Trips

Patenting Traditional Knowledge
Rohini Padurangi

Ahuge portion of the knowledge, pertaining to the natural world, possessed by mankind today, could be attributed to the efforts of indigenous and local people over a period of several centuries. The world has come to benefit immensely from the collective knowledge which was transmitted to all parts of the globe through the forces of globalisation in its benevolent phase. In the period of colonisation, the Europeans were astounded by the knowledge of the local people regarding their environment and assimilated such knowledge into their knowledge system*. No ownership was ever claimed by the indigenous people over the innovations and discoveries made by them. However, there has been an infringement of the rights of the indigenous and local people in the recent decades as a result of the Trade Related Intellectual Property Rights that allows the patenting of life forms and the activities of the Trans-National Corporations (TNCs) that are involved in the commercialisation of products which are based in biological resources (this process is known as bio-prospecting). A lot of 'inventions' claimed to be made by these TNCs are 'prior knowledge', which means knowledge that has existed for a long time, but which may not have been documented. Nevertheless, they have passed on from one generation to another through word of mouth. Since it is collective knowledge, there has been no claim of ownership. Indi-genous people resent the commercialisation of such knowledge, since the original inventors intended them to be used for common good.

In the past few years with the proliferation of the intellectual property regime, there has been an infringement of the rights of indigenous and local people. The TRIPS Agreement which provides for the patent of micro-organisms, microbiological processes and also plant varieties, has given scope for proliferation of patents in the past few years. The TNCs have tried to patent the traditional knowledge of the indigenous and local people claiming them to be 'inventions'. Patent over such 'inventions' is detrimental to people in two ways. One, the indigenous people will have no share in the profits that accrue from the commercialisation of a knowledge. Two, as the patent laws prohibit the production or use of a particular product without the permission of the patent holder, the people who are the original owners of that particular knowledge will have to obtain permission to produce their own products and shell out on royalty. It has widely been argued that this amounts to bio-piracy, which is use of the indigenous knowledge for profit without acknowledging the source, asking for permission or paying compensation to the rightful owners of the knowledge.

Patenting of life forms is bound to have adverse implications on the capacity of the indigenous and local people (in this case, small farmers) to earn their livelihoods. Most of the indigenous and local people depend on agriculture for their livelihood. Farming is carried on in small holdings using traditional methods of cultivation, using seeds from previous harvest. In fact several improvements in the variety of seeds have been the results of the efforts of these people who had carefully chosen seeds, bred them and produced new and better variety of seeds. The establishment of a new patent regime combined with the growing power of the agribusiness corporations who hold most of the patents in agricultural technology could have adverse effect on the livelihood of the indigenous and local people. These agri-business corporations have in several instances obtained patents on seed varieties by making genetic alterations to them. The TRIPS laws prohibit the making, using, offering for sale, selling, or importing the product without the consent of the owner. It gives the patent holder the right to sue anybody who infringes upon their patent rights. Bolivian representation to the WTO on 'Article 27.3 (b) of TRIPS and the legalisation of Bio-piracy', states that 67 percent of the proprietary seed market is being controlled by ten TNCs and one particular TNC controls one quarter of this market. The representation brings to light the fact that an American company had filed 90 lawsuits against American farmers over supposed infringement of seed patents and technology agreements. Such practices have adverse impacts on the livelihood of indigenous and local people, for whom agriculture is the main source of livelihood. The monopoly of the TNCs over life forms and their practices will prove to be a threat to the livelihood and food security.

The indigenous people have developed their own system of medicine, by observing the patterns and symptoms of diseases, using the biological resources available in their vicinity. This medicine system is a great repository of knowledge, of immense importance to the indigenous and local people. There have been attempts to patent the traditional knowledge which has been put to use for several centuries. One such example is the grant of patent by the US patenting authority on 'Neem' whose medicinal qualities are a common knowledge and which is being used in India as a herbal remedy for centuries. To patent such a traditional knowledge as new discovery is a gross violation of the rights of the local community.

The indigenous and local people will lose in three ways because of the commercialisation of the traditional knowledge. One, they might be deprived of the access to the medicines that they themselves had inherited, two they will not be given a share in the benefits accrued from the commercialisation of such medicines and three, there may some medicine or medicinal system which may not be viable for commercialisation and hence may be lost in due course.

Looking into these arguments it becomes very important to do a rethinking on the current system of protection of Intellectual Property Rights as it is not suited to protect the rights of indigenous people. Even if these people are guaranteed recognition and compensation, the current system will fail to make justice to the huge repository of knowledge they possess or to the people themselves. This is because the current rules for intellectual property concentrate on protecting the rights of individual and commercial exploitation of a particular knowledge as against the perusal of common good. Therefore it is a matter of prime importance that a sui generis system to protect the rights of indigenous and local people is adopted and adhered to by all the nations.

The Convention on Biological Diversity (CBD) recognises the dependence of indigenous and local communities on biological resources and the need to 'sharing equitably the benefits arising from the use of traditional knowledge, innovations and practices'. CBD's Nagoya Protocol for "Access to Genetic Resources and Fair and Equitable Sharing of benefits arising from their utilization" which was adopted in October 2010 is a step in the right direction. Its aim is to advance the objective of Access to and Benefit Sharing arising from the utilisation of the genetic resources. In advancement of this objective the Protocol stipulates that " Each Party shall take appropriate, effective and proportionate legislative, administrative or policy measures, as appropriate, to provide that traditional knowledge associated with genetic resources utilized within their jurisdiction has been accessed in accordance with prior informed consent or approval and involvement of indigenous and local communities and that mutually agreed terms have been established, as required by domestic access and benefit-sharing legislation or regulatory requirements of the other Party where such indigenous and local communities are located". The Protocol further recommends that each party shall take necessary measures to deal with situations of non-compliance with above said measures. There is a requirement for effective mechanism that will adjudicate disputes and impose sanctions on parties which violate the provisions of the protocol, similar to the WTO Dispute Settlement Mechanism. In fact the protocol on Access and benefit sharing should be co-opted into TRIPS agreement so that it will have more teeth. Attempts to protect the rights of indigenous and local people outside the WTO framework may not give the desired results. This is precisely the reason why the TRIPS was introduced in the WTO even though World Intellectual Property Organisation was the governing body for intellectual property. However, the Nagoya Protocol has not yet come into force and only four countries have ratified it hitherto. Taking into account the fact that the US is not a party to the CBD, it seems unlikely that it will become a party to Nagoya Protocol. In case of US refusing to ratify the Protocol the chances that it will become ineffective are very high.

Frontier
Vol. 45, No. 22, Dec 9-15, 2012

Your Comment if any