case study on neem

Seanna's Blog

Case study 04- neem trees.

Part 1: Ethical Decision-Making

Facts of the Situation:

Neem is a sacred, indigenous tree to India
Neem has been used for medicinal purposes, food production, toiletries, fuel, and pesticides
Chetan operates a business of neem products and employs 60 people
Tom Johnson is the Director of Oregon Organic Pesticide Services
Tom travelled to India on vacation and discovered the neem seeds’ use as a potent pesticide
Tom imported neem seeds to his factory in the USA and developed a formula for an organic pesticide from the seeds
Tom’s company invested $5 million to conduct extensive safety and performance tests over the next decade
Tom’s company got security clearances from the EPA and got a patent for the pesticide. He made a profit of $12.5 million in a year.
OOPS, Tom’s company can sell the products at a lower price than Chetan, and people are likely to prefer products from American companies than Indian companies
Tom demands a royalty from Chetan as a result of his patent.

Stakeholders and Motivations:

Successful business of neem tree products that produces pesticides, skin creams, contraceptives, lamp oil, and more
Be loyal to customers and employees
Want people to buy the pesticide from them and make a profit
Put and patent on the pesticide and want it to be adhered to
Want healthy, organic pesticides
Social impact
Tap into the neem market in India
Ensure public health, safety, and well-being
Avoid environmental consequences from the use of pesticides
Want to be able to purchase neem products for the same cost or a lower cost with the same benefits
Want to support either themselves, their friends, or family who are working for Chetan
Want crops that have good harvest
Want to use pesticides that do not harm their products or their customers
Improve the local economy
Protect Indian business owners
Preserve the use neem trees

What rights does Chetan have and is it ethical for the US company to uphold their patent rights?

Because Tom/OOPS was issued a patent on the pesticide, Tom technically does not have the right to sell the neem pesticide as well. He is allowed to sell his other products such as the creams, contraceptives, and lamp oil because they are not restricted under the patent. Tom’s patent is only on the pesticide formula, so Chetan would only need to pay royalties on the pesticide. With that being said, Chetan could try to fight the patent because the U.S. Patent and Trademark Office ruled that products of nature are unpatentable [1]. Therefore, Chetan should have the right to compete with Tom for neem pesticide business.
With that being said, until Chetan fights the patent, it is ethical for OOPS to uphold the rights of their worldwide patent. Patents give companies “the right to exclude others from making, using, offering for sale, or selling” products [2]. So while it is not exactly fair for Chetan to have his business restricted, it is more ethical for him to adhere to the patent than to not. He can focus more on his other neem products if he is unable to sell the pesticide. Therefore, we do not have any alternative solutions to present for this portion of the case studies because Tom is within his rights under the patent. Additionally, Harvard Business Review gives three guiding principles for companies working abroad- respect for core human values, respect for local traditions, and belief that context matters when deciding what is right and wrong [3]. In this case, Tom/OOPS are respecting local traditions by continuing to use the neem products and using it in a cheaper and healthier way.

[1] https://jolt.law.harvard.edu/assets/articlePDFs/v30/30HarvJLTech569.pdf

[2] https://www.uspto.gov/patents-getting-started/general-information-concerning-patents

[3] https://hbr.org/1996/09/values-in-tension-ethics-away-from-home

Implications on the venture:

The environment and people’s health will likely improve because an organic pesticide will be used
OOPS is well respected because they chose to partner with another company that improves the livelihood of workers in the Indian cottage industries.
Chetan is able to continue with part of his business, but will likely lose success from the patent.

Part 2: Grassroots Diplomacy

6 months later, OOPs had developed 20 different neem-based products being sold in India
Their most successful product is neem-based soap
The soap’s wrapper features a photo of Tim Johnson
Chetan also has a soap product that features a photo of his great grandfather, a local legend
Chetan and Tom have met several times, and Tom is willing to collaborate
Chetan’s business is suffering and he will most likely have to lay off half of his staff
Half of Chetan’s staff feels cheated and the other half is confident he will find a way out. Chetan feels loyal to the staff that have worked with him for many years

Stakeholders and Motivations:

Continue to make money
Maintain his successful family business of seven generations
Protect his employees’ jobs and livelihood
Successful business and products
Make money off the neem products
Expand OOPS’s business
Stay on top of the Indian market
Continue to make successful neem products
Loyalty to Chetan and his family business
Continue the legacy and reputation that the business has earned over the past few decades
Make money and support their families

Chetan’s potential next steps:

Take advantage of OOPS’s economies of scale
Takes advantage of Chetan’s local connection
Employees can keep their jobs- because Chetan’s company would need to expand to take on OOPS’s share of the market employees could take on new roles if needed
Chetan still would have a role in the company and continue his family’s legacy
OOPS still has the power because of the patent so they have leverage in this scenario
People that prefer Chetan’s product will have to get used to the American/OOPS formulations
Chetan saves face with his employees because can keep a good relationship with the majority of them
Chetan saves face with Tom/OOPS by not competing and being willing to collaborate
Tom shows good faith by working with Chetan and the people of India because his business can be successful even without Chetan
Short term: mutually beneficial relationship for the two companies, saves the relationship between Chetan and the majority of his employees
Long term: good relationships with customers continues because they are still getting quality neem products
Short term: Tom can continue to build his own company and Chetan can continue working for his company and provide employment to his friends
Long term: Chetan is able to continue his family company’s legacy
Keeps some of his people employed
OOPS will get Chetan’s loyal customers and make more money
OOPS has a good reputation because it is an American business with personal ties in India
Forces out some competition
Chetan will lose some of the history of his company
Probably cannot hire all of Chetan’s employees
Saving face: Chetan saves face with the employees that he saves jobs for
Short term: Chetan’s employees may feel like they are being betrayed by Chetan working with an American company, employees that can keep a job will be mostly happy with Chetan’s decision, but they will likely feel bad for anyone that needs to lose their job, employees who need to lose their jobs/be laid off will be angry, customers may have some initial issues as a result of the merger
Long term: employees who he keeps will most likely feel better about the decision because they are still making money, customers may
Short term: Chetan will be absorbed by OOPS
Long term: The collaboration will have a larger market share, Chetan and local people will still be working for the company
Chetan’s employees keep their jobs
Consumers get EPA-approved, organic products that are sold with the approval/image of Chetan’s company
OOPS can keep its control over the market of neem products while connecting with Chetan’s customers
The legacy of Chetan’s great grandfather is continued
While the image of Chetan’s business is continued, his products/recipes would be discontinued to use OOPS’s products instead
Not all of Chetan’s employees would likely be able to keep their jobs
Customers who are unaware of Chetan and OOPS’s relationship may be unaware that they are buying new products
Customers can continue to buy neem products that Chetan’s family approves of, Chetan strikes the deal for the sake of his employees’ livelihoods
Short term: employees may not want to work at a new company, Chetan and Tom can avoid competition by forming this collaboration
Long term: customers value American products and with the approval of Chetan’s family on the package it could be even more valuable
Short term: Chetan’s business would no longer be his own, but his great grandfather’s legacy could still continue, many of Chetan’s employees could potentially keep their jobs
Long term: customers will want to buy the American neem products, and because OOPS has more resources than Chetan’s business, they will be able to keep the company successful

Best Solution: Form a collaboration where Tom is in charge in production and Chetan is the supplier

This solution is the best case scenario for Chetan because his family’s business can continue to grow and his employees will be kept happy with new opportunities and more work on their hands. He will also be able to take advantage of OOPS resources and have economies of scale because of their increased share of the market. Chetan will be able to keep his connections with the local communities. He will save face with his employees by staying loyal to them and save face with OOPS because of the opportunities that come to both companies through the collaboration. By losing control of the production of the products, they may lose some of the authenticity or qualities of Chetan’s products, but Tom and Chetan could potentially renegotiate recipes to ensure that they are still organic but more similar to Chetan’s products.

Strike a deal with Tom/OOPS that delegates which responsibilities each side of the company is responsible for, which recipes will be used, and the profit split
Figure out if any employees will need to change roles in the company
OOPS uses their resources to produce neem products at a lower cost
Chetan and his employees distribute the products to leverage their local connections

8 Indigenous Knowledge Rights: Neem Patent Claims

Published: May 2010
Cite Icon Cite
Permissions Icon Permissions

This chapter seeks to locate knowledge rights in a case study — that of Neem — and outline the terms of conflict between intellectual property rights and knowledge rights of traditional indigenous peoples. From there it draws larger conclusions about the inability of intellectual property rights to conjoin with knowledge rights of the traditional peoples, which are aspects of human rights as they are symbiotically linked with issues of subsistence and livelihood. The chapter takes forward one of the two central arguments of the book that rights need to be assessed in terms of the consequences — consequences which are rights-sensitive. Just as rights claims derive from deontological grounds of morality, so also do they derive from consequentialist grounds of morality through a valuation of outcomes.

Signed in as

Institutional accounts.

Google Scholar Indexing
GoogleCrawler [DO NOT DELETE]

Personal account

Sign in with email/username & password
Get email alerts
Save searches
Purchase content
Activate your purchase/trial code

Institutional access

Sign in with a library card Sign in with username/password Recommend to your librarian
Institutional account management
Get help with access

Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:

IP based access

Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.

Sign in through your institution

Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institutionâ€™s website and Oxford Academic.

Click Sign in through your institution.
Select your institution from the list provided, which will take you to your institution's website to sign in.
When on the institution site, please use the credentials provided by your institution. Do not use an Oxford Academic personal account.
Following successful sign in, you will be returned to Oxford Academic.

If your institution is not listed or you cannot sign in to your institutionâ€™s website, please contact your librarian or administrator.

Sign in with a library card

Enter your library card number to sign in. If you cannot sign in, please contact your librarian.

Society Members

Society member access to a journal is achieved in one of the following ways:

Sign in through society site

Many societies offer single sign-on between the society website and Oxford Academic. If you see â€˜Sign in through society siteâ€™ in the sign in pane within a journal:

Click Sign in through society site.
When on the society site, please use the credentials provided by that society. Do not use an Oxford Academic personal account.

If you do not have a society account or have forgotten your username or password, please contact your society.

Sign in using a personal account

Some societies use Oxford Academic personal accounts to provide access to their members. See below.

A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.

Some societies use Oxford Academic personal accounts to provide access to their members.

Viewing your signed in accounts

Click the account icon in the top right to:

View your signed in personal account and access account management features.
View the institutional accounts that are providing access.

Signed in but can't access content

Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.

For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.

Our books are available by subscription or purchase to libraries and institutions.

About Oxford Academic
Publish journals with us
University press partners
What we publish
New features
Open access
Rights and permissions
Accessibility
Advertising
Media enquiries
Oxford University Press
Oxford Languages
University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

Copyright © 2024 Oxford University Press
Cookie settings
Cookie policy
Privacy policy
Legal notice

This Feature Is Available To Subscribers Only

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

A Primer to Traditional Knowledge Protection in India: The Road Ahead

Published: 03 June 2021
Volume 42 , pages 401–427, ( 2021 )

Cite this article

Shambhu Prasad Chakrabarty ORCID: orcid.org/0000-0002-7871-7592 1 &
Ravneet Kaur 2

9531 Accesses

8 Citations

2 Altmetric

Explore all metrics

As India moves ahead in the twenty-first century to be a global player, it must take a balanced and inclusive approach. Marginalized and vulnerable tribal communities make approximately 10% of the massive population, playing a dynamic role in this regard. Their ancestral knowledge can be explored to inculcate the ethos in multiple disciplines. This would most certainly bring the much-needed balance in achieving the United Nations Sustainable Development Goals. Where the world is fast losing its natural resources, promoting traditional knowledge (TK) could become an initiative for its reconstruction in post-COVID 19 scenarios. Apart from reinstating the rights of these indigenous communities, this step would also facilitate the economic benefit of the country through the incorporation of TK in the realm of Intellectual Property. This would be a masterstroke for India to lead the Global South. This would also bring in a balance with the Global North, where significant developments have already taken place, in this regard. TK per se should not necessarily be protectable unless based on scientific evidence.

Protection of Traditional Knowledge and Expressions of Folklore: Locating India in the Global Framework

Indigenous Peoples in the New Arctic

Introduction to Biorights

Avoid common mistakes on your manuscript.

Introduction

In this study, we will deliberate about indigenous peoples (of India) and their natural conservation practices through the lens of Intellectual Property Rights (IPR). The paper is divided into seven parts. The first, describes in brief, the role indigenous peoples have played in the conservation of natural resources and ecosystem services amidst the crisis. The complexity and misconceptions involved in TK and the difficulties in bringing it under IPR has been dealt with in the second. The third and fourth part unravels the challenges of biopiracy and the successful measures taken by India in protecting TK. The fifth and sixth part discusses the existing laws and proposes a policy that may be adopted by India in formulating the relevant policy and law concerning benefit sharing that could help India to be a leader in the Global South. The seventh part concludes the paper with a prelude to the beneficiaries of this strategic endeavour.

The methodology adopted in this paper incorporates drawing of conclusion using cross-country analysis for solutions to address the challenges brought forth by this complicated position.

The paper is based on primary and secondary sources in this genre of study.

Crisis in India's Natural Resources: The gift of Neo-Colonialism

It is estimated that over 75% of global biological resources are found in the Global South and in traditional or ancestral habitats utilized by Indigenous Peoples and Local Communities (IPLC). See, for example, Oguamanam ( 2013 ). Footnote 1 According to a recent study, Footnote 2 it was found that the world has lost over 90% of large fish species. Footnote 3 The primary reason identified behind this was its consistent demand leading to uninterrupted predatory fishing, irrespective of breeding seasons. Footnote 4 Lack of ecological ethics in the realm of the new world order of economic dominance by the Global North has played a significant role in this and similar others.

India has been blessed with fertile grounds, but modern scientific interventions like High Yielding Varieties (HYVs) and Genetically Modified Organisms (GMOs) have resulted in an imbalance in environmental sustainability. Studies have shown the adverse impact of the Green Revolution on the farmers and their farming lands. Footnote 5 Mono-cropping patterns have resulted in increased salinity of soils decreasing its fertility. Footnote 6 Such agricultural practices have attracted exponential use of pesticides by the farmers, and consequentially there has been deterioration. Punjab, which was the nucleus of the Green Revolution, now is a nucleus of agricultural distress. Kisan is the true nation-builders, but due to lopsided agrarian practices, they are being burdened with increasing debts and out-of-pocket expenditures on health, sinking them deeper into the vicious circle of poverty and vulnerability. Footnote 7 There have been thousands of recorded and unrecorded suicide deaths of farmers in India during the last two decades, Footnote 8 especially after introducing and implementing World Trade Organisation (WTO) and Trade Related Aspects of Intellectual Property Rights (TRIPS) in India. Footnote 9 “ According to the National Crime Record Bureau’s report, in the 20 years from 1996 to 2016, more than 30 lakh (0.3 million) farmers have committed suicide all over India. A good part of this is due to the impact of WTO and Free Trade Agreements (FTAs). Regional Comprehensive Economic Partnership (RCEP) would be yet another monster that would eat our farmers.” Footnote 10 Phase wise reintroduction of indigenous agricultural practices to arrest agrarian distress to both the farmer and the land, is the key for India's progress in the next few decades. Footnote 11 The ecological ethics and ethos are the critical parameters to sustainability inherent in TK, and it is elusive in modern scientific education. Mono-crops needs to be phased out along with GMOs. To give the readers a brief idea of the stark difference between the two sets of agricultural practices, reference to Table 1 is given below.

Navdanya, Footnote 12 an Indian based NGO, (like some others, e.g., Vrihi) has actively advocated for the cause of traditional knowledge in agricultural practices. Footnote 13 It believes in the philosophy of living soil, living seed and living earth, which has enabled partnered small farmers with sustainable agricultural practices. Traditional food production systems offer a possible solution for food security and sovereignty. Footnote 14 Mono-crop cultivation has forced the farmers to buy genetically modified seeds Footnote 15 at the cost of innumerable indigenous varieties. This consequently destroyed the TK of production of such varieties as well as their unique ways of conservation. Footnote 16 Odhiambo states that,

Indigenous knowledge can reveal missing ecological keys, which may help scientists develop alternative agricultural technologies less dependent on non-renewable resources (e.g. fossil energy) and environmentally damaging inputs (e.g. chemical pesticides) than conventional technologies. Footnote 17

Deep Rooted Misconceptions Regarding Traditional Knowledge

Recent lifestyle trends (such as increased use of organic products like cosmetics, food etc.) and health care through the AYUSH knowledge system Footnote 18 indulges the consumers at large, in a fascination towards ancient and traditional knowledge which have been the basis and backbone of human civilization. As more information unearths in this area of environmental and ethical discourse, multiple biopiracy cases have buoyed up and exposed the nexus between TK on the one hand and modern scientific inventions on the other. The hypocrisy involved in bluntly pirating this knowledge, coupled with creating strategies to nomenclate a discovery as an invention without giving due credit (forget benefit sharing) to the people who carried such information for centuries. Parallel to this, by declaring TK as obsolete and superstitious, demystifies the truth behind such claims. Footnote 19 The fact that more than 75% of medicines used by modern science have a natural indigenous origin can no longer be ignored. Footnote 20 More so, the scientists are exploring further on ancient chemicals like aspirin etc. Footnote 21 to make new medicines. Before indulging too much on the relevance of TK, it shall be prudent to identify the significant contrasts between modern and traditional knowledge (Table 2 ).

TK Footnote 22 or indigenous knowledge (often used interchangeably) has been arrogated with various derogatory descriptions like primitive, backward, rural, savage, unscientific, etc. Footnote 23 The reason behind such misadventure is cultural heterogeneity coupled with European perception of superior bloodline which led to devastating torture and murder of millions of Jews in the Second World War and millions more in colonies like India where people died of hunger and famine irrespective of bumper crop production. A notion of absolute superiority has always played a dominant role in both the cases of German annihilation of Jews and modern scientific ideas over indigenous knowledge, especially during the colonial period and beyond in some jurisdictions. It is till recent decades the notion has been challenged in global platforms. Footnote 24 The knowledge that indigenous peoples have inherited and practised since time immemorial have been referred to as superstitious and based on unscientific claims. Footnote 25 Their self-identification with an isolated culture, which is territorial in nature, is intrinsic to their 'way-of-life and with the environment. Footnote 26 But being isolated puts them at a disadvantageous position with little bargaining power when it comes to their right on TK. Footnote 27 Apart from this, TK unlike, modern scientific knowledge, are transmitted through traditional folklores and through imitation amongst certain clans through centuries. Footnote 28 It generally has a spiritual essence which creates a sacred consciousness to it. Footnote 29 It behaves in an integrative and holistic fashion with the view of the world as interrelated. Another interesting, distinctive feature of TK is the emotional Footnote 30 involvement which has been criticised by many modern scientists as baseless. Footnote 31 In practice, the participation by subjective parameters in certain TK has confused even the advocates of TK as a weakness. Footnote 32 However, the strength of TK lies in the long period of the human and ecological interface. Modern scientific knowledge is based on mathematical and quantitative calculations. Footnote 33 It is desirable that the two systems work in tandem to develop knowledge and education.

Innovations from Traditional Knowledge: Biopiracy

The interface “between TK and innovations in the realms of pharmaceuticals, cosmetics, agriculture, chemicals and environmental conservation, which constitute the core of the ‘biopiracy’ phenomenon, provide pivotal sites in which IP, specifically the patent regime, directly engages TK in contestation over the utilization of Genetic Resources (GRs) across different knowledge frameworks.” Footnote 34 Notwithstanding these examples, “the interfaces between IP and TK/TCEs generally tend to be difficult to pin down. In the patent regime, ‘newness’ or ‘novelty’ of TK, Footnote 35 analogous to an invention, is a consistently problematic issue.” Footnote 36 It is literally impossible to go back to the pages of the past to identify the ancestral inventor or discoverer of a particular clan or tribe, of a specific practice. “In the area of copyrights, fixation and publication, especially of TCEs, are perennial hurdles.” Footnote 37 As the majority of such expressions practice within communities closely knitted and carefully segregated from the outside world, it remains technically unpublished. “In respect of trademarks and designs, claims of sacredness—as a basis of exclusion of specific marks, symbols, insignias, or systems from commercial exploitation—remain a source of tension amongst stakeholders (Coombe 1998 ).” Footnote 38 , Footnote 39 In most of the cases involving such violation, the marks are allegedly pirated and used derogatorily by western countries. Footnote 40

Case Study: Neem

Neem ( Azadirachta indica ), a very common tree species of India with medicinal value, Footnote 41 has been the subject of numerous patents. (At least 40 in the US alone and 150 worldwide) All the inventions that relate to neem virtually used public domain traditional knowledge as their basis. Footnote 42 This led to a huge uproar amongst the Indian users who refused to accept this and leading to a challenge of two patents (1) “to a European Patent Office (EPO) patent for the fungicidal effects of neem oil (Patent No. 436 257 B1) owned by W. R. Grace & Co., and (2) to the US patent for a storage-stable azadirachtin formulation (Patent No. 5124349) also owned by W. R. Grace.” Footnote 43 In the year 2000, the patent described above was revoked by EPO due to the lack of novelty and invented step. Footnote 44 Patenting Neem, name of every household, had a substantial socio-economic impact. Almost all rural and semi-urban communities are aware of neem as having a plethora of health benefits. Indian heterogeneous communities were equivocal in opposing the patenting of neem by an American company. They feared the tyranny that looms large which the patent holder may unravel once obtained from the IP rights. Footnote 45

Case Study: Rosy Periwinkle

Rosy Periwinkle (case) is another well-known instance where biopiracy was exposed against an American company Eli Lilly, a pharma-giant in Arizona established in 1876. Footnote 46 Rosy Periwinkle is a naturally grown plant found in abundance in Madagascar. (Fig. 1 ) During the 1950s, the researchers of the company heard about the medicinal value of the plant Rosy Periwinkle and collected samples from India as well as Madagascar. They isolated the samples and tested the two components, vincristine and vinblastine, as unearthed from the indigenous experts of the region. During the process of testing, they identified alkaloids which later became very effective in treating childhood leukaemia with a success rate of over 90 per cent. During the late 1950s, the company started marketing it and especially vincristine earned a substantial profit for Eli Lilly. The natives of Madagascar, who originally identified the medicinal qualities and values involved in Rosy Periwinkle, never got any share of profit gained by Eli Lilly because of the absence of benefit-sharing laws, both internationally and locally. Footnote 47 , Footnote 48 , Footnote 49

World Map showing the sample of neem taken from India to USA and EPO (Maps of World 2020 )

Laws Protecting Traditional Knowledge

National and regional laws protect TK within a limited space, but the impact of this knowledge system is global. TK, irrespective of its local applicability (generally limited to a clan or at times only within a family in a community), TK across the globe has been found to be based on certain ethical and moral precepts. Footnote 50 This homogenous behaviour of TK renders an impact that is beyond national boundaries. Practices like prohibition to the fishing of certain species during their breeding season could be seen as a standard practice amongst all indigenous fishing communities. Footnote 51 Same could be found in protecting coral reefs by indigenous communities by application of similar techniques in different parts of the world. International customary law has been flouted in almost all jurisdictions, and the impact is quite visible today. Footnote 52 Nearly ninety per cent of large fishes of the world have got extinct in the last six decades. Footnote 53 Therefore, international participation and cooperation to facilitate such laws at both, international and national level is required. Shared policy objectives would ensure protection, expansion and recognition of TK (Fig. 2 ).

taken from Madagascar and India to Arizona, USA (Maps of World 2020 )

World Map showing the sample of Rosy Periwinkle

Indigenous communities represent the social and unified ethos of our country. The sheer expansive nature of the existing TK has been inadequately represented in the prevailing laws and legislations. Some jurisdiction has succeeded in incorporating protective laws for their fading TK while some others are losing their valuable knowledge at a very fast rate due to non-protective or inadequate measures. However, a sui generis system to promote the TK has been proposed. This development owes greatly to the Nagoya Protocol, where India is a signatory. Footnote 54

The major limitations that are inherent in the Indian legal system are multidimensional. Primarily, the government do not recognize the term indigenous per se, irrespective of using the word aboriginal once, in a document before the international community. Footnote 55 This position of India in the international forum reinstated that tribals survive but not as indigenous communities. Footnote 56 However, this distinction took place at a later stage as India was a party to the ILO Convention of 1957 on Indigenous and Tribal Population. India supported the document at the early stages when it only used the term Indigenous. In several Government publications, the term Adivasis and aboriginal have been used interchangeably. The current rejection of the term indigenous was developed in the context of the Working Group in 1984 and later in 1992. Footnote 57 Secondly, India still follows ILO 107, which has already been replaced by ILO 169. There are innumerable issues to be depicted at this juncture. ILO 107 was discarded and was replaced with ILO 169. Thirdly, there are no positive protection parameters of these peoples towards their land and culture. Footnote 58 As a matter of fact, there are many indigenous communities in India which are not recognized under the purview of Scheduled Tribes, making the process 'more of politics than of law'. In submitting the Universal Periodic Review reports, India has suppressed the atrocities that these peoples have undergone in the hand of non-tribal peoples and the state. Footnote 59 Millions of these peoples have been ousted from their habitat, forcing them to change their way of life and contributed to the loss of traditional knowledge, their ancestral cultural expressions, language and traditional indigenous farming practices amongst others. Footnote 60 In the absence of any uniform legal framework proposed by WIPO (like other IPRs), TK has not been protected positively in India, Footnote 61 unlike that of Malaysia Footnote 62 or Kenya. Footnote 63

Sui generis Legislation to Combat Biopiracy: Position in India

Sui generis means something unique and exclusive to a specific jurisdiction. Sui generis legislation is passed with specific objectives in mind. To achieve certain protection for TK within the IPR domain, some sui generis legislation came into force to address the issue.

TK and its incorporation in IPR were not simple. To make this happen, two concepts evolved;

Amending the existing laws of IPR and making necessary changes to accommodate TK and its derivatives, and

To make comprehensive legislation to promote and protect TK within IPR.

Many jurisdictions within WTO have made necessary changes in their legal system to accommodate TK within IPR. India accommodated TK both by amending existing IPR statutes and creating new ones. As a matter of practice, the onus for protection of TK/TCEs globally vests upon WIPO of WTO Footnote 64 who are responsible for TRIPS to make a strategic alteration to accommodate TK and TCE. Some of the recent legislation that came up to protect TK in India is “The Biological Diversity Act, 2002”, Footnote 65 the “Protection of Plant Varieties and Farmer's Rights Act, 2001” Footnote 66 and the “Geographical Indications of Goods (Registration and Protection) Act, 1999”. Footnote 67 There has been significant development in various existing IPR legislations in India like the Patent Act, Copyright Act and the Trademark Act (Table 3 ).

Sui generis systems per se have played the most significant role so far in protecting TK and TCEs in almost all jurisdictions. However, the actual organization that was required to be made to provide worldwide protection of TK and TCEs is that of WIPO. After the formation of WTO and the establishment of WIPO, all intellectual properties along with its derivatives have been regulated by WIPO. The absence of a specific law with regard to TK & TCEs (from WIPO) has been felt largely by countries across continents rich in tradition and culture. WIPO of late has shown interest to investigate newer avenues in framing a unified regulation to regulate TK/TCE as it has done with other IPRs. Footnote 68 Initially, WIPO worked upon various complex and puzzling positions, but no scientific conclusion could be made in this regard. Footnote 69 , Footnote 70

Paris, as well as the Berne Convention, highlights the axiomatic principle that IP rights are typically territorial. “The extraterritorial application of this public domain would also attract the same rules that relate to the extraterritorial application of IP and similar other laws.” Footnote 71

Sui generis Strategies Developed in India to Protect TK

India witnessed significant activism to protect traditional expertise from being patented in Europe and America. The basmati and neem controversy created enormous pressure Footnote 72 leading to some simple yet significant sui generis protection of TK.

Traditional Knowledge Digital Library (TKDL)

With biopiracy being rampant and the cost of fighting litigation to combat such white-collar pirates running into millions of dollars, a strategy was developed by the Government of India (GOI), which took around eight years to materialize and be effective. Traditional Knowledge Digital Library or TKDL was established with the objective of incorporating a list of codified TK practices of India. This dynamic list includes more than thirty thousand medicinal formulations and is made available online to provide relevant information to patent and trademark examiners in offices of respective jurisdictions, refraining from a grant. The data is made available in five UN languages, viz., French, German, English, Spanish and Japanese for convenience irrespective of the fact that data originated in languages like Sanskrit, Urdu, Persian and Hindi.

After this development, there has been a significant decline in biopiracy cases and frivolous filing of patent applications related to Indian Systems of Medicines (ISM). Amidst this positive development abroad, a significant loophole was detected. It was found that the Indian Patent Office has granted innumerable patents on ISM, turning a blind eye on TKDL. Footnote 73 After a review of such cases dating back to 2005, it revoked patents granted, violating TK. Later an agreement was signed by TKDL with IPO on similar lines of EPO and Patent offices of UK, USA, Canada, Germany, Australia etc. Consequently, there has also been a significant economic impact that was felt in the local pharma industry in India.

This popularity of TKDL, along with its success, prompted changes by WIPO. The International Patent Classification (IPC) of WIPO adopted the Traditional Knowledge Resource Classification System (TKRC), a novel classification system of TKDL. “The International Patent Classification (IPC), established by the Strasbourg Agreement 1971, provides for a hierarchical structure of independent language symbols for the classification of patents and utility models according to the different areas of technology Footnote 74 to which they pertain. A new version of the IPC enters into force each year on January 1.” Footnote 75 Another significant success was the identification of 1155 biopiracy claims at various IPOs by the TKDL Team. Footnote 76 Consequently, a lot of them were legally restrained from similar malpractice. Thus, TKDL has turned out to be a very successful defensive mechanism to stop biopiracy, as they carry on their effort to improve the database of 150 books inter alia , on areas like Yoga, Unani, Siddha and Ayurveda.

India's successful attempt at collaborating with TKDL inspired various countries to protect their own TK (see Table 4 ). To quote Piaroa Elder, an indigenous community of Venezuela, “When a seed is removed from its environment, it dies halfway to its destination, and the same thing could happen to indigenous knowledge”. Footnote 77

National Innovation Foundation (NIF)

Alongside TKDL, NIF is another pioneering contribution from India to protect and promote TK. Footnote 78 , Footnote 79 The main objective of NIF is to encourage and assist in the protection of TK. It is a team of experts which engages in facilitating the knowledge holders to protect their innovations in accordance with the existing IPR regime. They provide, inter alia , substantial support in conducting prior art searches, filing of patents to the people who are mostly unaware of legal intricacies that their TK may possess along with their miraculous knowledge.

The Department of Science and Technology, GOI, established NIF in the year 2000 for preventing biopiracy on the one hand and IPR protection of TK and Ancestral Knowledge on the other. This ensures, consequently, retainment of the rich knowledge the land is famous for.

Credit must be given to the relentless effort that was put into by the eminent Professor Anil Gupta of IIM, AMD and his team to formulate the Honey Comb Network, which started its journey during the 1980s. In 1993, a discussion network called Society for Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) was framed to assist unearthing TKs from various parts of India. Footnote 80

The following table (Table 5 ) identifies the significant functions of NIF, which facilitates TK.

NIF has also helped substantially in the last two decades from its establishment, protecting TK. The following list (Table. 6 ) is a few remarkable achievements of NIF worth cherishing.

Proposed Protection Parameters

Traditional knowledge and traditional cultural expressions are integrally related and inherent to the way of life of indigenous and tribal peoples. The doctrine of discovery Footnote 81 coupled with coercion and deception Footnote 82 caused irretrievable loss and suffering to the indigenous and tribal communities across continents. Similar instances were recorded in the US where tribes were dispossessed of their cultural, historical and religious resources giving the United States “ ‘the exclusive right…to extinguish’ Indian title…whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.” Footnote 83 India is also not an exception where the Europeans coerced the tribal communities to participate in the Christian mode of worship, as they did in the US. Footnote 84

This divestiture of tribal land by the government implied complete loss of control over sacred sites once possessed by the tribal and indigenous communities. Unfortunately, the government has never been respectful of these sacred places. Culturally Modified Trees (CMTs) of the indigenous people of the United States and Canada are also threatened with the loss of possession. These CMTs are living Native American cultural artefacts which were used for navigational, medicinal, storytelling, burial and ceremonial purposes. Ute community is widely known for making a clock, calendar or even a compass through CMTs. In one case, they have combined two trees with a single slit in between and the only time sunlight passed through this slit was on the winter solstice. Instances of traditional knowledge pieces have been found in India as well, where few monuments use similar technology of using sunlight inter alia for determining time. Gavi Gangadhareshwara temple in Bengaluru, India, is a rock-cut architecture where the sun-rays fall on the shrine only on a specific day of the year. Footnote 85

Irrespective of the difficulty in finding the intercepting point of the knowledge systems of the various native peoples of the United States or Canada, or India, it is not very difficult to anticipate the commonality and richness of the two. One of the living examples of CMT is the living roots in Meghalaya, which demonstrates the uniqueness of India's traditional knowledge systems. Khasi community of this state twisted around the aerated roots to form them into a bridge. Footnote 86 These structures/trees hold sacred value to the community, which highlight their ingenuity and uniqueness. Footnote 87

This loss of ethnicity and cultural rights has significantly damaged indigenous and tribal peoples' rights. Cultural practices play an ideal role to make life meaningful, useful and valuable. Indigenous cultural life enshrines intangible aspects like sanctity, sacredness with tangible things attached to them. Abuse of such elements infringes community sensitivity which acts as an impediment to the universality of cultural rights.

Consequently, assimilation at a staggering pace with a significant compromise on moral and cultural ethos followed. On certain critical junctions, ethical and legal conflicts ensued, which were eliminated with the rod of office. Cultural symbols, patterns or marks created once used for religious and sacred practices were used otherwise (e.g., commercial use or using derogatory to the purpose of such symbol or mark). Culturally modified trees, like other cultural symbols of a community, also suffered a similar fate.

The Ray of Hope

At the end of the Second World War, decolonisation and protection of human rights evolved to be the two major forces to control the state of affairs. Footnote 88 Cultural rights emerged to be an integral part of human rights which promotes the right to follow any cultural practices on the one hand and refraining from harming others on the other. It is essential to contrast universality and homogeneity. Culture is the synthesis of the productivity of any society which is threatened by cultural relativism. History unravels forced attempts of assimilation, a practice contrary to the universality of human rights, in general, and cultural rights, in particular. Footnote 89 Emphasis is required to be given to protect one's culture and cultural choices. Any use of others' cultural practice, which may have an impact, should only be permitted through free, prior and informed consent. Respect for cultural diversity under international standards is also a critical part of respecting human rights. Plural mono-culturism, Footnote 90 which promotes respecting everyone's right, must be acknowledged.

Community sensitivity is an integral part of the universality of cultural rights. Footnote 91 Cultural sensitivity within the penumbra of community sensitivity includes an openness to know and acknowledge the diversity of cultural practices. Footnote 92 Various measures have been taken to create awareness programs, mandatory workplace ethics training, amongst others. Footnote 93

The people who are behind the preservation and procurement of such knowledge should be acknowledged and rewarded. As a matter of fact, they are even bereft of any benefit for what they or their ancestors have done at the enrichment of a selected few. This deprivation, coupled with non-recognition of their knowledge (generally termed as superstition) and their right over such property, has led to the extinction of TK & TCEs from the planet. Footnote 94 The concept of community ownership that exists among the indigenous and tribal communities is quite different from the western notion of ownership. Footnote 95 However, a better understanding may be achieved between the two when it comes to its management, knowledge practice, communicating values and the values we hold in general through engaging with one another with the objective of creating a safe and sustainable world. Footnote 96

In order to explore the ways and methods to identify indigenous communities, it is imperative to explore the conventional method of compensation for past exploitation, which some countries have invoked to restorative justice and the other method being access and benefit-sharing. Footnote 97 The latter has been far and few amongst jurisdictions, with the former predominating with affirmative action.

Significant development has taken place to protect the cultural rights of distinct communities. Still, violation seems to be never-ending, with regular cases of misappropriation being done inter alia , by leading fashion brands.

Case Study—Kente Cloth

Africa has housed some of the oldest people that the modern world is aware of. Their life and culture have survived thousands of years amidst challenges. Their cultural expression has played a significant role in the formation of what they are today. Amongst the various groups prevalent in this area, the Ewe and Ashanti of Togo and Ghana use certain clothes with specific geometric pattern and colour in West Africa. The said patterns, which is meant to be (in the dress) of the kings of the said community, were found to be worn by a growing number of African Americans in ceremonies like university convocations in the USA. Later it was found to be worn in a more casual context. This was contradictory to the permissible use of the said culture.

More and more blacks are dressing in whole or in part in African garb as an expression of their identity and racial solidarity or their adherence to the ideology of Afro centricity. Footnote 98

A stark distinction can be noticed in a series of cases where the appropriation has been done by fashion brands, unlike that of independent individuals, as in the case of Kente Cloth designs discussed above. Misappropriation of an Inuit Parka design by KTZ, a UK fashion brand; Mola Pattern originating in Guna Culture of Panama attributed as Puerto Rican Culture by sports brand Nike in its “Air Force 1 Puerto Rico” model of the shoe; Louis Vuitton’s Basotho blanket from traditional native designs of the people of Lesotho , to name a few.

The absence of an internationally recognised regulatory framework has badly been felt, with the rise in such cases reflecting the vacuum and the inability to protect culturally rich communities' intellectual property by existing IPRs. This emerging danger of the loss of biodiversity coupled with various facets of distinctive cultural identity cannot be avoided.

Losing cultural heritage can be mitigated with positive efforts to restore such tangible or intangible articles or artefacts. This can be made possible with strategic research coupled with the intervention of the elderly people of the community. Various culturally extinct objects can be reconstructed with museum employees' assistance having experience and expertise and activists involved in protecting traditional culture. Compensation or benefits received may also be used for the said purpose. It would also be prudent to invest in documenting the indigenous languages as well. Protecting indigenous language can be the key to the reconstruction and rehabilitation of lost TK and TCEs. Efforts are required to protect the language of various indigenous communities from extinction for sustaining these communities' cultural heritage. Loss of language contributes significantly to the loss of TK & TCEs. More and more young peoples of the clan are required to learn them from their elderly members. The majority of traditional practices have moved on from generations only through folklore and seldom by documentation. With many modern-day indigenous members living far away from their ancestral lands and their family members in such territories, it has become challenging for the art forms to be secured and safe for transmission. Information technology can certainly help in this endeavour, if used judiciously. Footnote 99

One of the recent developments to bring equality amongst the stakeholder and certainty in the law of benefit-sharing concerning TK and TCEs, the tiered or differentiated concept, has emerged, which was articulated in the Draft IGC documents (in Article 3 prepared for the 27th Session of WIPO, 2014b; 2014c). This unique approach intends to structure a framework to delineate the various kinds of TK and TCEs, primarily based on their degrees of diffusion (Refer to Fig. 3 ). This, consequently, tries to identify the extent of exclusive rights that the custodians of such TK and TCEs would be entitled to receive. On the basis of this parameter, the exclusive right may lead to conferring licence on clans or communities to explore such TK. Irrespective of the fact that this approach is not collectively accepted amongst the IGC members. The major challenges being the lack of uniformity amongst the indigenous leaders, scientific clarity of the facts beyond certain period time in the past, reinstate retrospective position prior to the colonial era and impact assessment of knowledge piracy thereof. “The ‘tiered and differentiated’ approach has been received with mixed feelings, including scepticism and trepidation, especially in the rank of demandeur countries and even the Indigenous Caucus.” Footnote 100 It is none the less a fluid concept, and it is crystallizing around the following categories: (See Fig. 3 ).

The four-element of the tiered or diffused concept (Ibid.)

Secrecy and sacredness are associated with strong or exclusive rights, whereas weaker forms of rights are attached to narrowly diffused and widely diffused Traditional Knowledge and Traditional Cultural Expressions (TCEs) since they are available in the public domain. Footnote 101

The benefit-sharing mechanism in place in India is based on traceability of origin. The benefit is shared where the tribal community can be traced. Some of the immediate benefits that India may enjoy by implementing this model are as follows:

A specific positive mechanism would be adopted for the first time in India to act as a standard for subsequent issues,

Uniformity in accessing benefit sharing amongst the stakeholders,

The element of clarity would be introduced effectively,

As identified in this article, India has shown the way to protect TK indirectly by adopting a sui generis system of TKDL. Similarly, it can introduce this system in this part of the world which may act as a model to be adapted and acted upon in similar circumstances.

This would also avoid a multiplicity of benefit-sharing laws and regulations.

This would also enable the indigenous peoples to exercise their rights over their culture, communities and ancestral practices, which upholds the promises under-taken to achieve in the UNSDGs.

The primary objective of the classification mentioned above is to differentiate the weaker forms of rights for the widely available TK and TCEs. This, consequently, would attach an exclusive right (strong right) to the indigenous community, which has kept it secret and outside the public domain. Generally, the indigenous elderly refrain from disclosing TK. Once assured of protection, voluntary documentation of such practices and knowledge be expected. This incentive would encourage the younger members of the community to carry on with their ancestral knowledge as their forefathers. In other words, weaker forms of rights may be attached to widely diffused or publicly available TK and TCEs. Footnote 102 By incorporating this process, access and benefit-sharing aspects could be assessed and be acted accordingly. Once the policy is incorporated, the mechanism would assure stratified benefit sharing amongst the stakeholders. The method has been discussed and accepted to some extent in the Global North but has not been done in the Global South. Countries like Canada and Australia have, to some extent, invoked this method of benefit sharing and have got success. Footnote 103 India, by adhering to this policy, would position itself to be the trendsetter and a leader in this part of the globe. It is imperative to state that the limited TK and TCEs still left amongst the people, mostly the elderly, requires urgent protection and documentation. The young must be assured of the economic viability of their ancestral knowledge. Special measures should be taken to promote these TK and TCEs and retrospectively protect the rights of these peoples with a robust legal framework to implement benefit sharing, adhering to the principles laid down in the Nagoya Protocol, where India has been a signatory.

To address the complicated issue of bringing TK within the purview of IPR on the one hand and protecting and preserving TK and creating an adequate benefit-sharing mechanism for the indigenous communities on the other would be the key. Given the unique nature of TK, this could be done in two ways:

By a law framed by WIPO, or

By sui generis legislation in India, as has been in some jurisdictions

The Beneficiaries

Application of laws systematically would not only help to preserve the rich TK & TCEs of the world but would be able to benefit approximately four hundred and seventy-six million Indigenous Peoples worldwide, Footnote 104 in over ninety countries which makes up over 6 per cent of the global population, and would be able to contribute to alleviating about fifteen per cent of the extreme poor. Footnote 105 The establishment of their rights would also act as an assurance for the continuance of traditional practices associated with that land which is a major untapped source of sustainable agriculture. What could follow is ubi jus ibi remedium , where the question of justice for forest-dwelling communities which have faced the brunt at the cost of 'development' could also be achieved. A systematic re-transfer of land to the displaced indigenous communities with the reintroduction of indigenous species would also help in sustainable development. International practices of community ownership should also be ensured in line with ILO 169 and directions laid down in Samatha v. State of Andhra Pradesh. Footnote 106 The growing movement of these peoples in the modern world has got its momentum from the judiciary itself. For instance, in the famous Australian case of Queensland Footnote 107 the Australian Supreme Court rightfully restored the entire land area back to the aboriginal peoples of Australia. The Indian counterpart to this, Samatha Footnote 108 where the Hon’ble Supreme Court of India acknowledges the right to land and natural resources of the tribal peoples in India. Footnote 109

It is imperative to state that the limited TK and TCEs still left amongst the people, mostly the elderly requires urgent protection and documentation. The young must be assured of the economic viability of their ancestral knowledge. Special measures should be taken to promote these TK and TCEs and retrospectively protect the rights of these peoples with a robust legal framework to implement benefit sharing. Millions of people within the indigenous and tribal communities across the world are facing survival-related challenges, where the adult-youth populace have been geographically displaced, away from their homeland in search of survival and social inclusion. Only those, who are old and not otherwise able to move or work, remain in their village. They take care of the children whose parents have migrated in search of their daily wages. Poverty, discouragement and indifference are social prejudices that label their daily lives. ‘ Footnote 110 ’ Why should this be permitted? Footnote 111 The indigenous communities, however, do not accept the labels that blemish their origin and traditional consciousness. Some recurring questions need to be addressed by the people in authority and decision-makers. Footnote 112 Is it too late today to reinstate the affairs? Would it be possible in India to protect the cultural, social and economic rights of these dying communities? Could India create opportunities for the young adults who immigrate for better lives? Footnote 113 Or would we indulge in cheap politics at the cost of our rich cultural and social heritage? Would we remain silent with the steady loss of diversity, forests and TK & TCEs? Or would we not reclaim our lost glory and help the vulnerable from their extinction. Would we not fight for their cause and help them to be compensated like their Australian and Canadian brothers and sisters? Why the modern legal minds not set up a strategy to combat the evils of policymakers and reinstate the right to life of millions of Indian indigenous peoples.

The significant limitations that are inherent in the Indian legal system are multidimensional. Primarily, the government do not recognize the term indigenous per se irrespective of them once using the word aboriginal in a document before the international community. Secondly, India still follows ILO 107, which has already been replaced by ILO 169. If Nepal can ratify ILO 169, why should India not do so to protect the rights of indigenous and tribal peoples in her jurisdiction? Thirdly, there is no positive protection parameters of these peoples possess towards their land and culture. As a matter of fact, there are many indigenous communities in India that are not recognized under the purview of Scheduled Tribes, making the process 'more of politics than of law'. In submitting the Universal Periodic Review reports, India has suppressed the atrocities these peoples have undergone in the hand of the state and non-tribal peoples. Millions of these peoples have been ousted from their habitat, forcing them to change their profession and contributed to the loss of traditional knowledge, their ancestral cultural expressions, their languages and traditional indigenous farming practices, amongst others. In the absence of any uniform legal framework proposed by WIPO, unlike other IPRs, TK has not been protected positively in India, unlike that of Malaysia or Kenya. In the said backdrop, efforts must be made at the international level to push WIPO to take this area of discourse more positively. In the meantime, India must take all reasonable measures to protect the TK that the country still possesses or may retain with corrective actions and decisions today. Thus sui generis efforts and legislations would be the key to provide adequate benefit to the people who have protected and carried on with these rich traditional practices. The tried and diffused concept of benefit sharing can be the best step forward in India to assist in these communities the right impetus to retain our lost art. This would also assist the country in fulfilling the promise and commitment made towards the UNSDGs.

Within the edifice of cultural diversity, a new global ethic needs to be incorporated, as has been reiterated by UNESCO, which would include human rights perspectives, where there should be a proper retrospection of the alternatives available amidst the atmosphere of tolerance mutual respect and democratic debate. Footnote 114 In consequence, we would be able to achieve, in building the tower of Babel, where humanity, per se, would reign supreme.

Oguamanam ( 2013 : 3).

Neubauer ( 2013 : 347–349).

Free ( 2019 : 979).

Burgess ( 2013 :15943–15948).

In this regard Hsaio ( 2015 ) observed that “Despite their agricultural, economic, and safety, pesticides can also have negative impacts on our health. Many conventional pesticides are synthetic materials that kill or inactivate the pest directly. These chemical pesticides include compounds such as organophosphates, carbamates, pyrethroids, and sulfonylureas. Short-term exposure to a large amount of certain pesticides can result in poisoning. Exposure to large amounts of pesticides is usually more likely for people such as farmers who may frequently touch and/or breathe in pesticides. The effects of long-term exposure to small amounts of these pesticides are unclear, but studies have linked them to a variety of chronic health conditions such as diabetes, cancer, and neurological defects”; Also see, Reinhardt ( 1999 : 149–149).

Yang ( 2020 : 8).

Nagaraj ( 2014 : 79).

Kennedy and King ( 2014 : 1–9).

Biju ( 2019 ).

Perroni ( 2017 ).

Founded by world-renowned scientist and environmentalist Dr Vandana Shiva, Navdanya is based in Uttaranchal.

To know more visit https://www.navdanya.org/site.

Jacques and Jacques ( 2012 : 2970–2997).

Some activists object to the terminology ‘seed’ to be broader enough to incorporate GMOs.

Each variety is different from the other and so is their indigenous ways of conservation.

Odhiambo and Kamp ( 1990 : 3–5).

AYUSH stands for Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy.

Chambers ( 2000 : 221–240).

Sen and Chakraborty ( 2017 : 234–244).

Landau ( 2010 ).

Traditional knowledge is defined in UN documents as knowledge of ‘Indigenous and local communities embodying traditional lifestyles’ IPLC, Article 8(j) CBD.

Supra note 19, at 7.

Supra note 14.

Gernigon ( 2000 : 33).

Bruchac ( 2014 : 3817).

Juden ( 2003 : 313–313).

Li ( 2010 : 385–414).

Sengupta ( 2019 : 146).

National Research Council ( 2013 : 477–486).

Oguamanam ( 2019 : 1–24).

Newness is the sole factor that distinguishes a TK from a knowledge that is commonplace.

Mgbeoji ( 2001 : 163–186).

Boateng ( 2012 : 9), Kuruk ( 1999 : 769).

Supra note 36.

Supra note 34.

Souravi, K ( 2020 : p. 489).

Dutfield ( 2004 : 53).

Some similar experiences are referred to in the work of Will Holland ( 2019 ).

Chakrabarty and Sinha ( 2021 ).

Fisher ( 2018 : 7).

It is pertinent here to state that the countries where the patents were accepted did not ratify CBD or the Nagoya Protocol.

Deb ( 2014 : 123–159).

Myers and Worm ( 2003 : 280–283).

Architha Narayanan ( 2018 : 1).

Chakrabarty ( 2018 : 14).

Argument placed by the contributors, based on the previous fact; Available at: < https://www.telegraphindia.com/opinion/tribal-status-to-be-a-scheduled-tribe-and-being-tribal-are-no-longer-the-same-thing/cid/1691000 ≥ (Accessed 15th September 2020).

UN HRC ( 2017 ).

First-hand experience recorded by the contributor during PhD empirical studies, for more please look at Shodhganga thesis at chapter 6.( https://shodhganga.inflibnet.ac.in/handle/10603/246918 ).

Acts, the Plant Varieties Act and the Biodiversity Act protects passively and not actively as required to be adapted in India.

Antons ( 2010 : 1189–1204).

Justus Wanzala ( 2017 ).

WIPO and WTO are two different organisations WIPO has a cultural mission and no trade aim, whereas WTO is duly trade orientated. WIPO has treaties that member states can ratify or not, WTO TRIPs is of adhesion and there is no space to non-ratification or to repel certain articles.

The Biological Diversity Act, 2002.

Protection of Plant Varieties and Farmer's Rights Act, 2001.

Geographical Indications of Goods (Registration and Protection) Act, 1999.

Fisher ( 2017 ).

Okediji ( 2018 : 176).

Public commotion leading to a political outrage forcing the government to act.

Supra note 34 at p 50.

Brooks ( 1994 : 478).

WIPO ( 2020 ).

Supra note 20 at p 49.

Humberto Márquez ( 2002 ).

Supra note 25.

The Department of Science and, GOI, later established NIF in the year 2000 for preventing biopiracy on the one hand and IPR protection of TK and Ancestral Knowledge. This ensures, consequently, retainment of the rich knowledge the land is famous for.

Ramesh Pillai ( 2015 ).

(In the words of Professor Anil K. Gupta, Executive Vice Chairperson of India's National Innovation Foundation “ every time an old person dies a library of information is buried. Never before have we lost more traditional knowledge ." This inspired Project Linkages in Malaysia.).

Irwin ( 1997 : 35–55). Also see, Miller ( 2005 : 1).

(“The United States has imposed several restrictive laws banning the practice of certain Native American religious activities, including outlawing ceremonies such as the Ghost Dance and Sun Dance seen throughout Plains tribal cultures.”)

McNeil ( 1997 : .365).

Banner ( 2009 : 16) and Robertson ( 2005 : 99).

Dwivedi and Saroha ( 2005 : 310) and Vyasanakere ( 2008 : 1632).

Bareh ( 1985 ).

Lewin ( 2012 ).

Morsink ( 1993 : 357).

Travis ( 2008 : 415).

Šokčević ( 2011 : 735–749).

Burnette ( 2014 ).

Winkelman ( 2005 ).

For instance, Mono crop cultivation requires no conservation of seeds as the farmers would buy the GMO seed annually. This has led to the extinction of hundreds of indigenous varieties of seeds. And along with that the knowledge of preservation of those indigenous seeds has also gone extinct as well.

Small and Sheehan ( 2008 103–119).

Jensen ( 2017 : 65).

Reuters ( 2017 ).

Austin ( 1994 : 147).

Robinson ( 2021 : 369).

Supra note 37.

World Bank ( 2020 ).

Samatha v State of Andhra Pradesh (1997).

Mabo v Queensland (1992).

Supra note 89.

Supra note 55, at p 150.

Rodolfo Stavenhagen ( 2009 : 20).

UNESCO’s International Commission on Education for the Twenty-first Century identifies “Learning to live together, learning to live with others” as one of the four pillars of education necessary for preparing ourselves for life in the twenty-first century.

Antons, Christoph. 2010. The role of traditional knowledge and access to genetic resources in biodiversity conservation in Southeast Asia. Biodiversity and Conservation 19 (4): 1189–1204.

Article Google Scholar

Architha, Narayanan. 2018 Domestic Biological Diversity and ABS Laws, Policies and Practice in India. In A Primer on Biological Diversity Laws, Access and Benefit Sharing ed. M K Ramesh et al., Bangalore: UNDP & CELERA, NLSIU.

Austin, Regina. 1994. A nation of thieves: Securing Black people’s right to shop and to sell in White America. Utah Law Review 1994 (1): 147.

Google Scholar

Banner, Stuart. 2009. How the Indians lost their land: Law and power on the frontier . Cambridge: Harvard University Press.

Bareh, Hamlet. 1985. The history and culture of the Khasi People revised and enlarged edition. http://dspace.nehu.ac.in/bitstream/1/7798/1/The%20history%20and%20culture%20of%20the%20Khasi%20(H%20Bareh).pdf . Accessed 20 November 2020.

Biju. K.V. 2019. Don’t drive indian farmers to suicide through rcEP, John Hopkins Advanced School of Advanced International Studies , (3 November 2019) at https://www.downtoearth.org.in/blog/economy/don-t-drive-indian-farmers-to-suicide-through-rcep-67565 . Accessed 14 October 2020.

Boateng, Boatema. 2012. The copyright thing doesn’t work here Adinkra and Kente Cloth and intellectual property in Ghana. African Arts 45 (3): 9.

Brooks, Harvey. 1994. The relationship between science and technology. Research Policy 23 (5): 477–486.

Bruchac, Margaret. 2014. Indigenous knowledge and traditional knowledge. In Encyclopaedia of global archaeology , ed. C. Smith, 3814–3824. New York: Springer.

Chapter Google Scholar

Burgess, Matthew G.., Stephen Polasky, and David Tilman. 2013. Predicting overfishing and extinction threats in multispecies fisheries. Proceedings of the National Academy of Sciences 110 (40): 15943–15948.

Burnette, Catherine E., Sara Sanders, Howard K. Butcher, and Jacki T. Rand. 2014. A toolkit for ethical and culturally sensitive research: An application with indigenous communities. Ethics and Social Welfare 8 (4): 364–382.

Chakrabarty, Shambhu P.. 2018. Tribal rights in India . Singapore: Partridge Publishing Singapore.

Chambers, David Wade, and Richard Gillespie. 2000. Locality in the history of science: Colonial science, technoscience, and indigenous knowledge. Osiris 15 (1): 221–240.

Christopher, Free M.., Thorson T.. James, Pinsky L.. Malin, Oken L.. Kiva, John Wiedenmann, and P. Olaf Jensen. 2019. Impacts of historical warming on marine fisheries production. Science 363 (6430): 979–983.

Cole, Shawn Allen, and A. Nilesh Fernando. 2014. The value of advice: Evidence from the adoption of agricultural practices. HBS Working Group Paper 1 (13): 6.

Coombe, R.J. 1998. The cultural life of intellectual properties: Authorship, appropriation, and the law . Duke University Press.

Book Google Scholar

Deb, Debal. 2014. The value of forest: an ecological economic examination of forest people’s perspective. In Challenges and opportunities for the world’s forests in the 21st Century , ed. Trevor Fenning, 123–159. Dordrecht: Springer.

Dickson, David. 1999. ICSU seeks to classify ‘traditional knowledge.’ Nature 401 (631): 2021. https://doi.org/10.1038/44235.Accessed10January .

Dutfield, Graham. 2004. Intellectual property, biogenetic resources and traditional knowledge . London: Earthscan.

Dutfield, G., R. Wynberg, S. Laird, and S. Ives. 2020. Benefit Sharing and Traditional Knowledge: Unsolved Dilemmas for Implementation . The Challenge of Attribution and Origin: Traditional Knowledge and Access and Benefit Sharing. Voices for BioJustice, Policy Brief.

Dwivedi, Anurag, and Monika Saroha. 2005. Copyright laws as a means of extending protection to expressions of folklore. Journal of Intellectual Property Rights 10 (4): 308–314.

Ezeanya-Esiobu, C. 2019. Indigenous knowledge and education in Africa . Berlin: Springer.

Fisher, William. 2017. The legal treatment of traditional knowledge. Streamed live on 23 March 2017 at https://youtu.be/z04fHLEOFs4 . Accessed 20 November 2020.

Fisher, William. 2018. 2017 David L. Lange lecture in intellectual property: The puzzle of traditional knowledge. Duke Law Journal 67 (7): 1511–1578.

Gernigon, Bernard, Alberto Odero, and Horacio Guido. 2000. ILO principles concerning collective bargaining. International Labour Review 139 (1): 33.

Holland, Will. 2019. Biopiracy: The misuse of patenting systems at the disadvantage of local communities . CABI (21 March 2019) at https://blog.plantwise.org/2019/03/21/biopiracy-the-misuse-of-patenting-systems-at-the-disadvantage-of-less-affluent-communities . Accessed 20 December 2020.

Hsaio, J. 2015. GMOs and pesticides: Helpful or Harmful? Science in the News . The Harvard University, The Graduate School of Arts and Sciences Blog (10 August 2015), at https://sitn.hms.harvard.edu/flash/2015/gmos-and-pesticides/ . Accessed 17 November 2020.

Ip, John. 2017. The legality of ‘suspicionless’ stop and search powers under the European convention on human rights. Human Rights Law Review 17 (3): 523–544. https://doi.org/10.1093/hrlr/ngw025 .

Irwin, Lee. 1997. Freedom, law, and prophecy: A brief history of Native American religious resistance. American Indian Quarterly 21 (1): 35–55.

Jensen, Kyle. 2017. A comparison of indigenous and western land management; Case Studies of Ngāti Whātua Ōrākei and the East Bay Regional Park District. Pomona Senior Theses . 171 at http://scholarship.claremont.edu/pomona_theses/171 . Accessed 10 January 2021.

Juden, Linda Kitchikeesic. 2003. Spiritual link is part of traditional knowledge. Nature 421 (6921): 313–313.

Kennedy, Jonathan, and Lawrence King. 2014. The political economy of farmers’ suicides in India: Indebted cash-crop farmers with marginal landholdings explain state-level variation in suicide rates. Globalization and Health 10 (1): 1–9.

Kuruk, Paul. 1999. Protecting folklore under modern intellectual property regimes: A reappraisal of the tensions between individual and communal rights in Africa and the United States. American University Law Review 48 (4): 769.

Landau, Elezabeth. 2010. From a Tree, a “Miracle” Called Aspirin. CNN Health: Matters of the Heart. December 22, 2010, at http://edition.cnn.com/2010/HEALTH/12/22/aspirin.history/index.html . Accessed 20 October 2020.

Lewin, Brent. 2012. India’s living Bridges. Readers Digest. 24 October 2012, at http://brentlewin.blogspot.com/2012/10/indias-living-bridges-for-readers-digest_24.html , Accessed 20 October 2020.

Li, Tani Murray. 2010. Indigeneity, capitalism, and the management of dispossession. Current Anthropology 51 (3): 385–414.

Márquez, Humberto. 2002. Rights-Venezuela: Indians want voice in use of botanical database. Inter Press Services News Agency December 2, 2002, at http://www.ipsnews.net/2002/12/rights-venezuela-indians-want-voice-in-use-of-botanical-database/ . Accessed 18 August 2020.

Maps of World. 2020. World Map. http://www.mapsofworld.com . Accessed 19 August 2020.

McNeil, Kent. 1997. Extinguishment of native title: The high court and American Law. Australian Indigenous Law Reporter 2 (3): 365–370.

Mgbeoji, Ikechi. 2001. Patents and traditional knowledge of the uses of plants: Is a communal patent regime part of the solution to the scourge of bio piracy? Indiana Journal of Global Legal Studies 9 (1): 163–186.

Miller, R.J. 2005. The doctrine of discovery in American Indian law. Idaho Law Review. 42: 1.

Morsink, Johannes. 1993. World war two and the universal declaration. Human Rights Quarterly 15 (2): 357.

Myers, Ransom A.., and Boris Worm. 2003. Rapid worldwide depletion of predatory fish communities. Nature 423 (6937): 280–283.

Nagaraj, K., K. Sainath, P.R. Rukmani, and R. Gopinath. 2014. Farmers’ suicides in India: Magnitudes, trends, and spatial patterns, 1997–2012. Review of Agrarian Studies 4 (2): 53–83.

National Research Council. 2013. The mathematical sciences in 2025 . London: National Academies Press.

Neubauer, Philipp, Olaf P.. Jensen, Jeffrey A.. Hutchings, and K Julia Baum. 2013. Resilience and recovery of overexploited marine populations. Science 340 (6130): 347–349.

NIF. 2020. The National Innovation Foundation, at: https://nif.org.in/ . Accessed 20 December 2020.

Odhiambo, Thomas, Johan Kamp, and Ran Kamp. 1990. You cannot fix indigenous knowledge. ILEIA Newsletter 6 (1): 3–5.

Oguamanam, Chidi. 2013. Intellectual property in global governance: A development question . London: Routledge.

Oguamanam, Chidi. 2019. Towards a tiered or differentiated approach to protection of traditional knowledge (TK) and traditional cultural expressions (TCEs) in relation to the intellectual property system. The African Journal of Information and Communication 2019 (23): 1–24.

Okediji, Ruth. 2018. Traditional knowledge and the public domain. Centre for International Governance Innovation Papers No. 176, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3202976 . Accessed 20 December 2020.

Perroni, Eva. 2017. Five indigenous farming practices enhancing food security. Food Tank (14 August 2017) at https://www.resilience.org/stories/2017-08-14/five-indigenous-farming-practices-enhancing-food-security/ . Accessed 20 December 2020.

Peter, J. Jacques., and Jessica Racine Jacques. 2012. Monocropping cultures into ruin: the loss of food varieties and cultural diversity. Sustainability 4 (11): 2970–2997.

Pillai, Ramesh. 2015. Linking the Past and the Future: Capturing Knowledge in Malaysia. WIPO Magazine (February 2015), at https://www.wipo.int/wipo_magazine/en/2015/01/article_0005.html . Accessed 15 February 2020.

Ragavan, Srividhya. 2001. Protection of traditional knowledge. Minnesota Intellectual Property Review 2 (2): 1.

Reinhardt, Forest L.. 1999. Bringing the environment down to earth. Harvard Business Review 77 (4): 149–149.

Reuters. 2017. Canada will pay compensation to Thousands of Indigenous Stolen Children. The Guardian October 6, 2017, at https://www.theguardian.com/world/2017/oct/06/decades-after-government-seizure-of-children-indigenous-canadians-will-receive-compensation . Accessed 15 October 2020.

Robertson, Lindsay G.. 2005. Conquest by law: How the discovery of America dispossessed indigenous peoples of their lands . Oxford: Oxford University Press.

Robinson, Kwame Porter, R. Eglash, A. Bennett, S. Nandakumar, and L. Robert. 2021. Authente–Kente: Enabling authentication for artisanal economies with deep learning. AI and Society 36 (1): 369–379.

Sen, Saikat, and Raja Chakraborty. 2017. Revival, modernization and integration of Indian traditional herbal medicine in clinical practice: Importance, challenges and future. Journal of Traditional and Complementary Medicine 7 (2): 234–244.

Sengupta, Nirmal. 2019. Traditional knowledge in modern India . Berlin: Springer.

Shambhu Prasad, Chakrabarty and Debmalya, Sinha. Forthcoming 2021. ‘Traditional knowledge and traditional cultural expressions of indigenous and tribal peoples: The era that was killed and we let die’. In Tribal Justice, ed. Yogesh Pratap Singh, Rita Ray, Suvrashree Panda, Soubhagya Sundar Nanda . Eastern Book Company, Lucknow.

Small, Garrick, and John Sheehan. 2008. The metaphysics of Indigenous ownership: Why Indigenous ownership is incomparable to Western conceptions of property value. In Indigenous peoples and real estate valuation , ed. Garrick Small, Rachel M. Malmgren, and Robert A. Simons, 103–119. Boston, MA: Springer.

Šokčević, Šimo. 2011. Identity and “Plural Monoculturalism.” Filozofska Istraživanja 31 (4): 735–749.

Souravi, K., and P. Rahul. 2020. Intellectual property rights and threatened medicinal plants the scenario. In Conservation and utilization of threatened medicinal plants , ed. P.E. Rajasekharan and Shabir Hussain Wani. Berlin: Springer.

Stavenhagen, Rodolfo. 2009. Building Intercultural Citizenship: A challenge for our times. In Indigenous peoples and human rights: The quest for justice , ed. Subhram Rajkhowa and Manik Chakraborty, 1–21. Calcutta: R Cambray.

Travis, Hannibal. 2008. Cultural and intellectual property interests of the indigenous peoples of Turkey and Iraq. Texas Wesleyan Law Review 15: 415.

UNESCO’s International Commission on Education for the Twenty-first Century, at https://unesdoc.unesco.org/ark:/48223/pf0000109590?posInSet=12&queryId=f9897ad1-e31b-4acf-a2d8-e64997ad28ab . Accessed 20 December 2020.

UNHRC. 2017. Universal periodic review—India, New York: UNO, Universal Periodic Review India, at https://www.ohchr.org/EN/HRBodies/UPR/Pages/INIndex.aspx . Accessed 22 December 2020.

Vyasanakere, P.J., K. Sudeesh, and B.S. Shylaja. 2008. Astronomical significance of the Gavi Gangadhareshwara temple in Bangalore. Current Science 95 (11): 1632–1636.

Wanzala, Justus. 2017. Kenya works with communities on Genetic Resources and Traditional Knowledge Protection, Intellectual Property Watch February 17, 2017, at. https://www.ip-watch.org/2017/02/15/kenya-works-communities-genetic-resources-traditional-knowledge-protection/ . Accessed 15 October 2020.

Winkelman, Michael. 2005. Cultural awareness, sensitivity and competence . Peosta: Eddie Bowers Publication.

WIPO. 2020. International Patent Classification (IPC), at: https://www.wipo.int/classifications/ipc/en . Accessed 18 August 2020.

World Bank. 2020. 'Indigenous peoples', at https://www.worldbank.org/en/topic/indigenouspeoples . Accessed 15 August 2020.

Yang, Tony, Kadambot H.M.. Siddique, and Kui Liu. 2020. Cropping systems in agriculture and their impact on soil health—A Review. Global Ecology and Conservation , 23 (8), e01118. https://doi.org/10.1016/j.gecco.2020.e01118 .

Samatha v State of Andhra Pradesh and Ors (1997) Appeal (Civil) 4601-02

Mabo v Queensland (1992) No 2. HCA 23

American Indian Religious Freedom Act 1980. United States Congress

Protection of Traditional Knowledge and Cultural Expressions Act 2016, Kenya

Geographical Indications of Goods (Registration and Protection) Act, 1999,

Protection of Plant Varieties and Farmer's Rights Act, 2001 , India

The Biological Diversity Act, 2002, India

Download references

Acknowledgements

We would like to acknowledge the works and scholarships of authors of books and articles we referred to in this paper. We thank Soumil Jhanwar, NLSIU, Bangalore, Sanghamitra Baladhikari, Souvik Mukherjee of CRSGPP, WBNUJS and specially Dr Ana Penteado of Notre Dame University, Australia for their assistance. We are grateful to Dr Nirmal Sengupta and the anonymous reviewers for their comments.

This research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors.

Author information

Authors and affiliations.

The Centre for Regulatory Studies, Governance and Public Policy, The West Bengal National University of Juridical Sciences, Kolkata, West Bengal, India

Shambhu Prasad Chakrabarty

National Law School of India University, Bangaluru, India

Ravneet Kaur

You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Shambhu Prasad Chakrabarty .

Ethics declarations

Conflict of interest.

There is no conflict of interest.

Additional information

Publisher's note.

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Chakrabarty, S.P., Kaur, R. A Primer to Traditional Knowledge Protection in India: The Road Ahead. Liverpool Law Rev 42 , 401–427 (2021). https://doi.org/10.1007/s10991-021-09281-4

Download citation

Accepted : 24 May 2021

Published : 03 June 2021

Issue Date : October 2021

DOI : https://doi.org/10.1007/s10991-021-09281-4

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

Traditional knowledge
Climate change
Nagoya protocol
TKDL and NIF
Tiered or diffused concept
Find a journal
Publish with us
Track your research

India: Traditional Knowledge And Patent Issues: An Overview Of Turmeric, Basmati, Neem Cases.

Introduction.

Traditional Knowledge (TK) is a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity 1 . Traditional Knowledge per se that is the knowledge that has ancient roots and is often informal and oral, is not protected by conventional intellectual property protection systems. This scenario has prompted many developing countries to develop their own specific and special systems for protecting traditional knowledge. India has played a very significant role in the documentation of traditional knowledge thereby bringing the protection of traditional knowledge at the centre stage of the International Intellectual Property System. Provision of Traditional Knowledge Digital Library (TKDL) Access (Non-Disclosure) Agreements with several international patent office's including USPTO, EPO, JPO etc. by Indian Government has led to many patent applications concerning India's traditional knowledge have either been cancelled or withdrawn or claims have been amended in several international patent offices 2 .

Traditional Knowledge Digital Library

TKDL is a pioneer initiative of the Indian Government, and came to the fore due to the

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 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 use of intellectual property systems to legitimize the exclusive ownership and control over biological resources and biological products and processes that have been used over centuries in non-industrialized culture can be defined as "bio-piracy". In other words bio-piracy means misappropriation of traditional knowledge with an intention to gain patent protection over that knowledge. Devolution, encroachment, the bio prospecting rush, lack of appropriate legal systems and a clash of systems all make traditional knowledge highly vulnerable to bio-piracy. Traditional knowledge is associated with biological resources which in turn is a component of biodiversity. The clues/ leads provided by TK can be utilized to develop best practices/processes/ system for mankind without the investment of huge amount of money for research and results validation through clinical trials in labs, above all such knowledge saves time. In the recent past, several cases of bio-piracy of TK from India have been reported. The following are the most prominent cases with regards to misappropriation of TK from India.

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 3 . For instance, it is used as a blood purifier, in treating the common cold, and as an anti-parasitic for many skin infections. 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.

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 International Federation of Organic Agriculture Movements (IFOAM) and Magda Aelvoet, former green Member of the European Parliament (MEP) 4 . A tree legendary to India, from its roots to its spreading crown, the Neem tree contains a number of potent compounds, notably a chemical found in its seeds named azadirachtin. It is used as an astringent in so many fields. The barks, leaves, flowers, 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 tooth brushes 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. Apart from this, several US patents were recently taken out Neem-based emulsions and solutions.

Basmati patent

The US patent office granted a patent to 'RiceTec' for a strain of Basmati rice, an aromatic rice grown in India and Pakistan for centuries .Rice is the staple food of people in most parts of Asia, especially India and Pakistan. For centuries, the farmers in this region developed, nurtured and conserved over a hundred thousand distinct varieties of rice to suit different tastes and needs. In 1997, in its patent application Ricetec also acknowledged that "good quality Basmati rice traditionally come from northern India and Pakistan...Indeed in some countries the term can be applied to only the Basmati rice grown in India and Pakistan." However, the company then went on to claim that it had invented certain "novel" Basmati lines and grains "which make possible the production of high quality, higher yielding Basmati rice worldwide." The Indian Government had pursued to appeal only 3 claims out of 20 claims made in the original patent application of RiceTec Inc. What were being challenged were only claims regarding certain characteristics of basmati (specifically starch index, aroma, and grain dimensions) 5 . It is to be noted that WTO Agreement does not require countries to provide Patent protection to plant varieties. It only requires countries to legislate so that plant varieties are protected

in some manner (not necessarily through patents). However, US being a strong proponent of Patent protection of plant varieties allowed the patent application. Three strains development by RiceTec are allowed patent protection and they are eligible to label its strain as "Superior Basmati Rice". Therefore, in Basmati case, RiceTec altered the strain through crossing with the Western strain of grain and successfully claimed it as their invention and the case is an example of problems illustrated in TRIPS with regards to patenting biotechnological processes.

TKDL as Global IP watch systems

"Global IP watch monitoring systems have an important role to play in enabling the identification of published TK-related applications on which third parties – in accordance with the patent law of the country concerned – may file observations." 6

Advantages-

TKDL has enabled the submission of third party observations (TPOs) which has proven the only cost-effective way of misappropriation of TK at the pre-grant stage.
TKDL has enabled successful opposition of hundreds of patent applications filed around the world.
Enables immediate corrective action to be taken with zero cost so as to prevent bio-piracy.

It is to be noted that the IP world has acknowledged the importance of successful

documentation of indigenous TK like India's TKDL- play a role in defensive protection within the existing IP system. As suggested by World Intellectual Property Organization (WIPO) as a global measure to curb bio-piracy and misappropriation of TK the following strategies are discussed. Inventions based on or developed using genetic resources (associated with traditional knowledge or not) may be patentable or protected by plant breeders' rights. The other couple of measures considered, discussed and developed by WIPO 7 are firstly, defensive protection of genetic resources which aims at preventing patents being granted over genetic resources (and associated traditional knowledge) which do not fulfill the existing requirements of novelty and inventiveness. The said measure further entails the possible disqualification of patent applications that do not comply with Convention on Biological Diversity (CBD) obligations on prior informed consent, mutually agreed terms, fair and equitable benefit-sharing, and disclosure of origin. Secondly, WIPO members want to make it mandatory for patent applications to show the source or origin of genetic resources, as well as evidence of prior informed consent and a benefit sharing agreement.

1 http://www.wipo.int/pressroom/en/briefs/tk_ip.html

2 http://www.ipindia.nic.in/writereaddata/Portal/IPOGuidelinesManuals/1_39_1_5-tk-guidelines.pdf

3 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3038276/

4 http://www.countercurrents.org/bhargava140709.htm

5 http://www.delhiscienceforum.net/intellectual-property-rights/87-victory-on-basmati-by-amit-sen-gupta-.html

6 http://www.wipo

7 http://www.wipo.int/pressroom/en/briefs/tk_ip.html

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Login to Mondaq.com

Password Passwords are Case Sensitive

Forgot your password?

Why Register with Mondaq

Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms

Articles tailored to your interests and optional alerts about important changes

Receive priority invitations to relevant webinars and events

You’ll only need to do it once, and readership information is just for authors and is never sold to third parties.

Your Organisation

We need this to enable us to match you with other users from the same organisation. It is also part of the information that we share to our content providers ("Contributors") who contribute Content for free for your use.

Patent on Neem

The neem tree (Azadirachta indica) originates from the Indian subcontinent and now grows in the dry regions of more than 50 tropical countries around the world. The neem tree has multiple uses. It is mentioned in Indian texts written over 2000 years ago and has been used for centuries by local communities in agriculture as an insect and pest repellent, in human and veterinary medicine, toiletries and cosmetics. It is also venerated in the culture, religions and literature of the region.

Even though first report on pesticide property of neem was reported in India in 1928, only after 30 years later systematic research work on neem was initiated. The past five decades witnessed intensive investigation and upward trend to scientific interest in neem and its diverse properties, resulting in large number of research publications, books and conferences at national and international levels. It led to isolation and identification of hundreds of the active compounds, from various parts with pesticidal, nematicidal, fungicidal, bactericidal, anti inflammatory, anti-tumor and other properties and found its applications in pesticide, medical, healthcare and cosmetic industry all over the world.

Since the 1980s, many neem related process and products have been patented in Japan, USA and European countries. The first US patent was obtained by Terumo Corporation in 1983 for its therapeutic preparation from neem bark. In 1985 Robert Larson from (USDA) obtained a patent for his preparation of neem seed extract and the Environmental Protection Agency approved this product for use in US market. In 1988 Robert Larson sold the patent on an extraction process to the US Company W.R. Grace (presently Certis). Having gathered their patents and clearance from the EPA, four years later, Grace commercialized its product by setting up manufacturing plant in collaboration with P.J. Margo Pvt. Ltd in India and continued to file patents from their own research in USA and other parts of world. Aside from Grace, neem based pesticides were also marketed by another company, AgriDyne Technologies Inc., USA, the market competition between the two companies was intense. In 1994, Grace accused AgriDyne a non-exclusive royalty-bearing license. During this period in India large number of companies also developed stabilized neem products and made them available commercially. The number of patents filed in this period were limited and geographically confined to few countries.

The challenge to a neem based patent held by W.R. Grace & Co. has returned many of intellectual property related issues controversies to center-stage globally.

These two cases not only created a global awareness on neem and its properties but also raised issues on biopiracy, need for documentation of traditional knowledge, equitable sharing of gains from traditional knowledge and harmonization of patent rule. Success of revocation of European patent illustrates the requirement of systematic documentation of knowledge whether traditional or scientific. Further these cases demonstrate the potential of IPR in creating awareness, enthusiasm in scientists, entrepreneurs, organizations and society and increased investments in research and development of products which compete in the market place. This is evident from upward trend of patents filed globally on neem from 1994 – 96 onwards – intense patent debate period and commercial product available in markets from neem.

Largest number of patents is in USA (54) followed by Japan (35), Australia (23), India (14). In India additionally more than 53 patent applications are pending for either gazette notification or opposition since 1995. If granted India will have the largest number of patents in neem. This itself illustrates that IPR does not stifle creativity and innovation but creates challenges and opportunities to over come the existing patents barriers by innovation and invention. There is also an increasing trend of filing application through PCT.

An analysis of type of patents suggests that majority of them are for crop protection applications (63%), followed by health care (13%), industrial (5%), veterinary care (5%), cosmetics (6%) and others (8%). This trend is also shown in country wise granted patents. For example in US out of 54 patents granted 31 were for crop protection rest for healthcare, cosmetics, industrial and veterinary applications. Organization wise patents ownership indicates largest number owned by Certis – W.R. Grace (49) followed by Rohm & Haas (36), CSIR-India (14), Trifolio (9), Bayer (8) and EID Parry (6).

The neem tree has been recognized the world over as a commercial opportunity. This is a welcome sign – but the bio-diversity prospects of this tree cannot be a free access to the entire world. It is now utterly urgent that the genetic fingerprints of our traditional wealth like neem are properly documented. The Neem Foundation has repeatedly pointed out that an immensely potential plant like neem should not be just left unrecognized and unprotected.

Granting neem the status of National Tree would send out the right signals to the world. This one move will help convert a national resource into a national asset.

The Tea Tree of Australia, Gingko Biloba of China, Ginseng of Korea, Guarana of the Amazon and Aloe Vera of Mexico are huge money-spinners in the booming alternate therapy market place of the West. Neem of India can emerge as the biggest player of them all – if India wakes up in time, takes charge and leads by farming policies and encouraging its use in its farmlands and public health programs.

A small country like Korea could successfully globalize its national treasure GINSENG – with an integrated approach, active research and development and positive promotion. It is a hallmark of the success of Korean farmers and Governmental efforts. India must draw lessons from this example.

In early 90s, the European Patent Office granted patents to the US Department of Agriculture and Multinational Agricultural Corporation (W.R. Grace of USA)

The patent was rejected on the basis that products derived from genetic resources (like peanut oil, sugarcane, corn, etc.) can not be patented. There were about 50 companies that tried to get patents on Neem Products and about 70 patents were rejected. This dropped interest of Neem Oil by multinational mega corporations in the agricultural area.

An official website of the United States government

The .gov means it’s official. Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

The site is secure. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

Publications
Account settings

Preview improvements coming to the PMC website in October 2024. Learn More or Try it out now .

Advanced Search
Journal List
Springer Nature - PMC COVID-19 Collection

A Primer to Traditional Knowledge Protection in India: The Road Ahead

Shambhu prasad chakrabarty.

1 The Centre for Regulatory Studies, Governance and Public Policy, The West Bengal National University of Juridical Sciences, Kolkata, West Bengal India

Ravneet Kaur

2 National Law School of India University, Bangaluru, India

Introduction

The methodology adopted in this paper incorporates drawing of conclusion using cross-country analysis for solutions to address the challenges brought forth by this complicated position.

The paper is based on primary and secondary sources in this genre of study.

Crisis in India's Natural Resources: The gift of Neo-Colonialism

It is estimated that over 75% of global biological resources are found in the Global South and in traditional or ancestral habitats utilized by Indigenous Peoples and Local Communities (IPLC). See, for example, Oguamanam ( 2013 ). 1 According to a recent study, 2 it was found that the world has lost over 90% of large fish species. 3 The primary reason identified behind this was its consistent demand leading to uninterrupted predatory fishing, irrespective of breeding seasons. 4 Lack of ecological ethics in the realm of the new world order of economic dominance by the Global North has played a significant role in this and similar others.

India has been blessed with fertile grounds, but modern scientific interventions like High Yielding Varieties (HYVs) and Genetically Modified Organisms (GMOs) have resulted in an imbalance in environmental sustainability. Studies have shown the adverse impact of the Green Revolution on the farmers and their farming lands. 5 Mono-cropping patterns have resulted in increased salinity of soils decreasing its fertility. 6 Such agricultural practices have attracted exponential use of pesticides by the farmers, and consequentially there has been deterioration. Punjab, which was the nucleus of the Green Revolution, now is a nucleus of agricultural distress. Kisan is the true nation-builders, but due to lopsided agrarian practices, they are being burdened with increasing debts and out-of-pocket expenditures on health, sinking them deeper into the vicious circle of poverty and vulnerability. 7 There have been thousands of recorded and unrecorded suicide deaths of farmers in India during the last two decades, 8 especially after introducing and implementing World Trade Organisation (WTO) and Trade Related Aspects of Intellectual Property Rights (TRIPS) in India. 9 “ According to the National Crime Record Bureau’s report, in the 20 years from 1996 to 2016, more than 30 lakh (0.3 million) farmers have committed suicide all over India. A good part of this is due to the impact of WTO and Free Trade Agreements (FTAs). Regional Comprehensive Economic Partnership (RCEP) would be yet another monster that would eat our farmers.” 10 Phase wise reintroduction of indigenous agricultural practices to arrest agrarian distress to both the farmer and the land, is the key for India's progress in the next few decades. 11 The ecological ethics and ethos are the critical parameters to sustainability inherent in TK, and it is elusive in modern scientific education. Mono-crops needs to be phased out along with GMOs. To give the readers a brief idea of the stark difference between the two sets of agricultural practices, reference to Table Table1 is 1 is given below.

Contrasts between Traditional and modern agricultural practices

Cole and Fernando ( 2014 : 6)

Navdanya, 12 an Indian based NGO, (like some others, e.g., Vrihi) has actively advocated for the cause of traditional knowledge in agricultural practices. 13 It believes in the philosophy of living soil, living seed and living earth, which has enabled partnered small farmers with sustainable agricultural practices. Traditional food production systems offer a possible solution for food security and sovereignty. 14 Mono-crop cultivation has forced the farmers to buy genetically modified seeds 15 at the cost of innumerable indigenous varieties. This consequently destroyed the TK of production of such varieties as well as their unique ways of conservation. 16 Odhiambo states that,

Indigenous knowledge can reveal missing ecological keys, which may help scientists develop alternative agricultural technologies less dependent on non-renewable resources (e.g. fossil energy) and environmentally damaging inputs (e.g. chemical pesticides) than conventional technologies. 17

Deep Rooted Misconceptions Regarding Traditional Knowledge

Recent lifestyle trends (such as increased use of organic products like cosmetics, food etc.) and health care through the AYUSH knowledge system 18 indulges the consumers at large, in a fascination towards ancient and traditional knowledge which have been the basis and backbone of human civilization. As more information unearths in this area of environmental and ethical discourse, multiple biopiracy cases have buoyed up and exposed the nexus between TK on the one hand and modern scientific inventions on the other. The hypocrisy involved in bluntly pirating this knowledge, coupled with creating strategies to nomenclate a discovery as an invention without giving due credit (forget benefit sharing) to the people who carried such information for centuries. Parallel to this, by declaring TK as obsolete and superstitious, demystifies the truth behind such claims. 19 The fact that more than 75% of medicines used by modern science have a natural indigenous origin can no longer be ignored. 20 More so, the scientists are exploring further on ancient chemicals like aspirin etc. 21 to make new medicines. Before indulging too much on the relevance of TK, it shall be prudent to identify the significant contrasts between modern and traditional knowledge (Table (Table2 2 ).

Contrasts between TK and modern knowledge system

Ezeanya-Esiobu ( 2019 : 115)

TK 22 or indigenous knowledge (often used interchangeably) has been arrogated with various derogatory descriptions like primitive, backward, rural, savage, unscientific, etc. 23 The reason behind such misadventure is cultural heterogeneity coupled with European perception of superior bloodline which led to devastating torture and murder of millions of Jews in the Second World War and millions more in colonies like India where people died of hunger and famine irrespective of bumper crop production. A notion of absolute superiority has always played a dominant role in both the cases of German annihilation of Jews and modern scientific ideas over indigenous knowledge, especially during the colonial period and beyond in some jurisdictions. It is till recent decades the notion has been challenged in global platforms. 24 The knowledge that indigenous peoples have inherited and practised since time immemorial have been referred to as superstitious and based on unscientific claims. 25 Their self-identification with an isolated culture, which is territorial in nature, is intrinsic to their 'way-of-life and with the environment. 26 But being isolated puts them at a disadvantageous position with little bargaining power when it comes to their right on TK. 27 Apart from this, TK unlike, modern scientific knowledge, are transmitted through traditional folklores and through imitation amongst certain clans through centuries. 28 It generally has a spiritual essence which creates a sacred consciousness to it. 29 It behaves in an integrative and holistic fashion with the view of the world as interrelated. Another interesting, distinctive feature of TK is the emotional 30 involvement which has been criticised by many modern scientists as baseless. 31 In practice, the participation by subjective parameters in certain TK has confused even the advocates of TK as a weakness. 32 However, the strength of TK lies in the long period of the human and ecological interface. Modern scientific knowledge is based on mathematical and quantitative calculations. 33 It is desirable that the two systems work in tandem to develop knowledge and education.

Innovations from Traditional Knowledge: Biopiracy

The interface “between TK and innovations in the realms of pharmaceuticals, cosmetics, agriculture, chemicals and environmental conservation, which constitute the core of the ‘biopiracy’ phenomenon, provide pivotal sites in which IP, specifically the patent regime, directly engages TK in contestation over the utilization of Genetic Resources (GRs) across different knowledge frameworks.” 34 Notwithstanding these examples, “the interfaces between IP and TK/TCEs generally tend to be difficult to pin down. In the patent regime, ‘newness’ or ‘novelty’ of TK, 35 analogous to an invention, is a consistently problematic issue.” 36 It is literally impossible to go back to the pages of the past to identify the ancestral inventor or discoverer of a particular clan or tribe, of a specific practice. “In the area of copyrights, fixation and publication, especially of TCEs, are perennial hurdles.” 37 As the majority of such expressions practice within communities closely knitted and carefully segregated from the outside world, it remains technically unpublished. “In respect of trademarks and designs, claims of sacredness—as a basis of exclusion of specific marks, symbols, insignias, or systems from commercial exploitation—remain a source of tension amongst stakeholders (Coombe 1998 ).” 38 , 39 In most of the cases involving such violation, the marks are allegedly pirated and used derogatorily by western countries. 40

Case Study: Neem

Neem ( Azadirachta indica ), a very common tree species of India with medicinal value, 41 has been the subject of numerous patents. (At least 40 in the US alone and 150 worldwide) All the inventions that relate to neem virtually used public domain traditional knowledge as their basis. 42 This led to a huge uproar amongst the Indian users who refused to accept this and leading to a challenge of two patents (1) “to a European Patent Office (EPO) patent for the fungicidal effects of neem oil (Patent No. 436 257 B1) owned by W. R. Grace & Co., and (2) to the US patent for a storage-stable azadirachtin formulation (Patent No. 5124349) also owned by W. R. Grace.” 43 In the year 2000, the patent described above was revoked by EPO due to the lack of novelty and invented step. 44 Patenting Neem, name of every household, had a substantial socio-economic impact. Almost all rural and semi-urban communities are aware of neem as having a plethora of health benefits. Indian heterogeneous communities were equivocal in opposing the patenting of neem by an American company. They feared the tyranny that looms large which the patent holder may unravel once obtained from the IP rights. 45

Case Study: Rosy Periwinkle

Rosy Periwinkle (case) is another well-known instance where biopiracy was exposed against an American company Eli Lilly, a pharma-giant in Arizona established in 1876. 46 Rosy Periwinkle is a naturally grown plant found in abundance in Madagascar. (Fig. 1 ) During the 1950s, the researchers of the company heard about the medicinal value of the plant Rosy Periwinkle and collected samples from India as well as Madagascar. They isolated the samples and tested the two components, vincristine and vinblastine, as unearthed from the indigenous experts of the region. During the process of testing, they identified alkaloids which later became very effective in treating childhood leukaemia with a success rate of over 90 per cent. During the late 1950s, the company started marketing it and especially vincristine earned a substantial profit for Eli Lilly. The natives of Madagascar, who originally identified the medicinal qualities and values involved in Rosy Periwinkle, never got any share of profit gained by Eli Lilly because of the absence of benefit-sharing laws, both internationally and locally. 47 , 48 , 49

An external file that holds a picture, illustration, etc.
Object name is 10991_2021_9281_Fig1_HTML.jpg

World Map showing the sample of neem taken from India to USA and EPO (Maps of World 2020 )

Laws Protecting Traditional Knowledge

National and regional laws protect TK within a limited space, but the impact of this knowledge system is global. TK, irrespective of its local applicability (generally limited to a clan or at times only within a family in a community), TK across the globe has been found to be based on certain ethical and moral precepts. 50 This homogenous behaviour of TK renders an impact that is beyond national boundaries. Practices like prohibition to the fishing of certain species during their breeding season could be seen as a standard practice amongst all indigenous fishing communities. 51 Same could be found in protecting coral reefs by indigenous communities by application of similar techniques in different parts of the world. International customary law has been flouted in almost all jurisdictions, and the impact is quite visible today. 52 Nearly ninety per cent of large fishes of the world have got extinct in the last six decades. 53 Therefore, international participation and cooperation to facilitate such laws at both, international and national level is required. Shared policy objectives would ensure protection, expansion and recognition of TK (Fig. 2 ).

An external file that holds a picture, illustration, etc.
Object name is 10991_2021_9281_Fig2_HTML.jpg

World Map showing the sample of Rosy Periwinkle

taken from Madagascar and India to Arizona, USA (Maps of World 2020 )

The major limitations that are inherent in the Indian legal system are multidimensional. Primarily, the government do not recognize the term indigenous per se, irrespective of using the word aboriginal once, in a document before the international community. 55 This position of India in the international forum reinstated that tribals survive but not as indigenous communities. 56 However, this distinction took place at a later stage as India was a party to the ILO Convention of 1957 on Indigenous and Tribal Population. India supported the document at the early stages when it only used the term Indigenous. In several Government publications, the term Adivasis and aboriginal have been used interchangeably. The current rejection of the term indigenous was developed in the context of the Working Group in 1984 and later in 1992. 57 Secondly, India still follows ILO 107, which has already been replaced by ILO 169. There are innumerable issues to be depicted at this juncture. ILO 107 was discarded and was replaced with ILO 169. Thirdly, there are no positive protection parameters of these peoples towards their land and culture. 58 As a matter of fact, there are many indigenous communities in India which are not recognized under the purview of Scheduled Tribes, making the process 'more of politics than of law'. In submitting the Universal Periodic Review reports, India has suppressed the atrocities that these peoples have undergone in the hand of non-tribal peoples and the state. 59 Millions of these peoples have been ousted from their habitat, forcing them to change their way of life and contributed to the loss of traditional knowledge, their ancestral cultural expressions, language and traditional indigenous farming practices amongst others. 60 In the absence of any uniform legal framework proposed by WIPO (like other IPRs), TK has not been protected positively in India, 61 unlike that of Malaysia 62 or Kenya. 63

Sui generis Legislation to Combat Biopiracy: Position in India

TK and its incorporation in IPR were not simple. To make this happen, two concepts evolved;

i) Amending the existing laws of IPR and making necessary changes to accommodate TK and its derivatives, and
ii) To make comprehensive legislation to promote and protect TK within IPR.

Many jurisdictions within WTO have made necessary changes in their legal system to accommodate TK within IPR. India accommodated TK both by amending existing IPR statutes and creating new ones. As a matter of practice, the onus for protection of TK/TCEs globally vests upon WIPO of WTO 64 who are responsible for TRIPS to make a strategic alteration to accommodate TK and TCE. Some of the recent legislation that came up to protect TK in India is “The Biological Diversity Act, 2002”, 65 the “Protection of Plant Varieties and Farmer's Rights Act, 2001” 66 and the “Geographical Indications of Goods (Registration and Protection) Act, 1999”. 67 There has been significant development in various existing IPR legislations in India like the Patent Act, Copyright Act and the Trademark Act (Table (Table3 3 ).

Indicating the various legislations pertaining to the protection of TK in existing IPR legislations

a Ragavan ( 2001 : 1)

Sui generis systems per se have played the most significant role so far in protecting TK and TCEs in almost all jurisdictions. However, the actual organization that was required to be made to provide worldwide protection of TK and TCEs is that of WIPO. After the formation of WTO and the establishment of WIPO, all intellectual properties along with its derivatives have been regulated by WIPO. The absence of a specific law with regard to TK & TCEs (from WIPO) has been felt largely by countries across continents rich in tradition and culture. WIPO of late has shown interest to investigate newer avenues in framing a unified regulation to regulate TK/TCE as it has done with other IPRs. 68 Initially, WIPO worked upon various complex and puzzling positions, but no scientific conclusion could be made in this regard. 69 , 70

Sui generis Strategies Developed in India to Protect TK

India witnessed significant activism to protect traditional expertise from being patented in Europe and America. The basmati and neem controversy created enormous pressure 72 leading to some simple yet significant sui generis protection of TK.

Traditional Knowledge Digital Library (TKDL)

After this development, there has been a significant decline in biopiracy cases and frivolous filing of patent applications related to Indian Systems of Medicines (ISM). Amidst this positive development abroad, a significant loophole was detected. It was found that the Indian Patent Office has granted innumerable patents on ISM, turning a blind eye on TKDL. 73 After a review of such cases dating back to 2005, it revoked patents granted, violating TK. Later an agreement was signed by TKDL with IPO on similar lines of EPO and Patent offices of UK, USA, Canada, Germany, Australia etc. Consequently, there has also been a significant economic impact that was felt in the local pharma industry in India.

This popularity of TKDL, along with its success, prompted changes by WIPO. The International Patent Classification (IPC) of WIPO adopted the Traditional Knowledge Resource Classification System (TKRC), a novel classification system of TKDL. “The International Patent Classification (IPC), established by the Strasbourg Agreement 1971, provides for a hierarchical structure of independent language symbols for the classification of patents and utility models according to the different areas of technology 74 to which they pertain. A new version of the IPC enters into force each year on January 1.” 75 Another significant success was the identification of 1155 biopiracy claims at various IPOs by the TKDL Team. 76 Consequently, a lot of them were legally restrained from similar malpractice. Thus, TKDL has turned out to be a very successful defensive mechanism to stop biopiracy, as they carry on their effort to improve the database of 150 books inter alia , on areas like Yoga, Unani, Siddha and Ayurveda.

India's successful attempt at collaborating with TKDL inspired various countries to protect their own TK (see Table Table4). 4 ). To quote Piaroa Elder, an indigenous community of Venezuela, “When a seed is removed from its environment, it dies halfway to its destination, and the same thing could happen to indigenous knowledge”. 77

Protection of TK by various countries (selected)

Source : WIPO (Dutfield 2020 )

National Innovation Foundation (NIF)

Alongside TKDL, NIF is another pioneering contribution from India to protect and promote TK. 78 , 79 The main objective of NIF is to encourage and assist in the protection of TK. It is a team of experts which engages in facilitating the knowledge holders to protect their innovations in accordance with the existing IPR regime. They provide, inter alia , substantial support in conducting prior art searches, filing of patents to the people who are mostly unaware of legal intricacies that their TK may possess along with their miraculous knowledge.

The following table (Table (Table5) 5 ) identifies the significant functions of NIF, which facilitates TK.

Functions of NIF with appropriate initiatives (selective)

Source: NIF, India (Ibid)

e Maps of World ( 2020 )

NIF has also helped substantially in the last two decades from its establishment, protecting TK. The following list (Table. (Table.6) 6 ) is a few remarkable achievements of NIF worth cherishing.

Few remarkable achievements of NIF with proper nomenclature

Proposed Protection Parameters

Traditional knowledge and traditional cultural expressions are integrally related and inherent to the way of life of indigenous and tribal peoples. The doctrine of discovery 81 coupled with coercion and deception 82 caused irretrievable loss and suffering to the indigenous and tribal communities across continents. Similar instances were recorded in the US where tribes were dispossessed of their cultural, historical and religious resources giving the United States “ ‘the exclusive right…to extinguish’ Indian title…whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.” 83 India is also not an exception where the Europeans coerced the tribal communities to participate in the Christian mode of worship, as they did in the US. 84

Irrespective of the difficulty in finding the intercepting point of the knowledge systems of the various native peoples of the United States or Canada, or India, it is not very difficult to anticipate the commonality and richness of the two. One of the living examples of CMT is the living roots in Meghalaya, which demonstrates the uniqueness of India's traditional knowledge systems. Khasi community of this state twisted around the aerated roots to form them into a bridge. 86 These structures/trees hold sacred value to the community, which highlight their ingenuity and uniqueness. 87

The Ray of Hope

At the end of the Second World War, decolonisation and protection of human rights evolved to be the two major forces to control the state of affairs. 88 Cultural rights emerged to be an integral part of human rights which promotes the right to follow any cultural practices on the one hand and refraining from harming others on the other. It is essential to contrast universality and homogeneity. Culture is the synthesis of the productivity of any society which is threatened by cultural relativism. History unravels forced attempts of assimilation, a practice contrary to the universality of human rights, in general, and cultural rights, in particular. 89 Emphasis is required to be given to protect one's culture and cultural choices. Any use of others' cultural practice, which may have an impact, should only be permitted through free, prior and informed consent. Respect for cultural diversity under international standards is also a critical part of respecting human rights. Plural mono-culturism, 90 which promotes respecting everyone's right, must be acknowledged.

Community sensitivity is an integral part of the universality of cultural rights. 91 Cultural sensitivity within the penumbra of community sensitivity includes an openness to know and acknowledge the diversity of cultural practices. 92 Various measures have been taken to create awareness programs, mandatory workplace ethics training, amongst others. 93

The people who are behind the preservation and procurement of such knowledge should be acknowledged and rewarded. As a matter of fact, they are even bereft of any benefit for what they or their ancestors have done at the enrichment of a selected few. This deprivation, coupled with non-recognition of their knowledge (generally termed as superstition) and their right over such property, has led to the extinction of TK & TCEs from the planet. 94 The concept of community ownership that exists among the indigenous and tribal communities is quite different from the western notion of ownership. 95 However, a better understanding may be achieved between the two when it comes to its management, knowledge practice, communicating values and the values we hold in general through engaging with one another with the objective of creating a safe and sustainable world. 96

In order to explore the ways and methods to identify indigenous communities, it is imperative to explore the conventional method of compensation for past exploitation, which some countries have invoked to restorative justice and the other method being access and benefit-sharing. 97 The latter has been far and few amongst jurisdictions, with the former predominating with affirmative action.

Case Study—Kente Cloth

More and more blacks are dressing in whole or in part in African garb as an expression of their identity and racial solidarity or their adherence to the ideology of Afro centricity. 98

One of the recent developments to bring equality amongst the stakeholder and certainty in the law of benefit-sharing concerning TK and TCEs, the tiered or differentiated concept, has emerged, which was articulated in the Draft IGC documents (in Article 3 prepared for the 27th Session of WIPO, 2014b; 2014c). This unique approach intends to structure a framework to delineate the various kinds of TK and TCEs, primarily based on their degrees of diffusion (Refer to Fig. 3 ). This, consequently, tries to identify the extent of exclusive rights that the custodians of such TK and TCEs would be entitled to receive. On the basis of this parameter, the exclusive right may lead to conferring licence on clans or communities to explore such TK. Irrespective of the fact that this approach is not collectively accepted amongst the IGC members. The major challenges being the lack of uniformity amongst the indigenous leaders, scientific clarity of the facts beyond certain period time in the past, reinstate retrospective position prior to the colonial era and impact assessment of knowledge piracy thereof. “The ‘tiered and differentiated’ approach has been received with mixed feelings, including scepticism and trepidation, especially in the rank of demandeur countries and even the Indigenous Caucus.” 100 It is none the less a fluid concept, and it is crystallizing around the following categories: (See Fig. 3 ).

An external file that holds a picture, illustration, etc.
Object name is 10991_2021_9281_Fig3_HTML.jpg

The four-element of the tiered or diffused concept (Ibid.)

A specific positive mechanism would be adopted for the first time in India to act as a standard for subsequent issues,
Uniformity in accessing benefit sharing amongst the stakeholders,
The element of clarity would be introduced effectively,
As identified in this article, India has shown the way to protect TK indirectly by adopting a sui generis system of TKDL. Similarly, it can introduce this system in this part of the world which may act as a model to be adapted and acted upon in similar circumstances.
This would also avoid a multiplicity of benefit-sharing laws and regulations.
This would also enable the indigenous peoples to exercise their rights over their culture, communities and ancestral practices, which upholds the promises under-taken to achieve in the UNSDGs.

The primary objective of the classification mentioned above is to differentiate the weaker forms of rights for the widely available TK and TCEs. This, consequently, would attach an exclusive right (strong right) to the indigenous community, which has kept it secret and outside the public domain. Generally, the indigenous elderly refrain from disclosing TK. Once assured of protection, voluntary documentation of such practices and knowledge be expected. This incentive would encourage the younger members of the community to carry on with their ancestral knowledge as their forefathers. In other words, weaker forms of rights may be attached to widely diffused or publicly available TK and TCEs. 102 By incorporating this process, access and benefit-sharing aspects could be assessed and be acted accordingly. Once the policy is incorporated, the mechanism would assure stratified benefit sharing amongst the stakeholders. The method has been discussed and accepted to some extent in the Global North but has not been done in the Global South. Countries like Canada and Australia have, to some extent, invoked this method of benefit sharing and have got success. 103 India, by adhering to this policy, would position itself to be the trendsetter and a leader in this part of the globe. It is imperative to state that the limited TK and TCEs still left amongst the people, mostly the elderly, requires urgent protection and documentation. The young must be assured of the economic viability of their ancestral knowledge. Special measures should be taken to promote these TK and TCEs and retrospectively protect the rights of these peoples with a robust legal framework to implement benefit sharing, adhering to the principles laid down in the Nagoya Protocol, where India has been a signatory.

By a law framed by WIPO, or
By sui generis legislation in India, as has been in some jurisdictions

The Beneficiaries

Application of laws systematically would not only help to preserve the rich TK & TCEs of the world but would be able to benefit approximately four hundred and seventy-six million Indigenous Peoples worldwide, 104 in over ninety countries which makes up over 6 per cent of the global population, and would be able to contribute to alleviating about fifteen per cent of the extreme poor. 105 The establishment of their rights would also act as an assurance for the continuance of traditional practices associated with that land which is a major untapped source of sustainable agriculture. What could follow is ubi jus ibi remedium , where the question of justice for forest-dwelling communities which have faced the brunt at the cost of 'development' could also be achieved. A systematic re-transfer of land to the displaced indigenous communities with the reintroduction of indigenous species would also help in sustainable development. International practices of community ownership should also be ensured in line with ILO 169 and directions laid down in Samatha v. State of Andhra Pradesh. 106 The growing movement of these peoples in the modern world has got its momentum from the judiciary itself. For instance, in the famous Australian case of Queensland 107 the Australian Supreme Court rightfully restored the entire land area back to the aboriginal peoples of Australia. The Indian counterpart to this, Samatha 108 where the Hon’ble Supreme Court of India acknowledges the right to land and natural resources of the tribal peoples in India. 109

It is imperative to state that the limited TK and TCEs still left amongst the people, mostly the elderly requires urgent protection and documentation. The young must be assured of the economic viability of their ancestral knowledge. Special measures should be taken to promote these TK and TCEs and retrospectively protect the rights of these peoples with a robust legal framework to implement benefit sharing. Millions of people within the indigenous and tribal communities across the world are facing survival-related challenges, where the adult-youth populace have been geographically displaced, away from their homeland in search of survival and social inclusion. Only those, who are old and not otherwise able to move or work, remain in their village. They take care of the children whose parents have migrated in search of their daily wages. Poverty, discouragement and indifference are social prejudices that label their daily lives. ‘ 110 ’ Why should this be permitted? 111 The indigenous communities, however, do not accept the labels that blemish their origin and traditional consciousness. Some recurring questions need to be addressed by the people in authority and decision-makers. 112 Is it too late today to reinstate the affairs? Would it be possible in India to protect the cultural, social and economic rights of these dying communities? Could India create opportunities for the young adults who immigrate for better lives? 113 Or would we indulge in cheap politics at the cost of our rich cultural and social heritage? Would we remain silent with the steady loss of diversity, forests and TK & TCEs? Or would we not reclaim our lost glory and help the vulnerable from their extinction. Would we not fight for their cause and help them to be compensated like their Australian and Canadian brothers and sisters? Why the modern legal minds not set up a strategy to combat the evils of policymakers and reinstate the right to life of millions of Indian indigenous peoples.

Within the edifice of cultural diversity, a new global ethic needs to be incorporated, as has been reiterated by UNESCO, which would include human rights perspectives, where there should be a proper retrospection of the alternatives available amidst the atmosphere of tolerance mutual respect and democratic debate. 114 In consequence, we would be able to achieve, in building the tower of Babel, where humanity, per se, would reign supreme.

Acknowledgements

This research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors.

Declarations

There is no conflict of interest.

1 Oguamanam ( 2013 : 3).

2 Neubauer ( 2013 : 347–349).

3 Free ( 2019 : 979).

4 Burgess ( 2013 :15943–15948).

5 In this regard Hsaio ( 2015 ) observed that “Despite their agricultural, economic, and safety, pesticides can also have negative impacts on our health. Many conventional pesticides are synthetic materials that kill or inactivate the pest directly. These chemical pesticides include compounds such as organophosphates, carbamates, pyrethroids, and sulfonylureas. Short-term exposure to a large amount of certain pesticides can result in poisoning. Exposure to large amounts of pesticides is usually more likely for people such as farmers who may frequently touch and/or breathe in pesticides. The effects of long-term exposure to small amounts of these pesticides are unclear, but studies have linked them to a variety of chronic health conditions such as diabetes, cancer, and neurological defects”; Also see, Reinhardt ( 1999 : 149–149).

6 Yang ( 2020 : 8).

7 Nagaraj ( 2014 : 79).

9 Kennedy and King ( 2014 : 1–9).

10 Biju ( 2019 ).

11 Perroni ( 2017 ).

12 Founded by world-renowned scientist and environmentalist Dr Vandana Shiva, Navdanya is based in Uttaranchal.

13 To know more visit https://www.navdanya.org/site.

14 Jacques and Jacques ( 2012 : 2970–2997).

15 Some activists object to the terminology ‘seed’ to be broader enough to incorporate GMOs.

16 Each variety is different from the other and so is their indigenous ways of conservation.

17 Odhiambo and Kamp ( 1990 : 3–5).

18 AYUSH stands for Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy.

19 Chambers ( 2000 : 221–240).

20 Sen and Chakraborty ( 2017 : 234–244).

21 Landau ( 2010 ).

22 Traditional knowledge is defined in UN documents as knowledge of ‘Indigenous and local communities embodying traditional lifestyles’ IPLC, Article 8(j) CBD.

23 Supra note 19, at 7.

26 Supra note 14.

27 Gernigon ( 2000 : 33).

28 Bruchac ( 2014 : 3817).

29 Juden ( 2003 : 313–313).

30 Li ( 2010 : 385–414).

32 Sengupta ( 2019 : 146).

33 National Research Council ( 2013 : 477–486).

34 Oguamanam ( 2019 : 1–24).

35 Newness is the sole factor that distinguishes a TK from a knowledge that is commonplace.

36 Mgbeoji ( 2001 : 163–186).

37 Boateng ( 2012 : 9), Kuruk ( 1999 : 769).

38 Supra note 36.

39 Supra note 34.

41 Souravi, K ( 2020 : p. 489).

42 Supra note 34.

44 Dutfield ( 2004 : 53).

45 Some similar experiences are referred to in the work of Will Holland ( 2019 ).

46 Chakrabarty and Sinha ( 2021 ).

48 Fisher ( 2018 : 7).

49 It is pertinent here to state that the countries where the patents were accepted did not ratify CBD or the Nagoya Protocol.

50 Deb ( 2014 : 123–159).

53 Myers and Worm ( 2003 : 280–283).

54 Architha Narayanan ( 2018 : 1).

55 Chakrabarty ( 2018 : 14).

58 Argument placed by the contributors, based on the previous fact; Available at: < https://www.telegraphindia.com/opinion/tribal-status-to-be-a-scheduled-tribe-and-being-tribal-are-no-longer-the-same-thing/cid/1691000 ≥ (Accessed 15th September 2020).

59 UN HRC ( 2017 ).

60 First-hand experience recorded by the contributor during PhD empirical studies, for more please look at Shodhganga thesis at chapter 6.( https://shodhganga.inflibnet.ac.in/handle/10603/246918 ).

61 Acts, the Plant Varieties Act and the Biodiversity Act protects passively and not actively as required to be adapted in India.

62 Antons ( 2010 : 1189–1204).

63 Justus Wanzala ( 2017 ).

64 WIPO and WTO are two different organisations WIPO has a cultural mission and no trade aim, whereas WTO is duly trade orientated. WIPO has treaties that member states can ratify or not, WTO TRIPs is of adhesion and there is no space to non-ratification or to repel certain articles.

65 The Biological Diversity Act, 2002.

66 Protection of Plant Varieties and Farmer's Rights Act, 2001.

67 Geographical Indications of Goods (Registration and Protection) Act, 1999.

68 Fisher ( 2017 ).

71 Okediji ( 2018 : 176).

72 Public commotion leading to a political outrage forcing the government to act.

73 Supra note 34 at p 50.

74 Brooks ( 1994 : 478).

75 WIPO ( 2020 ).

76 Supra note 20 at p 49.

77 Humberto Márquez ( 2002 ).

78 Supra note 25.

79 The Department of Science and, GOI, later established NIF in the year 2000 for preventing biopiracy on the one hand and IPR protection of TK and Ancestral Knowledge. This ensures, consequently, retainment of the rich knowledge the land is famous for.

83 McNeil ( 1997 : .365).

84 Banner ( 2009 : 16) and Robertson ( 2005 : 99).

85 Dwivedi and Saroha ( 2005 : 310) and Vyasanakere ( 2008 : 1632).

86 Bareh ( 1985 ).

87 Lewin ( 2012 ).

88 Morsink ( 1993 : 357).

89 Travis ( 2008 : 415).

90 Šokčević ( 2011 : 735–749).

91 Burnette ( 2014 ).

93 Winkelman ( 2005 ).

94 For instance, Mono crop cultivation requires no conservation of seeds as the farmers would buy the GMO seed annually. This has led to the extinction of hundreds of indigenous varieties of seeds. And along with that the knowledge of preservation of those indigenous seeds has also gone extinct as well.

95 Small and Sheehan ( 2008 103–119).

96 Jensen ( 2017 : 65).

97 Reuters ( 2017 ).

98 Austin ( 1994 : 147).

99 Robinson ( 2021 : 369).

100 Supra note 37.

104 World Bank ( 2020 ).

106 Samatha v State of Andhra Pradesh (1997).

107 Mabo v Queensland (1992).

108 Supra note 89.

109 Supra note 55, at p 150.

110 Rodolfo Stavenhagen ( 2009 : 20).

114 UNESCO’s International Commission on Education for the Twenty-first Century identifies “Learning to live together, learning to live with others” as one of the four pillars of education necessary for preparing ourselves for life in the twenty-first century.

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Contributor Information

Shambhu Prasad Chakrabarty, Email: moc.liamg@cdasarpuhbmahs , Email: ude.sjun@cps .

Ravneet Kaur, Email: ni.ca.sln@kteenvar .

Antons Christoph. The role of traditional knowledge and access to genetic resources in biodiversity conservation in Southeast Asia. Biodiversity and Conservation. 2010; 19 (4):1189–1204. doi: 10.1007/s10531-010-9816-y. [ CrossRef ] [ Google Scholar ]
Architha, Narayanan. 2018 Domestic Biological Diversity and ABS Laws, Policies and Practice in India. In A Primer on Biological Diversity Laws, Access and Benefit Sharing ed. M K Ramesh et al., Bangalore: UNDP & CELERA, NLSIU.
Austin Regina. A nation of thieves: Securing Black people's right to shop and to sell in White America. Utah Law Review. 1994; 1994 (1):147. [ Google Scholar ]
Banner Stuart. How the Indians lost their land: Law and power on the frontier. Cambridge: Harvard University Press; 2009. [ Google Scholar ]
Bareh, Hamlet. 1985. The history and culture of the Khasi People revised and enlarged edition. http://dspace.nehu.ac.in/bitstream/1/7798/1/The%20history%20and%20culture%20of%20the%20Khasi%20(H%20Bareh).pdf . Accessed 20 November 2020.
Biju. K.V. 2019. Don’t drive indian farmers to suicide through rcEP, John Hopkins Advanced School of Advanced International Studies , (3 November 2019) at https://www.downtoearth.org.in/blog/economy/don-t-drive-indian-farmers-to-suicide-through-rcep-67565 . Accessed 14 October 2020.
Boateng Boatema. The copyright thing doesn’t work here Adinkra and Kente Cloth and intellectual property in Ghana. African Arts. 2012; 45 (3):9. [ Google Scholar ]
Brooks Harvey. The relationship between science and technology. Research Policy. 1994; 23 (5):477–486. doi: 10.1016/0048-7333(94)01001-3. [ CrossRef ] [ Google Scholar ]
Bruchac Margaret. Indigenous knowledge and traditional knowledge. In: Smith C, editor. Encyclopaedia of global archaeology. New York: Springer; 2014. pp. 3814–3824. [ Google Scholar ]
Burgess Matthew G., Polasky Stephen, Tilman David. Predicting overfishing and extinction threats in multispecies fisheries. Proceedings of the National Academy of Sciences. 2013; 110 (40):15943–15948. doi: 10.1073/pnas.1314472110. [ PMC free article ] [ PubMed ] [ CrossRef ] [ Google Scholar ]
Burnette Catherine E, Sanders Sara, Butcher Howard K, Rand Jacki T. A toolkit for ethical and culturally sensitive research: An application with indigenous communities. Ethics and Social Welfare. 2014; 8 (4):364–382. doi: 10.1080/17496535.2014.885987. [ CrossRef ] [ Google Scholar ]
Chakrabarty Shambhu P. Tribal rights in India. Singapore: Partridge Publishing Singapore; 2018. [ Google Scholar ]
Chambers David Wade, Gillespie Richard. Locality in the history of science: Colonial science, technoscience, and indigenous knowledge. Osiris. 2000; 15 (1):221–240. doi: 10.1086/649328. [ CrossRef ] [ Google Scholar ]
Christopher Free M., James Thorson T., Malin Pinsky L., Kiva Oken L., Wiedenmann John, Olaf Jensen P. Impacts of historical warming on marine fisheries production. Science. 2019; 363 (6430):979–983. doi: 10.1126/science.aau1758. [ PubMed ] [ CrossRef ] [ Google Scholar ]
Cole Shawn Allen, Nilesh Fernando A. The value of advice: Evidence from the adoption of agricultural practices. HBS Working Group Paper. 2014; 1 (13):6. [ Google Scholar ]
Coombe RJ. The cultural life of intellectual properties: Authorship, appropriation, and the law. Duke University Press; 1998. [ Google Scholar ]
Deb Debal. The value of forest: an ecological economic examination of forest people’s perspective. In: Fenning Trevor., editor. Challenges and opportunities for the world's forests in the 21st Century. Dordrecht: Springer; 2014. pp. 123–159. [ Google Scholar ]
Dickson David. ICSU seeks to classify ‘traditional knowledge’ Nature. 1999; 401 (631):2021. doi: 10.1038/44235.Accessed10January. [ PubMed ] [ CrossRef ] [ Google Scholar ]
Dutfield Graham. Intellectual property, biogenetic resources and traditional knowledge. London: Earthscan; 2004. [ Google Scholar ]
Dutfield G, Wynberg R, Laird S, Ives S. Benefit Sharing and Traditional Knowledge: Unsolved Dilemmas for Implementation. The Challenge of Attribution and Origin: Traditional Knowledge and Access and Benefit Sharing. Voices for BioJustice, Policy Brief; 2020. [ Google Scholar ]
Dwivedi Anurag, Saroha Monika. Copyright laws as a means of extending protection to expressions of folklore. Journal of Intellectual Property Rights. 2005; 10 (4):308–314. [ Google Scholar ]
Ezeanya-Esiobu C. Indigenous knowledge and education in Africa. Berlin: Springer; 2019. [ Google Scholar ]
Fisher, William. 2017. The legal treatment of traditional knowledge. Streamed live on 23 March 2017 at https://youtu.be/z04fHLEOFs4 . Accessed 20 November 2020.
Fisher William. 2017 David L. Lange lecture in intellectual property: The puzzle of traditional knowledge. Duke Law Journal. 2018; 67 (7):1511–1578. [ Google Scholar ]
Gernigon Bernard, Odero Alberto, Guido Horacio. ILO principles concerning collective bargaining. International Labour Review. 2000; 139 (1):33. doi: 10.1111/j.1564-913X.2000.tb00401.x. [ CrossRef ] [ Google Scholar ]
Holland, Will. 2019. Biopiracy: The misuse of patenting systems at the disadvantage of local communities . CABI (21 March 2019) at https://blog.plantwise.org/2019/03/21/biopiracy-the-misuse-of-patenting-systems-at-the-disadvantage-of-less-affluent-communities . Accessed 20 December 2020.
Hsaio, J. 2015. GMOs and pesticides: Helpful or Harmful? Science in the News . The Harvard University, The Graduate School of Arts and Sciences Blog (10 August 2015), at https://sitn.hms.harvard.edu/flash/2015/gmos-and-pesticides/ . Accessed 17 November 2020.
Ip John. The legality of ‘suspicionless’ stop and search powers under the European convention on human rights. Human Rights Law Review. 2017; 17 (3):523–544. doi: 10.1093/hrlr/ngw025. [ CrossRef ] [ Google Scholar ]
Irwin Lee. Freedom, law, and prophecy: A brief history of Native American religious resistance. American Indian Quarterly. 1997; 21 (1):35–55. doi: 10.2307/1185587. [ CrossRef ] [ Google Scholar ]
Jensen, Kyle. 2017. A comparison of indigenous and western land management; Case Studies of Ngāti Whātua Ōrākei and the East Bay Regional Park District. Pomona Senior Theses . 171 at http://scholarship.claremont.edu/pomona_theses/171 . Accessed 10 January 2021.
Juden Linda Kitchikeesic. Spiritual link is part of traditional knowledge. Nature. 2003; 421 (6921):313–313. doi: 10.1038/421313c. [ PubMed ] [ CrossRef ] [ Google Scholar ]
Kennedy Jonathan, King Lawrence. The political economy of farmers’ suicides in India: Indebted cash-crop farmers with marginal landholdings explain state-level variation in suicide rates. Globalization and Health. 2014; 10 (1):1–9. doi: 10.1186/1744-8603-10-16. [ PMC free article ] [ PubMed ] [ CrossRef ] [ Google Scholar ]
Kuruk Paul. Protecting folklore under modern intellectual property regimes: A reappraisal of the tensions between individual and communal rights in Africa and the United States. American University Law Review. 1999; 48 (4):769. [ Google Scholar ]
Landau, Elezabeth. 2010. From a Tree, a “Miracle” Called Aspirin. CNN Health: Matters of the Heart. December 22, 2010, at http://edition.cnn.com/2010/HEALTH/12/22/aspirin.history/index.html . Accessed 20 October 2020.
Lewin, Brent. 2012. India’s living Bridges. Readers Digest. 24 October 2012, at http://brentlewin.blogspot.com/2012/10/indias-living-bridges-for-readers-digest_24.html , Accessed 20 October 2020.
Li Tani Murray. Indigeneity, capitalism, and the management of dispossession. Current Anthropology. 2010; 51 (3):385–414. doi: 10.1086/651942. [ CrossRef ] [ Google Scholar ]
Márquez, Humberto. 2002. Rights-Venezuela: Indians want voice in use of botanical database. Inter Press Services News Agency December 2, 2002, at http://www.ipsnews.net/2002/12/rights-venezuela-indians-want-voice-in-use-of-botanical-database/ . Accessed 18 August 2020.
Maps of World. 2020. World Map. http://www.mapsofworld.com . Accessed 19 August 2020.
McNeil Kent. Extinguishment of native title: The high court and American Law. Australian Indigenous Law Reporter. 1997; 2 (3):365–370. [ Google Scholar ]
Mgbeoji Ikechi. Patents and traditional knowledge of the uses of plants: Is a communal patent regime part of the solution to the scourge of bio piracy? Indiana Journal of Global Legal Studies. 2001; 9 (1):163–186. [ Google Scholar ]
Miller RJ. The doctrine of discovery in American Indian law. Idaho Law Review. 2005; 42 :1. [ Google Scholar ]
Morsink Johannes. World war two and the universal declaration. Human Rights Quarterly. 1993; 15 (2):357. doi: 10.2307/762543. [ CrossRef ] [ Google Scholar ]
Myers Ransom A., Worm Boris. Rapid worldwide depletion of predatory fish communities. Nature. 2003; 423 (6937):280–283. doi: 10.1038/nature01610. [ PubMed ] [ CrossRef ] [ Google Scholar ]
Nagaraj K, Sainath K, Rukmani PR, Gopinath R. Farmers’ suicides in India: Magnitudes, trends, and spatial patterns, 1997–2012. Review of Agrarian Studies. 2014; 4 (2):53–83. [ Google Scholar ]
National Research Council . The mathematical sciences in 2025. London: National Academies Press; 2013. [ Google Scholar ]
Neubauer Philipp, Jensen Olaf P., Hutchings Jeffrey A., Baum K Julia. Resilience and recovery of overexploited marine populations. Science. 2013; 340 (6130):347–349. doi: 10.1126/science.1230441. [ PubMed ] [ CrossRef ] [ Google Scholar ]
NIF. 2020. The National Innovation Foundation, at: https://nif.org.in/ . Accessed 20 December 2020.
Odhiambo Thomas, Kamp Johan, Kamp Ran. You cannot fix indigenous knowledge. ILEIA Newsletter. 1990; 6 (1):3–5. [ Google Scholar ]
Oguamanam Chidi. Intellectual property in global governance: A development question. London: Routledge; 2013. [ Google Scholar ]
Oguamanam Chidi. Towards a tiered or differentiated approach to protection of traditional knowledge (TK) and traditional cultural expressions (TCEs) in relation to the intellectual property system. The African Journal of Information and Communication. 2019; 2019 (23):1–24. [ Google Scholar ]
Okediji, Ruth. 2018. Traditional knowledge and the public domain. Centre for International Governance Innovation Papers No. 176, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3202976 . Accessed 20 December 2020.
Perroni, Eva. 2017. Five indigenous farming practices enhancing food security. Food Tank (14 August 2017) at https://www.resilience.org/stories/2017-08-14/five-indigenous-farming-practices-enhancing-food-security/ . Accessed 20 December 2020.
Peter J. Jacques, Jacques Jessica Racine. Monocropping cultures into ruin: the loss of food varieties and cultural diversity. Sustainability. 2012; 4 (11):2970–2997. doi: 10.3390/su4112970. [ CrossRef ] [ Google Scholar ]
Pillai, Ramesh. 2015. Linking the Past and the Future: Capturing Knowledge in Malaysia. WIPO Magazine (February 2015), at https://www.wipo.int/wipo_magazine/en/2015/01/article_0005.html . Accessed 15 February 2020.
Ragavan Srividhya. Protection of traditional knowledge. Minnesota Intellectual Property Review. 2001; 2 (2):1. [ Google Scholar ]
Reinhardt Forest L. Bringing the environment down to earth. Harvard Business Review. 1999; 77 (4):149–149. [ PubMed ] [ Google Scholar ]
Reuters. 2017. Canada will pay compensation to Thousands of Indigenous Stolen Children. The Guardian October 6, 2017, at https://www.theguardian.com/world/2017/oct/06/decades-after-government-seizure-of-children-indigenous-canadians-will-receive-compensation . Accessed 15 October 2020.
Robertson Lindsay G. Conquest by law: How the discovery of America dispossessed indigenous peoples of their lands. Oxford: Oxford University Press; 2005. [ Google Scholar ]
Robinson Kwame Porter, Eglash R, Bennett A, Nandakumar S, Robert L. Authente–Kente: Enabling authentication for artisanal economies with deep learning. AI and Society. 2021; 36 (1):369–379. doi: 10.1007/s00146-020-01055-2. [ CrossRef ] [ Google Scholar ]
Sen Saikat, Chakraborty Raja. Revival, modernization and integration of Indian traditional herbal medicine in clinical practice: Importance, challenges and future. Journal of Traditional and Complementary Medicine. 2017; 7 (2):234–244. doi: 10.1016/j.jtcme.2016.05.006. [ PMC free article ] [ PubMed ] [ CrossRef ] [ Google Scholar ]
Sengupta Nirmal. Traditional knowledge in modern India. Berlin: Springer; 2019. [ Google Scholar ]
Shambhu Prasad, Chakrabarty and Debmalya, Sinha. Forthcoming 2021. ‘Traditional knowledge and traditional cultural expressions of indigenous and tribal peoples: The era that was killed and we let die’. In Tribal Justice, ed. Yogesh Pratap Singh, Rita Ray, Suvrashree Panda, Soubhagya Sundar Nanda . Eastern Book Company, Lucknow.
Small Garrick, Sheehan John. The metaphysics of Indigenous ownership: Why Indigenous ownership is incomparable to Western conceptions of property value. In: Small Garrick, Malmgren Rachel M, Simons Robert A., editors. Indigenous peoples and real estate valuation. Boston, MA: Springer; 2008. pp. 103–119. [ Google Scholar ]
Šokčević Šimo. Identity and “Plural Monoculturalism” Filozofska Istraživanja. 2011; 31 (4):735–749. [ Google Scholar ]
Souravi K, Rahul P. Intellectual property rights and threatened medicinal plants the scenario. In: Rajasekharan PE, Wani Shabir Hussain, editors. Conservation and utilization of threatened medicinal plants. Berlin: Springer; 2020. [ Google Scholar ]
Stavenhagen Rodolfo. Building Intercultural Citizenship: A challenge for our times. In: Rajkhowa Subhram, Chakraborty Manik., editors. Indigenous peoples and human rights: The quest for justice. Calcutta: R Cambray; 2009. pp. 1–21. [ Google Scholar ]
Travis Hannibal. Cultural and intellectual property interests of the indigenous peoples of Turkey and Iraq. Texas Wesleyan Law Review. 2008; 15 :415. doi: 10.37419/TWLR.V15.I2.6. [ CrossRef ] [ Google Scholar ]
UNESCO’s International Commission on Education for the Twenty-first Century, at https://unesdoc.unesco.org/ark:/48223/pf0000109590?posInSet=12&queryId=f9897ad1-e31b-4acf-a2d8-e64997ad28ab . Accessed 20 December 2020.
UNHRC. 2017. Universal periodic review—India, New York: UNO, Universal Periodic Review India, at https://www.ohchr.org/EN/HRBodies/UPR/Pages/INIndex.aspx . Accessed 22 December 2020.
Vyasanakere PJ, Sudeesh K, Shylaja BS. Astronomical significance of the Gavi Gangadhareshwara temple in Bangalore. Current Science. 2008; 95 (11):1632–1636. [ Google Scholar ]
Wanzala, Justus. 2017. Kenya works with communities on Genetic Resources and Traditional Knowledge Protection, Intellectual Property Watch February 17, 2017, at. https://www.ip-watch.org/2017/02/15/kenya-works-communities-genetic-resources-traditional-knowledge-protection/ . Accessed 15 October 2020.
Winkelman Michael. Cultural awareness, sensitivity and competence. Peosta: Eddie Bowers Publication; 2005. [ Google Scholar ]
WIPO. 2020. International Patent Classification (IPC), at: https://www.wipo.int/classifications/ipc/en . Accessed 18 August 2020.
World Bank. 2020. 'Indigenous peoples', at https://www.worldbank.org/en/topic/indigenouspeoples . Accessed 15 August 2020.
Yang Tony, Siddique Kadambot H.M., Liu Kui. Cropping systems in agriculture and their impact on soil health—A Review. Global Ecology and Conservation. 2020; 23 (8):e01118. doi: 10.1016/j.gecco.2020.e01118. [ CrossRef ] [ Google Scholar ]
Samatha v State of Andhra Pradesh and Ors (1997) Appeal (Civil) 4601-02
Mabo v Queensland (1992) No 2. HCA 23
American Indian Religious Freedom Act 1980. United States Congress
Protection of Traditional Knowledge and Cultural Expressions Act 2016, Kenya
Geographical Indications of Goods (Registration and Protection) Act, 1999,
Protection of Plant Varieties and Farmer's Rights Act, 2001 , India
The Biological Diversity Act, 2002, India

IMAGES

Case Study
Case study on Neem, Turmeric and Basmati rice
PPT
NEEM PATENTING ISSUES
Case study on Neem, Turmeric and Basmati rice
Neem Has Antibacterial Properties- Case Study Facts About Neem

VIDEO

Summer Workout for fat burning weight loss
10 lines on neem tree in english/essay on neem tree in english/neem ke ped par essay/neem ka ped ess
bhasha bharti class 3 || mpboard all classes Hindi || me hu neem chapter 3 class 3||
Case study of neem Patent
case study neem #pharmacy #neem #casestudy
Case study of Neem & Haldi

COMMENTS

An overview of Neem (Azadirachta indica) and its potential impact on
Published overtime, we can see a diverse set of studies on Neem aimed to test the antioxidant effect and/or to test the boost of the natural defenses of the body. One such study uses leaves and methanol to extract potential compounds from Neem. ... BMJ Case Reports (2013), 10.1136/bcr-2013-200890. Google Scholar. Patel et al., 2016.
The Neem Patent Case
India: The Neem Patent Case. Neem Patent: Protecting the Traditional Knowledge of India. India i.e., 'Bharat', is a country, "which has been nurturing a tradition of civilization over a period of about 5,000 years. India's ancient scriptures consist of the four Veda, 108 Upanishads, 2 epics, Bhagavad-Gita, Brahma sutras, eighteen Puranas ...
Case study on Neem, Turmeric and Basmati rice
Case Study: Neem (Azadirachta indica) There are approximately 14 million neem trees (Azadirachta indica) in India. Access to neem products was very cheap (if not free) and easy to get. It is a tropical evergreen, related to the mahogany, that mainly grows in arid regions of India and Burma and Southwest Asia and West Africa. The neem tree has ...
(PDF) NEEM (AZADIRACHTA INDICA): A MIRACULOUS MEDICINAL ...
Here we have taken the divine tree neem ( Azadirachta indica) which is mainly cultivated in. the Indian subcontinent [2, 3]. It is a multipurpose medicinal tree of family Meliaceae. . Various p ...
(PDF) THE REMARKABLE NEEM TREE: A COMPREHENSIVE REVIEW ...
The neem tree (Azadirachta indica), native to the Indian subcontinent, has long been celebrated for its diverse range of biological and therapeutic properties. ... Controlled studies can provide ...
Exploring the role of Azadirachta indica (neem) and its active
Studies have shown that neem extracts are the potential to scavenge free radicals and reduce ROS-mediated damage to cells. Use of neem in case of diabetes mellitus may have therapeutic importance as it normalizes lipid peroxidation and reduces ROS-mediated cell death. Additionally, neem extracts are anti-inflammatory, which significantly ...
Case Study 04- Neem Trees
Case Study 04- Neem Trees. Part 1: Ethical Decision-Making. Facts of the Situation: Neem is a sacred, indigenous tree to India. Neem has been used for medicinal purposes, food production, toiletries, fuel, and pesticides. Chetan operates a business of neem products and employs 60 people. Tom Johnson is the Director of Oregon Organic Pesticide ...
8 Indigenous Knowledge Rights: Neem Patent Claims
As in Chapters 6 and 7, this chapter seeks to locate knowledge rights in a case study—that of Neem—and outline the terms of conflict between intellectual property rights and knowledge rights of traditional-indigenous peoples. From there I draw larger conclusions about the inability of intellectual property rights to conjoin with knowledge ...
Therapeutics Role of Azadirachta indica (Neem) and Their Active
A clinical study of six weeks was made to check the efficacy of neem extract dental gel with chlorhexidine gluconate (0.2% w/v) mouthwash as positive control and results of the study showed that the dental gel containing neem extract has significantly reduced the plaque index and bacterial count compared to that of the control group .
A Primer to Traditional Knowledge Protection in India: The ...
Case Study: Neem. Neem (Azadirachta indica), a very common tree species of India with medicinal value, Footnote 41 has been the subject of numerous patents. (At least 40 in the US alone and 150 worldwide) All the inventions that relate to neem virtually used public domain traditional knowledge as their basis.
Neem oil poisoning: Case report of an adult with toxic encephalopathy
Neem oil is a vegetable oil obtained from the seed kernels of Neem tree (Azadirachta indica), an evergreen of the tropics and sub-tropics. It is deep yellow in color and has garlic-like odor. It contains active ingredients like azadirachtin, nimbin, picrin, and sialin. Azadirachtin, a complex tetranortriterpenoid, is implicated in causing the ...
Potential of neem extracts as natural insecticide ...
Case Studies in Chemical and Environmental Engineering. Volume 4, December 2021, 100130. ... Studies have shown that neem biopesticides were effective against pests in stored grains like rice, wheat, corn, and legumes as well as in foodstuffs like potato and tomato in India [9, 17]. Neem has an insecticidal effect on insects that suck plant sap ...
PDF An Agricultural Law Research Article
The Neem Tree Patent: International Conflict over the Commodification of Life Emily Marden* INTRODUCTION . Biotechnology] has revolutionized the pace of innovation in the life sciences by allowing scientists efficient means of isolating and altering individual traits. For example, in agriculture, innovators have pro
Traditional Knowledge And Patent Issues: An Overview Of Turmeric
Therefore, the TK that belonged to India was safeguarded in Turmeric case. 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.
'Protection of Traditional Knowledge in India with reference to Neem
The Neem Case… Azadirachta Indica is the botanical name of the neem tree and the tree is referenced in Indian old texts for more than 2000 years ago and has been connected for centuries in
Patent on Neem
The first US patent was obtained by Terumo Corporation in 1983 for its therapeutic preparation from neem bark. In 1985 Robert Larson from (USDA) obtained a patent for his preparation of neem seed extract and the Environmental Protection Agency approved this product for use in US market. In 1988 Robert Larson sold the patent on an extraction ...
(PDF) A brief study on neem (Azarrdirachta indica A.) and its
A brief study on neem (Azarrdirachta indica A.) and its application-A review . Asha Roshan 1 and Navneet Kumar Verma *2. 1 Department of Pharmacognosy, R.K. College of Pharmacy Azamgarh, UP, India .
Lecture 36 (TK and case studies of neem, turmeric and ...
Neem Case - Claim 1 as granted (1994) A method of controlling fungi on plants comprising contacting the fungi with a neem oil formulation containing 0.1 to 10 % of a hydrophobic extracted neem oil which is substantially free of azadirachtin, 0.005 to 5.0% of emulsifying surfactant and 0 to 99% water.
Case Study
Case Study_ Patent on Neem - Free download as Powerpoint Presentation (.ppt / .pptx), PDF File (.pdf), Text File (.txt) or view presentation slides online. Neem case study by chandra
(PDF) A study of neem leaves: Identification of method ...
The current study attempted to aggregate research innovations on Neem through a bibliometric analysis for articles published between 1925 and 2020, using the Web of Science and a validated ...
(PDF) INTELLECTUAL PROPERTY LAW TRADITIONAL KNOWLEDGE ...
This research paper deals with patent issues related to Basmati,Neem, Turmeric, and Golden Rice, it would discuss the issues and provisions related to the same. Discover the world's research 25 ...
A Primer to Traditional Knowledge Protection in India: The Road Ahead
Case Study: Neem. Neem (Azadirachta indica), a very common tree species of India with medicinal value, 41 has been the subject of numerous patents. ... Case Study—Kente Cloth. Africa has housed some of the oldest people that the modern world is aware of. Their life and culture have survived thousands of years amidst challenges.

Seanna's Blog

Leave a Reply Cancel reply

8 Indigenous Knowledge Rights: Neem Patent Claims

Signed in as

Personal account

Institutional access

IP based access

Sign in through your institution

Sign in with a library card

Society Members

Sign in through society site

Sign in using a personal account

Viewing your signed in accounts

Signed in but can't access content

This Feature Is Available To Subscribers Only

A Primer to Traditional Knowledge Protection in India: The Road Ahead

Cite this article

Similar content being viewed by others

Protection of Traditional Knowledge and Expressions of Folklore: Locating India in the Global Framework

Indigenous Peoples in the New Arctic

Introduction to Biorights

Introduction

Crisis in India's Natural Resources: The gift of Neo-Colonialism

Deep Rooted Misconceptions Regarding Traditional Knowledge

Innovations from Traditional Knowledge: Biopiracy

Case Study: Neem

Case Study: Rosy Periwinkle

Laws Protecting Traditional Knowledge

Sui generis Legislation to Combat Biopiracy: Position in India

Sui generis Strategies Developed in India to Protect TK

Traditional Knowledge Digital Library (TKDL)

National Innovation Foundation (NIF)

Proposed Protection Parameters

The Ray of Hope

Case Study—Kente Cloth

The Beneficiaries

Acknowledgements

Author information

Corresponding author

Ethics declarations

Additional information

Rights and permissions

About this article

Share this article

India: Traditional Knowledge And Patent Issues: An Overview Of Turmeric, Basmati, Neem Cases.

Traditional Knowledge Digital Library

Turmeric Patent

Neem Patent

Basmati patent

TKDL as Global IP watch systems

Login to Mondaq.com

Why Register with Mondaq

Your Organisation

Patent on Neem

A Primer to Traditional Knowledge Protection in India: The Road Ahead

Ravneet Kaur

Introduction

Crisis in India's Natural Resources: The gift of Neo-Colonialism

Deep Rooted Misconceptions Regarding Traditional Knowledge

Innovations from Traditional Knowledge: Biopiracy

Case Study: Neem

Case Study: Rosy Periwinkle

Laws Protecting Traditional Knowledge

Sui generis Legislation to Combat Biopiracy: Position in India

Sui generis Strategies Developed in India to Protect TK

Traditional Knowledge Digital Library (TKDL)

National Innovation Foundation (NIF)

Proposed Protection Parameters

The Ray of Hope

Case Study—Kente Cloth

The Beneficiaries

Acknowledgements

Declarations

Contributor Information

IMAGES

VIDEO

COMMENTS