International Developments Relating To Protection Of Traditional Knowledge

– Navin Anand, CNLU

INTRODUCTION

Traditional knowledge has been defined as ‘a body of knowledge built by a group of people through generations living in close contact with nature’. The protection under intellectual property rights (IPRs) of traditional and indigenous knowledge (TK) has received growing attention since the adoption of the Convention on Biological Diversity (CBD) in 1992. Numerous contributions by academics, NGOs and governments have considered the need to provide some form of protection to TK.[i] However, significant divergences exist as to whether IPRs should be applied and, if that were the case, which would be the rationale and modalities of protection.

Traditional and indigenous knowledge (TK) has been used for centuries by indigenous and local communities under local laws, customs and traditions. It has been transmitted and evolved from generation to generation.[ii] TK has played, and still plays, an important role in vital areas such as food security, the development of agriculture and medical treatment. However, Western societies have not, in general, recognised any significant value in TK nor any obligations associated to its use, and have passively consented to or accelerated its loss through the destruction of the communities’ living environment and cultural values.

Recently, Western science has become more interested in TK and realised that TK may help to find useful solutions to current problems, sometimes in combination with “modern” scientific and technological knowledge. Despite the growing recognition of TK as a valuable source of knowledge, it has generally been regarded under Western intellectual property laws as information in the “public domain”, freely available for use by anybody. Moreover, in some cases, diverse forms of TK have been appropriated under intellectual property rights by researchers and commercial enterprises, without any compensation to the knowledge’s creators or possessors. TK is a central component for the daily life of millions of people in developing countries. Traditional Medicine (TM) serves the health needs of a vast majority of people in developing countries, where access to “modern” health care services and medicine is limited by economic and cultural reasons.

Similarly, the use and continuous improvement of farmers’ varieties (landraces) is essential in many agricultural systems.[iii] In many countries, seed supply fundamentally relies on the “informal” system of seed production which operates on the basis of the diffusion of the best seed available within a community, and on its movement, even over large distances during migration or after disaster. Furthermore, TK is the origin of a great variety of artistic expressions, including musical works and handicrafts. TM also plays a significant role in developed countries, where the demand for herbal medicines has grown in recent years.

IMPORTANCE

The importance of TK for its creators and for the world community at large, and the need to foster, preserve and protect such knowledge, has gained growing recognition in international fora. Thus, in 1981 a WIPO-UNESCO Model Law on Folklore was adopted; in 1989 the concept of “Farmers Rights” was introduced in the FAO International Undertaking on Plant Genetic Resources8; in 1992 the Convention on Biological Diversity (CBD) specifically addressed the issue (article 8(j)). In 2000, an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established by the World Intellectual Property Organisation (WIPO) and it first met in April 2001.

SCOPE

TK encompasses very different types of knowledge. These may be distinguished by the elements involved, the knowledge’s potential or actual applications, the level of codification, the individual or collective form of possession, and its legal status. The desire to protect TK has generated a significant body of literature and many proposals of regulation and for action in different international fora. Precisely how TK is defined has important implications for the kind and scope of a possible protection regime. TK includes, for example, information on the use of biological and other materials for medical treatment and agriculture, production processes, designs, literature, music, rituals, and other techniques and arts. This broad set includes information of a functional and of an aesthetic character, that is, processes and products that can be used in agriculture or industry, as well as intangibles of cultural value. Mostly, TK comprises of knowledge which has been developed in the past, but which still continues to be developed. Most TK is, in effect, of non-contemporary nature; it has been used for generations and in many cases collected and published by anthropologists,[iv] historians, botanists or other researchers and observers. However, TK is not static; it evolves and generates new information as a result of improvements or adaptation to changing circumstances.

To summarize, TK includes information of different kinds and functions, developed in ancestral times but subject to contemporary improvement and adaptation.[v] It is expressed in various documented and non-documented forms, and may possess commercial value depending on its potential or actual use. The difficulties of defining TK should not, however, impede further work on it at the national or international level.

LEGAL PROTECTION OF TRADITIONAL KNOWLEDGE

This chapter discusses the currently much debated issue of traditional knowledge (TK) protection. Opinions differ widely, not only as to how TK should be protected, but even as to whether TK should be protected at all. It is commonly accepted that intellectual property rights (IPRs) in their current form are ill-suited for this category of knowledge. But does it follow that TK should be placed or left in the public domain for anybody to use as they wish? For many indigenous peoples, traditional communities and developing country governments, this seems neither fair nor reasonable. In response, they have insisted that this issue be discussed at the highest level in such forums as the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO) and the Convention on Biological Diversity (CBD)[vi] Conference of the Parties (COP), and also be addressed at the national and regional levels. Proposals have included reforms to current IP regimes in order to prevent misappropriation of TK and the development of sui generis systems that vest rights in TK holders and TK-producing communities. However, considerable conceptual and political difficulties remain, and these remaining difficulties make it hard to predict the future of TK, as a legal and diplomatic issue.[vii]

The trends discussed in this chapter suggest at least three potentially overlapping scenarios for the future legal protection of TK: (1) continuing and/or increased reliance on existing means of legal protection for TK; (2) development of non-uniform, country- or region- specific means for protecting TK; and (3) development of internationally harmonized approaches to the protection of TK. While significant efforts are taking place towards the development of internationally harmonized approaches, it is not impossible to envisage a break-down of negotiations on the subject due to developed country maneuvering, widening differences among the developing countries, or a realization among the developing countries that the economic stakes are not as high as they had been led to believe. However, a break-down at the international level would not preclude breakthroughs at the national and regional levels. Scenario planning by indigenous[viii] and local communities might be one way of teasing out the issues and challenges, as well as options, in the protection of their TK.there are some basic concepts in relation to TK and its legal protection.[ix] TK emphasizes that the preservation and transmission of it depends not only on legal reforms in this area, but also on many socio-economic and environmental factors.[x]

PROTECTION OF TRADITIONAL KNOWLEDGE IN INDIA

Protections of the Traditional Knowledge of the local and indigenous communities seem to be one of the most contentious and complicated issue. The historical development of the protection of intellectual property in the wake of individual private property rights, pushed, the traditional knowledge and the innovative practice based on the  outside the purview of the formal intellectual property protection regime.  The new millennium poses serious challenge to the international legal community to set new international legal standard for tackling the problem of intellectual property protection throw open by the technology developments.  Traditional Knowledge was treated as Knowledge in the public demeans for free exploitation without showing any respect or concern for the effort taken by the communities to preserve and promote the same. The new technological developments, particularly in biotechnology, clearly demonstrate the significance and usefulness of traditional knowledge for the development of new product of commercial importance.  Traditional knowledge (TK) associated with the biological resources is the knowledge about a   country‘s biodiversity;  the applied uses and applications of biological resources and the prevalent practices. TK has direct correlation with the biodiversity of the country. It is an intangible component of the resource itself. TK has the potential of being transformed into commercial opportunity, providing useful leads for development of products and processes. Hence, a share of benefits must accrue to creators and holders of TK .TK valuable in global economy, Important for biotechnology based industries industry and agriculture, Traditional societies depend on it for their food and healthcare needs, Important for conservation and sustainable development of environment and management of biodiversity, Food security of the country is linked to protection of TK.Need to enable tribal communities to harness TK for their economic uplift and growth Fast mobility of tribal societies.

Strategies to Increase Protection of Traditional Knowledge

International Efforts: Indian Traditional Knowledge available to the USPTO – Patent examiners of the United States Patent and Trademark Office (USPTO) are now able to access the Database of Traditional Knowledge thanks to the Indian Government according its permission in November 2009. India‘s Council of Scientific and Industrial Research, and the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy was credited with the development of the Traditional Knowledge Digital Library (TKDL), which is a 30 million page searchable database of traditional knowledge translated from numerous languages such as Hindi, Sanskrit, Arabic, Persian, Urdu and Tamil into English, Japanese, French, German and Spanish. The EPO was allowed the use of the TKDL in February 2009.

MOU between USPTO and India on Bilateral Intellectual Property Rights Cooperation

 The Indian Department of Industrial Policy and Promotion (DIPP) and USPTO    announced on the 23rd of November 2009 that they have entered into a MOU on comprehensive bilateral cooperation for IPR protection and enforcement. Under the terms of the MOU, the USPTO and DIPP will cooperate on a range of IPR issues, focusing on capacity building, human resource development, and raising public awareness of the importance of IPR.[xi]There are several other international legal platforms and instruments that currently address intellectual property protection as it relates to traditional knowledge. Some of the most prominent include:

The UN Draft Declaration on Rights of Indigenous Peoples:  This UN Draft Declaration, in Article 29, specifically states that ―Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property.[xii] They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.

Global Guidelines: A recent positive initiative is the drafting of a set of corporate guidelines for businesses that want to use native plants and traditional knowledge from indigenous communities to make commercial drugs. In April 2002 in The Hague, delegates of the UN Biodiversity[xiii] Congress from 166 countries negotiated and adopted global guidelines during a two- week long U.N. sponsored CBD conference that was designed to encourage pharmaceutical companies to make responsible agreements with countries whose resources they use.

REASONS FOR PROTECTION

One reason for a lack of clarity about the rationale for protection stems from the different meanings given to the concept of protection. Some understand this concept in the context of IPRs, where protection essentially means to exclude the unauthorised use by third parties.[xiv] Others regard protection as a tool to preserve traditional knowledge from uses that may erode it or negatively affect the life or culture of the communities that have developed and applied it.[xv]

Overall, however, the main arguments for granting protection to TK include:

  • Equity considerations,
  • Conservation concerns,
  • The preservation of traditional practices and culture,
  • The prevention of appropriation by unauthorized parties of components of TK, and
  • Promotion of its use and its importance in development.

EQUITY

The underlying concept in many proposals for the protection of TK is based on equity considerations. TK generates value that, due to the system of appropriation and reward currently in place, is not adequately recognized and compensated. The protection of TK would, therefore, be necessary to bring equity to essentially unjust and unequal relations.The basic point in this criticism is that traditional/indigenous farmers are not paid for the value they deliver, since breeders and seed companies are not charged a price for the samples they obtain, and neither is there any later compensation or sharing of benefits with the farmers. A similar argument applies to other intangible components of TK.

CONSERVATION

A second factor underlying the claim for protection of TK is based on the importance of such knowledge for conservation purposes. Thus, maintenance of biological diversity in farming systems generates value for the global community. IPRs might be used to generate income to sustain activities that would otherwise be abandoned.[xvi]Under this approach, the protection of TK helps meet society’s broader objectives for the conservation of the environment, sustainable agriculture and food security.

PRESERVATION OF TRADITIONAL LIFESTYLES

Others see the protection of TK as providing a framework to encourage the maintenance of practices and knowledge embodying traditional life styles. In this sense, the notion of “protection” is quite different from the notion applied under IPRs. The preservation of TK is not only a key component of the right to self-identification and a condition for the continuous existence of indigenous and traditional peoples; it is also a central element of the cultural heritage of humanity. The crisis affecting the world’s diverse cultures and languages is, according to some estimates, far greater than thebiodiversity crisis. Around 90% of the 6000+ currently spoken languages (and the cultures expressed by them) may have become extinct or face extinction in the next 100 years.

PROMOTING USE AND DEVELOPMENT

The promotion of the use of TK is an important objective in itself. Article 8 (j) of the CBD, often quoted in relation to the protection of TK, requires the promotion of the “wider application” of TK. It may be argued that protecting TK against loss and misappropriation, or ensuring compensation to TK holders, are necessary elements to stimulate the broader use of such knowledge. Protection may be, in this context, a tool for facilitating access to TK. Some form of protection may create the basis of trust required for the local/indigenous communities to part with their knowledge, and improve their position to obtain value from it. If some rights were recognized, knowledge holders may be more prepared to provide access to their knowledge and, if fairly compensated, they will have more incentives to conserve it and ensure future access.Promoting development may also be a fundamental motivation behind protecting TK from destruction and loss. TK is an underutilized resource in the development process. Legal protection may help to exploit the opportunities of TK based products and services. TK may also be a critical resource for strengthening local innovation, and innovation is important for reinforcing (even rebuilding) local cultures.

TK AND IPRs IN INTERNATIONAL FORA

Issues relating to TK and intellectual property have been dealt with by UNEP/CBD, WIPO, UNCTAD and WTO. Some of these organizations have cooperated with each other. Thus, WIPO and UNEP undertook joint case studies on the role of IPRs in sharing of benefits from the use of TK and associated biological resources, and FAO and the CBD Secretariat regularly cooperate on issues of common interest in agriculture. Of course, the role of these different organisations and fora significantly varies. While WIPO, WTO, FAO and the CBD may provide the framework for international negotiations, currently no negotiations are conducted under the auspices of UNCTAD, although it has convened a workshop on TK.[xvii] In addition, while WIPO is a specialised UN Organisation that promotes the protection of intellectual property and WTO deals with international trade (including TRIPS) in general, the CBD and FAO have a thematic focus on issues relating to genetic resources (as applied to agriculture in the case of FAO).

UNEP/CBD

Since 1996, the Conference of the Parties (COP) has considered issues related to IPRs, both at its third session in November 1996 and at its fourth session in May 1998. The implementation of article 8 (j) has been extensively examined under the CBD.[xviii] In particular, the Fourth COP established in April 1998 an ad hoc Open-ended Inter- Sessional Working Group on Article 8(j) to, inter alia, develop a programme of work for the implementation of Article 8(j) and related provisions and to provide advice on the development of legal and other appropriate forms of protection for subject matter covered by Article 8(j). In June 1999, the Inter-Sessional Meeting on the Operation of the Convention explored options for access and benefit sharing mechanisms. In this context, the meeting explored the relationship between IPRs, the TRIPS Agreement and the CBD. The COP adopted a decision on access to genetic resources containing three sections:

  1. Access and benefit sharing (ABS) arrangements;
  2. The relationship between IPRs and the TRIPS Agreement; and,
  3. Ex situ collections acquired prior to the CBD’s entry into force and not addressed by the FAO Commission on Genetic Resources for Food and Agriculture.

The COP invited Parties to the CBD and relevant organisations to submit information about the role of IPRs in the implementation of ABS arrangements by 31 December 2000. The decision also invites relevant international organisations to analyse the functioning of IP systems as they relate to access to genetic resources, including the possibility of requiring information on the origin of genetic resources as part of the application procedure for IPRs. The decision also invites the WTO to acknowledge relevant CBD provisions and to take into account the relationship between the CBD and the TRIPS Agreement.

WIPO

WIPO developed (jointly with UNESCO) Model Provisions for National Laws for the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions.[xix] In 1998, WIPO created a Global Intellectual Property Issues Division, which undertook several studies on TK and, in particular, organised fact finding missions in different parts of the world to identify the issues at stake and the concerns of TK holders.They were generally sympathetic with the idea of addressing the legal protection of TK under IPRs. The USA, however, questioned the desirability of establishing international rules on genetic resources, TK and folklore, while other delegations indicated the need for further analysis on the matter.[xx]

FAO

The protection of TK has also been raised in relation to the definition and implementation of the concept of Farmers’ Rights introduced during the revision of the International Undertaking on Plant Genetic Resources for Food and Agriculture, which began in 1994. Article 9.2(a) of the final text, which was adopted as a new treaty by the FAO (food and agriculture organization) Conference in Rome in November 2001, requires measures for the protection of “traditional knowledge” but, in view of the scope and purpose of the Treaty, it only refers to knowledge “relevant to plant genetic resources for food and agriculture”. Article 9.2 is, thus, narrower in scope than Article 8(j) of the CBD, and would not apply, for instance, to knowledge relating to medicinal or industrial uses of plant genetic resources. Under this approach, the issue of protection of TK may be circumscribed to knowledge incorporated in farmers’ varieties (landraces) and certain associated knowledge (eg specific cultivation practices). The development of a sui generis regime for the protection of farmers’ varieties becomes, in this context, one of the possible components of Farmers’ Rights.

UNCTAD

The United Nations Conference on Trade and Development (UNCTAD) held on 30 October-1 November 2000, an “Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices”. Over 250 people from 80 countries participated, including representatives of governments, indigenous groups, NGOs, Inter-Governmental Organisations (IGOs), academia, private companies, and international agencies and some 50 papers on country experiences were presented.[xxi] The meeting’s outcome, which reflected the diversity of views of experts, was taken up in February 2001 by UNCTAD’s Commission on Trade in Goods and Services, and Commodities, which negotiated agreed recommendations to governments, to the international community, and to UNCTAD. Recommendations to governments included: to raise awareness about protection of TK, to support the innovation potential of local and indigenous communities, to facilitate the documentation of TK and to promote the commercialization of TK based products.

UNHCHR

The UN Working Group on Indigenous Populations has the mandate to develop international standards for the rights of indigenous peoples, including in relation to their knowledge and cultural integrity.[xxii] Protection of TK has been dealt with, in this framework, as a component of the broader right to practice and revitalise indigenous cultural traditions and customs. A report by the High Commissioner on Human Rights notes that there are tensions between IP protection and the protection of the knowledge of local and indigenous communities (such as those relating to the use of such knowledge by people outside the community without the knowledge holders’ consent and to the equitable compensation) that may “require amendments, adaptations and additions to IP systems”.[xxiii] The High Commissioner is preparing a further report on the implications of the TRIPS Agreement on the rights of indigenous peoples.

WTO

The Council of TRIPS is an important forum for the discussion of IPRs, biodiversity and the protection of TK, particularly in the context of the review of article 27.3 (b). However, the CBD Secretariat has not yet been given permanent observer status to the Council of TRIPS. The number of admitted observers is very limited and NGOs are not allowed to participate. Various countries have made submissions about the review of article 27.3 (b), which in some cases include suggestions on TK.

The relationship between the TRIPS Agreement and the CBD has been addressed by the Secretariat of the WTO.[xxiv] This relationship, including the protection of TK, was examined by the Committee on Trade and Environment (CTE) at the WTO. The CTE was formally established in 1995 by the WTO General Council to examine the relationship between the provisions of the multilateral trading system and trade measures for environmental purposes, including those pursuant to Multilateral Environmental Agreements (MEAs). The CTE considered the provisions of the TRIPS Agreement relevant to its work on the environment under Item 8 of its agenda. Some developing countries have argued that the TRIPS Agreement must be reviewed in light of the obligations on States under Article 8(j) of the CBD.

In the view of the government of India, however: “the modalities for protecting TK are still emerging and evolving. The nature of entitlements and share in benefits is also a gray area. Even at the international level, clarity has as yet not emerged and countries are grappling to understand the issue”.[xxv]

Developed countries have not contested the possibility of and the right of countries to protect TK. Thus, the USA has argued that there is no inconsistency between the CBD and the TRIPS Agreement, encouraged the development of data bases on TK, and pointed out that “national or local legislation or regulation” could be adopted to establish the basis for “contractual arrangements” between suppliers and recipients of TK. The USA, however, does not favour any treatment of the protection of TK, at least in the framework of the TRIPS Agreement.

To summarise, developing countries’ positions aim at some recognition and protection of TK, but considerable hesitation seems to exist about how to deal with the subject, the nature and scope of protection, and the extent to which the issue should be brought under the TRIPS Agreement. Others seem to aim at preserving the room existing at the national level to legislate on the matter, while at least one country has so far proposed to develop mandatory provisions in the context of the TRIPS Agreement. Significant preparatory work will be necessary to envisage international negotiations on the matter. Since according to the WTO rules only Member States and accredited observers are allowed to participate in the WTO deliberations, local and indigenous communities may only influence them through their respective governments. They have no voice to express their views directly in that forum,

CASE LAWS

  1. Mitra Company Pvt. Ltd. vs. Span Diagnostics[xxvi]

Hepatitis C diagnostic kit …Judgement delivered by Hon‘ble Mr. Justice Sanjay KishanKaul of the Delhi High Court: Sufficient documents were filed showing the research conducted by J. Mitra. Whereas, the defendant showed no research or development towards its infringing product. Relevance of PCT Report – not binding while evaluating Obviousness & Inventive step-The Patent is not hit by prior art , No credible challenge to the validity of the patent , Injunction granted ,In Division Bench, for disposal of existing stocks – The Court directed deposit of 30% of proceeds.appeals filed by respondent to be heard and decided by High Court-No reason to transfer appeals to Appellate Board as it has no authority to decide matters concerning pre-grant opposition.

J.Mitravs. Controller of Patents[xxvii]

 Supreme Court slightly modified – Justice Kapadia‘s judgement:- No appeal lies against pre-grant order ,only in view of unusual circumstances appeal to be entertained ,To be heard by High Court Supreme Court slightly modified – Justice Kapadia‘s judgement:-  No appeal lies against pre-grant order ,only in view of unusual circumstances appeal to be entertained , To be heard by High Court – Procedural ironing out by Courts ,Justice Murlidhar Held Pre-Grant ,Oppn Rejected – no appeal or writ – go for Post-Grant ,Patent rejected – appeal to IPAB.

Snehlata C. Gupte vs. Union of India[xxviii]

 SERIAL  OPPOSITIONS Pre-Grant by Party A Decision in opposition on X date – Controller orders for grant Second opposition filed next day ,Grant and sealing yet to take place ,Pre-grant can be filed anytime before grant ,Court held serial oppositions impermissible. Petition dismissed.

CONCLUSION

The protection of TK raises a number of policy issues, notably the objectives and modalities of such protection, and its impact and implications for its intended beneficiaries. Such issues are extremely complex, since there are broad differences about the definition of the subject matter, the rationale for protection, and the means for achieving its purposes. The issues relating to TK should be addressed in a holistic manner, including ethical, environmental and socio-economic concerns. There are, in addition, many still unresolved technical issues such as the problem of collective ownership and the modes of enforcement of rights.

The development of any regime for the protection of TK should be grounded on a sound definition of the objectives sought, and on the appropriateness of the instrument selected to achieve them. IPRs may be one of the tools to be used, but their limits and implications should be clearly understood. In particular, a balance should be obtained between the protection and the promotion of the use of such knowledge. It is unclear the extent to which the various proposals made for the protection of TK reflect the aims and cultural values of the traditional and indigenous communities they intend to serve. There is a risk of transferring to such communities concepts and paradigms which are not suited to their realities, or which may prove ineffective to solve the problems they are supposed to address. The consideration of TK protection should not overshadow the fact that the preservation and use of TK requires above all ensuring the survival and improvement of living conditions, in their environment and cultural milieu, of such communities. Given the lack of clarity about the objectives, nature, scope and implications of possible IPRsbased regimes for TK protection, it seems premature to promote the development of international standards in the framework of WTO and other fora. A possible intermediate approach is needed.

Future action in this field may thus include:

  • promoting the development, at the national level, of an holistic approach towards the protection of TK, including the resolution of underlying issues such as land rights and the need to respect and maintain the lifestyles of local and indigenous communities;
  • considering the differing needs for the protection and promotion of TK in different areas, such as TM and plant genetic resources;
  • implementing Farmers Rights at the national level;
  • moving towards, in the short term, the establishment of a misappropriation regime; • continuing work in WIPO, UNCTAD, WTO and in other fora in order to clarify the possible role, scope and content of systems of protection for TK;
  • ensuring a broad and effective participation of representatives from local and indigenous communities in the definition and implementation of any system for the protection of TK.

[i]DutfieldGraham, “Rights, Resources and Responses”, Cultural and Spiritual Values of Biodiversity, UNEP, 1999 pp 1-3.

[ii]BarshRussel, “Who steals indigenous knowledge?” (Mimeo), New York University and First Peoples Worldwide, New York, 2001 pp 7-9.

[iii]CorreaCarlos, “Protection of traditional systems of medicine, patenting and promotion of medicinal plants”, paper prepared for WHO, Geneva, 2000 pp 11.

[iv]International Labour Organization (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) (Geneva, 27 June 1989), 1650 U.N.T.S. 383, 28 I.L.M. 1382, 72 ILO Official Bull. 59 (1989) (entered into force 5 September 1991), available at: http://www.un-documents.net/c169.htm (accessed 22 October 2014).

[v]BlakeneyMichael, “Protection for indigenous or traditional works (e.g. folklore): has the time come?”, Fordham University School of Law, International Intellectual Property Law & Policy, Annual Conference, April 2000 pp 9.

[vi]Convention on Biological Diversity (Rio de Janeiro, 5 June 1992), 1760 U.N.T.S. 79, 31 I.L.M. 818 (1992) (entered into force 29 December 1993) [hereinafter ‘CBD’], available at http://www.cbd.int/doc/legal/cbd-un- en.pdf (accessed 3 October 2014).

[vii]See International Workgroup for Indigenous Affairs 2007, ‘Declaration on the Rights of Indigenous Peoples’, available at: http://www.iwgia.org/sw248.asp (accessed 21 October 2014).

[viii]DrahosPeter, “Indigenous knowledge and the duties of intellectual property owners”, Intellectual Property Journal, 11, August 1997 pp13.

[ix]Posey and Dutfield, Beyond Intellectual Property (International Development Research Center, Ottawa, 1996) pp. 3 and 22-41.

[x]See International Workgroup for Indigenous Affairs 2007, ‘Declaration on the Rights of Indigenous Peoples’, available at: http://www.iwgia.org/sw248.asp (accessed 21 October 2014).

[xi]Posey, “Intellectual Property Rights for Native Peoples:  Challenges to Science, Business, and International Law”, (Paper presented at the International Symposium on Property Rights, Biotechnology and Genetic Resources, Nairobi Kenya, 1991).

[xii]Laird “Natural Products and the Commercialization of Traditional Knowledge” in Greaves, T. (Ed.), Intellectual Property Rights for Indigenous Peoples: A Sourcebook (Society for Applied Anthropology, Oklahoma City, 1994) pp. 145-149.

[xiii]World Commission on Environment and Development, Our Common Future (Oxford University Press, Oxford, 1987) p. 12.

[xiv]DownesDavid, “Using Intellectual Property as a Tool to Protect Traditional Knowledge: Recommendations for Next Steps”, Center for International Environmental Law, Washington, DC 1997 pp 4.

[xv]SimpsonT, Indigenous Heritage and Self-determination: The Cultural and Intellectual Property Rights of Indigenous Peoples, International Work Group for Indigenous Affairs, Copenhagen, 1997 pp 17.

[xvi]SwansonT, PearceD and CervigniR, “The appropriation of the benefits of plant genetic resources for agriculture: an economic analysis of the alternative mechanisms for biodiversity conservation”, Report to the Commission on Plant Genetic Resources, Rome, FAO, 1994 pp 21.

[xvii]WIPO Statement to the CTE and TRIPS Council, WT/CTE/W/182, 6 Feb 2001.

[xviii]Farmers’ Rights and Rights of Similar Groups – The Rights of indigenous and local communities embodying traditional lifestyles: experience and potential for implementation of Article 8(j) of the CBD (UNEP/CBD/IC/2/14), “Knowledge, Innovations and Practices of Indigenous and Local Communities: Implementation of Article 8(j)” (UNEP/CBD/COP/3/19), The Relationship Between IPRs and the Relevant Provisions of the TRIPS Agreement and the CBD (UNEP/CBD/ISOC/5), “Legal and Other Appropriate Forms of Protection for the Knowledge, Innovations and Practices of Indigenous and Local Communities Embodying Traditional Lifestyles Relevant for the Conservation and Sustainable Use of Biological Diversity”.

[xix]See the Report of the WIPO-UNESCO Working Group on the Protection of Aboriginal Folklore, 1981

[xx]WIPO 2001 and  http://www.wipo.int/traditionalknowledge. See also “Protection of Traditional Knowledge: A Global Intellectual Property Issue” (WIPO/RT/LDC/1/4), “Protection of Traditional Knowledge: A Global Intellectual Property Issue” (WIPO/IP/TK/RT/99/2), and “Intellectual Property and Genetic Resources – An Overview” (WIPO/IP/GR/00/2)

[xxi]Most are available on  http://www.unctad.org/trade_ env/index.htm. See also Systems and National Experiences for Protecting TK, Innovations and Practices, TD/B/COM.1/EM.13/2, 22 Oct 2014.

[xxii]See, in particular, article12 of the draft UN Declaration of the Rights of Indigenous Peoples as agreed at the 11th Session (1993) of the Working Group on Indigenous Populations.

[xxiii]UN Economic and Social Council, “Economic, Social and Cultural Rights – The impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on human rights. Report of the High Commissioner”, E/CN.4/Sub.2/2001/13, Oct 2014.

[xxiv]See Environment and TRIPS (WT/CTE/W/8 and W/8/Corr.1), The CBD and TRIPS (WT/CTE/W/50), The Relationship Between the CBD and TRIPS with a Focus on Article 27.3(b) (WT/CTE/W/125).

[xxv]See “Protection of biodiversity and traditional knowledge – the Indian experience”, Submission by India to the WTO, WT/CTE/W/156.

[xxvi](2008)10SCC368.

[xxvii]AIR2009SC405.

[xxviii]2010(43)PTC813(Del).

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