LEGAL PROTECTION

FOR TRADITIONAL

KNOWLEDGE

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LEGAL PROTECTION

FOR TRADITIONAL

KNOWLEDGE

Towards a New Lawfor Indigenous

Intel lectual Proper ty

ANINDYA BHUKTA

United Kingdom – North America – Japan – IndiaMalaysia – China

Emerald Publishing LimitedHoward House, Wagon Lane, Bingley BD16 1WA, UK

First edition 2020

Copyright © 2020 Emerald Publishing Limited

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British Library Cataloguing in Publication DataA catalogue record for this book is available from the British Library

ISBN: 978-1-80043-066-2 (Print)ISBN: 978-1-80043-063-1 (Online)ISBN: 978-1-80043-065-5 (Epub)

my wifesource of my inspiration

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CONTENTS

Preface xi

1. Introduction 11.1 The Prelude 11.2 The Problem We Are Facing 71.3 Rationale Behind the Study 91.4 The Gaps We Found 121.5 Our Objectives 13

2. Traditional Knowledge: An Overview 152.1 Definition of Traditional Knowledge 152.2 Different Dimensions of Traditional Knowledge

and Their Uses 172.2.1 Traditional Knowledge on Agriculture 182.2.2 Traditional Knowledge on Medicine 182.2.3 Traditional Cultural Expressions 20

2.3 Economic Importance of Traditional Knowledge 212.4 Argument for Protecting Traditional Knowledge 222.5 Traditional Knowledge in International Fora 27

2.5.1 International Milestones inSafeguarding Traditional Knowledge 27

2.5.2 The International Union for theProtection of New Varieties of Plants 28

2.5.3 Food and Agriculture Organization 312.5.4 World Intellectual Protection

Organization WIPO 33

vi i

2.5.5 Convention on Biological Diversity 352.5.6 World Trade Organization 40

3. Bio-piracy 453.1 Definition of Bio-piracy 453.2 Economic Impacts of Bio-piracy 46

3.2.1 A Threat to Food Security 503.2.2 A Threat to Health Security 54

3.3 Case Histories of Bio-piracy in India 573.3.1 The Case of Turmeric 573.3.2 The Case of Neem 58

3.4 Case Histories of Bio-piracy in Other Countries 593.4.1 The Case of Ayahuasca 593.4.2 The Case of Enola Bean 61

3.5 Access and Benefit Sharing Mechanism 623.5.1 Bonn Guidelines 643.5.2 The Nagoya Protocol 66

3.6 Examples of Access and Benefit Sharing over theCountries 683.6.1 Examples of Access and Benefit

Sharing in India 693.6.2 Examples of ABS in Other Countries 70

4. Protecting Traditional Knowledge: Ways andMeans 734.1 What Is Intellectual Property? 734.2 Protecting Intellectual Property Right 734.3 Alternative Ways to Protect Traditional Knowledge 74

4.3.1 Positive protection 754.3.2 Defensive protection 76

4.4 Positive Protection via Intellectual PropertyRights Laws 784.4.1 Patent 784.4.2 Plant Patent 794.4.3 Geographical Indication 80

vi i i Contents

4.4.4 Copyright 814.4.5 Trademark 844.4.6 Trade Secrets 85

4.5 Defensive Protection 874.5.1 Documentation of Codified Traditional

Knowledge in India 874.5.2 Traditional Knowledge Databases of

Other Countries 924.5.3 Documentation of Non-codified

Traditional Knowledge: Initiatives inDifferent Countries 94

5. Initiatives to Protect Traditional Knowledge 975.1 Introduction 975.2 Initiatives in India 98

5.2.1 Patent Act of India 985.2.2 Geographical Indications of Goods

(Registration and Protection) Act, 1999 1065.2.3 Copyright Act, 1957 1075.2.4 Biodiversity Act, 2002 1085.2.5 Protection of Plant Varieties and Farmer’s

Rights Act, 2001 (PPVRA, 2001) 1115.2.6 The Seeds Bill 116

5.3 Initiatives in Other Countries 1185.3.1 The Philippines 1185.3.2 Panama 1205.4.1 Africa 122

6. How Fit Are the Existing Intellectual Property RightsLaws in Protecting Traditional Knowledge? 1256.1 Introduction 1256.2 Limitations of Patent 1266.3 Limitations of Plant Patent 1276.4 Limitations of Copyright Act 1286.5 Limitations of Geographical Indication Act 133

Contents ix

6.6 Limitations of Trademark 1356.7 Limitations of Trade Secrets 136

7. Towards a New Law 1397.1 Introduction 1397.2 The Model Law 142

Notes 149

References 155

Index 167

x Contents

PREFACE

Misappropriation of different types of traditional knowledgeof different countries is, nowadays, a thriving business andhence a great challenge to the developing world, especially tothe developing countries of the Southern hemisphere. Theaboriginal communities of these developing countries, whopossess this knowledge, are getting deprived as a result. Themulti- national companies of developed countries, who areespecially misappropriating this knowledge, neither recognizethe contribution of these people, nor do they share the benefitsarising out of the commercial use of this knowledge with thesepeople. All these can happen due to the absence of anyappropriate law to protect this valuable knowledge base.Presently different countries are trying to prevent these mis-appropriations with the help of existing intellectual propertyrights laws. Some sui generis laws have also been developed.But the problem is that most of these initiatives consider aparticular dimension of this multi-dimensional knowledgesuited to their objectives. What is happening as a result is thatvery often these laws are becoming overlapping and contra-dictory. To overcome this problem what is the need of thehour is to develop a comprehensive law which will encompassall the dimensions of traditional knowledge.

The objective of the present study, ‘Legal Protection forTraditional Knowledge: Towards a New Law for IndigenousIntellectual Property’ is to find out the lacunas of the present

xi

legislative structure and to propose the outlines of a law, itsobjectives and provisions that could protect the rights of thetraditional knowledge holders. Accordingly, the study definesthe term traditional knowledge, addresses its differentdimensions and explores the economic importance of thisknowledge. How this issue is addressed in different interna-tional and national forums, how different existing IPR lawstry to protect the rights of knowledge-holders, what initiativesare taken by different countries – all such issues are discussedin the present treatise. The study also explains the limitationsof existing laws in this regard. Finally, on the basis ofthe above analysis, a sui generis law – what should be theobjectives of the law, what provisions should be included inthe law – has been suggested.

The present work is the outcome of my decade-long studyon different issues on intellectual property rights. It’s my greatpleasure that a renowned publishing house like EmeraldPublishing Limited has come forward to bring my work to thenotice of the world of intellectuals. I would always beindebted to all the family members of Emerald, especially toNick Wolterman, who extended immense support to methroughout this journey with Emerald. I would also like toconvey my sincere gratitude to Professor Sebak Kumar Jana ofVidyasagar University, West Bengal, for his valuable sugges-tions in completing the work. Above all, I must acknowledgethe fact that the work would not have started at all if ProfessorRaj Kumar Sen had not been there to literarily insist on myserious pursuit of the project. Professor Sen is no longeramong us. I shall feel his absence once more when this bookfinally sees the light of the day.

Anindya BhuktaArambagh

January 25, 2019

xi i Preface

1

INTRODUCTION

1.1 THE PRELUDE

Voice started rising all over the world, especially in developingworld, against the misappropriation and bio-piracy of tradi-tional knowledge (TK) since the very inception of the decade1990. As the shadow of protest got looming larger and larger,cries for the enactment of an appropriate law to protect theknowledge base of aboriginal communities in different partsof the world started pitching their volume up.

Traditional knowledge is a community-based collectiveknowledge. It has various dimensions, ranging from tradi-tional cultural expressions to traditional medicines. Theuniqueness of traditional knowledge lies in its transgenera-tional character, which flows over generations just throughverbal process of transmission. The text of this knowledge ispreserved nowhere in the written form. ‘Traditional knowl-edge’, as defined by World Intellectual Property Organisation(WIPO), ‘generally includes the intellectual and intangiblecultural heritage, practices and knowledge systems of tradi-tional communities, including indigenous and local commu-nities’ (http://www.wipo.int/tk/en/resources/glossary.html).

1

Traditional knowledge is the communal knowledge ofaboriginal communities. From time immemorial, theseaboriginal communities have made them engaged in exploringthe mother earth extensively during the search of their meansof livelihood. This continuous endeavour of theirs gives usvarieties of food and medicines derived from plant and animalresources. The precious knowledge of these aboriginal com-munities regarding nature and natural resources is, therefore,valuable to the communities themselves and also to the coun-tries they belong to. However, neither the concerned commu-nities nor the concerned countries ever thought of protectingthis valuable intellectual property of them until before the1930s. In fact, in the initial stages of development, it has beenseen that only a few people claimed protection for their dis-coveries and inventions. Discoveries and inventions, at leastprior to industrial revolution, were meant for the developmentof the entire human race of this world, scientific progress wasmeant for the advancement of civilization as a whole. Thisattitude also got reflected among the resource-rich countries,among the aboriginal communities who were exploring theseresources.

Concern for protecting the rights over natural resources ofthe owner country and the rights of the knowledge ofaboriginal communities in using these resources has neverbeen more relevant than it has been in the twentieth andtwenty-first centuries, as never before have individuals beenallowed sole ownership of biological matter. The introductionof patent laws in the early1930s, which allowed plant materialto be patented, has led to the current increase in both cases ofand debates within the topic of biopiracy (https://sites.duke.edu/amazonbiopiracy).

Prior to 1930, patent right was granted only to non-biological matters. In order to be patentable an inventionor innovation must satisfy three criteria, namely novelty,

2 Legal Protection for Traditional Knowledge

non-obviousness and applicability in industrial processes.But biological matters are essentially the gift of the nature. Itis, therefore, impossible for any biological matters to satisfythe criterion of non-obviousness which refers to the presenceof an inventive step. In order for an inventive step to bepresent, the invention or innovation must not have beenobvious at the time of its creation to anyone having ‘ordinaryskill in the art’ (Hansen & VanFleet, 2003). The protectionto plant genetic resources was, naturally therefore, notsought for by anyone. Such a protection was first extendedby the United States.

The United States sought for plant protection in the late1920s. After the World War I, the US government found itdifficult to put more investment in the agricultural sectorthrough public sectors. Therefore the US government hadtaken a policy decision to promote and encourage the privatesector in the field of agriculture (Elumalai, 2012). This policydecision led the US government to enact the Plant PatentingAct in the year 1930. The objective was to give incentive toprivate corporate bodies in the development of High-YieldingVarieties (HYV) seeds in their laboratories. The researchtowards developing HYV seeds coincidently started duringthis period. After World War II, many farmers in developingand industrialized countries became reliant on public breedersand private seed producers for quality seeds.

The advent of biotechnology, especially after the discoveryof DNA in 1953 by Dr James Watson and Dr Francis Crick,opened up a new horizon to the breeders. As the prospect ofseed business was getting brighter private corporate bodiesof the US started putting pressure on their government toensure the signing of an international treaty which wouldrecognize the breeders’ right on these newly developed seeds.The International Convention for the Protection of NewVarieties of Plants (the UPOV convention) was signed by

Introduction 3

twelve developed countries in 1961 in Paris as the fall out ofthis corporate pressure.

Prospect of biotechnology became much brighter after thediscovery of recombinant DNA technology1 in 1973.Dr Stanley Cohen and Dr Herbert Boyer use bacterial genes toperform the first successful recombinant DNA experiment,which inserted a recombinant DNA molecule into a cell forreplication.

Now all these discoveries were accentuating the proba-bility of biopiracy. The seeds were there. The knowledgeabout the usage of these seeds was there. Private breeders juststarted collecting these seeds, modifying their characteristics alittle bit with the help of modern technology and then sup-plying them for commercial use. Who suffered worst in thisprocess, first of all, were the poor, underdeveloped countries,who coincidentally are the biodiversity-rich countries and,secondly, the aboriginal communities of these countries whopossess the age-old knowledge of the use of these bio-resources.

As a consequence of this practice of misappropriation ofbiological resources and the knowledge about their usesunderdeveloped countries all over the world, especially thecountries of southern hemisphere, started demanding sover-eign rights over their natural resources. They raised thelegitimate question before the entire world: would it bepossible for the breeders to breed new varieties of seeds if themother seeds weren’t supplied by them, if the basic knowledgeregarding the use of these seeds weren’t supplied by theiraboriginal communities? If the breeders can make their seedspatented for earning, then a part of these royalties must go tothe countries who own the mother seeds and also to theaboriginal communities who hold the traditional knowledgeregarding the uses of these mother seeds.

4 Legal Protection for Traditional Knowledge

A resolution to this most contentious issue came from the22nd annual convention of Food and Agricultural Organisa-tion of the United Nations (FAO) in 1983. In a historicalUndertaking, the FAO declared plant genetic resources to bethe common heritage of mankind so that it can be freelyexchanged. This resolution apparently went in favour of thedeveloped countries, because instead of recognizing sovereignrights of the states over their natural biological resources, theUndertaking established rights of every individual on anynatural resources of this world. This means that anyone canfreely use the biological resources of any country, whichactually was the demand of the developed countries and themulti-national corporate world. But the developed countriesvehemently opposed this declaration, because by this Under-taking the FAO recognized the rights of humankind not onlyover the natural plant materials but also over any seed newlybred in the laboratories.

The concern for protecting the rights over naturalresources of the owner country and the rights of theknowledge of aboriginal communities in using theseresources, therefore, in this way, were coming into promi-nence during the last quarter of the twenty-first century,when individual ownership were claiming over biologicalmatters. In fact, the demand for individual ownership wasmore sought for after the emergence of recombinant DNAtechnology in 1973. This technology brought about a revo-lutionary change in the breeding technique. In this technol-ogy what is actually done is that a quality gene is first cutfrom the gene of a plant and thereafter it is inserted into thegene of another plant. A microorganism is used in this pro-cess of transformation as the carrier. The multinationalcorporate world, therefore, was also sought for the grant ofpatent, not only to biological materials but also to livingorganisms. Their demand was also finally granted by the

Introduction 5

US Supreme Court in the case of Diamond vs. Chakrabartyin 1980. This historical judgment strengthened the demandfor patenting biological matters.

The FAO undertaking of 1983, therefore, did not satisfythe corporate lobby. Succumbing to the mounting pressure ofthe lobby amendments were even made in the 1961 UPOVaccord in 1991, where all the exemptions that were granted tonew varieties of seeds in the 1961 treaty were revoked and thebreeders were granted, in addition to the rights of productionand sell of their seeds to the market, the rights of exportationand reproduction also.

However, the debate over the issue of rights of the state andthe aboriginal communities did not naturally end here,because what was claimed by the resource-rich countries andtheir aboriginal communities was very much legitimate. Todraw an end to the debate, the Biodiversity Convention of1992 gave recognition to the state sovereignty over theirbiological resources. It implies that like a breeder is entitled toget royalties for his newly bred seed, the country that pos-sesses the mother seed is also entitled to get royalties as theowner of the mother seed.

But even this effort of the Biodiversity Convention wentin vain to the insistence of the developed countries andtheir multinational corporate. The lobby went on pressur-izing in adopting the 1991 UPOV model. The fall out ofthis pressure is the Article 27.3(b) of the Trade RelatedIntellectual Property Rights (TRIPS) Agreement, whichadvocates for developing a sui generis model of law inprotecting plant varieties. This law should be such as toprotect the interests of all the stakeholders relating to plantmaterials.

Against this backdrop search for an effective law to protectthe interest of the stakeholders started. The present study isonly another among them.

6 Legal Protection for Traditional Knowledge

1.2 THE PROBLEM WE ARE FACING

The advancement of civilization is the outcome of advance-ment of science and technology. Science and technology,however, do not always progress in the laboratories. Ratherthis advancement often owes havoc to the knowledge ofcommon people. Common people gather this knowledge justby using their intellect, by the closer observation of nature andnatural resources, by the hunt for food and medicines for theirlivelihood. More often these were team effort, rather thanindividual. This collective knowledge of communities isknown as traditional knowledge. They are traditional in thesense that these communities have a long heritage of discoveryand development of such knowledge.

Discoveries of aboriginal communities acted as an impetusto the advancement of science and technology. But theyclaimed nothing in return. In fact, in initial stages of humancivilization discoveries in the field of science and technologyprogressed in this way, the discoverers never claimed anybenefit in return for their discoveries. Today who does know,who discovered fire or who was the inventor of wheels? Infact, the discoverers then dedicated their discoveries for theadvancement of human civilization.

However, the entire scenario started changing after theintroduction of patent right in the sixteenth century. Theinventors went on patenting their inventions for monetarybenefits. In the twentieth century a new trend emerged. TheMNCs in particular started patenting the knowledge, espe-cially of medicinal knowledge, of aboriginal communities intheir own name. This trend got accentuated after the birth ofbiotechnology in the 1970s.

The birth of biotechnology opened up a new horizon,especially in the field of medicines. Medicines are ‘normally’derived from biological matters. Biotechnology helps genetic

Introduction 7

modification of biological matters much easier and, thereby,helps in developing much more effective drugs. The advent ofbiotechnology, therefore, on the one hand, has increased theimportance of genetic resources and, on the other, raised thedemand for TK relating to folk medicines among the MNCs.This is so because, according to figures released by the inter-national pharmaceutical industry, it costs the industry500–600 million dollars to introduce a new drug in themarket. This is the basis for the industry’s call for that strin-gent protection of intellectual property rights (IPR). When acompany pirates a product based on TK and converts it into amedicine, it has ‘acquired’ a product that may be worthhundreds of millions of dollars (Sahai, 2004).

Rising demand for genetic resources along with TK even-tually raised the question of protecting the interests of theholders of the traditional knowledge. But no enterprisetowards extending such protection can be made full proofwithout legal support. Developing a legal framework for theprotection of traditional knowledge is thus the need of thehour.

This need is, however, more prominent in case of countrieslike India. Being one of the oldest societies of the world,aboriginal communities of India, through their keen andconscious observations over the years, have built up one of thelargest repositories of knowledge of medicinal preparations,method of treatment, literature, music, art forms, designs,marks etc. as well as a vast range of knowhow, skills, inno-vations, practices and learning. This traditional knowledgebase, in a sense, has become an expression of our culture also.

The plunder of this storehouse of knowledge is, therefore,not only an invasion on our economy, but also a brutal attackon the texture of our society and culture. Moreover, sincemany of the indigenous communities still rely on this knowl-edge for their livelihood misappropriation of the knowledge

8 Legal Protection for Traditional Knowledge