2012] Technological Measures and its Legal Protection: F-99

An Assessment in the Developed World

Protection to Indigenous Knowledge:

A Study of Flawed Scenario at National
and International Level
Dr. Sachiv Kumar*, Vinayak Gupta** and Prateek Jain***

Indigenous knowledge is not only the foundation of modern science;

it is also what could be described as the reference and referral centre.
SUMAN SAHAI1

It is matter of the fact that this world needs a dissemination of intellectual knowledge owned
by the indigenous communities. However, the rights of the indigenous communities shall
not be outrightly taken away at the cost of the development of the world. Hence, a cost is
needed to be paid to them for their knowledge. This paper is an attempt to throw the light on
the same. Part I of the paper tries to provide the meaning of the key terms which is constantly
used in this paper. In the next Part, a sketch of the problem is portrayed. Part III of the paper
provides a bird eye view of the international legislation. Finally, Part IV of the paper comes
up with view on the local or national perspective. Part V explains various preventive methods
in practice all over the world. This paper tries to think globally but act locally. With this
pious objective, Part V of the paper finally tries to sum up the paper with positive suggestions.

1. Introduction to the Key Terms

1.1 Concept of indigenous people indigenous peoples have acquired wide
The notions of Traditional Knowledge usage in international debates on
(TK), Indigenous Knowledge (IK) and sustainable development as well as those

* Assistant Professor of Law, Rajiv Gandhi National University of Law, Punjab.

** Student, IV Year, B.A. LL.B. (Hons.), Rajiv Gandhi National University of Law, Punjab.
The author is student editor of Advocacy: Vistas for Arguing Laws, A Research E-Journal
of RGNUL, Patiala and Intellectus Intellegit, A fortnightly newsletter on IPR and technology
law. The Author is also Founder and Business manager of International Journal of
Contemporary Laws, a quarterly Research E-Journal.
*** Student, III Year, B.A. LL.B. (Hons.), Rajiv Gandhi National University of Law, Punjab.
The author is also student editor of Intellectus Intellegit, A fortnightly newsletter on IPR
and technology law.
1 Dr. Suman Sahai was honored with the 2004 Borlaug Award for her outstanding
contribution to agriculture and the environment. Dr. Sahai has served as a faculty member
at the Universities of Alberta and Chicago as also the University of Heidelberg. She returned
to India and organized Gene Campaign, an organization dedicated to protecting farmers’
rights and food and livelihood security. Dr Sahai chaired the Planning Commission Task
Force on ‘Agro biodiversity and Genetically Engineered Organisms’ , for the Eleventh Plan.
She has received several national awards and was appointed Knight of the Golden Ark
(Netherlands) in 2001, Padma Shri awarded by the President of India (2011).

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on intellectual property protection. 2 transmit to future generations their

In the 30-year history of indigenous ancestral territories, and their ethnic
issues at the United Nations, and the identity, as the basis of their
longer history in the ILO on this question, continued existence as peoples, in
considerable thinking and debate have accordance with their own cultural
been devoted to the question of definition patterns, social institutions and legal
of “indigenous peoples”, but no such system.
definition has ever been adopted by any This historical continuity may consist
UN-system body.3 Given the complexity of the continuation, for an extended
of human history and social period reaching into the present of one
organisation, there can be no single or more of the following factors7:
definition for being indigenous.4 Some of (a) Occupation of ancestral lands,
the popular definitions of Indigenous or at least of part of them;
people are given hereby:
(b) Common ancestry with the
Definition given by Jose R. Martinez original occupants of these lands;
Cobo
(c) Culture in general, or in specific
It is one of the most cited descriptions manifestations (such as religion,
of the concept of the indigenous which living under a tribal system,
is given by Jose R. Martinez Cobo in membership of an indigenous
his famous Study on the Problem of community, dress, means of
Discrimination against Indigenous livelihood, lifestyle, etc.);
Populations.5 His working definition
(d) Language (whether used as the
is as follows6:
only language, as mother-
Indigenous communities, peoples and tongue, as the habitual means of
nations are those which, having a communication at home or in the
historical continuity with pre- family, or as the main, preferred,
invasion and pre-colonial societies habitual, general or normal
that developed on their territories, language);
consider themselves distinct from
(e) Residence on certain parts of the
other sectors of the societies now
country, or in certain regions of
prevailing on those territories, or parts
the world;
of them. They form at present non-
dominant sectors of society and are (f) Other relevant factors.
determined to preserve, develop and

2 John Mugabe, Intellectual Property Protection and Traditional Knowledge: An Exploration

in International Policy Discourse, available at [Link]/tk/en/hr/paneldiscussion/
papers/pdf/[Link] (12th April, 2011).
3 Suman Sahai, Importance of Indigenous Knowledge in IPR System, 31(43) Economic and
Political Weekly 3043, 3043 (1996).
4 Francesco Mauro & Preston D. Hardison, Traditional Knowledge of Indigenous and Local
Communities: International Debate and Policy Initiatives, 10(5) Ecological Applications
1263, 1265 (1996). (hereinafter referred as Mauro & Hardison)
5 UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4. The conclusions and recommendations of
the study, in Addendum 4, are also available as a United Nations sales publication (U.N.
Sales No. [Link].3). The study was launched in 1972 and was completed in 1986, thus
making it the most voluminous study of its kind, based on 37 monographs.
6 Id., p. 389-392.
7 E/CN.4/Sub.2/1986/7/Add.4 paras 379-381. See also Ian Brownlie, Treaties and
Indigenous Peoples 59 (Oxford, 1992).
8 Ibid.

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2012] Protection to Indigenous Knowledge: A Study of Flawed Scenario F-101
at National and International Level

On an individual basis, an (b) peoples in independent countries

indigenous person is one who belongs who are regarded as indigenous on
to these indigenous populations account of their descent from the
through self-identification as populations which inhabited the
indigenous (group consciousness) country, or a geographical region to
and is recognised and accepted by which the country.11
these populations as one of its This definition does not essay the
members (acceptance by the group).8 universal phenomenon of being
International Labor Organisation’s indigenous. The definition is
definition criticised for giving priority to
International Labor Organisation America, New Zealand, Australia, etc.
(hereinafter referred as ILO) started its over solving the confusion of
activity on indigenous peoples with indigenousness in Asia and Africa.
the coordination of the Andean Definition by working groups on
Indian Programme in the 1950s.9 ILO indigenous people
attempted to define this term in its At its 15th Session, the Working Group
Convention No. 107 of 1957. It defines concluded that a definition of
the term as follows: indigenous peoples at the global level
...regarded as indigenous on account was not possible at that time, and
of their descent from the populations certainly not necessary for the
which inhabited the country, or a adoption of the Draft Declaration on
geographical region to which the the Rights of Indigenous Peoples.12
country belongs, at the time of However, the Article 8 of the Draft
conquest or colonisation... Declaration gives following
ILO came up with totally a new definition13:
definition in Convention No. 169 of Indigenous peoples have a collective
1989. The definition has just added and individual right to maintain and
certain new points in the previous develop their distinct identities and
definition. The ILO’s definition is characteristics, including the right to
inclusive in nature and it does not identify themselves as indigenous and
define the term “Indigenous People”.10 to be recognised as such.14
The definition given in Article 1 of this
Convention is as follows:-

9 The ILO published a book, Indigenous Peoples: Living and Working Conditions of Aboriginal
Populations in Independent Countries, Geneva, 1953, which commented on the definitional
problems. Noting different levels of “integration, absorption and assimilation” it commented
at page 5 that it was “increasingly difficult to find a reliable and generally applicable test
to distinguish between the aborigines and the rest of the population”. This was written in
the context of work which promoted assimilation.
10 The Concept Of Indigenous Peoples, Workshop on Data Collection and Disaggregation for
Indigenous Peoples (New York, 19th-21st January, 2004).
11 Convention Concerning Indigenous and Tribal Peoples, 4 Canadian Native Law Reporter
49(1989): 15 Oklahoma City University Law Review, 237 (1990).
12 UN Doc. E/CN.4/Sub.2/1997/14, para.129. See also UN Doc. E/CN.4/Sub.2/1996/21,
¶ 153-154.
13 Id., p. 389-392.
14 The Draft Declaration is contained in UN Doc. E/CN.4/Sub.2/1994/2/Add.1 and is
currently under consideration by a Working Group of the Commission on Human Rights.

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Framing an acceptable definition of

indigenous people
The concept of indigenous people is The term "indigenous tribe"
relevant from several aspects. The has not been defined in any
concept of indigenous people comes
into limelight whenever there is a Indian statute
discussion regarding genocide,
ethnocide, environmental protection,
biodiversity, intellectual property, etc. Indian Perspective
The multiplicities of aspect of The term “indigenous tribe” has not
indigenous people also results in the been defined in any Indian statute. So,
complexity of this definition. Hence, the does it mean that there is no
definition of indigenous people has indigenous tribe in India? Legally
become a circumstantial substance. speaking the concept of indigenous
Sometimes there is a clear history of tribe does not exist in India. However,
colonisation, conquest, genocide, and the answer may be different if we see
ethnocide to trace Indigenous people, the social context of India.
as happened in the Americas, New Considering the same, the largest
Zealand, and Australia. 15 However, constitution of the world i.e. Indian
sometimes it is not feasible to recognise Constitution has provided under
them as in Africa, Asia, and Europe. Article 342 regarding the inclusion of
The histories often involve conquest or the Scheduled Tribes. However, it left
marginalisation from within by other the door without laying down any
indigenous societies. The India is also criteria under this provision.
belongs to one of the similar country
Now, the question arises whether
where to trace the indigenous tribe is
Scheduled Tribes is Indigenous Tribe of
next to impossible.
India. As discussed earlier, the
The current definition of indigenous indigenous people are repositories of the
peoples most accepted in the distinct cultural traits, customs and
international framework includes parts ethnicity. As discussed above, there are
or all of the following elements: self- several definitions for “indigenous
identification as indigenous; descent people,” but it essentially refers to people
from the occupants of a territory prior existing under relatively
to an act of conquest; possession of a disadvantageous conditions.17 As such,
common history, language, and culture there is no criterion laid down for their
regulated by customary laws that are inclusion of tribes under Scheduled
distinct from national cultures; Tribe. Hence, it cannot be straight way
possession of a common land; exclusion concluded that scheduled tribe is Indian
or marginalisation from political format of Indigenous Tribe. However,
decision-making; and claims for while seeing the list of scheduled tribe, it
collective and sovereign rights that are can be easily found that most of them are
unrecognised by the dominating and adivasi. The term “adi” refers to old and
governing group(s) of the state.16 Among “vasi” refers to resident and hence, the
all these elements, the Self- term refers to person living in forest as
identification is the central frame of the people used to live in ancient time.
attraction.

15 Supra note 4, p. 1264.

16 Ibid.
17 James Anaya, Indigenous Peoples in International Law 3 (Oxford University Press 1996). Also
see Srividhya Ragavan, Protection of Traditional Knowledge, 2 Minn. Intell. Prop. Rev. 1 (2001).

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2012] Protection to Indigenous Knowledge: A Study of Flawed Scenario F-103
at National and International Level

This discretionary clause of the grand related to broader cultural values and
norm is these days referred as an illusion beliefs of indigenous and other
being used for vote bank. However, the traditional peoples.21
basic intent of the grand norm drafters is 1.2.2 Municipal Statutory Definitions
same and visible through the Constituent
Assembly debates.18 It is disheartening South Africa - An attempt to define IK is
to say that the intent of constituent there in Section XV under the Protection
assembly is not properly served and even and Promotion of South African
misused for vote bank politics. Indigenous Knowledge’s Draft Bill
which defines it as follows:
Moreover, the list includes the name of
“Indigenous Knowledge” refers to
tribes which was in relatively
social capital in the form living skills
disadvantageous position but presently
and means productions consisting of
enjoys a royal treatment by continuous
characteristic elements of the
benefits of this provision. The previous
traditional artistic heritage developed
statement can be further substantiated
and maintained by a community of
by the example of Meena Tribe in
South Africa or individuals reflecting
Rajasthan. 19
the traditional artistic expectations of
1.2 Meaning of Indigenous Knowledge such a community, in particular.22
There is no one definition of this term IK. Rules and Regulations Implementing
The term is tried to be defined at several Republic Act No. 8371 - The Indigenous
times. The brief record of such attempts Peoples’ Rights Act of 1997 (Philippines).
is enlisted as follows. As per this statute, IK is defined as
1.2.1 International Instrument’s follows:
Definition “Indigenous Knowledge Systems and
World Bank - The World Bank has put Practices” refer to systems,
up following views on the IK as20: institutions, mechanisms and
technologies comprising an unique
Indigenous Knowledge - Knowledge
body of knowledge evolved through
possessed by indigenous and other
time that embody patterns of
local peoples which is transmitted
relationships between and among
orally and often shows a sophisticated
peoples and between peoples, their
understanding of natural and other
lands and resource environment,
processes, typical examples are
including such spheres of
traditional medicinal plant,
relationships which may include
agricultural, ethno-veterinary, and
social, political, cultural, economic,
other forms of knowledge. May also
religious spheres and which are the
include such knowledge as usually
direct outcome of the indigenous

18 8 Constituent Assembly Debates 3826 (Parliamentary Secretariat Press, 1999).

19 Meena Community is given the status of Scheduled tribes in Rajasthan. However, other states
believe them to be wealthy enough to maintain themselves. For further details see SCs, STs
protest against reservation policy in Rajasthan, available at [Link]
03/28/[Link] (20th April, 2011).
20 What is IK? Retrieved from [Link] (12th April, 2011)
21 Corporate Responsibility, retrieved from [Link]/essd/[Link]
(12 th April, 2011).
22 Referred in Traditional WIPO, Knowledge – Operational Terms and Definitions, WIPO/
GRTKF/IC/3/9, third session, (13th to 21 st June, 2002).

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peoples responses to certain needs and a system of self-management that

consisting of adaptive mechanisms governs resource use.26
which have allowed indigenous 1.2.4 Framing an acceptable definition
peoples to survive and thrive within
their given socio-cultural and These are some of the definitions of IK
biophysical conditions.23 put forwarded by several jurists, statutes
and international organisation. All the
1.2.3 Indigenous Knowledge according definitions might use different
to different Jurist’s terminology but they have same intent.
According to Tirfe Mammo, “Indigenous While going through all the definitions,
knowledge means a stock of local it is concluded in the simplest possible
knowledge prevailing in a certain area terms that it is a knowledge owned,
and derived from that specific milieu”.24 developed or evolved by any specific
Nuffic Ciran25 has defined Indigenous indigenous tribe. The other question is
People as “The term “Indigenous whether IK is static. In response to it, A.
Knowledge (IK)” is used synonymously Gupta states as follows:
with “traditional” and “local” Local and IK systems are not static.
knowledge to differentiate the knowledge They evolve, adapt and transform
developed by a given community from dynamically with time. New
knowledge systems generated through
materials are incorporated, new
universities, government research centers
processes are developed and
and private industry. Moreover, he
sometimes new uses or purposes are
believes that IK is not static as the word
evolved for existing knowledge
traditional implies.
besides the acquisition of knowledge...
Dutfield defined it as “Traditional the contemporary knowledge could
ecological knowledge” (sometimes build upon TK but may also be
referred to as “traditional environmental developed autonomously.27
knowledge” or “Indigenous
Knowledge”) is defined by Johnson as a 1.3 Distinction between Traditional
“body of knowledge built by a group of Knowledge and Indigenous Knowledge
people through generations living in It is also evident from the above
close contact with nature. It includes a definitions that most of time scholars use
system of classification, a set of empirical the term TK and IK synonymously. This
observations about the local environment raises a serious doubt in the mind of a

23 The President of the National Commission of Indigenous Peoples of Philippines presented

a report to WIPO on 1st–2nd November, 1999 which stated:(…) “In the Philippines,
traditional knowledge touches on almost all facets of the economic and social development
of a community from agriculture to literature and from customary law to arts and crafts
and so on (…).”
24 Tirfe Mammo, The Paradox of Africa’s Poverty, The role of indigenous knowledge, traditional
practices and local institutions – The case of Ethiopia 15 (The Red Sea Press, Asmara,
Eritrea, 1999).
25 Indigenous Knowledge and Development Monitor, IK-pages and Ciran, available at http:/
/[Link]/ik-pages/[Link] (April 12, 2011).
26 Graham Dutfield, Protecting and Revitalising Traditional Ecological Knowledge: Intellectual
Property Rights and Community Knowledge Databases in India in 6 P ERSPECTIVES ON
INTELLECTUAL PROPERTY 104 (Michael Blakeney ed., 1999).
27 A. Gupta, Rewarding Traditional Knowledge and Contemporary Grassroots Creativity:
The Role of Intellectual Property Protection 10, available at [Link]
(12th September, 2011)

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at National and International Level

normal person. Whichever sense of [Source: John Mugabe, Intellectual Property

“Indigenous Knowledge” is used, Protection and Traditional Knowledge: An
however, the general usage seems to Exploration in International Policy Discourse,
suggest that all IK is TK, although it is WIPO.31]
likely that some TK may not have the 2.1 Threat to indigenous knowledge,
specific characteristic of being culture and society
“indigenous.”28 Indigenous knowledge
is knowledge that is held and used by a There are two fold threats to the IK,
people who identify themselves as culture and society. The first one is by
indigenous of a place based on a the extinguishment of the tribe or
“combination of cultural distinctiveness knowledge. The second one is from
and prior territorial occupancy relative unauthourised use of their knowledge.
to a more recently arrived population The threat which is important from the
with its own distinct and subsequently perspective of Intellectual Property Right
dominant culture.” 29 Traditional is latter one. Greave being a western
knowledge is, on the other hand, that countryman still accepted threat to IK
which is held by members of a distinct from the western society stating that32:
culture and/or sometimes acquired “by Indigenous cultural knowledge has
means of inquiry peculiar to that culture, always been an open treasure box for
and concerning the culture itself or the the unfettered appropriation of items
local environment in which it exists.”30 of value to Western civilisation. While
It is concluded that there is a subset we assiduously protect rights to
relationship between these two concepts valuable knowledge among ourselves,
wherein IK is subset of TK. indigenous people have never been
accorded similar rights over their
cultural knowledge. Existing Western
intellectual property laws support,
promote, and excuse the wholesale,
uninvited appropriation of whatever
indigenous item strikes our fancy or
promises profit, with no obligation or
expectation to allow the originators
of the knowledge a say or a share in
the proceeds.
These lines showcase the reality that the
westernized countries are giving
incentives to scientists for their research
works. However, the product of research
work is sometimes a plagiarised version
of IK of other country or a research laid
down on the foundation of knowledge
of indigenous tribes. This has been
Sketch of the problem already witnessed in the recent past.

28 Supra note 3.
29 UNEP/CBD/COP/3/Inf. 33, Annex 2.
30 Ibid.
31 [Link]/tk/en/hr/paneldiscussion/papers/pdf/[Link] (12th April, 2011)
32 Greaves, Tribal Rights in VALUING LOCAL KNOWLEDGE: INDIGENOUS PEOPLES AND INTELLECTUAL PROPERTY
RIGHTS (Brush and Stabinsky eds., Island Press, Covelo, 1996).

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3. International Perspective
Passing off of IK and Intellectual Property regime has very
solid global functioning through the
highlighting it as own instrument of TRIPS and WIPO. In the
invention has become trend same manner, the IK is also an issue of
global concern. Due to continuing cases
in this globalised world of biopiracy, 34 United Nations
Convention on Biological Diversity
(hereinafter referred as CBD) affirmed the
rights of indigenous tribes over
2.2 Instances of unauthorised use of
biological sources. However, the TRIPS
Indigenous Knowledge
is silent on the whole issue and hence,
Passing off of IK and highlighting it as leading to chaos. The instant chapter
own invention has become trend in this discusses this chaos and demands of the
globalised world. It is indeed a pitiful countries to revise TRIPS.
situation that this has been exploited for
3.1 Convention on biological diversity:
wrong reason and is being put forward
a trend setter
as a scientific innovation. The biggest
example for that is the Ayahuasca Patent. The CBD reaffirmed the rights of the
Sovereign states over their biological
The plant Banisteriopsis caapi was used by
resources. The matter under
the indigenous people since a long time
consideration gets its due place under
and was also used to make the ceremonial
preamble of this convention which states
drink of Ayahuasca. The patent was
“close and traditional dependence of
granted on the basis that “Da Vine”, a
indigenous and local communities…on
dubbed version of ayahuasca, represents a
biological resources and the desirability
new and unique variety of [Link], which
of sharing in the benefits derived from
was distinct from ayahuasca because of the
the use of TK, innovations and practices.”
colour of its flower petals. This was an
The most important provision which can
unauthorised use of the IK and hence
be referred as trend setter is Article 8(j). It
many tribal people revolted against this
reads as follows:
patent. As a result, the patent got rejected
at a later state. Each Party shall…Subject to its national
legislation,…respect, preserve and
Another example is that of the Hoodia maintain knowledge, innovations and
cactus which was used by the indigenous practices of indigenous and local
tribe Sans at the time of hunting. This communities embodying traditional
plant prevents a person from feeling lifestyles relevant for the conservation
hungry. South Africa’s Council for and sustainable use of biological
Scientific and Industrial Research, a diversity and promote their wider
government-funded body and a application with the approval and
pharmaceutical company Phytopharm, involvement of the holders of such
which in turn sold the licensing rights to knowledge, innovations and practices
the pharmaceutical company, Pfizer, for and encourage the equitable sharing
$21 million.33 This led to a legal battle as of the benefits arising from the
the Sans starts their revolt against the utilisation of such knowledge,
patent as it would amount to foul play. innovations and practices.

33 Ibid.
34 Biopiracy is the theft or usurpation of genetic materials especially plants and other biological
materials by the patent process.

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The basic intend behind this provision communities. Till September 1999,
seems to use IK with prior informed indigenous peoples have been almost
consent. In this whole discussion, the two entirely absent in the development of
important concepts to be discussed are national clearinghouse mechanisms,
firstly, prior informed consent and excepting Canada and the Secretariat to
secondly, equitable benefit sharing. The the CBD.38 Hence, it looks hard to attain
first concept presupposes active the object through CBD. Moreover, it
authorisation prior to the use or even would be better if the international
custody of the resources/knowledge.35 intellectual property will come up with
However, the concept itself leads to the solution.
question that who will give consent in 3.2 TRIPS: An indirect or meaningless
certain cases. Moreover, the meaning of Reference
the term is also not clear. The second
concept refers to payment of remuneration On 15th April, 1994, 124 states signed the
for any use of TK to the holders of the Final Act embodying the results of the
knowledge. The actual nature and Uruguay Round of Multilateral Trade
character of this remuneration must also Negotiations under the GATT. The Final
be carefully defined, should it be included Act incorporates, inter alia, an agreement
as a substantive requirement for the establishing WTO and an Agreement on
granting of IPR.36 Trade Related Aspects of Intellectual
Property Rights, Including Trade in
The initial part recognises that the article Counterfeit Goods (hereinafter, referred
will have to be implemented in national as TRIPs Agreement). The TRIPs
legislation, and encourages countries Agreement used to contain
without compatible legislation to develop Article 27(3)(b) which defines which
it.37 The countries like USA has signed it inventions governments are obliged to
but not ratified till date. Hence, the make eligible for patenting, and what they
implementation by the countries is a big can exclude from patenting. Inventions
problem. that can be patented under Article 27
As a whole, Article 8(j) could be include both product and process,
considered as drastic change in the generated using any field of technology.
concept of IK. Central Business District The provisions of TRIPS were silent on
(CBD) shifted the whole paradigm by the issue of TK and hence, it is right to
providing the concept of prior informed mention it as toothless tiger with respect
consent and equitable benefit consent. to the subject matter under consideration.

The treaty’s governing bodies, i.e. 3.2.1 Discussions at Doha Round

Conference of the Parties (hereinafter, The Doha round has finally taken note
referred as COP) and the secretariat, have of the needs of review of TRIPS with
been active in the development of a TK regard to TK. As expected by various
sui generis system of protection. The jurists, the matter was given for review
Seventh COP developed the Akwé: Kon to TRIPS council which is not
Guidelines for ensuring the participation appreciable move. Doha Declaration
and involvement of indigenous peoples made it clear that work in the TRIPS
in development processes which may Council under the reviews (Article 27.3(b)
have a cultural, environmental or social or the whole of the TRIPS Agreement
impact on indigenous and local under Article 71.1) and on outstanding

35 Karl Mutter, Traditional knowledge related to genetic resources and its intellectual property
protection in Colombia, 27 (9) E.I.P.R. 327, 327 (2005).
36 Id, 328.
37 Supra note 4, at 1265.
38 Ibid.

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implementation issues should cover the which requires that all WTO members,
relationship between the TRIPS at the very least, provide “effective sui
Agreement and CBD; the protection of generis” intellectual property protection
TK and folklore; and other relevant new for plant varieties-stating that national
developments that member governments plant variety protection laws could
raise in the review of the TRIPS include provisions for the protection of
Agreement.39 TRIPS Council’s work on TK. 45 There was a huge demand to
these topics is to be guided by the TRIPS include the following:
40
Agreement’s objectives and (1) the source of origin;
41
principles, and must take development (2) evidence of prior informed
issues fully into account. 42 It will be consent and
interesting to see the new structure of
(3) evidence of equitable benefit-
Article 27.3(b) if it comes soon.
sharing.
Also, the African Group submitted a
Post Doha Declaration works proposal for TK to be considered an
were mainly focused on the independent IP category to which owner
communities have exclusive perpetual
procedural aspect and future rights. However, some of the members
organisation including those of the European
Community did not consider an
Post Doha Declaration works were amendment necessary, given that the
mainly focused on the procedural aspect agreement allows enough “flexibility to
and future organisation. 43 While modulate patent protection as a function
implementation lots of countries, of their … ethical standards”.46 Some of
specifically developing countries the proposals are as follows:
proposed to the WTO General Council Disclosure as a TRIPS obligation
that protections for TK should be A group of developing countries
included in the millennium round of represented by Brazil and India
trade negotiations under the aegis of the wants to amend the TRIPS Agreement
WTO. 44 Kenya, in particular, has so that it will be obligation of patent
proposed that a footnote should be added applicant to:
to Article 27(3)(b) of TRIPs-a provision

39 TRIPS Reviews, Article 27.3(b) and related issues: Background and the current situation,
retrieved from [Link]
[Link] (17th April, 2011).
40 Article 7 of the TRIPS Agreement.
41 Article 8 of the TRIPS Agreement.
42 Supra note 37
43 Denial J. Grevias, The TRIPS Agreement: History and Impact on Economic Development in
4 Intellectual Property and Information Wealth: International intellectual property law and
policy 46 (Peter K. Yu ed., 2007).
44 Micheal Halewood, Indigenous Knowledge and Local Knowledge in International Law, 44
MCgill L.J. 953, 988 (1999).
45 Ibid.
46 Supra note 33.

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(i) disclose the country of origin of

genetic resources and TK used It is a forgotten fact that
in the inventions,
Intellectual property and
(ii) evidence that they received
“prior informed consent” (a term Human Rights are treated as
used in the Biological Diversity two isolated field
Convention) and
(iii) evidence of “fair and equitable”
benefit sharing.47 As also earlier 3.3 Indigenous Knowledge as Intellectual
discussed above, the demand Property in light of International Human
includes all those three points. Right Treaties
Disclosure through WIPO It is a forgotten fact that Intellectual
Switzerland, on other hand, wants property and Human Rights are treated
municipal law to be part of change. It as two isolated field. 49 However, ever
has proposed to amend the since the time of Universal Declaration
regulations of WIPO’s Patent of Human Rights, they are co-existing.
Cooperation Treaty so that domestic In this whole chain, the rights of
laws may ask inventors to disclose the indigenous people has played very
source of genetic resources and TK important role. It is broadly accepted fact
when they apply for patents. 48 The that the indigenous tribes put a claim for
failure to meet the requirement could recognisation and protection of their
hold up a patent being granted or cultural rights which sometimes include
when done with fraudulent intent, IK. Adding insult to the injury, the
could entail a granted patent being financial and technological benefits are
invalidated. also denied to these communities.50 Both
Disclosure, but outside patent law injury and insult makes a permanent scar
when TRIPS facilitate them by making a
We had also discussed EU’s proposal
place for such exploitation.
to examine a requirement that all
patent applicants disclose the source This scar also creates a black spot on
or origin of genetic material, with legal the name of human rights. The first
consequences of not meeting this effort to vanish the black spot was taken
requirement lying outside the scope by United Nations in 1993. 51 United
of patent law. However, EU members Nation Human Right bodies tried to
do not want to make it an obligation close the hole in fabric of Intellectual
under TRIPS or WIPO. This also can Property Law by commissioning a
be inferred as their mala fide intend to working group and a special rapporteur
use these works. to create draft declaration on rights of
indigenous people 52 and Principle and

47 Supra note 21.

48 Ibid.
49 LR Helfer, Human Right and Intellectual Property: A co-existence or conflict?, 51 Minn.
Intell. Prop. Rev. 42, 48 (2003).
50 Id. at 49.
51 See Draft Declaration on Right of Indigenous People was formulated by Working group on
Indigenous Person in 1993.
52 Discrimination against Indigenous Peoples: Technical Review of United Nations Draft
Declaration on Rights of Indigenous Peoples, UN ESCOR Commission on Human Rights,
Sub-Committee on Prevention of Discrimination and Protection of Minorities, 46th Sess.,
Agenda Item 15, UN Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994).

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Guideline for protection of heritage of (iv) Arctic Environmental Protection

indigenous people.53 Strategy
The most notable is Principle and (v) Kari-Oka Declaration
Guideline for protection of heritage of (vi) Mataatua Declaration on
indigenous people. Article 23 of the Cultural and Intellectual
revised text of the draft Principle and Property Rights of Indigenous
Guideline for protection of heritage of Peoples.
indigenous people creates a dubious (vii) Principles for Negotiating
situation regarding the IK in IPR regime. Research Relation-ships in the
The said provision urges state to protect North of the Inuit Tapirisa.
IK from unauthorised use.54 However, the The international community has to
document itself portrays existing
understand that neither soft
Intellectual problem regime as an
international law nor unfurnished
obstacle by giving a broader ambit to the
International Intellectual Property
“protectable interest” than existing
regime can stop the exploitation of the
Intellectual Property regime.55 It denies
rights of Indigenous Communities.
providing any person or corporation the
Hence, there is an immediate need to
right to obtain patent, copyright or other
legal protection for “any element of amend TRIPS to stop these exploitations
indigenous peoples’ heritage”. This in the near future.
interpretation is broader than instant 4. National Perspective
intellectual property regime.56 The protection for Indigenous tribes is
3.4 Other Soft International Law not specifically provided in India.
The term soft law refers to the law which However, Indian statutes do cover it as
does not have any binding obligations on TK. It is disheartening to see these
the state parties. All international legal provisions of the country which is
documents discussed above except CBD arguing before WTO for TK to be included
and TRIPS are soft international law. It is within Article 27.
disheartening to note that these documents 4.1 Patent Act
do not make any legal difference at To prevent patenting of TK in India, it is
international and national laws. Some of expressly stated in Section 3 of the Act
such documents are listed below: that TK is not an invention.57 The TK is
(i) The Rio Declaration non-patentable in Patent Act. As
(ii) Agenda 21 discussed earlier, the term TK
(iii) International Treaty on Plant encompasses IK.
Genetic Resources for Food and As noted earlier from CBD and India’s
Agriculture. demand before WTO, there are two

53 Discrimination against Indigenous Peoples: Technical Review of United Nations Draft

Declaration on Rights of Indigenous Peoples, UN ESCOR Commission on Human Rights,
Sub-Committee on Prevention of Discrimination and Protection of Minorities, 47th Sess.,
Agenda Item 15, UN Doc. E/CN.4/Sub.2/1995/26 (1995). Human Rights of Indigenous
Peoples: Report of the Seminar on the Draft Principles and guidelines for the protection of
the heritage of Indigenous People, UN ESCOR Sub-Commission on the Promotion and
Protection of Human Rights, 52nd Session, Agenda Item 7, UN Doc. E/CN.4/Sub.2/
2000/26 (2000). (hereinafter referred as Revised Draft Guidelines)
54 Revised Draft Guidelines people, Art. 23(b).
55 Revised Draft Guidelines, Art. 23(c).
56 Supra note 4, at 1267.
57 Section 3(p) of the Patents Act, 1970 reads: “…an invention which, in effect, is traditional
knowledge or which is an aggregation or duplication of known properties of traditionally
known component or components”.

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important concepts, i.e. disclosure of The Protection of Plant Varieties and

source of TK and prior informed consent Farmers’ Rights Act (PPVFR Act) also
of Indigenous Tribes. Indian Patents Act takes care of rights of farmers while
requires the disclosure the source of the keeping an eye on the breeder’s rights.
source and geographical origin of the The word farmer’s Rights here include
biological material in the specification.58 his traditional right to save, use, sow,
This provision shall be extended to every resow, exchange, share or sell his farm
kind of TK. It is a wonder that Indian produce.60 Section 39 of the PPVFR Act
Patent Act does not comply with India’s makes place for farmer’s right regarding
own demand. to his crop. In addition to it, Section 40
specifically comes ahead for the tribal
families and makes non-disclosure of use
In India, the patent act of genetic material as a ground of rejection
excludes plants and seeds of application. Section 41 further
broadens the ambit by giving rights of
from the subject of patent communities over the evolution of any
variety. The Provision enables any
person, group of persons (irrespective of
4.1.1 The Protection of Plant varieties
whether actively engaged in farming),
and Farmer’s Rights Act, 2001
governmental organisations or non-
In India, the patent act excludes plants governmental organisations (hereinafter,
and seeds from the subject of patent. referred as NGOs) with the previous
Hence, there was a need of giving certain approval of centre may file claim for the
rights with regard to it. The desire to give evolution of variety on behalf of the
right was fulfilled by legislating this village or such local community. After
statute. The Protection of Plant varieties this the centre will enter into the matter
and Farmer’s Rights Act, 2001 and submit a report to the authority. The
(hereinafter referred as PPVFR Act). The authority after being satisfied of report
PPVFR Act primarily deals with may ask the breeder to pay a sum as
protection and plant breeders’ rights over compensation.
new varieties developed and entitlement
N.S. Gopalakrishnan believes that
of the farmers to register new varieties
Sections 26 and 41 have an overlapping
and also to save, breed, use, exchange,
provision resulting into an economical
share or sell the plant varieties which
burden on breeder and states61:
the latter have developed, improved and
maintained over several generations. The It is clear that there is overlap between
statute is an attempt to protect both new benefit-sharing and compensation to
varieties on the basis of individual the community, and there is no
private ownership and TK based on provision to avoid this. The breeder is
collective ownership. 59 The statute is also made to pay more than once for
relevant to the instant subject matter using the TK. The attempt to protect
because of its benefit sharing provision, both new varieties on the basis of
Farmer’s right over Farmer’s variety etc. individual private ownership and TK
The Statue talks about benefit sharing based on collective ownership
and lays down the criteria for it under together in one law, and the lack of
Sections 26 and 27 clarity on the issues, created this mess.

58 The Patents Act, 1970, §10(4)

59 The Patents Act, 1970, Statement of object and reasons.
60 V.K. Ahuja, Law Relating to Intellectual Property Rights (2010) p. 516.
61 N.S. Gopalakrishnan, Protection of Traditional Knowledge: The Need for a Sui Generis Law
in India, Journal of World Intellectual Property 740 (2002) p. 737.

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Given the social and educational innovations and practices associated

conditions of the local and indigenous with their use and applications and
communities in India, it can safely be knowledge.65 However, the act has not
concluded that the provisions to defined the relationship between NBA,
protect the TK of the farming State Biodiversity Boards (hereinafter,
community are not going to work to referred ass SBBs) and Biodiversity
the advantage of these communities. Management Committees (hereinafter,
Hence, there is a need to take a note of referred as BMCs). The approval of the
this issue and fortify the legal framework. NBA has been made compulsory to
protect the interest of the benefit claimers.
4.1.2 The Biodiversity Act, 2002 However, a discretionary power has been
The Biodiversity Act was on hold from given to NBA within this statue. This can
very long and finally passed by the also bring local community to weaker side
Parliament in February, 2003. The Act is sometime. Moreover, it is not explained
an effort to fulfill India’s obligation as within the statute that how NBA will
state party to CBD.62 The Biodiversity Act effectively monitor intellectual property
tries to get equitable sharing of benefits applications outside India. 66 The
arising out of the use of accessed relationships between the NBA and the
biological resources, their by-products, SBBs and BMCs, as well as between
innovations and practices associated discretionary NBA decisions and benefit-
with their use and applications and sharing agreements between knowledge
knowledge relating thereto in accordance holders and applicants, remain
with mutually agreed terms and unexplained.
conditions between the person applying The agro-plants will lie in both PPFV Act
for such approval, local bodies concerned and BDA. In that case, both the statutes
and the benefit claimers.63 The Act defines has overlapping provisions and hence
“benefit claimers” as the conservers of will lead to more problems. Lastly, in
biological resources, their byproducts, view of the lenience with which local
creators and holders of knowledge and individuals and corporations are treated,
information relating to the use of such one commentator concluded that the
biological resources, innovations and relevant BDA provisions “even seem to
practices associated with such use and encourage commercial exploitation of
application.64 Hence, it specifically does resources rather than giving impetus to
not talk about the TK or IK resulting into the conservation of biodiversity or to
failure to implement Article 8(j) of CBD. benefit-sharing with the local
The Act talks about the establishment of communities.” 67 Leaving apart the
National Biodiversity Authority positives and negatives of the statutes, it
(hereinafter, referred as NBA) from which can be stated that both statutes are good
the consent is necessary for a transfer of to establish an alternative of sui generis
biological resources, their by-products, system in India.

62 The Biodiversity Act, 2002.

63 Id. § 20(1).
64 Id. § 2(1).
65 Id. § 8.
66 P. Cullet, Property Rights over Biological Resources: India’s Proposed Legislative Framework,
8(3) JOURNAL OF W ORLD INTELLECTUAL PROPERTY 225 (2001); R. Sagar, Intellectual Property,
Benefit-Sharing and Traditional Knowledge: How Effective is the Indian Biological Diversity
Act, 2002? 8(3) JOURNAL OF W ORLD INTELLECTUAL PROPERTY 387-388 (2005); N.S. Gopalakrishnan,
Protection of Traditional Knowledge: The Need for a Sui Generis Law in India, Journal of
World Intellectual Property 740 (2002).
67 Ibid.

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4.2 Kani Tribe Jeevani Instance: A Traditional Knowledge Digitl Library

perfect instance of unauthorised use of (hereinafter, referred as TKDL) is also a
an India Indigenous Knowledge defensive protection.
This is best example within India to show 5.1.2 Aggressive Protection
compliance with CBD and rights of An aggressive gives an exclusive right to
indigenous tribe. The Tropical Botanic the knowledge holder as given in the
Garden and Research Institute (hereinafter cases of copyright, patents etc. Indigenous
referred as TBGRI) in consultation with the tribes and TK holder often complains that
Kani tribe has worked out an arrangement the defensive measures did not have large
for benefit sharing relating to the anti- impact. They believe in aggressive
fatigue properties of the wild plant protection. Such protection can be created
Trichopus zeylanicus. As per the agreement, by a legislation specifically focusing on
TBGRI is ready to share 50 per cent of the this issue. The other possible aggressive
licence fee and royalty with tribe. Such protections other than statute conferring
move and practices is appreciable from the exclusive rights are recognition of
point of indigenous and shall be customary laws in national legislation,
encouraged in future.68 tort of misappropriation and sui generis
5. Prevalent Methods for Protection of TK database where putting TK into the
the Indigenous Knowledge database actually constitutes establishing
The word protection refers to save the a legal claim over the TK.
unauthorised use of the IK. It also 5.2 Methods for Protecting Indigenous
includes the practice of biopiracy. Knowledge
5.1 Kinds of Protection 5.2.1 Documentation of traditional or
The protection of intellectual property indigenous knowledge
can be categorised into defensive The documentation of TK holds both
protection and aggressive protection.69 sided arguments. The admirers of this
5.1.1 Defensive Protection believe that proper documentation will
help in checking the biopiracy of IK as it
In defensive protection, there is a check will trace knowledge to indigenous tribe
on the side of infringer rather than or knowledge holder. Moreover, the
providing right to knowledge holder. It people will not be able to get it protected
goes with the spirit of the term “defence”. on their name as it will be already
It is defensive protection which is applied available in public domain. At other
with respect to this arena. The provision hand, people criticise it by stating that it
for Prior informed consent and equitable will itself lead to biopiracy as it will make
sharing of benefit enlisted under Article knowledge easily available for the
8(j) of the CBD are the example of defensive biopiracy.
protection. As discussed earlier, the
developing countries even wanted to In India, the preparation of village-
introduce such protection measure with specific Community Biodiversity
regard to IK in the TRIPS Agreement. Registers for documenting all knowledge,

68 Also see, Sachin Chaturvedi, Kani Case A Report for Gen Benefit.(2007) http://
[Link]/schools/school_of_health/research_projects/files/
health_genbeneift_kani_case.pdf (23rd October, 2011)
69 Sophia Twarog, Preserving, Protecting and Promoting Traditional Knowledge: National
Actions and International Dimensions, in Protecting And Promoting Traditional Knowledge:
Systems, National Experiences And International Dimensions 64 (Sophia Tarog & Promila
Kapoor ed., United Conference on Trade and Development, UN, New York & Geneva, 2004).

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innovations and practices has been classical Intellectual Property Right

undertaken in a few states.70 An example System. The sui generis system is relevant
of documentation is work of from the perspective of the developing
documentation being carried out in countries as the plant varieties are most
Karnataka by Peoples’ Biodiversity essential part of their growth and hence
Registers.71 In addition, there is the work special protection is needed for it.
being done by Centre for Ecological Moreover, the flexibility in the sui generis
Sciences, Indian Institute of Science, and system makes it an attractive offer for the
the Foundation for the Revitalisation of developing countries.
Local Health Traditions (FRLHT), The option of sui generis system is given
Bangalore to prepare Community under Article 27(3)(b) of the TRIPs
Biodiversity Registers.72 Agreement for the plant varieties.
5.2.2 Traditional Knowledge Digital Article 27(3)(b) of the TRIPs lays down
Library the option of patent or sui generis or both
As discussed earlier, India is suffering for the protection of plant varieties. Some
from several instances of bio piracy and experts have suggested that a sui generis
unauthorised use of Traditional or IK. system separate from the existing IPR
Considering these problems, a step has system should be designed to protect
been initiated in India to prepare an easily knowledge, innovations, and practices
navigable database of documented TK associated with biological resources.74
relating to the use of medicinal and other However, the parameters, elements and
plants that is already in the public modalities of a sui generis system are still
domain.73 This database is given name being worked out. Moreover it restricts
of TK Digital Library (hereinafter, referred itself to the plant varieties and hence
as TKDL). It will enable everyone in this cannot be treated as a protection for all
world to search about the prior act or kinds of IK.
knowledge of TK so that the instances 6. Conclusion and Recommendations
like patent of neem, etc. cannot be revised It is recommended at the international
in future. This defensive measure cannot level that Article 27(3) of the TRIPS has
protect the right unless it is backed by to be reviewed as soon as possible. The
any aggressive measure with legal use of IK shall be excluded as subject
repercussions. matter of the patent. The
5.2.3 Development of a sui generis recommendation of the group including
system India should be accepted that it will be
The word “sui generis” literally means obligation of patent applicant to:
“one of its own kind”, “unique” or (i) disclose the country of origin of
“special” leaving the sui generis open to genetic resources and TK used
interpretation. Sui generis system offers a in the inventions,
unique kind of protection for Intellectual (ii) evidence that they received
Property Rights. It is different from the “prior informed consent” (a term

70 Atul Kaushik, Protecting Traditional Knowledge, Innovations and Practices: The Indian
Experience, in Protecting And Promoting Traditional Knowledge: Systems, National
Experiences And International Dimensions 87 (Sophia Tarog & Promila Kapoor ed., United
Conference on Trade and Development, UN, New York & Geneva, 2004). (hereinafter
referred as Kaushik)
71 FRHLT takes botany course to village, 4(4) MedPlant Network News 16, 16 (2004).
72 Ibid.
73 Supra note 70, at 88.
74 Supra note 70, at 89.

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2012] Protection to Indigenous Knowledge: A Study of Flawed Scenario F-115
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used in the Biological Diversity benefit for their long heritage property
Convention), and economically if not morally. Hence, the
(iii) evidence of “fair and equitable” indigenous people shall be given their
benefit sharing. due for it. As highlighted earlier, there
have been several instances of biopiracies
At the National Level, it is necessary to
and unauthorised use of IK. It is also seen
have defensive measurement backed by
through whole research work that
aggressive measurement. In the light of
International regime of Intellectual
this earlier line, it is recommended that
Property Right is insufficient to stop these
TKDL which is defensive measure shall
instances. CBD had certain provision for
be backed by legislation like PPFV Act
this purpose under Section 8(j) where
ensuring special rights to Indigenous
sharing of equitable benefit and
people. Indigenous knowledge as stated
Previously Informed Consent are made
earlier is very important for these
necessary for the transfer or use of such
indigenous people. It is an accepted fact
knowledge. However, TRIPs under
that the IK belongs to the indigenous
Article 27 is silent on it and leaves IK as
tribes and they shall be given a part of
a subject matter of patent.

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