Benefit Sharing, Benefit Claimer and Equitable Sharing — Intellectual Property Rights II Notes

Benefit Sharing, Benefit Claimer and Equitable Sharing

The whole point of the Act is captured in one phrase from Rio: fair and equitable benefit-sharing. If a drug company profits from a plant a tribal community conserved, the community should get a share. The Act turns that moral claim into a legal mechanism, run by the NBA.

Benefit-sharing and the benefit claimer

A. Fair and equitable benefit-sharing — s.21

When the NBA grants approval for access (or for a patent under s.6), it shall ensure fair and equitable benefit-sharing (s.21). The benefits may take the form of:

• monetary compensation or a share of royalties;
• joint ownership of IP rights;
• transfer of technology;
• setting up production/research units in the area;
• payment into the National Biodiversity Fund for conservation and for the benefit claimers.

B. Who is a benefit claimer — s.2(a)

Section 2(a): “benefit claimers means the conservers of biological resources, their by-products, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application.”

A benefit claimer is anyone who conserved the resource or holds the knowledge about it — typically the local/indigenous communities. They are the intended beneficiaries of s.21.

C. Equitable sharing — how it is decided

The NBA determines the quantum and mode of benefit-sharing in consultation with the local bodies/benefit claimers, and directs the sums into the National Biodiversity Fund (s.27) or directly to the claimers where identifiable.

In Simple Terms: Benefit-sharing = the profits from using a bio-resource must be shared with those who conserved it or knew its use. The NBA fixes the share (s.21); the “benefit claimer” (s.2(a)) is the conserver/knowledge-holder who receives it.

⚠️ DON’T CONFUSE — BD-Act benefit-sharing vs PPV&FR benefit-sharing

This unit’s benefit-sharing (s.21, BD Act) is for biological resources and traditional knowledge, decided by the NBA, and paid into the National Biodiversity Fund. Unit III’s benefit-sharing (s.26, PPV&FR Act) is for registered plant varieties, decided by the PPV&FR Authority, and paid into the National Gene Fund. Do NOT mix the authority or the fund — examiners test exactly this difference.

🧩 WORKED EXAMPLE — sharing with the source community

Facts. The NBA approves a firm’s commercial use of a plant conserved by a forest community.

Rule. s.21 — the NBA must impose fair and equitable benefit-sharing; s.2(a) — the conserving community are benefit claimers.

Apply. The NBA fixes a royalty/technology-transfer package, consulting the BMC, and directs the share to the community or the National Biodiversity Fund.

Conclusion. The community, as benefit claimers, receive an equitable share of the value they helped create.

flowchart TD
    ROOT["Benefit-sharing (s.21)"]:::root
    ROOT --> A["Modes: money, royalty, joint IP, tech transfer"]:::leaf
    ROOT --> B["Benefit claimer (s.2(a)): conservers + knowledge-holders"]:::leaf
    ROOT --> C["Routed via National Biodiversity Fund (s.27)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

• Divya Pharmacy v Union of India (2018) — benefit-sharing (s.21) is mandatory and applies even to Indian companies using Indian bio-resources.

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