The Hindu : Legislative options for protection

Online edition of India's National Newspaper
Monday, Apr 22, 2002

Business

Business

Legislative options for protection

Protection is important to the owners of Traditional Knowledge as it can be considered as a valuable tradable commodity which will bring economic benefits to them, says M. D. Nair.

THE DEVELOPING countries which are the major repositories of Traditional Knowledge (TK), including bio-resources, are concerned about its progressive erosion and unsustainable commercialisation without adequate rewards for the owners of such knowledge. At a meeting organised by the Indian Government and UNCTAD in Delhi earlier this month it was agreed that TK needs to be protected by appropriate legislative systems that will be acceptable to the international community.

The consensus was that the present systems for protection of intellectual property and bio-resources, such as those under the TRIPS agreement of the WTO or the Convention of Biodiversity (CBD) are not adequate or appropriate for protection of community rights on TK and indigenous systems and practices.

What are the key issues?

The concerns of the developing countries, which are the major owners of TK, are based on the following ground realities:

— Misappropriation of TK and bio-piracy has led to irreparable economic loss. According to a UN study, if royalty was paid by the developed countries for use of their knowledge base and natural assets, the latter would have gained as much as $5 billion, double the amount claimed by the developed countries as loss due to patent piracy.

— There has been considerable erosion due to exploitation of these finite assets with no plans for their conservation.

— There have been no benefit sharing mechanisms to reward the owners of these assets, when they are exploited commercially by third parties.

What needs to be done?

Any discussion has to answer four major questions, namely, why protection is important, what needs to be protected, what are the protection modalities and in what way can the owners of TK benefit from the protection system. While there has no agreement on the definition of TK, one of the ways of defining it would be to include all traditional and unique verbal expressions (folk tales), musical expressions (folk music) and tangible expressions (textiles, pottery, sculpture, jewellery and medicines). Protection is important to the owners, as TK can be considered as a valuable tradable commodity that will bring economic benefits to the owners, while at the same time ensuring that such knowledge is not eroded or destroyed. For example, indiscriminate use of medicinal plants without ensuring sustainability through conservation, has led to massive endangering of valuable plant bio-resources.

Similarly, due to lack of documentation and poor dissemination of knowledge, by chance or by design (as a protective mechanism), much of indigenous knowledge is getting irretrievably lost. At the same time, global companies routinely exploit such knowledge to gain commercial benefits through the patenting system. In the absence of searchable data bases, disclosing that such knowledge exists as prior art, patent offices grant patents on the use of this knowledge to produce useful products. The patents on turmeric for wound healing (since revoked by the U.S. Patent Office on the basis of CSIR producing evidence of prior art), Karela, Bringal and Jamun for Diabetes, Neem formulations as insecticides and fungicides, Phyllanthus amarus as anti-viral activity and the like, point out compulsions that traditional societies go through to ensure that their knowledge base is protected from unauthorised exploitation with no benefits accruing to them.

Traditional knowledge digital library

The Department of Indian Systems of Medicine together with the CSIR has launched a massive effort to document TK available in all systems of indigenous medicine in all forms, written and oral and prepare a Digital Library (TKDL), which will be put on the Internet. Such documentation will prevent patenting of TK disclosed in the library. However, documentation by itself will not assure any return for the owners, unless international agreements stipulate benefits to the original owners, if information in the library is used for development of commercial products.

What kind of protection system can save TK?: The present instruments for protection of intellectual property under TRIPS or of bio-resources under CBD are inappropriate for the protection of TK. Intellectual property protection under the patent system requires the subject matter to be novel, inventive and useful. Since much of TK comes from the public domain, in the conventional sense they would be deemed to lack novelty. It is, therefore, necessary that the protection modalities have to be through a novel "sui generis'' system, which should (i) protect nascent TK and derive benefits there from and (ii) reap benefits and rewards from property derived from TK, even if such property is novel, inventive and commercially useful and therefore patentable.

In other words, even if novel azadiractin formulations have been granted patents, any benefits from the commercial exploitation of the patent should be shared with the original owners of the TK on neem, since without that knowledge the product could not have been developed. This may be called the "Derivation Principle.'' The Indian Patents Act (Second Amendment) has stipulated that all patents have to disclose the origin of the materials used (example: medicinal plants) and the knowledge based on which the innovation was made possible. Perhaps this is the first step for invoking the "Derivation Principle,'' which at the moment does not find a place in the Bill.

Sui generis law for protection of TK

Nothing prevents WTO members from developing sui generis system at the national level for protection of TK. A model law should cover (i) a definition of subject matter for protection, (ii) extent of rights to exclude others from unauthorised use, (iii) methods of deriving benefits when TK leads to commercial products, (iv) conservation strategies to ensure sustainability (v) registration of title holders of TK, (vi) material transfer agreements and (vii) duration of protection.

The question of prior informed consent has often been mooted as a pre-requisite for use of TK. While this is desirable, there are any number of implementation problems associated with such a requirement, which need to be sorted our before it is made mandatory. It is also to be decided whether all forms of TK can be incorporated under one sui generis legislation. For example, is it possible to include Artistic creations, Folklore and Heritage systems and products on the one hand and plant genetic sources for food, agriculture and medicines on the other in one sui generis legislation?

Need for international recognition of national sui generis legislation: While member countries can bring in national legislations (as long as Art. 3 and 4 of TRIPS are satisfied), on protection of TK unless it is recognised and accepted by other members of WTO and CBD, it has no global legitimacy. And that is where the proposal to have a "Development Coalition'' of representatives of countries agreeing on a common framework for protection of TK becomes important. The outcome cannot be taken for granted, as there are members who agree with the U.S.' stand that "a regime to protect TK cannot by definition adhere to the principle of IPR, namely, as an incentive mechanism for innovation.''

The developing countries which have high stakes in this area owe it to themselves and their heritage to ensure that the "Development Coalition'' works effectively to achieve the objectives, which have been spelt out at the CBD of 1992.

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