A Round table on “Protection of Traditional Knowledge / Traditional Cultural Expression – Evolving a Sui-Generis Model for India
First Publication Date: 27th January 2010
A Round Table conference on Protection of Traditional knowledge was concluded recently (January 25-26, 2010) at National Law School of India University, Bangalore. The two day conference was held for the deliberations on the Sui-Generis Model developed for the Protection of Traditional Knowledge / Traditional Cultural Expression. One of the highlights of the discussion was The Traditional Knowledge (Protection and Regulation to Access) bill 2009 (Hereinafter called as “Bill”) drafted by NLSIU, Bangalore. To leave a comment on the article please click here
This Bill is the first ever attempt made in India for a separate and complete regime for protection of Traditional knowledge in India. India is one of the most diversely rich countries with a number of traditions and cultures absorbed in it. The vast pool of traditional knowledge includes the use of herbs and plants as medicines, folklore, artistic works, etc. The controversy pertaining to Neem and turmeric has brought the concern for protection of this traditional knowledge in the lime light.
The present draft Bill aims to provide for protection, conservation and effective management of traditional knowledge. It further provides the need for protection of integrity and sentiments of communities against distortions and disrespectful representations of forms of traditional knowledge and protection from improper commercial exploitation of such forms. It emphasizes the need for sustainability of resources on which traditional knowledge is based, as well as ensures the continuation of the customary practices of the traditional knowledge. Further the bill provides for a mechanism to access and share such traditional knowledge along with the rights of the communities who hold such knowledge.
The bill is divided in 9 difference chapters: Chapter 1 provides for the Short title, commencement and applicability of the Act; chapter 2 provides for definitions and interpretations which includes the definition of traditional knowledge, abuse, access, accessor, benefit, informed consent, misappropriation, prior informed consent, traditional community, etc; chapter 3 provides for rights and duties of the traditional communities; chapter 4 provides for Establishment of authorities such as Traditional knowledge authority, functions of the TK authority, committees on the TK authorities, State traditional knowledge board, etc; chapter 5 provides for regulation of access to traditional knowledge and informed consent, traditional knowledge register, procedure for registration of traditional knowledge, constitution of traditional knowledge fund, national strategies for conservation and development of traditional knowledge, etc; chapter 6 provides for finance, accounts and audits of TK Board; chapter 7 provides for duties of Central and State governments; Chapter 8 provides for Offenses, penalties and procedure, protection of action taken in good faith, etc; chapter 9 provides for miscellaneous provisions such as which documents are open for public inspection, annual reports of the TK authority, TK authority to be bound by the directions of the central government, powers of TK authority, appeal mechanism, power of central government to make rules, power of TK authority to make regulations, etc.
The salient features of the draft bill are:
1. Definition of terms such as traditional knowledge, abuse, access, accessor, benefit, informed consent, misappropriation, prior informed consent, traditional community etc,
2. Identification of the sources and maintenance of the register of Traditional Knowledge,
3. Identification of the sources from where the informed consent to use the Traditional knowledge has to be gained,
4. Indicative list of accessors who are required to obtain the prior consent for accessing the Traditional knowledge,
5. Restriction on the access of traditional knowledge for a fixed period of time and for any further use additional consent to be obtained.
6. Obligation on the Central government, State government and TK board to ensure the prevention of misuse of traditional knowledge by taking non exclusive consent by the indigenous vulnerable communities.
7. Preparation of National Policy, Strategy and action plan by the Traditional Knowledge Authority every five year which ensures the protection, continuum of use and practice of traditional knowledge and ensures the sustainability of the resources including human resource on which the TK is dependent.
8. Steps to be taken by the traditional Knowledge Authority to prevent bio piracy and other misuses of Traditional knowledge and to take preventive /punitive actions to safeguard the same.
9. TK Board to be assigned with additional responsibility to ensure that the due environmental and social impact assessment be done before granting the access to any traditional knowledge.
10. The TK board to ensure that the use of traditional knowledge is not against public order or morality.
11. The TK board to educate and increase awareness in the communities to ensure just and fair negotiations.
12. The TK board to be assigned with power to notify certain traditional knowledge as endangered or on verge of extinction or likely to become extinct, and also the power to restrict the access to such traditional knowledge.
13. Appellate mechanism where any appeal from Traditional Knowledge Authority will lie to Intellectual Property Appellate Board (IPAB). The decision of the IPAB can be challenged by appeal to Supreme Court of India.
The Round table was organized by Dr.(Prof) T Ramakrishna, National Law School of India University, Bangalore along with Ministry of Human Resource Development. The round table was attended by various participants including by Dr. Kalyan, C Kankanala (Director and CKO Brain League IP Services) and Vishal Jain (IP Analyst, Brain League IP services), Dr (Prof.) M K Ramesh(NLSIU), Dr. Gopakumar Nair (MD, Gopakumar Nair Associates) , Dr. Prodipto Ghosh (Fellow at The Energy and Resources Institute), Dr. (Prof) V.K. Unni (Assistant Professor, Department of Public policy and Management, IIM, Calcutta), Dr. Devinder Sharma (Chairman, Forum of Bio-technology), Ms. Sunita K Sreedharan(CEO, SKS Law Associates) , Mr. R Sridhar (Advisory Board Member, Thanal, Trivandrum) , Dr. N S Gopalkrishnan (Cochin university of Science and Technology), Dr. T C James (Director, National Intellectual Property Organization), Mr. C A Reddy (Secretary, National Bio-Diversity Authority) , Dr. V K Gupta (National Institute of Science), Dr. S. Rajashekhran (Deputy director and Head, Division of Ethnomedicine and Ethnopharmacology, TBGRI), Dr. Darshan Shankar(Chairman, Indian Institute of Ayurveda and Integrative Medicine), and Mr. Anirban Mazumdar(Assistant Professor, NUJS).