CLPR was invited to attend the recent “Africa Regional Capacity Building Workshop on Nagoya Protocol on Access and Benefit Sharing (ABS), Traditional Knowledge (TK) and Nagoya Kuala Lumpur Supplementary Protocol on Liability and Redress of Biosafety (NKLSP)” organised by the National Biodiversity Authority (NBA) in conjunction with the Ministry of Forests and the Ministry of External Affairs, India at the Royal Orchid Hotel, Bangalore.
Spread over three days between February 11, 2013 to February 13, 2013, the conference featured parallel sessions on issues relating to ABS and TK on the one side, and NKLSP on the other. The speakers at the conference included Dr. Olivier Rukondo (Secretariat, CBD) Dr. Kabir S. Bavikatte (NBA), Dr. V.K. Gupta (CSIR) and CLPR’s own Dr. Sudhir Krishnaswamy. The ABS and TK sessions traversed a wide range of issues, beginning with an overview of the Nagoya Protocol, moving on to the setting up of digital TK libraries in India, and ending with the conceptualizing of greater international collaborative efforts in the field of ABS and TK.
Dr. Sudhir Krishnaswamy was invited to address the other participants, and discuss the legal issues relating to Biodiversity, ABS and TK in India. In the course of his presentation, Sudhir raised several important questions relating to TK in India and discussed these questions under three thematic heads – Nation State Questions; Nation State exploitation and Misleading Property Concepts.
India’s approach to TK contradicts its attitude to Intellectual Property Rights – the latter is marked by a constant effort to reduce limitations in favour of making these rights more open, whereas the former is encouraged to be understood in terms of the source and extent of property ownership. Another striking characteristic of India’s treatment of TK issues relates to how it is often viewed as a Nation State issue and not one of communities. The discussion of TK issues in India thus, always works under the premise that the people and the Nation State are one and the same.
Have we done well by responding to TK issues through the lens of property and nation-state terms? India provides a good setting to these questions, because it is involved in both international and domestic matters of this sort. Taking a closer look at two kinds of strategies adopted for use with reference to TK, we note that:
a) Defensive Strategies:
These strategies arose with the appearance of misappropriation and bio-piracy questions. Broadly speaking, defensive strategies refer to three strategies – misappropriation, archiving and a public domain-patenting strategy. Though largely ineffective, defensive strategies have shown to be of some significance, especially in the fields of pharmaceutical drugs. Furthermore, the strategies of archiving have resulted in the setting up of bio diversity registers like the Traditional Knowledge Digital Library in India.
b) Offensive Strategies:
Offensive strategies are often favoured because they are often a revenue source. Offensive strategies can be understood in the context of Geographical indications and TK – the two share a strong interface, however the former are almost always applied for by the State or Parastatal agencies, NOT the communities. This has led to the creation of new property regimes.
In other words, both strategies have rendered themselves relatively useless, in the context of ABS and TK in India. Thus, the discussion on IP and TK, and the need to reconcile the two ends with the following questions:
(1)Nation State Questions: While examining the manner in which the Government or the State has appropriated forest lands, it is necessary for us to better understand the new forms of state ownership that are being created in the process.
(2) Nation State exploitation: Caught up in the web of international dialogue, we have failed to assess the extent and persvasive nature of domestic exploitaton being conducted in the realm of bio-diversity. Thus the question is no longer one of ownership, but of distribution as well.
(3) Misleading Property Concepts: The concept of property rights acts as a distraction, pulling us away from the real questions which must delve deeper into environmental concerns and community participation. Property regimes also end up being harmful, since they almost invariably lead TK into the wrong hands.
Concluding, Sudhir thus ended his presentation on the note that India is yet to conceive of a good working system with reference to ABS and TK.
