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.