The attempt in this paper is to identify the provisions of the agreement which has a bearing on commercialization of knowledge in the area of traditional knowledge and Bio- diversity to find out its impact on the people who preserved this genetic material from generation to generation. Further an attempt to identify the possible alternatives to protect traditional knowledge systems from being taken away without being adequately rewarded.

The importance and significance of recognizing the diversity related traditional knowledge as intellectual property rights of the people who are preserving biological diversity. To study that while recognizing the right over resources, there is an emphasis on the importance of protecting rights of the user of resources.[1]

Traditional Knowledge:

According to UNESCO Traditional knowledge has been defined as “a cumulative body of knowledge, know-how, practices and representations maintained and developed by people with extended histories of interaction with the natural environment. These sophisticated sets of understandings, interpretations and meanings are part and parcel of a cultural complex that encompasses language, naming and classification systems, resource using practices, ritual, spirituality and worldview.”

 Traditional Knowledge is essentially culture oriented or culture based and it is integral to the cultural identity of the social group in which it operates and is preserved. “Traditional knowledge” is an open-ended way to refer to 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. The definition of traditional knowledge used by the World Intellectual Property Office (WIPO) includes Indigenous Knowledge (IK) relating to categories such as agricultural knowledge, medicinal knowledge, biodiversity-related knowledge, and expressions of folklore in the form of music, dance, song, handicraft, designs, stories and artwork. Traditional knowledge on biodiversity conservation in India is as diverse as 2753 communities and their geographical distribution, farming strategies, food habits, subsistence strategies, and cultural traditions.

Biodiversity:

Biological diversity means the variability amongst living organisms from all sources and ecological complexes of which they are a part and includes diversity within species or between species and of ecosystem”[2]

The term ‘biodiversity’ comprises of two words ‘bio’ and ‘diversity’. The former means ‘life’ and the later means ‘variability’. This term comprises all the life forms and includes their genera, species, variety, and their diversity and variability, between and amongst various life forms. The term further includes the continuous variability that takes place in various life forms both in isolation and due to interrelationship and interdependence. The word biodiversity means the existence of a large number of different kinds of animals and plants which make a balanced environment.[3]

The Act also defines, Biological resources as “plants, animals and micro-organism or parts thereof, their genetic material and by-products, except value added product with actual or potential use or value, but does not include human genetic material. The status of biodiversity has undergone a sea-change in the recent times. Sovereign rights are applicable to biological material. The conservation of Biodiversity is very important because the survival of human beings is intimately dependent on biodiversity”.[4]    

 On a perusal of the background of the Convention on Biological Diversity it is clear that it was a compromise between the interests of the gene rich South and the technologically rich North[5]. The major concern of the Rio Summit was protection of the rights of people who are custodians of the bio-diversity on the one hand and the constant demand of technologically-rich developed countries backed by big transnational corporations for access to the genetic material for research and commercial exploitation for profit. They are also concerned with protection of the new technology through intellectual property rights. On a plain reading of the Convention it is clear that while there are clear and specific provisions[6] in it for protection of intellectual property rights of the technologically-rich, one has to scan through many provisions to articulate the traditional rights what may be termed as the Diversity Related Intellectual Property Rights (DRIPS) of the people who are the custodians of genetic materials.

If one looks at the preamble to the Convention, it is clearly stated that the rights of the indigenous and local communities over biodiversity must be recognized. This includes the preservation of their traditional lifestyles depending on biological resources and also sharing with them the benefits arising from the use of traditional knowledge, innovations and practices[7].

The Biological Diversity Act, 2002:

India is a party to the Convention on Biological Diversity (CBD), which came into force in December 1993. The CBD offers opportunities to India to realize the benefit of these resources. India has already enacted an Act to provide for protection of biological diversity, sustainable use of its components and equitable benefit sharing arising out of the use of the biological resources.[8] It addresses the basic concerns of access to, collection and utilization of biological resources and knowledge by foreigners and sharing of benefits arising out of such access. The legislation also provides for a National Authority, which will grant approvals for access, subject to conditions, which ensure equitable sharing of benefits.

Salient Features of The Act Are as Follows:

a. To regulate access of the biological resources of the country for the purpose of securing the equitable share in benefit arising out of the use of biological resources.

b. To conserve and maintain sustainable use of biological diversity.

c. To respect and protect the knowledge of local communities related to biodiversity.

d. To secure sharing of benefits with local communities as to conserve biological resources.

e. To conserve and develop areas of importance from the standpoint of bio-diversity.

f. To protect and rehabilitate threatened species

g. To involve institutions of state government in the broad scheme of the implementation of the act through constitution of communities.

The impact of Bio-Diversity Convention:

It is clear from the objectives that one could clearly articulate the importance and significance of recognizing the diversity related intellectual property rights of people who are preserving the biological diversity, there is no mention in the preamble as to the need for protecting trade related intellectual property rights of the exploiters of biological diversity but the objectives of the Convention was an attempt in making a balance between rights of owners of genetic material and that of the technology holders who could exploit the resources.  It is also clear from the objectives that while recognizing the rights over resources, there is an emphasis on the importance of protecting rights of the user of resources.[9]

Further it can be inferred that one of the significant provisions in the Convention recognizing and attempting to protect traditional knowledge system is Article 8[10] on in-situ conservation of the biological diversity. The CBD works primarily through implementation of its principles and directives in national law, policy, research, and management. The meetings of the Conference of Parties (COP) result in decisions that provide instructions and guidance for parties on implementing the convention in their national activities. The prime objective of CBD is to conserve biological diversity on one hand and to provide appropriate access to this resource for utilization, the signatories of CBD are required to "respect, preserve and maintain knowledge" of indigenous communities. The use of the term "traditional" along with the term "knowledge, innovation and practices" implies all notions of time bound and historical. As a result, the traditional knowledge systems of indigenous communities fall within the purview of this article. This usage of terms also bestows ownership of knowledge, innovation and practices upon indigenous local communities.[11] Moreover, this article also encourages equitable sharing of benefits, thereby making the indigenous communities as stakeholders in benefits arising out of the utilization of knowledge, innovation and practices.  According to Article 8(j), there is an obligation on the part of the Contracting Parties, i.e. States, to protect, preserve and maintain the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles for the purpose of conserving and sustainable use of biological diversity. The Article also mandates the State to ensure equitable sharing of the benefits derived out of the utilization of traditional knowledge to the owners of the knowledge. Of course, this is subject to national legislation. It is also clear from the provisions on sustainable use of components of biological diversity.[12] The holders of traditional knowledge will also have no right to prevent its exploitation or claim any benefit deriving out of it in the absence of legal rights. The power of contracting parties may also be seen from the provisions dealing with the access to genetic resources.[13] This is significant because access to genetic resources shall be based on pre-informed consent of the provider of such resource[14] on mutually agreed terms[15] and the parties have to recognize the trade-related intellectual property rights on new products and technologies.[16] Thus it is clear that if the contracting parties in possession of genetic resources are not careful to protect the interest of the holders of these resources, there is every possibility of the technologically-rich nations exploiting the resources without returns. It is these provisions which were included by the developed nations at the behest of large corporations involved in the business of bio-technology.

The concern in this regard is conspicuous in as much as the freedom of the developing countries to legislate independently for intellectual property protection which is taken away by making it obligatory to follow international standards in this regard. Though it was agreed to provide technology including bio-technology to the developing countries under fair and most favorable terms, the Convention mandates that the terms and conditions must contain a provision for adequate and effective protection of trade related intellectual property rights including patent rights on the technology. The protection must be afforded through legislative and administrative measures by the developing countries in accordance with international law.[17] The protection and access must also be extended to private sectors in the same manner.[18]  Thus, it is clear that the large private corporations will not only get effective and adequate intellectual property protection to their technology, but also access to the government’s R&D, genetic resources of the developing countries on mutually agreed terms to achieve the objectives of the Convention.[19] It is these provisions which were included by the developed nations at the behest of large corporations involved in the business of bio-technology. International regulations need to be ironed out in order to prevent vested interests from exploiting the lawful owners of IPRs.

Article 8 provides for legal measures to protect public health and nutrition in public interest. Environmental protection has not been explicitly built into this provision. Although, "Public Interest" would be interpreted to include environmental protection, however, this provision gives a wide scope to interpretation of the term "Public Interest".

Article 27(2) provides for exclusion from patentability of inventions, whose commercial use needs to be prevented to safeguard against "serious prejudice to environment". This phrase is rather vague. A country would be required to first define "what is serious prejudice?" justify the prevention of commercial use and only then justify non-granting of patents.

Article 27(3) provides the countries to exclude plants and animals from patentability by providing an effective means or sui generis system of protection of IPRs related to these, which will be interpreted differently by various countries.

Protection of the Indigenous Knowledge: National Perspective:

International and national development agencies have recognized the value of participatory approaches to decision-making for sustainable approaches to development. During the past decade a rapidly growing set of evidence indicates a strong relationship between indigenous knowledge and sustainable development. "Serious investigation of indigenous ethno biological[20]/ethno ecological[21] knowledge is rare, but recent studies show that indigenous knowledge of ecological zones, natural resources, agriculture, aquaculture, forest and game management, to be far more sophisticated than previously assumed. Furthermore, this knowledge offers new models for development that are both ecologically and socially sound[22]

Development activities that work with and through indigenous knowledge and organizational structures have several important advantages over projects that operate outside them. Indigenous knowledge provides the basis for grassroots decision-making, much of which takes place at the community level through indigenous organizations and associations where problems are identified and solutions to them are determined. Solution-seeking behavior is based on indigenous creativity leading to experimentation and innovations as well as the appraisal of knowledge and technologies introduced from other societies.


[1] Art.1 reads : “The objectives of this convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including the appropriate access to genetic resources and the appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies and the appropriate funding.”

[2] S. 2(b) of Indian Biological Diversity Act, 2002.

[3] A.S. HORNBY, ET. AL, (eds., OXFORD ADVANCED LEARNER’S DICTIONARY OF CURRENT ENGLISH, 141 (7th EDITION, Oxford University Press, 2005).

[4] Biodiversity in India: Issues & Concerns by S. Kannaiyan & A. Gopalam, pg. 407

[5] For a brief analysis, See Philip Elmer Dewitt, “Rich v. Poor”, Times (June 1, 1992), p.42; Ashish Kothari, “Politics of Bio-diversity Convention”, EPW (April 11-18, 1992), p.749.

[6] See Arts, 16(2), (3) and (5).

[7] Preamble reads: “Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the consideration of biological diversity conservation.”

[8] The Nagoya Protocol on access benefit sharing in Tokyo in 2001 is an agreement which aims at sharing the benefits arising from utilization in a fair and equitable way, thereby contributing in the conservation and sustainable use of biodiversity. Genetic resources ranging from plants, animals, micro-organisms are used for various reasons from research to products etc. However, at times the traditional knowledge so associated with the genetic resources is obtained from the indigenous and local communities, providing valuable information to researchers.

[9] Art.1 reads: “The objectives of this convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including the appropriate access to genetic resources and the appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies and the appropriate funding.”

[10] Art.8(j) reads: “Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider 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.”

[11] Meeta Biswal and Debidutta Biswal, issues relating to traditional knowledge system and intellectual property rights.

[12] Art. 19(c) reads: “Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.”

[13] Art. 15 reads: “Recognizing the sovereign right of States over their natural resources’ the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.”

[14] Art. 15(5) reads: Access to genetic resources shall be subject to prior informed consent of the contracting party providing such resources’ unless otherwise determined by the party”

[15] Art. 15(4) reads: “Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article”.

[16] See Art. 15 (7).

[17] Art. 16(3) reads: “Each contracting party shall take legislative administrative or policy measures, as appropriate with the aim that contracting parties, in particular those that are developing countries  which provide genetic resources are provided access to and transfer of technology which make use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary though the provisions of Articles 20 and 21 and in accordance with international law and consistent with paragraphs 4 and 5.”

[18] Art. 16(4) reads: “Each contracting party shall take legislative, administrative or policy measures, as appropriate, with the aim that the private sector facilitates access to joint development and transfer of technology referred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developing countries and in this regard shall abide by the obligations included in paragraphs 1,2 and 3 above”

[19] Art. 16(5) reads: ‘The contracting parties, recognizing that patent and other intellectual property rights may have an influence on the implementation of this Convention shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives”.

[20] Defined as “the interdisciplinary study of how human cultures interact with and use their native plants and animals”.

[21]Defined as “Ethno ecology is the scientific study of how different groups of people living in different locations understand the ecosystems around them, and their relationships with surrounding environments”.

[22] Posey, Darrell A. and William Balee, eds. 1989 Resource Management in Amazonia: Indigenous and Folk Strategies. Advances in Economic Botany, Vol. 7 Bronx: New York Botanical Garden.p.139-140.