Protection of Traditional Knowledge -The Indian Perspective

A presentation byDesh Deepak Verma,

Joint Secretary, Ministry of Environment & Forests,

Govt. of India, New Delhi

International Seminar on Systems of Protection of Traditional Knowledge

April 3-5, 2002, New Delhi

TRADITIONAL KNOWLEDGETRADITIONAL KNOWLEDGE

Traditional knowledge (TK) associated with the biological resources is the knowledge about a country’s biodiversity; the applied uses and applications of biological resources and the prevalent practices. TK has direct correlation with the biodiversity of the country.

It is an intangible component of the resource itself. TK has the potential of being transformed into commercial opportunity, providing useful leads for development of products and processes.

Hence, a share of benefits must accrue to creators and holders of TK .

ARTICLE 8(j) OF THE CBD

Article 8(j) of the CBD deals with issues relating to traditional knowledge associated with biological resources.

Accordingly CBD envisages that the benefits accruing from commercial use of TK have to be shared with the people responsible for creating, refining and using this knowledge .

PROTECTION OF TRADITIONAL PROTECTION OF TRADITIONAL KNOWLEDGE – SOME MEASURESKNOWLEDGE – SOME MEASURES

As regards protection of knowledge, innovations and practices associated with biological resources, these do not seem to meet the conditions required for grant of patents or other IPRs (e.g. copyrights, trademark, etc.) under the prevalent IPR regimes, i.e. novelty, inventiveness and industrial applicability.

These conventional forms of IPRs are inadequate to protect indigenous knowledge essentially because they are based on protection of individual property rights whereas traditional knowledge is by and large collective.

Further, TK is developed over several generations over a period of time and is therefore not novel or inventive .

PROVISIONS IN THE BIODIVERSITY BILLPROVISIONS IN THE BIODIVERSITY BILL

Realizing the need to ensure that the holders of TK which is not still in the public domain should be able to get the benefits arising from the use of such knowledge, an enabling provision has been made for protecting the TK in the Biodiversity Bill 2000.

Section 36(iv) provides for protection of knowledge of local people relating to biodiversity through measures such as registration of such knowledge, and development of a sui generis system.

For ensuring equitable sharing of benefits arising from the use of biological resources and associated knowledge, Section 19 and 21 stipulate prior approval of the National Biodiversity Authority (NBA) before their access.

While granting approval, NBA will impose terms and conditions, which secure equitable sharing of benefits.

  Section 6 provides that anybody seeking any kind of intellectual

property rights on a research based upon biological resource or knowledge obtained from India, need to obtain prior approval of the NBA.

Section 18(iv) stipulates that one of the functions of NBA is to take measures to oppose the grant of IPRs in any country outside India on any biological resource obtained from India or knowledge associated with such biological resources

Section 41 provides for the Biodiversity Management Committees to undertake chronicling of knowledge relating to biological diversity.

 

Contd..Contd..

PATENTS (SECOND AMENDMENT) BILL PATENTS (SECOND AMENDMENT) BILL

The Patents (Second Amendment) Bill contains provisions for mandatory disclosure of source and geographical origin of the biological material used in the invention while applying for patents in India.

Provisions have also been incorporated to include the non-disclosure or wrongful disclosure of the same as grounds for opposition and for revocation of the patent, if granted.

Further to prevent patents based on knowledge, which is not always documented, provisions have been incorporated to include anticipation of invention by available local knowledge, including oral knowledge, as one of the grounds for opposition as also for revocation of patent, if granted .

TRADITIONAL KNOWLEDGE DIGITAL LIBRARY (TKDL)

The Government of India’s also approved for setting up of a Traditional Knowledge Digital Library (TKDL), namely, an electronic database of traditional knowledge in the field of medicinal plants.

  As soon as the database is established, steps will be taken

to put the database on a network which is accessible to all the Patent Offices world over.

  Such a database would enable the Patent Offices all over

the world to search and examine any prevalent use/prior art, and thereby prevent incorrect grant of patent on products/processes based on knowledge in public domain.

India’s efforts in this regard have been appreciated by the Committee of Experts of the International Patent Classification (IPC) Union held in February 2001 and IPC Union has agreed to set up a Task Force on the Traditional Knowledge Resources Classification .

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PEOPLE’S BIODIVESITY REGISTERS

Documentation of knowledge of the local people on the status, uses and management of biological resources constitutes of the People’s Biodiversity Registers (PBRs).

PBR envisages the creation of decentralised country-wide database on status of biological resources, which interalia includes medicinal plants, cultivars of fruit trees or freshwater fishes etc. They also include local knowledge on properties and uses of biodiversity resources, for example, drought resistance of certain varieties, methods of preservation of foods, or use of certain plants in treating human or livestock diseases.

The creation of such a countrywide decentralized system of information will serve several important purposes. It will create a machinery for monitoring the fate of a variety of biodiversity resources, be it medicinal plants, land-races of crops, breeds of livestock, or wild relatives of cultivated plants throughout the country.

In India, preparation of village-wise People’s Biodiversity Registers for documenting knowledge, innovations and practices has been undertaken in a few states namely, Karnataka, Kerala, Andhra pradesh, Himachal Pradesh.

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INTERNATIONAL ACTIONINTERNATIONAL ACTION

Provisions of Article 8(j) of CBD are subject to national legislation. However, national action alone is not sufficient for realizing the benefits.

  There is a need to harmonise the requirements of CBD and TRIPS

agreement..

An obligation to disclose the country of origin of genetic resources should be incorporated in the provisions of Article 29 of the TRIPS Agreement dealing with conditions on patent applications .

While efforts of WIPO, WTO etc. are appreciated for protection of TK its focus may remain overly trade centric. There is a need to synthesize the crave for commercialsation with concern for conservation.

Thank youThank you