India: Protection Of Traditional Knowledge In India

Last Updated: 9 February 2016
Article by Vikrant Rana
Most Read Contributor in India, September 2018

The coming into force of the Nagoya Protocol in October will have great benefits for the defence of indigenous people's rights over their resources, and strengthen India's already robust protective measures, says Vikrant Rana.

"When an elder dies, a library burns"—this old African proverb may be the best way to understand traditional knowledge (TK).

Over the years, IP rights have been formulated as individual, monopolistic rights to protect the innovative, novel and utilitarian ideas of the human mind. TK was thus undervalued: every community has its customary practices, home remedies and cultural expression (folklore). However, the need to protect TK came to the forefront with the adoption of the global Convention on Biological Diversity (CBD) in 1992.

The need for protection

TK does not have an internationally-accepted definition. However, in a wider sense, it covers not just TK itself but traditional cultural expressions (TCEs), including distinctive signs and symbols associated with TK. TK in the narrower sense refers to knowledge as such, in particular, the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills and innovations.

Article 8(j) of the CBD states that every member nation in accordance with its domestic law should move towards the preservation, maintenance and sustainable use of resources important to the TK of the indigenous community. Member nations are urged to promote wider use of TK with the prior approval and involvement of the holder(s) of the knowledge.

The fact that industries are using TK without the prior informed consent of the knowledge holders is a concern, as is the lack of benefit-sharing mechanisms.

TK in India

India is a diverse country in all senses. It is counted among the 'megadiverse' countries under the CBD due to its innumerable genetic resources (GRs) and associated TK. With advancements in technology around the world, GRs and associated TK are vulnerable to bio- piracy and similar threats. With a view to protecting biodiversity, the Biodiversity Act was enacted in 2002.

The act governs conservation and use of bio- resources (BRs) and associated knowledge for commercial and research purposes as well as for bio-survey and bio-utilisation.

To implement the act, the National Biodiversity Authority (NBA), an autonomous body that performs facilitative, advisory and regulatory functions for the government of India, was established in 2003.

The NBA has supported the creation of State Biodiversity Boards (SBBs) in 28 states and over 32,000 Biodiversity Management Committees (BMCs).

Under the act, Indians and Indian institutions (excluding non-resident Indians) do not need the authorisation of the NBA to conduct research or work; however, they need to inform the relevant SBB of the activity. International institutions need the authorisation of the NBA. The NBA gives approval after consultation with the relevant SBB and after establishing mutually- agreed terms for sharing the benefits

TK digital database

It has become imperative to safeguard the sovereignty of TK. To facilitate this, the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) and the Department of Indian Systems of Medicine and Homoeopathy (ISM&H) set up an interdisciplinary task force, establishing the TK Digital Library (TKDL): www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng in 2001.

TKDL is an online database of TK existing in India in a format understandable by patent examiners at international patent offices, thereby preventing the wrongful grant of patents. The project involved the documentations of 150 books, including volumes, under the headings Ayurveda, Unani, Siddha and Yoga; more than 290,000 traditional medicine formulations have been transcribed.

Due to the TKLD, patent offices around the world, including the US Patent and Trademark Office, the UK IP Office and the European Patent Office, have revoked, modified or rejected more than 100 wrongful patents, which were based on prior art from Indian TK (see http://www.tkdl.res.in/tkdl/langdefault/common/Outcome.asp).

India has successfully fought for the revocation or modification of patents for substances such as turmeric, basmati and neem oil.

The Nagoya Protocol

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the CBD was adopted at the 10th Conference of Parties (COP) to the CBD in Nagoya, Japan, on October 29, 2010.

It is the first international instrument particularly relevant to indigenous communities since the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007.

The protocol has 92 signatories and 52 ratifications; it is set to come into force on October 12, 2014, ie, 90 days after receiving the 50th ratification.

The purpose of the protocol is to effectively implement one of three core obligations of the CBD: the access to genetic resources and the sharing of benefits.

Obligations have been set out for seeking prior informed consent of indigenous communities for access; provisions have also been made for the sharing of benefits on mutually agreed terms from the use of TK and GRs in accordance with the domestic legislation of the source country.

The text of the protocol also contains a review clause, which states that four years after entry into force, the COP is to conduct an evaluation with regard to the effectiveness of the protocol. The COP has decided that the review should be undertaken in the light of developments in other relevant international organisations, including the World Intellectual Property Organization.

The protocol allows for parties to implement other relevant international agreements, provided they are supportive of the objectives of the CBD and the Nagoya Protocol.

India and the protocol

India signed the protocol on May 11, 2011 and ratified it on October 9, 2012. India also co-hosted the COP-11 in October 2012 and is the president of COP until October 2014. The Environment Minister has stated that India has taken significant steps in the last 21 months to bring the protocol into force.

In view of the CBD's Aichi Biodiversity Targets for 2020, the protocol's ratification is of great significance, having been completed one year  ahead of the deadline.

The protocol gives incentives to move towards the conservation and sustainable use of genetic resources and associated TK.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Vikrant Rana
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions