ABSTRACT
In the perspective of preserving the world’s biodiversity, this research article examines the crucial problem of preserving traditional knowledge and preventing biopiracy. Traditional knowledge has proven to be a goldmine of vital information on maintaining ecosystems, managing sustainable resources, and cultivating medicinal plants. However, the unethical and immoral use of this knowledge, known as biopiracy, poses a serious threat to both the custodians of traditional knowledge and the world’s biodiversity.
In order to combat biopiracy and advance equitable benefit-sharing, it examines the function of international accords legal frameworks and forums like the Nagoya Protocol and the Convention on Biological Diversity. Also covered in the research report are certain strategies and initiatives adopted by India to combat biopiracy and also delving into the concept of Sui Generis legislation and why it is the need of the hour. It also discusses the significance of upholding the rights and interests of those who retain traditional knowledge.
This study makes the case for a holistic strategy for biodiversity conservation through a thorough analysis of case studies, policy frameworks, and academic literature. It highlights the importance of concerted efforts from governments, international organisations, researchers, and local communities to safeguard traditional knowledge, stop biopiracy, and guarantee the sustainable management of Earth’s diverse ecosystems.
KEYWORDS
Traditional Knowledge, Biopiracy, Misappropriation, Traditional Knowledge Digital library, Sui Generis legislation
INTRODUCTION
Traditional Knowledge hereinafter referred to as TK refers to the knowledge developed by local and indigenous communities over years and decades in order to cater to their requirements. Further, The World Intellectual Property Organization defines Traditional Knowledge as “indigenous cultural and intellectual property,” indigenous heritage” and customary heritage rights [1]. It is a vast repository of cultural knowledge which is susceptible to misappropriation and exploitation due to the vast potential that it holds and lack of its documentation in any tangible format.
Technological advancements over the past few decades, particularly in the field of biotechnology as well as pharmacy have further made us realize the importance of traditional knowledge. In the late 20th century when the world was witnessing globalization industrialization and liberalization, it became althemore imperative to protect traditional and indigenous knowledge from misappropriation and misuse.
The biodiversity and traditional knowledge of a country are directly interlinked to its natural composition and availability of natural resources. The naturally occurring resources such as minerals, soil type, vegetation play a vital role in the development of this vast repository of knowledge . Despite their being no specific proof as to how and when this knowledge or these remedies came into existence, it is evident that it has been culminating since a period in time when civilizations thrived as larger communities and relied more on cultural and traditional practices due to lack of being in touch with the outside world
METHOD
TRADITIONAL KNOWLEDGE MEANING AND SCOPE
TK essentially means knowledge native to a particular region or community, which is passed down through generations. This knowledge is developed by communities over decades in order to cater to their needs and is in most situations undocumented and passed down verbally through folklore and folk tales. It is but natural that regions with diverse ecosystems and civilizations as old as time like India and Africa possess a very large repository of traditional knowledge. However, due to lack of documentation and limited legal protection many of these have been lost in time . Although modern technology has replaced most manufacturing processes, TK is still prevalent and applicable due to its eco friendly methodologies , practices and survival over centuries. TK proves to be extremely prevalent in arts, husbandry, home remedies as well as large number of professions. It is pertinent to note that this form of knowledge is closer to nature and therefore more capable to being developed sustainably [2] .
India is an agrarian community and therefore specific Indian communities have largely relied on farming and agriculture related TK for centuries. Further, various traditional Indian communities are often antithetical to modern ways and urban lifestyle and as a consequence have continued to rely on and follow TK practices passed down by their ancestors [3]
Further, traditional knowledge also holds a lot of sentimental value attached to it and in times of despair and lack of scientific research, such as was seen during the Covid-19 Pandemic various local communities , even in the 21st century chose to resort to a cultural practices and home remedies to combat the symptoms of the virus. The age old recipe of the traditional “Kaadha” which is a eof a number of traditional Indian spices having antioxidant and and anti-inflammatory properties became a household staple during the peak of the outbreak.
TRADITONAL KNOWLEDGE PROTECTION
Biopiracy and Bioprospecting
The term “bioprospecting” refers to the gathering, study, and marketing of biodiversity in search of novel pharmaceuticals and other beneficial natural products (including fragrances, cosmetics, agro-chemicals, and functional foods). The development of medicines and remedies from natural resources has existed for centuries, despite the fact that using natural goods is typically considered of as a recent practice. Ancient books, such as the Chinese Materia Medica, the Vedas, or the Brahamanic of Hinduism, and many significant Arabic medical works, include evidence of this. Bioprospecting has however sparked a variety of moral questions about the use of source-country local communities’ expertise and anxieties about the ecological effects of collection. In an effort to allay worries, various regulatory frameworks at the international level were established and came into existence.[4]
On the other hand, biopiracy refers to the unauthorized use and exploitation of Traditional Knowledge without due compensation to its rightful custodians, in turn depriving them of their rights as well as monetary benefits . The genes of living organisms serve as the raw materials for the modern era of biotechnology. In order to get patents on the technologies resulting from those genetic resources, developed countries are abusing indigenous populations’ traditional wisdom and the genetic resources of developing nations. Biopiracy is the theft or usurpation of genetic materials, particularly plants and other biological materials, through the patent process. For instance, medical companies may use indigenous knowledge of medicinal plants for patenting without acknowledging that the knowledge is not novel or independently created by the patent holder.
And as a result, the indigenous population is denied the right to commercially use the technology that they themselves had produced due to piracy.[5]
TK is often susceptible to misappropriation and biopiracy due to lack of documented records and a proper mechanism for legal remedy.
Various indigenous communities have been responsible for protecting , preserving and bringing TK to the forefront over the last many years. This knowledge shared and cultivated by them has proven to be beneficial for the society at large.
Attempts to manipulate TK for industrial or commercial gain can contribute to misappropriation and can harm the rights of its legitimate custodians. The preservation, protection and promotion of TK are of grave importance particularly to developing nations . Their rich knowledge of TK plays a pivotal role in health care, food, religion, identity, climate , trade and development. Yet, this valuable asset remains under constant threat.
In a country like India for instance, medicine such as ayurveda, unani etc are part of the official healthcare system and rely deeply on biodiversity and TK.
Efforts to protect TK have been made at both the international as well as National level .
discussed further are the various international; forums and conventions that strive to protect traditional knowledge in order to prevent biopiracy and safeguard the interest of local communities
Convention On Biological Diversity
This convention was signed by 150 leaders of Nations during the Rio Summit and primarily aims at promoting sustainable development . The convention refers to Traditional Knowledge as knowledge, innovations, and practice of the indigenous community and the local community that embodies the traditional lifestyle for conservation and use of biological diversity
Mentioned below are the various Articles of the convention that provide for the protection and promotion of Traditional Knowledge
The first and most significant being
Article 8 (j) – It mandates that parties must safeguard the wisdom and knowledge possessed by indigenious communities and encourage a broader adoption of traditional knowledge through fair and equitable benefit sharing. However, the application and usage of such practices should be don with the prior consent of the communities possessing this knowledge
Article 10 (c ) – It mandates safeguarding as well as promotion of the customary use of biological resources in accordance with traditional cultural practices that align with the principles of conservation and sustainable development.
Article 15.5 – it states that obtaining prior informed consent for accessing genetic resources is crucial
Article 17 – Information exchange is discussed in Article 17. According to this Article, the parties must share knowledge based on indigenous and traditional knowledge. As it relates to biodiversity protection and sustainable usage, it also discusses the return of information to indigenous and local groups.
Article 18.4 – Parties must promote advancement and implementation of technological approaches in pursuit of the Convention’s approaches
Article 16 – Article 16 of the Convention recognises traditional knowledge as a key technology for effective practises of biodiversity conservation and sustainable use. In accordance with the procedural requirements established in Article 15 for access to gene.tic resources, including those based on informed prior consent and mutually agreed-upon terms,
The Nagoya Protocol
The adoption of Nagoya Protocol was one of the most relevant accomplishments of the COP 10 . This protocol happens to be the first international instrument of relevance to indigenous and local communities since the adoption of UN Declaration on the rights of indigenous peoples (2007). It essentially caters to Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) which is a supplementary agreement to the Convention on Biological Diversity introduced recognition and protection of traditional knowledge at international level and came into force on 12th October 2014. It states that the parties entering into an agreement must implement measures to secure the consent of communities in advance and ensure fair and just sharing of benefits.
WIPO
In order to address the issue of traditional knowledge protection, the World Intellectual Property Organisation (WIPO) works closely with other international organisations. To protect traditional knowledge, the Intergovernmental Committee on Intellectual Property and Genetic Resources conducts text-based negotiations.
It is imperative to protect inventions derived from traditional knowledge, and this can be done by securing patents or trademarks for them or by protecting them through techniques like geographical indications, trade secrets, or confidential information. The need to investigate two different forms of protection inside these systems is driven by the fact that traditional knowledge is frequently not sufficiently safeguarded within current intellectual property systems.
Doha Declaration
In paragraph 19 of the Doha Declaration of 2001, the TRIPS Council is advised to consider how the TRIPS Agreement and the UN Convention on Biological Diversity might cooperate to conserve traditional knowledge and folklore. This suggestion broadens the discussion revolving around Traditional Knowledge and its protection
UNCTAD
An expert meeting on national experiences and systems for the protection of traditional knowledge, innovations, and practices was organized by the United Nations Conference on Trade and Development (UNCTAD) in 2000 at the request of member states. A report with expert opinions was produced as a result of this meeting. The Commission adopted recommendations based on this report in February 2001. The paper emphasised the fact that talks on safeguarding traditional knowledge were occurring on a number of forums and emphasised the necessity of improved coordination and cooperation among intergovernmental organisations pursuing this objective on a global scale.
UPOV
On December 2, 1961, the Union Internationale pour la protection des obtentions végétales, or UPOV, formed the International Convention for the Protection of New Varieties of Plants. With its main office in Geneva, Switzerland, UPOV manages a distinctive system for protecting novel plant types.
The goal of the UPOV system is to create and support an efficient framework for safeguarding plant varieties while fostering the creation of new ones for the benefit of society. Specific requirements, such as being unique from existing varieties, uniform, stable, and novel, must be met by these newly generated varieties. In essence, this method makes sure that traditional knowledge about plant kinds and the benefits it brings about are protected.[6]
These are the major international forums and declarations that have discussed the issues revolving around the protection of Traditional Knowledge on various occasions
LEGAL FRAMEWORK CONCERNING TRADITIONAL KNOWLEDGE IN INDIA
Traditional Knowledge all around the world as well as in India is highly vulnerable and susceptible to biopiracy. In layman terms, it is vulnerable to being of commercially exploited .
Some countries do have specific legislation for the protection of traditional knowledge against biopiracy, however India does not have such a sui generis legislation in place. In the recent past there have been several cases of biopiracy of TK from India namely Haldi (Turmeric) case and neem case and periwinkle case from Africa are discussed towards the end of this article [7]
The Ministry of Aayush and the Council of Scientific and Industrial Research have collaborated to create the Traditional Knowledge Digital Library (TKDL), which is the most significant of the recent initiatives to safeguard traditional and ancient information. Texts in Sanskrit, Hindi, Arabic, Persian, and other ancient Indian medical books as well as information from them have been digitised in five different foreign languages: English, French, German, Spanish, and Japanese. Patent offices from all over the world who have signed non-disclosure agreements with the CSIR have access to TKDL. This keeps the origin and source of the knowledge authentic even while it is spreading across borders.
The Indian Patents Act, 1970 however does not provide any protection to Traditional Knowledge in particular. The act in section 3p states that inventions that are essentially traditional knowledge or that combine or duplicate well-known qualities of a traditionally known component or components are not patentable. Additionally, when biological material is utilized in an invention, the Patents Act, 1970 mandates that the source and country of origin be disclosed in the specification. [8]
Despite having a rich repository of Traditional and ancient knowledge , India till date has no specific legislation for the protection of this information , which very often renders the local communities and tribes helpless.
SUI GENERIS PROTECTION OF TRADITIONAL KNOWLEDGE IN INDIA
The term Sui Generis, derived from Latin essentially means “of a special kind”. In legal parlance, it is a regime that is customized and designed to suit a specific requirement.
Traditional Knowledge being information that is passed down from generation to generation very often is not recorded in any tangible form and therefore it becomes imperative that a “one of a kind” legislation is put in place in order to protect this information from misappropriation. The increased use and application of Indian origin traditional knowledge at a global level makes it increasingly susceptible to misappropriation and misuse by third parties.
Therefore it now the need of the hour for India to have its own legislation pertaining to Traditional Knowledge protection , one that would cater to the concern of the local communities and further protect India’s long preserved ancient remedies and “nuskas”.
A sui generis system of legislation would be beneficial for two reasons to establish an international legal framework to protect traditional knowledge (T.K.) and traditional cultural expressions (T.C.E.). First of all, it would lay the groundwork for an agreement that establishes minimal protection criteria and ensures more legal clarity. Second, the alignment of national laws would be made easier by this international framework, benefiting individuals who have rights to T.K. and T.C.E. As a result, they would be able to safely protect and trade their intellectual property assets without worrying about improper use or misappropriation.[9]
CASE LAWS
Neem Case
W.R. Grace and the US Department of Agriculture submitted the initial Neem patent application to the European Patent Office. The method covered by this patent involved utilising a formulation of neem oil to control plant fungus. India filed a court complaint to contest the patent’s granting.
The International Federation of Organic Agriculture Movements (IFOAM), the Research Foundation for Science, Technology and Ecology (RFSTE), based in New Delhi, and Magda Aelvoet, a former green MEP, joined forces to file an appeal to this patent.
One of the most valuable substances discovered in the Neem tree, a well-known emblem of India, is azadirachtin, which is present in its seeds. Neem has several applications and is extensively used for its astringent qualities. Indians have long utilised the bark, leaves, flowers, and seeds of the neem tree to cure a variety of ailments, including ulcers, diabetes, ulcerative colitis, and skin diseases. For a very long time, neem twigs have been used as natural antiseptic toothbrushes.
Ancient Indian Ayurvedic scriptures were cited in the objection to the patent to show that hydrophobic extracts of neem seeds had been known and used in India for ages. These extracts have been used to protect agricultural plants against fungus infestations as well as cure human dermatological problems.
The Neem patent was ultimately revoked by the European Patent Office (EPO) due to its lack of innovation, inventive step, and perhaps relevant prior art.
Turmeric case
Turmeric is a tropical plant commonly cultivated in Eastern India and has a wide range of applications including medicinal, culinary and dye. In India, for example, it is used to purify the blood, treat colds and as an antiparasitic medicine for various skin diseases. Turmeric is also a key ingredient in many Indian dishes.
In 1995, the University of Mississippi Medical Center in the United States received a patent for the wound healing properties of turmeric. This patent covered the use of turmeric powder both orally and topically for wound healing and granted exclusive rights for sale and distribution. However, the Indian Council of Scientific and Industrial Research (CSIR) objected and submitted documentary evidence of prior use to the United States Patent and Trademark Office (USPTO).
Although it was widely known that turmeric had been used in Indian households for generations, finding published information about its specific use for wound healing through oral and topical methods proved to be a challenge. Extensive research ultimately revealed 32 references in various languages, including Sanskrit, Urdu and Hindi. As a result, the USPTO invalidated the patent, finding that the claims were obvious and expected, and recognizing that the use of turmeric for wound healing was an ancient practice. This incident thus cemented India’s traditional knowledge of turmeric.[10]
Periwinkle Case
In 1954, technicians from an American company, Eli Lilly extracted two alkaloids, vinblastine and vincristine, from the Rosy Periwinkle plant, believing them to have anticancer properties. Eli Lilly received a patent for this isolation. Eli Lilly’s initial interest in Rosy Periwinkle stemmed from its traditional use as an anti-diabetic properties. It was only later through additional tests that its potential anti-cancer effect was discovered. During the patent period, the company made significant profits from drugs derived from Rosy Periwinkle alkaloids. The people of Madagascar who had traditional knowledge about the use of this plant, on the other hand, did not receive compensation or monetary beenfit. The discovery of Madagascar Periwinkle prompted the US National Cancer Institute (NCI) to launch a program to systematically test the plant’s anti-cancer properties. Between 1960 and 1982, the United States Department of Agriculture (USDA) and the NCI collaborated to collect and test about 35,000 plant samples from about 60 countries, mostly temperate. Although new benefit-sharing laws have been introduced, often only a very small proportion of a company’s profits go to the country from which the resource originates. Charles R. McManis, a law professor at the University of Washington, emphasizes that the fair and equitable distribution of benefits from the use of genetic resources remains uncertain.[11]
RESEARCH METHODOLOGY
This study’s main objective is to analyse how traditional knowledge along with biodiversity is being preserved on a global and national level while also evaluating how it affects indigenous populations’ rights. The goals of the study include an examination of the current conditions surrounding traditional knowledge and the global forums addressing this subject. In order to develop policy suggestions, the research findings will be carefully analysed in light of previous scholarly writings and legal frameworks In-depth analysis and recommendations will be provided at the study’s conclusion, and each will be supported by reliable sources used throughout the investigation.
SUGGESTIONS
Traditional knowledge must be protected and preserved legally in order to fight biopiracy, which calls for a diverse strategy. It is critical to strengthen legal systems both domestically and internationally. A basis for such protection is established by upholding existing accords like the Nagoya Protocol and the Convention on Biological Diversity. Prior Informed Consent (PIC) and Access and Benefit Sharing (ABS) must be promoted to ensure that before accessing information and resources, researchers obtain explicit consent from indigenous and local populations. In order to empower communities and lower the risk of biopiracy, community-based documentation should be promoted.
Biocultural protocols specify rules for equitable usage, access, and benefit distribution. Raising public awareness and promoting ethical bioprospecting are essential. In order to combat biopiracy internationally, international cooperation is essential. Supporting research centres within indigenous communities promotes self-sufficiency while legal help programmes and advocacy initiatives strengthen protection.
These tactics protect communities’ rights while preserving biodiversity when combined with efforts to preserve traditional knowledge and stop biopiracy.
CONCLUSION
In conclusion, the interplay and intersection between traditional knowledge and biopiracy is a complex and critical one and poses a grave global challenge . TK is known to hold the key to sustainable resource management and biodiversity preservation. However, the evil of biopiracy poses a threat not only to the rights of local communities but also the preservation of our planet’s naturally occurring resources.
A holistic approach needs to be devised to address this complex issue. A methos that encompasses legal frameworks, community empowerment, ethical bioprospecting and international cooperation. The rights of people who preserve traditional knowledge must be protected, and this requires both the acknowledgement of traditional knowledge as a valued asset and equitable benefit-sharing methods.
It is crucial that we develop a strong regard for those who have traditional knowledge and their responsibility as stewards of our shared environment as we move forward. By doing this, we can jointly fight against the injustice of biopiracy and safeguard the rich tapestry of traditional knowledge’s place in our world heritage.
SHIVANI MEHTA
AMITY LAW SCHOOL, NOIDA
[1] Protection of Traditional Knowledge in India by Patent: Legal Aspect, (Oct. 19, 2012), https://www.iosrjournals.org/iosr-jhss/papers/Vol3-issue1/F0313542.pdf.
[2] Prabhat Ranjan, Conservation of Traditional Knowledge In India and Use Of Knowledge Networks, First International Conference on Bridging Traditional Knowledge to Modern Science (Feb, 2020), https://www.researchgate.net/publication/339076877_Conservation_of_Traditional_knowledge_in_India_and_Need_of_Knowledge_Networks
[3] Rukma Lavania, Traditional Knowledge in India: A Legislative Analysis, ILI Law Review , (2020) https://ili.ac.in/pdf/rlava.pdf
[4] Benjamin Neimark, https://www.researchgate.net/profile/Benjamin-Neimark/publication/313599104_Bioprospecting_and_biopiracy_in_The_international_encyclopedia_of_geography_People_the_earth_environment_and_technology_eds_D_Richardson_N_Castree_M_F_Goodchild_A_L_Kobayashi_W_Liu_and_R_Marston_Malde/links/589f3ab7aca272046aac0c79/Bioprospecting-and-biopiracy-in-The-international-encyclopedia-of-geography-People-the-earth-environment-and-technology-eds-D-Richardson-N-Castree-M-F-Goodchild-A-L-Kobayashi-W-Liu-and-R-Mars.pdf
[5] Suvarna Pandey, Biopiracy Related to Traditional Knowledge and Patenting Issues https://birac.nic.in/webcontent/dib.pdf
[6] Diganth Raj Sehgal, Role of International forums in protection of traditional knowledge – iPleaders, IPleaders (July 26, 2020), https://blog.ipleaders.in/role-international-forums-protection-traditional-knowledge/.
[7] Dr. Vishwas Kumar Chouhan, Protection of Traditional Knowledge in India by Patent: Legal Aspect, 3, JHSS, 35, (Oct. 19, 2012), https://www.iosrjournals.org/iosr-jhss/papers/Vol3-issue1/F0313542.pdf.
[8] Measures Taken To Protect The Ancient And Traditional Knowledge Of The Country, https://pib.gov.in/PressReleasePage.aspx?PRID=1908022
[9] Aishwarya Lakhe, Need Of Sui-Generis Systems in IP Protection, Legal Services India, https://www.legalserviceindia.com/legal/article-9989-need-of-sui-generis-systems-in-ip-protection.html#:~:text=In%20this%2C%20Outsiders%20with%20such,rights%20over%20the%20subject%20matter.
[10] Saipriya Balasubramanian, Traditional Knowledge And Patent Issues: An Overview Of Turmeric, Basmati, Neem Cases., India (Apr. 18, 2017), https://www.mondaq.com/india/patent/586384/traditional-knowledge-and-patent-issues-an-overview-of-turmeric-basmati-neem-cases
[11] Authorship Collaborative, Rosy Periwinkle https://case.edu/affil/sce/authorship-spring2004/rosy.html.