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National Law Institute University, Bhopal

LAWS OF BIODIVERSITY & IP


Topic: THE PROTECTION OF TRADITIONAL KNOWLEDGE UNDER SUI
GENERIS SYSTEMS

Submitted to:- PROFESSOR (DR.) GHAYUR ALAM


Submitted by:- ADDWAY BANDYOPADHYAY
2013BALLB110
A-1361
ACKNOWLEDGMENTS

I would like to express my gratitude to Prof. (Dr.) Ghayur Alam, for affording me the
freedom and flexibility to work on this topic. While sui generis systems do not fall
strictly within our curriculum, Professor Alams lectures and teaching material helped
clarify a lot of my conceptions of biodiversity law, traditional knowledge and their
relationship with intellectual property rights. I am also grateful to the efficient library
staff who guided me all the while with books and references. I am obliged and
overwhelmed by their effort in making this project a success.

Addway Bandyopadhyay
2013 BALLB 110.

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TABLE OF CONTENTS

ACKNOWLEDGMENTS 2

STATUS QUO AND THE PROBLEM BEING EXAMINED 4

RESEARCH QUESTIONS 4

HYPOTHESIS 4

RESEARCH METHODOLOGY 4

AN INTRODUCTION TO THE PROBLEM 5

A. THE RELEVANCE OF TK TO INDIGENOUS COMMUNITIES 5


B. THE PRIVATISATION OF COMMUNITY KNOWLEDGE 6
1. TURMERIC PATENT 7
2. NEEM PATENT 7
C. THE PROBLEMS FACED BY THE INDIGENOUS COMMUNITIES 8
D. TKDL: AN IMPORTANT DEFENSIVE MEASURE 9

SUI GENERIS SYSTEMS OF PROTECTION 11

A. WHAT IS A SUI GENERIS SYSTEM? 11


B. LEGAL EXPRESSIONS OF SUI GENERIS SYSTEMS 12
C. DO SUI GENERIS SYSTEMS WORK IN PRACTICE? 14

SELF-DETERMINATION AS THE BACKBONE OF A SUI GENERIS


SYSTEM 16

A. THE RIGHT TO SELF-DETERMINATION IN INTERNATIONAL LAW 16


B. WHY MUST SELF-DETERMINATION FORM THE BASIS OF A SUI GENERIS
SYSTEM OF PROTECTION OF TK? 17

CONCLUSION 18

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STATUS QUO AND THE PROBLEM BEING EXAMINED
The livelihoods of indigenous peoples worldwide and the conservation of biodiversity
depend on the preservation and protection of traditional knowledge relating to
biodiversity. Indigenous peoples and rural communities have developed an intimate
knowledge of the use and functioning of biological and natural resources over
centuries of close dependence on these resources. This traditional knowledge (TK) is
vital for life in hostile natural environmentsfor health, food security and agriculture.
It includes knowledge about the uses, properties and sustainable management of
diverse biological resourcestraditional crops, wild foods, medicinal plants etc. It
also forms the basis of cultural identity, contributing to social cohesiveness and
thereby reducing vulnerability and poverty.

The traditional intellectual property rights (IPR) regime creates a monopolistic


system, providing avenues to commercially exploit TK resources. This is incongruous
with the focus of indigenous communities on community rights and sharing of
information within society. Traditional IPR regimes, therefore, have failed to protect
TK.

RESEARCH QUESTIONS
1. Can a sui generis legal regime be considered for the protection of TK?
2. Does self-determination play a role in this sui generis legal determination?

HYPOTHESIS
States should consider allowing sui generis regimes to govern TK, in light of the right
to self-determination enjoyed by all peoples.

RESEARCH METHODOLOGY
This paper shall follow the doctrinal method of research.

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AN INTRODUCTION TO THE PROBLEM

A. THE RELEVANCE OF TK TO INDIGENOUS COMMUNITIES


Traditional farmers have domesticated most of the worlds food crops and are
continually experimenting to improve their cropsmillions of farmers varieties are
the product and embodiment of traditional knowledge. Traditional production and
innovation systems provide a wealth of resources and knowledge not only for
communities, but also for the food, agriculture and health needs of the world as a
whole.1 Yet they receive very little support to ensure their continuation. The World
Health Organization estimates that 80% of the worlds population depends on
traditional medicine for primary healthcare. Trade in TK-based goods contributes
significantly to rural incomes and national economies. For example, the medicinal
plants trade in South Africa is worth about US $60 million a year. Furthermore, TK is
important for sustainable development, providing techniques for sustainable
agriculture, land use and natural resource management in diverse socio-ecological
contexts. It also provides the basis for development, which is endogenous (i.e. comes
from within and uses local strategies and resources) and is therefore more appropriate,
self-sufficient and sustainable than externally-driven development.2

The United Nations Declaration on the Rights of Indigenous Peoples3 recognizes that
there is an urgent need to respect and promote the inherent rights of indigenous
peoples which derive from their political, economic and social structures and from
their cultures, spiritual traditions, histories and philosophies, especially their rights to
their lands, territories and resources. The rights of indigenous communities to protect
their TK are largely based on claims of heritage and identity. 4 The Chairperson of the
UN Permanent Forum on Indigenous issues has commented, Heritage and
traditional knowledge are inextricably linked to our territorial and resource rights

1
Darell A. Posey, Beyond Intellectual Property: Toward Traditional Resource Rights
for Indigenous Peoples and Local Communities, published by the International
Development Research Centre, at http://lib.icimod.org/record/10010/files/1393.pdf.
2
Shaun Laird, The Commercial Use of Biodiversity: Access to genetic resources and
benefit-sharing, Earthscan Publications, London (1999).
3
UN General Assembly Resolution A/61/295 (2007).
4
Freedom-Kai Phillips, Intellectual Property Rights in Traditional Knowledge:
Enabler of Sustainable Development at
http://www.utrechtjournal.org/articles/10.5334/ujiel.283/.

5
and our cultural rights. These form an indivisible whole which cannot be fragmented.
Our responsibility is to safeguard, develop and protect our heritage from misuse and
misappropriation, so it could be passed on to the future generations.5

The Convention on Biological Diversity (CBD) 6 recognises the value of the


knowledge, innovations and practices of indigenous and local communities for the
conservation and sustainable use of biological diversity.7 However, this knowledge is
under increasing threat, from intellectual property regimes and other processes which
undermine traditional livelihoods based on natural resource management.
International and national policies have so far proved inadequate to protect this
knowledge.

B. THE PRIVATISATION OF COMMUNITY KNOWLEDGE


Many indigenous and local communities are concerned about the privatisation of their
traditional knowledge and bio-resources, alienation of their rights and unfair
exploitation of these resources, without permission or respect of customary laws. IPR
regimes such as patents and plant variety protection are becoming increasingly
strong and ubiquitous as a result of trade agreements of the WTO and the proliferation
of bilateral Free Trade Agreements. This is accelerating the commercial use and
privatisation of indigenous knowledge and resources.8 There is a growing recognition
of the need to ensure that the rights of indigenous and local communities over their
traditional knowledge are respected and protected, and a number of international and
national policy initiatives are seeking to respond to this challenge.

5
UN Department of Economic and Social Affairs, Biodiversity, Traditional
Knowledge And Rights Of Indigenous Peoples, PFII/2005/WS.TK/5.
6
United Nations, Convention on Biological Diversity, 1760 UNTS 39.
7
CBD, Preamble.
8
Krystyna Swiderska, Protecting Traditional Knowledge Based On Customary Laws
And Bio-Cultural Heritage. Paper for International Conference on Endogenous
Development and Cultural Diversity, Geneva, October 2006, Compas, The
Netherlands.

6
India has been a pioneer in the protecting TK from commercial exploitation.
However, it too faced serious challenges in this regard when patents were sought for
household commodities like turmeric, neem and basmati rice.9

1. Turmeric Patent
Turmeric is a tropical herb grown in east India. Turmeric powder is widely used in
India as a medicine, a food ingredient and a dye to name a few of its uses. For
instance, it is used as a blood purifier, in treating the common cold, and as an anti-
parasitic for many skin infections. 10 It is also used as an essential ingredient in
cooking many Indian dishes. In 1995, the United States awarded patent on turmeric to
University of Mississippi medical center for wound healing property. The claimed
subject matter was the use of "turmeric powder and its administration", both oral as
well as topical, for wound healing. An exclusive right has been granted to sell and
distribute. The Indian Council for Scientific and Industrial Research (CSIR) had
objected to the patent granted and provided documented evidences of the prior art to
USPTO. Though it was a well known fact that the use of turmeric was known in every
household since ages in India, it was a herculean task to find published information on
the use of turmeric powder through oral as well as topical route for wound healing.
Due to extensive researches, 32 references were located in different languages namely
Sanskrit, Urdu and Hindi. Therefore, the USPTO revoked the patent, stating that the
claims made in the patent were obvious and anticipated, and agreeing that the use of
turmeric was an old art of healing wounds. Therefore, the TK that belonged to India
was safeguarded in Turmeric case.

2. Neem Patent
The patent for Neem was first filed by W.R. Grace and the Department of
Agriculture, USA in European Patent Office. The said patent is a method of
controlling fungi on plants comprising of contacting the fungi with a Neem oil
formulation. A legal opposition has been filed by India against the grant of the patent.
The legal opposition to this patent was lodged by the New Delhi-based Research
Foundation for Science, Technology and Ecology (RFSTE), in co-operation with the

9
Desh Deepak Verma Protection of Traditional Knowledge: The Indian
Perspective International Journal on Systems of Protection of Traditional
Knowledge, at www.unctad.org/tradeenv/test1/meetings/delhi/India/MOEF-I.pdf.
10
G. Krishna Tulasi, A Detailed Study of Patent System for Protection of Inventions,
Indian Journal of Pharmaceutical Sciences, 2008.

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International Federation of Organic Agriculture Movements (IFOAM) and Magda
Aelvoet, former green Member of the European Parliament (MEP). The Neem tree
contains a number of potent compounds, notably a chemical found in its seeds named
azadirachtin. The bark, leaves, flowers and seeds of neem tree are used to treat a
variety of diseases ranging from leprosy to diabetes, skin disorders and ulcers. Neem
twigs are used as antiseptic toothbrushes since time immemorial. The opponents'
submitted evidence of ancient Indian ayurvedic texts that have described the
hydrophobic extracts of neem seeds were known and used for centuries in India, both
in curing dermatological diseases in humans and in protecting agricultural plants form
fungal infections. The EPO identified the lack of novelty, inventive step and possibly
form a relevant prior art and revoked the patent.
These instances show us how it is easy for private sector entities to commercialize
traditional knowledge. The knowledge sought to be patented in the above instances is
commonly known in Indian society, and any patent on the same would restrict the
communitys right to use such knowledge freely. 11 The prevalent IPR regime,
therefore, does not meet the needs of such communities, nor does it effectively protect
the associated TK.12

C. THE PROBLEMS FACED BY THE INDIGENOUS COMMUNITIES


The indigenous communitys objections to the traditional IPR regime revolve around
the monopolization of TK. Some authors erroneously believe that TK has been put in
public domain, and inherently does not qualify for protection under IPR. 13 This is
certainly not the case; indigenous communities share their TK within their groups or
communities. The knowledge they hold is still controlled by individuals, clans and
tribes. It is only shared to those who are trusted, and not doled out to the public at
large.14 Representatives of indigenous communities worldwide say:
While we share some of our knowledge and genetic materials, we reiterate,
this does not mean that we put these in the public domain for unfettered use by

11
Protecting Community Rights over Traditional Knowledge: Implications of
Customary Laws and Practices. Research Planning Workshop, Cusco, Peru, 20-25
May 2005. http://www.iied.org/NR/agbioliv/bio_liv_projects/protecting.html.
12
Krystyna Swiderska, Banishing the Biopirates: A New Approach to Protecting
Traditional Knowledge, IIED, 2006.
13
Tony Simpson, Indigenous Heritage and Self-determination, IWGIA, Denmark,
2007.
14
Supra note 5.

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anybody. We share these with those who are trusted, those who will use these
for the common good and not for their own selfish ends, and those who know
their roles and responsibilities in using the knowledge and resources. We have
developed nuanced systems and mechanisms, which enable us to safeguard
and protect our knowledge and to define how, when and to whom it can be
shared with. The public domain concept has not taken these into
consideration.15
It is these views that have led such groups to ask for a system of protection based on
broader principles of customary international law, which have to be respected by all
nations. 16 Self-determination, it is hoped, shall be the most authoritative norm of
customary law that can help with the protection of TK.

D. TKDL: AN IMPORTANT DEFENSIVE MEASURE


The Traditional Knowledge Digital Library (TKDL) is a database that has digitized a
massive volume of TK already available in public domain. It is a collaborative project
between Council of Scientific and Industrial Research (CSIR), Ministry of Science
and Technology and Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha
and Homoeopathy (AYUSH), Ministry of Health and Family Welfare. TKDL
involves documentation of the knowledge available in public domain on traditional
knowledge from the existing literature related to Ayurveda, Unani and Siddha in
digitized format, in five international languages which are English, French, German,
Spanish and Japanese. So far, the TKDL includes about 2.12 lakh medicinal
formulations (Ayurveda: 82,900; Unani: 1,15,300; Siddha: 12,950), from 148 books
available in public domain, and the database exists in 34 million A4 size pages.17
India's efforts on revocation of patent on wound healing properties of turmeric at the
USPTO and the patent granted by the European Patent Office(EPO) on the antifungal
properties of neem. India's traditional medicinal knowledge exists in local languages
such as Sanskrit, Hindi, Arabic, Urdu, Tamil etc. is neither accessible nor
comprehensible for patent examiners at the international patent offices. It was

15
Supra note 5.
16
Graham Dutfield, Traditional Knowledge, Intellectual Property and
Pharmaceutical Innovation: Whats Left to Discuss?, The SAGE Handbook of
International Property (2014).
17
http://www.ayush.gov.in/sites/default/files/tkdl.pdf.

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identified by the TKDL expert group in 2005 that annually around 2000 patents were
granted around the world erroneously concerning Indian system of medicine by patent
offices around the world. TKDL provides contents of the ancient texts on Indian
Systems of Medicines i.e. Ayurveda, Siddha, Unani and Yoga, into five international
languages, namely, English, Japanese, French, German and Spanish, with the help of
information technology tools and an innovative classification system - Traditional
Knowledge Resource Classification (TKRC) Bio-piracy and Misappropriation of TK.

The purpose of the TKDL is to ensure that Indian medicinal systems are not
misappropriated by private entities. In the patent action for turmeric, for example, it
was difficult to find English documents showing that the medicinal properties of
turmeric were known to most members of the public. The TKDL ensures that such
mishaps do not happen in the future; it is a bank of translated materials, accessible to
all patent offices in the USA18 and ready to be produced as evidence before courts.
The TKDL, therefore, only codifies what is available in public domain. By allowing
indigenous knowledge to remain secret, it ensures that the rights of such groups, as
expressed in international instruments19, are respected by the law.

18
Ibid.
19
United Nations Declaration on the Rights of Indigenous Peoples.
Article 31(1):
Indigenous peoples have the right to maintain, control, protect and develop
their cultural heritage, traditional knowledge and traditional cultural
expressions, as well as the manifestations of their sciences, technologies and
cultures, including human and genetic resources, seeds, medicines, knowledge
of the properties of fauna and flora, oral traditions, literatures, designs, sports
and traditional games and visual and performing arts. They also have the
right to maintain, control, protect and develop their intellectual property over
such cultural heritage, traditional knowledge, and traditional cultural
expressions.

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SUI GENERIS SYSTEMS OF PROTECTION

A. WHAT IS A SUI GENERIS SYSTEM?


Sui generis system is the modification of some of the features of intellectual property
system so as to properly accommodate the special characteristics of its subject matter
(TK) and the specific policy needs which led to the establishment of a different
system. In an effort to extend protection to traditional knowledge, various countries
have adopted existing intellectual property system to the needs of traditional
knowledge holders through sui generis measures.20

Sui-generis literally means of its own kind 21 and consists of a set of nationally
recognized laws and ways of extending plant variety protection other than through
patents. A sui generis system might consist of some standard forms of intellectual
property protections combined with other forms of protections, or not at all for
protecting traditional knowledge and genetic resources. A sui generis system could be
defined and implemented differently from one country to another. In addition, a sui
generis system might be defined to create legal rights that recognize any associated
traditional knowledge, relating to genetic resources and promote access and benefit
sharing. The govt. may choose to extend protections to genetic resources and / or
knowledge to a community in the form of patents, trade secrets, copy rights, farmers
and breeders rights or another creative form not currently established in the
intellectual property regime.

In addition a sui generis system may adopt measures of protection specific to


traditional knowledge in order to nullify in appropriate patents. If a country has
passed a sui generis law, it is necessary for local communities to establish a working
relationship with the intellectual property office. These intellectual property offices
may privately maintain inventions or registries of locally held knowledge, and can
assist in its protection.22 This intellectual property office can deny a patent application
if the knowledge that it is based on is already held in the registry. Under a sui generis

20
Balavnath Kalaskar, Traditional Knowledge And Sui-Generis Law, International
Journal of Scientific & Engineering Research, 2012.
21
Black's Law Dictionary 435 (9th ed. 2009).
22
Valentina Tauli-Corpuz, Biodiversity, traditional knowledge and rights of
indigenous peoples: Indigenous Perspectives, CISDL, Montreal, 2007.

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system and according to Convention on Biological Diversity, any person interested in
gaining access to a communitys biological resources or knowledge for scientific
commercial or industrial purposes would need to obtain the prior informed consent of
the indigenous peoples who possess the knowledge in question, unless the
knowledge is already in the public domain.

B. LEGAL EXPRESSIONS OF SUI GENERIS SYSTEMS


Article 8 (j) of the CBD allows States to make sui generis laws for the protection of
TK. 23 The sui generis aspect of this provision is located in its call to maintain
knowledge, innovations and practices of indigenous [] communities []
embodying traditional lifestyles, thereby referring to traditional methods of
conservation and protection of biodiversity, as opposed to the recognized IPR regime.

The effective implementation of Article 8(j) requires that the following steps be
taken:24
Indigenous land demarcation and guarantees of security;
Support for indigenous-based and designed conservation and sustainable
development efforts;
Research centres to develop strategies and models to apply traditional
technologies in a larger context;
Support for and strengthening of indigenous organizations, including local,
regional, national, and international indigenous alliances, councils,
federations, unions, etc.;

23
United Nations Convention on Biodiversity.
Article 8(j):
Each contracting Party shall, as far as possible and as appropriate:

Subject to national legislation, respect, preserve and maintain knowledge,


innovations and practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with the approval
and involvement of the holders of such knowledge, innovations and practices
and encourage the equitable sharing of the benefits arising from the utilization
of such knowledge innovations and practices.
24
Margaret Flitner, Review of national actions on access to genetic resources and
IPR in several developing countries, World Wide Fund for Nature, Gland,
Switzerland, 2005.

12
Creation of enforceable international legal structures to develop mechanisms
for protection of, and equitable sharing of, benefits from indigenous and
traditional knowledge, innovations, and practices.

It has also been suggested that an ideal sui generis system should include the
following elements:25
Elements of benefit sharing.
Include provisions of prior informed consent (PIC).
Include elements of disclosure of the country of origin of genetic
resources/biological resources.
Includes elements of coownership of the patents where applicable.
Includes provisions for contractual agreements.
May include provisions of customary law.
Sui-generis law includes the provisions of rights of farmers and breeders.
A Sui-generis law may be a combination of intellectual property law and any
one or more of the above provisions.

25
J.A. Nafziger, Methodologies for recognizing the role of informal innovation in the
conservation and utilization of plant genetic resources, California Western
International Law Journal, 1987.

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C. DO SUI GENERIS SYSTEMS WORK IN PRACTICE?
The answer to this question is a resounding yes. The Quechua farmers of Peru have
used a model based on collective bio-cultural heritage to protect their indigenous
varieties of potato. To understand this example, we must first delve into what CCBH
actually means. Collective bio-cultural heritage (CBCH) is defined as the:
Knowledge, innovations and practices of indigenous and local communities which
are collectively held and inextricably linked to traditional resources and territories,
local economies, the diversity of genes, varieties, species and ecosystems, cultural
and spiritual values, and customary laws shaped within the socio-ecological context
of communities. 26 The concept emphasises the need to protect rights not only to
traditional knowledge itself, but also to all the inter-linked components of traditional
knowledge systemsincluding biogenetic resources, landscapes, cultural and
spiritual values, and customary laws and institutions. It therefore sets out a framework
to develop mechanisms to protect traditional knowledge which are holistic and based
on human rights, including rights to land and natural resources, and the right to self-
determination. The concept also emphasises the need for the restitution of rights over
indigenous heritage, which has been taken away.

ANDES (Peru) and Quechua farmers are using the concept of Collective Bio-Cultural
Heritage to shape a range of responses for TK protection in a center of origin of
potato diversity. These include:
Establishing an Andean Potato Park as an Indigenous Bio-Cultural Heritage
Area managed by six communities
Developing a web-based multimedia bio-cultural register (using an open-
source software),to promote the use of TK for livelihoods and its protection
against biopiracy

26
This definition was developed at a workshop of research and indigenous partners of
the project on Traditional Knowledge Protection and Customary Law, held in
Peru,May 2005.However,it builds on a whole body of work: by communities such as
Quechua farmers; anthropologists such as Darrell Poseys work on Traditional
Resource Rights; and indigenous fora, such as the UN Working Group on Indigenous
Populations draft principles and guidelines for protection of indigenous peoples
heritage by Erica Daes (E/CN.4/Sub.2/1995/26,Commission on Human Rights). Thus,
it is not a new concept, but represents a renewed effort to promote holistic approaches
for the protection of indigenous knowledge and heritage.

14
Using a collective Potato Park trademark for bio-cultural products (eg.for
organic potatoes sold as health foods or nutraceuticals)
Establishing an agreement for the repatriation of, and reciprocal access to,
traditional potato varieties held in a gene bank (the International Potato
Centre); and an inter-community agreement for equitable benefit-sharing
based on customary laws
Andean customary law principles of reciprocity, equilibrium and duality are being
used to guide all the activities in the park so that the communities can manage
their resources and take advantage of new development opportunities, while
strengthening their traditional values and economic systems that sustain TK,
biodiversity and livelihoods. The Potato Park and its various activities comprise a
sui generis system for TK protection, which does not depend on any external
policy or law, but emerges instead out of a community natural resource
management system. It protects community rights over TK and resources by
strengthening their community management and control at the local level, rather
than relying on the goodwill of others. And rather than waiting for the remote
possibility of future benefits, these tools for TK protection contribute directly to
sustaining livelihoods, TK and biodiversity.27

Using this model, the protection of indigenous knowledge is achieved through: the
recognition of collective land rights; the strengthening of community management
of natural resources, biodiversity and knowledge based on customary laws and
institutions; strengthening of cultural and spiritual values; and strengthening local
economies and poverty reduction. Thus, protection of CBCH provides a means to
address both the loss and misappropriation of TK through a system of community
stewardship. It establishes not only rights, but also the responsibility of indigenous
and local communities to conserve their heritage and transmit it to future
generations. Furthermore, it emphasises development processes that are based on
local knowledge and leadership, and are endogenous, as opposed to externally
driven.28

27
IIED, Andes (Peru) and Call of the Earth, Towards a Holistic Approach to
Indigenous Knowledge Protection: UN Activities, Collective Bio-cultural Heritage
and the UNPFII. Paper prepared for the Fifth Session of the UNPFII, New York.
28
Ibid.

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SELF-DETERMINATION AS THE BACKBONE OF A SUI GENERIS SYSTEM

A. THE RIGHT TO SELF-DETERMINATION IN INTERNATIONAL LAW


Self-determination is the right of peoples to freely determine their political status
and includes the option to become an independent state or freely associate or integrate
with an independent state.29 This right is a customary norm recognised under various
international conventions, G.A. Resolutions and judgments of the International Court
of Justice.30

The right of self- determination is available to a group of population, which


constitutes a peoples as envisaged in U.N. Charter, ICCPR and ICESCR. A
Peoples is a distinct ethnic group, the identifying marks of which are common
language, tradition and culture.31

Indigenous peoples are characterized primarily by having a bond of ancestry with the
original people (historical continuity), by differentiation from the dominant social
group (they are not hegemonic groups), and by their cultural identity (individuals
partake of traditions, customs, language, etc.). Although these people live in situations
normally associated with the violation of rights, especially the rights of minorities
under international law, their representatives demand recognition of self-
determination as the basis for all human rights that are provided to them, and not just
their condition as minorities or vulnerable groups. Self-determination allows the
community to exercise control over its own future, and thus survive and thrive. It is a
central component of group identity, which carries a strong political meaning, which
implies, inter alia, autonomy, self-government, recognition and protection of
diversity, protection of the territory, participation policy, protection of language, art
and traditional practices as well as the recognition of indigenous customary law.

29
Declaration on the Granting of Independence to Colonial Countries and Peoples,
G.A. Res. 1514(XV), G.A.O.R., 15th Sess., Supp. No. 16, U.N. Doc. A/4684 (1960),
Art. 2.
30
Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 31-33.
31
Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries, 28 June 1989, 1650 U.N.T.S. 383, Art.1(2).

16
B. WHY MUST SELF-DETERMINATION FORM THE BASIS OF A SUI GENERIS SYSTEM
OF PROTECTION OF TK?

States have an erga omnes obligation to promote the self-determination of peoples


within their territories. This right/obligation is embodied in the UN Charter 32 , the
ICCPR 33 and the ICESCR 34 . It has already been established that TK belonging to
different communities is integral to their cultural identity; this implies that these
communities can get this TK protected in pursuance of its right to self-determination.
The problem of alternative legal protection is that these methods are usually not
synchronized with the indigenous idea of community ownership; in turn, indigenous
peoples reject these forms of protection as an unwelcome encroachment of Western
bias.35 The challenge is, therefore, to create a measure that would be accepted by the
existing norms of indigenous communities.
Indigenous peoples have definitely shown that they intend to protect their TK in
pursuance of a right to self-determination. The international community has also
recognized this demand by including the same in several conventions. Much like the
potato farmers of Peru, a system of selective sharing, enforced by local traditions
within the group, and the right of self-determination against the world in general,
must be employed to fully protect the traditional knowledge of local communities.
This would be a sui generis system, independent of any conventional form of IPR.
However, States should also explore the possibility of achieving international
cooperation on the complete prohibition of bio-piracy36 in all respects.

32
United Nations Charter.
Article 1(2):
The purpose(s) of the United Nations are:

To develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace
33
International Covenant on Civil and Political Rights.
Article 1:
All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.
34
Ibid.
35
Graeme W. Austin, Valuing Domestic Self-Determination in Intellectual Property
Jurisprudence, Chicago-Kent Law Review, 2007.
36
Bio-piracy is defined as the practice of commercially exploiting naturally occurring
biochemical or genetic material, especially by obtaining patents that restrict its future
use, while failing to pay fair compensation to the community from which it originates.

17
CONCLUSION
In conclusion, the author would like to recommend the creation of sui generis regime
of protection of TK, which would contain the following features:

1. Complete prohibition on the commercial appropriation of TK used for


generations by local and indigenous communities;
2. International consensus to ensure that no patent is granted to any
product/process that derives its patentability and potential commercial value
from a component of TK;
3. To enforce the above, there must a database of possible TK maintained by
each State, much like the TKDL set up by India. This would help to provide
clear and cogent evidence about the rights of indigenous peoples and local
communities everywhere;
4. A sui generis system without any evasive measures against commercial
appropriation would only be able to internally regulate the proliferation of TK.
However, the problem at hand is not of internal regulation; it is to ensure that
incidents of attempted bio-piracy, as against turmeric or neem, are not
repeated. Therefore, much like the farmers of Quechua, who adopted a novel
trademark to protect their commodities, TK should be considered to be an
essential component of an individuals right to self-determination. It is the
solemn duty of each State to protect the same, and would therefore ensure
complete protection of the intellectual property in TK;
5. Finally, this is the best method of protecting such IP, because such knowledge,
its transmission and value are regulated by principles of the community, which
are completely opposed to the monopolistic IPR regime. However, the law of
the community also recognizes the right to self-determination. Therefore, self-
determination can act as an adequate limitation to the misappropriation of such
TK.

18