International Dimension of Protection of TK

1. International Dimension of Protection of TK Presentation by India

2. Structure of the Presentation • Indian experience • Need for international recognition of systems of protection of TK. • Elements of international instrument • Role of inter-governmental bodies

3. Indian Experience Issues: • Bio-Piracy - Misappropriation • Benefit sharing and Prior Informed Consent • Recognition and Protection of TK. • Commercialisation of TK

4. Bio-piracy Bad patents • instances of patenting of neem, turmeric, bitter gourd, brinjal, etc. • Expensive legal challenges • Search for a mis-appropriation regime – • Documenting TK • Prohibiting patents • Disclosure of the source of TK

5. Indian initiatives Documentation of TK • Traditional knowledge Digital Library • People’s Biodiversity Register Disclosure requirement Provision of mandatory disclosure in patent application of source of biological material used in the invention in Patents (2nd Amendment) Bill.

6. Prior Informed Consent & Benefit Sharing Indian Bio-Diversity Bill • Provision for prior approval of National Biodiversity Authority(NBA) before access • NBA to impose terms and conditions for equitable benefit sharing. • Prior approval of NBA before seeking any IPR in India or outside.

7. Experience in Other countries • Provisions in existing or proposed laws in- • Brazil, Costa Rica, Peru, Philippines, Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela), Model OAU Law, etc. • Provisions for PIC, benefit sharing, systems for contract and MTA, some restrictions on IPRs if PIC and benefit sharing is not ensured, respect for customary laws, etc. • Though certain elements are common but each national regime is different from others

8. Inadequacies of National Systems • Patents being sought in other countries on TK – bad patents. • Patents being sought in other countries for inventions utilising TK without PIC and benefit sharing. • Commercialisation of TK in other countries without PIC and benefit sharing. • Issues relating to protection of TK through alternative system.

9. Elements of International Instrument • Local protection to the rights of TK holders through national level sui generis regimes. • Effective enforcement of national systems through positive comity among national authorities of various countries Contd….

10. Elements of International Instrument • A procedure whereby use of TK particularly for IPR is allowed only after obtaining PIC of country of origin. • International instrument that recognises such national level systems. • Such instrument should prevent bio-piracy and ensure that national level benefit sharing mechanisms and laws are respected worldwide.

11. Role of Inter-governmental Organisations WTO-Doha Mandate • Harmonization of provisions of TRIPS and CBD approaches • Issue of mandatory disclosure provision • Mandatory PIC • Countries may protect TK through sui generis system – Article 27.3 (b).

12. Role of Inter-Governmental Bodies WIPO • Development of a sui generis systems to protect TK. • Work on TK database CBD • Guidelines for access and benefit sharing • Emphasis on benefit sharing mechanisms

13. Way forward for Developing Countries • Development of international instrument • in an inter-governmantal fora • Clear road-map required • By the developing country’s coalition – Constitution of an Expert Committee • Coalition effort required in WTO, WIPO, CBD, etc.