Legal Protection for Traditional Knowledge: Towards a New Law for Indigenous Intellectual Property

by Anindya Bhukta

Overview

Many aboriginal communities in the Global South depend for their livelihoods on the vast supply of bio-resources around them, but multinational corporations (MNCs) are not always ethical in their dealings with these communities. MNCs often pirate and patent communal, traditional knowledge, thereby "acquiring" intellectual property potentially worth hundreds of millions of dollars almost free of cost. Aboriginal communities face steep uphill legal battles in these cases.

Here Anindya Bhukta explores the porous legal relations between traditional knowledge and current intellectual property law. Focusing on aboriginal communities in India, Bhukta explains how India, like other resource-rich countries, has spent millions trying to revoke US-issued patents on knowledge gained from aboriginal communities using existing IPR legislation. He demonstrates that existing IPR laws do not provide full legal protection in such cases - a fact acknowledged by the World Trade Organization when it categorically asked for a sui generis law to be developed for precisely these purposes - and he suggests just such a new law that could offer more robust legal protection for aboriginal communities wishing to capitalize on their own accomplishments. In so doing, Bhukta calls attention to the vital contributions that aboriginal communities make to global development.

Legal Protection for Traditional Knowledgeis a must-read for researchers in economics, development studies, and international law, and especially those with an interest in the intellectual property status of traditional knowledge.

Product Details

ISBN-13:	9781800430662
Publisher:	Emerald Publishing Limited
Publication date:	06/18/2020
Series:	Emerald Points
Pages:	192
Product dimensions:	5.08(w) x 7.80(h) x (d)

About the Author

Anindya Bhukta is an Associate Professor of Economics at Burdwan University, India. He has worked on intellectual property rights issues for over two decades, is editor of the online journal Economy, Polity, Environment, and is the first author to write Bengali dictionaries of economics and the environment.

Table of Contents

Preface xi

1 Introduction 1

1.1 The Prelude 1

1.2 The Problem We Are Facing 7

1.3 Rationale Behind the Study 9

1.4 The Gaps We Found 12

1.5 Our Objectives 13

2 Traditional Knowledge: An Overview 15

2.1 Definition of Traditional Knowledge 15

2.2 Different Dimensions of Traditional Knowledge and Their Uses 17

2.2.1 Traditional Knowledge on Agriculture 18

2.2.2 Traditional Knowledge on Medicine 18

2.2.3 Traditional Cultural Expressions 20

2.3 Economic Importance of Traditional Knowledge 21

2.4 Argument for Protecting Traditional Knowledge 22

2.5 Traditional Knowledge in International Fora 27

2.5.1 International Milestones in Safeguarding Traditional Knowledge 27

2.5.2 The International Union for the Protection of New Varieties of Plants 28

2.5.3 Food and Agriculture Organization 31

2.5.4 World Intellectual Protection Organization WIPO 33

2.5.5 Convention on Biological Diversity 35

2.5.6 World Trade Organization 40

3 Bio-piracy 45

3.1 Definition of Bio-piracy 45

3.2 Economic Impacts of Bio-piracy 46

3.2.1 A Threat to Food Security 50

3.2.2 A Threat to Health Security 54

3.3 Case Histories of Bio-piracy in India 57

3.3.1 The Case of Turmeric 57

3.3 2 The Case of Neem 58

3.4 Case Histories of Bio-piracy in Other Countries 59

3.4.1 The Case of Ayahuasca 59

3.4.2 The Case of Enola Bean 61

3.5 Access and Benefit Sharing Mechanism 62

3.5.1 Bonn Guidelines 64

3.5.2 The Nagoya Protocol 66

3.6 Examples of Access and Benefit Sharing over the Countries 68

3.6.1 Examples of Access and Benefit Sharing in India 69

3.6.2 Examples of ABS in Other Countries 70

4 Protecting Traditional Knowledge: Ways and Means 73

4.1 What Is Intellectual Property? 73

4.2 Protecting Intellectual Property Right 73

4.3 Alternative Ways to Protect Traditional Knowledge 74

4.3.1 Positive protection 75

4.3.2 Defensive protection 76

4.4 Positive Protection via Intellectual Property Rights Laws 78

4.4.1 Patent 78

4.4.2 Plant Patent 79

4.4.3 Geographical Indication 80

4.4.4 Copyright 81

4.4.5 Trademark 84

4.4.6 Trade Secrets 85

4.5 Defensive Protection 87

4.5.1 Documentation of Codified Traditional Knowledge in India 87

4.5.2 Traditional Knowledge Databases of Other Countries 92

4.5.3 Documentation of Non-codified Traditional Knowledge: Initiatives in Different Countries 94

5 Initiatives to Protect Traditional Knowledge 97

5.1 Introduction 97

5.2 Initiatives in India 98

5.2.1 Patent Act of India 98

5.2.2 Geographical Indications of Goods (Registration and Protection) Act, 1999 106

5.2.3 Copyright Act, 1957 107

5.2.4 Biodiversity Act, 2002 108

5.2.5 Protection of Plant Varieties and Farmer's Rights Act, 2001 (PPVRA, 2001) 111

5.2.6 The Seeds Bill 116

5.3 Initiatives in Other Countries 118

5.3.1 The Philippines 118

5.3.2 Panama 120

5.4.1 Africa 122

6 How Fit Are the Existing Intellectual Property Rights Laws in Protecting Traditional Knowledge? 125

6.1 Introduction 126

6.2 Limitations of Patent 126

6.3 Limitations of Plant Potent 127

6.4 Limitations of Copyright Act 128

6.5 Limitations of Geographical Indication Act 133

6.6 Limitations of Trademark 135

6.7 Limitations of Trade Secrets 136

7 Towards a New Law 139

7.1 Introduction 139

7.2 The Model Law 142

Notes 149

References 155

Index 167