Home   About us Sitemap Contact us
Capacity Building Tribal Empowerment Library Akshara Eye Camps Seminars & Workshops NGO coordination Your Association  
  Seminars & Workshops > On Trips  > Siddarth_Mahajan  


Siddarth Mahajan, NULSAR Law University

IPR and Indigenous Knowledge

Intellectual Property Protection Law is founded on the principles of capitalism. It  carves out exclusive rights to an individual to exploit particular creations of human ingenuity. This includes a bundle of rights in the form of Patents, Copyrights, Trademarks, Trade secrets and Geographical indicators. A patent vests exclusive right in an inventor to develop, control, use and market an innovative industrial process or product for a specified period of time. Trademarks extend protection to brand names that have a particular identity in the marketplace while trade secrets protect confidential information often of commercial value to an industrial firm or person. Copyright covers literal and artistic works such as computer software, writings and drawings.

Generally, these forms of intellectual property protection do not provide the necessary protection for traditional knowledge, innovations and rights of indigenous and local peoples.

A growing debate is now , whether traditional knowledge should be protected under other forms of intellectual property law, particularly patent law. This debate has been stimulated a number of factors. First, there is a resurgence of interest in traditional knowledge as a result of the increasing commercialization of genetic resources and growth of ‘biodiversity prospecting’enterprises. A number of pharmaceutical companies, extensively conduct research on the resources of indigenous peoples using traditional knowledge in development of new drugs. Intellectual Property Rights of these peoples are however rarely recognized and protected. In addition, indigenous and local peoples are not given fair reward for the exploitation of their resources. Second, there is growing awareness and concern about increasing loss of plant and animal species as well as destruction of habitats. They also lead to extinction of indigenous and local peoples and thus the erosion of traditional knowledge due to their excessive commercial use.

Third, the rights of indigenous and local peoples are either ill defined or entirely ignored by national and international law. Land acquisition laws of many countries facilitate the displacement of indigenous and local people—their alienation from their ancestral land and natural resources. Traditional knowledge is lost in the process and human rights are abused as well. This has recently become a major concern of human rights’ groups.

These and other factors have generated heated debate in national and international forums. This debate rages from the grassroots to the corridors of the WTO negotiations.

Those who subscribe to the view for the adoption of an IPR regime often advance the following arguments.
First, they argue that extending intellectual property protection to traditional knowledge will in fact promote technological innovation, as it would facilitate the beneficial use of such resources in modern economic scenario. Second, that recognition of intellectual property rights in traditional knowledge could generate incentives for local and indigenous peoples to conserve the environment and manage biodiversity. Third, that the industrialized countries have a moral obligation to ensure that indigenous and local peoples receive a fair and equitable share of benefits arising from the use of their traditional knowledge and commercialization of genetic resources.

Nature of indigenous or traditional knowledge:

 There have been various efforts to define the concepts of traditional knowledge, indigenous knowledge, and indigenous peoples, but there are so far no universally adopted definitions. Different persons define them differently depending on their professional and ideological inclinations . And many often use the concept of traditional knowledge interchangeably with that of indigenous knowledge.
The International Labour Organization (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries defines indigenous peoples as:
[P]eoples in independent countries who are regarded as indigenous on account of their descent from populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
World Intellectual Property Organisation uses the term traditional knowledge to refer to traditional literary ,artistic or scientific works, performances , inventions ,discoveries, designs , marks , symbols ,etc. including all tradition based innovations and creations .tradition based generally implies that the particular knowledge has been transferred generation to generation ;and is generally regarded as pertaining to particular people or territory.
World Health Organisation defines traditional medicine as the sum of all knowledge and practices , whether explicable or not , used in diagnosis , prevention and elimination of  , mental or physical imbalances and relying exclusively on practical experience and observation handed down from generation to generation , whether verbally or in writing.

Protection of traditional knowledge under TRIPS

The negotiation and adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as part of the Uruguay Round in 1994 have added new dimensions to the debate on intellectual property rights in traditional knowledge. The TRIPS Agreement sets minimum standards for countries to follow in protecting intellectual property. Its objective is "to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.” Countries that ratify the Agreement are expected to establish comprehensive intellectual property protection systems covering patents, copyrights, geographical indications, industrial designs, trademarks, and trade secrets.

However, Article 1 of TRIPS  provides some flexibility in the implementation of the provisions of the Agreement. It states in para 1 that "members may, but shall not be obliged to, implement in their domestic law more extensive protection than is required by the Agreement, provided that such protection does not contravene the provisions of the Agreement

The TRIPS Agreement requires member states to provide patent protection for "any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application". The "inventive step" and "capable of industrial application" requirements are deemed "to be synonymous with the terms ‘non-obvious’ and ‘useful’ respectively". Traditional knowledge fails the test for patenting on one, or all, of the "new", "inventive step" and "industrial application" standards. On the "new" standard it will probably fail because by it’s very nature traditional knowledge has been known for some length of time. One could try and argue that it is new to the world outside of the community from which it came but this is unlikely to succeed.

Article 29(1) of the Agreement requires that a patent applicant discloses sufficient and clear information regarding the invention to the extent that another person "skilled in the art" would be able to reproduce the product or complete the process. This is a standard patent law condition. This condition of information disclosure could erode the rights of indigenous and local people because it would make traditional knowledge easily available to commercial entities.

Article 27(2) states that ‘members may exclude from patentability the  inventions within their territory which are essential  to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by domestic law’. The notions of ordre public (public order) and morality are not defined in the Agreement. However, it is clear that those inventions that cause injury to human, animal and plant life as well as the environment may be excluded. Some may still provide patent protection for inventions that cause damage to the environment. Patenting of genetically-engineered organisms and life-forms is generally possible under these provisions. Further, it is also possible for a state to provide patent protection to a gene or a whole organism. On careful reading of this clause it is clear that the countries can exclude bio-technological inventions from the patentability provided that the commercial exploitation of the same is also not allowed. This means that a country refusing the patent protection under this clause has to completely forego the use of such technology or the product.

Article 27(3b) of the Agreement has generated controversy and opportunity. It states that "members may also exclude from patentability, plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by a combination of thereof. The provisions of this sub-paragraph shall be reviewed four years after the entry into force of the Agreement Establishing the WTO". This implies that it if the plants are excluded from patent protection then an effective sui generis  system must be put in place to protect the new plant varieties. Hence the plant breeders right are to be protected despite optional exclusion of the patenting of the plant varieties.


The Convention on Bio Diversity was adopted at the Earth Summit at Rio in 1992.
The essence of the convention of bio diversity is the conservation of biological diversity ,the sustainable use of its components and fair and equitable sharing of benefits arising out of the utilization of genetic resources .
Article 8 j of the convention mandates that the national legislation should respect, preserve the bio diversity and traditional knowledge and protect the rights if indigenous people with equitable sharing of the benefits arising out of utilization of such knowledge.
Article 15 (7) states that the results from the research and development and the benefits arising out from the commercial exploitation shall be shared with the country providing the resources, on the mutually agreed terms.
Article 16(1) mandates to facilitate the transfer of technology required for conservation and sustainable use of genetic resources.
Article 16(2) is very important as it provides the necessary interface between between TRIPS and CBD as it makes it obligatory that if the technology is subject to IPRs then such transfer and access is subject to such requirements.
Articles 16(3) provides that the interest of the developing country which provides the necessary genetic source should be protected by access to transfer of technology even if it is protected by IPRs.
Article 16 (4) says that the private sector should give access to joint development and transfer of technology.
Article 16 (5) concedes that patents and other IPRs may have an influence on the implementation of the convention. Hence such rights should be supportive and not counter to the objectives of convention.
Article 19 requires that the developing countries should have advance priority access to the benefits of the biotechnologies based on genetic resources provided by them and prior informed consent for use of such resources.

Conclusion : The Road Ahead

For the ‘biodiversity actors’ - small farmers, peasants, indigenous peoples, craftspeople, small scale fishers, - the advance of intellectual property rights systems has meant significant limitations for the traditional conservation and access of genetic resources.
Further the territories of the south are also used as an experimental site by the transnational corporations, who take advantage of the lack of biosecurity standards to field-test their genetically modified organisms deemed unsafe for use and release in developed countries without any kind of requirements for environmental impact assessments. These tests also cause genetic alterations, which can be passed to wild relatives, causing uncontrolled modifications and displacement of natural species.

These situations affect local communities directly and cruelly, with potential consequences in serious circumstances for the citizens of entire countries. The result is severe limitations on access to safe food, without chemicals, from local sources and unavailability of popular medicinal knowledge.

TRIPS and the Convention on Biodiversity are the two most important documents on the subject and often on most points they are at loggerheads. TRIPS now being a premier economic policy document is most certainly given prevalence over the CBD . The need is to harmonise the two and this is possible only when certain most important obligations under the CBD are incorporated into the TRIPS. The suggestions range from amending Article 29 to include the disclosure of the country of origin, specific bio-resource or traditional knowledge used . And incorporating the clauses for the mandatory prior informed consent and benefit sharing in the TRIPS so that the developed countries actually make efforts to implement the above provisions.

But it has to be realized by the governments of the developing countries that the global paradigm of multilateral trade agreements of which the TRIPS is an integral part is hereto stay. Developing countries cannot afford to stay out of this super structure . They cannot also make inaccessible the resources required for the bio –medical research for the welfare of entire human race.

Its well known that the offence is the best form of defence , in this light only way forward is development of an equally competitive biotechnology industry. But this is easier said than done as the existing technological gap and the huge capital requirement act as a deterrent for this kind of a push. Hence the mantra should not be confrontation but collaboration incorporating the clauses protecting bio diversity and the rights of the indigenous people. This strategy will give much needed capital and technological know how to the developing countries.

 The fundamental principles of the CBD should be read while interpreting and implementing the TRIPS agreement in the sphere of bio technology as these give much needed socio-political rights to the third world countries. Hence the harmonization of both instruments is essential to protect  the principles of human rights and equality of the third world people along with the free development of international trade and scientific development.

Onus is on the developed economies to further these principles and stop the indiscriminate exploitation of the third world resources. The developing or the countries of global south should not forget that its they who have the essential bio genetic resources and more importantly the huge untapped market for such products. This gives them enough leverage to survive at their own terms



  1. Individual could be a natural person or a legal entity.
  2. Indian Patent Act 1970, still only protects processes and not the products.
  3. Biodiversity prospecting is the systematic search for the bio –genetic , chemical and other resources for commercial use.
  4. www.ilo.com
  5. Draft report of WIPO fact finding mission on intellectual property and traditional knowledge
  6. P.Ganguli ,Intellectual Property Rights : Unleashing the Knowledge Economy, p. 132
  7. ibid
  8. Ministerial Declaration On The Uruguay Round (GATT DOC.No. Min. December 20,1986) Part 1 of TRIPS. 
  9. On nature and scope of obligations
  10. Criteria for patenting varies in each country as United States insists on the protection of the organism as a whole if it fulfills the criteria laid down under the Patent Act while many developing countries have reservations on this. See Diamond v Chakrabarty 206U.S.P.Q193
  11. Jayashree Wattal , “Intellectual Property Rights In The WTO And Developing Countries.”p.179 , Oxford Publication , New Delhi, 2001 
  12. See Newsletter of Ministry of Commerce , Government of India, India and the WTO , March 1999
  13. Article15(7)of CBD.
  14. Supra n.x p.175
  15. This Concept is explained by Jayashree Wattal ,ibid , p.183
2007-2009 All Rights Reserved@ Shyamprasad Institute for Social Service.
Site is Designed by e-icononlineservices pvt ltd