any conditions imposed on a licence or before imposing thereon any new or additional conditions under Section 4(4), the Controller shall notify the collector who is affected by the action proposed to be taken by the Controller of the aforesaid proposed action and shall give the licensed collector an opportunity to submit reasons or an explanation why the aforesaid proposed action should not be carried out.

9. An applicant applying under Section 4(3) or a licensed collector, as the case may be, who is aggrieved by the action or decision of the Controller

(a) in refusing to grant a licence to him under Section 4(3);

(b) in varying, altering or cancelling any conditions of his licence or imposing thereon any new or additional conditions under Section 4 (4);

may within 14 days after having been notified of the action or decision of the Controller appeal against that action or decision to the Minister; and the decision of the Minister made thereon shall be final and shall not be questioned in any Court.

10. No action shall lie against the Government, the Minister, the Controller, Inspector or against any officer of the Government or any person acting under the direction of the Minister, the Controller or Inspector for damages in any civil court for anything bona fide done, ordered or omitted to be done pursuant to this Act; and all actions which may lawfully be brought in respect of anything done, ordered or omitted to be done pursuant to this Act shall be instituted within six months from the date of the act of omission complained of, and not afterwards.

11. Any collector who

(a) in contravention of Section 4(1) engages in, carries out, or undertakes collection of biological and natural resources without having been duly licensed under that section;

(b) fails to comply with any of the conditions imposed on the licence granted under Section 4;

(d) removes any biological material out of the country without the prior written authorisation of the appropriate authority; shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding $20,000 or to imprisonment for a term not exceeding five years or to both.

12.1 Where any offence against any provision of this Act has been committed by a licensed collector, which is a company or a firm, any person who at the time of the commission of the offence was a Director, Manager or Secretary or holds any similar office or position or was an agent, clerk or servant of the licensed collector shall be deemed to be guilty of that offence, unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions in that capacity and to all the circumstances, and shall, on conviction, be liable to imprisonment for a term which shall not be less that 12 months but which shall not exceed three years and shall also be liable to a fine not exceeding $10,000.

12.2 Any person liable under this Act to any punishment or penalty for any act or omission shall be liable to the same punishment or penalty for any such act or omission by

(a) his partner;

(b) his agent acting on his behalf;

(d) the clerk or servant of his partner or agent acting in the course of employment in circumstances that had the act or omission been committed by the partner or agent the aforesaid person would have been liable under this subsection:

Provided that nothing herein shall relieve the partner, agent, clerk or servant or the clerk or servant of that partner or agent from liability to prosecution.

13.1 A licensed collector, his agent nominee and the party/institution or body responsible for the resources shall sign a contract as a condition for the grant of a licence under this Act.

13.2 The Minister shall determine the conditions and terms of such contract.

13.3 No amendment to any such contract shall be made except on the ground of hardship or necessity and with the prior approval in writing of the Controller.

13.4 Every such contract shall be as prescribed in Schedule 1*

* See Appendix 3, page 47

Draft Model Contract: Contract between the Collector and the Government, prepared by Nijar Singh Nijar, In Defence of Local Community Knowledge and Biodiversity: A Conceptual Framework and the Essential Elements of a Rights Regime, pages 47-55 (Appendix 3) (1996).

Schedule 1

Contract between the Collector and the Government

An Agreement made this day between _________________ of _____________________ (hereafter referred to as 'the Collector') and _______________________ of the Government of _______________________ hereafter 'the Government').

RECITALS

WHEREAS the Collector is desirous of engaging in or carrying on or undertaking the collection of biological resources and has been duly licensed to do so by the Government.

AND WHEREAS the Government has the sovereign right vis-a-vis the Collector of the biological resource to be collected and is desirous of permitting the Collector to collect the said resource.

AND WHEREAS all parties hereto

shall observe International Conventions (including the Biological Diversity Convention) and Codes (including the Code of Conduct for Plant Germplasm Collecting and Transfer of the Commission on Plant Genetic Resources), and, shall have regard to the sustainable collection of specimens while conserving the biological diversity of the country and respecting and acknowledging the cumulative communal and traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components and the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources.

DEFINITIONS

(a) 'Biological diversity' refers to the varieties of all life forms including plants, animals and micro-organisms, the genes they contain and the ecosystems of which they form a part.

(b) 'Collaborator' means the national party, organisation or institution named by the collector in collaboration with whom the Collector shall engage in the activity referred to in Clause 1 .

(c) 'Collector' means any corporation, firm, organisation or person licensed under the laws of this country to collect biological resources and related information.

(d) 'Curator' means a person or organisation, within the host country or elsewhere, that conserves and manages biological resources and related information.

(e) 'Appropriate Designated Authority' means the Government acting through the appropriate Ministry, organisation, body or person as shall be designated by the Government;

(f) 'Genetic erosion' means loss of genetic diversity.

(g) 'Natural product' means a product of a plant, animal or micro-organism and includes their parts and processes and any products howsoever derived therefrom.

(h) 'Plant genetic resources' or 'plant germplasm' means the reproductive or vegetative propagating material of plants.

(i) 'The Government' means where the context so admits, the Government acting through its Ministries or agents or servants;

(j) 'The foreign Government' means where the context so admits, the Government of the country where the Collector ordinarily resides and which endorses this contract under Clause 8(1) hereof;

NOW BY THIS DEED IT IS HEREBY AGREED AS FOLLOWS:

1. The Government hereby authorises the Collector to engage in the collection of biological resources namely _____________ for the period beginning on ______________ and ending on _______________.

2. The Collector shall upon the execution of this agreement:

2.1 furnish the Government with plans for the collector's activity including in particular:

(a) the types of material to be collected in terms of species and quantities;

(b) the plan for the evaluation, storage and use of the material collected;

(d) the benefit the host country/community may devise from the collection of the germplasm; and

(e) financial arrangements for the collection.

2.2 provide the Government with the names, addresses and particulars of their collaborators from a list drawn up and approved by the Government and which may include:

(a) national scholar(s);

(b) scientist(s);

(d) institution(s).

2.3 supply details of any agreement made with the said collaborator, the names of persons who will assist in the said collection and in any event the names and complete particulars of two persons nominated by the collaborators to accompany the collection mission.

2.4 undertake to abide by the country's natural product policy, quarantine procedures, the cultural practices, traditional values and customs of local communities and all relevant laws and regulations.

3. The Collector shall, in the period during collection:

3.1 not collect more than 100-150 grams (dry weight) of the resource for initial screening save with the permission in writing of the Government.

3.2 inform local communities concerned as to

(a) the purpose of the mission;

(b) how and where samples of the collected biological resource could be obtained by the local community; and

3.3 keep a written record which describes in detail the biological resource particularly its conservation status, locality, its diversity, habitat and ecology such as is sufficient to provide curators and users of the resource an understanding of its original context, whenever samples for bioactivity screening are collected.

4. The Collector shall, after collection:

4.1 process within _________ weeks thereafter, within the jurisdiction unless otherwise agreed to in writing, the biological samples that have been collected for conservation;

4.2 prepare in writing the relevant written record;

4.3 deposit duplicate sets of all collections and associated materials and records of information, including that referred to in Section 3(3) hereof, with the Government and the following additional persons/institutions, namely,

4.4 obtain the phytosanitary certificate(s) and other documentation necessary for transferring the material collected, where such transfer is permitted by the Government;

4.5 inform the appropriate authorities about any impending threat to plant populations, or evidence of accelerated genetic erosion, and make recommendations for remedial action;

4.6 supply to the Government a consolidated report on the collecting mission, including:

(a) the localities visited, and,

(b) the confirmed identification and other relevant data of the biological samples collected.

5. The Collector shall, in addition:

5.1 at all times, wherever possible, make any study and experimentation involving the specimens within the country and with full participation of the collaborator, save as otherwise agreed to in writing by the collaborator and the Government;

5.2 submit to the Government any report or writing concerning studies or experimentation made on any specimen collected; and

5.3 ensure that the collaborators or, in the case of NGOs or institutions, their duly nominated persons, shall join in the work in the laboratories or trial sites where any specimen collected is the subject of any experimentation or study. In such event the collector shall finance the participation as aforesaid of the collaboration upon terms mutually acceptable to the collector on the one part and the collaborator and the Government on the other part.

6. A sum representing not less than 60% of any income arising from the supply of natural product extracts to commercial organisations shall be paid :

(a) in the case of resources held in custody by local communities as set out under the Community Intellectual Rights Act (CIRA), to the Community or such organisations or authority designated by the said Act; and

(b) in all other cases, to the Government.

PROVIDED that if a greater sum is set out under CIRA the said sum shall be substituted for the sum payable under this section; and

PROVIDED FURTHER that payment shall be made equally to instances as set out in Clause 9(4) hereof.

7. A sum representing not less than 51 % of any royalties obtained as a result of the creation or invention of a marketable product is payable in the same manner as Clause 6(a) and (b) hereof and subject to the same proviso as set out in Clause 6 hereof and provided also that payment shall be made equally to instances as set out in Clause 9(4) hereof.

8.1 The Collector shall obtain the endorsement of this contract by the duly constituted authority of the Government of his country/sponsor organisation, signifying, inter alia,

(a) its agreement that in the event of a breach of any terms of this agreement it shall indemnify the Government or the appropriate community in respect of any losses, expenses, damages thereby occasioned;

(b) its agreement that it shall cause to be delivered up to the appropriate designated authority the results of any report or any writing as referred to in Section 5(2) hereof.

8.2 The Government shall certify in writing to the Collector its acceptance of the authenticity of the endorsement referred to in sub-clause (1) hereof.

8.3 The consent referred to in sub-clause (1) hereof and its certification referred to in (3) hereof shall be conditions precedent to the validity of this agreement.

9.1 No patent application shall be filed within or outside the country in respect of the collected specimens or any part thereof its properties or activity or any derivatives which utilise the knowledge of indigenous groups or communities in the commercialisation of any product as well as to a more sophisticated process for extracting, isolating or synthesizing the active chemical in the plant extracts or compositions used by such peoples or communities, or, if the same is the intellectual right of local communities. The provisions of the CIRA shall govern the said collected specimens, any part thereof, its properties or activity where the specimen or product is an innovation of the local community as defined and set out by the CIRA.

9.2 All licenses granted on any patents arising from this agreement shall contain a clause referring to this agreement and shall indicate that the licensee has been apprised of this agreement.

9.3 In the event of the licensing of any marketable product the payments as set out in Clauses 6 or 7, whichever is applicable, shall be made.

9.4 Such payment terms shall apply equally to instances where the invention is the actual isolated natural product, or where the invention is a product structurally based on the isolated natural product (that is, where the natural product provides the lead for development of the invention) or where the invention is an innovation as defined by the CIRA, unless otherwise agreed to in writing by the parties.

9.5 The provisions of this Clause shall apply notwithstanding that an organism is freely available from different countries, but a phenotype/genotype producing an active agent from a plant is found only in this country.

10. The collaborators may screen additional samples of the raw materials for other biological activities and develop them for such purposes as they may deem fit (including the patenting thereof, subject to Clause 9 hereof) independently of this agreement, provided that the right for the collaborators to do so will arise six months after collection of the samples by the collector.

11. The Government shall have the right, in the event of the breach of any of the terms herein and subject to Clause 8(2) hereof, to call upon the collector to show cause why action should not be taken against them for the breach.

12. This agreement and the rights hereunder shall not be assigned, transferred or in any way divested without the consent in writing of the Government and subject always in such event to the assignee or transferee accepting all rights and obligations under this contract and provided that the foreign Government of the collector's origin duly consents in writing to the said assignment/transfer and confirms that its endorsement of this contract also enures and attaches to the new arrangement.

Draft Model Law: Community Intellectual Property Rights Act, prepared by Nijar Singh Nijar, In Defence of Local Community Knowledge and Biodiversity: A Conceptual Framework and the Essential Elements of a Rights Regime, pages 56-62 (Appendix 4) (1996).

Any State, non-governmental organisation or the local community and/or its duly registered organisation shall have the locus to enforce, monitor and further the local community's right to the innovation and any matters in relation to its utilisation, exchange or impairment, whether in court or elsewhere, provided always that the local community or its duly registered organisation shall have the prior right to do so itself and that the community shall be informed at every stage of the progress of the same.

Acknowledgement

The conceptual framework for these draft laws has been developed by the Third World Network team of scientists and lawyers since January 1994.