19th June 2003

IPR Laws framed under TRIPS/ WTO Robs Indians of their Heritage & Rights:

The need for a new sui generis system for the protection of traditional knowledge & genetic resources

New Delhi: Legal experts, ayurvedic practitioners, farmer leaders, scientists, government officials, academicians met for one day brain storming meeting to evolve a framework law for the protection of traditional knowledge and genetic resources. The former Prime Minister of India, Shri I.K. Gujral, who was also the Chairman of the recently concluded Peoples’ Commission on Patent Laws for India, gave the Inaugural Address, while Prof. N.R. Madhav Menon, Vice Chancellor of the West Bengal National University of Juridical Science, presented the keynote. Dr. Vandana Shiva, Director of the Research Foundation for Science, Technology and Ecology (RFSTE) clarified that the need for the protection of traditional knowledge has been created.

The need for such a law has been created because of the growing epidemic of biopiracy and the fact that the laws introduced to implement TRIPs agreement do not have positive safeguards for traditional knowledge and indigenous medical practitioners.

Three new legislations related to patents and IPRs on biodiversity and indigenous knowledge have been passed. These are:

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The Patents (Second Amendment) Act, 2002
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The Protection of Plant Varieties and Farmers Rights Act, 2001
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The Biodiversity Conservation Act, 2002

However none of the three Acts give legal status or legal protection to collective and cumulative innovation embodied in the traditional knowledge. Traditional medical practitioners and traditional farmers are thus left vulnerable to continuing biopiracy and erosion of their knowledge, practices and livelihoods. In fact all three laws facilitate monopolies and undermines farmers’ rights to seed, peoples’ rights to medicine and our collective rights to our biological and intellectual heritage.

In December 1996 the United States initiated a dispute against India to force India to implement TRIPS even though TRIPS agreement itself was to be reviewed in five years of coming into force of the WTO.

In its submission to the TRIPS Council (dated 20 Oct 1999) India had expressed for stopping of biopiracy. India in its discussion paper (IP/C/W/161) to the TRIPs Council stated, “Clearly there is a case for re-examining the need to grant patents on life forms anywhere in the world. Till such systems are in place, it may advisable to :

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exclude patents on all life forms, if this is not possible then;
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exclude patents based on traditional/indigenous knowledge and essentially derived patents based on traditional/indigenous knowledge and essentially derived products and processes from such knowledge, or at least;
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insist on disclosure of the country of origin of the biological source and associated knowledge, and obtain consent of the country providing the resource and knowledge, to ensure equitable sharing of benefits.

The paper also stated, “the entire modern evolution of intellectual property has been framed by principles and systems which have tended to leave aside a large sector of human creativity, namely the traditional knowledge possessed by local and indigenous communities”.

At the recent TRIPS Council meeting in June, the African Group (read countries) once again reiterated the need for legal protection of genetic resources and traditional knowledge. The discussion paper “Taking Forward the Review of Article 27.3B of the TRIPs Agreement” submitted by them, states:

Any protection of genetic resources and traditional knowledge will not be effective unless and until international mechanisms are found and established within the framework of the TRIPs Agreement. Other means, such as access contracts and data bases for patent examinations, can only be supplementary to such international mechanisms, which must contain an obligation on Members collectively and individually to prohibit, and to take measures to prevent, the misappropriation of genetic resources and traditional knowledge.

The requirement to protect plant varieties should not in any manner undermine, but should support, the right of Members to protect important public policy goals relating to food security, nutrition, the elimination of rural poverty, and the integrity of local communities. In this regard, there is no basis for requiring Members to adopt inappropriate regimes for protecting plant varieties.

Patents on life forms are unethical and the TRIPs Agreement should prohibit them, through modifying the requirement to provide for patents on micro-organisms and on non-biological and microbiological processes for the production of plants or animals. Such patents are contrary to the moral and cultural norms of many societies in Members of the WTO. They make the exception in Article 27.2 for protecting ordre public and morality, which Members that consider patents on life forms to be contrary to the fabric of their society and culture, and to be immoral, and which they would otherwise invoke, meaningless in this regard.

The only step taken by India for the protection of traditional knowledge is step is the creation of a digital database of traditional knowledge, which basically is a facilitator of biopiracy because it makes traditional knowledge more accessible with legal protection, as has been recognised by the African Decision.

These are the reasons that the efforts towards the national law on traditional knowledge is necessary for which the initial step was taken today at the meeting on Traditional Knowledge, Biopiracy and TRIPS at India International Centre, New Delhi.

In this meeting a working group has been formed to evolve the legal framework for the protection of traditional knowledge and to propose it to the government.

The experts also endorsed the African Group proposal for Decision on Traditional Knowledge, to be adopted by members of WTO. Such a decision needs to be supported by all countries so that at the WTO Ministerial (10-14 Sept 2003) in Cancun, Mexico, the rights of the people of the Third World are defended and not just monopolistic rights of the transnational corporations in medicine and seeds. The meeting decided to launch a campaign to support the Decision on Traditional Knowledge of the African Group.