A PROJECT REPORT ON:

Protection of Intellectual Property and Traditional Rights

Issues under Biodiversity Law
SUBMITTED TO:
DR. AZIM BAHADUR PATHAN
(FACULTY FOR ENVIRONMENTAL LAW)

SUBMITTED BY:
BHARAT

RAJ

ROLL NO.-51
IVTH SEMESTER

DATE OF SUBMISSION:

18TH FEBRUARY ,2015

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

TABLE OF CONTENTS

S.

NO

TOPIC
PAGE NO.

I.

ACKNOWLEDGEMENTS

II.

OBJECTIVES

4
III.

RESEARCH METHODOLOGY
4

1.

INTRODUCTION

5-6

2.

IMPACT OF INTELLECTUAL PROPERTY RIGHTS UPON TRADITIONAL KNOWLEDGE 6-8

3.

MEASURES RELATING TO PROTECTION OF TRADITIONAL KNOWLEDGE FROM

ENCROACHMENT BY INTELLECTUAL

PROPERTY RIGHTS (IPR)

9-16

5.

CONCLUSION

17

6.

BIBLIOGRAPHY

18

Acknowledgements
At the very beginning, I would like to thank all those who were the guiding lights behind this
project. First of all I would like to take this opportunity with esteem privilege to express my
heartfelt thanks and gratitude to my course teacher Dr. Azim Bahadur Pathan, (Faculty for
Environmental Law, H.N.L.U.) for having faith in me in awarding me this very significant
project topic. His consistent supervision, constant inspiration and invaluable guidance have been
of immense help in carrying out the project work with success.
Next, I would like to thank my colleagues for maintaining an academic atmosphere which helped
in creation of new ideas and lines of thought for the betterment of this project.
Subsequently I would like to thank my university for providing such an enriched Library, the
computer lab, internet facility without which this project would have been in a distant realm.
I extend my heartfelt thanks to my family and friends for their moral support and encouragement.
I also take this opportunity to thank all those people who contributed in their own small ways for
the completion of this project.

Objectives
1) To explain the impact of Intellectual Property Rights upon Traditional Knowledge.
2) To describe the various measures being undertaken relating to protection of Traditional
Knowledge from encroachment by Intellectual Property Rights.

Research Methodology
This project work is non-empirical in nature. It follows a descriptive-cum-analytical in approach.
It is largely based on secondary & electronic sources of data. Books & other references as guided
by the faculty of Environmental Law were primarily helpful for the completion of this project.

Introduction
4

In order to proceed effectively with the topic, there is a need to explain the basic ideas mentioned
in it. For simpler understanding, let us first understand the basic concepts mentioned in the topic
i.e. Intellectual Property, Traditional Rights and Biodiversity.
Intellectual property (IP) is a legal term that refers to creations of the mind. Examples of
intellectual property include music, literature, and other artistic works; discoveries and
inventions; and words, phrases, symbols, and designs. Under intellectual property laws, owners
of intellectual property are granted certain exclusive rights. Some common types of intellectual
property rights (IPR) are copyright, patents, and industrial design rights; and the rights that
protect trademarks, trade dress, and in some jurisdictions trade secrets. Intellectual property
rights are themselves a form of property, called intangible property.
Traditional knowledge (TK) has no clear definition. However, TK can be said to include
information on the use of biological and other materials for medical treatment and agriculture,
production processes, music, rituals, literature, designs and other arts. TK, therefore, includes
knowledge that can be used in medicine, agriculture, engineering and cultural events. TK
comprises knowledge mostly developed in the past and may still be developing. TK is
knowledge used by generations and is passed on to future generations as part of the communitys
property.1
Traditional Knowledge (hereby referred as TK) is mostly associated with traditional knowledge
systems used for various activities of people in India for their livelihood. These activities include
agriculture, fisheries, medicine, artisans, etc. The introduction of the modern technologies has
lead to the gradual decline of these knowledge systems.2
Biodiversity is the degree of variation of life. It is a measure of the variety of organisms present
in different ecosystems. This can refer to genetic variation, ecosystem variation, or species
variation (number of species) within an area, biome, or planet. Terrestrial biodiversity tends to be
highest near the equator, which seems to be the result of the warm climate and high primary
1 http://www.atpsnet.org/Files/technopolicy_brief_series_13.pdf
2 http://nopr.niscair.res.in/bitstream/123456789/1781/1/JIPR%2013%284%29%20326-335.pdf
5

productivity. Biodiversity is not distributed evenly on Earth. It is the richest in the tropics. 3
Knowledge, innovations and practices of indigenous peoples and local communities are a show
of their cultures. Protecting a peoples culture, therefore, entails preserving the link between the
people and natural features including plants and animals. Protection of TK can, therefore, help
conserve the environment andpromote sustainable agriculture and food security.4
While it is important to protect Intellectual Property Rights to secure the identity of innovations,
but when such rights invade biodiversity and lead to commercialization of bioresources and
Traditional Knowledge thereby depriving indigenous people of their livelihood, then it becomes
an urgent need that such granting of IPR should be controlled.

Impact of Intellectual Property Rights (IPR) upon Traditional Knowledge

(TK)
TK is widely known as a valuable attribute of biological diversity and is one of the important
sources of sustainable development in most of the developing countries. TK is associated with
many fields such as, agriculture, medicine, art and architecture, music, folklore, etc. where
biological resources are the main components utilized. In India, TK in its various forms fulfills
the human needs of the local and indigenous people in different ways. This has led to the
sustained food production, crop yields and health care.
TK is also considered as manifestation of culture. Traditional low-input agricultural systems,
based on extensive and applied knowledge about natural processes and local ecosystems have
successfully enabled millions of people to subsist for thousands of years in some of the most
hostile environments.5

3 Gaston, Kevin J. (11 May 2000). "Global patterns in biodiversity". Nature 405 (6783): 220227.
4 http://www.atpsnet.org/Files/technopolicy_brief_series_13.pdf
5 http://nopr.niscair.res.in/bitstream/123456789/1781/1/JIPR%2013(4)%20326-335.pdf
6

Bioresources under biodiversity are important for developments in the fields of food, medicine,
textiles, energy, recreation and tourism. Bioresources in India are mostly associated with
traditional knowledge systems used for various activities of people in India for their livelihood.
These activities include agriculture, fisheres, medicine, artisans, etc. The introduction of the
modern technologies has lead to the gradual decline of these knowledge systems. One of the key
results of the industrial revolution of the west is the creation of the intellectual property rights
(IPRs) regime - a system based on the western legal theory and economic philosophy.
IPR regime is now extended to the biological resources beyond the conventional domain of
mechanical and chemical innovations. It is argued that the evolution of modern IPR regime, as it
exists today, has essentially evolved in response to a need in the aftermath of industrial
revolution within Europe and does not in principle provide protection for the knowledge of the
traditional communities in public domain.
Many people have expressed the view that imposition of the current IPR systems will not be
suitable for the protection of traditional knowledge (TK).6
Of particular interest to many countries, especially in the 'developing' world, are the following:
a) Protecting indigenous knowledge (traditional and modern) from being "pirated" and used
in IPR claims by industrial/commercial interests;
b) Regulating access to biological resources so that historical "theft" of these resources by
the

more

powerful

sections

of

the

global

society

can

be

stopped

and

communities/countries are able to gain control and benefits from their use.7
Many have opined that the current IPR framework is ill equipped to reward the innovations that
have originated from a community of people.
The grant of patents on non-original innovations (particularly, those linked to traditional
medicines), which are based on what is already a part of the traditional knowledge of most of the
developing and mega-biodiverse countries without their consent have been causing a great
6 Supra Note 2.
7 http://www.iisd.ca/journal/kothari.html
7

concern. Though, consent is taken in some cases, it is however for an agreed purpose, temporary
in nature and mostly given on the basis of trust that recipients respect and uphold the conditions
and customary laws of the land. In reality, TK cannot be alienated from the community by
transferring ownership to another person or corporation because that knowledge is part of their
distinct and collective identity and has meaning in the context of that community and not outside
it.
Due to the growing demand for the bio-products in the recent decades, commercialization of the
traditional knowledge associated with the bioresources has been on pace all over the world. This
has adversely affected the livelihoods of TK holding societies and also caused serious threat to
the biodiversity. Hence, a need for the protection of TK and bioresources has been raised and has
become a topic of international debate.8
Even though there is private ownership of land or the demarcation of rights by different
communities to forest areas, tribal people and local communities have generally shared their
knowledge of the use of seeds, medicinal plants and techniques of production, harvesting and
storage, and also shared the seeds and genetic materials. This system of cooperative innovation
and community sharing is threatened by the new system of knowledge rights represented by IPRs
and the TRIPS regime. Many pharmaceutical corporations and bioprospectors are
misappropriating TK and making huge profits in the form of what is popularly known as
biopiracy. Many critics condemn, the northern [c]orporations are surveying remote areas of the
world for medicinal plants, indigenous relatives of common food crops, exotic sweeteners,
sources of naturally occurring pesticidesgenetic material and knowledge of the indigenous
people. The epithet biological colonialism, genetic imperialism, and even plain plunder
dominate many instances of the biopiracy narratives. The rampant commodification of TK
through its exploitation and appropriation has accelerated the debate of protecting TK and its
subset TM. In most of the cases, developing countries were the victims of these
misappropriations by the researchers, scholars and institutions from outside the community with
neither the consent of the community nor agreements to share benefits arising from the use of the

8 WHO, Traditional Medicinal Strategy: 2002-2005, WHO/EDM/TRM/2002 (WHO, Geneva), 2002.

8

knowledge, made them to counter the western protectionist measures in the form of IPR for the
knowledge that was already known to this part of the world.9

Measures relating to protection of Traditional Knowledge from encroachment

by Intellectual Property Rights (IPR)
Although many of the legal principles governing IP and IPR have evolved over centuries, it was
not until the 19th century that the term intellectual property began to be used, and not until the
late 20th century that it became commonplace in the majority of the world. The Statute of
Monopolies (1624) and the British Statute of Anne (1710) are now seen as the origins of patent
law and copyright respectively, firmly establishing the concept of intellectual property.10
While IPRs such as copyrights, patents, and trademarks are centuries old, the extension of IPRs
to living

beings and knowledge/technologies related to them is relatively recent. In 1930, the

U.S. Plant Patent Act was passed, which gave IPRs to asexually reproduced plant varieties.
Several other countries subsequently extended such or other forms of protection to plant
varieties, until in 1961, an International Convention for the Protection of New Varieties of Plants
was signed. Most signatories were industrialised countries, who had also formed a Union for the
Protection of New Varieties of Plants (UPOV). This treaty came into force in 1968.
In many countries, patents with full monopolistic restrictions are now applicable to plant
varieties, micro-organisms, and genetically modified animals. In 1972, the U.S. Supreme Court
ruled that microbiologist Ananda Chakrabarty's patent claim for a genetically engineered
bacterial strain, was permissible. This legitimised the view that anything made by humans and
not found in nature was patentable. Genetically altered animals, such as the infamous 'oncomouse' of Harvard University (bred for cancer research), were also soon given patents. Finally,
9 Supra Note 2.

10 Mark A. Lemley, Property, Intellectual Property, and Free Riding, Texas Law Review, 2005, Vol.
83:1031, page 1033.
9

several patent claims have been made, and some granted, on human genetic material, including
on material that has hardly been altered from its natural state.
Till very recently, these trends were restricted to some countries, which could not impose them
on others. However, with the signing of the TRIPs agreement and other similar agreements, this
has changed.11
The last few years have seen a range of significant developments related to intellectual property
rights (IPRs) and biodiversity. At least two major international agreements, both legally binding,
deal with this issue: the Convention on Biological Diversity (CBD) and the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organisation (WTO).
In addition, the World Intellectual Property Organisation (WIPO) and other international
institutions are increasingly becoming active on the subject.12
i)

Convention on Biological Diversity (CBD)

The birth of the Convention on Biological Diversity (CBD) in 1992 and inception of
TRIPS in 1995 marked the advent of a fierce debate on the place to be accorded
to traditional knowledge in the scheme of intellectual property protection. There were
three strands of thinking that came out in the debate. The first strand emphasised on
protection of TK within the framework of IP laws covered by the TRIPS. The second
strand laid stress on adjustments in non- IP laws including biodiversity conservation to
secure TK protection. The third perspective argued for setting up a sui generis
system of TK protection that was based on an amalgam of modern IP and non- IP laws
and regulations, including customary laws. In the first seven years of the existence of
the TRIPS, no solution emerged. Despite the Doha Declaration of 2001 paying
attention to the issue, we are yet to witness a conclusive end to the debate.1
The Convention on Biological Diversity (CBD), known informally as the Biodiversity
Convention, is a multilateral treaty.

11 Supra Note 7.
12 Supra Note 4.
10

Its objective is to develop national strategies for the conservation and sustainable use of
biological diversity. It is often seen as the key document regarding sustainable
development.
It links traditional conservation efforts to the economic goal of using biological
resources sustainably. It sets principles for the fair and equitable sharing of the benefits
arising from the use of genetic resources, notably those destined for commercial use.
The CBD has two interesting provisions relating to IPRs. One (Article 16.5) states that
Contracting Parties shall cooperate to ensure that IPRs are "supportive of and do not run
counter to its (the CBD's) objectives". However, this is "subject to national legislation
and international law". Another (Article 22) states that the CBD's provisions will not
affect rights and obligations of countries to other "existing international agreements,
except where the exercise of those rights and obligations would cause a serious damage
or threat to biological diversity". Read together and in the spirit of the CBD, many
people have said there is a basis for countering the runaway march of the IPR regimes
described above.
The ethical aspects of IPRs are serious, and to many communities and people the most
important reasons for opposing current IPR regimes: the patenting of life forms
(abhorrent to many traditional societies and modern conservationists because of its
assumption that nature exists apart from, and for the interest of, humans); the
privatisation of knowledge (repugnant to many societies which held knowledge to
largely, though by no means only, in the public domain); and others.13

ii)

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

It is an international agreement administered by the World Trade Organization (WTO)
that sets down minimum standards for many forms of intellectual property (IP) regulation

13 http://www.iisd.ca/journal/kothari.html
11

as applied to nationals of other WTO Members. [2] It was negotiated at the end of the
Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
TRIPS attempts to homogenize IPR regimes militate against a country's or community's
freedom to choose the way in which it wants to deal with the use and protection of
knowledge. Equally important, it contains no provision for the protection of indigenous
and local community knowledge. Such knowledge, because of its nature, may not be
amenable to protection under current IPR regimes. Finally, it has no recognition of the
need to equitably share in the benefits of knowledge related to biodiversity. Indeed, it
legitimises the conventional inequities that have characterised the interactions between
the

industrial-commercial

use

of

biodiversity-related

knowledge,

and

the

community/citizen use of such knowledge.

The negative impacts of TRIPs on the three objectives of the CBD are already beginning
to be felt, or threatened, in some countries (see national reviews by Dhar 1999 and
Anuradha 1999; see also box below). There is an urgent need to explore whatever spaces
are available within existing regimes, to counter these threats, and to examine alternative
regimes which have conservation, sustainable use, and equitable benefit-sharing built into
them.
TRIPS Agreement is incompatible with the international human rights norms and hinges
rights of the indigenous and local communities over their natural resources and
knowledge associated with those resources.
The TRIPS Agreement also does not provide any specific mention about the traditional
knowledge and innovations which are in the public domain. In actual sense, IPRs are
utilized as legal means to appropriate the traditional knowledge of the communities.14

iii)

World Intellectual Property Organization

14 Supra Note 2.
12

Under its programme relating to new intellectual property issues, WIPO has begun
looking in depth at the intellectual property aspects of access to genetic resources. As a
result of controversies arising from proposals by some developing countries during the
negotiations of the WIPO Patent Law Treaty to require certificates of origin for patent
applications involving genetic resources, it was agreed to establish a process under WIPO
for considering these issues in greater depth.

This led to the creation of the

Intergovernmental Committee on Intellectual Property and Genetic Resources,

Traditional Knowledge and Folklore, whose first session was held in 2001.
The Intergovernmental Committee has proven to be a venue for debating key issues,
enabling information gathering, and commissioning further analytical work. So far, it has
been unable to forge consensus, although it is still at an early stage of its work. 15 Its
mandate contains the following elements:
a) With respect to genetic resources:
Considering the development of best contractual practices, guidelines and model
intellectual property clauses for contractual agreements on access to genetic resources
and benefit-sharing, taking into account the specific nature and needs of different
stakeholders, different genetic resources and different transfers within different
sectors of genetic resources policy;
b) With respect to traditional knowledge:

Determining the scope of traditional knowledge in order to discuss the type of

protection which can be awarded by intellectual property rights.

Compiling, comparing and assessing information on the availability and scope of

intellectual property protection for traditional knowledge.

15 Richard G. Tarasofsky, Study on the Inter-Relations between Intellectual Property Rights Regimes and the
Conservation of Genetic Resources, p.21.

13

Considering the revision of existing criteria and developing new criteria, which
would allow the effective integration of traditional knowledge documentation into
searchable prior art.

Considering ways of assisting traditional knowledge holders in relation to the

enforcement of intellectual property rights, in particular by assisting them to
strengthen their capacity to enforce their rights.

It should be noted, however, that the level of stakeholder participation in this body is
less than what is common practice in meetings of Conferences of Parties in
international environmental agreements, partly on account of the complexity of these
issues.
Currently, negotiations are also ongoing in WIPO to develop the Substantive Patent
Law Treaty (SPLT).

Whereas the TRIPS Agreement establishes the minimum

required elements of national laws on intellectual property rights, the SPLT will spell
out the full substance of these rights in an effort to harmonise them. In its present
form, the draft treaty does not allow parties to make any further demands on patent
applicants other than those found in the treaty.16 This would preclude countries from
requiring the disclosure of country of origin of genetic materials and proof of prior
informed consent in their acquisition as part of the patent process, as these are not
included in the current criteria.
iv)

Biological Diversity Act, 2002

The Biological Diversity Act, 2002 is an Act of the Parliament of India for preservation
of biological diversity in India, and provides mechanism for equitable sharing of benefits
arising out use of traditional biological resources and knowledge. The Act was enacted to
meet the obligations under Convention on Biological Diversity (CBD), to which India is
a party.17
The National Biodiversity Authority (NBA) is a statutory autonomous body,
headquartered in Chennai, under the Ministry of Environment and Forests, Government

16 http://www.grain.org/publications/wipo-patent-2002-en.cfm, 2002 .
14

of India established in 2003 to implement the provisions under the Act. State Biodiversity
Boards (SBB) has been created in 28 States along with 31,574 Biological management
committees (for each local body) across India.
Functions of the Act
Regulation of acts prohibited under the Act
Advise the Government on conservation of biodiversity
Advise the Government on selection of biological heritage sites
Take appropriate steps to oppose grant of intellectual property rights in foreign
countries, arising from the use of biological resources or associated traditional
knowledge.18
A foreigner, non-resident Indian as defined in clause (30) of section 2 of The Incometax Act, 1961 or a foreign company or body corporate need to take permission from
the NBA before obtaining any biological resources or associated knowledge from
India for research, survey, commercial utilisation. [6] Indian citizens or body corporates
need to take permission from the concerned State Biodiversity Board.19
Result of research using biological resources from India cannot be transferred to a
non-citizen or a foreign company without the permission of NBA. However, no such
permission is needed for publication of the research in a journal or seminar, or in case
of a collaborative research made by institutions approved by Central Government.20
No person should apply for patent or other form of intellectual property protection
based on the research arising out of biological resources without the permission of the
NBA. The NBA while granting such permission may make an order for benefit
sharing or royalty based on utilisation of such protection.

17 "Biological Diversity Act 2002 and establishment of National Biodiversity Authority ,Chennai".
Ministry of Environment and Forests.
18 Section 18 of Biological Diversity Act, 2002
19 Section 7 of Biological Diversity Act, 2002
20 Section 4&5 of Biological Diversity Act, 2002
15

If a person, violates the regulatory provisions he will be "punishable with

imprisonment for a term which may extend to five years, or with fine which may
extend to ten lakh rupees and where the damage caused exceeds ten lakh rupees such
fine may commensurate with the damage caused, or with both."21
Any offence under this Act is non-bailable and cognizable.
v)

Sui Generis System - Sui generis is a Latin term meaning a special kind. In intellectual
property rights discourse (IPRs) the term refers to a special form of protection regime
outside the known framework. It can also be viewed as a regime especially tailored to
meet a certain need. In the African context, this regime becomes necessary in protecting
traditional knowledge (TK) and associated natural resources. TK does not neatly lend
itself to protection using the existing legal regimes because it is premised on the concept
of community property ownership whereas the existing forms of IPR regimes are based
on the Western concept of property ownership.
Costa Rica, the Philippines, Peru, Thailand and Venezuela have put sui generis regimes in
place. Costa Rica has a law on biodiversity under which traditional knowledge (TK) is
recognized. The 1987 Constitution of the Philippines recognizes traditional knowledge.
Peru developed a draft sui generis system whereby ownership, rights and appropriations
of indigenous people to TK are recognized. The law provides for indigenous people to
enter into knowledge licensing contracts. The law has also encapsulated the concept of
prior informed consent for knowledge that is not in the public domain. The law created
a fund for the development of indigenous people. The communities are expected to
receive 0.5% of sales from products developed based on TK. However, the draft was
widely resisted and is currently subject to further consultations. The local communities
complained that the proposed law was not compatible with their understanding of
resource rights.22

21 Section 6 of Biological Diversity Act, 2002

22 http://www.atpsnet.org/Files/technopolicy_brief_series_13.pdf
16

Conclusion
Traditional Knowledge (TK) is knowledge used by generations and is passed on to future
generations as part of the communitys property. In the present scenario, there is need to protect
Traditional Knowledge against loss and misappropriation. Many pharmaceutical corporations
and bioprospectors have been misappropriating traditional knowledge and making huge profits
in the form of what is popularly known as biopiracy and also indigenous knowledge (traditional
and modern) has been "pirated" and used in IPR claims by industrial/commercial interests, thus
depriving the communities of their rights upon Traditional Knowledge. Thus, in order to protect
such rights, measures like Biological Diversity Act, 2002, Sui Generis System, Convention on
Biological Diversity (CBD) have been put into effect both in India and internationally.

17

Bibliography
1. "Biological Diversity Act 2002 and establishment of National Biodiversity Authority,
Chennai". Ministry of Environment and Forests.
2. Gaston, Kevin J. (11 May 2000). "Global patterns in biodiversity". Nature 405 (6783):
220227.
3. Mark A. Lemley, Property, Intellectual Property, and Free Riding, Texas Law Review,
2005, Vol. 83:1031.
4. Richard G. Tarasofsky, Study on the Inter-Relations between Intellectual Property Rights
Regimes and the Conservation of Genetic Resources,
5. http://www.atpsnet.org/Files/technopolicy_brief_series_13.pdf
6. http://www.iisd.ca/journal/kothari.html.
7. http://www.grain.org/publications/wipo-patent-2002-en.cfm, 2002.
8. http://nopr.niscair.res.in/bitstream/123456789/1781/1/JIPR%2013%284%29%20326335.pdf.

18