Protection of Traditional Knowledge:

International and National Initiatives

and Possible ways ahead

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

Introduction
Around the world, various local communities possess knowledge and practices gained by
them through experience of centuries and transferred from generation to generation. This
culturally transmitted knowledge is referred to as traditional knowledge. Traditional
knowledge is the result of intellectual activities in diverse traditional contexts. The term
“traditional knowledge” is a very broad concept, which encompasses within itself indigenous
knowledge related to various categories like agricultural knowledge, medicinal knowledge,
bio diversity related knowledge as well as expressions of folklore in the form of music,
dance, songs, handicraft, designs etc. It has played and still plays an important role in the
lifestyle of indigenous communities.

Traditional knowledge is capable of providing clues for making commercial products which
can be used for the benefit of mankind. One of the challenges posed by the modern age is to
find ways for strengthening and nurturing the roots of traditional knowledge so that its fruits
can be enjoyed by future generation and so that the traditional communities can develop and
sustain in ways consistent with their own values and interests.

There is a growing recognition for traditional knowledge and traditional cultural expression.
Traditional knowledge have the potential of creating wealth for the communities.
International community now recognizes that they are not just old and obsolete sources of
knowledge but highly adaptive and creative which when properly transformed are of high
commercial value. Indigenous knowledge of indigenous people must be protected under the
principles of right to self determination and right to development.

Knowledge both modern and traditional are under peril in the age of Globalisation. The
unfairness of exploitation of indigenous knowledge depends on the fact that the holders of
such knowledge lack awareness about the modern legal system to seek compensation in case
of infringement of their rights. International community realises that national initiatives alone
are incapable for TK protection . World nations are currently engaged in extensive discussion
on preservation of traditional knowledge under various international institutions

This paper will discuss the international and national initiatives regarding protection of
traditional knowledge. It will also look into the proposals laid down by the developing
nations in various international fora regarding the same.

Methodology

The methodology used is purely doctrinal. The relevant material is collected from primary and
secondary sources. Material and information are collected from various National enactments and
international instruments, legal & other sources like published works, law journals, national journals,
and websites on relevant topics.

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

Definition, Nature and Scope of Traditional Knowledge
Traditional Knowledge is dynamic in nature and it is difficult to coin a concise definition for
the term which will cover all aspects it holds1 . The debates for a single definition for
traditional knowledge were always without consensus. As subject matter here is very
dynamic in nature it should be taken care that its definition does not delimit or restrict its
scope. Broadly speaking around the world there are certain cumulative body of knowledge
which is handed down through generations through cultural transmission; this is known as
traditional knowledge2 . As per the official definition of WIPO 3 traditional knowledge is
tradition-based literary, artistic or scientific works; performances; 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.”Tradition based” here refers to creations, innovations, and
cultural expression which have been transmitted from generation to generation.TK is the part
of cultural identity of indigenous communities. It provides the ways by which human society
can survive in current hostile environment. Intertwined within practical solution, they
transmit history, beliefs, aesthetics, ethics and traditions of particular people.

One can say that TK permeates into wide regimes of human interest like agriculture, bio
diversity and medicine to say a few. It has a distinct character of its own which it inherits
through cultural transmissions. It is the knowledge originated from a local or traditional
community that is the result of intellectual activity and insight in a traditiona l context,
including know how skills, innovations, practices and learning embodied in the life style of a
community4 . It is the collective property of the society derived from generations and is used
by the indigenous communities in their interactions with each other. It includes all knowledge
and practices which we apply in diverse facets of life. TK is subjected to a continuous
process of verification adaptions and creation through changing social conditions.TK is part.

1 see srinivas Krishna Ravi, Traditional kno wledge and intellectual Property Rights: A note on issues, some
solutions and some suggestion –Page 3 , availabl e at SSRN www.ssrn.com/abs tract1140623

2 Berkes, F., 1999, Sacred Ecology, Taylor and Francis cited in World Intellectual Property Organisation-
Intergovernmental Committee on Intellectual Property and Genetic Resources, Tradi tional Kno wledge and
Folklore, 2002, “Traditional Kno wledge: Operational Terms and Definitions ”, WIPO/GRTKF/IC/3/9,
Annexure 2

3 Information note on tradi tional knowledge prepared by International Bureau of WIPO available
@WIPO/IPTK/MCT/02//INF/3

4Swapokmund Protocol on protection of traditional knowl edge and expressions of folklore within the
frame work of ARIPO,2010

3
of a collective, ancestral, territorial, cultural and intellectual heritage. This knowledge is
established on the basis of past observations and experiences. It is diverse in nature,
individuals, groups or communities may be their custodians. In fact this knowledge that is
handed down through generations can provide for social cohesiveness and cultural identity
Traditional knowledge is “traditional” only to the extent that they are part of cultural
traditions of a particular society. It does not indicate that knowledge is static or ancient. It is
representative of cultural values of people which was derived by years of practices.

Often TK is equated with the term indigenous knowledge. But this view is not correct.
Indigenous knowledge is a part of TK, but both are not the same.TK in its various forms have
fulfilled the needs of local and indigenous people in different ways. The context of TK and its
forms of expressions varies significantly.TK holders have an unwritten corpus of long
standing customs, beliefs, reliefs, rituals and practices that have been handed down through
generation unlike Indigenous knowledge holders who has to claim for a prior territorial
occupancy5 . Thus indigenous knowledge is a subset of TK which is not different from the
latter, except that the holders here are indigenous peop le belonging to a particular area and
other holders include even non indigenous people embodying traditional lifestyle.

Some forms of TK is and passed to successive generations through oral tradition.TK may be
possessed by some individuals or by some members of a particular group or be available to
all members of the community (common knowledge).TK is evolving as a response of
individual and communities to the challenges posed by their social environment .

TK when modified and enriched become valuable kno wledge which can be used for
commercial exploitation. In recent years there have been recognition and appreciation of TK
by scientific community. Scientists now realise that the amount of knowledge possessed by
indigenous communities, when properly utilized can lead to innovations of commercial value.
Discussions over protection of TK is taking place now a days because a large number of
nations, especially from third world, believes that they are not deriving benefit of their vast
traditional resources though they are rich in them. Indigenous communities have developed
their knowledge through generations so it is essential that those who are trying to exploit its
value should give a due share of their benefits to the community who had preserved this
knowledge for years.

5 Ibid

4
Need for Protection of Traditional Knowledge

Anywhere in the world people need protection of their properties; tangible property can be
easily protected, but the case of intangible property is different. They require some more
effective mechanisms like patents, copyrights, trademarks, geographical indicators etc. These
mechanisms can be effectively used to protect individual‟s intangible properties. Question
that is raised is whether this mechanism is useful in protection of properties owned by the
communities. Challenges to TK are diverse and far reaching and involves many areas of law
and policy which is even beyond the expansive view of intellectual property.

Indigenous people have an immense understanding about their complex ecosystems,

properties of plants and animals and regarding the techniques of using them based on their
living close with nature for centuries6 . This knowledge when transformed into a formal
specification is sources of wealth. But these communities at large are in the grip of illiteracy
and poverty and therefore unable to develop their own resources. But modern globalised
World have witnessed the conversion of collective knowledge of the society into proprietary
knowledge of a few.

Many of the indigenous communities are living on the basis of the knowledge they preserved
for generations. The development of new technologies and the use of traditional knowledge
are posing serious threat to the survival of these communities. The modern industries are now
a day‟s exploiting indigenous knowledge without permission or sharing of profit with these
communities7 . TK is capable of providing valuable leads which may result in products of
high commercial value. The protection of TK would be necessary to bring equity to such
unjust and unequal relations.
Another factor that calls for protection of TK is to maintain the practices and knowledge
derived from traditional life styles. Preservation of TK is intended to provide self
identification to these indigenous communities and thereby provide continuous existence of
indigenous people8 . If TK is having a high economic potential, then its prospects should be
6 statement made by Frederico Mayor, Former Director General UNESCO
7 see Tripathi SK Intellectual property and genetic resources, traditional Kno wledge Folklore : International,
regional and national pers pectives, trends and strategies, Journal of intellectual property rights, vol 8,
pages 468 -477
8 see correa carlos M, Tradi tional Knowledge and intellec tual property, pages 6 and 7, available
@www.geneva.quno.info

5
used for the general wellbeing of the communities which preserved them for generations.
Besides this maintenance of the distinct knowledge systems that give rise to TK is vital for
the future well being, development, cultural and intellectual vitality of indigenous
communities.

TK is dynamic in nature and it used to change according to the changes that take place in the
society. Process relating to formation of TK may not be documented in a way scientific and
technological information are recorded 9 . This non systematic manner of recording has been a
great concern in giving recognition to TK. Patents have been granted to non original
innovations which are already a part of traditional knowledge.

Bio-piracy:

In recent years patenting of traditional knowledge based products have been a great concern.
TK based products were given patent even ignoring the novelty and inventive step when
compared with relevant prior art. This use of TK as a basis for making products of
commercial value, which are then patented without sharing any benefit with the source of the
TK is termed as „bio-piracy‟. It is the appropriation of the knowledge and genetic resources
of farming and indigenous communities by individuals or institutions seeking exclusive
monopoly over these resources and knowledge10.

Bio piracy can be described as grant of wrong patents to invention that are neither novel nor
inventive having regard to traditional knowledge already in public domain. Such patents may
be granted due to the lack of documentation or reco gnition of TK as a prior art. Bio piracy
may also happen in cases where patents are granted according to the existing national
legislations which does not recognize certain form of public disclosure as prior art as in the
case of USA11 . Bio piracy has now emerged as a term to describe the free ride of corporations
of developed nations over the genetic resources and traditional knowledge of developing
countries. Bio piracy is thus misappropriation of genetic resources or related TK through the
9 varkey Elizabeth, Law of patents
10 defi nitions given by the Action Group on Erosion, Technology and Concentration ( ETC group)

11 See Shiva Vandana, Monsanto’s Biopi racy, available at http://www.countercurrents.org/en-

shiva270404.htm

6
patent system. Bio piracy is not just a matter of law it is one of morality and of fairness. It is
more like exploitation of resources of a community which lack development. Biopiracy can
be regarded as double theft because firstly it allows theft of creativity and innovation and
secondly it establishes exclusive rights on stolen knowledge and steal economic options of
every day survival of indigenous communities on the basis of their common knowledge 12 .But
we must note that such cases of grant of wrong patents and their subsequent revocation had
led to more debate in this area and thereby development of new initiatives like Traditional
knowledge digital libraries which provides for documentation of TK . Now we can describe
some of the cases relating to Biopiracy in detail.

Case of Turmeric ( Curcuma longa)

Turmeric is a plant of ginger family whose rhizomes are used as spice for flavoring Indian
cooking. Along with this it has properties that make it an effective ingredient in medicines
cosmetics e.t.c. As a medicine it is used to heal wounds and rashes. In 1995, two expatriate
Indians were granted a US patent (NO 5401, 5041) for using turmeric to be used as a
medicine for wound healing13 . The Council of Scientific and Industrial Research (CSIR) filed
a re-examination case with US patent and Trademark office, challenging the patents on the
ground of „„prior art‟‟. CSIR pointed out that the said turmeric has been used for thousand
years for healing wounds and rashes and therefore its use as a medicine was not a new
invention. The patent office upheld the objections filed by the CSIR and revoked the patent
stating that there were no novelty and the findings reported by the inventors were known in
India for centuries. The turmeric case was a landmark judgment as it was the first time a
patent based on TK was successfully challenged.

Case of Neem( Azadirachta Indica )

Neem ie azadiracht indica is a tree found in India and other parts of South and Southeast
Asia. It is famous for its properties as a natural medicine, pesticide and fertilizer. Neem
extracts can be used against hundreds of pests and fungal diseases that attack crops; oil

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

7
extracted from its seeds is used to treat colds and flu; it is believed to offer relief from malaria
and several skin diseases. In 1994 European Patent Office granted a patent (EPO Patent No
436257) to the US Corporation WR Grace Company and US Department of agriculture for a
method of controlling fungi on plants using extracted neem oil. In 1995 a group of
international NGO‟s and representatives of Indian farmers filed a petition against the patent.
They submitted evidence that the fungicide effect of neem seeds was known and used for
centuries in Indian agriculture to protect crops and thus was lacking inventive step.EPO
accepted this claim and revoked the patent14 .
Case of Ayahuasca( Banisteriopsis caapi)

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

The coordinating Body of Indigenous Organizations of Amazon basin which represents more
than 400 indigenous tribes in the Amazon region, along with others protested against granting
of wrong patent for B.Caapi. They made argument that ayahuasca that had been known to the
natives of Amazon basin for its medicinal uses. This argument was accepted and on re
examination USPTO revoked this patent on 17th April 2001.

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

14 see India wins neem patent case, reported in Hindu march 8 2005

15 see http://www.rkdewan.com/pdfs /otherPatents/

8
Limitations of IP based protection

All these cases point out the relevance of TK as a prior art and the need for an effective
identification of such prior art for effective functioning of intellectual property systems. In
the above cases patents issued were cancelled because, the petitioner s were able to provide
certain evidences relating to prior publication of properties of turmeric and neem. The term
prior art refers to any published content available in the public domain before the filing date
of a patent application. Normally before grant of patents an extensive search for prior art is
performed by the concerned patent offices.TK which is orally transferred and preserved by
generations may not be available in a systematic and organized document. Besides this even
if it is recorded it may be recorded in the local language which the foreign patent offices may
find difficult to access. Current IP system considers only documented knowledge as prior art.
This paves way for granting of erroneous patents for commercial products based on
knowledge of indigenous communities.

Another reason which points out that current IP system is inadequate to protect TK is that it is
based on individual private property rights and Traditional knowledge on the other hand rests
on collective creation and ownership .Besides this the term “protection” under present IP
system indicates the owner of that IP has a legal right to exclude others from using or
reproducing it. This aspect is contrary to the concept of TK. Indigenous knowledge are not
exclusive rights of a particular individual they are often shared between the social group, thus
we can say that there is an inherent difference between current IP protection and TK.

One can rightly say that the current patent syste m provides for economic interests of only
those who have slightly altered TK and left out the entire community which developed this
knowledge to the present stage. Besides this the current IP system does not provide for
community patent which can used to protect collective knowledge of the society. This lacking
of provisions for community patent has led to the question of who can be the owner of
patents, based on TK and how benefits incurring from such patents can be distributed among
the society who are in fact the owners of that knowledge.

9
Current patent system is based on the principles of novelty, non - obviousness and industrial
application and hence it cannot be invoked for giving positive protection to TK. TK is
something evolved through generations so it lacks the principle of novelty. TK is developed
by trial and errors. Also TK as such may not be having any commercial application, it indeed
requires certain changes. So we can see that existing patent system is incapable of giving
protection to TK as there is an essential difference between both the concepts.

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

10
International Initiatives for protection of Traditional knowledge

Traditional Knowledge is a complex multi facet issue. Many countries and Organizations
worldwide are considering how to address this issue at international, regional and national
levels .TK is thus discussed in a number of forums like WIPO, UNCTAD,UNEP/ CBD
which have co operated with each other to conduct studies in the area of protection of
indigenous communities. WIPO and UNEP had undertaken joint studies relating role of IPR
and sharing of benefits with communities for use of TK 16 while on the other hand CBD and
FAO had undertaken studies relating to common areas in agriculture. Issue relating to TK is
also discussed in arenas relating to rights of indigenous people and cultural expressions. Of
course the role of different organization in framing a policy significantly varies from each
other.

Convention on Biological Diversity

The convention on biological diversity (CBD) was the result of discussion concluded at Rio
de Janerio on United nations conference on earth and development (Earth Summit), 1992.The
convention provides for protection of environment without compromising with the ongoing
economic development17 .The convention provides for recognition of knowledge of local and
indigenous communities in genetic materials and sharing of benefit derived from it. Article
8(j) of the convention provides that “each contracting party shall as far as possible and as
appropriate , subject to its national legislation respect, preserve and maintain knowledge,
innovations and practices of indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of biodiversity and promote the
wider application with the approval and involvement of the holders of such knowledge,,
innovations and practices and encourage the equitable sharing of benefits arising from
utilization of such knowledge , innovations and practices”.

16 see wipo statement to cte and trips council, wt/cte/w/182, 6th February 2001

17 r adair, the bio prospecting question: the commercial use of public wild genetic resources 1997, ecology law
quarterly, at page 131 – 142.

11
CBD can be regarded as the first international initiative to recognize the contribution of
indigenous and local communities in conservation of biodiversity18 . In its preamble CBD
recognizes the dependence of many indigenous communities on biological resources and
stress on the desirability of benefit sharing. Besides this Article 10 (c) and 18 (4) makes
further references to the rights of indigenous communities. Art 10(c) provides that each
contracting party shall protect and encourage customary use of biological resources in
accordance with traditional cultural practices which are compatible with conservation .Art
18(4) defines technology to include “indigenous and traditional technologies”.

Art 8(j) is not free from limitations, the said article does not talk about protection of TK but it
vaguely calls on the parties to respect, preserve and maintain it. It does not guarantee
indigenous people any rights over their collective knowledge. Besides this the convention
leaves the preservation of this knowledge at the discretion of the parties. Phrases “as far as
possible” in art 8 (j) indicates that the convention does not makes a mandatory requirement
about protection of rights of indigenous communities19 .

Though there are flaws, CBD has the most important place as an international instrument
which officially recognized the rights of indigenous communities.
Trade Related Aspects of Intellectual property Rights ( TRIPS agreement)

TRIPS agreement also has some provision which can be applied in a limited way for
protection of traditional knowledge. Article 1 of TRIPS Agreement p rovides that members
may but shall not be obliged to implement in their domestic laws more extensive protection
than that is required by the agreement, provided that such protection does not contravene the
provisions of this agreement. Many Jurists have opined that this provision can be invoked for
protection of TK. They argue that absence of term TK in the agreement does not prevent any
member from enacting any provision for protection of TK 20.

18 see the bio diversity convention: the concerns of indigenous people(1998) Aus tralian indi genous law
reporter page 38 , av ailable @ www.austlii.edu. au/cgi-bin/disp.pl/au/journals/alir/1998/3\
19 see Mugabe. J & Kameri P , Traditional Knowledge, Genetic Resources and Intellec tual property
protection: Toward a new international regime, prepared by International Environmental law research
Centre, available @ www.ielrc.org/content/w0105.pdf
20 see Dutfield, Can the TRIPS Agreement Pro tect Biological and Cultural Diversity ? Available

@ www.wipo.int/cgi-bin/koha/opac-detail.pl?bib=24572

12
But under TRIPS it is not possible to protect TK under patent law. TRIPS requires member
state to grant patent only to that inventions which are new, involving an inventive step and
are capable of industrial application. But these attributes cannot be app lied in the field of TK,
as it is not new and is incapable of industrial application as such21 . But it is to be noted here
that the same provision can be invoked to prevent biopiracy. Besides this there are authors
who argue that obligation to protect geographical indications provided by TRIPS agreement
can be used to protect TK 22 . TRIPS agreement by itself does create any measures for
protection of traditional knowledge and innovations of indigenous people instead it creates
measures for establishing alternative measures for its protection23 .

Article 27 of the TRIPS agreement states that the members may exclude from patentability
inventions, the prevention within their territory of the commercial exploitation of which is
necessary to protect ordre public or morality, including to protect human, animal or plant life
or health or to avoid serious prejudice to the environment. The notions of ordre public are not
defined in the agreement. However it is clear that those inventions that causes injury to
environment as well as plant or animal life can be excluded. It has been argued that states
can use this provision for the protection of biological diversity associated with the indigenous
communities. Article 27.3(b) of the TRIPS states that the members shall pro vide for
protection of plant varieties either by way of patents or by an effective sui generis system.

Besides this there were lots of discussions regarding TK protection at the TRIPS Council.
These initially took place in the context of implementation of Art 27.3(b). The fourth meeting
of the WTO Ministerial Conference which took place in Doha in November 2001 a
Ministerial Declaration was adopted to which the member states instructed the TRIPS
Council to examine the relationship between the TRIPS Agreeme nt and CBD and also the
protection of traditional knowledge and folklore 24 . TRIPS has left out from its purview the
matter of protection of natural assets and associated knowledge which are owned by nation

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

13
states, communities or individuals. On a whole we can say that conventional intellectual
property laws under the TRIPS does not consider TK as intellectual property worth
protection though patentability of products or process using traditional knowledge poses a
number of questions.

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

Convention)

The UPOV convention is an international convention exclusively dealing with protection of

new plant varieties and is silent on the subject of traditional knowledge and genetic resources.
However it does not forbid granting or creation of rights in respect of TK 25 . Besides this
some provisions of the convention can be used to protect the interest of indigenous persons.
Convention vests exclusive exploitation rights in the de velopers of new varieties of plants as
an incentive to pursue innovative activity and to enable breeders to recover their investment
in breeding.

Article 7 of the 1991 Act of the UPOV provides that “the variety shall be deemed to be
distinct if it is clearly distinguishable from any other variety whose existence is a matter of
common knowledge at the time of filing of the application”. This means that legal protection
can be granted to a variety only if it is shown that it is distinct from others including
traditional varieties. Thus IP rights are granted to plant breeders only if they are distinct,
novel and stable. These conditions can be considered as similar to the criteria for patenting.
These provisions can be invoked as a defensive strategy for the k nowledge of indigenous
communities relating to plant varieties as to grant IP protection the convention specifically
provides it to be distinct and novel26 .

Besides this it should be noted that the process of applying for plant variety protection is
relatively simple and can be done even without legal help. This feature facilitates the
25see Greengrass Barry, Plant variety pro tection and protection of traditional knowledge, available @
www.unctad.org/trade/_envi/docs/unpov.pdf

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

14
applications of small plant breeders. Accordingly UPOV system can be used as a tool for
protecting plant varietal innovation of indigenous communities 27 . Under the convention, a
farmer who produces a protected variety from saved seeds are guilty of infringement unless
national law provides so, these provisions tends to weaken the economic position of
indigenous communities.

UN Declaration on Rights of Indigenous persons

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

its 62 session on 13th September 2007.Though a General assembly declaration is not a legally
binding instrument, this declaration can be regarded as a dynamic development for setting a
standard for protection of rights of indigenous persons. General assembly recognized the
urgent need to respect and promote the inherent rights of indigenous peoples which they
derived from their social structures.

The declaration emphasizes on the rights of indigenous persons to maintain and strengthen
their own institutions, cultures and tradition so as to foster their development. It urges the
parties to make mechanism for prevention and redress of any action which has the effect of
depriving indigenous people of their integrity or their cultural values or identities 28 . Art 24
recognizes the right to their traditional medicines and provides for conservation of their vital
medicinal plants animals and minerals.

Art 31 is an important attempt to protect TK. It asks the states to take all effective measure to
recognize and protect the cultural heritage, traditional knowledge, traditional cultural
expression as well as the manifestations of their sciences, technology and cultures. This
declaration is indeed a dynamic measure of international legal norms regarding protection of
TK and also it necessitates the need for an international treaty for protection of TK.

27 see www.un.org/esa/socdev /unpfi.documents/FAQsindi genousdeclaration. pdf

28 see Art 8(2) (a) of UN declaration on Ri ghts of Indi genous persons

15
Nagoya Protocol on Access to genetic Resources and the Fair and Equitable
Sharing of Benefits arising From their Utilization

There have been several discussions and debates as to whether TRIPS is in conflict with.
After several years of debate at various fora, the parties to the CBD met at Nagoya, Japan in
October 2010 and finalized the draft protocol which define the terms for access to genetic
resources, their utilization and fair and equitable sharing of benefits fro m such utilization.
Though the main objective of this protocol is to ensure fair and equitable sharing of benefits
arising out of genetic resources and to provide for appropriate access to genetic resources and
transfer of technology for protection of biod iversity, it has many provisions which can be
useful for the protection of indigenous knowledge 29 . Article 5 of the protocol asks the parties
to the protocol to take legislative and administrative efforts to ensure that the benefit arising
from the use of TK associated with genetic resources are shared in a fair and equitable way
with indigenous and local communities who conserved these knowledge for these years
though mutually agreed terms.

In order to protect the interest of the indigenous communities municipal legislations should
involve in it the concept of prior consent before granting right to access to resources. The
protocol emphasizes on the need for development of a global multilateral benefit sharing
mechanism providing for fair and equitable benefit sharing associated with TK related
genetic resources which occurs in trans boundary situations where is not possible to take prior
consent of the community30 . Protocol asks it parties to ensure that their national legislations
provide for support and development of those indigenous communities.

WIPO -The Intergovernmental Committee on Intellectual Property Genetic Resources

and Traditional Knowledge

In 2000 the WIPO General assembly established the IGC as a forum for discussion of
intellectual property issues in relation to access to genetic resources, benefit sharing and
protection of traditional knowledge and expressions of folklore. It acts as an international

29 http://www.rona. unep.org/documents/news/Press_Release -2010-03-28-ABS9. pdf

30 see article 10 of Nagoya protocol

16
forum for international policy debate, development of legal mechanisms and for creating
practical tools for protection of traditional knowledge and traditional cultural expressions
against misappropriation and misuse. IGC work has produced large number of discussion
papers on the subject of protection of TK.IGC has produced a number of prac tical outcomes
which include, a toolkit for the management of IP in the context of documenting TK and
genetic resources, a practical guide for protection of traditional cultural expressions, proposal
for revision of international patent classification to contain categories of TK 31.

The committee has made substantial progress in addressing the practical linkages between the
current intellectual property system and the custodians of TK. Committee is trying to bring
about an international understanding regarding the principles that should guide the protection
of traditional knowledge.

Besides all these international initiatives last decade has witnessed many regional initiatives
for laying down measures for protection of TK. African countries under Orga nisation of
African Union prepared a model law on community rights and access to biological resources.
The African Model Legislation for the Protection of Rights of Local Communities, Farmers,
Breeders, and for Regulation of Access to Biological Resources aims at establishing a
framework of national laws to regulate access to genetic resources and associated TK. Its
provisions on access to biological resources make it clear that the recipients of biological
resources or related knowledge cannot apply for any IP rights of exclusive nature. Besides
this they provide for community rights over their biological resources and their right to
collectively benefit from their use, rights to their innovations, practices, knowledge and
technology and the right to collectively benefit from their utilization32 . Thus in practice this
model legislation intends to create a system which allow the community, right to prohibit
access to their valuable resources and knowledge.

From the African region itself, the African Regional Intellectual Property Organization
(ARIPO) in 2010 has come out with protocol for protection of TK and folklore known as the

31 This summary is taken from ‘ Overview of Ac tivities and Outco mes of the Intergovernmental Co mmittee’,
WIPO/GRTKF/IC/5/12, April 3, 2003.
32 k see the model legislation available at http://www.opbw.org/nat_imp/model_laws /oau -model-
law.pdf

17
Swakudump Protocol on the protection of Traditional Knowledge and Expressions of
Folklore. This protocol provides for creation of National Authority which is competent to
look into the matters of TK. It also provides for the rights and recognition of holders of TK,
concept of equitable benefit sharing, licensing etc.

Other than the African Union there is another group known as the Mega diverse countries.
This group includes seventeen nations including India which are rich in bio diversity. They
met in 2002 in Mexico and decided to set up the group as a mechanism for consultation and
cooperation so that their interests and priorities related to sustainable use of bio diversity and
related TK is protected. The Cusso Declaration on Access to Genetic resources , Traditional
Knowledge and intellectual property rights of like minded mega diverse countries,, 2002
stressed on the importance that should be given for protection of bio diversity and associated
TK. It also stressed on the need for an efficient benefit sharing mechanism33.

33 see http://gt.chm-cbd.net/Members/esolorzano/documentos/paises -megadiversos-

lmmc/ Cusco%20Declarat ion.pdf

18
Indian initiatives for protection of Traditional Knowledge
To deal with issues pertaining to protection of Traditional Knowledge Indian parliament had
enacted the following three legislations:

Protection of Plant varieties and Farmers Right Act,2001(PPFR Act)

India is the home for many crops; these crops were identified from the wild, selected and
cultivated by Indian farmers for years. During this long process of selection of crops farmers
had gained lot of knowledge about each variety of crops. This includes k nowledge about
seeds suitable for specific seasons, soils, and even pests. Patenting of seeds, plant varieties
and species are not allowed under TRIPS, but Article 27(3) allows the member countries to
make a sui generis system for protection of plant varieties .Accordingly India enacted a sui
generis system in 2001 in the name of The Protection of Plant Varieties and Farmers rights
Act. Though the Act is primarily based on International Convention for protection of new
varieties of plants, it includes a number of provisions which are not included in the
convention. This Act forms an independent sui generis form of protection to new varieties of
plants.

The objectives of this Act as explicit from its title are IP protection of plant varieties and
protection of rights of farmers. The farmer‟s rights here arise from their role in conserving,
improving and making available plant genetic resources for the development of new plant
varieties. The Act also intends to promote research for development of new plant varieties
which in turn will pave way for accelerated agricultural growth.

Breeder‟s rights over the varieties developed by him are protected by this legislation. Under
the Act a breeder can register his variety and become a PBR holder. Any person can register a
community‟s claim over a particular breed. This intervention, in practice enables the
protection of plant varieties of indigenous communities who is unable to do this by
themselves due to illiteracy or lack of awareness. PBR holder has the exclusive right to
produce, sell, Market or distribute the seeds of that variety34 .Another important feature of

34 see sec 28(1) of PPFR Act 2001

19
this Act is the maiden attempt of introduction of benefit sharing between breeders and
farming or tribal communities who have contributed to genetic diversity used by the
breeder35 .To make this meaningful , mandatory disclosure of geographical location from
where the genetic material has been taken and information relating to the contrib ution of
farming communities have been made. Besides this it is provided that the breeders wanting to
use existing varieties for creating new varieties cannot do so without the express permission
of the farmers involved in the conservation of such varietie s.

The Act is an exclusive legislation regarding protection of plant varieties; it does not have
any specific provision for protection of traditional knowledge. Yet we can invoke the
provision of community rights under section 41 and concept of benefit sharing, for protection
of knowledge on indigenous communities at least to the extent of plant varieties 36 .

Biological Diversity Act, 2002

Biodiversity plays an important role in the conservation of ecological stability and also
involves protection of socio – ecological interests of people living close with nature. CBD
recognizes the sovereign rights of states to use their own biological resources. The
convention expects the parties to facilitate access to genetic resources by other parties
subjected to a national legislation. Convention also asks the state parties to include within its
legislation the right of indigenous communities for benefits accruing from the commercial
use of their knowledge.

As a signatory to CBD India had committed to make a natio nal legislation which provides for
access to biological resources and benefit sharing. In order to fulfill this obligation Indian
government has enacted the Biological Diversity Act in 2002. The Act provides for access to
biological resources of the country with the purpose of securing equitable benefit sharing
arising out of commercial use of those resources. The Act recognizes the Knowledge of local
communities and emphasize on the need to protect them.

35see sec 26 of PPFR, determination of benefi t sharing

36 Bala ravi S, Effec tiveness of Indian Sui generis law on plant variety and its potential to attract private
investment , Journal of intellectual property Rights (9) (2004) 533 - 548

20
Though the Act was primarily enacted for providing free access to biological resources of the
Country by foreign nationals institutions and companies, it contains many restrictions
regarding the same. A foreign national or a body corporate not registered in India is not
allowed to use or obtain any biological resource occurring in India or any knowledge
associated thereto for research or commercial utilization without the previous permission of
NBA37 . Section 4 of the Act restricts the transfer of results of any research relating to any
biological resources obtained from India to any foreign nationals or corporate. Measures have
been taken in the act to prevent instances of bio piracy by restricting any person from
applying for intellectual property rights of any nature within or outside India for any
invention based on any research or information on a biological resource obtained from India
without previous approval of NBA38 .

As mentioned earlier, the Act recognizes the need for sharing the monetary gain accrued from
using biological resources or knowledge associated thereto with persons who have conserved
these resources for years. National Biodiversity Authority has been empowered under section
21 to determine the ways and means of benefit sharing. Various means of benefit sharing
include grant of joint ownership of IP rights with NBA or If benefit claimer can be identified,
then with them, transfer of technology, location of production, research and development
units in those areas which will benefit the lives of the benefit claimers or by setting up of
venture capitals or monetary compensation to the benefit claimers. Another feature of theAct
in relation to protection of TK is that it makes biopiracy a cognizable and non-bailable
offence with a punishment of imprisonment up to five years and monetary compensation up
to five lacks. The Act also provide for the establishment of a National Biodiversity Authority.

National Bio Diversity Authority

Section 8 of the Act gives power to the Central government to establish a National Authority
to look into the matters provided under the Act. NBA is required to facilitate the access to
genetic resources giving due regard to benefit sharing. As provided earlier it shall be the duty
of NBA to oppose any application for IP rights in any country for any invention using genetic

37 see section 3(1) of biological diversity act

38 see section 5 of Biological diversity act

21
resources or associated TK obtained from India. The protection, Conservation and Effective
Management of Traditional Knowledge relating to Biological Diversity Rules, 2009 imposes
a duty upon NBA to recognize existing forms of representative organizations of tradit ional
community and when there is no such representative bodies NBA through concerned state
authorities make arrangement for formation of representative organizations.

NBA has to setup a fund known as the Traditional Knowledge Fund, which shall be used for
the benefit of traditional communities and for the protection and conservation of TK by way
of various welfare measures. NBA has the discretionary power to give access to both
documented or non documented TK. National authority is empowered to develop national
strategies, plans and programs for conservation, development and sustainable use of
traditional knowledge.

The Act can be regarded as a defensive strategy for protection of biopiracy; it is indeed an
innovative legislation with adequate measures to safeguard the bio diversity and economic
interests of indigenous communities.

The Patent ( Amendment) Act , 2005

The TRIPS agreement signed along with WTO agreement in 1995 provides for making
certain changes in domestic patent laws, for reaching a uniform system of legislations relating
to patent throughout the world. In order to fulfill this obligation under TRIPS patent act was
duly amended in 2005. This amendment introduced into Indian IP system certain new
measures for protection of TK. The new amended Act in the area of specification of
inventions which are not patentable made an addition that „an invention which is mere new
use for a known substance‟ and „ an invention which , in effect , is traditional knowledge or
which is and aggregation or duplication or known properties of traditionally known
substances‟ will not be an invention39 .

Another provision is inclusion of new provision for opposition of patent, on specific grounds
under section 25(1) of the Act. It provides after publication of patent application any person
can in writing make an opposition to the controller of patents on the ground of lack of novelty

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

22
or inventive step, or non disclosure or wrongful disclosure of source or geographical origin
used in the invention and anticipation of invention by the knowledge, oral or otherwise
available within any local or indigenous groups in the complete specification. Also now we
can oppose a complete patent specification which was publicly known or publicly used in
India before the date of claim40 .

All the above provisions are defensive in nature which can help to oppose any patent granted
to an invention which is based on the knowledge available within the indigenous groups of
this nation. But these provisions are also not capable of covering the entire area covered by
TK, which necessitates the need for a sui generis system for protection of TK.

40 see section 25(3) (d)

23
Future of TK protection: Proposals by developing Nations and Jurists

There has been extensive discussion within the international community as to the nature of
protection that is to be given for traditional knowledge. Solutions have been proposed in the
form of defensive protection and positive protection. Defensive protection refers to
provisions adopted in law or by the regulatory authorities to prevent IPR claims relating to
TK or a cultural expression or a product being granted to unauthorized persons. Positive
protection on the other hand refers to acquisition of IP rights by the TK holders themselves or
an alternative regulatory mechanism under a sui generis system. Many countries argue for
defensive protection because the current IP system is defective and allows companies to
unfairly exploit TK.

This section discuss about the various proposals which are intended for the protection of TK
which are advanced from various world nations at different international fora. Most of these
proposals are now in practice through various national legislations. An effective
implementation of these proposals can result in sustainable use of knowledge of indigenous
communities and can provide for development of these communities.

Defensive Publication

Defensive protection strategy can be used to prevent granting of exclusive rights on TK based
inventions. Most of the TK based products are given IP protection because of inability on the
part of granting authorities to identify prior art. One of the problems related to TK is lack of
systematic documentation of its process of creation. Defensive publication is a practice of
disclosing details about TK to the public, and thereby preserving them as public property and
preventing others from claiming rights over it.

Documenting TK will convert it into prior art and the invention based on this can no longer
be considered as novel, and thus patent cannot be granted 41 .Besides this such a document on

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

24
TK will be useful for research and will be an impetus to invention both in India and abroad,
but it is to be noted that, this will be useful to indigenous communities only if there is a
proper mechanism for benefit sharing. The greater documentation of TK is not only useful in
preventing the grant of unwarranted patents but also helps in preservation, protection and
possible exploitation of TK.

Idea banks

Idea bank is a defensive strategy, which can be used to protect indigenous resources from bio
piracy. Documentation of TK provides an easy reference for the foreign or national patent
examiners to check for prior art in a patent application based on TK. An idea bank is a digital
library which holds the proven or valid ideas of ancient people and also the conceptual ideas
of the present for the future knowledge development42 .

Idea banks can hold ideas which are virtual and real in nature and which are originated from
different facets of human living. Registered idea can act as a prior art, and thus amount to a
defensive strategy against bio piracy. Also idea bank being in public domain, ideas registered
can be used by anyone by making an agreement of sharing of benefits. Thus idea bank can
provide for sharing of knowledge worldwide.

TKDL – An Indian example

India has already recognized the role of defensive publication in protection of TK, and thus
India has initiated an attempt to document TK in written as well as electronic form by means
of People‟s diversity registers (PBR) and the Traditional Knowledge Digital Library
(TKDL).TKDL is a navigable online repository of traditional knowledge in the country.
TKDL aims to translate Indian TK originally available in native languages to international
languages. Besides this TKDL allows patents offices all over the world to search for prior art
based on Indian TK and thereby acting as a defensive tool to prevent granting of erroneous
patents43 .The scope of TKDL works relates to transcriptio n of 35,000 formulations used in
Ayurvedic system of medicines.
42 Livingston David J India need an idea bank to lead world in intellectual property protection ,Journal of
intellectual property rights, vol 8 may 2003, pages 213 -221

43 see about TKDL available @ www.tkdl.res.in /langdefault//common/abouttkdl

25
The Traditional knowledge Resource Classification (TKRC) is an innovative, structures
classification system that has been designed to facilitate the systematic arrangement and
retrieval of the information in TKDL44 . The TKRC is based on International Patent
Classification system with the information classified under section, class, subclass, group and
subgroup for the convenience of its use by the international patent examiners45 .

TKDL is intended to give documentation to the existing TK and thereby ensuring ease of
retrieval of TK related information by patent examiners and thus hopefully prevent erroneous
grant of patents as in the case of turmeric or neem as discussed above. Work on such TK
libraries is currently pursued in WIPO where a specialized task force including representative
from China, India and other developing nations and patent offices are examining on how such
libraries can be integrated into the existing search tools used by patent offices.

Though this type of defensive strategy is capable to prevent misappropriation of TK, it is not
able to address all issues faced by TK. Besides this it is to be accepted that it is very difficult
to compile all those data which was transmitted through generations over the years.TK is
widespread, besides this old texts are vast and difficult to translate, also being a country with
linguistic varieties, a particular process or a thing will be known in different names in
different parts of the country. All these add to the difficulty of documenting TK. Another
limitation of concept of documentation is that the traditional words which are often used
generally cannot be equated with present terminology. For eg Indian traditional text books
use the word Liver complaint and suggest certain medicines for that, but modern medical
terminology have given different name for this, like Hepatitis A , Hepatitis B e.t.c. So when a
plant is used by Indian for centuries for liver complaints western world may refuse it as a
prior use by stating that the exact medical terminology is not found anywhere in Indian
medical texts46 .

44 ibid
45information adapted fro m www.tkdl.res.in/tkdl/langdefault/co mmon/TKRC.asp

46 This argument was advanced in the case of keela nelli or Phyllanthus

26
Disclosure Of Origin

Disclosure of origin is one of the proposals put forward by developing nations in WTO for
protection of biological resources and TK. The applicant for patent should be asked to
provide along with the application, the detail of the country from which he borrowed
information regarding his invention, and provide the evidence to show that all legal
requirements of the particular country for access and fair and equitable benefit sharing arising
from commercial use of such resources has been fulfilled 47 . Besides this it should be shown
that Prior Informed Consent has been obtained from the national authorities or the indigenous
communities for taking and using their traditional resources 48 .And if it‟s found that wrongful
or missing disclosure is made then the patent application should be rejected. Disclosure
mandate is intended to facilitate the existing IP system to address the issue of protection of
TK.

DOO is based on the concept that, if origin is disclosed, then it will be easier for the patent
offices to identify any prior art relating to the subject matter of invention and thereby reduces
the instances of erroneous granting of patents. A mandatory disclosure requirement will
function both as a substantial and procedural condition on patent applicants. A requirement in
all patent laws for the applicant to disclose the source of origin of the genetic resource or
associated TK on which the application is based is argued to increase the transparency in
patent proceeding and will further facilitate the enforcement of benefit sharing principles.
Developing countries argue that CBD art 8(j) is very weak for protection o f TK and hence
TRIPS agreement should be amended to include a provision for protection of TK. They have
codified a draft provision for a new article to be inserted in to the TRIPS as article 29bis,
which summarizes all the proposals for DOO and provides for stronger enforcement
provisions49 .DOO can be used as a defensive strategy against bio-piracy.

47 WTO Doha work programme –the outstanding implementation issue on the relationship between the TRIPS
and CBD , communication from India.pakistan, Brazil, Peru, Thailand and Tanzania,
WT/GC.W.564,TN/ C/W?41, www.wto.org
48 See generally TRIPS Council, The Relationship Between the TRIPS Agreement and the Convention on
Biological Diversity (CBD) and the Protection of Traditional Knowledge: Elements of the Obligation to
Disclose Evidence of Benefit-Sharing under the Relevant National Regime, IP/C/W/442 (Mar. 18, 2005).
49 see policy brief , south centre, mandatory disclosure of source and origin of biological resources and TK,
October 2007, no 11 available @ www.southcentre.org

27
India has incorporated this principle of disclosure of origin in her Patent laws by patent
second amendment act, 2002. The newly read section 10 of the Act provides that the
applicant must disclose the source and geographical origin of any biological material
deposited in lieu of the description.

One of the limitations for this strategy is again the lack of effective documentation of TK.
Even though the origin of resources is disclosed it would be difficult to determine whether it
constitutes a prior art or not, due to nonsystematic recording of TK. This further underlines
the proposal for establishments of idea banks with international co operation.

A global treaty and regulatory mechanism for TK

A plausible measure for protection of Traditional Knowledge is to develop an international

framework for the same. This concept will get broad support from most of the developing
nations as protection at national level is of very little use beyond national borders. This idea
was first put forward by peter Drahos50 , an Australian Jurist. Currently we have different
international organizations working on the field protection of TK, adding to this different
countries have different national legislations. This lack of uniformity has created problems
and now there is clash of legal approaches and enforcement strategies. Ultimately the goal
and purpose of regulation is lost. This is the reason for proposal of an international
enforcement mechanism for TK. A global treaty and a regulatory body like WIPO or WTO
can establish guiding principles for protecting TK and can coordinate the activities of
national agencies. A multilateral treaty is indeed a good idea it can be used to draw guidelines
relating to principles of national treatment, mutual recognition, access and benefit sharing and
other areas peculiar to TK.
Though the idea of global mechanism is interesting, it may take years to materialize such a
concept. The main impediment in enacting such a treaty is the existing differences between
Countries providing and countries using TK regarding IP regulations. As a result of this
another proposal based on reciprocity has been suggested by Paul Kuruk 51 . According to this
view though the concept of a single international instrument is not feasible for the time being

50 Peter D rahos, A Networked Responsive Regulatory Approach to Pro tecting Traditional Kno wledge ,
51 See Paul Kuruk, Bridging the Gap between Tradi tional Kno wledge and Intellec tual Property Rights: Is
Reciprocity an Answer?, 7 J.WORLD INTELL. PRO PERTY 429 (2004).

28
it is possible to make bilateral agreements between TK source countries and the user
countries specifying what kind of TK is protected and what form of protection is guaranteed.
Also it is possible for making regional agreements between groups of nations. The
Swakopmund protocol on the protection of traditional knowledge and expression of folklore,
entered by Countries of African region under African Regional Intellectual Property
organization (ARIPO) can be considered as an example of such regional agreements. Group
of likeminded mega diverse countries, LMMC is another example of this concept, they have
identified some common issues on bio diversity, IP and TK and are working for a mechanism
for consultation and cooperation, so that their interests and priorities related to bio diversity
and indigenous knowledge is protected.

Though these initiatives are in existence it is still not an easy task to arrive at an international
treaty or an agreement based on reciprocity considering the commercial value of TK based
products and levels of protection that is to be given.

Development of a sui generis system

Through their association with nature for centuries indigenous communities have acquired
immense knowledge, which when properly modified is having large commercial value.
Current IP system has proved to be inefficient to deal with the issues relating to protection of
TK, this was reason for a proposal of development of a sui generis system for protection of
TK. Sui generis systems are alternate models created outside the prevailing intellectual
property regime. Article 27.3 of the TRIPS agreement asks the states to provide for a s ui
generis system for protection of plant varieties and traditional knowledge. Developing
countries are looking at sui generis clause as a window, an opening, to enact legislations that
goes beyond IPR for protecting rights of farmers, indigenous and local communities who
apply creative intellectual efforts and develop useful technologies with bio diversity and their
knowledge of the same52 .
A sui generis legislation in TK which recognizes the autonomous character of TK is able to
ensure a more objective valuation of TK. A system that views TK as a composite resource
having, both economic and cultural features has a better prospect of ensuring protection of
52 international seminar on sui generis rights, 8th December 1997, ( Thai network , Bio Diversity and Genetic
Resources Action International, Bangkok)

29
TK. National measures of a sui generis system backed by international regulation can
definitely help in preserving the knowledge of communities from misappropriation53 .

Some countries have already enacted or are in the process of enacting a sui generis system of
protection of TK. Philippines is one among those nations who has enacted a legislation giving
indigenous communities right over their traditional knowledge 54. These rights extend to
controlling access to ancestral lands and access to biological and genetic resources and to
indigenous knowledge relating to these resources. Access by other parties under this
legislation is based on the concept of „prior informed consent‟ of the community. The Act
provides that any benefit arising from genetic resources of associated indigenous knowledge
will be equitably shared. The law seeks to ensure that indigenous communities are able to
participate in all levels of decision making. The Guatemalan law also seeks to preserve and
promote the wider use of its TK by placing expressions of national culture including
medicinal and music under the protection of the state. India also by Biological diversity Act
has made an attempt to make a separate system of law for pro tection of genetic resources and
associated TK.

Even while raising demands for a sui generis system for TK protection, there have been
concerns regarding the efficiency of such a system. As we have pointed out earlier in this
paper diversity is the very essence of TK systems, so concerns has been expressed regarding
the feasibility of a single system which covers the entire aspects of TK.

Equitable benefit sharing

Benefit sharing is actually a theme that runs through all facets of TK protection.CBD was the
first international initiative to recognize the concept of access to genetic resources coupled
with sharing of benefits. According to the principle of benefit sha ring, the TK holders are
entitled to receive an equitable share of benefits that arise from use of TK, which may be
53 see Damodaran A, Traditional Knowledge, Intellectual property rights bio diversity: critical issues and
challenges, Journal of intellectual property rights, VOL 13 September 2008 page 509 -513

54 The indigenous peoples rights act of 1997, republican Act no 8371 available at
www,rain.org/doc/Philippines -ipra-en.pdf

30
expressed in terms of compensatory payments or other non monetary benefits. The concept of
benefit sharing is appropriate in situations where exclusive property rights are considered
inappropriate. It is believed that the benefits accruing to communities enable them to continue
their lifestyle and thereby can help in preservation of TK.

Globalization demands access to resources, no nation can shut their doors to this global
reality. TK if kept as such will be of no use to the community. It needs transformations to
give results carrying commercial value, but the indigenous communities lack the technical
knowhow to bring this change to their valuable knowledge. A system which permits access to
its resources along with provision for benefit sharing is a need of the hour. MNC‟s and others
engaged in research have money and technological advances which indigenous communities
lack. It is better to allow them to access the resources and take an equitable benefit accruing
from it.

Developing nations have recognized the need for a benefit sharing system and has
incorporated this in their national legislation. In India both the Protection of plant varieties
and farmers rights Act and the Biological Diversity Act prescribes for an efficient benefit
sharing mechanism. But it is a fact that this national mechanism finds it difficult to deal with
Trans-boundary situation which further highlights the need for an international regulatory
mechanism providing for access and benefit sharing.

31
Current state of negotiations

So far IGC has come out with various studies and have documented the views of states and
indigenous communities w r t to protection of TK. IGC meetings have always resulted in
divergence than convergence when it comes to the matter of protection of TK. The prima
facie reason for this is the difference between the developed and de veloping nations relating
to TK.. Working groups of IGC is currently working on a consolidated text for TK protection
and on the proposal of mandatory disclosure requirement and defensive databases 55 .Besides
this IGC is asked by WIPO general assembly to submit a text of an international document to
protect TK, TCE and GR. IGC has also prepared draft proposals and guidelines for protection
of TK and TCE. It is expected that during the current budgetary biennium IGC will come up
with an international text for protection of TK and GR. Even if IGC comes up with model
laws on misappropriation of TK it is not sure that it will be accepted by all states due to
ongoing differences between TK providers and users.

At TRIPS council, developing nations have already made proposals for amendment of TRIPS
agreement and introduction of mandatory disclosure requirement. Various commentators are
saying that the amendment of TRIPS is not going to happen in recent years as a much broader
consensus is required for reaching such a stage. Besides this the mandate given by Doha
ministerial declaration is not yet fulfilled. As a matter of fact, the issues of TK and access and
sharing are not receiving equal importance when compared with issue of access to medicine
or agreement on agriculture.

Although there are setbacks developing nations continue to use TK as a bargaining issue.
They are pressing for discussions at IGC for a misappropriation regime that can be
implemented at the national level. Along with this there are various regional initiatives of
developing nations currently engaging in discussions on cooperation and consultation
regarding protection of TK

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

32
Conclusion

IP rights are given with a purpose to reward the innovators of new scientific inventions or any
creative work and there by promoting development in the world. IP rights promote growth by
leveraging ideas and knowledge into economic assets. As we have seen already traditional
communities posses considerable knowledge which within itself retain vast amount of
commercial and economic value. The current IP regime fails to provide any rewards to the
community based knowledge which is available in the public domain. TK is essentially
culturally orientated so its preservation is integral for cultural identity of the community
which preserves these knowledge for years.

The era of globalisation has witnessed blatant misuse of TK and granting of patent for TK
based products without giving importance to interests of indigenous communities. Bio piracy
and other patenting of innovations based on TK have posed a challenge before the existing IP
regime. The disparity in wealth between the knowledge holders and the beneficiaries of that
knowledge highlighted the need for protection and prevention of misuse of TK. Issue relating
to protection of TK is very wide, a single solution can hardly be expected to meet such a wide
range of concerns and objectives. A multiplicity of complementary measures are required for
this .There are two distinct options for the TK possessors and practitioners, either TK should
be protected in a positive way which prevents evasion of knowledge of indigenous
communities or by allowing access to indigenous knowledge and making effective
mechanism for benefit sharing and compensation.

Protection of TK indicates making TK the sole property of its practitioners and thereby
denying grant of IP rights on TK based products and thus facilitating transmission of
knowledge to future generations. But this kind of restrictive approach is not useful for the
development of the society. TK within itself encompasses lots of commercial value, which
when properly changed can be used for the development of humanity. But we know that
traditional community lack technological development to facilitate the change of TK into
commercial products. Protection of TK per se offers benefit to the community as a whole
only if the said TK is developed to reach a point in which the said TK is capable of
generating commercial value. In this context the second option is better for the interest of the
society as a whole. It promotes the commercial potential of TK and permits patents or a qua si
licence on development made on the knowledge available in public domain. Such a system

33
will also provide for equitable and fair sharing of benefits between the beneficiaries and the
practitioners who provided the fundamental knowledge. The compensation so received can be
used for the development of the community who provided the knowledge, which in turn
facilitate the all round development of the society.

Efforts should also be taken for the promotion of TK. Here promotion indicates harnessing of
TK for trade and development. Many of the indigenous communities depends upon TK for
their survival and thus any measures that can strengthen and develop this base of knowledge
will facilitate the movement of these communities along a fixed path of development.

The possessors of TK hold a moral right to their knowledge. But while saying this we should
not forget that developments of indigenous communities are a must requirement for the
development of a country. TK if kept secret and not shared will continue to be a non
economic entity. Sacrificing economic development of the society in the name of protection
of moral rights of a particular community is not a justification. Thus main concern of
protection of traditional knowledge should be regarding sustainable use of indigenous
knowledge and benefit sharing.

34
 Bibliography

Inte rnational and Regional Conventions referred

 Convention on Biological Diversity, 1992

 Nagoya Protocol on Access to genetic Resources and the Fair and Equitable Sharing
of Benefits Arising From their Utilization,2002

 TRIPS Agreement,1995

 The African Model Legislation for the Protection of Rights of Local Communities,
Farmers, Breeders, and for Regulation of Access to Biological Resources

 UPOV Convention,1991
 UN Declaration on Rights of Indigenous persons,2007
 Swakudump Protocol on the protection of Traditional Knowledge and Expressions of
Folklore.

Statues Referred

 Biological Diversity Act,2002

 Patent amendment act ,2005

 Protection of Plant varieties and farmers rights Act

Books Referred

 Acharya NK, Text book on Intellectual property Rights, Asia law house

 Alikhan Shahida and Mashelkar Raghunath, Intellectual Property and comparative

strategies in the 21st century, Kluwer Law International
 Bhandari M K, Law relating to Intellectual Property Rights, First edition, 2006,
Central Law publications

35
  Debroy B, Intellectual Property Rights, BR Publishing corporation
 Elizabeth Varkey, Law of Patents, First edition 2005, Eastern Book Co
 Elizabeth Varkey, Law of Plant Variety Protection, First edition 2007, Eastern Book
company
 Marett,Paul Intellectual Property Law, London sweet& Maxwell,1996
 Maredia K M & Erbisch , Intellectual property rights in Agricultural
Biotechnology,1998

Articles Referred

 Cullet, Phillipe , Human Rights, Knowledge and IP Protection, JIPR Vol. 11(1) page
7-14.
 Damodaran, A, Traditional Knowledge, IPR, Bio diversity conservation, critical
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 www.cbd.int
 www.legalsutra.org

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