Scientific research that looks for useful applications, processes, or products in nature is called biodiversity prospecting, or bioprospecting. In many cases, bioprospecting is a search for useful organic compounds in microorganisms, plants, and fungi that grow in extreme environments, such as rainforests, deserts, and hot springs. Malaysia, being one of the 12 mega-diverse countries in the world, and rich with biological diversity would be an attractive location to conduct these bioprospecting activities.
The existing Malaysian laws do not regulate access to such resources, as the Forestry Act 1984 only controls removal of forest products but do not differentiate between local and foreign collectors, while the Protection of Wildlife Act 1972 pertains only to specific species. Although export licenses under the Customs Act 1967 can, to a certain extent, check illegal removal of genetic resources, customs officials do not have sufficient expertise in this area.
Laws are currently being drafted to protect and regulate access to Malaysia’s local biodiversity resources, namely the Access and Benefit Sharing (“ABS”) Bill. The ABS Bill seeks to ensure fair and equitable sharing of benefits from the use of Malaysia’s genetic resources and to avoid cases of bio-piracy. The ABS Bill is expected to impose a requirement that parties wishing to conduct research on, export or sell local bio-diversity resources must apply for specific permits for such activities. Those conducting such activities without permits may be liable to a fine and/or a jail term.
Therefore, once the ABS Bill is enacted it is essential that parties, especially pharmaceutical companies which are involved or going to be involved in bio-prospecting in Malaysia obtain the required permits to enable them to conduct the same. Local state regulations on bioprospecting have already commenced, as the Sarawak Biodiversity Access, Collection and Research Regulation 1998 currently requires various permits for work on the state’s biological resources. There will therefore be a need for the intellectual property representatives of foreign parties in Malaysia to liaise with the authorities on the matter of permits once the ABS Bill is enacted.