Traditional Knowledge Related Biodiversity and Genetic Resources in Developing Countries: Issues of Piracy& Protection
Introduction:
THE 21st century will be a century of knowledge, indeed a century of the mind. Innovation is the key to the production as well as processing of knowledge. It is the ability of nation to convert knowledge into wealth and social good through the process of innovation and it will determine its future. Several studies have pointed to the increasing significance of knowledge and Traditional Knowledge systems in sustainable development in India.
Until about 20 years ago, no one had heard about the term "Traditional knowledge". Now, the term "Traditional knowledge" is omnipresent. It is sought after by governments, studied in universities around the world, recognized in environmental-assessment processes, and promoted by international protocols for environmental protection and third world development. It is the back bone of cultural heritage. Traditional knowledge refers to knowledge, possessed by indigenous people, in one or more societies and in one or more forms, including, but not limited to, art, dance and music, medicines and folk remedies, folk culture, biodiversity, knowledge and protection of plant varieties, handicrafts, designs, literature etc. There is no universal definition of Traditional knowledge; however, scholars typically define it either as knowledge developed by indigenous communities or tradition-based intellectual activity.
Traditional knowledge
"Traditional knowledge is the information that people in a given community, based on experience and adaptation to a local culture and environment, have developed over time, and continues to develop".
This knowledge is used to sustain the community and its culture and to maintain the genetic resources necessary for the continued survival of the community. In other words we can say that:
"Traditional knowledge is the body of the knowledge built by a group of people through generations leaving in close contact with nature. It includes system of classification, set of empirical observations about the local environment, and a system of self management. That governs resource use."
Human communities have always generated, refined and passed on knowledge from generation to generation. Such "knowledge" is often an important part of their cultural identities. Traditional knowledge has played, and still plays, a vital role in the daily lives of the vast majority of people. It is very essential to the food security and health of millions of people in the developing world. Indigenous people often claim that their knowledge has been pirated by the MNC's. Traditional knowledge generally encompasses two forms of knowledge. (i)Medicinal or Plant knowledge (ii) Folklore or Traditional cultural expression. This knowledge is used to sustain the community and its culture and to maintain the genetic resources necessary for the continued survival of the community. The culture and knowledge systems of indigenous people and their institutions provide useful frameworks, ideas, guiding principles, procedures and practices that can serve as a foundation for effective endogenous development options for restoring social, economic and environmental resilience in many parts of the country. It is therefore essential that Traditional Knowledge Systems in the developing countries should not be overshadowed by the domination of cultures that foster inequality and materialism.
Traditional Knowledge is a pluralistic approach for conserving and managing natural resources. It is very dynamic and new knowledge is continuously added. In the recent past, there have been several cases of bio-piracy of Traditional Knowledge from India like Neem, Turmeric, Basmati, bitter gourd, brinjal, Ayahuasca, Hoodia Cactus, Rosy periwinkle, Kani tribe's jeevni drug etc. Currently India is struggling with the latest case of Ashwangandha. Even 90% world biological resources come from the under developed countries like Asia and Africa. Yet 97% of world patents (world-wide) hold by the MNCs. The MNCs trying to make killing out our own-age old knowledge. In this context, issues of generation, valuation, protection and exploitation of intellectual property (IP) are going to become critically important all around the world.
The importance of IPR in the Indian economy will have to be understood properly. Tomorrow's wars will be fought not by conventional weapons, guns, missiles and so on, but in the knowledge markets with new thermonuclear weapons called information and knowledge. The war on patent rights which took place between Eastman Kodak and Polaroid was settled for about one billion dollars recently. So these wars in the knowledge market will be expensive. As India plays its new role in a globalized world and changes its IP laws, it will have to gear up to fight these wars in both India and abroad.
The issue of protection of Traditional knowledge is debated in a wide range of international forums including World Trade Organization (WTO), World Intellectual Property Rights (WIPO), Food and Agriculture Organization (FAO), International Labour Organization (ILO), International Covenant on Economic, Social and Cultural Rights (ICESCR), Universal Declaration of Human Rights (UDHR), etc. The Trade Related Aspect of Intellectual Property Rights (TRIPS) Agreement is aiding the exploitation of biodiversity by privatising biodiversity expressed in life forms and knowledge.
Exponential growth of scientific knowledge, increasing demands for new forms of intellectual property protection as well as access to IP related information, increasing dominance of the new knowledge economy over the old ‘brick and mortar' economy, complexities linked to IP in traditional knowledge, community knowledge and animate objects, will pose a challenge in setting a new 21st century IP agenda. Intellectual property will no longer be seen as a distinct or self-contained domain, but rather as an important and effective policy instrument relevant to a wide range of socio-economic, technological and political concerns. The development of skills and competence to manage IPR and leverage its influence will need increasing focus, particularly in countries such as India.
Economical Prospective
The western world viewed IP and how built its economy. We have been late beginners, but we must catch up fast. It was the CSIR (Council of Scientific and Industrial Research), who is showing the way to the nation, ten years ago, CSIR secured only five to six US patents per year. In 2003, it secured 196 US patents in a single year! CSIR has been constantly among the top three in the list of top fifty PCT (Patent Corporation Treaty) filers brought out by World Intellectual Property Organization (WIPO) for the developing countries and has maintained a 30% to 40% share of the US patents granted to Indians in India.
A knowledge based industry needs to move aggressively and increase its share in IP. In particular our IT, pharmaceutical and biotech industries, among others, will have to face many challenges under the new IPR regime. The IT industry has maintained an impressive growth rate in software export and we dream of becoming an IT super power. For this to happen, we will have to reduce the content of body shopping and move on to innovative IT products, which will need IP protection. The Indian IT industry has so far not factored this in their strategic plans, but it will have to pay increasing attention to this aspect.
Legal Prospective
Although intellectual property covers diverse aspects such as copyright, trademarks, design, among others, it is the issue of patents that has attracted the greatest attention. Therefore, we need good patent laws in India. The first patent law in India was enacted in 1856. At the beginning of the 20th century, in 1911, the Indian Patents and Designs Act were enacted. The need for a comprehensive law so as to ensure that patent rights are not worked to the detriment of the consumer or to the prejudice of trade or the industrial development of the country was felt as early as in 1948. After several attempts a bill introduced in the Parliament came on the statute book as the Patent Act 1970. We have already made several changes in our IP acts over the years. The nation always needs a robust IP act to facilitate innovation, growth as well as development.
Before we protect IP we must generate IP which is worth protecting. We need to encourage the publication of R&D results in scientific papers only after careful consideration of the consequences on IP rights. It is hard to estimate the loss of Indian intellectual property due to the inadvertent publication of usable knowledge in the last few decades. There is a need for further exposure for those in the judiciary to deal with the evolving developments in the intellectual property field. In our country, the delay in law courts causes great frustration to the patentee, and as such it would be desirable to have the members of the judiciary exposed to the decisions and the guiding principles that emerge from them.
There are special areas of concern to India, and that includes its rich traditional knowledge base, in particular its great strength in traditional medicine. Indeed, traditional medicines (TM) play a crucial role in health care services and the health needs of a vast majority of people in developing countries, including India. The protection under intellectual property rights (IPRs) may cover certain aspects of TM. There have also been many proposals to develop sui generis systems of protection. Such proposals are based on the logic that if innovators receive compensation through IPRs, holders of traditional knowledge should be similarly treated.
The codification of TM varies significantly. A distinction can be made, particularly in India, between the codified systems of ‘traditional medicine' and non-codified medicinal knowledge, which includes ‘folk', ‘tribal' or ‘indigenous' medicine. Thus, in India, folk traditions are handed over orally from generation to generation. The ‘folk' medicine is based on traditional beliefs, norms and practices based on century's old experiences of trials and errors, successes and failures at the household level. These are passed through oral tradition and may be called, ‘people's health culture', home remedies or folk remedies. Individuals may possess TM. In some cases, for instance, healers use rituals as part of their traditional healing methods, which often allow them to monopolize their knowledge despite disclosure of the phytochemical products or techniques used. The codified tradition consists of medical knowledge with sophisticated foundations expressed in thousands of manuscripts covering all branches of medicine. Some examples are Ayurveda, Siddha, Unani and the Tibetan tradition.
The grant of patents on non-original innovations (particularly those linked to traditional medicine) which are based on what is already a part of the traditional knowledge of the developing world, have been a cause of great concern to the developing world. It was CSIR that challenged the US patent No. 5, 401, 5041, which was granted for the wound healing properties of turmeric. In a landmark judgment, the US Patent Office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by innovators having been known in India for centuries. This was a landmark event in the sense that it was the first time such a patent given on the traditional knowledge was challenged.
This case was followed by yet another case of revocation in May 2000. The patent granted to W.R. Grace Company and US Department of Agriculture on Neem (EPO patent no. 436257) by the European Patent Office too was quashed on grounds that its use was known in India. Then followed another case, India filed a re-examination request for the patent on Basmati rice lines and grains (US Patent No. 5, 663, 484) granted by the USPTO, and Ricetec Company from Texas decided to withdraw the specific claims challenged by India and also some additional claims.
The grant of patents linked to indigenous knowledge of the developing world needs to be addressed jointly by the developing and developed world. A recent study by an Indian expert group examined randomly selected 762 US patents which were granted under A61K35/78 and other IPC classes having a direct relationship to medicinal plants in terms of their full text. Out of these patents, 374 patents were found to be based on traditional knowledge, not that all of them were wrong. The governments in the Third World, as well as members of the public, are rightly concerned about the grant of patents for non-original inventions in the traditional knowledge systems of the developing world. At the international level, there is significant support for opposing the grant of patents on non-original inventions.
To mitigate this problem, the Government of India also has taken steps to create a Traditional Knowledge Digital Library (TKDL) on traditional medicinal plants and systems, which will also lead to a Traditional Knowledge Resource Classification (TKRC). Linking this to an internationally accepted International Patent Classification (IPC) System will mean building a bridge between the knowledge contained in an old Sanskrit shloka and the computer screen of a patent examiner in Washington. Hopefully this will eliminate the problem of the grant of wrong patents since the examiner will be aware of the Indian rights to that knowledge.
Conclusion & Suggestion:
As India begins this journey into the 21st century, a century of knowledge, its strategies not only on the generation of new knowledge but also its protection and valorisation will play a critical role. Our strategy has to evolve around bringing IP protection into the mainstream of our endeavours in education, science and technology, legal and judicial systems, trade and economics. Then alone can India move rapidly into a commanding position among the comity of nations.
Apart from the new act, we have to be prepared to face new challenges in diverse fields connected with IP. For instance, skills in filing, reading and exploiting patents will be most crucial in the years to come. We must properly protect our inventions and fully understand the implications of the patents granted to our competitors. Many of the patents written by our professionals could be easily circumvented. Manpower planning for IPR protection needs priority. IPR must be made a compulsory subject matter in law courses in our universities. The graduates coming out of engineering and technology streams have no idea about IPR, and yet it is these young people who will have to fight these emerging wars in the knowledge markets.
A number of patent training institutes will have to be set up. China has already set up several patent training institutes and we have none! Judicious management of patent information will require well-structured functioning of information creating centers, information documenters and retrievers, information users, IPR specialists and information technology experts.
Pradeep Kumar Gangwar
(Assistant Professor of Law)
Article Source: ArticlesBase.com
