This article is written by Amay, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.
Each species in our biodiversity plays an important role in the ecosystem and the life cycle of other organisms, including humans. With the advent of technology, humans have been pushing the environment to its negative limit day in and out. The present times have seen a massive rise in outcry and support for the protection of the environment. The so-called human advancement and development have introduced so many things that make lives comfortable for us but have also put an additional burden on the limited natural resources at our disposal. Destruction of biodiversity is concerning because greater biodiversity would guarantee the availability of greater life forms which would continue the natural cycle and would preserve humanity by allowing people to be interdependent on them to continue the relationship.
Importance of biodiversity
One famous example to portray the importance of biodiversity, species, and interdependence of humans on them is an example of a campaign for whale killings. Earlier, a large number of fishermen used to campaign for the killing of local whales because they were concerned that the whales would reduce the fish population, a commodity on which the fishermen were greatly dependent. However, to their surprise, the reduction in whale population led to an increase in the population of killer whales who would now target different species as smaller local whales were not easily available. Killer whales killing other species led to a decrease in seals and otters, which in turn caused an unexpectedly high rise of urchins which led to the killing of many fish larvae; leading to loss of jobs for fishermen. This is how the interdependence with biodiversity works.
The practices and knowledge of the tribal population in India are an integral part of their identity which is closely linked to the biodiversity they live in. Their developing knowledge of working within biodiversity over the years has given them something that MNCs are looking to acquire for their profit-making motives. The acquiring of traditional knowledge of the tribes by applying intellectual property regime is a serious threat to the diversity and existence of tribes. MNCs exploit only with a profit motive and not a sustenance motive, this degrades the diversity and causes the threat of existence and disturbance of natural self-sustaining balance. Through this article, the author explores the measures that are being taken for the protection of ‘Traditional Knowledge’ from infringement by intellectual property rights, and how the Biodiversity Act can be used to protect traditional knowledge from being exploited by MNCs. I will look at the international conventions that are there to protect this and what aspects are covered by the Biodiversity Act.
Impact of IPR on traditional knowledge (TK)
Traditional knowledge cannot be precisely defined, but if a definition has to be attributed to the same, then the closest would be the definition provided under the Convention of Biological Diversity, 1992. Article 8(j) of the CBD provides an expansive explanation of traditional knowledge and it defines Traditional Knowledge as
“Traditional knowledge refers to the knowledge, innovations, and practices of indigenous and local communities around the world. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, the local language, and agricultural practices, including the development of plant species and animals breeds. Sometimes it is referred to as an oral tradition for it is practiced, sung, danced, painted, carved, chanted, and performed down through millennia. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, forestry and environmental management in general”
This definition shows that traditional knowledge has a very broad expanse and covers a wide range of knowledge that is developed, sustained, and handed down through generations of people belonging to the same community, and it forms an integral or essential characteristic of expression and existence of the community. Traditional knowledge has enormous commercial potential as it leads to the creation of beneficial products for society, and also encourages research on the knowledge to understand its adaptability and innovation of other things.
There are two dimensions of interaction between IPR and traditional knowledge. One is the defensive interaction where it is argued that IPR protects from the exploitation of traditional knowledge outside of the community. These defensive interactions are protective measures to enable the manifestation of culture and expression. The positive interaction is the use of IPR to allow the community to have the traditional knowledge, to be able to commercially exploit the knowledge. This positive interaction is what is argued and very usually accepted when the debate on the intersection of IPR and traditional knowledge spurs up.
This argument is flawed on two counts. The first is that the argument focuses on the primacy of the IPR regime over the environment. The focus of an IPR regime is to align incentives to invest and create, with market realities. That is to say that it considers only market valuation and economic value of a product or the traditional knowledge. Attaching mere economic value, that too only as per what the market perceives something as is insulting, to say the least. The whole idea of traditional knowledge is that it creates an environment that ensures sustainable development, so by merely accounting for the economic value we are denying the importance that environment has and shrouding it with the money value of the traditional knowledge. This leads to the adoption of a mechanism and further preference of using a mechanism that is more aligned with the objectives of corporates, which is maximising profits. So, the value that the market attaches to a technique or a piece of traditional knowledge does not account for how important it is to the environment and due to the low value that the market ascribes to it, the technique or piece of knowledge never comes to the forefront or even known to people.
- Hence the first argument is that, mere labelling as per the economic exploitative value of the IPR regime degrades the importance and prevents the spread of traditional knowledge to the wider public. Mostly the traditional knowledge is limited to few communities only, if industry does not see commercial value to these practices, then industry does not disseminate it. On the contrary they disseminate a practice that is harmful to the environment, but more economical.
- The second argument or criticism of the positive interaction is somewhat related to the first argument of the IPR regime, but this argument is not based on knowledge being spread. The IPR regime seeks to maximise incentives to ensure that people get economic benefit. Thus the threshold or the efficacy point is the point where the commercial exploitation of the traditional knowledge is possible.
This strikes at the core of environmental law or even constitutional values towards the environment. Legislations across the globe and all policies across the globe focus on sustainability, an approach that would integrate the objective of commercial exploitation of the IPR regime to environmental law principles would be disastrous and undo the progress that has happened over so many years. The idea of sustainable development is antithetical to the concept of commercial exploitation. Thus, saying that IPR would allow the holders of traditional knowledge to benefit from their cultural knowledge is a parochial answer to why IPR should not apply to traditional knowledge.
Invoking IPR to say that traditional knowledge that is used will give economic benefit to the community that has the knowledge is not the answer neither for the community nor the environment. The IPR regime will only give legal sanctity to the exploitation of natural resources which will adversely affect the environment and the delicate balance that the community maintains with the knowledge and practice. Though it is important that the knowledge is freely available to everyone, in the interest of the community that is dependent on the traditional knowledge and practices; it is essential that the unmindful/unsustainable use of natural resources is prevented. To ensure that biodiversity survives, it is incumbent to ensure that sustainable use is continued. Since it is this community that depends on the continued use of biodiversity, they themselves ensure that a delicate balance is maintained. Using the IPR regime to allow commercial exploitation to the benefit and ease of all will degrade, and eventually destroy the biodiversity.
Legal protection to trademark knowledge
With the above two arguments, it is evident that the argument of the positive interaction of IPR with traditional knowledge will be beneficial to the environment is misleading. With this in mind, we can conclude that IPR is not enough to protect traditional knowledge or our environment. Thus there are devoted laws in the national and international arena that shift focus towards traditional knowledge and away from IPR. For this purpose we will look at the International Convention on Biodiversity, the Nagoya Protocol on Access and Benefit Sharing, and the Indian
Biodiversity Act, try to understand whether there is adequate protection of traditional knowledge.
Convention on Biodiversity
The Convention on Biological Diversity came into force in the year 1993. This convention is a multilateral treaty that has been signed by 168 countries and the convention is more commonly referred to as the “Biological Convention”.
There are 3 main objectives that this treaty aims to achieve, and they are:
- To conserve the biological diversity across the globe;
- To guarantee or atleast to promote the sustainable use of biological diversity to ensure continued existence for future generations; and
- Finally to ensure that there is fair and equitable distribution of the profits arising out of the genetic resources and biological resources.
The Convention on Biological Diversity is the main document regarding biological diversity. It recognizes the contribution of traditional knowledge to biological diversity and sustainable development. The CBD has provisions that explicitly consider the importance of traditional knowledge and the need to protect the same.
Article 16.5 of the convention provides that the signatories must ensure that the IPR regime is used to support the traditional knowledge and not to counter the objectives of the convention. This approach makes it clear that the convention adopts the positive interaction argument which has been criticized above. This approach of the CBD shows that even though the convention was aimed at protecting the environment, still the corporate and profit-making agendas of countries overshadowed the altruistic environment preservation goals.
The problem that CBD faced was further exacerbated by the introduction of the TRIPS Agreement that is major legislation with respect to trade in IPR amongst the international community. It is a well-known fact that TRIPS was forced down India’s throat and it has led to major reforms to India’s IPR landscape. TRIPS has put IPR and property rights at the forefront and CBD seems to be making a compromise to the same even if it means damage to the environment. With that being about the primary approach, it is still a positive step as CBD recognises that there is inherent value in traditional knowledge not only in economical view but also for sustainable development.
The three main objectives of the CBD define its approach and like any principles of interpretation, the objectives define how the convention is to be understood. They show an approach of environment conservation, thus in case there becomes an irreconcilable conflict between IPR goal and environment law objective, the environment law objective will prevail. These three objectives of the CBD gave rise to Cartagena Protocol and the Nagoya Protocol, of which Nagoya Protocol becomes relevant because it understands the aim of spreading knowledge about traditional practices that are ecologically friendly and realizes that the benefit must first be extended to the tribal or the community that protects or possesses the traditional knowledge.
Nagoya Protocol on Access and Benefit Sharing
Nagoya Protocol on Access and Benefit Sharing (Nagoya Protocol) is a product that stems from the third object of fair and equitable distribution under the CBD. It was made in furtherance of promoting and safeguarding fair and equitable sharing of benefits of biological diversity and traditional knowledge naturally available across the globe. The protocol puts forth specific obligations that the parties have to ensure the conditions for accessing natural and biological resources by other parties. Further, the protocol gives specific recognition to traditional knowledge being held by local communities and indigenous communities and provides that the same shall be freely shared amongst the parties so that biology is conserved and ecologically friendly methods are promoted across countries. This will in turn enhance the biological diversity in regions, the aspect of sustainable development of biological diversity for well-being.
Article 7 of the Nagoya Protocol specifically deals with the access to traditional knowledge associated with genetic resources in our ecology and provides that any use of traditional knowledge shall be used only with the informed consent or the approval of the indigenous community holding it. Thus the protocol recognises that the ownership of the traditional knowledge belongs to the indigenous community and the balance of usage or exploitation of natural resources would depend on the community.
Article 12 of the Protocol further provides protection to the interests of the tribal or the indigenous community possessing the traditional knowledge by creating a positive obligation on the state to ensure that the has a mechanism that allows the indigenous community to participate in exploration, exploitation, development and the use of the traditional knowledge. The state has to also be mindful of the fact that the customs and practices of the community are not affected by the sharing of traditional knowledge, and the terms of sharing are fair and equitable by giving appropriate benefit to the community for sharing the knowledge.
Thus it can be seen that the Nagoya Protocol, which is an extension of the Biodiversity Conventions, has actually accounted for a lot of traditional knowledge that naturally occurs. It ensures that benefits go to people at large but the benefit and control of dissemination remain with the indigenous community that introduced and preserved the traditional knowledge. Though the author wants to put forth the argument that such protection is against the ethos of environmental law, it still provides some level of protection.
Biodiversity Act 2002
The Biological Diversity Act was enacted in 2002 as part of India’s obligation to adhere to the Biodiversity Convention. The Act focuses well on the third objective of equitable sharing of traditional and biological resources and through the third objective aims to achieve the other two objectives of promotion of sustainable development.
The Act has created a National Biodiversity Authority that is supposed to maintain a list of traditional practices and pieces of knowledge which are possessed by the indigenous community so that such pieces of knowledge are not given IPR protection, and in case any exploitation of the same has to be done, then the permission of National Biodiversity Authority shall be taken. This is the manner in which the Biological diversity Act seeks to protect the knowledge and allows the community to derive benefit from the sharing and commercialization of the same. The conceptual understanding of such commercialisation in environmental law legislation is not very prudent and my criticism against the same has been explained in the earlier part of this piece. The Biodiversity Act makes it mandatory for any foreigner or a foreign body to take the approval of the National Biodiversity Authority before undertaking any form of research or survey for commercial use of biological knowledge or practice. Indian companies and citizens have to take the requisite permissions from their respective state authorities.
In addition to these, no form of IPR protection can be claimed against traditional knowledge or biological resources as they will not qualify as a muster of novelty and originality. This requirement of novelty or inventive step was specifically added in the Indian patent regime to create a backdoor in order to escape the TRIPS agreement. This particular requirement is mentioned under Section 3(d) of the Indian Patent Act 1970 and through this India has been able to create a robust framework to protect its traditional and biological knowledge. The requirement is in line with the novelty and inventive step requirement under the TRIPS agreement.
Instances where traditional knowledge was provided IPR protection
There are a few famous instances where traditional knowledge was provided IPR protection outside India, and later the protection was removed after it was established that the practice was prevalent within the indigenous community of India, and thus there was no novelty or inventive step within these works.
- In the case of Neem, a US based company by the name of W R Grace patented a drug which was to be used as pesticide. The active and main ingredient in this drug was Neem. As per Ayurveda and many indigenous communities, Neem is a well known cure for many ailments and is a very widely used disinfectant by many tribal communities. The grant of patent protection to the drug in the US and EU patent office led to huge uproar, especially by the Indian community. Following this, opposition was raised to the US and EU patent office, and consequently the patent was removed in EU on the ground that there was prior knowledge of the same because of which the patent could not be said to be novel or involving inventive steps.
- Similar is the case of turmeric where patents were granted in US and EU for administering effective amounts of turmeric to heal wounds. Opposition to this was filed and subsequently the patent was revoked due to lack of novelty and inventive steps. These instances show how important the protection of traditional knowledge becomes for Indian society and culture, especially with respect to medicinal uses. India has a wide variety of biodiversity and traditional knowledge which is deeply intertwined with available flora and fauna. India is the home of a wide variety of indigenous tribes that have survived merely on biological resources and have unparalleled knowledge about the abilities of natural resources. This knowledge is greatly beneficial for human well-being but is being appropriated so meet self-serving means. To ensure that this does not decay the fabric of Indian culture, the Indian legislations have to play a proactive part in protection of traditional knowledge of indigenous communities.
Analysis of legal protection of traditional knowledge
The approach of protecting traditional knowledge through IPR itself is an incorrect manner to approach environment law protection, however, the committee report on CBD is correct to notice that not providing incentives for the use of traditional knowledge would not be practical, and in any case, if there is already existing piece of traditional knowledge, then IPR monopoly will not be granted because the same will not qualify the requirements under IPR itself.
All the legislative instruments, both international and domestic, focus on sharing knowledge and providing benefits to the indigenous community. The three main objectives of the Biodiversity Convention are to promote conservation of the biological diversity across the globe; to promote the sustainable use of biological diversity, and finally to ensure that there is fair and equitable distribution of the profits arising out of the genetic resources and biological resources. It is important to note that the first objective is the conservation of biological diversity, then is the sustainable use by humans, and finally is dissemination or sharing of knowledge. These objectives and the hierarchy of them are adequate to help in protecting our environment; however, it requires concerted efforts to achieve all these three goals and make the necessary sacrifices to achieve the primary goal of conservation.
The aims and objectives and their hierarchy are fine, however in implementation, only the second and the third objectives have been implemented and given importance. The first and the most important objective is lost sight of, and all the measures taken in the international and the domestic arena are aimed at either sustainable use or sharing of knowledge. There are two protocols under the CBD, Cartagena and the Nagoya Protocol; Cartagena Protocol is to ensure that there are sustainable development and precautions be taken when using a natural resource, the Nagoya Protocol ensures that the benefit from a natural resource is distributed to all and the community owning it is benefited as well, both of these show that conservation and leaving places alone without any intervention is not at the forefront. Had conservation been the aim driving all international communities, there would have been more concrete steps taken to prevent the use of natural resources and allow greater development of the same. So over time, the first objective of CBD, bringing the conservation of biodiversity, has been lost sight of, and resources are diverted only to the second and third objectives.
Biodiversity is an important aspect of the environment and is inherently linked to human life. It is recognised that the use of natural resources is immensely beneficial for us and thus the Nagoya Protocol is a concerted effort to ensure traditional knowledge is shared amongst parties for medical use and development. IPR has positive as well as negative impacts on traditional knowledge and the basing of environment law on IPR is a flawed mechanism that does not provide adequate protection to the environment. Even with such an approach, the CBD and the Biodiversity Act have an effective legislative intent as they promote conservation, sharing, and sustainable development. These three are the main objectives and they are necessary principles that have to be carried in any environment law legislation.
The CBD has led to the formulation of the Cartagena Protocol and the Nagoya Protocol that have been a means to achieve the goal of sustainability and benefit-sharing. The IPR based approach has managed to ensure that all signatory parties to the CBD have a robust intellectual property system that allows people to control the ownership of traditional knowledge. Thus the third goal of beneficial sharing has a well-established and enforced legal structure. The same cannot be said about conservation and sustainability because both these goals are antithetical to the intellectual property regime of exploiting the maximum capital gains. This contradiction is the part that could be the reason for such poor enforcement and implementation for conservation and sustainability.
- Ademola A. Adenle, ‘Failure to achieve 2010 biodiversity’s target in developing countries: How can conservation help?’ (Springer, July 2012) https://www.researchgate.net/publication/257537512_Failure_to_achieve_2010_biodiversity’s_target_in_developing_countries_How_can_conservation_help
- F Phillips ‘Intellectual Property Rights in Traditional Knowledge: Enabler of Sustainable Development’, (2016) 32 Utrecht Journal of International and European Law 83.
- Gehl Sampath, Padmashree, Richard G. Tarasofsky, Study on the Inter-Relations between Intellectual Property Rights Regimes and the Conservation of Genetic Resources, (EcoLogic 2002) https://www.ecologic.eu/13218
- Hannah Griffiths, ‘Understanding the Nagoya Protocol; your role in protecting World’s Biodiversity ‘, (OpenPlant, June 2017) https://www.openplant.org/blog/2017/6/23/understanding-the-nagoya-protocol-your-role-in-protecting-the-worlds-biodiversity
- Hetvi Trivedi, Protecting Traditional Knowledge – the India story till date’(SCC, April 2018) < https://www.scconline.com/blog/post/2018/04/23/protecting-traditional-knowledge-the-india-story-till-date/
- Indian Delegate, ‘Submission- Protection of Biodiversity and Traditional Knowledge- The Indian Experience’(WTO, July 2000) WT/CTE/W/156 IP/C/W/198 < https://www.twn.my/title/cteindia.htm>
- Kevin J. Gaston, Global patterns in biodiversity, Nature (2000) < https://www.nature.com/articles/35012228>
- Mark A. Lemley, “Property, Intellectual Property, and Free Riding”, (2005) 83 Texas Law Review 1031
- Namrata Pathak, “Protection of traditional knowledge: a comparative study of India and Bangladesh”(2008) Jawaharlal National University http://shodhganga.inflibnet.ac.in:8080/jspui/handle/10603/14508
- National Biodiversity Authority, ‘5th National Report to the Convention on Biological Diversity’ (2014) http://nbaindia.org/uploaded/Biodiversityindia/5th_NationalReporttoCBD.pdf
- Prashant Reddy, Sumathi Chandrashekaran, Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (Oxford University Press 2017).
- Prof S. Kannaiyan, “Biological Diversity and Traditional Knowledge” (Discussion Paper at National Consultation Workshop on Agro biodiversity hotspots and Access and benefit sharing) 2007, Annamalai University.
- WWF, Reviewing Intellectual Property Rights in Light of the Objectives of the Convention on Biological Diversity, (Joint Discussion Paper, March 2001)
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