56 65 Sagari R Ramdas information. These regimes grant exclusive proprietary rights over an intellectual product to an individual or company to exploit an invention commercially for a certain period. Knowledge and associated genetic resources are seen as tradeable commodities, and access and benefits are mediated by the market. This commoditisation of knowledge and biodiversity is utterly antithetical to indigenous and pastoralist worldviews. Moreover, the IPR framework cannot be neatly applied to protect biological resources and traditional knowledge because: • it is impossible to identify an individual inventor; • traditional knowledge often cannot be attributed to a particular geographical location; • it is not always possible to demonstrate the required criteria of ‘novelty’ and ‘inventive step’; and • the concept of exclusive ownership of plants and knowledge is alien to many cultures. Recent examples illustrate that states use ABS legislation to facilitate access by corporations to the genetic resources and knowledge of communities, as these are the raw material for the multi-million dollar international bio-tech industry (Kalpavriksh, GRAIN and PANOS South Asia, 2010). The benefits will essentially be profits flowing into the coffers of industry, with some (if any) monetary ‘benefits’ to be given to the community knowledge holders. The Government of India’s 11th five-year research plan reaffirms its commitment to the IPR regime. Genetic resources and bio-prospecting are key research areas of the Indian Council of Agricultural Research (ICAR) in animal science, driven by the search for ‘novel 1 genes’ in indigenous breeds, which can be used to create new breeds, which are then commercialised and sold to farmers. In the process, IPRs/patents on genes will be obtained by scientists in research institutions and private companies. Within the Nagoya Protocol, the space for communities to exercise their voice, reject the IPR regime and establish their own worldview lies in Articles 6, 7 and 12. Articles 6 and 7 talk about the Prior Informed Consent (PIC) of the community, which has to be obtained before anyone can access traditional knowledge or genetic resources held by communities.1 Article 12 speaks of how states shall respect the indigenous and local communities’ customary laws, community protocols and procedures pertaining to traditional knowledge associated with genetic resources. The communities can use PIC, community protocols and customary laws to protect their knowledge from the IPR regimes and bio-piracy. However, all these provisions are subject to domestic legislation. None of India’s key legislations concerned with the ABS system – Protection of Plant Varieties and Farmers’ Rights Act (2001) and the Biological Diversity Act (2002) – require prior informed consent (PIC) of the concerned communities, nor have a mandate or provision for ‘community protocols’. Only the PIC of the State, represented by the National Biodiversity Authority (NBA), is required. 2 It is assumed that the interests of the State equate to the interests of the people. Increasingly, however, the State is using its powers to defend the interests of corporations and big business, bartering away the rights of communities (Kalpavriksh, GRAIN and PANOS South Asia, 2010). Communities must instead turn to other The PIC component of the Nagoya Protocol flows from article 8(j) of the CBD, wherein parties shall, subject to national legislation, commit to: respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities, and promote their wider application with approval and involvement of the holders of such knowledge, innovations and practices, and encourage the equitable sharing of benefits arising from the utilisation of such knowledge, innovations, and practices. 2 Under India’s Biodiversity Act, even communities who are the knowledge-holders have to apply to the Biodiversity Authority to establish their claim to benefits.

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