ABS Mechanism For Protection of Traditional Knowledge

ABS mechanism for protection of traditional knowledge and genetic
resources
1) Introduction
Advancements in the field of genetic engineering found out that knowledge of
indigenous communities and genetic resources if channelized in appropriate manner
are capable of bringing out successful commercial products. The growing importance
of bio-technology and increasing number of patents granted to biotechnology based
inventions highlight the potential value of genetic resources and associated
traditional knowledge. The values of traditional knowledge in development of final
product have always been a subject of controversy. The relationship between access
to genetic resources and benefit sharing and intellectual property is based on the
principle that the grant of patents or any other intellectual property rights over
biodiversity related innovation should be conditioned of biodiversity components
being acquired, obtained or accessed legally1.
Most of the developed countries including Europe and US are having very liberal
approach towards granting of patents and usually patents are given to final products
based on traditional knowledge ignoring the common knowledge associated with the
invention. There are various examples regarding granting of patents in these
jurisdictions over products based on biological resources commonly used in
developing countries like use of turmeric in wound healing, composition of jamun,
bitter-gourd and eggplant for treatment in diabetes, various products obtained from
neem tree etc. Biopiracy is a rampant phenomenon in the globalised world which
made the developing countries to be more conscious about their valuable biological
resources. In order to prevent biopiracy and to create a sense of mutual trust there
was a need for an efficient mechanism to regulate the handling of genetic resources
and associated traditional knowledge.
This has led to the development of complex and controversial legal frameworks
regarding access to genetic resources and equitable benefit sharing. Biological
resources are common heritage of mankind but benefits of use of these resources
are exploited by Multinational companies and developed nations with their
1 See Manuel Ruiz Muller, Disclosure of origin and legal provenance, available at
http://ictsd.org/downloads/2011/12/disclosure-of-origin-and-legal-provenancethe-experience-and-implementation-process-in-south-america.pdf
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technological advantage and financial resources 2.
Intellectual property rights are basically negative rights providing for exclusivity. It
does not recognize the rights of traditional knowledge holders and discussions are
going on at various international forums for development of a compensation
mechanism that provides for at least an indirect recognition of their contribution to
modern technological developments. Granting exclusive rights to individuals for
products based on genetic resources will only worsen the situation of already
exploited biological resources.
The issue of access to genetic resources and equitable sharing of benefits have a
major focus on biodiversity conservation and its sustainable use 3. Access regimes
are result of increased importance given to genetic resources and associated
traditional knowledge on the other hand benefit sharing mechanisms has been
developed as a response to absence of intellectual property protection under the
existing intellectual property regime. Relevance of access and benefit sharing
mechanism is due to large amount of genetic resources and associated traditional
knowledge is having commercial viability in a number of formal sectors, including but
not limited to pharmaceuticals, biotechnology, seeds, horticulture, botanical
medicine, cosmetics and personal care and food.
2) Access to genetic resources and Traditional Knowledge
Genetic resources are biological materials of plants, animals, microbial or any other
origin that contain hereditary information necessary for life and are responsible for
their useful properties and abilities to replicate 4. For centauries indigenous
communities have managed to preserve these resources through trial and error
2 See International regime of access and benefit sharing mechanism available at
http://www.sawtee.org/publications/Policy-Brief-16.pdf
3 See Access to Genetic resources in Africa available at
http://www.ias.unu.edu/resource_centre/ABS%20in%20Africa.pdf
4 See Kerry Ten Kate & Sarah A Laird, The Commercial Use of Biodiversity :
Access to Genetic resources and Benefit sharing available at
http://books.google.co.in/books?id=yRfL4Q_t0cC&printsec=frontcover#v=onepage&q&f=false
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process by selecting crops and harvesting medicinal plants. Importance of genetic
resources and associated traditional knowledge lies with the fact that it constitutes
the basis for livelihood of bulk of the population of developing nations and that about
75% of world population depends on medicines based on traditional and plant based
knowledge for their primary health care 5. Advancements in the field of biotechnology
and genetic engineering have posed threats to the existing biological resources and
developing countries were forced to regulate access to their genetic resources.
Access in this context refers to the ability of individuals or corporations to acquire or
use genetic resources for a multitude of purposes and not limited to commercial
application6. Access to traditional knowledge and genetic resources in it is not a new
issue. Bio prospecting has been going on for decades and individuals and
corporations have yielded significant commercial returns out of it. Bio-prospecting
refers to the process by which individuals or parties actively seeks out genetic
resources found primarily in plants, but also in animals and micro organisms with aim
of isolating a compound or active ingredient and marketing the resultant product as
commercial commodity7.
Basically access regimes relate to identify the conditions under which the potential
users can obtain the resources or knowledge they need. Access regimes are often
seen as linked with benefit sharing but this is only in cases of establishing origin of
knowledge or resources used in a product or process which is patent protected.
Access regime is important not only as a platform for benefit sharing mechanism but
on a broader aspect as an assertion of rights of ownership on biological resources
and traditional knowledge and thereby as an essential ingredient of sovereignty of
the country8.
5 Ibid note 3
6 See Janak Rana Ghose, Access and benefit sharing systems: An overview of
the issues and regulations available at http://ranaghose.com/research/abs.pdf
7 Ibid note 6
8 Convention on Biological Diversity
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Between the assertion of sovereignty and willingness to provide facilitated access
there are ample scopes for devising legal regimes which can be strict or lenient 9. A
strictly regulated access regime can give more effective control over transfer of
resources outside the country and thereby provide the country with more control over
biodiversity conservation. But there is always a possibility that it might discourage bio
prospectors and affects long term research and trade prospects. On the contrary a
liberalized access policy is likely to increase the interests of the bio prospector and
yield economic benefits for the country.
There are different considerations that can guide the governments in framing access
regimes. As best practice standards every access regime shall provide for Prior
Informed Consent, Disclosure of origins and Mutually Agreed Terms.
a) Prior Informed Consent ( PIC), Mutually Agreed Terms(MAT) and Disclosure
of Origin(DOO)
The notion of prior informed consent is one of the basic principles of access regimes
at international level. Prior Informed Consent is the interface between assertion of
sovereignty and commitment to facilitate access ie providing states with
opportunities to determine conditions under which access to biological resources are
to be provided. It is the authorisation given by the national government to a bio
prospector to enter into nation and conduct research upon biological resources
under certain limitations which are mutually agreed upon 10.
PIC is obtained in writing from the competent government authority, and from the
relevant stakeholders including local communities and indigenous people who are
owners or custodians of biological resources. PIC is greatly linked to benefit sharing
as it provides an initial opportunity to conduct negotiation for framing an effective
benefit sharing mechanism. Basic principle on which PIC is based includes need to
minimise cost of access and need to ensure that restrictions on access are
9 See Cary Fowler, Protecting Farmer Innovation: The CBD and the question of
Origin, The ABAs Journal of law science and Technology 486(2001)
10 See ABS Management Tool, best Practice standard and handbook for
implementing Genetic Resource Access and Benefit Sharing , available at
http://www.iisd.org/pdf/2007/abs_mt.pdf
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transparent. In context of genetic resources and associated traditional knowledge
PIC is significant to address the concerns about companies, research institutions
and other entities acquiring and using genetic resources from biodiversity rich
countries without knowledge and permission of rightful owners and holders 11.
PIC is not intended to prevent adverse impacts of transfer of genetic resources and
associated traditional knowledge rather it lays emphasis on preventing exploitation of
biological resources as well as ensures that equitable benefits are accrued to the
owners or holder of those knowledge through such transfer. Involvement of
stakeholder ie original traditional knowledge holder is important while granting PIC or
entering MAT and it shall be the duty of the competent national authority to facilitate
the involvement of stakeholders throughout this process 12.
Besides PIC, Mutually Agreed Terms are considered as a concept that can be
included in standard access regimes. Mutually Agreed Term are conditions and
provisions of access and benefit sharing, among others, negotiated between user
and provider and involving other relevant stakeholders 13. MAT are negotiated in a
manner that builds confidence and relationship of trust between owners, managers
or custodians of genetic resources and users of genetic resources and establishes
basis for long term, transparent and respectful relationship and communication
between them14.
MAT should contain provisions regulating use of resources and specific ways in
which genetic resources are to be used, provision for joint ownership of IP rights
based on degree of contribution of the provider community to development of the
product and also provisions for joint research, any limitation imposed on access and
11 See the issue of Bio piracy in several instances, as an example European

Patent office granted patent over certain fungicidal properties of neem tree
which as a matter of fact was a common knowledge for people of India.
12 See section 34 of bonn guidelines
13 Ibid note 12
14 ibid
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transfer of results by the provider country and conditions, obligations, procedures,
types, timing, distribution and mechanism of benefits to be shared 15.
Disclosure of origin is one of the proposals put forward by developing nations in
WTO for protection of biological resources.
According to these proposals the
applicant for patent should be asked to provide along with the application, detail of
the country from which he borrowed information regarding his invention, and provide
evidence to show that all legal requirements of the particular country for access and
fair and equitable benefit sharing arising from commercial use of such resources has
been fulfilled16.
The rationale behind all these measures is to ensure that in cases where biological
resources have to be exchanged abroad the holders of those resources should be
made aware of such transfer and to ensure that they receives an equitable share of
benefits which the user incur by using said resources.
3) Equitable Benefit sharing mechanism
Benefit sharing is a relatively new area that has been developed as a consequence
of rapidly changing paradigm concerning claims over genetic resources and
associated traditional knowledge. It is a compensation mechanism which is
developed as an alternative to grant of intellectual property rights to inventions based
on biological resources. Benefit sharing arrangements are intended to create or
strengthen capacity of the stakeholders through several mechanisms including
technology transfer and training which is relevant for conservation and sustainable
use of genetic resources. It is an additional indirect control mechanism that
accompanies the access regime.
Benefit sharing mechanism indicates sharing fairly and equitably with the country of
origin and other stake holders, benefits arising from use of genetic resources and
their derivatives including non monetary benefits and in cases of commercialization
15 See article 45 of bonn guidelines
16 WTO Doha work programme the outstanding implementation issue on the
relationship between the TRIPS and CBD , communication from India.pakistan, Brazil,
Peru, Thailand and Tanzania, WT/GC.W.564,TN/C/W?41,
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monetary benefits .It aims to bring a harmony between the monopolistic intellectual
property regime and collective interest of the community in issues relating to genetic
resources and associated traditional knowledge. The rationale behind this
mechanism is that the holders of genetic resources and traditional knowledge are
entitled to receive an equitable share of benefits that arise from use of those
resources which may be expressed in terms of compensatory payments or other non
monetary benefits. Benefit sharing is an action of giving a portion of advantaged
derived from the use of genetic resources and traditional knowledge to the resource
providers in order to achieve justice in exchange 17.
Before entry of force of CBD there was no international regime regulating transfers of
biological resources and any bio prospecting prior to CBD have taken place in a
legal vacuum and at best parties would have entered a bilateral contract with each
other18.
The institutionalisation of concept of benefit sharing has evolved as a
response to conflicting interests of developing and developed nations and thereby as

an improvement to the existing compensation regime. For countries having more
biotech industries, benefit sharing is more restricting than the pre Biodiversity
convention system which would have allowed freedom to choose mode of access
and compensation and on the other hand as far as the countries of origin are
concerned benefit sharing have proved to be a venue through which governments
can acquire more authority towards other countries and towards holders of biological
resources19. Benefit sharing for developing countries has the advantage of granting
and recognizing certain rights to original holders and thereby providing a role for the
state in managing the resources and the compensation that comes in return 20.
17 seed Schroeder, Global medical ethics, benefit sharing: Its time for a
definition available at www.justor.org/stable/27719838
18 For example Merk in bio agreement which happened prior to CBD see
www.ciesin.org/docs/008-129/008-129.htm
19 See M D Nair, TRIPS WTO and IPR, protection of Bio resources and traditional
knowledge, available at www.ssrn.com
20 See the scope of access and benefit sharing under the international treaty
available at
http://www.bioversityinternational.org/fileadmin/bioversityDocs/Policy/Access_an
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There are number of controversial factors associated with benefit sharing. One of the
disputes is regarding the threshold required by the claimants to be eligible for
claiming benefits. CBD provides that compensation is due for use of any kind of
genetic resources21 which indicates that a claim for compensation mechanism can
exists in all cases of research irrespective of its purpose being commercial or non
commercial. In effect it implies that even basic research using biological resources
and associated traditional knowledge is not free and requires compensation. Such a
wide approach would hinder access to knowledge and innovations through research.
Another controversy is related to monetary compensation. Benefit sharing has been
often conceived as a form of financial compensation. Monetary benefits can take the
form of access fees, royalty payment, license fees or contributions to be paid to
certain funds set up for this purpose. Monetary compensation remains controversial
as it tends to reduce benefit sharing to a one off financial transaction which may not
reach actual claimants. Further in situations where monetary compensation is
directed to a financial mechanism set up to receive monetary compensation for
further redistribution it may be allocated for a number of goals which may or may not
be of direct significance to the actual claimants 22. In other words where monetary
compensation is channelled through an institution authorized by the states it has the
potential to be of diverted use that may not be favoured by the traditional knowledge
holders
In order to resolve this number of other non monetary benefits have been proposed
as an alternative or as an addition to monetary benefits. These includes sharing of
research results with the original share holders and scientists of the country of origin
or to engage in collaboration and cooperation in scientific research and development
programmes with the research organisations of the resource owing countries. On the
d_Benefit_Sharing/SGRP%202008%20Policy%20Brief_Scope%20of%20ABS
%20under%20the%20Treaty.pdf
21 See article 1 of CBD
22 See Access and benefit sharing mechanism of genetic resources, ways and
means for facilitating biodiversity research available at
http://www.bfn.de/fileadmin/MDB/documents/service/skript163.pdf
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commercial side it can include setting up of factories in the area of origin of genetic
resources or transfer of technologies developed on the basis of knowledge or
resources accessed or providing for joint ownership in intellectual property.
The implementation of benefit sharing schemes requires coordinated action on the
part of provider countries and user countries so that a common platform can be
created23. However this is proving difficult due to lack of an international mechanism
governing benefit sharing mechanism.
a) Benefit sharing mechanism in practise the case of Arogyapacha and
Hoodiya
First case concerns use of a plant named Arogyapacha which is found in southern
part of Western Ghats. The said plant was widely used by local tribal people; the
kanis for its anti- fatigue properties and were unknown to outsiders since 1987.
Biologists of Tropical Botanic Garden and Research Institute (TBGRI) were looking
for a drug to reduce fatigue and persuaded some of the local kani people to share
their knowledge with them and the transfer of knowledge led TBGRI to development
of an innovative drug Jeevani with anti- fatigue properties.
The right to manufacture Jeevani were transferred to a private company and benefit
sharing scheme were setup in the initial stages. But in 1995 TBGRI came up with a
benefit sharing scheme as a part of a license agreement which ask the transferee to
give 50 percent of fee and royalty to the kani people 24. The fund due to the kani
tribes were transferred to Kani Samudaya Kshema Trust, a trust with 500 kani
families as members which is meant to foster activities which would promote the
common benefit of the community. The benefit sharing scheme for Jeevani are
welcomed because it makes a genuine attempt to recognize contribution of Kani
people for the development of the final product Jeevani drug.
Another successful benefit sharing example is that of hoodia plant found in Africa
which is also having anti- fatigue properties like that of arogyapacha. Hoodia is a
23 ibid
24 See Ministry of environment and Forests, benefit sharing model experimented
by TBGRI
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kind of cactus found in Africa which is used by the SAN, African tribal people to
starve off hunger and thirst in long hunting trips. In 1995 South African Council for
scientific and industrial research patented hoodias appetite suppressing element 25
and its potential use for curing obesity. In 1998 Ptfizer acquired a license of said
patent and started manufacturing a sliming drug as a cure for obesity. San tribal
people came to know about exploitation of their traditional knowledge in 2001 and
launched a legal action against South African Council for scientific and industrial
research for biopiracy and violation of principles of CBD. Later two sides entered into
negotiation for a benefit sharing mechanism and in 2002 26 a land mark agreement
were entered by both parties according to which SAN people would receive a share
of any future royalties received by South African Council for scientific and industrial
research.
On an overall scale benefit sharing mechanism is not necessarily a success story
though it provided for monetary benefits for the welfare of the members of the kani
tribe27 or to the SAN tribe. The Jeevani \ model has been criticised on the ground that
entire terms and conditions envisaged under the said agreement were determined by
outsiders ie Kerala Institute of Research Training and Development of Scheduled
Castes and Scheduled Tribes and not by stake holders. Kani tribals are not fully
integrated with the main stream society and any measures allowing access to their
lifestyle without giving them an opportunity to present their interests would eventually
lead to destruction of their life style.
Such benefit sharing practices shall not be accepted as a model for future benfit
sharing arrangements. An appropriate approach would be to start from principle of
prior informed consent and thereby giving the stake holders a chance to determine
25 See Shahid Alikhan and Raghunath mashelkar, Intellectual property and

competitive strategies in the 21st centuary, Kluwer Law international , london
26 ibid
27 See C R Bijoy, Access and Benefit sharing from indigenous peoples
perspective, The TBGRI Kani model available at http://www.leadjournal.org/content/07001.pdf
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their own terms and conditions for transfer of biological resources and associated
knowledge.
4) International Access and Benefit Sharing regimes
The convention on Biological diversity is the basic treaty concerning the regulation of
access to biological resources and benefit sharing. However other international
institutions and instruments like WIPO, TRIPS and FAO have also developed
guidelines for creating an effective benefit sharing mechanism. This chapter would
be dealing with how ABS mechanism has evolved in the international scenario.
a) Convention on Biological Diversity and Access and Benefit Sharing
Mechanism
The Rio Earth Summit which convened in June 1992, promulgated the Convention
on Biological Diversity which represented an attempt to establish an international
regime for conservation and utilization of worlds biological resources 28 and for fair
and equitable sharing of benefits arising from the utilisation of genetic
resources29.The most important issue regarding intellectual property rights under
CBD is access to genetic resources and associated traditional knowledge and
equitable benefit sharing mechanism.CBD contains provisions related to access to
genetic resources, transfer of technology ,informed consent and sharing of
benefits30.
Article 1 of CBD provides that the parties should strive for a fair and equitable benefit
sharing mechanism for sharing of benefits arising out of utilisation of genetic
resources, including appropriate access to genetic resources and transfer of relevant
technologies and by appropriate funding 31. However this objective must be read in
conjunction with those provisions of CBD that enable the contracting nations to take
28 See F McConnell, The Biodiversity convention, A negotiating History available
at www.ssrn .com
29 See CBD article 1
30 See article 15, 16 and 19 of CBD
31 See http://www.cbd.int/convention/articles/?a=cbd-01
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control over genetic resources. CBD recognizes the sovereign rights of the nations
over their natural resources32 and the authority of the nations to determine access to
genetic resources using national legislation 33 and thereby providing for an
appropriate access and benefit sharing scheme.
Article 15 of CBD envisages the basic framework for an ABS mechanism. It reaffirms
the sovereign authority of the states over their biological resources and power of
competent national authority to control the access to these resources 34. It specifically
provides that the access regimes could be subject to prior informed consent and
mutually agreed terms. Besides CBD also recognise the need for inclusion of
transfer of technology within MAT to achieve the objectives of CBD 35.
CBD requires the state parties to initiate legislative and administrative measures for
sharing the results of research on biological resources as well as for sharing of
benefits arising from commercial and other application of these resources 36.the most
controversial article in CBD related to ABS and IP is article 8(j) which requires parties
to frame national legislations which recognizes innovations and practices of
indigenous communities and to provide for an equitable benefit sharing mechanism
for sharing of benefits arising from the utilization of traditional knowledge and
practices.
One of basic problem with the provisions of CBD is that they are mostly
recommendatory in nature and not mandatory37. However concretisation of basic
principles relating to access and benefit sharing has been a subject of debates for a
32 See Article 3 of CBD
34 See article 15(1) of CBD
36See article 15(7) of CBD

37 See Venekataraman and latha, IPR, TK and biodiversity of India JIPR july 2008
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number of years in different international foras in context of CBD. In 2002 the
Conference of parties adopted certain guidelines on access to genetic resources and
sharing of benefits which is known as the Bonn guidelines.
B. The Bonn guidelines on access to genetic resources and fair and equitable
sharing of Benefits Arising out of their utilization
Bonn guides have been framed by the COP in 2001 as a framework for action for
contracting parties while framing their national legislations and are expected to assist
parties in developing an access and benefit sharing strategy in domestic legislations.
The guidelines identify steps involved in access and benefit sharing process with an
emphasis on obligation for users to seek prior informed consent and to enter into
mutually agreed terms with stakeholders. Although these guidelines are not legally
binding it have been adopted by more than 180 countries giving them clear and
indisputable authority38.
Bonn guidelines require the state parties to establish a national authority to
determine the question of access to biological resources and to grant PIC and
facilitate negotiations for MAT and benefit sharing arrangements 39.Bonn guidelines
emphasise on the need for involvement of stakeholders during negotiations under
MAT. It gives a brief outline as to how benefits derived from use of genetic resources
or associated traditional knowledge need to be shared between user and provider. It
also provides a long list of monetary and non monetary compensation which shall be
shared between the user and provider under MAT or a separate benefit sharing
agreement entered by the parties 40. Monetary benefits include access fees, upfront
payments, milestone payments, royalties, license fees, research funding, joint
ventures and joint ownership in IP rights and Non monetary benefits include sharing
38 See Hamdallah Zedan on Bonn Guidelines available at

http://www.planttreaty.org/sites/default/files/bonn_guidelines.pdf
39 See article 14 of Bonn Guide lines
40 See article 45
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for R&D results, participation in product development, contribution for education and
training, transfer of technologies, Institutional capacity building etc 41.
But on an overall scale Bonn Guidelines have not been widely implemented by the
nations42. As a result of this further discussions were initiated within CBD and COP to
create an international regime on Access and Benefit sharing mechanism. The result
of these discussions was the Nagoya protocol on access and benefit sharing, 2010.
C) Nagoya Protocol on Access to genetic Resources and the Fair and
Equitable Sharing of Benefits arising From their Utilization
The Nagoya protocol is an international instrument adopted by the parties to CBD in
October 2010 to provide legal recognition to the third objective of CBD for a fair and
equitable sharing of benefits arising from utilisation of biological resources and to
provide for an appropriate access mechanism and transfer of technologies. Basically
Nagoya protocol is reiterating what have been already declared under CBD and
Bonn guidelines.
It provides that the state parties have sovereign right over its biological resources
and can regulate access to these resources through PIC and MAT. The national
authority established for granting access should ensure participation of relevant
stake holders in all negotiation proceeding and PIC from stakeholders were made a
mandatory requirement43. It provides procedural guidelines that should be followed
by the states and the National authority established under domestic legislation while
dealing with ABS mechanism.
Concerning benefit sharing a long list of benefits is listed under the Protocol which
are to be considered by the competent national authority while framing a benefit
sharing agreement. Benefits envisaged under the protocol are more or less similar to
those enlisted under appendix 2 of Bonn guidelines. Protocol also prescribes
41 See Appendix II to Bonn Guidelines
42 Natalie P Stionanoff, Biological resources and benefit sharing, the intersection
between traditional knowledge and intellectual property.
43 See article 6 of Nagoya protocol
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collaboration and cooperation in technical and scientific R&D programmes which
takes place in participation with provider parties 44 and users. Protocol also give
special reference to the approach to be taken in cases of transboundary situations ie
in cases where the genetic resources or traditional knowledge used by the bio
prospectors are shared between the boundaries of two different nations 45.
Nagoya protocol constitutes the latest ambitious approach to develop an
international instrument complementing the critical aspects of ABS regime provided
under the CBD. . Considering the positive and negative features the Protocol can be
regarded as a balanced instrument considering the clash of interests behind it 46. But
actual utility of the protocol will only become visible during implementation stage.
D) International Organisations and ABS Mechanism
Protection
of
traditional
knowledge
and
biological
resources
from
unauthorized access is a topic of constant deliberation under various

international
organizations
like
FAO,
WIPO
and
WTO.
Extensive
discussion on protection on plant varieties were taking place under FAO

since 1996 and in 2001 FAO adopted the International Treaty on Plant
Genetic Resources for Food and Agriculture or the Seed treaty. The
PGRFA treaty includes extensive provisions related to ABS mechanism but
in a constringe manner as it deals with only specific crops provided under
Annex 1. Treaty provides for establishing a multilateral system with the
intention to facilitate access to plant genetic resources for food and
agriculture and to share the benefits arising out the use of those resources
equitably 47 .
44 See article 23
45 See article 11
46 See Evanson Chege Kamau, bevis Fedder and Gred Winter, The Nagoya
Protocol, what is new and what are the implications for provider and user
scientific community, available at http://www.lead-journal.org/content/10246.pdf
47 See article 10.2 of PGRFA
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Access regime under PGRFA treaty is quite unique and it requires states to provide
access at a minimum cost for research, breeding and training for food and
agriculture as long as this is not for industrial use. Under PGRFA treaty the users are
barred from claiming IP protection on materials accessed from the multilateral
system48. Benefit sharing under the treaty is a direct consequence of facilitated
access and is meant to provide an incentive to parties to provide access to their
genetic resources. Treaty includes a standard list of benefits that can be shared
which includes exchange of information, access to and transfer of technology,
capacity building and the sharing of benefits from commercialisation.
Developing countries from Asia, Latin America and Africa have been active at the
meetings of WTO- TRIPS Council to point out the conflicts between the TRIPS and
CBD and for development of a frame work where WTO members can meet the
obligation under both these international instruments 49. An important result of these
efforts of the developing nations was the Doha Ministerial Declaration which instructs
the TRIPS council to examine the relationship between the TRIPS agreement and
the CBD and to include in its working programme review of Article 27.3(b) of
TRIPS50.
Pursuant to the Doha Declaration the developing countries including India had
contented in the TRIPS Council that the TRIPS Agreement should be amended in
order to provide that a member shall require that an applicant for a patent relating to
biological materials shall provide along with the application the disclosure of source
of the biological source and/or any traditional knowledge used therein, evidence of
obtaining prior informed consent from the said nation and community and evidence
for entering in a fair and equitable benefit sharing mechanism under the national
48 See article 12 and carry flower, The question of derivatives- promoting use
and ensuring availability of non proprietary plant genetic resources.
49 see Dutfield, Can the TRIPS Agreement Protect Biological and Cultural
Diversity? Available @www.wipo.int/cgi-bin/koha/opac-detail.pl?bib=24572
50 See Doha Ministerial Declaration available at
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm
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regime of the country of origin 51. Deliberations are currently happening within the
WTO General Council and the TRIPS Council to settle the north- south dispute
regarding incorporation of such a provision.
WIPOs involvement with the issue of access to genetic resources commenced in
1999 with a study commissioned jointly with UNEP, on the role of intellectual
property in sharing of benefits arising from the use of biological resources and
associated traditional knowledge. Inter Governmental Committee were formed after
a series of discussion within various standing committees of WIPO in 2001 which
acts as an international forum for international policy debate, development of legal
mechanisms and for creating practical tools for protection of traditional knowledge
and traditional cultural expressions against misappropriation and misuse . IGC works
closely with the CBD in identifying feasible option for the protection of biological
resources in the context of access and benefit sharing 52 and examines the feasibility
of using various forms of intellectual property rights as an effective tool for benefit
sharing.
Besides all international initiatives for a proper access and benefit sharing
mechanism there are number of regional instruments entered by nations to protect
their biological resources on a regional basis. These agreements have been
developed by regional economic organizations in an endeavour to set minimum
standards for determining access to genetic resources within a region and to ensure
that the domestic regulation relating to access and benefit sharing maintains a
uniform standard. Regional agreements mirror the negotiating strategy of developing
nations to protect their resources.
5) National Guidelines governing access and benefit sharing mechanism
Access to and transfer of genetic resources and recognition and equitable sharing of
benefits arising from the sustainable use of the accessed resources are also part of
51 See RV Anuradha, Access, benefit sharing , intellectual property rights:
establishing links between TRIPS and available at
http://wtocentre.iift.ac.in/Papers/2.pdf
52 See benefit sharing within WIPO, available at
http://www.ias.unu.edu/resource_centre/UNU_ABS_Report_Final_lowres.pdf
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discussions within the Indian legal sphere. India have introduced the concept of
access and benefit sharing in two different national legislations, The Protection of
Plant varieties and Farmers right Act and the Biodiversity Act. The schemes referred
in these legislations are related to the patent right even though the patent act is silent
on the issue.
A) ABS mechanism under the Protection of Plant varieties and Farmers rights
Act
The PPVFR Act 2001 and the rules made under this Act is a sui generis system that
protects the right of formal innovations of a plant breeder and informal system of
knowledge of traditional plant varieties of farmers as well 53. The Act does not
specifically address the issue of access to plant genetic resources. However since
the plant genetic resources are also under the scope of Biodiversity Act, it should be
construed that access related issue under this Act would be covered by Biodiversity
Act54. With regard to benefit sharing the Plant varieties Act provides a well defined
scheme under Section 26.
After publication of registration of variety in Plant variety journal any interested
parties including an NGO or a governmental body is permitted to raise a claim for
benefit sharing on that variety to National Authority. The substantive bases for a
benefit sharing claim under section 26 are the extent and nature
of use of use of
genetic material of the claimant in the development of the variety and the commercial
utility and viability as well as demand for the variety in the market 55. Authority plays a
central role in determination of benefit sharing as it is left to determine benefit
sharing on case to case basis on very general guidelines given under the Act
Section 41 introduces a compensation scheme which in effect is a kind of
penalisation for not sharing the commercial benefits of a variety developed on the
basis of plant genetic resources or knowledge of farmers. Any person or any
53 See sahai Suman, Indias Plant variety protection and Farmers right Act, 2001
Current Scinence , 84(3)2003, 407-412
54 See Intellectual property rights and sustainable development
55 See section 26(5) of the Act
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governmental or NGO can ask any designated organization to enquire into any claim
regarding contribution of people of a village or community in evolution of any variety
and on the basis of a proper enquiry the Authority shall grant shall grant a sum of
compensation to be paid to such person or group.
Amount awarded by the authority as benefit sharing and compensation are to be
paid to the National Gene Fund which is constituted under the Act to channelize
these as well as other funds that have to be paid by the breeders. The gene fund is
to be applied to support and reward farmers for their contributions to conserving and
improving plant variety and to pay amounts due as benefit sharing and
compensation. But neither the Act nor the Rules made there under give a precise
indication on how these benefits are to be distributed between the communities.
B) ABS Mechanism and Biological diversity Act
Government of India in 2002 enacted the Biodiversity Act implement the mandates of
CBD and to provide for conservation and sustainable use of vast biodiversity of India
and to establish a benefit sharing mechanism for fair and equitable sharing of benefit
arises out of use of biological resources. Unlike PPVFR Act, the Biodiversity Act
gives significant importance on conditions as to access to biological resources.
Unlike the PPVFR Act the Biodiversity Act give significant importance on conditions
as to access to biological resources which provides restriction on access for
conducting research to any foreign researcher or corporation without prior
permission of the National biodiversity authority. Act prohibits transfer of research
results to foreign corporations as well as obtaining IP rights over any product based
on biological resources or traditional knowledge.
Prior informed consent under Biodiversity Act is actually a weak form of PIC. PIC
under CBD mandate has to be obtained from the indigenous communities or affected
communities and the competent national authority. Biodiversity actually ignores the
role of indigenous communities while granting access and thus Act doesnt provide
an opportunity to these communities to present their interests.
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National Biodiversity Authority is authorized to ensure while granting access that
conditions under which access is provided ensures an equitable sharing of
benefits56. Most significant contribution of biodiversity act is to provide that benefit
sharing could imply sharing of IP rights. Where benefit claimers can be specifically
identified the Biodiversity Authority is empowered to provide for joint ownership of IP
rights and on the other hand to allocate itself joint ownership rights where the benefit
claimers cannot be identified. Thus Biodiversity would have the power to directly
influence grant of patents even though it is not meant to participate in
implementation of patent Act57.
Act introduces number of non monetary compensation like transfer of technology,
R&D development at benefit claimers area to facilitate a better standard of living etc.
In cases where monetary compensation is chosen then authority is having
discretionary power to have the sum deposited in National biodiversity Fund setup
under the act or to paid to specific groups of individuals in cases where they can be
traced. On a whole the access and benefit sharing scheme under the Biodiversity Act
is much wider than that under the Protection of Plant varieties and Farmers rights
Act. However lack of specificity of the benefit sharing scheme and discretionary
powers given to the Authority in determining the scope of benefits to be shared
makes the whole scheme insignificant in the view of benefit claimers.
6) ABS mechanism and indigenous communities: does it offer an appropriate

remedy?
ABS mechanism is considered to be a remedy for granting of Intellectual property
rights to inventions based on biological resources and traditional knowledge. Benefit
sharing is devised to provide indigenous communities a fair share of benefits that IP
56 See section 21(1) of biodiversity act
57 see http://www.ias.unu.edu/binaries/UNUIAS_ProtectedAreasReport.pdf
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holders obtain from use of their resources and knowledge. Concept of traditional
knowledge and IP rights are basically contrary to each other. IP rights are individual
rights while traditional knowledge is community rights which do not fall within the
purview of IP rights.
CBD mandates parties to provide for prior informed consent and enter Mutually
Agreed Terms before granting access to traditional knowledge with participation of
stake holders. Underlying issue regarding PIC and MAT is to identify the relevant
stake holders. Traditional knowledge are common property of the particular
community which are developed through centuries old trial and error process and it
is difficult to identify a single holder or even a group of holders who could actually be
the representative of community and grant PIC or to whom the benefits are to be
shared.
Besides traditional communities like the Kani tribe or the San community are
basically sections which are not fully integrated with the mainstream society and it
would be impractical to expect members of these communities to stand in an equal
position and make claims for their rights while entering a PIC or MAT. Though
authorizing the competent national authority to represent the interest of the
community or certain other governmental (as happened in case of Jeevani) or
Nongovernmental organisation could be the only option and in such cases
communitys interest should be represented by outsiders and not the stake holders.
Another important aspect of traditional knowledge is the religious value or
sacredness attached with them. Indigenous communities consider these cultural
transmissions as sacred matters associated with their lifestyle and not as
commercial products. Communities consider them as secrets and sharing with
outsiders invites divine displeasure58IP laws which are essentially western in nature
are not able to analyse this aspect of traditional knowledge. For holders of sacred
knowledge getting a share of benefits as compensation for sharing their valuable
58 Intellectual Property needs and expectations of TK holders, WIPO report on Fact finding
missions on IP and TK(1998 -1999) available at www.wipo.int/tk/en/tk/ffm/report/final/
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knowledge or getting joint ownership in IP rights are not viable options but an
instrument which would destroy their age old traditions and beliefs.
As Andreass Bachmann quoted there is invariably a moral basis involved in fairness
aspect of benefit sharing59. But ethical consideration under CBD is just a political
arrangement to bring balance of interests between gene poor industrialized nations
and biodiversity rich nations who are craving for development. ABS mechanism
envisaged in CBD does not preclude intellectual property rather idea is that private
users may create and patent products based on legally acquired genetic resources
and share benefit generated by commercialization of these products with the
providers of genetic resources. Basically this idea fails to justify ABS from the angle
of traditional knowledge holders or genetic resources providers as it converts
common knowledge which is part of the lifestyle of indigenous communities into
exclusive rights
But on an overall scale ABS can be regarded as a platform for making consensus
between Intellectual property and rights of indigenous community. Developing
nations have to press in international foras for a stricter access regime which would
address the concerns of indigenous communities to a larger extent.
7) Conclusions and suggestions
Genetic resources and associated traditional knowledge are important leads for bio
prospecting and bio industry. Judicious and harmonious use of these resources in
bio prospecting can lead to sustainable human development in biodiversity rich
developing countries. The disproportionate distribution of biodiversity and associated
traditional knowledge and advancements in genetic engineering and biotechnology
in South and North countries continues to be a barrier in building mutually beneficial
bio-partnerships among these countries 60. Shutting down the doors of nations to
prevent researchers and Multinational companies from accessing vast biological
resources of developing nations in the name of protecting interests of indigenous
59 See Andreass Bachmann, Ethical aspects of benefit sharing available at
http://www.sib.admin.ch/uploads/media/ABS_Ethical_Aspects.pdf
60 See pushpangathan, value addition and commercialization of biodiversity and
associated traditional knowledge, available at www.nopciar.com
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communities is not feasible in the era of globalisation. ABS can prove to be a
platform in which indigenous communities could make claims for their interests along
with the support of concerned national authority.
The analysis of access and benefit sharing mechanism indicates that there are
number of links between access to biological resources, traditional knowledge and
management of patentable inventions.
Benefit sharing can be regarded as a
compensation for the absence of intellectual property protection for traditional

knowledge and genetic resources. It constitutes an instrument to address the
imbalance of the current intellectual property regime which leaves all public domain
knowledge outside the framework of protection but offers protection to innovations
made out of it. ABS mechanism can be regarded as an instrument to bridge the gap
between the CBD and the Intellectual property regime under the TRIPS.
Current IP regime under the TRIPS Agreement have already proved to be incapable
for protecting genetic resources or associated traditional knowledge. Increasing
instances of biopiracy in last decade is evidence for this. The implementation of
Doha Ministerial declaration is yet to take place as far as it relates to genetic
resources and traditional knowledge. The negotiations on harmonising CBD and
WTO TRIPS with reference to disclosure requirements of source of origin, Prior
Informed consent and benefit sharing in Patent application are still under way within
the TRIPS Council. Incorporation of disclosure requirements and prior informed
consent for patentable inventions having biological resources would help to prevent
misappropriation of patent system and for promotion of a fair and equitable benefit
sharing among the stake holders. Coupled with this requirement comes the need for
creating awareness among the stake holders. The Competent national authority
should initiate appropriate measures to ensure that the stakeholders before granting
PIC or entering into MAT are fully aware of the situation and is able to stand in an
equal footing with the MNCs while putting forth their claims.
Development of an international treaty which conveys the objective of Nagoya
protocol would be a desirable option to harmonize the provisions of CBD and TRIPS
Agreement. At international level developing countries would be unable to force for
sharing of specific benefits for providing access unless a broad access and benefit
sharing regime is adopted in the context of Biodiversity convention. Said treaty could
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provide for a new arrangement for inventions based on biological resources or
associated traditional knowledge.
At national level benefit sharing mechanism does not constitute an effective
mechanism to foster innovation like intellectual property.
Benefits sharing
mechanism especially when it relates to providing monetary compensation it act just

as a compensation mechanism for past contribution of communities and present
efforts for conservation. On the contrary nations should lay more emphasis on
sharing of non monetary compensation which would foster development of traditional
knowledge by improving the infrastructure of the provider country and also by
transfer of technologies and thereby improving research and development within its
boundaries.
As far as Indian position is concerned we are currently having two parallel benefit
sharing mechanism under two national legislations. An effort is needed to coordinate
the provisions relating ABS under both these legislations. Basically there is no need
to have separate benefit sharing mechanism under two Acts as the subject matter
are more or less similar. Procedural differences and confusion in this manner could
be avoided by bringing ABS mechanism of both Acts under a single institutional
structure. Besides legislative efforts need to be directed in order to include evidence
for PIC and contact for an appropriate benefit sharing mechanism within the
specification file along with the patent application. Benefit sharing regime would be
much strengthened and streamlined if it is applied as an integral part of patent
legislations.
On a whole benefits sharing should be viewed as a strategy for rebalancing the
current imbalances in intellectual property regime. Still there are number of factors
which acts as limitation for a proper benefit sharing mechanism like identification of
claimants, sharing of benefits in case of transboundary situations etc. Developing
countries should engage in constant deliberation for devising a sui generis system
that attempts to mitigate all these issues.
Bibliography
Books Referred
Page | 24

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available at www.justor.org/stable/27719838
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Page | 27

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Page | 28

ABS Mechanism For Protection of Traditional Knowledge

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ABS mechanism for protection of traditional knowledge and genetic