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CHAPTER − 5

INTELLECTUAL PROPERTY RIGHTS AND TRADITIONAL

KNOWLEDGE

A. INTRODUCTION

“The indigenous people of the world possess an immense knowledge of their environments,

based on centuries of living close to nature. Living in and from the richness and variety of

complex ecosystems, they have an understanding of the properties of plants and animals, the

functioning of ecosystems and the techniques for using and managing them that is particular and

often detailed. In rural communities in developing countries, locally occurring species are

relied on for many, sometimes all – foods, medicines, fuel, building materials and other

products. Equally, people are knowledge and perceptions of the environment, and their

relationships with it, are often important elements of cultural identity”. 1

Traditional knowledge is now widely recognised as having played and as still playing

crucial role in economic, social and cultural life and development, not only in traditional

societies but also in modern societies. The recent increased awareness of the value of

biodiversity, the need for its conservation and sustainable use for present and future generation

has highlighted the importance of traditional knowledge (TK).2 This recognition has heightened

in recent years as a result of the increased awareness of the environmental issues, development of

genetic engineering, a growing appreciation that local communities (especially in developing

countries) have a wide range of traditional knowledge regarding practices for food, medicines

and other uses. To a certain extent the issues concerning traditional knowledge production

between developing and developed countries is also responsible. Developing countries find

themselves with most traditional knowledge and developed countries are keen to use the

traditional knowledge in further applications. The increased economic value of TK has led to the

search for better ways to access the knowledge through legal mechanism to assert claims. TK is

the result of learning process of specific peoples found in a specific environment over a long

period of time. Traditional knowledge is the result of intellectual activities in diverse traditional

contexts. The term “traditional knowledge” is a very broad concept, which encompasses within

1 The Director General of United Nations Educational, Scientific and Cultural organization (Mayor, 1994) 2 Intellectual Property Rights, Biodiversity and sustainable development, Martin Khor, pg,15

231

itself indigenous knowledge related to various categories like agricultural knowledge, medicinal

knowledge; bio diversity related knowledge as well as expressions of folklore in the form of

music, dance, songs, handicraft, designs etc. It has played and still plays an important role in the

lifestyle of indigenous communities. The knowledge of local communities, farmers and

indigenous peoples, for instance plant varieties locally developed, wild and domesticated

biological resources, knowledge of healers regarding medicinal and therapeutic properties of

plants as well as on how to conserve these resources is now recognised precious for future

development or even survival of mankind.3 The viability and sustainable development of these

communities also require their rights and access within which they live and work.

Misappropriation of their knowledge (biopiracy) would not only violate their rights but also

effect the conservation of biodiversity and related knowledge as IPRs may erode the

communities’ rights to contribute using their TK and practices. One of the challenges posed by

the modern age is to find ways for strengthening and nurturing the roots of traditional knowledge

so that its fruits can be enjoyed by future generation and so that the traditional communities can

develop and sustain in ways consistent with their own values and interests. Traditional

knowledge has the potential of creating wealth for the communities. International community

now recognizes that they are not just old and obsolete sources of knowledge but highly adaptive

and creative which when properly transformed are of high commercial value. Indigenous

knowledge of indigenous people must be protected under the principles of right to self

determination and right to development. The unfairness of exploitation of indigenous knowledge

depends on the fact that the holders of such knowledge lack awareness about the modern legal

system to seek compensation in case of infringement of their rights. Modern manufacturing

industries are now commercially exploiting TK, without even sharing th e benefit accrued from it

with the indigenous communities. International community realises that national initiatives alone

are incapable for TK protection. Current IP systems, which are based on providing exclusive

rights to private persons, are inadequate in protecting TK which is the collective property of the

society. The international legal regime for TK protection is a relatively novel concern and is still

evolving. World nations are currently engaged in extensive discussion on preservation of

traditional knowledge under various international institutions. This led to some challenging

questions:

3 Mulhausler 2001, p. 143.

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Is the IPRs system compatible with the values and interests of traditional communities or

does it privilege individual rights over the collective interests of the community?

Can IPRS bolster the cultural identity of indigenous communities and give them greater

say in the management and use of traditional knowledge?

Has the IP system been used to misappropriate TK, failing to protect the interests of

indigenous and local communities?

What can be done legally and practically to ensure that the IP system functions better to

serve the interests of traditional communities?

What forms of respect and recognition of TK would deal with concerns about TK and

give communities the tools they need to safeguard their interests?

This chapter will discuss the international and national initiatives regarding protection of

traditional knowledge. It will also look into the proposals laid down by the developing nations in

various international fora regarding the same. It also analyse how Biodiversity Act 2002,

protection of plant varieties and farmers right act, 2001 and patent Act 1970 and other relevant

acts will help in protection of rights of indigenous communities.

B. TRADITIONAL KNOWLEDGE

Traditional Knowledge is dynamic in nature and it is difficult to coin a concise definition

for the term which will cover all aspects it holds.4 One can say that TK permeates into wide

regimes of human interest like agriculture, bio diversity and medicine to say a few. It is held and

inherited by communities over generations and have deep cultural and economic significance. It

includes a diversity of knowledge such as literary, artistic and scientific works, medical

practices, agricultural techniques, handicrafts, songs and dances. It is the collective property of

the society derived from generations and is used by the indigenous communities in their

interactions with each other. TK is subjected to a continuous process of verification, adaptations

and creation through changing social conditions. TK is part of a collective, ancestral, territorial,

cultural and intellectual heritage. TK when modified and enriched become valuable knowledge

which can be used for commercial exploitation. In recent years there have been recognition and

4 Srinivas Krishna Ravi, Traditional knowledge and intellectual Property Rights: A note on issues, some solutions

and some suggestion – Page 3, available at SSRN www.ssrn.com/abstract1140623.

233

appreciation of TK by scientific community. Scientists now realise that the amount of knowledge

possessed by indigenous communities, when properly utilized can lead to innovations of

commercial value. Discussions over protection of TK is taking place now a days because a large

number of nations, especially from third world, believes that they are not deriving benefit of their

vast traditional resources though they are rich in them. Indigenous communities have developed

their knowledge through generations so it is essential that those who are trying to exploit its

value should give a due share of their benefits to the community who had preserved this

knowledge for years.

C. NEED FOR PROTECTION OF TRADITIONAL KNOWLEDGE

Traditional knowledge makes valuable contribution in the conservation of biodiversity,

environment and fulfilment of human need for sustainable development.5 Indigenous people have

an immense understanding about their complex ecosystems, properties of plants and animals and

regarding the techniques of using them based on their living close with nature for centuries6. This

knowledge when transformed into a formal specification is sources of wealth. But these

communities at large are in the grip of illiteracy and poverty and therefore unable to develop

their own resources. But modern globalised World has witnessed the conversion of collective

knowledge of the society into proprietary knowledge of a few. The contribution of TK to human

development especially in food production, crop yields and health care are also now recognised.

Even today, the majority of the world’s population depend on TK and practices for food and

medicines. An Indian system of medicines (Ayurveda, Siddha, Unani) is part of the official

healthcare system in India and depends on a diversity of biological resources and traditional

knowledge. TK also contribute to the modern economy especially to agricultural and drug

industry development. Pharmaceutical companies have been making use of the TK of indigenous

peoples to identify plants and their ingredients for developing new medicines. Companies are

also collecting samples of soils identified by indigenous communities for their disease countering

properties. International agricultural research centers have been using plant genetic resources

drawn from crops of local farming communities in developing countries to enhance agricultural

biodiversity and to produce higher yield varieties.6

5 World commission on environment & sustainable development (WCED) report, Bruttland (1987). 6 RAFI 1997,p vii.

234

Many of the indigenous communities are living on the basis of the knowledge they

preserved for generations. The development of new technologies and the use of traditional

knowledge are posing serious threat to the survival of these communities. The modern industries

are now a day’s exploiting indigenous knowledge without permission or sharing of profit with

these communities. TK is capable of providing valuable leads which may result in products of

high commercial value. The protection of TK would be necessary to bring equity to such unjust

and unequal relations. TK in agriculture has been affected in many developing countries by

conversion from biodiversity based farming system to monocultures promoted through IPRs. The

threats to TK are twofold, one from the misappropriation of TK (biopiracy) of the local

communities, who should be its real owners, where the companies are taking away the

knowledge and the resource without the prior -informed consent of the knowledge holder and

also not engaging in any benefit sharing arrangement prior to the use of that knowledge. The

other threat arises from the modern system of IPRs which emphasise on the private rights of

ownership of knowledge or resources of indigenous peoples that have generally shared their

knowledge of the use of seeds, medicinal plants, techniques of production and also the sharing of

genetic material freely. For instance provisions of the seed law in India affects the rights of the

farmers to save seeds. This affects the food security of all people and to the erosion of agro

biodiversity. Thus the misappropriation of TK erodes the rights of the traditional knowledge

holders and adversely affects conservation and sustainable use of biodiversity.

Another factor that calls for protection of TK is to maintain the practices and knowledge

derived from traditional life styles. Preservation of TK is intended to provide self identification

to these indigenous communities and thereby provide continuous existence of indigenous

people.7 If TK is having a high economic potential, then its prospects should be used for the

general wellbeing of the communities which preserved them for generations. Besides this,

maintenance of the distinct knowledge systems that give rise to TK is vital for the future well

being, development, cultural and intellectual vitality of indigenous communities.

7 see correa carlos M, Traditional Knowledge and intellectual property, pages 6 and 7, available

@www.geneva.quno.info.

235

The importance and value of traditional knowledge in the present times has increased

manifold with the revelation of its potential in commercial applications in the fields of

biotechnology, seed, health and pharmaceutical industry. Farmers conserve and use plant genetic

resources through continuous selection of best adopted plant varieties which are later collected

for research and breeding by the seed companies. These companies protect the improved

varieties under Plant breeders’ rights and benefit from them. The farmers are not compensated

for the germplasm; they have contributed .i.e. the traditional farmers are not paid for the value

they deliver. Since the 1980s, the agro-chemicals and pharmaceutical multinationals of the North

have been attempting to take control of the global seed and drug markets. For this purpose, they

are attempting to create monopolies. Multinationals have used biotechnology, a new technology

to create genetically modified crops, and this creation needs to be protected by appropriate

intellectual property laws such as the patent legislation.

D. MISAPPROPRIATION OF TRADITIONAL BIODIVERSITY

KNOWLEDGE OR THE “BIO-PIRACY” PHENOMENON

Biopiracy is a situation where knowledge of indigenous peoples is exploited for

commercial gain without the permission from and with no compensation to the indigenous

people themselves.8 It include obtaining IPRs (usually patents and PBRs) to gain monopoly

control over biological resources related traditional knowledge or commercial products based on

these resources or knowledge i.e. commercial exploitation of communities knowledge without

the consent of or without any benefit sharing to the original holders of these resources or

knowledge.9 These practices contribute to inequality between developing countries which are

rich in biodiversity and developed countries hosting companies engaging biopiracy. In fact a

large number of patents have been granted on biological resources and knowledge without the

consent of the possessor of the knowledge. There has been extensive documentation of IPRs

being sought over biological resources developed and used by local communities (e.g. the case of

Neem, Turmeric and Basmati rice in India which have been revoked later). It occurs when

patents are wrongly granted on innovations that are not novel, since the knowledge has already

existed as TK in the public domain. It can also occur when patents are rightly granted but are

8 www.thefreedictionary.com/biopiracy. 9 IPRs, Biodiversity and TK; Tejaswani Apte, p 35.

236

based on pre-existing or with minor modifications in existing TK. The presences of regressive

domestic IPRs laws also contribute to biopiracy.10

The implications of biopiracy are economic as well as ethical as mentioned below-

The original holders of biological resources and related traditional knowledge do not get

any share in the profits made from commercializing their resources or knowledge. They

also do not get any recognition for nurturing and developing the resource/knowledge in

the first place.

Once an IPR is acquired by the biopirate, the original holder of a bioresource or related

traditional knowledge are barred from making any commercial use of the IPR protected

knowledge or resource, for example, a community is not allowed to sell an indigenous

product that is covered by an IPR.

The IPR holder dictates the terms of the use of the IPR protected resource/knowledge

which could mean that traditional communities (who are the original holders) could lose

access to or control over.

Traditional communities are especially vulnerable to biopiracy because they do not

consider their seed, crop and livestock varieties, forest and related knowledge as private

property, but as communal property, God given or passed down by generations who have

nurtured and developed the natural resources and related knowledge.

The phenomenon gives rise to reverse transfer of technology because the developing

countries are transferring traditional knowledge to the rich-developed world without

getting any reward and getting the protected end products at high price. For most

traditional communities, the concept of private ownership of a resource like a seed

variety is completely alien, thus hindering a full appreciation of the threats and

implications of an IPR regime.11

The patenting and IPRs protection of biological resources by private interest has the

potential to restrict the ability of producers to use the processes and products relating to

TK. Those who have been keeping and using TK could thus be restricted and

discouraged.12

10 www.cutsinternational.org,2007 11 Tejaswani Apte, Supra Note. 12 Martin Khor, Supra Note.

237

The large scale granting of patents for genes and other biological materials and organisms

is leading to an even greater concentration of control over the world’s food crops, such as

maize, potato, soyabean and wheat, in a few global corporations.13

Business corporations want to stop others from commercially exploiting the findings of

their bioprospecting and research activities. Large amount of money is spent on research and

development of a new product. The pharmaceutical industry in particular is the most research-

intensive industry in the world which invests large amount of time and money on developing

new drugs and depends heavily on the patent system to recoup its research and development

costs.14

Bio piracy has now emerged as a term to describe the free ride of corporations of

developed nations over the genetic resources and traditional knowledge of developing countries.

Bio piracy is thus misappropriation of genetic resources or related TK through the patent system.

Biopiracy can be regarded as double theft because firstly it allows theft of creativity and

innovation and secondly it establishes exclusive rights on stolen knowledge and steal economic

options of every day survival of indigenous communities on the basis of their common

knowledge.15

E. SOME CASES RELATING TO BIOPIRACY

(a) Case of Turmeric (Curcuma longa)

Turmeric is a plant of ginger family whose rhizomes are used as spice for flavoring

Indian cooking. Along with this it has properties that make it an effective ingredient in medicines

cosmetics etc. As a medicine it is used to heal wounds and rashes. In 1995, two expatriate

Indians were granted a US Patent16 for using turmeric to be used as a medicine for wound

healing. The Council of Scientific and Industrial Research (CSIR) filed a re-examination case

with US patent and Trademark office, challenging the patents on the ground of ‘‘prior art’’.

CSIR pointed out that the said turmeric has been used for thousand years for healing wounds and

13 Action Aid, 1999, Supra Note. 14 CIPR 2002, p. 29. 15 see vandana Shiva, the US patent system Legalizes Theft and Biopiracy, The Hindu, Wednesday, July28, 1999 16 US patent (NO 54015041)

238

rashes and therefore its use as a medicine was not a new invention. The patent office upheld the

objections filed by the CSIR and revoked the patent stating that there were no novelty and the

findings reported by the inventors were known in India for centuries. The turmeric case was a

landmark judgment as it was the first time a patent based on TK was successfully challenged.

(b) Case of Neem (Azadirachta Indica)

Neem is a tree found in India and other parts of South and Southeast Asia. It is famous

for its properties as a natural medicine, pesticide and fertilizer. Neem extracts can be used

against hundreds of pests and fungal diseases that attack crops; oil extracted from its seeds is

used to treat colds and flu; it is believed to offer relief from malaria and several skin diseases. In

1994 European Patent Office granted a patent17 to the US Corporation WR Grace Company and

US Department of agriculture for a method of controlling fungi on plants using extracted Neem

oil. In 1995 a group of international NGO’s and representatives of Indian farmers filed a petition

against the patent. They submitted evidence that the fungicide effect of Neem seeds was known

and used for centuries in Indian agriculture to protect crops and thus was lacking inventive step.

EPO accepted this claim and revoked the patent14

.

(c) The Basmati Case18

Basmati is a plant that has been cultivated in India, Nepal and Pakistan for centuries.

Nevertheless, in 1997, the U.S. Company "Rice Tec" applied for 16 patents on genetic variations

of "Basmati," of which the trademark "Texmati" is perhaps the best known. To be able to

continue selling its noble rice and valuable foreign exchange earner worldwide, India would have

to acquire a license from "Rice Tec" as a consequence of the patents, so as not to run the risk of

being sued in the context of a WTO quarrel settlement. Fortunately, this attempt at biopiracy

failed, for India was able to uphold its rights in difficult negotiations so that 13 of the 16 patents

were deprived again, but the "Rice Tec vs. India" case shows, where TRIPS article 27(3.b) can

lead.

17 EPO Patent No 436257 18 RiceTech Corporation Patent No. 5663484

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The Jeevani drug (Kani tribe, India) and Ayahuasca19(traditional medicine used by native

of Amazon) are other cases where the patent granted on TK based products was successfully

challenged.

CASES AROUND THE GLOBE

(d) Yellow bean patent20

:

The patent for developing a bean named ‘Enola’ (of a particular yellow colour) was

granted to Mr. Larry Proctor in 1999. However, it was challenged by the International Centre for

Tropical Agriculture (CIAT) which argued that the patent claims are invalid, failing to meet

novelty and non-obviousness requirements and disregarding available prior art. However, it was

finally smashed by the US Patents and Trademark Office in April, 2008.

(e) Monsanto sued farmers for re-sowing GM seed21

:

Monsanto Company is suing dozens of American and Canadian farmers for infringement

of its patent on genetically modified (GM) crops. Investigators hired by the company keeps an

eye on the farmers and collect evidence of the illegal planting of the Monsanto’s GM crops of

cotton, maize, rapeseed and soybean. Farmers who used Monsanto’s crops to produce seed for

planting have been fined thousands of dollars for patent infringement and some face bankruptcy.

The company also advertises a toll-free-telephone number for people to inform on farmers who

use unlicensed seed.

19 US plant patent ( Patent no 5751) 20 US patent No.5894, 079. The Enola bean patent holds a special place in the “biopiracy hall-of-shame” because the

patented yellow bean was proven to be genetically identical to an existing Mexican bean variety. That’s not

surprising, because the patent owner, Larry Proctor, first got his hands on the yellow bean when he bought a bag

of beans in Mexico. After securing his monopoly patent, Proctor accused Mexican farmers of infringing the patent

by selling yellow beans in the U.S. As a result, shipments of yellow beans from Mexico were stopped at the

U.S./Mexican border, and Mexican farmers lost lucrative markets. In 2001 Proctor filed lawsuits against 16 small

bean seed companies and farmers in the U.S., again charging patent infringement. 21 Singh, Harbir “Emerging Plant Variety Legislations and Their Implications for Developing Countries: Experiences

from India and Africa” retrieved from www.iprsonline.org/ictsd/docs/ResourcesTRIPSharbir_singh.doc.

240

(f) Illegal acquiring of Thailand’s ‘Jasmine’ Rice22

:

A Florida-based researcher Dr. Chris Deren is working to develop a US version of

Thailand’s famed ‘jasmine’ rice. He maintains that he legally obtained the seeds of original

strain of jasmine rice (KDM105) from IRRI through the US Department of Agriculture. But

IRRI denies this fact.23

The Thailand’s government has now responded by hiring US lawyers to

initiate a law suit in a US court to pre-empt any move to patent new rice varieties developed

from jasmine rice (KDM105).

(g) Mexico’s GM Maize contamination24

:

Mexico is the center of maize genetic diversity. The Mexican Ministry of Environment

confirmed last year that farmers’ maize variety in the states of Oaxaca and Pueblo (Mexico) have

polluted with DNA from GM maize. This has stirred an unseemly debate within scientific

community, civil society organizations and indigenous farmers. The outcome of this case is still

awaited.

F. LIMITATIONS OF IP BASED PROTECTION

All these cases point out the relevance of TK as a prior art and the need for an effective

identification of such prior art for effective functioning of intellectual property systems. In the

above cases patents issued were cancelled because, the petitioners were able to provide certain

evidences relating to prior publication of properties of turmeric and Neem. The term prior art

refers to any published content available in the public domain before the filing date of a patent

application. Normally before grant of patents an extensive search for prior art is performed by

the concerned patent offices. TK which is orally transferred and preserved by generations may

not be available in a systematic and organized document. Besides this even if it is recorded it

may be recorded in the local language which the foreign patent offices may find difficult to

access. Current IP system considers only documented knowledge as prior art. This paves way for

granting of erroneous patents for commercial products based on knowledge of indigenous

communities. 22 RiceTec Company(US) 23 It maintains that it shared a sample of KDM105 with Dr. Neil Rutger of the USDA’s Dale Bumpers Rice Research

Centre in Arkansas, USA and Dr. Rutger, on his own initiative, passed on this sample to Dr. Deren in Florida. 24 Supra 63

241

Another reason which points out that current IP system is inadequate to protect TK is that

it is based on individual private property rights and Traditional knowledge on the other hand

rests on collective creation and ownership .Besides this the term “protection” under present IP

system indicates the owner of that IP has a legal right to exclude others from using or

reproducing it. This aspect is contrary to the concept of TK. Indigenous knowledge are not

exclusive rights of a particular individual they are often shared between the social group, thus we

can say that there is an inherent difference between current IP protection and TK.

One can rightly say that the current patent system provides for economic interests of only

those who have slightly altered TK and left out the entire community which developed this

knowledge to the present stage. Besides this the current IP system does not provide for

community patent which can used to protect collective knowledge of the society. This lacking of

provisions for community patent has led to the question of who can be the owner of patents,

based on TK and how benefits incurring from such patents can be distributed among the society

who are in fact the owners of that knowledge.

Current patent system is based on the principles of novelty, non - obviousness and

industrial application and hence it cannot be invoked for giving positive protection to TK. TK

is something evolved through generations so it lacks the principle of novelty. TK is developed by

trial and errors. Also TK as such may not be having any commercial application, it indeed

requires certain changes. So we can see that existing patent system is incapable of giving

protection to TK as there is an essential difference between both the concepts. A sui generis

system, which provides for sustainable use and benefit sharing, is essential for protection of TK.

G. INTERNATIONAL INITIATIVES FOR PROTECTION OF

TRADITIONAL KNOWLEDGE

Traditional Knowledge is a complex multi facet issue. Many countries and Organizations

worldwide are considering how to address this issue at international, regional and national levels

TK is thus discussed in a number of forums like WIPO, UNCTAD, UNEP/ CBD which have co

operated with each other to conduct studies in the area of protection of indigenous communities.

WIPO and UNEP had undertaken joint studies relating role of IPR and sharing of benefits with

242

communities for use of TK25 while on the other hand CBD and FAO had undertaken studies

relating to common areas in agriculture. Issue relating to TK is also discussed in arenas relating

to rights of indigenous people and cultural expressions. Of course the role of different

organization in framing a policy significantly varies from each other.

(a) Convention on Biological Diversity, 1992

The convention on biological diversity (CBD) was the result of discussion concluded at

Rio de Janerio on United Nations conference on earth and development (Earth Summit),

1992.The convention provides for protection of environment without compromising with the

ongoing economic development. The convention provides for recognition of knowledge of local

and indigenous communities in genetic materials and sharing of benefit derived from it. Article

8(j) of the convention provides that “each contracting party shall as far as possible and as

appropriate, subject to its national legislation respect, preserve and maintain knowledge,

innovations and practices of indigenous and local communities embodying traditional lifestyles

relevant for the conservation and sustainable use of biodiversity and promote the wider

application with the approval and involvement of the holders of such knowledge, innovations

and practices and encourage the equitable sharing of benefits arising from utilization of such

knowledge , innovations and practices”.

CBD can be regarded as the first international initiative to recognize the contribution of

indigenous and local communities in conservation of biodiversity. In the Preamble and in Article

8(j), explicit mention is made of indigenous and local communities and traditional knowledge in

the coverage of the Convention. Other provisions of the Convention should be considered

conjointly with Article 8(j). In particular, Articles 10(c), 17.2 (Information Exchange) and 18.4

& Article 8(j) obliges States to give legal expression to the objectives as set out in the preamble:

“Each Contracting Party shall, as far as possible, and as appropriate subject to

its national legislation, respect, preserve and maintain knowledge, innovations

and practices of indigenous and local communities embodying traditional

lifestyles relevant for the conservation and sustainable use of biological diversity

and promote their wider application with the approval and involvement of the

25 Wipo statement to cte and trips council, wt/cte/w/182, 6th February 2001

243

holders of such knowledge, innovations and practices and encourage the

equitable sharing of benefits arising from the utilization of such knowledge,

innovations and practices.”

The Convention on Biological Diversity clearly recognizes the sovereignty of States to

exploit their own resources (Article 3 and further, Article 15), and although the usage of the

term ‘exploit’ within this specific Convention implies ‘a resource usage’ rather than willful

damage, nevertheless it is a matter of great concern to indigenous peoples that the Convention

accords such a carte blanche sanction to States to continue to engage in environmentally

destructive practices within their national territories.

In its preamble CBD recognizes the dependence of many indigenous communities on

biological resources and stress on the desirability of benefit sharing. Besides this, article 10 (c)

and 18 (4) makes further references to the rights of indigenous communities. Art 10(c) provides

that each contracting party shall protect and encourage customary use of biological resources in

accordance with traditional cultural practices which are compatible with conservation. Art 18(4)

defines technology to include “indigenous and traditional technologies”.

Art 8(j) is not free from limitations, the said article does not talk about protection of TK

but it vaguely calls on the parties to respect, preserve and maintain it. It does not guarantee

indigenous people any rights over their collective knowledge. Besides this the convention leaves

the preservation of this knowledge at the discretion of the parties. Phrases “as far as possible” in

art 8 (j) indicates that the convention does not makes a mandatory requirement about protection

of rights of indigenous communities.26 The CBD requires those States that are party to it to, as far

as possible and appropriate, preserve the information and skill possessed by indigenous

communities.27 However, not all traditional knowledge falls within the obligations imposed by

the CBD. The regime under the CBD only governs traditional knowledge relevant for the

conservation and sustainable use of biological diversity.28 It does not require parties to preserve

any other traditional knowledge. The regime under the CBD also imposes an obligation to

26 Mugabe. J & Kameri P, Traditional Knowledge, Genetic Resources and Intellectual property protection: Toward

a new international regime, prepared by International Environmental law research Centre, available

@ www.ielrc.org/content/w0105.pdf. 27 Article 8(j) of the CBD. 28 Ibid

244

promote wider application of the above traditional knowledge with the approval and involvement

of the holders of such knowledge (“TK-holders”) and to encourage the equitable sharing of the

benefits arising from the utilization of such traditional knowledge. Finally, the above obligations

imposed by the CBD are subject to national legislation.29 This means that these obligations are

applicable in their entirety only in the absence of any national legislation and that States are free

to depart from these obligations by enacting national legislation.

Prior to the CBD, biological resources were regarded as the ‘common heritage of

mankind’ over which no State could claim ownership rights.30 This led to a situation where

innovators based in Innovating States used biological resources located in Origin States to create

intellectual property and commercially exploited the same without sharing the benefits with

Origin States. This practice was termed ‘bio-piracy’ by Origin States, who sought to curb it

through the CBD. This is why the CBD is primarily concerned with the intrinsic value of

biological diversity and reaffirms that States have sovereign rights over their own biological

resources.31 It focuses on the right of Origin States to restrict access to traditional knowledge as

well as their flexibility in devising appropriate legislation for protecting the interests of TK-

holders. This State-centric approach is reflected in the provisions of the CBD, which require

obtaining the PIC of the Origin State or as otherwise determined by that Origin State’s national

legislation.32 The CBD also imposes an obligation to distribute the benefits arising from use of

biological resources by innovators between the Origin State and the Innovating State in a fair and

equitable manner.33 Thus, the CBD regards the interests of TK-holders and the interests of Origin

States as one and the same. Article 8(j) clearly mentions that the use of traditional knowledge

must be with the approval and involvement of the holders of such knowledge. This clause

imports the key principle of “prior informed consent”. Article 15(5) on the other hand does not

require the PIC of the resource providing community. For Article 15 it is enough if the

Contracting Party consents and since the local communities are not the “contracting parties” to

the convention their consent is not required. Since Article 15 deals with resource exploitation

and the lack of provisions relating to PIC in this Article make the PIC provisions in Article 8(j) 29 Supra note 30 Tullio Scovazzi, The Concept of Common Heritage of Mankind and the Resources of the Seabed Beyond the

Limits of National Jurisdiction 31 Preamble to the CBD. 32 Article 15(5) of the CBD. 33 Article 19 of the CBD

245

toothless. Without specific mandate it is entirely up to the countries to set up a system for

obtaining PIC from the communities. Under the CBD, a working group on Access to Genetic

Resources and Benefit Sharing has developed the Bonn Guidelines on Access and Benefit

Sharing that were adopted at COP6. The relationship between IPR and benefit sharing is also

being examined in the process.

Though there are flaws, CBD has the most important place as an international instrument

which officially recognized the rights of indigenous communities.

(b) Trade Related Aspects of Intellectual property Rights (TRIPS agreement), 1994

TRIPS agreement also has some provision which can be applied in a limited way for

protection of traditional knowledge. Article 1 of TRIPS Agreement provides that members may

but shall not be obliged to implement in their domestic laws more extensive protection than that

is required by the agreement, provided that such protection does not contravene the provisions of

this agreement. Many Jurists have opined that this provision can be invoked for protection of

TK. They argue that absence of term TK in the agreement does not prevent any member from

enacting any provision for protection of TK.34

But under TRIPS it is not possible to protect TK under patent law. TRIPS requires

member state to grant patent only to that inventions which are new, involving an inventive step

and are capable of industrial application. But these attributes cannot be applied in the field of

TK, as it is not new and is incapable of industrial application as such. But it is to be noted here

that the same provision can be invoked to prevent biopiracy. Besides this there are authors who

argue that obligation to protect geographical indications provided by TRIPS agreement can be

used to protect TK. TRIPS agreement by itself does create any measures for protection of

traditional knowledge and innovations of indigenous people instead it creates measures for

establishing alternative measures for its protection.35 Article 27 of the TRIPS agreement states

that the members may exclude from patentability inventions, the prevention within their territory

of the commercial exploitation of which is necessary to protect ordre public or morality,

34 Dutfield, Can the TRIPS Agreement Protect Biological and Cultural Diversity? Available @www.wipo.int/cgi-

bin/koha/opac-detail. 35 Art 24(3) (b) of TRIPS agreement “Members shall provide for the protection of plant varieties either by patents or

by an sui generis or by any combinations thereof

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including to protect human, animal or plant life or health or to avoid serious prejudice to the

environment. The notions of ordre public are not defined in the agreement. However it is clear

that those inventions that causes injury to environment as well as plant or animal life can be

excluded. It has been argued that states can use this provision for the protection of biological

diversity associated with the indigenous communities. Article 27.3(b) of the TRIPS states that

the members shall provide for protection of plant varieties either by way of patents or by an

effective sui generis system.

Besides this there were lots of discussions regarding TK protection at the TRIPS Council.

These initially took place in the context of implementation of Art 27.3(b). The fourth meeting of

the WTO Ministerial Conference which took place in Doha in November 2001 a Ministerial

Declaration was adopted to which the member states instructed the TRIPS Council to examine

the relationship between the TRIPS Agreement and CBD and also the protection of traditional

knowledge and folklore. TRIPS has left out from its purview the matter of protection of natural

assets and associated knowledge which is owned by nation states, communities or individuals.

On a whole we can say that conventional intellectual property laws under the TRIPS does not

consider TK as intellectual property worth protection though patentability of products or process

using traditional knowledge poses a number of questions.

(c) The International convention for protection of new varieties of plants (UPOV

Convention), 1961

The UPOV convention is an international convention exclusively dealing with protection

of new plant varieties and is silent on the subject of traditional knowledge and genetic resources.

However it does not forbid granting or creation of rights in respect of TK.36 Besides this some

provisions of the convention can be used to protect the interest of indigenous persons.

Convention vests exclusive exploitation rights in the developers of new varieties of plants as an

incentive to pursue innovative activity and to enable breeders to recover their investment in

breeding.

36 Greengrass Barry, Plant variety protection and protection of traditional knowledge, available

@ www.unctad.org/trade/_envi/docs/unpov.pdf

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Article 7 of the 1991 Act of the UPOV provides that “the variety shall be deemed to be

distinct if it is clearly distinguishable from any other variety whose existence is a matter of

common knowledge at the time of filing of the application”. This means that legal protection can

be granted to a variety only if it is shown that it is distinct from others including traditional

varieties. Thus IP rights are granted to plant breeders only if they are distinct, novel and stable.

These conditions can be considered as similar to the criteria for patenting. These provisions can

be invoked as a defensive strategy for the knowledge of indigenous communities relating to plant

varieties as to grant IP protection the convention specifically provides it to be distinct and novel.

Besides this it should be noted that the process of applying for plant variety protection is

relatively simple and can be done even without legal help. This feature facilitates

the applications of small plant breeders. Accordingly UPOV system can be used as a tool for

protecting plant varietal innovation of indigenous communities. Under the convention, a farmer

who produces a protected variety from saved seeds are guilty of infringement unless national law

provides so, these provisions tends to weaken the economic position of indigenous communities.

(d) The International Undertaking on Plant Genetic Resources for Food and Agriculture

(FAO), 2001

The protection of TK has also been raised in relation to the definition and implementation

of the concept of Farmers’ Rights introduced during the revision of the International Undertaking

on Plant Genetic Resources for Food and Agriculture, which began in 1994. Article 9.2(a) of the

final text, which was adopted as a new treaty by the FAO Conference in Rome in November 2001

requires measures for the protection of “traditional knowledge” but, in view of the scope and

purpose of the Treaty, it only refers to knowledge “relevant to plant genetic resources for food and

agriculture”). Article 9.2 is, thus, narrower in scope than Article 8(j) of the CBD, and would not

apply, for instance, to knowledge relating to medicinal or industrial uses of plant genetic

resources. Under this approach, the issue of protection of TK may be circumscribed to knowledge

incorporated in farmers’ varieties (landraces) and certain associated knowledge (e.g. specific

cultivation practices). The development of a sui generis regime for the protection of farmers’

varieties becomes, in this context, one of the possible components of Farmers’ Rights.

(e) The United Nations Conference on Trade and Development (UNCTAD), 1964

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The United Nations Conference on Trade and Development (UNCTAD) held on 30

October-1 November 2000, an “Expert Meeting on Systems and National Experiences for

Protecting Traditional Knowledge, Innovations and Practices”. Over 250 people from 80

countries participated, including representatives of governments, indigenous Systems and

National groups, NGOs, Inter-Governmental Organisations (IGOs), academia, private

Experiences for Protecting TK, companies, and international agencies and some 50 papers on

country experiences Innovations and Practices, were presented. experts, was taken up in February

2001 by UNCTAD’s Commission on Trade in Goods and Services, and Commodities, which

negotiated agreed recommendations to governments, to the international community, and to

UNCTAD. Recommendations to Trade in Goods and Services, governments included: to raise

awareness about protection innovation potential of local and indigenous communities, to facilitate

the documentation of TK and to promote the commercialisation of TK-based products.

(f) UN Declaration on Rights of Indigenous Persons (UNDRIP), 2007

UN declaration on Rights of Indigenous persons was adopted by UN general assembly.37

Though a General assembly declaration is not a legally binding instrument, this declaration can

be regarded as a dynamic development for setting a standard for protection of rights of

indigenous persons. General assembly recognized the urgent need to respect and promote the

inherent rights of indigenous peoples which they derived from their social structures.

The declaration emphasizes on the rights of indigenous persons to maintain and

strengthen their own institutions, cultures and tradition so as to foster their development. It urges

the parties to make mechanism for prevention and redress of any action which has the effect of

depriving indigenous people of their integrity or their cultural values or identities.38 Article 24

recognizes the right to their traditional medicines and provides for conservation of their vital

medicinal plants animals and minerals. It also protects their right to maintain, protect and

develop manifestations of their culture39 as well as their right to maintain, protect and have

37 UN general assembly 62 session on 13th September 2007. 38 Art 8(2) (a) of UN declaration on Rights of Indigenous persons 39 Article 11(1) of the UNDRIP.

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access in privacy to their religious and cultural sites.40 Other rights of indigenous peoples

provided for in the UNDRIP include the right to participate in decisions affecting their rights41,

the right to their traditional medicines and the right to maintain, control, protect and develop

their traditional knowledge and traditional cultural expressions.

Art 31 is an important attempt to protect TK. It asks the states to take all effective

measure to recognize and protect the cultural heritage, traditional knowledge, traditional cultural

expression as well as the manifestations of their sciences, technology and cultures. While

adopting the UNDRIP, the UN General Assembly took note of the fact that the Human Rights

Council had already adopted the same text.42 Furthermore, the UNDRIP encourages States to

comply with and effectively implement and their international obligations relating to human

rights to indigenous peoples. Thus, the background and provisions of the UNDRIP indicate that

international human rights law has an important role to play in formulating an international

regime governing traditional knowledge.

This declaration is indeed a dynamic measure of international legal norms regarding

protection of TK and also it necessitates the need for an international treaty for protection of TK.

(g) Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of

Benefits arising from their Utilization, 2010

There have been several discussions and debates as to whether TRIPS is in conflict with.

After several years of debate at various fora, the parties to the CBD met at Nagoya, Japan in

October 2010 and finalized the draft protocol which defines the terms for access to genetic

resources, their utilization and fair and equitable sharing of benefits from such utilization.

Though the main objective of this protocol is to ensure fair and equitable sharing of benefits

arising out of genetic resources and to provide for appropriate access to genetic resources and

transfer of technology for protection of biodiversity, it has many provisions which can be useful

for the protection of indigenous knowledge. Article 5 of the protocol asks the parties to the

protocol to take legislative and administrative efforts to ensure that the benefit arising from the

40 Article 12(1) of the UNDRIP. 41 Article 24(1) of the UNDRIP. 42 General Assembly Res. 295, U.N. Doc. A/RES/61/295 (2007)

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use of TK associated with genetic resources are shared in a fair and equitable way with

indigenous and local communities who conserved these knowledge for these years though

mutually agreed terms.

In order to protect the interest of the indigenous communities municipal legislations

should involve in it the concept of prior consent before granting right to access to resources. The

protocol emphasizes on the need for development of a global multilateral benefit sharing

mechanism providing for fair and equitable benefit sharing associated with TK related genetic

resources which occurs in trans boundary situations where is not possible to take prior consent of

the community.43 Protocol asks it parties to ensure that their national legislations provide for

support and development of those indigenous communities. Furthermore, the UNDRIP

encourages States to comply with and effectively implement and their international obligations

relating to human rights to indigenous peoples. Thus, the background and provisions of the

UNDRIP indicate that international human rights law has an important role to play in

formulating an international regime governing traditional knowledge.

(h) WIPO –The Intergovernmental Committee on Intellectual Property Genetic Resources

and Traditional Knowledge

The first instance of international intellectual property protection of any form of

traditional knowledge occurred when the Berne Convention for the Protection of Literary and

Artistic Works, 1886 (“Berne Convention”) was amended to include folklore as literary or

artistic works in 1971. This was done pursuant to a proposal made by the Indian delegation at the

Stockholm Revision Conference in 1967.44 In the same year, the WIPO was established as a

specialized agency of the United Nations to administer various intellectual property treaties

including the Berne Convention.45 The WIPO established the Inter-Governmental Committee on

Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (“IGC”) in

2000 to reconcile the international intellectual property regime with concerns relating to

43 Article 10 of Nagoya protocol 44 Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, at 314

(1987). 45 L. Danielle Tully, Prospects for Progress: The TRIPS Agreement and Developing Countries After the DOHA

Conference, 26 B.C. Int’l & Comp. L. Rev. 129, 132 (2003)

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conservation of biological resources as well as those relating to effective protection for

traditional knowledge.46

IGC was established as a forum for discussion of intellectual property issues in relation to

access to genetic resources, benefit sharing and protection of traditional knowledge and

expressions of folklore. It acts as an international forum for international policy debate,

development of legal mechanisms and for creating practical tools for protection of traditional

knowledge and traditional cultural expressions against misappropriation and misuse. IGC work

has produced large number of discussion papers on the subject of protection of TK.IGC has

produced a number of practical outcomes which include, a toolkit for the management of IP in

the context of documenting TK and genetic resources, a practical guide for protection of

traditional cultural expressions, proposal for revision of international patent classification to

contain categories of TK.

The committee has made substantial progress in addressing the practical linkages

between the current intellectual property system and the custodians of TK. Committee is trying

to bring about an international understanding regarding the principles that should guide the

protection of traditional knowledge.

Besides all these international initiatives last decade has witnessed many regional

initiatives for laying down measures for protection of TK. African countries under Organisation

of African Union prepared a model law on community rights and access to biological resources.

The African Model Legislation for the Protection of Rights of Local Communities, Farmers,

Breeders, and for Regulation of Access to Biological Resources aims at establishing a framework

of national laws to regulate access to genetic resources and associated TK. Its provisions on

access to biological resources make it clear that the recipients of biological resources or related

knowledge cannot apply for any IP rights of exclusive nature. Besides this they provide for

community rights over their biological resources and their right to collectively benefit from their

use, rights to their innovations, practices, knowledge and technology and the right to collectively

benefit from their utilization. Thus in practice, this model legislation intends to create a system

46 Olufunmilayo B. Arewa, TRIPS and Traditional Knowledge: Local Communities, Local Knowledge, and Global

Intellectual Property Frameworks, 10(2) Marq. Intell. Prop. L. Rev. 156, 165 (2006).

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which allows the community, right to prohibit access to their valuable resources and

knowledge. From the African region itself, the African Regional Intellectual Property

Organization (ARIPO) in 2010 has come out with protocol for protection of TK and folklore

known as the Swakudump Protocol on the protection of Traditional Knowledge and Expressions

of Folklore. This protocol provides for creation of National Authority which is competent to look

into the matters of TK. It also provides for the rights and recognition of holders of TK, concept

of equitable benefit sharing, licensing etc.

Other than the African Union, there is another group known as the Mega diverse

countries. This group includes seventeen nations including India which are rich in bio diversity.

They met in 2002 in Mexico and decided to set up the group as a mechanism for consultation and

cooperation so that their interests and priorities related to sustainable use of bio diversity and

related TK is protected. The Cusso Declaration on Access to Genetic resources , Traditional

Knowledge and intellectual property rights of like minded mega diverse countries, 2002 stressed

on the importance that should be given for protection of bio diversity and associated TK. It also

stressed on the need for an efficient benefit sharing mechanism.

H. INDIAN INITIATIVES FOR PROTECTION OF TRADITIONAL

KNOWLEDGE

To deal with issues pertaining to protection of Traditional Knowledge Indian parliament

had enacted the following legislations:

(a) Protection of Plant Varieties and Farmers Right Act, 2001(PVPFR Act)

India is the home for many crops; these crops were identified from the wild, selected and

cultivated by Indian farmers for years. During this long process of selection of crops farmers had

gained lot of knowledge about each variety of crops. This includes knowledge about seeds

suitable for specific seasons, soils, and even pests. Patenting of seeds, plant varieties and species

are not allowed under TRIPS, but Article 27(3) allows the member countries to make a sui

generis system for protection of plant varieties .Accordingly India enacted a sui generis system

in 2001 in the name of The Protection of Plant Varieties and Farmers rights Act. Though the Act

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is primarily based on International Convention for protection of new varieties of plants, it

includes a number of provisions which are not included in the convention. This Act forms an

independent sui generis form of protection to new varieties of plants. The Act provides for the

protection of Farmer’s Rights. They include the right of farmers to save the harvested seed of

protected varieties and to sell it as long as they do not market it under the protected brand name.

To protect the knowledge of farmers and enable a share of benefits to be derived from new

varieties, there are provisions for a national gene fund into which breeders will have to pay

revenues for using farmer varieties. The legislation requires full disclosure of the source and

origin of varieties and complete passport data from breeders. The penalty for non-disclosure is a

heavy fine and/or a jail term.47

The objectives of this Act as explicit from its title are IP protection of plant varieties and

protection of rights of farmers. The farmer’s rights here arise from their role in conserving,

improving and making available plant genetic resources for the development of new plant

varieties. The Act also intends to promote research for development of new plant varieties which

in turn will pave way for accelerated agricultural growth.

Breeder’s rights over the varieties developed by him are protected by this legislation.

Under the Act a breeder can register his variety and become a PBR holder. Any person can

register a community’s claim over a particular breed. This intervention, in practice enables the

protection of plant varieties of indigenous communities who is unable to do this by themselves

due to illiteracy or lack of awareness. PBR holder has the exclusive right to produce, sell,

Market or distribute the seeds of that variety..48 Another important feature of this Act is the

maiden attempt of introduction of benefit sharing between breeders and farming or tribal

communities who have contributed to genetic diversity used by the breeder49, determination of

benefit sharing. To make this meaningful, mandatory disclosure of geographical location from

where the genetic material has been taken and information relating to the contribution of farming

communities have been made. Besides this it is provided that the breeders wanting to use

existing varieties for creating new varieties cannot do so without the express permission of the

farmers involved in the conservation of such varieties.

47 Sahai, 2003, p. 170 48 28(1) of PPFR Act 2001 49 Sec 26 of PPFR.

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The Act is an exclusive legislation regarding protection of plant varieties; it does not have

any specific provision for protection of traditional knowledge. Yet we can invoke the provision

of community rights under section 41 and concept of benefit sharing, for protection of

knowledge on indigenous communities at least to the extent of plant varieties.50

(b) Biological Diversity Act, 2002

Biodiversity plays an important role in the conservation of ecological stability and also

involves protection of socio - ecological interests of people living close with nature. CBD

recognizes the sovereign rights of states to use their own biological resources. The convention

expects the parties to facilitate access to genetic resources by other parties subjected to a national

legislation. Convention also asks the state parties to include within its legislation the right of

indigenous communities for benefits accruing from the commercial use of their knowledge.

As a signatory to CBD India had committed to make a national legislation which

provides for access to biological resources and benefit sharing. In order to fulfill this obligation

Indian government has enacted the Biological Diversity Act in 2002.It aims at ensuring the

conservation of biodiversity, sustainable use of its components and equitable benefit sharing.

Access would be granted to citizens only after prior intimation, while it would be granted to

foreigners after prior approval, which would also be required for the transfer of research results

abroad, except for “collaborative research”.51 The Act provides for access to biological resources

of the country with the purpose of securing equitable benefit sharing arising out of commercial

use of those resources. The Act recognizes the Knowledge of local communities and emphasize

on the need to protect them. Though the Act was primarily enacted for providing free access to

biological resources of the Country by foreign national’s institutions and companies, it contains

many restrictions regarding the same. A foreign national or a body corporate not registered in

India is not allowed to use or obtain any biological resource occurring in India or any knowledge

associated thereto for research or commercial utilization without the previous permission of

50 Bala ravi S, Effectiveness of Indian Sui generis law on plant variety and its potential to attract private investment,

Journal of intellectual property Rights (9) (2004) 533- 548 51 Kaushik, 2003, p. 260

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NBA.52 Section 4 of the Act restricts the transfer of results of any research relating to any

biological resources obtained from India to any foreign nationals or corporate. Measures have

been taken in the act to prevent instances of bio piracy by restricting any person from applying

for intellectual property rights of any nature within or outside India for any invention based on

any research or information on a biological resource obtained from India without previous

approval of NBA.53 According to section 6 of the Act, in addition, anybody seeking any kind of

intellectual property rights on a research based upon biological resource or knowledge obtained

from India, needs to obtain prior approval of the NBA. The NBA will impose benefit-sharing

conditions. Section 18 (iv) stipulates that one of the functions of NBA is to take measures to

oppose the grant of intellectual property rights (IPRs) in any country outside India on any

biological resource obtained from India or knowledge associated with such biological resource.

As mentioned earlier, the Act recognizes the need for sharing the monetary gain accrued

from using biological resources or knowledge associated thereto with persons who have

conserved these resources for years. National Biodiversity Authority has been empowered under

section 21 to determine the ways and means of benefit sharing. Various means of benefit sharing

include grant of joint ownership of IP rights with NBA or If benefit claimer can be identified,

then with them, transfer of technology, location of production, research and development units in

those areas which will benefit the lives of the benefit claimers or by setting up of venture capitals

or monetary compensation to the benefit claimers. Another feature of the Act in relation to

protection of TK is that it makes biopiracy a cognizable and non-bailable offence with a

punishment of imprisonment up to five years and monetary compensation up to five lacks.

Section 8 of the Act gives power to the Central government to establish a National Authority to

look into the matters provided under the Act. NBA is required to facilitate the access to genetic

resources giving due regard to benefit sharing. As provided earlier it shall be the duty of NBA to

oppose any application for IP rights in any country for any invention using genetic resources or

associated TK obtained from India. The protection, Conservation and Effective Management of

Traditional Knowledge relating to Biological Diversity Rules, 2009 imposes a duty upon NBA to

recognize existing forms of representative organizations of traditional community and when

52 Section 3(1) of Biological Diversity act. 53 Section 5 of Biological Diversity act.

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there is no such representative bodies NBA through concerned state authorities make

arrangement for formation of representative organizations.

NBA has to setup a fund known as the Traditional Knowledge Fund, which shall be used

for the benefit of traditional communities and for the protection and conservation of TK by way

of various welfare measures. NBA has the discretionary power to give access to both

documented or non documented TK. National authority is empowered to develop national

strategies, plans and programs for conservation, development and sustainable use of traditional

knowledge.

The Act can be regarded as a defensive strategy for protection of biopiracy; it is indeed

an innovative legislation with adequate measures to safeguard the biodiversity and economic

interests of indigenous communities.

Some of the main weaknesses of the Act are:54

The provisions regarding community involvement are weak, with ultimate decisions

remaining in the hands of the government, rather than in the hands of local communities

who are the traditional custodians of the resources and knowledge:

There is no explicit provision for the participation and decision-making of local

communities in the process of outsiders accessing biological resources or in determining

benefit-sharing arrangements. It does not necessarily include obtaining the Prior

Informed Consent of the local community.

There is no legal protection given to the information recorded in People’s Biodiversity

Registers.

(c) The Patent Act, 1970 and Amendments in 2002 and 2005

The TRIPS agreement signed along with WTO agreement in 1995 provides for making

certain changes in domestic patent laws, for reaching a uniform system of legislations relating to

patent throughout the world. In order to fulfill this obligation under TRIPS patent act was duly

amended in 2002 and 2005.

54 Based on Kalpavriksh 2005; Kothari et al 2004.

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The Patent Second Amendment Act (adopted in 2002) provides that the applicant must

disclose in their patent applications the source of origin of the biological material used in the

invention.55 It also allows for opposition to be filed on the ground that the complete specification

does not disclose or wrongly mentions the source or geographical origin of biological material

used for the invention. The grounds for rejection of the patent application, as well as revocation

of the patent, include non-disclosure or wrongful disclosure of the source of origin of biological

resource or knowledge in the patent application, and prior disclosure of knowledge, oral or

otherwise. The 2005 amendment introduced into Indian IP system certain new measures for

protection of TK. The new amended Act in the area of specification of inventions which are not

patentable made an addition that ‘an invention which is mere new use for a known substance’

and an invention which, in effect, is traditional knowledge or which is and aggregation or

duplication or known properties of traditionally known substances’ will not be an invention.56

Another provision is inclusion of new provision for opposition of patent, on specific

grounds under section 25(1) of the Act. It provides after publication of patent application any

person can in writing make an opposition to the controller of patents on the ground of lack of

novelty or inventive step, or non disclosure or wrongful disclosure of source or geographical

origin used in the invention and anticipation of invention by the knowledge, oral or otherwise

available within any local or indigenous groups in the complete specification. Also now we can

oppose a complete patent specification which was publicly known or publicly used in India

before the date of claim.57

All the above provisions are defensive in nature which can help to oppose any patent

granted to an invention which is based on the knowledge available within the indigenous groups

of this nation. But these provisions are also not capable of covering the entire area covered by

TK, which necessitates the need for a sui generis system for protection of TK.

55 Section 10. 4d. d 56 Sec 3(d) and 3(p) of Patent Amendment Act, 2005. 57 Section 25(3) (d)

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(d) Geographical Indications of Goods (Registration and Protection) Act, 1999

Presently the protection of Geographical Indication (GI) has emerged as one of the most

contentious Intellectual Property Rights issues in the WTO’s Agreement on Trade Related

Aspects of Intellectual Property Rights (TRIPS). TRIPS defines GI as any indication that

identifies a product as originating from a particular place, where a given quality, reputation or

other characteristics of the product are essentially attributable to its geographical origin. Also a

geographical indication (GI) gives exclusive right to a region (town, province or country) to use

a name for a product with certain characteristics that corresponds to their specific location.58

Given its commercial potential, legal protection of GI assumes enormous significance.

Without suitable legal protection, the competitors who do not have any legitimate rights on the

GI might ride free on its reputation. Such unfair business practices result in loss of revenue for

the genuine right-holders of the GI and also misleads consumers. Moreover, such practices may

eventually hamper the goodwill and reputation associated with the GI such as specific

manufacturing skills and traditions.

The Geographical Indication of Goods (Registration and Protection) Act, 1999 primarily

intends to protect the valuable geographical indications of our country. The protection under the

Act is available only to the geographical indication registered under the Act and to the authorized

users. The Act permits any association of persons or producers or any organization or authority

established by law representing the interest of the producer of goods to register a geographical

indication. It may be possible for the holders of the traditional knowledge in goods produced and

sold using geographical indication to register and protect their traditional knowledge under this

law. The legislation will be administered through the Geographical Indications Registry under

the overall charge of the Controller General of Patents, Designs and Trademarks.

India has adopted sui generis system of protection for GI with enactment of a law

exclusively dealing with protection of GIs. The legislations which deal with protection of GIs in

India are ‘The Geographical Indications of Goods (Registration &Protection) Act, 1999’ (GI

58 Article 22 of TRIPS

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Act), and the ‘Geographical Indications of Goods (Registration and Protection) Rules, 2002 (GI

Rules). India enacted its GI legislations to comply with its obligations under TRIPS.

The GI Act, which came into force, along with the GI Rules, with effect from 15

September 2003, has been instrumental in the extension of GI status to many goods so far. The

central government has established the Geographical Indications Registry with all-India

jurisdiction, at Chennai, where right-holders can register their GI. Unlike TRIPS, the GI Act does

not restrict its special protection to wines and spirits alone. The central government has

discretion to decide which products should be accorded higher levels of protection. This

approach has deliberately been taken by the drafters of the Indian Act with the aim of providing

stringent protection as guaranteed under the TRIPS Agreement to GI of Indian origin. However,

other WTO members are not obligated to ensure Article 23-type protection to all Indian GI,

thereby leaving room for their misappropriation in the international arena.

The GI Act clarifies that any name which is not the name of a country, region or locality

of that country, shall also be considered as a GI if it relates to a specific geographical area and is

used upon the concerned goods.59 This provision enables the providing protection to symbols

other than geographical names, such as ‘Basmati’.

The GI is defined as an indication which identifies goods as agricultural goods, natural

goods, or manufactured goods as originating ,or manufactured in the territory of a country, or a

region, or locality in that territory, where a given quality, reputation or other characteristic of

such goods is essentially attributable to its geographical origin and in case where such goods

are manufactured goods ,one of the activities of either the production or of processing or

preparation of the goods concerned takes place in such territory, region or locality as the case

may be.60

Thus the following ingredients can be found in this definition.

It is an indication

It is in relation to goods.

59 Section 1(3) (e) of the GI Act. 1999.

60 Section 2(i)(e) of the GI Act 1999.

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The goods may be agricultural, natural, or manufactured goods.

These goods are originating or manufactured in a locality.

A given quality, reputation or other characteristic is attributable to that geographical

region.

Attributablity must be ascertained by verifying reasonable nexus between characteristic,

reputation, or quality and the locality.

Registration

While registration of GI is not mandatory in India, Section 20 (1) of the GI Act states that

no person “shall” be entitled to institute any proceeding to prevent, or to recover damages for,

the infringement of an “unregistered” GI. The registration of a GI gives its registered owner and

its authorized users the right to obtain relief for infringement. The GI Registry with all India

jurisdictions is located in Chennai with the Controller-General of Patents, Designs and Trade

Marks is the Registrar of GIs, as per Section 3(1) of the GI Act. Section 6(1) further stipulates

maintenance of a GI Register. Section 6(2) which is to be divided into two parts: Part A and Part

B. The particulars relating to the registration of the GIs are incorporated in Part A, while the

particulars relating to the registration of the authorized users are contained in Part B.61

A GI may be registered in respect of any or all of the goods, comprised in such class of

goods as may be classified by the Registrar. The Registrar is required to classify the goods, as far

as possible, in accordance with the International classification of goods for the purposes of

registration of GI.62 A single application may be made for registration of a GI for different

classes of goods and fee payable is to be in respect of each such class of goods.

In India a GI may initially be registered for a period of ten years, and it can be renewed

from time to time for further periods of 10 years. Indian law place certain restrictions in that a

registered GI is not a subject matter of assignment, transmission, licensing, pledge, mortgage or

any such other agreement.

61 Section 7 of the GI Act. 62 Section 8 of the GI Act.

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The GI Act in India specifies that nothing in this Act “shall” be deemed to affect rights of

action against any person for passing off goods as the goods of another person or the remedies in

respect thereof. In its simplest form, the principle of passing-off states that no one is entitled to

pass-off his goods as those of another. The principal purpose of an action against passing off is

therefore, to protect the name, reputation and goodwill of traders or producers against any unfair

attempt to free ride on them.

Though, India, like many other common law countries, does not have a statute

specifically dealing with unfair competition, most of such acts of unfair competition can be

prevented by way of action against passing-off. Article 24.3 of TRIPS clearly states that in

implementing the TRIPS provisions on GIs, a Member is not required to diminish the protection

of GIs that existed in that Member immediately prior to the date of entry. This flexibility has

been utilised by India in the GI Act in maintaining the right of action against passing-off, which

has been a part of the common law tradition of India, even prior to the advent of the TRIPS

Agreement.

Any lawsuit relating to infringement of a registered GI or for passing of an unregistered

GI has to be instituted in a district court having jurisdiction to try the suit. No suit shall be

instituted in any court inferior to a district court.63

(e) Seed Bill, 2004

The proposed legislation with the aim of ensuring quality and thus requiring compulsory

registration of all farmers’ varieties seems to be a move towards pushing farmers to a

dependency on corporate seeds as it is beyond the capacity of small farmers to meet the myriads

criteria, complex processes and high costs of registration. The proposed law prohibits exchange

of unregistered seeds, a traditional practice still being followed in large parts of the country. The

traditional practice of barter in many parts of the country, for various reasons, has been partly

replaced by sale and purchase either within the community or in haats (local village market). The

traditional practice of seed exchange is still very common among the mountain communities

where the community bonding is strong.

63 Section 66(2) of GI Act.

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Communities are not being able to come to grips with the new situation. The agrarian

communities find it difficult to believe that such a law could be enacted which will take away

their right to save, sow, exchange and sell their seed. This is a new experience for India but many

developed countries have had seed laws of this nature for over a decade and it is worth learning

from those experiences. Introduction of IPRs prevent farmer from exchanging unregistered seeds

and engaging in their own seed production which eventually leads to extinction of the farmers’

varieties thus leading to a loss of agro-biodiversity. It also hampers/ curtails their right to self

determination of what they would like to grow, what inputs they would like to use, it affects their

right to follow their own practices which are closely linked to their socio-cultural ethos.

Enactment of such laws by the Parliament of a country which infringe upon the rights of

the farming community which forms the majority of population in a country raises grave concern

and questions to the constitutional mandate of a welfare state. Such IP laws in area of plant

variety and seed protection affect the community rights of the farmers to their collective and

cumulative innovations. Such laws overlook the role of farmers as breeders and conservers. In

the era of globalization, there is a role back of the function of the state where national

governments in the developing countries across the globe are losing sight of their role as a

welfare state and are being pushed to promote and protect the rights of the corporate plant

breeders instead of the indigenous and traditional plant breeders who have ensured food

sovereignty and food security thus far.

(f) Judicial Activism

The Supreme Court of India has been playing a significant role in biodiversity

conservation related issues. The Supreme Court has made it mandatory to determine Net Present

Value (NPV) for the forest land, if allowed to be converted for non-forestry purposes, i.e. for

development projects, which goes through Environment Impact Assessment. The Supreme Court

should invite most Public Interest Litigations on Biodiversity protection and evolve a judiciary

enabled legislation that protects the interests of traditional communities and their traditional

knowledge. It should interpret the cases involving biodiversity not only within the strict

meaning of the words mentioned in the Act but also take into consideration India’s

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international obligations under the Convention of Biological Diversity and other related treaties

and conventions to which India is a signatory.64

(g) The Indian Traditional Knowledge (Preservation and Protection) Bill, 2000

It has been drafted by N.S. Gopal Krishnan School of Legal studies, Cochin, University

of Science and Technology.65 The salient features of the draft Bill are:

Definition of “traditional knowledge” existing, known and used by the members of the

Indian society from generation to generation, excluding knowledge used in secret by

individual and groups.

The formation of a community traditional knowledge trust, which will have the exclusive

right to manage the TK of the community.

Commercial exploitation of TK Trust by persons outside the community whether in

collaboration with members of the community or not, shall be with the prior informed

consent of the committee. “PIC” is defined as written consent of the committee indicating

the purpose for which the consent is given together with the terms and conditions of the

consent.

The civil remedies that are provided for include injunctions, damages and accounts of

profits. The Bill also provides for a maximum imprisonment of 3 years with a maximum

fine of Rs. 2 lakhs.

I. DO THE HOLES IN INDIAN LAWS PROMOTE BIOPIRACY?

Under the Biological Diversity Act access to biological resources by non-Indian people

or companies and by non-resident Indians requires prior approval of the National Biodiversity

Authority. This applies to research and "bio-survey and bio- utilisation", which the act defines as

research activities that explore the commercial potential of biological resources or associated

knowledge. For resident Indian citizens and companies, the State Biodiversity Board must grant

permission for access, while for local communities none of these restrictions applies. Intellectual

property rights over innovations based on Indian biological resources or traditional knowledge

64 www.cbd.int/doc/case-studies/.../cs-inc-india-workshop2009-en.doc 65 Malhan Sachin and others, “Protecting Traditional Knowledge Systems”, Indian Journal of Environmental Law,

Vol. 2, No. 1, p. 90. ICAFI. University Law School, Hyderabad (A.P)

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can be established only with the prior approval of the National Biodiversity Authority, which

will notify the public of approvals. During such granting of permission, a mutually agreed

decision on benefit sharing is made.

A major problem arises from a provision in the Biological Diversity Act that allows the

government to exempt certain items "including biological resources normally traded as

commodities" from the remit of the act. In the case of seeds, which are tradable commodity, such

an exemption in the absence of other laws to regulate seed exports opens a legitimised door for

biopiracy. The Biological Diversity Act has other deficiencies that undermine it provisions on

access and benefit sharing. The terms 'commercial utilisation', 'use' and 'utilisation' are critical to

the way the act restricts access to biological resources. But the act defines neither use nor

utilisation. And although it defines 'commercial utilisation' as any activity that generates

economic gain, this definition excludes "conventional breeding or traditional practices in use in

any agriculture". Therefore access to Indian genetic resources for use in conventional breeding or

other traditional practices followed in agriculture, even by the non-Indian entities does not

require prior approval under Biological Diversity Act.

The PVPFR Act does not differentiate the nationalities of people or organisations

accessing Indian genetic resources, including varieties protected by plant breeders' rights, for

breeding new varieties. The only exception is the need for prior informed consent for repeated

use of such a protected variety as a parental line for the commercial production of a new variety.

This means that non-Indian entities can freely access plant genetic resources and associated

knowledge for use in breeding or for bio-surveys within India. Secondly, having freely accessed

the genetic resources of choice to develop breeding lines or new varieties or nothing, seeds of

this material can be taken out in different pretexts as 'exports'. The lack of a legal system

regulating seed exports and of an informed customs system with the capacity to verify what is

exported leaves a wide open door for the unchecked outflow of the planting material of virtually

any genetic resource - including farmers' varieties, land races and pre-bred material. Once these

resources are taken out through the trade route and used in conventional or non-conventional

breeding, there is virtually no way to ensure that benefits are shared equitably to the communities

that generated and conserved these resources. The irony is that laws established to protect these

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resources and promote their conservation are in fact legitimising their piracy and

misappropriation from the holder community.

J. BIOPIRACY: NEED TO CHANGE WESTERN IPR SYSTEMS

Nothing less than an overhaul of Western style IPR systems with their intrinsic

weaknesses will stop the epidemic of biopiracy. The patents on the anti-diabetic properties of

‘karela’, ‘jamun’ and brinjal highlight the problem of biopiracy - the patenting of indigenous

biodiversity-related knowledge. The use of ‘karela’, ‘jamun’ and brinjal for control of diabetes is

common knowledge and everyday practice in India. Their use in the treatment of diabetes is

documented in authoritative treatises such as the “Wealth of India”', the “Compendium of Indian

Medicinal Plants” and the “Treatise on Indian Medicinal Plants”. This indigenous knowledge

and use consists of “prior art”. No patent should be given where prior art exists, since patents are

supposed to be granted only for new inventions on the basis of novelty and non-obviousness.

These criteria establish inventiveness, and patents are exclusive rights granted for inventions.

The claim to the use of “karela” or “jamun” for anti-diabetic treatment as an invention is false

since such use has been known and documented widely in India.

Biopiracy and patenting of indigenous knowledge is a double theft because first it allows

theft of creativity and innovation, and secondly, the exclusive rights established by patents on

stolen knowledge and steal economic options of everyday survival on the basis of our indigenous

biodiversity and indigenous knowledge. Overtime, the patents can be used to create monopolies

and make everyday products highly priced. If there were only one or two cases of such false

claims to invention on the basis of biopiracy, they could be called an error. However, biopiracy

is an epidemic. ‘Neem’, ‘haldi’, pepper, ‘harar’, ‘bahera’, ‘amla’, mustard, basmati, ginger,

castor, ‘jaramla’, ‘amaltas’ and now ‘karela’ and ‘jamun’. The problem is not, as was made out

to be in the case of turmeric, an error made by a patent clerk. If a patent system fails to honestly

apply criteria of novelty and non-obviousness in the granting of patents related to indigenous

knowledge, then the system is flawed, and it needs to be changed. It cannot be the basis of

granting patents or establishing exclusive marketing rights. The problem of biopiracy is a result

of Western style IPR systems, not the absence of such IPR systems in India. Therefore, the

implementation of TRIPS, which is based on the U.S. style patent regimes, should be

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immediately stopped and its review started. Since TRIPS is based on the assumption that the

U.S. style IPR systems are “strong'' and should be implemented worldwide, and since in reality

the U. S. system is inherently flawed in dealing with indigenous knowledge and is “weak” in the

context of biopiracy, the review and amendment of TRIPS should begin with an examination of

the deficiencies and weakness of Western style intellectual property rights systems. The problem

is not our IPR systems but the Western style IPR regimes which systematically enable piracy of

indigenous knowledge and practices through patents.

Some commentators have suggested that biopiracy happens because our knowledge is not

documented. That is far from true. Indigenous knowledge in India has been systematically

documented, and this in fact has made piracy easier. And even the folk knowledge orally held by

local communities deserves to be recognised as collective, cumulative innovation. The ignorance

of such knowledge in the U.S. should not be allowed to treat piracy as invention.

The protection of diverse knowledge systems requires a diversity of IPR systems,

including systems which do not reduce knowledge and innovation to private property for

monopolistic profits. Systems of common property in knowledge need to be evolved for

preserving the integrity of indigenous knowledge systems on the basis of which our every day

survival is based. Since neither TRIPS, nor the U.S. patent law have scope for recognising

knowledge as a “commons”, or recognising the collective, cumulative innovation embodied in

indigenous knowledge systems, if indigenous knowledge has to be protected, then TRIPS and

U.S. patent laws must change. If biopiracy is not stopped, global corporate profits will grow at

the cost of the food rights, health rights and knowledge rights of Indians, two thirds of whom are

too poor to meet their needs through the global market place. Our survival itself is at stake.

The TRIPS rules that "any inventions, whether products or processes, in all fields of

technology" can be patented if general prerequisites for a patent - novelty, inventive activity,

commercial applicability are satisfied.66 That does include also the fields of health, food and

farming, although these areas of "technology" are strictly excluded in many national patent

regulation systems. But under the regime of TRIPS, "patents shall be available and patent rights

enjoyable without discrimination as to the place of invention, the field of technology and

66 Art. 27, 1.1 TRIPS Agreement.

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whether products are imported or locally produced".67 Exceptions are made for reasons of public

order and morality only.68 Member states may also exclude from patentability "diagnostic,

therapeutic and surgical methods for the treatment of humans or animals".69

In article 27, 3b exceptions in biotechnological research are fixed. The complicated

structure of this paragraph has led to many misunderstandings. It reads: "Members may also

exclude from patentability: plants and animals other than micro-organisms, and essentially

biological processes for the production of plants or animals other than non-biological and

microbiological processes. However, Members shall provide for the protection of plant varieties

either by patents or by an effective sui generis system or by any combination thereof.”

The first sentence contains the permission to define exclusions from the general right to

grant patents concerning plants and animals and biological processes for the production of plants

or animals, by naming two exceptions, micro-organisms and non-biological and microbiological

processes. So, in these two critical areas of research there exists a duty to grant patents. Sentence

two in fact leads to a devaluation of the permission to exclude plants from the patent system by

obligating the members to provide intellectual property protection for plant varieties: by patents,

effective sui generis systems or any combination thereof. In the end, the TRIPS do not give any

considerable exceptions in article 27, 3b, but supports a patent system that stops at nothing, not

even life. The traditional knowledge is protected explicitly in the CBD as an inherent right of

local and indigenous populations. From this arise three main conflicts between the two normative

systems: (1) the access to biological resources is principally based on conditions in the CBD,

what is not the case in the TRIPS. (2) The basic idea of the CBD is to guarantee compensation

between "knowledge supplier" and "knowledge user"; meanwhile, in the TRIPS, no mechanism

exists concerning compensation. (3) The CBD appreciates the performance of indigenous

communities and concludes from this the idea of collective property rights, which is

incompatible with the concept of individualistic property rights in the TRIPS.

67 Art. 27, 1.2 of TRIPS Agreement. 68 Art. 27, 2 of TRIPS Agreement. 69 Art. 27, 3a of TRIPS Agreement.

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K. PROTECTION OF TRADITIONAL KNOWLEDGE IN THE TRIPS

There are a few suggestions concerning the prevention of the biopiracy problem within the

TRIPS: (1) the selection performances and the traditional knowledge of the population have to be

respected and their use within the development of new kinds of products has to be compensated.

(2) The knowledge of the local population must be respected legally; also for the case that was

just handed down verbally. (3) No country may be obligated to patent products and methods that

go back on biopiracy. (4) A regulation has to be established, according to which access to the

biological resources of a country or a region only happens legally after informing the local

population’s representatives. (5) A fair compensation, which can consist of financial payments,

transfer of technology and more reasonable prices, has to be fixed as a pre-condition for access

to biological resources. The compensation must be of benefit to the local population. (6) If it is

not possible to find any exact original owner of a biological resource on which a patent is

granted, the profit compensation has to be carried out in form of a deposit in a special capital

stock, administrated by an adequate international body, for all those in whose region the

biological resource does appear and is used traditionally. So, as a conclusion, nothing in the

TRIPS agreement shall be interpreted in a manner that endangers biological diversity and ignores

the rights of indigenous populations as the original discoverer of biological resources and,

additionally, the patenting of plants and animals as well as of their parts and their genetic codes

must be excluded explicitly.70

(a) Why Traditional Knowledge Holders should be Concerned about Intellectual

Property Rights?

The knowledge of and uses of specific plants for medicinal purposes (traditional

medicines) is an important component of TK. Once, traditional medicines were a major source of

materials and information for the development of new drugs. In the 20th

century, however, new

sources for pharmaceuticals led to a decline in the importance of ethno botany in drug discovery

programs. However, new discoveries of potentially potent anti-cancer agents in plants (such as

turmeric and taxol), as well as a rapidly growing herbal remedies market, has revived industry

interest in traditional medicinal knowledge and practices. As interest in traditional medicine is

70 TRIPS Agreement S. Bala R Pangare S. Bala Ravi http://www.hinduonline.com

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rekindled, indigenous knowledge of the cultivation and application of genetic resources is

becoming exploited at an alarming rate.71

Intellectual property rights should guarantee both an individual’s and a group’s right to

protect and benefit from its own cultural discoveries, creations, and products. But Western

intellectual property regimes have focused on protecting and promoting the economic

exploitation of inventions with the rationale that this promotes innovation and research. Western

intellectual property law, which is rapidly assuming global acceptance, often unintentionally

facilitates and reinforces a process of economic exploitation and cultural erosion. It is based on

notions of individual property ownership, a concept that is often alien and can be detrimental to

many local and indigenous communities. An important purpose of recognizing private

proprietary rights is to enable individuals to benefit from the products of their intellect by

rewarding creativity and encouraging further innovation and invention. But in many indigenous

world-views, any such property rights, if they are recognized at all, should be extended to the

entire community. They are a means of maintaining and developing group identity as well as

group survival, rather than promoting or encouraging individual economic gain.

(i) Benefits of IPRs Regime

It is often argued that the existing IPR models would provide new incentive for the TK to

be developed and practiced. The need for incentive arises from the fact that the changes in

lifestyle and other reasons can lead to extinction of a lot of traditional knowledge unless the

system is revitalized.72 Other benefits that form the basis of current IPR regime, that is,

innovation and public benefit by disclosure of the TK should also be considered. The traditional

communities might possess the knowledge but not the ability to develop or improvise on it. This

innovation can be promoted by using existing IPR protection for TK.

During the course of a recent Round table on Protection of Traditional

Knowledge/Traditional Cultural Expression, a singer, M/s Shobha Mudgal had explained that the

71 GRAIN and Kalpavriksh, Traditional Knowledge of Biodiversity in Asia Pacific: Problems of Piracy and

Protection, GRAIN (Genetic Resources Action International), October 2002. 72 Anil K. Gupta, WIPO-UNEP Study on The Role of Intellectual Property Rights In The Sharing of Benefits

Arising From the use of Biological Resources and Associated Traditional Knowledge, available at

www.wipo.int/tk/en/publicatons/769eunep.tk.pdf.

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focus of classical music in India is on sharing the music with other members of the music

fraternity so that it can be further developed and used for performances. The person using the

composition of another singer has to acknowledge the original singer before singing. In such a

situation, it would become problematic if right is given to traditional communities to preclude

others from using the traditional knowledge as it would stall development and innovation in

music. This kind of problem can arise if sui generis protection is given to TK. However, fair use

exceptions can ensure that TK is not over-protected and too extensive rights are not awarded to

the traditional communities.

(ii) Inability of IPR Regime to Give Positive Protection to TK

The first problem associated with using the current IPR regime is the loss of cultural

wealth associated with traditional knowledge. The aim of the IPR regime is to protect the rights

connected to commercially exploit an intellectual property. This implies that various cultural

rights that are associated with traditional knowledge cannot be protected by IPRs.73 The TK for a

community is closely related to its cultural and social values and beliefs. The TK binds the

community together and is part of its identity. There are cultural practices associated with the TK

such as how it should be practiced and who can practice it. These rights cannot be fully protected

by the current TK model. In fact, it has been argued that IPR systems pose a threat to traditional

knowledge of indigenous communities. They cause co modification and commercialization of

the traditional knowledge due to which the social and cultural capital associated with the

traditional knowledge is lost. This threatens the entire culture and way of life of indigenous

communities.74

There are numerous indigenous and traditional method of protection of rights of

knowledge holders and creators. These systems have their own methods of protecting various

cultural and social rights that are associated with traditional knowledge. The IPR regime which

is based on the Western notion of property and ownership cannot do justice to all facets of

traditional knowledge.

73 American Folklore Society Recommendations to the WIPO Intergovernmental Committee on Intellectual Property

and Genetic Resources, Traditional Knowledge, and Folklore, 117 The Journal of American Folklore 298, 296

(2004), www.jstor.org/stable/4137742. 74 Charles H. Norchi, Indigenous Knowledge as Intellectual Property, 33 Policy Sciences 394, 387 (2000),

www.jstor.org/stable/4532511

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The second problem associated with the IPRs regime is the individualist ownership

model. The Western notion of property gives monopolistic rights over the property to an

individual. The individual has these rights vis-à-vis the society and other individuals who are a

part of the society. On the other hand, the traditional knowledge of the indigenous communities

is similar to commons which is held by the community as a whole instead of an individual. In

case of traditional knowledge it is often impossible to identify an individual creator or inventor.

Thirdly, the nature of traditional knowledge is such that it cannot be adequately protected

by IPR regime. The knowledge as passed by the community might not meet various thresholds of

IPR regime such as invention, novelty and utility.

A variety of traditional knowledge might not be considered as invention. It would be

closer to discovery than invention. Even a broad understanding invention cannot cover

discoveries such as discovering medicinal properties of Neem. There is no human step involved

that is required for categorizing a discovery as invention because Neem is consumed as it exists

naturally.

Copyright focuses on originality and patent regime on novelty. These thresholds cannot

be met by traditional knowledge. Traditional knowledge is based on repetition and blind

adherence to traditional practices. The artistic works are often created by reusing the traditional

patterns and designs. The community does not wish to create an original art work but merely

wants to re-create the same art form that has been made by many generations.

Another problem is that the utility and artistic aspects of traditional knowledge cannot be

separated. Due to this, neither copyright nor patent can adequately protect traditional knowledge

because of their sole focus on creativity and utility respectively. A lot of traditional knowledge

does not serve a definite utilitarian purpose. In case of other traditional knowledge, the utilitarian

and the aesthetic elements are intertwined and mixed. It might not be possible to always

disintegrate traditional knowledge in a manner that its different elements can be protected as

separate IPR such as designs, patents and copyrights. Due to these reasons, it is clear that IPR is

a bad fit for TK protection

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Defensive protection strategy can be used to prevent granting of exclusive rights on TK

based inventions. Most of the TK based products are given IP protection because of inability on

the part of granting authorities to identify prior art. One of the problems related to TK is lack of

systematic documentation of its process of creation. Defensive publication is a practice of

disclosing details about TK to the public, and thereby preserving them as public property and

preventing others from claiming rights over it.

Documenting TK will convert it into prior art and the invention based on this can no

longer be considered as novel, and thus patent cannot be granted. Besides this a document on TK

will be useful for research and will be an impetus to invention both in India and abroad, but it is

to be noted that, this will be useful to indigenous communities only if there is a proper

mechanism for benefit sharing. The greater documentation of TK is not only useful in preventing

the grant of unwarranted patents but also helps in preservation, protection and possible

exploitation of TK.

(b) Granting Rights over TK to Traditional Communities under the Existing IPR

Regime

One of the methods for protecting traditional knowledge that has been proposed is the

extension of the existing system of IPR regime to traditional knowledge. This would allow the

indigenous communities that hold traditional knowledge to commercially exploit the traditional

knowledge and reap benefits from it by relying upon monopoly over the knowledge. It would

also serve the public purpose of gaining access to the knowledge.75

Instead of recognizing TK as a distinct intellectual property, it is protected by

categorizing it in one of the existing forms of intellectual property protection. The same rules,

exceptions, time period, pre-conditions for gaining protection etc. that exist for patents, copyright

and trademarks will apply in case of traditional knowledge also.

However, there is no practical legal model for positively creating rights with traditional

knowledge as subject matter using the IPR regime that could be used for successfully assessing

75 Supra note 67.

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the impact of positive protection using IPR regime. IPR regime has only been used for giving

negative protection to traditional knowledge.

L. POSSIBLE INTELLECTUAL PROPERTY PROTECTION OPTIONS

FOR TRADITIONAL KNOWLEDGE PATENTS

Patents provide a legal monopoly over the use, production, and sale of an invention,

discovery, or innovation for a specific period of time (usually about 20 years). A monopoly is

the right to the exclusive control over the use, development, and financial benefits derived from a

patented item. Inventions and innovations are new designs or methods for performing a task or

the introduction of new uses for an already existing object. Inventions and innovations are

typically discovered through some form of experimentation. In order for an invention or

innovation to be patentable, it generally must meet three criteria: novelty, non obviousness, and

industrial application. It must meet all of these three criteria, and if one can be disproved, the

patent cannot be approved. Novelty refers to the “newness” of an established invention. Novelty

is when there is no prior art. Prior art is the existing knowledge base before the invention was

discovered or before the invention was disclosed by filing a patent application. Non-obviousness

refers to the presence of an inventive step. In order for an inventive step to be present, the

invention or innovation must not have been obvious at the time of its creation to anyone having

“ordinary skill in the art.”76

A major benefit of a patent is that it grants a temporary monopoly. This monopoly

entitles the patent owner to total control over the use, production, and sale of the patented item.

This entitlement can be very profitable, depending on the market demand for the new invention

or innovation. The Patent Cooperation Treaty (PCT) makes it possible to apply for a patent

simultaneously in other PCT member countries through a single application.

There are several potentially negative aspects of patents. First, applying for a patent

requires full disclosure (making public) of the invention or innovation. Shortly after the patent is

approved, the information is placed in the public domain by making the patent application

publication publicly available. If the knowledge is considered a trade secret, a patent may not be

76 United States Code, 35 U.S.C. § 103

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the most appropriate IP solution for TK. In many countries, TK may be considered defacto part

of the prior art base. Thirdly, it is important to note that the application process for obtaining a

patent can be timely and expensive. Additionally, once a patent is granted, it is the responsibility

of the patent holder to enforce the patent against infringement.

(a) Plant Patents

The TRIPS Agreement requires all countries to adopt measures to protect new plant

varieties. One form of protection for new plant varieties is the plant patent. There are several

inconsistencies in the plant patenting system, which may either be of benefit or present a threat

to indigenous communities. First, there is a lack of a clear understanding or consistent approach

to what is considered a new plant variety. Many indigenous communities have cultivated and

maintained plant varieties over many generations. But many new plant varieties are simply a

slight modification to existing types of plants that were developed (cultivated) by indigenous

communities. The requirements for a plant discovery are:

Its existence is not already known outside the community,

It can be reproduced by means other than from being grown from a seed(asexually

propagated), such as by the rooting of a cutting from the plant, and

It must not be discovered growing in an uncultivated state, implying simply that if it was

found growing freely in a field, the woods, mountain side, etc. This would suggest that it

could have developed into its current state without any human involvement. But, if the

plant is discovered, for example, in someone’s garden, or within the boundaries of the

community, this increases the odds that this plant variety probably developed with some

form of human intervention.

(b) Petty Patent Models

Petty patents allow for protections similar to those of patents, but for knowledge

consisting of a less-detailed inventive step.77 The knowledge must still meet the novelty and

industrial application criteria. The term of protection for a petty patent is typically between four

and six years, which is shorter than the term for the standard patent. The petty patent exists only

77 Kadidal, S., “Subject-matter Imperialism? Biodiversity, Foreign Prior Art and the Neem Patent Controversy,”

IDEA: The Journal of Law and Technology, (1997), 371-403.

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in a few countries and is not mentioned in the TRIPS Agreement as a minimum standard for

intellectual property protection. However some countries are pushing for the inclusion of petty

patents in the TRIPS Agreement. Petty patents may be more suitable for TK, as TK is not

typically documented in the same manner as Western science. Despite the fact that petty patents

are not globally recognized as a minimal standard for intellectual property protection, some

countries have enforced the mechanism as a way of protecting TK. For example, a type of petty

patent is mentioned in Kenyan legislation in order to protect indigenous claims to traditional

herbal medicine.78

Although the current application of petty patents is relatively small, their implementation

at a broader level could serve TK as a viable intellectual property protection option.

(c) Plant Variety Certificates

Some countries additionally protect plant varieties in the form of a plant variety

certificates. This mechanism is used to protect the rights of breeders of sexually reproducing

varieties of plants (reproducing by seed). Breeder’s rights protect the commercial interests of the

breeder so that economic incentives exist for continued breeding of new plant varieties. Unlike

patents, plant variety certificates do not require the authorization of the breeder for use of the

variety by others for research purposes. The criteria for a plant variety certificate are slightly

different from those for a plant patent. To meet UPOV requirements, varieties must be: distinct

from existing, commonly known varieties, sufficiently uniform, stable, and novel. According to

UPOV, distinctness is determined by the existence of distinguishing features of the plant variety

when compared to any other variety existing as common knowledge at the time.79 The uniformity

requirement is met when the plant variety, upon propagation, exhibits its distinguishing

characteristics in a consistent manner. The stability requirement is met when the characteristics

of the plant remain unchanged after repeated propagation.80 The novelty requirement is met if the

plant variety has not been sold prior to certain dates established in the UPOV Convention in

78 Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices, United

Nations Conference on Trade and Development, Commission on Trade in Goods and Services, and Commodities

Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and

Practices, 2000, TD/B/COM.1/EM.13/2. 79 International Convention for the Protection of New Varieties of Plants, 1991, Art. 7. 80 Ibid., Art. 9

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relation to the filing date of the plant variety application. It is important to note this particular

definition of novelty in relation to plant variety certificates. Here, novelty pertains to the prior

sale of the plant variety. UPOV is not the only legal mechanism for protecting new plant

varieties. In fact, relatively few (only fifty) countries in the world currently support UPOV.

Several other options for plant variety protection have been proposed by developing countries

that are not party to UPOV, but are still legally bound to provide plant variety protection under

the TRIPS Agreement. For example, India’s Plant Variety Protection Act (2001) declares that

the rights of the farmer are superior to those of the breeder. The example demonstrates that

options other than UPOV can be established that effectively address the needs of traditional

knowledge holders.

(d) Geographical Indicators

A geographical indicator identifies a good as originating in a territory or region, or

locality in that territory, where a given quality, reputation, or other characteristic of the good is

attributable to its geographical origin. Its advantage is that it distinguishes TK based product by

location and Proves authenticity when claiming superiority based on traditional location. But it

does not protect against use of TK not claiming geographical name. A specific form of

geographical indicator is called an appellation of origin. Appellations of origin specify the

quality of a product based on its geographical environment and are protected under the Lisbon

Agreement of 1958. Despite it criticisms for being incompatible with the TRIPS Agreement,

twenty countries are party to the Lisbon Agreement.

One can protect against the inappropriate use of geographical indicators by ensuring that

it is commonly known and documented. This can be done by placing the geographical indicator

in the public main via a database or other publicly accessible medium. The second option is to

apply for a certification mark that is an official registration. The certification mark is a type of

trademark. Currently, international registry protection is available only for wines and all other

products are subject to national registry laws. If a country is party to the TRIPS Agreement, it is

their international legal obligation to formulate legislation protecting geographical indicators.

Article 22 of the TRIPS agreement states that members must provide legal means to prevent the

use of any means in the designation or presentation of a good that indicates or suggests that the

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good in question originates in a geographical area other than the true place of origin in a manner

which misleads the public as to the geographical origin of the good as the case of Basmati rice

demonstrates the importance of geographical indicators as they relate to traditional knowledge.81

Basmati rice case will serve as an example of why preemptive registration or public disclosure of

the use of geographical indicators is important to help prevent misappropriation.

(e) Trade Secrets

Trade secrets protect undisclosed knowledge through secrecy and access agreements,

which may also involve paying royalties to knowledge holders for access to and the use of their

knowledge. Three elements are required for knowledge to be classified as a trade secret. The

knowledge: must have commercial value, must not be in the public domain, and is subject to

reasonable efforts to maintain secrecy.

Traditional knowledge that is maintained within a community could be considered a trade

secret. But once the knowledge is diffused to the public, this option no longer exists. A trade

secret is only enforceable as long as it remains a secret. Trade secrets have no legal protection

except in cases of breach of confidence and other acts contrary to honest commercial practices

.This means that one must be able to prove some form of malicious intent on the part of a

contracting party as the cause for a trade secret’s diffusion to the public in order to be

compensated for the loss of secrecy. Trade secrets are commonly combined with contractual

agreements. This is a way to profit from royalty payments for the use of knowledge. If a trade

secret happens to enter the public domain, contractual royalty payment agreements may still

remain in effect throughout the life of the agreement.

It is important to remember that knowledge that is considered a trade secret can be used

by anyone if the knowledge leaks into the public domain or is independently discovered by

another individual, or reverse engineered. It is difficult to protect trade secrets against

misappropriation due to lack of legal entitlement to the bearer of the secret. When applied to

knowledge belonging to a community, the community must make a reasonable effort to maintain

81 United States patent (5,663,484) granted in 1997 to Rice Tec Inc.

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the secrecy of the knowledge. If there is not a reasonable effort to maintain the traditional

knowledge’s secrecy, then trade secret protection is not applicable to the traditional knowledge.

(f) Trademarks

Trademarks are a way of protecting the use of words, phrases, symbols, designs, or any

combination of these associated with a product. Once a trademark is established, it can be used to

identify and differentiate similar products. Trademarks are based on two principles:

distinctiveness and avoiding confusion. Trademarks distinguish products in order not to mislead

consumers into thinking that a product is something that it is not or comes from another source.

How can trademarks be applied to traditional knowledge? Suppose a company sells a product

comprised of maca, a plant native to the Andean region. An indigenous community in the Andes,

the original knowledge holders of maca’s uses, may also want to sell maca or profit from their

own natural resources and knowledge. They could register a trademark like the example below:

Now the indigenous group has two new options: If there are no patents preventing the sale of

maca for specific purposes, the indigenous group can register the above trademark and sell maca

using this symbol to distinguish their brand.

M. FUTURE OF TK PROTECTION: PROPOSALS BY DEVELOPING

NATIONS AND JURISTS

The need for protection of traditional knowledge is based on the premise that the

traditional communities should get benefit from the exploitation of the traditional knowledge.

The big resourceful players such as multi-national companies should not monopolies the benefits

of traditional knowledge using the existing intellectual property rights protection systems.

Traditional knowledge is significant for countries who had been hitherto disadvantaged by the

IPR systems because very little new IPR was developed in these countries. Many of these

countries have a wealth of traditional knowledge waiting to be exploited or explored. The

protection for traditional knowledge overlaps with geographical indicators regime and protection

for biodiversity.

There has been extensive discussion within the international community as to the nature

of protection that is to be given for traditional knowledge. Solutions have been proposed in the

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form of defensive protection and positive protection. Defensive protection refers to provisions

adopted in law or by the regulatory authorities to prevent IPRs claims relating to TK or a cultural

expression or a product being granted to unauthorized persons. Positive protection on the other

hand refers to acquisition of IP rights by the TK holders themselves or an alternative regulatory

mechanism under a sui generis system. Many countries argue for defensive protection because

the current IP system is defective and allows companies to unfairly exploit TK.

There are various proposals which are intended for the protection of TK which are

advanced from various world nations at different international fora. Most of these proposals are

now in practice through various national legislations. An effective implementation of these

proposals can result in sustainable use of knowledge of indigenous communities and can provide

for sustainable development of these communities.

(a) Understanding the Need for Defensive Protection

Many of the countries have tried to protect traditional knowledge through the IPR regime

by relying on the novelty and originality requirements in the existing IPR that have to be fulfilled

before IPR protection can be granted. This is called defensive protection of traditional

knowledge and it works by preventing players other than the traditional community from getting

IP rights over any traditional knowledge.

Countries like India have basically tried to create a database of the existing traditional

knowledge in their country. Documentation of the traditional knowledge implies that it would be

regarded as prior art which would ensure that others cannot claim patent protection for such

knowledge.

India has created a Traditional Knowledge Digital Library for this purpose. Earlier,

ancient texts and sources were used by India in many cases involving biopiracy of

misappropriation of traditional knowledge.82

82 Ajeet Mathur, Who Owns Traditional Knowledge?, 38 Economic and Political Weekly 4478, 4471 (2003),

http://www.jstor.org/stable/4414163.

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This is a major problem as often there might be cases where there is no printed record of

traditional knowledge. In most of the countries, public use within domestic set-up is considered

while evaluating prior art and not public use and knowledge outside the country.83 If the

traditional knowledge is not published then it is possible to get patent protection for it in other

countries because its public use would not be considered for prior art. Therefore, these databases

are being created by India, China and other countries.

Another type of negative protection is termed as the disclosure system. This system

basically requires the person asking for IPR to reveal the traditional knowledge sources on which

the inventor relied on for creating the invention. Such a system has been adopted by China which

basically requires patent applicants to disclose the genetic resource used by them and forbids

fake patents.

(i) Advantages of Defensive Protection

The benefit of negative protection is that it prevents creation of monopolistic rights over

TK in favour of persons outside the traditional community. It prevents issues such as biopiracy in

which the rights over traditional knowledge are claimed under the existing IPR regime by an

outsider and the traditional community cannot longer use the TK.

For example, companies have attempted to patent Neem and turmeric which have been

used in India for centuries and continue to be used in households even today. Their medicinal

uses are well known in India and this is an example of traditional knowledge that belongs to the

whole country and not just one community. By documenting traditional knowledge, such

knowledge would constitute prior art and it would not be possible to claim protection for such

knowledge under the patent or copyrights laws.

Another benefit is that it prevents traditional knowledge which is already in public

domain from being given IP protection. Often a criticism of a sui generis model or for positive

protection for TK is that most of the TK is knowledge under public domain. By giving the

traditional community monopolistic rights over it, the TK would be removed from public

83 Kimberlee Weatherall, Culture, Autonomy and Djulibinyamurr: Individual and Community in the Construction of

Rights to Traditional Designs, 64 The Modern Law Review 218-219, 215 (2001), www.jstor.org/stable/1096993.

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domain. From the point of view of public interest, negative protection is favoured as it will allow

development and research on vital traditional knowledge such as important traditional medicines.

Sui generis models usually give power to the community to regulate access to the TK and if the

communities prefer to keep the TK to themselves then it would become difficult to further

develop the TK. Contribution from players who have the resources to develop TK is necessary

and communities by themselves cannot develop their TK to its full possible extent. It is also

argued that bringing traditional knowledge in public domain ensures that the knowledge is not

lost. Often, there are strict traditional rules which forbid the members of a community to share

their traditional knowledge. This poses the danger of the traditional knowledge being completely

lost.

(ii) Problems Associated with Defensive Protection

However, by documentation, only misappropriation by other players can be prevented.

But the traditional knowledge cannot be commercially exploited in a manner which benefits the

traditional community. The community is not given positive rights over the TK which it can use

for deriving benefits from the community. Perhaps, giving positive rights over TK can serve the

public purpose better as co-operation of the communities in the development of TK can be

ensured.

The integrity of the traditional knowledge that is highly valued by traditional

communities cannot be protected. The traditional communities have rules and norms governing

the use of traditional knowledge. They often have a system in place about who can practice the

said TK and the manner in which it should be practiced.84

There are a myriad of cultural practices and beliefs associated with the TK. In case of

defensive protection, the TK would be available for use to the public at large and the traditional

communities would not able to regulate the knowledge any more after it has been publically

disclosed.85

84 Anil K. Gupta, WIPO-UNEP Study on the Role of Intellectual Property Rights in the Sharing of Benefits Arising

from the use of Biological Resources and associated Traditional Knowledge, available at

www.wipo.int/tk/en/publications/769e_unep_tk.pdf 85 Ibid.

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It is important that any system granting protection to TK should take into account the

existing traditional methods for protecting TK that are used by the communities. These methods

have hidden wisdom attached to them and particularly effective in management of TK. The

traditional communities often have methods to ensure that the natural resources are used in a

sustainable manner. Public information about traditional knowledge could also lead to a situation

analogous to tragedy of commons where the natural resources related to traditional knowledge

would be exhausted by overuse by public in a scenario where the community loses the power to

control the use of these resources.

(b) Development of a sui generis system

It is clear that the use of current system of IPR for TK will not do justice to the concerns

and rights of the traditional community. However, the rights of the traditional community have to

be balanced with other interests such as need for public access, innovation etc. There is a need

for a model that can ensure that the traditional communities benefit from their knowledge and

maintain control over it without sacrificing public interest in traditional knowledge. Through

their association with nature for centuries indigenous communities have acquired immense

knowledge, which when properly modified is having large commercial value. Current IP system

has proved to be inefficient to deal with the issues relating to protection of TK, this was reason

for a proposal of development of a sui generis system for protection of TK. Sui generis systems

are alternate models created outside the prevailing intellectual property regime. Article 27.3 of

the TRIPS agreement asks the states to provide for a sui generis system for protection of plant

varieties and traditional knowledge. Developing countries are looking at sui generis clause as a

window, an opening, to enact legislations that go beyond IPR for protecting rights of farmers,

indigenous and local communities who apply creative intellectual efforts and develop useful

technologies with bio diversity and their knowledge of the same.86

A sui generis legislation in TK which recognizes the autonomous character of TK is able

to ensure a more objective valuation of TK. A system that views TK as a composite resource

having, both economic and cultural features have a better prospect of ensuring protection of TK.

86 See Paul Kuruk, Bridging the Gap between Traditional Knowledge and Intellectual Property Rights: Is

Reciprocity an Answer?, 7 J.WORLD INTELL. PROPERTY 429 (2004).

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National measures of a sui generis system backed by international regulation can definitely help

in preserving the knowledge of communities from misappropriation.87

Some countries have already enacted or are in the process of enacting a sui generis

system of protection of TK. Philippines is one among those nations who has enacted a legislation

giving indigenous communities right over their traditional knowledge. These rights extend to

controlling access to ancestral lands and access to biological and genetic resources and to

indigenous knowledge relating to these resources. Access by other parties under this legislation

is based on the concept of ‘prior informed consent’ of the community. The Act provides that any

benefit arising from genetic resources of associated indigenous knowledge will be equitably

shared. The law seeks to ensure that indigenous communities are able to participate in all levels

of decision making. India also by Biological diversity Act has made an attempt to make a

separate system of law for protection of genetic resources and associated TK.

Even while raising demands for a sui generis system for TK protection, there have been

concerns regarding the efficiency of such a system. As we have pointed out earlier that diversity

is the very essence of TK systems, so concerns has been expressed regarding the feasibility of a

single system which covers the entire aspects of TK.

N. OTHER CONSIDERATIONS

A sui generis model for traditional knowledge should not have the threshold of utility or

originality. However, the task of delimiting the subject matter of protection would be a tedious

one as it is difficult to define what exactly amounts to traditional knowledge. There are different

kinds of knowledge included with TK, therefore the model has to be flexible enough to cater to

specific needs of each of these knowledge forms. Due to this, sectoral protection instead of

umbrella legislation is preferred by some countries.

An important issue that needs to be considered is the international dimension of sui

generis model for protection of TK. Traditional knowledge is not an internationally recognized

IPR yet but arguments for having an international sui generis model for protecting IP are often

87 see Damodaran A, Traditional Knowledge, Intellectual property rights bio diversity: critical issues and

challenges, Journal of intellectual property rights, VOL 13 September 2008 page 509 -513

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raised. It is clear that international protection of TK is necessary in the era of globalization as

most of the cases of misappropriation and biopiracy of TK occur across borders.88

However, TK is a rather culture specific concept and the kind of protection required

would also depend on the cultural context of that region. Therefore, the countries should be left

free to decide the regime that best suits the socio-cultural context of their country. The

international regime for protecting TK should set out broad principles which make the countries

responsible for protecting TK, disallow misappropriation of TK and ensure certain TK is treated

as global commons (countries might treat a different set of TK as national commons) should be

put into place.

(a) Categorising Certain TK as Public

Firstly, the decision making powers should rest with the community in order to preserve

the cultural wealth associated with the knowledge. The co modification of traditional knowledge

might be against the belief system of the community. Moreover, there is utilitarian benefit in

giving control to the community as it will facilitate voluntary disclosure (which would work

better than forced disclosure) and would ensure that the natural resources associated with the

knowledge do not fall prey to overuse. Continuation of the various beliefs and practices

associated with the traditional knowledge has a definite positive economic benefit.

At the same time, the community’s control might be limited in many cases. There are

situations that the use of traditional knowledge is important for the benefit of the public at large.

In these cases, rights similar to that of a patent holder can be given which allow the community

to reap the benefits of the knowledge for a certain number of years after which it becomes open

to use by public. However, this should not be done in only some cases of traditional knowledge.

A system similar to the Thai model can be used for putting some traditional knowledge in the

category of public and keeping other traditional knowledge reserved for community use.

Thailand‘s89 established a sui generis system for protection of traditional knowledge in

medicines. It divides traditional medicinal formulas into three categories –

88 Cf. World Trade Organisation, The Protection Of Traditional Knowledge And Folklore Summary Of Issues Raised

And Points Made 5 IP/C/W/370/Rev.1 (2006), available at www.wto.org/English/tratop_e/trips_e/ipcw368_e.pdf 89 Thai Traditional Medicinal Intelligence Act 1999

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(a) General formula – including widely used formula and formula over which intellectual

property protection has expired. They can be used freely by public under the Act.

(b) National formula – including formula with special value. The State controls access to

this formula.

(c) Private formula – they are registered by the inventor, developer or any person who has

inherited it. Exclusive rights of sale, distribution and manufacture are given over this

formula.

A similar classification of traditional knowledge can help to resolve the problem of

diminishing knowledge will fall in commons while protecting the rights of traditional community

also.

Another case where the TK must be considered as ‘public’ is where the community itself

shares the knowledge with the public. In either cases, there should be positive protection in form

of protecting integrity of the knowledge (as long as it does not defeat the public purpose of

making it public in the former case) and giving benefit to the community for use of the TK, if it

so desires (that is, the community merely uses the right to prevent access of outsiders to the TK

and keeping the TK secretive).

Term of Protection: As a rule, the protection for TK should be perpetual but there

should be cases where the protection could be withdrawn. When the community disbands or

stops practicing TK then the protection should come to an end. Also in cases of public TK, the

term of protection can be limited after which the TK become public to the extent mentioned

above.

(b) Idea Banks

Idea bank is a defensive strategy, which can be used to protect indigenous resources from

bio piracy. Documentation of TK provides an easy reference for the foreign or national patent

examiners to check for prior art in a patent application based on TK. An idea bank is a digital

library which holds the proven or valid ideas of ancient people and also the conceptual ideas of

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the present for the future knowledge development.90 Idea banks can hold ideas which are virtual

and real in nature and which are originated from different facets of human living. Registered idea

can act as a prior art, and thus amount to a defensive strategy against bio piracy. Also idea bank

being in public domain, ideas registered can be used by anyone by making an agreement of

sharing of benefits. Thus idea bank can provide for sharing of knowledge worldwide.

(c) TKDL – An Indian example

India has already recognized the role of defensive publication in protection of TK, and

thus India has initiated an attempt to document TK in written as well as electronic form by

means of People’s diversity registers (PBR) and the Traditional Knowledge Digital Library

(TKDL). TKDL is a navigable online repository of traditional knowledge in the country. TKDL

aims to translate Indian TK originally available in native languages to international languages.

Besides this TKDL allows patents offices all over the world to search for prior art based on

Indian TK and thereby acting as a defensive tool to prevent granting of erroneous patents. The

scope of TKDL works relates to transcription of 35,000 formulations used in Ayurvedic system

of medicines.

The Traditional knowledge Resource Classification (TKRC) is an innovative, structures

classification system that has been designed to facilitate the systematic arrangement and retrieval

of the information in TKDL. The TKRC is based on International Patent Classification system

with the information classified under section, class, subclass, group and subgroup for the

convenience of its use by the international patent examiners.91

TKDL is intended to give documentation to the existing TK and thereby ensuring ease of

retrieval of TK related information by patent examiners and thus hopefully prevent erroneous

grant of patents as in the case of turmeric or Neem as discussed above. Work on such TK

libraries is currently pursued in WIPO where a specialized task force including representative

from China, India and other developing nations and patent offices are examining on how such

libraries can be integrated into the existing search tools used by patent offices.

90 Livingston David J India need an idea bank to lead world in intellectual property protection, Journal of intellectual

property rights, vol 8 may 2003, pages 213 -221 91 Information adapted from www.tkdl.res.in/tkdl/langdefault/common/TKRC.asp

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According to a WIPO press release, representatives from 35 countries were in Delhi for

the meeting to benefit from India’s experience in TK protection. WIPO member states have been

negotiating a legal international instrument to protect traditional knowledge for years, and talks

recently began advancing in the Intergovernmental Committee on Genetic Resources, Traditional

Knowledge and Folklore (IGC).According to WIPO, India’s library could be a good model for

other countries. The conference’s objectives were to share experiences and information on the

role of a TKDL in the documentation of traditional knowledge, identify the IP issues and

technical implications of a TKDL, and explore the role and functioning of the TKDL within the

international IP protection system. According to the WIPO release, there have been “some

political concerns associated with TK documentation projects, which are perceived by some as

‘facilitating biopiracy’, since documentation projects may facilitate access to TK that was not

publicly available before, or TK that had been disclosed without the free, prior and informed

consent of affected indigenous and local communities.” During the last IGC expert working

group meetings on traditional knowledge and genetic resources, indigenous groups voiced

concern about what they felt was too much focus on the IP rights system to protect genetic

resources and associated traditional knowledge against misappropriation.92 Though this type of

defensive strategy is capable to prevent misappropriation of TK, it is not able to address all

issues faced by TK. Besides this it is to be accepted that it is very difficult to compile all those

data which was transmitted through generations over the years. TK is widespread, besides this

old texts are vast and difficult to translate, also being a country with linguistic varieties, a

particular process or a thing will be known in different names in different parts of the country.

All these add to the difficulty of documenting TK. Another limitation of concept of

documentation is that the traditional words which are often used generally cannot be equated

with present terminology. For e.g. Indian traditional text books use the word Liver complaint and

suggest certain medicines for that, but modern medical terminology have given different name

for this, like Hepatitis A, Hepatitis B etc. So when a plant is used by Indian for centuries for

liver complaints western world may refuse it as a prior use by stating that the exact medical

terminology is not found anywhere in Indian medical texts.

92 IPW, WIPO, 1 March 2011

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(d) Registration and innovative patent system

This involves creating a system for registration of innovations by inventors. Such

registration will be tantamount to giving right to the inventor to challenge any use of the

innovation without prior permission. For novel and useful innovations, some kind of petty patent

giving protection for a limited duration may be worked out. Regarding registration, some limited

efforts have been made in India. For example, the HoneyBee database, established ten years ago

in India, is a facility for registration of innovations by innovators. The database can be accessed

for adding value to these innovations and sharing benefits with the knowledge providers and

innovators. Thus, the HoneyBee Network involves documentation, experimentation and

dissemination of indigenous knowledge. The network has probably the world's largest database

on grass root innovations, having now about 10,000 innovations, with names and addresses of

the innovators (individuals or communities). Through the Honey Bee Newsletter, grassroots

innovations have been disseminated to more than 75 countries. For example, this database has

entries on traditional use of fish and fish products, improving crop productivity, etc. SRISTI, the

Society for Research and Initiatives for Sustainable Technologies and Institutions based in

Ahmadabad, has been involved in documenting innovation developed by individuals at the

village level. The Honey Bee Network, as the initiative is called, documents not elements of

biodiversity per se, but their uses and in particular innovation surrounding these elements. This

network has been growing since the late 1980s. It aims, through this documentation and

subsequent accrual of benefits, to provide a platform through which biodiversity and local

knowledge bases can be conserved.

The State Plan for Kerala has also actively promoted documentation of local knowledge

regarding biodiversity in people's biodiversity registers. One pilot project on this has been

completed in Ernakulum District. Two other projects at a single Panchayat level have been

initiated by the Tropical Botanic Garden and Research Institute and the Kerala Forest Research

Institute. Another interesting development in Kerala is the development of a benefit-sharing

arrangement between the Tropical Botanical Garden Research Institute and the Kani tribe; based

on whose knowledge a drug was developed and then marketed.

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The state of Karnataka presents a unique example of NGO initiatives in the formulation

of Peoples' Biodiversity Registers (PBRs). Some experts who were part of the State Planning

Board recommended the Karnataka Biodiversity Conservation Order in 1996. This order

envisaged biodiversity boards at the state and sub-state levels, with a wide range of stakeholders

being members of the board, and envisaged PBRs as part of the responsibilities of the boards.

One of the organized and widespread attempts of NGOs has been towards initiating and

completing biodiversity registers.

(e) Traditional Knowledge Registries

Traditional knowledge registries are official collections of documentation that describe

traditional knowledge. Registries can be established and maintained either locally (within a

community) or outside the community itself (external). With a locally maintained registry, the

community may collectively decide what is to be included in the registry and what knowledge is

to be shared and/or disclosed to people outside the community. External registries are maintained

outside the community, often on the national or international level, by governments,

nongovernmental organizations, museums, or libraries. These registries can be collections of TK

specific to one particular community or to several communities. Local communities may have

control over what is entered into the registry, but may not be responsible for the registry’s

maintenance. Distinguishing between local or external registries is at the discretion of the TK

stakeholders. Registries can also be public or private. Public registries place information in the

public domain and serve as a form of prior art or defensive disclosure. A Defensive disclosure,

by describing information in a printed publication or other publicly accessible medium, helps to

establish prior art capable of preventing patents based on that information. Private registries,

however, do not place knowledge in the public domain. Private registries can be effective as:

protection mechanisms for TK in instances where a sui generis system is in place, preservation

mechanisms when cultural and historic preservation is a goal, and tools for access and benefit

sharing agreements.

Since the information in a private registry is documented but is not in the public domain,

it may not constitute prior art capable of preventing a patent based on the knowledge by an

outsider. The knowledge in a private registry cannot prevent the approval of a patent under most

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IP systems unless it is considered prior art through a sui generis mechanism and disclosed to

patent authorities. However, it may be possible to challenge and revoke a patent with knowledge

documented in a private registry if patent law recognizes prior art not disclosed to public as is

being admissible under a sui generis system. Reexamination requests of patents can be both

costly and time consuming. Also, the knowledge may need to be disclosed to the public if no sui

generis protection mechanism exists that would prohibit its public disclosure during

reexamination.

(f) Public Registry

Information in a private registry that is not accessible to the public may not constitute

prior art capable of preventing an outsider’s patent on traditional knowledge because the

recognition and effectiveness of private registries varies from country to county, private

registries are most effective as a mechanism for preservation of knowledge and as a tool for

access and benefit-sharing agreements. A private registry can serve as a catalogue for knowledge

that can be licensed to outside parties for research and product development. As a mechanism

for cultural preservation, the private registry serves as a cultural library that documents and

maintains TK belonging to a community and helps prevent its loss. A typical form of registry is a

computer database. The Internet is an ideal location for public databases containing TK, where

they can serve as a vehicle for defensive disclosure and are accessible to patent offices

worldwide as a source of prior art. WIPO is in the process of compiling a list of TK-related

databases for international patent offices and several large public databases collect TK as a

means of defensive disclosure against the misappropriation of IPRs. The benefit of both public

and private registries lies in their ability to prevent or revoke inappropriate claims of intellectual

property rights. In order to be effective in this manner, it is essential that national patent offices

are made aware of the public registry for use in prior art searches. The public registry has the

additional benefits of negating the application of intellectual property rights on TK prior to

patent approval and promoting free use of the knowledge in the public domain for everyone’s

benefit. A disadvantage of the public registry is the disclosure of knowledge to others outside the

community. When placing knowledge in the public domain, the knowledge may lose its

commercial value, limit options for IP protection for the community, and may be used by the

public without permission.

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(g) Disclosure of Origin

Disclosure of origin is one of the proposals put forward by developing nations in WTO

for protection of biological resources and TK. The applicant for patent should be asked to

provide along with the application, the detail of the country from which he borrowed information

regarding his invention, and provide the evidence to show that all legal requirements of the

particular country for access and fair and equitable benefit sharing arising from commercial use

of such resources has been fulfilled.93

Besides this, it should be shown that ‘Prior Informed Consent’ has been obtained from

the national authorities or the indigenous communities for taking and using their traditional

resources.94 And if it’s found that wrongful or missing disclosure is made then the patent

application should be rejected. Disclosure mandate is intended to facilitate the existing IP system

to address the issue of protection of TK.

DOO is based on the concept that, if origin is disclosed, then it will be easier for the

patent offices to identify any prior art relating to the subject matter of invention and thereby

reduces the instances of erroneous granting of patents. A mandatory disclosure requirement will

function both as a substantial and procedural condition on patent applicants. A requirement in all

patent laws for the applicant to disclose the source of origin of the genetic resource or associated

TK on which the application is based is argued to increase the transparency in patent proceeding

and will further facilitate the enforcement of benefit sharing principles. Developing countries

argue that CBD art 8(j) is very weak for protection of TK and hence TRIPS agreement should be

amended to include a provision for protection of TK. They have codified a draft provision for a

new article to be inserted in to the TRIPS as article 29, which summarizes all the proposals for

DOO and provides for stronger enforcement provisions.95 DOO can be used as a defensive

93 WTO Doha work programme –the outstanding implementation issue on the relationship between the TRIPS and

CBD, communication from India, Pakistan, Brazil, Peru, Thailandand Tanzania,

WT/GC.W.564,TN/C/W?41, http://www.wto.org/ 94 See generally TRIPS Council, The Relationship Between the TRIPS Agreement and the Convention on Biological

Diversity (CBD) and the Protection of Traditional Knowledge: Elements of the Obligation to Disclose Evidence

of Benefit-Sharing under the Relevant National Regime, IP/C/W/442 (Mar. 18, 2005). 95 see policy brief , south centre, mandatory disclosure of source and origin of biological resources and TK, October

2007, no 11 available @http://www.southcentre.org/

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strategy against bio-piracy. India has incorporated this principle of disclosure of origin in her

Patent laws by patent second amendment act, 2002. The newly read section 10 of the Act

provides that the applicant must disclose the source and geographical origin of any biological

material deposited in lieu of the description.

One of the limitations for this strategy is again the lack of effective documentation of TK.

Even though the origin of resources is disclosed it would be difficult to determine whether it

constitutes a prior art or not, due to nonsystematic recording of TK. This further underlines the

proposal for establishments of idea banks with international co operation.

(h) Prior Informed Consent

The Convention on Biological Diversity declares the obligation to obtain prior informed

consent for access to genetic resources. The Bonn Guidelines (2002) further link genetic

resources with traditional knowledge in the obligation to acquire in Knowledge of and approval

in advance for the use of one’s resources formed consent. Prior informed consent is the approval

in advance for the use of one’s genetic resources and any associated TK. “Prior” indicates that

the approval must come before access is allowed or others use the knowledge. “Informed”

means that information is provided on how the resource and/or knowledge will be used.

“Consent” means permission to use the resource or knowledge. Sufficient information should be

provided to a community, either by the intellectual property office, or other party, regarding the

aims, risks or implications of using the knowledge, including its potential commercial value.

Consent must be manifested in an explicit way, for example in writing, by a clear verbal

agreement, or some other means. Does a community possessing TK legally have the right to

prior informed consent if someone accesses its genetic resources and related TK and wishes to

use them? The answer: maybe. If the country where the community is located has ratified and

implemented the CBD, access to traditional knowledge should be subject to prior informed

consent of the knowledge holders under Article 8 (j). Perhaps an example is the best way to

understand how prior informed consent works. Suppose a scientist is traveling in South America

and begins to work with a community in the Amazon region. The scientist is particularly

amazed when he observes the methods used by a local community to process and apply a local

plant to heal wounds. The scientist, now aware of the genetic resource and local knowledge of

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its use, can do one of two things: he can do nothing with the knowledge or he can use the

knowledge. If the scientist does nothing, there is obviously no need to obtain prior informed

consent. If the scientist wishes to use the resource or knowledge (publish the knowledge in a

journal article, apply for a patent, etc.), he or she must obtain prior informed consent of the

appropriate national authorities if that Amazonian country has implemented the CBD. Under the

Bonn Guidelines, the local community itself should also have the right to deny access to the

resources or use of the knowledge. If the country has not implemented the CBD, the scientist is

not legally bound to obtain prior informed consent (unless some form of prior informed consent

is required under sui generis protection mechanisms. However, most scientists today agree that it

is a best practice to obtain prior informed consent for professional and ethical reasons, as well as

to avoid challenge or criticism later on.

(i) National Programmes Promoting Traditional Knowledge

In recognition of the value of traditional knowledge and the rights of local communities,

there is need for a strong national programme to recognise, protect and promote traditional

knowledge. If this is accorded its rightful high priority on the national agenda, the government

would allocate a significant budget to facilitate such a programme. The programme could

include:

Funding and organisation of research programmes in universities, government agencies,

NGOs or community organisations, to identify, record and register traditional experts in

agriculture, health care, fishing, animal husbandry, etc.

Establishing agricultural research programmes and centres for ex situ and in situ

conservation of plant genetic resources, and for developing new plant varieties, making

use of the knowledge and innovations of local farming communities, and transferring

good practices and varieties throughout the country.

Setting up or promoting herbal gardens of traditional-medicine plans.

Ensuring adequate incomes to community healers and other community experts on

traditional knowledge.

Incorporating traditional knowledge and technologies as part of the curriculum for

schools, colleges, universities and research centres.

Incorporating traditional medicine and healing arts in state-run hospitals.

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Incorporating traditional knowledge and community rights on the programme, activities

and budgets of various government ministries and agencies.

Establishing prizes and awards recognising leaders, experts and innovations in traditional

knowledge in various fields.

O. A GLOBAL TREATY AND REGULATORY MECHANISM FOR TK

A plausible measure for protection of Traditional Knowledge is to develop an

international framework for the same. This concept will get broad support from most of the

developing nations as protection at national level is of very little use beyond national borders.

This idea was first put forward by Peter Drahos,96 an Australian Jurist. Currently we have

different international organizations working on the field protection of TK, adding to this

different countries have different national legislations. This lack of uniformity has created

problems and now there is clash of legal approaches and enforcement strategies. Ultimately the

goal and purpose of regulation is lost. This is the reason for proposal of an international

enforcement mechanism for TK. A global treaty and a regulatory body like WIPO or WTO can

establish guiding principles for protecting TK and can coordinate the activities of national

agencies. A multilateral treaty is indeed a good idea it can be used to draw guidelines relating to

principles of national treatment, mutual recognition, access and benefit sharing and other areas

peculiar to TK.

Though the idea of global mechanism is interesting, it may take years to materialize such

a concept. The main impediment in enacting such a treaty is the existing differences between

countries providing and countries using TK regarding IP regulations. As a result of this another

proposal based on reciprocity has been suggested by Paul Kuruk.97 According to this view

though the concept of a single international instrument is not feasible for the time being .It is

possible to make bilateral agreements between TK source countries and the user countries

specifying that what kind of TK is protected and what form of protection is guaranteed. Also it

is possible for making regional agreements between groups of nations. The Swakopmund

protocol on the protection of traditional knowledge and expression of folklore, entered by

96 Peter Drahos, A Networked Responsive Regulatory Approach to Protecting Traditional Knowledge, 97 See Paul Kuruk, Bridging the Gap between Traditional Knowledge and Intellectual Property Rights: Is

Reciprocity an Answer?, 7 J.WORLD INTELL. PROPERTY 429 (2004).

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Countries of African region under African Regional Intellectual Property organization (ARIPO)

can be considered as an example of such regional agreements. Group of likeminded Mega

Diverse Countries (LMMC) is another example of this concept, they have identified some

common issues on biodiversity, IP and TK and are working for a mechanism for consultation and

cooperation, so that their interests and priorities related to bio diversity and indigenous

knowledge is protected.

Though these initiatives are in existence it is still not an easy task to arrive at an

international treaty or an agreement based on reciprocity considering the commercial value of

TK based products and levels of protection that is to be given.

(a) Equitable Benefit Sharing

Benefit sharing is actually a theme that runs through all facets of TK protection. CBD

was the first international initiative to recognize the concept of access to genetic resources

coupled with sharing of benefits. According to the principle of benefit sharing, the TK holders

are entitled to receive an equitable share of benefits that arise from use of TK, which may

be expressed in terms of compensatory payments or other non monetary benefits. The concept of

benefit sharing is appropriate in situations where exclusive property rights are considered

inappropriate. It is believed that the benefits accruing to communities enable them to continue

their lifestyle and thereby can help in preservation of TK.

Globalization demands access to resources, no nation can shut their doors to this global

reality. TK if kept as such will be of no use to the community. It needs transformations to give

results carrying commercial value, but the indigenous communities lack the technical knowhow

to bring this change to their valuable knowledge. A system which permits access to its resources

along with provision for benefit sharing is a need of the hour. MNC’s and others engaged in

research have money and technological advances which indigenous communities lack. It is better

to allow them to access the resources and take an equitable benefit accruing from it.

Developing nations have recognized the need for a benefit sharing system and has

incorporated this in their national legislation. In India both the Protection of plant varieties and

farmers rights Act and the Biological Diversity Act prescribes for an efficient benefit sharing

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mechanism. But it is a fact that this national mechanism finds it difficult to deal with Trans-

boundary situation which further highlights the need for an international regulatory mechanism

providing for access and benefit sharing.

P. CURRENT STATE OF NEGOTIATIONS

So far IGC has come out with various studies and have documented the views of states

and indigenous communities right to protection of TK. IGC meetings have always resulted in

divergence than convergence when it comes to the matter of protection of TK. The prima facie

reason for this is the difference between the developed and developing nations relating to TK.

Working groups of IGC is currently working on a consolidated text for TK protection and on the

proposal of mandatory disclosure requirement and defensive databases.98 Besides this IGC is

asked by WIPO general assembly to submit a text of an international document to protect TK,

TCE and GR. IGC has also prepared draft proposals and guidelines for protection of TK and

TCE. It is expected that during the current budgetary biennium IGC will come up with an

international text for protection of traditional knowledge and genetic resources. Even if IGC

comes up with model laws on misappropriation of TK it is not sure that it will be accepted by all

states due to ongoing differences between TK providers and users.

At TRIPS council, developing nations have already made proposals for amendment of

TRIPS agreement and introduction of mandatory disclosure requirement. Various commentators

are saying that the amendment of TRIPS is not going to happen in recent years as a much

broader consensus is required for reaching such a stage. Besides this the mandate given by Doha

ministerial declaration is not yet fulfilled. As a matter of fact, the issues of TK and access and

sharing are not receiving equal importance when compared with issue of access to medicine or

agreement on agriculture.

Although there are setbacks developing nations continue to use TK as a bargaining issue.

They are pressing for discussions at IGC for a misappropriation regime that can be implemented

at the national level. Along with this there are various regional initiatives of developing nations

currently engaging in discussions on cooperation and consultation regarding protection of TK.

98 See matters concerning the IGC on IP , GR and TK, 20th ordinary session report, WO/GA/40/7.

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(a) What should we negotiate?

In concluding this chapter, two important questions arise in international negotiations that

need to be considered carefully. First, should efforts be devoted to developing a national sui

generis system in order to gain experience that makes it easier to determine what a workable

international solution should look like and second, how might concerned countries overcome the

limitation with national sui generis systems to protect TK, which is that they will have no extra-

territorial effect?

There may be a way out of this problem. If a group of concerned countries decide to act

strategically as a group, some interesting possibilities could emerge. Members of such a group

could agree upon harmonised standards and then apply the reciprocity principle so that

protection of TK would only be extended to nationals of other members. Other interested

countries should also be able to join subject to their enactment of similar legislation. As a new

category of intellectual property not specifically provided in TRIPS, the members would

presumably not have to comply with the most-favoured nation (MFN) principle. This seems like

a good way to move forward. Concerned countries should not wait for solutions to emerge from

Geneva. Rather they should also collaborate among themselves.

There are precedents for adopting the reciprocity principle in place of MFN. In fact, the

developed countries have been the main precedent-setters. The 1978 Act of the UPOV

Convention even more explicitly allows members to apply the reciprocity principle. According

to Article 3, any UPOV member “applying this Convention to a given genus or species shall be

entitled to limit the benefit of the protection to the nationals of those member States of the Union

which apply this Convention to that genus or species and to natural and legal persons resident or

having their registered office in any of those States.”

In conclusion, the following list of key points is provided for the consideration of

negotiators and policy makers:

Act on the understanding that different countries have varied interests and concerns in

respect of traditional knowledge and technologies and also that their positions may be

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based on quite different assumptions and ideological standpoints concerning traditional

knowledge (TK) and technologies and TK-holding groups.

Urgent as it is to respond to the loss of TK, do not expect early solutions to this issue.

Devising workable measures and achieving consensus on their adoption will take a long

time given the complexity of the issue, the stakes involved and the conflicting interests of

the various “stakeholders”.

Avoid or discourage protracted discussions on the applicability of existing IPRs to

traditional knowledge, technologies and cultural works and expressions, and on the

“need” to define traditional knowledge and technologies first before solutions may be

formulated.

Conduct studies to estimate the costs of implementing proposals or measures to protect

traditional knowledge and technologies and weigh these against the benefits that can

realistically be gained before deciding to actively pursue them in international forums.

Ensure that national policies and multilateral-level negotiating positions and strategies are

consistent, coherent and mutually supporting.

Encourage the active participation of traditional knowledge and technology holders and

traditional communities in both the formulation of national policies and of multilateral

negotiating positions.

Place the interests of indigenous peoples and traditional communities at the centre of all

negotiating strategies on traditional knowledge and technologies.

Q. CONCLUSION

Despite the growing body of literature and the involvement of several international and

nongovernmental organizations in the study and debate of issues relating to the protection of TK,

slow progress has being made at the national level for the design of specific regimes on the

matter. The problems at stake are very complex and any legal solution should respond to the real

needs of the intended beneficiaries.

The review of some of the laws and policies adopted or proposed so far indicates that a

diversity of approaches has been followed. In fact, the protection of TK may be addressed under

different regulatory models and pursue different objectives. Obviously, the nature and

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complexity of the problems and the diversity of objectives that may be pursued call for a

combination of rather than for a single type of policies and measures

IP rights are given with a purpose to reward the innovators of new scientific inventions or

any creative work and there by promoting development in the world. IP rights promote growth

by leveraging ideas and knowledge into economic assets. As we have seen already traditional

communities posses considerable knowledge which within itself retain vast amount of

commercial and economic value. The current IP regime fails to provide any rewards to the

community based knowledge which is available in the public domain. TK is essentially

culturally orientated so its preservation is integral for cultural identity of the community which

preserves these knowledge for years.

The era of globalisation has witnessed blatant misuse of TK and granting of patent for

TK based products without giving importance to interests of indigenous communities. Bio piracy

and other patenting of innovations based on TK have posed a challenge before the existing IP

regime. The disparity in wealth between the knowledge holders and the beneficiaries of that

knowledge highlighted the need for protection and prevention of misuse of TK. Issue relating to

protection of TK is very wide, a single solution can hardly be expected to meet such a wide

range of concerns and objectives. There are two distinct options for the TK possessors and

practitioners, either TK should be protected in a positive way which prevents evasion of

knowledge of indigenous communities or by allowing access to indigenous knowledge and

making effective mechanism for benefit sharing and compensation.

Protection of TK indicates making TK the sole property of its practitioners and thereby

denying grant of IP rights on TK based products and thus facilitating transmission of knowledge

to future generations. But this kind of restrictive approach is not useful for the development of

the society. TK within itself encompasses lots of commercial value, which when properly

changed can be used for the development of humanity. But we know that traditional community

lack technological development to facilitate the change of TK into commercial products.

Protection of TK per se offers benefit to the community as a whole only if the said TK is

developed to reach a point in which the said TK is capable of generating commercial value. In

this context the second option is better for the interest of the society as a whole. It promotes the

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commercial potential of TK and permits patents or a quasi license on development made on the

knowledge available in public domain. Such a system will also provide for equitable and fair

sharing of benefits between the beneficiaries and the practitioners who provided the fundamental

knowledge. The compensation so received can be used for the development of the community

who provided the knowledge, which in turn facilitate the all round development of the society.

Considering the wide variety of knowledge that is encompassed within the subject matter of

traditional knowledge it is important that the sui generis system should have sufficient flexibility

to fit these myriad forms of knowledge. At the same time, the new legal regime should not

override the existing traditional methods of protecting TK. This flexibility can only be achieved

by having a procedural setup in which every TK is dealt with individually by giving sufficient

decision making power to the community and allowing unique access and benefit method to suit

that TK. This would create machinery that allows case by case determination. Whatever the

model of protection is, in designing any regime for the protection of TK it should be

acknowledged that “indigenous people posses their own locally-specific systems of

jurisprudence with respect to the classification of different types of knowledge, proper

procedures for acquiring and sharing knowledge, and the rights and responsibilities which attach

to possessing knowledge, all of which are embedded uniquely in each culture and its language.

Any attempt to devise uniform guidelines for the recognition and protection of indigenous

peoples’ knowledge runs the risk of collapsing this rich jurisprudential diversity into a single

“model” that will not fit the values, conceptions or laws of any indigenous society”. The

possessors of TK hold a moral right to their knowledge. But while saying this we should not

forget that developments of indigenous communities are a must requirement for the development

of a country. TK if kept secret and not shared will continue to be a non economic entity.

Sacrificing economic development of the society in the name of protection of moral rights of a

particular community is not a justification. Thus main concern of protection of traditional

knowledge should be regarding sustainable use of indigenous knowledge and benefit sharing.

Efforts should also be taken for the promotion of TK. Here promotion indicates harnessing of TK

for trade and development. Many of the indigenous communities depend upon TK for their

survival and thus any measures that can strengthen and develop this base of knowledge will

facilitate the movement of these communities along a fixed path of development. Given the

diversity of possible approaches and the need to respond to different cultural and ethnical

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realities, a unique model for the protection of TK is unlikely to emerge in the near future. This

may make it difficult to develop international rules on the matter, unless they focus on very

specific objectives and issues, such as preventing misappropriation. Reciprocity, as established in

some regulations, may provide the basis for an extra-territorial recognition of TK protection, but

to a limited extent given the diversity of modes of protection and the nature and scope of rights.

An international system may be more realistically based, at least in the short term, on a basic

agreement on some essential elements of TK protection and the mutual recognition of the

regimes in force at the national or regional level.