Protection of Himalayan Biodiversity - n4

Protection of Himalayan Biodiversity:
International Environmental Law and a

Regional Legal Framework
Protection of Traditional Knowledge
Contributors: By: Ananda Mohan Bhattarai

Book Title: Protection of Himalayan Biodiversity: International Environmental Law and a
Regional Legal Framework
Chapter Title: "Protection of Traditional Knowledge"
Pub. Date: 2010
Access Date: August 18, 2017
Publishing Company: SAGE Publications India Pvt Ltd
City: New Delhi
Print ISBN: 9788132104636
Online ISBN: 9788132112297
DOI: http://dx.doi.org/10.4135/9788132106104.n4
Print pages: 144-226
©2010 SAGE Publications India Pvt Ltd. All Rights Reserved.
This PDF has been generated from SAGE Knowledge. Please note that the pagination of
the online version will vary from the pagination of the print book.
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Copyright © Ananda Mohan Bhattarai, 2010
Protection of Traditional Knowledge
There is an ageless history of biological harmony between indigenous peoples and

their environment, a history going back uncounted thousands of years. This benign
balance was grounded in use, spirituality, and long-term survival. As such, it
transcends industrialized peoples' constant need to find justifications for the
protection of that environment.
Annecoos Wiersema1
Introduction
Protection of traditional knowledge (TK) is a very challenging issue. Despite some

breakthrough achieved in the Convention on Biodiversity the normative framework is
incomplete and the TRIPS regime has made the dynamics rather complex. Many regional and
national initiatives are taken to counter the onslaught of the TRIPS regime on biodiversity and
associated TK. This chapter makes an examination of issues relating to TK. It looks into
matters impacting on biodiversity-related TK from global as well as local perspective. Non-
biodiversity-related TK and traditional cultural expressions/folklores (TCEs) are kept outside
the scope of the present study. Nevertheless, owing to the overlapping nature of various TKs
and TCEs occasional reference to them is unavoidable. After presenting background
information, an examination of the pattern of bio-piracy is made by picking up anecdotes of
piracies that are internationally reported. Following this, an examination of the existing and
emerging legal regime on the protection of indigenous and local communities is made. As will
be seen in the discussion, CBD recognized contribution of the indigenous and local
communities holding the knowledge, innovation and practices relevant for conservation. It is
the only instrument of global significance that is related to the biodiversity based knowledge,
innovations and practices of indigenous and local communities. But there are other
instruments as well relevant for the protection of TK of indigenous and local communities
especially in the context of regime building in this area. The national and regional initiatives
have made several useful contributions in the protection of TK and genetic resources. They
offer useful insights. Besides, there are also a few other instruments relevant for the
protection of TK of indigenous and local communities especially in the context of regime
building in this area. Therefore, a quick survey of these instruments is made, during which the
emerging regional and national regimes are also examined. Protection of TK is an unfinished
agenda and currently works are being done at CBD as well as the WIPO level. A survey of
these developments is made. Finally, a review of achievements, existing challenges and the
way forward is presented.
1 Cited in Jennifer Amiott, ‘Investigating the Convention on Biological Diversity's Protections

for Traditional Knowledge’, 11 Mo. Envtl. L. & Pol'y Rev. 3 (2003).
Background
Traditional technical know-how or traditional ecological, scientific or medicinal knowledge

encompasses innovations, information, practices, skills and learning of the people and
communities. They take such forms as traditional agricultural, environmental or medicinal
knowledge or traditional cultural expressions.2 In a broader sense TK includes stories, songs,
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folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, medicinal
and agricultural practices, including the development of plant species and animal breeds.
This knowledge comprises ideas often developed in an informal way as part of an intellectual
response to the needs and necessities imposed by the physical and cultural environment and
serves as means for their cultural identification.3 It is of practical nature, particularly in such
fields as agriculture, fisheries, health, horticulture and forestry, and benefits the society both
directly and indirectly.
2 WIPO, Intellectual Property and Traditional Knowledge. B o o k l e t , 4 .

Seehttp://www.wipo.int/freepublications/en/tk/wipo_pub_920.pdf, accessed on 19 January
2006. WIPO distinguishes the vast area of traditional knowledge into two broad groups:
Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs). However, it is not
always easy to distinguish them. For instance, the handicraft developed by a community or
associated with a community is both a product (traditional knowledge) and a cultural
expression (form of expression of creativity).
3 WIPO, ‘Consolidated Survey of Intellectual Property Protection of Traditional Knowledge’

(prepared for Inter-governmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore, Fifth Session, Geneva, 7–15 July 2003),
WIPO/GRTKF/IC/5/7, Para 8.
As the intellectual and local traditions of people are so diverse, there are doubts as to whether
or not it is appropriate to weave all these into a one-size-fits-all definition. However, the World
Intellectual Property Organization (WIPO) has tried to give a definition of ‘traditional
knowledge’ by referring it as ‘tradition based literary, artistic or scientific works; performances;
inventions; scientific discoveries; designs; marks, names and symbols; undisclosed
information; and all other tradition-based innovations and creations resulting from intellectual
activity in the industrial, scientific, literary or artistic fields’. ‘Tradition-based’ used in this
definition.
[R]efers to knowledge systems, creations, innovations and cultural expressions

which have generally been transmitted from generation to generation; are generally
regarded as pertaining to a particular people or its territory; and are consistently
evolving in response to a changing environment. Categories of TK could include:
agricultural knowledge; scientific knowledge; technical knowledge; ecological
knowledge; medicinal knowledge, including related medicines and remedies;
biodiversity-related knowledge; ‘expressions of folklore’ in the form of music, dance,
song, handicrafts, designs, stories and artwork; elements of languages, such as
names, geographical indications and symbols; and movable cultural properties.4
Similarly, the Executive Secretary of CBD noted TK to be ‘a term used to describe a body of
knowledge built by a group of people through generations living in close contact with nature’.
It includes a system of classification, a set of empirical observations about the local
environment, and a system of self-management that governs resource use. In the context of
knowledge, innovation is a feature of indigenous and local communities where tradition acts
as a filter through which invention occurs. In this context, it is traditional methods of research
and application and not always particular pieces of knowledge that persist. Practices should,
therefore, be seen as the manifestations of knowledge and innovation.5
4 WIPO, ‘Intellectual Property Needs and Expectations of Traditional Knowledge Holders’

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(WIPO Report on Fact-finding Mission on Intellectual Property and Traditional knowledge,

1 9 9 8 – 1 9 9 9 , W I P O P u b l i c a t i o n 7 6 8 E ) , 2 5 .
http://www.wipo.int/tk/en/tk/ffm/report/final/pdf/part1.pdf, accessed on 19 January 2006. This
is a very broad definition. A relatively narrower and neutral definition of traditional knowledge
in the context of IP is also worked out by WIPO. This definition refers to:
[K]nowledge which is generated, preserved and transmitted in a traditional context;

distinctively associated with the traditional or indigenous culture or community which
preserves and transmits it between generations; linked to a local or indigenous
community or other group of persons identifying with responsibility, such as a sense
of obligation to preserve the knowledge, or a sense that to permit misappropriation or
demeaning usage would be harmful or offensive, a relationship that may be
expressed formally or informally by customary law; knowledge in the sense that it
originates from intellectual activity in a wide range of social, cultural, environmental
and technological contexts; and identified by the community or other group as being
traditional knowledge.
See WIPO/GRTKF/IC/5/8 (28 April 2003), Para 69.
WIPO has broadly categorized tradition based knowledge into two broad groups: TK and
TCEs though it accepts a separate treatment of TK and TCEs (especially expressions of
folklore) but admits that it may sometimes be artificial.6 Generally speaking, the biodiversity
based knowledge in the field of medicine, agriculture and industry falls into the TK. Similarly,
constituents of folklore such as songs, chants (mantras), narratives, motifs, designs and so
on, fall into the category of TCEs. However, these two have a strong linkage on several
aspects. Even a single object, for instance, a handicraft, prepared by a particular indigenous
community using a local wood for preparing potions of traditional medicine, apart from being a
product (content), may be a technical idea (knowledge), and due to its association with a
culture or community, may also be a cultural expression. Both TK and TCEs are largely based
in public domain, are accumulative, incremental, serve the same social purpose, have
practical utility and also share the common threats.
Sometimes TK is erroneously considered a golden bowl of knowledge handed down by

ancestors to the present generation. Despite having a long historical lineage, much of the TK
is not antique and ancient, but contemporary, dynamic and vital. It is not frozen in time but is
intrinsically innovative and constantly evolving to meet the everyday needs of the people.
Since around 80 per cent of the world's population even today depends on botanical
resources and associated knowledge for their primary health care needs its contemporary
relevance and resilience is obvious.7
5See UNEP/CBD, ‘Traditional Knowledge and Biological Diversity’ (Note by the Executive
Secretary, UNEP/CBD/TKBD/1/2, 18 October 1997), Para 84 and 85,
http://www.biodiv.org/doc/meetings/tk/wsktbd-01/official/wstkbd-01-02-en.pdf, accessed on 14
February 2006.
6See WIPO, ‘Final Report on National Experiences with the Legal Protection of Expressions of
Folklore’ (Report prepared by Secretariat, WIPO/GRTKF/IC/3/10), Para 95.
http://www.wipo.int/documents/meetings/2002/igc/pdf/grtkfic3_10.pdf, a c c e s s e d o n 1 4
February 2006. This is because while administering doses of traditional medicine, many
traditional healers also invoke the blessings of God, and perform Puja. Therefore, separation

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of rituals from traditional medicine sometimes becomes difficult.
7 Edgar J. Asebey and Jill Kempenaar, ‘Biodiversity Prospecting: Fulfilling the Mandate of the
Biodiversity Convention’, 28, Vand. J. Trtansnat'l L. 703 (1995): 705, quoting Dr Norman
Farnsworth, a noted pharmacologist.
CBD, which is the first international hard law instrument to provide for the protection of TK,
uses it to refer to ‘the knowledge, skills, innovation and practices of indigenous and local
communities and people which is relevant for the conservation and sustainable use of
biodiversity’.8 Here the term ‘indigenous’ is literally used in the sense of a people naturally
inhabiting in a place rather than arriving from outside. In the political discourse ‘indigenous
people, communities and nations’ is used for people who having a historical continuity with
‘pre-invasion’ and pre-colonial societies that developed on their territories, consider
themselves distinct from other sectors of the societies now prevailing in those countries, or
parts of them.9 They form at present non-dominant sectors of society and are identified by
their ethnic origin, their continued existence as distinct people, an autonomous social
structure in accordance with their own cultural patterns, social institutions and legal
systems.10 In many countries with colonial history especially in the North and South America
indigenous people are variously called as aboriginal, ethnic, ancestral, native, nations and
indigenous people etc.
Along with ‘indigenous community’, CBD also uses another term ‘local communities’. The term
‘local communities’ may somewhat overlap with indigenous people, but includes a broad
spectrum of local inhabitants of a particular territory such as subsistence farmers, fishermen,
nomadic tribes, hunter-gatherers, forest people, artisan communities and various others who
derive a large part of their livelihood from local natural resource base and knowledge system
existing in the community. Some of these people are closely bound by ties of ancestry,
language or other cultural characteristics. But others share no bond other than their use of
and dependence on natural resource base and the knowledge system for their livelihood.
Thus, a few characteristics such as a natural base, forms of social organization and
membership, family lineage and geographical boundary to the extent it makes a correlation
with the expanse and spread of natural vegetation serve as guide posts for determining local
community.11
8See Convention on Biological Diversity (CBD) 1992, Art. 8(j).
9 Laurel A. Firestone, ‘You Say Yes, I Say No; Defining Community Prior Informed Consent
under the Convention on Biological Diversity’, 16, Geo. Int'l Envtl. L. Rev. 171 (Fall 2003): 179.
Worldwide, the number of indigenous people is estimated to be over 300 million. But for the
recent exception in Peru, indigenous people and communities in most of the countries are in
the minority.
10See ‘Study of the Problem of Discrimination against Indigenous Population’, report

prepared by Jose R. Martinez Cobo, the Special Rapporteur of UN Sub-commission on
Prevention of Discrimination and Protection of Minorities, http://UN.Doc.E/CN.4/Sub.2/1986/7
and Add. 1–4.
11 Naomi Roht-Arriaza ‘Of Seeds and Shamans: The Appropriation of the Scientific and
Technical Knowledge of Indigenous and Local Communities’, 17 Mich. J. Int'l L. 919 (Summer

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1996): 964–65.
Most indigenous and local communities are situated in areas where the vast majority of the
world's plant genetic resources are found. Many of them have cultivated and used biological
diversity in a sustainable way. For thousands of years, indigenous and other agriculture based
economies throughout the world have been based on continued relationship with local natural
resources. Indigenous local communities, due to their long standing relations with nature, are
said to be the most dependable custodians of the local environment. The rich biodiversity has
been useful for physical and cultural survival of many of them. It has provided them food,
fodder, medicine, shelter, clothing, agricultural implements and myriads of services. Besides,
society has also benefited from exceptional insights that these communities have developed
on agricultural, medicinal and other uses of the biodiversity and their holistic approach to land
and resources. Many indigenous groups have long used certain plants for medicinal
purposes. Their pharmacological knowledge, albeit primitive, has enabled researchers to
more readily identify useful medicinal ‘needles’ in the biodiversity ‘haystack’ of the rain forest
and made the nature product research time and cost effective.12 Indigenous groups have
played a major role in discovering new drugs in the rain forest.13 Today TK acts as a filter for
ordinary guess in biotechnological research, contributing to predictability by thousands of
times.14
12 Dr Walter H. Lewis and his collaborators cited two separate authorities in support of the
advantages of ethno-botanically targeted research. A Belgian group is said to have reported in
1985 that selection of candidates for screening compounds, when based on traditional
medicinal data compared to several other methods, gave a five times higher percentage of
active leads. A preliminary test using plants submitted to the National Cancer Institute for anti-
HIV screening is said to have found that random plant collections provided 6 per cent activity,
whereas those based on ethno-botanically ‘powerful plants’ selected by a herbal healer
yielded 25 per cent activity, a four times greater frequency. See Charles R. McManis,
‘Intellectual Property, Genetic Resources and Traditional Knowledge Protection: Thinking
Globally, Acting Locally’, 11 Cardozo J. Int'l & Comp. L. 547 (Summer 2003): 571–72. Some
even go to the extent of claiming that by consulting indigenous people, ‘bio-prospectors’ can
increase the success ratio in trials for useful substances from one success in 10,000 samples
to one success in a few hundred samples. See Gelvina Rodriguez Stevenson, ‘Trade Secrets:
The Secret to Protecting Indigenous Ethno-biological (Medicinal) Knowledge’, 32 N.Y.U. J. Int'l
L. & Pol. 1119 (Summer 2000): 1128.
13 As much as seventy-five commercially available drugs (or 75 per cent of all drugs derived
from rain forest inputs) have been found with the help of local tribes. See Kirsten Peterson,
‘Recent Intellectual Property Trends in Developing Countries,’ 33 Harv. Int'l L.J. 277 (1992).
See also Daniel T. Jenks, ‘The Convention on Biological Diversity—An Efficient Framework for
the Preservation of Life on Earth?’ 15 Nw. J. Int'l L. & Bus. 636 (Spring 1995): 346.
14 Even though the predictability is varying, yet in some cases it is said to be five thousand
times more effective than random collection. See Ikechi Mgbeoji, Global Bio-piracy: Plants,
Patents and Indigenous Knowledge (Vancouver: UBC Press, 2006), 142.
In the context of CBD, a few aspects of TK such as traditional agriculture and medicinal
practices stand out over others. The agricultural practices revolve around basic activities of
farmers and other indigenous and local communities. They involve activities such as plant

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breeding, animal husbandry, fishing, arts and crafts and so on, which use local biological
resources. The medicinal practices encompass varied practices from rich systems to individual
medicinal practices. Among the rich are systems such as Ayurveda, Unani, Chinese and
Tibetan medicine and similar other well documented, systematic and pervasive systems which
use a very broad range of biological resources.15 The medicinal practices are kept alive by
Vaidhya, Hakim, Shaman, herbalists and so on, who use resources from the public domain
and also use the knowledge handed over to them from previous generations. Then, there are
midwives, bonesetters and local farmers, womenfolk and other local people who also use
local biological resources for treating their members and carry a deep knowledge of the local
environment.
Today, the holders of TK face many challenges. An array of factors such as migration,
destruction and degradation of environment, disruption of traditional life due to encroachment
of modern culture and lifestyle and acculturation have cumulatively placed immense pressure
on indigenous and local communities. Many indigenous communities are displaced from their
traditional territories, and suffer due to habitat loss, malnutrition, poverty, disease and cultural
decimation resulting in perpetual pauperization. Their knowledge, skill, innovations and
practices are disappearing at an accelerating pace. If the current pace continues it is likely
that much of the precious knowledge will be lost within a few decades to come.16
At another front, the holders of TK have also immensely suffered due to misappropriation of
their knowledge by unauthorized third party. The practice of siphoning of knowledge without
prior informed consent of the holders of such knowledge and without any arrangement of
benefit sharing is colloquially termed as bio-piracy. Though there is no official definition of bio-
piracy at the international level, some countries have defined this term in national
legislation.17 Generally bio-piracy is read as extraction or appropriation of the knowledge and
genetic resources of farming and indigenous communities by individuals or institutions
seeking exclusive monopoly or control over the same.18 Action Group on Erosion, Technology
and Concentration (ETC Group) has defined bio-piracy as ‘appropriation of the knowledge
and genetic resources of farming and indigenous communities by individuals or institutions
seeking exclusive monopoly control (usually patents or plant breeders' rights) over these
resources and knowledge’.19
15 It is said that geographically broad systems such as Ayurveda, Unani or Chinese medicine
encompass 1,000–2,000 species of medicinal plants. In the second group, are indigenous
tribes who can easily have knowledge of over 200 medicinal plants. The third group of
farmers, women folk and others who use medicinal plants for household remedies also
possess significant knowledge of medicinal plants. See Michael J. Huft, ‘Indigenous Peoples
and Drug Discovery Research: A Question of Intellectual Property Rights’, 89 Nw. U.L. Rev.
1678 (1995): 1695–701.
16 UNEP/WCMC, ‘Outline of the Composite Report on the Status and Trends Regarding the
Knowledge, Innovations and Practices of Indigenous and Local Communities Relevant to the
Conservation and Sustainable Use of Biodiversity, and the Plan and Timetable for Its
Preparation’ (UNEP/CBD/WG8J/2/5), http://www.unep-
wcmc.org/species/sca/traditional_lifestyles/CompositeReport.pdf, accessed on 4 December
2005.
Bio-piracy has a long history but with the growth of modern biotechnology it has become more

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pervasive. No country or region of the developing world is unaffected by bio-piracy.20 But as

of now, no legal instruments or standards exist to protect the knowledge of indigenous and
local people from bio-piracy.21 As the resource is without effective regulations for current and
prospective users such as the biotechnological industries and others, TK has remained a
great temptation to resist.
While TK is safely privatized by researchers and MNCs, no benefit flows back to the holders
of knowledge. This being the state of affairs, the indigenous and local communities are also
loosing motivation to protect the knowledge system. In many parts of the world, their own
governments are hostile in matters relating to the protection of their land, resources and
knowledge. Local governments in many cases lack long-term plans for indigenous and local
communities. Sometimes, they are antagonistic to any idea of protection of these communities
or their knowledge and resources. Local and national governments are often found unwilling
to facilitate transactions with indigenous and local communities. Even where official policy is
benign, bureaucratic impediments, institutionalized bribery, and lack of quick and effective
dispute resolution system make access and benefit-sharing projects with indigenous and local
communities unprofitable. The hostile approach of the bureaucracy stifles any attempt to
establish a flourishing market for TK.22 Besides, indigenous and local communities are
required helplessly to embrace the government launched schemes and packages, which also
exacerbates the loss of TK. Even though some governments in the Himalayan region have
taken initiatives to protect the TK of the communities, a lot more needs to be done for the
protection of TK so that it becomes a useful component for the resurgence of local economy
and people.
17 For instance, Peru's Law on Protection of Peruvian Biological Diversity and Collective
Knowledge of the Indigenous Peoples Contains a Definition of Bio-piracy. See Law No. 28216,
Peru. See http://www.wipro.int/export/sites/www/tk/en/laws/pdf/peru_ley_28216.pdf ( t e x t i n
Spanish), accessed on 8 April 2010.
18See Gavin Stenton, ‘Bio-piracy within the Pharmaceutical Industry: A Stark Illustration of
How Abusive, Manipulative and Perverse the Patenting Process can be Towards Countries of
the South’, E.I.P.R. 26, no. 1 (2004): 17, citing definition given by Action Group on Erosion
Technology and Concentration. Another definition of bio-piracy is ‘illegal or unauthorized
access to and use of biodiversity components (mainly genetic and biological resources) and
associated traditional knowledge, as part of development and research process and
application of biotechnology’. Seehttp://www.biopirateria.org, accessed on 12 December 2008.
19 Cited in the note by Secretariat for the Council for TRIPS, IP/C/W/368 Rev.1 Para 129,
accessed on 8 February 2006.
20 The world market for herbal medicine is estimated to be USD 43 billion with an estimated
growth rate of 5 to 15 per cent. See Stenton, supra note 18.
21See Gurdial Singh Nijar, ‘Developing a “Right Regime” in Defense of Biodiversity and
Indigenous Knowledge’, Access to Genetic Resources, eds John Mugabe, Charles Barber,
Lyle Glowka, Henne Gudrun and Antonia La Vina (Bonn: IUCN, 1997), 233–43, at 234.
Bio-Piracy, History, Incidence and Patterns

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For thousands of years, human society benefited from free exchange of seeds, plants and
associated knowledge. Almost all the food crops that farmers have been growing are varieties
which have been bred and cross-bred for over centuries and passed on to posterity as
common heritage of humanity. Since no country was self-sufficient in genetic resources,
particularly the plant genetic resources needed for agriculture, a free flow was encouraged.
However, on hind sight, it is now seen that the free flow led to the movement of germplasm
and associated knowledge from the centre of biodiversity to the periphery. This movement can
be broadly categorized into three phases: periods of curiosity, greed and plunder.
From the establishment of agricultural societies to the beginning of colonialism, search,

collection and transport of seeds and plants were rather unsystematic and largely a matter of
curiosity. ‘Needs rather than greed’ propelled farmers to look for varieties useful for food and
medicine. However, the practice took an unnatural turn with the rise of colonialism some 500
years ago. Plant ‘wealth’—germplasm—moved along with mineral wealth and human labour
from empires' peripheries to enrich the core. Plantation economies grew in the colonies and
imperial powers competed with each other in the accumulation of germplasm-based wealth.
Collected plants, seeds and bulbs were stored in gardens and repositories.23
22See Paul J. Heald, ‘The Rhetoric of Bio-piracy’, 11 Cardozo J. Int'l & Comp. L. 519 (Summer
2003): 536.
The objective of the seed and plant collection was to meet the need of the core as well as the
colony, and break the monopoly of the country which was trading on such resources.24
European powers which were vying for military and economic supremacy, therefore, sought to
maintain exclusive control over plant resources and competitive advantage in agriculture,
industry and trade.25 The competition to control spice trade in the 18th century, which then
was largely monopolized by the Dutch, should be taken in this light. In 1755, Pierre Poivre
broke the Dutch spice monopoly by smuggling pepper and cinnamon to Ile de France. For
these services, he was ennobled by the French king.26 Similarly, the piracy of seeds of the
cinchona tree from Andean region by British and Dutch seed collectors ended Andean
monopoly on quinine production and enabled the colonial powers (particularly the Dutch)
gradually to gain control of the quinine market. The European powers thus secured a supply
of medicine that helped them to alleviate the difficulties of colonizing within the ‘deadly
climates’ of South Asia and Africa.27
Against the rapacious adventure of colonial powers, some countries, though unsuccessfully,
tried to protect their native agriculture industries. For instance, Brazil, which commanded 95
per cent of the world trade in rubber, prohibited the export of rubber tree germplasm in the
18th century. However, in 1876, Henry Wickham—a Briton—duped customs authorities and
left the country with a boatload of Hever (rubber tree) seeds. For this, he was honoured by
the British Queen. The rubber thus pirated was then taken to similar tropical regions of
Malaysia, Singapore and Ceylon, which were then under British dominion. The planting of
rubber in these regions changed the whole scenario of international trade in rubber. Brazil,
which till the turn of the 19th century, exported over 90 per cent of the world's rubber, had to
accept virtual demise of its rubber industry by 1919. Thanks to piracy, the British colony of
Singapore emerged the world's rubber capital in early 20th century.
23 One such repository is the Kew Gardens, London, where officers of the British Empire
deposited exotic plants, crops and trees. Similar gardens were established in colonies like

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Java, Singapore, Capetown, St. Vincent Island, Jamaica, Fiji and so on. Similarly, in the US
botanical gardens were created in New York, Harvard in Boston, Missouri and Florida. See
June Starr and Kenneth C. Hardy, ‘Not by Seeds Alone: The Biodiversity Treaty and the Role
for Native Agriculture’, 12 Stan. Envtl. L. J. 85 (1993): 99. See also Keith Aoki, ‘Weeds, Seeds
& Deeds: Recent Skirmishes in the Seed Wars’, 11 Cardozo J. Int'l & Comp. L. 247 (Summer
2003): 262–64.
24 Feeding European population was also necessary as the European population had nearly
doubled between 1750 and 1850. See Aoki, ‘Weeds, Seeds & Deeds’, 262.
25 Plant resources at the centre of competition were such as nutmeg, clove and indigo. See
Aoki, ‘Weeds, Seeds and Deeds’, 261–62.
26See Klaus Bosselmann, ‘Plants and Politics: The International Legal Regime Concerning
Biotechnology and Biodiversity’, 7 Colo. J. Int'l Envtl. L. & Pol'y 111 (Winter 1996): 121.
27 Shane Mulligan and Peter Stoett, ‘A Global Bio-Prospecting Regime’, International Journal
Spring, eds Norman Hillmer/Margaret MacMillan (Canadian Institute of International Affairs,
2000), 224, 227. It is said that Andean indigenous groups used quinine as a cure for fevers,
supposedly learning of the bark's powers while observing feverish jaguars eating it. See Roht-
Arriaza, ‘Of Seeds and Shamans’, 922.
The drive for collecting germplasm was not only limited to Britain or Europe. The US was also
on the fray right from her independence. She had a conscious policy of collecting plants from
around the world. Among the earliest American Presidents, George Washington and Thomas
Jefferson were particularly known for their interest in the collection of plant varieties.28 They
formed or otherwise participated in ‘agricultural societies’ whose purpose was to import seed
from abroad, and distribute to farmers and plantation owners.29 Thomas Jefferson once
observed that ‘the greatest service that could be rendered to any country [was] to add a
useful plant to its culture’.30 By early 19th century, the practice of importing seed and plants
from other countries became institutionalized to the point that American diplomats and naval
officers were systematically acquiring seed from their postings and travels abroad, helping to
establish a seed bank, or germplasm for the use of American farmers.31
28 Thomas Jefferson, who was also the first administrator of patents in the United States,
observed: ‘He who receives an idea from me, receives instruction himself without lessening
mine; as he who lights his taper at mine, receives light without darkening me.’ Jim Chen,
‘Biodiversity and Biotechnology: A Misunderstood Relation’, 2005, Mich. St. L. Rev. 51 (Spring
2005): 79.
29 David R. Nicholson, ‘Agricultural Biotechnology and Genetically-Modified Foods: Will the

Developing World Bite?’ 8 Va. J.L. & Tech. 7 (Summer 2003).
30 Cited by Mulligan and Stoett, ‘A Global Bio-Prospecting Regime’, 227.
31 ‘In 1819, the US Treasury Department issued a directive requesting that consular and navy
officials begin systematically collecting plant germplasm abroad. By 1836, the US Patent and
Trademark Office (P.T.O) became interested in establishing a federally sponsored repository

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for germplasm samples that were arriving as the Navy began overseeing official plant
expeditions. From 1839 onward, plant expeditions brought back seeds and cuttings from an
increasing variety of plants and cultivars to a botanical green house in Washington DC. In
1857, the P.T.O established a garden specifically designed to propagate and multiply seeds
for widespread distribution. The distribution of seed to farmers was one of the duties of the US
P.T.O. By 1849, it is said that more than 60,000 packages were being sent out annually to
farmers. And when in 1862 the Department of Agriculture was established it also continued to
distribute seeds. It distributed over 1.1 billion packets of free seed to American farmers by the
end of the 19th century. The US government eliminated the free seed distribution programme
in 1924.’ See Keith Aoki, ‘Weeds, Seeds & Deeds’, 264–66.
Piracy entered the third phase with the growth of plant hybridization and biotechnology. The
new technologies and scientific discoveries generated unprecedented ways for creators and
innovators to utilize certain elements of the common heritage. Innovators began to take
genetic resources and associated knowledge in public domain as raw materials for their
inventions. Now knowledge and information, as opposed to land and chattel, became the
primary source of wealth generation for both the government and private companies. And in
this new endeavour, the interests of indigenous and local communities were hardly cared
about. While the imperial property law had facilitated colonization, the new IPR law propelled
the collection, usurpation and piracy of information by terming them obvious, pre-existing and
so on. The following cases, though by no means representative of instances of bio-piracy,
illustrate the pattern.
Serendipity Berry
Farmers in Western and Central Africa for hundreds of years have used the Serendipity berry
(which produces Monellin) and Katempfe (which produces Thaumatin) plants to sweeten and
enrich the flavour of their foods. Thaumatin is 2,000 times sweeter than sugar, yet calorie free,
and could be highly profitable in the food processing industry. These plants were brought to
the US and later University of California and Lucky Biotech (USA) got patent on them.32 The
patent covers any transgenic form of a plant producing these proteins and the food stuffs
derived therefrom. The products from these plants are said to have generated a USD 900
million profit per year in the market for low calorie sweeteners. But the African farmers who
have preserved and utilized these plants receive no compensation for their contributions.33
32 Monnelin was also patented by University of Pennsylvania (US) and Kirin Brewery Ltd.
(Japan), http://www.grain.org/briefings/?id=135, accessed on 13 January 2006.
33See Victoria E. Spier, ‘Finders' Keepers: The Dispute between Developed and Developing
Countries over Ownership of Property Rights in Genetic Material’, 7, Wid. L. Symp. J. 203
(Spring 2001): 204. See a l s o http://biod-icbg.org/publications/noticiero5-2/manzur.htm,
accessed on 13 January 2006.
African Soapberry Plant
Another example of uncompensated extraction of plant genetic resources from Africa involves
the Endod or Phytolacca dodecandra, commonly known as the African soapberry plant. This
plant is of perennial type and has been cultivated for centuries in Africa, particularly in
Ethiopia, where its berries are used as a laundry soap and shampoo. As a matter of fact, in

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many African countries Endod is synonymous with ‘soap’. People in rural areas traditionally
used Endod also as fish intoxicant and insecticide. The effect of Endod on snails was first
observed in 1963 by biologist Dr Aklilu Lemma while conducting fieldwork in his native
Ethiopia. After several years of research he found that the African Soapberry had effective
toxicity to kill water snails carrying the disease bilharzia. But they were not harmful to humans
and animals.34 In 1990, Dr Lemma went to the US to receive an honorary degree from the
University of Toledo, where Lemma and his US colleague biologist Harold Lee tested it in the
laboratory and found Endod to be lethal to adult zebra mussels after four–eight hours
exposure, and Endod was also biodegradable in 24 hours. A few months later, the University
of Toledo applied for a patent on the use of Endod to control zebra mussels that clog North
American waterways with an arrangement to share royalties between the University (including
its researchers) and Dr Lemma.35 Royalties from this patent, however, did not go to the
plant's original ‘proprietors’, the Ethiopian people, who selected, nurtured and preserved
Endod for centuries or even the Ethiopian researcher who originally found its intoxicating
component.36
Hoodia Gordonii Cactus
The Kalahari desert cactus called Hoodia gordonii is prized for its appetite-suppressing, thirst-
quenching and awareness-heightening qualities. It comes from South Africa, Zimbabwe,
Botswana and Angola. The San people of South Africa have for thousands of years known
about the plant which they call ‘Xhoba’.37 The research on this was done at the Council for
Scientific and Industrial Research (CSIR) by South African scientists and patented as P57 (so
named because it was the 57th chemical tested) in 1997. The CSIR then sold the compound
to Phytopharm plc which, in 1998, subleased it to US pharmaceutical giant Pfizer Corporation
for USD 32 million plus royalties from future sale. Thus, the CSIR was accused of selling a
resource which did not belong to it. After much controversy, the San people and the CSIR
came to have a royalty agreement that created the possibility of distributing the proceeds
among San community.38
34See Chakravarthi Raghavan, ‘Patent Appropriation of Ethiopian Plant for New Use’, report
on 1 April 1993, http://www.sunsonline.org/trade/areas/intellec/04010093.htm, assessed on 11
January 2006.
35 Young-Gyoo Shim, ‘Intellectual Property Protection of Biotechnology and Sustainable

Development in International Law’, 29, N.C.J. Int'lL. & Com. Reg. 157 (Winter 2003): 239–40.
See also Raghavan, supra note 34.
36 James O. Odek, ‘Bio-Piracy: Creating Proprietary Rights in Plant Genetic Resources’, 2 J.

Intell. Prop. L. 141 (Fall 1994): 146–47.
Ayahuasca Vine
Ayahuasca (Banisteriopsis caapi), a common woody vine native to Ecuador, was given in
exchange of hospitality to one Loren Miller of International Plant Medicine Corporation in
exchange of two packs of Marlboro cigarette in 1986 by a tribal chief of the Secoya
community. Miller had already heard of psychoactive properties of the Ayahuasca which locals
called ‘yagi’.39 In the description of invention, the applicant affirmed that the ‘plant was

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discovered growing in a domestic garden in the Amazon rain-forest of South America’. This
plant has been in use among indigenous people in the Amazon rain forest for making a
ceremonial drink called ‘yagi’ to contact spirits, treat sicknesses and foresee the future.40 The
US P.T.O. in 1986 granted Ayahuasca patent to Loren Miller (plant patent number 5751) as a
new breed.41 This was discovered and publicized by RAFI, which led to a legal challenge
from the CIEL, on behalf of the Coordinating Body for Indigenous People of Amazon (COICA),
and the Amazon Alliance for Indigenous and Traditional Peoples (Amazon Coalition). While
challenging the patent, Washington, DC based Center for International Environmental Law
(CIEL) claimed that the plant was not new, that it was found in an uncultivated state, that its
medicinal properties were already found by indigenous people, and that it is sacred to many
Amazonian peoples. It also argued that the patent should be rejected on the grounds that it
might be ‘injurious to the well being, good policy or good morals of society’, criteria
established by the US P.T.O. itself. A number of factors such as wide communication of the
challenge and the skills of the challengers, and documentary proof of the availability of the
plant in many US herbarium and illustrations in Western scientific literatures compelled the
US P.T.O. to finally revoke the patent.42
37 San people are very poor desert communities, and in Botswana and Namibia often
regarded as nuisance by authorities and herded into towns where they have few skills with
which to earn a living. They were persecuted by the apartheid regime in South Africa. The
Mandela government has granted them ownership of more than 40,000 hectares of land
although the quality of land is marginal. Seehttp://www.dolfzine.com/page612.htm, accessed
on 11 January 2006.
38 As of 30 July 2003, however, Pfizer withdrew from the P57 project and discontinued clinical
development of P57. See Chen, ‘Biodiversity and Biotechnology’, 89–90; see
alsohttp://www.dolfzine.com/page612.htm, accessed on 11 January 2006.
39See Mgbeoji, Global Bio-piracy, 133.
40See Leanne M. Fecteau, ‘The Ayahuasca Patent Revocation: Raising Questions about
Current U.S. Patent Policy’, 21, B.C. Third World L.J. 69 (Winter 2001): 69.
41 Before that Miller had cultivated the plant in Hawaii, which he named ‘Da Vine’ and
developed a stable variety that was eligible for a patent.
Rosy Periwinkle
An interesting case relates to the use of rosy periwinkle (Catharanthus roseus) derived from
Madagascar. In 1952, Robert Laing Noble, a member of the medical faculty of the University
of Western Ontario, received 25 rosy periwinkle leaves from his brother Clark Noble. By 1958,
Robert Noble's research team at Western Ontario successfully isolated and purified the
potent alkaloid extract now known as vinblastine. Working independently, Gordon Svoboda—
an Eli Lilly researcher—found that a crude extract of the whole periwinkle plant prolonged the
lives of mice afflicted with leukemia. Eli Lilly eventually synthesized vincristine. This helped to
develop a wonder drug for curing Hodgkin's disease and pediatric leukemia from vinblastine
and vincristine respectively. Discovery of wonder drugs such as vinblastine and vincristine, are
said to have been primarily responsible for improving Hodgkin's disease remission rates from

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19 per cent to 80 per cent and pediatric leukemia survival rates to a once unimaginable 90 per
cent.43 But Eli Lilly, the corporate producer of vinblastine and vincristine, which earns roughly
USD 100 million each year from these drugs, pays nothing to Madagascar, the original home
to the plants where these drugs were found.44
42 Mulligan and Stoett, ‘A Global Bio-Prospecting Regime’, 228. The P.T.O. rejected the
patent on the ground that the same plant had been described in herbarium sheets in
Chicago's Field Museum over a year prior to Miller's application. See Leanne M. Fecteau,
‘Ayahuasca Patent Revocation’, 86. It is said that with the patent applicant challenging
revocation, it reinstated the patent. See Eliana Torelly de Carvalho, ‘Protection of Traditional
Biodiversity-Related Knowledge: Analysis of Proposals for the Adoption of a Sui Generis
System’, 11, Mo. Envtl. L. & Pol'y Rev. 38 (2003): 55.
43See Shayana Kadidal, ‘Plants, Poverty, and Pharmaceutical Patents’, 103 YALE L.J. 223
(October 1993): 223.
Yellow Bean Seeds
The president of PODNERS, a Colorado based seed company, Larry Proctor, vacationing in
Mexico in 1994 purchased yellow beans seeds (also called Enola or Mayocoba beans) and
brought home with him. In less than two years he filed for an exclusive monopoly patent.
Proctor won a US patent in April 1999 and subsequently also got plant breeders' rights. After
that he brought legal suits against seed companies, American farmers and two companies
that were selling Mexican yellow beans in the US, claiming that they infringed his monopoly
patent.45 However, according to the importers of Mexican bean, they were selling them four
years prior to the patent. The International Center for Tropical Agriculture (CIAT), with the
support of FAO, challenged the patent claiming, among others, that it was a prior art of
Mexican farmers. The CIAT gene bank itself had some 260 beans samples with yellow seeds
and six accessions were substantially identical to claims made in the US Patent (5,894,079)
by the applicant. Therefore, the patent did not meet novelty and non-obviousness
requirement and disregarded prior art.46 The US Patent and Trademark Office (P.T.O.) sat on
the petition for many years and finally, on 14 April 2005, released its final decision cancelling
or rejecting all of the patent's 64 claims. This decision was confirmed in October 2005.47
44 Kadidal, Id. p. 224.
45See ‘Proctor Sues 16 Small Bean Seed Companies and Farmers in Colorado for Infringing
his Patent’, http://www.etcgroup.org/article.asp?newsid=282, accessed on 13 December 2008.
46 Even though Proctor did not purchase the beans from International Center for Tropical
Agriculture (CIAT), the CIAT gene bank had some 260 beans samples with yellow seeds, and
six accessions were substantially identical to claims made in the US Patent 5,894,079 by the
applicant. Seehttp://www.biotech-info.net/enola_bean.htm, accessed on 12 January 2006.
47 Michael Woods, ‘Food for Thought: The Bio-piracy of Jasmine and Basmati Rice’, 13 ALB.
L.J. SCI. & TECH. 123 (2002). See also ETC, ‘Whatever Happened to the Enola Bean Patent
Challenge’, http://www.etcgroup.org/documents/genotypeEnola05.pdf, a c c e s s e d o n 1 2
January 2005.

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Coloured Cottons
Coloured cottons were naturally grown by indigenous farmers of Peru for several centuries.
Even then, due to the popularity of white cotton during the 19th and 20th centuries, these
people suffered at the hands of their own government, which passed a policy of destroying
coloured cotton. They, however, continued to grow it surreptitiously in remote parts of the
country. Thanks to the growing interest in environmentally friendly fabrics, coloured cotton
slowly became a sought-after commodity.48 But it came with a price. With the growing
popularity, coloured cotton became a matter of interest in the US. The US Department of
Agriculture (USDA) obtained the seeds from Mexico or some other part of Central America.
The seeds were later given to Ms Sally Fox, a businesswoman in the US interested in organic
agriculture, and to others. After obtaining the seeds and planting and replanting them, Ms
Fox filed a plant patent for two varieties of coloured cotton, ‘coyote’ (a brown colour) and
‘green’, and got them patented (product patent) in 1986. Ms Fox acknowledges that naturally
coloured cotton ‘has its roots in Americas. Weavers have cultivated and spun native white,
green, pink, lavender, yellow, red, and brown coloured cottons for thousands of years.’49 In
the meantime, the indigenous peoples of Peru succeeded in developing their coloured cotton
for commercial markets with the help of Native Cotton Project.50 The project began marketing
commercially viable organic, naturally coloured cotton clothes, textiles and other products in
1993. By 1999, efforts similar to those of the Native Cotton Project in Peru were being made in
Columbia, Guatemala and Bolivia.51 Today, indigenous people of Peru continue to cultivate
their naturally coloured cotton and bring it to a worldwide market under several trade names—
Pakucho, Morrope, Native Cotton, Vicuna Cotton and so on. Thankfully, they did not have to
face any harassment from Ms Fox. Unlike Mr Proctor in yellow beans case, in this case, Ms
Fox did not have the audacity to file a complaint for patent infringement against the
indigenous farmers.52
48 Roht-Arriaza, ‘Of Seeds and Shamans’, 924.
49 Valerie J. Phillips, ‘Half- Human Creatures, Plants and Indigenous Peoples: Musings on
Ramifications of Western Notions of Intellectual Property and the Newman-Rifkin Attempt to
Patent a Theoretical Half-Human Creature’, 21, Santa Clara Computer & High Tech. L. J. 383
(January 2005): 413. The author at p. 410 says that it is not clear how, or even if, the shades
that Fox obtained were different from the shades of brown and green that indigenous peoples
developed and grew for five thousand years. Fox may have simply stumbled upon, rather
than bred, the long lint length naturally coloured cotton that indigenous peoples had
cultivated thousands of years ago.
50 James M. Vreeland, an archaeologist working in Peru with pre-Colombian textiles, created

and co-directed the Native Cotton Project from 1982. The project was created with support
from the Peruvian ministries of labour and tourism, the Inter-American Indian Institute of the
Organization of American States, and the Institute of Latin American Studies of the University
of Texas at Austin. A Peruvian non-governmental organization (NGO) called Sociedad de
Investigacion de la Ciencia, Cultura y Arte Norteo (SICAN) became a sponsor in 1984.
SICAN's goal was to use naturally coloured cotton as a rural development project for
indigenous farmers and traditional artisans. The Project estimated that as many as 15,000
traditional farmers still cultivated coloured cotton varieties, while over 50,000 women still spun

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and wove with it. See Phillips, ‘Half- Human Creatures’, 411–12.
Basmati Rice
Basmati rice is often referred to as the ‘crown jewel’ of South Asian rice which has been
planted in the foothills of the Himalaya in Pakistan, India and Nepal for thousands of years by
farmers. It is known for its long fine grains and special aroma. In September, 1997, RiceTec, a
Texas-based company, successfully applied for several patents on the basmati rice and grain
lines. One of these patents, patent number 5,663,484, claimed that rice produced from this
rice line had ‘characteristics similar or superior to those of good quality basmati rice’. The US
P.T.O. allowed RiceTec to keep the name ‘Basmati Rice Lines and Grains’.53 It also used the
packet which said ‘Basmati like rice’. However, Pakistani and Indian governments, in a rare
exhibition of solidarity, in April 2000, challenged three of RiceTec's 20 claims of US patents on
the basis of their search on prior article. They sought to ‘refute RiceTecs claims' of novelty’. In
August 2001, in light of the Pakistani and Indian challenge, the US P.T.O. re-examined the
patent and gave a preliminary decision to reject most of RiceTec's claims and gave the
company until May 2001 to file a response. By April 2001, RiceTec withdrew not only the three
claims directly challenged by the Indian and Pakistani governments, but also additional
eleven claims and amended another one. RiceTec even changed the name of its patent from
‘Basmati Rice Lines and Grains’ to the more neutral ‘Rice Lines Bas 867’, ‘Rt 1117’ and ‘RT
1121’.54 Among the five patents still remaining, is the 484 patent which, if held valid, will
arguably continue to permit RiceTec to exclude others from making, using and selling basmati
rice in the United States until September 2017.55
51 By 1993, Ms Fox also had a competitor within the US, BC Cotton. BC Cotton developed its
coloured cotton line in the same way Fox did—by obtaining seed samples from germplasm
collected and held in places like Texas A&M, the USDA, and University of California at
Berkeley. Ms Fox initiated and then voluntarily dismissed her law suit against BC cotton. See
Id. pp. 413–14.
52 Though she filed a case against Raymond Bird, whose company, BC cotton, was
producing coloured cotton in three states by 1993 but she voluntarily dismissed the suit in
1994 perhaps because she did not want the weakness of her claim exposed either in courts or
to an international audience, because the spokesperson for BC cotton had already bluntly
declared, ‘there is coloured cotton available in all the gene banks, it has been around for
years’. Perhaps she did not want to risk any further exposure of how little she had actually
accomplished or did not want to incur the expense of litigation. See Id. p. 416.
53 RiceTec had taken basmati rice seeds from International Agriculture Research Center,
Idaho, USA. Prior even to patent filing, RiceTec began selling the rice it developed in the US
under the name ‘Texmati’, which it described as ‘American style Basmati rice’. See Sumathi
Subbiah, ‘Reaping What They Sow: The Basmati Rice Controversy and Strategies for
Protecting Traditional Knowledge’, 27, B.C. Int'l & Comp. L. Rev. 529 (Spring 2004): 552.
Jasmine Rice
Thai jasmine rice is a variety of Thailand which is popular both in Thailand and abroad. Thai
farmers in the arid Thung Kula Ronghai have used conventional breeding techniques over the
course of the past few centuries to improve the quality of jasmine rice, which has made it

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popular today. These farmers probably never thought that a large corporation seeking
exclusive protection in the form of a patent would expropriate their generations of hard work. It
was reported that since 1995, Chris Deren, a research professor at the University of Florida's
Everglades Research and Education Center was working with the United States Department
of Agriculture (USDA), to produce a mutation of the popular Thai jasmine rice that will grow in
Florida's Everglades.56 Knowing this Thai rice farmers protested the research by marching to
the US embassy in Bangkok.57 Since the matter drew huge protest in Thailand, the Thai
Prime Minister raised this issue with President George Bush when the former visited the US in
2001, and also indicated of retaliatory action of boycott of US exports. In view of this, the
USDA assured Thai authorities that they will not seek patent protection for any new strains of
jasmine rice discovered. But it was no magnanimity of the USDA; the US authorities were
compelled to relent because Chris Deren had obtained the rice strain from the International
Rice Research Institute (IRRI), which prohibits researchers from seeking any patents on the
rice they study or create.58
54See Id.
55See Woods, ‘Food for Thought’, 138–39.
56 In fact, SemChi Rice Products Corporation was interested in growing 9,000 acres of the
mutated jasmine rice if it should become perfected. See Woods, Id. pp. 140–41.
57 ‘The fear of Thai farmers was that Deren's rice resembles Khao Pathum Thani 1, a kind of
Thai jasmine rice. And if Deren were granted a patent claming this variety, the original jasmine
rice from Thailand would face serious competition in the United States and international
markets. Furthermore, if there were doubts about the similarity of the two varieties, Thai
exporters would have to provide scientific evidence that the rice they sell in the United States
is a different variety from Deren's [rice]. This would obviously put the Thai farmers in a difficult
position of defending a patent infringement suit’. See Woods, Id. pp. 140–41.
Neem Tree
A more illustrative case of bio-piracy is the neem tree (Azadirachta indica) case. In Indian
scriptures, neem is called Sarva roga niharini in Sanskrit, meaning ‘curer of all ailments’.
Many people in the Indian subcontinent have used the neem tree for centuries. They have
used the bark to clean teeth, the juice of the leaves to treat psoriasis and other skin disorders
and control infections, and the seeds as spermicide and insecticide.59 The Indian cottage
industry has been selling neem products for more than 50 years. Neem toothpaste has been
produced by a Calcutta based company, ‘Calcutta Chemicals’, for several decades.60 The
first US patent on neem was obtained by Terumo Corporation in 1983 for its therapeutic
preparation from neem bark.61 In 1975, Robert Larson (USDA) obtained a patent for his
preparation of neem seed extract to produce a pesticide known as Margosan-O. In 1988,
Larson sold his patent to W.R. Grace.62 Soon thereafter, W.R. Grace undertook further
research and patent was granted jointly to the USDA and W.R. Grace. The patent covers both
a method of stabilizing azadirachtin in solution and the stabilized azadirachtin solution itself.
In March 1994, the EPA registered ‘Neemix’, which used stabilized azadirachtin for use on
food crops.63 The patent holders had stabilized the chemical so that it could be sold

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commercially. However, it was not a transgenic improvement. The patent to W.R. Grace was
challenged by activists and by the Indian government but the patent in the US was held valid
over the evidence presented.64 W.R. Grace had also applied for patent to European Patent
Office (EPO) but the European Patent Office, in May 2000, upon challenge by Belgian Green
Party and Vandana Shiva revoked W.R. Grace's patent on ‘Neemix’ by recognizing TK on
various uses of neem as prior art.65
58See Woods, Id. pp. 140–41.
59 The West was alerted to the tree's wonders in 1959, when a German entomologist
reported that neem trees were spared during a locust swarm that devoured all other foliage.
Since then, researchers in India and elsewhere have identified azadirachtin, a powerful
insecticide that is not harmful to humans, as one of the seed's active substances. See Emily
Marden, ‘The Neem Tree Patent: International Conflict over the Commodification of Life’, 22
B.C. Int'l & Comp. L. Rev. 279 (Spring 1999), 280.
60See Vandana Shiva, Bio-Piracy, the Plunder of Nature and Knowledge (Foxhole: Green
Books, 1998), 73.
61Seehttp://www.neemfoundation.org/patents.htm, accessed on 12 January 2006.
62 After W.R. Grace purchased patent from Larson, it started processing 20 tons of neem
seeds per day. As a result, neem prices in India skyrocketed from Rs 300 per ton to an
average of Rs 3500 per ton.
Turmeric
Turmeric (Curcuma longa), found wild in the Himalayan region, is grown across South Asia
and has been used for thousands of years for healing wounds and rashes. It is also used as
colouring substance in food. In December 1993, two non-resident Indians associated with the
University of Mississippi Medical Center, Jackson, USA applied for patent claiming a ‘method
of promoting healing of a wound by administering turmeric to a patient afflicted with the
wound’. Despite the fact that the applicants had acknowledged the known use of turmeric in
traditional medicine for the treatment of various sprains and inflammatory conditions, in March
1995, the US P.T.O. granted them patent. The Indian government through Council for
Scientific and Industrial Research (CSIR), in October 1996, challenged the patent on the
ground of lack of novelty citing 32 references, some of them from ancient Sanskrit literature.
The US P.T.O., on 28 March 1997, upheld the objection and cancelled the patent, after being
satisfied on the basis of documented text that it was a prior art.66
63 Besides, a US company, AgriDyne has also received two US patents for bioprocessing of
neem for bioinsecticidal products. The first patent is for a refining process that removes fungal
contaminants found in extracts form the neem seed, and is used in the manufacture of
technical-grade azadirachtin and in the production of AgriDynes's neem-based
bioinsecticides. The second patent is for a method of producing stable insecticide
formulations containing high concentrations of azadirachtin.
Seehttp://www.twnside.org.sg/title/revoked.htm, accessed on 10 January 2006. There are 90
patents granted on neem worldwide.

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64See de Carvalho, ‘Protection of Traditional Biodiversity-Related Knowledge’, 56.
65See Report by Chakravarty Raghavan in http://www.twnside.org.sg/title/revoked.htm,

66Seehttp://www.twnside.org.sg/title/tur-cn.htm, accessed 10 January 2006. There are

patents on a number of indigenous plants of India and other South Asian countries. Amla, Jar
Amla, Anar, Salai, Dudhi, Gulmendhi, Bagbherenda, Karela, Rangoon-ki-bel. Erand,
Vilayetishisham, Chamlura. See alsohttp://www.infinityfoundation.com/mandala/t_dy_Q7.htm,
Further Discussion
There are several other cases of bio-piracy. Only a few of them, which are widely discussed,
are the ones picked up above.67 These cases come from developing countries, which are
considered centres of biodiversity and relate not only to the piracy of resources but also of
associated knowledge. As is seen, the researchers have tremendously benefited from the
existing knowledge and, in a number of cases, also mentioned about pre-existing uses.
Despite this, however, the patenting authorities did not bother to probe further to see whether
or not the product or the process is a real inventive step or merely a scuffling of the prior art.
This happened in very compelling cases such as the case of ‘Ayahuasca’ patenting, where it
was claimed that the exchange gift was misused and where the applicant himself disclosed
that he had collected the plant from ‘domestic garden’ or in turmeric where the researchers
had acknowledged its prior use for the treatment of various sprains and inflammatory
conditions. In all the cases, the actions of the authorities facilitated privatization of the
knowledge existing in public domain.
In none of the cases, the holders of patents have taken a prior informed consent (PIC) or
produced or claimed to have a benefit-sharing arrangement. The resources were in use for a
long time in the region and have been used by people to meet their daily needs of food,
medicine, and other domestic and agricultural use. In most of the cases, the products are
prepared by extraction, mutation, and cross breeding. In some cases patents were granted
even for very frivolous and obvious claims, as for instance, ‘yellow colour’ of a yellow bean or
the product and process in ‘coloured cotton’ which was naturally growing.
67 A few other examples relate to the barley gene developed by Ethiopian farmers and pirated
to USA; patenting of insect pest resistant gene (later inserted into maize and soybean) from
cowpeas that had been obtained from West African farmers by the Institute of Tropical
Agriculture; patenting of Brazilian fungus that killed fire ants in the US; patenting of cell line of
a Guyami Indian woman from Panama and the celebrated case of Robert Moore are other
examples of unethical practices. See Roht-Arriaza, ‘Of Seeds and Shamans’, 922–26. Other
authors cite piracy of banaba plant known for its medicinal property from the Philippines.
Similarly, there are other examples as well such as patenting an extract from Phyllanthus
amarus, a medicinal plant from India used in Ayurveda (US patent no 4,673,575), granted to
Fox Chase Cancer Center; protein isolated from Petadiplandra brazzeana, a berry from Gabon
used by locals for its sweet taste for centuries, product patent for vitamin B 12 from Olin
Mathieson, patent to US company (US Patent no. 5,900,248) for diabetic properties extracted
fromjamun, known for centuries in India, derivative from Swartzia madagascariensis, an African
tree found in Zimbabwe, long used by natives for treating fungal infections, to Swiss scientists

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(US patent no. 5,929,124). Other examples are granting of patent in the US and Europe to
British chemist Conrad Gorinsky on chemical properties such as poly-acetylene Cunai bush
(Clibadium sylvestre) and Tipir product from Greenheart tree (Ocotea rodiaei) for its efficient
antipyretic and useful for treating tumours, already known to Indians of Guyana, see Mgbeoji,
Global Bio-piracy, 144–46.
A majority of these cases pre-date CBD but there are cases such as basmati rice, jasmine rice
and turmeric, where patents were granted after CBD came into existence. For example, the
submission of report by Peru to Council for TRIPS in September 2007 revealed that patents
were either granted or applications for patents pending for as many as five of its bio-
resources. This illustrates the continuation of privatization of the knowledge in public
domain.68 This also refutes the claims that, with the coming of CBD, bio-piracy has been
reduced or subsided or an equitable method of distribution of benefits has started.
Even though bio-piracy has been seen as a deceitful act against the holders of genetic
resources and associated knowledge, it is not the only factor affecting the loss of TK. Given
the diverse nature of the TK system, a number of factors have influenced or exacerbated the
loss of knowledge and resources. A few of them relate to non-recognition or lack of effective
protection of basic human rights to life, property, environment, social and cultural system, or
the right to development. In what follows, a summary of how the existing and emerging laws
have looked upon on indigenous and local communities and their knowledge is presented.
The existing and emerging norms are relevant for further culling out relevant principles and
standards for the protection of TK.
Existing and Emerging Law on Indigenous People and Their Knowledge
Human Rights Instruments
Even though human rights instruments do not directly address the right to knowledge,
innovation and practices of indigenous people, they are nevertheless relevant both for the
protection of the rights of these people and communities, and for the development of an
international regime on access and benefit sharing of genetic resources and TK. Taken from
this angle, the right that comes to the fore in the context of indigenous and local communities
is the right against discrimination. Given the historic discrimination and social disadvantage
that affect indigenous and local communities, reference to human rights instruments can be
made to safeguard them against discrimination.69 Other rights such as the right to self-
determination;70 and the right not to be deprived of their means of subsistence;71 the right to
own, trade and dispose of their property;72 the right to participate in the cultural affairs of the
community;73 the entitlement to a social order where realization of the right is possible74 are
also equally important. As TK is the property of indigenous and local communities and
people, it could be inferred that TK should be protected to at least the same standards as
other forms of intellectual property.
68 Peru submitted to the Council for TRIPS its search with the US, EC and Japanese patent
office on Hercampuri, Camu-Camu, Yacon, Caigua, Sacha Inchi and Chancapiedra, which are
indigenous to Peru. Peru maintains that they reflect cases of bio-piracy either because such
resources have been obtained illegally, or because they involve unauthorized use without
compensation. In any case, access to these are made without fulfilling the obligation of CBD

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such as PIC, or benefit sharing. See IP/C/W/441/Rev.1, 19 May 2005. See also Peru's
submission IP/C/W/493, 19 September 2007. See also Subbiah, ‘Reaping What They Sow’,
529.
Equally relevant in the context of the right of indigenous and local communities and people is
the guarantee that no provision of civil and political rights shall be interpreted as ‘impairing the
inherent right of all people to enjoy and utilize fully and freely their natural wealth and
resources’.75 Read along with ‘right to have access to public service’76 and the right of the
people to ‘freely dispose of their natural wealth and resources…based on the principle of
mutual benefit’, this takes one very close to decipher further meaning on how the ‘sovereign
right’ of the State over biological resources, guaranteed by CBD, should be elaborated and
interpreted. This requires the policy makers to establish mechanisms in order to avoid
misappropriation of natural wealth and resources, regulate access and ensure benefit sharing
in a fair and equitable manner. It is also argued that if the concepts of ‘natural wealth and
resources’, ‘mutual benefit’ and ‘means of subsistence’ include and be applied to access and
benefit-sharing regimes; indigenous and local communities should be accorded with the right
to freely determine the use of their TK and genetic resources and that access and benefit-
sharing regimes should be built upon this principle.77
69 This right is protected by various articles including UDHR, Art. 2, 7; ICCPR, Art. 2, 26;
ICESCR, Art. 2(2).
70 ICCPR, Art. 1(2); ICESCR, Art. 1(1).
71 ICCPR, Art. 1(1).
72 UDHR, Art. 17.
73 UDHR, Art. 27.
74 UDHR, Art. 28.
75 ICCPR, Art. 47.
76 ICESCR, Art. 1(2).
Protection of the right of the minorities, including indigenous people, has been a matter of
concern to the international community right from the establishment of the United Nations.
International human rights instruments have some provisions on the protection of the rights of
indigenous people. For instance, Article 27 of the International Covenant on Civil and Political
Rights (ICCPR) provides that:
…in those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise their
own religion, or to use their own language.
Explaining it further, the UN Human Rights Committee in its General Comments on Article 27
observes that ‘…a right which is conferred on individuals belonging to minority groups and

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which is distinct from, and additional to, all the other rights which, as individuals in common
with everyone else, they are already entitled to enjoy under the Covenant’.78 About culture
the Committee explains:
[C]ulture manifests itself in many forms, including a particular way of life associated
with the use of land resources, especially in the case of indigenous peoples. That
right may include such traditional activities as fishing or hunting and the right to live
in reserves protected by law. The enjoyment of those rights may require positive
legal measures of protection and measures to ensure the effective participation of
members of minority communities in decisions which affect them.79
Here, key expressions to be marked are: ‘use of land resources’, ‘right to live in reserves
protected by law’ and ‘effective http://participation.in decisions which affect them’. These
expressions and the provision as a whole are useful in the protection of TK and in the regime
building on the subject.
77See UNEP/CBD, ‘Analysis of Existing National, Regional and International Legal

Instruments Relating to Access and Benefit Sharing and Experience Gained in Their
Implementation, Including Identification of Gaps’, UNEP/CBD/WG-ABS/3/2, Para 57.
78See Human Rights Committee, General Comment 23, Article 27 (Fiftieth session 1994),
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 (1994), 38, Para 1.
79 See Id. Para 7.
The ILO Convention 169
Another instrument that attempts to protect indigenous people is the ILO Convention Number
169.80 The convention identifies indigenous people as people who:
…on account of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or
colonization or the establishment of present state boundaries and who irrespective of
their legal status, retain some or all of their own social, economic, cultural and
political institutions.
Similarly, the Convention identifies tribal people as people ‘whose social, cultural and
economic conditions distinguish them from other sections of the national community and
whose status is regulated wholly and partially by their own customs or traditions or by special
laws or regulations’.81
The Convention calls upon the governments to take proactive measures to protect the right of
these people. It also asks them to take special care for safeguarding the persons, institutions,
property, labour, culture and environment by taking into account the wishes of such people.82
Consultation, participation, cooperation, coordination and respect to the wishes, autonomy
and safeguard against abuse of the rights are the key expressions with regard to the
management of life, properties and culture of these people.83 The Convention guarantees
that indigenous and tribal people:

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…shall have the right to decide their own priorities for the process of development as
it affects their lives, beliefs, institutions and spiritual well-being and the lands they
occupy or otherwise use, and to exercise control, to the extent possible, over their
own economic, social and cultural development.
It further guarantees that they shall have the right to ‘participate in the formulation,
implementation and evaluation of plans and programs.which may affect them directly’.84
Protection of the lands is one of the key aspects of the ILO Convention 169. The term ‘land’ is
used to include ‘territory’ and ‘total environment’, which these people occupy or otherwise use.
Governments are called upon to recognize the right of ownership and possession over the
lands which these people traditionally occupy and, in appropriate cases, it is also asked to
safeguard the right of these people to use lands ‘not exclusively occupied’ but to which they
traditionally had access for their subsistence and other activities. The government is required
to give particular attention to the situation of nomadic peoples and shifting cultivators.85 The
Convention also protects the right to use, manage and conserve natural resources. Even
where the State retains the ownership of mineral or subsurface resources it is required to
consult the indigenous and tribal people ‘before undertaking or permitting any programmes
for the exploration or exploitation of such resources pertaining to their lands’. Wherever
possible, it is necessary to involve them in benefit sharing and pay fair compensation for any
damages which such people may sustain as a result of such activities.86 Where due to
exceptional circumstances displacement occurs, indigenous people are required to be
provided with a right to return to their traditional lands as soon as grounds for relocation
cease to exist. Land for land resettlement is the norm in case of these people.87 In a nutshell,
the Convention guarantees indigenous people not only the right over land, resources, culture,
language and total environment, it tries to make them the ‘subject’ of development. It also
takes a very flexible approach to the use of resources and assures autonomy and participation
in decision making, which are useful in the context of protection of TK.
80 This convention has now been ratified by Nepal.
81See ILO convention No. 169. Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, 1991, Preamble, Art. 1.
82See Id. Art. 2, 3 and 4.
83 See Id. Art. 6, 8 and 12.
84 See Id. Art. 7.
The CBD Regime
CBD is the first hard law instrument that recognizes the close and traditional dependence of
many indigenous and local communities embodying traditional lifestyles on biological
resources.88 CBD does not make a clear distinction between biodiversity-based TK and non-
biodiversity-based TK. It seems interested only in that aspect of life of indigenous and local
communities and people which are ‘relevant for the conservation and sustainable use of
biodiversity’. This leads one to construe that the thrust of CBD is biodiversity-related TK.

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85See Id. Art. 14.
86 See Id. Art. 15.
87See Id. Art. 16.
88See CBD, Preamble. Though the Rio Declaration (Principle 22) also has a provision which
acknowledges that ‘Indigenous peoples and their communities…have a vital role in
environmental management and development because of their knowledge and traditional
practices’, it does not have any prescription about how the community and their knowledge
and practice can be protected.
CBD in several places recognizes that indigenous and local communities have close links to
biological resources.89 For instance, Article 10(c) calls Contracting Parties to protect and
encourage customary use of biological resources according to ‘traditional cultural practices’.
Similarly, Article 17(2) lists ‘indigenous and traditional knowledge’ as one of the elements of
information, the exchange of which should be facilitated between Parties, and Article 18(4)
invites Parties to encourage and develop methods of cooperation for the development and
use of technologies, including ‘indigenous and traditional technologies’ in pursuance of the
objectives of the Convention. Besides, Article 8(j) is a major provision addressing the
knowledge, innovations and practices of indigenous and local communities. Article 8(j)
basically obligates member countries to:
respect, preserve and maintain knowledge, innovations and practices of indigenous and
local communities embodying traditional lifestyles relevant for the conservation an
sustainable use of biodiversity;
promote their wide application with the approval and involvement of the holders of such
knowledge, innovation and practices; and
encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices.
The obligation imposed upon States to ‘respect, preserve and maintain’ TK of the indigenous
and local communities is for checking the diminution of TK due to various reasons. The term
‘respect’ recognizes TK as a value and accords precedence to the wisdom of such
communities in the preservation and maintenance of their knowledge, innovation and
practices. It shuns external interference against their wishes or interests in the name of
protection. Other terms used in Article 8(j) such as ‘approval and involvement’ also suggest
that the views of the community should be respected.
Even though CBD uses the term ‘indigenous and local communities’, it does not define it. So,
ordinary meaning that can be derived from other legal instruments can be used to decipher
these terms. However, while doing so, it should be borne in mind that indigenous and local
communities became relevant because of their contribution to the protection of biodiversity
and promotion of its use in the interest of large humanity; these terms should not be
construed as open ended. Further, by using the modifying phrase, ‘embodying traditional
lifestyle’, CBD tries to narrow down the scope of protection and excludes people of traditional
descent who no longer live in traditional communities from the scope of Article 8(j).
89See CBD, Preamble, Para 12, Art. 10(c) Protecting and encouraging customary use of

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biological resources; Preamble, Para 13 Role of women in biodiversity conservation.
CBD encourages the ‘customary use of biological resources in accordance with traditional
cultural practices’ that are compatible with the objectives of the Convention.90 B u t a s
promotion of ‘wider application’ of TK is also an objective that goes in consonance with the
sustainable uses of the components of biodiversity, a host of other actions could be explored
for the preservation and maintenance of knowledge, innovations and practices including:91
elimination of ‘perverse’ incentives which encourage the overexploitation of agricultural,

forest and fisheries resources, the displacement of traditional practices, plant varieties and
animal breeds, and the destruction of ecosystems;
creation of a system of incentives and disincentives which encourage traditional practices
and innovation, as well as their use;
undertaking of ethno-biological research programmes to identify and record TK,
innovations and practices;
documentation of knowledge with approval and participation of the community; and
building research and development capacity among the community regarding the use of
knowledge, innovation and practices.
CBD accepts indigenous and local communities as one very important stakeholder so far as
access to TK and sharing of benefits arising from the use of biodiversity-based knowledge is
concerned. CBD is an instrument which aims at ushering sustainable development through
the use of ‘knowledge, innovation and practices’ of these communities. In reality, the major
concern seems to be uncompensated use rather than the use of knowledge, innovation and
practices per se. Therefore, CBD, instead of banning the application, takes a practical
approach and stresses that it should be done with the ‘approval and involvement’ of the
holders of such knowledge, innovation and practices. And where the application of
knowledge, innovation and practices results in benefits, CBD provides for equitable sharing of
benefits with such holders. Provisions relating to ‘wider application’ and ‘benefit sharing’ also
indicate the openness of CBD with regard to both economic and non-economic value of TK to
modern society and its acceptance that the holders are entitled to decide how to share the
knowledge and for what benefit. The modality to be adopted could be similar to that of genetic
resources but the key words ‘approval and involvement’ indicate the need to take a PIC of the
community as a precondition to access and benefit sharing even though it is also a matter to
be decided and determined by the concerned State ‘subject to national legislation’.
90See CBD, Art. 10(c).
91See Lyle Glowka, Francoise Burhenne-Guilmin and Hugh Synge, ‘A Guide to the
Convention on Biological Diversity’, Environmental Policy Paper No 30 (Bonn, Germany: IUCN
Environmental Law Centre, 1994), 48.
The provisions of CBD relating to TK have several weaknesses. First, by not defining the term
‘indigenous and local communities’, it has created confusion about the scope of Article 8(j).
Some critics take the view that by limiting its protections to ‘indigenous communities’ and
ignoring the more generally accepted term ‘indigenous peoples’, CBD fails to protect the TK
of indigenous individuals who do not live within an indigenous community.92 Further, as
mentioned already, CBD has also narrowed the definition of indigenous and local
communities by using the expression ‘embodying traditional lifestyles’. Instead of respecting
indigenous peoples' rights to self-determination and cultural evolution, the use of this

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modifying phrase tends to promote the notion that indigenous cultures must remain fixed in
the past to warrant protection.93 It is not clear to what extent such communities are allowed to
embrace modern values or what would be the role of CBD institutions in encouraging these
people to embrace a modern way of life. It is far from being clear whether or not such people
would be entitled to protection under Article 8(j) of CBD if they have full knowledge of the
traditional uses of biodiversity in medicine, agriculture, forestry and other areas, but have also
adopted a modern way of life.
CBD uses another expression ‘local communities’. In general parlance, ‘local communities’
include local residents, farmers, practitioners of traditional medicines such as Vaidhya, Hakim
or Shaman, and artisans who depend for their livelihood on the local resources. The Third
World Network, a non-governmental organization, defines ‘local community’ as:
…a group of people having a long standing social organization that binds them
together whether in a defined area or howsoever otherwise and shall include
indigenous peoples, farmers, and local populations, and shall where appropriate
refer to any organization duly registered under the provisions of this Act to represent
their interest.94
92See Amiott, ‘Investigating the Convention on Biological Diversity's Protections’, 7. But as is

realized in human rights discourse where the international instruments for a long time took
individualistic notion, a communitarian approach, if worked out properly, protects the interests
of a larger cross-section.
93See Id.
It is an inclusive definition that makes membership of the social organization necessary but
does not make physical settlement within a boundary mandatory and, in that sense, more
accommodative to the spirit of CBD. However, caution should be taken against making it too
encompassing. As such, the term ‘local communities’ is a broader term and may not have the
same kind of connection with the land and environment ‘indigenous peoples’ are generally
understood to have. But stretching the meaning just to be abused by people who do not have
any kind of tie to land, local environment and culture would go against the spirit of CBD.95 In
a nutshell, factors such as historical connection to a particular landscape, economic and
cultural systems linked to the environment, which promote stewardship of ecosystem, and
possession of a holistic knowledge about their land resources are important for the
determination of the community.
Many indigenous people object to the reliance of CBD on the State as a benefactor to
indigenous peoples. Their concern is mainly on the fact that, in many instances, community
rights are suppressed or de-recognized by the States themselves. In view of this, it is argued
that CBD's reliance on State sovereignty over biological resources and the State's efforts to
carry out its TK protections have frustrated CBD's efforts to safeguard the knowledge,
innovations, and practices of indigenous and local communities.96 Critics have also pointed
out the failure of Parties to involve indigenous peoples effectively in the framing of domestic
legislation which regulate their right over resources and associated knowledge. A major
demand of the indigenous people is self-representation, and not just participation as
stakeholders. Further, CBD's failure to take any step to protect territorial rights of the
indigenous communities is also said to be a major hurdle in the protection of the rights of
these communities. As because the international system lacks the authority to enforce CBD

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against Parties that fail to implement national programmes and legislations in compliance with
Article 8(j) and other related provisions, many nations are faltering in their attempts at
executing provisions relating to TK. In addition, some also argue that both CBD's ‘narrow
reliance’ on developing commercial value of biodiversity to further its protection, and CBD's
reflection of Northern-world views that value knowledge and technology as ‘property’ further
limit the Convention's capacity to effectively protect TK.97
94 The Network has developed a model of Community Intellectual Rights Act. See d e
Carvalho, ‘Protection of Traditional Biodiversity-Related Knowledge’, 63.
95See Amiott, ‘Investigating the Convention on Biological Diversity's Protections’, 10.
96 It is corroborated from the fact that very few countries have so far created progressive
legislation or policy framework on the protection of traditional knowledge.
Agreeing that CBD does not present a very bold framework so far as the protection of TK,
innovation, and practices of indigenous and local communities, it can also be argued that
CBD is not an instrument of indigenous people or communities per se. Indigenous people
became relevant only because their knowledge and their lifestyle became important for
biodiversity conservation and sustainable use of its components. Besides, the indigenous
communities are also not homogenous throughout the world. For instance, the lifestyle of
indigenous communities in Amazonian Brazil and those in the Himalaya are distinctly
different. In such differing circumstance where communities are to be protected, identification
of the community is the first step, but where biodiversity-based knowledge is to be protected,
their connection to and reliance on such knowledge should be the focus. Taking this analogy
in the context of CBD, the recognition of the right of the indigenous and local communities,
and their involvement in decision making in matters affecting their life, and participation in
benefit sharing rather than the total autonomy and right to self-determination is arguably the
concern.
It is also argued that some biodiversity-related exercises such as the plant genetic resources
in food and agriculture have benefited from collective and incremental knowledge of farmers
over centuries. This knowledge is not limited to one particular indigenous or local community.
In many instances, the knowledge is shared by all farmers of a particular region. Similarly, in
traditional medicine, for instance, Ayurveda or Chinese/Tibetan or Unani medicine, the
knowledge is in the public domain, and also practiced widely both institutionally and
individually. ‘Who are the proper owners of knowledge that is inherited from generation to
generation?’ is a big question.
In some cases, the knowledge about medicinal aspect of a resource is limited to a few people
such as Vaidhya, Hakim or Shaman, or similar specific groups in the village. This kind of
knowledge is generally based on oral tradition with uncertain authorship. The availability of
the resource in more than one region or country, and spread of the knowledge to more than
one community also creates problem regarding representation in decision making and benefit
sharing. Distinguishing useful TK from commonplace information is also a thorny issue. If a
particular herb (say Paanchaunle) is used by the people in Tibet as well as those in the
southern watersheds of the Himalaya (in Tibetan and Ayurvedic medicine respectively), how
does one identify the rightful inventor; how can a system of registration that distinguishes
inventions from copies be created to sort out author from fan, or the royalty payment schemes
designed, and other considerations to be sorted out.98 The problem regarding PGR for food

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and agriculture is partly solved by the International Treaty on Plant Genetic Resources for
Food and Agriculture (ITPGRFA), but problems relating to the knowledge innovations and
practices in other areas are yet to be settled.
97See Amiott, ‘Investigating the Convention on Biological Diversity's Protections’, 6. A

counterargument in this could be that not using TK for commercial purpose may also imply
shelving it in antiquity and hence defies the very logic of protection.
In a nutshell, CBD has made a good start in the recognition of biodiversity-based knowledge.
But it embodies serious shortcomings that should be tackled during the regime building on
the subject. TK system is very diverse and based on multiple socio-economic and religious
factors. In order to protect the interest of the holders of TK under Article 8(j), policy changes
should be comprehensive enough to accord legal recognition and legal personality of the
knowledge holders. As the State has taken a duty to ‘respect’ knowledge, innovation and
practices of indigenous and local communities, it bears the solemn duty to protect the rights
of indigenous and local communities relating to land, culture, representation and use of
resources. The protection will help individuals and communities maintain their knowledge,
innovations and practices, clarify control over such information and ensure that those who
profit from using this information equitably share the benefits from that use.99
Agenda 21
In addition to CBD, Agenda 21 carries further the provisions relating to TK. It takes note of the
historical relationship that indigenous people and their communities have with their land,
natural resources and environment. Recognizing the need to protect their human rights and
fundamental freedoms, the Agenda calls for the recognition, accommodation, promotion and
strengthening of the role of indigenous people and their communities. It requires governments
to establish a process to empower indigenous peoples and their communities through
measures that include:100
recognition of their values, TK and resource management practices with a view to

promoting environmentally sound and sustainable development;
enhancement of capacity building for indigenous communities based on the adaptation
and exchange of traditional experience, knowledge and resource management practices,
to ensure their sustainable development;
establishment, where appropriate, of arrangements to strengthen the active participation
of indigenous peoples and their communities in the national formulation of policies, laws
and programmes relating to resource management and other development processes that
may affect them.
98See Anupam Chander and Madhavi Sunder, ‘The Romance of the Public Domain’, 92,
Calif. L. Rev. (2004): 1331, 1367. Authors here bring forth instance of intercontinental
application of herb.
99See Glowka et al., ‘Guide to Convention on Biological Diversity’, 49.
Agenda 21 tries to operationalize TK and emphasizes on recognition of TK as a value, and on

capacity building of indigenous communities so that they can effectively participate in
negotiations for the use of TK. It also emphasizes on taking cognizance of traditional
experience and knowledge and resource management practices while trying to build the

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capacity of the target community to protect and use best their resources and knowledge
system.
The ITPGRFA and Farmers' Right
One area where the developing countries made a modest achievement during the negotiation
of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is
the recognition of the farmers' right. Through the ITPGRFA, farmers' rights, for the first time,
got entrenched in an international hard law instrument. The Treaty recognized the enormous
contribution of local and indigenous communities and farmers, particularly those in the
centres of origin and crop diversity. The farmers' right includes the protection of TK and the
right to participate in decision making and sharing of benefits. The Treaty also recognizes
farmers' right to save, use, exchange and sell farm saved seed/propagating material subject
to national law.101 The responsibility of realizing farmers' right is kept with national
governments.
100See Agenda 21, Ch. 26.3.
The recognition of farmers' rights and the protection given to them is nominal and arguably
incomplete. The Treaty does not make any clear provisions to benefit indigenous and local
farmers. Though it is provided that benefits arising from the use of plant genetic resources for
food and agriculture (PGRFA) that are shared under the ‘Multilateral System’ should flow
primarily to farmers in all countries, especially in developing countries and countries in
economic transition, these are too general prescriptions.102 Despite recognizing the
enormous contribution of farmers in the past, it does not have any plans for supporting their
innovative breeding practices. Unlike the African Model Legislation, neither the Treaty provides
them intellectual property right protection through a ‘variety certificate’,103 nor does it ensure
them right to use protected ‘breeders’ varieties' to develop ‘farmers' varieties’.104 As a result,
farmers' rights articulated in the ITPGRFA are, at best, a symbolic expression of gratitude.105
The Treaty predicates that farmers in the ‘centres of origin and crop diversity’ will continue to
make similar contributions, but it does not have any clearly devised incentive to encourage
them to do so. Against the backdrop of high yielding exotic varieties making inroads to the
farm, it will be difficult for the farmers to continue farming traditional varieties irrespective of
the yield, unless they are suitably rewarded for continuing to do so.106
101See ITPGRFA, Art. 9.1, 9.2, 9.3.
102 See ITPGRFA, Preamble and Art. 13.3.
103 Under Art. 25.2 of the African Model Legislation, farmers benefit from a variety certificate.
A variety with specific attributes identified by a community is granted intellectual protection
through a variety certificate, which does not have to meet the criteria of distinction, uniformity
and stability. This variety certificate entitles the community to have the exclusive rights to
multiply, cultivate, use or sell the variety, or to license its use without prejudice to the farmers'
rights set out in the law.
104See African Model Legislation, Art. 26. There are also suggestions that breeders' rights
should not extend to the harvested crop of a small farmer growing the breeders' protected

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plant variety. See Gurdial Singh Nijar, ‘Leal and Practical Perspectives on Sui Generis
Options’, in Third World Network (p. 9) at http://www.twnside.org.sg/title/gsn-cn.htm,
accessed on 23 February 2006.
105See Gregory Ross, ‘International Law of Sustainable Agriculture in the 21st Century: The
International Treaty on Plant Genetic Resources for Food and Agriculture’, 15, Geo. Int'l Envtl.
L. Rev. 583 (Summer 2003): 622. Author argues that farmers' rights are neither human rights
nor shared personal or intellectual property rights. It is because of the lack of clarity on the
term ‘farmers’ itself, as the treaty does not make it clear whether they are individuals or
communities or who represent them and against whom the rights are claimed. Secondly the
use of term ‘as appropriate’ and ‘subject to national legislation’ has made the right a kind of a
voluntary acknowledgement.
Declaration on the Rights of Indigenous People107
The Declaration recognizes the right of indigenous people to be equal in dignity yet retaining
the right to be different and consider themselves different, and to be respected as such, and
not to be discriminated on those grounds. The right to be equal in dignity may subsume the
right not be discriminated, but here the Declaration also stresses on the right to be different
without being discriminated, a key to the autonomy of indigenous people.
The Declaration guarantees indigenous people the right to self-government, full participation
at their choice, the right to maintain and strengthen their distinct political, economic and
cultural characteristics,108 the right against forced assimilation, dispossession, population
transfer and ethnic and racial discrimination. They also have the right to practice and revitalize
their cultural traditions and customs, the right to maintain, protect and develop the past,
present and future manifestations of their cultures, such as archaeological and historical sites,
artefacts, designs, ceremonies, technologies and visual and performing arts and literature,
intellectual, religious and spiritual property including the right to restitution,109 the right to
establish and control their education system, and the right to participate in decision making in
matters which affect their rights. The State is required to consult and cooperate in good faith
with indigenous people and obtain their prior and informed consent before adopting and
implementing legislative or administrative measures that may affect them.110
The Declaration also recognizes their right to determine and develop priorities and strategies
for exercising their right to development, their right to traditional medicine and to maintain their
health, which includes the conservation of their vital medicinal plants, animals and
minerals.111 They have the right to the land, territories and resources that they posses by
traditional ownership, occupation or use, as well as those which they have traditionally
acquired. The State is required to give legal protection to these lands, territories and
resources; the right to conservation and protection of environment and the productive capacity
of their lands, territories and resources. Similarly, they have the right to maintain, control,
protect and develop their cultural heritage, TK and traditional cultural expressions, human
and genetic resources, seeds, medicines and knowledge of the properties of fauna and flora,
oral traditions and literatures. They have the right to maintain, control, protect and develop
their intellectual property over such cultural heritage, TK and traditional cultural
expressions.112 The Declaration also recognizes the rights of indigenous people divided by
borders to maintain and develop contacts and relations with people across borders.

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106See Michael Blakeney, ‘Protection of Plant Varieties and Farmers’ Rights', E.I.P.R., 24, no.
1 (2002): 9–19, 12.
107 This Declaration was adopted by UN General Assembly on 7 September 2007. See
Declaration on the Rights of Indigenous People, A/61L.67. Among the countries of the
Himalayan region, China, India, Nepal and Pakistan have supported the Declaration while
B h u t a n a n d B a n g l a d e s h h a v e a b s t a i n e d . S e e
http://www.un.org/News/Press/docs/2007/ga10612.doc.htm, accessed on 2 December 2008.
108See Declaration on the Right of Indigenous People, Id. Art. 4, 5, 6.
109See Id. Art. 8, 11, 12, 13.
110 See Id. Art. 18, 19.
On the whole, the Declaration addresses major concerns of indigenous communities and is,
thus, useful for the development of international regime on the subject. However, as
differences exist among many States on some of the principles and language of the draft, the
draft Declaration is unlikely to be adopted by the UN very soon.113
Draft Declaration on Human Rights and Environment114
The Draft Declaration is the first international instrument that comprehensively addresses the
linkage between human rights and the environment. It demonstrates that accepted
environmental and human rights principles embody the right of everyone to a secure, healthy
and ecologically sound environment. The draft describes the environmental dimension of
already recognized human rights such as the right to life, health and culture. It declares that
all persons have the right to protection and preservation of air, soil, water, sea-ice, flora and
fauna, and essential processes and areas necessary to maintain biological diversity and
ecosystems.115 The draft recognizes the right of indigenous people to control their lands,
territories and natural resources, and to maintain their traditional way of life, including the
security in the enjoyment of their means of subsistence and protection against any action or
course of conduct that may result in the destruction or degradation of their territories,
including land, air, water, sea-ice, wildlife or other resources.116 The draft addresses issues
relating to displacement, which is one vexing concern of indigenous and local communities
that impinge upon the loss of their life, livelihood and environment. By guaranteeing ‘the right
not to be evicted from their homes or lands.except in emergencies or due to compelling
purpose as a whole and not attainable by other means’, it attempts to seriously narrow down
the abuse of ‘public purpose’ in acquisition and requisition of land for development project.117
These rights and principles may be relevant while improving the provisions of CBD relating to
the protection of TK of indigenous and local communities.
111See Id. Art. 23, 24.
112See Id. Art. 26, 29, 31.
113See the Report of James W. Zion, http://www.usask.ca/nativelaw/ddir.html, accessed on

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13 January 2006.
114See E/CN/.4/Sub.2/1994/9, Annex. 1 (1994), http://www1.unm.edu/humanrts/instree/1994-

dec.htm, accessed on 15 January 2006.
115See Id. Art. 6.
Regional Agreements
Four regional arrangements, namely, Andean Pact Decision 391 on the Common Regime on
Access to Genetic Resources; African Model Law for the Protection of the Rights of Local
Communities, Farmers and Breeders; Central American Agreement on Access to Genetic
Resources and Bio-chemicals and Related Traditional Knowledge and draft ASEAN
Framework Agreement on Access to Biological and Genetic Resources currently seem
prominent regional agreements. Among them, Andean Pact Decision 391 is a legally binding
instrument and is more elaborate than other instruments.118 The ASEAN and the Central
American agreements are still in draft form. As the name suggests, the African legislation is
only a ‘model’ legislation.
While common issues such as identification of competent national authorities, prior informed
consent, mutually agreed terms on access and benefit sharing, protection of intellectual
rights, compliance measures, and so on, are embodied as common features of these
documents, some have special focus on specific areas as well.119 In what follows, a quick
survey of each of these documents is made.
116See Id. Art. 14.
117 Where such a thing occurs, the Draft also proposes a right to negotiate concerning
eviction, timely and adequate restitution, compensation and sufficient accommodation or land.
See Id. Art. 11.
118 The member states of the Andean Pact are Bolivia, Colombia, Ecuador and Venezuela.
119 For an analysis of general provisions, see UNEP/CBD/WG-ABS/3/2.
African Model Legislation
The African Model Legislation considers TK as a priori rights which take precedence over
rights based on private interests. It attaches importance to the protection and encouragement
of cultural diversity, knowledge, technologies, innovations and practices of local communities
with respect to the conservation, management and use of biological resources. The
recognition, protection and support to the inalienable rights of local communities, including
farming communities, are stated as one of the objectives of the legislation.
The model legislation gives a very wide definition of ‘Local Community’ according to which, a
local community is ‘a human population in a distinct geographical area, with ownership over
its biological resources, innovations, practices, knowledge, and technologies governed
partially or completely by its own customs, traditions or laws’. It is mandatory for National
Competent Authority to take IPC of the local community before providing access. And where

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such consent is not taken, access carried out is invalid and subject to penal action. The
model legislation also recognizes the right of the community to refuse access; and where
provided the right to withdraw consent or place restriction on access where the activities are,
or likely to be, detrimental to the ‘integrity of their natural or cultural heritage’.120 The
legislation also recognizes the right of the communities over biological resources and the right
to collectively benefit from the use of biological resources; their innovations, practices,
knowledge and technologies acquired through generations. The right holders can exercise
collective rights as legitimate custodians and users of their biological resources.121 It also
recognizes their customary laws whether such laws are written or not.122
The legislation defines community knowledge as ‘the accumulated knowledge that is vital for
conservation and sustainable use of biological resources’, which are developed over the
years. It also includes cumulative knowledge whether documented, recorded, oral, within the
definition of innovation.123 It, thereby, opens the door for recognition of ‘community
intellectual property rights’.124 The legislation provides that the community IPR of the local
communities, including traditional professional groups, particularly traditional practitioners,
shall at all times remain inalienable whether or not they are registered, whether or not they
are published and whether the resources are in in-situ or in ex-situ in gene banks or any other
collection.125
120See African Model Legislation for the Protection of the Rights of Local Communities,
Farmers and Breeders and for the Regulation of Access to Biological Resources, 2000, Art.
19, 20. Seehttp://www.grain.org/brl/?docid=798&lawid=2312, accessed on 8 April 2010.
121See Id. Art. 16.
122See Id. Art. 17.
123See Id. Preamble and Art. 1.
124See Id. Art. 5.
Viewing all forms of life as the basis for human survival, the model legislation takes a hard
look on patenting of life forms and de-recognizes such patents.126 It states that ‘patenting of
life, or the exclusive appropriation of any life form or part or derivative thereof violates the
fundamental human right to life’.127
The model legislation recognizes farmers' right and provides IP protection to farmers' varieties
by providing a ‘variety certificate’ even when the variety does not meet the criteria of
distinction, uniformity and stability.128 Farmers' right to TK, right to participate in decision
making and sharing of benefits, and also their right to save, use, exchange and sell farm-
saved seed/propagating material and use breeder's variety to develop farmers' variety and
collectively save, use, multiply and process farm-saved seed of protected varieties is
guaranteed.129 The legislation recognizes the plant breeders' right, but makes it subject to
farmers' right.130

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Andean Pact Decision 391 and 486
Compared to the African Model Legislation, the Andean Pact Decision 391 on ‘Common
Regime on Access to Genetic Resource’ takes a soft approach to the right of TK holders. The
Pact uses the term ‘intangible component’ for any ‘knowledge, innovation or individual or
collective practice of actual or potential value associated with the genetic resources, its
byproducts or the biological resource containing them whether or not it is protected by
IPR’.131The basis for the recognition and appreciation of intangible component is stated as
one of the objectives of the Pact.132 The decision recognizes the right and authority of
indigenous, Afro-American and local communities with regard to their traditional practices,
knowledge and innovations connected with genetic resources and their derivatives.133
However, it does not consider them as necessary party in the negotiation of the access
agreement. They are party only in the distribution of benefits.134
125See Id. Art. 23.
126See Id. Art. 9.
127See Id. Art. 9. Derivative is defined as ‘a product developed or extracted from a biological
resource which may include such products as “plant varieties, oils, resins, gums, proteins
etc”’. See Id. Art. 1. Derivative in the Andean Pact is defined as ‘a molecule or combination or
mixture of natural molecules, including raw extracts of living or dead organisms of biological
origin, derived from the metabolism of living organisms’. See Andean Pact, Art. 1.
128See Id. Art. 25.
129See Id. Art. 26. Calling ‘plant varieties’ as derivatives may create problem as plant
breeders' rights are protected by the Legislation.
130See Id. Art. 26(3), read with Art. 30(2) and 31(2).
131See Decision 391, ‘Common Regime on Access to Genetic Resources’, definition at

http://www.communidadandiana.org/INGLES/normative/D391e.htm, a c c e s s e d o n 1 7
November 2008.
However, with regard to the IP protection, the Andean Community Decision 486 on Biological,
Genetic and Traditional Knowledge recognizes the right and authority of indigenous, African-
American and local communities on their collective knowledge and subordinates patent to
national and regional law in addition to international law. It provides:
The member Countries shall ensure the protection granted to IP elements shall be
accorded while safeguarding and respecting their biological and genetic heritage,
together with the traditional knowledge of their indigenous, African–American and
local communities. As a result, the granting of patents on inventions that have been
developed on the basis of material obtained from that heritage or that knowledge
shall be subordinated to the acquisition of that material in accordance with
international, Andean Community and national law.135

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Further, patent is made subject to access contract, and licence or authorization to use the TK,
where the product or process whose patent is sought is obtained or developed on the basis of
TK,136 the absence of which is liable even to nullification of the patent.137
Draft Asean Framework Agreement
The salience of the ASEAN Framework Agreement on Access to Biological and Genetic
Resources is that it recognizes independent status of TK from genetic and biological
resources. It stresses that where an access to TK is sought it should be ‘explicitly indicated’ in
the application for access. It further clarifies that ‘access to biological and genetic resources
shall not automatically mean access to the TK associated with the resources’.138 The ASEAN
draft also takes a clear stand against ‘the patenting of plants, animals, microorganisms or any
part thereof, and traditional and indigenous knowledge’. It also stands against allowing the
prospecting as well as the application of intellectual property rights on genetic materials of
human origin.139
132See Id. Art. 2.
133See Id. Art. 7.
134See Id. Art. 34 just states that access contract shall bear in mind the rights and interests
of suppliers of genetic resources…and where intangible component is used Art. 35 requires
the parties to add ‘annex stipulating the fair and equitable distribution of the profits form the
use of that component’, and such supplier of intangible components sign only the annex.
135See D e c i s i o n 4 8 6 C o m m o n I n t e l l e c t u a l P r o p e r t y R e g i m e , A r t . 3 ,
http://www.communidadandina.org/INGLES/normative/D486e.htm, accessed on 17 November
2008.
136See Id. Art. 26.
137See Id. Art. 75.
The involvement of holders of TK is a prerequisite in the process of granting PIC and in the
negotiation for benefit sharing. It also calls upon the parties to respect and comply with the
customary laws, practices and protocols of indigenous peoples and local communities.
However, the flip side of the ASEAN Framework Agreement is that it accords the sole authority
to grant PIC to the State. The indigenous people and local communities do not have a right to
reject access where such access affects their life or knowledge or culture.140
Draft Central American Protocol
The Draft Central American Protocol for Access to Genetic and Biochemical Resources and
Related Traditional Knowledge is yet to get the approval of the Central American Ministries of
Environment. The protocol is designed to regulate access to genetic and biological resources
and knowledge, and related innovations and practices existing in member States, in order to
guarantee the conditions for fair and adequate sharing of the benefits derived from access to
genetic and biochemical resources and knowledge. It contains a chapter dealing with the

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protection of TK, innovations and practices of indigenous and local communities. The draft
provides for the involvement of indigenous and local communities and other relevant
stakeholders in prior informed consent procedures.141 It also provides that the Competent
National Authority will deliver a certificate of origin establishing the legality of access to the
resources and TK.142 It further provides that the presentation of the legal certificate of origin
establishing the legality of access is to be requested by relevant IP authorities prior to the
registration of products and processes, which may involve the use of genetic resources and
TK. If the certificate of origin is not presented or access laws or the conditions of the access
contract are not respected, the delivery of any approval or registration to the applicant shall
be prevented.143 Further, the draft protocol calls on States to establish appropriate legal
mechanisms to prevent bio-piracy of genetic resources, bio-chemicals and associated TK at
the national level to implement administrative, civil and criminal sanctions.144
138See ‘The ASEAN Framework Agreement on Access to Biological and Genetic Resources’
(Draft Text, February 2000), Art. 4, http://www.grain.org/brl/?cocid=785&lawwid=1261,
accessed on 15 January 2006. It is presumably influenced by the Philippines draft.
139See Id. Art. 4.
140See Id. Art. 10, 11.
141See the Central American Protocol for Access to Genetic and Biochemical Resources and
Related Traditional Knowledge, Art. 13. Seehttp://www.grain.org/brl/?docid=859&lawid=2730
(text in Spanish), accessed on 8 April 2010.
142See Id. Art. 21.
National Initiatives
Given the diverse nature of TK and divergent views on the objectives of TK, countries do not
have a uniform approach to desirable protection measures. At present, three distinct
strategies appear to have been followed. First is the use of existing IP law; second is the
extension or adaptation of IP to protect TK by making suitable amendments or development of
new standards in the IP law; and third is the creation of stand alone sui generis laws.145
Use of Existing IP Law
Some countries keep the possibility, or are actually using the existing IP laws, such as laws of
patents,146 copyright and related rights,147 plant variety protections,148 trademarks
(including collective and certification marks),149 geographical indications,150 industrial
designs151 and trade secrets (unfair competition) law152 to protect TK. Besides, other non-IP
options such as labelling laws, laws of civil liability, the use of contracts, customary and
indigenous laws, tort law remedies including unjust enrichment, rights of publicity and
blasphemy, and so on, have also been used to regulate genetic resources and associated
knowledge.153 A few examples will illustrate it further:154
Unfair competition and trade practices laws: Unfair competition is any act of competition

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contrary to honest practices in industrial or commercial matters and includes various acts
that mislead the public or cause confusion. This law has been used for action to be taken
against false or misleading claims that a product is authentically indigenous or has been
produced or endorsed by or otherwise associated with a particular traditional community.
That way, such laws can safeguard the TK of indigenous or local community in art and
trade by disallowing outsiders to use particular signs, symbols or name of the community.
Patents: When practitioners innovate within the traditional framework, they have been able
to use the patent system to protect their innovations.155 Patent law has also been used
for defensive purposes by making preliminary application and then not following it further
(as is the practice in Japan) for disallowing third party from using the existing TK
producing evidences of prior art.156
Distinctive signs (trademarks, collective marks, certification marks, geographical
indications): Traditional signs, symbols and terms associated with TK have been protected
as marks, and have been safeguarded against third parties' claims of trade mark rights.
Many indigenous people have successfully registered their distinctive signs and collective
marks.157
The law of confidentiality and trade secrets: Among the existing IP laws, trade secret law is
the one which without much extrapolative interpretation can be used to protect at least
that aspect of TK that is kept secret by individual practitioners. Customary laws of
communities often require that certain knowledge be disclosed only to certain recipients. If
this knowledge meets the three tests: secrecy, commercial value and evidence that
reasonable efforts have been made to keep it secret, then trade secret law can be
utilized.158 The advantage of trade secret law is that it requires no filing and there is no
time bar. Further, as trade secret laws are based on ethical notions of good faith and
morality, it becomes easy to meet the standards for the protection of TK. Courts have
awarded remedies for breach of confidence when such customary laws are violated.159
Publication of sacred-secret materials has been successfully prevented using a breach of
confidence action.160
143See Id. Art. 26.
144See Id. Art. 27.
145 Stand-alone sui generis laws are created for the protection of the content of TK as such
and for the protection of TCEs or expression of folklore or for both content and expression.
See WIPo/GRTKF/IC/5/8, Para 22.
146 For instance, Costa Rica, Kazakhstan, Hungary, Japan, Korea, Moldova, New Zealand,
Romania, the Russian Federation, Uruguay and Vietnam. See WIPo/GRTKF/IC/5/8, Para 75.
147See Id. For instance, Australia, Canada, Costa Rica, Indonesia, New Zealand, Qatar,
Samoa, Uruguay and EC.
148See Id. For instance, New Zealand and Turkey.
149See Id. For instance, Australia, Canada, France, Hungary, Indonesia, Mexico, Moldova,
New Zealand, Portugal, Uruguay, Vietnam and EC.

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150See Id. For instance, France, Italy, Hungary and Indonesia.
151See Id. For instance, Australia, Costa Rica, Kazakhstan, New Zealand, Russia, Tonga and
Uruguay.
152See Id. Canada, Hungary, Indonesia and USA.
153See WIPO, ‘Intellectual Property and Traditional Knowledge’, 17.
154See WIPO, Id. p. 18.
155 For example, in 2001 China granted 3,300 patents for innovations within the field of
Traditional Chinese Medicine. See Id. p. 18.
156See WIPO/GRTKF/IC/5/8, Para 16.
157 For instance, the Seri people of Mexico, faced with competition from mass production,
registered the Arte Seri trade mark to protect authentic ironwood products that are produced
by traditional methods from the Olneya tesota tree. Conservation of this unique species of tree
was also a factor in protecting the trademarks. Also in Mexico, the appellations of origin
olinala and tequila are used to protect lacquered wooden products and the traditional spirit
derived from the blue agave plant, both products of TK that derive their unique characteristics
from indigenous genetic resources of these localities. See Id. pp. 18–19.
Adaptations of Existing IP Through Sui Generis Measures
A number of countries have adapted existing IP systems to the needs of TK holders by

extending and adapting the existing law or by introducing sui generis measures for TK
protection. Specific sui generis mechanisms have been developed within the general IP law to
deal with particular practical needs or policy objectives relating to specific subject matter. For
instance, plant genetic resources for food and agriculture have separate criteria for plant
variety certificate.161 Protection of non-original data base is another example of sui generis
protection, which can be extended to TK data. Similarly, sui generis disclosure obligations and
deposit of samples are other requirements relating to micro-organisms.162 The extension of
performers' right to those who perform ‘expression of folklore’ is another example of sui
generis IP protection.163 Proposals have been made for specific disclosure obligations in
relation to patents for inventions derived from genetic resources and associated TK.
158See Stevenson, ‘Trade Secrets’, 1154–55.
159 For instance, a group of North American indigenous communities, the Tulalip tribes, have
developed Storybase, a digital collection of their TK. Some of the TK may be disclosed for
patent review. Community leaders identify other information for use exclusively within the
Tulalip community according to customary law. The latter is protected as undisclosed
information. Digital repatriation projects that involve the restoration of indigenous knowledge
to original communities often need to apply confidentiality carefully to comply with customary
law constraints on access to the knowledge. WIPo, ‘Intellectual Property and Traditional

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Knowledge’, 19.
160 For instance, in Foster v. Mountford, members of the Pitjantjatjara Council obtained an
interlocutory injunction, on the basis of breach of confidence, to restrain the publication of a
book titled Nomads of the Australian Desert. The plaintiffs successfully argued that the book
contained information that could only have been supplied and exposed in confidence to the
anthropologist, Dr Mountford, thirty-five years ago. The plaintiffs also successfully argued that
the ‘revelation of the secrets contained in the book to their women, children and uninitiated
men may undermine the social and religious stability of their hard-pressed community’. See
WIPO, Id. p. 19.
There are also instances of IP being used or extended to protect traditional arts and crafts.
For instance, a database of official Insignia of Native American Tribes prevents others from
registering these insignia as trademarks in the USA. Canada presents a case where she has
registered 10 Petroglyph of Snuneymuxw First Nation, in order to stop the sale of commercial
items such as T-shirts, jewellery and postcards that use the signs and symbols of the
community.164 Similarly, New Zealand is in the process of bringing out a trademark law under
which registration of trademark which may offend its indigenous Maori and other communities
may be denied. India's Patent Act has been amended to clarify the status of TK within patent
law. The Chinese state IP Office has a team of patent examiners specializing in traditional
Chinese medicine.165
Defensive and Positive Protection Measures
The TK protection measures so far adopted have also been categorized as defensive and
protective measures.166 Defensive protection are measures used by the holders to prevent
unauthorized use or acquisition of IPRs through misappropriation of knowledge by third
parties. For instance, in many cases given above such as neem, basmati rice, turmeric and
Ayahuasca prior art has been used to oppose or cancel patent.
161 The grounds for plant variety certificate are that the new variety should be new, distinct,
uniform and stable.
162See Budapest Treaty on International Recognition of the Deposit of Microorganisms for the
P u r p o s e o f P a t e n t P r o c e d u r e , 1 9 7 7 . S e e
http://www.wipo.int/traties/en/registration/budapest/trtdocs_wo002.html, accessed on 8 April
2010.
163See WIPO, ‘Consolidated Analysis of the Legal Protection of Traditional Cultural

Expression’, WIPO/GRTKF/IC/5/3.
164See W I P O , ‘ C o m p o s i t e S t u d y o n P r o t e c t i o n o f T r a d i t i o n a l K n o w l e d g e ’ ,
WIPO/GRTKF/IC/5/8, Para 76.
165See WIPO, Intellectual Property and Traditional Knowledge, 20.
166 These protections are also called ‘exclusionary’ and ‘inclusionary’ methods respectively by
some countries. See the response of Singapore in WIPO/GRTKF/IC/2/5.

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Positive protection on the other hand is the term used to define the instances when the
holders of TK make use of the available IPRs, either from the classical or from sui generis
system.167 Now many countries are trying to document their TK data base in various forms.
For instance, Venezuela has established BIOZULUA, a database that compiles ‘biodiversity-
related traditional knowledge with the aim of protecting and commercializing it’. Other
countries such as Bolivia, Ecuador, Colombia and Namibia are also considering developing
systems to document TK that include registration and innovative patent systems; or the
development of legal frameworks outside the existing patent system.168 A similar initiative is
taken in India under which a national register of innovations and network of community-based
TK registries is established. Indian government has also developed a digitalized database of
Ayurveda, a traditional system of medicine popular in South Asia in five languages, which are
English, German, French, Japanese and Spanish. The programme is known as Traditional
Knowledge Digital Library (TKDL) and recorded systematically, in digital form, the knowledge
of Ayurveda, to be used by patent offices and upon an undertaking on non-disclosure.169 An
interdisciplinary team of Ayurveda experts, a patent examiner, information technology experts,
scientists and technical officers have worked for one and a half years for creating the TKDL of
Ayurveda. TKDL seeks to give recognition and legitimacy to the existing TK and enable
protection of such information from getting patented.170 Similarly, China offers a Traditional
Chinese Medicine Patents Database, recording traditional acupuncture, herbal medicine,
animal-derived drugs and mineral drugs in a format searchable by patent examiners.171
These initiatives of India and China can be taken as both defensive and positive measures to
protect TK.
167 As the IPRs are exercised by saying no to third parties, they also have defensive
component.
168See Amiott, ‘Investigating the Convention on Biological Diversity's Protections’, 25–26.
169See Chander and Sunder, ‘The Romance of the Public Domain’, 1363.
170See WIPo, ‘Intellectual Property and Traditional Knowledge’, 29.
171See Chander and Sunder, ‘The Romance of the Public Domain’, 1358. Besides, some
initiatives have been taken by non-governmental organizations, such as The Society for
Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) of
Ahmedabad, India, the People's Biodiversity Registers programme, sponsored by WWF India
and coordinated with the Centre for Ecological Sciences of the Indian Institute of Science
(IISc), and the Foundation for Revitalization of Local Health Traditions (FRLHT) from
Bangalore, India. Navdanya has established its own seed bank and organic farm spread over
an area of 20 acres in Uttarakhand, in North India. Similarly, a Delhi based environmental
action group, Kalpavriksh, has started a Veej Bachao Andolan (Save the Seed Movement),
with farmers in the foothills of Himalaya. See Ashish Kothari, ‘Access and Benefit Sharing:
Option for Action in India’, in Access to Genetic Resources, eds John Mugabe, Charles Victor
Barber, Gudrun Henne, Lyle Glowka and Antonio La Vina (Bonn: IUCN, 1997), 209–10. The
WIPO keeps available at its website the access to a Chinese traditional medicine patents
database, India's ‘Health Heritage Test Database’ and ‘Traditional Knowledge Digital Library of
Ayuverda’, as well as a World Bank's ‘Indigenous Knowledge Database’. See de Carvalho,
‘Protection of Traditional Biodiversity-Related Knowledge’, 61–62.

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Another form of defensive mechanism that a few countries such as Columbia and regional
alliances such as EC have adopted are disclosure of information such as origin of genetic
resources and associated TK used in the development of claimed inventions, as a possible
measure in the processing of patent applications.172 India, for instance, declared that an
invention which, in effect, is TK or which is an aggregation or duplication of known properties
of traditionally known component or component is non-patentable.173 Similarly, there is an
express ban on granting Exclusive Marketing Rights to the Indian system of medicine
available in the public domain.174 A new provision was added to the grounds of opposition
and revocation regarding the prior art of TK. According to this provision, the knowledge
available within local and indigenous communities, oral or otherwise and within India or
elsewhere, will be treated as prior art.175 Similarly, under the Indian law, patent can be
opposed or revoked if the information is not given or wrongly mentioned.176 India also
emphasizes on disclosure of origin or source, PIC and benefit-sharing arrangement of generic
resource and associated knowledge. Besides the defensive mechanism in patent, there are
also instances where trademark law has been defensively used to protect traditional symbols
or other distinctive signs. For instance, Portugal has made a provision under which it accords
indirect protection to distinctive signs and marks that is related to TK. Finally, recognition of
customary laws of the communities, their protocols and practices which, among others, define
custodial rights and obligations over TK, including obligations to guard it against misuse or
improper disclosure, or benefit sharing and dispute settlement, may also act as both
defensive and positive protection. A few countries like the Philippines, Australia and Malaysia
are adopting the recognition of customary laws and practices of indigenous communities as a
strategy to protect TK.177
172 However, in case of European Community, the disclosure requirement is without prejudice
to the processing of the patent application.
173See Indian Patent Act as amended in 2002 (no. 38 of 2002), Section 3(p).
174 N.S. Gopalakrishnan, ‘Trips and Protection of Traditional Knowledge of Genetic

Resources: New Challenges to the Patents System’, E.I.P.R. 27, no. 1 (2005): 11–18 at 17,
citing fn. 47.
175See Id. p. 17, citing fn. 48.
176See Indian Patent Act as amended in 2002 and 2005.
Sui Generis Legislations
In order to present a comparative view of national practice, the laws of Brazil, Panama,
Portugal and Peru, which have brought out stand alone sui generis legislation for protecting
TK, is discussed under this subhead. Except for the law of Panama, the other three laws
seem to focus on regulating access to genetic resources and associated TK as envisaged in
Article 8(j) of CBD. These stand-alone sui generis laws contain both positive and defensive
protection measures.
The Brazilian law of 2001178 is focused on protecting TK associated with genetic resources. It

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defines associated TK as ‘information or individual or collective practices of indigenous or local

community having real or potential value and associated with genetic heritage’.179 The law
lays down rights and obligations concerning, among others, access to TK relating to genetic
heritage that is relevant to the conservation of biological diversity, the integrity of the country's
genetic heritage and the use of its components, fair and equitable sharing of benefits, and
access to and transfer of technology for the conservation and use of biological diversity.180
The law does not require any formal procedure of registration of TK. Traditional knowledge is
protected against illegal use and exploitation and other actions that are harmful or are not
authorized by the Management Council. The State recognizes the right of indigenous and
local communities to decide on the use of their TK associated with the genetic heritage.181
Indigenous or local communities that create, develop, hold or preserve TK associated with
genetic heritage are guaranteed the right to:
have the origin of the access to TK mentioned in all publications, uses, exploitation and
disclosures;
prevent unauthorized third parties from using or carrying out tests, research or
investigations relating to associated TK;
disclosing broadcasting or re-broadcasting data or information that incorporate or
constitute associated TK; and
obtain profit from economic exploitation by third parties of associated TK, the rights which
are owned by the community.
177 For instance, the Philippines has passed both the Aboriginal Rights Act 1997 and the
Executive order No. 247 to recognize customary laws. In addition, the States of Sabah and
Sarawak, East Malaysia, have ‘native customary laws [that are] are administered and enforced
by Native Courts established by relevant state laws’. Malaysia has passed the Aboriginal
Peoples Act of 1954 (to Project the well-being and advancement of West Malaysia's aboriginal
peoples). In addition, national case law has also shown increased respect for customary laws.
Similarly, Australia has also enacted provisions that include the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 (enacted to protect significant traditional Aboriginal
areas and objects), and the Native Title Act of 1993 (defining communal, group, or individual
rights to land and water for Aboriginal and Torres Strait Islanders). See Amiott, ‘Investigating
the Convention on Biological Diversity's Protections’, 27.
178See P r o v i s i o n a l M e a s u r e s N o . 2 . 1 8 6 – 1 6 o f 2 3 A u g u s t 2 0 0 1 ( B r a z i l ) .
Seehttp://www.wipo.int/tk/en/documents/word/brazil-provisional-measure.doc, accessed on 8
April 2010.
179See Id. Art. 7(II).
180See Id. Art. 1.
181See Id. Art. 8.
However, the protection of TK cannot impede the preservation, use and development of TK by
indigenous or local community, and also should not apply to parties who use TK for private
purposes with no commercial aim or for experiments.182 There is also a caveat in the law
which says that protection of TK does not ‘prejudice or limit rights pertaining to intellectual

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property’.183
The law also provides that TK associated with genetic heritage may be obtained by the
community, even if only one single member of the community holds that knowledge. Thus,
the law also resolves the issue of individual versus collective ownership of TK.184 On the
issue of benefit sharing, the Brazilian law follows the general patterns of access legislations
which include profits, royalties, technology access and transfer, unrestricted licensing of
products or services and training of human resources.185 The TK holders are entitled to
assign their rights and conclude contracts which become valid only with the approval of
Management Council.186 The law considers any breach of its provision as administrative
offence on which the possible punishment ranges from warning to cancellation of registration,
intervention in establishment and ban on signing of contracts with public authorities for up to
five years.187
Similarly, in 2000, Panama adopted a law titled ‘Special Intellectual Property Regime
Governing the Collective Rights of Indigenous People for the Protection and Defense of their
Cultural Identity and their Traditional Knowledge and Other Provisions’.188 This law takes lato
sensu meaning of TK that includes traditional cultural expressions as well.189 It also defines
‘collective indigenous rights’.190
182See Id. Art. 8(III), Art. 43.
183See Id. Art. 8(IV).
184See Id. Art. 9.
185See Id. Art. 25.
186See Id. Art. 27, 28, 29.
187See Id. Art. 30.
The law of Panama tried to protect inventions, models, drawings and designs, and
innovations contained in the pictures, figures, symbols, illustrations, old carved stones and
others; likewise, cultural elements of their history, music, art and traditional artistic
expressions, capable of commercial use. The law tries to protect them through a special
registration system, promotion, commercialization of their rights in order to stand out the value
of the indigenous cultures and to apply social justice.191 The law also recognizes the
collective rights of the indigenous communities on their musical instruments, music, dances or
forms of performance, and oral and written expressions. Traditional arts and the techniques
for making them, their processing, elaboration, combination and any other cultural expression
of traditional aspects of these communities are also protected.192 The law provides that TK
and cultural expressions cannot be the object of any form of exclusive right by unauthorized
third parties under the intellectual property system such as copyrights, industrial models,
trademarks, geographical indications and others, unless the application is filed by the
indigenous community.193

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Protection is granted upon registration.194 Applications can also be filed by respective

traditional general congress or indigenous traditional authorities. The administrative
procedures are simple and do not also require the representation by lawyers.195 The Law
also gives a list of items eligible for protection.196 The law also provides solution to TK shared
among more than one community by providing that in such case the benefits accrue to all of
them collectively according to customary law. The law also has a prior use exception.197
188See Law no. 20 of 26 June 2000 regulated by Executive Degree no. 12 of 20 March 2001.
See http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=3400, accessed on 8 April 2010.
189See Executive Decree no. 2 Art. 2(III). It defines TK as:
[C]ollective knowledge of an indigenous people based on the traditions of centuries,

and indeed millennia, which are at once tangible and intangible expressions
encompassing their science, technology and cultural manifestations, including their
genetic resources, medicines and seeds, their knowledge of the properties of fauna
and flora, oral traditions, designs and visual and representative art.
190See Id. Art. 2(v). It is defined to mean ‘the indigenous cultural and intellectual property
rights relating to art, music, literature, biological, medical and ecological knowledge and other
subject matter and manifestations that have no known author or owner and no date of origin
and constitute the heritage of an entire indigenous people’.
191See Law no. 20, Art. 1.
192See Id. Art. 4, 5. For example, of natural dyes, such as the carved tagua (ivory plant) and
wood (cocobolo and nazareno), traditional baskets, nuchus, chaquiras, chacaras and so on.
193See Id. Art. 2.
194 The General Office for the Registry of the Industrial Property of the Ministry of the
Commerce and Industry is referred to as DIGERPI.
The law of Panama provides for administrative, civil and criminal sanctions against
infringement of TK. The sanction may apply in addition to the forfeiture and destruction of the
products.198 The owners of the rights may assign and license the use of registered collective
rights and there is no provision for compulsory licensing.199
Another South American country, Peru, also has a sui generis law200 on the protection of
collective knowledge of the indigenous community that mainly focuses on biodiversity-based
collective knowledge of indigenous people. This law defines collective knowledge as
‘accumulated, trans-generational knowledge evolved by indigenous peoples and communities
concerning the properties, uses and characteristics of biological diversity’.201
The law recognizes the rights and power of indigenous people and communities to dispose of
their collective knowledge as they see fit. These people exercise their right through their
representative organizations. The law does not recognize the existence of individually owned

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TK.202
Under the Peruvian law, access to collective TK for scientific, commercial and industrial
application is based on prior informed consent of the representative organizations of the
indigenous people.203 Indigenous people possess the right to give consent to the use of TK
under a license contract to be approved by a national focal point.204 In the event of access
for the purpose of commercial or industrial application, license agreement should provide due
reward for the access and equitable sharing of benefits.205
195See WIPo/GRTKF/IC/5/8, Para 87.
196See Executive order 12, Art. 3.
197See Law no. 20, Art. 23. Small non-indigenous artisans can manufacture and market
reproduction of indigenous art but will not be able to claim the collective rights recognized by
law to indigenous group.
198See Law No. 20, Art. 21.
199See WIPo/GRTKF/IC/5/8, Para 90.
200See Law No. 27,811 of 10 August 2002 is titled as ‘Law Introducing a Protection of Regime
for the Collective Knowledge of Indigenous Peoples Derived from Biological Resources’.
Seehttp://www.grain.org/brl/?docid=81&lawid=2041, accessed on 8 April 2010.
201See the Law Art. 2(b). The intangible components referred to in Decision 391 of the
Commission of the Cartagena Agreement, is included in this type of collective knowledge.
202See Id. Art. 10.
203See Id. Art. 6.
204See Id. Art. 27. The national focal point is called Office of Inventions and New Technology
of the National Institute for the Defense of Competition and Intellectual Property (INDECOPI).
The Peruvian law distinguishes three categories of TK according to its level of novelty:
Collective knowledge in public domain for more than 20 years.206

Collective knowledge in public domain for less than 20 years.207
Collective knowledge not publicly disclosed.208
The law also provides for three types of registers of collective knowledge of indigenous
people: Public National Register, which contains knowledge in public domain; Confidential
National Register, which cannot be consulted by third parties; and Local Register.209 Any
person, through his/her representative organization may apply for registration either in the
Public National Register or Confidential National Register.210 The purpose of these registers

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is:211
to preserve and safeguard the collective knowledge of indigenous people and their rights
therein; and
to provide the focal point with such information as enables it to defend the interests of
indigenous people where their collective knowledge is concerned.
205See Id. 7. The law establishes two minimum royalty rates: a percentage, which shall not
be less than 10 per cent of the value, before tax, of the gross sales resulting from the
marketing of goods developed on the basis of collective knowledge, goes to the Fund for the
Development of Indigenous Peoples. See Id. Art. 8. Additionally, the licensing agreement
should contain a statement of the compensation that the indigenous people receive for the
use of their collective knowledge. Such compensation includes an initial monetary or other
equivalent payment, and a percentage of not less than 5 per cent of the value, before tax, of
the gross sales resulting from the marketing of the goods developed directly and indirectly on
the basis of the said collective knowledge. See Id. Art. 27(c).
206 The knowledge, which has been made accessible to persons other than the indigenous
peoples by mass communication media such as publication, and where it has become
extensively known outside the confines of the indigenous peoples and communities, falls into
this category. Here, the community gets nothing. See Id. Art. 13.
207 In this category of knowledge, the holders do not have right to oppose the use but can
claim payment. Here, a percentage of the value, before tax, of the gross sales resulting form
the marketing of the goods developed on the basis of that knowledge has to be set aside for
the Fund for the development of indigenous people. See Id. Art. 13.
208 This is subject to PIC and equitable sharing of benefits.
209See the Law, Art. 15, 17, 18.
210See Id. Art. 19.
211See Id. Art. 16.
The national focal point is also vested with the responsibility of sending information contained
in Public National Register to the main patent offices of the world for opposing pending patent
application, disputing granted patents or intervening in the grant of patents for goods or
processes produced or developed on the basis of collective knowledge.212
Under the Peruvian law, indigenous peoples possessing collective knowledge are to be
protected against the disclosure, acquisition or use of their collective knowledge without their
consent or in an improper manner provided that the knowledge is not in the public domain.
Similarly, it also protects these people against unauthorized disclosure where a third party
legitimately had access to collective knowledge covered by a safeguard clause.213 Individual
complaints as well as representative suits against infringement are possible under the said
law.214 Actions may also be taken suo motu by the national focal point.215 Interestingly,
where an infringement is alleged, the burden of proof lies on the defendant.216 Violation of

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the rights gives rise to an imposition of fine.217
The last among the countries having sui generis legislation relating to TK is Portugal.218 The
Portuguese law is of broad canvas that covers access-related issues under CBD and does not
limit itself only to the protection of ‘associated knowledge’. The objectives of the law is to
establish ‘the legal regime of registration, conservation, legal custody and transfer of plant
endogenous material with an actual or potential value for agriculture, agro-forestry and
landscape-related activities, including local varieties and spontaneous material…as well as
associated knowledge thereto’.219 The law defines TK.220
212See Id. Art. 23. For this purpose, INDECOPI sends information entered in the Public
National Register to the main patent offices of the world in order that it may be treated as prior
art in the examination of the novelty and inventiveness of patent applications. Where
registration has been made or licence granted in violation of any of the statutory provisions or
on the basis of false or inaccurate data, it can be cancelled by INDECOPI either suo motu or
on the application by a third party. See Id. Art. 34.
213See Id. Art. 42.
214See Id. Art. 45.
215See Id. Art. 43.
216See Id. Art. 44.
217See Id. Art. 62.
218See Portugal's Decree–Law No. 118, of 20 April 2002.
219See Id. Art. 1.
220See Id. Art. 3. It is defined to mean:
[A]ll intangible elements associated with the commercial or industrial utilization of

local varieties and other endogenous material developed in a non-systematic manner
by local populations, either collectively or individually, which form part of the cultural
and spiritual traditions of those populations, including, but not limited to, knowledge
relating to methods, processes, products and denominations that are applicable in
agriculture, food and industrial activities in general, including handicrafts, trade and
services, informally associate to the use and preservation of local varieties and other
endogenous and spontaneous material that is covered by the present law.
Under the law of Portugal, TK is eligible for protection against reproduction or commercial or
industrial use of registered TK.221 The holders of knowledge are accorded the right to:222
object to its direct or indirect reproduction, imitation and/or use by unauthorized third
parties for commercial purposes;
assign, transfer or license the rights in the TK, including transfer by succession; and

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exclude from protection any TK that may be covered by specific industrial property
registrations.
Protection is conferred upon registration by local communities.223 The registration of TK is

effective for a period of 50 years from application, which can be renewed for an identical
period.224 Civil, criminal and administrative actions are available against infringement of
TK.225
International Attention on Traditional Knowledge
In recent years protection of TK has received increased attention in various international

forums, including CBD, World Intellectual Property organization (WIPo), International Labor
organization (ILo), Food and Agriculture Organization (FAO), World Health Organization
(WHO), UN Educational, Scientific and Cultural Organization (UNESCO), and the UN
Commission on Human Rights. It is because the scope of work of each of these institutions
touches upon various aspects of the TK. For instance, a knowledge system of indigenous and
local community that uses a plant variety for medicinal purpose is relevant to CBD to the
extent it relates to biodiversity, WIPO to the extent it relates to knowledge and protection of
knowledge, FAO to the extent it relates to plant variety in food and agriculture, WHO to the
extent it relates to medicine and health of people, and ILO to the extent it relates to
recognition of labour and indigenous people. And since the issue relates to the minority, and
their right to health and survival, it is also a human rights issue.
221See Id. Art. 3(2).
222See Id. Art. 3(4).
223See Id. Art. 3(5) read with Art. 9.
224See Id. Art. 3(6).
225See Id. Art. 13, 14, 15, 16.
Among the various institutions the first international system to study TK was the WHO. It, in
1978, recognized traditional medicine as a source of primary health care in the Primary Health
Care Declaration at Alma Ata.226 Similarly, in 1994, the UN Convention to Combat
Desertification (CCD) provided for the protection of TK in the ecological environment as well
as the sharing of benefits arising from any commercial utilization of this TK.227 In 2000, the
United Nations Conference on Trade and Development (UNCTAD) in its Plan of Action
stressed the importance of studying ways to protect TK, innovations and practices of local and
indigenous communities and enhance cooperation on research and development on
technologies associated with the sustainable use of resources. In 2004, UNCTAD adopted the
Sao Paulo Consensus, where it said that the ‘lack of recognition of IPRs for the protection of
TK’ was an issue affecting development gains for the international trading system and trade
negotiations.228 Even though the WTO/TRIPS does not have any specific provision relating to
TK, after the Doha Declaration in 2001, TK and folklore have appeared in the radar of TRIPS
Council as an issue for examination. While the works at the WHO and FAO are already
discussed, in what follows, a cursory look on the work currently being undertaken at CBD and

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the WIPO is made.
Activities at CBD
The issues relating to TK, innovations and practices of indigenous and local communities
have also arisen frequently in the Conference of the Parties (COP), discussions on intellectual
property rights (IPRs), access to genetic resources and benefit sharing and forest biological
diversity. The COP III agreed upon the need for a workshop to advise the COP on the
possibility of developing a Work Plan on Article 8(j) and related provisions, and to examine the
need for an Intersessional Working Group or subsidiary body to consider the role of TK,
innovations and practices relevant to the conservation and sustainable use of biological
diversity.229 Following this, the COP IV decided to establish an Ad-hoc Open-ended
Intersessional Working Group to address the implementation of Article 8(j) and related
provisions.230 The mandate of the Working Group was extended to undertake specific tasks
under the programme of work, to review progress on its implementation, and to make
recommendations for further actions.231 The Working Group was asked to develop guidelines
on a number of areas such as:
guidelines for the development of mechanisms, legislation or other initiatives to ensure

benefit sharing and prior informed consent;232
guidelines or recommendations for the conduct of cultural, environmental and social
impact assessments regarding proposed developments on sacred sites and on lands or
waters occupied or used by indigenous and local communities;233
guidelines to assist Parties and Governments in the development of legislation or other
mechanisms to implement Article 8(j);234
guidelines for the respect, preservation and maintenance of TK, innovations and practices
and their wider application in accordance with Article 8(j);235
guiding principles and standards to strengthen the use of TK and other knowledge for the
conservation and sustainable use of biodiversity;236
guidelines and proposals for national incentive schemes for indigenous and local
communities to preserve and maintain their TK;237
guidelines to facilitate the repatriation of information in accordance with Article 17(2);238
and
standards and guidelines for the reporting and prevention of unlawful appropriation of TK
and related genetic resources.239
226See WIPO, ‘Intellectual Property and Traditional Knowledge’, 13.
227See UN Convention to Combat Desertification 1994, Art. 17(1)(c) Parties undertake to:
[P]rotect, integrate, enhance and validate traditional and local knowledge, know-how
and practices, ensuring, subject to their respective national legislation and/or
policies, that the owners of that knowledge will directly benefit on an equitable basis
and on mutually agreed terms form any commercial utilization of it or form any
technological development derived form that knowledge.
228See D r a f t S a o P a u l o C o n s e n s u s , T D / L . 3 8 0 1 6 J u n e 2 0 0 4 a t

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http://www.unctad.org/en/docs/tdl380_en.pdf, accessed on 19 January 2006.
229See COP decision III/14, Annex. Para 1(g).
230See COP decision IV/9, Para 1.
231See COP decision V/16, Para 9.
232See COP decision V/16, Annex. II, element 4, task 7.
235See COP decision V/16, Annex. III, element 3, task 6.
Besides the above, the COP VI also requested the Working Group to address the issue of sui
generis systems for the protection of TK. The Working Group has a mandate to make
concrete proposals on how to translate the commitments stated in Article 8(j) into reality. The
group's main tasks include developing guidelines:240
to ensure that indigenous and local communities obtain a fair and equitable share of the
benefits arising from the use and application of their TK;
to ensure that private and public institutions interested in using such knowledge obtain
the prior informed approval of indigenous and local communities;
to regulate how impact assessments are carried out regarding any proposed development
on sacred sites or on lands and waters occupied or used by indigenous and local
communities; and
to assist Governments in the development of legislation or other mechanisms to ensure
that TK, and its wider applications, is respected, preserved and maintained.
The Ad-hoc Open-ended Working Group on ABS, which is supposed to develop an

international regime on access and benefit sharing, is asked to work in coordination with the
Working Group under Article 8(j). By the COP IX, the Group has been able to produce a
bracketed text on international regime, which seemingly requires more discussions to finalize
it.241
Activities at the WIPO242
During 1998 and 1999, WIPO conducted fact-finding missions in 28 countries in order to
identify the IP-related needs and expectations of TK holders and consulted more than 3,000
persons representing governmental and non-governmental sectors, indigenous and local

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communities, academics and researchers.243 Around the same time, WIPO started
addressing issues relating to IP and genetic resources, TK and folklore.244 WIPO has done a
deep analysis of TK and related issues, surveyed existing IP practices of countries, and
attempted to draw out the definition of TK and draft policy guidelines. WIPO, through its
Intergovernmental Committee on Intellectual Property and Genetic Resources, TK and
Folklore (IGC) is working to develop a shared international understanding of how best to
protect TK and TCEs.245
239 See COP decision V/16, Annex. III, element 6, task 10.
240Seehttp://www.biodiv.org/programmes/socio-eco/traditional/default.asp, accessed on 18
January 2006.
241See CBD/COP IX/12, Annex. 1.
242 WIPO administers 21 international treaties related to intellectual property, provides

countries with technical assistance to improve IP legislation, and administers global protection
systems and services that facilitate the acquisition of protection for various forms of IP. See
Stevenson, ‘Trade Secrets’, 1128.
In this process, after working on several definitions of the TK, WIPO has now advanced a
stricto sensu and almost neutral definition of TK that takes it as:
[K]nowledge which is generated, preserved and transmitted in a traditional context;

distinctively associated with the traditional or indigenous culture or community which
preserves and transmits it between generations; linked to a local or indigenous
community or other group of persons identifying with responsibility, such as a sense
of obligation to preserve the knowledge, or a sense that to permit misappropriation or
demeaning usage would be harmful or offensive, a relationship that may be
expressed formally or informally by customary law; knowledge in the sense that it
originates from intellectual activity in a wide range of social, cultural, environmental
and technological contexts; and identified by the community or other group as being
TK.246
Though it is difficult to say whether or not this definition will be adopted ultimately in the
international regime on TK, the definition seems fairly neutral yet comprehensive. This
definition concentrates on knowledge as such and does not tie up with one particular policy
goal or subject area of knowledge such as biodiversity or medicinal health or the form or
expression. The following characteristics can be deduced from the definition:247
The context of creation: It should clearly be traditional in the sense that it originates in a
way that makes it inseparable from the culture and the identity of the community.
Association with the community: It should have a distinctive link to the community which
creates the knowledge and serves as a means for their cultural identification.
Link to the community through a sense of ownership or responsibility: It thereby rejects
misappropriation or demeaning usage that goes counter to customary obligations to
preserve and respect the knowledge.
The requirement that it be knowledge: Knowledge can be of any field but cultural objects
with no knowledge content fall outside the scope of TK.

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243 W I P O , ‘ I n t e l l e c t u a l P r o p e r t y N e e d s ’ . Also see t h e r e p o r t in

http://www.wipo.int/tk/en/tk/ffm/report/final/pdf/part1.pdf, accessed on 19 January 2006.
244See ‘Matters Concerning IP and Genetic Resources, Traditional Knowledge and Folklore—
An Overview Document Prepared by the Secretariat’, WIPOGRTKF/IC/1/3, Para 23.
245 The IGC is holding meeting to come to a common understanding on the issue but by up
to the 13th meeting no agreement has been reached. See WIPO/GRTKF/IC13/10, 13 October
2008.
In 2000, the WIPO General Assembly established the Intergovernmental Committee (IGC) on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore as a forum
for discussion of intellectual property issues related to TK.248 Responding to the calls for
WIPO to move towards the drafting of a legally binding international instrument to protect
TK,249 the IGC developed two sets of draft provisions: one for the protection of TCEs, and the
other for the protection of TK. These drafts embody policy objectives and core principles for
the protection of TCEs and for the protection of TK respectively.250
The Draft Policy Objectives and Core Principles (draft Policy) on TK,251 in its Policy
Objectives, inter alia aim to:
recognize the holistic nature of TK and its intrinsic value;

promote respect for TK system for the dignity, cultural integrity and intellectual and
spiritual value of the TK holders;
meet the actual needs of holders of TK, be guided by their aspirations and expectations,
respect their rights as holders and custodians of TK, contribute to their welfare, reward the
contribution made by them to their communities and to the progress of science and
socially beneficial technology;
empower the holders of TK and acknowledge the distinctive nature of TK system and the
need to tailor solutions that meet the distinctive nature of such system bearing in mind
that such solution should be balanced and equitable, should ensure that conventional IP
regime operate in a manner supportive of the protection of TK against misappropriation
and effectively empower the TK holders to exercise due rights and authority over their own
knowledge;
support TK systems by respecting continuing customary use and development and
custodianship;
contribute to the preservation and safeguarding of TK in accordance with relevant
customary practices, norms, laws and understandings of TK holders, for the primary and
direct benefit of TK holders in particular, and the benefit of humanity in general;
repress misappropriation of TK and other unfair commercial and noncommercial activities;
promote innovation and creativity by integrating such knowledge into educational initiatives
among the communities for the benefit of the holders and custodians of TK;
ensure prior informed consent and exchanges based on mutually agreed terms;
promote equitable benefit sharing including monetary and non-monetary benefits arising

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form the use of TK;

preclude the grant of improper IP rights to unauthorized parties by requiring in particular,
as a condition for the granting of patent rights, that patent applicants for inventions
involving TK and associated genetic resources disclose the source and country of origin of
those resources, as well as evidence that prior informed consent and benefit sharing
conditions have been complied with in the country of origin;
enhance transparency and mutual confidence; and
complement the protection of traditional cultural expressions.252
248 In fact, WIPO was working on folklore since late 1970s, and in 1982 it has even produced
a Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit
Exploitation and Other Prejudicial Actions. See Id. Para 30. The other two themes were
because of the common issues such as collective use, incremental value and so on.
249See Peter Drahos, ‘Intellectual Property and Pharmaceutical Markets: A Nodal

Governance Approach’, 77, Temp. L. Rev. 401 (Summer 2004): 420.
250See ‘The Draft Policy Objectives and Core Principles’, revised in the Seventh and Eighth
sessions of the WIPO Intergovernmental Committee and a Revised version of ‘Objectives and
Principles’ is prepared. See W I P O / G R T K F / I C / 9 / 5 . See
alsohttp://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html, a c c e s s e d
on 30 January 2006.
251See W I P O / G R T K F / I C / 7 / 5 A n n e x 1 . a t
http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_7/wipo_grtkf_ic_7_5-annex1.doc,
252See WIPO, ‘The Protection of Traditional Knowledge: Revised Objectives and Principles’,
WIPO/GRTKF/IC/9/5 Annex.
The draft Policy also lay down a set 10 General Guiding Principles in which responsiveness to
the needs and expectations of TK holders, recognition of rights, effectiveness and
accessibility of protection, flexibility, equity and benefit sharing are important.
Among the Substantive Provisions, the draft Policy defines misap-propriation253 and provides
legal protection against acquisition of TK by various illegal and unfair means. It also provides
legal means against acquisition of TK in violation of PIC, mutually agreed terms, false claim of
ownership and commercial use.254
As to the form of protection, the draft Policy, taking note of diverse methods adopted by
countries for the protection, adopts a flexible approach and states that the protection may be
extended through a range of legal measures, including inter alia, special law on TK; laws on
IP; laws governing unfair competition and unjust enrichment; the law of civil liability, including
torts and liability for compensation; criminal law; regimes governing access and benefit
sharing or any other law of any combination of these laws. The focus of the provisions is the
misuse and misappropriation beyond its traditional context and not the diverse use within the
traditional context.255
The draft Policy also talks about the eligibility of protection and beneficiaries of protection.

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Protection is extended to TK, which is generated, preserved and transmitted in a traditional

and intergenerational context and is distinctively associated with a traditional or indigenous
community or people who is recognized as holding the knowledge through a form of
custodianship, guardianship, collective ownership or cultural responsibility.256
The beneficiaries of protection are communities as well as individuals within the community
who generate, preserve and transmit the knowledge in a traditional context and are
associated with it.257 It also provides that the protection of TK should not adversely affect the
continued availability of TK for the customary practice, exchange, use and transmission. It
should not also adversely affect the use of traditional medicine for household purposes; use
in government hospitals, especially by TK holders attached to such hospitals; or use for other
public health purposes.258
253 Any acquisition, appropriation or utilization of TK by unfair or illicit means constitutes an

act of misappropriation. Misappropriation may also include deriving commercial benefit from
the acquisition, appropriation or utilization of TK when the person using that knowledge
knows, or is negligent in failing to know [emphasis added] that it was acquired or appropriated
by unfair means; and other commercial activities contrary to honest practices that gain
inequitable benefit from TK.
254See WIPO, ‘The Protection of Traditional Knowledge: Revised Objectives and Principles’,
WIPO/GRTKF/IC/9/5 Annex. (Substantive Provisions Art. 1).
255See Id. (Substantive Provisions Art. 3.1).
256See Id. (Substantive Provisions Art. 4).
The holders of TK are entitled to fair and equitable benefits which may include both monetary
and non-monetary benefits. It is also clearly mentioned that the use of TK beyond traditional
context should mention its source, acknowledge its holders, and use it in a manner that
respects the cultural values of its holders. The holders of TK are provided with a legal means
where benefits are not shared or the source or the holder of TK is not acknowledged.259
Given the regional nature of TK, the draft Policy also provides that eligible foreign holders of
TK should enjoy benefits of protection to at least the same level as TK holders who are
nationals of the country of protection.260
Regarding PIC, the draft Policy provides that it should govern any access to TK. It also
recognizes the right of the holders of TK to grant PIC or to approve the grant of such consent
by an appropriate national authority, as provided by applicable national law. By making this
right subject to national law, it implicitly admits the sovereign right of the State on matters
relating to genetic resources and TK.261 Similarly, national authorities are also empowered to
exclude from the PIC the fair use of TK that is already available to the general public,
provided that users of that TK provide equitable compensation for industrial and commercial
uses of that TK.262
Regarding the duration of protection of TK against misappropriation, the draft policy provides

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that it should last as long as the TK fulfils the criteria of eligibility for protection. Additional and
more extensive protection are also possible if the national or regional arrangement provides
for such measures.263 The draft clarifies that eligibility for protection of TK against
misappropriation should not require any formalities. Where registers of TK are maintained,
specific forms of protection may be devised.264
Traditional knowledge is broadly divided into two groups: biodiversity-related and non-
biodiversity related (that is, independent or self-standing). In the former case, access to and
use of TK should be consistent with national laws regulating access to those components of
biodiversity. However, the draft Policy clarifies that ‘permission to access and/or use traditional
knowledge does not imply permission to access and/or use associated genetic resources and
vice versa’.265
262See Id. (Substantive Provisions Art. 8.3).
In a nutshell, the revised draft Policy Objectives and Core Provisions for the protection of
traditional knowledge, currently being developed by the IGC of the WIPO, are a good ground
work for the development of international regime on the issue. They intend to recognize the
value and promote respect for TK systems, respond to the actual needs of the holders of TK,
repress misappropriation of TK and other unfair and inequitable uses, protect tradition-based
creativity and innovation; support TK systems and empower TK holders, promote equitable
benefit sharing from the use of TK and promote the use of TK for a bottom-up approach to
development. The approach to IPR issue is also changed in the revised draft. Even though
the draft accepts the principle of respect for cooperation with other international and regional
instruments and processes, unlike the earlier draft it does not state that TK protection should
be consistent with existing IP systems.266 Yet, unless the existing provisions of the TRIPS are
reviewed, there are chances that the protection measures that are now developed, even if
transformed into hard law instrument (though it is not yet sure whether or not that happens)
will still be trumped out by the provision of TRIPS.
Besides independent work of IGC on IP, Genetic Resources and Traditional Knowledge and
Folklore, the Conference of the Parties of CBD and WIPO have also collaborated on a
number of fronts. For instance, at the request of the COP VI/24, the WIPO prepared a
technical study on methods requiring disclosure in the patent application of genetic resources
and TK used, their origin and source, and evidence of PIC. Accordingly, the IGC prepared the
Technical Study report on ‘Disclosure Requirements in Patent Systems Related to Genetic

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Resources and Traditional Knowledge’,267 which was adopted by the WIPO General
Assembly at its 30th Session in 2001.
The Report takes the view that proposals for enhanced disclosure relating to genetic
resources or TK seek to bridge two legal regimes and policy systems. The study reviews the
range of possible requirements on the basis of a set of five questions.268 It highlights how
disclosure functions and how it may serve to enhance disclosure relevant to genetic resources
and TK. It does not pass judgement on the consistency of specific provisions in national laws
with international treaties. Rather, it focuses on the ways patent law systems can support and
give effect to policy interests connected with the interaction between genetic resources and
TK and claimed inventions. Given the divergent approach of many countries on the issue of
disclosure, its implication, and use of specific legal tools to bridge the gap, the study is
offered as a resource to facilitate the continuing debate and not to prescribe any particular
approach.269
266See WIPO/GRTKF/IC/7/5 policy B 12.2, which stated, ‘TK protection should be consistent
with the existing IP systems and supportive of the applicability of relevant international IP
standards to the benefit of holders of TK.’ Similarly in B12.3 it provided, ‘Nothing in these
principles shall be interpreted to derogate from existing obligations that national authorities
have to each under the Paris Convention and other international IP agreements.’
267See the report at http://www.wipo.int/tk/en/publications/technical_study.pdf, accessed on

25 January 2006.
Following the above, a new initiative has also begun at the WIPO after the request by CBD to
‘examine…issues regarding the interrelation between access to genetic resources and
disclosure requirement in the intellectual property rights applications’.270 Disclosure of origin
is one vital demand of developing countries for the protection of genetic resources and
associated knowledge.271 The positions taken and issues raised by various countries in their
submission will be discussed in the next chapter.
In a nutshell, the WIPO's work ranges from survey and studies of existing IP systems and
practices relating to TK and TCEs to formulation of policy and laws on TK. It has also
examined possible methods on establishment of harmonious relation between the existing IP
regime administered by it and the evolving regime on TK. Creation of database and capacity
building of TK holders through trainings are other works of the WIPO on TK. The draft policy
stipulations prepared by the WIPO recognize TK as a value and the predominant role of TK
holders in the determination of access and benefit sharing. They have taken into cognizance
much of the concerns of the developing countries on disclosure of origin or source of TK, PIC
and mutually agreed terms in the IP applications. However, the activities of the WIPO also
face the same catch created by the TRIPS, which blocks all the efforts of regime building
which is fair to the holders of TK.
268 Such as what would be the relationship between the claimed invention and the GR/TK; or
what would be a sufficient link between the two to trigger a disclosure requirements; what
legal principle would form the basis of the requirement; what would be the nature of the
obligation placed on the application; what would be the consequence of failure to comply with

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the requirement; and how would the requirement be implemented, verified or monitored.
269See Id. Executive Summary, pp. 1–7. The details of disclosure requirements in Patents
and their implications are discussed in Ch. IV.
270 The issues that are asked to be examined inter alia are (a) options for model provisions
on proposed disclosure requirements; (b) practical options for intellectual property rights
application procedures with regard to the trigger of disclosure requirements; (c) options for
incentive measures for applications; (d) identification of the implications for the functioning of
disclosure requirements in various WIPO administered treaties; and (e) intellectual property-
related issues raised by a proposed international certificate of origin/source/legal provenance.
See ‘Examination of Issues Relating to the Interrelation of Access to Genetic Resources and
Disclosure Requirements in Intellectual Property Rights Applications’ (second Draft)
WIPO/IP/GR/05/3, Para 1.
271 Upon the receipt of the request, the WIPO Director General invited all Member States to
submit proposals and suggestions before December 2004. Following this, a draft examination
of the issues was prepared which was sent to member states for comments and the revised
version of the draft was prepared accordingly. The revised version is to be submitted to a one-
day Ad-hoc intergovernmental meeting, and the improved version to the WIPO General
Assembly in its ordinary Session in September 2005. WIPO is now working on a revised
schedule.
Discussion
Achievements
Like its holders, TK was an area which was neglected, exploited and left unaccounted by the
mainstream intelligentsia for a long time. The developed world never thought of paying back
to the holders of knowledge and resources, or doing justice to the resource and its holders.
Bio-piracy went on unabated under the guise of the ‘common heritage of mankind’ principle.
While the resources and associated knowledge were used as common heritage, the finished
product came back to the community as privatized goods sold at exorbitant prices; thus,
repeating the same model of imperialist design of ‘buying at wholesale and selling at retail’.
However, owing mainly to the growing awareness of indigenous people and support of
international, governmental and non-governmental organizations in the 1980s and 1990s,
many incidences of piracy and exploitation have been exposed. In many cases, the patents
based on the bio-resources and associated TK have been called into question and even
revoked. Now, no country or institution or individual is in a position to claim a right to exploit
them without taking the consent of the holders, or without having a benefit-sharing
arrangement though the benefits acquired are yet to be re-distributed.
Like the knowledge they hold, indigenous people have also been a focus of attention in
international law making in the past couple of decades. The right of the minority against
discrimination is firmly entrenched into international human rights instruments. Their rights to
property, land and other resources have been inscribed in a number of other existing
international instruments such as the ILO Convention 169, the International Treaty on Plant
Genetic Resources for Food and Agriculture, UN Convention against Desertification and the
like. Besides, a few more emerging instruments such as the Declaration on Indigenous
People and the Draft Declaration on Human Rights and Environment are in the process of

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being formalized. Together, existing and emerging instruments make significant contribution to
the protection of TK, the base on which the TK is built up and the physical and human
environment in which it is created.
Now, with CBD coming into existence, a new normative structure that ‘respects’ TK as a value,
promotes its ‘wider application’ with the approval and involvement of the holders of
knowledge, and encourages ‘equitable sharing of benefit’ is in place. Biological resources are
now subject to sovereign rights of the State, and regulation of access to genetic resources
and associated knowledge has been made a subject of domestic legislation. Following this
change in the international norm, now developed countries can no longer claim access to
genetic resources and associated knowledge as a matter of right. New initiatives are being
taken to check misappropriation by unauthorized third party. Currently, a series of exercises
are being taken at CBD and WIPO on regime building, developing guidelines, and designing
plans and programmes for the protection of TK. The vast and diverse field of TK has also
drawn the attention of many international organizations such as WHO, ILO, UNESCO, FAO,
UN Commission on Human Rights (UNCHR) and UNCTAD. The international effort is
supplemented by regional and national legislative and policy actions in the form of positive
and defensive measures. A growing number oflnternational Non-governmental Organizados
(INGOs) and NGOs both in developed and developing countries are involved in various
activities relating to the documentation, registration and organization of its holders and
fighting against unauthorized third party use or the claim of IPRs. The promise of the TK as
generator of much needed economic resources for the protection of the holders of such
knowledge and the protection of environment and genetic diversity of the world is growingly
understood in developing countries by the holders of such knowledge and others.
Issues and Challenges
The CBD regime relating to genetic resource and associated knowledge faces a number of
challenges ranging from policy making to its implementation. A few of them are raised here.
At the jurisprudential level, today TK faces interplay of two domains: (a) that of knowledge
(dependent on or independent of resource), which is mostly in the public and (b) that of
inventions supported by Western concept of property law, which supports private rights. Even
though the idea of public domain in TK is sometimes erroneously understood as a domain
open to every body, it is now agreed that TK, in fact, is similar to a regime of ‘limited commons’
which is open to members but restricted to outsiders.272 The knowledge freely flows among
members but outsiders cannot claim it as a matter of right. In fact, the relation between the
public domain of genetic resources and associated knowledge and the private domain of IP
should be seen as a two way street benefitting each other. The private right domain thrives on
a robust base of public domain of knowledge. For instance, many of the ‘inventors’ that are
awarded patent protection for their ‘inventions’ would not have developed their end products
without the help of indigenous communities.273 The general supposition is that the private
domain also enriches the public domain by its inventiveness and a better supply of goods to
general public. However, due to historical deficiency, or other socio-economic and political
factors, the holders of knowledge do not benefit from the inventiveness and the supply of
goods coming from the private domain. The holders of private domain IP rights use the right in
such a way that it dispossesses, displaces and pauperizes the holders of knowledge. Several
cases illustrated in the section on bio-piracy tell that bitter truth. While the corporations from
developed countries collect the rents from the products they create by using TK, the
contributions of indigenous knowledge go unrecognized and uncompensated.274

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Going by the nature and method of creation, TK generally fits into the public domain model
but keeping it perennially as such would perpetuate the same game of inequitable and
uncompensated use. Such a practice is also utterly unsafe. The growing sophistication in
scientific research has increased its vulnerability. Unless the chances of privatization of this
knowledge by non-traditional users are vigorously plugged, siphoning of resources is unlikely
to stop. Those still advocating the idea of public domain for the resource in the present form
try to state that an open resource will provide equal opportunity to all to use it. But in practice
differing circumstances—including knowledge, wealth, power and ability—render some better
able than others to exploit the knowledge in public domain.275 The current disparities, both
between the developed nations and the developing nations, as well as internal disparities
between ruling elites and traditional communities, directly hit the holders on the head. Like
many other resources in public domain TK also works to the systematic advantage of a few
identifiable constituencies. Unless unrestricted access to TK and privatization are regulated,
TK will continue to be used against the interest of indigenous and other disadvantaged
section.
272 The concept of ‘limited commons’ is developed by Prof. Carole Rose and Elinor Ostrom,
correcting the wrong example cited by Garret Hardin in his ‘Tragedy of Common’. According to
Prof. Rose, what Hardin refers to as ‘commons’ is an open access regime where everybody
was free to use the resource and no one possessed the right or authority to exclude others.
Carole Rose and Elinor Ostrom have developed the concept of limited commons where, for
defined members of a community, a resource is treated as a ‘commons’, yet that same
resource is treated as ‘private property’ with regard to outsiders. See Aoki, ‘Weeds, Seeds &
Deeds’, 325.
273See Chetan Gulati, ‘The “Tragedy of the Commons” in Plant Genetic Resources: The
Need for a New International Regime Centered Around an International Biotechnology Patent
Office’, 4 Yale H.R. & Dev. L.J. 63 (2001): 67.
274See Id.
Even though there is no unanimity as to which goal should the TK serve, and whether or not
commercial exploitation of TK should be the primary objective, there is strong inclination
among the holders of knowledge (indigenous and local community and also the State in
which such knowledge exists) that the resource should be used for commercial purposes.
Given that TK, especially the biodiversity-based knowledge, keeps the potentiality of
generating billions of dollars, asking the community to keep the resource and knowledge
away from commercial exploitation would mean pushing the already marginalized community
back into the past and depriving them of the benefits from the resources they hold. This is so
because there is no likelihood of restructuring of the public domain to bring about remedial
compensation or to maintain the continuity of communal ownership or interest in the product
or process. Reliance on the utopian idea of public domain is unlikely to bring the holders any
tangible benefits nor would such efforts create required motivation for the protection of
knowledge or resources. When there is strong motivation among developed countries and
seed companies to consider land races and farmers' varieties to keep in public domain and
breeders' varieties which are based on farmers' varieties in private domain, insistence on
public domain model would perpetuate asymmetrical relation between farmers and breeders.
Therefore, the basic question that relates to TK is the following: how much of the TK and
related research should remain in public domain, how much of it should be allowed to be

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privatized and what kind of property interest should the holders of TK have on the privatized
end product, and who should have the legitimate authority to decide that.
275 ‘One example to illustrate this point comes from the use of GenBank. The United States,
the European Union, and Japan have each set up repositories of genetic sequence data;
information from these databases can be downloaded by anyone connected to the internet.
The American database, known as GenBank, seeks to “provide and encourage access within
the scientific community to the most up to date and comprehensive DNA sequence
information”. But a study by the Harvard Business School Life Sciences Project demonstrates
that, instead of equality, dramatic disparities exist in the exploitation of this global commons.
Half of the data downloaded from these databases was downloaded by Americans. With the
exception of Japan, no country in Africa, Latin America, or Asia downloaded more than 1 per
cent of this information. And even within the United States, there exist notable disparities:
users from .com domains (that is, private users) downloaded about half of all data from
GenBank.’ See Chander and Sunder, ‘Romance of the Public Domain’, 1342–43.
Traditional knowledge is a vast and diverse area. The traditional use of resource and practices
vary among different communities, so does the objective of protection. Confusion also exists
among policy makers on what aspect of TK should be regulated and what should be the
objective of protection. As seen above, different countries have addressed the issue of TK
protection differently. There is no unanimity of view even among countries such as Brazil and
Panama which have developed sui generis legislation for the protection of TK. Based on the
content, base and form of expression, WIPO has tried to distinguish TK into two broader
groups such as TK and TCEs despite acknowledging the strong connection between the TK
and the TCEs. Even the TK, which mainly relates to content protection, also can be bifurcated
to biodiversity-based TK and non-biodiversity-based TK. Therefore, sketching a clear
boundary on what is to be regulated and what is not, is an intricate policy question that may
require the policy makers to start with a clear definition of TK. They need to be clear about
what they are going to protect, the content, substance or idea of knowledge such as
medicinal use of plant or traditional ecological management practices. Or are they going to
protect forms such as expression or representations of traditional cultures such as songs, oral
narratives or graphic design. Or is it the distinctive character such as signs, symbols,
indications and styles associated with traditional cultures. This also determines whether one is
taking TK in lato sensu or stricto sensu and move accordingly.
An associated question is the distribution of resource among communities. As argued in

previous sections, TK is distributed very unevenly among the people and communities. For
instance, some TK such as Ayurveda is not limited to any community or countries. It is of
regional nature, and its use is basically determined by the availability of medicinal plants and
practitioners. Knowledge relating to Ayurveda is well documented and easily available even
outside traditional context and in the country where it originated. Another type of knowledge is
limited to particular practitioners such as Vaidhya and Shaman and for several reasons is
mostly privately held. Besides, there is also knowledge distributed among the section of
practitioners such as farmers, midwifes, faith healers and so on, traditionally called folk
knowledge. The knowledge systems in public and private domain closely interact with each
other.276 In such a case, determination of access to knowledge and benefit is very
challenging. There has been vociferous opposition to the piracy of a resource or associated
knowledge by outsiders but the holders of knowledge falter in developing consensus on the
domestic use of TK. The following two cases illustrate the point:

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Kraho people contract: Krahos are Indians that inhabit the Tocantins State in Brazil, in an
indigenous territory of 320,000 hectares. There are approximately 2,000 Kraho Indians,
divided in eighteen tribes. As reported by many Brazilian and American newspapers, in
January 2000, a Brazilian University (Universidade Federal de Sao Paulo) signed a
preliminary contract with an association of three out of the eighteen Kraho tribes, in order
to collect samples of plants associated with their TK. The Indians were supposed to help
the researchers obtain the plants in their territory and give them data related to the
therapeutic use of the collected plants. The University would prepare the plants' extract
and sell the ones with market potential to pharmaceutical laboratories. Any medicine
discovered would be patented and assigned to the University, the pharmaceutical
laboratory, and the Indigenous Association. Unfortunately, this venture initiated by the
national scientific community could not take off. The other fifteen tribes of the Kraho
people felt outraged over not having been consulted about the contract and issued a
document complaining about it. The document says that the contract lacks their previous
informed consent and characterizes the unauthorized collection of natural resources on
their territory as a ‘theft’. The Indians demanded an immediate end to the research in their
territory and approximately 8 million dollars as recovery for moral damages and
bioprospection fees. The project had to be ultimately shelved.277
Kanis contract on Jeevani: Kanis are traditionally a nomadic tribe with a population of
16,000 in South India, now settled in Western Ghats in the state of Kerala. They live in
several tribal hamlets each consisting of 10–20 families. They are involved in traditional
farming, making handicrafts, seasonal collection of minor forest produces such as honey
and bee wax. The Tropical Botanical Garden and Research Institute (TBGRI), an
autonomous institution created for R&D by the Government of Kerela, used the service of
Kanis as local guides in their expedition into the forest of Western Ghats in 1987. During
the trek across the forests, the scientists noticed that the tribals constantly ate some fruits
which kept them energetic and agile. When the exhausted scientists were offered these,
they also felt a sudden flush of energy and strength. And after much persuasion the
tribals showed them the plant Trichopus zeylanicus travancoricus from which the fruit they
called Arogyappacha278 was obtained. The scientists then collected some specimens of
the plant and fruits to study its properties. The fruit of the plant showed anti-fatigue
properties that Kanis had identified. The study of leaves revealed the presence of certain
glycolipids and non-steroidal compounds which had anti-stress, anti-hapatotoxic and
immunodulatory/immuno-restorative properties. From this information TBGRI was able to
develop a herbal drug called Jeevani. It then transferred the right to manufacture the drug
to Arya Vaidya Pharmacy (for a license fee of USD 25,000 plus 2 per cent royalty from the
sale of drug) for a period of seven years. TBGRI also decided that the whole community of
Kani tribals will receive 50 per cent of the license fee and royalty obtained by TBGRI on
sale of the drug. Further, the cultivation of the plant for the herbal drug would also give
them employment and be additional source of income generation. The proposal by all
means seemed attractive. But at this stage, concerns were expressed in the State
Assembly that the amount of license fee was low, that contribution of the Kanis was
undervalued, that not all the Kani groups were involved in the negotiation, that tribal
medicine will perish once taken out from its original form or premises, and so on. In
September 1995, a group of nine medicine-men (called Plathis) of the Kani tribe wrote a
letter to the Chief Minister of Kerela objecting to the sale of their knowledge to private
companies expressing fear that private companies would destroy the available stock of the
plant very fast once they start collecting the same.279 But in November 1995, TBGRI and
the pharmacy went ahead to sign an agreement despite opposition. Then the project met
with another snag. The drug was a herbal formulation and therefore the plant leaves and

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fruits needed to be collected from the forest. At this point, the Forest Department, just
another wing of the government, did not grant permission to AVP to collect plant for
cultivation. As a result, the project could not go ahead.280
276 One such example comes from Charak Samhita (a text in Ayurveda), which says, ‘By
knowing from cowherders, tapasvis, forest dwellers, hunters, gardeners, and by knowing
about their form and properties, learn about herbs and medicinal plants’ (Sutra Sthaana,
Chap. 1, sloka 120–21).
277 The controversy is now being considered by the Brazilian Federal Public Ministry. A
meeting between the tribes, the University, the Indigenous Agency and the Public Ministry
took place in December 2002, but so far an agreement has not been reached. The material
collected is deposited at the Botanic Garden of Sao Paulo. See de Carvalho, ‘Protection of
Traditional Biodiversity-Related Knowledge’, 66.
278 The term means ‘greener of health, that is the one that gives very good health and
vitality’. See R. V. Anuradha, ‘Sharing with the Kanis’. Seehttp://www.biodiv.org/doc/case-
studies/abs/cs-abs-kanis.pdf, accessed on 6 February 2006.
These two cases show that the proponents had made a serious mistake by not consulting all
the major groups before launching the venture. But it also shows that consultation with TK
holders is not free from problems. Often prospectors fumble at the consultation stage or in
the arrangement of distribution of benefits.281 In many instances, scattered habitation of the
people in different clusters and non-availability of information about the real holders of
knowledge make it virtually impossible to consult each and every tribal. Lack of representative
organization and a tested modality of consultation also create problems. Then, divergent
views of the indigenous communities on economic exploitation of their knowledge and
resource also occasionally create further impediments. As seen in the above two cases, a
small mistake in consultation apart, both the projects seemed economically very attractive.
Blocking such projects also meant losing a promising opportunity for sustainable use of
knowledge and resource. Due to the lack of consensus among the people and also due to the
lack of coordination among various departments of the government, hurdles are created in the
use of TK for beneficial purposes and a situation of uncertainty perpetuates. Massive
investment on R&D needed for development of end product is impossible to come by in such
an environment. Therefore, unless such stumbling blocks in the effort to making wider
application of TK are removed by a suitable policy stipulation and working guidelines, it is not
so easy to use TK for income generation for the community and for the country at large.
279 The tribals never used Arogyappacha as medicine. They only ate it as a fruit. See Id.
280Jeevani is now being sold titled ‘Jeevani Jolt 1000’ by a US based Company, Great Earth
Companies Inc. in the US which applied for trademark in December 2000 and US P.T.O.
g r a n t e d t h e s a m e i n M a r c h 2 0 0 2 , seehttp://www.pharmabiz.com/article/detnews.asp?
articleid=31567=47, accessed on 20 November 2008.
281 One case relating to the misuse of distribution of benefit comes from the transaction
between The Body Shop and Kayapo. In 1992, a British company, The Body Shop, entered
into a supply contract with Chief Paulinho Paiakan, a respected leader of the Kayapo. Chief
Paiakan agreed to supply to The Body Shop 6,000 litres a year of natural oil to use in hair

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conditioners in exchange for a small percentage of the profits. The Body Shop gave their
payment to Chief Paiakan. Stephen Corry, an indigenous rights activist and Director General
of the organization, Survival International, commented on this situation stating that ‘the project
has caused deep divisions amongst the Kayapo exacerbated by the way Paiakan has
accumulated great personal wealth and power’. See Stevenson, ‘Trade Secrets’, 1142.
A related issue often discussed is the problem of regulation due to the availability and existing
use of knowledge in more than one region or country. The more widely spread across
communities, regions and countries the resource or knowledge is, the more complex it
becomes for determining access and benefit sharing. In such situations, unharmonious laws
and use practices not only create acrimony pitting holders against one another, it may also
have a ‘race to the bottom’ effect. Unless representative organizations, either themselves or
through their respective States, negotiate a regime for the regulation of access and benefit
sharing on TK, it may create perverse incentive among traditional users as well as third parties
(such as hiding, trading or smuggling, destruction and so on) who try to benefit from
unregulated regime on TK.
After CBD's coming into existence, it was expected that the uncompensated use of genetic
resource and associated knowledge will stop, and benefits will begin to flow back to the
holders of knowledge and the resource. However, CBD has made no significant impact on this
in terms of accrual of benefit to indigenous and local communities from activities that are
aimed at using TK or the curbing of bio-piracy. Given the huge profits that various
biotechnological applications generate, developed countries and their MNCs are unlikely to
give up research based on pirated resource and knowledge or help benefits to flow back to
the holders in near future.
Bio-piracy has continued for its own reasons. Piracy is lucrative in the sense that it
tremendously reduces the time and money in the quest for useful compound or plant genes.
One researcher claims that using a rigorous research method, ‘the chance of not finding a hit
(a compound of pharmaceutical interest)…is almost nil’.282 Therefore, the biotechnology
industry has done, and may do everything in its power to ensure that bio-piracy continues to
exist. Piracy occurs in situations where it is difficult to track down the flow of commodity or
information and where it is difficult to catch the culprit. Law abidance becomes an aspiration
where law avoidance is profitable and risks for collaborators, abettors and accomplices are
minimal. In the absence of effective law at the international and regional level, and required
cooperation among countries in place to penalize the perpetrators and confiscate earnings, it
will be difficult to check piracy.
282See Katy Moran, ‘Mechanism for Benefit Sharing: Nigerian Case Study for the Convention
on Biological Diversity’, case study by the Healing Forest Conservancy to the secretariat of the
Convention on Biological Diversity 1998. Available on the CBD website:
http://www.biodiv.org/chm/gen-res, accessed in January 1999.
Despite crying foul about the use of their knowledge, even those countries which were
supposed to take maximum advantage of the emergent regime are yet to develop a robust
regime on the protection of TK and a clearly worked out plan on its use or make it a priority
subject. Local knowledge notwithstanding, there are a number of reasons why many
developing countries and especially the small ones have not been able to use TK for
beneficial purposes. A few of them are as follows:
Limited knowledge and capacity of scientific use.

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Limited local opportunities for commercialization.283

Lack of extensive public investment in research.284
Capital constraints.285
Unfamiliarity with the IP regime.
If countries holding TK are to benefit from its use, they should overcome these constraints,
exploit local niches, build local capacity, increase regional cooperation and add value to
knowledge so that they get competitive advantage in the use of knowledge for commercial
purpose.
Yet another challenge that comes in the way of sustainable use of TK is the confusion
regarding the perceived role of the State. The provisions relating to TK are not so forthright
regarding this. As mentioned above, CBD, by stating that TK is ‘subject to national legislation’,
acknowledges the role of the State in the regulation of TK. The power of the State is balanced
by a call for the ‘involvement and participation’ of the holders of such knowledge in wider
application of TK. What it means in operational terms is yet to be finally worked out.
Apparently, there seem to be two diametrically opposing approaches: one taking up the State
as capacity builder, agent of empowerment and catalyst in dealing with external actors; and
the other looking at the State as a villain or accomplice and, thus, denying any meaningful
role in documentation of TK or in the negotiation for its scientific use. It is a fact that in many
developing countries, government bureaucracy plays a predominant role in almost all affairs
of the State. Any policy not vetted by the bureaucracy is very unlikely to gain official status.
Bureaucracy by nature comes from the existing social elite, and as such does not carry the
voice of the marginalized sections such as indigenous people and rural farming communities.
Perhaps because of this protection of TK of indigenous and local people is yet to be made a
prioritized agenda in many countries. Given the power dynamics that exists between the State
and TK holders and the corruption that blights the bureaucracy and political leaders in many
developing countries, indigenous and local communities perhaps have legitimate concerns
about the role of the State as benefactor of public goods. While the extremist elements within
the State deny any meaningful role to TK holders, the extremists among the indigenous
communities, on the other link autonomy with the right to self-determination to mean a status
beyond the reach of the State. In such a situation, balancing the interests of the two becomes
a complicated task. Calling the State to act as ‘trustee of public interest’ can be understood
but total absence of the State in the management of TK is debatable.
283 Because of the limited consumer purchasing power in domestic markets, companies in
the developing countries often find it difficult to justify the extensive investment in research
and development required to transform traditional knowledge and genetic resources into
patentable pharmaceutical or agricultural products.
284 In advanced industrialized states, government-funded research programmes at

universities and research institutes support local companies. Developing countries generally
do not have such extensive, publicly funded research and development programmes.
285 Weak internal capital markets across the developing world make the process of raising
capital quite expensive. Given the large capital investments needed to patent pharmaceutical
and agricultural products and long gestation period, high interest rates make companies in
developing countries less competitive. Even where the company seeks funding through the
international credit markets, it is likely to face high interest rates because rates for corporate

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borrowing are generally tied to those for their home state (corporate risk is thought to include
sovereign risk). The fact that borrowing is quite dear, domestically and internationally, makes
capital-intensive activity difficult to undertake.
There are several areas where the State can play an effective role in realizing the objectives of
CBD with regard to TK. For instance, the State can play the role of an identifiable bargaining
agent in situations where TK holders may be far-flung and/or not familiar with formal legal
rules of intellectual property and/or contract law.286 Similarly, it can file complaints against
misappropriation of TK or its unauthorized claim in an IP application. However, there is also a
chance of the State being overbearing. Therefore, making a proper balance between the
facilitative and catalytic roles of the State as a benefactor of public goods and ensuring
autonomy to the holders of knowledge in the identification of knowledge, its protection and
wider use within a broad sphere of the jurisdiction of the State is a critical challenge.
286See Aoki, ‘Weeds, Seeds & Deeds’, 321.
Currently, countries attach high importance on IP protection of TK one way or the other. The
current IP law of countries like the US, Japan and EU is not too sympathetic to the concerns
of developing countries on the use and protection of TK. The existing TRIPS regime has
added trouble to this. In the context of the IPR regime being the main terrain of contest
between the technology-rich developed countries and genetic resources- and TK-rich
developing countries, efforts of many developing countries in extending IP protection to TK or
saving it from deleterious effects of the exercise of IPRs is understandable. There is also no
doubt that the IP protection of the TK may recognize the right, protect the content, the
associated rights or forms of expression of TK, and restrain misappropriation, but it does not
protect other aspects such as tenurial rights over property, environmental rights and so on,
which are instrumental in the generation and maintenance of TK. As such, the IP law also
does not look into the supply side of the resource based on which IP claim is made. IP is also
not relevant when it comes to regulation of the use of resources, tilling, planting, harvesting,
segregating and making end products. If the TK relates to that aspect of biological knowledge
which is based on genetic and non-genetic biological resources then perhaps TK may be
seen as part of a broad strategy to protect biodiversity, and to access and benefit sharing. As
such, TK can be protected through a range of legal mechanisms, such as contracts and
licences, or national laws governing such issues as environmental protection, cultural heritage
or interests of indigenous people. Inferences from a range of legal concepts and
jurisprudence such as concepts relating to unfair competition, unjust enrichment,
misappropriation of reputation, recognition of equitable interests, moral rights particularly the
right of integrity and attribution, human rights particularly economic, social and cultural rights,
recognition of customary law and traditional rights, diverse concepts of ownership and
custodianship associated with traditional cultures, environmental considerations, approaches
defining farmers' rights and so on, can be utilized to protect TK. Therefore, once the parochial
approach on TK protection is cast aside, a range of measures can be adopted for the
protection of TK in a holistic manner. In view of the diverse nature of TK and its holders,
developing a suitable national and regional legal regime and institutional structure is really
challenging.
Among the protective measures that countries have adopted, designing a sui generis
legislation is, of course, one. Given the intangible nature of the TK, an important concern is its
recognition in the international sphere. Any national legal system that protects TK in a
distinctive sui generis way needs to interact with IP systems in other countries, in the absence
of which international enforcement of protection measures is not possible. Countries may

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expand protection by entering into bilateral and regional agreements or address protection
issues on a case-by-case basis on reciprocal terms, or by extending most favoured nation
status.287 Therefore, besides the creation of a sui generis regime, harmonization of the
standards of protection at the regional and international level is also equally important.
TK is a holistic system but is directly dependent on biological resources one way or the other.
For instance, TK in agriculture is directly related to the availability of the crop varieties in the
farm or in the wilds. Traditional agricultural practices produced thousands of localized
varieties of staple foods such as corn, rice, wheat and cereals to feed the growing population.
But owing to the green revolution and hybridization, much of the plant genetic varieties and
associated knowledge is lost today. According to one estimate of the FAO, around 75 per cent
of the genetic diversity of agricultural crops has been lost since the beginning of the last
century. One typical case illustrating the trend comes from India. Whereas once 30,000 rice
varieties existed, today it has come down to just ten rice varieties covering 75 per cent of the
rice-growing areas. Another example of severe monoculturization of rice is occurring in
Indonesia where 1,500 local rice varieties have become extinct by the mid-1970s. Today 74 per
cent of the rice varieties now come from a single maternal plant.288 The prospect of loss of
forest biodiversity on which much of the medicinal knowledge depends is even more scary.
Therefore, unless the biological base on which the superstructure of TK stands is protected,
the loss of TK will continue.
A connected issue is the loss of linguistic diversity much impacted by displacement, cultural
assimilation and modernization. People often give local name to the plant and properties of
the plant which have useful purposes as food, fruits, or medicine, or cosmetic and other uses.
For instance, the knowledge about what is edible and what is not is developed over
thousands of years and passed from generation to generation in specific language, symbols
and other forms of expressions.289 Most of this knowledge remains in oral tradition. Given
that indigenous and local people world over keep knowledge relating to medicinal and
nutritional aspects of an estimated 35,000–40,000 plant varieties and that only 1,100 of them
have been thoroughly studied by scientists, it is very necessary to protect linguistic diversity.
When a language dies, it also takes away the knowledge inscribed in the oral tradition of that
language. Today, almost half of the world's existing 6,000 languages are on the verge of
extinction.290 Therefore, in view of its holistic nature, any effort to save TK should also go
beyond the content and also save the base and forms of expression of the TK.
287 For instance, Law 20 of June 26 of Panama, Art. 25 makes provisions for reciprocity. It
states:
For the effects of the protection, use and marketing of the intellectual property
collective rights of the indigenous and local communities contained in this law, the
artistic and traditional expressions of other countries will have the same benefits set
forth hereon, whenever they are made by means of reciprocal international
agreements with these countries.
288See H Scott C. Lucas, ‘Halting the Downward Spiral of Monoculturization and Genetic
Vulnerability: Toward a Sustainable and Biodiverse Food Supply’, 17 J. Envtl. L. & Litig. 161
(Spring 2002): 165.
Way Forward

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As mentioned earlier, there are diverse notions of protection, preservation and safeguarding of
TK. Protection can apply directly to the TK as an object of protection in itself, to the
preservation of the economic, social and cultural context in which TK is developed and
maintained and to the distinctive forms and expressions in which TK is communicated and
transmitted. All three, content, base and form of expression, are important and require various
strategies, normative and otherwise, if a holistic approach is to be developed for the protection
of TK. Any shortcoming in one of these affects the protection.
Even though there is a strong link between the biodiversity-based TK and other TKs or TCEs
embedded in the socio-economic and cultural life of the indigenous and local community,
there is some kind of division between the biodiversity-based TK and other forms of TK or
TCEs. The main terrain of controversy in the biodiversity conservation is the ‘biodiversity
based TK’. This is because of the high promise this knowledge keeps in scientific research in
medicine, agriculture and industry. This is also one area where overriding concern is to its
economic exploitation about which there is strong interest both at the level of the State and at
the level of indigenous and local communities. Therefore, initiatives for the protection should
be first focused at biodiversity-based TK without loosing sight to the holistic nature of the TK.
Given the divergent views of indigenous and local people on the objective of conservation, it is
always better to start from a small well-defined sector. Once successful, the experience can
be replicated in other sectors such as non-biodiversity-based TK and TCEs.
289 When the knowledge about edible or medicinal plants dies, it dies irretrievably. See Id., p.
166.
290See Stevenson, ‘Trade Secrets’, 1128.
The protection of TK should start with a suitable legislation at the domestic level. The
determination of the content, scope and method of protection are crucial in such legislative
initiatives. Now, as an in-depth homework is being done by the WIPO in the formulation of
draft principles on TK and TCEs, reference to these documents as well as national initiative
can be made in the course of drafting the legal framework. Recognition of TK as a value,
promotion of the respect for basic rights and dignity of the TK holders, protection of the
people themselves who are the holders of knowledge, meeting their actual needs and
empowering them are important considerations. Besides, preservation and safeguarding of
the TK, promotion of innovation and creativity, and stopping of misappropriation or illegitimate
claims of IP on TK should be considered in the process of development of law on TK. The
holders of knowledge should have a decisive say in the determination of PIC and mutually
agreed terms (MATs). An appropriate mechanism for benefit sharing is also a key point of this
regime. The law should consider the TK holders as the subject of the TK development and
not just passive recipient of the state largesse. They should have a prioritized claim in the
decision making on access and determining the nature and modality of benefits. The law
should also not disturb the existing use of the dependent community on TK and related
resources. Existing and emerging norms on biodiversity, environment protection, human rights
and indigenous people may be referred to while developing the regime on TK protection.
Given that indigenous people using the same knowledge system or resources are scattered in
different places, their participation in the decision making is another vexing problem. Here, the
sui generis legislation of Peru gives some useful insights. This law provides for representation
of the TK holders in registration of knowledge in the national register and filing of
representative suits. Here, representative organizations are the existing traditional

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organizations. But it need not be always so. Representative organizations can be created at
local, national and regional level with the involvement of stakeholders.
Many countries have adopted both defensive and protective measures for the protection of TK
against misappropriation and vindication of the rights of the TK holders against injurious claim
of IP. While both are important, countries can set priorities for themselves by surveying
existing TK use and protection needs.
Today, bio-piracy has occurred because of the lax sanctions against it. CBD is criticized on
this count. Many countries have now introduced administrative, civil and penal sanctions in
their biodiversity protection and access legislation. The sui generis legislations of Brazil, Peru,
Panama and Portugal discussed above have penal provisions which can be taken into
consideration while designing national laws. Along with appropriate sanctions, confiscation of
benefits taken from the use of TK, dispute settlement and compliance mechanism are other
essential components of the legislation on the protection of TK.
After CBD's coming into existence, the protection of TK has gained international concern. This
might have created some kind of hesitation among those involved in piracy. But there is no
evidence to prove that piracy has been reduced. Motivating factors for piracy being still intact,
there is no reason to believe that misappropriation of knowledge has stopped or will stop. On
the contrary, it may be suspected that piracy might have increased. This has happened in the
absence of law and an effective compliance mechanism which is very necessary both at the
national and international level. Besides, local capability in tracing piracy, prosecution as well
as proactive use of knowledge and resources, the interest of the holder of genetic resources
and associated knowledge in the bio-rich countries can be safeguarded.291 International
campaign against piracy also helps to check it. After all, it is also not in the best interest of
any country to have its companies accused of committing ‘bio-piracy’ by profiting from TK
illegally or immorally obtained from indigenous people.
Besides the protection of TK as a content in itself, the focus of the policy makers should be on
the protection of the base of knowledge, the biodiversity, which is fast dwindling. Protection of
the biodiversity is, therefore, important in the context of TK protection as well. The law on
biodiversity protection and the protection of TK should have a synergic effect, complementing
the efforts to protect each of them. In view of this, the protection of language, culture and
form of expression, institutions and properties and labour should also be encouraged.
Existing and emerging laws on indigenous people take a very broad approach to land and
property. For instance, these instruments often use the term ‘owned, used or otherwise
occupied’,292 which is very important in the context of indigenous and local communities
living in the interiors, where the Western concept of private property is yet to be introduced.
Recognition of customary use, practices and rights is, therefore, important in the context of TK
protection as well.
291See David Conforto, ‘Traditional and Modern-Day Bio-piracy: Redefining the Bio-piracy
Debate’, 19 J. Envtl. L. & Litig. 357 (2004): 389.
292See ILO Convention 169; Draft Declaration on Indigenous People.
Protection apart, the focus of national governments should be on capacity building,

technology transfer and development of local research capacity. Adding value to the
knowledge, participation in the research and sharing of the outcome of the research depend

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on the investment on capacity building. This exercise should focus on the holders of
knowledge who already possess traditional skills relating to the identification of the resource
on which the TK is based, or its traditional uses. Supported by modern skills and knowledge,
these people can work wonders in the protection and diversified use of TK.
Finally, efforts at the national level to protect TK should be strengthened by similar efforts at
the regional level. Given the regional spread of useful TK and genetic resources, the regional
initiatives can solve many of the intricate problems of access and benefit sharing. States can
work for developing common approach to access and benefit sharing, creation of Trust Fund,
reciprocity of treatment, dispute settlement mechanism, clearing-house and unified approach
on contentious issues at the international level. Regional cooperation also helps channelling
of scarce resources without duplication.
Conclusion
The exercise in this chapter began by examining the problems relating to TK. Discussions
were made on existing and emerging regime relating to the protection of TK. In the course a
cursory visit to related provisions of human rights instruments, the ILO Convention on
Indigenous People, UN Declaration on the Rights of Indigenous People and CBD was made.
This gave a perspective on different rights of indigenous and local communities including the
right against discrimination, equality, autonomy, the rights relating to land and territory, and
the rights relating to participation in decision making and benefit-sharing. CBD has
recognized TK of indigenous and local community and has called upon the States to ‘respect,
and maintain’ TK and promote its ‘wider application’ with the involvement and participation of
the holders of knowledge. Their participation in benefit sharing is also called for. While
recognition of TK as a value and priority to TK holders in decision making are some of the
laudable features of CBD, the regime is incomplete in many respects. It also lacks effective
implementation mechanism. Many national governments as well as international institutions
such as the COP and the WIPO are now geared towards developing a regime on TK and
operationalizing the rights already in place. Even then, 17 years since Rio, the TK holders, the
indigenous people and communities in many Third World countries still feel under seize, and
protection of their TK is still an unfinished agenda.
Indigenous and local communities especially the rural communities, farmers, herders and
gatherers despite being the holders of invaluable knowledge are among the most neglected
people far away from the mainstream economy and production system. They, therefore, need
special protection. While a robust international regime on the protection of TK and for the
benefit of the holders of knowledge and for the protection of the knowledge itself is very
important, given the multifarious attacks these people are facing, they need active state and
community support. Indigenous and local groups acting alone will have little chance of
addressing serious problems relating to protection of their knowledge and enforcement of
their rights.
It is encouraging to note that of late countries and people are working together to protect
these communities, ensure their cultural survival and revive their knowledge. The measures
are no philanthropy, but initiatives guided by economic reasons and possibilities of TK holders
benefiting from their rich knowledge. Taking economic benefits from genetic resources and TK
is, of course, a good motivating factor and there is no harm in having such a motivation if it is
fair, just and equitable to the holders of the knowledge and the resource itself. Only time will
tell whether or not the efforts will be fair to indigenous and local communities, fair to the
resources, fair to developing countries which are the centre of origin of biodiversity and

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associated knowledge and most importantly fair to the humanity at large.
indigenous communities
patents
id
biodiversity
local communities
protection
planting
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Protection of Himalayan Biodiversity:

International Environmental Law and a

Contributors: By: Ananda Mohan Bhattarai

Protection of Traditional Knowledge

There is an ageless history of biological harmony between indigenous peoples and

Protection of traditional knowledge (TK) is a very challenging issue. Despite some

1 Cited in Jennifer Amiott, ‘Investigating the Convention on Biological Diversity's Protections

Traditional technical know-how or traditional ecological, scientific or medicinal knowledge

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2 WIPO, Intellectual Property and Traditional Knowledge. B o o k l e t , 4 .

3 WIPO, ‘Consolidated Survey of Intellectual Property Protection of Traditional Knowledge’

[R]efers to knowledge systems, creations, innovations and cultural expressions

4 WIPO, ‘Intellectual Property Needs and Expectations of Traditional Knowledge Holders’

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(WIPO Report on Fact-finding Mission on Intellectual Property and Traditional knowledge,

[K]nowledge which is generated, preserved and transmitted in a traditional context;

See WIPO/GRTKF/IC/5/8 (28 April 2003), Para 69.

Sometimes TK is erroneously considered a golden bowl of knowledge handed down by

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of rituals from traditional medicine sometimes becomes difficult.

8See Convention on Biological Diversity (CBD) 1992, Art. 8(j).

10See ‘Study of the Problem of Discrimination against Indigenous Population’, report

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pervasive. No country or region of the developing world is unaffected by bio-piracy.20 But as

Bio-Piracy, History, Incidence and Patterns

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From the establishment of agricultural societies to the beginning of colonialism, search,

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29 David R. Nicholson, ‘Agricultural Biotechnology and Genetically-Modified Foods: Will the

30 Cited by Mulligan and Stoett, ‘A Global Bio-Prospecting Regime’, 227.

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African Soapberry Plant

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Hoodia Gordonii Cactus

35 Young-Gyoo Shim, ‘Intellectual Property Protection of Biotechnology and Sustainable

36 James O. Odek, ‘Bio-Piracy: Creating Proprietary Rights in Plant Genetic Resources’, 2 J.

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39See Mgbeoji, Global Bio-piracy, 133.

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Yellow Bean Seeds

44 Kadidal, Id. p. 224.

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48 Roht-Arriaza, ‘Of Seeds and Shamans’, 924.

50 James M. Vreeland, an archaeologist working in Peru with pre-Colombian textiles, created

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55See Woods, ‘Food for Thought’, 138–39.

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58See Woods, Id. pp. 140–41.

61Seehttp://www.neemfoundation.org/patents.htm, accessed on 12 January 2006.

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64See de Carvalho, ‘Protection of Traditional Biodiversity-Related Knowledge’, 56.

65See Report by Chakravarty Raghavan in http://www.twnside.org.sg/title/revoked.htm,

66Seehttp://www.twnside.org.sg/title/tur-cn.htm, accessed 10 January 2006. There are

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Existing and Emerging Law on Indigenous People and Their Knowledge

Human Rights Instruments

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70 ICCPR, Art. 1(2); ICESCR, Art. 1(1).

71 ICCPR, Art. 1(1).

72 UDHR, Art. 17.