Open Access Research Article
PROTECTING TRADITIONAL KNOWLEDGE, A CHECK TO BIOPIRACY BY: RUDRANI ROY
Published Paper
Article Details
AUTHORED BY: RUDRANI ROY
UNIVERSITY: UNIVERSITY OF MUMBAI
CLASS: THIRD
YEAR BLS LL.B
Abstract
Many people assume that India is home
to a broad variety of cultures and customs. India stands out as a country with
a richness of traditional Knowledge (TK) as a result. Traditional Knowledge has
been used for centuries to offer tried-and-true cures for human illnesses. It
is easier for outsiders to get patents on medical items that derive from
conventional medical processes due to the efficacy of alternative medical practices
and the general ignorance of patent offices. It is difficult for India to stop
bio-piracy since traditional knowledge is not legally protected and because it
is difficult to enforce intellectual property rights abroad.
In this research paper, we'll examine
the safeguards India has put in place to preserve its biodiversity and traditional
Knowledge. The paper also tries to draw attention to the danger that biopiracy
poses and the unethical ways that industrialized countries have illegally
profited on Indian Traditional Knowledge without compensating or recognizing
the indigenous Knowledge. The paper finishes with a few specific tips and
proposals that might aid in defending Traditional Knowledge from the threat
posed by Bio-piracy.
Keywords: Biodiversity, Traditional Knowledge,
Protection of Traditional Knowledge, Conservation of Biodiversity, bio-piracy.
Introduction
Centuries
of living close to nature, the Indigenous people all over the world possessed
mountainous knowledge of their surrounding natural environment. This knowledge
system is known as Traditional Knowledge. Knowledge such as Agriculture knowledge, Scientific
knowledge, Technical knowledge, Ecological knowledge, Medicinal knowledge, and
all sorts of Bio-diversity knowledge comes under the umbrella of Traditional
Knowledge. Besides that, “Expression of Folklore” in the form of music, dance,
song, handicraft designs, stories, artwork, biodiversity conservation, food
techniques, tradition-based literary works, and innovations are also part of
Traditional Knowledge. It is essentially culturally oriented or culturally
based, and it is integral to the cultural identity of the social group in which
it operates and is preserved.
“When an elder
dies, a library burns” this
old African proverb is most appropriate for the importance of Tradition Knowledge.
It is preserved and transmitted in a traditional context from generation to
generation. So, when the elders die, the full richness of tradition is
diminished, as some of it has not been passed on and so is lost. Formal
documents regarding the procedure of those pieces of knowledge may not be
recorded scientifically or technologically yet it doesn’t diminish its value as
an invention or scientific discovery or its value from the point of its
benefits. Around 370 million tribal and indigenous
people all over the world are the real custodian and holders of traditional
knowledge. Up to 80% of the world´s population depends on traditional medicine
for its primary health care.[1] This knowledge is indispensable for the lower division of society.
It also prevents land and soil degradation, fisheries depletion[2],
biodiversity erosion[3],
and deforestation.
But in recent
years Traditional Knowledge which is mainly based on biological sources is
threatened by Biopiracy by big multinational companies and
pharmaceutical companies. Biopiracy is a situation where indigenous knowledge
(Traditional Knowledge) of nature which is originated by indigenous people, is
used by others for profit, without permission from, and with little or no
compensation or recognition to the indigenous people themselves. In simple
words, it is theft of biological resources.
Developed countries are exploiting genetic resources and indigenous
communities’ traditional knowledge of developing countries in the name of
patents on the inventions derived from those genetic resources. Those big
medical companies use indigenous knowledge of medicinal plants for patenting
without recognizing the fact that the knowledge is not new or invented by the
patent applicant, and thereby the piracy deprives the indigenous community of
the rights to commercial exploitation of the technology that they themselves
had developed.
Significance
of Traditional Knowledge
The term "traditional knowledge"
refers to the information, customs, and beliefs that have been passed down
orally from one generation to the next within a certain society. This kind of
information is frequently connected to indigenous people and is seen as a
crucial component of their culture and identity. Traditional knowledge has a
number of important components, including:
Ø Preservation of cultural heritage :
Traditional knowledge is
frequently firmly ingrained in the cultural legacy of a group and is seen as a
crucial component of their identity. Communities are able to preserve their
cultural traditions and pass them on to subsequent generations through keeping
this information alive.
Ø Sustainable use of natural Resources:
The sustainable use of
natural resources is a subject that traditional knowledge typically addresses
through customs and beliefs.
By merging traditional
knowledge into modern resource management practises, we can make sure that
natural resources are utilised sustainably.
Ø Contribution to Scientific knowledge:
In a variety of
disciplines, including health, agriculture, and ecology, traditional wisdom has
added to our scientific understanding. Traditional wisdom serves as the
foundation for many current agricultural and medical procedures.
Ø Promotion of diversity and Inclusivity:
Traditional knowledge
encourages inclusion and diversity by recognising the contributions of other
groups and cultures.
Greater understanding and
respect for various cultures may be fostered by appreciating and recognising
traditional knowledge.
Reasons for
Bio-Piracy or Misappropriation of Traditional Knowledge
Bio piracy or misappropriation of
traditional knowledge can occur for various reasons, including:
A. Commercial Interests: Businesses may try to use
traditional knowledge and biodiversity for their own financial advantage
without paying proper recompense to the communities from whom they are
acquired.
B. Absence of legal protection - Traditional knowledge and
biodiversity are frequently not covered by intellectual property rules, making
them open to exploitation.
C. Inadequate benefit-sharing
arrangements -
Benefit-sharing agreements may not be clearly defined or may be insufficient,
which results in communities not being fairly compensated for their efforts.
D. Information Gap-Undervaluation and underappreciation
of these resources may result from a lack of understanding or awareness of the
importance and worth of traditional knowledge and biodiversity.
E. Power Inequality: When indigenous communities and
outside parties have unequal power, biodiversity and traditional knowledge may
be exploited without the communities' knowledge or permission.
F. Poor Governance-It may be challenging to stop and
deal with biopiracy and the theft of traditional knowledge if there are weak
governance and enforcement systems.
G. Globalisation and Market growth – Due to the growing demand for
traditional knowledge and natural resources as a result of market growth and
globalisation, there is more pressure to use these resources for profit.
Adverse
effect of bio-piracy on bio- diversity
The adverse effects of bio-piracy on
biodiversity can be significant and long-lasting. Here are a few examples:
A. Loss of Biodiversity-Bio-piracy can result in overuse of
natural resources and habitat damage, which can reduce biodiversity. Ecosystems
and the animals that depend on them might be severely harmed by this.
B. Disruption of traditional knowledge
systems -
Traditional knowledge systems from indigenous people are frequently stolen as
part of bio piracy. Their way of life might be disrupted, and they might lose
important cultural and ecological information as a result.
C. Disruption of traditional knowledge
systems -Biopiracy
might cause genetic variety to be lost because businesses may only use genetic
resources that are advantageous to their bottom line. Ecosystems may become
less resilient as a result, making them more susceptible to pests, diseases,
and climate change.
D. An unfair distribution of benefits - Bio piracy frequently leads to the
exploitation of genetic resources and their accompanying traditional knowledge
without the knowledge or benefit of the communities from whom they are taken.
Unfair social and economic conditions may result from this.
E. Insufficient sustainability - Biopiracy may lead to excessive
exploitation of natural resources without any regard for long-term
sustainability. This may lead to the exhaustion of resources and the
disintegration of ecosystems, which might have detrimental effects on
biodiversity and human well-being.[4]
Tool for
Prevention of Misappropriation of Traditional Knowledge
A.
The
Protection of Traditional Knowledge (draft articles):
The Committee received
the most recent version of the Draught Treaty on 22 March 2019, and between 17
and 21 June 2019, it underwent revisions. In the Preamble, it is acknowledged
that indigenous and local communities have the right to "maintain,
control, protect, and develop their intellectual property over their cultural
heritage, including their traditional knowledge;" recognized for new
regulations and standards on the supply of suitable and acceptable measures for
the preservation of existing information privileges, taking into consideration
variances in different legal systems. This is done in order to develop
"respect." It also recognises the independence, cultural identity,
and moral principles of conventional knowledge holders. The components of
misuse of traditional knowledge that are covered under the different
interpretations of the Draught Treaty[5]
include:
·
“Access” or “usage;”
·
Without "violation of national law in the
provider country," "without free, prior, and informed consent or
consent and participation and, where applicable, without mutually acceptable
terms," "in violation of customary law and existing procedures
regulating the entry or use of such traditional knowledge," or
"abuse;" or “abuse” except in the case of “violation of national law
in the provider country;” and
·
For “economic, science, education and technology
transfer.”
While there
are three alternatives to the objectives of the Draft Treaty, the first
addresses three key issues needed to protect traditional knowledge The Draught
Treaty specifically specifies that "this instrument's purpose is to
provide adequate protection of intellectual property against:
·
Misappropriated traditional knowledge;
·
Uncompensated traditional knowledge use; and
·
Error granting of intellectual property rights over
tradition.
The degree
of protection (and its terms) supports the following ideas::
·
Member States will respect the TK holders'
customary laws and customs.;
·
Member
States [will/should] take national action to ensure that TK holders have an
absolute and collective right to preserve, regulate, use, create, allow or
prohibit access to and usage/use of their traditional knowledge; and receive an
equitable and fair share of the benefits resulting from its use.
·
"Member
States [shall/will] take measures to ensure the integrity of traditional
knowledge" or to safeguard the (moral and financial) rights of TK owners.
B.
The
Convention on Biological Diversity (CBD) and The Nagoya Protocol on access to
genetic resources and the fair and equitable sharing of benefits arising from
their utilization to the CBD (Nagoya Protocol)
In accordance with the general
obligation set out in Article 8(j) of the CBD, States are required to
"value, protect, conserve, and encourage awareness" of indigenous
populations as well as to "encourage their broader use with the permission
and participation of the holders of that awareness." Additionally, States
must "promote an equal distribution of benefits resulting from the usage
of TK," according to the Convention on Biological Diversity.[6]
The Nagoya Protocol includes rules
for access, benefit-sharing, and compliance that address traditional knowledge
of genetic resources. In areas where indigenous and local communities have the
chance to give access to genetic resources, it also addresses such issues.
Taking into account the community's laws and processes as well as the customary
usage and exchange, Contracting Parties should take the necessary steps to
guarantee prior informed consent and a just and equitable distribution of
benefits for these communities.
C.
Traditional Knowledge Digital Library [7]
Ayurveda, Unani, Siddha, Sowa Rigpa,
and Yoga are some of the Indian medical systems with information that may be
found in the public domain on TKDL. Sanskrit, Urdu, Arabic, Persian, and Tamil
literature that is now in circulation has been translated into digital form and
is available in five different worldwide languages, including English, German,
Spanish, French, and Japanese.
There are only a few subgroups
related to medicinal plants available in the International Patent
Classification (IPC), so the Traditional Knowledge Resource Classification
(TKRC), an innovative structured classification system for systematic
arrangement, dissemination, and retrieval, has been developed for roughly 5,000
subgroups. To make it easier for foreign patent examiners to use, the
information must be categorised according to the International Patent
Classification (IPC) section, class, category, community, and subgroup. The ISM
and Yoga texts have been transcribed into the TKDL database, which contains
over 3.6 lakh formulations and practises.
The TKDL acts as a bridge between
regional language formulations and the patent examiner on a worldwide scale
because the archive can include information on both conventional and
international words in a language and format that is understandable to patent
examiners. It is anticipated that the problem of lack of access to traditional
knowledge in the past would be solved.
Ø Advantages of TKDL on Bio-piracy
I.
According
to estimates, several patents pertaining to the Indian medical system have been
improperly issued by patent offices all over the world.
II.
From the Indian Traditional Knowledge
International Patent Offices, over 15,000 patents were taken in 2003; this
number rose to 35,567 in 2005 and 85,000 in 2008 (Refs. 12, 14). The TKDL
Taskforce examined 4896 references to 90 medical plants available in the USPTO
database and discovered that 7 medicinal plants of Indian provenance were
referenced in 360 of the 762 patents on medicinal plants, accounting for 80% of
all references.
III.
A
significant number of patent applications have either been disallowed or withdrawn,
cancelled, or declared null and void based on the third-party observations that
the TKDL team filed. India receives free protection for about 0.250 million
medicinal formulations thanks to innovative TKDL.
IV.
Patent
examiners benefit from having quick access to the TKDL database since it
enables them to quickly determine the novelty of patent applications.
V.
The
process of contesting a granted patent typically takes 5-7 years and costs
between $0.2 million and $0.6 million. For instance, it took 10 years in each
of the first two cases and 13 years in the third to oppose the patents for neem
(EP436257), Enola beans (US patent No. 5894079), and Monsanto soybeans
(EP301749). This makes it obvious that TKDL will not only assist avoid the
early patenting of traditional Indian medicine but will also save money and
time.
Case Laws
Turmeric Case[8]
Indian cuisine uses turmeric rhizomes
as a flavour spice. Additionally, it possesses qualities that make it a useful
component of medications, cosmetics, and colours. For many years, it has been
used as a remedy for treating wounds and rashes.
A US patent (#5, 401,504) on the use
of turmeric in wound healing was awarded to Suman K. Das and Hari Har P. Cohly,
two Indian expatriates working at the University of Mississippi Medical Centre,
in 1995. The USPTO received a re-examination complaint from the Council of
Scientific and Industrial Research (CSIR), India, New Delhi, contesting the
invention on the basis of the previous art. According to the CSIR, the use of
turmeric as a medicine dates back thousands of years and has been used to cure
rashes and wounds. They were supported by historical evidence of accepted
knowledge, which included a prehistoric Sanskrit manuscript and a 1953 report
published in the Bulletin of the Indian Medical Association. The USPTO
cancelled the patent after receiving an appeal from the patent holder and
considering the CSIR's arguments. It was the first time a patent based on the
customary knowledge of a developing country has been successfully challenged,
making the Turmeric case a historical one. This patent was cancelled by the US
Patent Office in 1997 because it was determined that the invention lacked
innovation and had been known in India for centuries.
The Neem Case[9]
The oil derived from neem seeds can
be used to treat colds and flu; neem extracts are frequently employed against a
variety of pests and fungi that attack food crops; neem extracts combined with
soap can help treat malaria, skin conditions, and even meningitis. The US
Company W.R. Grace Company and the US Department of Agriculture received a
patent (EPO patent No. 436257) from the European Patent Office (EPO) in 1994
for a method of controlling plant fungus using hydrophobic extracted Neem oil.
A collection of foreign NGOs and lawyers for Indian farmers opposed the patent
in court in 1995.
They provided proof that the
fungicidal properties of neem seed extracts, which have been utilised for
generations in Indian agriculture to safeguard crops, are not patentable. The
EPO ruled in 1999 that none of the qualities of the current contention were
novel or inventive because they had already been known to the public before the
patent application. The European Patent Office (EPO) cancelled the Neem patent
in May 2000. Due to the EPO's earlier choice to revoke the patent on the
fungicidal qualities of the seeds obtained from the required seeds, the USDA
and the chemical multinational W. R. Thanks' request was denied in March 2006.
The Basmati Case [10]
Before the United Kingdom Trade Mark
Registry, Rice Tec, Man. Inc. submitted an application to register the
"Texmati" trademark. It was successfully resisted by the Agricultural
and Processed Food Export Development Authority (APEDA). The US Patent
5,663,484 granted to Rice Tec by the US Patent Office on 2 September 1997 was
one of the documents cited by Rice Tec as evidence supporting the granting of
the aforementioned trademark, and this is how this patent came to be the centre
of dispute. This US utility patent was remarkable in that it claimed that the
rice plant's characteristics were the same as those of ordinary Basmati rice
lines from India and that its regional range included North, Central, or South
America or the Caribbean Islands. On September 2, 1997, Rice Tec received the
patent from the USPTO. The patent had 20 claims that included a unique rice
plant as well as a number of rice lines, plants and grains, seed deposits, and
a technique for choosing a rice plant for breeding and reproduction. For rice
grains with traits resembling those of Indian Basmati rice lines, it made
claims 15 through 17. If properly used, these reasons 15–17 may have prevented
Indian exports to the US.
Regarding points 15–17, information
from the IARI (Indian Agricultural Research Institute) Report was used. The
Hyderabad Rice Research Directorate's 1978 germplasm selection supported the
discovery. experts from the CFTRI (Central Food Technological Research
Institute) evaluated the various grain qualities, and the assertions made by
CFTRI experts about grain characteristics were used to refute the allegations
15–17.
On April 28, 2000, a motion for the
re-examination of this invention was finally made. After finishing the proposal
for re-examination, RiceTec made the decision to strike claims 4 and 15–17.
Biopiracy of traditional knowledge is not just a problem in India.
Conclusion
In conclusion, Bio-piracy
is a major issue in India because it involves the utilisation of traditional
knowledge relating to biodiversity for financial gain without acknowledging or
compensating the communities who created and maintained it. The rights of
indigenous groups are violated by this practice, as is the fair use of natural
resources. India has made measures to address this problem with programs like
the Traditional Knowledge Digital Library, but more has to be done to safeguard
traditional knowledge and make sure that communities are acknowledged and paid
for their contributions. The international community must also cooperate to
create a legal framework that safeguards traditional knowledge and forbids the
theft of biodiversity. Considering all that has been seen, it is possible to
recommend the following actions to safeguard indigenous peoples' traditional
Knowledge and stop bio-piracy:
·
To
strengthen the TK base, TKDL should become more effective and work with an
increasing number of NGOs. Indigenous groups should be encouraged to
participate in the fight against Bio-piracy, and they should be given free
legal representation if they choose to contest a case involving a breach of
their traditional Knowledge.
·
Particular
criteria should be established so local indigenous populations can utilize
their resources with the greatest possible profit.
·
The
Biological Diversity Act 2002 must include provisions allowing anyone to
initiate lawsuits in the High Court alleging bio-piracy, unlawful use of
biological resources, unauthorized use of indigenous people's inventions, and
violations of Biological Diversity norms. By filing a lawsuit for an injunction,
the unlawful use may be stopped rather than only appealing to the High Court
after it has already occurred.
·
The
conservation of natural resources, related traditional Knowledge, and the
rights of the community that holds them must all be a priority for state
governments in their plans and programs.
·
The
government should identify local traditional knowledge practices, and it should
take action to include unsuitable techniques in research programs so that
indigenous people who are the holders of TK may profit from them. Between the
government, researchers, and indigenous people, it will foster trust and
respect.
·
A
more definite form of law is thus required since the Acts need more clarity in
certain areas that must be addressed to preserve indigenous people's rights to
protect indigenous Knowledge.
·
Few
judges or attorneys specialize in traditional Knowledge as a field of law.
Therefore, special tribunals should be set up to resolve disputes involving
traditional Knowledge quickly. Experts should be included in the team to speed
up the process and ensure that large business entities do not get patents via
unethical methods.
References
[1] Integrating Traditional
Medicine in Health Care by World Health Organisation Report
[2] Depletion occurs when more fish
are caught than they are able to reproduce to repopulate.
[3] Biodiversity erosion (or
biodiversity loss) encapsulates the notions of habitat and species loss,
habitat degradation, and habitat fragmentation.
[4] Farzin Naz, “Prevention of
Bio-Piracy under Indian Legal Regime for Better Conservation of Biodiversity” 1
ILPR, Volume 1 Issue 1 (2021)
[5] The reference to the "Draught
Treaty" likely pertains to ongoing discussions and negotiations within
international bodies or committees, and specific details of such a treaty may
not be publicly available.
[6] https://www.cbd.int/
[7] Council of Scientific &
Industrial Research, Bio-piracy of Traditional Knowledge, available at:
https://www.tkdl.res.in/tkdl/LangDefault/Common/Home.asp (Last visited on Dec.
2, 2022).
[8] Turmeric Case (Judgement) [1997]
U.S. Patent No. 5401,504
[9] Neem Patent Case (Judgement)
[2000] E.P.O. Patent No. 436257
[10] India-US Basmati Rice dispute,
[2001], U.S. Patent No 5663484 A.
Article Information
PROTECTING TRADITIONAL KNOWLEDGE, A CHECK TO BIOPIRACY BY: RUDRANI ROY
Authors: RUDRANI ROY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/13
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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