Journal of Intellectual Property Rights
Vol 13, September 2008, pp 509-513
Traditional Knowledge, Intellectual Property Rights and Biodiversity
Conservation: Critical Issues and Key Challenges
A Damodaran†
Indian Institute of Management, Bannerghatta Road, Bangalore 560 076, India
Received 20 May 2008
Based on a survey of the major national and international initiatives undertaken to protect Traditional Knowledge (TK)
since 1990s, the paper states that the task of reconciling TRIPS with CBD and other related TK laws is fraught with
difficulties. After examining various IPRs in relation to TK, the paper argues that there are clear limits to which former can
accommodate the latter especially when it comes to positive protection of TK and related cultural expressions. The main
argument in this paper is that sui generis legislations are more effective for the protection of TK and related cultural
expressions. A sui generis legislation that views TK as a composite resource, having both economic and cultural features has
a better prospect of ensuring protection of TK, besides enabling benefit sharing. By having international regulations that
harmonize protection measures, it is guaranteed that national efforts at protection are not wasted due to absence of
reciprocity.
Keywords: Sui generis, bioprospecting, valuation
The birth of the Convention on Biological
Diversity (CBD) in 1992 and inception of TRIPS in
1995 marked the advent of a fierce debate on the
place to be accorded to traditional knowledge in the
scheme of intellectual property protection. There were
three strands of thinking that came out in the debate.
The first strand emphasised on protection of TK
within the framework of IP laws covered by the
TRIPS. The second strand laid stress on adjustments
in non- IP laws including biodiversity conservation to
secure TK protection. The third perspective argued
for setting up a sui generis system of TK protection
that was based on an amalgam of modern IP and nonIP
laws and regulations, including customary laws. In
the first seven years of the existence of the TRIPS, no
solution emerged. Despite the Doha Declaration of
2001 paying attention to the issue, we are yet to
witness a conclusive end to the debate.1
Meanwhile
the Intergovernmental Committee on Intellectual
Property and Genetic Resources of the WIPO has
developed an overview of policy objectives and core
principles for the protection of TK at the global level.
At the national levels too, there have been initiatives
to protect TK. Countries like India have tried to
address the matter of TK protection, through
facilitating changes in their patent and biodiversity
laws, besides attempting to put in place sui generis
systems for protecting traditional knowledge. Against
the backdrop of current international developments,
the paper attempts to assess the complexity of the
concept of traditional knowledge in relation to
intellectual property and biodiversity conservation
with special reference to India.
Rationale and modes of Protecting Traditional
Knowledge
Unlike modern products and processes that qualify
for IP protection, largely due to their tangible
character, TK cannot be reduced to tangible products
or processes. Article 3 of the WIPO’s Revised Draft
Provisions for the Protection of Traditional
Knowledge: Policy Objectives and Core Principles,
defines traditional knowledge as the ‘content or
substance of knowledge resulting from intellectual
activity in a traditional context, and includes
know-how, skills, innovations, practices and learning
_____________________
†Prof Damodaran is a Professor at the prestigious Indian Institute
of Management, Bangalore, where he holds the MHRD Chair. He
has specialized in the economics of IP protection in relation to
plant biotechnology & IT sectors. His other areas of involvement
are trade and environmental issues, with focus on Environmental
Agreements in addition to his interest in traditional and heritage
knowledge and the role of IPR protection systems and
biodiversity legislations for their preservation and gainful
utilization.
E mail : damodaran@IIMB.ERNET.in
J INTELLEC PROP RIGHTS, SEPTEMBER 2008510
that form part of traditional knowledge systems, and
knowledge embodying traditional lifestyles of
indigenous and local communities, or contained in
codified knowledge systems passed between
generations’.2
The definition conveys the composite
nature of TK in terms of its technology, knowledge
base and cultural contents. It is this aspect of TK that
distinguishes it from modern IP systems that focus
narrowly on novel or new innovative products and
processes. In terms of the composite perspective,
misappropriation of traditional knowledge does not
just involve loss of rights over one’s innovative skills
or know how rather it leads to loss of community
identity.
Unauthorized use, misappropriation or misleading
use of community totems or logos by trade and
industry are cited as reasons for global and national
efforts for protecting TK. The fact that such improper
use of TK deny potential flow of benefits, add to the
sense of deprivation for the TK holder. This renders
the quest for defensive protection of an absolute
necessity. Measures to prevent grant of IP rights to
non customary holders include developing TK
databases. While these systems act as excellent
defensive measures, they do not confer positive
benefits to the community concerned.3
On the other
hand, a proactive policy of protecting TK can ensure
accrual of benefits to the local communities.
Consequently certain national regulations for
protecting TK also stress on benefit sharing as an
essential precept.
In the WTO forum on TRIPS, five modes of TK
protection have been advocated. The first mode
involves use of existing IPR laws to protect TK
through facilitating changes in the former. The second
one involves disclosure requirements which require
an innovator to disclose utilization of traditional
knowledge in a patent application, besides producing
evidence of having obtained prior informed consent
from the competent authority in the country of origin
of TK and entered into appropriate benefit-sharing
arrangements with the community or entity
concerned.4
The third mode involves institution of a
stand alone sui generis system for the protection of
TK. The fourth mode involves use of contract laws
based on bilateral agreements on a case by case
method for protecting TK. The fifth mode involves
use of environmental legislations such as biodiversity
legislations for building provisions for TK protection.
While the first mode clearly involves a defensive
approach to TK protection, the remaining four tracks
carry elements of proactive protection that entail
benefit sharing.
Since TK is also about cultural identities, it is
obvious that apart from the five tracks mentioned, a
variety of adventitious laws are considered to be
important for TK protection. This includes trade
practices and marketing laws, laws of privacy and
rights of publicity, law of defamation, cultural
heritage registers, inventories and databases;
customary and indigenous laws and protocols;
cultural heritage preservation and promotion laws and
programmes and handicrafts promotion and
development programs.5
This repertoire largely
enables defensive approaches. Their role in
facilitating positive benefits to the holders is limited.
Limitations of IP based Protection
There are many philosophical reasons for TK not
fitting into the framework of modern IP laws. These
are:
− IPRs protect individual property rights whereas
traditional knowledge are collective or
community resources
− Traditional knowledge evolves over a long
period of time stretching over generations and
may not meet the criteria of novelty or
inventive step required for IPRs like patents
− For the reason mentioned above, products
based on TK cannot be reduced to a limited
duration of protection as is provided for
patentable products
− TK may be held by multiple communities and
it becomes difficult to determine title holders
− Traditional knowledge is not based on
scientific methods or assessments
Apart from these broad reasons, TK protection
through existing IP laws suffers from certain specific
limitations. Disclosure of TK in patent filings is not
mandated by IP laws in developed countries, though
the same has been incorporated in India’s Patent Act
1970 following recent amendments.6
Coming to copyrights, the hoary nature of TK
precludes protection though in recent years legal
rights over copyright to traditional knowledge have
been introduced in recent years to prevent
‘unauthorized use of photographs of indigenous dance
group’, or unauthorized reproduction of art images.7
Distortion of artistic works containing pre-existing
DAMODARAN: TK, IPR AND BIODIVERSITY CONSERVATION 511
cultural clan images are also viewed as violations. It is
often held that trade secret law can be employed to help
indigenous and local communities restrict circulation of
their knowledge, innovations and practices. However
given the customary connotations associated with
community knowledge it is doubtful whether trade
secrets legislations, with its emphasis on employeremployee
relationship in corporate settings, will hold
for a community vis-à-vis its members. Design
protection on TK based cultural expressions is not
feasible given the emphasis of design IP laws on ‘new’
and ‘non disclosed’ creations.
TK craft products and associated logos and symbols
that fulfill the requirement of ‘distinctiveness’, are
ideally suitable for protection as a collective or
certified trademark. The advantage of geographical
indications laws is that they permit registration of a
reputed traditional product from an identified area to be
registered and protected as a Geographical Indication
(GI). Aranmula mirror, Aligarh locks and other
products with a huge reputation for craftsmanship have
been registered in India as GIs. In some cases as in the
case of certain textile products there have been efforts
to protect age old designs as GIs .8
Plant Variety Protection legislations that are based
on the 1991 UPOV Agreement do not favour
protection of traditional varieties of plants such as
landraces nurtured by farmers. This is due to the
insistence of UPOV based legislations on registering
‘new’ varieties that are distinct, uniform and stable.
However, the OAU Model Law and India’s Protection
of Plant Varieties and Farmers’ Rights Act 2001
(PPVFR) are different from the plant breeder regimes
based on the UPOV, since they have active provisions
for protection of TK. India’s PPVFR is consistent with
the notion of a sui generis legislation as stated by
Article 27 (3) of WTO-TRIPS. It provides for
registration of extant varieties and landraces, thus
affording protection for traditional plant products of
different farmers/farming communities. Similarly,
compensation and benefit sharing clauses of the
PPVFR provide ample protection to traditional plant
materials and their associated knowledge. This has
been made possible by the unique nature of India’s
PPVFR being a delicate amalgam of CBD, the FAO
International Undertaking on Plant Genetic Resources
and the UPOV. 9
Non-IP Laws
Contracts have the advantage of securing
protection for TK in situations where formal laws do
not provide for their protection. However, this
advantage can be realized only when communities
which are holders of TK are in a position to negotiate
contracts with their customers in an informed manner
and have the ability to negotiate effectively for
realization of benefits from fair use of their products.
Nevertheless where facilitating national level
institutions and laws exist (that brings about informed
three party contracts negotiations) the possibility of
contracts leading to fruitful results for TK protection,
cannot be ruled out. Alternatively contract laws, if
complemented by civil and/or criminal remedies
available under general trade practices could prove to
be equally effective in a national context.10
Biodiversity Laws and TK
Article 15 (5) of the CBD states that ‘Access to
genetic resources shall be subject to prior informed
consent of the Contracting Party providing such
resources, unless otherwise determined by that Party’.
Article 15(7) of the Convention requires parties to
take legislative and administrative policy measures
with the aim of sharing in a fair and equitable way the
results of research and development and the benefits
arising from the commercial and other utilization of
genetic resources, with the contracting party
providing such resources. Such sharing is envisaged
to be on mutually agreed terms.
As has been mentioned earlier, five modes of
protection have been advocated for protecting TK in
the WTO forum. It is in the spirit of the stated CBD
provisions that India and Brazil have, in the TRIPS
Council deliberations argued for TRIPS to be
amended so that Members shall require patent
applicants to disclose:
● the source and country of origin of any biological
resources or traditional knowledge used in
inventions
● Evidence of prior informed consent from the
competent authority in the country of origin
● Evidence of fair and equitable appropriate benefitsharing
arrangements to have followed national
law.11
Switzerland too came up with the idea of a
disclosure requirement. However the focus of the
Swiss proposal is on amendment of the Patent
Cooperation Treaty of WIPO (PCT) which would
enable countries to insist upon patent applicants to
disclose the source of genetic resources or traditional
knowledge used in inventions. 12
J INTELLEC PROP RIGHTS, SEPTEMBER 2008512
The European Community, on the other hand, has
proposed mandatory requirement on the part of
national, regional and international patent applicants
to disclose information on the country of origin or the
source of genetic resources or traditional knowledge
made use of by an innovator. At the national level,
India has attempted a similar move by amending its’
Patents Act 1970 to provide for disclosures of sources
of TK in patent applications. Clauses 19(2) and 19 (3)
of India’s National Biodiversity Act of 2002 provide
for previous approval for access to traditional
knowledge. The Act also provides for equitable
sharing of benefits arising from use of biological
resources and associated TK.
In case the issue of TK protection needs to be
resolved within the framework of WTO, it is
important to reconcile the provisos of Articles 15(5)
and 15(7) of the CBD with review of Article 27.3(b)
of the TRIPS.13
However the cardinal problem is that an
amendment to the TRIPS on the lines desired by India
and Brazil seems to be a distant reality. The fate of
the Swiss and the EU proposals are not different. This
necessitates looking at options for formulating a sui
generis legislation or guidelines for protection of TK
at the national and global levels.
Why a Sui Generis TK Protection System?
One of the greatest problems facing bioprospecting
contracts has been valuation of the resources covered
by the contract. Genetic resources being public goods
exist outside the pale of markets. They are not
amenable to pricing. Where both genetic resources
and associated TK are sought to be accessed through
bioprospecting activities matters get complicated. One
of the most ticklish issues is to segregate value of
genetic resources from its associated TK. Since
biodiversity legislations largely view TK as an
associated feature of genetic resources, the former is
likely to be devalued in comparison to the latter. A sui
generis legislation on TK that recognizes its
autonomous economic, cultural and ‘development’
character (independent of its association with other
resources) is able to ensure a more objective valuation
of TK from a benefit sharing perspective.
A sui generis law for protecting TK is also
necessitated by the fact that discussions that narrowly
focus on traditional knowledge related to biological
and non biological resources do not cover the
knowledge that is non- functional. A case in point is a
TK perspective on climate , seasons and related facets
of nature.14
A sui generis regulation that covers all
facets of TK will be wider in scope and
comprehensive in approaching TK in its totality. To
this extent it will encourage a more objective system
of valuation of TK that respects its aggregate value,
than the value of a small component.
While national sui generis legislations would
facilitate a robust system of TK protection,
international action to frame guidelines and compacts
is desirable, given the global character of knowledge
and resource flows. International guidelines and
compacts not only guarantee reciprocity but also
ensure that norms of TK protection and benefit
sharing are harmonized within the framework of a
multilateral regime.15
Conclusion
The main argument in this paper is that sui generis
legislations are more effective for the protection of
TK and related cultural expressions. Though the
process of employing TK in the prior art examination
process has gained currency in the world, the larger
task of protecting TK in an affirmative sense is yet to
be accomplished. This is partly due to the fact that the
process of integrating TK concerns within existing
laws have not succeeded in many countries due to the
inability of many countries to recognize TK as falling
within the meaning of ‘novel’ innovations. While
geographical indications and biodiversity legislations
offer scope for TK protection, they are restricted in
scope. While GIs are primarily concerned with
resources that enter the realm of trade, biodiversity
legislations deal with TK that is tied to biological or
genetic resources. A sui generis legislation that views
TK as a composite resource, having both economic
and cultural features has a better prospect of ensuring
protection of TK, through improved valuation and
benefit sharing. If national measures for sui generis
protection are backed by international regulations that
harmonize protection measures, TK protection within
national boundaries would be fortified by
‘reciprocity’ guaranteed by international compacts.
References
1 Para 19 of the Doha Ministerial Declaration of 2001 called
upon the TRIPS Council, to examine, inter alia, the
relationship between the TRIPS Agreement and the
Convention on Biological Diversity.) The Ministerial
Declaration also requested the TRIPS Council to consider
protection of traditional knowledge and folklore as part of
its review of the implementation of the TRIPS under
Article 71.1. WTO (2001) Ministerial Declaration,
DAMODARAN: TK, IPR AND BIODIVERSITY CONSERVATION 513
Doha WTO Ministerial 2001WT/MIN(01)/DEC/1,
20 November 2001, http://www.wto.org/English/
thewto_e/minist_ e/min01_e/mindecl_e.htm).
2 WIPO (2006): Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and
Folklore, Ninth Session, Geneva, 24-26 April 2006,
wipo/grtkf/ic/9/5, 9 January 2006.
3 This is not to state that defensive measures do not entail
payments to the TK holders. However payments that flow out
of successful defensive measures have the character of
‘compensation’ than ‘benefit’.
4 This proposal was mooted by India and Brazil in the TRIPS
Council deliberations; Meier Ewert Wolf, The relationship
between TRIPS and the Convention on Biological Diversity
(CBD) - State of play in the TRIPS Council, Presentation at
WTO Symposium on Trade and Sustainable Development,
Geneva, 11 October 2005.
5 Wendland Wend B, for a detailed exposition of the aspect of
cultural expression, 2006. Admittedly there is no effort made
in this paper to touch upon the initiatives of WIPO’s
Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore (the
Committee) to review legal and policy options for the
protection of traditional cultural expressions
(TCEs)/expressions of folklore as spelt out in WIPO (2005)
and (2006).
6 Those who oppose amendment of patents laws to provide for
protection of TK, argue that such an amendment is redundant
if TK enters pre-grant system as prior art in the form of digital
database or is presented in post-grant opposition proceedings.
The revocation of neem and turmeric patents is cited as an
instance of the success of the patents system in eliminating
spurious innovations that are based on mis- appropriation of
TK. What this argument overlooks is that a large segment of
TK which is based on tacit knowledge and oral traditions of
dissemination do not enter the realm of patent processes to
position themselves as prior art .
7 WTO (2006, b), The Protection of Traditional Knowledge and
Folklore: Summary of Issues Raised and Points Made, Note by
the Secretariat, Revision, IP/C/W/370/Rev.1, Council for
Trade-Related Aspects of Intellectual Property Rights,
9 March 2006.
8 Damodaran A, Coupling creative designs and innovative
technology to build sustainable market share, paper presented
at WIPO-National Institute of Design Seminar on Industrial
Design and Intellectual Property Rights, Ahmedabad, 25-26
April 2006.
9 A detailed analysis of the economic implications of India’s
PPVFR 2001 is attempted in Damodaran A, Economic
Implications of Global Conventions and India’s Regulatory
Environment on Plant Biotechnology Industry, 2004, Research
Monograph No. 393, Institute of Developing Economies,
Japan.
10 This argument is closer to the US position in the Council for
Trade-Related Intellectual Property Rights of the WTO as
well, WTO (2004) Article 27.3(B) Relationship Between the
TRIPS Agreement and the CBD and the Protection of
Traditional Knowledge and Folklore, Communication from
the United States IP/C/W/434, 26 November 2006.
For a detailed discussion on the analytics of the benefit sharing
regimes for genetic resources and associated TK, see
Damodaran A, Economics and Policy Implications of India’s
National Biodiversity Legislation, Economic and Political
Weekly, December 2003.
11 Ewert Wolf Meier, The relationship between TRIPS and the
Convention on Biological Diversity (CBD) - State of play in
the TRIPS Council, presentation at WTO Symposium on Trade
and Sustainable Development, Geneva, 11 October 2005,
www.wto.org/english/tratop_e/envir_e/sym_oct05_e/meier%2
0_ewert_e.ppt.
12 This would have been in the spirit of the suggestions advanced
by India and Brazil, Ewert Wolf Meier ,The relationship
between TRIPS and the Convention on Biological Diversity
(CBD) - State of play in the TRIPS Council’ , Presentation at
WTO Symposium on Trade and Sustainable Development,
Geneva, 11 October 2005, www.wto.org/english/
ratop_e/envir_e/sym_oct05_e/meier%20_ewert_e.ppt.
13 WTO (2006, a) , Review of the provisions of Article 27.3(b),
Summary of issues raised and points made, Note by the
Secretariat, Revision, 9 March 2006, IP/C/W/369/Rev.1,
WTO , Council for TRIPS, Geneva.
14 On the significance and distinctiveness of traditional
cosmology, Berkes Fikret, Traditional ecological knowledge,
p1-10 in Perspective In Traditional Ecological Knowledg :
Concepts and Cases, edited by Julian T Inglis, International
Programme on Traditional Ecological Knowledge and IDRC,
1993, Ottawa.
15 There is also the ‘national treatment’ rationale for international
regimes for sui generis TK protection based on multilateral
approaches. This is brought in WTO (2006), The protection of
traditional knowledge and folklore: Summary of issues raised
and points made’, Note by the Secretariat, Revision,
IP/C/W/370/Rev.1, Council for Trade-Related Aspects of
Intellectual Property Rights, 9 March 2006.