Protecting Traditional Knowledge: An Indian model for Accessing Traditional Knowledge and Sharing its Benefits in a Fair and Equitable way.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD) is an international agreement which aims at sharing the benefits arising from the utilization of genetic resources in a fair and equitable way, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components. It was adopted by the Conference of the Parties to the Convention on Biological Diversity at its tenth meeting on 29 October 2010 in Nagoya, Japan. The Nagoya Protocol will enter into force 90 days after the date of deposit of the fiftieth instrument of ratification.
[This is from the website of the CBD].

As the XI Conference of Parties (CoP) to the Convention on Biological Diversity is underway in Hyderabad, India, it is time to examine whether the negotiators are anyway closer to getting a meaningful treaty on a global methodology to determine how the benefits arising from the utilization of genetic resources are distributed among the beneficiaries in a fair and equitable manner.The new ABS rules means the multinational companies will now have to share their profits with the communities who had not only provided the genetic resource but also have made available the traditional knowledge associated with its use.

From the very beginning I have watched with interest the debate and the discussions on ABS. I have been quite amused at the way the discussions progressed. The United States, which is not a signatory to CBD, has been sitting very safely over the largest collection of plant germplasm -- over 700,000 plant accessions -- and had all along been using its muscle power to further control over the Traditional Knowledge (TK) associated with it. In the midst of some of the major controversies pertaining to biopiracy -- a term coined to show exploitation of genetic resources by powerful interests -- the debate on how and who should define a community, what constitutes a community and so on kept the world unnecessarily engaged in a futile exercise. While the biodiversity experts were busy grappling with the definition and contours of a community, private companies merrily went around collecting whatever they could. 

Nevertheless. when the Nagoya Protocol was signed in Japan in 2010, the US once again refused to have anything to do with it. It is not a signatory. But continues to participate and guide the proceedings. Amazing, isn't it? I wonder whether CBD would have allowed this concession to any other non-signatory country? But then, this a globally accepted norm. You can criticize the US for not being a signatory to an international agreement, but you cannot outlaw it.

Knowing the tardy progress in protecting the rights of the communities that protected Traditional Knowledge as well as the inability of national governments to make sure that private companies are made to cough out a significant proportion of their income for them, I thought it does not make any sense to go on waiting endlessly for an international treaty. Following the efforts made in several Latin American countries to come up with laws or proposals, the Forum for Biotechnology & Food Security, which I chaired, along with Kerala-based Thanal, organised a national consultation with the objective of framing a draft law to protect Traditional Knowledge. This was in January 2009.

The two-day consultation process developed a policy framework for the protection of Traditional Knowledge. A wide spectrum of participants had detailed discussions before finalising the policy framework. Based on this we had set up a core group which worked for nearly 3 months to come up with a draft legal framework for the protection of Traditional Knowledge. The core team comprised: Ms. Sunita Sreedharan of SKS Law, New Delhi; Dr TC James, former-Director Patents in DIPP, Govt of India; Prof. T. Ramakrishna, National Law School University, Bangalore; Mr. Sridhar R, Programme Director, Thanal; Mr. Bhaskar Goswami, Forum for Biotechnology& Food Security; Prof M K Ramesh, National Law School University, Bangalore; and myself. 

It was certainly a formidable task, but after a series of deliberations and innumerable number of hours of discussions on the Skype, the core group was finally able to come up with what many think is an excellent set of rules that will do justice to the communities protecting Traditional Knowledge associated with biodiversity. Four months later, at the 2nd National Consultation on framing legal provisions for protecting and conserving Traditional Knowledge held at TERI Retreat, in Gurgaon, we presented the outlines of the draft. 

The then Minister for Environment & Forests Jairam Ramesh presided over the 2nd National Consultation and asked us to frame rules that can be incorporated under the National Biodiversity Act. He in fact specifically asked us to deliver the same in two months time so that the regulations could be adopted. This gave us a lot of hope, as we had been grappling with this matter for a  number of years, both nationally and internationally. Fortunately, very good contribution, by way of experience and intellect came from all sections towards drafting this law. 

Accordingly, the team prepared the Traditional Knowledge rules. These Rules specifically sets out to provide for protection, conservation and effective management of traditional knowledge related to biodiversity. It recognises the ownership of the holder of Traditional Knowledge and also ensures that not only should this right be upheld but the continuum of the practice also ensured. You will agree that “simply” documenting it will not ensure its continuity which is why we have proposed numerous checks and balances to benefit and protect the rights of the Traditional Knowledge holder. On the management side, we have aimed at preventing misuse, abuse and misappropriation of Traditional Knowledge by bringing in a License to Use system. This includes a stringent process of evaluation, with active participation of the State Biodiversity Boards, Biodiversity Management Committees and most importantly the Traditional Community.

The Rights of the Traditional Communities and Practitioners to use, share and continue their livelihood unhindered is also ensured, even while its commercial utilisation is managed from the point of view of its ecological and social sustainability as well as ensuring adequate and equitable benefits by way of monetary, non-monetary and welfare-based measures. We have also ensured that a strong regulatory system is in force which is a deterrent against usurpation of rights of knowledge holders and also bestows responsibility and power on the National Biodiversity Authority. We submitted the sui generis regulation for the protection of Traditional Knowledge related to biodiversity to the Minister, and this was duly put up on the website of National Biodiversity Authority. For three years, TK Rules 2009 donned the NBA website and at least two workshops were held to deliberate on it. The National Law School University had separately organised another round of discussions on TK rules which were duly presented to the National Biodiversity Authority. The link (www.nbaindia.org/docs/tk_rules2009.pdf) for some explained reasons has at the time of CoP X1 conference been removed. Comments that were received were also visible (and some of these comments were really meaningful and were being considered) have also been removed. Click on the link and you will get the response.

Nevertheless, what could have been a very important contribution from India to the entire dialogue on  Access and Benefit Sharing and perhaps could emerge as a global model on protecting the local communities as well as to ensure fair and equitable sharing of benefits is still not lost.

The sui generis model for TK protection is separated into 9 chapters. The salient features of the draft bill, which identifies rights and duties of traditional communities and accessor, and also suggests the formation of a Traditional Knowledge Authority, includes: 1) Definition of TK, abuse, access, accessor, benefit, informed consent, traditional community etc. 2) Creation and maintenance of Traditional Knowledge register. 3) Identification of the sources from where informed consent has to be gained to access TK. 4) Indicative list of accessors who are required to obtain prior consent. 5) Duties and obligations of the central Govt, State govts and TK Authority to ensure prevention of misuse of TK. 6) Preparation of national policy, strategy and action plan by the TK Authority every 5 years, which ensures the protection, continuation of use and practice of TK and ensures sustainability of the resources including human resource on which TK is dependent. 7) Duty of TK Authority to prevent biopiracy and other misuse of TK and to take preventive/punitive actions  to safeguard the same. 8) TK Authority to be assigned with additional responsibility to ensure that the due environmental and social impact assessment be done before granting access to any traditional knowledge. 9) TK Authority to ensure that the use of traditional knowledge is not against any public order or morality. 10) TK Authority to educate and increase awareness in the communities to ensure just and fair negotiations. 11) TK Authority to assigned powers to notify certain traditional knowledge as endangered or verge of extinction or likely to become extinct, and also the power to restrict access to such traditional knowledge. 12) Appellate mechanism to appeal against the decision of TK Authority. The orders issued by Appellate Mechanism shall be applicable at the Supreme Court of India.

More details are available in a paper by my colleague Sunita Sreedharan, entitled: Bridging the Time and Tide -- Traditional Knowledge in the 21st Century, published in the Journal of Intellectual Property Rights Mar 2010 (http://nopr.niscair.res.in/bitstream/123456789/7624/1/JIPR%2015(2)%20146-150.pdf). For those who are keen to receive the pdf copies of the TK Rules 2009 you can write to me.