For a country that has, perhaps, the most at stake in protecting its traditional knowledge (TK) which is part and parcel of its daily life, India remains strangely silent — and absent — in global discussions on this subject. Last Friday, the World Intellectual Property Organisation ended a five-day meeting of the Inter-governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore without India’s participation. Nor was there any document stating its position on the talks. On the other hand, a raft of countries from the US to Brazil and the European Union and Ethiopia in between has commented on the draft proposals.
It’s another matter that the meeting in Geneva ended without reaching consensus on future work. The sticking point was whether or not to aim for a binding international instrument. According to the well-informed Intellectual Property Watch, the order in which to negotiate was an issue. While “some countries wanted to see the text of a possible agreement before deciding what kind of form it might take (i e, an instrument, or a database, or something else), others wanted to set a goal of a legally-binding international instrument and then work on its text.”
The fundamental issue with TK is that no one has been able to agree on a definition. In a broad sense, TK is defined as the collective wisdom of a community on a specific subject — it could also be a skill, such as weaving — that is passed down from one generation to the next and usually in an oral tradition. Ever since patents were taken out on the medicinal properties of turmeric more than a decade-and-a-half ago, India has been alerted to the commercial threats to its vast store of plant and genetic resources that western companies are anxious to exploit for medicinal and other uses. Yet, so far India has put no law in place to protect its TK, which elsewhere in the world is also referred to as indigenous knowledge because such wisdom is usually restricted to pockets of indigenous communities. (India does not recognise any indigenous community here because all of us are considered indigenous).
TK encompasses cultural products and practices, too, along with folklore. But what will , undoubtedly, become contested property are plant resources which could be misappropriated for commercial gain. That’s why governments and civil society groups are wrestling with the problem of a proper definition of TK and the critical issue of who will control, manage and regulate it. India, of course, has its Biodiversity Act of 2002 which, along with the complementary Biological Diversity Rules of 2004, has the function of protecting biodiversity and associated TK. Based on the recommendations of the National Biodiversity Authority (NBA), the central government is tasked with respecting and protecting the TK of local communities. But this has not worked so far since it is, at best, an incidental function of the NBA.
Civil society groups involved with food security have thus taken matters into their own hands and are working on a draft law to protect TK. Under the aegis of the Delhi-based Forum for Biotechnology and Food Security and Thanal, a public interest research and advocacy institute of Trivandrum, a fairly broad-based alliance is working on intellectual property rights (IPR) and TK. The odd part is that the government has mandated Ficci to prepare a draft law on TK, an initiative that voluntary groups say would primarily reflect the commercial interests of the pharmaceutical and biotech industries. The civil society initiative, which is hoping to influence government through a draft law, is itself riven by sharp differences on what ‘protection’ of TK means actually. While some groups are dead set against the grant of IPR to TK, others believe it would safeguard local communities against misappropriation by commercial interests. But some kind of broad consensus was emerging at its just-concluded second national consultation held in Gurgaon. And on Sunday, its work received official endorsement when the minister of environment and forests, Jairam Ramesh, attended its concluding session and asked it to prepare a sui generis model for protecting India’s TK.
But the quest of IPR will remain a vexed issue. At least two among the five-member group tasked with preparing the model regulation are dead set against the grant of patents on TK. Representatives of GRAIN and Kalpavriksh point out that the collective nature of TK and the fact that such knowledge has been in existence for a long, long period, make it impossible for TK to meet the patentability criteria. Besides, the ownership of plant varieties is alien to the social and cultural beliefs of our communities.
But with the world waiting and watching, activists here understand that a consensus that best suits India’s interests will have to be worked out — and rather quickly, too, before corporate interests hijack the agenda.