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Traditional Knowledge : The Convention on Biological Diversity and TRIPS agreement
Traditional knowledge has been defined by the World Intellectual Property Organisation as intellectual and intangible cultural heritage, practices and knowledge systems of traditional communities that are passed on from generation to generation. Traditional knowledge has been classified into open knowledge - where it belongs to a wider scope of people and close knowledge which is confined to a particular group or a society.
The earth Summit at Rio in 1992 marks the first attempt taken towards preservation of traditional knowledge with respect to biodiversity. Principle 22 of the summit clearly states the importance of indigenous people and other local communities in environmental development due to their traditional practices and this puts the onus on the Government to recognize and support their identity and culture in order to enable them to be active participants towards sustainable development.
The Convention on Biological Diversity (CBD) and Nagoya Protocol relates traditional knowledge directly towards achieving the Sustainable Development Goals mentioned by the United Nations. The TRIPS agreement negotiation did not include traditional knowledge and its protection as a part of the Uruguay Rounds as an issue within TRIPS or Tarde and Environment. However, post this, the April 1994 Marrakesh Decision on Trade and Agreement stated that the Committee on Trade and Environment (CTE) included aspects of Intellectual Property Rights as an integral part of its work. Further, in early 1995, the WTO released certain documents within the CTE which made an attempt at narrating the relationship between TRIPS and CBD. These discussions that were started in the WTO Committee on Trade and Environment was moved to the TRIPS Council by way of Article 27.3(b) review. This review would require WTO member countries how they would effectively implement provisions related to biotechnology or life form patents within their national laws.
International measures pertaining to conventional biological diversity focuses on three main objectives, namely:
- Conservation and protection of biological diversity
- Sustainable use of its components
- Fair and equitable sharing of benefits arising from genetic resources
When looked into the core of the relationship that is shared between biodiversity and patent related aspects of biodiversity, the 2 key provisions that are highlighted are prior information consent before accessing, through authorities and benefit sharing which means there must be a profit flow to such indigenous communities, ion account of commercialisation. The CBD also discusses access and transfer of technology, including biotechnology to the governments and/or local communities that provided traditional knowledge and resources. The TRIPS-CBD relationship has also been enhanced through emerging tools in biotechnology such as transgenic plants and animals, DNA technology, genetically modified microorganisms etc, in the past 3-4 decades.Article 27 of the TRIPs agreement mandates any invention within the framework of article 27 would be required to have inventive step, novelty and industrial application. However, these terms have not been defined under the agreement. But Article 27.2 clearly lays down exclusions and the grounds of exclusion.
The Nagoya Protocol deals with the sole objective of access to genetic resources and the fair and equitable sharing of benefits arising from their utilisation to the CBD. It specifically establishes a framework that is required for predictable conditions for access to genetic resources and also ensuring benefit-sharing when the resources leave the contracting party providing the genetic resources.
