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CHAPTER VI
TRADITIONAL KNOWLEDGE IN INDIAN SCENARIO
6.1 Introduction
India as a free nation has not only updated some earlier legislation’s (e.g. Patents and
Designs Act. 1911) but has also enacted new laws aimed at protection of IPRs at the national as
well as international level. India is one of the few countries in the world who has had a number
of legislations on IPR protection. The Acts which have been enacted and are in force are: the
Copyright Act, 1957, The Patents Act, 1970 (as amended in 2005), The Trademarks Act, 1999,
The Geographical Indications of Goods (Registration and Protection) Act, 1999, the Designs
Act, 2000, The Protection of Plant Varieties and Farmer’s Right Act, 2001 and Biological
Diversity Act, 2002.
In the year 2008, India came out with Traditional Knowledge Digital Library (TKDL) in
an effort to protect her traditional knowledge and traditional cultural expression. Also, the
facility of electronic filing (in short, e-filing) of applications has been introduced since July,
2007 to bring the Indian Intellectual Property Regime in line with international requirements.
Further, the Indian Innovation Bill, 2008; the Protection and Utilization of Public Funded
Intellectual Property Bill, 2008; and the Copyright (Amendment) Bill, 2010 are likely to give
more strength to the IPR regime in India.
If the Government is of the opinion that the applicant is seeking grant of patent for an
invention which is important with view point of safety or defense of the country, the Government
may direct the person authorized to keep the application and all documents pertinent thereto as a
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secret until after such time as the Government deems fit.1
India is rich in genetic resources and associated traditional knowledge and has been
identified as one of the countries with mega biodiversity. Traditional knowledge has been used
for centuries by Indian indigenous and local communities and has been the mainstay of their
existence, especially in key sectors of food and health. In addition, TK also plays a vital role in
the conservation of biodiversity in the country. For instance, some tribal populations in India,
like the Garo and Khasi tribes of Northeastern India have created "sacred groves" in forest areas
that help to conserve the forest and its inhabitants.
Similarly the Onges of the Little Andaman Island in the Andaman and Nicobars and the
Cholanaickan tribals of Kerala have devised elaborate social procedures to conserve and
sustainably exploit natural resources2. India, apart from her well-endowed biological resources,
is also home to rich traditions of crafts.3
6.2 Traditional Knowledge under Indian Constitution.
The Constitution of India does not directly address the issue of protection of traditional
knowledge. Article 48(A) of the Constitution refers to the State's obligation to protect and
improve the environment and safeguard the forests and wildlife of the country. Article 51 (A)(g)
1. J.W. Baxter, World Patent Law and Practice, (Second Edition, Sweet and Maxwell, London 1973), p.22. 2. Sahai Suman, "Indigenous Knowledge in India and its Protection in India", in Christophe Bellmann, Graham
Dutfield and Ricardo Melendez-Ortiz (eds.) Trading in Knowledge: Development Perspectives on TRIPS, Trade and Sustainability, 166-74, London, International Centre for Trade and Sustainable Development, Earth Scan Publications Limited, (2003).
3. See Liebl and Roy 242, “In 2000-2001, it was estimated that the handicrafts sector employed around 8.6 million people, earning an income of US$ 3.3 billion, of which US $1.9- 2.4 billion come off exports (National Sample Survey Organization(2004: 54). Survey of Unorganized Manufacturing, 45'h and 51" Rounds), 1989-1990 and 1994-5, New Delhi, India. 2000-2001 figures were estimated by assuming a constant growth rate of domestic demand, and constant real output-worker ratio, through the 1990s”.
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Imposes a duty upon the citizens of India to protect and improve the natural environment,
including forests, lakes, rivers and wildlife. As regards protection of TCEs, Article 29 of the
Constitution recognizes as a "Fundamental Right" (Part III) the protection of the culture of
minorities. According to Article 29, "any section of the citizens residing in the territory of India
or any part thereof having a distinct language, script or culture of its own shall have the right to
conserve the same." It is possible to protect the folklore of the distinct groups in India based on
this provision. However, the majority of the TCEs existing and misused now in India belong to
small communities who do not come under the scope of the aforementioned
constitutionalProvision4.
The only other general provision in the Constitution that can be identified as a source to
protect TCEs is Article 51 A (f) of the Constitution. It is the fundamental duty of every citizen of
India "to value and preserve the rich heritage of our composite culture. “Furthermore,
considering the special cultural identity of the tribal population in India, the Constitution
envisages special protection of the indigenous communities. The areas where there are only tribal
communities, as per Article 371 read with the Schedule VI of the Constitution, are permitted to
have separate Autonomous Councils for self-governance in accordance with their customary
laws.5
4. P.V.Kutty, G.Valsala, “National Experiences with the Protection of Expressions of Folklore/Traditional Cultural
Experiences: India, Indonesia and the Philippines”, (2002), available at http://www. wipo.int/tk/en/studies/cultural/expressions/ study/kutty.pdf visited on 06.04.2014.
5. The normal Laws of the land are applicable only if accepted by the community and the Council has the power to make laws even to protect their social customs. For other parts of the country, as per Schedule V of the Constitution, the government has the power to create scheduled areas to protect the interests of the tribes. The application of the normal laws, if they are in conflict with their customs, can be prohibited by the head of the State. The tribes not falling in the above categories are subjected to the normal laws of the land (Kutty 2002: 19). To some extent while there may be some recognition of customary rules of use within communities, such as at religious and spiritual occasions like marriages, birth and death rituals etc., there exists no law in India presently that directly prohibit outsiders from misappropriating their folk arts and practices.
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6.3 Biological Diversity Act, 2002
In view of these concerns, India, being a signatory to the CBD passed the Biological
Diversity Act (BDA), 2002 which is intended to provide for conservation of biological diversity,
sustainable use of its components and fair and equitable sharing of the benefits arising out of the
use of biological resources and knowledge (BDA, Section 21). In the early 1980’s conservation
of Resources for the benefit of present and future generation is one of the fastest growing fields
at the international, regional and national levels6.
The BDA provides for the exclusion of value added products from the definition of
biological resources and traditional use from the definition of commercial utilization7. Where
there is no3 Under the BDA, "biological diversity" is defined in Section 2(b) as: "the variability
among living organisms from all sources and the ecological complexes of which they are part
and includes diversity within species or between species and of ecosystems."8 The nature of the
NBA's obligation with regard to regulation of access to genetic resources and associated
knowledge thereto is not very clear.
6. David Ambrose, “Sustainable Development of Natural Resources and Environmental Duties in International
Law”,4 S.B.R.R.M. Journal of Law (1997), pp 12-38 at 37; Jose N. Nanduthoty, “Sustainable Development: From Concept to Reality”, 20 IASSI Quarterly (2003), pp 39-49 at 42; Karen E Mac Donald, “Sustaining the Environmental Right of Children; An Exploratory Critique” 6 The ICFAI Journal of Environmental Law(2007), pp 40-89 at 45; M.D. Madhusudan and Pavitra Sankaran, “Creating Inviolate Areas; can Law Alone Save off Threats?” The Hindu Survey of Environment (2011) pp 116-119, at 118.
7. Section 2(c) reads: means plants, animals and micro-organisms or parts thereof, their genetic material and by products excluding value added products, with actual or potential use or value, but does not include human genetic material. Value added products means products, which may contain portions/extracts of plants and animals in unrecognizable and physically inseparable form.
8. Section 2(f) read: commercial utilization means end uses of biological resources for commercial utilization such as drugs, industrial enzymes, food flavors, fragrance, cosmetics, emulsifiers, oleoresins, color, extracts and genes used for improving crops and livestock through breeding or genetic intervention and shall not include traditional practices in use in any agriculture, horticulture, poultry, dairy farming or animal husbandry or bee keeping.
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The NBA's only obligation is to ensure that the benefit sharing agreement is equitable
and in accordance with the mutually agreed terms and conditions between the persons applying
for approval and the local bodies and benefitclaimers9 [BDA, Section 21 (1)]. It is however
mandatory for the NBA to consult the Biodiversity Management Committees (BMC) before
taking decisions relating the use of biological resources [BDA, Section 41(2)]. But there is no
obligation on the part of NBA to follow the suggestion or decisions of the BMC10 since the
obligation is only to "consult". On the occurrence of an instance.
However, according to class 22 of the Biodiversity Rules 2004, the Biodiversity
Management Committee shall be constituted by the local body and shall consist of a Chairperson
and not more than six persons nominated by the local body, of whom not less than one third
should be women and not less than 18% should belong to the Scheduled Castes/Scheduled
Tribes. It appears that the local body is left to decide the members to be included in the
committee. Similar concern over the negation of the Right of local bodies and community
representatives has been expressed over the Indian Biological Diversity Rules, 2004.11
Realizing that India has vast and rich biodiversity, its protection against bio piracy and
ensuring equitable sharing of benefits enshrined in CBD is a challenging task. One of the major
challenges before India lied in adopting an instrument which helps realize the objectives of
equitable sharing of benefit.
9. Section 2 of the Act defines benefit claimers as follows: means the conservers of biological resources, their
byproducts, creators and holders of knowledge and information relating to the use of such biological resources, innovations and practices associated with such use and application.
10. The Act is silent about the constitution of the BMC. 11. In 2007, Panchayat and other community representatives from the states of Andhra Pradesh, Meghalaya, Orissa,
Tamil Nadu and Uttar Pradesh submitted over 3,000 resolutions to Prime Minister Manmohan Singh expressing serious concerns over the implementation of the said Rules. It is believed by these groups that the Rules delineating the provisions of the Act limit the power and function of the very same communities to only documentation of their resources and knowledge, with no legal provision to exercise control over what is documented, (The Financial Express, 2007).
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CBD affirms the sovereign Right of the states over their biological resources and India being a
member CBD and WTO decided to bring the Biological Diversity Act, 2002 after making
extensive and intensive consultant process involving various stakeholders12.
A Committee in India to examine and review patent law in India as also to suggest
necessary changes thereto, was set up in 1957 under the Chairmanship of Justice N. Rajagopala
Ayyangar, by the Government of India.
The Committee submitted its report in September, 1959. The learned Judge dealt with all
possible aspects of the problem arising in developing countries regarding patents particularly
‘preponderance of foreigners among the applicants for the patent Right.13
The Convention on Biological Diversity (CBD), signed on the sidelines of the Earth
Summit14 held at Rio de Janeiro, Brazil in June 1992 emerged as a great milestone in this
direction; and was responded to by its signatories including India15 which came out with
domestic legislations as a proof of their commitment to protect all forms of flora and fauna.
12. “The Act received the assent of President on 5-2-2003” and was published in the Gazette of India Ex. Pt. II Sec. I dated 5-2-2003, Sections 3 to 7, 18 to 47, 49 to 53, 55 to 58, 60 and 61 enforced w.e.f. 2-7- 2004. 13. H.M. Jhala, Intellectual Property and Competition Law in India, (N.M. Tripathi Private Limited, Bombay,
1985), p.22. 14. The United Nations Conference on Human Environment and Development is better known as the Earth Summit.
Besides signing Rio Declaration, the parties to it also signed several other documents, like, Agenda 21, the Convention on Climate Charge, and the Convention on Biological Diversity.
15. For Example, the Pan-European Biological and Landscape Diversity Strategy, 1994; the European Community Biodiversity Strategy, 1998; and the UK Biodiversity Action Plan (UK BAP), 1994. On her part India’s response was though a little late but very accurate in the form of Biological diversity Act, 2002.
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6.4 Traditional Medicine
Traditional know how and traditional medicines16 make a very important contribution to
the holders of traditional knowledge in the Committee though their representation is not made
mandatory in the Act or Rules.
Health of a particular community. In some Asian and African countries, 80% of the
population depends on traditional medicine for primary health care.17 In China, traditional
medicine accounts for around 40% of all health care delivered. In Chile, 71% of the population
and in Colombia 40% of the population use such medicine. In India, 65% of the population in
rural area use Ayurveda and medicinal plants to help meet their primary healthcare needs.
Traditional systems of medicine are generally based on traditional beliefs, norms and
practices based on centuries old experiences of trials and errors, successes and failures at the
household and community level. These are passed through oral tradition.18 India possesses well
established system of traditional medicinal practices such as Ayurveda, Unani and Siddha. The
knowledge associated with these systems is well documented and has been successfully practiced
in India for centuries.19 In addition to this, there are innumerable varieties of local health
practices spread over the villages of India.
16. In the Context of Health Policy, the WHO defines Traditional Medicinal Knowledge as: "the sum total of the
Knowledge, Skills and Practices based on the Theories, Beliefs and Experiences Indigenous to Different Cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention diagnosis, Improvement or Treatment of Physical and Mental Illnesses." See WHO Fact Sheet, No. 134, revised in December 2008, available at http://www. who.int/mediacentre/factsheets/fs 134/en/ (accessed 5 August 2009) visited on 06.02.2014.
17. WHO, “Report on Intellectual Property Right and Access to Medicines: a South EastAsia Perspective on Global Issues,” WHO Regional Office for South-East Asia, India, (2008).
18 M.Correa, Carlos, “Protection and Promotion of Traditional Medicine: Implications for Public Health in Developing Countries”, Geneva, South Centre, (2002).
19. See Venkataraman, K. and S. Latha, Swarna ,According to the All India Coordinated Research Project on Ethnobotany, the indigenous communities are acquainted with the use of over 9000 species of plants and specifically for the purpose of healing are aware of the use of over 7500 species of plants. "Intellectual Property Right, Traditional Knowledge and Biodiversity of India", Journal of Intellectual Property Right13: (2008), pp 326-328.
285
In India, the national policy on traditional medicine was introduced in 1940. National
laws and regulations were also issued in 1940, and updated in 1964, 1970 and 1982. The national
programme was issued in 1964. The national office the Department of Medicine and
Homeopathy was established in 1995 as part of the Ministry of Health and Family Welfare.
There are a number of expert committees for different forms of traditional medicine; the earliest
of which was established in 1962. There are also a number of national research institutes; the
first being the Central Council of Indian Medicine, established in 1970.
India also has two multivolume national pharmacopoeias, the Ayurvedic Pharmacopoeia
of India and the Unani Pharmacopoeia of India. Both are considered to be legally binding.
Regarding national monographs, several sources are used, including a national database on
medical plants used in Ayurvedic medicine and monographs contained in the national
pharmacopoeias.
Safety requirements include those required for conventional pharmaceuticals, as well as
special requirements of traditional use without demonstrated harmful effects and reference to
documented scientific research on similar products. No control mechanism is used for these
requirements, as the long standing use of herbal medicines in the Ayurveda, Unani and Siddha
systems demonstrates their safety for human use.20
The demand for protection of traditional medicine arose in the context of bio-piracy and
patenting of new products based on traditional knowledge using biotechnology21. Western
science has acknowledged the usefulness of traditional medicine for the development and
commercialization of new pharmaceutical products.
20. WHO, “National Policy on Traditional Medicine and Regulation of HerbalMedicines”, Report of the WHO
Global Survey, Geneva, (2005). 21. K.Venkataraman, and S. Latha, Swarna, “Intellectual Property Right, Traditional Knowledge and Biodiversity
of India", Journal of Intellectual Property Right 13: (2008), p.326.
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6.5 Indian Patent Act
The terms of the Indian Biodiversity Act in some limited ways may help protect TM,
owing to its focus on genetic resources and associated TK. However, since TM is an intricate
combination of both tangible and intangible TK resources, the Biodiversity Act alone will not
suffice to protect TM.
So far as the intangible aspects of TK are considered, the Indian Patent Act (as amended
in 2002) acknowledges its value and contains provisions that proscribe the patenting of TK.
Under Section 3 (p) of the Indian Patent Act, an invention which in effect is traditional
knowledge or which is an aggregation or duplication of known properties of traditionally known
component or components is not patentable. This provision however does not prevent granting of
patent to new products and process based on traditional knowledge.
The Act also mandates the disclosure of the source and geographical origin of the
biological material in the patent specification when the invention claimed is based on biological
material [Indian Patent Act, Section IO (d) (ii) (D)]. There is also no reference to the provisions
of the Biological Diversity Act in this regard at least in cases where the traditional knowledge is
based on genetic materials. The Indian Patent Act acknowledges the oral tradition in TK and
accordingly allows opposition to a patent application if the invention claimed in the application
is anticipated having regard to the knowledge, oral or otherwise, available within any local or
indigenous community in any country [Indian Patent Act, Section 25(k)].
Opposition to patent is also allowed where the complete specification does not disclose or
wrongly mentions the source or geographical origin of biological material used for the invention
[Indian Patent Act, Section 25(j)]. Similarly a patent granted can also be revoked on the above-
said grounds [Indian Patent Act, Section 64(p) & (q)]. But here again there is no provision to
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oppose a patent application or revoke a patent granted on the ground that the traditional
knowledge is used without the prior informed consent of the community or the patent owner
failed to satisfy the terms and conditions including benefit sharing. Thus the Act while treating
the traditional knowledge as public domain property has failed to recognize the customary
ownership and Right of the custodians of this knowledge.22
6.6 Plant Varieties and Farmers Right Act
Another legislation that has a very limited application in case of protection of traditional
medicine is the Protection of Plant Varieties and Farmers' Right Act (PVFA) 23, 2001. The PVPA
though primarily intended to protect new plant varieties also includes provisions for the
registration of existing varieties and payment of compensation and benefit sharing to the
community.
The law is useful for protection traditional medicine only if there are medicinal plant
varieties. The benefit under this law is mainly targeted to the farming community. To protect the
traditional knowledge of farming community the PVPA facilitates the registration of extant
variety24and farmers' variety25 under the Act.
22. N. S. Gopalakrishnan, ''TRIPS and Protection of Traditional Knowledge of Genetic Resources: New Challenges
to the Patent System", European Intellectual Property Review, 27 (1): (2004), pp 11-18. 23. The PVP A is India's sui generis legislation for the protection of plant varieties giving effect to Article 27(3(.b)
of the TRIPS Agreement. The Preamble to the Act outlines some of the basic objectives behind the PVP A. The Act is purportedly for the establishment of an effective system for protection of plant varieties, the Right of farmers and plant breeders and to encourage the development of new varieties of plants. The PVP A acknowledges the need to protect plant breeders Right to stimulate investment for research and development. The PVPA was also created for the purpose of facilitating the growth of the seed industry in India, which will ensure the availability of high quality seeds and planting material to farmers.
24. The PVPA defines "extant variety" in Section 2(j), as a variety available in India which is i) Notified under Section 5 of the Seeds Act, 1966; or ii) Farmer's variety; or iii) A variety about which there is common knowledge; or iv) Any other variety which is in public domain 25. The PVPA defines "farmer's variety" as a variety which
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In addition to this the PVPA also includes a separate chapter entitled Farmers' Right to
protect the interest of the farming community while providing protection for new plant varieties
(PVPA, Chapter VI, sections 39-46).
There are provisions for recognition of Right of farmers, benefit sharing, paying
compensation to communities for their contributions, immunity from prosecution in case of
innocent infringement (PVPA, Chapter VI, section 42), payment of annual fee by the breeders
and the creation of a Gene Fund26 are the special provisions included in the Act. Similar to the
Biodiversity Act, there is no provision recognizing the ownership of traditional knowledge with
the community.
Section 41 of the PVPA allows for any persons, group of persons (whether actively
engaged in farming or not) or any governmental or non-governmental organization to file claims
attributable to the contribution of the people of a village or community in the evolution of any
variety for the purpose of staking a claim on behalf of such village or local community.
Such claims are subject to a complex set of verifications by the Central Government and
the PVPA seems disproportionately biased in favour of the Right of breeders [PVPA, Chapter
VI, Section 41 (3)). The payment of compensation to the community rather than a right of
ownership is recognized under the PVPA.
i) Has been traditionally cultivated and evolved by the farmers in their fields; or ii) Is a wild relative or land race of a variety about which the farmers possess the common knowledge? 26. The National Gene Fund is to be constituted by the Central Government which shall be applied for meeting
1) Any amount to be paid by way of benefit sharing; 2) the compensation payable; 3) The expenditure for supporting the conservation and sustainable use of genetic resources including
in situ and ex situ collections and for strength the capability of the Panchayat in carrying out such conservation and sustainable use;
4) Expenditure of the scheme relating to benefit sharing. See Section 45, PVPA, 2001.
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6.7 TK Documentation and Traditional Medicinal Knowledge
Documentation of traditional knowledge is one of the defensive forms of protection that
has received a fair amount of attention in recent years. To tide over the problem of the open and
freely accessible "public domain" and the concomitant instances of "poaching" on traditional
knowledge without permission or benefit documentation, mostly in digital format has been
seriously considered in recent years.
Number of patents taken on Indian Systems of Medicine at International Patent office
each year is approx.2000, with reference to Yoga, the study conducted by the TKDL team on the
international patent databases in February 2004 found 249 patents taken on Yoga, in May, 2005
found over 2300 patents, 2315 Trademarks at USPTO and nearly 150 copyRight at USPTO,
taken on Yoga. The decision was taken in 35th IPC Union Meeting of World Intellectual
Property Organization (WIPO) on the initiative of India.
The Traditional Knowledge Digital Library in India is a collaborative project between the
National Institute of Science Communication and Information Resources (NISCAIR), Council of
Scientific and Industrial Research (CSIR), Ministry of Science & Technology and the
Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH),
Ministry of Health and Family Welfare, which is being implemented at NISCAIR. An
interdisciplinary team of traditional medicine (Ayurveda, Unani, Siddha, and Yoga) experts,
patent examiners, information technology experts, scientists and technical officers are involved
in creation of TKDL for Indian Systems of Medicine.
The TKDL includes about 2.12 lakh medicinal formulations (Ayurveda: 82,900; Unani:
1,15,300; Siddha: 12,950), from 148 books available in public domain, and the database exists in
34 million A4 size pages. Creation of TKDL – Yoga is under process and till date about 900 no.
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of Yoga postures from 14 old yoga books in public domain have been transcribed, which will
also be video graphed and added to TKDL database.
The TKDL seeks to provide information on traditional knowledge existing in the country,
in languages and format understandable by patent examiners at International Patent Office
(IPOs), so as to prevent the grant of wrong patents. The TKDL thus seeks to act "as a bridge
between the traditional knowledge information existing in local languages and the patent
examiners at IPOs."27
The project involves documentation of the TK available in public domain in the form of
existing literature related to Ayurveda, Unani, Siddha and Yoga, in digitized format in five
international languages which are English, German, French, Japanese and Spanish28.
The project has created the Traditional Knowledge Resource Classification (TKRC), an
innovative structured classification system for the purpose of systematic arrangement,
dissemination and retrieval for about 25,000 subgroups of plants as against the few subgroups
that were available in the previous version of the International Patent Classification (IPC),
related inter alia to medicinal plants, minerals, animal resources, effects and diseases, methods
of preparations, mode of administration29.
27. See TKDL Official website available at http://www.tkdl.res.in/tkdl/ visited on 03.08.2014. 28. As of June 2009, the TKDL project has transcribed 2,04,000 traditional medicinal formulations. 29. Presentation on Traditional Knowledge Resource Classification (TKRC) at IPC Union led to the creation of
WIPO-TK Task Force consisting of USPTO, EPO, JPO, China and India by (IPC) Union for enhancing the subgroups in IPC for classifying the TK related subject matter and considering the linking of TKRC with IPC. In February 2002, a Committee of Experts recommended the inclusion of approximately 200 subgroups on TK against the few existing sub-groups on medicinal plants, and linking of TKRC to IPC and thus, a new main group was included in IPC i.e. AK61K 36/00 with 207 subgroups covering different categories of plant.
291
Impact of the TKDL project has been felt at the international level. A tangible
recognition of India's strong involvement in the realm of protection of TK, at the WIPO was the
adoption of some key technical proposals put forward by the Asian Group of countries,30
concerning databases and registries for protecting TK and genetic resources, and WIPO's role
thereof. In this regard, the Indian TKDL among few other Asian experiences at database
protection of TK were taken into accounted by the WIPO and considered in the light of the
objectives,31
Functionalities and extent to which they use certain technical specifications like:32
• Content and resource identification standards; and
• Security standards.
Several developing countries like South Africa and African sub-continent represented
ARIPO, Mongolia, Thailand, and Malaysia have shown keen interest for replicating TKDL for
their respective countries. Committee of experts at IPC Union in October 2004 agreed to
link/integrate TKRC developed for TKDL project with international patent classification. Also
based on the input provided from the project, the above Committee in February 2003 agreed to
include subgroups on medicinal plants from earlier existing one sub-group to 200 sub-groups in
international patent classification. Thus, TK seems to have been given international recognition
due to the pioneering work on TKDL.
30. These recommendations to the WIPO were made pursuant to the WIPO Asia Pacific Regional Seminar on Intellectual Property Right, Traditional Knowledge and Folklore, held in Cochin, India, from November 13 to 13, 2002.
31. Objectives of data protection studied in the light of practical Asian experiences included: conservation and preservation, defensive protection, positive protection, full stakeholder involvement, national and local control of databases, and international recognition of defensive and positive protection of TK.
32. See Available at WIPO Doc. WIPO/GRTKF/IC/4/14 (6 December 2002), 252, last visited on 6.10.2014.
292
It is however too early to say how far the documentation efforts at TKDL have proven
useful to prevent attempts at patenting existing traditional knowledge. On 2 February 2009, the
Indian government allowed access to the TKDL, to patent examiners at the European Patent
Office. Other countries have also opened their digital archives on traditional medical knowledge
to EPO patent examiners. In 2008, the Chinese Patent Office (SIPO) granted the EPO access to
its 32 000-entry database on traditional Chinese medicine. While the access to such databases on
traditional knowledge have been described as a "win-win situation"33 for all concerned, be it with
regard to prior art searches in patent offices or protection against misappropriation.
6.8 Regional Efforts
6.8.1 Karnataka
Indian states are also actively involved in protecting TK. For instance, initiatives of the
State of Karnataka include Eco-development project in the Nagar hole National Park that seeks
to address the livelihood issues of the forest living communities in and around the National Park.
The state has constituted more than 3700 Joint Forest Planning and Management Committees for
involving people in management and protection of forest.34 The state is also rich in medicinal
plants and has constituted the Karnataka Medicinal Plant Authority to promote medicinal plant
conservation and development in the state. 35
33. See Statement by Paul Schwander, Director of Information Acquisition at the European Patent Office, available
at http://www.epo.org/topics/issues/traditional.html visited on 07.03.2014. 34. See. State of the Environment Report (Karnataka), (2003), at 170. 35. ln Karnataka according to the study of the Botanical Survey of India there are 3924 species belonging to 1323
genera and 199 families in the forests, of which 1493 species are of medicinal value. These belong to 808 genera and 108 families. They occur in different vegetation types across the Western Ghats.
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The Karnataka Forest Department has initiated various Programmes for the creation of
medicinal herbs, shrubs and trees associated with traditional methods of medicines. In Karnataka
with the help of Foundation for Revitalization of Local Health Traditions (FRLHT) Bangalore,
13 Medicinal Plant Conservation Areas (MPCA) and Medicinal Plant Development Areas
(MPDA) are established and managed with the help of local people.36
6.8.2 Andhra Pradesh
Documentation and training programmes have been initiated in Andhra Pradesh to
enhance awareness of ancient Ayurvedic, herbal and native medicines. For instance, a conscious
effort has been made by Laya, an NGO working for the development of tribals in Visakhapatnam
and East Godavari districts, to document the knowledge of tribals and to promote their system of
medicine. It set up 'Vanantram', an Adivasi Moolika Vaidyasala and Training Centre, at
Addateegala in East Godavari district for training interested tribal youth37 in scientific methods
of preparation of native medicines, delivery and documentation.
6.8.3 Kerala
After consultations for almost 3 years, the State of Kerala, vide Government Order (P)
No. 4/2008/Law, came out recently with an IPR policy (hereinafter KTKP) chiefly targeting the
lack of protection for traditional knowledge in the state. The policy identifies misappropriation of
traditional knowledge in Kerala, especially related to its traditional medicine system of Ayurveda
in Kerala as the chief impetus to the formation of the policy (Section 2).
36.See website for the Karnataka Forest Department, available at
http://kamatakaforest.gov.in/English/forest_glance/medical_plants.html visited on 08.03.2014. 37.See Gopal, Madhu B. The tribals are now trained to prepare drugs that can be stored for some months and in
some cases a year so that they can be used as and when required. The community health practitioners maintain a record of the cases attended by them and the results obtained, (2009). "Effort to promote Native Medicine", The Hindu , October (2009).
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The policy outlines the State's concern about protecting its wealth of knowledge
comprising tribal medicines, Ayurveda practices and bio-diversity. Kerala had in the past lost
several of its traditional knowledge Right on healthcare, food and food supplements, as well as
on designs and cultural properties, because the original inventors or communities that inherited
the knowledge over generations were not supported by the government38.
The KTKP reveals an interesting understanding of TK as "traditional" in "not just being
insufficiently codified, or in the non-formality of its mode of transmission, or in its not being
subject to any legally defined property Right", but also indicates TK as knowledge that remains
largely outside domain of capitalist, especially corporate, operations." (Section 2: emphasis
supplied). Thus, the policy seems to view attempts to commercialize TK, "outside the circle of
traditional users" (Section 11) with some degree of suspicion and seeks to subject them to higher
levels of authorization for use.39
"Capitalist" or "corporate" entities are terms used loosely. Section 4 (iii) states that "no
entity registered as a medium or large enterprise may be deemed to have any Right over
traditional knowledge." Section 7 of the Policy proscribes "medium and large enterprises" from
obtaining autonomous license of use both within the State and outside.
The Kerala TK IPR policy clarifies that the legal arrangement for the protection of all
traditional knowledge, including traditional medicine (qualified by "the practice of which
sustains livelihoods"), will belong to the "knowledge commons" and not "to the public domain."
38. Losing the trademark Right on Jeevani tea and nutritional supplements to the US-based Nutri Science Inc. is a Recent example. Jeevani, a health drink with high medicinal value, was developed by the State-owned Tropical. 39. Unnikrishnan, C.H ,"Kerala to Introduce Intellectual Property Right as a Subject," 26 August(2008), available
at http://www.livemint.com/2008/08/ 26232915/Kerala-to-introduce-intellectual .html visited on 06.03.2014.
295
The terms "commons" and public domain have often been used interchangeably in
scholarly Botanical Garden and Research Institute (TBGRI), based on traditional knowledge
inherited by the Kani tribals in Agastya hills on the Western Ghats. The State of Kerala could not
patent the extraction technology either due to lack of adequate policy mechanism40. Literature
and fair amount of academic discussion has ensued on the consequences of relegating TK to the
realm of "public domain" 41.
Likewise in the realm of copyRight, the expansion of IPRs and the continuing enclosure
of the "intellectual and artistic commons," under the logic of the marketplace, are believed to
negatively affect democracy42.
The right-holder as identified in the first category, i.e. family custodian or community,
has two forms of Right. Firstly, the right where applicable, to a brand name or a name associated
with the unique practice of an institution or community or family, such as "Kotakkal massage";
and secondly the right to use the knowledge commercially or noncommercial [Section 4 (iv)].
Everybody else other than the right-holder of the first category who wishes to use this knowledge
will have to do so under a "commons license" [Section 4(v)]. This "commons license" is deemed
to be held by every right-holder to traditional knowledge (first category right-holders).
40. Dutfield, Graham ,”The Public and Private Domains: Intellectual Property Right and Traditional Knowledge",
Science Communication, 21(3), (2000), pp 274-95. 41. Boyle, James Shamans, “Software and Spleens: Law and the Construction of the Information Society
Cambridge”, Massachusetts, Harvard University Press, (1996). 42. Bettig, Ronald V, “Copyrighting Culture: the Political Economy of Intellectual Property United States”, West
View Press, (1996).
296
In this regard, the recognition of traditional transmission as a commons-based system
would help place "innovations and IPRs in a broader context," and show the contrast between
cultural models 43.
Scholars have observed that without saying that IPRs are inappropriate to all situations, it
is important to support local knowledge and innovation not in the hope of securing individual
profit but as a way of helping people to protect their commons. If any development occurs in the
course of use, then under the conditions of the license, such a development will have to be put
back into the traditional knowledge "commons" and cannot be patented anywhere (Section 7;
emphasis supplied). Such an arrangement has been considered by some as "a scheme reminiscent
of the open source licensing movement and to some extent, even the creative commons
license)44.
The 'creative commons' license is a means devised to enable producers of information
and/or knowledge to secure widened access while retaining some control over their work.
'Creative commons' licenses not only allow distributed usage of content, but also, importantly, do
not allow its subsequent commodification (or 'enclosure') when used in other contexts. The
licence is formulated as a menu of options as regards the extent of open access that an author
might wish to allow: it allows a selection from a series of increasingly greater 'freedoms' to use,
modify and distribute 45.
43. Escobar, Arturo,"Whose Knowledge, Whose Nature? Biodiversity, Conservation, and thePolitical Ecology of
Social Movements", Journal of Political Ecology, 5: (1998), pp 53- 81. 44. Shamnad Basheer,"Traditional Knowledge in Kerala: God's Own "Open Source"Policy?,” (2008), available at
http:l/spicyipindia.blogspot.com/2008/07/ traditional-knowledge-in-kerala-gods.html visited on 07.04.2014. 45. Lessig, Lawrence,"Commentary: The Creative Commons", Montana Law Review, 65 (1), (2004), pp 1-13.
297
Recently, the US Court of Appeals for the Federal Court (Robert Jacobsen vs. Mathew
Katzer & Kamind Associates ,United States Court of Appeals for the Federal Circuit, (2008-
1001), the highest IP court in the US upheld the validity of a creative commons license and
treated its infringement at par with a copyright. Furthermore, in the Kerala TK IPR Policy, it
must be noted that the "commons license" system is for non-commercial purposes. Where
commercial use is desired by non-right holders, the terms and conditions are to be negotiated
between right-holder and the potential user.
A problematic angle to the Policy that remains unaddressed is who would be considered
as "an actual practitioner", "in Kerala." The Kerala TK IPR Policy acknowledges the possibility
of failure to prevent all potential corporate misappropriation of traditional knowledge (Section 8)
and indicates the lack of codification of traditional knowledge as the chief reason that prevents
effective challenge to the usurpation of such knowledge. The Policy takes cognizance of the
documentation efforts for Ayurveda and expresses hope that many more documentation efforts,
covering other forms of TK will take effect in foreseeable future.
The Policy also exerts a note of caution that such documentation efforts may in some
circumstances "facilitate indirect misappropriation." An important point made in the Policy is the
fact that indirect misappropriation and misappropriation "after some minor modification" is hard
to prevent (Section 8).
The question of enforcement and monitoring of Right is answered by proposing the
setting up of a body called the Kerala Traditional Knowledge Authority (KTKA), funded by the
State government and administered by a Board consisting of a Chairman and four members, at
least one of whom should be a member of the TK community and the scientific community
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(Section 6). It is unclear if the TK community referred here means the community as identified
as the first -category of right holders or members of the wider community in Kerala.
The Policy is realistic in its regard for challenges, thus acknowledging that claims to
custodianship of a unique body of traditional knowledge is highly contested owing to the
possibilities of the practice being held by others not identified in the application, as also those
who may be in another location or community. Apart from keeping a register on the traditional
practitioners and their practices, the KTKA is also visualized as the enforcer of the Right created
in pursuance of legal arrangements as identified in the Policy. The KTKA is expected to assume
a recommendatory role (Section 6) in terms of possible legal action against cases of infringement
of Right and common license.
The KTKA may also extend help to right-holders, both the State government and private
communities or individuals, in negotiating terms with other possible commercial users. Section 9
of the Policy seems to highlight the protection of traditional knowledge associated with
biological resources, "as one of the most important source of livelihood." Thus, clearly the focus
of the Policy remains traditional medicine and biological resources associated with TK. The
Policy also addresses the feasibility of "additional safeguards" against misappropriation,
although only for "traditional knowledge associated with biological resources, wherein a close
working of the KTKA, State Biodiversity Authority and National Biodiversity Authority is
envisioned (Sections 10, 11, 12, 13).
On the matter of protection of other forms of traditional knowledge, the Policy simply
states: "for the protection of other traditional knowledge the KTKA mechanism suggested earlier
is all that can be provided but that should be quite enough" (Section 13). The emphasis of the
Policy on traditional medicinal knowledge in some ways indicates how economic considerations
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in the State have led to the policy initiative. The Kerala TK IPR Policy seems to be more
concerned with the commercial utilization of TK, setting up terms of use and right holders.
6.9 TCEs - The Indian Regulatory Process
Apart from her wealth in biological diversity, India is also home to a number of
traditional arts and skills. Of these, crafts are one of the major industries of "the imagination",
involving traditional knowledge and skill.
The National Industrial Classification (NIC) identifies thirteen groups of major
handicrafts. The five principal exportable handicrafts are: carpets, embroidery, hand-printed
textiles, wood products and decorated metal ware. 46 Handloom weaving of these is the largest
crafts industry in India. Indian folklore-based products are one of the highest revenue generating
exports of the country47. For example, the export of handicrafts from India during the year 2006-
07 touched Rupees 16,000 crores. 48
The size of the markets enjoyed by the copies of their products that are churned out in
China49 and Southeast Asia is unknown, but substantial .50
46. Liebl, Maureen and Roy, Tirthankar,"Handmade in India: Preliminary Analysis of Craft Producers and Crafts
Production", Economic and Political Weekly, December 27, (2003), p.5366. 47. Bhagirathy, Apama and Sengupta, Nirmal ,"Crafts in a Globalising World", in Nirmal Sengupta, Economic
Studies of Indigenous and Traditional Knowledge, 297-308, New Delhi: Academic Foundation, (2007). 48. Press Information Bureau, Government of India, Shri Yaghela, "Exporters should Work for Increasing India's
Share in World Market," Ministry of Textiles , New Delhi, Friday 29, (2006), available at http://pib.nic.in/release/release.asp?relid=23698 visited on 08.06.2014.
49. Studies have shown that Chinese firms hold an advantage over Indian handicrafts in their ability to reap economies of scale through higher degree of mechanization, in bulk orders, large shipments, timely delivery and quality control, unavailable otherwise to Indian crafts producers. In contrast, Indian crafts do not show factory-type organization because of labour legislation and fear of unionization. See Kathuria (1998), pp 68-259, at 103.
50. Liebl, Maureen and Roy, Tirthankar, "Handmade in India: Traditional Craft Skills in a Changing World", in J. Michael Finger and Philip Schuler (eds.), Poor People's Knowledge: Promoting Intellectual Property in Developing Countries, 53-74, Washington D.C: World Bank and Oxford University Press, (2004).
300
Within India, artisans can be found everywhere but a few states and regional clusters are
said to dominate.51 In recent times, reports of cheap imitation of 'Gujrati embroidery', 'Benarasi
brocade,' 'Kanjeevaram sarees', 'Kohlapuri chappals' and even festival and ritual arts by foreign
enterprises have been received.
Contrary to popular belief that the obsolescence of handicrafts is inevitable with the
growth of mechanized industry, it has been argued that the scope for growth of the handicrafts
industry is larger than ever before owing to the expanding potential of domestic and world
tourism and changes in the consumer profile from the high upper class to the larger demand from
the middle-class consumer with more flexible lifestyle and tastes. 52
However, the paradox of talented artisans living in unrelenting poverty while their
products support a flourishing export trade is the result of the complex, diverse, and pervasive
problems that affect the crafts sector in India. Some of the problems are related to the changing
context of consumption; others to the social and economic problems of craft communities; and
others to the basic character of the crafts sector, which is vast, dispersed throughout India, and
totally unorganized .53
51 . See Liebl and Roy, “Nearly ninety percent of the artisans (excluding handlooms) can be found in two western
Indian states (Gujarat and Rajasthan), in Uttar Pradesh and in Eastern India”. Interestingly, nearly all the commercially successful Indian crafts come from the Gujarat-Rajasthan cluster and UP. The market-success of these states has been attributed to well-developed tourism of which Jaipur, Delhi, Agra form major nodes; relatively low wages; history of royal patronage for high-quality craftsmanship in UP and Rajasthan and a growing partnership between government, private enterprise and NGO collaboration, (2003),pp 5366, 5370.
52 . Liebl, Maureen and Roy, Tirthankar, “Handmade in India: Preliminary Analysis of Craft Producers and Crafts Production”, Economic and Political Weekly, December 27, (2003), p.5366.
53. Liebl, Maureen and Roy, Tirthankar, “Handmade in India: Traditional Craft Skills in a Changing World", in J. Michael Finger and Philip Schuler (Eds.), Poor People's Knowledge: Promoting Intellectual Property in Developing Countries, Washington D.C: World Bank and Oxford University Press, (2004), pp 53-74.
301
Other folk arts also are on the decline. Take for instance the case of the State of Andra
Pradesh-home to around 140 folk arts. The findings of a Kolkata-based organization, Durbar
Mahila Samanwaya Committee (DMSC) suggest that some folk artistes, owing to their penury
being rendered increasingly vulnerable to sexual exploitation54. In few such cases, like
Aruvacode in north Kerala55, the government has together with the help of nongovernmental
agencies been able to intervene in this largely unorganized sector and provide policy and
structural support56. The need for formal protection for folkloric expressions, artists and
performers however remains the need of the hour.
6.10 Indian Position on International Protection of TCEs
India has been an active participant in the ongoing negotiations at the WIPO concerning
the protection of TK and folklore. According to India, the objective of according IP protection to
TCEs should be to prevent their misappropriation and to ensure economic returns to the
communities who had been nurturing and developing them.
Therefore, India has shown a preference for a combination of both economic Right and
moral Right for the protection of TCEs. The understanding in this regard is that economic Right
would contribute to capacity building and, thereby, conservation and positive development of the
TCEs while moral Right would pave the way for appropriate recognition and acknowledgement
by others of the TCEs.
54. The Hindu, "Folk Artists on the Decline, Artists Exploited: Study", Online Edition, February, 06, (2007). 55. Jaitly, Jaya, "Organizing the Unorganized in Kerala: Case Studies of Aruvacode and Kodungallur", Economic
and Political Weekly, July 12, (1997), pp 1729-1736. 56. Jinan, K.B, "De-colonizing the Aesthetic. Sense: the Story of Craft Revival in Aruvacode Potters Village",
Discussion Paper No. 98, Kerala Research Programme on Local Level Development, Centre for Development Studies, Thiruvananthapuram, (2004).
302
Commercialization of TCEs/EOF without just and appropriate compensation should also
be considered an illegal and unacceptable act." Apart from stressing on PIC for
commercialization of TCEs and access to secret or spiritual TCEs, India has also required for
equitable compensation to be paid to the communities concerned. 57
India has reserved the right to national regulation for the purpose of complying with
international obligations in this regard. India believes that all nationals or habitual residents of a
prescribed country as defined by international agreements Right should be eligible to become
beneficiaries to the protection of TCEs under national measures or laws. India also seeks to
extend national treatment to eligible foreign beneficiaries.58
Considering the fact that India has stressed the need for national regulation in the light of
possible international obligations, it is important to examine and analyze how far the current
State of Indian laws are capable of protecting TCEs. Accordingly, an analysis to this end follows
in the succeeding parts of this Chapter.
6.11 Indian Copyright Act and TCEs
A consideration of Indian legislations that cover literary, artistic, musical and performing
arts leads naturally to the Indian Copyright Act, which has undergone, five amendments since
1957, with its last one in 1999. The Indian Copyright Act as it stands· today does not directly
address the protection of folklore. Even within the parameters of its provisions, the ability of
TCEs to fit in looks bleak.59
57. Available at WIPO/GRTKF/IC/11115 Prov., (2007), last visited on 29.04.2015. 58. Available at WIPO/GRTKF/IC/11115 Prov., (2007), last visited on 30.04.2015. 59. The right of copyright extends to the following: a) original literary, dramatic, musical and artistic works; b) cinematograph films: and c) sound recording, (Section 13(1 ), subject to succeeding clause (2) of the Act).
303
The emphasis on "original" works60 would clearly remove the possibility of protecting
pre-existing traditional cultural expressions, although the scope for derivative works remains
open. The Act affirms the meaning of "literary work" given in common law, which is to cover
work expressed in print or writing, irrespective of the question whether the quality or style is
high [University of London Press Ltd. vs. University Tutorial Press Ltd., (1916), 2 ch.d. 601].
According to the commentary to Section 2(0) of the Act, "literary work" is an inclusive
definition and, therefore not exhaustive. Literary work also includes computer programmes,
tables and compilations including computer databases. Further scrutiny of the Indian Copyright
Act suggests that Indian law requires fixation for copyright protection and the term of protection
under ordinary circumstances, extends to lifetime of the author and an additional sixty years
from the calendar year following his/her demise (Section 22).
Although the Copyright Act protects copyright in anonymous and pseudonymous
works, the term of copyright protection in the case of literary, dramatic, musical or artistic work
(other than a photograph) subsists until sixty years from the beginning of the calendar year next
following the year in which the work is first published [Section 23(1)]. Here again clearly,
protection for anonymous expressions of traditional folklore cannot be provided.
60. The "originality" which is required relates to the expression of thought but the Act does not require that the
expression be in an original or novel form, but that the work must not be copied from another and should originate from the author (Fateh Singh Mehta vs. O.P. Singh, AIR 1990 Raj. 8). The threshold for determining "originality" has however been raised by some recent Supreme Court verdicts that refer to a "flavour" or "modicum" of creativity to allow for copyright protection (Dr Reckewag vs. M/s. Adven, I.A. 7326/2007 in CS (OS) 1189/2007, Delhi High Court). For instance, in Eastern Book Company vs. DB Modak & Another, Civil Appeal 6472 of 2004, 12112/2007 (Delhi High Court) an interesting copyright case, the Supreme Court of India recently ruled that there can be no copyright in the raw text of court judgments/decisions. Elaborating on the theory of copyright protection, the court held that to claim copyright in a compilation, the author must produce a material with "exercise of his skill andjudgment" which may not be creativity in the sense that it is not novel or non-obvious, but at the same time it is not the product of merely labour and capital.
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Despite the opportunity available for India to use Article 15.4 of Berne Convention to
designate an authority to protect and enforce Right in expressions of folklore of which the
authors are presumed to be Indian nationals, in any other Berne Convention country, the same is
not reflected in the Indian Copyright Act.61
Moreover, although India is yet to sign the WPPT, it has through its 1994 amendment to
the Indian Copyright Act, in Section 38, recognized performer's Right.62 According to the Indian
Copyright Act, performer's right shall subsist until fifty years from the beginning of the calendar
year next following the year in which the performance is made [Section 38(2)]. During the
continuance of a performer's right in relation to any performance, certain acts identified in the
Act, done without the consent of the performer are deemed to infringe the performer's right.
These include making of sound or visual recording of the performance; or its
reproduction without permission and similar restriction relating to broadcasting, subject to
Section 39 of the Act.63 Thus, the Indian Copyright Act certainly makes way for some protection
of folkloric performances.
61. WIPO Consolidated Analysis, WIPO/GRTKF/5/3, (2003), Annex: 62. 62. Within the ambit of the Copyright Act, "performance in relation to performer's right means any visual or
acoustic presentation made live by one or more performers" [section 2(q)]. "Performer" includes: "an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance" [section 2(qq).
63. In 1995, the Ministry of Human Resources and Development, Government of India conducted a study on the extent of copyright piracy in the country and in the process learnt that there is about nineteen to twenty three percent(1995-1997) violation of performers' Right through unauthorized audio-visual recording and broadcasting (Table 1.1, Study on Copyright Piracy, National Productivity Council, GOI). The study refers to actors, singers, musicians and dancers. It is unclear how far folklorists are addressed within this group. The study is available at http://copyri ght .gov .inlmaincpract7 .asp visited on 04.03.4014.
305
However, some of its other provisions undermine these gains. Section 38(4) of the Act
explicitly states that once a performer has consented to the incorporation of his performance in a
cinematograph film, the provisions of sub-sections (1), (2) and (3) shall have no further
application to such performances64.
However, even the work of a cine artist, his performance as an actor in a cinematograph
film does not fall within the definition of "cinematograph film" to be found in Section 2 (f), and
hence, is not protected under this Act. It is the cinematograph film that enjoys protection along
with its sound track (Fortune Films vs. Dev Anand, AIR, 1979 Born.17). This leaves little
possibility under the existing circumstances for a poor traditional performer of folk arts, tales and
songs to enjoy protection against infringement once his/her performance is fixed.
Section 17 of the Act reveals another possibility of how the producer of a cinematograph
film can defeat the Right of a music composer, painter and such other artists under proviso (b)
and (c) of Section 17 of the Act, when a cinematograph film producer commissions a composer
of music or a lyricist for reward or valuable consideration for the purpose of making his
cinematograph film, or composing music or lyric thereof. Unless there is an agreement to the
contrary, the copyright for the work subsists in the producer or the one who employed work for
hire (Indian Performing Right Society vs. Eastern India Motion Picture Association,' AIR 1977
S.C. 1443).
64. The Act defines "cinematograph film" as "any work of visual recording on any medium produced through a
process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films [section 2(f)].
306
Organizers can control the capturing of performances, art and craft during festivals or
exhibitions by agreements with visitors attending, so that the Right to photograph, film, record or
use in publicity is obtained from event organizers or relevant performers. It has been suggested
that using signed performer's release for authorized filming and recording is necessary. For still
photography, Janke- a noted expert in IPR matters pertaining to folkloric and aboriginal
expressions recommends some form of written agreement to enforce right of performers that
would allow audience conditional viewing .65
In conclusion, a brief analysis of Indian constitutional law and copyright reveals that
there is limited, indirect protection for expressions of folklore. There is no known case as yet
taken up for the purpose of enforcing copyright in expressions of folklore in India .66
6.12 Geographical Indications of Goods (Registration & Protection) Act, 1999
Geographical indications amongst IPRs are considered more amenable to the customary
practices of indigenous communities 67 and believed to be more favourable for the protection of
TK in general. GIs are said to allow knowledge to remain in the public, with Right potentially
held in perpetuity and collectively.
65. Terri Janke, "Using Intellectual Property Tools to Protect Traditional Cultural Expressions of traditional
Knowledge related Issues at Arts Festivals”, Paper presented before the Council for Festival of Pacific, Arts (31 March-2 April 2008).
66. Kutty, P.V. Valsala G,”National Experiences with the Protection of Expressions of Folklore/Traditional Cultural Experiences: India, Indonesia and the Philippines”, (2002), available at http://www. wipo.int/tk/en/studies/cultural/expressions/study/kutty.pdf visited on 07.06.2014.
67. Rangnekar, Dwijen,''The Socio-Economics of Geographical Indications: a Review of Empirical Evidence from Europe", Issue Paper No. 8, UNCTADICTSD Project on IPRs and Sustainable Development, May (2004).
307
Given the recent trends in the world market, where consumers, especially in the
developed world, have become more particular about the quality and authenticity of the products
they buy, geographical indications (GIs) are increasingly being used to secure niche markets .68
In line with its obligations under the TRIPS Agreement, India has put in place a suigeneris
system of GI protection by way of enacting a legislation dealing exclusively with GIS, namely
'The Geographical Indications of Goods (Registration & Protection) Act, 1999' (GI Act).69
The restricted meaning attached to GIs in the international arena vis-a-vis Article 22 of
TRIPS is believed to undermine the protection to beneficiaries of Right in GI. According to
some, Article 22 of TRIPS is not good enough. It is simply a law against unfair trade practices
and for consumer protection 70 and is not really for IPR protection.
A producer not belonging to a specific geographical region could still use the GI as long
as the product's true origin is indicated on the label. In other words, an Aranmula mirror
(registered GI in India since 19/05/2005) could be turned out from the US, thus allowing an
American producer to free ride on the reputation and market goodwill created by Keralite
artisans over two centuries. 71
68. Das, Kasturi,"Protection of India's 'Geographical Indications': An Overview of the Indian Legislation and the
TRIPS Scenario", Indian low mal of International Law , 46: (2006), pp 39-73. 69. Addor, Felix and Grazioli, Alexandra, “Geographical Indications beyond Wines and Spirits: a Roadmap for a
Better Protection for Geographical Indications in the WTO TRIPS Agreement", Journal of World Intellectual Property, 5: (2002), p.874.
70. Correa, Carlos, M, “Traditional Knowledge and Intellectual Property: Issues and Options surrounding the Protection of Traditional Knowledge", Discussion Paper, QUNO, (2001).
71. Jishnu, Latha ,"We have our Mirrors, Silks, Jasmines? Patently Absurd”, Business Standard, December 12, (2008), available at http://www.bsl.co.inlindial story page.php? autono 320171 visited on 08.06.2014.
308
Furthermore, presently, there is no guarantee that the WTO Members will recognize the
protection of all Indian GIs, since TRIPS does not impose any obligation on the WTO Members
to provide Article 23-type (higher level of) protection to GIs other than those designating wines
and spirits72. Very few Indian GIs belong to these two product categories.
The two-tiered protection of GI has been a source of continuing conflict73 between
Europe and the developing world74. While Article 23 of TRIPS accords a higher level of
protection only to wines and spirits, the corresponding provisions in the Indian GI Act do not
restrict themselves to wines and spirits only.
Rather, it has been left to the discretion of the Central Government to decide which
products should be granted such higher level of protection. GIs under the Indian law are expected
To relate to "specific quality, reputation or other characteristics of which are due exclusively or
essentially to the geographical, environment, with its inherent natural and human factors, and the
production, processing or preparation of which takes place in such territory, region or locality"
[Section 1 (2) (a)].
72. Aware of the inadequacy of the protection granted for most of the Indian GIs in the international arena, under Article 22 of TRIPS, India has, since 2000,joined with a host of other like-minded countries (e.g., Bulgaria, China, the Czech Republic, the EU, Hungary, Liechtenstein, Kenya, Mauritius, Nigeria, Pakistan, the Slovak Republic, Slovenia, Sri Lanka, Switzerland, Thailand and Turkey) to press for an 'extension' of the ambit of Article 23 to cover all categories of goods. It must however be noted that the participation by these countries on the extension of GIs to other products is nuanced and sometimes also linked with their position on possible amendments to the TRIPS to bring it in line with the CBD (Mara and New, JP Watch 2008). Countries like Australia, Argentina, Canada, Chile, Guatemala, New Zealand, Uruguay and the US are strongly opposed to the 'extension'. The 'extension' issue formed an integral part of the Doha Work Programme (2001) as an 'outstanding implementation issue'. Nevertheless, as a result of the wide divergence of views among WTO Members, not much progress has been achieved in the negotiations so far.
73. See also Communication from India, IP/C/W /196, 2000, para. 3; IP/C/W /247! Rev.! 2001, para. 20-21; IP/C/W/353, (2002).
74. Srivastava, Suresh, “Geographical Indications and Legal Framework in India", Economic and Political Weekly, 20 September (2003), pp 4022-4033.
309
Thus, the India GI Act amply provides for the possibility of protection of handicrafts and
such related goods that involve human factors for quality assurance, in a clear divergence from
TRIPS law (Article 22.1) that refers to quality, reputation or other characteristics of a good
essentially attributed to its geographical origin.
This difference in the Indian legislation is believed to facilitate the recognition of skilled
labour in handicrafts products such as Kanjeevaram sarees and Kohlapuri chappals75. Over
hundred GIs of Indian origin have already been registered with the GI Registry.
These include GIs like Darjeeling (tea), 'Pochampalli' Ikat (textiles), 'Chanderi' (saree),
'Kancheepuram silk' (textiles), 'Kashmir Pashrnina' (shawls), 'Kondapalli' (toy) and 'Mysore'
(agarbathi)76. There are many more Indian GIs in the pipeline for registration under the GI Act.
Though, studies in developed countries witness to the fact that GIs do have the potential to fetch
a significant increase in value-addition through premium pricing .77 Such empirical evidence is
however lacking in the developing world. Nevertheless, the list of GI applications in India is
growing .78
Registration under the Indian GI Act can be done by any association of persons or
producers or any organization or authority established by or under any law for the time being and
representing the interest of the producers of the concerned goods, who are desirous of registering
a geographical indication in relation to such goods (Section 11(1)).
75. Das, Kasturi "Protection of India's 'Geographical Indications, An Overview of the Indian Legislation and the TRIPS Scenario", Indian journal of International Law , 46: (2006), pp 39-73.
76. Fink, Carsten, and Maskus, Keith, "The Debate on Geographical Indications in the WTO", in R. New fanner (Ed.) Trade, Doha, and Development: a Window into the Issues, Washington DC, World Bank, (2006).
77. Birai, Anand, "Madhubani goes Global", Delhi Times, January 2, (2006). 78. The Hindu Business Line, "Tirupati Laddu, Nagpur Orange to get Protection from Copycats", 19 December
(2004).
310
For the purposes of the Act, "producer," means any person who:
• With regard to agricultural products produces the goods and includes the person who
processes or packages the goods;
• If such goods are natural goods, exploits such goods;
• If such goods are handicraft or industrial goods, makes or manufactures the goods, and
includes any person who trades or deals in such production, exploitation, making or
manufacturing of the good.
GI applications require "proof of origin" and an "historical record" (Geographical
Indications of Goods (Registration and Protection) Rules, March 8, 2002, First Schedule, at 45)79
of continues use of the goods or product. Registrant obtain the exclusive right to use the GI and
further licensing of the GI is prohibited (GI Act, Chapter IV, Section 24). While non-registration
under the Indian GI Act prevents institution of suit for the purpose of preventing or recovering
damages on infringement of the unregistered GI [Section 20(1)], the Act does not affect the right
of action against passing off goods as the goods of another person [Section 20(2)].
Registration of GI not only gives relief against infringement but also gives to the
"authorized user" (Section 17) the exclusive right to use the GI in relation to the goods so
registered [Section 2l (a) and (b)]. The Indian GI Act clarifies the conditions under which
infringement will be deemed to have taken place.
79. Available at http://ipindia.nic.in/girindiaJGI_Rules.pdf visited on 06.08.2014.
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Accordingly, a registered GI is infringed by a person, not being an authorized user who
suggests that the goods originate in a geographical area other than the true place of origin in a
manner that misleads the persons as to the geographical origin of such goods [Section 22(1) {b)];
or where the GI is used in a manner that amounts to passing off and constitutes an act of unfair
competition [Section 22(1) (b)].
Use of another GI to the goods, though literally true as to the territory, region or which
the goods originate from yet falsely representing that it represents with a registered GI also
amounts to infringement [Section 22 (b)].
Acts considered as unfair practices in the Indian GI legislation have been clearly stated, namely:
• All acts of such a nature as to create confusion with the establishment, the goods or
industrial or commercial activities of a competitor;
• False allegations in the course of trade of such a nature as to discredit the establishment,
the goods or industrial or commercial activities of a competitor;
• Use of GIs which in the course of trade are "liable to mislead the persons as to the nature,
the manufacturing process, the characteristics, the suitability for their purpose, or the
quantity, of the goods" (Section 22, Explanation 2).
It must however be pointed out that GI registrations by themselves do not assure
economic development of poor artisans or for that matter adequately safeguard against
counterfeits both within and outside the country. The case of Benarsi sarees is illustrative in this
regard. Studies have shown that of the one lakh community of Benarsi weavers are employed.
Furthermore the market for authentic zardosi Benarsi sarees is also believed to be shrinking 80.
80. CraftsRevival,"Varanasi Crisis: Discussion and Action Points”, (14 March 2006), available at http://www.craftrevival.org/varanasi/Discussion/Discussionpoints.htm visited on28 August 2008.
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Another instance of GI registration, Chanderi sarees and dress materials from their special
location in Madhya Pradesh, has required cluster mapping of craftspeople and developing
databases on the same. Furthermore, micro finance schemes and creation of self-help groups are
also important to ensure economic and social development as part of a long term vision of
development for this dwindling and fast shrinking market81.
Since markets are constantly changing and local artisans find it difficult to capture the
varied consumer interests in handicrafts market, the place for design intervention to create
products that take advantage of the skill-sets of people is also important.82 Furthermore, apart
from effective enforcement of GIs in the relevant markets (domestic and export), much depends
on the strategies adopted for marketing and distribution of the product, and its branding and
promotion.
It has been suggested that without well-crafted policies and strategies in these spheres the
underlying commercial potential of Indian GIs might remain unrealized. According to83 the
economic consequences of GIs for a developing country are difficult to assess. The main
economic benefit of GIs would be to act as a quality mark which will play a part in enhancing
export markets and revenues. But increased protection, particularly applied internationally, may
adversely affect local enterprises which currently exploit GIs that may become protected by
another party.
81. Gulati, Mahesh, "Geographical Indicator Chanderi, Madhya Pradesh", (2007), available at http://www.craftrevival.org/caseStudy Details.asp?Code-79 visited on 05.06.2014. 82. Balasubramaniam, A., "Design Development in Nagaland", (2007), available at http://www .craft revival.org/caseStudyDetails.asp? Code= 78 visited on 3September 2008.
83. CIPR,”Report on Integrating Intellectual Property Right and Development Policy”, CIPR, London, (2002).
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Thus there will be losses to countries producing substitutes for goods that become
protected by geographical indications. A proliferation of geographical indications would tend to
reduce their individual value,84 observes that while GIs may help people reap benefit from their
traditional knowledge, within the local limits of their community life it may also inadvertently
cause these people to remain within these communities stifling alternate economic opportunities
or social relations such as marriage etc. which may require moving out of the physical space of
the GI registration.
This concern when tested in the course of my brief interactions with some artisans who
work on traditional handicrafts was shown to be true. For instance, one craftswoman learnt the
craft of Tanjavur paintings from her husband upon marriage. Paintings thus made were sold in
urban settings in Bangalore and Hyderabad, places of residence away from Tanjavur in Tamil
Nadu. Cases like traditional crafts, some of which have obtained GI status in India, are being
readily used within India by persons who are not associated or registered for the same 85.
Despite these misgivings concerning the use of GIs to protect TK, it is worth pointing out
that restrictions based on location and origin of GI may be necessary so as to prevent the
scenario of large multinationals hiring members of a community in the guise of producing
"authentic" products elsewhere. Another concern raised over the use of GIs for protecting EoF
relates to the threat of reification of traditional hierarchies. Similarly, 86 argues that there may be
a possibility that GIs if unduly used may result in limiting competition and exacerbate existing
inequalities within groups.
84. Sunder, Madhavi "The Invention of Traditional Knowledge", Law and Contemporary Problems, 70(2):
(2007), p.97. 85. IGNCA, “Report on Cultural Mapping of India under UNESCO's Programme on Cultural Industries and
Copyright Policies and Partnerships”, (2007). 86. Coombe, Rosemary J. "Legal Claims to Culture in and Against the Market: Neoliberalism and the Global
Proliferation of Meaningful Difference Law”, Culture and the Humanities, 1: (2005b), pp 35-52.
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6.13 Traditional Knowledge under Indian Scenario
A brief analysis of Indian constitutional law and copyright reveals that there is limited,
indirect protection for expressions of folklore. While India has legislated on biodiversity-related
TK and also protects plant varieties, a specific legislation for the protection of folklore is
missing.
The Indian GI Act of 1999 does provide protection to handicrafts but presently there is no
assurance that GIs granted in India will receive adequate protection by other Member States
party to the TRIPS Agreement. The higher form of protection to wines and spirits in Article 23
of the TRIPS is a bone of contention for the developing countries and it will be interesting to
study the progress made in demands for the extension of GI protection to other products.
However, some of the ground realities in India are important to bear in mind while considering
the efficacy of GI protection. India is faced with counterfeit handicrafts not only from abroad but
also from within India.
Other factors which will also affect the usefulness of GIs for the protection of handicrafts
include inter alia cluster mapping of craft communities, provision of micro finance, design
intervention and training. As regards the protection of other forms of TCEs, particular those of
intangible nature, such as folk songs, poems, riddle, visual and per formative expressions etc.,
India seems to relegate these to "preservation" in museum settings and archives.87
Geographical indication, as an entrant to the IPR regime, is relatively new. However, this
in no way belittles its significance as a powerful factor influencing the food and agriculture
sector all over the world.
87. For Latest developments in this regard, see, available at www.cb.int visited on 02.06.2014.
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The Indian Act tries to address various aspects related to the exploitation of geographical
indications on a commercial scale, while at the same time it is also vigilant towards protection
the Right of registered proprietors of geographical indications or authorized users thereof.
Having got protected their Right under the Indian law, the producers and traders of
Agriculture sector in India will be in a position to avail of similar protection in other countries
who are members of the World Trade Organization. It, in turn, will prevent the repetition of a
controversy like one related with Basmati rice. United Nations has declared 2011-20 the UN
Decade of Biological Diversity.88
6.14 India’s Biological Diversity Act, 2002
As has been seen above, the Convention on Biological Diversity reiterated the sovereign
Right of member nations over genetic resources in their jurisdiction; and, almost in the same
vein, also called for what it termed as the fair and equitable sharing of benefits arising out of the
utilization of such resources. It exhorted the members to come out with a domestic legislation
which could ensure the conservation of biological resources and provide a mechanism for their
sustainable use.
It may also be mentioned that the Nagoya Declarations of October 2010 that present a
blue print for protection of biological diversity in the current decade 2011-2020 also put a lot of
emphasis on translating those commitments in to reality by adopting suitable legislation and
programs at the domestic level within a two-year’s time.
88. See, India Documents Traditional Formulations, Yoga postures, The Hindu, New Delhi, January 4, 2010.
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India was a party to the Earth Summit as also the Convention on Biological Diversity.
Hence in pursuance of the aims and objectives of the Convention the Indian Parliament enacted
the Biological Diversity Act, 2002. The Act defines the term biological diversity by saying that it
means the variability among living organisms from all sources and the ecological complexes of
which they are part and includes diversity within species or between species and of ecosystems.
The definition, it would seem, is perfectly in tune with that adopted by the Convention.
Although the progress in this direction has been far behind the projected goals, yet the
real progress is visible in the form of an increased sensitivity on the part of signatory nations
who are desperately trying to bind themselves to make even more committed efforts in the
present decade as is evident from Nagoya Convention (2010) as well as Nagoya Declarations
outlining the targets to be achieved during 2010-2020.
Although the Biological Diversity Act, 2002 does not define the term ‘bio-piracy’ in so
many words, yet the prevention of it happens to be one of its principal objectives. Hence this
initiative of the Indian lawmaker may also contribute towards protecting Indian traditional
knowledge. Government has announced a plan to set up what it terms as People’s Register of
Biodiversity so that ‘traditional knowledge passed down through the oral traditions can also be
documented and protected’.89
India is one of the 12-mega biodiversity countries of the world; and with only 2.4% of the
land area, she accounts for 7-8% of the recorded species of the world. Over 46,000 species of
plants and 81,000 species of animals have been recorded in the country so far by the Botanical
Survey of India and the Zoological Survey of India, respectively.
89. Biodiversity is not equally distributed all over the globe. Certain countries are characterized by high species
richness and more number of endemic species. This countries are known as Mega biodiversity countries. Twelve such countries have been identified.
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The twelve mega biodiversity countries have 60-70% of the world’s recorded biodiversity.
These countries are: Brazil, Australia, China, India, Indonesia and Malaysia. What is rare is the
one who puts them to (best) use. Thus protection of traditional knowledge may be ensured to a
great extent by protecting the biological diversity. The Convention on Biological Diversity
(CBD) is a landmark effort in this direction. Following CBD, efforts are being made to check the
‘bio-piracy.90
6.15 Indian Efforts for Protection of Traditional K nowledge
The effort to get prior art of one place patented at other by those who were neither
morally nor legally authorized to do so reached its near after coming in to force of the
Agreement on Trade Related Aspects of Intellectual Property Right (TRIPs).91 India’s ancient
knowledge, cultural expressions, and rich biological diversity were the most sought after by the
vested interests that, by suppressing the information about the true origin and history of the
things in question, would often succeed in getting exclusive proprietary Right over such pieces
of knowledge, cultural expressions and biological diversity.
This way, a major portion of India’s heritage-cultural, philosophical and natural-was
exposed to the risk of being exploited commercially out of the country owing to such evil
designs
90. Bio-piracy is the act of taking away a biological resource without the authority of law. The Biological Diversity
Act, 2002 of India, surprisingly, does not define the term ‘bio-piracy’. However, it defines the term ‘biological resources’, under section 2(d). Which means “plants, animals, and microorganisms or parts thereof, their genetic material and by-products (excluding value added products) with actual or potential use or value, but does not include human genetic material”.
91. In the year 2000, that is five years after TRIPs, the Indian Council for Scientific and Industrial Research found hat there were about 5000(4896 to be exact) patents granted all over the world wherein the subject matter related to Indian traditional medicinal plants and health practices. This figure touched the 15000 mark in the next three year (that is the year 2003); and had burgeoned to 35000 by the year 2005. See, for more detail, the report by Ramesh Menon entitled ‘Traditional knowledge receives a boost”, published in India together on 13 January, 2007.
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6.15.1 India’s Nightmare
Once bitten twice shy, goes the proverb. However, India was bitten twice by America and
once by the European Union when her traditional knowledge was made the subject of grant of
patent by the United States Patent and Trademark Office, and the European Patent Office
respectively.
India fought and won the battles in as much as succeeded in getting revoked the patents
for basmati92 and turmeric93 by USPTO and that for neem94 by EPO. In the process a great
amount of time and energy and a huge amount of money had to be invested. However, a
commendable effort in this direction has come in the form of traditional knowledge digital
library (TKDL).
92. Basmati Rice (Oryza sativa Linn): Rice Tec Inc. had applied for registration of a mark ‘Texmati’ before the UK Trade Mark Registry. Agricultural and Processed Food Exports Development Authority successfully opposed it. One of the documents relied upon by Rice Tac as evidence in support of the registration of the said
mark was the US Patent 5, 663, 184 granted by US Patent Office to Rice Tec on September 2, 1997 and that is how this patent became an issue for contest. This US utility patent was unique in a way to claim a rice plant having characteristics similar to the traditional Indian Basmati Rice lines and with trhe geographical delimitation covering North, Central or South America or Caribbean islands. The US PTO granted the patent to Rice Tec on September 2, 1997. The said patent covered 20 claims covering not only novel rice plant but also various rice lines; resulting plants and grains, seed deposit claims, method for selecting a rice plant for breeding and propagation. Its claims 15-17 were for a rice grain having characteristics similar to those from Indian Basmati rice lines. The said claims 15-17 would have come in the way of Indian exports to US, if legally enforced. Evidence from the IARI (Indian Agricultural Research Institute) Bulletin was used against claims 15-17. The evidence was backed up by the germ-plasm collection of the Directorate of Rice Research, Hyderabad since 1978. CFTRI (Central Food Technological Research Institute) Scientists evaluated the various grain characteristics accordingly the claims 15-17 attacked on the basis of the declarations submitted by the CFTRI scientists on grain characteristics. Eventually, a request for re-examination of this patent was filed on April 28, 2000. Soon after filing the re-examination request, Rice Tec chose to withdraw claims 15-17 along with claim 4, website, op.cit.
93. Turmeric (Curcuma longa Linn): The rhizomes of turmeric are used as a spice for flavouring Indian cooking. It also has properties that make it an effective ingredient in medicines, cosmetics and as dyed. As a medicine, it has been traditionally used for centuries to heal wounds and rashes. In 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har. P. Cohly) were granted a US Patent (no. 5,401, 5045) on use of turmeric on wound healing. The Council of Scientific and Industrial Research (CSIR), India, New Delhi filed a re-examination case with the USPTO challenging the patent on the grounds of existing prior art. CSIR argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention. Their claim was supported by documentary evidence of traditional knowledge, including ancient Sanskrit text and a paper published in 1953 in the journal of the Indian Medical Association. Despite an appeal by the patent holders, the UPSTO upheld the CSIR objections and cancelled the patent. The turmeric case was a landmark judgment case as it was for the first
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6.18 Traditional Knowledge Digital Library (TKDL)
It all started in June 1999, at the third plenary session of the Standing Committee95 on
Information Technology of World Intellectual Property Organization under the chairmanship of
Dr. R.A. Mashelkar, the then Director General of Council of Scientific and Industrial Research;
when need to create database of traditional knowledge and cultural expressions was felt.
The Planning Commission set up a task force headed by Dr. D. N Tiwari, its member for
science and technology, and directions were issued to the Department of Indian Systems of
Medicine and Homoeopathy (ISMH) to take measures towards the protection of Indian
traditional knowledge in general and Ayurvedic in particular. On the directions of the then
secretary to the department, an approach paper was prepared by Mr. V.K.Gupta, the then Senior
Technical Director of National Informatics Centre in October 1999. In December 1999, Dr.
Mashelkar submitted the said approach paper to /Standing Committee on Information
Technology, WIPO.
time that a patent based on the traditional knowledge of developing country was successfully challenged. The
US Patent office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by the innovators having been known in India for centuries.
94. Neem (Azarirachta indica A. Juss.): neem extracts can be used against hundreds of pests and fungal diseases that attach food crops; the oil extracted from its seed can be used to cure cold and flu; and mixed in soap, it provides relief from malaria, skin diseases and even meningitis. In 1994, European Patent Office (EPO) granted a patent (EPO Patent no. 436257) to use US Corporation WR Grace Company and US Department of Agriculture for a method for controlling fungi on plants by the aid of hydrophobic extracted Neem oil. In 1995, a group of international non-governmental organizations (NGOs) and representatives of Indian farmers filed legal opposition against the patent. They submitted evidence that the fungicidal effect of extracts of Neem seeds had been known and used for centuries in Indian agriculture to protect crops, and therefore was a prior art un-patentable. In 1999, the EPO determined that according to the evidence all features of the present claim were disclosed to the public prior to the patent application and the patent was not considered to involve an inventive step. The patent granted on Neem was revoked by the EPO in May 2000. EPO, in March 2006, rejected the challenge made in 2001 by the US Department of Agriculture and the chemicals multinational, WR Grace to the EPO’s previous decision to cancel their patent on the fungicidal properties of the seeds extracted from the Neem tree.
95. According to Prof. Samir Brahmechari, CSIR Director General, on an average, it takes five to seven years to oppose a patent internationally and costs one to three crore rupees. See, ‘Yoga Piracy : India shows who’s guru by Kounteya Sinha, in the Times of India, New Delhi, 22 February, 2009. What is TKDL? It is a database with a tool to understand the codified knowledge existing for the Indian Systems of Medicine including Ayurveda, Siddha, Unani and existing for the Indian Systems of Medicine Including Ayurveda and Yoga as prior art. It is
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In January 2000 the department of Indian Systems for Medical and Homoeopathy
(ISMH) set up an interdisciplinary/inter-ministerial Task Force on TKDL consisting of experts
from the Department (of ISMH), Central Council of Research in Ayurveda and Siddha
(CCRAS), Banaras Hindu University, National Informatics Centre, Controller General of Patents
Designs and Trade Marks and others. This Task Force, headed by Mr.Gupta, Presented its report
in May 2000 to the Department of ISMH; which was then presented by Dr R.A.Mashelkar at
international forum.
The TKDL project was approved by the Cabinet Committee of Economic Affairs in
January 2001; and in June 2001 a memorandum of understanding was signed between the
Department of ISMH (later re-christened as the department of Ayurved, Unani, Siddha and
Homoeopathy (or department of AYUSH) and the National Institute of Science Communication
(or, NISCM; later renamed as National Institute of Science Communication and Information
Resources : NISCAIR).96 Under the guidance of Mr. Gupta, Director of NISCOM, the software
specifications and design for the TKDL were prepared in July 2001.
Meanwhile Mr. Gupta, the then Director of NISCOM, made in February 2001 a
presentation at the International Patent Classification (IPC) Union on Traditional Knowledge
Resource Classification (TKRC) 97 to get established a WIPO-TK Task Force Consisting of
USPTO, EPO, IPO, China and India.
not a diagnostic or usage database. TKDL is also not the prior art in itself; the Books on Indian Systems of
Medicine are the prior art which act as the source of information for TKDL. However, TKDL contains the scanned images of medicinal formulations from the original books. TKDL covers over two lakh formulations which have been taken from original books. TKDL does not contain the entire information existing in the Indian Systems of Medicine. Rather than comprehensive, TKDL is a dynamic database, where formulations will be continuously added and continuously updated according to the inputs from the users of the database. The information on traditional medicines appears in a standard format in TKDL. For example, formulations on Indian Systems of Medicine appear in the form of a text, which comprises the following main components: Name of the drug, Origin of the knowledge, Constituents of the drug with their parts used and their quantity, Method of preparation of the drug and usage of the drugs, and Bibliographic details. TKDL, gives modern names to plants (e.g. Curcuma longa for Turmeric), diseases (e.g., fever for jwar), or processes, mentioned in
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In October 2001 was started the establishing of TKDL team of Project Assistants
(Information Technology), Ayurved, Patent Examiners etc. which was fully constituted by
March 2002. However, it started functioning with effect from October 2001 at NISCAIR
(erstwhile NISCOM).
In February 2002, Mr. Gupta, Director of NISCOM represented India at a meeting of the
said International Task Force, and made a presentation on the issue of linking TKRC to IPC.
Showing a positive response, the WIPO TK Task Force recommended for adding a subclass
under A61; and in February 2003 it recommended (a) inclusion of 200 subgroups on TK as
against the previously included a few subgroups on medicinal plants, (b) linking of TKRC to
IPC, and (c) continuation of work on biodiversity, TK and TCE. At a WIPO Regional
symposium at Kochi in November 2002, the regional experts from China, India and Philippines
wherein Mr. Gupta and others represented India), specifications and standards for setting up of
TK data bases and registries based on such specifications were drafted.
the literature related to Indian Systems of Medicine, and establishes relationship between traditional knowledge and modern knowledge.
96. National Institute of Science Communication and Information Resources (NISCAIR) came into existence on 30 September 2002 with the merger of National Institute of Science Communication (NISCOM) and Indian National Scientific Documentation Centre (INSDOC). Both NISDOC, the two premier institutes of the Council of Scientific and Industrial Research (CSIR), were devoted to dissemination and documentation of S&T information. NISCOM had been in existence for the last six decades (first as two Publication Units of CSIR, which were merged to form the Publications Division, which was later renamed as Publications & Information Directorate and in 1996, as NISCOM). Over the years, NISCOM diversified its activities, and through a host of its information products, comprising research and popular science journals, encyclopedic publications, monographs, books, and information services, it had been reaching out to researchers, students, Entrepreneurs, Industrialists, Agriculturists, Policy Planners and also the common man. INSDOC came into being in 1952 and was engaged in providing S&T information and documentation services through myriad activities such as abstracting and indexing, design and development of databases, translation, library automation, providing access to international information sources, human resource development, consultancy services in setting up modern library-cum-information centres. INSDOC was also host to the National Science Library and the SAARC Documentation Centre. Now, with the formation of NISCAIR, all the above multi-factivities have been amalgamated, making NISCAIR, an institute capable of serving the society using modern IT infrastructure in a more effective manner and taking up new ventures in the field of science communication, dissemination and S&T information management systems and services. Broadly the core activity of NISCAIR
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This draft was presented by Mr. Gupta at the fourth session (December 2002), and
adopted at the fifth session (July 2003) by the Inter-Governmental Committee of the WIPO.
Meanwhile, in August 2002, the Access policy Issue Committee (APIC) was constituted to (i)
frame policies on accessing TKDL database, (ii) decide matters relating to dissemination of
TKDL, and (iii) to meet defensive and positive objectives of TKDL.98
The TKDL team, set up in October 2001, completed in March 2003 data abstraction on
36000 Ayurvedic formulations for creating TKDL in five languages i.e. English, German, French
and Japanese; and Dr. Murali Manohar Joshi. Union Minister for Human Resource
Development, Science and Technology, and Ocean Development, Government of India released
in October 2003 a CD containing a sample of 500 formulations. In October 2004, at the 35th
meeting of the IPC Union, the linking of TKRC with IPC was approved. In November 2004
came the request from the USPTO and in July 2005 from EPO for access to the TKDL.
Meanwhile, the SAARC Documentation Centre, NISCAIR and MHRD organized a workshop in
New Delhi in December 2004 for creation of TKDL for SAARC countries.
The Department of AYUSH and NISCAIR started in August 2005 the project on TKDL
Siddha, even as the NISCAIR in December 2005 created the TKRC containing approximately
25000 subgroups.
will be to collect/store, publish and disseminate S&T information through a mix of traditional and modern means, which will benefit different segments of society. See the official website of NISCAIR at http;//www.niscair.res.in/aboutus/about.asp?a=topframe.htm&b=leftcon.asp&c=introduction.htm.Gangan Prathap has assumed charge as Director, NISCAIR on 23 February 2009.
97. What is TKRC? Traditional Knowledge documentation lacked a classification system. Therefore, a modern classification system i.e. Traditional Knowledge Resource Classification ITKRC), based on the structure of International Patent Classification (IPC) was been evolved for Indian Systems of Medicine viz., Ayurveda, Siddha, Unani and Yoga.
98. TKRC is a structured classification consisting of sections, classes, subclasses, groups and subgroups, similar to that included in IPC system, relating to Indian traditional knowledge for facilitating the patent examiners in retrieval of information related to prior art, before granting a patent in the area of traditional knowledge.
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In January 2006, the WIPO included approximately 200 subgroups in the eighth edition of
IPC. The Cabinet Committee on Economic Affairs, in June 2006, put its stamp of approval on
access to TKDL data base to IPO. In July 2006 the access Agreement was sent to EPO and in
December 2006 to USPTO. The APIC met in June 2007 to discuss the responses given by EPO
and USPTO.
In January 2008 the CSIR, the department of AYUSH and MDNIY 99initiated the work
for creating TKDL yoga. In July 2008 the APIC met to discuss the clarifications sought by EPO,
and gave clearance for signing of Access Agreement. The CSIR, in July 2008 itself, came out
with TKDL database. The CSIR entered in to an Access Agreement with EPO on February 03,
2009. By February 2009, about 600 yoga postures like asanas etc had been digitized.
Since at the post-grant stage the revocation of patent becomes very difficult besides being
expensive as each case costs somewhere between two and six lakh dollars. The present status of
the TKDL, as it has been displayed on its website, covers the developments till April 2011.
According to this, the digital library has 91, 720 traditional medicine formulations transcribed
from 75 books on Ayurveda; 1, 29, 520from ten books on Unani; 15374 from fifty books on
Siddha; and 1325 from fifteen books on Yoga. Thus the TKDL database presently contains 2,
37, 939 traditional medicine formulations transcribed from 150 books in these four systems of
traditional Indian medicine. It is spread over about 35 million A-4 size pages in its printable
form.
99. Morarji Desai National Institute on Yoga (MDNIY), New Delhi. It is collaborating with CSIR, Department of
AYSUH and NISCAIR in the TKDL Project. Available at http://mdniy.nic.in/. Eight other well-known yoga institutions are also helping in the documentation of yoga for the TKDL.
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6.19 TKDL Agreements
The Government of India has authorized the CSIR to enter into an agreement with the
patent offices at the global level; and that with EPO (February 03, 2009) was the first in the
series. NISCAIR is the implementing agency. Under the agreement, the CSIR or NISCAIR is
the implementing agency. User, Later, under an agreement the CSIR granted the Controller
General of Patents, Designs and Trade Marks (CGPDTM of Indian Patent Office) access to
TKDL database in July 2009.
As with the foreign patent regimes, the CSIR has so far concluded TKDL Access
Agreements with European Patent Office (EPO) in February 2009, German Patent and
Trademark Office (DPMA) in October 2009; United States Patent Office (USPTO) in
November, 2009; United Kingdom Intellectual Property Office (IPO) in February 2010;
Canadian Intellectual Property Office (CIPO) in September, 2010; Intellectual Property Australia
(IP Australia) in January 2011; and Japan Patent Office (JPO) in April 2011.
6.20 Impact of TKDL
Through the TKDL India has taken the bio-pirates, TK pirates, and others of their head
on globally,100 and now patenting turmeric etc, or getting patent or copyright over, asana and
pranayam will not be an easy task.
100. Amanda Hodge, South Asian correspondent of ‘The Australian’, wrote in an article entitled ‘India acts to keep tradition safe for all’, on February 24,2009 : India has declared war on bio-pirates and Western self-styled yoga gurus claiming traditional medicines and practices as their own, by becoming the world’s first developing nation to protect more than 200,000 treatments as public property. In the first agreement of its kind, struck this month with the European Patent Office, India has provided 34 European countries with access to a massive traditional knowledge digital database to guard against Western pharmaceutical Companies copyrighting traditional medicines. Also see, a report entitled ‘Yoga piracy: India shows who’s the guru’ by Kounteya
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At an average it is expected to prevent about 2000 patents101 being granted every year
hence forth for matters related to Indian traditional knowledge and cultural expressions, while it
may also affect the prospects of hundreds of others applications which might be pending in
different patent offices in countries abroad.
Much before India had embarked on the TKDL project there had been a spot of efforts to
get exclusive monopoly Right over various aspects of Indian traditional knowledge unlawfully
and in an unauthorized manner worldwide102 which, seeing the enormous financial resources
required for fighting such cases would have resulted in, either India giving up all hopes to put up
a fight or, spending her resources at the cost of developmental activities at home.
With the TKDL access agreements being concluded by CSIR with patent offices of
European Union, Great Britain, United States of America, Canada, Australia, Germany and
Japan, there has been a marked impact of India’s traditional knowledge evidence in discouraging
grant of patent for claimed inventions which were based on India’s prior art.
Sinha, for the Times of India, New Delhi, dated 22, 2009 which, inter alia, states : “This is why India has now also signed a landmark agreement with the EPO. Under the three-year agreement, which came into effect on February 3, TKDL’s database would be available to the patent examiners at EPO (34 member states) “for establishing prior art”, in case of patent applications based on Indian systems of medicine (ISM).
101. In a report entitled ‘India logs over 2 lakh traditional medical formulations’ in the Times of India, New Delhi, dated 10 Feb 2009, Kounteya Sinha, writes : “In what is the world’s first Traditional Knowledge Digital Library (TKDL), India has completed documenting over two lakh medical formulations of Ayurveda, Siddha and Unani to save them from piracy. According to Mr. V K Gupta, who created the TKDL, India would lose 2000 new patents every year without such a digital diary”.
102 .See Ibid: “The TKDL database, with 30 million pages of information, has been created to prevent those living abroad from claiming patent for existing formulations. India, till now, has lost over 15,000 patents of medicinal plants to the West. In the past patents have been granted by the European Patent Office (EPO) on the use of over 285 Indian medicinal plants such as papaya, Indian long pepper, kali tulsi, pudina, ginger, aloe, isabgol, aaonla, jira, soyabean, tomato, almond, walnut and methi”.
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Accordingly, these offices are rejecting these applications or, as the case may be asking
the applicants to suitably amend their applications. Here we shall take up a few such cases at
some of the abovementioned patent offices.103
6.21 European Patent Office (EPO)
Following the TKDL access agreement, the European Patent Office has either set-aside
decisions to grant patents or cancelled its intent to grant patent for claimed inventions which
were related or substantially based on India’s traditional knowledge. On the other hand, in the
light of third party observations made by India before EPO, several applicants were forced to
either amend or modify their claims for grant of patent; or had to withdraw their applications
altogether.
The Government of India has admitted that the appropriation of elements of the
‘collective knowledge of societies into proprietary knowledge’ for the commercial profit of a few
is one of the concerns of the developing world. This concern acquires much more gravity in the
light of the fact that yoga, which is but a part of Indian traditional knowledge and cultural
expression, has become a $225 billion market in the West. In the year 2007, there were around
1000 trademarks registered in the US over yoga products.104
103. The information regarding the patent applications being withdrawn, rejected, modified or amended by different
patent regimes in the light of prior art evidences produced by the TKDL are available on the TKDL website with all authentic detail wherefrom it has been taken here in a brief manner for the purpose of information to the readers of the book who, and others like them, should visit the said web page for more elaborate and fully authoritative data given there with regard thereto available at :http://www.tkdl.res.in/tkdl/LangDefault/Common/outcome.asp?GL=Eng visited on 09.04.2014.
104. See, Amanda Hodge’s report in the Australian.
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Patent law has been extended to the traditional knowledge of tribal population in the 3rd
world countries like human life, animals, plants, micro-organisms, etc.105Above all sui generis
legislation has to be developed for the purpose of protecting traditional knowledge. India has
already enacted a law to provide for protection of biological diversity106 sustainable use of its
components and equitable benefits sharing on the use of biological resources. The legislation
also provides for a national authority, which will grant approvals for assess and ensure equitable
sharing of benefits.
6.22 Development of Intellectual Property Right in India
The origin of intellectual property at national level can be traced back to the ancient days
when monopolies existed in the Byzantine Empire. Ancient Greece in the 7th century BC granted
monopoly to cooks for one year to exploit new recipes. But a few centuries later Emperor Zeno
in Rome rejected the concept of monopoly, Emperor Zeno in a proclamation in 480 AD ordered
that no one should exercise monopoly upon any garment or fish or any kind of thing.
By 1432 the Senate of Venice enacted a statute providing exclusive privileges to those
inventing any machine or process to speed up silk making. This protection was soon extended to
other devices. Any new idea thus introduced started obtaining protection. The earliest of the
legislation for the protection of intellectual property law has also influenced the development of
Indian intellectual property law.107 The Government of India had decided to adopt a sui generis
legislation to give protection to breeders of new varieties of plants.
105. The Chapter has been written by prof. Basabaraju, University of Mysore, Mysore (Karnataka) and edited by
Srinivasulu N. S. 106. Biological act, 2002 (Indian Legislation). 107. Elizabeth Verkey, Law of Patent, (Eastern Book Company, Lucknow, 2005), p.2.
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The Regional Tribal Research Centers and Indian Council of Agricultural Research is
also working very hard in documenting traditional knowledge. In many universities and research
institutions ethno-botanical researches have been carried out. It will be useful document in
protecting traditional knowledge. These researches should be compiled and document in
protecting traditional knowledge.
These researches should be compiled and documented. Tropical Botanical Garden
Research Institute (TBGRI), Trivandrum set an example to demonstrate respect for traditional
knowledge. TBGRI has entered into an agreement with local ‘kani’ tribe to share the benefit of
new herbal medicine (Jeevani). Scientists have learnt of plant ‘Trichopus zeylanicus’ health
giving properties from member of the tribal kani people, who inhabit the forested Western Ghats
region of the state. The TBGRI agreed to give initial fee and regular royalties.
6.23 Legislative Measures in India
6.23.1 Patent Law
Patent Law Amendment, 2002 reflects concern for traditional knowledge. The following
provisions are supportive to the protection of traditional knowledge:
• Innovations based on traditional knowledge or aggregation or duplication of known
properties of traditional knowledge is not patentable.108
• It is compulsory for patent applicant to disclose source. And geographical origin of
biological material used in invention.109
108. See Sec. 3 (p), Patent Act. 109. Ibid. Sec. 10(4d) (d).
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• Failure to disclose source and geographical origin of biological material used in invention
would be good ground for opposing patent application.
6.23.2 Biodiversity Legislation
The main objective of biodiversity legislation is “to provide for conservation of
biological diversity, sustainable use of its component and equitable sharing of the benefits arising
out the use of biological resources and for matters connected therewith or incidental there to”,
National Biodiversity Authority is constituted.110National Biodiversity Authority (NBA)
is empowered to check bio-piracy and to regulate transfer the result of any research. Section 4 of
the Biodiversity Act provides, No person shall without previous approval of the NBA transfer
the results of any research relating to any biological resources occurring or obtained from India
for monetary consideration or otherwise to any person who is not a India for monetary
consideration or otherwise to any person who is not a citizen of India or body corporate or
organization which is not registered or incorporated in India or which has any non-Indian
participation in its share capital or management.
The central government is empowered to make rules and to formulate guidelines in this
connection. The Central Government should be very cautious while framing guidelines. The
guidelines should ensure that in guise of publication of research paper, traditional knowledge
should not go out of country. Sec. 6 of the Act provides, “No person shall apply for any
intellectual property right by whatever name called in or outside India for any invention based on
any research or information on biological resource obtained from India without previous
approval of National Biological Authority”.
110. Biodiversity Act of 2000, Chapter 3, III, IV and V.
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The NBA has been given power to oppose the grant of intellectual property right in any
country outside India on any biological source obtained from India or knowledge associated with
such biological source derived from India.
Act seeks to constitute State Biodiversity Board (SBB)111 to promote and protect
biodiversity. No Indian citizen or person or body corporate is allowed to obtain biological
resource for commercial utilization without obtaining prior intimation of S.B.B. However, this
recognizes traditional knowledge of the local people and communities including Voids and
Hakism practicing indigenous medicine. They are kept out of intimation restriction. The Act
also provides post-intimation strategy. The S.B.B, is empowered to prohibit and restrict if it is of
opinion that such activity detrimental or contrary to the objectives of conservation and
sustainable use of biodiversity and sharing benefits. Instead of intimation strategy there should
have prior approval arrangement. The time gap between intimation and post-intimation enquiry
may be wide enough. The large quantity of bio diversities will be easily removed if the time gap
between intimation and prohibition order is wide.
6.23.3 Plant Variety and Farmer’s Right Act
This is very important legislation enacted by the Parliament to honour India’s obligation
in TRIPs. This is sui generis law with respect of plant variety and farmer’s right. The breeding
activities move around genetic resources. The Act covers interplay of breeding, genetic resources
and traditional knowledge.
111. Biodiversity Act of 2000, Chapter VI.
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The Act has the following important provisions for recognizing traditional knowledge.
• The Act recognized concept of benefit sharing between provider and recipient of the
plant genetic resources.112
• Applicant seeking registration of variety must disclose geographical location from where
genetic material has been taken while evolving new variety.
• If the applicant fails to disclose contribution of farming community
The Indian traditional knowledge (Preservation and Protection) Bill, 2000 has been
drafted by N.S.Gopal Krishanan School of Legal Studies, Cochin, University of Science and
Technology.113 The salient features of the Draft Bill are.
• Definition of “traditional knowledge” existing, known and used by the members
of the Indian society from Generation to Generation, excluding knowledge used in
secret by individual and groups.
• The formation of a community traditional knowledge trust, which will have the
exclusive right to manage the TK of the community.
• Commercial exploitation of TK Trust by persons outside the community whether
in collaboration with members of the community or not, shall be with the prior
informed consent of the committee. “PIC” is defined as written consent of the
committee indicating the purpose for which the consent is given together with the
terms and conditions of the consent.
112. Plant Variety and Farmer’s Right Act, 2001, S.26. 113. Malhn Sachin and others, “Protecting Traditional Knowledge Systems”, Indian Journal of Enviornmental
Law , I.C.A.F.I, University law School, Hyderabad (A.P), Vol.2, No. 1, p.90.
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• The civil remedies that are provided for include injunctions, damages and
accounts of profits. The Bill also provides for a maximum imprisonment of 3
years with a maximum fine of Rs 2 lakh.
The Bill is good attempt and it may be used as foundation to formulate detailed legal
procedure. The WIPO has received legislations as to traditional knowledge from many countries.
These legislations are useful for us in formulating legislative and administrative strategy for
protection of traditional knowledge.
The strategy for protection of traditional knowledge leans heavily in relation to
biodiversity, there is need to devise comprehensive protection mechanism for traditional
knowledge in other areas, such as crafts, handicrafts, music and other cultural expressions. It has
also been noticed that more emphasis is given in protecting traditional knowledge of indigenous
people.
Importance should be given to traditional knowledge of all local and immigrant people.
Bela people’s case offers a good example. Bela people are landless, highly impoverished and
economically marginalized immigrant people. Bela are having ecological and eth-no-botanical
knowledge about functions and characters of black rice growing in the swamp and river. They
could collect fallen rice. Their traditional knowledge system recognized that O, longistaminata
is a variety with a particular resistance to diseases, which exceeds the disease resistance other
varieties, includes rice blight.
Existing protection of traditional knowledge is inadequate. The protection strategy with
respect to biodiversity should also address the following issues:
• Traditional knowledge should not be pirated.
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• Sustainable use and conservation of biodiversity should be promoted. In no case
traditional knowledge should be used as catalyst for over exploitation of
biodiversity.
• Benefit sharing, traditional knowledge and availability of biodiversity is closely
linked. The state has sovereign Right over by biodiversity. Traditional knowledge
and benefit sharing will be of a little use unless limited Right over biodiversity are
allowed to the people concerned.
• The strategy is required to regulate forest Right of local, indigenous people, their
traditional knowledge and its commercialization. Provisions should be made to
manage effectively and efficiently the benefit-sharing scheme.
• Some other communities of area claim to have similar knowledge. This may give
rise to conflicting claim, provision should be made to resolve such claim.
• It should be made clear whether non-participant of traditional knowledge of area
should receive benefit-sharing.
At present legal strategy provides how traditional knowledge used as instrument to
oppose patent or plant variety registration applications. Need of the day is that traditional
knowledge should be used as a catalyst for development. We should develop capacity to absorb
technology for scientific validation of traditional knowledge. Our research and development
sector should be fully equipped to meet stringent international quality standard from raw material
sourcing to packaging so that traditional knowledge can be fully utilized in the interest of
country.
He described the TKDL approach as complementary to the work currently underway in
WIPO’s Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources,
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Traditional Knowledge and Folklore, where WIPO’s 184 member states are negotiating an
international legal instrument to ensure the effective protection of TK and traditional cultural
expressions, and to regulate the interface between IP and genetic resources.114
Undoubtedly, commerce in such products as medicinal plants, traditional crop varieties
and handicrafts can benefit local people. Indeed, trade in handicrafts is substantial. According to
Fowler, “artisan handicrafts represent an estimated US$30 billion world market. In addition,
handicraft production and sales represent a substantial percentage of gross domestic product
(GDP) for some countries”.115
Traditional proprietary systems relating to scarce tangibles such as land, resources and
goods, and to valuable intangibles like certain knowledge and cultural expressions, are often
highly complex and varied. In traditional societies, the right to livelihood resources (apart from
immediate personal possessions) such as trees, crop species, and medicinal plants, are not usually
exclusive.116 In the words of Justice Peterson in a famous British copyright infringement case in
1916, “what is worth copying is prima facie worth protecting”,117
114. WIPO and India Partner to Protect Traditional Knowledge from misappropriation, Geneva/New Delhi, March
22, 2011, PR/2011/682. In a statement to the three day International Conference on the “Utilization of the Traditional Knowledge Digital Library as a Model for Protection of Traditional Knowledge,” co-organized by WIPOand India’s Council of Scientific and Industrial Research (CSIR), which opened on March 22, 2011,WIPO Director General Francis Gurry welcomed international cooperation in the fight against them is appropriation of TK.
115. Fowler, B.J, “Preventing counterfeit craft designs”, in Finger, J.M. and Schuler, P. (eds), Poor People’s Knowledge: Promoting Intellectual Property in Developing Countries, Washington DC: The World Bank, (2004) , pp113-131.
116. Posey, D.A. & Dutfield, G,“Beyond Intellectual Property: Toward Traditional Resource Right for Indigenous Peoples and Traditional Communities”, Ottawa, IDRC , (1996).
117. University of London Press Ltd v. University Tutorial Press Ltd.
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Despite this, the original agricultural systems are intact in many parts of the world and
continue to be the basis of much innovation. For example, in some parts of the world farming
communities continue effectively to manage agricultural genetic diversity, experiment on-farm
with traditional and modern crop varieties and to produce their own varieties whose performance
may be better than those provided by extension services.118
In 1999 the Indian government established a National Innovation Foundation. The NIF’s
goals are as follows:
• To help India become an inventive and creative society and a global leader in
sustainable technologies.
• To ensure evolution and diffusion of green grassroots innovations in a time bound
and mission oriented manner.
• To support scouting, spawning, sustaining and scaling up of grassroots green
innovations and link innovation, enterprises and investments.
• To strengthen research and development linkages between excellence in formal and
informal knowledge systems and create a knowledge network.
• To promote wider social awareness and possible commercial and non-commercial
applications of innovations .119
118. Richards, P. “Casting Seeds to the Four Winds: A Modest Proposal for Plant Genetic Diversity Management”,
in Posey, D. A. (Ed.,), Cultural and Spiritual Values of Biodiversity, (Nairobi & London, UNEP & IT Publications, 1999), pp 315-316.
119. Dutfield, G. “, Intellectual Property, Biogenetic Resources and Traditional Knowledge,” (London, Earth Scan Publications, 2004), available at http://www.nifindia.org visited on 03.08.2014.
336
Indeed, the public domain concept is problematic from the perspective of many
traditional societies in which TK holders or others, such as tribal elders, have permanent
responsibilities concerning the use of such knowledge, irrespective of whether it is secret, is
known to just a few people, or is known to thousands of people throughout the world.120
Industry commonly expresses the view that ethno-bioprospecting, and natural product
research more generally, are scientifically and commercially unproven drug discovery strategies
in the present era however effective they may been in the past. While nature used, before the
emergence of synthetic chemistry, to provide all of the drugs on the market and traditional
knowledge much of the inspiration, most pharmaceutical companies purport to have little if any
interest in the jungle pharmacy.
If they have to comply with complex TK protection regimes and benefit sharing, their
skepticism about TK and bioprospecting could well increase further and alternative drug
discovery strategies may look even more promising. Again, evidence for such admittedly
plausible assertions is lacking, and we should certainly not accept them as given. Indeed, the
statistical evidence produced so far to support such a view is not at all credible making it hard to
know whether concerns are genuine or are groundless scaremongering.121
120. See D.A. Posey, “Selling Grandma: Commodification of the Sacred through Intellectual Property Right, in
Claiming the Stones/Naming the Bones: Cultural Property and the Negotiation of National and Ethnic Identity 201, E. Barkan & R. Bush (Eds.), (2002).
121. Wolfe, T.A. & B. Zycher, “Biotechnological and Pharmaceutical Research and Development Investment under a Patent-based Access and Benefit Sharing Regime,” San Francisco, Pacific Research Institute, (2005).
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6.24 Positive Protection
6.24.1 Property Right and Liability Rules
A liability regime is a “use now pay later” system according to which use is allowed
without the authorization of the right holders. But it is not free access because post compensation
is still required. A sui generis system based on such a principle has certain advantages in
countries where much of the TK is already in wide circulation but may still be subject to the
claims of the original holders. Asserting a property right over knowledge is insufficient to
prevent abuses when so much traditional knowledge has fallen into the public domain and can no
longer be controlled by the original TK holders. A pragmatic response is to allow the use of such
knowledge but to require that its original producers or providers be compensated.122
6.25 Defensive Protection
6.25.1 The Prevention of Misappropriation
Carlos Correa initially proposed a misappropriation regime. According to his proposal:
National laws would be free to determine the means to prevent it, including criminal and civil
remedies (such as an obligation to stop using the relevant knowledge or to pay compensation for
such use) as well as how to empower communities for the exercise and enforcement of their
Right.123
122. For economic analysis and a detailed blueprint for applying a compensatory liability regime to applications of
traditional knowledge, see Lewis, T. & J.H. Reichman, “Using Liability Rules to Stimulate Local Innovation in Developing Countries”.
123. C.M. Correa, “Traditional Knowledge and Intellectual Property: Issues and Options Surrounding the Protection of Traditional Knowledge,” Quaker United Nations Office, Discussion Paper 18, (2001).
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Lyndel Prott, formerly of UNESCO, identified a set of individual and collective Right that
could be described as “cultural Right,” and which are supported to a greater or lesser extent by
international law.124
6.26 Coordinating National Patent Law
Neem Tree, Turmeric and Ayahuasca – these are three examples of traditional knowledge
patenting, that use litigation in national patent law. The question of whether the discovery was
actually new was central to the conflicts. A whole series of distinctions use this requirement as a
starting point: written/oral proof,125 criteria for determining the “inventive step”, in connection
with which people “with ordinary skills” can be referred to (according to a suggestion of the
Asian group)126 or a closer definition of public policy that could be opposed to a national patent.
At last – and again it is about the achievement of a solution in regard to the novelty
criteria in the patent law – experiments focusing on the installation of national databases, in
which traditional knowledge is mapped. Thus, protection against private appropriations by
national patents as evidence against the novelty of discoveries, the protection of “morality” and a
sensible dissemination and the utilization of traditional knowledge by the global public shall be
rendered possible.127
124. L.V. Prott, “Cultural Right as Peoples’ Right in International Law, in the Right of Peoples”, 102 (J. Crawford
ed., Clarendon Press 1988). 125. Siddartha Prakash, “Trade and Development Case Studies, Country Studies: India, Local Species – Turmeric,
Neem and Basmati”, Geneva, World Trade Organization , (1998), at p. 83. 126. WIPO,“Technical Proposals on Databases and Registries of Traditional Knowledge and Biological/Genetic
Resources, “Document submitted by the Asian Group, WIPO/GRTKF/IC/4/14, 6 December 2006, at Annex.
127. The examples of India and Peru are classical, see BUKO – Kampagne gegen Biopiraterie, Grüne Beute: Biopiraterie und Widerstand, Frankfurt: Trotzdem‐Verlag, (2005), at p. 139. Still forced up by the World Bank project of a global database for traditional knowledge, see Daes, supra note 36, at p. 144. The Google‐project itself is confronted with criticism of biopiracy: “Google was presented with an award as part of the Coalition against Biopiracys Captain Hook Awards for Biopiracy in Curitiba, Brazil, this week. The organizers allege that Googles collaboration with genomic research institute J. Craig Venter – to create a searchable online database of all the genes on the planet – is a clear example of biopiracy”. See Andrew Donoghue, ʺGoogle Accused of Biopiracy ZDNet News, 30 March, (2006).
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India is a country, which has been nurturing a tradition of civilization over a period of
about 5,000 years. India’s ancient scriptures consist of the four Veda, 108 Upanishads, 2 epics,
Bhagavad-Gita, Brahma sutras, eighteen Puranas, Manusmriti, Kautilya Shastra and smritis.
Biologically speaking, India is one of the 12 most biodiversity countries of the world. With only
2.4 percent of the world’s land area, India accounts for 7 to 8 percent of the recorded species of
the world. India’s diversified agro-climatic nature is a blessing.
The whole world has 26 agro-climatic zones and India alone has 16 agro-climatic zones.
India’s diversified agro-climatic zones start from the Trans-Himalayan region to the coastal areas
of Kerala, Andaman and Nicobar, which are home to a varied range of medicinal plants like
herbs, shrubs, tubers,mangroves and rhizomes.
The Botanical Survey of India and the Zoological Survey of India have recorded over
47,000 species of plants and 81,000 species of animals.128This multitude of natural wealth has
created a renewed interest in the traditional medicinal system, which includes the Unani, Yoga,
Ayurveda, Homeopathy and Siddha systems. The Ayurveda is the oldest and most effective of
these alternative systems of medicine. The ancient scriptures of the Ayurveda are full of
instances where herbs with medicinal properties were used not only for curative purposes but
also for increasing physical and mental efficiency.
In 2000, CSIR found that almost 80 per cent of the 4,896 references to individual plant
based medicinal patents in the United States Patents Office that year related to just seven
medicinal plants of Indian origin.
128.Simeone Tonina, “Indigenous traditional knowledge and IPRs,” available at
www.parl.gc.ca/information/library/PRBpubs visited on 13 December (2009).
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Three years later, there were almost 15,000 patents on such medicines spread over the
United States, UK, and other registers of patent offices. In 2005 this number had grown to
35,000, which clearly demonstrates the interest of developed world in the knowledge of the
developing countries. Conveniently, none of the patent examiners are from developing countries,
allowing a virtual free pass to stealing indigenous knowledge from the Old World. 129
6.27 Biopiracy in India
6.27.1 Turmeric
The rhizomes of turmeric are used as a spice for flavoring Indian cooking. It also has
properties that make it an effective ingredient in medicines, cosmetics and dyes. As a medicine,
it has been traditionally used for centuries to heal wounds and rashes. In 1995, two expatriate
Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har P. Cohly)
were granted a US patent (no.5, 401,504) on use of turmeric in wound healing. The Council of
Scientific & Industrial Research (CSIR), India, New Delhi filed a re-examination case with the
US PTO challenging the patent on the grounds of existing of prior art.
CSIR argued that turmeric has been used for thousands of years for healing wounds and
rashes and therefore its medicinal use was not a novel invention. Their claim was supported by
documentary evidence of traditional knowledge, including ancient Sanskrit text and a paper
published in 1953 in the Journal of the Indian Medical Association. The US Patent Office
revoked this patent in 1997, after ascertaining that there was no novelty; the findings by
innovators having been known in India for centuries.130
129. Martin van Ameijde, “Biopiracy: The need for a protective solution?” available at
http://www.jur.lu.se/Internet/Utbildning/kurser/JCA803.nsf/43e828219552/ visited on 11December (2009). 130. Menon Ramesh,“Traditional Knowledge receives a boost from the government”, India Together, available at
http://www.indiatogether.org/ visited on 13 December (2009).
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In 1993, the US PTO granted the University of Mississippi Medical Center patent Right
over a “healing a wound by administering turmeric to a patient afflicted with a wound”. But
again, Turmeric has been used for centuries in India. Indians grow up with a constant awareness
of turmeric the tuber when dried keeps practically foreover..131 The patent was eventually
cancelled in 1998 after reexamination proceedings, but revealed to India and to indigenous
societies around the world, again, how easy it was to falsely patent centuries-old traditional
knowledge.
6.27.2 Neem
Neem extracts can be used against hundreds of pests and fungal diseases that attack food
crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed in soap, it
provides relief from malaria, skin diseases and even meningitis. In 1994, European Patent Office
(EPO) granted a patent (EPO patent No.436257) to the US Corporation W.R. Grace Company
and US Department of Agriculture for a method for controlling fungi on plants by the aid of
hydrophobic extracted Neem oil.
In 1995, a group of international NGOs and representatives of Indian farmers filed legal
opposition against the patent. They submitted evidence that the fungicidal effect of extracts of
Neem seeds had been known and used for centuries in Indian agriculture to protect crops, and
therefore, were unpatentable. In 1999, the EPO determined that according to the evidence all
features of the present claim were disclosed to the public prior to the patent application and the
patent was not considered to involve an inventive step. The patent granted on was Neem was
revoked by the EPO in May 2000. 132
131. Walker, Simon, “The TRIPS Agreement, Sustainable Development and the Public Interest “, A Discussion
Paper, INCU Law and Policy Paper No.41, IUNCE & CILE, (2001), p.36. 132. Gollin, Michael, “New Rules for Natural Products,” (Sep. 1999, Vol. 17 & 9), pp 921-922.
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6.27.3 Basmati Rice
Rice Tec. Inc. had applied for registration of a mark “Texmati” before the UK Trade
Mark Registry. Agricultural and Processed Food Exports Development Authority (APEDA)
successfully opposed it. One of the documents relied upon by Rice Tec as evidence in support of
the registration of the said mark was the US Patent 5,663,484 granted by US Patent Office to
Rice Tec on September 2, 1997. This US utility patent was unique in a way to claim a rice plant
having characteristics similar to the traditional Indian Basmati Rice. It was challenged and later
revoked by USPTO. 133
The mandatory requirement to secure prior consent for access to genetic resources was
made applicable only to governments.134The opportunity for the resuscitation of the alternative
traditional knowledge system presented itself when parties embarked on the negotiation of an
international regime on access and benefit sharing (ABS), mandated by the CBD’s seventh
Conference of the Parties (COP7) in 2004, prompted by the complaint of provider developing
countries that the benefit-sharing provisions of the CBD were being violated with impunity by
‘biopirate’ users from developed countries. The outcome was the binding Nagoya ABS Protocol
(‘the Protocol’) 135 adopted in October 2010.
In 1997, the US patent office granted a patent in September 1997 to “Rice Tec’ for a
strain of Basmati rice, an aromatic rice grown in India and Pakistan for centuries.
133. Subbiah Sumati, “Reaping what they show, The Basmati rice controversy and strategies for protecting TK”,
available at http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bciclr/27/12FMS.htm visited on 13 December (2009).
134. Art. 15.2, CBD. 135. Devraj, Ranjit, “US Corporate Biopirates Still Staking Claim on Basmati Rise,” Common Dreams New Delhi.
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This case has not yet been resolved, but the Indian Government is actively pursuing the
case, stating that it violates both TRIPS and the CBD. According the ‘South Asia Commission
on Economic and Social Policy, Rice Tec’s patent also violated the CBD in not recognizing the
sovereign Right of India and Pakistan over Basmati rice.136
In Basmati case demonstrates the problem as illustrated in TRIPS that patents are granted
to biotechnological processes. Thus, even though basmati rice has been in South Asia for
centuries, Rice Tec just altered it slightly through crossing with a Western strain of grain, and
successfully claimed it was its own.
Despite the faulty process leading to its adoption, which by passed genuine conclusive
negotiations on key issues, the Protocol is said to build upon, and advance, the cause of ILCs and
TK. In this context, the Protocol is founded on the premise that ILCs have exclusive right to their
TK137 and their PIC must be obtained for any access.138
Finally, other international for a build on the position that TK belongs to its creators, the
ILCs, and this makes it imperative that their PIC is secured. This is evident in the work of the
World Intellectual Property Organization (WIPO) pertaining to TK.
136. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising
from their Utilization to the Convention on Biological Diversity, available at: http://treaties.un.org/doc/source/signature/2010/CN782E.pdf visited on 7 Nov( 2013).
137. Nijar, ‘The Nagoya ABS Protocol – Identifying Implementation Challenges: an Asian Developing Country View’ , in E. Morgera, M. Buck, and E. Tsioumani (Eds). The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges, (2013), pp 247–248.
138. Gurdial Singh Nijar, “Traditional Knowledge Systems, International Law and National Challenges: Marginalization or Emancipation”, The European Journal of International Law, Vol. 24 No. 4, (2013), pp 1205–1221.
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Similarly legal literature in relation to a future Reducing Emissions from Deforestation
and Forest Degradation international framework (REDD-plus) under the UN Framework on
Climate Change (UNFCC), anticipates benefit sharing with ILCs as an integral
component.139Benefit sharing implies negotiation of the terms on which access will be granted
on the basis of PIC.
Three well known cases of bio-piracy in the 1990s are worth recapitulating. The
European Patent Office granted Patent No 436 257 B1 to W R Grace and Company for their
'discovery' of fungicidal effects of neem oil. The patent was challenged by the government' of
India through its Council of Scientific and Industrial Research on grounds of it being part of
India's traditional knowledge.140
The patent could not be maintained for lack of novelty and inventive step and the
European Patent Office annulled the patent through a judgment in September 1997. In this case,
the challenge to the patent on behalf of the traditional knowledge holders succeeded because
there was a record of the traditional knowledge being known and used in India. European Patent
Office been required by European Law to take into cognizance only that prior art which is
published within its own jurisdiction, the outcome of this case could have been different.
There are many regional initiatives that govern the access to genetic resources of
countries. Further, many countries – particularly developing countries – are in the process of
initiating national access legislation to declare their sovereignty over the natural resources within
their jurisdiction and to control access to these resources. Frequently such legislation covers the
protection of traditional knowledge.
139. Morgera and Tsioumani, “The Evolution of Benefit Sharing: Linking Biodiversity and Community
Livelihoods”, 19 Rev EC and Int’l L (2010), pp 150- 171. 140. Ajeet Mathur, “Who Owns Traditional Knowledge?”, Economic and Political Weekly, Vol. 38, Oct. 18-24,
(2003), pp 4471-4481.
345
Kate and Laird141
used a system of classification that divides national access legislation into five
categories:
• Environmental framework laws that simply charge a national government to provide
specific guidelines on access and benefit sharing (Gambia, Kenya, Malawi, Korea,
and Uganda).
• Sustainable development or biodiversity laws provide more details than the first
group. These laws also establish the principles for prior informed consent and
mutually agreed terms (Costa Rica, Eritrea, Fiji, and India).
• Dedicated laws on access to genetic resources (Philippines and Brazil).
• Modifications of existing laws and regulations (Nigeria, U.S.A., and Malaysia) and
• Regional measures.
6.27.4 Mac
In 2001 after the Viagra craze, two US companies patented extracts of the Andean plant,
“Maca” which has traditionally been used to enhance fertility and sexual function. The patents
were granted on the basis of “unlocking maca’s chemical secrets” through advanced
processes.142 It has become clear, though narrating these few cases that IP laws cannot or are not
being effectively applied to prevent the bio-piracy of traditional knowledge. Traditional
knowledge is being treated as a free input into research and commercial product development.
141. Kate K ten, Laird S. “Regulating access to genetic resources and benefit sharing: the legal aspects”,
Commercial Use of Biodiversity, Earth scan Publishers, London, (2002). 142. Higher Education and Research Opportunities in the UK (HERO), “Knowledge Grabbers Pay Nothing,”
available at: http:f/www.hero.ac.ukiresearcblknowledge grabbers pay no4305.cfm visited on 05.02.2014.
346
When patents are falsely granted, equitable benefit sharing is not taking place either,
while indigenous peoples remain subject to bio-piracy and become ever more marginalized in the
process.143
6.27.5 Maharshi Mahesh Yogi Vedic Vishwavidyalaya Vs State of M.P. & Others144
Maharshi Mahesh Yogi Vedic Vishwavidyalaya Adhiniyam, 1995 (Act No.37 of 1995)
Amendment introduced to Sections 2, 4, 9 and 17, as well as insertion of Sections 31A, 31B,
31C, 37A, 37B. The amended Section 4(1) and its proviso, by which the appellant University
was deprived of its valuable right to hold very many programmes in the conduct of the course
enumerated in its Ordinance 15, which consequently resulted in violation of its Constitutional, as
well as Fundamental Right in the running of its educational institutions. The amended Section
4(1) under Act 5 of 2000 inclusive of the introduction of proviso to the said Section is ultra-virus
of the Constitution and the same is liable to be set aside.
In the light of our above conclusion, this appeal is partly allowed. We hold that the
amended Section 4(1) under Act 5 of 2000 inclusive of the introduction of proviso to the said
Section is Ultra-virus of the Constitution and the same is liable to be set aside. In other respects,
the judgment of the Division Bench stands confirmed. The application for intervention
considered, no merits, the same is dismissed.
6.27.6 Orissa Mining Corporation Ltd. Vs Ministry of Environment, Forest & Others145
Environmental Protection Act Alumina Refinery Project and the Bauxite Mining Project
Environmental Clearance. The blatant disregard displayed by the project proponents with regard
143. India, IP/CIW/198, IP/CIM/48, paras, 57-59. 144. CDJ 2013 SC 571. 145. CDJ 2013 SC 339.
347
to Right of the tribal and primitive tribal groups dependent on the area for their livelihood, as
they have proceeded to seek clearance is shocking. Primitive Tribal Groups have specifically
been provided for in the Forest Right Act, 2006 and this case should leave no one in doubt that
they will enjoy full protection of their Right under the law. The narrow definition of the Project
Affected People by the State Government runs contrary to the letter and spirit of the Forest Right
Act, 2006. Simply because they did not live on the hills does not mean that they have no Right
there.
The Forest Right Act, 2006 specifically provides for such Right but these were not
recognized and were sought to be denied. Direction to the State of Orissa to place these issues
before the Gram Sabha with notice to the Ministry of Tribal Affairs, Government of India and
the Gram Sabha would take a decision on them within three months and communicate the same
to the MoEF, through the State Government. On the conclusion of the proceeding before the
Gram Sabha determining the claims submitted before it, the MoEF shall take a final decision on
the grant of Stage II clearance for the Bauxite Mining Project in the light of the decisions of the
Gram Sabha within two months thereafter. The Writ Petition is disposed of with the above
directions. Communicate this order to the Ministry of Tribal Affairs, Gram Sabhas of Kalahandi
and Rayagada Districts of Orissa and the Chief Justice of High Court of Orissa, for further
follow up action.
6.27.7 Novartis AG & Others Vs Union of India & Others146
Patents Act, 1970 Section 2 (j), 3 (d) and 10. Meaning of Inventions Practice of making
trifling change to existing product and claim as it is new invention.
146. CDJ 2013 SC 255.
348
Provisions are not a provision made ex majore cautela. Section sets different standards
for qualifying as invention. Claim or coverage made in patent application. Drawing dichotomy
between claim and disclosure would negate fundamental rule underlining grant of patent. The
words known substance in Sec.2 (d) cannot be so construed as to not include substance which is
conceivable. Fact that product has enhanced physico chemical properties and increased
bioavailability does not satisfy test of enhanced therapeutic efficiency.
Before putting down the records of this case, we would like to express our deep
appreciation for the way the hearing of the case took place before the Court. Every counsel
presented the issues under consideration from a different angle and every counsel who addressed
the Court had something important and valuable to contribute to the debate. It was also
acknowledged that the illuminating addresses of the counsel were the result of the hard work and
painstaking research by the respective teams of young advocates working for each senior
advocate. The presence of those bright young ladies and gentlemen in the court room added
vibrancy to the proceedings and was a source of constant delight to us.
6.27.8 M. C. Mehta Vs Union of India and Others147
Environment (Protection) Act, 1986 Section 3(3), Section 15, Section 16, Section 17,
Section 18, Section 19, Section 20, Section 21. The main object for the constitution of the Board
as an Authority is the urgent need for regulating the indiscriminate boring and withdrawal of
underground water in the country. We have no doubt that the Authority constituted shall apply its
mind to this urgent aspect of the matter and shall issue necessary regulatory directions with a
view to preserve and protect the underground water.
147. CDJ 1996 SC 826.
349
This aspect may be taken up by the Authority on an urgent basis. The Central
Government in the Ministry of Environment and Forest shall issue the necessary notification
under Section 3(3) of the Act as directed by us before 1511997. The interlocutory application is
disposed of with the above directions.
The 22-24 March conference was supported by the Indian government for
internationalizing India’s pioneering Traditional Knowledge Digital Library (TKDL) as a
template for the benefit of developing countries seeking to protect their traditional knowledge,
according to the press information bureau of the government of India. Now, according to WIPO,
the director of the library is interested in finding ways to use the library to create new IP, within
the existing IP system, for example in open innovation models.
The conference was co-organized by WIPO and India’s Council of Scientific and
Industrial Research (CSIR). The CSIR has a somewhat checkered past in terms of representing
the Indian government with WIPO. India has been in WIPO’s sights for several years. In 2005,
India implemented a new patent law in order to comply with the World Trade Organization
Agreement on Trade-Related Aspects of Intellectual Property Right (TRIPS), creating a large
new market for WIPO activities. Western lobbyists have worked to increase understanding in
India of the potential economic opportunities in patenting, which is significant for a country that
is the leading producer of generic medicines and has a deep supply of biodiversity and traditional
knowledge.148
A recent survey of 18 most R and D intensive US industries by Levin and his colleagues
[19841] indicates that product patents were regarded as more effective than other means of
148. William New and Catherine Saez, “WIPO Connect On Traditional Knowledge Protection, With or Without
Patents”, India (2015).
350
appropriation only in the drug industry. The survey results indicate that in general, -patents were
viewed by R and D executives as an effective instrument for protecting the competitive
advantages of new technology in most chemical industries including the drug industry, but
patents were judged to be relatively ineffective in most other industries.149
While India with its vast natural resources presented attempting target the success
achieved through its small. Highly westernized elite was limited in the face of a strong
opposition from most political parties and the general post-independence nationalistic desire for
achieving self-sufficiency by utilizing the available western technology.
Medical research has provided vaccines like that for tetanus and drugs like chloro-quine
for malaria which not being under product patent are produced and sold in this country at a
remarkably cheap price through process patents. And yet hepatitis vaccine which is covered by a
patent costs up to Rs 1,500 for protection of one of the commonest diseases which affect our
people and is out of reach of all but a select few who probably least need it.
Even the indigenous herbal remedy for this disease, 'phylanthus neruri' is also being
attempted to be patented by an Australian scientist after conducting trials in India. The proposed
IPR regime would not only deny us the use of medicine derived from this plant in our country
without paying 'royalty' but would deny us the earning of profit from the sale of our indigenous
plant product to other countries.
149. Abrol, Dinesh and Menon Usha,”The New Intellectual Property Regime and Scientific and Technological Development”, Third World Patent Convention, National Working Groupon Patent Laws, New Delhi, (1990).
351
In many cases they seek ownership in the form of intellectual property Right, or IPR, and
the exclusive legal entitlement to exploit the resources and knowledge for commercial purposes
that such Right bestow look at the nature of traditional knowledge and ownership reveals that it
is no straightforward matter for indigenous peoples to seek and acquire legal protection for their
plant knowledge under the existing PIP framework. In so far as the ownership claims of
indigenous peoples are not readily protectable within the current PIP system, they lack formal
legal status altogether.
The relatively young PIP regime in place in Australia today is in line with certain
international instruments, in particular the GATT Agreement on Trade Related Aspects of
Intellectual Property Right [TRIPS] and the International Union for the Protection of New
Varieties of Plants [UPOV]. Plant Intellectual Property is implemented and regulated in
Australia by the Patents Act (1990) and the Plant Breeders Right Act (1994).150
In the case of the Arogyapachha fruit (Trichopus Zeylanicus) used by the Kani
community in India for its anti-fatigue effects, the plant came to the attention of a scientific
expedition in 1987 and was found to activate the body's natural defenses by acting on the cellular
immune system with hepato-protective, anti-peptic ulcer and cholorectic effects. The drug
Jeevani developed from this herb was patented by Kerala's Tropical Botanic Gardens Research
Institute as contemporary knowledge and the Kani community rewarded with a 50 per cent share
in royalties through a trust fund together with remuneration for participation in its expanded
cultivation and development.151
150. N. H. Antia, “Intellectual Property Right” , Economic and Political Weekly, Vol. 27, (Jul. 4, 1992), pp 1374-
1376. 151. Ajeet Mathur,”Who Owns Traditional Knowledge?, “Economic and Political Weekly, Vol. 38, (Oct. 18-24,
2003), pp 4471-4481.
352
This brought considerable prosperity to the Kani community and raised their income by
an average of about Euro 200 per month for every household May apple (Podophyllum
peltatumn) used by native Americans for centuries as an ameliorate for skin warts, ulcers and
cancerous growths is the source of Etoposide used for the treatment of cancerous growths with a
US $ 500 million world market value; Vinca alkaloids originating from the traditional medicinal
use of periwinkle have led to blockbuster drugs Vincristine and Vinblastine with estimated
global sales of $ 300 million; oil of evening primrose (Oenthera) used by indigenous populations
in the Americas for skin problems is contently marketed for eczema and pre-menstrual problems
with an estimated market of over $ 400 million; and, Australian smokebush (Conospermunm)
given by aborigines to their old folk was found to contain Conocurvone, a substance that treats
rheumatism and lumbago and destroys HIV virus in low concentrations with the predictable
outcome that a private Victorian firm Amrad financed by an American Institute now pays
Australian $100 million.152
Three well known cases of biopiracy in the 1990s are worth recapitulating. The European
Patent Office granted Patent No 436 257 B1 to W R Grace and Company for their 'discovery' of
fungicidal effects of neem oil. The patent was challenged by the government' of India through its
Council of Scientific and Industrial Research on grounds of it being part of India's traditional
knowledge. The patent could not be maintained for lack of novelty and inventive step and the
European Patent Office annulled the patent through a judgment in September 1997. In this case,
the challenge to the patent on behalf of the traditional knowledge holders succeeded because
there was a record of the traditional knowledge being known and used in India.
152. McConnell F, “The Biodiversity Convention: A Negotiating History”, Kluwer , London, (1996).
353
European Patent Office been required by European Law to take into cognizance only that
prior art which is published within its own jurisdiction, the outcome of this case could have been
different.In the instant case, the application itself admitted that turmeric had been used as a
traditional medicine in India. The challenge to the patent was mounted on the basis of an ancient
Sanskrit text that attested to the non-contemporary nature of the knowledge held in the public
domain for a long time. A paper published in 1953 in the Journal of the Indian Medical
Association was further cited as proof of 'prior art.153
The Indian experience concerning the patents granted on TK like neem and turmeric "as
it is" in the US and European Patent Offices154 or for that matter the Australian Aboriginal
copyright claims155 against the misappropriation of Aboriginal symbols have helped foreground
the needs and expectations of developing countries and related indigenous and local communities
in this area.
153. Posey, D A and G Dutfield, “Beyond Intellectual Property: Toward Traditional Resource Right for Indigenous
Peoples and Local Communities”, IDRC, Ottawa, (1996), p 4. 154. The experiences in fighting against bio-piracy made the developing countries aware of some of the
shortcomings in the patent system regarding prior art in TK and in the way different patent office treat issues of prior art, novelty and inventive step. For instance, the patent application based on the chemical properties of azadirachta indica (i.e., a method for controlling fimgi on plants with the aid of the extracted hydrophobic neem oil) was rejected by the Board of Appeal of EPO for lack of inventiveness (ThermoTrilogy Corp. vs. Aelvoet Magda, Case No. T-0416/01, Bd. of Appeal, Eur. Patent Office,( 2005).
155. In response to unauthorized reproduction of paintings made by Australian Indigenous persons by nonindigenous persons indigenous, copyright claims were filed in Australian courts with mixed results. See M*, Payunka Marika & Ors. vs. Jndofurn, (1994) 30 IPR 209; Bulun Bulun vs. R & T Textiles Pty Ltd,(1998)157 ALR 193. Though the court acknowledged the possibility of "communal harm" through unauthorized access to sacred aboriginal works, copyright claims were not upheld. The Australian case of Yumbulul vs. Reserve Bank of Australia, (1991) 21 I.P.R. 481 however points to the possibility of copyright claims even in aboriginal art. This case arose after the Reserve Bank of Australia was licensed by an agentacting for a Mr. Terry Yumbulul to reproduce his design "Morning Star Pole" on a commemorative ten dollar bank note. It is the traditional understanding that the Morning Star Pole is imbued with the power to take the spirits of the dead to the Morning Star, which will return to their ancestral home. Yumbulul came under considerable criticism for allowing the bank to reproduce the design. The case was interesting in so far as the court recognized that the Pole was an original artistic work in which copyright subsisted, although Yumbulul had obtained his authority to create this design only through initiation and revelatory ceremonies in his clan, the Galpu.
354
Communities are notoriously difficult to define, as the abstract identification is likely to
bear little resemblance to the practical social reality at a given space and time.This further
complicates issues relating to identification and representation as has been demonstrated in some
practical real life case such as the failure to account for all members of the Kani Tribe in benefit-
sharing arrangement156 struck by the Tropical and Botanical Garden Research Institute in Kerala,
India; the case relating to the construction of the Hindmarsh Island Bridge in Australia and the
broader concern over indigenous.157 The fact that indigenous communities are taken to all fall
into the small class, without room for differentiation is believed to be unrealistic.158
Concepts denoting unity that are both ideational and systematic serve the dual role of
inscribing ideational sameness within a population, and difference between one population and
another. However a stress on homogeneity is at the expense of recognition of the disorder that
can also be observed with a society or culture, and of the ideational diversity pertaining between
its members.Coupled with this possibility of vacuum or alternatively contested representation is
the questionable role of the state in guarding interests of indigenous and traditional cultural
groups. 159
156. Anuradha, R.V, Taneja, Bansuri and Kothari, Ashish, “Experiences with Biodiversity Policy-Making and
Community Registers in India”. Participation in Access and Benefit-Sharing Policy, Case Study No. 3, London: International Institute for Environment and Development, (2001).
157. Chapman vs. Luminis Property Limited (No.5), (2001) FCA 1106. 158. Helliwell, Christine and Hindess, Barry, "Culture", "Society" and the Figure of Man", History of the Hutiuln
Sciences, I2 (4): I (1999). 159. For differing views on the adequacy of State-created aboriginal institutions to represent indigenous people in
Australia, see Dodson, Mick "Towards the Exercise of Indigenous Right: Policy, Power and Self Determination," Race and Class, Apr.-June 1994: 65 and Coe, Paul "ATSIC: Self-Determination or Otherwise," Race and Class, (1994), p.35.
355
Over 80 GIs of Indian origin have already been registered with the Indian GI Registry.
These include GIs like Darjeeling (tea), 'Pochampalli' Ikat (textiles), 'Chanderi' (saree),
'Kancheepuram silk' (textiles), 'Kashmir Pashmina' (shawls), 'Kondapalli' (toy),
'Mysore'(agarbathi). There are many more Indian GIs in the pipeline for registration under the GI
Act. This is believed by some to be a positive step on the part of the right holders of potential
GIs of the country160. However, certain experts working with traditional folk artists have
expressed concern over the nature of GIs: "It is too severe to say you can't produce because you
don't belong there161.
The Action Plan from the Stockholm Conference (1998) makes this point clear when
recommending Member States to promote cultural and linguistic diversity, local cultures and
languages and also encourage cultural diversity and traditions as part of their development
strategy.
Community-based organizations like the Self-Employed Women's Association (SEW A),
involving craftspeople have helped convert traditional skill into a major livelihood activity in
drought prone areas of Gujarat 162.
The Rajasthan government's Rural Non-Farm Development Agency (RUDA) was set up
to promote micro enterprises in the state, with the primary mandate to create alternate avenues of
employment and generate alternate income with focus on certain sectors interalia comprising of
handicrafts, khadi and village industries.163
160. Jain, Rahul, Textile Technologist and Hand-weaver, New Delhi, 18 November (2008). 161. Sunder, Madhavi "The Invention of Traditional Knowledge", Law and Contemporary Problems, 70(2): (2007),
p.97. 162. Nanavathy, Reema "Challenges and Opportunities",Yojana, (2005), pp 13-55. 163. Dubashi, Medha ,"The Mojari Experience", Yojana, February( 2005), pp 43-50.
356
RUDA's intervention in the '"Mojari" cluster groups in Udaipura, Rajashthan persuaded
the producers of these ethnic footwear to seriously consider the standardization of size and
fittings in their products, adapt alternate stitching patterns and materials to provide better fits and
comfort levels as also adopt a wider canvass of colours, patterns and textures that would cater to
the tastes of international buyers.
WIPO forums have continued to consider ADR as a possibility in the development of
norms and practical legal mechanisms to deal with the protection of TK, TCEs and GR. Asian
countries have called upon WIPO to explore the use of ADR in relation to TK CEs/GR, both in
the context of a regional statement, and a "Position Paper of the Asian Group and
China" 164which called on WIPO to 'study possibilities of offering alternative dispute resolution
services, including but not limited to arbitration and mediation, which are particularly
appropriate for the problems involving intellectual property issues related to traditional
knowledge and folklore.'
This has also been supported by the Group of Latin American Countries (GRULAC)
(WIPO/GRTKF/IC/1/5, 2001, Annex 1: 9) and the African Group. A panel at the WIPO Asia-
Pacific Regional Seminar on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore, held in November, in Cochin, India, further explored this possibility.
In India, the National Museum, New Delhi, is the biggest Indian Museum which holds
variety of articles ranging from pre-historic era to the modern work of art. It has 2, 00,000 works
164. WIPO ,”Traditional Knowledge and the Need to Give it Adequate Intellectual Property Protection, WIPO
Committee on the Relationship between Intellectual Property, Genetic Resources and Traditional Knowledge”, First Sess., April 30-May 3, 2001, WIPO/GRTKF/lC/1/5, WIPO Secretariat: Geneva, (2001).
357
of exquisite art, both of Indian and foreign origin covering more than 5,000 years of Indian
cultural heritage. Its rich holdings of various creative traditions and disciplines, represents a
unity amidst diversity and a rich blend of the past with the present.165
Preservation of the cultural dimensions in India are other organizations like the Indian
National Trust for Arts and Cultural Heritage (INTACH), the Indira Gandhi National Centre for
the Arts (IGNCA) and the Archives of Ethnomusicology at New Delhi.
The TKDL initiative by India is perhaps "the most self-conscious example" of modem
twenty-first century archives creation to make traditional knowledge inalienable from the public
domain.166Considering the unintended yet serious consequences of documenting TK and related
TCEs, holders of TK and genetic resources have asked WIPO, since 1998, for practical guidance
on IP aspects of documentation. In response to these needs, the WIPO IGC considered the
following proposal to develop a 'toolkit' at its third session in June 2002.
165. Other examples of museums in India preserving traditional and folk art include, the Museum of Folk and Tribal Art at Gurgaon, Haryana, established in 1984 by Mr. K.C. Aryan. The Museum contains various types of woodcraft objects, iron vessels, religious art objects like masks, "patakas" or paintings of Hindu deities etc., terracottas-both painted and unpainted, painted toys from Banaras, folk and tribal jewellery, murals from Himachal Pradesh, "phulkaris" ("flower working" embroidery technique) from Punjab, "kanthas" (running-stitch embroidery craft) from Bengal, hangings from Gujarat. shawls from Swat (North West Frontier Province) and lithographs from Amritsar. The aim of the museum "is to preserve art objects of rural and tribal flavour, to integrate scholarship with activism, aesthetic appreciation, create awareness amongst the masses as to the importance of these art objects." Besides educational and cultural motives, it also seeks to "promote tourism and earn foreign exchange for the country." The Folklore Museum in Mysore is also worthy of mention. Located in the Mysore University campus at Manasagangotri, the exhibits at the museum include an excellent collection of carved wooden figures from the different villages of Karnataka, rural costumes, utensils, ornaments, metal artifacts, implements and tools used in different rural professions. This Indian museum has 6500 folk art and folklore articles on display and the museum is celebrated as one of the largest of its kind in Asia.
166. Reddy, Sita, "Making Heritage Legible: Who Owns Traditional Medical Knowledge?” International Journal of Cultural Property , 13: (2006), pp 161-188.
358
One very practical contribution that the Committee could make would be to consider in
more detail the intellectual property implications arising out of the recording of traditional
knowledge. For instance, the Committee could consider the compilation and publication of an
"Intellectual Property Documentation Toolkit for Traditional Knowledge Holders. Not only
could this Toolkit inform and educate traditional knowledge holders and their representatives of
the intellectual property implications of publication of traditional knowledge, and thereby enable
any consent to such publication and dissemination to be informed consent, but the Toolkit could
also place a particular, and very pertinent, emphasis on the intellectual property implications of
recording traditional knowledge (whether in a written format, by audio-tape or by video-tape) by
traditional knowledge holders themselves" .167
Cultural organizations within a country may also play an important role in preserving and
simultaneously maintaining the vitality of cultural traditions and arts. The GOI established the
Lalit Kala Akademi (LKA) in 1954. Other key organizations in the realm of the performing arts
include the Sangeet Natak Academy (SNA) and the National School of Drama (NSD).
6.28 Patent of Basmati Rice
6.28.1 Research Foundation for Science Technology & Ecology versus Ministry of
Agriculture
Petitioner filed writ petition seeking to take action to protect biodiversity of India and to
challenge the patenting of Basmati rice.168
167. WIPO, “Inventory of Traditional Knowledge-Related Periodicals”, 3rd Sess., WIPO/GRTKF/3/5, WIPO Secretariat, Geneva, June 13-21, (2002).
168. (1999) 1 SCC 655.
359
It was contended by the Attorney General that a draft outline of the proposed biodiversity
legislation had been circulated and comments had also been received from various quarters and
insofar as the patent of Basmati rice is concerned, the Government of India has already taken
various steps in the matter to challenge the grant of patent-Purpose of petition served and
accordingly disposed of169.
The long grain aromatic rice grown only in Punjab, Haryana and Uttar Pradesh is called
Basmati. According to sources from the Indian Newspaper, Economic Time, “Patenting Basmati
in the US is like snatching away our history and culture”. Basmati rice means the “queen of
fragrance or the perfumed one”. This type of rice has been grown in the foothills of the
Himalayas for thousands of years.
According to the Agricultural and Processed Food Products Export Development
Authority (APEDA), India is the second largest producer of rice after China, and grows over a
tenth of the world’s wheat. In 1993, Basmati rice attracted the highest premium because it is very
long grained rice, with an aroma of its own which enhances the flavors it is mixed with.
India and Pakistan who are joining hands to tackle the crisis have a strong case against
Rice Tec Inc. British traders are also supporting India and Pakistan. According to Howard Jones,
marketing controller of the UK’s privately owned distributor Tilda Ltd., “True Basmati can only
be grown in India or Pakistan. We will support them in any way if it is necessary”. The Middle
East is also showing support by only labeling India or Pakistani rice as Basmati.
169. Manish Arora, Universal’s Guide to Patents Law, (4th Edition, Universal Law Publication Co. Pvt.Ltd. Delhi, 2007), p.236.
360
The case is still unfolding and it will be interesting to find out what happens in the end
once the government and government agencies have gathered the necessary date and information
to support their case and to prevent their cultural heritage from being taken away from them.170
6.29 Protection of New Plant Varieties and Farmers Right
Registration of new plant varieties
The legislation enacted by India called Protection of New Plant Varieties and Farmer’s
Right has three objectives
• To protect and benefit the breeders of new plant varieties,
• To protect and benefit the farmers as cultivators and conservers of traditional local plant
varieties which may be used in the development of new varieties and
• To encourage the growth of seed industry through domestic and foreign investments so as
to ensure supply of high quality seeds and planting material to the farmers171
The Basmati controversy was an eye opener and India enacted the Geographical
Indications of Goods (Registration and Protection) Act, 1999 (hereinafter an Act). This is the
first specific law which provides for the registration and protection of geographical
indications.172
170. Case No 493, Indian Appeal against US Basmati Rice Patent, 1998, available at http//www.indiaserver.com,
Case Study, (1998). 171. N.K. Acharya, Text Book on Intellectual Property Right, (6th Edition, Asia Law House, Hyderabad, 2012), p.198. 172. Ahuja.v.k, “Protection of Geographical Indication National and International Perspective”, 46 JILI, ( 2004), pp 273-274.
361
It recognizes the role of farmers as cultivators and conservers and the contribution of
traditional rural and tribal communities in the country’s agro-biodiversity by making provision
for benefit sharing and compensation and also protecting the traditional Right of farmers.173
A tree legendary to India has been used as a bio-pesticide and medicine in India for
century’s174.Ancient Indian Ayurvedic texts have described the Neem tree and it’s medicinal
healing properties as far back as 5000BC. The European patent office (EPO) revoke in its
entirety patent number 436257 which had been granted to the united states of American and the
multinational corporation W.R. Grace for a fungicide derived from seed of the Neem tree.
Despite Neem’s ancient tradition, over 12 US patents were recently taken out Neem-based
emulsions and solutions.
In Africa alone, 80% of the population relies on traditional remedies to combat disease.175
The “Value” of traditional knowledge is being applied in the fields of botanical, pharmaceutical,
agricultural, biotechnological and genetic research.176ABS is implemented under Article 15 of
CBD under which national governments are required177 to establish domestic laws and policies
to allow access to genetic resources. It aims to eradicate the evils of bio-piracy as well as protect
the interests of TK holders.178
173. S.k. varma, “Access to Biological and Genetic Resources and their Protections”, 43 JILI, (2001), p.14. 174. Shiva, Vandana, “Indigenous Knowledge and IPRs” Bio-piracy, The Plunder of Nature and Knowledge, South
End Press, Boston, p.69. 175. WIPO, “Intellectual Property Needs and Expectation of Traditional Knowledge Holders”, WIPO Report on
Fact- Finding missions on Intellectual Property and Traditional Knowledge, (1998), p25 176. Biodiversity, “Bio technology and the Protection of Traditional Knowledge”, Washington, University in ST.
Louis School of Law, Conference, April, (2003), pp 4-6. 177. R. D. Singh, S.K. Mody, H. B. Patel, Sarita Devi, C.M. Modi and D.R. Kamani, Pharmaceutical Biopiracy and
Protection of Traditional Knowledge, International Journal of Research and Development in Pharmacy and Life Sciences, India, February - March, 2014, Vol. 3, No.2, pp 866-871. Received: November 31, 3013; Accepted: January 23, 2014.
178. Udgaonkar S. (2002) the recording of traditional knowledge: Will it prevent ‘bio-piracy’? Current Sci. 82(4): pp 413-419.
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India is one of the 17 mega-biodiversity countries with 2.4 per cent of the global land
area and accounts for 7 to 8 per cent of the recorded species of the world, making it more prone
to bio-piracy. 179It was based on traditional knowledge known to the country for generations. In
1995, two expatriate Indians at the University of Mississippi Medical Centre were granted a US
patent (no. 5,401,504) on use of turmeric in wound healing. The patent granted on was Neem
was revoked by the EPO in May 2000.180
6.29 Protection of Plant Varieties and Farmers Right Act (2001)
The Indian legislation for the Protection of Plant Varieties and Farmers’ Right Act, 2001,
also acknowledge that the conservation, exploration, collection, characterization, evaluation of
plant genetic resources for food and agriculture are essential to meet the goals of national food
and nutritional security as also for sustainable development of agriculture for the present and
future generations.
Interestingly, the Supreme Court of India, in its various judicial decisions has
categorically accepted the concept of Sustainable and its legal components are law of the land.181
179. Atlee W. C., Vasudevan M., Ubaidulla U., “Study of Drug-Drug Interaction on the Management of
Hyperlipidemia Disease: Simvastatin and Ezetimibe”, Int. J. Res. Dev. Pharm, L. Sci., (2012), 2 (2), pp 383-386.
180. Chouhan VK. ,”Protection of Traditional Knowledge in India by Patent: Legal Aspect”, IOSR Journal of Humanities and Social Science, 3(1), (2012), pp 35- 42.
181. A. David Ambrose, “International Environmental Law and India”, Bimal N. Patel (Eds.,) India and International Law, Koninklijke Brill NV Printed, The Netherlands, (2005), pp 249-264at 261: A. David Ambrose, “Social Justice Through Environmental Protection; The Role of Indian Judiciary”, Dr. T. Suryanarayana Sastry, (Ed.,) Fifty Years of Indian independence and The Polity (1998) Chapter X, pp 95-111 and Moumita Das and Padmini Singh, “Sustainable development & Environmental Law: India-Australia Experience:” 45 IJIL (2005) pp 243-253.
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6.30 National Sovereignty over Plant Genetic Resources
The sovereign right of a state over its territory, including its natural resources, is a well-
established principle in international law.182 The CBD as well as the IUPGR (through Resolution
3/91) are premised on the concept of the sovereign Right of states to exploit their own resources
according to their own policies.
The Convention explicitly infers from this right the authority of states to determine and
regulate access to their genetic resources. Although this principle of sovereignty over genetic
resources had already been stated by the UN Conference on the Human Environment in
Stockholm in 1972, it is to the Convention's credit that it has enshrined this principle for the first
time in a provision of a binding international treaty.
While the sovereign right of states over their genetic resources is no longer questioned, it
should be noted that it may be very difficult to exercise this right in practice. Difficulties in
exercising a right do not limit the right as such; they may, however, render this right less
significant.183
6.31 Exclusiveness of the Sovereign Right
The significance of a country's right to determine access to its genetic resources greatly
depends on whether this right is exclusive. The fact that genetic resources are replicable and that
many genes occur in more than one country has considerable implications for the realization of a
country's sovereign right over its genetic resources.
182. Correa, C.M, “Sovereign and Property Right over Plant Genetic Resources”, FAO Background Study Paper
No. 2, Commission on Plant Genetic Resources – First Extraordinary Session, 1994b. 183. Dan Leskien and Michael Flitner, “Intellectual Property Right and Plant Genetic Resources: Options for a Sui
Generis System”, Jan Engels, Issues in Genetic Resources No. 6, June (1997).
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While in such cases one may argue that each of the two or more countries of origin have
sovereign Right separately, it is also clear that these Right do not extend to each other's
resources. Thus, sovereign Right over genetic resources can be of an exclusive nature only if the
resources occur in not more than one country, or if all countries of origin have agreed to exercise
their Right jointly.
6.32 Controllability of Access to Genetic Resources
A further difficulty for countries to exercise their sovereign right over genetic resources
is due to the enormous problems of controlling access to genetic resources. There is evidence
that in the follow-up to the entry into force of the CBD, a growing number of countries have
started to regulate access to their genetic resources.184 In fact, many developed as well as
developing countries had such legislation in place long before the CBD explicitly reaffirmed
their competence to regulate access.185However, as is the case with laws in general, access laws
are only as good as the possibilities to control compliance with them.
Finally, the sovereign right over plant genetic resources is limited by two further
important factors which are explicitly mentioned in the CBD. Firstly, the sovereign right must be
exercised in accordance with the Charter of the United Nations and the principles of international
law. Secondly, the right of states to exploit their own resources does not affect their
responsibility to ensure that activities within their jurisdiction or control do not cause damage to
the environment of other states or of areas beyond the limits of their national jurisdiction.
184. Barber, C.V. and a. La Vina, “Regulating Access to Genetic Resources: The Philippine Experience”, Paper
presented at the Global Biodiversity Forum, Jakarta. 1995, pp 4-5. 185. Ajal, Q, “Regulating Access to Nigeria’s Genetic Resources: Issues in the Emergent Law and Implications of
Article 15 of the convention on Biological Diversity for National Legislation”, Paper presented at the Global Biodiversity Forum, Jakarta, (1995), pp 4-5.
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6.33 Access to Plant Genetic Resources on Mutually Agreed Terms
The sovereign right of states over their plant genetic resources implies the right to grant
or refuse access to plant genetic resources. The IUPGR does not use the expression 'free access’
in its main text. Instead, it specifies the conditions under which states are required to allow
access to samples of their genetic resources and to permit their export, where the resources have
been requested for the purposes of scientific research, plant breeding or genetic resource
conservation. It has been argued that the Undertaking clearly excludes access with the aim of
reproducing the materials for commercial purposes, such as for propagating.186 While this is
formally correct, the line between commercial and breeding purposes may sometimes be difficult
to draw.
All three ways to make plant genetic resources available are also allowable under the
CBD which, however, only explicitly mentions the last option: Art. 15 (4) makes mutual
agreement on terms a condition for access to genetic resources. Additionally, Art. 15 (5) CBD
offers contracting parties the option to make access to genetic resources subject to their PIC. As
a means of ensuring compliance with bilateral or multilateral access agreements or with a state's
national legislation, the PIC procedure may be an appropriate though not the only conceivable
instrument.187
186. Correa, C.M, “Sovereign and Property Right over Plant Genetic Resources”, FAO Background Study Paper
No. 2, Commission on Plant Genetic Resources – First Extraordinary Session, (1994b). 187. The agreement between FAO and the CGIAR Centres Holding Genetic Resources makes the granting of access
to designated germplasm conditional on a further requirement, i.e. that any entity receiving samples shall not claim legal ownership over the samples received and shall further ensure that this condition is respected in transfers to third parties (cf. Barton and Siebeck, 1994).
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The CBD, the IUPGR and the Code of Conduct make access to plant genetic resources
conditional on reaching mutually agreed terms, and, thus, imply negotiations between the party
granting access and another entity desiring access.188
The negotiators of the CBD left it up to the Convention Parties to decide on how the
provisions on access to genetic resources and on PIC are to be implemented. In particular, the
Convention does not include any provisions on the actual contents of possible access agreements
nor does it give any hint on how the PIC procedure should be implemented. Although the
Convention leaves considerable discretion to the negotiators 189 the terms to be agreed have to be
consistent with the obligations and general aims of the CBD.
6.34 Prior Informed Consent
The principle of prior informed consent (PIC) is inextricably connected with the
requirement of mutually agreed terms as set out above. Depending on the terms for access and
use, PIC will be given or not. So far the PIC procedure has only been used for dangerous
substances. The best-known convention requiring PIC of the importing country is the Basel
Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their
Disposal [28 I.L.M. 649 (1989)].
Two further non-binding instruments using the PIC principle, the FAO International
Code of Conduct on the Distribution and Use of Pesticides and the UNEP London Guidelines for
the Exchange of Information on Chemical sin Trade, also focus on dangerous substances
exclusively.
188. Glowka, L. et al, Guide to the Convention on Biological Diversity, IUCN , Gland / Cambridge, (1994). 189. Ibid.
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While these instruments use the PIC requirement in order to give countries the choice of
whether importation of certain dangerous substances shall be allowed, the PIC requirement as
provided for by the CBD will mainly have to serve as an instrument to control export and as a
tool for negotiations on the conditions under which access is granted and export permitted.
The Himalayan region is rich in biological resources and traditional knowledge. In
former times, and still today, traditional knowledge and practices provided the basis for the
wellbeing and livelihoods of the indigenous mountain communities, maintaining their health and
replenishing the environment. In modern times, traditional knowledge and biological resources
have been used by the food industry, the pharmaceutical industry, and the cosmetic industry, and
there is a long history of traditional knowledge in the evolution of modern food crops. Farmers in
the Himalayan region domesticated and developed carrots, mustard, gooseberries, apples, pears,
apricots, oranges, lemons, and cardamom. Similarly, the use of herbal medicine dates back as far
as the Indus Valley civilization in 2600 BC; Chinese medicine and Ayurvedic medicine
developed by local people are still used today.
This kind of traditional knowledge is very important to modern pharmaceutical research
in that it works as an initial screen and can help isolate the medically significant properties of
plants and animals. Several modern drugs, including anti-cancer drugs, antibiotics, malaria
drugs, and analgesics, were developed from plant and animal resources based on traditional
knowledge.
In the Philippines, for example, indigenous local communities are entitled to this through
the requirement of ‘prior informed consent’. In Peru, compensation to local communities for the
use of traditional knowledge, even if it is within the public domain, is provided for by national
policy.
