PROTECTION OF TRADITIONAL KNOWLEDGE

IN THE PRESENT IPR REGIME: A MIRAGE OR

A REALITY

RAJU NARAYANA SWAMY

The Intellectual Property Right (IPR) regime needs to be fine

tuned in such a way that it can bolster the cultural identity
of indigenous communities and give them greater say in its
management. This calls for a comprehensive strategy with
community, national, regional and international dimensions.
This framework should ensure that the control and
sovereignty over biological resources rest with the local
community and that they receive adequate compensation
when these resources are utilised by outsiders. The present
study aims to arrive at such an IPR regime characterised by
a lucid interdisciplinary synthesis of anthropological,
biological and economic perspectives essential for balancing
the rights of local people with the obligation to preserve
viable ecosystems for posterity.

INTRODUCTION

THE LINKAGE between IPRs, biodiversity and traditional knowledge

(TK) is of recent origin. Biodiversity refers to the variability among
living organisms from all sources and the ecological complexes of which
they are part and includes diversity within species or between species and
of eco-systems.1 It protects ecosystem resilience and covers the entire
life system that exists in a natural setting. In fact, ecological and genetic
multiplicity together makes the very foundation of existence. Traditional
Knowledge on the other hand is the result of intellectual activity in a
traditional context. It is intricately woven into the living styles and
practices of communities. This knowledge is transmitted through
songs, stories,
1
Sec 2 (b) of the Indian Biological Diversity Act, 2002.
36 / INDIAN JOURNAL OF PUBLIC ADMINISTRATION
VOL. LX, NO. 1, JANUARY-MARCH 2014

rituals and legends. Examples are galore throughout the nooks and corners
of the world. To quote a few:
a. Thai traditional healers use plao-noi to treat ulcers
b. San people use hoodia cactus to stave off hunger while out
hunting
c. Traditional water systems such as the aflaj in Oman and
Yemen and the qanat in Iran maintain sustainable irrigation.
Intellectual Property Right offers two forms of protection to TK: (i)
A positive protection by granting exclusive rights over use to the
members of the local community, and (ii) a negative protection by
excluding others from the use of TK held by a particular community.
Despite the tall claims, the sad reality is that traditional knowledge is
threatened by unauthorised use. IPR regimes have miles to go before they
can claim to be saviours of TK systems. An oft quoted case study is that
of Cupuacu a tree belonging to the cocoa family that has been
cultivated along the Amazon since time immemorial. Today Brazil has
been reduced to the insignificant role of a supplier of raw material. It is
Japan that holds the IPRswhether it be patents or trade marks. The
billion dollar question is whether the natural habitat of the poor is again
and again targeted by the international resource economy this time in
the name of IPR. With most of the original genetic materials located in
the biodiversity hot spots of developing countries, the natural question
that crops up is Is the destructive face of colonialism showing up
again? Is it a continuation of the extirpation, enslavement and
entombment in mines of the aboriginal population, the looting of the East
Indies and the turning of Africa into a warren for the hunting of black
skins that was once supposed to signalize the rosy dawn of the era of
capitalists production?2
India too had its share of bitter experiences vis-a-vis its sovereign
rights over the resources available in nature. Turmeric, basmati and neem
are the classic cases where the country had to fight tooth and nail. These
cases, no doubt, provided the driving force for the enactment of the
Geographical Indications (Registration and Protection) Act, 1999, the
Plant Varieties and Farmers Rights Act, 2001 and the Biodiversity Act,
2002. At the same time we learned that our age old traditional philosophy
beliefs that bio- resources belong to common heritage of mankind are no
longer safe because of threats from the developed world.
The seeds of such an Access and Benefit Sharing mechanism can be
seen in the Convention on Biological Diversity (CBD) and the Bonn
 PROTECTION OF TRADITIONAL KNOWLEDGE IN THE PRESENT IPR REGIME / 37
RAJU NARAYANA SWAMY
2
Douglas Dowd, Inequality and the Global Crisis, Pluto Press, London, 2009, p.144-
145.
Guidelines at the international level and in the Indian National
Biodiversity Policy and Macrolevel Action Strategy at the national level.
The Jeevani (Aarogyapachha) case can be a leading light as regards
benefit sharing. If there is political will to plan and administrative
competence to execute, this can herald an era of unprecedented
collaborations between the technosavvy developed nations and the
knowledge-rich tribes.
Objectives of the Study: To codify the major case studies and
international initiatives in the realm of IPR vis--vis biodiversity and TK
(a) To assess the stumbling blocks ( if any) in the present IPR
regime as regards preservation of biodiversity and TK;
(b) To enumerate success stories and to identify the factors that
have paved the way for such viable models;
(c) To devise a road map for an effective collaborative IPR
regime.
Biodiversity
The term biodiversity is a broad concept. It is the totality of genes,
species and ecosystems of a region and encompasses the entire life
system that exists in a natural setting. Article 2 of CBD stipulates that
biological diversity means the variability among living organisms from
all sources including inter alia terrestrial, marine and other aquatic
ecosystems and the ecological complexes of which they are part; this
includes diversity within species, between species and of ecosystems.
Section 2(b) of the Indian Biological Diversity Act 2002 seeks to broaden
the scope of the term by using the phrase all sources.
There are various types of biodiversitygenetic diversity, species
diversity and ecosystem diversity. Biodiversity performs a number of
important functions. To cite a few:
(i) It maintains soil fertility, air quality, climate stability and the
overall regime of life supporting systems on the planet. It
sustains the natures basket of goods and services which
according to the CBD secretariat include, Provision of food,
fuel and fiber, provision of shelter and building materials,
purification of air and water, detoxification and
decomposition of wastes, stabilisation and moderation of the
earths climate, moderation of floods, droughts, temperature
extremes and the forces of wind, generation and renewal of
soil fertility including nutrient cycling, pollination of plants
including many crops, control of pests and diseases,
maintenance of genetic resources as key inputs to crop
varieties and livestock breeds etc.3
3
Source: http://www.boidiv.org/doc/publications/guide.asp?id = changing
 (ii) It has a key role in medication. According to the National
Cancer Institute, more than 70 per cent of promising anti-
cancer drugs originate from flora in tropical rainforests. The
drug to treat malaria (quinine) is derived from the cinchona
tree whereas the medicine for chronic heart trouble
(digitalis) originates itself from the foxglove plant. Another
oft quoted example is morphine from poppy.
(iii) It is fast emerging as a major source of wealth for many
areas particularly through ecotourism the mode of tourism
that entails environmentally responsible travel and
visitation to relatively undisturbed natural areas in order to
enjoy, study and appreciate nature, that promotes
conservation, has low visitor impact and provides for
beneficially active socio- economic involvement of local
populations.4
(iv) It is the source from which mankind derives food, fuel and
fodder. Fibers for clothing, wood for shelter and biomass for
energy are only some among the economically important
commodities made available to the human race by the grace
of biodiversity.
The concept of mega diversity countries was developed in 1988 by
Dr. Russell Mittermeir. It has its origin in the ground reality that only a
handful of countries account for a major portion of life on the planet. In
fact, an overwhelming majority of plant genetic resources are found in
the forests of the Third WorldAfrica, Madagascar, South America and
tropical Australia. India is one of the top 12 megadiversity countries.
With only
2.4 per cent of the land area, India accounts for seven-eight per cent of the
recorded species in the world.
The National Bureau of Soil Survey and Land Use Planning has
identified 20 broad agroecological zones in the country. At least 166
food/ crop species have originated in India. The genetic diversity within
each of these species is unparalleled. A classic example is mangifera
indica (a species of mango) which has yielded more than a thousand
varieties. India also has two of the 18 biodiversity hotspotsthe areas
that have the most endemic species and are most endangered by habitat
loss. The evil quartet of habitat destruction, overkill, introduced species
and secondary extensions described by Jared Diamond are looming large
over the horizons of these areas.
This threat to habitat dates back to the colonial period which was
 Ceballos Lascurain Tourism, Ecotourism and Protected Areas, Gland, Switzerland,
4

IUCN.
 TABLE 1: THREATENED ANIMALS OF INDIA BY STATUS CATEGORY

EX EW CR EN VU LR/cd LR/nt DD
0 0 18 54 143 10 99 31
Legends: Ex-extinct; EW-Extinct in the Wild; CR-Critically Endangered; VU-
Vulnerable; LR/cd-Lower Risk conservation dependent; LR/nT-Lower Risk near
threatened; DD-Data Deficient
SOURCE: www.environemntandpeople.org.

TABLE 2: THREATENED PLANTS OF INDIA BY STATUS CATEGORY

EX EW CR EN VU LR/cd LR/nt DD
7 2 44 113 87 1 72 14
Legends: Ex-extinct; EW-Extinct in the Wild; CR- Critically Endangered; VU-
Vulnerable; LR/cd-Lower Risk conservation dependent; LR/nT- Lower Risk near
threatened; DD-Data Deficient
Source: www.environemntandpeople.org.

TABLE 3: THREATENED SPECIES OF INDIA BY TAXONOMIC GROUP

Taxonomic group Number of threatened species

Mammals 86
Birds 70
Reptiles 25
Amphibians 3
Fish 3
Molluscs 2
Other Invertebrates 21
Plants 244
Total 459
SOURCE: www.environemntandpeople.org,

marked by the European settlers incarceration of the savages and the

appropriation of their wild lands under the guise of converting the
haunt of wolves, bears and more savage men into habitations of rational
and civilised people. In reality, it was an era of appropriating the
resources of the earth, breaching the original unity of man and nature and
transforming the planet into an object of huckstering. This greedy
policy ruinous to man and nature- unfortunately continues in the post-
colonial era too. From tea and sugarcane through cotton and eucalyptus
trees to kiwi fruits and king prawns, farming systems are put in place to
cover the tables of distant
consumers. Conversion of nature for plantations, aquaculture and water
reservoirs is continuing unabated. Biodiversity is becoming the casualty
of unsustainable policies. They are leaving behind a trail of clear felled
forests, poisoned soils, eroded landscapes and over fished waters and are
ultimately exacerbating poverty.(Kumar. A.D., 2001), The net result of all
there is aptly summed up in the famous words of Wangari Maathai
(Nobel Lecture:10th December 2004):
I reflect on my childhood experience when I would visit a stream
next to our home to fetch water for my mother. I would drink water
straight from the stream. Playing among the arrowroot leaves, I tried
in vain to pick up the strands of frogs eggs believing they were
beads. But every time I put my little fingers under them, they would
break, Later I saw thousands of tadpoles: black, energetic and
wriggling through the clear water against the background of the
brown earth. This is the world I inherited from my parents.

Today, over 50 years later, the stream has dried up, women walk long
distances for water, which is not always clean and children will never
know what they have lost. The challenge is to restore the home of the
tadpoles and give back to our children a world of beauty and
wonder.

A Birds Eye View of International Efforts to Conserve Biodiversity

Different views and disciplines focus on different descriptions of
biodiversity. They prefer specific attributes and methods. From a natural

FIG. 1: SELECTION OF BIODIVERSITY FEATURES

SOURCE: Chailes. Perrings, et.al.(1992), The Ecology and Economics of Biodiversity
Loss: The Research Agenda, Ambio 21(3), May.
 FIG. 2

SOURCE: Chailes. Perrings, et.al.(1992), The Ecology and Economics of Biodiversity Loss:
The Research Agenda, Ambio 21(3), May.

science point of view mostly animals or plants are investigated in

biodiversity studies. Sometimes values affect the selection of biodiversity
attributes. Sometimes highly valued organisms/plants are more likely to
be selected for biodiversity monitoring programmes. From the very
definitions of biodiversity we understand that peoples/organisations
attitudes affect their perceptions of biodiversity. These conceptions of
biodiversity hence are shaped by peoples/organisations principles,
biases and interests.
The international community had to wait till 1992 for these ideas to
concretise in the form of the CBD at the Earth Summit in Rio de Janeiro.
The CBD identifies the sovereignty of domestic countries and their
traditional communities over natural biological resources in their regime
and has three main goals:
(i) The conservation of biodiversity
(ii) Sustainable use of the components of biodiversity
(iii) Sharing the benefits arising from the commercial and other
utilisation of genetic resources in a fair and equitable way.
The Conference of parties to the CBD adopted the Bonn Guidelines
on Access to Genetic Resources and Fair and Equitable Sharing of
Benefits Arising out of their Utilisation in 2002 with the following
objectives:
(i) To promote awareness about the implementation of the CBD.
 (ii) To provide transparent framework for access and fair and
equitable benefit sharing.
(iii) To provide the practices and approaches viable in technology
transfer between traditional communities and scientific
communities.
In fact, the Bonn Guidelines set out the important parameters that
need to be included in the terms and conditions of a benefit sharing
agreement. The provisions under Article 8(j), 10(c), 15,16 and 19 of
CBD can serve as road maps for drafting legislations within the overall
framework of Bonn Guidelines.
India signed the CBD in 1992 and ratified and brought it into force in
1994. The countrys Biological Diversity Act 2002 echoes the same
objectives as that of the CBD. It regulates access to biological resources
to persons in terms of use, the categorisation being made as for research,
commercial utilisation and bio survey and bio utilisation. Persons have
been differentiatedresident Indians and others.
India has taken a number of strategies towards protection of nature,
natural resources and biodiversity at international, national and regional
levels. Some of the initiatives comprise the World Heritage Convention
(1972), Convention on International Trade of Endangered Species of
Flora and Fauna (CITES) 1975, Ramsar Convention on Wetlands (1975)
[ India has been a contracted party to the Ramsar Convention since 1st
February 1982. India has now six sites covering some 192,973 hectares
of important wetlands. These sites are Chilka Lake, Keoladeo National
Park, Wular Lake, Harike Lake, Loktak Lake and Sambhar Lake],
FAOs International Undertaking on Plant Genetic Resources
(1983), United Nations Convention to Combat Desertification (1994),
Trade Related Intellectual Property Rights (WTO-1994), International
Treaty on Plant Genetic Resources for Food and Agriculture (FAO 2001)
Joint Forest Management Programme since 1991, the Extension of
Provisions of Panchayati Raj to Scheduled Areas Act (PESA), 1996, and
more recently the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act 2006. Key legislations
relevant to biodiversity are listed in Table 4.
The growing international concern for biodiversity is aptly
summarised in the words of Kofi Annan, Biological diversity is
essential for human existence and has a crucial role to play in sustainable
development and the eradication of poverty. Biodiversity provides
millions of people with livelihoods, helps to ensure food security and is
a rich source of both traditional medicines and modern
pharmaceuticals. No doubt, these strategies will be incomplete if they
do not get over the time-worn suspicion between northern and southern
countries. Needless to say, they must
 TABLE 4: LEGISLATIONS RELEVANT TO BIODIVERSITY CONSERVATION

Key legislation Key features

Indian Forest Act, 1927 Designed for forest management and protection, the
transit of forest and the duty leviable on timber and
other forest produce.
Wildlife (Protection) Act, 1972 Deals with protection of wildlife and habitats and
provides for the protection of wild animals, birds
and plants and related matters, with a view to
ensure the ecological and environmental security of
the country.
Forest (Conservation) Act, 1980 Designed for the conservation of forests and related
matters.
Biological Diversity Act, 2002 Provides for conservation of biological diversity,
sustainable use of its components, and fair and
equitable sharing of the benefits arising out of the
use of biological resources, knowledge and related
matters.
Biological Diversity Rules, 2004 Deals with executing the Biological Diversity Act
Protection of Plant Varieties and Provides for the establishment of an effective
system Farmers Rights Act, 2001 for protection of plant varieties, the rights of
farmers
and plant breeders, and to encourage the
development of new varieties of plants.
The Scheduled Tribes and Other Recognises and vests the traditional rights to forest
Traditional Forest Dwellers dwelling communities over access to forest goods
(Recognition of Forest Rights) and occupation in forest lands.
Act, 2006
SOURCE: Indias Fourth Report to the Convention on Biological Diversity(2009), Ministry
of Environment and Forests, Government of India, New Delhi.

accommodate diachronic observations about the local landscapes that

have been accumulated over generations by the 200 million odd
indigenous people who inhabit the territories that have exceptionally high
levels of biodiversity.
Traditional Knowledge (TK)
The inter-governmental committee of WIPO on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore defines
traditional knowledge as knowledge that is:
(a) Generated, preserved and transmitted in a traditional context.
(b) Distinctively associated with the traditional or indigenous
culture or community that preserves and transmits it between
generations.
 (c) Linked to a local or indigenous community or other group of
persons identifying with a traditional culture through a
relationship based on a sense of custodianship, guardianship
or cultural responsibility such as a sense of obligation to
preserve the knowledge, or a sense that to permit
misappropriation or demeaning usage would be harmful or
offensive, a relationship that may be expressed formally or
informally by customary law.
(d) Originating from intellectual activity in a wide range of
social, cultural, environmental and technological contexts,
and
(e) identified by the community or other group as being
traditional knowledge.
(Overview of the Activities and Outcomes of the Committee, Intergovernmental
Committee, WIPO/GRTKF/IC/5/12-2003, pp. 20-21)

Needless to say, TK is largely oral and is the collective knowledge,

beliefs and practices of indigenous people on sustainable use and
management of resources. It embodies the wisdom developed over
generations and encompasses agricultural knowledge, medicinal
knowledge, biodiversity related knowledge and the like. Oft quoted
classic examples of medicinal TK are:
(i) Methi to bring down blood glucose.
(ii) Composition of jamun, bitter gourd, jaggery and egg plant to
treat diabetes.
(iii) Kala jeera to treat hepatitis and asthma.
(R.V. Anuradha, Biopiracy and Traditional Knowledge available at http://www./
hinduonnet.com/folio/fo105/01050380.htm)

Traditional Knowledge also includes mental inventories of local

biological resources and is transmitted through legends, songs, stories,
etc. This knowledge is used to provide sustenance to the community and
its culture and to maintain genetic resources necessary for the continued
survival of the community.5
Traditional Knowledge is a key element of the social capital to
produce food, to provide shelter or to achieve success in their lives. TK
also helps shape local visions and perceptions of environment and
society. This mainly includes:
(i) Local healing practices
5
Stephen A. Hansen and Justin W. Van Fleet, Traditional Knowledge and Intellectual
Property: A Handbook on Issues and Options for Traditional Knowledge Holders in
Protecting their Intellectual Property and Maintaining Biological Diversity, July 2003.
 (ii) Communal use of land and forest
(iii) Agroforestry practices
(iv) Agriculture
(v) Animal husbandry
(vi) Use and management of natural resources
(vii) Construction of houses using natural materials
(viii) Water collecting mechanisms
(ix) Midwives
(x) Herbal medicines
(xi) Transfer of knowledge through elders, rituals or folk songs The Inter-
governmental committee of WIPO has identified specific
threats to TK including:
a) Unauthorised commercial exploitation
b) Insulting, degrading or culturally offensive use of material
that is the subject matter of TK
c) False or misleading indications that there is a relationship
with the communities wherein the material has originated.
d) Failure to appropriately acknowledge the source of the material.
(Overview of the Activities and Outcomes of the Committee, Intergovernmental
Committee, WIPO/GRTKF/IC/5/12-2003pp20-21)

Needless to say, there are four primary reasons as to why TK should

be protected:
(a) Conserving the environment
(b) Improving the livelihood of TK holders.
(c) Benefiting national economies in a knowledge driven era
(d) Preventing biopiracy
IPR vis-a-vis Biodiversity and TK
To quote from the United Nations Draft Declaration on the Rights of
Indigenous Peoples, indigenous people are entitled to the recognition of
the full ownership, control and protection of their cultural and intellectual
property. They have the right to special measures to control, develop and
protect their sciences, technologies and cultural manifestations, including
human and other genetic resources, seeds, medicines, knowledge of the
properties of fauna and flora, oral traditions, literatures, designs and visual
and performing arts. This must be read in conjunction with provisions
such as Article 8(j) of the CBD that provide for respecting, protecting and
rewarding the knowledge, innovations and practices of local communities.
It is worth mentioning here that benefit sharing may take the form of:
(a) Monetary benefit sharing (license fees, royalty, etc); and (b) Non-
monetary benefit sharing (technology transfer, joint IPR ownership, etc.).
 Its avowed objective must be to ensure that instances such as
derivation of vinblanstine and vincristine from the Madagascar rosy
periwinkle (wherein the firm has earned $100 million per year but
neither the shamans who gave the knowledge to the researchers not the
Government of Madagascar have received any compensation for their
contribution) do not recur. We must not forget that commodification of
collective resources
which are often perceived as sacred or secret is a violation of human
rights in the broadest sense of the term.
The basic question that arises here is: is the IP system compatible
with the values and interests of traditional communities or does it
privilege individual rights over collective interests? What can be done to
ensure that IP protects TK? The answer lies in a comprehensive strategy
with national and international dimensions. These can take the form of:
(a) National laws (for instance Brazil, Costa Rica, Peru,
Panama, Philippines, Portugal, Thailand and US have
adopted sui generis laws vis-a-vis some aspects of TK).
(b) International legal framework. There are
two basic ways of protecting TK:
(a) Positive Protection: This has been described by the Inter-
governmental Committee as based on the active assertion of rights by
the owners and custodians of TK. Classic examples are protective
legislations and use of contracts in the interest of indigenous
communities.
(b) Defensive Protection: Preventive patent applications and defensive
trademark registration come within the ambit of this definition. The
application herein does not seek to gain rights, but merely prevents third
parties from getting unfavourable IPR in the same subject.
The basic modalities through which TK could be protected are :
(i) The existing Intellectual Property Rules (Geographical
Indications and Trade Secrets are the two most suitable forms
of IP in this regard)
(ii) Sui Generis protection to match identified needs of TK
holders.
(iii) Contracts (the most flexible way to protect TK).
In India, there is no specific legislation to protect TK, Instead, the
intellectual property legal framework provides protection to TK through
the various provisions therein. Examples of such legislation include:
(a) The Copyright Act 1957
(b) The Patent Act 1970
(c) The Trademarks Act 1999
(d) The Geographical Indications of Goods (Registration and
Protection) Act 1999
(e) The Designs Act 2000
 (f) The Protection of Plant Varieties and Farmers Rights Act
2001 (PPVFR Act)
(g) The Biological Diversity Act 2002 (BD Act)
Out of these, the last two legislations deal with the Access and
Benefit Sharing system, though there are some inherent conflicts between
them in this regard. For instance, the PPVFR Act allows free access
without prior informed consent (PIC) to any genetic resource. This is in
conflict with the BD Act wherein prior approval from NBA is mandatory
if Indian plant genetic resources are to be accessed. Efforts to provide
the needed frameworks to build up benefit sharing systems are galore.
These include initiatives of NGOs like.
(a) M.S. Swaminathan Research Foundation
(b) Sristi (Society for Research and Initiatives for Sustainable
Technologies and Institutions)
(c) FRLHT (Federation for Revitalisation of Local Health
Traditions)
(d) MPCC (Medicinal Plants Conservation Centre)
The Government of India is also providing the needed backup in
the form of the National Innovations Foundation (NIF), an autonomous
society established under the Department of Science and Technology
for recognising, respecting and rewarding innovations and
outstanding Traditional Knowledge at the glassroots. The NIF has
developed a model to facilitate PIC system for local innovators and TK
holders.
In fact, the benefit sharing mechanism suggested by NIFs models
include four types of benefits:
(a) MonetaryIndividual
(b) MonetaryCollective
(c) Non-MonetaryIndividual
(d) Non-MonetaryCollective
Special mention should also be made of the following steps for IPR
protection related to the domain of TK.
(a) CSIR coordinated programme on drug discovery;
(b) New Millennium Indian Technology Leadership initiative on
Drug Prospecting;
(c) Bioprospecting during the 9th Plan involving 13 institutions
by the department of Biotechnology;
(d) Programme of NBRL Lucknow to establish a multimedia
web based database on plant genetic resources and TK;
(e) Traditional Knowledge Digital Library and Traditional
Knowledge Resource Classification.
 It is worth mentioning here that Indias TKDL is a 2.4 crore page,
multilingual database on traditional remedies and medicinal plants. It
acts as a bridge between the existing prior art and the patent examiner at
the global level and uses digital technology to prevent grant of
questionable patents. Started in 1999 as a joint project between five
Indian government organisations including the CSIR and the NISCAIR
(National Institute of Science Communication and Information
Resources), the maintenance of this database (including its web version)
offices the prospect of benefit not only to indigenous people but also to
the scientific community.6
And India is not alone in these efforts. Instances of important
databases created and used are:
(i) ChinaTraditional Chinese Medicines (TCM) Patent Database.
(ii) USACultural stories Project of the Tulalip Tribes
(iii) VenezualaBiozulua database on indigenous communities.
The Indian Legal System and TK protection
Let us now examine the various Indian legislations regarding IP and
the level of protection given to TK therein.
(a) The Copyright Act 1957
This Act confers a bundle of legal rights on the creator or author of
the work. Authors moral rights, broadcast rights and performers rights
are also recognised. Expression in a tangible medium is all that is
required to attain a copyright. But copyright subsists only in works which
are original. Thus if any work is already in the public domain, it cannot
be registered under the Act. In other words, the protection afforded to
TK by the Copyright Act is indirectagainst exploitation and
reproduction without authorisation.
(b) The Patent Act 1970 as Amended in 2002 and 2005
An invention which in effect is TK or which is an aggregation or
duplication of known properties of traditionally known component and
components is not patentable in India. Moreover the Patent Act specifies
that:
(i) The applicant must disclose the source of geographical
origin of any biological material developed (Section 10(d))
(ii) If the applicant does not disclose or wrongly mentions the
source of geographical origin of biological material used for
invention, then it becomes the ground for refusal of the
patent (Section 25).
6
Executive summary, The Role of Registers and Databases in the Protection of
Traditional Knowledge: A Comparative Analysis, UNU IAS Report available at http:/
/www.ias.unu.edu/binaries/ UNUIAS_TK Registers Report.pdf.
 Thus the Patents Act makes provision for opposing the patent
application before grant of a patent and opposing the grant of a patent
within a year from the grant on grounds of non-disclosure of
geographical origin of the biological material or if the complete
specification of claims in the application is anticipated from the
knowledge held by indigenous community.
(c) The Trademarks Act 1999
The Act clearly stipulates that trademarks shall not be registered if
(i) They consist exclusively of the marks or indications which
have become customary in current language or in the
bonafide and established practices of the trade.
(ii) They consist exclusively of marks or indications which may
serve in trade to designate the kind, quality, intended
purpose, value, geographical origin or the time of production
of the goods or rendering of the services or other
characteristics of the goods or services.
(d) The Geographical Indications of Goods (Registration and
Protection) Act 1999
The Act was promulgated with the objective of excluding
unauthorised persons from misusing GIs, of protecting consumers from
deception, of adding to the economic prosperity of the producer of such
goods and of promoting goods bearing Indian GIs in the export market.
Needless to say, geographical indication products are the natural brands
because of their unique quality. It is the best way to protect TK Basmati
Rice, Hyderabadi Biriyani and Pochampalli sari being classic examples.
(e) The Designs Act 2000
The nature of protection given by this Act to TK is indirect. The Act
clearly specifies that the following designs cannot be registered:
(a) A design that is not new or original
(b) A design that has been disclosed to the public anywhere in
India or outside by publication or by use prior to the filing
date.
(c) A design that is not significantly distinguishable from known
designs or combination of known designs.
Needless to say, designs that are already in public domain cannot be
registered.
(f) Protection of Plant Varieties and Farmes Right Act (PPVFR Act)
It is the first piece of legislation in the world which recognises the
contribution of the farming and tribal communities in conserving
biodiversity and developing new plant varieties. The Act is a sui generis
system to protect traditional rights and enshrines the rights of farmers as
breeders, conservators and cultivators. It stipulates that a farmer who is
engaged in the conservation of genetic resources of land races and wild
relatives of economic plants and their improvement through selection and
preservation shall be entitled for recognition and reward from the
Government Gene Fund. It confers on the farmer the entitlement to save,
use, sow, re-sow, exchange, share or sell his farm produce. Any person,
group of persons or NGO, on behalf of any village or local community
may with the previous approval of the Central Government, file a claim
attributable to the contribution of the people of that village or local
community in the evolution of any plant variety for the purpose of
staking claim on behalf of such village or community. Enactment of this
legislation has been hailed as a milestone in the history of conservation
of TK.
(g) BD Act
The Act is a classic example of defensive protection to TK. For
instance, Section 6 of this Act provides that no person shall apply for
the IPR, by whatever name called, in or outside India, for any invention
based on any research or information on biological resources obtained
from India without obtaining the previous approval of the National
Biodiversity Authority (NBA) before making such application. NBA
may determine benefit sharing fee or royalty for benefits accruing from
commercial utilisation of such rights.
TK vs IPR Regime:- A Classic Fable
A classic fable of the traditional Amazon healer (Shaman) and the
protection of the various elements of this TK through the existing IP laws
can be summarised in Table 5.
Biopiracy of TK from India from patent on wound healing
properties of turmeric to patents obtained in other countries on
hypoglycaemic properties of bitter gourd, brinjal, etc.
(a) Turmeric
The crux of the issue in this case was the patent issued by USPTO to
the University of Mississippi Medical Centre in 1995 for its use in
wound healing. In fact, the patent holders were two non-resident Indians
Suman Das and Harihar Cohli. The CSIR raised objections and
submitted 32 references from ancient Indian scriptures. The issue herein
was twofold:
(i) Whether the claimed invention fits into the patent criteria.
(ii) The violation of IPRs and biopiracy under CBD.
This was a landmark case which India won, but the issues remained
lack of proper documentation of bioresources, the virtual absence of
information to USPTO regarding TK and the ground reality that we
cannot
 TABLE 5

Element IP mechanism
Plants from which the Shaman Plant variety protection system
has made the potion
Formula of the potion Patent (if it meets the requirements of
patentabilitybeing an inventive step, being
new and novel and having utility.
Use and dosage of the potion Patent
Prayer of the shaman to the Copyright (once fixed in a medium)
Gods of the forest
Performance of the shaman Copyright
(Dance, etc)
Vase containing the potion Utility model certificate (if it has new and
inventive functional features)
Designs on the vase and on Copyright/Industrial design system
the garments

chase and challenge every TK based product research. Needless to say,

the turmeric case speaks volumes for the need to attune our legislations
towards a fair and honest regime that protects IPRs in letter and in spirit.
It eventually opened up the path to the creation of TK DL.
(b) Neem
Patenting of neem properties by a US multinational company raised
much eyebrows due to three reasons:
(i) Local indigenous farmers would no longer be able to use
their products based on neem without paying royalties.
(ii) Consumers who will be using the alternative medicines
based on neem properties would not get them at an
affordable price.
(iii) The community as a whole is entitled to get the share of
profits from the multinational as per CBD.
The issue of IPRs over the neem tree was challenged at the Munich
office of the EPO by the EU Parliamentary Green Party, Dr Vandana
Shiva and the International Federation of Organic Agriculture
Movement. After years of legal battle, the neem patent was finally
revoked. No doubt, it was a historical moment for the Third World who
had been fighting to liberate their knowledge systems from the control of
the patent regimes of developed countries.
(c) Basmati
The patenting of basmati, the queen of fragrance, by a US based
multinationalRice Tec Incraised much eyebrows. Needless to say,
the decision to grant patents is a violation of TRIPS and the GI regime.
To make matters worse, the Rice Tec was having an international market
with the brand name as Kasmati and Taxmati and after having patent
rights, it was planning to label the rice as Basmati and export the same.
India stood to lose in the markets of EU, UK and Middle East in this
regard. Moreover, the livelihood economy of the marginal Indian farmer
was at crossroads. It is not only biopiracy but also a trade mark deception
and a case of passing off trade. The most important victory as India
could see in this regard is the change of nomenclature from Basmati lines
and grains to rice lines BAS 867, RT 1117, RT1121. The case highlights
the need for a cautious and preventive approach by the Indian
government on any similar future claims.
(d) Monsanto
The patenting of wheat gene by Monsanto caused much
apprehensions. The new variety was developed from the primitive Indian
race Nap Hal which is ideal for making bakery products. The issue was
the possibility of future infringement cases against Indian farmers for
non-payment of royalties to Monsanto. The Green Peace, RFSTE and
Bharat Karishak Samaj jointly challenged the patent. The patent was
finally revoked on October 5, 2004 thanks to the European database that
shows that Nap Hal was collected from Uttar Pradesh in 1948. But the
issues remain.
(e) Amazon Basin and the Banisteriopsis caapi Case
A wrong patent that was given on a plant species called
Banisteriopsis caapi and its traditional medicine uses led to lots of
protests among the indigenous tribes in the Amazon region. This plant
is native to the rainforests. The bark of this jungle wine is processed to
produce a ceremonial drink called Ayahuasca (vine of the soul).
The COICA (Coordinating Body of Indigenous Organisations of the
Amazon Basin) spearheaded the protest. The controversy over the patent
generated considerable hostility between US and Ecuador. Finally the US
patent office had to revoke the patent. However in a setback for the
traditional tribes, it reconfirmed the patent rights subsequently,
(f) Fiji and the Kava case
Kava has been cultivated in Fiji and Vanuatu since times
immemorial. However, the LOreal group (a French company) has now
patented the use of kava to stimulate hair growth. The patented company
can now obtain exclusive rights to the plant, thereby demanding full
profits associated with usage, ultimately creating a monopoly of
ownership over the plant.
(g) Africa and the Hoodia gordonii Cactus Case
San, the bushmen who live around the Kalahari desert region of
Africa, have been using Hoodia gordonii cactus to stave off hunger. But
hoodias appetitesuppressing P57 was patented in 1995 by the South
African Council of Scientific and Industrial Research. This led to
widespread protests. Finally, the San managed to make them yield to a
benefit sharing agreement. But the ground reality is that the percentage
of the sales that they eventually get is absymally low.
(h) Alice Community of South Africa and the Pelargonium Case
In a place called Alice in South Africa, tinctures have been produced
right from historical days to treat respiratory infections including
tuberculosis. These are produced from the roots of pelargonium sidoides.
Now this TK has been exploited by Schwabe pharmaceuticals which
markets a syrup by name Umckaloabo from these roots. The Alice
Community has fought against this exploitation tooth and nail.
These are only some of the myriad instances of biopiracy reported
from the length and breadth of the world. There are various other classic
examplesthe commercialisation of Hagen Abyssinica products as a
treatment for cancer after Ethiopians had used the plant for centuries and
the aborted patenting of Bolivian quinoa by two American researchers, to
name a few.
Where Have We Gone Wrong?
In reality, biopiracy is the outcome of the stark contrast between the
viewpoints of the rich countries that possess technology and finance and
the poor ones that are endowed with diverse genetic resources. To quote
from the UNEP:
Intellectual property rights systems either encourage the
appropriation of TK for commercial use without the fair sharing of
benefits or ... violate indigenous cultural precepts by
encouraging the commodification of such knowledge.
Needless to say, bioprospectingthe search among living organisms
for compounds that have commercial value as active ingredients in
pharmaceuticals, pesticides, etc.in controversially justified by the
contention that it provides biologically rich but economically poor
countries a means to save nature by selling it. As the present day IPR
considers documented knowledge as prior art, incorporating TK (which
is largely oral) in the framework of prior art raises its own set of
problems.
In Merrel Dow pharmaceuticals Inc V. H.N.Norton & Co Ltd, the
Court through Lord Hoffman, when considering the status of TK as
prior art
relating to patentability, codified the scenario as follows: 7

The Amazonian Indians have known for centuries that cinchona

bark can be used to treat malarial and other fevers. They used it in
the form of powdered bark. In 1820, French scientists discovered that
the active ingredient, an alkaloid called quinine, could be extracted
and used more effectively in the form of sulphate of quinine. In
1944, the structure of the alkaloid molecule ( C20H24N2O2) was
discovered. This meant that the substance could be synthesised.

Imagine a scientist telling an Amazonian Indian about the

discoveries of 1820 and 1944. He says We have found that the
reason why the bark is good for fevers is that it contains an alkaloid
with a rather complicated chemical structure which reacts with the
red corpuscles in the bloodstream. It is called quinine. The Indian
replies: That is very interesting. In my tribe, we call it the magic
spirit of the bark. Does the Indian know about quinine? My Lords,
under the description of a quality of the bark which makes it useful
for treating fevers, he obviously does. I do not think it matters that he
chooses to label it in animistic rather than chemical terms. He knows
that the bark has a quality which makes it good for fever and that is
one description of quinine.
On the other hand, in a different context, the Amazonian Indian
would not know about quinine. If shown pills of quinine sulphate, he
would not associate them with the cinchona bark. He does not know
quinine under the description of a substance in the form of pills and
he certainly would not know about the artificially synthesised
alkaloid.....
The quinine example shows that there are descriptions under which
something may in a relevant sense be known without anyone being
aware of its chemical composition or even that it has an identifiable
molecular structure. This proposition is unaffected by whether the
substance is natural or artificial. So far I have been considering what
it means to know about something in ordinary everyday life. Do the
same principles apply in the law of patents? Or does patent law have
a specialised epistemology of its own?
These issues of protection of TK and interpreting the same in harmony
with IPRs need to be resolved in right earnest. The right path ahead will
7
Merrel Dow Pharmaceuticals Inc V H N Norton & Co Ltd (1996) RPC 76 at 88 (per
Lord Hoffmann.
be one wherein:
a. Indigenous communities can exercise a veto on whether to
provide private parties with access to genetic resources
located on native land.
b. access is strictly denied to those who undervalue TK
c. rights of indigenous people are safeguarded through PIC
while preserving the integrity of scientific research
d. a balance is struck between the economic benefits of
bioprospecting and the fundamental right of self-
determination
e. monetary and non-monetary benefits are shared with the
knowledge-owners in a just and equitable way.
Harmonising IPR laws, placing ethnobotanical knowledge in public
domain and fostering indigenous commercialisation can go a long way
towards channelising benefits from exploitation of TK back to the
indigenous communities.
Successful Models
a. The Jeevani ( Aarogyapachha) Case
This is the first and foremost case in India dealing with benefit
sharing and won the UNDP Equator Initiative Prize 2002. Jeevani is a
restorative, immunity enhancing drug based on the medicinal plant
Aarogyapachha a perennial rhizomatous herb. The TK regarding these
medicinal properties was revealed by three members of the Kani tribe
(who inhabit the Agastyamalai forest of Western Ghats) to the scientists
of the TBGRI (Tropical Botanical Garden and Research Institute) .
In fact, the breakthrough came when under the All India Coordinated
Research Project on Ethnobiology, a team of scientists undertook a
botanical expedition into Agastyamalai, accompanied by members of the
Kani tribe as guides. During the expedition, the scientists observed that
the Kani guides frequently ate black fruits of some plants which kept
them agile. It was only after much persuasion that they showed the
scientists the plant (trichopus zeylanicus) from which the fruit was
obtained.
The technology was transferred to Arya Vaidya Pharmacy (Coimbatore)
Limited, (AVP) through an agreement. Jeevani was successfully marketed in
India and abroad (US, Japan, etc). TBGRI parted with 50 per cent of the
license fee as well as royalty to an autonomous mechanism to benefit the
Kani informers as well as to the Kanis of Kerala in general. This was done
as per Article 15.7 of the CBD. The Kerala Kani Samudya Kshema Trust
was registered as the institutional mechanism to receive the share in license
fee and royalty received by TBGRI from AVP. The objectives of the Trust
are:
(i) Welfare and development activities for Kanis in Kerala
 (ii) Preparation of biodiversity register to document the
knowledge base of Kanis
(iii) Evolving methods to promote sustainable use and
conservation of biological resources.
However, this process of benefit sharing also ran into rough weather.
The Kerala Institute for Research, Training and Development of
Scheduled Castes and Scheduled Tribes went on record that the tribals
had received a raw deal. Moreover, with commercialisation,
aarogyapachha began to be extensively collected from the forest. During
harvest of leaves, some people uprooted the whole plant. What followed
was large scale smuggling of the herb.
This is a classic instance of legal and policy vacuum resulting in
chaotic situations. In fact, the scopes of benefits could have been wider if

a. international patent applications had been filed under PCT

b. product patents were available in India at that point of time
for pharmaceutical products, not only process patents
c. trademarks had been registered to protect the distinguishing
signs of this product.
No doubt, the degree of involvement of various tribal settlements
could have been increased and more non-material benefits for them could
have been considered. Nevertheless, this model will go down into history
as one of the pioneer models in benefit sharing even before a formal
legislative framework was evolved in the country.
b. Suriname - ICBG Project
It is a good example of prospective benefit-sharing. It involves
identification of tribal knowledge, documentation of biodiversity, and
setting up of a trust fund to compensate the indigenous communities. The
TK of the Maroons encompasses ancient healing traditions. A trust based
relation between ICBG (International Cooperative Biodiversity Group)
and the Maroons can go a long way in preserving this TK. Informed
consent of the Maroons has been obtained through a letter of intent
issued by their paramount chief.
c. Samoas traditional healers and the mamala tree
A recent agreement has given the traditional healers in Samoa a share
of the benefits accruing from a new AIDS drug that draws on their TK of
the mamala tree.
d. Amrad - Tiwi Land Council Bioprospecting Agreement
 This is one of the pioneer bioprospecting agreements in Australia.
The AMRAD Pvt Ltd, an Australian Pharmaceutical company has
signed
agreements with the Aboriginal Tiwi Land Council for exclusive access
to plants on the Tiwi islands. In return for this, AMRAD agreed to pay
the aboriginal peoples a percentage of the profits from the sale of
pharmaceutical products developed from these plants.
e. Merck - INBio Agreement (Costa Rica)
Under this benefit sharing agreement, the INBio (a non-profit
organisation created by the Government of Costa Rica) will provide
10000 samples of plants, animals and soil to Merck Sharp & Dome.
Merck will retain patents to any drugs developed using the samples, but
will pay INBio USD 10 lakh upfront. There is also a promise to pay
royalties to INBio and provision to use the proceeds for the conservation
of biological diversity by the Government of Costa Rica.
f. AIMS -Queensland Government Agreement
The agreement between AIMS (Australian Institute of Marine
Science) and the Queensland Government pertains to sharing of
benefits of commercial exploitation arising out of research carried on by
AIMS on the biota from Queensland waters. The benefits shared include
non-monetary ones too (capacity building, sharing of scientific
knowledge, etc). A salient feature of the agreement is the provision
regarding documentation of biodiversity so as to assist in more effective
management.
g. Shaman Pharmaceuticals-Consejo Aguaruna Haumbisa negotiations
Shaman Pharmaceuticals is developing business relationships with
indigenous groups. In Peru, they have negotiated with Consejo Aguaruna
Hauambisa (an indigenous federation) to supply them a sustainable
harvest in return for reciprocal benefits. The revenue will be distributed
through Healing Forest Conservancya non profit organisation .
h. Body Shop and Kayapo Indians
Body shop is bioprospecting in Kayapo area of Brazil drawing on
TK of Kayapo Indians. A part of the benefit accrues to the indigenous
people too.

CONCLUSION

Traditional knowledge or cultural goods are more like natural goods

than software programmes like Java or C++. They create, in effect,
environment for monopolisation in their very existence. Marx turned to
this problem in Volume III of Capital:
Capital cannot create a waterfall from its own resources. The
surplus profit that arises from the use of this waterfall thus arises not
from the capital but rather from the use by capital of a
monopolisable and
 monopolised natural force. Under these conditions the surplus profit
is transformed into ground-rent, i.e. it accrues to the owner of the
waterfall this rent is always a differential rent, for it does not
contribute to determining the general production price of the
commodity, but takes this as givenLanded property does not create
the portion of valued that is transformed into surplus profit; rather it
simply enables the landowner, the proprietor of the waterfall, to
entice this surplus profit out of the manufacturers pocket and into his
own
(Marx, Karl, [1981]1895)

Similar to waterfalls of Marx, biodiversity and traditional knowledge

are not found all over. They are also not replicable. In effect, they
introduce an irreducible unevenness to an otherwise totalising system.
This capitalist development creates crises and repeated cycles of
exploitation, eventually threatening the environment of subsistence itself.
The point is that the capitalistic model of conservation of biodiversity by
documentation of indigenous knowledge will result only in flattening of
cultural and social richness and will fall short of its avowed objectives.

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