By
Sunil Prasad and SKT Nasar
Department of Biotechnology
Bengal College of Engineering and Technology, Durgapur
A write up for the IPR Workshop Proceedings.
IPR Workshop was held at Bengal College of Engineering and Technology, Durgapur
and
organised by WBCS&T and Department of Biotechnology on 30 March 2011
Introduction
Human communities have generated, refined and relayed knowledge, technology, inventions and skills from generation to generation. The age-old production of wine, vinegar, organic manures, biofertilisers, traditional medicines, drugs, cosmetics, food additives, agricultural implements and distillation apparatuses for perfume making are acknowledged instances. Farmers have selected, bred, used and maintained varieties and types of crop plants, domesticated animals and fish since the beginning of organised human settlements. Selection of microbes for fermentation for homestead cheese production, yeast for pre-cooking fermentation and bacterial strains for curd making are common examples. Vast populations depend on traditional medicines, including ayurveda and unani remedies, for healthcare needs.
Such traditional knowledge (TK) is an important component of cultural identity, food-nutrition security, medical need and livelihood of millions of people in India. Legal protection against exploitation of TK is minimal under common laws. The need for separate laws for protecting TK became essential.
TK versus industry
Despite the enormous volume of TK-based products, their production systems have not been categorised as industry simply because these belong to the unorganised sector. Unknown individuals or communities are the inventors of unrecorded TK and invention which is why Intellectual Property Rights (IPR) system disregarded TK as being patentable. Normal patent laws tend to provide time-bound ownership to individual inventors and for inventions demonstrating novelty and capability of industrial application. TK, on the other hand, has collective ownership, is held in perpetuity from generation to generation and is incremental, informal and occurs over time.
India and the international community, following long and tortuous debates, finally accepted to recognise and protect TK by suitable laws. Since common laws were inadequate, a sui generis (i.e. unique unto itself) IPR law was considered indispensable to protect TK. The question was how to make appropriate laws for TK protection.
Country laws and international instruments
Legislatures enact laws for the welfare of the people. Laws in India are made within the Constitutional framework by the legislature – Parliament and State Assemblies. Such laws are known as Acts divided into sections. Every Act authorises the government to frame rules consistent with connected laws. Acts and rules are announced through Gazette Notifications to be in effect. Designated executives issue orders.
Many a time, legislations are prompted by international commitments made by India in different fora notwithstanding anything contrary to Constitutional provisions. International fora are also referred to as international instruments.
WTO and CBD
Attention is drawn here to just two among many such international instruments: World Trade Organisation (WTO) and Convention on Biological Diversity (CBD).
India became a member of the WTO on 1 January 1995. It also brought to reality — in an updated form — the failed attempt in 1948 to create an International Trade Organization (ITO).
WTO is concerned with all trade related aspects among and between countries. It requires member countries to frame laws for equity in transborder trade. One major aspect of WTO is Trade Related Aspects of Intellectual Property Rights (TRIPS).
The Convention on Biological Diversity (CBD) is another international legally binding treaty with three main goals: conservation of biological diversity (or biodiversity); sustainable use of its components; and fair and equitable sharing of benefits arising from genetic resources.
Biological resources as a global asset are vital to economic and social development. India is a party to the United Nations Convention on Biological Diversity signed at the Earth Summit, Rio de Janeiro on 5 June 1992 when the Convention was opened for signature at the United Nations Conference on Environment and Development.
Indian laws based on international commitments
India amended its Patent Act 1970 and enacted the Protection of Plant Varieties and Farmers’ Rights Act 2001 in conformity with TRIPS. The Geographical Indications of Goods (Registration & Protection) Act, 1999 came into force in 2003 with the Geographical Indications (Registrations & Protections) rules were notified earlier in 2002.
The Biological Diversity (BD) Act 2002 was made to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.
Traditional Knowledge (TK)
Biological Diversity Agreement of CBD specifically provides that every member country “-- will respect, preserve and maintain, the innovations and practices of indigenous and local communities that entail traditional life styles which are pertinent for the preservation and sustainable use of biological diversity and will promote its broadest application, with the approval and participation of those who posses said knowledge, innovations and practices, and will encourage that benefits derived from the use of that knowledge, innovations and practices be shared fairly.”
Government of India, on the recommendations of the National Biodiversity Authority, framed rules in 2009 for ground level implementation of the provisions of BD Act. These rules are called the ‘Rules for Protection, Conservation and Effective Management of Traditional Knowledge Relating to Biological Diversity’.
Traditional Knowledge (TK) has been defined under these rules as:
“the collective knowledge of a traditional community including of a group of families, on a particular subject or a skill and passed down from generation to generation, either orally or in written form, relating to properties, uses and characteristics of plant and animal genetic resources; agricultural and healthcare practices, food preservation and processing techniques and devices developed from traditional materials; cultural expressions, products and practices such as weaving patterns, colors, dyes, pottery, painting, poetry, folklore, dance and music; and all other products or processes discovered through a community process including by a member of the community individually but for the common use of the community”.
Recognition of collective rights
India provides for collective rights of communities over TK, location-specific or community-specific innovative products, forest management and biodiversity through separate laws.
These rights must be used for the common good of all. Other uses for commercial, scientific and research purposes may be allowed only with prior informed consent (PIC) to be obtained from the traditional community.
Misappropriation of TK (in any form of appropriation, monopolisation, including claims of private ownership and/or intellectual property rights etc.) which deprive the concerned traditional community from using, conserving and protecting TK is not permissible. TK and biological resources must be utilised for equitable access and benefit sharing (ABS).
TK and BD Registers
Communities and their government are required to maintain registers showing details of TK and biological diversity.
Under BD Act, local BD Management Committees (BMC) of the panchayet level is responsible for creating and updating local-level BD Registers.
India has already put on the web the Traditional Knowledge Digital Library (TKDL). This is an easily navigable computerised database of documented TK. Such digital database enables Indian citizens and Patent Offices around the world to search and examine any TK to prevent grant of erroneous patents and to deter biopiracy.
Government owned portals related to GI Act, Seed Act, PPV&FR Act, BD Act et cetera are of great help to those wishing to be updated on TK protection and related matters. The Innovation Foundation of India (IFI) web sites are also handy tools for understanding TK.
TK and Biotechnology
Biotechnology is divided into two major categories – the first generation non-rDNA biotechnology and the second generation rDNA biotechnology. As mentioned above, the first generation biotechnology is based fundamentally on TK. The two generations of biotechnologies are interdependent. For example, ‘gene hunt’ begins with biodiversity at the levels of extracellular DNA and that of higher organisms. Biotechnology has expanded in scope and has entered the era of nanobiotechnology.
Detailed knowledge about and the protection of TK blocks exploitation by unscrupulous commercial organisations within India and at the international scale. Biopiracy has taken different forms such as unauthorized use of just one gene or a cell or an organism, traditional techniques for utilisation of biodiversity, the granting of wrong patents, deliberate exploitative patents, granting patents without prior informed consent (PIC) etc.
TK registers must, therefore, include molecular information on systems of biodiversity obtained through biotechnology tools and techniques.
Bioterrorism has gained current importance. This menace can be thwarted only by combining biotechnology and TK to enable quick and mass action by communities at the ground level.
Epilogue
Indian science and technology should take advantage of TK to launch new areas of research for the good of humanity.
Technology institutions should include courses in TK and involve with the people to protect TK as a national heritage and treasure.
