INTELLECTUAL PROPERTY RIGHTS AND THE PROTECTION OF TRADITIONAL AGRICULTURAL KNOWLEDGE

This article is written by Aarathi Namboodiri of 10^th semester of SASTRA Deemed University, Thanjavur, an intern under Legal Vidhya

ABSTRACT

Traditional knowledge plays a pivotal role in the daily lives of millions worldwide, including in India, where communities rely on it for deriving sustainable livelihoods from biodiversity. This informal knowledge, deeply intertwined with biological resources, is essential for the conservation and sustainable use of local ecosystems, enriching biodiversity globally. Protecting traditional knowledge holds immense importance, particularly in developing nations like India, due to its spiritual, cultural, and economic significance. The emerging field of intellectual property rights (IPRs) presents a potential avenue for safeguarding traditional knowledge, acknowledging the contributions of its creators and providing them with a degree of control over its use. This study explores the nexus between traditional knowledge and the sustainable utilization of Agro-biodiversity, examining its significance within the current IPR framework and its implications in India. Additionally, it outlines various legislative measures at the national level, aligning with international developments in this domain.

Keywords

Traditional Knowledge, Agriculture, Farmer’s Rights, Breeders, IPR, CBD, WIPO, Common Heritage, PGR, Benefit-sharing, Bio-piracy

INTRODUCTION

In today’s global landscape, mere possession of land, labor, and capital no longer guarantees a country’s success. The driving forces of the world economy have shifted towards creativity and innovation. Intellectual Property (IP) encapsulates the notion that creations stem from the intellect. Intellectual Property Rights (IPRs) serve as both protection and incentive for creators, preventing their creativity from being exploited by others without recompense. Society expects creators to bring their work to market, facilitating exchange, but also seeks to prevent the emergence of detrimental market dominance. Therefore, state-granted rights to creators are subject to limits, both temporally and spatially.

India stands among the world’s 12 super-biodiverse countries[1], boasting a rich array of crop diversity and wild relatives. Its traditional knowledge of these biological assets, rooted in its unique biodiversity, forms the bedrock of its cultural heritage.[2] Traditional Knowledge (TK), utilized for generations under local customs and laws, has been pivotal in areas such as food security, agriculture, and healthcare.

However, Western societies have historically undervalued TK, often overlooking any associated obligations or recognizing its importance. This has led to the erosion of TK through the destruction of indigenous communities’ environments and cultural values. Nonetheless, Western science is increasingly acknowledging the potential of TK in offering solutions to contemporary challenges, sometimes complementing modern scientific knowledge. Despite this recognition, Western intellectual property laws typically treat TK as public domain information, available for unrestricted use. Moreover, there have been instances where various forms of TK have been appropriated under IPRs by researchers and commercial entities, depriving the creators or custodians of due compensation.

WHAT IS TRADITIONAL KNOWLEDGE?

Traditional knowledge (TK) refers to the collective wisdom, practices, and insights passed down through generations within indigenous communities, forming the communal heritage of entire societies. It is deeply intertwined with cultural identities and considered owned collectively by society[3]. Protecting TK involves applying laws, often through intellectual property (IP) protection, to prevent unauthorized or inappropriate usage by external parties. TK, especially in biodiverse regions, is crucial for sustainable development, encompassing knowledge of flora, fauna, medicinal properties, folklore, and cultural expressions. While lacking a universally accepted definition, TK’s unique qualities warrant legal protection globally, while respecting its appropriateness, utility, and benefits for custodial communities.

“Traditional knowledge refers to knowledge acquired over time by people in an indigenous society, in one or more cultures, based on experience and adjustment to a local culture and climate, and continuously predisposed by each generation’s developments and practises”. [4]

The essence of TK lies in its antiquity and predominantly oral transmission, entrenched within traditional cultures and passed down through generations via unique customary systems. Thus, it’s the symbiotic relationship between knowledge and community that imbues it with traditionality. TK is culture- and context-specific, dynamic, and adaptive, serving vital roles across disciplines such as science, technology, ecology, and medicine, preserving cultural identities and ensuring communities’ continued resilience.

The World Intellectual Property Organisation (WIPO) defines it as “knowledge, know-how, skills, and practices that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”[5]
Efforts to protect traditional knowledge are crucial, whether through traditional IP or innovative systems like group rights, while promoting its use for societal progress. Examples like Ayurvedic medicine highlight TK’s vital role in global advancements. Yet, proactive steps are vital to shield India’s vast TK from exploitation and commercialization, respecting stakeholders’ input. TK embodies a wealth of intergenerational wisdom, cultural identity, and sustainable practices. Safeguarding it requires navigating legal, social, and ethical complexities to ensure fair sharing and preservation for future generations.

Here are examples illustrating traditional knowledge:

1. Thai traditional healers utilize plao-noi to effectively treat ulcers.
2. The San people rely on the hoodia cactus to suppress hunger while hunting.
3. Sustainable irrigation practices are upheld through traditional water systems like the aflaj in
4. Oman and Yemen, as well as the qanat in Iran.
5. Cree and Inuit communities possess unique knowledge regarding the seasonal migration patterns of specific species in the Hudson Bay region.
6. Indigenous healers in the western Amazon employ the Ayahuasca vine to create various medicines with sacred properties.
7. “Mola” represents a traditional handcrafted textile technique involving the cutting and stitching of multiple layers of fabric to produce a multi-coloured product. Originating from the native Kuna communities of Panama, “mola” stands as a distinct expression of their culture, despite attempts at imitation in other regions such as Taiwan.

ELIGIBILITY REQUIREMENTS FOR TRADITIONAL KNOWLEDGE

Traditional knowledge is the accumulation of centuries-old wisdom passed down through cultural customs and practices, adapting to societal needs. Key principles include innovation, intergenerational transmission, and community-based access restrictions. The neem tree, featured prominently in Indian texts for millennia, exemplifies traditional knowledge’s depth and versatility in agriculture, medicine, and pest control. Indigenous people[6], recognized under international conventions, uphold unique economic, social, and cultural traditions, fostering dynamic traditional knowledge influenced by geography and social dynamics. Features like oral transmission, communal ownership, and difficulty tracing origins characterize traditional knowledge, highlighting its significance in indigenous communities.

TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY RIGHTS

Intellectual Property Rights (IPR) are essential for protecting creators’ ideas, including patents, copyrights, trademarks, and trade secrets. Recognizing the importance of safeguarding traditional knowledge, the Convention on Biological Diversity (CBD) mandates member countries to enact laws ensuring equitable benefit-sharing and consent from indigenous communities for commercial use. The World Intellectual Property Organisation (WIPO) supports a sui generis system tailored for traditional knowledge holders, documenting cases where traditional knowledge has received IP protection[7]. This includes trademarks for products like Peruvian potatoes and Kenyan Taita baskets, as well as copyrights for cultural expressions such as ethnic fabric designs and rituals in Ghana.

TRADITIONAL KNOWLEDGE AND AGRICULTURAL BIODIVERSITY

Plant Genetic Resources (PGRs)[8] have historically constituted valuable economic assets and livelihoods for numerous populations worldwide, including in India. Traditional agriculturalists have leveraged the genetic variability within wild and cultivated plants for millennia to advance their crop cultivation. This biodiversity serves as a cornerstone of sustainability, enabling adaptation, evolution, and survival amidst changing environmental, disease, and social dynamics, thereby facilitating resilience against forthcoming challenges[9]. Traditional farmers globally rely directly on the yields of the genetic diversity they cultivate for sustenance and future seed stock. This natural wealth embodies intrinsic ecological, social, economic, scientific, educational, cultural, recreational, and aesthetic worth to human society. Indigenous and local communities have meticulously curated numerous crop and animal varieties over centuries, exemplified by India’s maintenance of over 30,000 indigenous rice varieties and landraces in recent decades.

Traditional farmers in India have effectively conserved and augmented the value of plant genetic resources through their cultivation, seed propagation, and continuous refinement of farmer-adapted varieties (landraces). Their communal interactions, often predicated on barter and exchange, facilitate the dissemination and further evolution of these varieties. However, significant portions of land, forests, and habitats belonging to tribal and local communities in India are subject to adverse impacts from human activities such as deforestation, logging, infrastructure development, mining, urbanization, and agricultural expansion. This encroachment disrupts the social and ecological contexts within which these communities traditionally utilize their knowledge.

The advent of modernization, agricultural commercialization, intellectual property rights (IPR) over biological resources, and the proliferation of market economies have spurred international initiatives aimed at safeguarding biodiversity and traditional knowledge associated with biological resources[10]. However, the requirements of Trade-Related Aspects of Intellectual Property Rights (TRIPs) concerning agricultural biotechnology sometimes clash with other international norms, particularly the right to food enshrined in the Universal Declaration of Human Rights (UDHR) and the objective of equitable benefit-sharing from biological resources under the Convention on Biological Diversity (CBD). It is contended that the introduction of agricultural biotechnology protected by the new intellectual property regime can lead to misappropriation of traditional knowledge, corporatization of agriculture, monoculture, and bio-piracy, thereby directly impacting the human rights and economic and environmental significance, especially pertaining to farmers’ rights.

The potential role of IPRs in safeguarding traditional knowledge is an emerging domain, as intellectual property encompasses not only proprietary rights but also recognition and respect for the contributions of identifiable human creators. Consequently, intellectual property assumes a pivotal role in preserving the dignity of traditional knowledge holders and affording them a degree of control over its utilization by others. Nevertheless, towards the close of the 20th century and the onset of the 21st century, the richness and significance of this diversity face unprecedented threats due to the enforcement of IPR regimes in agriculture that fail to acknowledge farmers’ contributions to global biodiversity. Consequently, the inheritance of biological resources and associated traditional knowledge is imperiled by loss, lack of acknowledgment, absence of legal safeguards, extinction, and piracy[11], thereby raising legitimate concerns regarding the protection, conservation, and sustainable utilization of traditional knowledge.

THE COMMON HERITAGE REGIME

Prior to the conclusion of the last century, crop genetic resources were managed within the framework of what may be termed “common heritage[12],” a set of practices characterized by the treatment of genetic resources as public domain assets, not subject to ownership or monopolization by any single entity or interest. The concept of common heritage finds its roots in various practices, including the widespread exchange of seeds among farmers, the historical diffusion of seeds through both informal and formal channels, established scientific conventions, and its application to other resources in the international domain.
The discourse surrounding common property, notably within the field of crop science, likely contributed to the emergence of the term “common heritage.” References to crop genetic resources as common heritage began to surface in the 1980s in conjunction with the establishment of the Commission on Plant Genetic Resources at the Food and Agriculture Organization of the United Nations (FAO Commission) and the initiation of the International Undertaking on Plant Genetic Resources.

The notion of common heritage implies open access and non-exclusion to seeds and plants from farmers’ fields. Seeds have historically been collected through various means, involving consular officers, travelers, missionaries, students, scientists, and official collecting missions, often conducted with the consent and collaboration of local communities and recognition of farmers’ needs for seed and undisturbed fields.

Distinctive aspects differentiate collective action for crop resources from other common property regimes described in social science literature. Crop genetic resources possess characteristics such as high mobility, replicability, and protean nature, facilitating looser and less explicit rules governing access and management. Moreover, these resources are less encumbered by membership rules compared to other common property assets, resulting in de facto or quasi-groups characterized by loose associations of actors.
The logical foundation of common heritage lies in the nature of crop genetic resources, universal processes of diffusion and dispersal, and historical practices of reciprocity. Crop genetic resources originate from natural processes of evolution, decentralized selection, and historical diffusion, making it inappropriate for any individual or group to claim exclusive ownership. Reciprocity constitutes an implicit rule within the common heritage framework, where those acquiring seeds are expected to provide similar access to crop resources.
The flow of seed within farming villages exemplifies reciprocity, as does the movement of seed beyond villages into the international system of collecting and utilizing genetic resources. This principle is evident in the practices of plant collectors and breeders, who engage in free exchange and dissemination of genetic material. The historical ethos of public sector research underscores the commitment to free dissemination of improved crops and availability of genetic resources from gene banks as reciprocal measures to farmers and countries providing genetic resources.

The international exchange of crop germplasm, facilitated through gene banks and breeding programs, also adheres to an open system characteristic of common heritage. Developing countries, including those within Vavilov Centers, heavily rely on international flows of germplasm, highlighting the interdependence facilitated by this open exchange.
A common heritage approach to international exchange is sensible, as it mitigates transaction costs inherent in defining and defending property rights over genetic resources. These costs encompass negotiation, tracking, and conventional transaction costs, such as exclusion, information, and communication. Information costs associated with crop genetic resources, including determining the true source of collections, pose significant challenges, underscoring the practicality of a common heritage framework in managing these resources efficiently and equitably.

TRANSITIONING AWAY FROM THE COMMON HERITAGE FRAMEWORK: THE EVOLUTION OF GENETIC RESOURCE MANAGEMENT

In the wake of successful international efforts in the 1970s to establish frameworks for conserving and exchanging crop genetic resources, the common heritage approach to access management faced mounting pressure that ultimately led to its erosion. Various factors, including the increasing value of genetic resources, expanded Breeders’ Rights in industrialized nations, liberal agricultural policy formulations, geopolitical dynamics between North and South, and the burgeoning environmental movement, converged to challenge the common heritage paradigm. The turning point came with the emergence of the Convention on Biological Diversity (CBD) and the Global Agreement on Trade and Tariffs (GATT) in the early 1990s, which emphasized national ownership of biological resources and promoted the adoption of intellectual property regimes for plant materials.

The CBD’s sovereignty clause, which designated genetic resources as the property of nation-states, marked a significant departure from the common heritage approach. Its initiation at the 1992 U.N. Conference on the Environment and Development (UNCED) in Rio de Janeiro signaled a paradigm shift in the management of crop genetic resources. UNCED sought to address environmental challenges through a cooperative framework, emphasizing voluntary agreements, community-based actions, NGO involvement, and voluntary reporting.
Post-UNCED, the management of crop genetic resources was characterized by national ownership overlaying customary and professional practices inherited from the common heritage period. This transition aimed to align with UNCED principles of sovereign ownership and equitable benefit-sharing from biological resources. However, contradictory pressures within UNCED led to a dual approach: one emphasizing regulated access through bilateral contracting mechanisms (bioprospecting agreements) and the other advocating for cooperative, voluntary mechanisms (soft law) to avoid legally binding international conventions.
These pressures reshaped access to genetic resources differently depending on whether pharmaceutical and natural product resources or crop resources were involved. Pharmaceutical resources tended towards regulation through bilateral contracts, while access to crop resources leaned towards open, multilateral mechanisms. This divergence stemmed from differences in the nature of these genetic resources, their dependence on human stewardship, and the presence of international infrastructure for crop resources.

The evolution away from the common heritage framework saw the development of soft law mechanisms, such as Material Transfer Agreements, for managing access to crop genetic resources. These mechanisms retained aspects of common heritage while eschewing more rigid contractual agreements seen in bioprospecting agreements for pharmaceutical and natural products.
As nations navigate mechanisms for managing access to crop genetic resources, it is imperative to draw lessons from experiences regulating access to other biological resources through contracts.

WHY TRADITIONAL KNOWLEDGE SHOULD BE PROTECTED?

Protection of traditional knowledge (TK) encompasses various interpretations, from akin to intellectual property rights (IPRs) to safeguarding TK from devaluation or cultural harm. Reasons for TK protection include equity, conservation, preservation of lifestyles, prevention of biopiracy, and promotion of use and development. Equity ensures recognition and compensation for traditional contributions, vital for conservation and sustainable agriculture. Preserving lifestyles safeguards cultural heritage and identity. Preventing biopiracy deters unauthorized exploitation, while promoting TK use fosters innovation and economic growth. Overall, TK protection serves to honor cultural legacies, ensure fair benefit-sharing, and foster sustainable development.

INTERNATIONAL REGIME FOR PROTECTION OF TRADITIONAL KNOWLEDGE

The global recognition of the significance of preserving indigenous and local knowledge, customs, and traditions has led to various initiatives and agreements aimed at safeguarding traditional knowledge (TK) and ensuring equitable benefit-sharing. These efforts span across multiple international organizations and agreements:

World Health Organization: WHO focuses on integrating traditional medicine into national health systems, ensuring safety, competence, quality, access, and rational use of traditional medicine and complementary alternative medicine (CAM).

Convention on Biological Diversity: CBD emphasizes biodiversity conservation, sustainable utilization, and equitable benefit-sharing of genetic resources. Articles within the CBD address the preservation, safeguarding, and benefit-sharing of traditional knowledge associated with genetic resources[13].

Nagoya Protocol (2010): This extension of the CBD enhances its scope by emphasizing equitable benefit-sharing for traditional communities in cases of commercial exploitation of traditional knowledge.

World Intellectual Property Organization: WIPO has been involved in TK and folklore protection since 1978. Efforts include establishing the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC), and producing documents to address the complexities of protecting TK within intellectual property frameworks.

THE INTERNATIONAL TREATY FOR PLANT GENETIC RESOURCES FOR FOOD AND AGRICULTURE

Plant Genetic Resources (PGRs) have historically constituted valuable economic assets and livelihoods for numerous populations worldwide, including in India. Traditional agriculturalists have leveraged the genetic variability within wild and cultivated plants for millennia to advance their crop cultivation. This biodiversity serves as a cornerstone of sustainability, enabling adaptation, evolution, and survival amidst changing environmental, disease, and social dynamics, thereby facilitating resilience against forthcoming challenges. Traditional farmers globally rely directly on the yields of the genetic diversity they cultivate for sustenance and future seed stock. This natural wealth embodies intrinsic ecological, social, economic, scientific, educational, cultural, recreational, and aesthetic worth to human society. Indigenous and local communities have meticulously curated numerous crop and animal varieties over centuries, exemplified by India’s maintenance of over 30,000 indigenous rice varieties and landraces in recent decades.

Traditional farmers in India have effectively conserved and augmented the value of plant genetic resources through their cultivation, seed propagation, and continuous refinement of farmer-adapted varieties (landraces). Their communal interactions, often predicated on barter and exchange, facilitate the dissemination and further evolution of these varieties. However, significant portions of land, forests, and habitats belonging to tribal and local communities in India are subject to adverse impacts from human activities such as deforestation, logging, infrastructure development, mining, urbanization, and agricultural expansion. This encroachment disrupts the social and ecological contexts within which these communities traditionally utilize their knowledge.

The advent of modernization, agricultural commercialization, intellectual property rights (IPR) over biological resources, and the proliferation of market economies have spurred international initiatives aimed at safeguarding biodiversity and traditional knowledge associated with biological resources. However, the requirements of Trade-Related Aspects of Intellectual Property Rights (TRIPs) concerning agricultural biotechnology sometimes clash with other international norms, particularly the right to food enshrined in the Universal Declaration of Human Rights (UDHR) and the objective of equitable benefit-sharing from biological resources under the Convention on Biological Diversity (CBD). It is contended that the introduction of agricultural biotechnology protected by the new intellectual property regime can lead to misappropriation of traditional knowledge, corporatization of agriculture, monoculture, and bio-piracy, thereby directly impacting the human rights and economic and environmental significance, especially pertaining to farmers’ rights.

The potential role of IPRs in safeguarding traditional knowledge is an emerging domain, as intellectual property encompasses not only proprietary rights but also recognition and respect for the contributions of identifiable human creators. Consequently, intellectual property assumes a pivotal role in preserving the dignity of traditional knowledge holders and affording them a degree of control over its utilization by others. Nevertheless, towards the close of the 20th century and the onset of the 21st century, the richness and significance of this diversity face unprecedented threats due to the enforcement of IPR regimes in agriculture that fail to acknowledge farmers’ contributions to global biodiversity. Consequently, the inheritance of biological resources and associated traditional knowledge is imperiled by loss, lack of acknowledgment, absence of legal safeguards, extinction, and piracy, thereby raising legitimate concerns regarding the protection, conservation, and sustainable utilization of traditional knowledge.

LEGISLATIONS FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE

1. The Protection of Plant Varieties and Farmer’s Rights Act, 2001

The Plant Varieties Protection Act, which came into force in September 2001, serves as a sui generis law aimed at meeting the obligations outlined in the TRIPS agreement of the World Trade Organization (WTO). This legislation provides a framework for the protection of various types of plant varieties and emphasizes the importance of equitable profit-sharing arrangements between providers and users of plant genetic resources.
Criteria for Protection: The act delineates specific criteria for the protection of plant varieties, encompassing various categories:

• Novel Varieties: Varieties that exhibit distinctiveness, stability, uniformity, and novelty are eligible for protection under the act.
• Current Varieties: Existing varieties that meet the prescribed criteria are also eligible for protection.
• Predominantly Derived Varieties: Varieties primarily derived from existing ones, yet demonstrating distinctiveness, stability, uniformity, and novelty, can be protected under this legislation.
• Cultivator’s Varieties: Traditional farming communities, including traditional farmers and tribal groups, cultivating and preserving diverse crop varieties through traditional farming methods, are recognized and protected under this act.

Equitable Profit-Sharing: The act underscores the significance of establishing equitable profit-sharing arrangements between providers and users of plant genetic resources. This provision aims to ensure that benefits derived from the utilization of plant genetic resources are fairly distributed among all stakeholders, including traditional farmers, tribal groups, plant breeders, and users.

Plant Breeder’s Rights (PBR): Plant breeder’s rights (PBR) can be obtained for a new plant variety if it meets the following criteria:

• Distinctiveness: The variety must possess distinct characteristics that differentiate it from existing varieties.
• Stability: The variety must maintain its distinct characteristics over successive generations.
• Uniformity: The variety must demonstrate uniformity in its essential characteristics among individual plants within the same variety.
• Novelty: The variety must be new and not commonly known or available to the public before its application for protection.
• Additionally, the legislation allows for the acquisition of PBR for traditional plant diversity, acknowledging the value and importance of conserving and protecting traditional crop varieties cultivated by traditional farming communities.

B. Biological Diversity Act, 2002:

India enacted the Biological Diversity Act of 2002 to fulfill its commitments under the Convention on Biological Diversity (CBD). This legislation aims to conserve biological diversity, ensure sustainable utilization of its components, and promote fair benefit-sharing from natural resource utilization. Key provisions include the establishment of the National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs), and Biodiversity Management Committees (BMCs) at the grassroots level. The Act prohibits seeking intellectual property rights for discoveries based on Indian biological resources without prior consent from the NBA, thus combating biopiracy and ensuring equitable benefit-sharing from commercial exploitation of traditional knowledge (TK).

C. Patent Act, 1970

India’s Patent Act of 1970 addresses the protection of traditional knowledge (TK) associated with forest products, particularly concerning forest-dwelling tribal communities. TK, characterized by its collective nature and oral transmission, does not fit conventional patent criteria of novelty and inventiveness. Sections 25 and 64 of the Act facilitate the revocation of patents based on TK, safeguarding it from exploitation and ensuring scrutiny of patents derived from such knowledge.

D. Copyright Act, 1957:

The Copyright Act of 1957 protects creative expressions, including those rooted in traditional knowledge (TK). While copyright law safeguards the manner of expression rather than ideas themselves, it can protect artistic works of indigenous communities against unauthorized reproduction and misuse. Section 31A allows for copyright protection of unpublished works, potentially encompassing traditional knowledge, although its temporary nature may limit effectiveness.

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

The Indian Geographical Indications of Goods Act, 1999 defines Geographical Indications (GIs) as identifiers linking goods to specific territories, regions, or localities. GIs, like Darjeeling Tea or Kanchipuram Silk, recognize and protect the quality and characteristics of products associated with specific geographical areas, preserving traditional knowledge collectively held by indigenous communities. GIs ensure perpetual protection, acknowledging indigenous cultures’ efforts in preserving traditional methods and preventing unauthorized exploitation.

FARMERS’ RIGHTS AND INTERNATIONAL PROTECTION OF TRADITIONAL AGRICULTURAL KNOWLEDGE

TheFAO[14]‘s International Undertaking on Plant Genetic Resources provided a platform to discuss equity interests of farmers in developing nations, leading to the emergence of Farmers’ Rights. FAO Resolution 8/83 emphasized the common heritage principle, advocating for unrestricted access to plant genetic resources and recognizing the diverse contributions to genetic diversity.

The concept of Farmers’ Rights initially faced opposition from those advocating for Breeders’ Rights. Despite efforts to undermine Breeders’ Rights through international resolutions, Farmers’ Rights remained elusive due to ambiguity and the complexity of ownership and material coverage. With the negotiation of the ITPGRFA, the focus shifted to national implementation, posing challenges such as political weaknesses and the need to balance agricultural development.

India’s Act No. 53, 2001, and the African Model Legislation envision Farmers’ Rights through mechanisms such as the National Gene Fund and community-based benefit-sharing. However, challenges persist, including the limited financial resources generated through taxing certified crop varieties and the complexity of estimating the contributions of farmers’ varieties to modern breeding programs.

Farmers’ Rights represent a moral recognition of farmers’ contributions to genetic resources but face challenges in implementation, including ambiguity, limited financial resources, and complexities in estimating contributions. While national legislation aims to address these issues, Farmers’ Rights remain largely rhetorical, offering only a limited mechanism for benefit-sharing and conservation of crop genetic resources.

STRATEGIES FOR PRESERVING TRADITIONAL KNOWLEDGE

In the realm of Intellectual Property Rights (IPR), traditional knowledge (TK) is safeguarded through two main approaches: Constructive Protection and Protective Protection. Constructive Protection involves empowering TK holders, endorsing quality, addressing real needs, justifying traditional innovation, and ensuring fair profit distribution. For instance, India’s searchable database of traditional medicine prevents unjust patents, like one for turmeric’s wound treatment, and protects sacred cultural symbols. Protective Protection shields TK from illegitimate IP claims, ensuring it’s recognized as prior art and accessible to patent examiners. Both approaches are recommended for comprehensive protection, with measures like Prior Informed Consent (PIC) and Benefit-sharing.

Several government initiatives, such as the Beej Bachao Movement and the Honey Bee Network, aim to preserve and reward traditional knowledge and grassroots innovation. The National Innovation Foundation (NIF) collaborates with the Honey Bee Network to support grassroots technologies, while the Gujarat Grassroots Innovations Augmentation Network (GIAN) selects innovations for market scrutiny and rewards innovators and knowledge experts.
The Traditional Knowledge Digital Library (TKDL)[15] is an extensive Indian repository with nearly 34 million pages of documented traditional knowledge, available in multiple languages. Developed collaboratively by institutions like CSIR and government ministries, TKDL aids patent offices in scrutinizing applications for TK elements and has successfully countered numerous patent applications in Europe. The Traditional Knowledge Resource Classification (TKRC) within TKDL improves the search and review of prior art in patent applications related to traditional knowledge, demonstrating proactive efforts to preserve TK for future generations while ensuring patent examiners have access to prior art.

CASE STUDIES DEMONSTRATING IPR’S NEED FOR TRADITIONAL KNOWLEDGE

The Neem Case[16]

W.R.Grace, a company in the US and EU, secured a patent for a formulation utilizing azadirachtin, an active ingredient in neem, known for its pesticidal properties. Traditional Indian medicine recognized neem’s antiviral and antibacterial properties. The patent faced opposition, with the European Patent Office eventually ruling against it due to a lack of innovation.

The Turmeric Case[17]

The University of Mississippi Medical Center obtained a patent for turmeric’s wound-healing properties. Despite turmeric’s long-standing use in Indian households, proving prior art was challenging. However, extensive research and documentation led to the patent’s revocation by the USPTO, acknowledging turmeric’s ancient healing properties.

The Basmati Rice Case[18]

RiceTec Inc. patented new rice lines derived from traditional basmati varieties, including the use of the name “Basmati.” This move threatened India and Pakistan’s export market. Following pressure from NGOs, the Indian government filed for re-examination. Eventually, the USPTO allowed only a limited number of claims, acknowledging the lack of inventiveness.
These cases highlight the necessity of preemptive actions to safeguard traditional knowledge and prevent its misappropriation by foreign entities. They emphasize the need for robust mechanisms to protect national resources from exploitation.

PROBLEMS AND DIFFICULTIES WITH PROTECTION OF TRADITIONAL AGRICULTURAL KNOWLEDGE IN IPR

In the contemporary era of advanced technology, safeguarding age-old traditional knowledge presents a challenge, yet it remains fundamental. Despite traditional knowledge’s increasing recognition as a valuable resource, it’s often regarded as public domain under Western intellectual property laws, leading to appropriation without compensation. Both farmers and scientists have relied on generations of accumulated genetic diversity in crop plants, forming a vital legacy feeding billion. The protection of traditional knowledge necessitates security of land tenure, control over natural resources, and respect for indigenous cultures, emphasizing legislative protection.

The interpretation and application of Intellectual Property Rights (IPRs), particularly in biotechnology and agriculture, have marginalized developing countries and impacted their food security. Traditional knowledge, held collectively and transmitted orally, lacks novelty and inventive character required for patenting. Furthermore, the commercialization of improved plant varieties often benefits seed companies while traditional farmers remain uncompensated for their contributions. Farmer’s varieties, characterized by variation over time, do not meet the stability and uniformity criteria for protection under Plant Breeders Rights (PBRs).
In India, where farmers heavily rely on seed saving and exchange practices, the absence of traditional rights to seed saving could lead to increased costs and dependence on formal seed agencies. Patent protection creates monopolies and exacerbates benefit-sharing issues, especially when formal knowledge builds upon traditional knowledge. Customary or informal regimes governing traditional knowledge transmission within communities often fail to protect holders’ interests against economic interests, leading to issues like bio-piracy.

EVALUATION AND SUGGESTIONS FOR TRADITIONAL KNOWLEDGE

The awarding of patents for inventions utilizing traditional knowledge from developing countries has raised significant concerns about unequal exploitation of biological resources and related knowledge. To address this issue, reforms within the framework of international intellectual property law, particularly the TRIPS Agreement, are essential. Three key principles should be incorporated into TRIPS to prevent biopiracy: disclosure of geographical roots or associated traditional knowledge, prior informed consent from local populations, and equitable allocation of benefits.

The definition of prior art varies between countries, posing challenges to preventing biopiracy. Harmonizing the definition globally is crucial. Moreover, the traditional intellectual property rights program lacks adequacies in providing full security to traditional knowledge and its holders. Incorporating sui generis elements into modern IPRs is imperative to protect traditional knowledge effectively.

The fundamental policy aim of the IPR system should be to protect indigenous rights and cultural heritage. Simplifying the registration process and reducing expenses and litigation can make the IPR program more accessible to traditional cultures. Awareness initiatives are necessary to educate traditional communities about IPRs, biopiracy, profit-sharing, and TK security.
Government bodies like the Botanical Survey of India (BSI) and Zoological Survey of India (ZSI) should validate plants and animals reported in People’s Biodiversity Registers and grant legal rights to Biodiversity Management Committees (BMCs) to defend these registers. Quality assurance systems should be implemented for Geographical Indication (GI) products, and protective measures should safeguard traditional medical knowledge.

Efforts are needed at national and international levels to prevent the misappropriation of biological resources and indigenous peoples’ interests. Traditional communities should be allowed to create databases of their traditional knowledge to qualify as prior art, preventing private entities from obtaining IPRs over TK-based inventions. TRIPS should be amended to include obligations to disclose product origins and recognize nations’ sovereignty over genetic resources, enhancing transparency in the patent system and enabling developing countries to monitor the use of their indigenous knowledge.

CONCLUSION

In conclusion, the issue of protecting traditional agricultural knowledge and crop resources has seen various attempts through international resolutions, formal contracts, and benefit-sharing mechanisms. Originating from concerns about eroding resources due to modernization and historical North/South dialogues, efforts have been made to move away from the common heritage management scheme towards liberal ideologies and anti-colonialist strategies. However, the justifications for closing the genetic commons are based on inaccurate portrayals of traditional resource management systems and overlook successful methods of managing common pool resources and global interdependence among farming communities. It’s argued that it’s time to move beyond the Tragedy of the Commons and North/South dialogues as bases for protecting agricultural resources. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) represents a negotiated settlement that reverts to the common heritage concept for the world’s most important crops. Yet, it lacks emphasis on the obligations of both industrial and developing countries to support conservation efforts adequately. Instead, it’s proposed that benefit sharing should derive from traditional international capital transfers, particularly development assistance aimed at improving rural incomes in genetically diverse farming systems. Tools already exist to utilize such funds without replacing traditional crop populations, and bilateral and multilateral development assistance programs can be justified as reciprocal obligations of industrial nations to developing nations. Multilateral efforts like the Global Environmental Facility’s program on Conservation and Sustainable Use of Biological Diversity Important to Agriculture and the McKnight Foundation’s Collaborative Crop Research Program embody this reciprocity. Furthermore, collective action is crucial for maintaining crop genetic resources, but it differs substantially from managing fixed assets associated with common property. Rather than replacing the common heritage regime with community property systems, efforts should focus on supporting collective actions within this regime. New property-based schemes for farmers and communities are deemed unworkable and likely to hinder more viable approaches to conserving genetic resources and improving rural livelihoods. In addressing the challenge of establishing Farmers’ Rights, it’s suggested to follow the ITPGRFA and India’s Act 53, emphasizing multi-community solutions and moving away from individual contracts towards broader benefit-sharing mechanisms.

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[1] http://www.nbaindia.org/faq.htm. (Last visited on 26th March 2024)

[2] Section 2(b) of the Biological Diversity Act, 2002

[3] https://www.wto.org/ (Last visited on 28^th March 2024)

[4] Riya, “PROTECTION OF TRADITIONAL KNOWLEDGE UNDER INTELLECTUAL PROPERTY RIGHTS REGIME”, E- Journal of Academic Innovation and Research in Intellectual Property Assets (E-JAIRIPA) Vol. 1 (01), Dec 2020, pp. 149-164

[5] https://www.wipo.int/tk/en/ (Last visited on 26^th March 2024)

[6] https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2019/04/Traditional-Knowledge-backgrounder-FINAL.pdf (Last visited on 28th March 2024)

[7] T Cottier and M. Panizzon, “Legal Perspectives on Traditional Knowledge,” Journal of International Economic Law, Vol. 7, 2004, p. 387, available at: https://ideas.repec.org/a/oup/jieclw/v7y2004i2p371-399.html (Last visited on 22nd March 2024)

[8] Article 2 of the FAO International Code of Conduct for Plant Germplasm Collecting and Transfer

[9] K. Hammer, Resolving the Challenge Posed by Agro-biodiversity and Plant Genetic Resources – An Attempt, (Kassel University Press GmbH, Germany; 2004), available at: http://www.uni-kassel.de/upress/online/frei/978-3-89958-056-3.volltext.frei.pdf (Last visited on 24th March 2024)

[10] Hoan T. Le, “The Potential of Biotechnology to Promote Agricultural Development and Food Security” in Joseph Cooper, Leslie Marie Lipper et. al.(eds.) Agricultural Biodiversity and Biotechnology in Economic Development 275 ( Springer, New York, 2005)

[11] V.K. Gupta, Traditional Knowledge Digital Library, in Conference Proceedings of Sub-Regional Experts Meeting in Asia on Intangible Cultural Heritage, Bangkok, Thailand, 13-16 December, 2005

[12] https://www.wipo.int/edocs/pubdocs/en/tk/920/wipo_pub_920.pdf (Last visited on 22nd March 2024)

[13] Biological Diversity Act

[14] The FAO-IT was adopted November 3, 2001, but has not yet entered into force. Currently, 33 States have deposited their instrument of ratification, acceptance, approval or accession (see www.fao.org/Legal/treaties/033s-e.htm).

[15] https://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng (Last visited on 28^th March 2024)

[16] Bullar Linda, A briefing paper on the first legal defeat of a biopiracy patent: the neem case; published in March 2005

[17] https://www.writinglaw.com/ipr-for-indian-traditional-knowledge/ (Last visited on 26^th March 2024)

[18] https://blog.ipleaders.in/ipr-vis-vis-traditional-knowledge/ (Last visited on 26^th March 2024)

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