Buildingcapacityatcommunitylevelforprotectingtheintellectualpropertyrightsingeneticresourcesa

1、building capacity at community level for protecting the intellectual property rights in genetic resources and associated knowledge systems and cultural expressions paper presented at the roundtable on building community capacity: practical initiatives on intellectual property and traditional cultura

2、l expressions, traditional knowledge and genetic resources, december 10-12, 2007, wipo, geneva anil k gupta k.l.chair professor of entrepreneurship, iima and executive vice chair, national innovation foundation, ahmedabad, india and arul george scaria csir-nif fellow, national innovation foundation,

3、 ahmedabad, indiahoney bee network began the struggle for protecting knowledge and resource rights of creative people almost two decades ago. neither cbd was there, nor trips at that time. it appeared obvious to us that for a development process to become dignified, we should build upon a resource i

4、n which poor people are rich. the tradition of protecting knowledge rights or drawing boundary around them exists in almost every society. this is not a post-industrial revolution development, as many studies on intellectual property rights protection suggest. every ancient society had a tradition o

5、f some knowledge experts or the other using the principle of trade secret to withhold disclosure. as a consequence, a great deal of traditional knowledge has been lost because it was not transferred to the succeeding generations. the opportunities in the domestic and international markets are not be

6、ing harnessed by the communities because they lack the capacity, tools, institutional strength and / or other legal and financial resources. the communities are not able to track the contemporary utilisation of their knowledge without any attribution or reciprocity by the third party who have not ev

7、en taken their consent. much of the publications by the academics bring knowledge of individuals or communities into public domain without explaining the implications of the same to the knowledge providers. the generosity of the knowledge providers has become therefore a reason for their continued p

8、overty and deprivation. this is neither fair nor just. it is obviously not sustainable.the capacity building at community level requires appreciation of two basic conceptual issues (a) the barriers to the entry and exit of the knowledge holders in various markets and non-market exchange platforms, (

9、b) lowering and eventually underwriting as far as possible the ex-ante and ex-post transaction costs of the knowledge holders as well as other stakeholders can add value to the knowledge, generate benefits and share them in an equitable manner.the ex-ante transaction costs have four components: (i)

10、searching information (ii) finding supplier, (iii) negotiating contract and (iv) drawing up the contract. the ex-post transaction costs include (i) monitoring and compliance, (ii) side payments, i.e., concessions which can make the contract enforeceable through modified inducements/discounts, (iii)

11、resolution of conflicts if any and (iv) redrawing the contract if none of the above help in going ahead with the contract. majority of the traditional knowledge holders and conservators of genetic resources have to be empowered to do following functions. against each function, we also provide mechan

12、isms through which the needs can be met. it is obvious that to make ip based mechanisms accessible and affordable, lot of non-ip based mechanisms will have to be put in the portfolio of incentives for various actors including the knowledge holders. a. searching information: how do traditional knowle

13、dge holders know as to what applications their knowledge has for which somebody (whom they dont know and who they cannot easily find out) is willing to enter into a contract, generate benefits and share them. the access to multimedia, multi language databases may make it possible for people to learn

14、 from each other and also with other stakeholders. the transaction costs of the potential investors, entrepreneurs, and r&d players in seeking knowledge about the local communities with scientific names of the plants is enormously high. in the absence of scientific names (which can only be ascri

15、bed after taxonomic authentication), the modern scientific institutions, drug, dye, nutraceutical companies may not be able to make offers of possible cooperation. local communities and individual innovators also need to track the usurpation of their knowledge by unauthorized ip seekers. they will h

16、ave to have access and the ability to scan the patent applications around the world, interpret and then inform themselves and the patent offices about any suspected violation. otherwise they will remain dependent on the benevolence of the state or other civil society organization. the bringing of th

17、eir knowledge into public domain without their authorization by national and international scholars and institutions has been the single most important instrument of exploitation and unfair treatment of their knowledge rights (no research council in developing world or developed countries has yet ch

18、aracterized such a behaviour on the part of the scholars as inadmissible and unethical conduct). in the absence of such a reform as mentioned later in the paper, lawful and rightful disclosure is the only option. b. finding suppliers: having found the sources of information, one has to find provider

19、s of information, services and other support systems. for a local healer or conservator of genetic resources to take a sample of their material to a public or private sector r&d lab to get it analysed for potential negotiations is almost well neigh impossible. it is important to create capacity

20、so that they can deal with the knowledge providing, processing and managing institutions at their own terms.c. having found a supplier or potential user of their knowledge, they have to negotiate a contract and use a combination of ip instruments as a basis for negotiation. having filed patent appli

21、cations for grassroots innovators, we know how much of empowerment one has to do to be able to provide simple access to existing instruments. the tension between individual and collective knowledge, organizing proper representation and nomination for negotiation and having internal as well as extern

22、al negotiations are other dimensions that come into play. d. drawing up the contract: to be able to exercise prior informed consent, and then arrive at reasonable terms of agreement which are acceptable within the community and as well as to the negotiating partner involves tremendous complexity, co

23、st and resources. without meeting these costs and enabling the communities, the contracts may remain asymmetrical and sometimes difficult to enforce. e. having entered into a contract, keeping track of the licensing and sub-licensing of technologies by the primary contractor becomes an obligation of

24、 the communities. it is possible that the contracting party, in this case, a company or a state agency, may not work the licensed ip from the communities directly. they may sub-license it to a third party who may generate revenues which may or may not be shared. it is important to keep track of such

25、 a process. the enforcement of the conditions therefore requires tremendously important skills and capacities have to be built for acquiring and using those skills. f. side payment: it is not always possible for communities to wait for benefits to accrue and share. upfront benefit sharing may be nec

26、essary. such concessions may have to be negotiated. g. conflict management: during the benefit sharing process, conflicts may arise. such situations require capacity building of the community to settle the disputes in an efficient manner, without damaging their interests and welfare. hence the capac

27、ity of the community needs to be enhanced in this front also. in this paper, we have summarized various proposals made in the last several years on the issue of intellectual property rights protection for local communities as well as grassroots innovators and individual traditional knowledge experts

28、. having used the existing ip system for protection of the rights, we do realise that some scope exists within the existing system. however, it is not enough. there is a need for a considerable reform in the international and national ip system so as to provide low transaction costs protection to th

29、e traditional knowledge holders and conservators of genetic resources. summary of the past proposals for ip reformrole of intellectual property rights in the protection of genetic resources, traditional knowledge and traditional cultural expressions/ expressions of folkloreintellectual property righ

30、ts can play a crucial role in the protection of genetic resources, traditional knowledge and traditional cultural expressions/ expressions of folklore. we strongly believe that it was the communities and individuals who have long conserved biodiversity and they have done so not entirely on the basis

31、 of utilitarian logic. but the biodiversity cannot be conserved by keeping people poor for long, even if historically biodiversity survived largely under such conditions. gupta (2002) the honey bee network is also of the view that sustainable and dynamic conservation would mean conservation in a man

32、ner that the knowledge grows through constant experimentation and innovation rather than just being maintained as a fossilized form of historical knowledge, produced at one point in time and carried forward by succeeding generations. gupta (2000) hence we recommend that the incentives for the conser

33、vation and sustainable use of biodiversity will have to be sufficiently flexible and diverse so as to provide for the growth and development of the traditional as well as the contemporary knowledge that is held by individuals as well as groups. same or similar incentive structures or philosophical a

34、ssumptions cannot provide adequate motivation to conserve what exists and restore what is lacking. it is at this point the relevance of intellectual property rights exists. intellectual property rights can act as a tool for driving towards economic prosperity of those who conserve and protect geneti

35、c resources and associated knowledge. an intellectual property right is basically a social contract between the society and the inventor, wherein the society grants certain exclusive rights to the creator, in return for disclosure of knowledge/ information. the relevance of intellectual property rig

36、hts increases at a point where we realize that most of the existing governments are not in a position to pay for protecting the biodiversity or for the creating valuable innovations. we need to make the private sector or cooperative sector interested in investing money in these efforts and for that

37、iprs can play a crucial role in this matter. there may be many who view that iprs is a tool of capitalists for exploitation of the poor. but our consistent view is that merely by citing the probability of accrual of benefits to large corporations and economically wealthy individuals, we cannot deny

38、an important tool useful for the empowerment of the economically poor, but intellectually rich people. gupta (2007) ensure lawful and rightful acquisition of knowledge/resources. (the need for pic/ benefit sharing)from the inception, honey bee network has been arguing for mechanisms that can ensure

39、prior informed consent of the knowledge holders and also benefit sharing arising from the use of such knowledge/ resources among the knowledge holders. we believe only in the lawful and rightful acquisition of knowledge/ resources. gupta (2007, 2002) there are differences between these two and it is

40、 important to recogonise them in any capacity building exercise. lawful acquisition refers to acquisition of knowledge/ resources with the prior informed consent of the knowledge holders. but in most of the countries, prior informed consent from the knowledge holders has not been made mandatory even

41、 today. when a country does not have any laws that make it mandatory to obtain prior informed consent from the concerned people, then acquiring any material without pic will not be considered as unlawful in the eyes of law. this might not be against convention on biological diversity also, as art 15

42、.5 speaks only about the prior informed consent of parties to the convention i.e the contracting nation states and not that of the knowledge or resource providing communities. see art. 15. 5 of cbd- “access to genetic resources shall be subject to the prior informed consent of the contracting party

43、providing such resources, unless otherwise determined by that party” the only exception might be article 8(j), which speaks about the requirement of approval and involvement of local communities and individuals for ensuring the equitable sharing of benefits. see art. 8 of cbd- each contracting party

44、 shall, as far as possible and as appropriate:. (j) subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity

45、and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; but the convention has left it to national

46、legislations and now it depends totally upon the legislative environment and local institutional capacity in each country. for example, take the case of india. india has not implemented the concept of prior informed consent in its true spirit so far. if we are to look at the national biodiversity ac

47、t, which was drafted to fulfill indias commitment towards convention on biological diversity to protect the genetic resources and traditional knowledge, we can observe a restriction that no person shall obtain any biological resource occurring in india or knowledge associated thereto for research or

48、 for commercial utilization or for bio survey and bio utilization, without prior approval of the national biodiversity authority. see sec. 3 (1) of the national biodiversity act 2002. “no person referred to in sub section (2) shall, without previous approval of the national biodiversity authority, o

49、btain any biological resource occurring in india or knowledge associated thereto for research or for commercial utilization or for bio survey and bio utilization.” it says that the national biodiversity authority can give permission for the above mentioned activities, only when it is satisfied that

50、conditions regarding benefit sharing have been fulfilled. see sec. 21.(1)- the national biodiversity authority shall while granting approvals under section 19 or section 20 ensure that the terms and conditions subject to which approval is granted secures equitable sharing of benefits arising out of

51、the use of accessed biological resources, their by products, innovations and practices associated with their use and applications and knowledge relating thereto in accordance with mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benef

52、it claimers. but the national biodiversity act is silent about the prior informed consent from the concerned people. the only aspect it mentions is benefit sharing on mutually agreed terms. whether the term mutually agreed terms in this context can be extended to embody the concept of prior informed

53、 consent of the knowledge holders is debatable. in the case of benefit sharing also, the present indian position is disappointing. if india wishes to fulfill the true objectives article 8(j) of cbd, india has to ensure the approval and involvement of local communities and individuals. the benefit sh

54、aring provisions has been diluted in the present indian legislation by making it applicable only to non-citizens. the indian companies and indian citizens residing in india does not come within the purview of these provisions. see sec. 3 (2) of the national biodiversity act 2002 . the persons who sh

55、all be required to take the approval of the national biodiversity authority under sub section (1) are the following, namely:(a) a person who is not a citizen of india;(b) a citizen of india, who is a non resident as defined in clause (30) of section 2 of the income tax act, 196 1;(c) a body corporat

56、e, association or organization-(i) not incorporated or registered in india; or(ii) incorporated or registered in india under any law for the time being in force which has any non indian participation in its share capital or management. we had time and again strongly expressed our disagreement with t

57、his position, as for the exploited it hardly matters whether the exploitation is done by an indian company or a multi national company. we have tried to represent this issue before various authorities and so far no positive response has come. as seen from the example of india, in the present situati

58、on, the acquisition of knowledge/ resources without any prior informed consent from the knowledge holders may not be considered as unlawful. it is at this juncture, the concept of rightful acquisition gains importance. rightful acquisition involves moral as well as ethical issues in access. it ensur

59、es that even in cases wherein prior informed consent is not legally required, it has to be obtained from the knowledge holders before using any such knowledge or resources and an equitable sharing of benefit arising out of such use has to be ensured. for instance, even if a local community has not asked for any price for sharing the material or the knowledge about it, a company or an individual is