1 1
Protection of Traditional Knowledge:
Protection of Traditional Knowledge:
International and National
International and National Initiati
Initiatives
ves
and
2 2
Introduction
Introduction
Around the world, various local communities possess knowledge and practices gained by Around the world, various local communities possess knowledge and practices gained by them through experience of centuries and transferred from generation to generation. This them through experience of centuries and transferred from generation to generation. This culturally transmitted knowledge is referred to as traditional knowledge. Traditional culturally transmitted knowledge is referred to as traditional knowledge. Traditional knowledge is the result of intellectual activities in diverse traditional contexts. The term 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 “traditional knowledge” is a very broad concept, which encompasses within itself indigenous knowledge related to various categories like agricultural knowledge, medicinal knowledge, knowledge related to various categories like agricultural knowledge, medicinal knowledge, bi
bio o diversitdiversity y related related knowknowledge ledge as as well well as as expressexpressiions ons of of ffolkolkllore ore in in the the fforor m m oof f mumusic,sic, dance, songs, handicraft, designs etc. It has played and still plays an important role in the dance, songs, handicraft, designs etc. It has played and still plays an important role in the lif
lifeestyle of instyle of indigedigennous communities.ous communities.
Traditional knowledge is capable of providing clues for making commercial products which 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 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 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 can be enjoyed by future generation and so that the traditional communities can develop and su
sustastain in in in wawayys consistent with their own vs consistent with their own vaalues and intlues and inteerests.rests.
There is a growing recognition for traditional knowledge and traditional cultural expression. There is a growing recognition for traditional knowledge and traditional cultural expression. Traditional knowledge have the potential of creating wealth for the communities. 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 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 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 commercial value. Indigenous knowledge of indigenous people must be protected under the prin
princciiples oples of right tf right to self detero self determinminatat iion and ron and right ight to development.to development.
Knowledge both modern and traditional are under peril in the age of Globalisation. The 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 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 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 of infringement of their rights. International community realises that national initiatives alone are in
are incapabcapab lle for e for TK protection . World nations are cTK protection . World nations are c uurrently errently engngaged in extensaged in extensivive disce discuussss iionon on
on preserpreservvaation tion oof traf traditditional ional knowknowlledge under edge under vvarioariouus internats internatiionaona l institul institutiotionnss
This paper will discuss the international and national initiatives regarding protection of 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 traditional knowledge. It will also look into the proposals laid down by the developing nations in various international fora regarding the same.
nations in various international fora regarding the same. Methodology
Methodology
The methodology used is purely doctrinal. The relevant material is collected from primary and 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 secondary sources. Material and information are collected from various National enactments and iinternatnternatiional instruments, onal instruments, llegaega l l & other sources like p& other sources like pubublilished works, shed works, llaw journalaw journalss, n, natatiional journals,onal journals, and websites on relevant topics.
Definition, Nature and Scope of
Definition, Nature and Scope of Traditional Know
Traditional Knowledge
ledge
Traditional Knowledge is dynamic in nature and it is difficult to coin a concise definition for Traditional Knowledge is dynamic in nature and it is difficult to coin a concise definition for the term which will cover all aspects it holds
the term which will cover all aspects it holds11. The debates for a single definition for. The debates for a single definition for traditional knowledge were always without consensus. As subject matter here is very 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 dynamic in nature it should be taken care that its definition does not delimit or restrict its scope. B
scope. Broadly speaking aroroadly speaking aro unund the d the worlworld d there are certathere are certa in in ccumulumulative bodative body of knoy of knowledgewledge which is handed down through generations through cultural transmission; this is known as which is handed down through generations through cultural transmission; this is known as traditional knowledge
traditional knowledge22. As per the official definition of WIPO. As per the official definition of WIPO33 traditional knowledge istraditional knowledge is traditi
tradition-based on-based litliterareraryy, , artartiiststiic c or or scientific scientific worworks; ks; performances; performances; inventions; inventions; scientificscientific disco
discovvereries; ies; desdesigns; igns; mmaarks, rks, namnamees s aannd d ssymymbobols; ls; undisclosed undisclosed informatinformation; ion; aand nd aall ll ootherther tradition-based innovations and creations resulting from intellectual activity in the industrial, 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 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 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 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 can survive in current hostile environment. Intertwined within practical solution, they transmi
transmit hist history, beliefs, aesthetics, ethics and tradtory, beliefs, aesthetics, ethics and traditions of particular people.itions of particular people.
One can say that TK permeates into wide regimes of human interest like agriculture, bio 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 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 through cultural transmissions. It is the knowledge originated from a local or traditional community
community that that is this the rese res ult of intult of intellectuaellectua l l actact ivity ivity and insand insight in ight in a a tradititraditionaona l contel contexxt,t, inclu
includding ing know how know how skills, skills, innovationsinnovations, practices and learning embodied in th, practices and learning embodied in the e liflife ste stylyle of ae of a community
community44. It is the collective property of the society derived from generations and is used. It is the collective property of the society derived from generations and is used by the in
by the indigedigennous communities in their interactous communities in their interactiions wons with each other. It incith each other. It incluludes ades a ll knll knowledgeowledge and practices which we apply in diverse facets of life. TK is subjected to a continuous and practices which we apply in diverse facets of life. TK is subjected to a continuous process
process of verof verifiificatcat iion adaptions aon adaptions annd creation through d creation through cchhanging sociaanging social l conditions.TK is part.conditions.TK is part.
1 see srinivas Krishna Ravi,
1 see srinivas Krishna Ravi, Traditional knowledge and intellectual Property Rights: A note on issues, someTraditional knowledge and intellectual Property Rights: A note on issues, some solut
solutions and ions and some ssome s uggestuggestionion ––Page 3 , available aPage 3 , available a t SSRN www.ssrn.com/abstract1140623t SSRN www.ssrn.com/abstract1140623 2 Berkes, F., 1999,
2 Berkes, F., 1999, Sacred Ecology, Taylor and Francis cited in World Intellectual Property Organisation-Sacred Ecology, Taylor and Francis cited in World Intellectual Property Organisation-Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, 2002, “Traditional Knowledge: Operational Terms and Definitions
Folklore, 2002, “Traditional Knowledge: Operational Terms and Definitions ”, WIPO/GRTKF/IC/3/9,”, WIPO/GRTKF/IC/3/9, Annexure 2
Annexure 2
3 Information note on traditional knowledge prepared by International Bureau of WIPO available 3 Information note on traditional knowledge prepared by International Bureau of WIPO available @WIPO/IPTK/MCT/02//INF/3
@WIPO/IPTK/MCT/02//INF/3
4Swapokmund Protocol on protection of traditional knowledge and expressions of folklore within the 4Swapokmund Protocol on protection of traditional knowledge and expressions of folklore within the fra
of a collective, ancestral, territorial, cultural and intellectual heritage. This knowledge is of a collective, ancestral, territorial, cultural and intellectual heritage. This knowledge is establishe
established on td on t hhe basis of past obsere basis of past obser vvations and experiences. It ations and experiences. It iis diverse s diverse in natin natuure,re, individuals, groups or communities may be their custodians. In fact this knowledge that is 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 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 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 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
representative of cultural values of people which was derived b y yy years oears o f f practpractices.ices.
Often TK is equated with the term indigenous knowledge. But this view is not correct. Often TK is equated with the term indigenous knowledge. But this view is not correct. In
Inddigenoigenous us kknnoowledge wledge iis a part of TK, but s a part of TK, but boboth are not the th are not the sasame.TK in its vme.TK in its vaarious forms rious forms hhaaveve fulfilled the needs of local and indigenous people in different ways. The context of TK and its 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 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 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 generation unlike Indigenous knowledge holders who has to claim for a prior territorial occupancy
occupancy55. Thus indigenous knowledge is a subset of TK which is not different from the. Thus indigenous knowledge is a subset of TK which is not different from the latter, e
latter, except xcept thathat the ht the hoollderders hs heere are inre are inddigigeenous peopnous peop lle belonging to a partie belonging to a particcular area andular area and other holders include even non indigenous people embodying traditional lifestyle.
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 Some forms of TK is and passed to successive generations through oral tradition.TK may be possess
possessed bed b y soy so mme e inindividuals dividuals or or by soby so me me mmemembers bers of a of a particular particular ggroup roup or be or be aavvaailablilable e toto all members of the community (common knowledge).TK is evolving as a response of all members of the community (common knowledge).TK is evolving as a response of in
individual adividual a nnd cod commmmunities to unities to the challenges posed bthe challenges posed b y thy their soceir social environmential environment.. TK wh
TK when en mmodified aodified annd enriched becod enriched becomme vae va luluable kable knnoo wlwledge whicedge whic h h cacan n be be uused forsed for commercial exploitation. In recent years there have been recognition and appreciation of TK commercial exploitation. In recent years there have been recognition and appreciation of TK by sc
by sc iieentific ntific community. Sccommunity. Sc ientists ientists nnow ow realise realise that that the the aammount ount of of knowledge poknowledge possessed ssessed byby in
indigedigennous communities, ous communities, when prwhen properoperly utilily utilized cazed can lead to n lead to inninnovatovatiions of coons of commmmerciaercial vl value.alue. Discussions over protection of TK is taking place now a days because a large number of 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 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 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 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 value should give a due share of their benefits to the community who had preserved this knowledge for years.
knowledge for years.
5 Ibid 5 Ibid
Need for Protection of Traditional Knowledge
Need for Protection of Traditional Knowledge
Anywhere in the world people need protection of their properties; tangible property can be 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 easily protected, but the case of intangible property is different. They require some more effective mechanisms like patents, copyrights, trademarks, geographical indicators etc. These effective mechanisms like patents, copyrights, trademarks, geographical indicators etc. These mechanisms can be effectively used to protect individual‟s intangible properties. Question 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 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 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.
and policy which is even beyond the expansive view of intellectual property.
Indigenous people have an immense understanding about their complex ecosystems, Indigenous people have an immense understanding about their complex ecosystems, proper
properties ties of of plants plants and and animanimaals ls aannd d regarding regarding the the techniques techniques of of uusing sing them based them based on on theirtheir living close with nature for centuries
living close with nature for centuries66. This knowledge when transformed into a formal. This knowledge when transformed into a formal specification is sources of wealth. But these communities at large are in the grip of illiteracy 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
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 World have witnessed the conversion of collective knowledge of the society into proprietary knowledge of a few.
knowledge of a few.
Many of the indigenous communities are living on the basis of the knowledge they preserved 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 for generations. The development of new technologies and the use of traditional knowledge are posing serious threat to the sur
are posing serious threat to the survivvival oal of thef these communities. Tse communities. Thhe modern inde modern induustrstriies are es are nnowow a day‟s exploiting indigenous knowledge without permission or sharing of pr
a day‟s exploiting indigenous knowledge without permission or sharing of pr ofit with theseofit with these communities
communities77. TK is capable of providing valuable leads which may result in products of. 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 high commercial value. The protection of TK would be necessary to bring equity to such un
unjust and unequal relatiojust and unequal relatio nns.s.
Another factor that calls for protection of TK is to maintain the practices and knowledge 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 derived from traditional life styles. Preservation of TK is intended to provide self identification to these indigenous communities and thereby provide continuous existence of identification to these indigenous communities and thereby provide continuous existence of indigenous people
indigenous people88. If TK is having a high economic potential, then its prospects should be. If TK is having a high economic potential, then its prospects should be
6 state
6 statemm ent made by Frederico Mayor, Formeent made by Frederico Mayor, Forme r Direr Director Gctor G eneral UNESCOeneral UNESCO 7 see Tripathi
7 see Tripathi SK InSK In telltellectuectuaa l property and genel property and gene tic resourcestic resources, traditional Kno, traditional Kno wledge Folklwledge Folkloreore : International,: International, regional and national perspectives, trends and strategies, Journal of intellectual property rights, vol 8, regional and national perspectives, trends and strategies, Journal of intellectual property rights, vol 8, page
pages 468 s 468 -477-477
8 see correa carlos M,
8 see correa carlos M, Traditional Knowledge and intellectual property Traditional Knowledge and intellectual property , , pages pages 6 6 and and 7, 7, availableavailable @www.geneva.quno.info
used for the general wellbeing of the communities which preserved them for generations. 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 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 the future well being, development, cultural and intellectual vitality of indigenous communities.
communities.
TK is dynamic in nature and it used to change according to the changes that take place in the 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 society. Process relating to formation of TK may not be documented in a way scientific and technol
technologicaogical informl informatatiion are on are recordedrecorded99. This non systematic manner of recording has been a. This non systematic manner of recording has been a great concern in giving recognition to TK. Patents have been granted to non original great concern in giving recognition to TK. Patents have been granted to non original inn
innovatovatiions wons which are already a hich are already a part of tpart of traditional knowledge.raditional knowledge. Bio-piracy:
Bio-piracy:
In recent years patenting of traditional knowledge based prod
In recent years patenting of traditional knowledge based prod uucts cts hhave been a great concerave been a great concer nn.. TK based products were given patent even ignoring the novelty and inventive step when 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 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 commercial value, which are then patented without sharing any benefit with the source of the TK is termed as „bio
TK is termed as „bio-- p piiracrac yy‟. ‟. It It is tis the approphe appropriation oriation of tf thhe ke k nnowowledge aledge annd d ggeennetetiic c resourcesresources of farming and indigenous communities by individuals or institutions seeking exclusive of farming and indigenous communities by individuals or institutions seeking exclusive monopoly over these resources and knowledge
monopoly over these resources and knowledge1010 ..
Bio piracy can be described as grant of wrong patents to invention that are neither novel nor 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 inventive having regard to traditional knowledge already in public domain. Such patents may be
be ggranted ranted due due to to the the lack olack of docf doc umentumentaation or tion or recorecognitignition on of of TK aTK a s a s a prior aprior a rt. rt. Bio pBio p iracyiracy may also happen in cases where patents are granted according to the existing national may also happen in cases where patents are granted according to the existing national legi
legislatslations whiions which does not recognize cech does not recognize certartain fin foror m m of public disclof public discloosure sure as prior art as in thas prior art as in thee case of USA
case of USA1111. Bi. Bio piracy has now emerged as a tero piracy has now emerged as a ter m to m to describe tdescribe thhe free ride oe free ride of f corporatiocorporationnss of developed nations over the genetic resources and traditional knowledge of developing of developed nations over the genetic resources and traditional knowledge of developing countri
countriees. Bio ps. Bio piracy iiracy is s thus misappropriatiothus misappropriation of genn of genetetiic rc resources or related esources or related TK through theTK through the
9 varkey Elizabeth,
9 varkey Elizabeth, Law of Law of patepatentsnts
10
10definitions gdefinitions given by the Aciven by the Ac tion Group tion Group oo n Erosion, Technology and Concentration (ETC group)n Erosion, Technology and Concentration (ETC group)
11 See Shiva Vandana, Monsanto’s Biopiracy, available at
11 See Shiva Vandana, Monsanto’s Biopiracy, available at http://www.countercurrents.org/en-
http://www.countercurrents.org/en-shiva270404.htm
patent system. Bio p
patent system. Bio p iiracy racy is not jis not juust a st a mmatteatter or o f law it f law it iis os o nne oe o f morf morality aality a nnd od o f fairness. It f fairness. It iiss more like exploitation of resources of a community which lack development. Biopiracy can more like exploitation of resources of a community which lack development. Biopiracy can be
be regarderegarded d as as double double theft theft becabecauuse se firstly firstly it it aallows llows thethefft t of of creatcreativity ivity and and innovation innovation andand secondly it establishes exclusive rights on stolen knowledge and steal economic options of secondly it establishes exclusive rights on stolen knowledge and steal economic options of ev
everer y dy daay y sursurvivvival oal o f indigenous commuf indigenous communnities on tities on thhe base bas iis s of tof thheir coeir commmmon knowledgeon knowledge1212.But.But we mu
we must st nnoote that such te that such casecases of gs of grant rant oof wf wrorong ng papatents atents and nd thetheir ir ssubsequent revocaubsequent revocation htion hadad led to more debate in this area and thereby development of new initiatives like Traditional led to more debate in this area and thereby development of new initiatives like Traditional kn
knowowlledge digital libraries which edge digital libraries which provides for provides for documentation documentation of of TK TK .. Now we Now we can can describedescribe some of the cases relating to Biopiracy in detail.
some of the cases relating to Biopiracy in detail. Case of Turmeric ( Curcuma longa) Case of Turmeric ( Curcuma longa) Turmeric
Turmeric iis a plant s a plant oof gingf ginger faer family mily whose rhizowhose rhizommees are used as spis are used as spice ce ffor or flavoring Indiaflavoring Indiann cooking. Along with this it has properties that make it an effective ingredient in medicines 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 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 Indians were granted a US patent (NO 5401, 5041) for using turmeric to be used as a medicine for wound healing
medicine for wound healing1313. The C. The Counouncil of Sccil of Sc ientifiientific ac a nnd Industrial Researcd Industrial Research (CSIRh (CSIR) ) filfileded a re-examination case with US patent and Trademark office, challenging the patents on the a re-examination case with US patent and Trademark office, challenging the patents on the ground of „„prior art‟‟. CSIR pointed out
ground of „„prior art‟‟. CSIR pointed out that the said turmeric has been used for thousandthat 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 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 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 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 India for centuries. The turmeric case was a landmark judgment as it was the first time a patent
patent based obased o n n TK was successfully challenged.TK was successfully challenged.
C
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of
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ee
em
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Neem
Neem ie ie aazadiracht zadiracht indiindica ca iis s a a tree tree ffound ound in in India India aannd d other other parts parts of of SoSouuth th and and SoutheastSoutheast Asia. It is famous for its properties as a natural medicine, pesticide and fertilizer. Neem Asia. It is famous for its properties as a natural medicine, pesticide and fertilizer. Neem extra
extraccts can be used ats can be used aggainst hundreds of pests aainst hundreds of pests annd d fungfungal dal d iseases that attack cropsiseases that attack crops ; oil; oil
12 see vandana Shiva, The
12 see vandana Shiva, The US patent system Legalizes Theft and Biopiracy US patent system Legalizes Theft and Biopiracy , The Hindu, Wednesday, July28,, The Hindu, Wednesday, July28, 1999
1999 13 see
extracted from its seeds is used to treat colds and flu; it is believed to offer relief from malaria 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 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 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 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. 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 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 centuries in Indian agriculture to protect crops and thus was lacking inventive step.EPO accepted this claim a
accepted this claim annd revoked the pated revoked the pate nntt1414..
Case of Ayahuasca( Banisteriopsis caapi) Case of Ayahuasca( Banisteriopsis caapi)
Shamans the indigenous tribals of Amazon basin were using the bark of B.
Shamans the indigenous tribals of Amazon basin were using the bark of B. CaapiCaapi to produce a to produce a ceremonial drink known as “ayahuasca” for generations. “Ayahuasca” means
ceremonial drink known as “ayahuasca” for generations. “Ayahuasca” means wine of soulwine of soul and is used in religious and healing ceremonies to diagnose and treat illness. An American 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
national Loren Miller obtained a US plant patent ( Patent no 57511515, issued in 1986) granting, issued in 1986) granting him righ
him rights ots ovver aer a n n aalleglleged ed vvariety of ariety of B.B.CaapiCaapi which he had collected from a domestic garden which he had collected from a domestic garden in Amazon and was named as “Dä Vine” , which was peculiar for
in Amazon and was named as “Dä Vine” , which was peculiar for its medicinal properties. its medicinal properties. But in this case “Da Vine” represented a new and distinct variety of B.
But in this case “Da Vine” represented a new and distinct variety of B. caapicaapi because of its because of its flow
floweer cor co llour.our.
The coordinating Body of Indigenous Organizations of Amazon basin which represents more The coordinating Body of Indigenous Organizations of Amazon basin which represents more than 400 in
than 400 indigedigennous trous triibes bes in the Amazon region, along with others protested against in the Amazon region, along with others protested against ggrantrantinging of wrong patent for B.
of wrong patent for B.Caapi.Caapi. T Thheey made argumy made argumeent thnt that aat ayyahuasca that ahuasca that hhad been known tad been known to to thhee natives of Amazon basin for its medicinal uses. This argument was accepted and on re natives of Amazon basin for its medicinal uses. This argument was accepted and on re examination USPTO revoked this patent on 17
examination USPTO revoked this patent on 17tt hh April 2001. April 2001.
The case of jeevani drug and Basmati rice are two other cases where the patent granted on The case of jeevani drug and Basmati rice are two other cases where the patent granted on TK based products were successfully challenged.
TK based products were successfully challenged.
14 see
14 see India wins neem patent caseIndia wins neem patent case, reported in Hindu , reported in Hindu mm ararch 8 2005ch 8 2005 15 see
Limitations of IP based protection Limitations of IP based protection
All these cases point out the relevance of TK as a prior art and the need for an effective 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 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 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 certain evidences relating to prior publication of properties of turmeric and neem. The term prior art re
prior art re fers to afers to a ny published ny published content acontent a vvailabailablle e in tin thhe pe p uublic doblic do mmaain bein beffore ore the the filfiling daing datete of a patent application. Normally before grant of patents an extensive search for prior art is of a patent application. Normally before grant of patents an extensive search for prior art is performed
performed by tby the he concerned concerned patent patent offices.TK offices.TK whiwhicch h is is orally orally transferred transferred anand d preserpreservved ed byby generations may not be available in a systematic and organized document. Besides this even 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 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. 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 This paves way for granting of erroneous patents for commercial products based on kn
knowowlledge of edge of inindigedigennous communities.ous communities.
Another reason which points out that current IP system is inadequate to protect TK is that it is Another reason which points out that current IP system is inadequate to protect TK is that it is based on indivi
based on individuadua l l prpr ivivaate prote propertperty rights ay rights annd Traditionad Traditional l knowknowlledge oedge o n the other n the other hhaannd resd reststs on collective creation and ownership .Besides this the term “protection” under present I on collective creation and ownership .Besides this the term “protection” under present I PP system indicates the owner of that IP has a legal right to exclude others from using or 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 reproducing it. This aspect is contrary to the concept of TK. Indigenous knowledge are not ex
exclusclusivive re r ightights of a parts of a part iicular cular inindividual they are odividual they are often ften shared beshared betwtween teen thhe soce soc iial al ggroup, thusroup, thus we can
we can say tsay thhat tat thhere is an inherent difference betweeere is an inherent difference betwee n n currecurrennt IP protection ant IP protection and TK.d TK.
One can rightly say that the current patent system provides for economic interests of only 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 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 knowledge to the present stage. Besides this the current IP system does not provide for community
community patepatennt wt whihicch h can used to pcan used to p rotect collective knowledge of the society. This rotect collective knowledge of the society. This llaackingcking of provisions for community patent has led to the question of who can be the owner of of provisions for community patent has led to the question of who can be the owner of patent
patents, based s, based on TK on TK anand d hhow ow benbenefits efits ininccuurrrring fring from som such pateuch patennts cats can be dn be d iistrstriibuted buted amongamong the soci
Current patent system is based on the principles of novelty, non - obviousness and industrial 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 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 something evolved through generations so it lacks the principle of novelty. TK is developed by trial a
by trial annd errors. Ad errors. Also TK as slso TK as suuch mach may ny not be ot be hhaving aaving any commercial applicationy commercial applicationn, it , it indeedindeed requires certain changes. So we can see that existing patent system is incapable of giving requires certain changes. So we can see that existing patent system is incapable of giving prote
protectioction n to TK as there is ato TK as there is an n essentessentiiaal differel differennce between both the conce between both the concepts.cepts.
A sui generis system, which provides for sustainable use and benefit sharing, is essential for A sui generis system, which provides for sustainable use and benefit sharing, is essential for prote
International Initiatives for protection of Traditional knowledge
International Initiatives for protection of Traditional knowledge
Traditional Knowledge is a complex multi facet issue. Many countries and Organizations 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 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 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 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 indigenous communities. WIPO and UNEP had undertaken joint studies relating role of IPR and sharing of benefits with communities for use of TK
and sharing of benefits with communities for use of TK 1616 while on the other hand CBD and while on the other hand CBD and FAO had undertaken studies relating to common areas in agriculture. Issue relating to TK is FAO had undertaken studies relating to common areas in agriculture. Issue relating to TK is also
also discdiscuussed in arenssed in arenas reas rellaating to ting to rights of indigenous rights of indigenous people and culturpeople and cultural eal exxpressipressions. ons. OOff course the role of different organization in framing a policy significantly varies from each course the role of different organization in framing a policy significantly varies from each other.
other.
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n B ii o
ologi
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cal D
l Dii ve
verr si
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ty
The convention on biological diversity (CBD) was the result of discussion concluded at Rio The convention on biological diversity (CBD) was the result of discussion concluded at Rio de Janeri
de Janerio o on United on United nnatioationns conferes conferennce oce on earth an earth annd developd developmment (ent (Earth SummiEarth Summit), 1992.Tt), 1992.Thhee convention provides for protection of environment without compromising with the ongoing convention provides for protection of environment without compromising with the ongoing econ
economic deomic de vvelopelopmmentent1717.Th.The coe convnvententiion pon providerovides s for recognition ofor recognition of knf knowledge of owledge of llocaoca l anl andd indigenous communities in genetic materials and sharing of benefit derived from it. Article 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 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, appropriate , subject to its national legislation respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity and promote the 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,, 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 innovations and practices and encourage the equitable sharing of benefits arising from u
utilizatiotilizatio n of such knowledge , innovations an of such knowledge , innovations annd practd practiicesces ””..
16 see wipo statement to cte an
16 see wipo statement to cte an d trips cound trips coun cilcil, w, wt/cte/w/182, 6th February t/cte/w/182, 6th February 20012001 17 r adair, the
17 r adair, the bio prospecting question: the commerbio prospecting question: the commercial cial use of public use of public wild genetic resowild genetic resourcesurces 1997, ecology law 1997, ecology law quarterl
CBD can be regarded as the first international initiative to recognize the contribution of CBD can be regarded as the first international initiative to recognize the contribution of indigenous and local communities in conservation of biodiversity
indigenous and local communities in conservation of biodiversity1818. In its preamble CBD. In its preamble CBD recognizes the dependence of many indigenous communities on biological resources and 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 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 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 contracting party shall protect and encourage customary use of biological resources in accordance with traditional cultural practices which are compatible with conservation .Art accordance with traditional cultural practices which are compatible with conservation .Art 18(
18(4) defines tec4) defines tec hnhnology to include ology to include “in“indigedigennous and tradous and traditiitional teonal technologies”.chnologies”.
Ar
Art 8(j) t 8(j) iis s nnot free froot free from limim limitattations, the saiions, the said artd article does not talk about protection oicle does not talk about protection of Tf TK bK buut itt it vaguely calls on the parties to respect, preserve and maintain it. It does not guarantee 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 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
leaves the preservation of this knowledge at the discretion of the parties. Phrases “as“as far as far as possi
possi b blle” e” inin art 8 (j) indicates that the convention does not makes a mandatory requirementart 8 (j) indicates that the convention does not makes a mandatory requirement about pro
about protecttectiion oon of rights of f rights of inindigedigennous communitiesous communities1919..
Though there are flaws, CBD has the most important place as an international instrument Though there are flaws, CBD has the most important place as an international instrument whi
which officiach officia lly rlly recognized the ecognized the rights of indigenous communities.rights of indigenous communities.
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TRIPS agreement also has some provision which can be applied in a limited way for TRIPS agreement also has some provision which can be applied in a limited way for prote
protectioction on o f f tradititraditional onal knowledge. knowledge. Article Article 1 1 of of TRIPS TRIPS AgreAgreeement pment p rovidrovides es that that memmembersbers may but shall not be obliged to implement in their domestic laws more extensive protection 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 than that is required by the agreement, provided that such protection does not contravene the provi
provisions of tsions of this agreement. Mahis agreement. Ma ny ny JurJuriists sts hhave opave op inined ted thhat at this provision can be invoked forthis provision can be invoked for prote
protectioction n of of TK. They arTK. They argugue e that absence othat absence of term TK f term TK in thin the ae a ggreemereemennt does t does nnot pot prevent anyrevent any member from enacting any provision for protection of TK
member from enacting any provision for protection of TK 2020 ..
18 see the
18 see the bio diversity convention: the concerns of indigenous people( bio diversity convention: the concerns of indigenous people( 1998) Australian indigenous law1998) Australian indigenous law re
reporter pagporter pag e 38 , ave 38 , av ailable @ailable @ www.austlii.edu.au/cgi-bin/disp.pl/au/journals/alir/1998/3\www.austlii.edu.au/cgi-bin/disp.pl/au/journals/alir/1998/3\
19 see Mugabe. J & Kameri P ,
19 see Mugabe. J & Kameri P , Traditional Knowledge, Genetic Resources and Intellectual propertyTraditional Knowledge, Genetic Resources and Intellectual property protection:
protection: Toward Toward a a new new internationainternational l regime,regime, prepared by International Environmental law research prepared by International Environmental law research Ce
Centre, availantre, availa ble @ble @ www.ielrc.org/content/w0105.pdf www.ielrc.org/content/w0105.pdf
20 see Dutfield,
20 see Dutfield, Can the TRIPS Agreement Protect Biological and Cultural Diversity Can the TRIPS Agreement Protect Biological and Cultural Diversity ? Available? Available @
But under TRIPS it is not possible to protect TK under patent law. TRIPS requires member 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 state to grant patent only to that inventions which are new, involving an inventive step and are capable of indu
are capable of industrstrial ial applicatapplicat iion. But on. But these these aattributes cannot be appttributes cannot be app lied in lied in the field of TK,the field of TK, as it is not new and is incapable of industrial application as such
as it is not new and is incapable of industrial application as such2121. But it is to be noted here. But it is to be noted here that the same provision can be invoked to prevent biopiracy. Besides this there are authors 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 who argue that obligation to protect geographical indications provided by TRIPS agreement can be used to protect TK
can be used to protect TK 2222. TRIPS agreement by itself does create any measures for. TRIPS agreement by itself does create any measures for prote
protectioction on o f f tradititraditional onal knowledge knowledge aannd d inninnovatovatiions ons of of inindigedigennous ous people people ininstead stead it it createscreates measures for establishing alternative measures for its protection
measures for establishing alternative measures for its protection2323..
Article 27 of the TRIPS agreement states that the members may exclude from patentability 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 inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect
necessary to protect ordre publicordre public or morality, including to protect human, animal or plant life or morality, including to protect human, animal or plant life or health or to a
or health or to avvoid seroid seriious preous pre judijudice ce to the eto the envinvironment. The ronment. The nnotions ofotions of ordre publicordre public are not are not defined in the agreement. However it is clear that those inventions that causes injury to defined in the agreement. However it is clear that those inventions that causes injury to envir
environment as well onment as well as plaas pla nnt or t or aanimnimal life can be exclual life can be excluded. ded. It has It has been argued that statesbeen argued that states can use this provision for the
can use this provision for the protecprotection of biological diversity associated wtion of biological diversity associated with ith the the inindigedigennousous communiti
communities. es. ArArticticlle 27.3(b) oe 27.3(b) of thf the TRIPS states te TRIPS states t hhat the at the mmeembermbers ss shhall proall pro vide forvide for prote
protectioction n of plant varietof plant varietiies ees e iither bther by y waway y oof f patepatennts or by an effective sui generis system.ts or by an effective sui generis system.
Besides this there were lots of discussions regarding TK protection at the TRIPS Council. Besides this there were lots of discussions regarding TK protection at the TRIPS Council. Th
These initially took pese initially took pllaace in the context of implementation of Art 27.3(b). ce in the context of implementation of Art 27.3(b). The fourth meThe fourth meeetingting of the WTO Ministerial Conference which took place in Doha in November 2001 a 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 Ministerial Declaration was adopted to which the member states instructed the TRIPS Coun
Council to examine tcil to examine t hhe relatioe relatio nnship betweeship between n the TRIPS Agreemethe TRIPS Agreeme nt and CBD and also thent and CBD and also the prote
protectioction on o f tradf trad iitiotionnal al kknnowowlledge edge and and ffolkolklloreore2424. TRIPS has left out from its purview the. TRIPS has left out from its purview the mat
matter oter of f protectprotect iion of naton of natuural assets aral assets a nnd assocd assoc iated kniated knowowlledge wedge which are owned by nationhich are owned by nation
21
21 see Mugabe John ,see Mugabe John ,Intellectual property protection and traditional knowledgeIntellectual property protection and traditional knowledge , page 14, page 14 –– 17available@ 17available@ www.wipo.int/tk/en/hr/paneldisscussion/pdf/mugabe/pdf
www.wipo.int/tk/en/hr/paneldisscussion/pdf/mugabe/pdf
22 see varkey Elizabeth ,
22 see varkey Elizabeth , TradiTraditional tional KnowKnowledge ledge - - The The changichangi ng ng scenario in scenario in IndiaIndia , available @, available @ www.law.edu.ac.uk.ahrb/publication/varkey/htm
www.law.edu.ac.uk.ahrb/publication/varkey/htm
23
23 see art 24(3) (b) of TRIPS agreement “Members shall provide for the protection of plant varieties eithersee art 24(3) (b) of TRIPS agreement “Members shall provide for the protection of plant varieties either by patents or by an sui gener
by patents or by an sui generis or by any cois or by any co mbinatmbinations thereofions thereof 24 see
states, communities or individuals. On a whole we can say that conventional intellectual states, communities or individuals. On a whole we can say that conventional intellectual proper
property ty laws laws ununder der the the TRIPS TRIPS does does nnot ot consider consider TK TK as as intellectual intellectual propertyproperty worthworth prote
protectioction n though pathough pa tentatentabilbility ity of of products products or or process process using using traditional traditional knowknowledge ledge poses poses aa number of questions.
number of questions.
T
T he
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onal co
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nventi
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on for
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ect
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on of new
f new va
varr ii e
eti
ti e
es o
s of plan
f plants (U
ts (U P
P OV
OV
Convention)
Convention)
The UPOV convention is an international convention exclusively dealing with protection of The UPOV convention is an international convention exclusively dealing with protection of n
neew plw plant ant vvarieties aarieties annd is sd is silent on thilent on the se s uubject of traditional knowledge bject of traditional knowledge aannd gend gen etic resources.etic resources. However it does not forbid granting or creation of rights in respect of TK
However it does not forbid granting or creation of rights in respect of TK 2525. Besides this. Besides this some provisions of the convention can be used to protect the interest of indigenous persons. 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 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 an incentive to pursue innovative activity and to enable breeders to recover their investment in breeding
in breeding..
Article 7 of the 1991 Act of the UPOV provides that “the variety shall be deemed to be 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 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 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 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, 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. novel and stable. These conditions can be considered as similar to the criteria for patenting. Th
These provisese provisiions caons can n be be invinvoked as a deoked as a defensive stratefensive strategy for thgy for the ke k nnowowlledge oedge of inf inddigenousigenous communities relating to plant varieties as to grant IP protection the convention specifically communities relating to plant varieties as to grant IP protection the convention specifically provi
provides it to be distinct and noveldes it to be distinct and novel2626..
Besides this it should be noted that the process of applying for plant variety protection is 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
relatively simple and can be done even without legal help. This feature fac iliilitatetates thes the
25see Gree
25see Greenn grass grass Barry,Barry, Plant variety protection and protection of traditional knowledgePlant variety protection and protection of traditional knowledge, available @, available @ www.unctad.org/trade/_envi/docs/unpov.pdf
www.unctad.org/trade/_envi/docs/unpov.pdf
26 see guidance for preparation of laws based on 1991 Act of the UPOV convention, available 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
applications of small plant breeders. Accordingly UPOV system can be used as a tool for applications of small plant breeders. Accordingly UPOV system can be used as a tool for prote
protecting cting plaplannt t vvarar iietaetal l inninnovatovatiion on of of inindigedigennous ous communitiescommunities2727. Under the convention, a. Under the convention, a farmer who produces a protected variety from saved seeds are guilty of infringement unless 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 national law provides so, these provisions tends to weaken the economic position of in
indigedigennous ous communities.communities.
U
UN
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n on R
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UN declar
UN declaratat iion on Ron on Rightights of Is of I nndigedigennous persoous personns was adopted bs was adopted b y UN gy UN generaeneral assembly duringl assembly during its 62 sessio
its 62 session on 13n on 13tt hh September 2007.Though a General assembly declaration is not a legally September 2007.Though a General assembly declaration is not a legally bin
binding ding instinstrumerumennt, t, this decthis dec laration calaration can be n be regarded as regarded as a da d ynynaamic demic de vvelopment elopment for for setting setting aa standard for protection of rights of indigenous persons. General assembly recognized the 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 urgent need to respect and promote the inherent rights of indigenous peoples which they derived from their social structures.
derived from their social structures.
The declaration emphasizes on the rights of indigenous persons to maintain and strengthen 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 their own institutions, cultures and tradition so as to foster their development. It urges the parti
partiees to s to mmake ake mechanism mechanism ffor or prevention aprevention annd d redress oredress o f af a ny acny ac tion wtion whihicch h hhas as the ethe effect offect o ff depriving indigenous people of their integrity or their cultural values or identities
depriving indigenous people of their integrity or their cultural values or identities2828. Art 24. Art 24 recognizes the right to their traditional medicines and provides for conservation of their vital recognizes the right to their traditional medicines and provides for conservation of their vital medi
medicinacinal l plaplannts animals and minerats animals and minera lls.s.
Art 31 is an important attempt to protect TK. It asks the states to take all effective measure to 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 recognize and protect the cultural heritage, traditional knowledge, traditional cultural expression as well as the manifestations of their sciences, technology and cultures. This 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 declaration is indeed a dynamic measure of international legal norms regarding protection of TK
TK and also it nand also it neceecessssitates the nitates the need for an intereed for an internnatioatio nal tnal treareaty fty for protecor protection tion oof f TK.TK.
27 see
27 see www.un.org/esa/socdev/unpfi.documents/FAQsindigenousdeclaration.pdf www.un.org/esa/socdev/unpfi.documents/FAQsindigenousdeclaration.pdf
28 se
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There have been several discussions and debates as to whether TRIPS is in conflict with. 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 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 October 2010 and finalized the draft protocol which define the terms for access to genetic resour
resources, their utces, their utiliilizatzatiion aon annd fair ad fair annd equitable sharing d equitable sharing of beof bennefits efits frofro m sum succh utilih utilizatzat iion.on. Though the main objective of this protocol is to ensure fair and equitable sharing of benefits Though the main objective of this protocol is to ensure fair and equitable sharing of benefits arising out
arising out of of ggenetenetiic resoc resouurces arces annd to provide d to provide ffor appropror appropr iiate accate access to ess to ggenetenetiic resoc resouurces arces anndd transfer of technology for protection of biodiversity, it has many provisions which can be transfer of technology for protection of biodiversity, it has many provisions which can be u
useful seful for the profor the protection of tection of inindigedigennoouus ks k nnowledgeowledge2929. Article 5 of the protocol asks the parties. Article 5 of the protocol asks the parties to the protocol to take legislative and administrative efforts to ensure that the benefit arising 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 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 with indigenous and local communities who conserved these knowledge for these years th
though mutually agreed terms.ough mutually agreed terms.
In order to protect the interest of the indigenous communities municipal legislations should 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 involve in it the concept of prior consent before granting right to access to resources. The proto
protocol col empemphhasizes asizes on on the the nneed eed for for development development of of a a global global multilmultilaateral teral benefit benefit sharsharinging mechanism providing for fair and equitable benefit sharing associated with TK related mechanism providing for fair and equitable benefit sharing associated with TK related g
geenneetic resources which occurs tic resources which occurs in trin trans boundary situations wans boundary situations whhere is ere is nnot possot possiible to ble to take priortake prior consent of the community
consent of the community3030. Protocol asks it parties to ensure that their national legislations. Protocol asks it parties to ensure that their national legislations provi
provide for support and develde for support and developmeopmennt of those t of those inindigedigennous communious communities.ties.
W
WIPO IPO -The I-The Intergovernntergovernmmeental ntal CommiCommittee on ttee on InIntelletellectual Prctual Prooperty perty Genetic Genetic ReResoursourcesces and Traditional Knowledge
and Traditional Knowledge
In 2000 the WIPO General assembly established the IGC as a forum for discussion of 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 intellectual property issues in relation to access to genetic resources, benefit sharing and prote
protectioction n of traditionaof traditional l knowknowlledge and expressions of folklore. It acts as an interedge and expressions of folklore. It acts as an internnatioationnalal
29
29 http://www.rona.unep.org/documents/news/Press_Release-2010-03-28-ABS9.pdf http://www.rona.unep.org/documents/news/Press_Release-2010-03-28-ABS9.pdf
30
