DANISH HASNAIN's Profile and details
LL.M (Business Laws) NLSIU, Bangalore
Protection of Traditional Medicinal Knowledge
There is today a growing appreciation of the value of traditional knowledge. This knowledge is valuable not only to those who depend on it in their daily lives, but to modern industry and agriculture as well. Many widely used products, such as plant-based medicines and cosmetics, are derived from traditional knowledge. Traditional knowledge is appropriated, adopted and patented by scientists and industry; with little or no compensation to its custodians and without their prior informed consent. There is a current inevitability to protect and preserve traditional knowledge that is abundant in India. Otherwise we will lose control over our existing wealth of knowledge.
This paper proceeds with the hypothesis that protection under the existing formal IPR system alone is not enough for the protection of traditional medicinal knowledge.
What is Traditional Knowledge?
Traditional knowledge generally refers to the matured long-standing traditions and practices of certain regional, indigenous, or local communities developed from experience gained over the centuries and adapted to the local culture and environment. Traditional knowledge also encompasses the wisdom, knowledge, and teachings of these communities which has come to us through generations.
Significance of Traditional Medicinal Knowledge in the present world
Medicinal plants play an important role in health care systems of modern world. The Indian Systems of Medicine, viz Ayurveda, Siddha, Unani and Homeopathic system predominantly use plant based raw materials for most of their preparations and formulations. Modern pharmacopoeia also contains at least 25% drugs derived from plants and compounds isolated from plants. The World Health Organisation (WHO) estimated that 80% of the population of developing countries relies on traditional medicines, mostly plant drugs, for their primary health care needs. Demand for medicinal plant is increasing in both developing and developed countries due to growing recognition of natural products, being non-narcotic, having no side-effects, easily available at affordable prices and sometimes the only source of health care available to the poor. Medicinal plant sector has traditionally occupied an important position in the socio cultural, spiritual and medicinal arena of rural and tribal lives of India.
Protection of Traditional Medicinal Knowledge
What exactly is meant by Protection of Traditional Medicinal Knowledge?
When we say ‘protection’ of traditional medicinal knowledge, it can mean the following:
(ii) promotion of its dissemination and use;
(iii) control of its use (avoiding misuse);
(iv) ensure benefit sharing with its originators.
Need for Protection
Realizing the advantages in this area, private pharmaceutical companies are behind acquiring this traditional medicinal knowledge in a very cheapest and easiest manner. Traditional medicinal knowledge is treated as knowledge in the public domain for free exploitation without showing any respect or concern for the efforts taken by the communities to preserve and promote the same. So its high time that we should think of protecting the valuable traditional knowledge associated with medicine.
Protection under IP Regime
Recently, international attention has turned to intellectual property laws to preserve, protect and promote traditional knowledge. The reasons for this are complex. In 1992, the Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and incorporated language regulating access to it and its use.
World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), established rules for creating and protecting intellectual property that could be interpreted to contradict the agreements made under the Convention on Biological Diversity (CBD). In response, the states who had ratified the CBD requested the World Intellectual Property Organization (WIPO) to investigate the relationship between intellectual property rights, biodiversity and traditional knowledge. WIPO began this work with a fact finding mission in 1999.
The international standards emerging out of the World Intellectual Property Organization (WIPO) and the Convention on Biological Diversity (CBD) are that firstly the development of any policies, laws or rules regarding traditional knowledge and associated resources must involve the full and effective participation of indigenous and local communities; secondly access to traditional knowledge and resources (particularly genetic resources) can only be obtained through the free, prior informed consent (FPIC) of indigenous and local communities and thirdly indigenous and local communities have the right to determine the form of benefit sharing, and use by others can only proceed on the basis of mutually agreeable terms between the custodians or holders of knowledge and resources and external parties.
Access and Benefit Sharing
Many countries regulate access to genetic resources and benefit sharing whether by explicit laws introduced nationally or regionally in response to the CBD. Access, in this context, means permission to use traditional medicinal knowledge for research, industrial application or commercial exploitation. This was considered to be a safeguard against biopiracy. Any decision on access would require the prior informed consent of the relevant community.
Benefit sharing was originally seen as a way to bring justice and equity to the holders of traditional medicinal knowledge. In 1990’s it became one of the three pillars of CBD which calls for fair and equitable sharing of benefits arising out of the utilization of genetic resources. But now it is moving in the opposite direction. Governments and corporate lawyers negotiate benefit-sharing agreements while the local communities sit on the sidelines. The best-known case of benefit sharing is worth mentioning. It relates to a medicine that is based on the active ingredient in a plant, Trichopus zeylanicus, found in the tropical forests of southwestern India and collected by the Kani tribal people. Scientists at the Tropical Botanic Garden and Research Institute (TBGRI) in Kerala learned of the plant, which is claimed to bolster the immune system and provide additional energy, while on an expedition with the Kani in 1987. These scientists isolated and tested the ingredient and incorporated it into a compound, which they christened ‘Jeevani’, the giver of life. The tonic is now being manufactured by a major Ayurvedic drug company in Kerala. In 1995, an agreement was struck to share the license fee and 2% of sales of the product as royalty, that was receivable by TBGRI, will be shared on a fifty–fifty basis with the tribe. This marks perhaps the first time that for IP held by a tribe, compensation in the form of cash benefits has gone directly to the source of the IP holders.
Role of Geographical Indications in protection of traditional knowledge
To date, debate on IPRs and biodiversity has focused on patents and plant breeders' rights. The potential value of geographical indications needs to be examined too.
A geographical indication is any noun or adjective that designates geographical location and would tend to be regarded by buyers as descriptive of the geographical location of origin of goods. Reputation may attach to a geographical name that remains purely descriptive so that the right to attach it may form part of the goodwill of those who are duly associated with the place or area. In that case, wrongful or dishonest use of that name will be actionable. Geographical indications are part and parcel of the culture and traditions of a country.
Unlike patents or copyrights, which have limited terms of protection and therefore would not be suitable for the protection of traditional knowledge, geographical indications may be capable of protecting some forms of traditional knowledge. And if properly regulated, such protection may be in perpetuity.
Most products falling under geographical indications enjoy an economic premium owing to their characteristics or quality or other features which creates a demand for them in the market. The same principle holds good for traditional knowledge as well. Mechanisation, industrialisation and technological advancement have little role in the production of these goods. Considering the low tech and low-cost methods of production, there is an assured higher stream of income for the producers. Such income derived from the geographical indications can eventually be pumped back into the traditional communities for putting in place systems for better organizing themselves and providing legal and statutory protection to the geographical indications. Such income can also contribute to the eradication of poverty in the region, women empowerment, development of infrastructure, better health, education of children etc.
Conclusions And Suggestions
With the immense increase in the use of traditional medicines worldwide, protection of traditional medicinal knowledge has become an important concern. With the increase in demand for medicinal plants, exploitation of resources by the multinationals and absence of an effective system of protection, the urgent need for regulating access and benefit sharing has arisen. India is a most important resource collection centre for plants and traditional knowledge of system of medicines like Ayurveda, Siddha and Unani. As regards IP protection of traditional knowledge, its true that a dilemma prevails about providing patents to products and medicinal formulations, which are developed over hundreds of years.
Intellectual Property rights are not the only way to of protecting traditional medicinal knowledge. What we need is a sui generis law combined with certain intellectual property rights. Legislation can be enacted taking into account the various regional differences in the matter, customary laws of various communities etc. Besides, we should give more priority to collective or community rights instead of individual rights. That way it will become more profitable to the communities to commercialize their knowledge. The traditional medicinal knowledge which is not yet in the public domain can be protected as trade secrets. But the most essential thing which is needed is compatibility between the legislations and customary laws.
List of References
1. Kerry ten Kate, Sarah A. Laird; The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-sharing; James & James/Earthscan 2000.
2. R. Nair Rajendra Kumar; Geographical Indications-A Search for Identity; Lexis Nexis 2005
D.N.Tewari; Chairman of the Task force on Conservation and Sustainable use of Medicinal Plants; The report of the task force; published in March 2000
Grain; Good Ideas Turned Bad? A Glossary of Rights Related Terminology; January 2004.
R. A. Mashelkar; Intellectual Property Rights and the Third World
Swarnim Wagle; ‘Protection of Geographical Indications and Human Development: Economic and Social Benefits to Developing Countries’, document prepared and presented at the WIPO Asia and Pacific Regional Symposium on Geographical Indications, New Delhi, Nov.2003.
# D.N.Tewari; Chairman of the Task force on Conservation and Sustainable use of Medicinal Plants; on preface to the report of the task force; published in March 2000.
# Source: The report of the Task Force on Conservation and Sustainable use of Medicinal Plants; published in March 2000
# Kerry “ten” Kate, Sarah A. Laird; The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-sharing; James & James/Earthscan 2000.
# Good Ideas Turned Bad? A Glossary of Rights Related Terminology; Grain, January 2004
# R. A. Mashelkar; Intellectual property rights and the Third World
# Lathe R Nair& Rajendra Kumar; Geographical Indications-A Search for Identity; Lexis Nexis 2005
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