Protection of Traditional Knowledge in the Present IPR Regime: A Mirage or a Reality
| Published date | 01 January 2014 |
| Date | 01 January 2014 |
| DOI | http://doi.org/10.1177/0019556120140103 |
| Subject Matter | Article |
PROTECTION OF TRADITIONAL KNOWLEDGE
IN THE PRESENT IPR REGIME: A MIRAGE OR
A REALITY
RAJU NARAYANA SWAMY
The Intellectual Property Right (IPR) regime needs
to
be fine
tuned in such a way that it can bolster the cultural identity
of
indigenous communities and give them greater say in its
management. This calls
for
a comprehensive strategy with
community, national, regional and international dimensions.
This
framework
should
ensure
that
the
control
and
sovereignty
over
biological resources rest with the local
community
and
that they receive adequate compensation
when these resources are utilised by outsiders. The present
study aims
to
arrive
at
such
an
IPR regime characterised by
a
lucid
interdisciplinary
synthesis
of
anthropological,
biological and economic perspectives essential
for
balancing
the rights
of
local people with the obligation to preserve
viable ecosystems for posterity.
INTRODUCTION
THE LINKAGE between IPRs, biodiversity and traditional knowledge
(TK) is
of
recent origin. Biodiversity refers to "the variability among living
organisms from all sources and the ecological complexes
of
which they
are part and includes diversity within species or between species and
of
eco-systems."1
It
protects ecosystem resilience and covers the entire life
system that exists in a natural setting. In fact, ecological and genetic
multiplicity together makes the very foundation
of
existence. Traditional
Knowledge on the other hand is the result
of
intellectual activity in a
traditional context.
It
is intricately woven into the living styles and practices
of
communities. This knowledge is transmitted through songs, stories,
1Sec 2 (b)
of
the Indian Biological Diversity Act, 2002.
36 I INDIAN JOURNAL
OF
PUBLIC ADMINJSTRATION
VOL
LX,
NO.
J,
JANUARY-MARCH 2014
rituals and legends. Examples are galore throughout the nooks and comers
of
the world.
To
quote a few:
a.
Thai traditional healers use plao-noi to treat ulcers
b.
San people use hoodia cactus to stave
off
hunger while out
hunting
c. Traditional water systems such as the aflaj in Oman and Yemen
and the qanat in Iran maintain sustainable irrigation.
Intellectual Property Right offers two forms
of
protection to TK:
(i)
A
po<>itive
protection by granting exclusive rights over use to the members
of
the local community, and (ii) a negative protection by excluding others
from the use
of
TK held by a particular community.
Despite the tall claims, the sad reality is that traditional knowledge is
threatened by unauthorised use. IPR regimes have miles to go before they
can claim to be saviours
of
TK systems. An oft quoted case study is that
of
Cupuacu - a tree belonging to the cocoa family that has been cultivated
along the Amazon since time immemorial. Today Brazil has been reduced
to the insignificant role
of
a supplier
of
raw material. It
is
Japan that holds
the
IPRs-whether
it be patents or trade marks. The billion dollar question
is whether the natural habitat
of
the poor is again and again targeted by the
international resource economy -this time
in
the name
of
IPR. With most
of
the original genetic materials located in the biodiversity hot spots
of
developing countries, the natural question that crops up is -
"Is
the
destructive face
of
colonialism showing up again? Is it a continuation
of
"the extirpation, enslavement and entombment in mines
of
the aboriginal
population, the looting
of
the East Indies and the turning
of
Africa into a
warren for the hunting
of
black skins that was once supposed to signalize
the rosy dawn
of
the era
of
capitalists production?"2
India too had its share
of
bitter experiences vis-a-vis its sovereign rights
over the resources available in nature. Turmeric, basmati and neem are the
classic cases where the country had to fight tooth and naiL These cases, no
doubt, provided the driving force for the enactment
of
the Geographical
Indications (Registration and Protection) Act, 1999, the Plant Varieties
and Farmers Rights Act, 2001 and the Biodiversity Act, 2002. At the same
time we learned that our age old traditional philosophy beliefs that bio-
resources belong to common heritage
of
mankind are no longer safe because
of
threats from the developed world.
The seeds
of
such an Access and Benefit Sharing mechanism can be
seen in the Convention on Biological Diversity (CBD) and the Bonn
2Douglas Dowd, "Inequality and the Global Crisis", Pluto Press, London, 2009, p.144-
145.
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