Protection of Indigenous Knowledge: Balancing Bioprospecting and Biocultural Rights

Disha Verma

University School of Law and Legal Studies, GGSIPU

Abstract

In a world centred around industrialisation and corporations providing unimaginable amounts of goods and services, the want to continuously upgrade the existing goods and services and introduce some new ones arises to ensure the effective sustenance of such corporations. A landmark way to satisfy such want is found in the use of Indigenous knowledge held by Indigenous communities since time immemorial.

This article attempts to understand the conflict of interests found in the use of such indigenous knowledge. This conflict is found between the 'sources,' i.e., the holders of Indigenous knowledge, and the corporations seeking to utilise such knowledge to offer goods and services previously not widely known or used. Corporations tend to obtain intellectual property rights (IPRs) over the Indigenous knowledge that they wish to monopolise. This is usually found in the form of patents, wherein it is found that the very concept of patents does not align well with what is internationally defined as 'Indigenous knowledge.'

The article wanders around topics such as biopiracy, bioprospecting, and traditional knowledge before finally exploring the conflict in detail, some other unintended outcomes, as well as the possible solutions to this growing problem of present times.

Keywords: Indigenous knowledge, Indigenous communities, Biopiracy, Bioprospecting, Patents, Conflict of interests

Introduction

The timeless worth of knowledge is recognised across world cultures throughout history. It is knowledge alone that brings about the utility of various resources and is even regarded as the most superior wealth of all. It is, thus, no surprise that 'Indigenous knowledge' has come to acquire the term 'Green Gold' around the globe. This green gold is found in abundance in India due to the geographical and cultural diversity it holds. The World Intellectual Property Organisation (WIPO) has attempted to define 'Traditional Knowledge' (TK) as knowledge, possessed by indigenous people, in one or more societies and in one or more forms, including, but not limited to, art, dance and music, medicines and folk remedies, folk culture, biodiversity, knowledge and protection of plant varieties, handicrafts, designs, and literature; it is knowledge, know-how, skills, and practices that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.

A major setback in the prevention of the exploitation of traditional knowledge is the ambiguity in its definition. This is so because indigenous communities may be holders of traditional knowledge, but not all traditional knowledge holders are essentially indigenous.

Biopiracy refers to stealing bioresources and knowledge from indigenous communities, individuals, or the country. The word also refers to violating contractual agreements by accessing and using bioresources and traditional knowledge systems without consent from local populations.

Bioprospecting is a rather recent term created in response to the epidemic of biopiracy, to the conflict between global commercial interests and the interests of indigenous communities. Bioprospecting, which typically occurs before biopiracy, is the systematic search for new sources of chemical compounds, DNA, micro- and macro-organisms, and other important bio-products. Bioprospecting is the search for beneficial organic molecules found in nature, which often involves collecting and examining plants, animals, and microbes for genetic or biochemical resources with social and economic value. It usually involves a corporation sending an ethnoscientist to talk to a member of an indigenous community and to settle on compensation with the individual or the community.

Diving into the Arising Problems

Biopiracy is recognised as largely illegal now, but the problems arising from bioprospecting are not any better either, with many scholars calling it out as 'a sophisticated form of biopiracy' or 'the same old wine in a new bottle.' The metaphor of prospecting is derived from the concept of prospecting for gold or oil. This implies that the patented Indigenous knowledge previously lay buried, hidden, and unutilised, like gold or oil. But this is not true. Traditional knowledge has not only been known by the holders of such knowledge but has also been utilised from time immemorial, though such use may not be wide. Bioprospecting enables the patent holders to monopolise the ownership and application of traditional knowledge while the sources of such traditional knowledge are rendered handicapped. Community members then become bound to pay for the goods produced by patent holders if they wish to continue to enjoy the benefit of their long-held traditional knowledge.

The very concept of granting patents for the monopolisation of Indigenous knowledge is legally unsound. Requirements of patentability broadly include patentable subject matter, industrial applicability, novelty, non-obviousness, and disclosure of the invention. Yet Indigenous knowledge can, in no way, be understood as an 'invention.' An invention is typically by a private entity that has taken place within a specified period. Traditional knowledge is rather a product of innumerable generations within a culture that has been passed on largely orally. Granting patents for traditional knowledge creates an ironic situation where the sources of Indigenous knowledge are forced to pay for what was originally theirs.

Another flaw in the grant of intellectual property rights (IPRs) for traditional knowledge is the validity of the consent obtained in the process of bioprospecting. The consent so obtained varies like specific legislation from nation to nation. Its nature mostly revolves around obtaining consent from certain authorised government entities or from some individuals belonging to the community that holds the sought-after traditional knowledge. If the consent is obtained from a governmental authority, then the will of the community is unrepresented or only indirectly taken into consideration. On the other hand, obtaining consent from some individuals of the community alone is neither justified, as the knowledge is a collective product of all members of the community and also the intellectual property of their ancestors. While the consent of the dead cannot be obtained, efforts to consider the collective will of all the Indigenous community members must be present.

Even if the consent to monopolise the use of Indigenous knowledge is free, valid, and obtained in exchange for valid compensation, the resultant overuse and exploitation of the resources cannot be ignored. Such profit-maximising motives increase the pressure on natural resources, thus leading to scarcity of such resources and ecological imbalance.

The issue of double exclusion due to bioprospecting is yet another drawback. The first exclusion occurs when a community that is the source of traditional knowledge is omitted, and one group is assumed to have unique knowledge. The second exclusion occurs when a commercial company signs a bioprospecting contract and claims intellectual property rights (IPR) on knowledge transferred from an Indigenous community without justification for invention. Marketing systems and IPR regimes can lead to a dependency on patented commodities from businesses that monopolise biodiversity and knowledge, eventually excluding the donor community.

Bioprospecting is an illusion showcasing the financially poor Indigenous communities becoming rich through monetary compensation. Yet the reality opposes this perspective. The bioprospecting model is a model for taking away the last resources, both natural and intellectual, from the poor. To understand how bioprospecting contributes to poverty, it's important to distinguish between the material and financial economies. People with great biodiversity and intellectual riches can address their health care and nutritional needs using their resources and knowledge. Transferring rights to resources and knowledge from the community to IPR holders might result in expensive royalties for what was previously free. As a result, Indigenous communities fall into material poverty.

Indigenous peoples regard traditional knowledge as sacred; therefore, the extraction of plants, research methodologies, and the concept of intellectual property may be perceived as an attack on their values. This may result in a clash of viewpoints between economic and cultural values.

Legislations and Policies

Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement of the World

Trade Organisation is heavily influenced by trade and international businesses' interests. Commercial interests view biodiversity as a raw ingredient for commodity production and profit maximisation, without its own value.

The Convention on Biological Diversity has been the first international initiative to recognise:

(a) conservation of biological diversity,

(b) the sustainable use of its components, and

(c) the fair and equitable sharing of benefits derived from its utilisation

"An India where intellectual property stimulates creativity and innovation for the benefit of all" is the vision of India's National IPR Policy.

In India, the Ministry of Ayurveda, Yoga and Natural Therapy, Unani, Siddha and Homoeopathy (AYUSH) manages initiatives relating to medicinal plant use.

The Biological Diversity Act of 2002 (BDA) of India aims to comply with the Convention on Biological Diversity (CBD), which India has ratified. In terms of Section 6(1) of the Biological Diversity Act, 2002, a person is prohibited from applying for any intellectual property in or outside India for any invention based on any research or information on a biological resource obtained from India without first obtaining prior consent from the National Biodiversity Authority (NBA). The Act, thus, admits applications for IPRs for products or inventions that employ traditional knowledge, subject to the approval of competent authorities.

The Patents Act, of 1970, is another forefront legislation that regulates patents related to Indigenous Knowledge, among other patents. It defines that "invention means a new product or process involving an inventive step and capable of industrial application." Further, Section 3 of the Act, which covers non-patentable inventions, also includes "an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components" under Section 3(p).

The Traditional Knowledge Digital Library (TKDL) is a joint initiative of the Council of Scientific & Industrial Research (CSIR) and AYUSH in India. It prevents the misuse of its traditional knowledge by digitising almost all ancient Ayurvedic, Siddha, and Unani texts. It comprises more than 2.9 lakh medical formulations.

Apart from these, the Protection of Plant Varieties and Farmers' Rights Act, 2001; Forest Rights Act, 2006; Geographical Indication of Goods Act, 1999; and the National Green Tribunal are some other mechanisms regulating the grant of IPRs in the case of traditional knowledge.

The Cases of Neem, Basmati, and Turmeric

According to a 2000 Council of Scientific and Industrial Research (CSIR) assessment, seven medicinal plants of Indian origin comprised 80% of all medicinal patents issued in the United States and the United Kingdom. In 2003, the US and UK issued approximately 15,000 patents on medicinal plants of Indian origin, and by 2005, the number of patents had increased to 35,000. This demonstrates the developed countries' interest in the Indigenous knowledge of developing countries. To get a better understanding of how biopiracy takes place, the situations of neem, turmeric, and basmati rice are worth studying.

In 1994, the European Patent Office (EPO) granted a patent to W.R. Grace Company, a US corporation, and the US Department of Agriculture for a product for controlling fungi on plants by the use of hydrophobic-extracted neem oil. The neem tree, botanically termed Azadirachta Indica, has various uses mentioned in Indian historical texts from more than 2000 years ago. Its applications range from insecticides, pesticides, and veterinary medicines to the use of its oil to cure cold, flu, and even skin diseases. On legal opposition by a group of non-governmental organisations to such a patent grant, the European Patent Office revoked the patent granted for Neem. This step was a result of the evidence that the monopolised use of neem oil had long been a part of Indian agricultural practice as a part of traditional knowledge and was thus unpatentable.

In 1997, another American company, RiceTec Inc., obtained a patent for rice grown from the cross-breeding of Indian Basmati with its semi-dwarf varieties. Upon an application by the Agricultural and Processed Food Exports Development Authority (APEDA) to re-examine RiceTec's patent rights, RiceTec withdrew 15 of its original 20 claims. This was viewed as a blatant case in the world because it affects the biological resources and the traditional knowledge of farmers who grow Basmati rice.

In 1995, the American University of Mississippi Medical Centre obtained a patent for the use of turmeric for wound healing. The Council of Scientific & Industrial Research (CSIR) of India later challenged the validity of this patent and was successful in establishing the ancient use of turmeric for not only wound healing but also for cosmetics dyes and medicinal purposes.

A Successful Instance of Bioprospecting: An Indian Case

Trichopus zeylanicus, known as 'Arogyapacha,' has long been used to treat fatigue and stress by the Kani tribe, inhabiting the South-Western Ghat region of Kerala. The traditional knowledge of this tribe led to the development of a valid drug, "Jeevani," by the Tropical Botanic Garden and Research Institute (TBGRI). In return for this, TBGRI contracted with the Kani tribe to share the license fee and royalty with a 1:1 ratio. This instance has been the first in the world to feature a benefit-sharing model and the first to implement Article 8(i) of 15.7 of the Convention on Biological Diversity. Yet there also exists criticism of this model, which raises doubts about the validity of the consent of the tribal community so obtained.

The Way Forward

Attempts to conserve and prevent monopolisation of Indigenous knowledge are on the rise globally, wherein WIPO is trying to seek two types of protection for it:

Defensive Protection: Such protection is aimed at preventing outsiders from obtaining monopolistic authority over traditional knowledge through intellectual property rights. It extends to also include the protection of indigenous symbols or names from being covered under trademarks. It includes the necessity to disclose the origin of the genetic resources and traditional knowledge relevant to the invention in the patent application and the preparation of a database with information about traditional knowledge such that its novelty can be assessed by patent-granting authorities.

Positive Protection: This approach ensures legally and ethically strong mechanisms for the economic and moral rights of Indigenous communities over their knowledge. It covers the regulations by such communities over their traditional knowledge in terms of the commercial benefits derived. Thus, strict regulations of various types of intellectual property need to be put in place through specific legislation by countries internationally, along with non-ambiguous systems for contracting and registration in such cases. Moreover, even if contracts are not exploitative for communities holding traditional knowledge, there ought to be regulations looking after the magnitude of exploitation of natural resources. This has become ever so important due to environmental degradation and the common need for sustainable development.

As a result, the existence of strong national legislation for the protection of Indigenous knowledge, accompanied by efforts to create awareness among Indigenous communities about their rights, is an absolute need of the hour in a corporate world that seeks to handle the problem of economic scarcity.

Reference List

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