8 Chapter3

CHAPTER III
PROTECTION OF TRADITIONAL KNOWLEDGE:

PERSPECTIVES AND INTERNATIONAL INITIATIVES
3.0. Introduction
The people in different societies perceive and interact with nature

differently and have different traditions of the environmental knowledge.
The perceptions and knowledge of such people are in part shaped by their
values, world views, environmental ethics, and religion in a broader sense.
The discussions on Traditional Knowledge, as a subject of Intellectual
Property protection, continue to take the centre stage at different spaces. It
is particularly relevant for developing countries whose Traditional
Knowledge mechanisms continue to be exploited without accruing any
benefits. In other words, the increasing incidence of bio-piracy and bio-
prospecting have become a matter of immense concern to the legitimate
custodians of Traditional Knowledge.
The increasing importance of biodiversity, sparked by the emergence of new

biotechnology, has generated a wide range of interest and competition over
the genetic resources (GR). The pace of competition leads to the Western
scientists and corporations turn to local communities for the genetic
resources fuelling technical innovations in agriculture and health care. And
the renewed interest in plant and animal genome has reignited tensions
between local communities, national governments, and transnational
corporations. These tensions are reflected in International Agreements
governing control over the biodiversity and indigenous knowledge.
In this chapter, efforts have been made to examine the nature and
characteristics of Traditional Knowledge, its various forms and value, with a
view to define and conceptualize the TK and its protection. An overview of
the International legal Instruments, Conventions and Declarations as well as
the International initiatives have also been attempted. This chapter also
48 Chapter III
traces the new international initiatives, on the protection of biodiversity

associated Traditional Knowledge such as the CBD and the TRIPS.
3.1. Traditional Knowledge: Concepts and Definition
Traditional as well as indigenous knowledge have been used for centuries

by indigenous and local communities under local laws, customs and
traditions. It has been transmitted and evolved from generation to
generation. Traditional Knowledge has played, and still plays an important
role in vital areas such as food security, the development of agriculture,
medical treatment and in the preparation of drugs.a
Traditional knowledge has been recognized for its role in economic, social
and cultural life and development, not only in traditional societies but also
in modern societies. The recognition has been heightened in recent years as
a result of the increased awareness of the environmental crisis; the role of
modern technologies, production methods and products in contributing to
this crisis; and a growing appreciation that local communities have a wide
range of Traditional Knowledge, practices and technologies that are
environmentally sound or friendly that have been making use of the
manifold and diverse biological and genetic resources for food, medicines
and other uses. In particular, the recently increased awareness of the value
of biodiversity has highlighted the role and critical importance of
Traditional Knowledge (Correa, 2001).
The knowledge of local communities, farmers and indigenous peoples as to

how to use the many forms and types of biological resources and for many
functions, as well as on how to conserve these resources, is now recognized
as being a precious resource that is critical to the future development or
even survival of humankind (Gupta, 2003). At the same time, this precious
knowledge is maintained and thrives in the context of the traditional ways
of social and economic life and customary practices of the traditional
a
Thadikkaran, Raju, K and Mathew, Basil, B, (2012), Project Report, UGC Major
Research Project on the theme, Global Intellectual Property Rights (IPR) Regime and
India: Challenges and Opportunities in the Protection of Intellectual Property Related to
Biodiversity and Traditional Knowledge.
Protection of Traditional Knowledge: Perspectives and International Initiatives 49
communities. The viability and sustainable development of these

communities also requires their rights and access to natural resources such
as land, forest, water and the preservation of the environment within which
they live and work. Moreover, their rights to their knowledge, to the use of
their knowledge and to the products arising from such use must also be
recognized (Correa, 2001). The misappropriation of their resources, their
knowledge or the products of their knowledge would not only violate their
rights, but also adversely affect the conservation and use of the knowledge
and biodiversity.
Traditional knowlede refers to knowledge, possesed by indigenous people,

in one or more societies and in one or another form, including but not
limited to art, dance and music, medicines and folk remediesb, folk culture,
biodiversity knowledge and protection of plant varieties, handicrafts,
designe, literature. The position of Traditional Knowledge and the rights of
local communities are now widely accepted and acknowledged: (i) the role
and importance of Traditional Knowledge; (ii) that for Traditional
Knowledge to be maintained, the social and economic context in which it
developed and is applied has to be maintained; (iii) that for this context to
be maintained, the rights of local communities to their resources and
knowledge have to be recognized and respected; and (iv) that
misappropriation of these rights can erode the basis of Traditional
Knowledge and thus adversely affect the prospects of sustainable
development (Correa, 2001).
Art 8(j) of the Convention on Biological Diversity (CBD), 1992, delineated

Traditional Knowledge as ‘knowledge’ innovations and practices of
indigenous and local communities embodying traditional life styles relevant
for the conservation and sustainable use of biological diversity (Lore, 1992).
b
Medicine and folk remedies have a direct bearing on the product patent regime that
TRIPS stands for most of the countries that will be subject to the product patent regime
are economies that cannot and will not be able to afford the high prices for the drugs.
Where the folk medicines or knowledge about these plants are taken to be used in
pharmaceutical research, it is argued that the people who first possessed this knowledge
should benefit in some form.
50 Chapter III
According to the WIPO, TK comprises tradition based literary, artistic or

scientific work, performance, inventions, scientific discoveries, designs,
marks, names and symbols, undisclosed information and all other tradition
based innovations and creations resulting from intellectual activity in the
industrial, scientific, literary or artistic fields (WIPO, 1998).
Taditional knowledge has been used in a variety of settings and for a variety
of purposes. On the whole, however, it has been generally used to refer to
knowledge with the following features(Correa, 2001):
• Knowledge created, maintained and applied by indigenous

people around the world;
• Knowledge that is distinctive to these people and has been

traditionally associated with these people;
• Knowledge that has been endangered in some way, usually

through experiences of colonization by European people in the
past 500 years or so;
• Knowledge that is considered to be central to the survival of

these people as a distinctive community of people, a distinctive
culture;
• Knowledge which is generally heritage inspired, considered to

be an inheritance;
• Knowledge in which can be found a distinctive ‘indigenous

world view; and
• Knowledge that gives rise to and inspires distinctive and

‘traditional’ behaviours and customs which can be contrasted
to the behaviours and customers of western culture.
There are several definitions for indigenous people, but it essentially refers
to the people existing under relatively disadvantageous conditions. Hence
they are crippled economically and socially and their cohesiveness as
communities remain damaged or threatened and the integrity of their
cultures gets undermined (Anaya, 1996). ‘They live in small societies and
may not have access to formal education. They are unaware of the worth of
the knowledge they possess. Such communities are often found in
developing countries where there is a concentration of ethnocentric
societies.
Figure 1: Traditional Knowledge System
Traditional Knowledge
Indigenous Knowledge
Source: Mugabe, John. (2004). Intellectual Property Protection and

Traditional Knowledge: An Exploration in International Policy Discourse,
Sage Publication, African Centre for Technology Studies, Nairoby, Kenya
Most often, the knowledge in question will be known to the entire

community and remains exclusively within it, however within the society;
the knowledge is in the public domain. Occasionally knowledge of a special
skill or art is limited to a few members of the community. The knowledge
and its components are normally required for regular lifestyles within the
society. It is passed down through generations while still retaining its
original individuality (Gupta, 2001). Knowledge present in one form, such
as art, music or folklore can be developed into other forms, more
52 Chapter III
understandable to the rest of the world. However, these informal

innovations do not get formal recognition (Gupta, 2001). The indigenous
people often believe that intellectual property law is neither a necessity, nor
a desirable means of encouraging innovation within their communities. As a
consequence, they are sometimes easily willing to share this knowledge,
which leads to its exploitation. This situation gives rise to concern because,
although the original holders have not acquired any benefit, the exploiters
have increasingly benefited from the knowledge (Arriaza, 1996).
3.1.1. Kinds of Traditional Knowledge
There are several categories of TK, that may include agriculture knowledge,
ecological knowledge, medicinal knowledge including related medicines
and remedies, biodiversity-related knowledge, expression of folklore in the
form of music, dance, songs, handicrafts, designs, stories and artworks,
scientific knowledge, technical knowledge etc.
Figure 2:
Traditional
Knowledge
Cultural Knowledge Artistic Knowledge Medicinal Knowledge
Biodiversity/Natural Agricultural Knowledge Sacred Knowledge

Knowledge
Source: Mugabe, John. (2004). Intellectual Property Protection and Traditional Knowledge:
An Exploration in International Policy Discourse, Sage Publication, African Centre for
Technology Studies, Nairoby, Kenya.
The main classification of Traditional Knowledge is as (Gravis, 2003)

follows:
• Community Traditional Knowledge
• Publically known Traditional Knowledge
• Individual Traditional Knowledge
• Documented Traditional Knowledge
• Vocal Traditional Knowledge
• Sacred Traditional Knowledge
• Secular Traditional Knowledge
• Indigenous Knowledge
Community TK indicates information that is not known to all but known

only to a small group of people (Tribal Knowledge). This knowledge is
generally being transmitted verbally only to the members of the community.
Publically known Traditional Knowledge refers to the information
commonly known and used by the people with or without documentation.
(eg; medicinal use of Neem and Tulsi) the individual TK is available only
with individual or certain members of a family; usually this information is
handed over orally from the elder to his successor.
Documented TK means information that is well documented and available

to the public (eg. Ayurveda) Vocal TK covers knowledge which is unwritten
but preserved and handed over through generations orally. Sacred TK
consists of the sacred tangible as well as sacred intangible rights. Sacred
tangible right suggests the property right over sacred sites is an example for
this category. There are also sacred intangible rights which include
intellectual property and intangible rights applicable to the costume,
choreography and photographs etc (Gravis, 2003).
Secular TK refers to the community right over arts and crafts; it concludes
material for commercial occasions on clothing masks, dance screens etc, it
also includes rights in photographs, choreographies, music or audiovisual
54 Chapter III
productions used in non-sacred events and ceremonies. Indigenous

Knowledge is related to the indigenous groups ho all over the world have
peculiar cultural belief systems which demonstrate their immense
knowledge and respect for the Earth. These systems contain rules that
define how the environment should be treated. Their various rituals,
ceremonies and prohibitions regulate the use of natural resources and
resources management aiming at a balanced ecosystem. Indigenous people
are the custodians of the invaluable biological and genetic wealth on the
Earth (Gravis, 2003). It must possess certain characteristics (Davis, 2009);
namely
• communal ownership and attribution of knowledge;
• sharing of knowledge through specific consent of the

relevant group;
• right to use and deal with knowledge;
• collective rights and interests held by indigenous people in

their knowledge,
• close interdependence between knowledge, land and other;
• aspects of cultural in indigenous societies;
• oral transmission of knowledge in accordance with well;
• understood cultural principal and
• management of knowledge through specific rules including

rules regarding maintaining secrecy and sacredness of
knowledge.
3.1.2. Nature and Characteristics of Traditional Knowledge
Traditional knowledge is based on thousands of years of experiences; it is

developed and preserved by local and indigenous communities for
centuries as a strategy for their survival in the biosphere. TK is often part of
the social fabric and everyday life of a community, and is generally not seen
as a distinct body of knowledge separate from the community culture and

its identity as a community.
TK is collective in nature and is often considered as the property of the

entire community and not belonging to any single individual within the
community. It is transmitted through specific cultural and traditional
information exchange mechanisms. Few varieties of Traditional Knowledge,
(Ayurveda, Unani, Sidha) are formalized or codified in some way but the
major share of the TK is not codified and is being passed to successive
generations through oral tradition (Koning,1998).
In its various forms Traditional Knowledge, though initially developed in

ancestral times, got modified, improved and adapted owing to the
contemporary demands of the ever changing society and still continue to
develop. Thus, the TK is in effect of non-contemporary nature; it has been
used for generations and in many cases collected and published by
anthropologists, historians, botanists or other researchers and observers.
Traditional knowledge expressed in various documented and non-
documented forms may possess commercial value depending on its
potential or actual use. When TK can be used and understood outside its
local/communal context, it acquires commercial value (Koning, 1998).
3.1.3. The Value of Traditional Knowledge
Traditional Knowledge makes valuable contributions to the two main

aspects of sustainable development: the environment and the fulfilment of
human needs. There is much in TK that has resulted in local communities
engaging in environmentally sound and sustainable ways of living with and
making use of the forest and its resources and cultivating the land with
plants varieties that have been chosen and evolved through many
generations of farm practices and innovations.
The contributions of TK to human development, especially in food

production, crop yields and health care, are also recognized. The majority of
the world’s population depend on TK and practices for food and medicines.
Eighty percentage of the world’s people depend on indigenous knowledge
56 Chapter III
for their medicinal needs and half to two-thirds of the world’s people
depend on foods provided through indigenous knowledge of plants,
animals, insects, microbes and farming systems (Khor, 2002).
Traditional peoples and communities are responsible for the discovery,

development and preservation of a tremendous range of medicinal plants,
health-giving herbal formulations and agricultural and forest products that
are traded internationally and generate considerable economic value. TK is
also used as an input in modern industries such as pharmaceuticals,
botanical medicines, cosmetics and toiletries, agriculture and biological
pesticides. So TK has an important role in the global economy. For
pharmaceuticals, the estimated market value of plant-based medicines sold
in 1990 was $61 billion (Khor, 2002).
3.1.4. Biodiversity Associated Traditional Knowledge
Due to the growing demand for the bio-products in the recent decades,
commercialization of the Traditional Knowledge associated with the bio-
resources has been on the growing pace all over the world. This has
adversely affected the livelihoods of TK holding societies and also caused
serious threat to the biodiversity. The need for the protection of TK and bio-
resources has been raised and has become a topic of international debate
(Latha, 2008). Biodiversity represents the very foundation of human
existance. Biodiversity has the most significant and limitless potential for
application for huaman welfare. Bidiversity rich nations are also the
storehouse of information and knowledge on various unique applications of
biodiversity.
The economic value of the biological diversity conserved by local and

indigenous community is difficult to quantify. The modern biotechnological
revolution coupled with the demand for increased intellectual property
rights for genetic researchers has created a new interest among researches
on biogenic resources and associated Traditional Knowledge. Biodiversity is
defined as the variability among living organisms from all sources,
including terrestrial, marine and other aquatic ecosystems and the
ecological complexes of which they are a part; this includes diversity within
species, between species and ecosystems. Biodiversity plays an important
economic, social and cultural role in the lives of indigenous and local
communities. Biodiversity associated Traditional Knowledge is considered
as the cradle of inventions that provide leads in the discovery, development
and manufacture of pharmaceutical products (Latha, 2008).
3.2. Theoretical Approaches to the Protection of Traditional Knowledge
Several International Conventions and Agreements address the subject of

Traditional Knowledge, such as the Convention on Biological Diversity
(CBD), the International Treaty on Plant Genetic Resources for Food and
Agriculture (ITPGR), the U.N. Educational Scientific and Cultural
Organization (UNESCO) Convention for the Safeguarding of Intangible
Cultural Heritage etc.
Efforts in each of these venues are grounded in different theoretical

approaches to the question of why Traditional Knowledge should be
protected and they focus on a different set of concerns. On the one hand,
Intellectual Property mechanisms may be thought of as one device in a
toolkit to reach any number of concerns, be they concern stemming from
human rights, indigenous rights, cultural heritage preservation, or
biodiversity conservation. On the other hand, deep differences between the
purposes of conventional intellectual property rights regimes and
Traditional Knowledge protection are troubling. They raise doubts about
the viability of intellectual property rights in Traditional Knowledge and
their prospects for actually addressing the concerns of Traditional
Knowledge holders (Samuleson, 2000).
The legitimacy of Traditional Knowledge protection may usefully be put

into three categories (Varadarajan, 2010): The Preservation Approach, The
Human Rights Approach and the IP Approach
58 Chapter III
3.2.1. The Preservation Approach
The preservation approach frames Traditional Knowledge protection

through the lens of biodiversity preservation. This approach has, more than
any other, succeeded in triggering international and national action with
respect to Traditional Knowledge protection. The CBD was adopted in
response to the growing concern over the depletion of the world’s biological
diversity.
Following the CBD, a number of developing countries enacted laws

regulating access to genetic resources and associated Traditional Knowledge
within national borders. But generally, the effect of these provisions does
not extend beyond national borders. Moreover, where access regimes
require the permission of multiple and hard to identify stakeholders, they
may unintentionally lead to an ‘anticommonsc’ (Heller, 1998).
There is a huge concern in developed countries and among multinationals

that the CBD frames traditional knowledge and biological resources
through the lens of state sovereignty, and vests ownership of these
resources in the state, which might have drastically different priorities with
respect to these resources than indigenous groups (Bratspies, 2007). Because
the CBD recognizes state’s sovereign rights over the genetic resources
within their borders, and given the close relationship between genetic
resources and traditional knowledge, do states have, in effect, control over
Traditional Knowledge. Where true, that is problematic, as some of the
worst examples of indigenous group marginalization have come at the
hands of the national governments (Bratspies, 2007). And it raises the
question of who, in practical terms, is the beneficiary of the CBD’s
preservation ethic-indigenous groups or the developing country
government that may or may not advance their interest.
c
As Michael Heller explains, an ‘anticommons’ arises when too many entities have
rights to exclude others from a resource, which can lead to waste or under consumption
of the resources. See more details, Michael Heller, The Tragedy of the Anticommons:
Property in the Transition from Marx to Markets
3.2.2. The Human Rights Approach
The Human Rights approach to traditional knowledge touts the primacy of

‘human rights’ obligations over other economic policies and agreements
(Yu, 2007). But it is unclear what this ‘primacy’ means when it comes to
using intellectual property mechanisms to protect traditional knowledge.
The international human rights law has an ambivalent and under theorized
relationship with intellectual property law.
The increasingly apparent intersection between human rights rhetoric, rules,

and institutions and intellectual property has triggered various concerns.
For starters, the two communities seem to speak ‘very different languages’:
while intellectual property commentators tend to focus on the economic
trade-offs between incentives and access, human rights commentators
‘engage in a discourse of absolutes’, emphasizing ‘categorical rights and
responsibilities ‘(Hefler, 2011). Another concern is that absence of a clearer
understanding of human rights law’s engagement with intellectual property
issues. Actors on both sides of the intellectual property divide will simply
invoke human rights rhetoric to bolster arguments for strengthening or
weakening IP standards in treaties and national laws (Yu, 2007).
3.2.3. The Intellectual Property Approach
If the Preservation Approach prioritizes biodiversity preservation, and the

Human Rights Approach prioritizes human rights concerns, the IP
Approach prioritizes the conventional purposes of intellectual property law.
By and large, this approach has posed a seeming dead end to proponents of
traditional knowledge protection because of its emphasis on incentives to
create, the limited application of moral rights and labour desert principles,
and increased concern for the public domain (Hilty, 2009).
3.2.3.1. Incentives to Create
Intellectual property protection in the United States and developed

countries (and increasingly, in much of the world) has been about
generating incentives to create. Patents and copyrights are viewed as tools
60 Chapter III
to solve an economic public goods problem: non-rivalrious and non-

excludable intellectual goods are easily copied, and in the absence of state-
created rights to exclude, creators cannot recoup their costs and will
therefore stop creating (Landers, 2003). The assertion of new or expanded
Traditional Knowledge rights has fared rather poorly under this rationale.
The indigenous groups and local communities have developed healing and
agricultural practices for generations without the carrot of an intellectual
property right, and then new rights are unnecessary to provide incentives to
create (Hilty, 2009).
As for future improvements to Traditional Knowledge, some scholars have

suggested that here too the ‘incentives to create’ rationale fails to justify
alteration of the existing intellectual property regime because standard IP
rules will suffice (Munzir, 2009). This latter argument, however, glosses
over the real challenges associated with protecting and encouraging small
grain-sized innovation. More significantly, to the extent that scholars assess
traditional knowledge through the lens of economic incentives, their focus
often centres on incentives to create.
3.2.3.2. Non-Economic Rationales: Moral Rights and Labour Desert
Non-economic rationales for intellectual property rights, such as moral

rightsd and labour-desert principles, offer some support for traditional
knowledge rights. Moral rights derived from the recognition that each
individual possesses a distinct personality deserving of protection- a right of
personality that extends to an individual’s intellectual creations and persists
even after copies of the work enter the marketplace (Radin, 1982)
In many European countries, authors have moral rights in the works they
create that are distinct from the purely economic rights that copyright law
grants to authors. Commonly recognized moral rights include the right of
attribution (i.e., the right to be identified as the author of the work) and
d
The term Moral Right roughly translates the French term ‘droit moral’. Pursuant to the
Berne Convention there are many countries that protect the moral rights of authors.
integrity (i.e., the right to protect the work from alterations harmful to the
author’s reputation). But since moral rights are understood primarily as
rights rooted in the personality of the individual and not group-based
knowledge, they offer limited support for traditional knowledge rights
(Munzir, 2009).
Lockean or labor-desert theories, on the other hand, have been linked to

merit. That is, a person who labours upon resources that are un-owned or
held in common has a natural property rights to the fruits if his or her
efforts and the state has a duty to enforce or protect that natural rights
(Fisher, 2001). While labor desert theories are often discussed in the context
of the individual, they need not be (Munzir, 2008).The more contentious
issue is whether a labour desert principle should extent to inheritors of
traditional knowledge.
3.2.3.3. Traditional Knowledge and the Public Domain
More broadly, the issue of traditional knowledge protection occupies an

awkward normative place within the intellectual property discipline. Over
the past few decades, intellectual property has been engaged in a tug of war.
On the one hand, exclusive rights in information have broadened at home
and abroad, to the great benefit of corporate owners of intellectual property.
Intellectual property expansionists have relied on the argument that some

intellectual property is desirable because it encourages innovation. On the
other hand, a number of intellectual property scholars have criticised this
second enclosure movement (Boyle, 2003). Proponents of Traditional
Knowledge protection fit in neither camp. They do not fit in the standard
protectionist camp because the unique aspects of Traditional Knowledge
creation clash with the ‘romantic authors’ troupe and the prevailing
incentives-to –create story. Nor do they fit in the public domain camp, with
its emphasis on open access. For many indigenous groups, unrestricted
access is ‘the problem, not the solution’. Proponents of Traditional
Knowledge protection thus find themselves at odds with other groups
within the border IP and development movement (Brown, 2000).
62 Chapter III
3.3. International Legal Instruments and the Conventions: A Frame Work
The protection of Traditional Knowledge is no longer a matter limited to

national big concern, rather there has been a growing international
movement to structure TK in a more normative form. The law making
process of relevant international legal regimes is still ongoing. The issues
relating to the importance of protecting Traditional Knowledge and the
interface between TK and intellectual Property have been dealt with in a
number of International Agreements and Declarations. The international
community has responded to the issue of protecting Traditional Knowledge
by formulating a variety of Documents with differential legal implications.
This is well illustrated by the work being done at various international fora
such as WIPO, UNCTAD, FAO, ITPGRFA, UNEP, ILO, etc. an overview of
which is attempted below.
3.3.1. The World Intellectual Property Organization (WIPO) (1970)
The WIPO is an international organization dedicated to facilitating

worldwide protection of the rights of creators and owners of intellectual
property. WIPO’s origin dates back to 1883 in Geneva, Switzerland when
the Paris Convention entered into force and an International Bureau was set
up to carry out administrative tasks. This International Bureau evolved over
time to become known in 1970 as the WIPO. In 1974, WIPO became a
specialized agency of the United Nations and in 1996, WIPO expanded its
role into globalized trade by entering into a cooperation agreement with the
World Trade Organization (Olejko, 2007).
The WIPO currently has 182 states that are members of the organization and
administers 23 treaties. The 23 treaties administered by the WIPO are
divided into three classes:
1. Intellectual Property Treaties that define the internationally agreed

basic standards of intellectual property protection; e.g. Paris
Convention;
2. Global Protection System Treaties that aim to ensure that one

international registration or filing will have effect in any of the
relevant signatory States; e.g. PCT and Budapest Treaty; and
3. Classification Treaties that create systems that organize information

concerning inventions into indexed structures to enable easy
retrieval; e.g. International Patent Classification (IPC).e
The WIPO administered the following Unions or treaties in the field of

industrial property, the Paris Union (for the Protection of Industrial
Property), the Madrid Agreement (for the repression of false or deceptive
indications of source on goods), the Madrid Union (for the International
Registration of Marks), the Hague Union (for the International Deposit of
Industrial Designs), the Nice Union (for the International Classification of
Goods and Services for the purposes of the Registration of Marks),
the Lisbon Union (for the Protection of Appellations of origin and their
International Registration), the Locarno Union (for the establishment of an
international classification for Industrial Designs), the PCT (Patent
Cooperation Treaty) Union (for cooperation in the filing, searching and
examination of international applications for the protection of inventions
where such protection is sought in several countries), the IPC (International
Patent Classification) Union (for the establishment of worldwide uniformity
of patent classification), the Vienna Union (for the establishment of an
international classification of the figurative elements of marks),
the Budapest Union (for the International recognition of the deposit of
microorganisms for the purposes of patent procedure), the Nairobi
Treaty (on the protection of the Olympic symbol), the TLT (Trademark Law
Treaty) (for the simplification of formalities before trademark registries).
In the field of copyright or neighbouring rights, the Berne Union (for the
Protection of Literary and Artistic Works), the WCT (WIPO Copyright
Treaty) (for the Protection of certain rights in certain works), the Rome
Convention (for the protection of performers, producers of phonograms and
e
See the official web site < http://www.wipo.int.tk/en.>.
64 Chapter III
broadcasting organizations; administered in cooperation with UNESCO and

the International Labour Office (ILO), the Geneva Convention (for the
protection of producers of phonograms against unauthorized duplication of
their phonograms), and the Brussels Convention (relating to the distribution
of programme-carrying signals transmitted by satellite) (Jung Ni, 2007).
To facilitate the protection of intellectual property throughout the world,

WIPO encourages conclusion of new international treaties and the
modernization of national legislations; it gives technical assistance to
developing countries; it assembles and disseminates information; it
maintains services for facilitating the obtaining of protection of inventions,
marks and industrial designs for which protection in several countries is
desired and promotes other administrative cooperation among member
States(Hilty, 2009).
As to the administrative cooperation among the Unions, WIPO centralizes

the administration of the Unions in the International Bureau in Geneva,
which is the secretariat of WIPO, and supervises such administration
through its various organs. Centralization ensures economy for the member
States and the private sector concerned with intellectual property.
WIPO has enacted into since January 1, 1996, an Agreement with the World
Trade Organization (WTO), which is not a member of the United Nations
system of organizations. The Agreement provides for cooperation between
the International Bureau of the WIPO and the Secretariat of the WTO in
respect of assistance to developing countries, in respect of the notification
and collection of the intellectual property laws and regulations of WTO
Members, and in respect of the notification of emblems of States and
international organizations (Jung Ni, 2007).
In planning and implementing its activities for developing countries, WIPO

is guided by the relevant objectives of international cooperation for
development, with particular reference to making full use of intellectual
property for encouraging domestic creative activity, for facilitating the
acquisition of foreign technology and the use of literary and artistic works
of foreign origin, and for organizing easier access to the scientific and
technological information contained in millions of patent documents. All
this should serve the cultural, economic and social development of
developing countries.
3.3.2. The United Nations Conference on Trade and Development
(UNCTAD) (1964)
The United Nations Conference on Trade and Development (UNCTAD) has a

long history within the United Nations as the focal point for the integrated
treatment of trade and development, together with related issues in the areas of
investment, finance, technology, enterprise development and sustainable
development. UNCTAD has, over the years, played a key role in international
intellectual property matters and has, in particular, conducted fundamental
work relating to intellectual property and development including the
relationship between intellectual property and technology transfer as well as
competition policy. It is also noteworthy that the UNCTAD played an
important role during the negotiations between the UN and the WIPO to make
the latter a specialised agency of the UN. In the period leading to the adoption
of the TRIPS Agreement and in many respects thereafter, UNCTAD’s work on
intellectual property has been somewhat limited. This trend has been attributed
to the fact that there was a deliberate effort by key players to sideline UNCTAD
on these issues because UNCTAD had served as an important forum for
developing countries to develop strategies and analytical work which
demonstrated the serious negative consequences for technology development
and related objectives that arose from the existing intellectual property regimes
(Braithwaite & Drahos, 2000).
UNCTAD has continued to be involved in intellectual property work in the

context of other policy areas and/or in collaboration with other organisations.
In this context, there is significant work focusing on traditional knowledge as
well as the continuing work on transfer of technology and the work on E-
Commerce in relation to open source software and related issues. On the
collaboration side, UNCTAD has over the last few years conducted a quite
successful joint capacity building project on intellectual property rights and
66 Chapter III
sustainable development with the International Centre for Trade and

Sustainable Development (ICTSD). This project has been responsible for a large
number of research works on intellectual property and development as well as
meetings and conferences.
Finally, it has emerged in the context of the preparations for UNCTAD XI, that
the trend where developing countries make efforts to increase the work of
UNCTAD on intellectual property and to have UNCTAD undertake analysis
on strengthening the development dimension in international intellectual
property rule-making, including effective transfer of technology to developing
countries; protection of traditional knowledge, genetic resources, and folklore
will continue. On the other hand, it is also clear that the opposition by the
United States and other developed countries to the inclusion of intellectual
property in the mandate of UNCTAD will continue.
The UNCTAD held an Expert Meeting on Systems and National Experience for
Protecting Traditional Knowledge, innovations and Practices during November
2000. Eighty countries participated in the meeting represented by
representatives of the government, indigenous groups, NGOs, Inter
Governmental Organizations (IGOs), academics circles, private companies and
international agencies. The Meeting’s outcome which reflected the diversity of
various experts was taken up in February 2001 by the UNCTAD Commission
on Trade in Goods and Services and Commodities. The recommendations
include suggestion to raise awareness about protection of traditional
knowledge, to support the innovation potential of local and indigenous
communities, to facilitate the documentation of traditional knowledge and to
promote the commercialization of traditional knowledge based products.f
The meeting defined the term TK to refer to the knowledge innovations and
practice of indigenous and local communities embodying traditional life
styles as well as indigenous and traditional technologies.g
f
See Report of the UNCTAD Commission on Trade in Goods and Services at
http://www.unctad.org/en/special/c1dos5.htm>
g
See Intellectual Property Rights: Implications for Development, at
http://www.iprsonline.org/unctad/projectoutputs.htm.
• TK is valuable not only to those who depend upon it for their

survival but also modern industry and agriculture and sustainable
development.
• A number of TK derived products are traded internationally
• Biogenic resources and their associated TK also provided significant

inputs into their markets including pharmaceutical, cosmetics,
agriculture, food additives, industrial enzymes, bio-pesticides and
personal care.
• TK, particularly, biodiversity related TK is contributing significantly

to modern industry and agriculture.
• The farming systems of the world have developed for over 10,000
years by the direct application of TK
• TK is often an essential component in the development if other

products
• Estimating the full value of TK in monetary terms is difficult (Hilty,

2009).
3.3.3. Food and Agricultural Organization (1945)
The FAO is the oldest permanent specialized agency of the United Nations,
established in October 1945 with the objective of eliminating hunger and
improving nutrition and standards of living by increasing agricultural
productivity. The FAO coordinates the efforts of governments and technical
agencies in programs for developing agriculture, forestry, fisheries, and
land and water resources (Ragavan & O'Shields, 2007).
The concrete establishment of this organization was entrusted to the Interim

Commission on Food and Agriculture, set up in Washington with
representatives of each of the governments and authorities represented at
the Hot Springs Conference. The major task of the Commission was to draw
up a Constitution and to transmit this constitution to the 45 nations eligible
for a membership in the permanent organization to be created.
68 Chapter III
The formal foundation of the FAO of the United Nations took place in the
first session of the FAO Conference in Chateau Frontenac in Quebec,
Canada, from 16 October to 1 November 1945. The Constitution drafted by
the Interim Commission was signed by 34 nations and thus brought into
force on 16 October 1945. FAO’s activities comprise four main areas: (i)
providing technical advice and assistance; (ii) collecting, analyzing and
disseminating information on food, nutrition, agriculture, fisheries and
forestry; (iii) offering independent advice to governments on agricultural
policy; and (iv) providing a neutral forum where governments,
international organizations and NGOs can meet to discuss food and
agricultural issues (Ragavan & O'Shields, 2007).
FAO has a wide range of intergovernmental and expert bodies, both global
and regional, which deal with various areas of agriculture, fisheries, forestry
and food. The Organization holds specialist meetings on major development
issues throughout the year, and NGOs are increasingly invited to participate
in a wide range of technical areas relevant to their work and experience.
3.3.4. International Treaty on Plant Genetic Resources for Food and
Agriculture (2001)
The Food and Agriculture Organization (FAO) adopted the International

Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), in
November 2001. It came into force on 29 June 2004. The treaty is overseen by
the Commission on Genetic Resources in Food and Agriculture a permanent
body established in 1983, with the original role of overseeing the
international Undertaking Plant Genetic Resources.
In recognition of the principle of the sovereign rights of nations enshrined in

the CBD, the International Treaty on Plant Genetic Resources for Food and
Agriculture recognizes the sovereignty of nations in respect of plant genetic
resources. ITPGRFA encourages the conservation of plant genetic resources
through national and international collections of seed and plants. It also
seeks to balance the rights of various groups. The farmer’s rights are
specifically mentioned and protected.h In common with the CBD, the need
for financial resources and technical assistance for less developed countries
were recognized. The Treaty acknowledge that the conservation, evaluation,
documentation etc of plants and genetic resources for food and agriculture
are essential in meeting the food security, and for sustainable agricultural
development, for the present and future generations while recognizing the
sovereign rights of the states over their plants and genetic resources. The
Treaty also noted that states may mutually benefit from the creation of an
effective multilateral system for facilitated access to negotiated selections of
these resources and for the fair and equitable sharing of benefits sharing
arising from their use (Ragavan & O'Shields, 2007).
The Treaty provides for sharing the benefits of using plant genetic resources
for food and agriculture through information exchange access and the
transfer technology capacity building. The Treaty recognizes the enormous
contribution that farmers and their communities have made and continue to
make to conservation and development of plant genetic resources. This is
the basis for farmer’s right, which includes the protection of Traditional
Knowledge and the right to participate equitably in benefit sharing and in
national decision making about plant genetic resources. It casts on the
government the responsibility for implementing rights (Ragavan &
O'Shields, 2007).
Under the PGFRA Treaty, the benefit sharing was made a direct
consequence of facilitated access and is meant to provide an incentive for
countries to provide access to other member states. Multilateral system of
access and benefit sharing covers (1) sharing of monetary and other benefits
of commercialization; (2) capacity building; (3) access to and transfer
technology; (4) exchange information. It commits member states to promote
partnerships in research and development and to foster access to improved
h
Article 9.1: The Contracting Parties recognizes the enormous contribution that the local
and indigenous communities and farmers of all regions of the world, particularly those
in the centers of origin and crop diversity, have made and will continue to make for the
conservation and development of plant genetic resource which constitute the basis of
food and agriculture production throughout the world.
70 Chapter III
varieties and genetic material developed through the use of accession from
the multilateral system. Capacity building in the form of scientific and
technical education and training in conservation and sustainable use, the
development of facilities for conservation and sustainable use of plant
genetic resources for food and agriculture and the carrying out of scientific
research is provided as a separate form of benefit, mainly for developing
countries. It also encourage international plant genetic resources network
(Latha, 2008).
The Treaty was however limited in its scope. Although the ITPGRFA does
not directly address the issue of protection of TK, it acknowledged the
enormous contribution done by the local indigenous communities and
farmers for the conservation and development of plant genetic resources
which constitute the basis of food and agriculture protection throughout the
world. The Treaty has been much influenced by the CBD but does not
encourage IPRs over PGRs and related TK. It recognizes the right of
farmers; however it nowhere defines who is farmer. It does not specify to
promote in-situ conservation by supporting inter alia, the efforts of
indigenous and local communities. The Treaty is limited to PGR for food
and agriculture. The Treaty provides not only commercial use but also all
use that must be considered for the purpose of benefit sharing arrangements
(Ragavan & O'Shields, 2007).
3.3.5. The FAO International Code (1993)
The FAO International Code of Conduct for Plant Germplasm collection and
Transfer is part of the FAO’s Global System on Plant Genetic Resources, the
International undertaking on Plant Genetic Resources and its annexes. The
Code was adopted by the FAO Conference at its 27th session in November
1993. It was negotiated by its member nations through the Organization’s
Commission on Plant Genetic Recourses. The Code is fully compatible with
both the Convention on Biological Diversity and the International
Undertaking on Plant genetic Resources (Jung Ni, 2011).
The Code was voluntary and it primarily addresses governments. The Code
provides a set of general principles that governments may use in developing
national regulations or formulating bilateral agreements on the collection of
germplasm. As stated in the preamble, the Code aims to promote the
rational collection and sustainable use of genetic resources to prevent
genetic erosion and to protect the interests of both donors and collections of
germplasm.i
The Code was aimed at promoting the conservation, collection and use of
plant genetic recourses from their natural habitats or surroundings in ways
that respect the environment and local traditions and cultures. It tries to
involve farmers, scientists and organizations in conservation programs in
countries where collecting is taking place, to promote the sharing of benefits
and increase recognition of the rights and needs of local communities and
farmers so that they may be compensated for their contribution to the
conservation and development of plant genetic resourses and not have their
current benefits undermined by the resource transfer. It obliges the
collectors (1) to respect local customs, traditions, values and property rights
(2) not deplete local resources and (3) to work with the agreement with local
communities. It also lays down responsibilities of sponsors, curators and
users (Jung Ni, 2011).
3.3.6. United Nations Environment Programme (1972)
The UNEP was established after the 1972 UN Conference on the Human
Environment held in Stockholm, Sweden, which proposed the creation of a
global body to act as the environmental conscience of the UN system. The
UNEP coordinates United Nations environmental activities, assisting
developing countries in implementing environmentally sound policies and
practices. Its activities cover a wide range of issues regarding the atmosphere,
marine and terrestrial ecosystems, environmental governance and green
economy. It has played a significant role in developing international
environmental conventions, promoting environmental science and information
i
See for full text of the Code, see <http://www.fao.org/ag/agp/PGR/icc.htm>
72 Chapter III
and illustrating the way those can be implemented in conjunction with policy,
working on the development and implementation of policy with national
governments, regional institutions in conjunction with environmental Non-
Governmental Organizations (NGOs). UNEP has also been active in funding
and implementing environment related development projects.
The World Meteorological Organization and the UNEP established

the Intergovernmental Panel on Climate Change (IPCC) in 1988. The UNEP
is also one of several Implementing Agencies for the Global Environment
Facility (GEF) and the Multilateral Fund for the Implementation of
the Montreal Protocol, and it is also a member of the United Nations
Development Group. The International Cyanide Management Code, a
program of best practice for the chemical’s use at gold mining operations,
was developed under the aegis of UNEP.
In 1992, the UN Conference on Environment and Development (the Earth

Summit) was convened in Rio de Janeiro, Brazil, bringing together an
unprecedented number of representatives from governments, civil society,
and the private sector. The purpose of the Earth Summit was to examine
progress made since Stockholm, and to “elaborate strategies and measures
to halt and reverse the effects of environmental degradation in the context of
strengthened national and international efforts to promote sustainable and
environmentally sound development in all countries” (Braithwaite &
Drahos, 2000).
The Earth Summit generated a tangible sense of optimism that momentum

was at last being created for global change. It gave birth to two major
conventions; the UN Framework Convention on Climate Change and the
Convention on Biological Diversity (CBD) and saw the creation of the UN
Commission on Sustainable Development.
The Rio Declaration reaffirmed the principles ﬁrst elaborated in Stockholm

twenty years earlier, while Agenda 21 gave the world an action programme
for building sustainable development of the 21st century. With its
groundbreaking synthesis of social, economic and environmental elements
into a single policy framework, Agenda 21 gave new impetus and

importance to the work of UNEP (Braithwaite & Drahos, 2000).
3.3.7. International Labour Organization (ILO) (1946)
The International Labour Organization is yet another specialized agency of

the UN which seeks the promotion of social justice and internationally
recognized human and labour rights.
ILO became the first specialised agency of the UN in 1946. ILO formulates
international labour standards in the form of Conventions and
Recommendations setting minimum standards of basic labour rights:
freedom of association, the right to organize, collective bargaining, abolition
of forced labour, equality of opportunity and treatment, and other standards
regulating conditions across the entire spectrum of work related issues. It
promotes the development of independent employers' and workers'
organizations, and provides training and advisory services to those
organizations. Within the UN system, the ILO has a unique tripartite
structure with workers and employers participating as equal partners with
governments in the work of its governing organs.j
ILO is responsible for the only international legally-binding instrument,

which directly addresses the rights of indigenous and tribal people. The
Convention 169 Concerning Indigenous People in Independent Countries,
adopted during 1989, is the most comprehensive and up-to-date instrument
on the conditions of life and work of indigenous and tribal people. The
Convention covers a whole range of issues, but intellectual property rights
are not dealt as such in the Convention. The discussion of this issue just
started at the international level when the Convention was adopted. But
there is certainly nothing in the Convention, which is contrary to the
approaches now being put forward (Jung Ni, 2007).
The main Articles of the Convention are 6 and 7. Article 6 requires

governments to establish means that enable these peoples to participate at
all levels of decision making in elective and administrative bodies. It also
j
See the Official Website< www.ilo.org.>
74 Chapter III
requires governments to consult indigenous and tribal peoples, through

adequate procedures and their representative institutions, whenever
consideration is given to legislative or administrative measures which may
affect them directly. Consultations on the application of the Convention
have to be undertaken in good faith and in a form appropriate to the
circumstances, with the aim of achieving an agreement or consent to the
measures proposed (Jung Ni, 2007).
Basic provisions of ILO Convention have already been included in national

constitution of Andean Countries. For instance, Colombian Constitution of
1991, state that the exploitation of natural resources in the indigenous
territories shall be without detriment to the cultural, social, and economic
integrity of the indigenous communities. In the decisions adopted with
respect to that exploitation, the Government shall encourage the participation
of the representatives of the respective communities (Jung Ni, 2007).
3.3.8. The Rio Declaration on Environment and Development (1992)
The United Nations Conference on Environment and Development was

held at Rio de Janeiro, Brazil from 3 to 14 June 1992. The Rio Declaration
did not explicitly address the question of intellectual property protection of
Traditional Knowledge; it could create a political frame work for addressing
these issues with in environmental circles. The Rio Declaration requires that
local institutions through which indigenous and local people socialize and
conduct their economic activities should be strengthened (Mugabe, 1999).
The Rio declared that the indigenous peoples and their communities
have a vital role in environmental management and development,
because of their knowledge and traditional practices. States should
recognize and duly support their identity, culture and interests and
enable their effective participation in the achievement of sustainable
development (Mugabe, 1999).
Principle 22 of the Declaration states (Mugabe, 1999):
Indigenous people and their communities and other local

communities have a vital role in environmental
management and development because of their knowledge
and traditional practices. States should recognize and duly
support their identity, culture and interest and enable their
effective participation on the achievement of sustainable
development.
The Earth Summit at Rio de Janeiro addressed the issues of IP rights in

Traditional Knowledge and innovation. The Agenda 21 of the Earth
Summit, adopted by more than 160 states at the Earth Summit, contains a
whole chapter on Indigenous people’s rights. It recognizes the importance
of indigenous and local communities, their knowledge and culture and the
contribution they can make to protect biodiversity and it requires that they
should be rewarded for their contributions.
3.3.9. UN Draft Declaration on the Indigenous Rights (1993)
According to Article 12 of this Declaration maintain that the indigenous

people have the right to practice and revitalize their cultural traditions and
customs. This includes the right to maintain, protect and develop the past,
present and future manifestations of their culture and the right to restitution
of cultural, intellectual, religious and spiritual property taken without their
free and informed consent or in violation of their laws, traditions and
customs(UN, 1993).
The vital elements of indigenous knowledge as described in this Declaration,

include the indigenous people’s right to practice their cultural traditions and
customs to be recognized and confirmed. The maintenance, protection and
development of cultures from the past, present and future confirms this
knowledge is evolving over time. The right to restitution of cultural,
intellectual, religious and spiritual property taken without their informed
consent backs up the fact that the knowledge has roots in religious beliefs and
spiritual values which are very precious. Any usage of them requires free and
76 Chapter III
informed consent, otherwise it would be considered unlawful and

compensation to the indigenous people could be necessary (Gupta, 2009).
There is no entity that can be protected properly without recognition.

Traditional medicine is one of those important entities that require specific
attention. According to a WTO Report during in 1996, about 80 percent of
the world’s population relied on traditional medicine (Gupta, 2009). This
shows the importance of practicing and protecting this type of medicine and
the existence of high biodiversity and common use of herbs.
Table1: CURRENT STATUS OF INTERNATIONAL LEGAL INSTRUMENTS
ON THE PROTECTION OF TK
International The Legal Status of Compliance Dispute

Institutions Instruments Mechanism Settlement
CBD Art. 8.(j) but weak Weak Weak
Code of Ethical Conduct: N/A N/A
Non-binding
Bonn Guidelines : Non-binding N/A N/A
International Regime on To be N/A
Access and Benefit –Sharing: developed
Nagoya Protocol is binding under the
upon effectiveness protocol
WIPO Draft Provisions for the Yes Yes
Protection of Traditional
Knowledge: Uncertain
(binding or non-binding to be
negotiated)
WTO/TRIPS The proposal to amend the Yes Yes
disclosure requirement for
patent application: binding if
the revision becomes
mandatory
United The UN Declaration on the To be N/A
Nations/General Rights of Indigenous Peoples: developed
Assembly/UNPFII Non-binding but with under UNPFII
potential influence
Source: Jung Ni (2007), Traditional Knowledge and Global Law Making, article presented in
the International Conference on Culture Diversity under International Trade
Regimes: Policy and Practices, by Asian Centre for WTO and International Health
Law and Policy
3.3.10. Permanent Forum on the Indigenous Issues (2000)
The Permanent Forum was the outcome of a resolution by the Commission

on Human Rights in 2000 that was adopted by the Economic and Social
Council. The Permanent Forum has a mandate to discuss indigenous issues
within the mandate of the Council relating to economic, social development,
culture, environment, education, health and human rights (Drahos, 2002).
One of its specific tasks has been, to promote the integration and
coordination of activities relating to indigenous issues within the United
Nations System (Drahos, 2002). Many indigenous representatives expressed
grave concern over bio-piracy and genetic engineering, and called for the
protection of genetic resources and a moratorium on bio-prospecting. The
protection of traditional knowledge and indigenous intellectual property
was a high priority for indigenous peoples and could be coupled with free,
informed and prior consent. Indigenous Peoples’ Organizations
recommended that The Forum should promote indigenous health care,
which also requires protection against patents on indigenous medicinal
plants (Drahos, 2002).
3.3.11. The UN Declaration on the Rights of Indigenous Peoples (2007)
UN General Assembly adopted the Declaration on the Rights of Indigenous

Peoples during its 61st session in September. The Declaration sets out the
minimum standards for the survival, dignity and well being of the
indigenous people of the world. Article 1 of the Declaration states that, the
indigenous peoples have the right to full enjoyment of all human rights, and
fundamental freedoms, as recognized in the Charter of the United Nations
and the Universal Declaration of Human Rights and International Human
Rights Law. It recognizes their collective right to live in freedom, peace and
security as distinct peoples. It also reaffirms their right to traditional
medicines and to maintain their health practices, including the conservation
of their vital medicinal plants, animals and minerals.k
k
UN Declaration on the Rights of Indigenous People, G.A
Res.61/295,UN.Doc.A/RES/61/295 (sep.13/2007)
78 Chapter III
Article 25 confers on the indigenous peoples the right to maintain and

strengthen their distinctive spiritual relationship with their traditionally
owned resources. The Declaration further establishes their right to the full
recognition of their laws, traditions and customs. The Declaration demands
that states must abstain from removing indigenous peoples from their
lands. Any relocation must be effected only with their prior and informed
consent. Article 8(2) (b) demands the states to provide effective mechanisms
for prevention of and redress for any action which has the aim or effect of
dispossessing them of their land territories or resources (Ragavan &
O'Shields, 2007).
3.3.12. The Convention Concerning Indigenous Peoples in Independent
Countries (1991).
The International Labour Organization’s convention concerning indigenous

peoples in independent countries which came into force on September 1991,
asserts the right of indigenous and tribal people over their land. It affirms
the right of indigenous peoples to self-identification. ILO has granted
recognition to the spiritual, cultural and collective rights of indigenous
people through this Convention. Article 13 of the Convention obliges
national states to respect the special importance for cultures and spiritual
values for the peoples concerned for their relationship with the land or
territories or both. States are obliged to promote full realization of the social,
economic and cultural rights of these peoples with respect for their social
and cultural identify; their customs and traditions and their institutions.
Governments are required to develop, with the participation of the people’s
concerns, co-ordinate and action to protect the rights of these peoples and
guarantee respect for their integrity. Under article 5, their social, cultural,
religious and spiritual values and practices are to be recognizes rights of the
indigenous people to the natural resources pertaining to their lands and
their right to a voice when access to resources on their lands and territories (
Jung Ni, 2007).
Table 2: Legislative Texts on Protection of Traditional Knowledge
Special/Specific Laws Regulatory frame for

Constitutional Patent
& Traditional
Law Laws
Legislature Measures Knowledge
Bolivia 2009 Bhutan 2003 Andean Brazil 2001, 2004

Community
(CAN) 2000
Ecuador, 2008 Costarica 2003 India 2005 China 1992
Ethiopia 2006 Andean Ecuador, 1998
Kyrgyz Republic 2007 Community India 1940
Organization of African (CAN) 2000 Italy 1992
Unity 2000 Philippines 1997
Panama 2001-2004-2006-
2009
Peru 2002-2004-2006-2009
Philippines 1997
Portugal 2002
Thailand 2002
Source: Marcelo, A.G Bardi (2010), Traditional Knowledge products in Latin America and
their Misappropriation, Online Journal of Intellectual Property Rights, No. 19, November
3.4. Major Declarations
There are a number of Declarations for the protection of indigenous people,

protection of folklore and the Traditional Knowledge. These Declarations are
significant because they denote attempts by indigenous peoples to articulate
their rights and to evolve a solution for themselves. The first such Declaration
has been the Kari-Oca, was organised in 1992 and after that, there are number
of Declarations such as the, Mataatua Declaration, Sabah, Voice of Earth
Congress, Bellagio, Suva declaration, that are discussed below;
3.4.1. The Kari–Oca Declaration and the Indigenous People’s Earth
Charter (1992)
In May of 1992, in the days leading up to the United Nations Conference on

Environment and Development (UNCED), over 700 indigenous leaders
from around the world gathered in a forested valley outside of Rio de
Janeiro, Brazil for the World Conference of Indigenous Peoples on
80 Chapter III
Territories, Environment and Development. At this historic meeting, also

known as the Kari-Oca Conference, participants drafted and unanimously
signed two landmark documents in the worldwide struggle for indigenous
peoples rights-The Kari-Oca Declaration and the Indigenous Peoples Earth
Charter. These documents set out indigenous peoples’ demands and
recommendations for environmental protection and sustainable
development based on the principles of self-determination and respect for
indigenous peoples’ collective rights to their territories, knowledge and
resources (Raghavan, 2004).
In the Kari–Oca Declaration, the indigenous people of Asia, Africa, Europe

and the Pacific vowed to be united and not to be separated from their lands
and traditions that binds them together. This Declaration also contained the
Earth Charter of the Indigenous People. Article 84 to Article 109 of the
Charter deals with the ‘culture, science and intellectual property’ issues.
Article 98 and Article 99 of the Charter states that the Traditional
Knowledge has enabled these people to survive and that ‘usurping of the
Traditional Knowledge has to be considered as a crime against people’. The
Charter alleges that the media and museums misused their pictures for
commercial benefits and has portrayed the people as if the songs and dances
alone represent their lives (World Conference, 1992).
In the same year, the Charter of Indigenous Tribal People of the Tropical
Forest was signed in Malaysia, reiterating that the people were the rightful
owners to defend the cultures of tropical forests and demanding respect for
their customs and traditions. The Charter urges national governments to
comply with various treaties and other covenants that have been signed
with the indigenous peoples. It reiterates the value of their ‘biotechnologies’
which can make important contributions to humanity including the
‘developed’ countries, and sought intellectual property protection over the
development and manipulation of this knowledge (Mountain Forum, 2000).
The main provisions of the Charter are: (Mountain Forum, 2000).
• Indigenous wisdom must be recognized and encouraged
• The TK of herbs and plants must be protected and passed onto

future generations.
• Traditional knowledge has enables indigenous people to survive
• The usurping traditional medicines and knowledge from indigenous

people should be considered a crime against peoples
• As creates and carriers of civilization which have given and continue

to share knowledge, experience and values with humanity the right
to intellectual and cultural properties of the indigenous communities
must be guaranteed. This respect must include the right over genetic
resources, gene banks, biotechnology and knowledge of biodiversity
program.
3.4.2. The Bellagio Declaration (1993)
The Bellagio Declarationl, (1993) was made by professionals who shared

common concerns about the impact of international intellectual property
law on indigenous communitiesm. It states that the effects of intellectual
property law on biodiversity traditional knowledge and other similar areas
have been neglected and that the effects on the tribal and indigenous people
have to be explored.
The Declaration highlights the need for looking at community rights, rather
than author-specific rights and states that most of the inadequacies are built
into the basic structure due to a lack of understanding by the west of the
concepts of traditional knowledge. It is particularly critical of systems built
around the author paradigm, and declares that the author paradigm
undervalues the importance of public domain. Following the Bellagio
l
See the statement of Bellagio Conference<http://www.cwru.edu/affil/Bellagio.html>
m
The professional referenced include lawyers, anthropologist, environmentalist, computer
experts, literary critics, publishers and activists,
82 Chapter III
Declaration, the Thammasat Resolutionn, 1994, reaffirmed the opposition to

the extension of intellectual property rights to life forms, to bio-piracy and
the monopolization of biodiversity-related knowledge as well as focused on
a sui generis system. It sought for: (Raghavan, 2004).
a) Revision of TRIPS to allow countries to exclude life forms and bio-

diversity related knowledge from intellectual property;
b) Preventing CBD from becoming a mechanism for transnational

corporations to trade in biodiversity in the name of access and
benefit-sharing;
c) Reinforcing the defence mechanisms of local communities from bio

prospecting.
3.4.3. The Mataatua Declaration on Cultural and Intellectual Property
Rights(1993)
The Nine Tribes of Mataatua in the Bay of Plenty Region of Aotearoa New
Zealand convened the ‘First International Conference on the Cultural and
Intellectual Property Rights of Indigenous Peoples’ in Whakatane from 12-
18 June 1993. This resulted in the Mātaatua Declaration on Cultural and
Intellectual Property Rights of Indigenous Peoples', commonly referred to as
the Mātaatua Declaration.
The Mataatua Declaration on Cultural and Intellectual Property Rights of

Indigenous Peoples, equated protecting traditional knowledge to the right of
self-determination.o Article 1 points out that the existing mechanisms are
insufficient for protecting their knowledge. It urges the people to define their
intellectual and cultural property. It also urges the people to develop a code
of ethics which external users must observe when recording (visual, audio,
written) their traditional and customary knowledge. Article 2 asserts that the
n
The Declaration was signed by representatives from nineteen countries and the focus of
the seminar was on the protection of plant varieties by the Sui generis option, this was
signed by the peasants, academicians and nongovernmental organizations.
http://www.twnside.org/title/than-cn.org.
o
The Tribes of indigenous people living in Aotearoa, New Zealand are called the
Maatatua people, the declaration is titled “the Maatatua Declaration on the Cultural
Property Rights of Indigenous People, <http://tpk.govt.nz/mataatua.htm>.
national and international agencies must understand that the cultural

properties are vested with those who created them. It also urged the UN to
monitor and take action against states whose persistent policies and activities
damage the cultural and intellectual property rights of indigenous people.
This Declaration was reiterated in the Statement issued by the International
Consultation on Intellectual Property Rights and Biodiversity organized by
the Indigenous Peoples of the Amazon Basin (Raghavan, 2004).
3.4.4. Voice of Earth Congress (1994)
The Voices of Earth Congressp was organized in 1994 and it sought a

common policy by establishing a council to protect intellectual, scientific
and cultural property. The Julayinbul Statement on Indigenous Intellectual
Property Rightsq, 1993, followed this. This statement was issued in
Australia. It asserted that the aboriginal intellectual property is an inherent
inalienable right that cannot be terminated, extinguished, or taken. The
statement called on Governments to review legislations and policies which
did not recognize indigenous intellectual property rights. The statement also
urged for the implementation of Conventions that recognized these rights
(Raghavan, 2004).
The Conference issued a Declaration reaffirming the right to self-

determination and to the intellectual property rights. It condemned bio-
prospecting and the exploitation of the intellectual property rights of
indigenous peoples. This was the first statement where the indigenous
community came out openly on the probable disadvantageous position of
the prevailing intellectual property regime to them. The COICA/ UNDP
Meeting on IPR and Bio Diversity, 1994r, for the first time rejected the
p
Congress on Voice of the Earth: Indigenous Peoples, New Partners, the Right to Self -
determination in Practice, Dutch Centre for Indigenous People, Beurs van Berlage,
Amsterdam, The Netherlands.
q
See Julayinbul Statement on Indigenous Intellectual property Rights (Declarations made
at Jingra, North Eastern Coastal Region of Australian
<http://www.icip.lawnet.com.au/info6.htm>
r
COICA and UNDP (1994) The COICA Statement, Meeting on Intellectual Property
Rights and Biodiversity, Santa Cruz, Bolivia, <http://www.mtnforum.org/library.htm>
84 Chapter III
prevailing intellectual property rights regimes, as legitimising the

misappropriation of their knowledge, resources and culturet like the
Maatatua. This statement also linked intellectual property rights with the
right of self-determination in Article 3. It declared that biodiversity, culture
and intellectual property are concepts that mean indigenous territoriality
(Raghavan, 2004).
It reiterated that issues relating to access to resources have to be viewed

from this standpoint. Article 9 highlighted the danger of distortion to
indigenous systems in adjusting them to the prevailing intellectual property
regime. Article 10 reiterated that patents and other forms of intellectual
property rights are unacceptable to the indigenous people. The Statement
formulated short and medium-term strategies to deal with these problems.
3.4.5. The Sabah Declaration (1995)
Various regional consultation have been organized on the topic of the

promotion of indigenous resources within the frame work of the United
Nations development programme (UNDP), one of which was held in
February 1995 at Sabah in Malaysia. The Sabah Declarationu, discusses a
plan of action at the local levels to raise the level of intellectual property
awareness of the communities.
The Consultation had immediate short-term strategies to organize

workshops and to seek initiatives from the various Governments to achieve
their goals. The medium-term strategies include: intensifying the campaign
against human genome project; building alliances with other organizations,
s
The Mataatua Declaration recommended a conference coordinated by the COICA
(coordination of the Organization of the Indigenous people of the Amazon) on cultural
and intellectual property rights. As per this clause, a statement was issued by COICA in
the International Consultation on Intellectual Property Rights and Biodiversity
Conference held in September, 1994.
t
Article 2 of the statement renounces the prevailing intellectual property laws as
allowing multinationals to take the biodiversity, plant varieties and the related
knowledge from the communities for free and vests the property rights in those who
took the knowledge without providing any benefit for the community.
u
The Declaration was convened as a part of the UNDP Consultation at Sabah in
Malaysia.
including Asian organizations; and providing updates of the human

genome project to the indigenous people to assist information dissemination
(Raghavan, 2004).
3.4.6. The Suva Declaration (1995)
The Suva Resolutionv, 1995, was passed as a result of the South Pacific
Regional Consultation on Indigenous Peoples’ Knowledge and Intellectual
Property Rights, in Fiji, and was a part of the UNDP’s initiative on
intellectual Property and indigenous people. The Conference was to the
renouncing of the intellectual property laws by the previous Declarations.
The Conference urged for the Declaration of the Pacific Regions to be
patent-free zones. Article 7 urges the strengthening of indigenous networks,
and encouraged the UN and regional donors to support discussions on
indigenous peoples’ knowledge and intellectual property rights. Article 8
points out the importance of strengthening “the capacities of indigenous
peoples to maintain their traditions, and encourage initiatives by indigenous
peoples to record their knowledge in a permanent form according to their
customary access procedures” (Raghavan, 2004).
3.5. From the CBD to the TRIPS
The CBD and TRIPS are evidence that in the recent years, there has been a
growing worldwide concern for the protection of biological resources and
right to such resources. This concern has manifested itself strongly in the
global debate over intellectual property rights regarding biological
resources. At the centre of this debate both Agreements attempted to resolve
the concerns, but in some ways only widened the gap between them. While
the TRIPS advocates stronger patent protection, the CBD promotes fair and
equitable sharing of biological resources.
v
Final statement from the UNDP consultation on indigenous People’s Knowledge and
Intellectual Property Rights, Suva, April, 1995, <http://users.ox.ac.uk/wgtrr/suva.htm>l
86 Chapter III
3.5.1. Convention on Biological Diversity (CBD)
The Convention on Biological Diversity (CBD) is probably the most

encompassing international agreement ever adopted. It seeks to conserve
the diversity of life on Earth at all levels; genetic, population, species,
habitat, and ecosystem and to ensure that this diversity continues to
maintain the life support systems of the biosphere overall. The CBD
recognizes that setting social and economic goals for the use of biological
resources and the benefits derived from genetic resources is central to the
process of sustainable development, and that this in turn will support
conservation.
The CBD, concluded 5 June 1992, was the result of discussions at the Rio de
Janeiro 1992 United Nations Conference on Environment and Development
(the “Earth Summit”) towards a strategy for sustainable development,
following negotiations that had commenced in November 1990 under the
United Nations Environment Programme (UNEP) (Adair, 1997). The CBD,
administered by UNEP, establishes principles for the protection of the
environment while ensuring ongoing economic development, emphasizing
conservation of biodiversity, sustainable use, and fair and equitable benefit
sharing of that use of genetic resources.
The CBD is a significant international instrument in the development of

rights in indigenous and traditional resources, in that it is based on the
localised community control of resources and aims to provide for the
equitable sharing of the benefits derived from them, thereby re-invigorating
national sovereignties with respect to biological and intellectual resources.
The CBD now has 188 parties, thus potentially providing for global
coverage and important acknowledgment of indigenous cultural and
intellectual property rights: The importance of the CBD as a tool for
indigenous groups lies in its recognition of the contributions of indigenous
and local communities to the conservation of biodiversity’ (King &
Eyzaguirre,1999). The capacity of this document to organise relationships
between states with respect to traditional knowledge, however, persists
largely as potential as it remains unratified by the United States of America.

Similarly, although Australia has ratified the CBD and implemented basic
legislation, the legislative response has been disappointing to indigenous
groups (Keyes, 1999).
While the CBD has been lauded for its recognition of cultural diversity as an
instrument in the protection of biodiversity, the “salience” of the
importance of biodiversity continues to be articulated in terms of
international trade and global economic resources.
The CBD establishes access to the biological resources of developing

countries on a quid pro quo basis with technology transfer from the
industrialised countries, and asserts that intellectual property rights must
not conflict with the conservation and sustainable use of biodiversity and
include the encouragement and development of exchange and use of
indigenous and traditional knowledge and technologies, in the spirit of the
CBD (Dutfield, 2000).
3.5.2.Trade Related Aspects of Intellectual Property Rights (TRIPS)
Trade Related Aspects of Intellectual Property Rights (TRIPS) is an

international Agreement between the member nations of World Trade
Organization (WTO). TRIPS Agreement is aimed at harmonizing the
Intellectual Property (IP) related laws and regulations worldwide. The
TRIPS Agreement accomplishes this motive by setting minimum standards
for protection of various forms of IP. The nations that are signatory to the
TRIPS Agreement have to abide by these minimum standards in their
national laws related to IP. The TRIPS Agreement generally sets out the
minimum standards regarding the grant of rights to the owner of IP,
enforcement requirements in the national laws, and settlement of disputes
and remedies to those whose IP rights get infringed.
The coverage of the TRIPS Agreement encompasses the various areas of IP

including patents, trademarks, copyrights, geographical indications,
industrial designs, etc. The objective of the TRIPS Agreement is to ensure
the protection and enforcement of Intellectual Property Rights (IPR) to
88 Chapter III
contribute to the promotion of technological innovation, transfer and

dissemination of technology, mutual advantage of producers and users of
technological knowledge in a manner that is conducive to social and
economic welfare, and balance of rights and obligations, worldwide.
In 1944, for the first time an international agreement was reached upon to
govern the international monitory policy. This was called the Bretton
Woods Agreement. The Bretton Woods Agreement created two institutions
to govern the international monitory policy: International Bank for
Reconstruction and Development (IBRD, the World Bank) in 1945 and the
International Monetary Fund (IMF) in 1946. These were called the Bretton
Woods Institutes. Subsequently, the General Agreement on Tariffs and
Trades (GATT) was established in 1947 to harmonize the trade between
various nations.
GATT was the only multilateral instrument governing international trade

from 1948 until the establishment of WTO in 1995. In all, eight rounds of
negotiations were held under GATT. These rounds were held for refining the
international trade and tariff rules. The first five rounds exclusively
concentrated on the tariffs. The sixth round included discussion on anti-
dumping measures as well which included provisions for member nations to
control the dumping of goods into their territory by other nations which can
affect the member nation’s economy. Further, the seventh round discussed
tariff and non-tariff measures. The last GATT round was the Uruguay Round
(1986-1994). The Uruguay Round, for the first time introduced discussions on
trade related to agriculture, services and IPR. After long discussions and
complex negotiations, finally in 1994, WTO was established. WTO became
effective from 1st January 1995. All the 123 nations that participated in the
Uruguay Round became the members of WTO.
WTO deals with the rules of trade between nations at a global or near-
global level. The objective of WTO is to provide the common institutional
framework for the conduct of trade relations among its member nations in
matters related to the agreements and associated legal instruments. WTO is
responsible for negotiating and implementing new trade agreements, and is

in charge of monitoring member countries' adherence to all the WTO
agreements, signed by the majority of the world's trading nations. Under
the provisions of WTO, many new agreements, regulations, treaties and
conventions were introduced to provide the framework for
implementation, administration and operation of the multilateral trade
agreements between member nations. All these agreements, treaties,
conventions and regulations were based on two principles, namely: a) Most
Favoured Nation treatment: Equal treatment for nationals of all trading
partners in the WTO; b) National Treatment: Treating one’s own nationals
and foreigners equally.
One of the important agreements among all of WTO Agreements is the

TRIPS Agreement. The TRIPS Agreement has emerged as the most widely
impacting agreement post WTO leading to harmonization of IP related laws
and regulations among member nations. The TRIPS agreement came into
force on 1st January, 1995. Taking into consideration the disparities in
economic and technological developments among different member
nations, WTO provided for different transition time periods in different
member nations for application of these rules.
After the CBD and TRIPS were adopted, several ideas surfaced regarding
the incompatibility of the two international agreements. At the centre of the
debate, Article 27 specifically calls for the review of the TRIPS Agreement
itself. While the TRIPS and the CBD, both attempt to legislate some form of
intellectual property and technology transfer, the agreement appear to
provide contradictory prescriptions for the control over generic resources
and biodiversity. The two agreements embody and promote conflicting
objectives, systems of right and obligations. The core conflicting areas are,
the patentable subject matter, benefit sharing, protection of local knowledge,
requirements of prior informed consent and role of the state.
The TRIPS Agreement and the CBD, conflicting and controversial areas are
discussed in the next core chapter (Chapter IV).
90 Chapter III
3.6. Summary
The foregoing discussion reveals that the Traditional Knowledge associated

with biological resources is an intangible component of the resource itself.
Traditional Knowledge has the potential of being translated into commercial
benefits by providing valuable leads provided by traditional knowledge
save time, money, and investment of modern biotech industry into any
research and product development.
Due to the globalization of product systems, increase in population,

destruction of forests for agriculture and timber purposes, biodiversity is
declining at a rapid pace. Biodiversity and associated Traditional
Knowledge are declining due to decreased motivation amongst the local
communities to conserve and protect them. This is happening because of
change in their life styles as well as misappropriation of Traditional
Knowledge not only violates the rights of communities who conserved
Traditional Knowledge but also adversely affects the conservation and
sustainable use of the Traditional Knowledge and that of biodiversity.
Traditional and indigenous knowledge has been used for centuries by

indigenous and local communities under local laws, customs and traditions.
It has been transmitted and evolved from generation to generation.
According to the CBD, TK is as the knowledge innovations and practice of
indigenous and local communities embodying traditional life styles relevant
for the conservation and sustainable use of biological diversity. Traditional
knowlede refers to knowledge, possesed by indigenous people, in one or
more societies and in one or another form, including but not limited to art,
dance and music, medicines and folk remedies, folk culture, biodiversity,
knowledge and protection of plant varieties, handicrafts, designes, litrature.
The contribution of TK to human development, especially in food
production, crop yields and health care, are also recognized. The majority of
the world’s population depend on TK and practices for food and medicines.
There are several categories of Traditional Knowledge, the main
classification of TK is as the community Traditional Knowledge, Publically
known knowledge, individual TK, Documented TK, Vocal, sacred, secular

and the indigenous knowledge.
The issue of Traditional Knowledge protection has posed an intractable

problem for advocates, scholars and developing country governments. TK
advocates seek greater recognition and rights within international
intellectual property law-particularly, the muscular TRIPS framework. TK
advocates have operated primarily within human rights and preservation
approaches. These approaches appear more hospitable to TK advocates than
the conventional IP approaches.
The Preservation Approach frames TK protection through the lens of

biodiversity preservation, this approach succeeding in triggering
international and national action with respect to TK protection. The Human
Rights Approach to Traditional Knowledge touts the primacy if human
rights obligations over the other economic policies and agreements, but it is
very unclear what this primacy means and when it comes to using
intellectual property mechanisms to protect Traditional Knowledge. And
the IP approach to Traditional Knowledge is priorities the conventional
purposes of intellectual property law. This approach has posed a seeming
dead end to proponent of TK protection because of its emphasis on
incentive to create the limited application of moral rights and labour desert
principles and increased for the public domain.
The existing frameworks of intellectual property laws that are recognized

internationally are those identified by TRIPS and are governed by the WTO.
Protection of TK is essential in many aspects. Lack of proper legal policy
frame work for the protection of TK in the developing countries provides a
vacuum for the developed and industrialized nations to exploit the TK and
resources of indigenous communities. WIPO focus on the relationship
between IP and genetic resources, TK and folklore. Although no significant
outcomes have resulted in the IGC’s work, its existence has had a high
political profile both within governments and civil society organizations.
UNEP was the voice for the environment within the United Nations system
92 Chapter III
and acts as a catalyst, advocate, educator and facilitator to promote the wise
use and sustainable development of the global environment. It gave birth to
two major conventions the UN Framework Convention on Climate Change
and the Convention on Biological Diversity (CBD).
The International Treaty on Plant Genetic Resources for Food and

Agriculture (ITPGR) endorses a multilateral system of access and benefit-
sharing of plant genetic resources and mandates that the contracting parties
"facilitate access to plant genetic resources for food and agriculture, and to
share, in a fair and equitable way, the benefits arising from the utilization of
these resources. As a counter-measure, some countries, such as India and
Australia, have opened registries of traditional knowledge to attempt to
provide IP like protection for plant varieties, and to require that anyone
seeking access to the genetic resources sign a material transfer agreement
covering derived varieties. UNCTAD has undertaken measures to analyse
and strengthen the development dimension in international IP rule-making,
including effective transfer of technology to developing countries;
protection of TK, genetic resources, and folklore will continue.
UN Declaration on the Right of Indigenous People set out the minimum

standards for the survival, dignity and well being of the indigenous people
of the world. According to the Kari-Oca Declaration, the indigenous people
of Asia, Africa, Europe and Pacific owed their lands and traditions that
binds them together. And also they criticised that the museums and media
were misused their pictures for commercial benefits and has portrayed the
people as if the songs and dances alone represent their lives. The Mataatua
Declaration is for the Traditional Knowledge to the right of self
determination. It urges the people who define their intellectual and cultural
property, and also the people to develop a code of ethics which external
users must observe when recording their traditional and customary
knowledge. And also the UN to monitor and take action against states
whose persistent policies and activities damage the cultural and IPR of
indigenous people.
The Sabah Declaration discusses the plan of action at local levels to raise the
level of intellectual property awareness of the indigenous peoples. The
action plan was that, to organize workshops and campaign to aware the
indigenous people that who suffered. Voice of Earth Congress is for to
establish a Council to protect intellectual property rights and special focus
to the bio-piracy and bio-prospecting. Suva declaration is the result of South
Pacific Regional Consultation on Indigenous People Knowledge and
Intellectual Property Rights. It was part of the effort by UNDPs initiative on
intellectual property and indigenous people.
Bellagio Declarations made by the professional who shared the common

concern about the impact of international intellectual property law on
indigenous communities. Bellagio Declaration highlights the need for
looking at community right rather than the author-specific rights. The main
arguments in Bellagio is that the revision of the TRIPS to allow countries to
exclude life forms and bio-diversity related knowledge from intellectual
property; Preventing CBD from becoming a mechanism for transnational
corporations to trade in biodiversity in the name of access and benefit-
sharing and Reinforcing the defence mechanisms of local communities from
bio prospecting.
The Declarations and Agreements like Kari Oca, Mataatua, Sabah, and the
Bellagio all reflect the increased awareness and concern about the
relationship between indigenous peoples and intellectual property regimes.
It shows the various forms of support that are evolving, but painfully, also
reflects that there is a long way to go before the support becomes strong
enough to gain adequate momentum.
The economic value of the biological diversity conserved by local and

indigenous community is difficult to quantify. However the modern
biotechnological revolution coupled with the demand for increased IPR for
genetic researchers has created a new interest among researchers on
biogenetic resources and associated TK. The advent of modern
biotechnology coincided with the growing interest of multinational
94 Chapter III
corporations on bio-patents has raised the piquant problem of bio-piracy

and bio-prospecting.
At the global level there is Traditional knowledge. It is still relatively novel

concern in International Law, but at present there is no binding and
effective international law that safeguards and protects TK rights.
Moreover the TRIPS Agreement does not mention TK and there is no special
treatment even by way of sui generis protection for TK under TRIPS. And in
the case of CBD, it mandates which stress the importance and the need to
promote, international, regional and global cooperation amongst national
states, intergovernmental originations and non-governmental sectors for the
conservation of biological diversity and sustainable use of its components,
must be transformed into reality by devising appropriate legal policy
measures at international, regional and national levels.
The protection of TK is no longer a matter of national context, rather there has

been a growing international movement to structure TK in a more normative
form. The law making process of relevant international legal regimes is still
ongoing. The uncertain international legal status of those TK holders, mainly
indigenous peoples, would leave the protection of TK to the discretion of each
state. Indeed the ABS protocol of the CBD is run successfully, would uphold
the protection of biodiversity related TK and preserve the interest of
indigenous and local groups holding such TK. Its effectiveness is nevertheless
confines to maters of Abs regarding associated TK.
Various international instruments are attempting to define Traditional

Knowledge; however, all these definitions are illustrative or inclusive in
nature since the global community, till date, there has not agreed for a
universally accepted exclusive definition. Several proposals have been
made, within and outside the intellectual property system, to protect
Traditional Knowledge or indigenous knowledge, such proposals often fail
to set out clearly the rationale for its protection. The development of any
regime for the protection of TK should be grounded on a sound definition of
the objectives sought and on the appropriateness of the instrument selected
to achieve them. Intellectual Property Rights may be one of the tools to be

used, but their limits and implications should be clearly understood.
As a whole Traditional Knowledge protection raises a number of issues as

the objectives and modalities of such protection and its impact and such
issues are extremely complex since there exists broad differences about the
definition of the subject matter, the content of right, the rationale for
protection, enforcing mechanisms, etc. The possible protection regime
largely depends on how Traditional Knowledge is defined.

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CHAPTER III

PROTECTION OF TRADITIONAL KNOWLEDGE:

The people in different societies perceive and interact with nature

The increasing importance of biodiversity, sparked by the emergence of new

traces the new international initiatives, on the protection of biodiversity

3.1. Traditional Knowledge: Concepts and Definition

Traditional as well as indigenous knowledge have been used for centuries

The knowledge of local communities, farmers and indigenous peoples as to

communities. The viability and sustainable development of these

Traditional knowlede refers to knowledge, possesed by indigenous people,

Art 8(j) of the Convention on Biological Diversity (CBD), 1992, delineated

According to the WIPO, TK comprises tradition based literary, artistic or

• Knowledge created, maintained and applied by indigenous

• Knowledge that is distinctive to these people and has been

• Knowledge that has been endangered in some way, usually

• Knowledge that is considered to be central to the survival of

• Knowledge which is generally heritage inspired, considered to

• Knowledge in which can be found a distinctive ‘indigenous

• Knowledge that gives rise to and inspires distinctive and

Source: Mugabe, John. (2004). Intellectual Property Protection and

Most often, the knowledge in question will be known to the entire

understandable to the rest of the world. However, these informal

3.1.1. Kinds of Traditional Knowledge

Cultural Knowledge Artistic Knowledge Medicinal Knowledge

Biodiversity/Natural Agricultural Knowledge Sacred Knowledge

The main classification of Traditional Knowledge is as (Gravis, 2003)

• Community Traditional Knowledge

• Publically known Traditional Knowledge

• Individual Traditional Knowledge

• Documented Traditional Knowledge

• Vocal Traditional Knowledge

• Sacred Traditional Knowledge

• Secular Traditional Knowledge

Community TK indicates information that is not known to all but known

Documented TK means information that is well documented and available

productions used in non-sacred events and ceremonies. Indigenous

• communal ownership and attribution of knowledge;

• sharing of knowledge through specific consent of the

• right to use and deal with knowledge;

• collective rights and interests held by indigenous people in

• close interdependence between knowledge, land and other;

• aspects of cultural in indigenous societies;

• oral transmission of knowledge in accordance with well;

• understood cultural principal and

• management of knowledge through specific rules including

3.1.2. Nature and Characteristics of Traditional Knowledge

Traditional knowledge is based on thousands of years of experiences; it is

as a distinct body of knowledge separate from the community culture and

TK is collective in nature and is often considered as the property of the

In its various forms Traditional Knowledge, though initially developed in

3.1.3. The Value of Traditional Knowledge

Traditional Knowledge makes valuable contributions to the two main

The contributions of TK to human development, especially in food

Traditional peoples and communities are responsible for the discovery,

3.1.4. Biodiversity Associated Traditional Knowledge

The economic value of the biological diversity conserved by local and

3.2. Theoretical Approaches to the Protection of Traditional Knowledge

Several International Conventions and Agreements address the subject of

Efforts in each of these venues are grounded in different theoretical

The legitimacy of Traditional Knowledge protection may usefully be put

3.2.1. The Preservation Approach

The preservation approach frames Traditional Knowledge protection

Following the CBD, a number of developing countries enacted laws