Legal Protection for Traditional Knowledge

Towards a New Law for Indigenous Intellectual Property

Anindya Bhukta

• Publisher: Emerald Publishing Limited
• Year: 2020
• ISBN:
  9781800430655
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Many aboriginal communities in the Global South depend for their livelihoods on the vast supply of bio-resources around them, but multinational corporations (MNCs) are not always ethical in their dealings with these communities. MNCs often pirate and patent communal, traditional knowledge, thereby "acquiring" intellectual property potentially worth hundreds of millions of dollars almost free of cost. Aboriginal communities face steep uphill legal battles in these cases.

Here Anindya Bhukta explores the porous legal relations between traditional knowledge and current intellectual property law. Focusing on aboriginal communities in India, Bhukta explains how India, like other resource-rich countries, has spent millions trying to revoke US-issued patents on knowledge gained from aboriginal communities using existing IPR legislation. He demonstrates that existing IPR laws do not provide full legal protection in such cases - a fact acknowledged by the World Trade Organization when it categorically asked for a sui generis law to be developed for precisely these purposes - and he suggests just such a new law that could offer more robust legal protection for aboriginal communities wishing to capitalize on their own accomplishments. In so doing, Bhukta calls attention to the vital contributions that aboriginal communities make to global development.

Legal Protection for Traditional Knowledge is a must-read for researchers in economics, development studies, and international law, and especially those with an interest in the intellectual property status of traditional knowledge.

1

Introduction

1.1 The Prelude

Voice started rising all over the world, especially in developing world, against the misappropriation and bio-piracy of traditional knowledge (TK) since the very inception of the decade 1990. As the shadow of protest got looming larger and larger, cries for the enactment of an appropriate law to protect the knowledge base of aboriginal communities in different parts of the world started pitching their volume up.

Traditional knowledge is a community-based collective knowledge. It has various dimensions, ranging from traditional cultural expressions to traditional medicines. The uniqueness of traditional knowledge lies in its transgenerational character, which flows over generations just through verbal process of transmission. The text of this knowledge is preserved nowhere in the written form. ‘Traditional knowledge’, as defined by World Intellectual Property Organisation (WIPO), ‘generally includes the intellectual and intangible cultural heritage, practices and knowledge systems of traditional communities, including indigenous and local communities’ (http://www.wipo.int/tk/en/resources/glossary.html).

Traditional knowledge is the communal knowledge of aboriginal communities. From time immemorial, these aboriginal communities have made them engaged in exploring the mother earth extensively during the search of their means of livelihood. This continuous endeavour of theirs gives us varieties of food and medicines derived from plant and animal resources. The precious knowledge of these aboriginal communities regarding nature and natural resources is, therefore, valuable to the communities themselves and also to the countries they belong to. However, neither the concerned communities nor the concerned countries ever thought of protecting this valuable intellectual property of them until before the 1930s. In fact, in the initial stages of development, it has been seen that only a few people claimed protection for their discoveries and inventions. Discoveries and inventions, at least prior to industrial revolution, were meant for the development of the entire human race of this world, scientific progress was meant for the advancement of civilization as a whole. This attitude also got reflected among the resource-rich countries, among the aboriginal communities who were exploring these resources.

Concern for protecting the rights over natural resources of the owner country and the rights of the knowledge of aboriginal communities in using these resources has never been more relevant than it has been in the twentieth and twenty-first centuries, as never before have individuals been allowed sole ownership of biological matter. The introduction of patent laws in the early1930s, which allowed plant material to be patented, has led to the current increase in both cases of and debates within the topic of biopiracy (https://sites.duke.edu/amazonbiopiracy).

Prior to 1930, patent right was granted only to non-biological matters. In order to be patentable an invention or innovation must satisfy three criteria, namely novelty, non-obviousness and applicability in industrial processes. But biological matters are essentially the gift of the nature. It is, therefore, impossible for any biological matters to satisfy the criterion of non-obviousness which refers to the presence of an inventive step. In order for an inventive step to be present, the invention or innovation must not have been obvious at the time of its creation to anyone having ‘ordinary skill in the art’ (Hansen & VanFleet, 2003). The protection to plant genetic resources was, naturally therefore, not sought for by anyone. Such a protection was first extended by the United States.

The United States sought for plant protection in the late 1920s. After the World War I, the US government found it difficult to put more investment in the agricultural sector through public sectors. Therefore the US government had taken a policy decision to promote and encourage the private sector in the field of agriculture (Elumalai, 2012). This policy decision led the US government to enact the Plant Patenting Act in the year 1930. The objective was to give incentive to private corporate bodies in the development of High-Yielding Varieties (HYV) seeds in their laboratories. The research towards developing HYV seeds coincidently started during this period. After World War II, many farmers in developing and industrialized countries became reliant on public breeders and private seed producers for quality seeds.

The advent of biotechnology, especially after the discovery of DNA in 1953 by Dr James Watson and Dr Francis Crick, opened up a new horizon to the breeders. As the prospect of seed business was getting brighter private corporate bodies of the US started putting pressure on their government to ensure the signing of an international treaty which would recognize the breeders' right on these newly developed seeds. The International Convention for the Protection of New Varieties of Plants (the UPOV convention) was signed by twelve developed countries in 1961 in Paris as the fall out of this corporate pressure.

Prospect of biotechnology became much brighter after the discovery of recombinant DNA technology¹ in 1973. Dr Stanley Cohen and Dr Herbert Boyer use bacterial genes to perform the first successful recombinant DNA experiment, which inserted a recombinant DNA molecule into a cell for replication.

Now all these discoveries were accentuating the probability of biopiracy. The seeds were there. The knowledge about the usage of these seeds was there. Private breeders just started collecting these seeds, modifying their characteristics a little bit with the help of modern technology and then supplying them for commercial use. Who suffered worst in this process, first of all, were the poor, underdeveloped countries, who coincidentally are the biodiversity-rich countries and, secondly, the aboriginal communities of these countries who possess the age-old knowledge of the use of these bio-resources.

As a consequence of this practice of misappropriation of biological resources and the knowledge about their uses underdeveloped countries all over the world, especially the countries of southern hemisphere, started demanding sovereign rights over their natural resources. They raised the legitimate question before the entire world: would it be possible for the breeders to breed new varieties of seeds if the mother seeds weren't supplied by them, if the basic knowledge regarding the use of these seeds weren't supplied by their aboriginal communities? If the breeders can make their seeds patented for earning, then a part of these royalties must go to the countries who own the mother seeds and also to the aboriginal communities who hold the traditional knowledge regarding the uses of these mother seeds.

A resolution to this most contentious issue came from the 22nd annual convention of Food and Agricultural Organisation of the United Nations (FAO) in 1983. In a historical Undertaking, the FAO declared plant genetic resources to be the common heritage of mankind so that it can be freely exchanged. This resolution apparently went in favour of the developed countries, because instead of recognizing sovereign rights of the states over their natural biological resources, the Undertaking established rights of every individual on any natural resources of this world. This means that anyone can freely use the biological resources of any country, which actually was the demand of the developed countries and the multi-national corporate world. But the developed countries vehemently opposed this declaration, because by this Undertaking the FAO recognized the rights of humankind not only over the natural plant materials but also over any seed newly bred in the laboratories.

The concern for protecting the rights over natural resources of the owner country and the rights of the knowledge of aboriginal communities in using these resources, therefore, in this way, were coming into prominence during the last quarter of the twenty-first century, when individual ownership were claiming over biological matters. In fact, the demand for individual ownership was more sought for after the emergence of recombinant DNA technology in 1973. This technology brought about a revolutionary change in the breeding technique. In this technology what is actually done is that a quality gene is first cut from the gene of a plant and thereafter it is inserted into the gene of another plant. A microorganism is used in this process of transformation as the carrier. The multinational corporate world, therefore, was also sought for the grant of patent, not only to biological materials but also to living organisms. Their demand was also finally granted by the US Supreme Court in the case of Diamond vs. Chakrabarty in 1980. This historical judgment strengthened the demand for patenting biological matters.

The FAO undertaking of 1983, therefore, did not satisfy the corporate lobby. Succumbing to the mounting pressure of the lobby amendments were even made in the 1961 UPOV accord in 1991, where all the exemptions that were granted to new varieties of seeds in the 1961 treaty were revoked and the breeders were granted, in addition to the rights of production and sell of their seeds to the market, the rights of exportation and reproduction also.

However, the debate over the issue of rights of the state and the aboriginal communities did not naturally end here, because what was claimed by the resource-rich countries and their aboriginal communities was very much legitimate. To draw an end to the debate, the Biodiversity Convention of 1992 gave recognition to the state sovereignty over their biological resources. It implies that like a breeder is entitled to get royalties for his newly bred seed, the country that possesses the mother seed is also entitled to get royalties as the owner of the mother seed.

But even this effort of the Biodiversity Convention went in vain to the insistence of the developed countries and their multinational corporate. The lobby went on pressurizing in adopting the 1991 UPOV model. The fall out of this pressure is the Article 27.3(b) of the Trade Related Intellectual Property Rights (TRIPS) Agreement, which advocates for developing a sui generis model of law in protecting plant varieties. This law should be such as to protect the interests of all the stakeholders relating to plant materials.

Against this backdrop search for an effective law to protect the interest of the stakeholders started. The present study is only another among them.

1.2 The Problem We Are Facing

The advancement of civilization is the outcome of advancement of science and technology. Science and technology, however, do not always progress in the laboratories. Rather this advancement often owes havoc to the knowledge of common people. Common people gather this knowledge just by using their intellect, by the closer observation of nature and natural resources, by the hunt for food and medicines for their livelihood. More often these were team effort, rather than individual. This collective knowledge of communities is known as traditional knowledge. They are traditional in the sense that these communities have a long heritage of discovery and development of such knowledge.

Discoveries of aboriginal communities acted as an impetus to the advancement of science and technology. But they claimed nothing in return. In fact, in initial stages of human civilization discoveries in the field of science and technology progressed in this way, the discoverers never claimed any benefit in return for their discoveries. Today who does know, who discovered fire or who was the inventor of wheels? In fact, the discoverers then dedicated their discoveries for the advancement of human civilization.

However, the entire scenario started changing after the introduction of patent right in the sixteenth century. The inventors went on patenting their inventions for monetary benefits. In the twentieth century a new trend emerged. The MNCs in particular started patenting the knowledge, especially of medicinal knowledge, of aboriginal communities in their own name. This trend got accentuated after the birth of biotechnology in the 1970s.

The birth of biotechnology opened up a new horizon, especially in the field of medicines. Medicines are ‘normally’ derived from biological matters. Biotechnology helps genetic modification of biological matters much easier and, thereby, helps in developing much more effective drugs. The advent of biotechnology, therefore, on the one hand, has increased the importance of genetic resources and, on the other, raised the demand for TK relating to folk medicines among the MNCs. This is so because, according to figures released by the international pharmaceutical industry, it costs the industry 500–600 million dollars to introduce a new drug in the market. This is the basis for the industry's call for that stringent protection of intellectual property rights (IPR). When a company pirates a product based on TK and converts it into a medicine, it has ‘acquired’ a product that may be worth hundreds of millions of dollars (Sahai, 2004).

Rising demand for genetic resources along with TK eventually raised the question of protecting the interests of the holders of the traditional knowledge. But no enterprise towards extending such protection can be made full proof without legal support. Developing a legal framework for the protection of traditional knowledge is thus the need of the hour.

This need is, however, more prominent in case of countries like India. Being one of the oldest societies of the world, aboriginal communities of India, through their keen and conscious observations over the years, have built up one of the largest repositories of knowledge of medicinal preparations, method of treatment, literature, music, art forms, designs, marks etc. as well as a vast range of knowhow, skills, innovations, practices and learning. This traditional knowledge base, in a sense, has become an expression of our culture also.

The plunder of this storehouse of knowledge is, therefore, not only an invasion on our economy, but also a brutal attack on the texture of our society and culture. Moreover, since many of the indigenous communities still rely on this knowledge for their livelihood misappropriation of the knowledge can severely hamper their economic interests. Already many attempts have been made for such misappropriation. The developed countries, especially the United States, had granted several patents to some MNCs of their origin over the use of such knowledge. A popular example is the patent granted on the healing properties of turmeric. That the turmeric has healing property was the discovery of Indian traditional communities. Although India managed to revoke the patent, it does not prove that no steps should be taken any more to safeguard the interests of the traditional knowledge holders. In fact, turmeric is just one example. Many such attempts were made in the past, and in each of the case, patent were granted by the developed countries. India spent a huge amount of foreign reserve in revoking them. So, undoubtedly, it is not a standard procedure to protect traditional knowledge from being stolen away. Had India a strong legal mechanism in this regard, regular occurrence of bio-piracy wouldn't be so easy. The issue of bio-piracy was discussed at length in different international forum. The WTO categorically asked for the development of a sui generis law in this regard by its member countries. The development of a model law in protecting our traditional knowledge base is the objective of the present study.

1.3 Rationale behind the Study

Traditional knowledge (TK) is the information that people in a given community, based on experience and adaptation to a local culture and environment, have developed over time, and continues to develop through the process of learning and sharing by the members of the community. This kind of knowledge has never been preserved in written form. Rather they are passed over by the elderly and experts of the community orally to the generations next. When passing through generations this knowledge gained experience and became more and more refined and thereby more useful to the humankind. Not only that, journey through generations has eventually made this knowledge an integral part of the cultural identity of a community (Pant & Moorthy, 2013).

The list of TK includes knowledge, ranging from agricultural products to handicraft items, from a dancing style to mental inventories of local biological resources, animal breeds. It also includes local plant, crop and tree species; practices and technologies such as seed treatment and storage methods and tools used for planting and harvesting. In brief, the TK has several dimensions; the most noting among them are traditional knowledge relating to biological resources and traditional cultural expressions. The rationale behind protecting such knowledge can justify our search for an effective law to do the job effectively. Let us, therefore, first summarize the reasons one by one.

• TK, in most of the cases, is associated with the use of biological resources. These biological resources, in fact, not only enriches our life everyday by providing newer kind of medicines, newer varieties of goods but also it is they who are responsible for sustenance of our life in this planet by providing basic necessities of life like food, clothing and shelter made of from natural resources from time immemorial. The TK of our old people also teaches us how to keep balance in the use of natural resources so as to sustain stability in the environment. The loss of TK thus can endanger our lives and the environment as well.
• The cultural roots of a society which, in turn, creates its cultural identity as well, often lies with the local folk culture. This local folk culture has been developed over generation by the local communities, especially aboriginal communities, of a particular area. Once this cultural traditional knowledge is allowed to be misappropriated by others there is every possibility that the cultural identity of a society be uprooted and lost forever.
• Bio-piracy of TK of a country eventually destroys the commercial advantages that the country could reap from its sale or exchange. But that's not all. By this process of misappropriation, the TK holders of the country will lose their chance of monetary benefits. These losses, of both the resource-host countries as well as the holders of TK, are impossible to be compensated.

These reasons, no doubt, justify that search for an effective law to protect the interests of the TK holders are the need of the hour. However the task is not so easy. First of all, the TK has several dimensions. Secondly, there are several stakeholders o...