Analysis of Nagoya Protocol from Traditional Knowledge policy imperatives 

Dr. Topi Basar

Introduction

Traditional Knowledge (hereafter TK) is no longer an alien term in the IP paraphernalia. In the last two decades, TK has acquired its own prominent place within the dynamic domain of IP law and it figures prominently in all crucial national and international discourse much interestingly. For which due credit goes to the developing countries like India, Brazil, South Africa, Peru, Philippines, South America etc. for being the strong proponents of global recognition of contribution of TK and need for its adequate protection. The matters of Genetic resources, Traditional Knowledge and Folklore or Traditional Cultural Expressions occupy center-stage position in the present knowledge based global economics. It is difficult to accurately mention when all these became a part of larger policy framework of Intellectual Property Laws. In 1998-1999, WIPO came out with a “Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge” which can be aptly described as the post WTO development. This was particularly in response to several bio-piracy or misappropriation cases that generated widespread debates on dangers of IPR and technological advancement and its impact on natural resources and TK whose main proponents were the developing nations. 

Definitional context

Some of the well-known definitions of TK are:

United Nation Convention on Biological Diversity (UNCBD) defines TK as “knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices. 

UNESCO, “Traditional knowledge is a cumulative body of knowledge, know-how, practices and representations maintained and developed by peoples with extended histories of interaction with the natural environment. These sophisticated sets of understandings, interpretations and meanings are part and parcel of a cultural complex that encompasses language, naming and classification systems, resource use practices, ritual, spirituality and worldviews”.

The World Intellectual Property Organization (WIPO) defines TK:

As the content or substance of knowledge resulting from intellectual activity in a traditional context, and includes the know-how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge embodying traditional lifestyles of indigenous and local communities, or contained in codified knowledge systems passed between generations. It is not limited to any specific technical field, and may include agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources.

The working definition of WIPO is the key rallying point of the ongoing draft negotiation on TK underway at WIPO.

Key issues and problems

The issue of TK is an offshoot of industrial development and search for newer innovation and technology based on scarce natural resources and quest for new products and industrial processes to fulfill the growing demand of the world. In today’s knowledge and information hungry society every single information of potential commercial value becomes the bone of contention. TK adequately fulfils such quest in many fields by providing valuable leads and informational content to the needy. TK is deeply rooted in community’s way of life and culture. When such knowledge systems are misused or illegally exploited without any consent or approval or any compensation by others, it gives rise to feeling of utter helplessness and loss of immense cultural treasures. India experienced it already in the past in regards to neem, turmeric and basmati patent cases. These cases are famously known as famous TK biopiracy cases fought by India across the foreign shore. The growth of IPR in manifold after the TRIPS agreement’s inception in 1994-95 led to emergence of new policy discourse on TK which was not there before. Therefore, bio-piracy or misappropriation of resources and related TK within the country as well as outside the country is definitely a big problem today. Besides this, many other complex issues are there in case of TK which require a proper legal and administrative mechanisms to deal with the entire gamut of TK centric problems in a holistic way. Another, core issues related to TK is its continuity itself i.e. what happens to TK when the custodian dies? How to ensure that its continuity is preserved? How can TK be made to be beneficial to mankind as a whole without compromising on the rights of the custodian to be compensated for the conservation of TK as a cultural heritage passed down by their forefathers? All these are rather complex matters not easy to devise a perfect solution. However, much headway has been already made in the last few decades.

Pre-Nagoya developments

There are several initiatives at the international level recognizing the significance of TK and matters related to it that is worth mentioning. The most important milestone so far in relation to TK is the adoption of CBD by the UN members in 1992. For the first time, an international treaty like this recognized the importance of TK and the need for its respect, protection, preservation and continuance in Article 8 (j) of CBD.

The Conference of the Parties (COP) has established a working group specifically to address the implementation of Article 8 (j) and related provisions of the Convention. This working group is open to all Parties and, indigenous and local communities’ representatives play a full and active role in its work. Traditional knowledge is considered a "cross-cutting" issue that affects many aspects of biological diversity, so it will continue to be addressed by the Conference of the Parties and by other working groups as well. The Conference of the Parties requested the Ad Hoc Working group on Access and Benefit-sharing with the collaboration of the Ad Hoc Working Group on Article 8 (j) and Related provisions to elaborate an international regime on access to genetic resources and benefit sharing with the aim of adopting an instrument/instruments to effectively implement the provisions in Article 15 and Article 8 (j) of the Convention and the three objectives of the Convention. This is an ongoing priority of the Convention.

Similarly, WIPO is also actively involved with issues on TK mainly with the intellectual property aspects of TK protection. WIPO provides a forum for international policy debate and development of legal mechanisms and practical tools concerning the protection of TK and traditional cultural expressions (folklore) against misappropriation and misuse, and the intellectual property (IP) aspects of access to and benefit sharing in genetic resources. In 1998 and 1999, WIPO consulted a wide range of stakeholders, such as indigenous peoples and local communities, NGOs, governmental representatives, academics and the private sector, to identify the IP needs and expectations of the holders of TK and cultural expressions. Currently, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC), which met for the first time in 2001, is discussing draft provisions for the enhanced protection of TK and traditional cultural expressions against misappropriation and misuse.

Convention on Biological Diversity (CBD), 1992

The CBD came in to force from 29 December 1993. Originally signed by 150 government leaders at the 1992 Rio Earth Summit. It is dedicated to promoting sustainable development and conceived as a practical tool to realize the principles of Agenda 21 in to reality. Currently the CBD has 193 state parties. India ratified the treaty on 18 February 1994. The CBD is an international treaty to sustain the diversity of life on Earth. The three main objectives of CBD are:

1. The conservation of biological diversity

2. The sustainable use of its components

3. The fair and equitable sharing of benefits arising from genetic resources.

By far this is the most important international treaty having some strong relevance on TK and other issues connected to it.

Relevant CBD Provisions on TK

The CBD is the primary international instrument with the mandate to address issues regarding the respect, preservation and maintenance of knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant to the conservation and sustainable use of biological diversity. The most important articles of CBD pertaining to TK protection is article 8(j) and provisions relating to Access and Benefit Sharing contained in arts.15, 16, 17 and 19 of the convention. 

Article 8(j) calls upon the parties to establish mechanisms to respect, preserve and maintain traditional knowledge of indigenous and local communities, to promote its wider application, with prior informed consent and to provide for equitable sharing of benefits arising from use of such knowledge. This mandate is subject to the member states national framework and shall not in any way interfere with their sovereign rights to establish its own suitable domestic measures. Article 8(j) is more of directive in nature. It lays down basic guiding principles for the members. It is not stating any mandatory legal requirement. But, even if it lacks legal sanctity its noble values are respected by the parties that have ratified the treaty. As many countries have implemented Article 8(j) within its domestic laws as a basic premise to build on the legal framework on TK.

The CBD has a reporting mechanism under it whereby the parties do periodic reporting on the status of its implementation of Article 8(j). Out of 193 CBD parties, 4 regions (African Union, Andean Pact, Central American Countries, and Nordic Region) and 41 countries have implemented CBD’s mandate on TK and ABS in varied ways and means. Many other countries are in the process of implementing it realizing the fact that protection of TK and equitable ABS are both international as well as national requirement. However, there remain several challenges and obstacles facing countries in the implementation of Article 8(j) ranging from financial, capacity, social, political, public awareness and demographic obstacles. Poverty also remains a high challenge, particularly among African countries.

1. Article 10 (C): Calls upon the parties to protect and encourage the customary use of biological resources as per its traditional cultural practices that are compatible with conservation or sustainable use requirements. This is of special relevance to indigenous and local people and their TK. They are the real holders of vast repository of TK in varied fields. They are guided by the principle of conservation and sustainable use of resources in their cohesive social existence. The continuance of their traditional cultural practices and way of life is essential for all. The indigenous and traditional communities play a key role in the preservation of TK. They are an important link between biodiversity and sustainable management or use of it.

2. Article 15: This Article deals with the most important aspect i.e. access to genetic resources.It is of great significance to both genetic resource rich countries and the party who want to access it. The authority to decide who shall access the genetic resources rests with the country that owns it. It recognizes national sovereignty over one’s own genetic resources. It is not treated as common heritage of mankind. The principle reflects the assertion of GR rich countries to be in a better bargaining position vis-à-vis developed countries with rich technology to harness GR. The access of GR, if granted, should be on mutually agreed terms (MAT) and prior informed consent (PIC) of the contracting party providing such resources. Any scientific research based on GR will have to be carried out with the full participation of the contracting party who provides such GR. Parties will have to take adequate measures for equitable benefit sharing arising from R&D results and commercial utilization of GR based on MAT.

The sharing of genetic resources and access and benefit sharing of GR and associated TK have always been a contentious issues with the parties of CBD. As already discussed in chapter 4, the parties have been engaged in negotiation for almost a decade to establish an ABS regime at the international level, but they disagreed on many aspects of the proposed regime that has delayed the adoption of any law. However, on March 2010, at the Cali meeting of CBD working group on ABS, a draft protocol for an international regime of ABS has been agreed upon by the negotiators that will be further deliberated upon before its final adoption on October 2010 at Nagoya Japan. Still there are many contentious issues in the draft protocol that raises doubts on its final adoption. 

3. ​Article 16: States that the contracting party taking GR from the provider country should make available access to and transfer of technology developed from the use of GR of provider country. The parties have recognized the relationship of intellectual property systems and the CBD and the possibility of the former to influence the implementation of the convention. They are of the view that IP regime must be supportive of the Convention and complement its objectives. Patents are mainly claimed for inventions arising from the application of GR. Hence, it is important to ensure that these laws do not run counter to the objective of the Convention. Community and individual concerns over, and claims to, intellectual property relevant to traditional knowledge should be acknowledged. Knowledge holders should be allowed to retain existing rights, including the determination of intellectual property rights, over their traditional knowledge.

4. Article 19: Provides that the Contracting Party receiving a genetic resource shall take legislative, administrative or policy measures as appropriate, to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms. The growth of biotechnology and genetic engineering is largely dependent on the biological or genetic resources largely available only in the developing countries. Therefore, handling of biotechnology and equitable distribution of its benefits is an important concern for all. The GR rich countries must have adequate legal framework on access; benefit sharing measures and the user country must be obliged to respect them.

Commencement of Nagoya

The Nagoya Protocol was adopted at the tenth meeting of the Conference of the Parties (CoP) to the Convention on Biological Diversity (CBD) held in Nagoya in October 2010. The Protocol significantly advances the objective of the Convention on the fair and equitable sharing of benefits arising from the utilization of genetic resources by providing greater legal certainty and transparency for both providers and users of genetic resources including researchers and industry. By promoting the use of genetic resources and associated traditional knowledge, and by strengthening the opportunities for fair and equitable sharing of benefits from their use, the Protocol will create incentives to conserve biodiversity, sustainably use its components, and further enhance the contribution of biodiversity to sustainable development and human well-being. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity is an international agreement which aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way. It entered into force on 12 October 2014, 90 days after the date of deposit of the fiftieth instrument of ratification.

Its importance

The Nagoya Protocol will create greater legal certainty and transparency for both providers and users of genetic resources by:

• Establishing more predictable conditions for access to genetic resources.

• Helping to ensure benefit-sharing when genetic resources leave the country providing the genetic resources

By helping to ensure benefit-sharing, the Nagoya Protocol creates incentives to conserve and sustainably use genetic resources, and therefore enhances the contribution of biodiversity to development and human well-being. 
Relevance for TK

The Nagoya Protocol addresses TK associated with genetic resources with provisions on access, benefit-sharing and compliance. It also addresses genetic resources where indigenous and local communities have the established right to grant access to them. Contracting Parties are to take measures to ensure these communities’ prior informed consent, and fair and equitable benefit-sharing, keeping in mind community laws and procedures as well as customary use and exchange. This is by far the most important international legal instrument which explicitly recognizes the rights of indigenous and local communities on its TK.

The NP has some key features relevant for TK, namely-

1. Each Party shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these genetic resources, are shared in a fair and equitable way with the communities concerned, based on mutually agreed terms.

2. In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.

3. Parties shall in accordance with domestic law take into consideration indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources, effective participation of the indigenous and local communities concerned, Community protocols in relation to access to traditional knowledge, minimum requirements for mutually agreed terms to secure the fair and equitable sharing of benefits, not restrict the customary use and exchange of genetic resources and associated traditional knowledge within and amongst indigenous and local communities.

4. to provide that traditional knowledge associated with genetic resources utilized within their jurisdiction has been accessed in accordance with prior informed consent or approval and involvement of indigenous and local communities and that mutually agreed terms have been established, as required by domestic access and benefit-sharing legislation or regulatory requirements of the other Party where such indigenous and local communities are located.

Reflection on Indian Position in light of Nagoya Protocol

India has been a victim of misappropriation or bio piracy of our genetic resources and associated traditional knowledge as discussed before. It is expected that the Nagoya Protocol on ABS which is a key missing pillar of the CBD, would address this concern. 
In order to prevent bio piracy, the Government of India in 2002 brought out domestic legislation for ABS, namely, Biological Diversity Act, 2002. After requisite number of ratifications of Nagoya Protocol and its becoming an international law from 12th October, 2014, this will supplement our domestic efforts. 

Pursuant to the Convention on Biological Diversity (CBD), India enacted the Biological Diversity Act in 2002 and notified the Rules (Biological Diversity Rules) in 2004 to give effect to the provisions of the Convention including those relating to Access and Benefit Sharing (ABS). The Nagoya Protocol on ABS is also being implemented through the Biological Diversity Act, 2002 at the national level. 

The Biological Diversity Act, 2002 is implemented through a three-tier institutional mechanism: The National Biodiversity Authority (NBA) at the national level; State Biodiversity Boards (SBBs) at the provincial (State Government) level; and the Biodiversity Management Committees (BMCs) to be set up by the elected bodies at the local level. While all the provincial Governments (29 in all) have set up SBBs, setting up of BMCs is an ongoing process. So far, over 62,000 BMCs have been constituted by the local bodies in 26 states. For the implementation of various provisions of the Biological Diversity Act, 2002 several notifications have been issued so far. The Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations, 2014, (hereinafter referred to as ABS Regulations, 2014) prescribe the scheme of processing the applications, along with template and terms for benefit sharing.

The Biological Diversity Act and the Rules have been critically examined before by the Author which remains the same even after the commencement of Nagoya Protocol and its ratification by India. In many States of India, the so called “Biodiversity hotspot” namely North Eastern region the laws on biodiversity and its implementation is dismally low except for Sikkim and Meghalaya who have made some progress by constituting BMCs and also having its State biodiversity policy. Despite the absence of specific laws on TK in the country, in other words existing gaps in the existing laws as cited above, the community practices or systems embodying TK in itself by the indigenous community offers much scope and potential in protecting TK. Many indigenous communities of North East States have well established community protocols or customary laws governing natural resources and its sustainable utilization of which TK forms an integral part. This is in fact well recognized by the Nagoya Protocol also as discussed before, however the Rules of 2004 fails to take account of that. The community protocols and systems of TK management at the local level must be further strengthened and empowered by a proper policy based on the existing Act and Rules in line with the Nagoya Protocol. India might be a global champion for protection of Nations TK but somewhere we have been ignoring the real interest of the community who have nurtured it or kept it alive. So far, it is mainly a government driven initiative for the sake of showing mandatory requirement like State or National reporting to CBD but the real stakeholders are left out in the bargain. 

Challenges and opportunities of Nagoya Protocol

According to a study commissioned by Centre for International Sustainable Development Law (CISDL) titled, “overview of national and regional measures on access to genetic resources and benefit-sharing, Challenges and Opportunities in Implementing the Nagoya Protocol, 2012” it reviews the ABS measures in countries from Latin America and the Caribbean, Asia, the South Pacific, Africa, Europe and North America as well as the regional measures of the Andean Community, ASEAN, the African Union, European Union and the Nordic countries. Its findings are:

• Most of ABS regulations provide for legal certainty, clarity and transparency of domestic requirements in a clear and simple manner. However, in some cases there are some difficulties related to the institutional arrangements in place in the country to handle the request due to lack of internal coordination.

• Most countries provide for non-arbitrary rules and procedures for accessing to genetic resources. In most countries, the applicant can either be a local or a foreigner person, but natural persons are often required to be affiliated to an institution/legal person.

• A few countries addressed the issue of transboundary GR or associated TK, especially Peru, the Andean Community and the Central American Protocol (this regional measures in a general manner).

• Most of ABS regulations provides for PIC and benefit-sharing agreement between the applicant and the provider.

• Most of ABS regulations provide for the establishment of a benefit-sharing agreement between the applicant and one or several provider or proof that benefit sharing has been established with relevant providers (India).

• The Andean Community common regime, Peru, and Brazil’s regulations also recognize and protect the rights of the indigenous peoples to decide about their innovations, practices and knowledge associated with genetic resources. In some countries specific legislation exists to guarantee the right of Indigenous peoples over their TK or genetic resources located in their lands, in addition to the broader ABS measures (e.g. Venezuela, Panama, Peru, Philippines).

• However, very few laws set out procedures for obtaining PIC of ILC and very few other countries have developed model contractual clauses for MAT (Australia, Costa Rica, the Andean Community and Peru).

• Specific recognition of customary law or community protocols is provided indirectly in some ABS systems, but there is a lack of detailed guidance on these issues.

• Few of the national and regional ABS measures contain clear compliance related provision.

• Ownership of genetic resources will have to be fleshed out in order to meet the Protocol’s obligation related to genetic resources owned by ILC.

• Concrete measures should be put in place to create more equity and legal certainty in the negotiations, particularly by improving opportunities for indigenous peoples and local communities and empowering them properly.

In context of Malaysia, an expert said the facts that the current National Policy on Biological Diversity does not provide enough attention to the protection of traditional knowledge may have reflected the government’s concern on the issue. Nonetheless, protection of traditional knowledge requires more than just a policy declaration. The establishment of an inventory of traditional knowledge on the use of species and genetic diversity is extremely crucial where bio piracy is imminent. Likewise, to provide an effective Access and Benefit Sharing regime, new legislation (or enhancement of present legislations) must be introduced to protect the ownership rights of these indigenous communities accruing from their associated traditional knowledge on genetic resources. This holds same for India also as for legal enforcement of TK related provisions indirectly provided in other Acts which are not meant for TK exclusively is a big setback for the proper implementation of the principles enshrined under the CBD and legal obligations imposed under the NP. Even the courts and tribunals will be handicapped to protect the interest of stakeholders of TK in the absence of clear sui generis law. When India can enact a sui generis law on Geographical Indication and Plant Variety and Farmers Rights why the same is not done for TK? It should never be a centralized system like BDA on the contrary, local panchayats and communities should be legally empowered to manage and control TK at the village level with full autonomy and decision making power and a proper plan allocation be made for this purpose. The customary laws and protocols if any must be duly recognized by the State. Unfortunately, even after the inception of NP whose core objective is to ensure benefit sharing, it is still a far off dream for the community stakeholders whereas transfer of genetic resources via illegal trading and trafficking of bio resources having valuable medicinal property under the nose of the State government is a rampant practice. Sometimes, the innocent community also fall prey to illegal bio traders mainly in north eastern hilly regions and sell off the valued bio resource in exchange of a small amount of money. Many researchers undertake bio survey and research even without due process of clearance and permission due to absence of proper institutional mechanisms in place at the local level. There is also a very low level of awareness of relevant laws at the local administration and even State for that matter. Most officials are of the view that the matter pertains to the forest and laws on conservation of forest which is totally a wrong approach. There is an urgent need to deal with matters of TK independent from forest and biodiversity whose scope is much broader, whereas TK has direct link with cultural heritage and livelihood and ones way of life to put in simply.

Conclusion

In the absence of a sui generis IP law on TK, the existing IP laws in the country is the last resort to extend legal protection wherever possible. There is a need to develop a new jurisprudence on TK to ensure IP rights of the indigenous community who has developed, preserved and sustained traditional knowledge base of India’s rich civilization. This will mean a new outlook in administering IP laws and its interpretation by the Courts and Tribunals in India. It would also mean bringing more awareness about the social, cultural and economic benefits of IPR to the indigenous people in general and to bridge the gap between the industrial approach to modern day IP and that of customary traditional approach of community IP rights. A new jurisprudence in this aspect will not only protect the rich traditional heritage of the tribal but sustain the nation’s cultural plurality.  Question is not what traditional knowledge got to do with IPR? On the contrary, what is IPR without innovation and creativity which is infused by the rich TK and cultural heritage?

The State Biodiversity Board and its subordinate body like BMC in the State need to be made functional in real sense not only on paper. The SBB should be headed by an eminent expert in the field of biological diversity and TK and BMCs formed at the local level with the direct involvement and supervision of village panchayat. A clear policy guideline in this regard is imperative and a clear interface of customary laws and institutions and the State laws in order to bring about legal coherence in these matters is much needed. Since the legal jurisprudence in this branch of IPR is in its early stage in India its all the more necessary for the State to formulate its policy approach in the light of peculiar social and cultural contexts prevailing in the State. A bottom up approach will be the way forward.

A 

TK, IPR

TRADITIONAL CULTURAL INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS PEOPLE WITH SPECIAL REFERENCE TO ARUNACHAL PRADESH 

Topi Basar

1. Introduction

Arunachal Pradesh is situated on the eastern most corner of India having international borders with Bhutan, China and Burma. It is the largest state among all the north eastern states, namely Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Sikkim. Its total geographical area is 83743 sq. km with the population density just over 17. Total population of the state, according to the Census of India 2011 is 1, 382,611, among which the tribal population is about 64 percent. The size of rural population is 10, 69,165 while the urban population is 3, 13, 446 which is 77.33 percent and 22.67 percent respectively. Arunachal Pradesh is considered to be luxuriant in biodiversity and has been recognized as the 25th biodiversity hotspot in the world (Chowdhury, 1999). It is spreading over an area of 83,743 sq. km with a variation in altitude from 150- 6,500 m and unique climatic conditions. The original inhabitants of Arunachal Pradesh belong to 26 major tribes and 110 sub-tribes (Srivastava, 2009).Arunachal Pradesh has been identified as one of the “Biodiversity Hotspot” areas in the world. The tribes inhabiting the State recognize over 500 species of plants as having medicinal properties (S. Hussain & D.K. Hore, 2008).

The objective of this paper is to locate Intellectual Property in rich traditions and culture and knowledge of indigenous community in varied fields in order to evolve a new jurisprudence of IPR in the context of traditional holders of right. A situation which materially differs from conventional IPR regime in which individual right holder is the core whereas in traditional indigenous context, community becomes the core. The question is how can IPR be used to resolve this paradox? Can we fine tune IP laws to accommodate traditional intellectual property right in existence in the form of common collective rights with traditional community ethos and systems? The focus of this paper will be on creation of collective IP rights which is sustainableand using intellectual property in safeguarding of traditional cultures as well as providing economic security. A bottom up approach i.e. starting from local to global in contextualizing the typical issues of TK within the IPR world.

2. Rational

"Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions."

The linkage of IPR in the indigenous context can be examined from the standpoint of traditional cultural knowledge systems both tangible and intangible cultural heritage in diverse areas of agriculture, biodiversity, cultural expressions or folklores, resource management, food habits and other manifestations of their cultural expressions. IPR is essentially a product of modern scientific developments to reward the innovators or creators for any novel inventions. Hence, the traditional cultural property does not squarely fit in to it automatically. The later originates within the community in a traditional context and held collectively even though it evolves with change of time but its collective or common element remain static. One may ask what is the link between the IPR and culture of an indigenous tribe. Or does it embody any IPR at all? The answer to this is yes. Just because IPR is not tailor made to protect community rights and interest in particular it does not mean that the community’s inherent intellectual property over their cultural heritage or properties is to be ignored.

Tribes of Arunachal have rich traditional knowledge and cultural practices since times immemorial. Their socio-cultural life is closely associated with nature and its biological organisms. The mutual relationship of tribal people and nature is bounded by religious beliefs, cultural practices shaped by sustenance factors. Even after the apparent changes brought in by the modern developments in these tribal society, the traditional beliefs and practices are still held important.

3. Traditional knowledge of Indigenous Tribes

  Arunachal Pradesh has rural base of economy as over seventy percent of population still live in about 3863 villages. Statistical Abstract of Arunachal Pradesh, 2008, shows that about 58.44 percent of population belongs to the category of cultivators. Their main occupations are agriculture and animal husbandry. Tribal communities of the state follow both the shifting cultivation and sedentary agriculture. Jhum cultivation or shifting cultivation or slash and burn method of cultivation was the earliest form of agriculture and it is still practiced in a vast area. This has been a common practice in all the hilly parts of North East and other parts of the world.In agriculture, the Apatani tribes of Ziro is well known for their traditional paddy cum fishing cultivation. It is a highly evolved indigenous system of farming which is unique in cultivation of both rice and fish together. The cause behind this highly evolved system is the limited resources available to them. So they have to develop a system through which they can utilize their limited resources perfectly. For maximum utilization of their land they cultivate both fish and rice in the same field. For this field preparation starts after harvesting and continues till the end of the spring. Weeding is done three to five times and the weeds are dumped in the field to decompose. They prepare the field by dumping household wastes, chicken and pig excreta, crop residue, cow dung etc. Inorganic fertilizers are not used. They burn the rice stubbles that are left in the field after harvesting. Vermicomposting is also used by some farmers. Rice varieties are Mipya which is harvested in the month of July and Empo which is harvested in October. Both of these are ‘folk variety’. ‘Common Carp’ is the main fish variety used in this along with the naturally available fish varieties. Fishes also eat harmful insects like water beetle, grasshopper and others. ‘Lemna minor’ and ‘azolla’ are also eaten by fishes that originate in the root portion which fixes N2 in the field. In turn the waste material of fishes acts as manure to the plant.This is an extraordinary method of sustainable agriculture practiced by the hardworking Apatani tribe who believe in optimum utilization of their limited land resources.

The tribe is unique in having traditional rights over land, water and forests within their jurisdiction and exercises control over the natural resources within their surroundings. There are no written land records of ownerships in the area. However, traditional boundary demarcation of land lines between the villages and clans are maintained through natural features of streams, hills and other land marks which is honored by everyone. The land is owned by clan, village or a family normally. The tribe takes special interest in conserving natural flora and undertakes special conservation and afforestation programmes for the maintenance of natural vegetation. Galo tribe don’t cut big trees believing that the ‘yapom’ i.e. evil spirit reside there and it will be enraged and misfortune will fall upon them. This belief results in conservation of large dense forests.

Galo people which is one of the major tribes of Arunachal practice two types of agriculture i.e. shifting agriculture/jhum agriculture (Modii/Adi-Riike) and terrace/wet agriculture (Isii-Riike).The farmers are preserving the ecological pest and diseases control measure knowledge over the generations. For example, Citrus grandis (Pummelo) leaves used as insecticidal and repellent for the control of the rice pest Leptocorisa oratorius. House hold ash is used as a repellent to control pests and diseases of the cultivated crops. A number of traditional traps are used for control of rats in the rice fields. After harvest of rice crop, grains are stored in well protected Indigenous Granary, which inhibits any pest and diseases of stored grains.

Poka, a traditional rice wine plays an important role in the socio cultural life of the Galo tribe of Arunachal Pradesh. Poka is consumed during most of the festive occasions and celebrations. The starter culture (locally known as opop) is concocted by women folk with rice flour and several herbs. Some of the indigenous life supporting plants of the tribe are; Bamboo which is widely used as food, in building house, rituals, cooking device, fencing, utensils, ornamentation, furniture etc.

The Khamti tribe of Lohit District of Arunachal Pradesh have a very rich ethnobotanical medicinal knowledge many of which are said to be recorded in their Buddhist literature. There have been many research study carried out on their traditional knowledge of medicine. The botanist have identified and documented hundreds of plant species and its medicinal properties based on their traditional knowledge. It is reported that khampti herbal practitioners cure malaria, fever, bone fracture, anemia, snakebite, cancer, reproductive health, rabies, tuberculosis, diabetes, jaundice etc. The science of orthopedics is highly developed as the bone healers heal the patient within one week. Their medicinal preparation techniques are mostly accompanied with the enchanting of mantra. They have a combination of both herbal and folk healing, a unique method of treatment often found in all tribes. Seventy percent of herbal practitioners are from older generation and belongs to lower income group in the village (Das & Tag). 

The Monpa tribe of West Kameng District have traditionally been using Daphne papyracea for preparing hand-made paper for painting and writing religious scripts in Buddhist monasteries. Two plant species illicium griffithii and Rubia cordifolia are commonly used for traditional dyeing of clothes and food items. The underground tuber of Aconitum ferrox is widely used in arrow poisoning to kill ferocious animals (Nima D Namsa et al). In Arunachal, about 5000 species of angiosperms has been recorded and over 500 species of plants are used in the traditional healthcare system to treat various ailments (Deb S et al). The Monpas are well known for medicinal knowledge, wood curving, painting religious scrolls called Thankas, carpet, paper making and weaving. The Monpas are agriculturist, practice both shifting and permanent types of cultivation. The medicinal knowledge of Monpas are held by the families and transfer of knowledge to people outside the  family circle took place on substantial payment and knowledge is formally transferred along the family line and mainly through sons (Nima D Namsa et al).Monpas are said to have very good knowledge of ethno-veterinary plants also.

Tangsa and Singpho tribes also use plants and its part for diseases and sickness. Catharanthus roseus (L) G.Don, is highly used as anticancer drug yielding plant in the region. They have a local remedy for diabetes also. The plant species of Solanaceae and Lamiaceae are widely used as medicinal plants by the people of Arunachal Pradesh. Many of these medicinal plants are also taken as a food by the tribes such as marsha or marshang ( spilanthus acmella merr) its flowers are chewed during toothache by the Nyishi tribe and eaten as vegetable by Galo, Adi, Nyishi etc.The fact that medicinal plants are used for the same purpose by more than one community might indicate their pharmacological effectiveness. This has been the finding of several ethnobotanical studies carried out. The majority of the informants reported in research survey that they keep their medicinal plant knowledge secret and that transfer of the knowledge has mainly been taking place vertically from father/mother to child mainly a son. Herbal medicines has become integral component of traditional healthcare system among the tribal communities of Arunachal Pradesh.Some of the medicinal plants like Mishmi Teeta are endemic to this State. The tribal communities of the State draw their sustenance largely from the forests. The ethnobotanical information obtained from the tribal community serves as a base for new compounds with active principles for phytochemical, pharmacognostical, pharmacological and clinical research (S. Hussain & D.K. Hore, 2008).

   Traditional folk healing by Nyibo (priest) by chanting hymns to pacify ui (evil spirit) for curing several ailments is an integral part of Galo, Adi, Nyishi and Apatani tribes.

4. What is meant by cultural IP rights?

The tribes of Arunachal Pradesh which comprise of 26 major tribes and more than 100 sub-tribes have strong traditional village councils and very effective community bodies or organizations led by powerful and influential tribes who administer the community related social matters. Clan and kinship is a very integral part of their society. Natural resources and land rights are governed under the customary laws of each tribe. Community resources like forest, rivers, and animals are used or exploited as per the customary norms recognized or framed by the community.Preservation or conservation of natural resources are largely the concerns of the community under whose jurisdiction it falls. Idea of shared resources and labor intensive work is widely prevalent even today in agriculture and other community occupations. A very strict village made regulations on cleanliness, use of common property, order and security is adhered to by the village folks. As discussed above the tribes have rich traditional knowledge on agriculture, resource management, plant medicinal knowledge, folk art, music, dances, food processes , weaving, crafts making and other cultural manifestations which are essentially community based and regarded as the community’s property in modern parlance community’s intellectual property. They have own unique customary laws and community rules which govern its access, use and benefits. The rights and liabilities are determined as per the customary norms of equity and fairness. The cultural IP rights is inherently recognized under the customary laws of the tribes.

In these backdrop, the author would like to examine the existing IP laws in an attempt to highlight how traditional knowledge resources repositories could be sustainably used, preserved and commercially exploited and bring economic empowerment to the knowledge holders at the same time. My contention is that as the IP laws are designed mainly for the industrially developed society, hence it is very difficult to seek its benefits to traditional community whose IP relevant knowledge resources are held in common pool in a collective sense. Nevertheless, there are ways and means which the author strongly feels adequate enough to support the community IP knowledge and valuable resources.

5. The Geographical Indications of Goods (Registration and Protection) Act, 1999

Geographical indication as the name suggest is a mark or a name indicative of the geographical origin or source of the goods. It is also indicative of particular quality and reputation attached with the product which are primarily attributable to the geographical factors of the region, territory, State or Country.GI registration can be applied for any agricultural, natural or manufactured goods as originating or manufactured from a particular geographical region or locality.

This branch of IPR is best suited to protect the tangible traditional cultural intellectual property rights of the tribal communities. The community can form any association or organization of persons or producers of the concerned goods to apply for GI registration. Any government authority can also file before the Registrar of GI in a representative capacity of the producers of such goods. In India till year 2012, 272 GI has been registered by several States in different classification such as agriculture, handicraft, manufactured, foodstuff (Dharwad Pedha), textile, natural goods (makrana marble of Rajasthan). Out of these, handicraft item is the maximum registered followed by agricultural product.The numbers of registration must have jumped substantially by now.

For instance, for centuries old the Singphos of Assam and Arunachal Pradesh make ‘phalap’ a traditional smoked bamboo tea from the tender tea leaves by boiling it first, dried in the sun or on a heat turf above the fireplace. When the tea is dried it is put or smashed into a bamboo very tightly and placed on the fire till the outer layer of the bamboo is burnt. After that the outer layer burnt is removed using dao (large knife) and only the thin layer remains which is again kept above the fireplace for few weeks. In earlier days, it was made from abundantly found wild teas available in the Singpho inhabited areas. Now a days, it is made from tea-leaves plucked from tiny home grown natural tea gardens of the Singpho people. It is commonly drank by Singpho and Tangsa tribes and sold in the local markets. The phalap tea can be a potential GI worthy product as a traditional product of Singphos. Likewise Wakro organic green tea by the Mishmisof Lohit District is a potential GI product for its quality and characteristics of tea is unique to this region. Many traditionally created objects or articles held by the community whether agricultural, natural, manufactured (like Monpa carpet, handmade paper, wood carving etc) including food items like indigenous wines or spirits etc. can be registered under the GI Act which will be good for economic upliftment of the community. The best part of the GI Act is the conferment of collective rights to the producers of given GI product as all of the producers can register themselves as the registered authorized users of registered GI good and help them in fetching premium price for the product in the market. This law can prove very beneficial for indigenous products originating from a particular region or territory. Compare to other intellectual property laws, the GI Act is most viable for the protection of traditional cultural intellectual property of indigenous creations. Unlike other IPR, GI right is given for a period of ten years, but may be renewed from time to time.

The GI Act has the vast potential to protect, preserve and promote sustainable use of cultural heritage, traditional knowledge and traditional cultural expressions of the indigenous people while improving their economic condition.

6. The Biological Diversity Act, 2002 and the Rules

For a State like Arunachal Pradesh which is a ‘biodiversity hotspot’ in India and having rich traditional knowledge associated to biological resources, the Act above has major significance.The ethnobotanical medicinal knowledge of various tribes as cited before have to be understood in the light of conservation of Biological Diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources and associated knowledge. Given the fact that the tribe is unique in having traditional rights over land, water and forests within their jurisdiction and exercises control over the natural resources within their surroundings. How best it can be reconciled?

The Act has laid down three tiered administrative mechanism in the form of National Biodiversity Authority (NBA), State Biodiversity Board (SBA) and the Biodiversity management Committees (BMC) with specific power and function to regulate access, use, fair and equitable benefit sharing of biological resources. The NBA being the Central body is empowered to grant access permission to the foreigners to obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio-survey and bio-utilization. No person shall apply for any intellectual property right, by whatever name called, in or outside India for any invention based on any research or information on a biological resource obtained from India without obtaining the previous approval of the NBA before making such application.

The NBA has to ensure that the terms and conditions subject to which approval is granted secures equitable sharing of benefits arising out of the use of accessed biological resources, their by-products, innovations and practices associated with their use and applications and knowledge relating thereto in accordance with mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers. The local bodies through BMC and SBB should play a crucial role in this in representing the interest of the benefit claimers in the community. It is more practicable for SBB and BMC to exercise more decisive power in this regard. The Act also allows grant of joint ownership of intellectual property rights to the NBA, or where benefit claimers are identified, to such benefit claimers which is the good part of it.This could be a novel way to recognize the cultural intellectual property rights of the community who are the custodian of traditional knowledge or traditional cultural expressions pertaining to various facets or uses of biological resources including ethnobotanical medicinal knowledge as mentioned previously.

No person, who is a citizen of India or a body corporate, association or organization which is registered in India, shall obtain any biological resource for commercial utilization, or bio-survey and bio-utilization for commercial utilization except after giving prior intimation to the State Biodiversity Board concerned: Provided that the provisions of this section shall not apply to the local people and communities of the area, including growers and cultivators of biodiversity, and vaids and hakims, who have been practicing indigenous medicine. This means SBB does not have much say in the matter as only prior intimation on accessing any biological resource is needed. It may render the SBB a mute spectator perhaps that’s why many SBB in north eastern States are not effective in reality. However, SBB is also empowered to regulate by granting of approvals or otherwise requests for commercial utilization or bio-survey and bio-utilization of any biological resource by Indians. Good thing is the Act exempts the local indigenous medicinal practitioners from such procedural controls. The constitution of national biodiversity fund and state biodiversity fund to be administered by the NBA and SBB respectively is the mechanism through which the objective of fair and equitable benefit sharing can be implemented properly and if implemented properly it can help in economic upliftment of the community who conserve and preserve biological diversity and depend on biological resources for its sustenance.

The most crucial link of the NBA and SBB is the Biodiversity Management Committee (BMC) at the local panchayat level. Every local body or Panchayat shall constitute a BMC within its area for the purpose of promoting conservation, sustainable use and documentation of biological diversity including preservation of habitats, conservation of land races, folk varieties and cultivars (of plants), domesticated stocks and breeds of animals and microorganisms and chronicling of knowledge relating to biological diversity. Undoubtedly the most important function of documentation or chronicling of traditional knowledge on biological resources and biodiversity is entrusted upon the BMC. The BMC formed at the panchayat level can work in association with community experts on biodiversity related knowledge like herbal medicinal practioners and experts on art and culture. The SBB should create awareness programme for the village panchayats for creating BMC and impart training on documentation of valuable knowledge and information on use and efficacy of biodiversity resources including agricultural knowledge and animal husbandry. From the IPR viewpoint, such documentation of valuable knowledge and information in the ‘peoples biodiversity register’ maintained by the BMC will be helpful in thwarting wrongful granting of patent on invention based on traditional knowledge and information held by the community. Such register will aid the NBA in opposing wrongful grant of IPR on TK associated with any biological resources as mandated in the Act.The Act requires the NBA and the SBA to mandatorily consult the BMC while taking any decision relating to the use of biological resources and knowledge associated with such resources occurring within the territorial jurisdiction of the BMC.  The BMC’s may levy charges by way of collection fees from any person for accessing or collecting any biological resource for commercial purposes from areas falling within its territorial jurisdiction. This will enable to check wrongful misappropriation of biological resources such as endangered species or plants. This system will work best in the jurisdiction of village and community owned forest in the State which belong to a particular clan or a community. The State should constitute local biodiversity fund and allocate funds for it and this should be entrusted to the BMC and the Fund shall be used for conservation and promotion of biodiversity in the areas falling within the jurisdiction of the concerned local body.

Biological Diversity Rules, 2004: it’s salient features

In exercise of the powers conferred by Sec. 62 of the BDA, 2002, the Central Government has made the following rules: 

1. The NBA may advise the Central Government on conservation of bio-diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of the use of biological resource and knowledge.

2. To organize comprehensive programme regarding conservation of bio-diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of the use of biological resource and knowledge.

3. To build database for information and documentation of biological resources and associated TK through bio-diversity registers and electronic data bases.

4. The NBA shall consult the concerned local bodies before granting approval to any person for access to biological resources and associated knowledge.

5. The NBA can restrict the transfer of accessed biological resources and the TK to any third party without its approval.

6. The conditions for access may specifically provide measures for conservation and protection of biological resources to which the access is being granted.

7. The NBA shall take steps to widely publicize the approvals granted and periodically monitor compliance of conditions.

8. The formula for benefit sharing shall be determined on case-by-case basis.

9. The quantum of benefits shall be mutually agreed between the persons applying for such approval and the NBA in consultation with the local bodies and benefit claimers.

10. Where biological resources or knowledge is accessed from a specific individual or a group of individuals or organizations, the agreed amount is to be paid directly to them through the district administration.

11. The main function of the BMC is to prepare People’s Biodiversity Register in consultation with local people containing comprehensive information on availability and knowledge of local biological resources, their medicinal or any other use or TK associated with it.

12. The BMC will advise SBB or NBA on any matter referred to it by them. It will maintain data about the local vaids and practitioners.

Critical Analysis

1. The Rules severely dilute the power of BMCs. The main Act supposedly empowers the BMCs to take decisions on conservation and control.  However, the Rules severely dilute this and state that the main role and function of the BMC is to merely maintain Peoples Biodiversity Register (PBR). As on date, there is no legal protection available for the knowledge recorded in the PBR. This is problematic when it comes to the question of access to this document and the knowledge it contains. Even though communities create and maintain a database of their resources of knowledge, there is no requirement that their consent would be sought when it comes to accessing the information in the PBRs.Although Rule 14 Para.3 says local bodies will be consulted before approval for access to bio resources is given, the definition of "consult" is not clear and in many cases it might remain a mere formality and not a prior informed consent. Though the Act clearly has spelt out criteria for rejecting applications for the grant of access to resources and knowledge, it has not listed community consent as one of them. Also Rule 22 Para.7 is clearly biased, as it gives BMC only an advisory role in the grant of approvals. Therefore in many ways the Rules do not facilitate community decision-making and control on their resources and knowledge and hence are not step toward community sovereignty. 

2. On the whole, there is no separate or express mention of “protection of traditional knowledge” in the Act and the Rules made there under, but terms such as “knowledge” or “information” are used obliquely to refer to the concept of traditional knowledge. Further, this “knowledge” or “information” which is sought to be protected by the Act is qualified by another criterion: that it should relate to or be associated with biological resources. Thus, only a sub-set of traditional knowledge, not the entire genus of it, has been dealt with in the framework of the Act.

3. The truth is that the Act is significantly short of adequately dealing with the protection of traditional knowledge, although it incorporates certain measures for securing compensation for the use of knowledge or information associated with biological resources. The Act in practice does not provide effective measures for protection of biological resources and is heavily biased against the interests of tribal and local communities who are the guardians of the associated knowledge.

4. The Act mainly focuses on access and control over the biological resources as opposed to providing emphasis on the conservation and protection of biodiversity and the interests of local communities or to benefit-sharing with the local communities. Even the decentralized system created by the Act does not provide for effective participation of local communities, as there is an absence of any definite direction for their inclusion in the Biodiversity Management Committees.  

5. The BMCs is only a consultative body having no decision making power. Today the implementation of the Biodiversity Act is fully underway. The NBA is granting approvals for accessing biological resources even in those areas where there are no BMCs in place; this completely removes the opportunity for the mandatory public consultation needed before approvals are granted. It is interesting to note that the Act expressly does not provide for Prior Informed Consent (PIC) from the stakeholders before access to the biological resources and associated knowledge. 

6. Today, there is a system, but clearly centralized in design. If a foreign entity (defined in the Act) wants access to India’s biodiversity (wild or cultivated) and/or associated traditional knowledge, approval of the NBA is mandatory. An Indian entity, on the other hand, needs only to intimate the SBB, which can lay down some conditions. If an IPR is involved, approval from the NBA needs to be sought. Interestingly, collaborative research projects between a foreign and Indian entity and involving transfer of plants and animals germplasm outside India are exempted from seeking approval under this Act.

7. With no legal protection or clearly defined village-level controls the recorded knowledge is open to move hands easily: local to global. It is reported that over 90 approvals (including those related to jatropha seeds, export of jute seeds or breeding of the Murrah buffalo) have been granted by NBA. Hardly any BMCs are in place, so there is no scope of ‘consultation’, even if it is desired.

8. Despite the noble intentions of the legislation it has run into considerable trouble. The activists accuse the government of using the legislation to merely facilitate the commercialization of the biological resources instead of focusing on the conservation element. Local communities on their part are opposed to the Act arguing that they have absolutely no say in the Panchayat level Biological Management Committees leaving them in the undesirable position of having to part with their biological resources without having a say in how those resources may be used or how much they may charge for the use of the resources.

9. Another confused area is the issue of benefit sharing accruing from commercialization. There is no system for deciding the nature and extent of benefit sharing. The Authority and the Central and State governments will decide that arbitrarily. Local communities seem to have little say in the implementation of the Act. They cannot for example, oppose the grant of a patent or other IPR on biological material taken from them, nor do they have a say in what will be ‘equitable’ sharing of benefits.

7. The Protection of Plant Varieties and Farmers Rights Act, 2001

It is an Act to recognize and protect the rights of the farmers in respect of their contribution made in conserving, improving and making available plant genetic resources for the development of new plant varieties. This Act was passed after India’s ratification of Agreement on Trade Related Aspects of Intellectual Property Rights and to give effect to Article 27 (3) (b) relating to protection of plant varieties. Objective is to protect the rights of farmers and plant breeders and to encourage development of new plant varieties.

The Act defines “farmers’ variety” as a variety which has been traditionally cultivated and evolved by the farmers in their fields or is a wild relative or land race of a variety about which the farmers possess the common knowledge.The farmers’ variety can be registered under the Act if it conforms to such criteria of distinctiveness, uniformity and stability.Any farmer or group of farmers or community of farmers claiming to be the breeder of the variety can file an application for registration.The duration of registration is initially for six years and renewable up to fifteen years from the date of registration of farmers’ variety. Chapter VI of the Act elaborates the farmers’ right, it provides for registration right to a farmer who has bred or developed a new variety, registration of farmers’ variety, recognition and reward from the Gene Fund (for conservation of genetic resources of land races/wild relatives etc.), right to save, use, exchange, sell his farm produce etc. but farmer is not entitled to sell branded seed of a protected variety, to claim compensation in crop failure of propagating material etc.The community rights in the evolution of any variety on behalf of a village or local community is also protected in the Actwith regards to compensation from a breeder to be deposited in the Gene Fund. The compensation and benefit sharing to the claimants will be provided through the National Gene Fund constituted by the Central Government. Fund supports the conservation and sustainable use of genetic resources undertaken by the Panchayat bodies.

8. The Patents Act, 1970

The given Act provides defensive protection to some of the traditional knowledge used in new invention. It provides an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components are not inventions, therefore not patentable. A patent granted can be revoked on the ground that the invention so far as claimed in any claim of the complete specification was anticipated having regard  to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere. It may be noted here any TK whether oral or documented such as ethno botanical medicinal knowledge of the community can be protected as an anticipated knowledge in other words as ‘prior art’. These changes were inserted by the Patent Amendment Act of 2002. This move corresponds to the inception of both GI Act, PPVFRA and BDA as mentioned earlier.

Although none of the aforementioned laws defines traditional knowledge, tangible and intangible cultural heritage or traditional cultural expressions nor they cover these subjects comprehensively nonetheless they have important ramifications and can affect the later both in negative or a positive way. 

9. The Copyright Act, 1957

Although the Copyright Act has no special provision for traditional artistic works and creations which are held collectively by the community and the author or joint authors cannot be identified in traditional music, dances or other artistic works. However the community has a moral or natural copyright on their traditional artistic expressions. Moreover, Copyright subsist automatically in any original literary, dramatic, musical and artistic works and registration is optional. If the given traditional work is clearly identified with the history and culture of that community who lay claim on it, the Court is most likely to provide relief even in the absence of collective copyright provision applicable in case of community within the Copyright Act. In this regard, it may be noted that documentation of intangible cultural expressions in any permanent form will create copyright prospects for the community in long run and help in checking wrongful misappropriation by others. Undoubtedly the vast potential of copyright law’s ability to protect traditional artistic works has not been used by the Parliament while enacting the law and in the subsequent amendments made in the Copyright Act.

10. Role of community and customary traditional institutions

The various tribes of Arunachal Pradesh have its own traditional institutions with well -defined customary laws albeit uncodified and an effective dispute settlement mechanism at the village level presided by the village headman. The community lives are well regulated through this age old traditional institution. They act as the guardian or the custodian of their cultural heritage and the most important component of the tribal social structure. They also frame social code of conduct and regulates the human and ecological relation in diverse ways. Therefore, it is important that both the formal State system and the traditional institutional set up work in harmony and tandem in preservation and sustainable use of biological diversity and rich cultural heritage.

11. Traditional Knowledge Digital Library (TKDL)

Since time immemorial, India has possessed a rich traditional knowledge of ways and means practiced to treat diseases afflicting people. This knowledge has generally been passed down by word of mouth from generation to generation. A part of this knowledge has been described in ancient classical and other literature, often inaccessible to the common man and even when accessible rarely understood. Documentation of this existing knowledge, available in public domain, on various traditional systems of medicine has become imperative to safeguard the sovereignty of this traditional knowledge and to protect it from being misappropriated in the form of patents on non-original innovations, and which has been a matter of national concern. 

India fought successfully for the revocation of turmeric and basmati patents granted by United States Patent and Trademark Office (USPTO) and neem patent granted by European Patent Office (EPO). As a sequel to this, in 1999, the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy-(AYUSH), erstwhile Department of Indian System of Medicine and Homoeopathy (ISM&H) constituted an inter-disciplinary Task Force, for creating an approach paper on establishing a TKDL. The project TKDL was initiated in the year 2001. In 2005, it was estimated that over 2,000 wrong patents involving Indian systems of medicine had been granted.

             TKDL provides information on traditional knowledge existing in the country, in languages and format understandable by patent examiners at International Patent Offices (IPOs), so as to prevent the grant of wrong patents. TKDL thus, acts as a bridge between the traditional knowledge information existing in local languages and the patent examiners at IPOs.

TKDL is a collaborative project between Council of Scientific and Industrial Research (CSIR), Ministry of Science and Technology and Department of AYUSH, Ministry of Health and Family Welfare, and is being implemented at CSIR. An inter-disciplinary team of Traditional Medicine (Ayurveda, Unani, Siddha and Yoga) experts, patent examiners, IT experts, scientists and technical officers are involved in creation of TKDL for Indian Systems of Medicine.

The project TKDL involves documentation of the traditional knowledge available in public domain in the form of existing literature related to Ayurveda, Unani, Siddha and Yoga, in digitized format in five international languages which are English, German, French, Japanese and Spanish. TKDL gives legitimacy to the existing traditional knowledge and enables protection of such information from getting patented by the fly-by-night inventors acquiring patents on India’s traditional knowledge systems. It will prevent misappropriation of Indian traditional knowledge, mainly by breaking the format and language barrier and making it accessible to patent examiners at International Patent Offices for the purpose of carrying out search and examination. Currently experts have identified over 1500 yoga techniques from the literature available from our ancient texts and nearly 250 asanas have been video graphed already. It should take five or six months to complete the process, after which it can be the part of the database. 

(a) TK Protection: Contribution of TKDL

The TKDL has been appreciated worldwide and acknowledged as one of its kind created by any country for protecting its TK. At present, as per the approval of Cabinet Committee on Economic Affairs, access of TKDL is available to nine International Patent Offices (European Patent Office, United State Patent & Trademark Office, Japan Patent Office, United Kingdom Patent Office, Canadian Intellectual Property Office, German Patent Office, Intellectual Property Australia, Indian Patent Office and Chile Patent Office), under TKDL Access (Non-disclosure) Agreement. Negotiations are under way to conclude the Access Agreement with Intellectual Property Office of Russia and Malaysia. As per the terms and conditions of the Access agreement, examiners of patent office can utilize TKDL for search and examination purposes only and cannot reveal the contents of TKDL to any third party unless it is necessary for the purpose of citation. TKDL Access Agreement is unique in nature and has in-built safeguards on Non-disclosure to protect India’s interest against any possible misuse. 

In addition, pre-grant oppositions are being filed at various International Patent Offices, along with prior-art evidences from TKDL. Significant impact has already been realized. So far about 200 patent applications of the pharmaceutical companies of United States, Great Britain, Spain, Italy, China etc. have either been set aside/ withdrawn/ amended, based on the Prior art evidences present in the TKDL database without any cost and in few weeks/months of time, whereas APEDA had to spend about seven crores towards legal fee only for getting few claims of Basmati rice patent revoked. Similar outcome is expected in about 1200 more cases, where TKDL has filed pre-grant opposition. 

(b) TKDL and oral TK 

The relevance of TK in context of oral TK which are not recorded or codified in any written book or form is mired in complex question of real ownership over the subject matter. All information contained in TKDL belongs to India presumably. But many TK in oral form held by the indigenous people or community are orally practiced and inter-generational in nature. If these oral TK are included later on in TKDL who shall be the legal owner of these? Will it become the intellectual property of the country or the indigenous people who are its original custodian?There is no legal clarity on this. In fact even the creation of TKDL has no statutory backing even though it is a recognized digital TK depositories for the purposes of prior art searches. It is essential that TKDL is conferred with legal validity and proper policy be framed for its functioning and working. The TKDL mechanism will have to be aligned with overall TK based laws and ABS systems based on Nagoya Protocol. Most importantly, the prevailing customary laws or protocols on TK and TCEs will have to be taken into consideration by the policy imperatives on TKDL in future. If not devised aptly, the digitization of oral TK may itself lead to its wide scale misappropriation.

12. International scenario on TK

For more than two decades, the international community has been debating on how to protect TK at the global level and how to establish a universal framework of access and benefit sharing to compensate and reward the indigenous and local communities for their TK. Definitely the protection, preservation and effective management of TK are easily one of the crucial issues that countries and the world need to take serious note of. In fact, they do. As is evident from the amount of publicity and awareness of misappropriation or bio-piracy of TK in the public consciousness from the early 90s. The world at large has realized the importance of TK and need for its protection and continuance as it has immense contribution to mankind and helps in achieving sustainable management of resources. Maybe many of the solution to the above mentioned grave problems lie in TK itself if we assess closely. 

In this regard, the most active work is being carried out by two UN bodies namely-CBD and WIPO. Many member countries of these two forums are actively involved in the negotiation for establishing a permanent regime for the protection of TK as well as a regime for the equitable sharing of benefits of genetic resources and associated TK that is an ongoing process. Both CBD and WIPO have done some remarkable work in this regard. However, the scope and emphasis of both these forums materially differ from each other. They also try to work in cohesion with one another so that there is no conflict and duplication of work because it is quite possible that when two different bodies with differing goals deal in same matter, the result could be divergent. So, they seem to realize this and try to collaborate with each other’s work.

There are several initiatives at the international level recognizing the significance of TK and matters related to it that is worth mentioning. The most important milestone so far in relation to TK is the adoption of CBD by the UN members in 1992. For the first time, an international treaty like this recognized the importance of TK and the need for its respect, protection, preservation and continuance in Article 8 (j) of CBD.

The Conference of the Parties (COP) had established a working group specifically to address the implementation of Article 8 (j) and related provisions of the Convention. This working group is open to all Parties and, indigenous and local Communities representatives play a full and active role in its work. Traditional knowledge is considered a "cross-cutting" issue that affects many aspects of biological diversity, so it will continue to be addressed by the Conference of the Parties and by other working groups as well. The Conference of the Parties requested the Ad Hoc Working group on Access and Benefit-sharing with the collaboration of the Ad Hoc Working Group on Article 8 (j) and Related provisions to elaborate an international regime on access to genetic resources and benefit sharing with the aim of adopting an instrument/instruments to effectively implement the provisions in Article 15 and Article 8 (j) of the Convention and the three objectives of the Convention. Recently delegates to the tenth meeting of the Ad Hoc Open-ended Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity agreed on a set of recommendations related to the contributions of indigenous peoples and local communities to the Convention on Biological Diversity. The recommendations from the meeting will be sent to the Conference of the Parties at the 2018 UN Biodiversity Conference to be held in Egypt in 2018.The Cartagena Protocol on Biosafety and the Nagoya Protocol on Access and Benefit Sharing are supplementary agreements to the Convention. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity is an international agreement which aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way. It entered into force on 12 October 2014, 90 days after the date of deposit of the fiftieth instrument of ratification.

Similarly, WIPO is also actively involved with issues on TK mainly with the intellectual property aspects of TK protection. WIPO provides a forum for international policy debate and development of legal mechanisms and practical tools concerning the protection of TK and traditional cultural expressions (folklore) against misappropriation and misuse, and the intellectual property (IP) aspects of access to and benefit sharing in genetic resources. In 1998 and 1999, WIPO consulted a wide range of stakeholders, such as indigenous peoples and local communities, NGOs, governmental representatives, academics and the private sector, to identify the IP needs and expectations of the holders of TK and cultural expressions. Currently, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC), which met for the first time in 2001, is discussing draft provisions for the enhanced protection of TK and traditional cultural expressions against misappropriation and misuse. Assemblies of Member States of WIPO in its Fifty-Seventh Session on October 2 to 11, 2017 has renewed the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. In 2018, the Committee is requested to provide to the General Assembly a factual report along with the most recent texts available of its work up to that time with recommendations, and in 2019, submit to the General Assembly the results of its work in accordance with the objective reflected in paragraph (a). The General Assembly in 2019 will take stock of progress made, and based on the maturity of the texts, including levels of agreement on objectives, scope and nature of the instrument(s), decide on whether to convene a diplomatic conference and/or continue negotiations.

13. Conclusion

In the absence of a sui generis IP law on TK and traditional cultural expressions, the existing IP laws in the country is the last resort to extend legal protection wherever possible. There is a need to develop a new jurisprudence on traditional cultural IP rights of the indigenous community who has developed, preserved and sustained traditional knowledge base of India’s rich civilization. This will mean a new outlook in administering IP laws and its interpretation by the Courts in India. It would also mean bringing more awareness about the social, cultural and economic benefits of IPR to the indigenous people in general and to bridge the gap between the industrial approach to modern day IP and that of customary traditional approach of community IP rights. A new jurisprudence in this aspect will not only protect the rich traditional heritage of the tribal but sustain the nation’s cultural plurality. 

In the context of Arunachal Pradesh, clan or kinship still pervades and dominates the social cultural institutions and plays a crucial role. Their traditional notion of IP right as manifested in collective social and cultural harmony may appear a misfit for inclusion in the modern paraphernalia of IP law but IP values inherent in their knowledge assets is an essential attribute for the inclusive growth of IP for the Nation. Question is not what tradition or culture got to do with IPR? On the contrary, what is IPR without innovation and creativity which is infused by the rich TK and cultural heritage?

The State Biodiversity Board and its subordinate body like BMC in the State need to be made functional in real sense not only on paper. The SBB should be headed by an eminent expert in the field of biological diversity and TK and BMCs formed at the local level with the direct involvement and supervision of village panchayat. A clear policy guideline in this regard is imperative and a clear interface of customary laws and institutions and the State laws in order to bring about legal coherence in these matters is much needed. Since the legal jurisprudence in this branch of IPR is in its early stage in India its all the more necessary for the State to formulate its policy approach in the light of peculiar social and cultural contexts prevailing in the State. A bottom up approach will be the way forward.

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