India
has always been at the forefront when it comes to a debate about
misappropriation of its traditional knowledge by corporate entities and foreign
research organizations. The traditional knowledge is considered as information
about natural products carried over by communities through generations without
proper account or documentation of the same. Recently, the debate has been
curated (articulated) as involving issue of bio-piracy, where an entity makes
use of traditional knowledge illegally and reaps benefits out of such
exploitation without prior consent of communities and sharing any benefits with
communities.[1]
Last
year, India had initiated discussion at WTO about the issue of bio-piracy. The
same discussions have been revived with an international session regarding bio-piracy
being co-organized by India next month in collaboration with Geneva based
inter-governmental organization South Centre. The number of communities’ representative
from Brazil, Australia, New Zealand, China, Namibia, Peru and the United States
will be participating in the session along with Zo Indigenous Forum, a human
rights-based indigenous people’s organization in Mizoram.[2]
India
along with developing countries is demanding mandatory disclosure under Patent
law of two kinds of information by patent applicants:
- Source or origin of biological resources; and
- Evidence of prior informed consent and benefit sharing with communities.[3]
Disclosure
of such information by patent applicants will result in reducing the chances of
exploitation of traditional knowledge propagated among local communities.
In
the past, the Indian Parliament has passed legislation and also made amendment
to existing legislation for protecting interest of communities in traditional
knowledge. National Biodiversity Act protects traditional knowledge by
regulating use of such information by a foreigner, Indian citizen, and body
corporate controlled by foreigner/Indian citizen. The said Act also have
requirement of prior permission by entity seeking IPR protection based on
knowledge/information obtained from Indian communities. Section 3 (p) of the
Indian Patent Act, 1970, also bars the patent protection for invention involving
use of traditional knowledge or any duplication or aggregation of such
knowledge. Further, there is protection provided under Protection of Plant
Varieties and Farmers Rights Act 2001, Geographical Indication of Goods
(Registration and Protection) Act 1999, and Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Other
initiatives by India include Traditional Knowledge Digital Library which is a
digitized traditional medicinal knowledge available in public domain in the form
of existing literature (Ayurveda, Unani, Siddha and Yoga).[4]
This initiative was formulated in backdrop of revocation of patent on wound
healing properties of turmeric at the USPTO and patent granted by European
Patent Office on antifungal properties of neem. TKDL has increased access to
traditional knowledge and use of such knowledge for beneficial purposes.
At
international level, Convention on Biological Diversity has envisioned three
objectives including conservation of biological diversity, the sustainable use
of its components, and equitable sharing of benefits arising from utilization
of genetic resources. Under this convention, Nagora Protocol was incorporated
for providing access to genetic resources and fair and equitable sharing of
benefits arising out of their utilization. The Protocol intends to create
incentives to conserve biological diversity, sustainable use of its components
and further enhance the contribution of biological diversity to sustainable
development and human well-being.[5]
The
session on bio-piracy is a move to realize the inherent right of indigenous
communities over such traditional knowledge. Such sessions intend to build
pressure on developed countries to amend their domestic laws incorporating
requirement of making disclosures as discussed above. India and other
developing countries has already proposed to amend TRIPS agreement with such
requirement.
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