Nlsiu Tk Bill Draft

The Proposed Traditional Knowledge Legislation 2010 IPR Chair, CIPRA ‐NLSIU

THE TRADITIONAL KNOWLEDGE (Protection and Management) ACT 2010

THE T LEDGE (Protection and RADTIONAL KNOWManagement) ACT 2010

Preliminary: An Act (Act presently) to provide for protection, conservation and effective management of traditional knowledge and for matters connected therewith or incidental thereto, Objectives of the Act: (Preamble) : WHEREAS India is rich in traditional knowledge systems and that the traditional knowledge represents an important part of the living heritage of India, developed and maintained by communities within the Indian territories or by individuals reflecting the expectations of those communities,

AND WHEREAS the forms of traditional knowledge have the potential of wealth creation for communities and the nation and the traditional knowledge needs to be conserved, protected and promoted for the cultural enjoyment of all peoples and commercial gain for the knowledge holders,

AND WHEREAS there is a need for the protection of traditional knowledge and the rights of the traditional communities to practice, use, share and sell the products of the use of traditional knowledge as per their customary practice AND WHEREAS there exists a need to protect the integrity and sentiments of communities against distortions and disrespectful representations of forms of traditional knowledge and that the improper commercial exploitation of forms of traditional knowledge is prejudicial to the interests of communities and the nation,

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AND WHEREAS there is a need for sustainability of resources on which the traditional knowledge are based, as well as to ensure the continuum of the customary practices of the traditional knowledge, and to have a regulated and responsible access to the traditional knowledge of India by assessors other than traditional communities, AND WHEREAS there is need to ensure that the traditional knowledge or the components thereof are accessed only with the consent of the traditional communities and to regulate third parties wishes to research, access or utilize traditional knowledges; there is sustenance of life and livelihood of traditional practitioners AND WHEREAS India is a party to the United Nations Convention on Biological Diversity and the Convention requires members to respect, preserve and maintain knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles, promote their wider application and encourage equitable sharing of the benefits arising from utilization of such knowledge, innovation and practices.

AND WHEREAS it is necessary to provide for a regulatory authority to function as a watch dog for better resource management and effective implementation and there is a need for non-centralized community decision making system AND WHEREAS there is need for a comprehensive legal framework for conserving, protecting and promoting the Traditional knowledge and safeguarding the interest of traditional knowledge holders Be it enacted this by the Parliament this sixtieth year of Republic of India, as follows.

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Chapter 1 Short Title, Commencement, Applicability:

1. Short title, extent and commencement : (1) This Act may be called the Traditional Knowledge

(Protection and Management) Act 2010 (2) It extends to the whole of India (3) It shall come into force on such date as the Central

Government may, by notification in the Official Gazette, appoint.

Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of Act shall be construed as a reference to the coming into force of that provision.

Chapter 2 Definition and interpretation

2. Definitions (1) Abuse means use or application of the traditional

knowledge or one or more of its componen ts, by any person, including a member of the traditional community or a traditional practitioner, in a m anner that is in contravention of their traditional beliefs and (a) against public order and morali ty, health,

environment and ethics, or (b) against the interests of the traditional communities

or, (c) any action in contravention to the provis

ions of this

Act.

(2) Access: means acquisition of information p

ertaining to

Traditional knowledge for commercial gain or purposes of scientific research, technological development or biological prospection, with a view to commercial gain (3) Accessor means a person who accesses traditional knowledge for commercial gain and /or for research, and includes members of traditional communities who access

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traditional knowledge of any other community for commercial gain and /or research

(4) Benefit means gains that can be mon etary, non-monetary, welfare-based and any other form that comes out of an agreement between the accessor and the TC and / or Traditional Knowledge Authority u

pon access

of TK or a component thereof. (5) Benefit sharing fee means any benefit, f

inancial or

otherwise, that may accrue to the Traditional Community or to the Traditional Knowledg e Fund, as the case may be out of efforts at commercializ ation of one or more components of traditional knowled ge and may include royalty.

(6) Biopiracy means the commercial utilization of naturally

occurring biological materials, such as plant substances or genetic cell lines, by a person(s) without d ue benefits to the traditional community(ies) or nations frpm where the materials were obtained.

(7) Chairperson means the Chairperson of the Traditional

Knowledge Authority (8) “Collective rights” mean the rights which th

e traditional

community as a group has been holdin g over the particular traditional knowledge for generations;

(9) “Commercial gain” means commercializ ation of a

compon ent or components of traditional knowledge or derivatives thereof, in a way that is not bein g practiced for livelihood by the community which own s the said knowledge;

(10) Commissioner means the commissioner of the State TK Authority. (11) Informed consent means to consent to be obtained from the traditional community in case where the traditional knowledge is already under access and use before the notification of this Act.

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(12) Intellectual Property Rights (IPR) means to intellectual prop erties including patents, copyrights, trademarks and designs.

(13) License of Use means to the permission granted by

way of an agre ement to the Accessor by the TK Authority for accessing the TK.

(14) License of Use Agreement means

to the agreement

detailing of the access fee, terms and co nditions of access, benefits and the benefit sharing fee

(15) “Misappropriation of traditional kn owledge”

means any form of appropriation, mon opolisation, including claims of private ownersh ip and/or intellectual property rights, and such other acts which deprive the traditional community whose traditional knowledge it is, from using, conserving and protecting the said knowledge, and from equitable ben

efit sharing

arising out of any commercial utilization of sa id traditional knowledge and /or derivatives t hereof, and also unsustainable utilisation of t he genetic resources

relating to that traditional knowledge

(16) Live lihood means to the financial and/or other traditional / customary means for subsistenc e.

(17) Person includes any natural or legal entity, and Government.

(18) Prescribed means the proceedings prescr

ibed by the

Rules and Regulations under thi s Act (19) Prior-informed Consent means to consent to be obtained from the traditional community for access by way of license to use the said Traditional Knowledge under Chapter …., sections …

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(20) Traditional Community includes a group of people or family sharing common language, custom s, traditions and other distinctive traits and who have , since time immemorial occupied, possessed and utilized a territory except when such possession is either pr evented or interrupted by war, force majeure, displaceme nt or force, deceit or stealth or other usu rpation. The Traditional community includes tribes mentioned u nder the Consitutiion of India as “scheduled tribes

(21) Traditional Knowledge means the collective

knowledge of a traditional community of a fa mily related to a particular subject or a skill passed down from generation to generation and includes, but no t limited to • Cultural produc ts and practices from Traditional communities

such as weaving patterns, pottery, painting, po etry, folklore,

music, wood works, handicraft, jewellery, metal wares, musical

instruments and the like;

• Genetic material discovered, selected,

cultivated,

domesticated, developed or conserved b y Traditional

Communities, regardless of of wh ether they used or can be

used in the development of new plant varie ties or animal

breeds or which can be harnessed for other pote ntial uses; • agricu ltural practices and devices developed from the

indigenous or traditional material, customs and • medicinal products and processes developed fr

om indigenous

or traditional material, customs and knowledge by Traditional

Communit ies; • all other products or processes not made by per son which was

discovered through a community process, or wh en the person

making the innovation does not claim the knowledge as his

own or when the person has discovered it to be used openly for

common purposes • Discoveries, innovations and technologies made by

communities that are usually not recorded in written form and

are transmitted orally from generation to generation,

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• Method of protection of environment such as soil conservation,

crop rotation, food grain storage, water preservation and the

like

(18) Traditional Knowledge Authority: means th e National Traditional Knowledge Authority establish ed under Section ….. .

(19) Traditional practitioner means persons who are

members of a traditional community and have been practising traditio nal knowledge including healing and/or rendering medical service based on traditional knowledge and customary practice.

Rights and Duties of the Traditional Comm

unities:

3. Rights and duties of Traditional Communities

Chapter 3 :

(1) Every member of a Traditional Community shall have the right to practice their own traditional knowledge

(2) Every member of a traditional community shall have a right to use, modify or derive benefits from their own traditional knowledge for their livelihood Provided the use modified or otherwise is carried out in a sustainable manner;

(3) Collective Traditional knowledge forming part of

cultural heritage of traditional community shall be inalienable.

(4) No member of any traditional community shall be barred from accessing or practicing the traditional knowledge of another traditional community for earning their livelihood.

(5) Where the Traditional Community as a whole, or a member of the Traditional Community has provided an informed consent to an Accessor and/or entered into a License to Use Agreement with the said

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Accessor, the said Traditional Community or a member thereof has a duty to inform the Traditional Knowledge Authority along with the details of the said agreement

(6) Every member of the community shall ensure the continuum of the practice of TK and the conservation of associated resources from undue exploitation and its possible extinction.

Chapter 4 Establishment of Traditional Knowledge Authority

4. Traditional Knowledge Authority and offices thereof: (1) For the purpose of this Act there shall be established a

Authority which shall be known as the Traditional Knowledge Authority.

(2) The Head Office of the TK Authority shall be at such place as the Central Government may, by notification in the official Gazette specify.

(3) There shall be a seal of the TK Authority. (4) The central Government may, as a transitional measure,

designate any existing Authority to function as TK Authority.

5. composition of the TK Authority: (1) The TK Authority shall consist of the following

Members, namely (a) A Cha

irperson, who shall be an eminent person having adequate knowledge and exper ience in the matters related to traditional communities, conservation and sustainable use of traditional

knowledge and , to be appointed by the Central Government;

(b) A Member Secretary who will be the Registrar of TK

(c) Ex-officio members to be appointed by the Central

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Government, one each are representing the Ministry of Tribal Affairs, the Ministry of Environment and forest, Ministry of Health and Family

Welfare,

Ministry of Culture, Ministry of A griculture, Ministry of Tourism and Ministry of Water Resources.

(d) Appropriate numbers of non-official mem

bers to be appointed from amongst members of various communities representing the TK sectors, experts and civil society representatives havi

ng special

knowledge of, or experience

in matters relating to traditional communities, and conservation and

sustainable use of traditional knowledge.

6. Conditions of service of Chairperson and Me

mbers: The

term of office and conditions

of service of the Chairperson and the other members other than ex officio members of the

Traditional Knowledge Authority shall be such as may be prescribed by the Central Government.

7. Chairperson to be chief executive of TK Authority

: The Chairperson shall be the Chief Executive of the Traditional Knowledge Authority and shall exercise such powers and perform such duties, as may

be prescribed.

9 Members: The Central Government may remove . Removal of

from the Traditional Knowledge Authority, any member who, in its opinion, has –

(1) been adjudged as an insolvent; or

(2) been convicted of an offence which involves moral turpitude; or

(3) become physically or mentally incapable of acting as a

member; or

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(4) so abused his position as to render his continuance in office detrimental to the public interest; or

(5) acquired such financial or other interest as is likely to affect prejudicially his functions as a member.

10. Meetings of TKA :

(1) The Traditional Knowledge Authority shall m

eet at least

four times in a fiscal year at such time and plac

e and shall observe such rules of pr ocedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be prescribed.

(2) The Chairperson of the Traditional Knowledge Authority shall preside at the meetings of the Traditional

Knowledge Authority.

(3) If for any reason the Chairperson is unable to attend any

meeting of the Traditional Knowledge Authority, any member of the Traditional Knowledge Authority chosen by the members present at the meeting shall preside a t the meeting.

(4) No act or proceeding of the Traditional Knowledge Authority shall be invalidated merely by reason

of –

(a

) any vacancy in, or any defect in the constitution of, the Traditional Knowledge Authority; or

(b) any vacancy in, or any defect in the constitution of, any

defect in the appointment of a person acting as a member; or

(c) any irregularity in the procedure of the Traditional Knowledge Authority not affecting the merits of the case.

11. Committees of the TK Authority: (1) The Traditional Knowledge Authority may constitute a

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committee to deal with any matter under this Act (2) Without prejudice to sub-section (1) the Traditional

Knowledge Authority may constitute such

number of committees as it deems fit for the discharge of its duties and performance or its functions under this A ct or upon the taking up of any proceeding under this Act, including matters taken into account suo m

oto by the

State TK Authority or the TK Authority. (3) The Chairperson shall constitute a Standing

Committee, where required from within the Traditional

Knowledge

Authority along with representatives from th

e traditional community concerned with the matter and any other organization or authority or persons well versed in the matter of the proceedings.

(4) The Standing Committee Meetings shall be

chaired by the Chairperson, or in his absence the person presiding.

(5) The Standing Committee shall submit a report on the

proceedings within the prescribed period from the date of reference of a proceeding or matter to the C

ommittee. 12. Officers and Employees of Traditional Knowledge

Authority: (1) The Traditional Knowledge Authority may ap

point such officers and other employees as it considers necessary for the efficient discharge of its functions under this

Act.

(2) The terms and condition s of service of such officers and other employees of the Traditional Knowledge Authority shall be as prescribed.

13. Functions of the Traditional Knowledge Author

ity : It shall

be the duty of the TK Authority to : (1) prepare a National Policy, Strategy and Action Pl

an every five years, to be implemented with the Five Year Plan programme for ensuring the protection, continuum

of use and practice of traditional knowledge and to

ensure the sustainability of the resources, including human resources on which the TK is dependent. prevent

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biopiracy and other misuse of traditional knowledge and take preventive and / or punitive action where applicable as per the law

(2) ensure that any access to traditional kn

owledge is brought under the purview of the Authority and is fair by way of non-exclusive informed consent of the traditional communities;

(3) ensure through

required instruments and proceedings that no Traditional Knowledge in the country is subject to any IPR application.

(4) provide the informed consent o

r prior informed consent,

as the case may be, to the accesor, in case s where a traditional community is not identifiable

(5) collate and maintain an updated National TK R

egister (6) receiv e applications for access to the traditional

knowledge in the prescribed format along with informed / prior informed consent and other

prescribed

documents (7) evaluate the environmental and socia

l impact assessments and the Traditional knowledge and resource management plans sub

mitted by the accesor

before approving access and license to use (8) help and facilitate the traditional comm

unities to negotiate the terms and conditions of benefit sharing upon access to use the traditional knowledge

(9) set up a watch cell to monitor the applicatio ns and /or use of traditional knowledge, both in the country and any part of the world, and to take appropriat

e corrective

action if there is a violation of any provision

under this Act, including taking measure on behalf of the Centr al Government for the opposition / revocation of grant of IPR on Traditional Knowledge in any part of the world.

(10) administer the traditional knowledge Fund for protection of traditional communities and ensuring the continuum and sustainable use of TK by the traditional

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communities, (11) Coordinate activities of State TK Board. (12) provide technical a

ssistance and guidance to the

State Traditional Knowledge Board, (13) commission studies and research on Traditional

Communities (14) publish technical and statistical data,

manuals and

guides related to TK (15) examine IPR applications for misappropriation

of TK (16) issuance and revocation of a license of

use to the

Accessor after a

ssessing and approving the recommendation of the State TK Authority through the relevant Standing Committee

(17) In consultation with the concerned State Auth

ority, may from time to time notify any traditional kn owledge or resource which is on the verge of extinction or likely to become extinct in the near future, notif

y them as

“endangered” in the National Traditional

Knowledge Register; and Traditional Knowledge and Resources thus

notified shall be strictly regulated, including prohibition of access, initiating special conservation me

asures and

any other appropriate steps to preserve the same.

14. Authentication of Orders and Decisions of the TKA: All orders and decisions of the Traditional Knowledge Authority shall be authenticated by the signature of the Chairperson or any other Member authorized by the Traditional Knowledge Authority in this behalf.

15. State Traditional Knowledge Board: Composition and functions:

(1) Each State and Union Territory shall have a Traditonal Knowledge Board to be known as the ... name of the State or UT.... TK Board.

(2) The State TK Board shall be established by the State Government with effect from the date of

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notification in the official gazette. (3) The State Government may designate as a

transitional measure, any existing Board to function as State TK Board.

(4) The State TK Board shall comprise of (1) A Commissioner of the State TK Board

appointed by the State Government in consultation with the National TK Authority.

(2) Members representing the Department of Handicrafts, Department of Ayush / Health, Department of Animal Husbandry, Department of Culture, Department of Tribal Affairs, Department of Environment and Forests, Dept of Commerce & Industry, State Industrial Corporation, State Agriculture Department, Department of Panchayati Raj, Zila Parishad heads, District Magistrates

(3) Members representing the civil society including a renowned handicraft practitioner, a traditional medicinal practitioner, a farmers’ movement representative, a representative of a CSO, a practitioner of fine arts, an environmentalist, members of the traditional communities

(4) The State Government may also constitute the TK Management Committees at the Districts for effective supervision of the Access and benefit sharing processes.

Chapter 5 Regulat informed consent:

ion of access to traditional knowledge and

16. Access to TK based activity and informed consent: (1) Accessor as defined under section 2(3) may access

any TK with informed consent, Provided that member of a Traditional community may access any TK without informed consent for earning their livelihood.

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all without community ng in India

sent of the traditional

,

dent as defined in Tax Act 1961;

tion – ia; or

orated or registered in india under any ich has any

non-Indian participation in its share, capital or

commercial utilisation

Provided that where a traditional community is not

the Traditional Knowledge Authority.

ledge and

owledge or hall apply to the Authority i.e. TKA in

thority i.e. pliance of formalities

and whereupon said authority shall examine the application to check for registration of the traditional knowledge in the Traditional Knowledge Register. Provided that the TK Authority shall transfer the application relating to the Traditional knowledge associated with genetic resources to the National Bio-diversity Authority

(2) No person referred to sub-section (3) shprevious approval of the traditional access any traditional knowledge occurrior resources relating thereto for research or for commercial utilization.

(3) Persons who shall be required to obtain informedconsent / prior informed concommunity include:

(a) all accessors as described in Section 16(1)(b) a person who is not a citizen of India;(c) a citizen of India, who is a non-resi

clause 30 of section 2 of the Income (d) a body corporate, association or organiza

(i) not incorporated or registered in Ind(ii) incorp

law for the time being in force wh

management (e) Traditional practitioners using TK for

identifiable or accessible such consent shall be sought from

17. Regulation of access to traditional know

informed consent: (1) Any person desirous of accessing traditional knany component thereof sthe prescribed form with the prescribed fee. (2) On receiving the application for access, the AuTKA shall examine the application for com

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(3) Where the traditional knowledge is found to be rthe Traditional Knowledge Register, then th

egistered in e TKA shall refer

rd (s); tered in the least three ed consent

and negotiation shall be initiated by the Authority, in .

/ or TK the State(s) / or TK

the date of

fails to comply within the al time of a te TK Board

altogether, tate the consultation between the traditional

community(ies) ed consent agreement

s shall refer anagement

mittees and traditional communities.

ommunities llingness or or informed

icates their or informed

consent to the State TK Board the said Board shall communicate the same to the TKA; whereupon the TKA shall communicate denial of access to the applicant. (8) Where the traditional communities communicate their willingness to participate in consultation on prior informed consent to the State TK Boards, the State TK Board concerned

the said application to the appropriate State TK BoaProvided that if the traditional knowledge is regisname of one more traditional communities from atdifferent states, then the process for obtaining inform

consultations with all the State TK Boards concerned (4) Where there are no State TK Boards andManagement Committee, the Authority shall directconcerned to set up the State TK Board(s) andManagement Committee(s) within 6 months fromsuch direction; Provided that where the statestipulated time, the State may request an additionperiod no greater than 6 months to set up the Staand / or the TK Management Committee; Provided further that where the State fails to complythe TKA shall facili

and the applicant for issuance of the prior informand negotiations for the access and benefit sharingi.e. Mutual Agreed Terms. (5) On receiving the application, the State TK Boardthe said application to the appropriate TK MCom (6) On receiving the application the traditional cshall inform the State TK Board of their wiunwillingness to participate in consultation on priconsent. (7) Where the traditional communities commununwillingness to participate in consultation on pri

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shall refer the application to the TK Management Committee.

tation with prehensive

lity of the

tential value of the traditional knowledge, ions and a

tee requires rther information, it may require the applicant to provide

traditional

ve assessment report of the s) among

nd the TK

(11) Where there is no agreement on granting access to the e TK Board

enial of the

here there is a consensus on the granting of access to initiate the f the access, ge(s), taking

endations of the TK Management

Board, the process for tation with

he concerned State TK Boards.

traditional community, the latter shall affix their signatures on the prior informed consent form, and thereafter both parties shall affix their signatures on the agreement for access and benefit sharing. (14) Copies of the prior informed consent, agreement on access and benefit sharing and the Report of the TK Management

(9) The TK Management Committee shall in consulthe said traditional community conduct a comassessment including assessment on sustainabiresources, social and environmental implications and poand produce a report along with recommendatresource management plan; Provided that where the TK Management Commitany fufurther details regarding the proposed use of theknowledge. (10) On receiving the comprehensiTKMC, the State TK Board shall facilitate consultation(the applicant, the traditional community(ies) aManagement Committee(s) at the location(s).

applicant, the same shall be communicated by Statto the TKA, who shall then communicate the daccess to the applicant. (12) WTraditional Knowledge(s), the State TK Board shallprocess for negotiating the terms and conditions ouse and benefit sharing of the Traditional Knowledinto account the recommCommittee; Provided that if there are more than one State TKsame shall be communicated to the TKA and thenegotiating shall be initiated by the TKA in consulall t (13) On agreement between the applicant and the

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Committee shall be submitted to the State TK Board.

access and f the TK ll refer the

dations for nce of use” incorporating the prior

informed consent and the terms and conditions of the access

after being

hall not be

ccess to traditional knowledge in the traditional

ity(ies) in

the public particular

unity(ies) ingness to

issue a prior informed consent and negotiating an access and he TKA in

ards, TK mmunities, e TKA.

ive State TK ent Committee and traditional

prehensive ity of the

ons and potential report along

an access and benefit sharing plan; Provided that where the TKA requires any further information, it may require the applicant to provide further details regarding the proposed use of the traditional knowledge. (3) The TKA shall exercise its discretionary powers with regard

(15) On receiving the prior informed consent, the benefit sharing agreement and the report oManagement Committee, if any, the State TKA shasame to the TKA with appropriate recommenissuance of the “lice

and benefit sharing agreement. (16) The TKA shall issue the “License of Use” satisfied that due processes under the law have been complied with, and the issuance of said “License of Use” sagainst the national interest. 18. Regulation of a

public domain not owned by any specificcommunity or owned by traditional communmore than three states –

(1) Where the traditional knowledge is already indomain and is not specifically owned by anytraditional community or if the traditional commis/are spread in more than three states, then the will

benefit sharing agreement shall be done by tconsultation with the respective State TK BoManagement Committee and traditional cowherever possible and recommendations made to th (2) The TKA shall, in consultation with the respectBoards, TK Managemcommunities, wherever possible, conduct a comassessment including assessment on sustainabilresources, social and environmental implicativalue of the traditional knowledge, and produce a with recommendations, resource management plan along with

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to the allowance of access to particular traditional knowledge on the basis of report(s) submitted by the State TKA.

owledge is sent along

between the TKA and the applicant; whereupon the TKA shall

ccess to said traditional knowledge is refused by the TKA, the same shall be communicated to the

traditional

received under section 17(2), and TKA shall

ty in public

d to be in sessment of

ability of the s and the ledge, and

the said traditional knowledge to the TKA for as PUBLIC nt report; ot in public l / relevant

stration of assessment

report under Section 19(2) the TKA shall register the said traditional knowledge in the Traditional Knowledge Register and commence negotiations as specified in section 18 (4) On receiving the referral from the TKA under 19(2) the State TK Board(s) shall identify the appropriate traditional community(ies)

(4) Where allowance of access to said traditional kngranted by the Authority, the prior informed conwith access and benefit sharing agreement shall be signed

issue the license of use. (5) Where allowance of a

applicant within reasonable time.

19. Regulation of access to non-registered knowledge -

(1) Where an application isthe traditional knowledge is not registered, the evaluate the traditional knowledge for its availabilidomain. (2) Where the said traditional knowledge is founpublic domain, the State TKA shall conduct an asthe said traditional knowledge including sustainresources, social and environmental implicationcurrent and potential value of the traditional knowrecommendregistration in the Traditional Knowledge Register traditional knowledge, along with the said assessmeProvided that if the said traditional knowledge is ndomain, the TKA shall refer the application to alState TK Board(s).

(3) On receiving the recommendation for regitraditional knowledge in public domain and the

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practising the said traditional knowledge throuManagement Committee(s) and communicate the TKA for registration of

gh the TK same to the

the traditional knowledge as either

n shall be registered only with the

IC and is ies) of more essment as long with hall start

ledge is to the TKA

ENTAL in ledge Register, and shall refer the

or obtaining fit sharing

y approach owledge or

on about its whereupon

irperson shall refer the matter to the State TKA to luate the so

e and register the same, after required consent from the traditional community

se of abuse

(1) The TKA may issue a non assignable and non-transferable licence to use to an applicant, in response to a written application only and after following the prescribed procedures, to access a specified traditional knowledge, subject to the conditions stipulated in the said licence for a period not less than 1 year and not greater than 3 years, the said licence may be renewed for a further period not

“PUBLIC” or “CONFIDENTIAL”; Provided that such informatioconsent of the traditional community. (5) Where the traditional knowledge is PUBLidentified with one or more traditional community(than three states, the State TKA shall conduct an assstated in 19(2) and refer the application to the TKA athe assessment report, whereupon the TKA sproceedings as in section 18(2); Provided that where the traditional knowCONFIDENTIAL, the State TKA shall recommendto register the said traditional knowledge as CONFIDthe Traditional Knowapplication back to the concerned State TK Board fprior informed consent and access and beneagreement under section 18(2) (6) Any third party including a civil rights group mathe chairperson with information of a traditional kna component thereof which may include informatiabuse and /or misuse and /or misappropriation,the Chainvestigate the accuracy of such information, evaidentified traditional knowledgobtaining the concerned if so identifiable, and after appropriate classification as “PUBLIC”, “CONFIDENTIAL and/or recommend action in caand/or misuse and/or misappropriation. 20. Licence to Use --

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exceeding 3 years.

or shall be vernacular , including

reports and the agreement between the parties concerned shall be

site of the TKA as soon as possible.

traditional nths of the

ation of the on the website of the TKA, make an

ion of the TKA in the

vocation, TKA for re-e grant of

(3) The State TKA shall re-examine the agreement taking available to

y, and after report with

on report of the State TKA and after giving the accessor and the opponent

person shall revoke the

22. Duties of Accessor after issue of License to Use:

(1) The accessor has the responsibility to inform the TKB of any change in address and/or in his legal status, if any, within two weeks of such an event.

(2) In case of misuse of Traditional Knowledge, the Licence to Use shall be revoked by the TKB and the

(2) The Licence to Use issued to an accesspublished in the Official Gazette as well as in thepress and along with the supporting documentsthe prior informed consent, various assessment

published on the web

21. Opposition and Revocation:

(1) Any person who has an interest in theknowledge concerned may, within six moissuance of License to Use or the publicagreement application for opposition or revocatagreement and the licence to use, to theprescribed manner.

(2) On receipt of such notice of opposition / rethe TKA shall refer the matter to the Stateexamination of the Agreement and thlicence.

into consideration all information made it by both parties, in writing and oralldetailed hearing of both parties, submit arecommendations to the TKA.

(4) On receipt of the re-examinati

an opportunity of being heard, the Chairpass an order to maintain or amend oragreement and / or the licence to use.

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accessor shall be liable under Rule 18 herein.

23.

cess to the nsequential etween the

al community and the applicant and facilitated by the State TK Board through the TK Management

aid to the onal community by the applicant and shall be

cerned and traditional

agreement crue to the

ditional Knowledge Fund. (3) Details of all the reported benefits shall be published

the Gazette and website of the TKA as soon as

24. Access Fee

he license to use, impose an access fee based on the negotiations between the traditional community and the accessor.

accessor at under rule

25. Traditional Knowledge Register (1) The Traditional Knowledge Authority shall maintain a

Traditional Knowledge Register to register traditional knowledge and shall accordingly mark such knowledge as either “Public” or “Confidential”.

(2) The Traditional Knowledge register shall be based on the

Sharing of Benefits -

(1) Sharing of all benefits arising out of the actraditional knowledge and /or its cocommercial use shall be as negotiated btradition

Committee (s). (2) All benefit share shall directly be ptraditireported annually to the State TK Board, conthe TKB by both the applicant and thecommunity; Provided such benefits that arise from anbetween the TKA and the applicant shall acTra

inpossible.

(1) The TKA shall, at the time of approving t

(2) The access fee shall be deposited by thethe Traditional Knowledge Fund established11.

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sectoral classification of the Traditional knoTraditional medicine, traditional agriculturtraditional cultural expressions an

wledge like al practices,

d the like as notified

ge marked

applies for

g the name, ledge, as is the already

es of the nities in the

h information owledge is r by the suo

l Offices. s) of the

e(s) of the shall update such

m wholly or or digital form or in any other form that

raditional knowledge existing at the time the enactment of this law shall form a

n of the pt under the

hairperson.

(9) Additonally, the State TK Office may maintain a state traditional knowledge register containing local information on the traditional knowledge or community rights of the concerned state only,

by the central government from time to time. (3) The components of traditional knowled

”Confidential” are of confidential nature and may be somarked on request of the community thatregistration, or if the TKA deems so

(4) The TKA shall register information includinlocation, description of the traditional knowrevealed by the Traditional Community or indocumented system, along with the nampracticing traditional community or commuprescribed format as and when sucregarding the concerned traditional knintimated to the TKA by the TC or Accessor omoto efforts of the TKA or any of the Regiona

(5) The TKA shall also register the names, address(eAccessor(s) along with the nature of usaccessed traditional knowledge and information from time to time

(6) The TK Register may be maintained in a forpartly in writtencaptures the essence of the traditional knowledge.

(7) All databases pertaining to t

part of the TK Register. (8) Subject to the superintendence and directio

Central Government the Register shall be kecontrol and management of the C

23


Provided that, such information shall bto the National TK Au

e intimated thority for entry into the main

Traditional Knowledge Register.

stering their office of the either at the n of their ffice of the approached components een desired

hatever manner of recordal that is best tion under Traditional

the said ection (1), ee in the luate the e, examine knowledge d written public” or

TC, for Knowledge

group may

traditional knowledge or a component thereof which may include information about its abuse, whereupon the Chairperson shall institute a Standing committee empowered to investigate the accuracy of such information, evaluate the so identified traditional

26. Procedure of registration of Traditional Knowledge.

(1) A traditional community desirous of regitraditional knowledge may approach any Traditional Knowledge Authority/Board National, State level for registratiotraditional knowledge; whereupon the oTraditional Knowledge Authority so shall apply its resources to register those of the said traditional knowledge, as has bby them, in wfeasible and forward the collated informaconfidentiality to the Chairperson of the Knowledge Authority.

(2) The Chairperson shall, on receivingconfidential information under sub-sinstitute a suitable Standing Committprescribed manner which shall evacomponents of the traditional knowledgall components of the said traditional including the verbal, non-verbal ancomponents and designate them as ““confidential” as is applied by theappropriate entry into the Traditional Register.

(3) Any third party including a civil rights approach the Chairperson with information of a

24


knowledge and register the same after cl

appropriate assification and/or recommend action in case of

ay suo moto ating and traditional

munity(ies) ion to the

Authority including

and the the Register

of Goods tion and Protection) Act 1999 shall form a

er subject to access and

aring.

on the license of use shall be published in the Official

27. Constitution of Traditional Knowledge Fund --

to be called the be credited

for specific

;

B upon an B and the

applicant; and (d) all sums received by the TKB from such other sources as may be decided upon by the Central Government.

(2) The Fund shall be used for the protection, conservation and development of traditional knowledge and the traditional communities which shall include –

misuse. (4) The State Traditional Knowledge Board m

take up the exercise of identifying, evaluregistering a hitherto unregistered knowledge, the associated traditional comand the practitioners thereof, under intimatChairperson of the Traditional Knowledge

(5) Existing and proposed databases Traditional Knowledge Digital LibraryGeographical Indications registered in under the Geographical Indications (Registrapart of the Traditional Knowledge Registthe existing conditions imposed on theirbenefit sh

(6) The decision of the Traditional Knowledge Authority

Journal Gazette.

(1) There shall be constituted a fund Traditional Knowledge Fund and there shall thereto –

(a) any grants and loans made to the TKBneeds of the implementation of the Rules(b) all charges and access fees received by the TKB; (c) all monetary benefits that accrue to the TKagreement signed for access between TK

25


(a) channeling benefits to the benefit cl(b) conservation and sustainability ofresources, welfare and livelihood suptraditi

aimers; traditional

port for ditional

restoration traditional / sectors

ditional medicine, health and nd other

e State TK TK Management Committee(s) and

; traditional

of common e such as

es, customary healing and ormal and d among

traditional communities. 2 nservation,

ledge and

gies, plans,

ment and of traditional knowledge including (a)

measures for identification and monitoring of areas rich nd support

traditional and public

education to increase awareness with respect to traditional knowledge.

(2) Where the TKA has reason to believe that any area or traditional community rich in traditional knowledge and resources is being threatened by overuse, abuse or neglect, it shall issue directives to the State Government

onal communities and trapractitioners; (c) ecological and cultural programmes specifically related to knowledge practices and such regionssuch as traeducational practices, farming atraditional livelihoods; (d) socio-economic, ecological and cultural development in consultation with thBoard(s), traditional community (ies) concerned(e) recognition and accreditation of practitioners; and (f) promoting the use and practice public domain traditional knowledghome remediagricultural practices etc especially in fnon-formal educational systems an

8. National Strategies, Plans, etc., for CoDevelopment, etc., of Traditional KnowResources -

(1) The TKA shall develop national strateprogrammes for the conservation, developsustainable use

in traditional knowledge, (b) incentives asystems for traditional communities and practitioners, and (c) incentives for training

26


concerned to take immediate ameliorative malso offer the State Government con

easures and cerned technical and

other assistance that is possible to be provided.

practicable ntegration, use of

ditional knowledge and resources into relevant sectoral or cross-sectoral plans, programmes and

wherever

onomic and t which is effect on

al practices, izing such

icipation in

(b) to prevent the risks associated with the use of ess that is likely to impact

ntinuum of the use and

2

y other law ltation with me to time

which is on xtinct in the esources to

l knowledge, (b) unwillingness of traditional

knowledge due to lack of opportunities, and (c) usurpation of the traditional knowledge for commercial gains, and prohibit or regulate access thereto for any purpose and take appropriate steps to preserve and ensure continuum of the same.

(2) The TKB shall facilitate development of plans in

(3) The TKA shall recommend, as far as wherever it deems appropriate, the iconservation, promotion and sustainabletra

policies.

(4) The TKA shall undertake measuresnecessary,

(a) for assessment of socio-cultural, ecenvironmental impact of that projeclikely to impact or have adversetraditional knowledge and traditionwith a view to avoiding or minimeffects and provide for public partsuch assessment; and

any technology or procthe conservation and copractice of traditional knowledge.

9. Traditional Knowledge Facing Extinction --

(1) Without prejudice to the provisions of anfor the time being in force, the TKB, in consuthe State TK Board(s) concerned, may from tinotify any traditional knowledge or resourcethe verge of extinction or likely to become enear future on account of (a) depletion of rsustain the traditionathe traditional community to practice the

27


consultation with traditional communities regenerate and propagate the traditional facing extinction, along with detailed cmeasures. The TKB will also earmark dedicateensure the contin

to protect, knowledge

onservation d funds to

ued practice of the traditional

3

time being e State TK

rom a TK

ge heritage

onsultation with the State TK Board concerned, shall prescribe regulations and guidelines for the management and conservation of all the traditional

ones.

knowledge facing extinction.

0. Traditional Knowledge Heritage Zones --

(1) Without prejudice to any other law for thein force, the TKB, in consultation with thBoard concerned, and on application fManagement Committee, notify in the Official Gazette, areas of importance as traditional knowledzones under the Act. (2) The TKB, in c

knowledge heritage z

Chapter 6 Finance accounts and audits of TKB

3propriation

made by Parliament by law in this behalf, pay to the hority by way of grants or

overnment oses of this

3ve State Government may, after due

appropriation made by Parliament by law in this behalf, by way of

grants or loans such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.

33. Budgets Accounts and Audit:

(1) The Traditional Knowledge Authority shall prepare a

1. Grants or loans by the Central Government: The Central Government may, after due ap

Traditional Knowledge Autloans such sums of money as the Central Gmay think fit for being utilised for the purpAct.

2. Grants or loans by the State Government: The respecti

pay to the Traditional Knowledge Authority

28


budget, maintain proper accounts and othrecords (including the accounts and othrecords of the Traditional Knowledge Fund) an annual statement of account in such formprescribed by the Central Government

er relevant er relevant and prepare as may be

in consultation f India.

e Authority d Auditor-pecified by

nection with it shall be payable by the Traditional

f India and ction with nowledge

ivileges and it as the

lly has in vernment accounts

demand the uchers and

ty. ditional Knowledge Authority

-General of him in this

t.

with the Comptroller and Auditor-General o

(2) The accounts of the Traditional Knowledgshall be audited by the Comptroller anGeneral of India at such intervals as may be shim and any expenditure incurred in consuch audKnowledge Authority to the Comptroller and Auditor-General of India. (3) The Comptroller and Auditor-General oany other person appointed by him in connethe audit of the accounts of the Traditional KAuthority shall have the same rights and prauthority in connection with such audComptroller and Auditor-General generaconnection with the audit of the Goand, in particular, shall have the right to production of books, accounts, connected voother documents and papers and to inspect any of the offices of the Traditional Knowledge Authori(4) The accounts of the Traas certified by the Comptroller and AuditorIndia or any other person appointed by behalf together with the audit report thereon shall be forwarded annually to the Central Governmen

Chapter 7 Duties of Central and State Governments 34. Central Government To Develop National Strategies,

plans, etc., for conservation etc., of traditional knowledge and resources: (1) The Central Government shall develop national

strategies, plans, programmes for the conservation, (promotion?) and sustainable use of traditional

29


knowledge including measures for identifimonitoring of areas rich in indigenous kincentives and support systems for tradiindigenous communities and traditional incentives for, training and public edu

cation and nowledge,

tional and practioners,

cation to increase

to believe n traditional

tened by ctives to the

immediate

ible to be

practicable rate the

servation, promotion and sustainable use of to relevant mmes and

ther law for rnment in ment, may

or likely to prohibit or and take

( rtake measures, - ironmental

impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimize such effects and where appropriate provide for public participation in such assessment;

(ii) to prevent the risks associated with the use and release of genetically modified organisms resulting

awareness with respect to traditional knowledge.

(2) Where the Central Government has reasonthat any area or traditional community rich iknowledge and resources is being threaoveruse, abuse or neglect, it shall issue direconcerned State Government to take ameliorative measures; offering such State Government any technical and other assistance that is possprovided or needed.

(3) The Central Government shall, as far as wherever it deems appropriate, integcontraditional knowledge and resources insectoral or cross-sectoral plans, prograpolicies.

(4) Without prejudice to the provisions of any othe time being in force the Central Goveconsultation with the concerned State Governfrom time to time notify any traditional knowledge or resource which is on the verge of extinctionbecome extinct in the near future and regulate access thereto for any purposeappropriate steps to preserve the same.

5) The Central Government shall unde(i) wherever necessary, for assessment of env

30


from biotechnology likely to have adversthe conservation an

e impact on d sustainable use of biological

r to respect relating to by the

ough such ion of such

owledge at the local, State or national levels, and other measures for protection, including sui generic

diversity and human health. (6) The Central Government shall endeavou

and protect the knowledge of local peoplebiological diversity, as recommendedTraditional Knowledge Authority thrmeasures, which may include registratkn

system.

Chapter 8

owing shall

ntravene or rovisions of

prisonment for a term which may extend to five years, or with

s and where such fine

ed, or with

r orders of overnment, any person made by the

ent or the which no

punishment has been separately provided under this Act, he shall be punished with a fine which may extend to one lakh rupees and in case of a second subsequent offence, with fine which may extend to two lakh rupees and in the case of continuous

35. Offences, Penalties and Procedure (1) Offences : For the purposes of this Act the foll

be considered as offences: (a) Whoever contravenes or attempts to co

abets the contravention of any of the pthis Act shall be deemed to have committed an offence and shall be punishable with im

fine which may extend to ten lakh rupeethe damage caused exceeds ten lakh rupeesmay commensurate with the damage causboth.

(b) Penalty for contravention of directions oCentral Government , State GTraditional Knowledge Authority: If contravenes any direction given or order Central Government, the State GovernmTraditional Knowledge Authority for

31


contravention with additional fine may exlakh

tend to two rupees everyday during which the default

bailable: The this Act shall be cognizable and non-

der this Act very person vention was responsible

usiness of y, shall be ffence or

was committed without the sed all due

n of such

n this sub-ntravention a company

travention onsent or neglect on

r, manager, secretary or , such director,

all also be ffence or

proceeded

Explanation – For the purposes of this section, - (a) “company” means any body corporate and

includes a firm or other association of individuals: and

(b) “director” in relation to a firm, means a partner in the firm

continues. (c) Offences to be non-cognizable and non-

offences under bailable.

(d) Offences by companies: (1) Where an offence or contravention un

has been committed by a company, ewho at the time the offence or contracommitted was in charge of, and was to, the company for the conduct of the bthe company, as well as the compandeemed to be guilty of the ocontravention knowledge or that he had exercidiligence to prevent the commissiooffence or contravention.

(2) Notwithstanding anything contained isection (1), where an offence or counder this Act has been committed byand it is proved that the offence or conhas been committed with the cconnivance of, or is attributable to, anythe part of any directoother officer of the companymanager, secretary or other officer shdeemed to be guilty of the ocontravention and shall be liable to beagainst and punished accordingly.

32


3ngs shall lie which is in

ulations made there under.

under this A

y or officer ent; or of not less

s in the prescribed manner, of such offence and of his intention to make a complaint, to the Central Government or the authority or officer

.

6. Protection of action taken in good faith: No suit, prosecution or other legal proceediagainst any authority in respect of anythinggood faith done or intended to be done under this Act orthe rules or reg

37. Cognizance of offences:

No Court shall take cognizance of any offencect except on a complaint made by –

(a) the Central Government or any authoritauthorized in this behalf by that Governm

(b) any benefit claimer who has given noticethan thirty day

authorized as aforesaid

Chapter 9

ments, subject to such conditions as ion at the

ch a public try in the register is based;

egister as dge of an

r “limited lable to the

(b) every notice of opposition to the registration of a traditional knowledge, application for rectification before the Chairperson, counterstatement thereto, and any affidavit or document filed by the parties in any proceedings before the Chairperson;

Miscellaneous 38. Documents open to public inspection:

(1) The following documay be prescribed, be open to public inspectTraditional Knowledge Authority, namely:- (a) the register and any document upon whi

enprovided, the entries marked in the R“confidential” such as traditional knowleindigenous community and those marked foaccess” such as TKDL shall not be made avaipublic;

33


tral Government may, by notification in the Official Gazette, specify.

as may be on and on

certified copy of any entry in the register or any document

ority: all prepare, ear as may

l account of the previous financial year and

uch date as nts together

s report to be laid, as soon as may be after ment.

40 tions of the

hall, in the this Act, be

y the policy of the Central Government me:

Knowledge Authority shall, as far as practicable, be given opportunity to express its views before any direction is given under this sub-section.

(2) The decision of the Central Government whether a question is one of policy or not shall be final.

(c) such other documents as the Cen

(2) Any person may, subject to such conditions

prescribed, on an application to the Chairperspayment of such fee as may be prescribed, obtain a

referred to in sub-section (1). 39. Annual Report of Traditional Knowledge Auth

(1) The Traditional Knowledge Authority shin such form and at such time each financial ybe prescribed, its annual report, giving a fulits activities during furnish, to the Central Government, before smay be prescribed, its audited copy of accouwith auditors’ report thereon.

(2) The Central Government shall cause the annual report and auditor’they are received, before each House of Parlia

. The TK Authority to be bound by the direcCentral Government: (1) Without prejudice to the foregoing provisions of this

Act, the Traditional Knowledge Authority sdischarge of its functions and duties under bound bcommunicated in writing to it from time to ti

Provided that the Traditional

34


ore State

atter shall on by the Chairperson of the Traditional

Knowledge Authority

: ave, for the is Act, the

e powers as are vested in a civil court under the Code of ng matters,

oning and enforcing the attendance of any him on oath;

duction of nts;

ce on affidavits; n of witness

ault or deciding it ex

application

. Knowledge

a judicial proceeding within the meaning of sections 193 and 228, and for the

de and the itional Knowledge Authority shall be deemed to be a

civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

43. Members of the TK Authority to be deemed as Public

Servants:

41. Settlement of issues between State TK Offices: (1) If a dispute arises between the one or m

Traditional Knowledge Authority the madjudicated up

42. Powers of the Traditional Knowledge Authority

(1) The Traditional Knowledge Authority shall hpurpose of discharging its functions under thsamCivil Procedure, 1908 in respect of the followinamely:-

(a) summperson and examining

(b) requiring the discovery and prodocume

(c) receiving eviden(d) issuing commissions for the examinatio

or documents; (e) reviewing its decisions; (f) dismissing an application for def

parte; (g) setting aside any order of dismissal of any

or any order passed by it ex parte; (h) any other matter which may be prescribed

(2) Every proceeding before the Traditional Authority shall be deemed to be

purpose of section 196, of the Indian Penal CoTrad

35


es of the e deemed, ce of any of

servants within the meaning of section 21 of the Indian Penal Code.

or order of er this Act,

may file an appeal to the Intellectual Property Patents Act

f the IPAB, ion to the

preme Court within thirty days from the date of or order of s the case

that the Supreme Court may, if it is satisfied that the appellant was prevented by

thin the said period not

proceeding Knowledge ade by the

e Court in any appeal against any Traditional Knowledge

ny officer of the Traditional Knowledge Authority or the Registrar of the Supreme Court, in the same manner as a decree of that court.

45. Power of Central Government to make rules: (1) The Central Government may, by notification in the

All members, officers and other employeTraditional Knowledge Authority shall bwhen acting or purporting to act in pursuanthe provisions of this Act, to be public

44. Appeal:

1. Any person, aggrieved by any proceedingthe Traditional Knowledge Authority und

Appellate Board constituted under the 1970.

2. Any person aggrieved by the decision omay file an appeal against that decisSucommunication to him, of the proceedingthe Traditional Knowledge Authority, amay be: Provided

sufficient cause from filing the appeal wiperiod, allow it to be filed within a furtherexceeding sixty days.

(1) Execution of Proceeding or Order: Every

or order made by the Traditional Authority under this Act or the order mIPAB or Supremproceeding or order of the Authority shall, on a certificate issued by a

36


Official Gazette, make rules for carrying out the

e generality es may provide for

y:- rperson and

der section

saction of

f fees for .....;

lication under

ransfer of ection ....; cial year at

, the annual report of the Traditional nd the date

udited copy of accounts together ished under

h, an appeal y be preferred, the procedure for disposing of an

djudication, under

Knowledge Authority may exercise powers of the civil court....;

(k) the manner of giving notice under section .....; (l) any other matter which is to be, or may be, prescribed,

or in respect of which provision is to be made, by

purposes of this Act. (2) In particular, and without prejudice to th

of the foregoing power, such rulall or any of the following matters, namel

(a) terms and conditions of service of the Chaimembers under section ....;

(b) powers and duties of the Chairperson un.........;

(c) procedure under …..in regard to tranbusiness at meetings;

(d) form of application and payment oundertaking certain activities under section

(e) the form and manner of making an appof section ...;

(f) form of application and the manner for ttraditional resource or knowledge under s

(g) form in which, and the time of each finanwhichKnowledge Authority shall be prepared abefore which its awith auditor’s report thereon shall be furnsection ......;

(h) form in which the annual statement of account shall be prepared under section ....;

(i) the time within which and the form in whicmaappeal and the procedure for asection ....;

(j) the additional matter in which the Traditional

37


38

y regulation as may be ment, while days which o or more iry of the

on or the s agree in gulation or should not eafter have o effect, as

ase may be; so, however, that any such modification or annulment shall be without prejudice to the validity

eviously done under that rule or

4

nowledge Authority shall, with the rnment, by ulations for

rovisions of ct, the Central Government may, by order, not

inconsistent with the provisions of this Act, remove the difficulty; (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

rules. (3) Every rule made under this section and ever

made under this Act shall be laid, as soonafter it is made, before each House of Parliait is in session, for a total period of thirty may be comprised in one session or in twsuccessive sessions, and if, before the expsession immediately following the sessisuccessive sessions aforesaid, both Housemaking any modification in the rule or reboth Houses agree that the rule or regulationbe made, the rule or regulation shall thereffect only in such modified form or be of nthe c

of anything prregulation.

6. Power to make regulations: The Traditional Kprevious approval of the Central Govenotification in the Official Gazette, make regcarrying out the purposes of this Act.

47. Power to remove difficulties: (1) If any difficulty arises in giving effect to the pthis A

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