Fair Compensation to Indigenous Communities for their Traditional Heritage

JUST AND EQUITABLE BENEFIT SHARING:
Assuring A Fair Compensation to Indigenous Communities for their Traditional Heritage

INTRODUCTION

“Balance is not something you find; it’s something you create.”

— JANA KINGSFORD

This quote of Jana Kingsford highlights the importance of human efforts to maintain the balance. Balance is the necessity for existence of life. It is important for everything either it is as enormous as the universe or as trivial as an atom. Indigenous communities have been maintaining the balance between the nature and life for several generations using their Traditional Knowledge (TK). While the external world is focusing on economic upgradation, these traditional communities are balancing it by creating and maintaining harmony with the nature using their Traditional Knowledge. However, the selfish economic motives of corporates and industrialized nations did not leave the TK of these indigenous people untouched. While these communities served for generations to cherish and further develop these TK, the corporate world, without any significant and fair compensation have started to exploit it to fulfil their selfish motives. Here, the question arises is, who is going to take the initiative of creating the balance between this unauthorized exploitation and rights of these indigenous communities.

Important Definitions:

Traditional Knowledge:

There is no internationally adopted definition of Traditional Knowledge. However, the World Intellectual Property Organization (WIPO) has defined Traditional Knowledge as the expertise, customs, techniques, and skills that these indigenous communities developed over time, nurtured them further and transferred from generation to generation within a community (WIPO, 2013). The TK of indigenous people is part of their spiritual heritage and their identity. It is classified in two ways:

TK (Lato Sensu) or TK in general sense comprises Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources associated with TK (WIPO, 2013).

TK (Stricto Sensu) or TK in narrow sense is the Traditional Knowledge as such which encompasses the knowledge regarding agricultural and scientific techniques, the knowledge and know-how of traditional medicinal system, etc. (WIPO, 2013).

** Throughout this paper, TK will stand for TK (Lato Sensu).

Traditional Cultural Expressions:

Traditional cultural Expressions (TCEs) are media through which the traditional culture is expressed such as dance, music, handicrafts, arts, paintings, ceremonies, signs and symbols, etc. (WIPO, n.d.) They are also passed down among several generations within a community and form a part of their cultural heritage (WIPO, n.d.).

Genetic Resource:

Article 2 of the Convention on Biological Diversity (CBD) defines Genetic Resources (GRs) as “genetic material with true value where genetic material comprises material of plant, animal, microbial and other species with functional units of heredity” (Convention on Biological Diversity [CBD], 1992).

Background:

Traditional knowledge that comprises TK, TCEs and GRs associated with the indigenous people has multiple applications such as food security, sustainable agriculture, maintaining forest ecosystem, healing properties of traditional medicines and therapies and much more. For the last two decades, many initiatives have been taken in order to get the TK recognition at the international level and few of them have worked as well such as the introduction of Convention on Biological Diversity at international level which was later ratified by 157 countries and signed by 196 countries including European Union (CBD, 2015). This convention provides the provision for access and benefit sharing arising from the biotechnological inventions using the Genetic Resources. However, as the text above indicates, the protection under this convention is limited to GRs and does not cover TK in Lato Sensu. Hence, it cannot ensure equitable benefit sharing for the TK as a whole.

Research Outline:

This paper is divided into four sections:

v The first section discusses the unauthorized exploitations that have taken place so far.

v The second section highlights the need of the benefit sharing and the repercussions of these unauthorized exploitations of TK.

v The third section analyses the international and domestic protection available for to provide benefit sharing.

v In the fourth section the author discusses the way ahead.

LITERATURE REVIEW

Section 1: Instances of unauthorized exploitation of TK:

Neem Plant:

Neem plant is part of daily life of Indian households. With multiple uses such as the use of Neem twigs for tooth cleaning, the use of stem, bark, leaves, fruit, and other parts of the tree in soaps, shampoos, lotions, medicines, etc., it is used to treat a variety of ailments (Karthika et al., 2019). In 1994, a US based company was granted a patent for neem oil working as a plant pesticide for food crops by European Patent Office (EPO) (The Times of India [ToI], 2005). It was later challenged by Indian government for lacking inventive step as it was based on prior art (fungicidal properties of neem) based in India (European Patent Office [EPO], 2005). It led to revocation of the patent in 2000 for lacking inventive step (ToI, 2005).

Turmeric Plant:

Similar to neem plant, Turmeric is another daily use household thing in India. A patent was granted in the United States for the wound healing properties of turmeric. A re-examination complained was filed by Council of Scientific and Industrial Research (CSIR) with the proof of an ancient manuscript and 1953 report published by Indian medical association citing use of turmeric for wound healing (Roy, 2024). This led to revocation of the patent in 1997 (Roy, 2024).

Basmati Rice:

Basmati Rice has the Geographical Indication status in India. A patent was filed by a seed firm in the United States for Basmati Rice in 1997 which was strongly opposed by India (IIPRD, 2024). India accused the firm of biopiracy and contended the species of rice native to Indian subcontinent (IIPRD, 2024). Getting the patent of the firm limited by eliminating the essential components of basmati during the initial proceeding, India got the patent revoked in the appeal in 2001 (IIPRD, 2024).

Along with these major examples, multiple instances have been noticed in the past of such unauthorized exploitation. So far, India has got 324 patent applications disposed off based in the TK of India (CSIR, n.d.). However, getting patent applications revoked only bars others from obtaining exclusive rights over Indian TK. It neither grants the indigenous communities any right not stops anyone from using the inventions based in TK.

Section 2: Need of the benefit sharing and the repercussions of these unauthorized exploitations of TK:

Repercussions of unauthorized exploitation of TK and lack of benefit sharing:

The examples above have proved that TK has unlimited applications and are of enormous economic value. However, the traditional communities that should actually be credited for this cultural heritage, are not even recognized at international level. This in turn motivates the corporates to pursue their economic motives with caring about any legal formality or responsibility towards their communities. Following are the repercussions for the ignorance towards the rights of these indigenous communities and unregulated use of TK:

v TK that is secret so far, will always remain a secret. This is because for the traditional communities TK is part of their cultural heritage and this unauthorized and unregulated use can be derogatory to their customs which can make them to keep the remaining secret forever.

v Lack of interest of younger generation of these communities in maintaining and carrying forward this legacy due to lack of economic incentives (WIPO, n.d.).

v Lack of respect for TK as it is only seen as an economic tool not the cultural heritage of a particular community (WIPO, n.d.).

v Inappropriate tourism has been increased as in the name of tourism, people visit these communities and try to copy their TK and TCEs for their personal benefit without knowing the actual value of them for the traditional people (WIPO, n.d.).

v Loss of economic incentive for India as a whole. For instance, Yoga is part of Traditional Knowledge of India and is a billion-dollar industry in the western world. If there was benefit sharing available for TK, it would have generated a huge revenue for India.

Benefit sharing: the need of the hour:

Regularising benefit sharing the solve many of the above problems. As has been witnessed after the implementation of Convention on Biodiversity, the provision for access and benefit sharing are properly being followed for GRs associated with these traditional communities. The number of issued of Internationally Recognised Certificate of Compliance (IRCC) under the Nagoya Protocol (part of CBD dealing with Access and Benefit Sharing) provides insight that protocols are successfully implemented (Ministry of Environment, Forest and Climate Change [MoEFCC], n.d.). It indicates the legal access provided to use the Genetic resources (MoEFCC, n.d.). As per 2020 data, over 1200 IRCCs were issued by 20 countries all over the world and India was the first country to issue and IRCC (ABS Focal Point, 2020).

As the provision of benefit sharing worked for GRs, if extended to TK, it can change the scenario completely.

Ø It will ensure economic incentives for the traditional communities which can motive the younger generation ton carry this legacy forward and ensure no loss of TK.

Ø Funds raised from Benefit sharing can be used for conservation of biodiversity and environmental upgradation (CBD, 1992).

Ø This balance and mutual co-operation will motivate these communities to share their TK with the external world without any reservation and create a bond of trust and mutual respect.

Ø Regularized legislation will ensure transparency.

Ø The efforts and diligence that these communities maintained for multiple generation will turn out to be fruitful and their ownership of over their TK would be recognized internationally.

Section 3: International and Domestic Protection Available to provide Benefit Sharing:

International treaties and conventions:

There are two major conventions available at the international level that mention benefit sharing which are as follows:

Convention on Biological Diversity:

The provisions of benefit sharing under CBD are provided under Article 15(7), 19, 20, and 21 where;

Ø Article 15(7) mandates for the contracting parties to come up with legislative, administrative, and policy approaches to regulate benefit sharing and establish financial mechanism upon mutually agreed terms of both the parties in order to ensure fair and equitable sharing of benefits and the results arising from the commercial exploitation and other uses such as research and development of the GRs. It should all be done in accordance with Article 16 and 19 for the legislative, administrative, and policy measures and the financial mechanism should be established in accordance with the Article 20 and 21.

Ø Article 19 provides the provision of how to handle the biotechnology and the manner of distribution of benefits arising from the inventions based upon GRs. It guides the contracting parties to take necessary and practical approaches and come up with mutually agreed terms for fair and equitable access to results and benefits arising from the biotechnological invention.

Ø Article 20 and 21 provides us with the regulation for establishing the financial mechanism to regulate the benefit sharing upon mutually agreed terms functioning under the authority and guidance of the conference of parties. It also provides the developed countries in the contract with an obligation to avail the developing countries with financial resources for implementation of the convention.

Nagoya Protocol:

Nagoya protocol is the component of CBD which handles and regulate the benefit sharing among the contracting parties. Article 5 of the protocol deals with the fair and equitable benefit sharing and states that;

v Parties should come up with mutually agreed terms and conditions to share the benefit and results arising from the use of GRs for innovation.

v Implementation of administrative, legislative, and policy measures will ensure fair and transparent sharing of benefit with the indigenous communities.

v Benefits can be monetary or non-monetary in nature.

v National legislations should ensure fair and equitable sharing of benefits.

National Legislations:

The Biological Diversity Act, 2002:

The Biological Diversity Act, of 2002 ensures fair and equitable benefit sharing for the use of GRs based in India. National Biodiversity Authority established under Section 8 of the act, ensures the proper implementation of the act and decides the issues and compensation related to use of access and benefit sharing. While the National Biodiversity Authority advises the central government on matters related to fair and equitable benefit sharing, there are State Biodiversity Boards established under Section 22 to advise the State governments on relevant matters and works as per the guidelines of the National Biodiversity Authority.

Section 4: Author’s insight and way ahead:

As observed under Section 1, there are multiple violations taking place all over the world due the wide applications associated with the TK. In absence of any concrete protection, the TK of the indigenous communities of being violated, disrespected, and is on the verge of extinction due to lack of mutual trust and obligations. Hence, these is a need of proper protection for these TK. It has been rightly said by Yogi Bhajan that “What comes easy won’t last. And what lasts, won’t come easy.” The access to TK if regulated and being paid for, people would start to value it. Also, it will be beneficial for local communities as well as they will be able to generate funds to conserve their TK and the biodiversity around them. These incentives would encourage the upcoming generation of these communities to take this cultural heritage forward.

It has been proved under Section3 discussion that the proper regulation can stop these violations and unauthorized exploitation. However, the current protection is limited to GRs. The unwillingness of industrialized nations to extent the protect to the whole TK domain is the major reason that the issue is still unsolved. The TRIPS agreement, binding on all the contracting parties, completely excluded TK from its scope which further degraded the status of this heritage. This reluctance is the motivation for the violators for unauthorized and unregulated exploitation of TK. Currently, we can stop others from obtaining IP rights over TK but it does not guarantee the any right to the indigenous communities which is the need of the hour.

Way ahead:

For a better protection of TK and ensuring fair and equitable benefit sharing, following points need to be adhered:

v Accommodating TK (Lato Sensu) under the purview of Convention on Biological Diversity at internation level and the Biological Diversity Act, 2002.

v Extending the scope of TRIPS agreement to TK and provide adequate rights to the indigenous communities.

v Annual or Quarterly survey to ensure that there is no violation of TK taking place anywhere in the world.

v Financial incentives to the communities to motivate them to continue the legacy ahead.

v Getting the international recognition to TK as an Intellectual Property.

REFERENCE NOTES

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