Rewarding Conservation of bio genetic resources-WIPO final paper

Rewarding Conservation of Biological and Genetic Resources and Associated Traditional Knowledge and Contemporary Grassroots Creativity Anil K Gupta W.P.No.2003-01-06 January 2003 The main objective of the working paper series of the IIMA is to help faculty members to test our their research findings at the pre- INDIAN INSTIUTE OF MANAGEMENT AHMEDABAD 380 015 INDIA Acknowledgement I have earned the gratitude of several institutions and individuals while pursuing this study The enormous patience by colleagues at WIPO has to be appreciated at the outset It is true that the goals of this study did get transformed during this period and that required some extra effort However, the incorporation of many more issues and perspectives may have added to the relevance of this study Readers will have to judge whether justice has been done to various viewpoints and perspectives adequately The objectivity in social sciences is suspect Only thing that a researcher can honestly is to make one's biases explicit Readers would find that I am quite biased in favour of defending the intellectual property rights of creative individuals and communities The only resource in which poor people are rich is their knowledge Fourteen years ago when Honey Bee Network started, it became obvious to us that the IPRs of the peasants had to be protected This sentiment has been expressed for last thirteen years on every page of Honey Bee newsletter And this was much before TRIPS or CBD had created popular consciousness on this subject I am aware of lot of critics who believe that IPRs are instruments of control and domination by large corporations That might have been the case However, I am convinced that with suitable improvements and substantial changes, IPR system can serve the interests of creative people all around the world I also believe that the Linux philosophy does provide a fruitful way ahead If people use a particular knowledge for their own livelihood or survival, the inventor should not object But if somebody tries to commercialize an innovation, then licensing must be obligatory Just as we have researchers exemption in Plant Variety Acts, we may have to have survival exemption in the patent laws Mr.Shakeel Bhatti, Mr Richard Owens, Dr.G.Jaiya, at WIPO deserve particular thanks for considerable support during this study Comments and suggestions from Shakeel were most valuable and in many cases have added enormous value to the quality of the study There is no doubt that without his constant prodding and helpful chidings, this study would not have been completed I must thank large number of creative people and professionals, community members and elders I met in Mali, Nigeria and India The senior researchers at University of California, Davis were also very helpful I plan to send a copy of this study to all the individuals who collaborated in this research and request that a summary in local language be sent to the community members I hope when they read this study, they would find their concerns faithfully articulated and interests earnestly defended I have drawn upon considerable literature review done for a study sponsored by Ministry of Environment and Forestry, Government of India, to develop a framework for sue generis system for protection of traditional knowledge relating to biodiversity and genetic resources Nigeria Dr Morris Iwu, the founder of Bio Resources Development and Conservation Programme provided enormous help in all the logistics for pursuing study of his very innovative experiment in benefit sharing I must also express my thanks to Prof Wambebe, Mr.Cosmos Obalor, Prof.Komba, Chief Dr.Omo Tosho, Mr.Kent Nnadozi, healers Mr.Alaneme Duru, Mrs.Osebi Lillian, healer Mrs.Azijah, Mr.Letusogu, farmers Mr.David Dike, Mr.Johnson Lereneous and various members of Umowere village In addition, Katy Moran and Stephen King of Shaman Pharmaceuticals and Dr.Bankole Sodipo deserve appreciation for providing very useful insights and materials Mali The case on accessing gene Xa21 became possible through extensive help of Dr Pamela Ronald, university of California, Davis who had set up the first voluntary benefit sharing fund viz Genetic Resource Recognition Fund (GRRF) She helped me meet with different senior researchers dealing with gene bank of UC Davis, as well as others who influenced this process Most notable was Prof Stephen Brush who has written extensively on the subject He had helped Dr Pamela in setting up the fund They tried to persuade the university authorities to make contribution to GRRF by researchers using third world germplasm institutionalised That failed to work is a different mater but it was not because they did not try Prof Kevin M Smith, Vice Chancellor (Research) at UC Davis was very generous with his time and arranged meetings with several other colleagues in his office It is a different mater that I failed in persuading him to at least initiate intercampus dialogue on this praiseworthy model of benefit sharing I must thank Prof Coulsett, an eminent wheat breeder, Dr Charles Ricks and several other scientists at UC Davis who helped in getting information and insights for the study The wild rice from which the gene in question was taken was obtained from Mali I must thank Dr Bino Teme, Scientific Director, Institute of Economic Research (IER), who is in charge of agricultural research in Mali, Dr Teme and Mr Dond Kone, Farming Systems Research Team leader at the Niono Research Center of IER The stay and interaction with local researchers was facilitated largely through the hospitality of Dr M Diawara heading a Centre for Indigenous Knowledge in Mali Dr Magassa helped in understanding the larger historical context in which knowledge systems from different parts of Mali evolved and interacted to generate niches of various kinds I must also thank Mrs Aisse Toure, and many other participants in the local seminar that I presented about the objectives of the study and its possible implications for international policy Dr M K Nidia Ye, Soil Scientist, and Mr Ydounbia, Agronomist, provided additional information about Oryza longistaminam and deserve my thanks Mr S Sala, a weed scientist, provided valuable insight about use of this wild rice as a food in the past though it is considered a weed at present I also met many farmers such as Mr Okesamaki Geneva Aia Ho, Ms Aminata and her grand daughter Ms Geneba Dialli, Ms A Coulabally, and farmers of Sasrakalla, Nanco, Niano, Senawal, Musawere villages, and express thanks for their kindness and patience with my questions As I mentioned in the case, I made sure that in every village, the purpose of study was disclosed and the respondents were encouraged to ask questions about myself, my work, background, study and my life in general It was very interesting to learn many things about cross-cultural perspectives through such exchanges Dr Gary Toenniessen, Director, Food Security, Rockefeller Foundation deserves thanks for answering several of my questions about the responsibility of Rockefeller Foundation in the matter India Dr Pushpangadan, Director, National Botanical Research Institute, Lucknow deserves my most grateful thanks for sharing many moments of anguish and anxiety that he had to go through while pursuing this unique model of benefit sharing with local Kani tribal community His deep insights about various technical as well as social aspects of developing this model will need separate treatment to justice But I have drawn upon only the essential elements of the story here I am also thankful to Ms Anuradha who had done an earlier case study on the subject for sharing her work Dr Rajashekaran at TBGRI who collaborated with Dr Pushpangadan was very helpful in sharing his side of the story as well as in organizing logistics for field visit I thank colleagues at Arya Vaidya Shala, Vivekanand Research Centre, State Forest Department and TBGRI including its present Director, who all were very helpful in this study The warm understanding and interactions with Mai Ian Kani, and Eachen Kani and other members of their community was one of the high point of the study Discussions with the members of Kerala Kani Samudaya Kshema Trust and residents of Kallar Mathammodhu settlement were very helpful I also appreciate the excellent research assistance from MrPradeep Singh in this study I am grateful to Dr R A Mashelkar, Director General, CSIR and also Chairperson, National Innovation Foundation, for sharing a very valuable communication from USPTO with me apart from many other insights in the matter Inspirations from him have helped in sustaining the work in Honey Bee network, and making dream of National Innovation Foundation come true I must also thank my colleagues Ms Riya Sinha, Mr Kirit Patel, Prof Vijaya Sherry Chand, Mr.Shailesh Shukla, Ms.Jyoti Capoor, Mr.Dilip Koradia, Mr.Vijay Pratap Singh, and many others for helpful comments at various stage of the study and evolution of the ideas presented in this study I have earned the gratitude of many others while pursuing this study My secretary Mr.Baskaran had to handle hundreds of mails on the subject, and organize every detail of travel and other aspects of the internal logistics, and so many other things all, at once and that too without any mistake I cannot imagine completing this study without his help In addition my colleagues Mr R P S Yadav, Mr.Bala Mudaliar, Ms.Nisha Antony, Mr.Unnikrishnan, Ms.Kajal, and Mr.Devshibhai and several others unnamed ones deserve thanks I am grateful to Prof J L Sana, then Director and Prof Bakul Dholakia, present Director, IIMA for excellent institutional support I also thank my colleagues in SRISTI, GIAN and National Innovation Foundation for making possible every thing that Honey Bee Network has aspired for and which I proudly recall in this study Finally, I must thank my wife Sadhana who kept patience with my long hours at work and never once complained in deference to the claims of those who have shared their knowledge with us and but are still to get their due Responsibility as usual, for any inadequacy in the study remains entirely mine and I am alone -responsible for any suggestions, interpretations of ideas, and imputations made to various colleagues cited or not cited in the study I hope that farmers, tribals and other colleagues in Nigeria, Mali and Kerala, India will feel that their faith in me when they shared their insights with me, has been adequately respected while pursuing this study and drawing various inferences Anil K Gupta Abstract Rewarding conservation of biological and genetic resources and associated traditional knowledge and contemporary grassroots creativity Anil K Gupta The traditions of creativity, conservation and innovation exist in various developing countries along side the continuation of obsolete or inefficient technologies and resource use practices At any point of time, one would notice certain resource use practices continuing in almost the same form with very little change for more than a millennium, few hundred years or few decades However, such a situation coexists simultaneously with the spurts of contemporary creativity using traditional biological and genetic resources This creativity manifests in the traditional ways of using an existing resource with a new purpose in mind or in a modern way (that is using modern techniques or tools) for meeting a contemporary need There has been a widespread concern that erosion of traditional knowledge is as serious a problem as erosion of biological and genetic diversity While there are many reasons for this erosion such as expanding physical and urban infrastructure, increasing incorporation in market economies, weakening link between grand parent and grand children generation, higher emigration of youth from rural areas, faster diffusion of modem crop varieties (largely developed by public sector for public domain use during green revolution), diffusion of few biological species under monoculture in forests, fisheries, and other sectors, and reduced control of local communities on their own resources Indifference of public policy makers in various countries towards the positive aspects of certain Traditional Knowledge Systems (TKS) including community institutions for conservation, exchange and augmentation of biological diversity have also contributed to this erosion It is ironic that many countries complain about unfair treatment of TK and genetic resources in the international markets (and rightly so) but take very few steps to stop similar exploitation in domestic markets In addition to these factors one factor, which contributes significantly, though not entirely is the lack of adequate mix of incentives for conservation of biological genetic resources and their sustainable utilization and augmentation These incentives could be material or non-material, targeted at individual, groups or communities It is my submission that a portfolio of incentives will need to be evolved, suited to specific situations and conditions However, in this volume we restrict to the role of one specific set of incentives dealing with different kinds of intellectual property aimed at protecting the interests of and innovations by, individuals and or communities While evaluating the scope of existing intellectual property instruments I will also speculate on the modifications of these instruments as well as generation of new instruments and mechanisms to meet the goal of conservation, sustainable utilization, augmentation and fair and just share of benefits among different stakeholders Rewarding conservation of biological and genetic resources and associated traditional knowledge and contemporary grassroots creativity1 Anil K Gupta2 The traditions of creativity, conservation and innovation exist in various developing countries along side the continuation of obsolete or inefficient technologies and resource use practices At any point of time, one would notice certain resource use practices continuing in almost the same form with very little change for more than a millennium, few hundred years or few decades However, such a situation coexists simultaneously with the spurts of contemporary creativity using traditional biological and genetic resources This creativity manifests in the traditional ways of using an existing resource with a new purpose in mind or in a modern way (that is using modern techniques or tools) for meeting a contemporary need There has been a widespread concern that erosion of traditional knowledge is as serious a problem as erosion of biological and genetic diversity While there are many reasons for this erosion such as expanding physical and urban infrastructure, increasing incorporation in market economies, weakening link between grand parent and grand children generation, higher emigration of youth from rural areas, faster diffusion of modem crop varieties (largely developed by public sector for public domain use during green revolution), diffusion of few biological species under monoculture in forests, fisheries, and other sectors, and reduced control of local communities on their own resources Indifference of public policy makers in various countries towards the positive aspects of certain Traditional Knowledge Systems (TKS) including community institutions for conservation, exchange and augmentation of biological diversity have also contributed to this erosion It is ironic that many countries complain about unfair treatment of TK and genetic resources in the international markets (and rightly so) but take very few steps to stop similar exploitation in domestic markets In addition to these factors one factor, which contributes significantly, though not entirely is the lack of adequate mix of incentives for conservation of biological genetic resources and their sustainable utilization and augmentation These incentives could be material or non-material, targeted at individual, groups or communities It is my submission that a portfolio of incentives will need to be evolved, suited to specific situations and conditions However, in this volume we restrict to the role of one specific set of incentives dealing with different kinds of intellectual property aimed at protecting the interests of and innovations by, individuals and or communities While evaluating the scope of existing intellectual property instruments I will also speculate on the modifications of these instruments as well as generation of new instruments and mechanisms to meet the goal of conservation, sustainable utilization, augmentation and fair and just share of benefits among different stakeholders This paper draws upon an extensive literature review by the author on the subject pursued for a study for Ministry of Environment and Forestry, Government Of India, to develop a framework for site generis system for protection of Traditional Knowledge related to biodiversity and genetic resources Responsibility for the views expressed however, rests with the author and no organization with which I am related or which has sponsored this study including WIPO and UNEP, bears any responsibility Chair Professor of Entrepreneurs hip, Indian Institute of Management, Ahmedabad, and Coordinator, SRISTI and Editor, Honey Bee newsletter, and Executive Vice Chair, National Innovation Foundation, Department of Science and Technology, Government of India, Ahmedabad anilg@sristi.org www.sristi.org www.gian.org www.gian.org www.nifindia.org Fax 91 79 6307341 Organization of Paper: In part I of this paper I provide an overview of the context in which the benefit sharing has been tried in three specific cases involving herbal medicine and genetic resources In section I of Part I, I provide the conceptual overview of the role of Intellectual property with in the context of social capital I then look at the conceptual basis of traditional knowledge produced through intersection of private, common and public domain of knowledge production, and reproduction in conjunction with local biological diversity and genetic resources I review in Section two, the recent discussion on the access and benefit sharing at intergovernmental panel under WIPO, international undertaking on plant genetic resources adopted in June end at FAO and Convention on Biological Diversity These provide the framework for discussions on access on benefit sharing to be pursued under various fora In Section III, Literature review is presented on the way traditional knowledge and benefit sharing issues have been addressed in different cultural contexts In section iv, I look at the issues arising in the context of fair access and just sharing of benefits among different stakeholders In Part III present the three case studies First deals with traditional knowledge of Kani tribe in Kerala leading to the development of a commercial drug The use of local plant was scouted by Scientists of All India Coordinated Research Project on Ethnobotany and later converted into a product, licensed to an Ayurvedic drug company by Tropical Botanical Garden Research Institute (TBGRI), and benefits were shared with Tribal Informants and community through creation of a Trust fund Second case involves setting up of a trust fund to access the knowledge of local communities and traditional medical practitioners in Nigeria through Biodiversity Development and Conservation Program (BDCP), a Nigerian international voluntary initiative and a US company to share benefits Third case relates to cloning and licensing of a gene for disease resistance obtained from a wild rice variety found in Mali and conserved by a landless community known as Bela originating from Timbuktu region of Mali The gene was cloned by a scientist of University of California, Davis and licensed to two companies for creating a voluntary Genetic Resource Recognition Fund to share benefits with the students from gene donating and conserving countries In Part III the lessons from each case are drawn along with the suggestions for future research and policy change Part One: Section Access To Biological And Genetic Resources and associated Traditional Knowledge and sharing of Benefits 1.1 FAO Undertaking International Treaty on Plant Genetic Resources for Food and Agriculture, adopted by the FAO Conference on November 2001 provides a framework for guiding the global exchange on the subject The traditional knowledge about the genetic resources received less attention in the final text The preamble of the final text affirmed the farmer's rights to save, use and exchange Plant Genetic Resources for Food and Agriculture (PGRFA) consistent with the article and 10 of the undertaking dealing with the farmers' rights' On the issue of intellectual property rights dealt with in article 12.3(d), there was a considerable tension The source of debate was the issue of patentability of components of genetic resources, which many developing countries contested The logic that germplasm was not same as the genes constituting the germplasm was at the heart of debate The farmers' rights were considered as measures subject to national laws The states sovereign rights over PGRFA were recognized The final text underlined the need for contracting parties to provide access to the genetic resources in their territories for research, breeding and training purposes excluding chemical, pharmaceutical and other food/feed industrial uses It was to be done expeditiously and free of charge (minimum charges to cover the costs may however, be charged if necessary), with passport data available at the discretion of the developer as in the PGRFA under development; in consistence with international agreements and national laws for access to PGRFA It was agreed that recipient will not obtain any IPRs on the genetic resources in the form in which these were received (Art 12.3(d)) On the issue of sharing benefits arising from the commercialisation of the PGRFA through public and private sector partners, it was agreed in the final text to include an obligatory requirement in the standard MTA (Material Transfer Agreement), that a recipient who commercialises a product incorporating material accessed under the Undertaking, shall pay to the financial mechanism referred in article 19.3f, an equitable share of benefits arising from commercialisation of that product, except, whenever such a product is available without restriction to others for further research and breeding, in which case the recipient who commercialises shall be encouraged to make such payment' It has also been decided that the governing body shall determine technique available for commercial practices, ‘the level, form and manner of payment, with the possibility of establishing different levels of payment for various categories of recipients; exempting the small farmers in developing countries from such payments ’ It was also recognized that modality of the sharing of voluntary benefit from food processing industry would also be explored After seven years of the negotiations of IU the issues of patenting of genetic material and whether genetic parts of the components are also defined as resources accessed under the multilateral system still elude consensus We will not go into the merits of the issue here except to suggest that agreement on mandatory benefit sharing provides a constructive framework for considering the future opportunities emerging through exchange of such materials through bilateral or multilateral systems Many viewed the technology transfer and knowledge exchange as a more important benefit for the developing countries than just the royalties reflecting the spirit of the new consensus However, others felt otherwise Many NGOs had felt dissatisfied with the final consensus that has been reached because they felt that OECD countries have retained their right of IPRs protection over crop seeds and their genes, as has been the practice so far Many of these issues will be revisited in the world food summit after five years That would be the time actually to evaluate whether the provision of intellectual property rights have improved or impeded the food security in various parts of the world through presence or absence of incentives for private capital to be mobilized for adding value to knowledge and resources 1.2 Conceptual framework Contested Domains of Local Knowledge: private, community and public (Gupta, 2001, Gupta and Sinha, 2001) The domesticated genetic resources evolve under various kinds of selection pressures These selection pressures are guided by cultural, socio-economic, gender, and institutional conditions One of the important ways in which these selection criteria get embedded in biological diversity is the cultural preference for certain kind of taste, appearances, seasonal supplies, and other roles and rituals in which products of these genetic resources are used The local uses of wild agro-biodiversity may provide clue to unique traits that may be very useful to scientists and breeders I have shown that in the case of wild rice variety (O Langistaminata) used for cloning gene for disease resistance in the UC, Davis Case given in second part of this paper, it was the Beta community of Mali which could have provided useful clues to the breeders This community of landless people had known that no disease attacked this wild rice They were dependent upon this wild rice and thus had evolved unique insights about its characteristics For landed farmers, this wild rice was a weed, which they wanted to get rid of some how Traditional Knowledge does not reside always with all the members of local communities but with those subsets of these or even with others (as in case of Bela people who were in migrants from north Mali) dependent upon local genetic and biological resources The complexity of TK has to be understood properly if incentives have to be matched with contingent conditions in which knowledge systems evolve, get reproduced, validated, modified, innovated and localised or diffused widely The knowledge could be produced (see figure 1) by individuals, and or groups alone or in combination Some of this knowledge may diffuse only locally to be characterised as community knowledge while other may diffuse widely among various communities in a region and some time across regions and countries to become public domain knowledge Within the community knowledge, there may be elements, which are restricted in scope or in terms of accessibility while others may be in public domain Similarly, individuals may also produce knowledge, which they may share widely with the community and outsiders in a manner that the knowledge might become public domain However, some of the knowledge produced by the individuals may be kept confidential and accordingly may be accessed only with restrictions Almost in every society traditional communities have evolved norms under which certain kind of knowledge is kept confidential by individuals with or without explicit consent of the community Table - Contested domain of Knowledge (a) Private individual knowledge inherited from forefathers (b) Acquired the skill to practice it faithfully without modification or with modification (c) Individual rights to use the modified and unmodified knowledge according to same rules Or different rules (d) Knowledge known to the community (e) Knowledge practiced by individuals if known to individuals (f) Knowledge practiced by individuals if known to community (g) Knowledge practiced by community if known to community (h) Knowledge practiced by community even if details known to individual/s (i) Known to community but not practised by individuals or community (j) Knowledge known to community and accessible to outsiders (k) Knowledge known to community and not accessible to outsiders (l) Knowledge known to wider public through documentation or otherwise Kl Kl-wm Kl-m Kl-sr Kl-dr K-2 Kl-I K2-I K2-c Kl-c K2-n K2-a K2-na K3 (m) Knowledge known to wider public and practiced by only few individual (n) Knowledge known to wider public and practiced by wider public (o) Knowledge known to wider public and not practiced by any one K3-I K3-P K3-n (Own Compilation, Adapted from Gupta, 1999, Gupta and Sinha, 2001) Contested Domains of Local Knowledge Individual creativity, nurtured by community, diffused widely in society Community Knowledge Public domain Knowledge Individual Community Community knowledge, documented & disseminated with or without PI Consent Individual Knowledge Individual Practice Private, individual knowledge/innovations/pract ice Community None Figure Source: Gupta 2001 The three subsets in figure thus refer to three overlapping domains of knowledge The contestation emerges when the producers and users of knowledge have unequal access, ability and assurances (Gupta, 1995) about the resources and the benefits emerging out of commercial or non-commercial usage of the resources with or without value addition The private individuals may have knowledge which they may have inherited from their forefathers (Kl), and they may have acquired the skill to practice it faithfully without modification or with modification (Kl-wm or m, see table one) The individual contribution in modifying traditional knowledge may be treated according to the same rules (Kl-sr) as the non-modified knowledge is treated, or its use and dissemination may be governed by III Those patent offices which not disclose the patent applications before granting the patent should be obliged to make the applications public after reasonable period of time of application so that objections can be filed by the interested groups IV There is a tremendous amount of knowledge which is available only in oral form and has not yet been documented There have been cases when such knowledge communicated in good faith by local people has been used without acknowledgement or reciprocity to claim intellectual property on the same There should be severe penalty for such attempts so that these act as a deterrent At the same time, mechanisms should be put in place for world wide campaign for documentation and registration of these knowledge systems V Just as a discussion is going on in US on linking the application cost of patents with number of claims, there should similarly be, incentives for disclosing extensive prior art This will encourage applicants to make extra efforts to disclose as much prior art as possible and accordingly get concessions in the cost of application This is particularly applicable for patent applications based on biodiversity based knowledge and resources VI Not every localized knowledge, which is not yet documented, should be considered public domain unless it is easily accessible Therefore, oral traditional knowledge in which some improvements may have been made should be eligible for being considered patentable This will help the communities to decide whether they would like their knowledge to be public domain and thus become part of prior art or would like it to come in public domain after getting protection for a given period of time Under US laws, "a publication can be, among other things: a thesis, a PHD dissertation, a journal article, a text book, a newspaper article, a patent, a home work assignment, a white paper, written materials handed out during a presentation, a product, or a product brochure" It is further added, "(a) publication is NOT: your recollection of what someone once said, someone's recollection of what they themselves once said, a trade secret, or a confidential company memo The upshot is that prior art must be publicly available, and it must be printed (or a physical object) Htlp://w ww.bountyquest.com/arttutorial/arttu to rial, htm, 2002 ) VII The Public Availability : Not withstanding the limited time that most examiners spend in performing searches while looking at the prior art, even if they spent much more time, would they be able to find out which community has developed what, where and in which manner they practice it or not any more practice, but are aware of it? Certainly not In that case, should such knowledge, which is available only to a few healers or a small community, and which has not diffused widely, be considered a prior art? My submission is that it should not be so considered Critics would argue that would not such precedence lead to bio-piracy because unscrupulous researchers and companies would indeed access such valuable knowledge without prior informed consent and then claim novelty over it? It is a justified fear and as said earlier, the disclosure requirements should take care of these besides severe penalties for wrongful claims and masking willfully the known prior art VIII The non obviousness may be judged on the criteria, as is well known in legal circles, of what a well versed person in the art would look for and not could look for (Franzosi, 2002) Many obvious relationships are not obvious till somebody finds these out Fraazosi, 2002 argues that there are four conditions among ten steps that ought to be taken care of while looking at prior art, i) common general knowledge, (ii) enhanced novelty, (iii) hidden knowledge and (iv) prior secret applications My contention is that we should also consider the complexity of how knowledge and innovations are produced ( and reproduced ) in traditional communities as discussed in part one of this monograph IX The new systems of protection will have to balance the long-term need for the community to have interest in conserving the knowledge system and the incentives for those who add value to 88 share the benefits for a limited period of time Longer the period of the protection, the more delayed access will be there for those,smaller firms which want to add value, reduce cost and make products available for larger consumption Therefore the new system we propose should discriminate between rights of communities in the knowledge systems per se vis-à-vis the rights in a specific knowledge output The rights in the systems should be perpetual For instance, the classical health systems such as ayurvedic, unani or sidhdha have recipes which are being granted patents in a rather indiscrete manner This is improper However, modifications in these recipes should be permissible for patenting with the understanding that a share of the benefit will go into a global pool of funds for augmenting indigenous systems of medicines all over the world This is similar to a system for plant verities in which improved verities based on land races should contribute a share to the global and regional fund for in-situ conservation Since every such benefit is shared ultimately at the consumer's costs, it is only natural that consumers should pay for the conservation of diversity 6.0 Intellectual Property Information System: 6.1 The ability of the local communities to avail of the existing intellectual property instruments depends considerably on their ability to access existing IP information in their own language and in a manner that is accessible to them close to their place of residence Granting that much of the traditional knowledge is available in the ecologically rich regions where market forces and administrative support systems are weak One has to recognize the complexity of providing IP information system in a widely accessible manner 6.2 The essential elements of IP information system in such a context would include following institutional and technological arrangements: 6.3 A very wide information technology based communication network in some of the remote regions enabling community leaders and educational research institutions to scan prior IP existing on the plants, animal products or other associated knowledge or innovations innovated by these communities In the absence of prior experience and training many of these communities would find it difficult to make sense of the IP information even if available in local languages 6.4 Capacity building among the educational research community local NGOs and public service legal agencies for providing support to the local communities in searching and interpreting existing IP on the biodiversity, genetic resources and associated knowledge system 6.5 It is to be expected that there would be many cases where traditional knowledge and or genetic resources have been obtained without prior informed consent, or developing mechanisms for sharing of intellectual property or any kind of benefits Many of such cases could relate to periods before CBD came into being and also before national sovereignly on biodiversity was recognized It will be difficult for the local communities to recognize and appreciate chat they should not object to the violation of their ethical and intellectual property rights simply because the legal system was not in place to defend their claims in the absence of such rights There could also be cases where the opposition could not be filed even if the patents have been issued in such cases using prior known TK of some specific communities, as was the case in ahayusca patent The conventional legal constraints of the period within which opposition can be filed may have to be reviewed so far as it relates to the knowledge of communities 6.6 The legal help to local communities to file objection in cases where intellectual property has been obtained on prior traditional knowledge could pose two problems: (1) if local community knowledge is considered prior art then it might facilitate questioning of some of the existing patents but it also might prevent seeking new intellectual property on the unclaimed intellectual 89 property of the local communities, (2) it will be difficult to make the case that a plant found in many places could not have been identified as a source of a particular compound or use independently for which a particular local community had found the use Therefore this issue of prior art is very complex My own preference in the matter is that communities have more to gain by accepting that much of the local knowledge is considered outside the prior art definitions unless it is well known, and is in public domain through widespread practice For all other cases where knowledge is restricted only among a small localized community otherwise inaccessible to outside scholars or corporations, it should be considered a patentable subject matter 6.7 The information system will have to have a national and international hub in such a way that national and international IP support organizations can play a role in educating as well as empowering local communities in dealing with a whole range of issues affecting their rights In other words IP help desks capable of handling queries from local communities in local language would need to be created to provide the support 6.8 It is obvious that current capacity of WIPO and also national IP systems is grossly inadequate compared to the need of large number of communities all around the world This has led to the widespread feeling of violation of rights among these communities Many communities which not support the concept of IP on their community knowledge would also like to make sure that others not authorized by them not seek private individual IP rights on their knowledge The IP information system which could be administered by WIPO should take care of the needs of such communities as well 6.9 Pilot projects for providing access to IP information system with the help of NGOs and willing national agencies need to be started to learn first hand various complexities involved in the task What I have outlined here only indicates some of the complexities When actual information system is put in place the whole range of questions would emerge requiring training, capacity building, creation of FAQs and setting up help desks 6.10 The Grace period: EU is still discussing the need for one year time period which USA already has for disclosure of an invention Should there be five years grace period for TK so that communities, which shared in good faith, are not penalised? 6.11 Should first to invent -a system used in USA -be applied for TK protection since it is very helpful for those small inventors who are not smart enough to reach a patent office fast enough gathering all the support that is necessary to get the benefit under first to file system 6.12 Protection of TK may offer little benefit per se unless the protected TK move up the value chain and generates profits, which can then be shared with various stakeholders The contribution of communities and individuals (not just the tribals, but also other local communities) needs to be understood not only in its functional attributes but also in analogic dimensions Clearing Houses at global, regional and national level need to be set up to provide easy, accessible and fair opportunities for the registered TK to be negotiated (We are trying to develop one such exchange at sristi.org/knownetgrin.html and also as a technology exchange at SRISTI site (www.sristi.org) 90 Summing Up: The three case studies have demonstrated the potential that exists for using existing IPR instruments for protection of the local knowledge and in some cases genetic resources so as to share benefits in an equitable and fair manner At the same time the analysis has also shown the limits of what can be done within the framework of the three case studies It is for this reason that we have made various suggestions going beyond the exact implications of the case studies It is necessary in any policy research one has to use available experience to speculate about what is possible It has been my contention to articulate the need for stronger IP regime to support the rights of local communities and individuals in their knowledge, innovations and practices It is obvious that to so would require several simultaneous changes at regional, national and international level Unless each country takes lead to provide protection for its own people's knowledge and genetic resources within the country, its ability to enforce these rights internationally would be inadequate.'At the same time developed countries would have to recognize that the capacity of most least developed countries and many developing countries is unlikely to increase in the short term Would that imply that the asymmetrical access and use of local and traditional knowledge by corporations and institutions of developed countries will continue unabated It is hoped that unilateral steps will be taken by the patent offices in the developed countries to create precedence of more ethical and responsible behavior One example of such a kind was when a developed country patent office sought electronic database of tradition knowledge from a particular developing country so that patent office in the former case could avoid issuing patents on the traditional knowledge already in public domain This led to Indian initiative for TKDL i.e., traditional knowledge digital library This is just one example of what can be done to create the right environment for some of the initiatives that would eventually be required to be taken at global level There is no doubt that with increasing erosion of biodiversity and associated knowledge, mere documentation would not serve the purpose It is particularly true for the genetic resources which coevolve in interaction with human societies over a long period of time in a given socio-ecological region The in situ conservation of wild as well as agro biodiversity becomes important In the absence of various incentives, it is unlikely to take place My suggestion here is that IP systems provide an important means for strengthening the range of incentives that local communities need for conserving genetic resources and associate knowledge In fact the IP can also provide incentives for augmenting this knowledge and resource base Honey Bee Network has documented large number of examples of plant varieties being developed by local farmers using traditional methods and knowledge systems In the absence of adequate mechanisms to provide protection for such efforts, the incentives are not yet flowing in to encourage more people to pursue such innovations The ultimate test of any incentive system is whether it can nurture and augment the spirit of experimentation, exploration and sharing, so evident in the traditional communities over the years Only care we need to take is to ensure that generosity and ethical superiority of the value 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Op.cit., 175-181 Wolff, Maria Thereza Mendonca 1999, Indigenous Peoples and the Protection of Genetic Resources in Brazil in Blakeney (Ed.), Intellectual Property Aspects of.Ethnobiology, pp 173-182 World Intellectual Property OrganizationfWIPO) 2001 "Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore" Geneva World Intellectual Property Organization, 1-43 Second Session: Geneva, December 20 - 24 2001 World Trade Organization 2001 "Communication from Australia: Review of Article 27.3 (b)" World Trade Organization 1-1 101 102 ... modality of the sharing of voluntary benefit from food processing industry would also be explored After seven years of the negotiations of IU the issues of patenting of genetic material and whether genetic. .. stakeholders Rewarding conservation of biological and genetic resources and associated traditional knowledge and contemporary grassroots creativity1 Anil K Gupta2 The traditions of creativity, conservation. .. Abstract Rewarding conservation of biological and genetic resources and associated traditional knowledge and contemporary grassroots creativity Anil K Gupta The traditions of creativity, conservation