India has always been at the forefront when it comes to a debate about misappropriation of its traditional knowledge by corporate entities and foreign research organizations. The traditional knowledge is considered as information about natural products carried over by communities through generations without proper account or documentation of the same. Recently, the debate has been curated (articulated) as involving issue of bio-piracy, where an entity makes use of traditional knowledge illegally and reaps benefits out of such exploitation without prior consent of communities and sharing any benefits with communities.
Last year, India had initiated discussion at WTO about the issue of bio-piracy. The same discussions have been revived with an international session regarding bio-piracy being co-organized by India next month in collaboration with Geneva based inter-governmental organization South Centre. The number of communities’ representative from Brazil, Australia, New Zealand, China, Namibia, Peru and the United States will be participating in the session along with Zo Indigenous Forum, a human rights-based indigenous people’s organization in Mizoram.
India along with developing countries is demanding mandatory disclosure under Patent law of two kinds of information by patent applicants:
- Source or origin of biological resources; and
- Evidence of prior informed consent and benefit sharing with communities.
Disclosure of such information by patent applicants will result in reducing the chances of exploitation of traditional knowledge propagated among local communities.
In the past, the Indian Parliament has passed legislation and also made amendment to existing legislation for protecting interest of communities in traditional knowledge. National Biodiversity Act protects traditional knowledge by regulating use of such information by a foreigner, Indian citizen, and body corporate controlled by foreigner/Indian citizen. The said Act also have requirement of prior permission by entity seeking IPR protection based on knowledge/information obtained from Indian communities. Section 3 (p) of the Indian Patent Act, 1970, also bars the patent protection for invention involving use of traditional knowledge or any duplication or aggregation of such knowledge. Further, there is protection provided under Protection of Plant Varieties and Farmers Rights Act 2001, Geographical Indication of Goods (Registration and Protection) Act 1999, and Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Other initiatives by India include Traditional Knowledge Digital Library which is a digitized traditional medicinal knowledge available in public domain in the form of existing literature (Ayurveda, Unani, Siddha and Yoga). This initiative was formulated in backdrop of revocation of patent on wound healing properties of turmeric at the USPTO and patent granted by European Patent Office on antifungal properties of neem. TKDL has increased access to traditional knowledge and use of such knowledge for beneficial purposes.
At international level, Convention on Biological Diversity has envisioned three objectives including conservation of biological diversity, the sustainable use of its components, and equitable sharing of benefits arising from utilization of genetic resources. Under this convention, Nagora Protocol was incorporated for providing access to genetic resources and fair and equitable sharing of benefits arising out of their utilization. The Protocol intends to create incentives to conserve biological diversity, sustainable use of its components and further enhance the contribution of biological diversity to sustainable development and human well-being.
The session on bio-piracy is a move to realize the inherent right of indigenous communities over such traditional knowledge. Such sessions intend to build pressure on developed countries to amend their domestic laws incorporating requirement of making disclosures as discussed above. India and other developing countries has already proposed to amend TRIPS agreement with such requirement.