SSRN-id2012724.pdf

Protection of Traditional Knowledge: International and National Initiatives Initiatives and Possible Possible ways ahead

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Electronic copy available at: http://ssrn.com/abstract=2012724

Introduction Around the world, various local communities possess knowledge and practices gained by them through experience of centuries and transferred from generation to generation. This culturally transmitted knowledge is referred to as traditional knowledge. Traditional knowledge is the result of intellectual activities in diverse traditional contexts. The term “traditional knowledge” is a very broad concept, which encompasses within itself indigenous knowledge related to various categories like agricultural knowledge, medicinal knowledge,  bio  bio diversity diversit y related knowledge know ledge as well as expressi express ions of folkl olk lore in the for m o f music, music, dance, songs, handicraft, designs etc. It has played and still plays an important role in the life life style of indige indige nous communities. Traditional knowledge is capable of providing clues for making commercial products which can be used for the benefit of mankind. 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 susta sustain in in way wa ys consistent with their own va va lues and inte inte rests. There is a growing recognition for traditional knowledge and traditional cultural expression. Traditional knowledge have 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  princ  princ iples of o f right to to self determin deter minat at ion and right r ight to development. Knowledge both modern and traditional are under peril in the age of Globalisation. 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. International community realises that national initiatives alone are incapab incapab le for TK protection . World nations are c urrently eng e ngaged aged in extensiv extens ivee discu disc uss ion on preserv preser va tion o f tradit traditional ional knowl know ledge under variou ario us internati internat iona l institutio institution ns This paper 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.

Methodology The methodology used is purely doctrinal. The relevant material is collected from primary and secondary sources. Material and information are collected from various National enactments and internati nternat ional instruments, lega l & other sources like pub publi lished shed works, law journals journals , nat natiional journals, and websites on relevant topics.

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Electronic copy available at: http://ssrn.com/abstract=2012724

Definition, Nature and Scope of Traditional Knowledge 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 holds1 . The debates for a single definition for traditional knowledge were always without consensus. As subject matter here is very dynamic in nature it should be taken care that its definition does not delimit or restrict its scope. Broadly Broadly speaking aro und und the world world there are certa in c umulative umulative body bod y of knowledge knowledge which is handed down through generations through cultural transmission; this is known as traditional knowledge 2 . As per the official definition of WIPO 3 traditional knowledge is tradition-based tradition-based literar literary y, arti art isti st ic or scientific works; works; performances; inventions; scientific discov disco veries; er ies; designs; des igns; ma rks, name name s a nd s ymbo ymbols; ls; undisclosed information; informat ion; a nd a ll o ther tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”Tradition based” here refers to creations, innovations, and cultural expression which have been transmitted from generation to generation.TK is the part of cultural identity of indigenous communities. It provides the ways by which human society can survive in current hostile environment. Intertwined within practical solution, they transmit transmit history, his tory, beliefs, aesthetics, ethics and traditions trad itions of particular people. One can say that TK permeates into wide regimes of human interest like agriculture, bio diversity and medicine to say a few. It has a distinct character of its own which it inherits through cultural transmissions. It is the knowledge originated from a local or traditional community that is the the res ult of intellectua intellectua l act ivity and insight ins ight in a traditiona traditiona l contex conte xt, includ includ ing know how skills, innovations, innovations, practices and learning embodied in the the life life styl st ylee of a 4 community . It is the collective property of the society derived from generations and is used  by the indige indigen nous communities in their interacti interact ions with w ith each other. It inclu inc ludes des a ll knowledge knowledge and practices which we apply in diverse facets of life. TK is subjected to a continuous  process of verifi ver ificat cat ion adaptions an a nd creation through c hanging social socia l conditions.TK is part. 1 see srinivas Krishna Ravi, Traditional knowledge and intellectual Property Rights: A note on issues, some solutions solutions and some s uggestion uggestion – Page 3 , available a t SSRN www.ssrn.com/abstract1140623 2 Berkes, F., 1999, Sacred Ecology, Taylor and Francis cited in World Intellectual Property OrganisationIntergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and

Folklore, 2002, “Traditional Knowledge: Operational Terms and Definitions ”, WIPO/GRTKF/IC/3/9, Annexure 2 3 Information note on traditional knowledge prepared by International Bureau of WIPO available @WIPO/IPTK/MCT/02//INF/3 4Swapokmund Protocol on protection of traditional knowledge and expressions of folklore within the fram fram e work of ARI PO,2010

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of a collective, ancestral, territorial, cultural and intellectual heritage. This knowledge is established established on t he basis of past obser vations and experiences. It is diverse in natu nat ure, individuals, groups or communities may be their custodians. In fact this knowledge that is handed down through generations can provide for social cohesiveness and cultural identity Traditional knowledge is “traditional” only to the extent that they are part of cultural traditions of a particular society. It does not indicate that knowledge is static or ancient. It is representative of cultural values of people which was derived b y years years o f practices. pract ices. Often TK is equated with the term indigenous knowledge. But this view is not correct. Ind Ind igenous igeno us k no wledge is a part of TK, but both bo th are not the same.TK sa me.TK in its va va rious forms ha ve fulfilled the needs of local and indigenous people in different ways. The context of TK and its forms of expressions varies significantly.TK holders have an unwritten corpus of long standing customs, beliefs, reliefs, rituals and practices that have been handed down through generation unlike Indigenous knowledge holders who has to claim for a prior territorial occupancy5 . Thus indigenous knowledge is a subset of TK which is not different from the latter, except e xcept that tha t the ho ho lders der s he he re are ind ind ige ige nous peop le belonging to a partic partic ular area and other holders include even non indigenous people embodying traditional lifestyle. Some forms of TK is and passed to successive generations through oral tradition.TK may be  possessed  possessed b y so me individuals individuals or by so me members em bers of a particular group or be a va ilable ilable to all members of the community (common knowledge).TK is evolving as a response of individual individual a nd comm co mmunities unities to the challenges posed b y their their social soc ial environment . TK when when modified an a nd enriched becom beco me va luable luable kn k no wledge wledge whic h can ca n be used for commercial exploitation. In recent years there have been recognition and appreciation of TK  by sc ie ntific community. Sc ientists now realise that the a mount of knowledge possessed po ssessed by indige indige nous communities, when proper proper ly utilized utilized ca n lead to innovat innovat ions of comm co mmercia erciall value. 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. 5 Ibid

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Need for Protection of Traditional Knowledge Anywhere in the world people need protection of their properties; tangible property can be easily protected, but the case of intangible property is different. They require some more effective mechanisms like patents, copyrights, trademarks, geographical indicators etc. These mechanisms can be effectively used to protect individual‟s intangible properties. Question that is raised is whether this mechanism is useful in protection of properties owned by the communities. Challenges to TK are diverse and far reaching and involves many areas of law and policy which is even beyond the expansive view of intellectual property. Indigenous people have an immense understanding about their complex ecosystems,  properties  properties of plants and anima anima ls a nd regarding the techniques of using them based on their living close with nature for centuries 6 . 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 have witnessed the conversion of collective knowledge of the society into proprietary knowledge of a few.

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 surviv sur vival al o f these these communities. Th T he modern indu ind ustri str ies are now a day‟s exploiting indigenous knowledge without permission or sharing of pr ofit pr ofit with these communities7 . 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 unjust and unequal relatio ns. 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 8 . If TK is having a high economic potential, then its prospects should be 6 statem statem ent made by Frederico Mayor, Forme r Director Director G eneral UNESCO 7 see Tripathi SK In tell tellectu ectua a l property and gene tic resources, resources, traditional Kno wledge Folklore Folklore : International, regional and national perspectives, trends and strategies, Journal of intellectual property rights, vol 8, pages pages 468 -477 8 see correa carlos M, Traditional Knowledge and intellectual property , property , pages 6 and 7, available @www.geneva.quno.info

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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.

TK is dynamic in nature and it used to change according to the changes that take place in the society. Process relating to formation of TK may not be documented in a way scientific and technologica technologicall informat informatiion are recorded9 . This non systematic manner of recording has been a great concern in giving recognition to TK. Patents have been granted to non original innovat innovat ions which w hich are already a part of traditional t raditional knowledge.

Bio-piracy: In recent years patenting of traditional knowledge based prod ucts have been a great concer n. TK based products were given patent even ignoring the novelty and inventive step when compared with relevant prior art. This use of TK as a basis for making products of commercial value, which are then patented without sharing any benefit with the source of the TK is termed as „bio„bio- pi  p irac y‟. It is the t he appropriation approp riation of o f th t he k nowledge ow ledge an a nd ge neti et ic resources of farming and indigenous communities by individuals or institutions seeking exclusive monopoly over these resources and knowledge 10 .

Bio piracy can be described as grant of wrong patents to invention that are neither novel nor inventive having regard to traditional knowledge already in public domain. Such patents may  be granted due to the lack of o f doc umenta umenta tion or recogniti reco gnition on of TK a s a prior a rt. Bio p iracy may also happen in cases where patents are granted according to the existing national legislat legislations ions which which does not recognize certa certain in for for m of public disclo disclo sure as prior art as in the the case of USA11 . Bio Bio piracy has now emerged as a ter m to describe th t he free ride of o f corporation corporatio ns of developed nations over the genetic resources and traditional knowledge of developing countrie countrie s. Bio piracy p iracy is is thus misappropriation misappropriatio n of genet genetiic resources r esources or related TK through the 9 varkey Elizabeth, Law of patents patents given by the Ac tion Group o n Erosion, Technology and Concentration (ETC group) 10 definitions given

11 See Shiva Vandana, Monsanto’s Biopiracy, available at  http://www.countercurrents.org/enshiva270404.htm

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 patent system. Bio p iracy is not ju j ust a matter atte r o f law it is o ne o f morality morality a nd o f fairness. It is more like exploitation of resources of a community which lack development. Biopiracy can  be regarded regarded as double theft becau beca use firstly it a llows thef the ft of creativity creat ivity and innovation and secondly it establishes exclusive rights on stolen knowledge and steal economic options of ever ever y da da y surviv sur vival al o f indigenous commun commun ities on th t he bas is of th t heir comm co mmon on knowledge 12 .But we must must no te that such cases case s of grant grant o f wro wrong ng patents pa tents and a nd their the ir s ubsequent revocation revoca tion had had led to more debate in this area and thereby development of new initiatives like Traditional know knowlledge digital libraries which provides for documentation of TK . Now we can describe some of the cases relating to Biopiracy in detail.

Case of Turmeric ( Curcuma longa) Turmeric is a plant o f ginger ginger fa mily whose rhizom rhizo me s are used as spice spice for flavoring Indian India n cooking. Along with this it has properties that make it an effective ingredient in medicines cosmetics e.t.c. As a medicine it is used to heal wounds and rashes. In 1995, two expatriate Indians were granted a US patent (NO 5401, 5041) for using turmeric to be used as a medicine for wound healing13 . The The Coun C ouncil cil of Sc ientific ientific a nd Industrial Research Researc h (CSIR) (CSIR) filed 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 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 o n TK was successfully challenged.

C ase of N eem( A zadi r achta I ndi ndi ca )  Neem ie a zadiracht indica indica is a tree found in India a nd other parts of Sou So uth and Southeast Asia. It is famous for its properties as a natural medicine, pesticide and fertilizer. Neem extrac extrac ts can be used ag a gainst hundreds of pests an a nd fungal fungal d iseases that attack crops ; oil

12 see vandana Shiva, The US patent system Legalizes Theft and Biopiracy , Biopiracy , The Hindu, Wednesday, July28, 1999 13 see slack Alyson, Turme ric, available available at http://www1.american.edu/ted/turmeric.htm at  http://www1.american.edu/ted/turmeric.htm

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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 patent (EPO Patent No 436257) 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 an a nd revoked the pate nt14 .

Case of Ayahuasca( Banisteriopsis caapi) Shamans the indigenous tribals of Amazon basin were using the bark of B. Caapi to Caapi to produce a ceremonial drink known as “ayahuasca” for generations. “Ayahuasca” means wine of soul and is used in religious and healing ceremonies to diagnose and treat illness. An American national Loren Miller obtained a US plant patent ( Patent no 5751 15 , issued in 1986) granting him rights rights ov o ver a n a lleged lleged variety of B.Caapi B.Caapi which  which he had collected from a domestic garden in Amazon and was named as “Dä Vine” , which was peculiar for   for   its medicinal properties. But in this case “Da Vine” represented a new and distinct variety of B. caapi  caapi  because of its flowe flowe r co lour.

The coordinating Body of Indigenous Organizations of Amazon basin which represents more than 400 indige indigen nous tri tr ibes in the Amazon region, along with others protested against granting rant ing of wrong patent for B.Caapi. B. Caapi. T  Th he y made argume argume nt that that a yahuasca that had been known to to th t he natives of Amazon basin for its medicinal uses. This argument was accepted and on re examination USPTO revoked this patent on 17 t h April 2001.

The case of jeevani drug and Basmati rice are two other cases where the patent granted on TK based products were successfully challenged.

14 see India wins neem patent case , reported in Hindu m arch arch 8 2005 15 see http://www.rkdewan.com/pdfs/otherPatents/

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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 re fers to a ny published content a vailabl ailab le in th t he p ublic do ma in bef be fore the filing filing date da te of a patent application. Normally before grant of patents an extensive search for prior art is  performed by t he concerned patent offices.TK whic whic h is orally transferred and and preserv preser ved 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 know knowlledge of indige indige nous communities.

Another reason which points out that current IP system is inadequate to protect TK is that it is  based on individua individua l pr iva iva te propert property y rights an a nd Traditional Traditiona l knowl know ledge o n the other ha nd rests res ts on collective creation and ownership .Besides this the term “protection” under present I P 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 exclus exclusiv ivee r ights ights of a part icular individual individual they are often o ften shared betw be tween een t he soc ial group, thus we can say th t hat th t here is an inherent difference betwee n curren curre nt IP protection and 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 pate nt whi w hicc h can used to p rotect collective knowledge of the society. This la cking of provisions for community patent has led to the question of who can be the owner of  patents,  patents, based on TK and and how benefits benefits inc inc urring rr ing from from such s uch paten pate nts can ca n be d istri str ibuted among the societ societ y who are in fact the own ow ners of that k nowledge.

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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 an a nd errors. Also A lso TK as su s uch may ma y not not be having any a ny commercial application applicatio n, it indeed requires certain changes. So we can see that existing patent system is incapable of giving  protectio  protection n to TK as there is an a n essenti essent ia l differen differe nce between both the concepts. concepts.

A sui generis system, which provides for sustainable use and benefit sharing, is essential for  protectio  protection n of TK.

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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 communities for use of TK 16  while on the other hand CBD and FAO had undertaken studies relating to common areas in agriculture. Issue relating to TK is also discu disc ussed in arenas arenas rel re la ting to rights of indigenous people and cultural cultural ex e xpressions. pressi ons. O f course the role of different organization in framing a policy significantly varies from each other.

C onventi nventi on on on B i ologi cal cal Di D i ver ver si ty The convention on biological diversity (CBD) was the result of discussion concluded at Rio de Janerio Janerio on United nation atio ns conferen confere nce on o n earth an a nd developm develop ment (Earth ( Earth Summit), Summit), 1992.Th 1992.T he convention provides for protection of environment without compromising with the ongoing economic economic de velopm elop ment 17 .The .The conv co nvent entiion provide p rovidess for recognition of o f knowledge knowledge of loca l and 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 utilizatio n of such knowledge , innovations an a nd practi pract ices ”.

16 see wipo statement to cte an d trips coun cil, cil, wt/cte/w/182, wt/cte/w/182, 6th February 2001 17 r adair, the bio prospecting question: the commercial commercial use of public wild genetic resources resources 1997,  1997, ecology law quarterly, quarterly, at pag e 131 –  131 –  142.  142.

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CBD can be regarded as the first international initiative to recognize the contribution of indigenous and local communities in conservation of biodiversity 18 . 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) 18(4) defines tec hnology hnology to include “indige “indigen nous and traditi trad itional onal technologies”. te chnologies”.

Art Art 8(j) is not free from fro m limitat limitations, ions, the said said article art icle does not talk about protection of o f TK TK bu b ut 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  “as  far as  possi bl  b le” in art 8 (j) indicates that the convention does not makes a mandatory requirement about protect protectiion of o f rights of indige indige nous communities 19 .

Though there are flaws, CBD has the most important place as an international instrument which which officia lly recognized recognized the rights of indigenous communities.

T r ade R elated lated Asp A spe ects of of I ntell ntell ectual tual pr oper ty R i ghts ( T R I P S agr eement) TRIPS agreement also has some provision which can be applied in a limited way for  protectio  protection n o f traditional traditional knowledge. Article 1 of TRIPS Agree Agree ment p rovides rovides that members 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  provisions of this t his agreement. Ma ny Juri Jur ists have op ined ined t hat this provision can be invoked for  protectio  protection n of TK. They argu ar guee that absence o f term TK in the the a greemen reeme nt does not p revent any member from enacting any provision for protection of TK 20 .

18 see the bio diversity convention: the concerns of indigenous people( 1998) people( 1998) Australian indigenous law reporter reporter pag e 38 , av ailable @ www.austlii.edu.au/cgi-bin/disp.pl/au/journals/alir/1998/3\ 19 see Mugabe. J & Kameri P , Traditional Knowledge, Genetic Resources and Intellectual property  protection: Toward a new international internationa l regime,   prepared by International Environmental law research Centre, Centre, availa ble @ www.ielrc.org/content/w0105.pdf  20 see Dutfield, Can the TRIPS Agreement Protect Biological and Cultural Diversity ? Diversity ? Available @ www.wipo.int/cgi-bin/koha/opac-detail.pl?bib=24572

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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 industr industrial ial applicat ion. But these a ttributes cannot be app lied in the field of TK, as it is not new and is incapable of industrial application as such 21 . 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 22 . TRIPS agreement by itself does create any measures for  protectio  protection n o f traditional traditional knowledge a nd innovat innovatiions of indige indigen nous people instead instead it creates measures for establishing alternative measures for its protection23 .

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 public or morality, including to protect human, animal or plant life or health or to av a void seri ser ious pre judice judice to the envi e nvironment. ronment. The notions of ordre public are public are not defined in the agreement. However it is clear that those inventions that causes injury to environment environment as well as pla nt or a nimal nimal life can be excluded. excluded. It has been argued that states can use this provision for the protection protec tion of biological diversity associated with w ith the indige indigen nous communities. communities. Artic Articlle 27.3(b) of o f the the TRIPS states t hat the me mbers mbers sh s hall pro vide for  protectio  protection n of plant varieti variet ies e ither by b y way wa y o f pate nts or by an effective sui generis system.

Besides this there were lots of discussions regarding TK protection at the TRIPS Council. These These initially took pl p la ce in the context of implementation of Art 27.3(b). The fourth mee mee ting 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 Council to examine t he relatio nship between betwee n the TRIPS Agreeme nt and CBD and also the  protectio  protection n o f trad ition tio nal k nowl ow ledge and folkl olk lore 24 . TRIPS has left out from its purview the matter matter of o f protect ion of natu nat ural assets a nd assoc iated know knowlledge which w hich are owned by nation

21 see Mugabe John ,Intellectual , Intellectual property protection and traditional knowledge , page 14 –   17available@ www.wipo.int/tk/en/hr/paneldisscussion/pdf/mugabe/pdf  22 see varkey Elizabeth , Traditional Tradi tional Knowledge Know ledge - The changi ng scenario in India , available @ www.law.edu.ac.uk.ahrb/publication/varkey/htm 23 see art 24(3) (b) of TRIPS agreement “Members shall provide for the protection of plant varieties either by patents or by an sui generis generis or by any co mbinations mbinations thereof 24 see http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm

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states, communities or individuals. On a whole we can say that conventional intellectual  property  property laws under under the TRIPS

does not consider TK as intellectual property worth

 protectio  protection n though pa tentabil tentability ity of products or process using traditional knowledge know ledge poses a number of questions.

T he I nter nter nati onal conve conventi ntion on for for pr ote otecti cti on of of new var var i eti es of of plants plants (U P OV Convention) The UPOV convention is an international convention exclusively dealing with protection of ne w plant plant varieties an a nd is silent s ilent on the the s ubject of traditional knowledge a nd gen etic resources. However it does not forbid granting or creation of rights in respect of TK 25 . 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. breeding.

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 These provisi provis ions can ca n be invoked invoked as a defensive de fensive strategy strate gy for the the k nowl ow ledge of o f ind ind igenous communities relating to plant varieties as to grant IP protection the convention specifically  provides  provides it to be distinct and novel26 .

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 fac ilitate ilitatess the 25see Green Green grass Barry, Plant variety protection and protection of traditional knowledge, knowledge , available @ www.unctad.org/trade/_envi/docs/unpov.pdf 

26 see guidance for preparation of laws based on 1991 Act of the UPOV convention, available http://www.upov.int/export/sites/upov/en/publications/pdf/upov_inf_6_1.pdf 

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applications of small plant breeders. Accordingly UPOV system can be used as a tool for  protecting  protecting plan pla nt var ietal eta l innovat innovatiion of indige indige nous communities 27 . 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 indige indige nous communities.

U N D eclarati larati on on on Ri R i ghts gh ts of I ndi ndi genous genous pe per sons sons UN declarat declarat ion on Right R ightss of I ndige nous person perso ns was adopted b y UN genera genera l assembly during its 62 session sessio n on 13t h September 2007.Though a General assembly declaration is not a legally  binding  binding instrume instrumen nt, this dec laration can ca n be regarded as a d yna yna mic de velopment 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  partie  partie s to make mechanism for prevention an a nd redress o f a ny ac tion whi w hicc h has the effect e ffect o f depriving indigenous people of their integrity or their cultural values or identities 28 . Art 24 recognizes the right to their traditional medicines and provides for conservation of their vital medicina medicinall plan pla nts animals and minera ls.

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. This declaration is indeed a dynamic measure of international legal norms regarding protection of TK and also it nece necess ssitates itates the need need for an intern inter natio nal trea treaty ty for for protection protec tion o f TK.

27 see www.un.org/esa/socdev/unpfi.documents/FAQsindigenousdeclaration.pdf  28 see see Art 8(2) (a) of UN declaratio declaratio n on Rights Rights of Indi Indi genous genous p ersons ersons

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N agoya agoya Pr otoc otocol ol on A ccess ccess to g eneti neti c R esour sour ces ces and the F air ai r and E qui tab table  Shar  S har i ng of B enef enef i ts ari ar i sing si ng F r om thei r U tili ti li za zati ti on 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 define the terms for access to genetic resources, resources, their utili ut ilizat zatiion a nd fair an a nd equitable sharing of ben be nefits fro m suc suc h utilizat utilizat ion. Though the main objective of this protocol is to ensure fair and equitable sharing of benefits arising out of geneti enet ic resou reso urces a nd to provide for appropr iate access acc ess to geneti enet ic resou reso urces an a nd transfer of technology for protection of biodiversity, it has many provisions which can be useful for the protection pro tection of indige indige no us k nowledge 29 . 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 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 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  protocol emph emp hasizes on the need for development of a global multila multila teral benefit shar ing mechanism providing for fair and equitable benefit sharing associated with TK related ge ne tic resources which occurs in trans trans boundary situations wh w here is not possi poss ible to take prior consent of the community30 . Protocol asks it parties to ensure that their national legislations  provide  provide for support and developme developmen nt of those indige indige nous communities. communities.

WIPO -The Intergovern Intergovernm me ntal Committee Commi ttee on Intelle Intellectual ctual Pro Pro perty Genetic Resour Re sources ces and Traditional Knowledge

In 2000 the WIPO General assembly established the IGC as a forum for discussion of intellectual property issues in relation to access to genetic resources, benefit sharing and  protectio  protection n of traditional traditiona l knowl know ledge and expressions of folklore. It acts as an inter nation atio nal

29 http://www.rona.unep.org/documents/news/Press_Release-2010-03-28-ABS9.pdf  30 see 30 see article 10 of Nagoya protocol

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forum for international policy debate, development of legal mechanisms and for creating  practical tools for protection protectio n of traditional knowl know ledge and traditional c ultura ulturall expressions express ions against misappropriation and misuse. IGC work has produced large number of discussion  papers on o n the su s ubject of p rotection of TK.IGC has produced p roduced a number number of prac tical o utcomes 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 re vision vision of inter intern national patent c lass ifica ification tion to c ontain categories o f TK  TK 31.

The The committee has made substan substa ntial tia l prog pro gress in addressing address ing the the practical pract ical linkages 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. knowledge.

Besides all these international initiatives last decade has witnessed many regional initiatives for laying down do wn meas meas ures for protecti protect ion of TK. African African co untries untries under Orga nisation 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  provisions on access to biological resource resource s make it c lear that the recipi recip ients of biological biologica l 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 32 . Thus in practice this model legislation intends to create a system which allow the community, right to prohibit access to to th t heir va luable luable resources re sources a nd knowled ge.

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 31 This summary is taken from ‘ Overvie Overvie w of Activities and Outcomes of the Intergovernment  Intergovernment al Committee’, WIPO/GRTKF WIPO/GRTKF /IC/5/12, April 3, 2003. 32 k see the model legislation available at http://www.opbw.org/nat_imp/model_laws/oau-modellaw.pdf 

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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 o f TK. It also also provides for the rights and recognition reco gnition of ho ho ld ers of TK, TK, concept concept of o f equitable be ne fit shar ing, ing, licensing lice nsing e tc.

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 s tressed on the need for an efficien efficie nt be ne fit shar ing mechanis mechanism m33 .

33 see http://gt.chmhttp://gt.chm-cbd.net/Members/e cbd.net/Members/eso so lor lorzzano/d ocum ocumentos entos /pai /paises ses -m -megadiversos egadiversos lmmc/Cusco%20Declaration.pdf 

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Indian initiatives for protection of Traditional Knowledge To deal with issues pertaining to protection of Traditional Knowledge Indian parliament had enacted enacted the followin fo llowing g three legislations :

P r otect tectii on of of Plan P lantt va var i eti es and and F ar mer s Ri R i ght Ac A ct,2001(P t,2001(PP P F R A ct) ct) 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 k nowledge about each eac h variet variety y o f crops. crop s. This inc inc ludes k nowledge about seeds suitable for specific seasons, soils, and even pests. Patenting of seeds, plant varieties and species spec ies a re not not a llowed under TRIPS, TRIPS, but Arti Art ic le 27(3) 27(3 ) a llows the the me me mber countries co untries to make a sui generis system for protection of plant varieties .Accordingly India enacted a sui ge ne ris system syste m in 2001 in the na na me of The The Protection of P lant Varieties a nd Farmers rights Act. Act. Though Though th t he Act is primar ily based based on In I ntern ter nation atio nal Convention for for protection pro tection of ne w 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.  plants.

The objectives of this Act as explicit from its title are IP protection of plant varieties and  protectio  protection n 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 which in turn will pave way for for accelerated acce lerated agricultural growth.

Breeder‟s rights over the varieties developed by him are protected by this legislation. Under the Act Act a breeder can ca n register regis ter his variety a nd beco me a PBR holder. older. A ny perso n can register regi ster a community‟s claim over a particular breed. This intervention, in practice enables the  protectio  protection n of pla nt varieties of indige indigen nous communities who is unable unable to do this by themselves due to illiteracy or lack of awareness. PBR holder has the exclusive right to  produce,  produce, se ll, Market Market or distr ibute the seeds of t hat vari var ie ty34 .Another important feature of

34 see sec 28(1) of PPFR Act 2001

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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  breeder 35 .To make this meaningful , mandatory disclosure of geographical location from where the geneti genet ic materia l has been take taken n a nd info info rmati rmat io n relating re lating to the contri contr ib ution o f fa rming communitie communitiess have been made. Besides thi t hiss it is provi pro vided ded th t hat th t he breeders wanting w anting 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.

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  provision of o f community r ights under under section sec tion 41 and concept of benefit s haring, for protection protec tion of knowledge on indigenous communities at least to the extent of plant varieties 36 .

B i ologi logi cal cal D i versity A ct, 2002 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 recognizes the sovere sovere ign rights of states to use use their own ow n biol bio logical ogica l resou reso urces.

The 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 signator y to CBD In I ndia had committed to make a nati nat io na l legi le gislat slation ion 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. The Act provides for access to  biolo  biologi gicc al resources of the countr y with the purpose of securing secur ing equitable benefit shar ing arising out of commercial use of those resources. The Act recognizes the Knowledge of local communities and emphasize on the need to protect them.

35see sec 26 of PPFR, determination of benefi t sharing 36 Bala ravi ravi S, S, Effectiveness of Indian Sui generis law on plant variety and its potential to attract private investment , Journal of intellectual intellectual property Rights Rights (9) (2004) (2004) 533 - 548 548

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Though the Act was primarily enacted for providing free access to biological resources of the Country by foreign nationals 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  NBA37 . Section 4 of the Act restricts the transfer of results of any research relating to any  biolo  biologi gicc al resources obtained from fro m India India to any a ny fo fo reign nationa nationa ls or corporate. Meas ures have  been take n in the act to prevent insta insta nces of bio piracy pirac y by restricting rest ricting 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 without previou previo us approva l o f NBA38 .

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 include gra nt of joint owners hip hip of IP rights with NBA or If I f benefit c laimer aime r can be ident ified, ified, 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 theAct 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 five lacks. The Act also provide for the establishment estab lishment of a Nation N ational al Biodiv Biod ivers ersity ity Authority. Authority.

N ati onal nal B i o Di versity rsi ty A utho uthority ri ty 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

37 s ee section section 3(1) of biological biological diversity iversity a ct 38 see section section 5 of Biological Biological diversity act

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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 there is no such representative bodies NBA through concerned state authoritie authoritie s make a rrangement for for for ma tion of represe ntativ tat ivee orga nizat nizat ions.

 NBA has has to setup a fund fund known as the Traditi Trad itional onal K nowledge F und, und, whi w hicc h shall be used fo r 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 traditional k nowledge.

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 bio diversity and economic interests interests of o f indigenous communitie communities. s.

T he Patent Patent ( A mendme ndment) A ct , 2005 The TRIPS agreement signed along with WTO agreement in 1995 provides for making certain changes in domest domestiic patent pate nt laws, for for reaching reac hing a uniform system of legislations relating relat ing to patent throughout the world. In order to fulfill this obligation under TRIPS patent act was duly amended in 2005. This 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 kno kno wn substance‟ and a nd „ an invent inventiio n whic h , in e ffec ffectt , is trad traditio itional nal k nowledge or which is and aggregation or duplication or known properties of traditionally known substa substa nces‟ will w ill not be an invention39 .

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

39 see sec 3(d) and 3(p) of patent (amendment act), 2005

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or inventive step, or non disclosure or wrongful disclosure of source or geographical origin used in the invention and antici antic ipati pat ion of invention by the the knowledg knowled ge, oral or otherwise available availab le within wit hin a ny local oca l or ind ind igenous igeno us gro gro ups in the complete specif icatio n. Also now we can oppose a complete patent specification which was publicly known or publicly used in India before the date of claim40 .

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.

40 see section 25(3) (d)

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Future of TK protection: Proposals by developing Nations and Jurists There has been extensive discussion within the international community as to the nature of  protectio  protection n that is to be given given for trad itiona itionall kn k nowledge. Soluti So lutions ons ha ve be e n proposed proposed in th t he form of defensive protection and positive protection. Defensive protection refers to  provisions  provisions adopted in la w or by th t he regulatory regulator y aut horities to prevent IPR c laims re la ting to TK or a cultural expression or a product being granted to unauthorized persons. Positive  protectio  protection n on th t he other hand ref re fers to acquisiti acquis ition on o f IP rights r ights by t he 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.

This section discuss about the 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  proposals are now in practi pract ice through var io us nati at io na l legisl egis la tions. An effective implementation of these proposals can result in sustainable use of knowledge of indigenous communities communities a nd can provide for de velopment of these co mmunities. mmunities.

D efensive fensi ve P ubli ublica catti on Defensive Defensive protectio n strategy stra tegy can be used to prev pre vent gran gra nting of o f exclusiv exclus ivee rights on TK based inventions. Most of the TK based products are given IP protection because of inability on the  part of granting rant ing authorities to identify dent ify prior art. One of o f th t he problem proble ms re lated to TK is lack of 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 oth ot hers from claiming rights over it.

Documenting TK will convert it into prior art and the invention based on this can no longer  be considered considered as novel, and and t hus hus paten pate nt cannot be granted 41 .Besides .Besides this su s uc h a document on

41 see notes on traditional traditional knowledge, knowledge , page 6 -7 publish ed by IPPRRO IPPRRO services (India ) pvt L

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TK will be useful for research and will be an impetus to invention both in India and abroad,  but  but it is to be noted that, this will be useful to indige indige nous communities o nly if there is a  proper mechanism for ben be nefit s haring. Th T he greater doc umentatio umentatio n o f TK is not only useful in  preventing the gra nt of unwarranted unwarranted patents patents b ut also helps in preserv preser vation atio n, protection a nd  possible  possible e xploitation of TK.

I dea banks banks Idea bank is a defensive strategy, which can be used to protect indigenous resources from bio  piracy.  piracy. Docume Docume ntation of TK provides provides an easy referen refere nce for the fore ign or nati at ional pate nt examiners examiners to c heck for prior art in a patent pate nt application based on TK. An idea ba nk is a digital d igital library which holds the proven or valid ideas of ancient people and also the conceptual ideas of the present for the future knowledge development 42 .

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  provide for sharing of knowledge knowledge worldwide.

TKDL  –  An  A n I ndi ndi an examp 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 o n Indian TK a nd thereby thereb y acting act ing as a d e fe nsive tool to pre ve nt granting o f erroneous er roneous  patents  patents43 .The scope of TKDL works relates to transcription of 35,000 formulations used in Ayurvedic system of medicines. 42 Livingston David J  India need a n idea bank to l ead world in int ellectual propert y protection  ,Journal of intellectual intellectual property rights rights , vol 8 may 2003, pages 213 -22 1 43 s ee about TKDL available @ www.tkdl.res.in/langdefault//common/abouttkdl 

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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 TKDL44 . 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 45 .

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 C hina, hina, I ndia and other de veloping nations and patent offices are examining on how such librar librariies ca n be be integrated integrated into the the existing e xisting searc h tools used by paten pate nt offices. off ices.

Though this type of defensive strategy is capable to prevent misappropriation of TK, it is not able to address all issues faced by b y TK. TK. Besi Bes ides this it is to be accepted that it is very difficult dif ficult 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 eg 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 e.t.c. So when a  plant is used by Indian for centuries for liver liver complaints western worl wor ld ma y re fuse it as a  prior use by stating stat ing that the e xact medical medical terminology is not found a nywhere nywhere in Indian India n medical medical texts46 . 44 ibid 45information 45information adapted fro fro m www.tkdl www.tkdl.res.in/tk .res.in/tkd d l/lang l/langdefault default/co /co mm mmon/TKRC.asp on/TKRC.asp 46 This argument This  argument was advanced in the case of keela nelli or Phyllanthus

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D i sclo sclosu sure re Of Origi Ori gi n Disclosure of origin is one of the proposals put forward by developing nations in WTO for  protectio  protection n of biologi biolo gical cal resources resources and TK.

The The applicant for patent should be asked to

 provide  provide a long with the application, the detail o f the country from which he borrowed information regarding his invention, and provide the evidence to show that all legal requireme requiremen nts of o f the particular country for access and fair a nd equitable ben be nefit sharing shar ing arising from commercial use of such resources has been fulfilled 47 . Besides this it should be shown that Prior I nformed nformed Con Co nsent has bee n obtained from fro m the the nati nat ional au a uthoriti thor ities es or the indige indigen nous communities for taking and using their traditional resources 48 .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 funct funct ion both bot h as a s ubstan bsta ntial tia l and procedura procedurall condition conditio n on paten pate nt applica nts. A requi req uireme remen nt 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 furt furth her facilitate acil itate the e nforce nforce ment of bene bene fit shar ing princi princ iples. Developing countries countr ies argue that CBD art ar t 8(j) is very weak for protection protec tion o f TK 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 29bis, which summarizes all the proposals for DOO and provides for stronger enforcement  provisions  provisions49 .DOO can be used as a defensive strategy against bio-piracy.

47 WTO Doha work programme  – the the outstanding implementation issue on t he relationship relationship between the TRIPS TRIPS and

CBD

,

communication

 from

India .pak .pak istan,

Brazil,

Peru,

Thailand

and

Tanzania ,

WT/GC.W.564,TN/C/W?41, www.wto.org 48 See generally TRIPS Council, The Relationship Between the TRIPS Agreement and the Convention on  Biolo gical Diversity (CBD) and the Protection of Traditional Tradit ional Knowledge: Elements of the Obligation to  Disclose Evid ence o f Benefit-Shari Benefit -Shari ng under unde r the Relevant N ational Regi me, me , IP/C/W/442 (Mar. 18, 2005). 49 see  policy brief , south centre, mandatory mandato ry disclosure of source and origin of biological resources and TK , TK , October 2007, 2007, no 11 available available @ www.southcentre.org

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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 proposal for establishmen establishme nts of o f idea idea ba nks wi w ith intern inter nation atio nal co operation.

 A globa global trea treaty and regula regulato tory ry mecha chanism ni sm for 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 50 , 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 to principles p rinciples of o f natio nation nal treat ment, mutual mutual recogniti reco gnition, on, access a nd bene fit sharing sharing an a nd other areas peculia pec uliarr 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 anot anoth her proposal based o n reciprocity has bee n suggested suggested by b y Paul Pa ul K uruk 51 . According to this view though the concept of a single international instrument is not feasible for the time being

50 Peter D rahos, rahos,  A Networked Responsive Resp onsive Regulatory A pp roach to Pro tecting Traditio nal Kno wledge , 51  51  See Paul Kuruk, Bridging the Gap between Traditional Knowledge and Intellectual Property Rights: Is Reciprocity an Answer? , 7 J.WORLD INTELL. PRO PRO PERTY 429 (2004).

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it is possible to make bilateral agreements between TK source countries and the user countries specifying 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 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 ide ntified som so me co mmon mmon iss ues on bio diversity, IP a nd TK a nd are working for a mech mec hanism anis m for consultation and cooperation, so that their interests and priorities related to bio diversity and and indige indige nous 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  products an a nd le ve ls of protection protectio n that is to be given.

D evel velopm opment of a sui generi neri s system system 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  property regime. Article 27.3 of the TRIPS TRIPS agree me nt asks the states to provide for a s ui 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 goes 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 52 . A sui generis legislation in TK which recognizes the autonomous character of TK is able to ensure ensure a more objective valu va luaa tion of TK. A system syste m that views TK TK as a compos compos ite resource ha ving, both economic and cultura l features has a better prospect of ens uring protection of 52 international seminar on sui generis rights , 8th  December 1997, ( Thai network , Bio Diversity and Genetic Reso urces Action Action International, International, Bangkok)

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TK. National measures of a sui generis system backed by international regulation can definite definitely ly he he lp in preserving the knowled ge of o f communities from misappropriat misappropriatiion 53 .

Some countries have already enacted or are in the process of enacting a sui generis system of  protectio  protection n of TK. Philippines is one a mong th t hose nati nat ions who has enacted a legis lat ion giving indigenous communities right over their traditional knowledge 54 .  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  provides that any be ne fit ar ising from fro m genetic resources resources of associated asso ciated indige indige nous k nowledge will be equitably shared. The law seeks to ensure that indigenous communities are able to  partic  partic ipate in a ll le vels o f decision decisio n making. The The Guatemalan law a lso seeks to p reserve a nd  promote  promote the wider use of its TK by placing expressions of na tional tional c ulture includ including ing medicinal and music under the protection of the state. India also by Biological diversity Act has made an attempt to make a separate system of law for protection of genetic resources and associa associa ted 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 in this  paper div d iversity ersity is the very es sence o f TK TK system syste ms, so concer ns has bee n expressed re ga rding the feasib feasibili ility ty of o f a single system which covers the entire aspects of TK.

E quita ui tab ble be benefi nefitt shar shar i ng 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 with sh s haring of benefits. Accord Accord ing to to th t he princi princ iple of o f bene fit sha ring, the TK holders holders are entitled to receive an equitable share of benefits that arise from use of TK, which may be 53 see Damodaran Damodaran A , Traditional Knowledge, Intellectual Intellectual property rights bio diversity: critical critical issues and challenges, Journal challenges, Journal of intellectual intellectual property rights , VOL VOL 13 September 2008 pag e 509 -513 54 The indig enous peoples rights act of 1997, republi 1997, republican can Act no 8371 available available at www,rain.org/doc/Philippines-ipra-en.pdf

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expressed expressed in te te rms of co mpensator y payments or other non non monetary onetar y benefit s. The concept of  bene  bene fit shar ing is appropriate in situ sit uati at io ns where where exclusive exclus ive property rights are considered inappropriate. It is believed that the benefits accruing to communities enable them to continue their their lifestyle li festyle and thereby can help in preservation preservat ion of TK. 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 results carrying car rying commerc ia l value, but the indigenous indigenous commu co mmunities nities lack the technical technica l know knowh how to bring this ch c hange to th t he ir valuable kn k nowledge. A syste m whic whic h per mits mits access to its resources resources a long with pro visio vision n for for ben be ne fit sharing is a need o f the hour. hour. MNC‟s an a nd 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 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 mechanism providing pro viding for for acces s and benefit sharing.

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Current state of negotiations So far IGC has come out with various studies and have documented the views of states and indigenous communities w r t 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 fa cie reason for this is the diff d ifference erence between betwee n the developed and de ve loping nat natiions re lat ing to TK.. Working groups groups of IGC I GC is curren curre ntly working on a consolidated te xt for TK protection protec tion and on the proposal of mandatory disclosure requirement and defensive databases 55 .Besides this IGC is asked by WIPO general assembly to submit a text of an international document to  protect  protect TK, TCE a nd GR. IGC has also prepared draft dra ft proposals proposals and guidelines for protection protec tion of TK and TCE. It is expected that during the current budgetary biennium IGC will come up with an international text for protection of TK and GR. 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 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 ministeria ministeriall declarat declaration ion is is not yet fulfilled. As a matter of fact, ac t, the the issues of o f TK TK an a nd access an a nd 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

55 See matters mat ters concerning the IGC IGC on IP , GR and TK , 20 20 th ordinary session report, WO/GA/40/7

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Conclusion IP rights rights are given with a purpose to reward the innovators of new sci sc ie ntific invent inventiions or a ny creative wo wo rk and there by b y promoting developme developmen nt in the the world. IP rights promot pro motee growt h 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 co mmunity based knowled ge which whic h is availab le in the p ublic domain. do main. TK is is essent ia lly culturally orientated so its preservation is integral for cultural identity of the community which which preserv preser ves th t hese knowledg knowled ge for years.

The era of globalisation has witnessed blatant misuse of TK and granting of patent for TK  based products products without giving importance to interests interests o f indigenous indigenous commu co mmunit nities. ies. Bio piracy pirac y and and ot her patenting pate nting of innovat innovatiions based on TK have posed a challenge before t he existing IP regime. The disparity in wealth between the knowledge holders and the beneficiaries of that know knowlledge highlight highlighted ed t he need for protectio n and prev pre venti ent ion of misuse misuse o f TK. TK. Issue I ssue rel re lat ing to protection of TK is very wide, a single solution can hardly be expected to meet such a wide range of concerns and objectives. A multiplicity of complementary measures are required for this .There are two distinct options for the TK possessors and practitioners, either TK should  be protected in a positive way which which prev pre vents e vasio n of k nowl ow ledge of indi indi genous communities or by allowing access to indigenous knowledge and making effective mechanism mechanism for be nefit shar ing a nd compen compe nsati sat ion. 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 wh w hole. It promotes the commerci commerc ial pote ntial tia l of TK and and permits per mits patents or a qu q ua si licence licence on development made on th t he knowledge ava ilable ilable in public domain. domain. Such a system syste m 33

will also provide for equitable and fair sharing of benefits between the beneficiaries and the  practitioners  practitioners who provided provided the funda funda me ntal knowl know ledge. The compensation so rece ived can be be used for the development of the community who provided the knowledge, which in turn fa cilitate the a ll round round dev de ve lopme lopme nt of the soci soc ie ty. Efforts Efforts should also be take n for for th t he pro mot ion of TK. He He re promotion indicates indicates harnessing arness ing of TK for trade and development. Many of the indigenous communities depends upon TK for their survival and thus any measures that can strengthen and develop this base of knowledge will facil facilitate itate the movemen moveme nt of th t hese communities a long a fixed path of de velopment. 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 deve deve lopment lopment of a country countr y.

TK if kept secret a nd not shared shared will w ill co co ntinue to be a non 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  protectio  protection n of traditi trad itional onal knowledge should be regarding sustainabl susta inablee use of indige indige nous knowledge and benefit sharing.

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