Public Discussion on Legal Protection of Indigenous Knowledge of Bioresources

Gene Campaign had organised a public discussion on Legal Protection of Indigenous Knowledge of Bioresources, on 20 December, at the India International Centre, New Delhi. The discussion was based on the outcome of a two-year research programme to identify the components of a legal regime that could be used to protect the IK related to bioresources and to assess whether existing legal instruments could be amended to protect IK or whether there is a need for a new sui generis legislation to protect the intellectual property of farming and tribal communities

This research supported by the International Development Research Centre, Canada , has critically analysed international conventions like the Convention on Biological Diversity (CBD), the WTO/TRIPS Agreement, and the International Treaty on Plant Genetic Resources (ITPGR), as well as the domestic laws : the Protection of Plant Varieties and Farmer’s Rights Act, 2001, the Biological Diversity Act, 2002, the Patent (Amendment) Act, 2005 and the Geographical Indications of Goods (Protection and Registration) Act, 1999. In addition to these, the Forest and Wildlife legislation as well as the Seeds Bill and the Tribal Rights Bill have been analysed.

The research results and the following discussions led to the conclusion that the amendments required in existing legislation were too many and would be needed in at least 8 laws relating directly or indirectly to bioresources, as well as in sections in the Constitution dealing with Customary Laws. This is practically not feasible, hence a more appropriate approach would be to draft a new sui generis legislation that would protect IK of bioresources in the interest of the local communities whose intellectual property it is.

Gene Campaign proposes to launch a campaign along with like-minded organisations, asking for widespread support for a national legislation that would legally protect the Indigenous Knowledge available in India. Key findings and recommendations for amendments are given below.

KEY FINDINGS & RECOMMENDATIONS FOR AMENDMENTS IN NATIONAL LEGISLATION DEALING WITH BIORESOURCES TO PROTECT IK

RESEARCH COMPONENT I- CUSTOMARY LAWS AND PRACTICES AND IK PROTECTION

(i) Customs constitute a source of law; becomes such only when recorded in statutes or recognized by courts.

For customs to contribute effectively to IK protection, need to be accepted as law per se and to be recorded as state- sanctioned formal rights.

(ii) Customary laws relegated to a position beneath other laws.

Needed to be treated at par with statutory laws. In certain contexts like the Sixth Schedule areas, central statutes could be exempted from extension.

(iii) Most statutes like the Indian Forest Act, 1927 reduce customary rights to the level of concessions.

Need to be recognized as legal rights.

(iv) Most customary rights are not documented; thus, difficult to prove.

It is recommended that oral evidence in forms like community knowledge should be considered adequate in itself to provide evidence. Under the PESA, evidentiary value could be given to statements made by the Gram Sabha. Could further be given duty of codifying customs.

(v) Demand for high standards of proof by statutes and judgements.

Need for judicial bodies to recognize and internalize components of customary law.

(vi) State Governments in Sixth Schedule Areas ineffective in giving importance to customary laws and institutions, owing mostly to their insensitivity to indigenous communities and their knowledge, outside the formal system. Expert Committees, as seen in the Godavarman judgement, are composed of government officials and scientists, not local people.

Need to ensure more effective participation of local people and for assimilating people’s knowledge, customary laws and strengths of traditional institutions into formal structures.

(vii) Customary law could be strengthened by reading more into existing provisions. The Fundamental Rights and Directive Principles of State Policy may be construed in favour of it.  The right to life envisaged in Article 21 could be construed to include the right to livelihood. Can be used to check actions that dislocate local and indigenous communities or disrupt their traditional life style or through which a customary right to a traditional livelihood could be protected. It may be construed that the indigenous communities have a right not to be displaced and disabled by actions robbing them of their customary rights so that they can live with basic human dignity.  more