TRADITIONAL KNOWLEDGE:- TRADITIONAL KNOWLEDGE:-

An Integrated & International PerspectiveAn Integrated & International Perspective

Srividhya RagavanSrividhya RagavanProfessor, University of Oklahoma Professor, University of Oklahoma

College of LawCollege of Law

At the Hong Kong Ministerial of the WTO, At the Hong Kong Ministerial of the WTO, a discussion on GI generated the following a discussion on GI generated the following comment:comment:

““intellectual property rights are instruments intellectual property rights are instruments of of industrial policy industrial policy and that states express and that states express preferences not based on moral preferences not based on moral philosophy, but rather on whether they philosophy, but rather on whether they believe their believe their national interests are national interests are maximized by granting or denying rightsmaximized by granting or denying rights.”.”

Any protection regime, whether IP based Any protection regime, whether IP based or or sui generis sui generis should have an objective – should have an objective – hence it generates two questions:hence it generates two questions:

1.1. Why do we need this protection?Why do we need this protection?2.2. How is our national interest maximized?How is our national interest maximized?

Why Protect?Why Protect? Two reasons why countries seek protection Two reasons why countries seek protection

for TK:for TK:

1.1. Get even with the developed world for Get even with the developed world for imposing (IP) patents on the rest of the imposing (IP) patents on the rest of the world world

2.2. For generating economic benefits For generating economic benefits (maximizing national economic interest)(maximizing national economic interest)

Getting even …Getting even … I do not think that we are trying to get even because of the I do not think that we are trying to get even because of the

following reasons:following reasons:

1.1. A WTO based solution would be preferred for generating cross-A WTO based solution would be preferred for generating cross-subject reciprocitysubject reciprocity

2.2. Post – 1994, India has most successful when we worked with the Post – 1994, India has most successful when we worked with the WTO system rather than against it WTO system rather than against it

3. If we want to get even, it does not explain national TK legislations3. If we want to get even, it does not explain national TK legislations

4. The current exercise is a self-imposition of regulatory and 4. The current exercise is a self-imposition of regulatory and implementation burdens nationally and hence, we cannot be implementation burdens nationally and hence, we cannot be getting even. getting even.

Maximizing National Economic Maximizing National Economic InterestInterest

I find that the TK Bill has chosen an IP model despite India’s staunch I find that the TK Bill has chosen an IP model despite India’s staunch stand against IP in international organizations. stand against IP in international organizations.

This is an IP based model because:This is an IP based model because:

1. The Bill’s Preamble highlights “protection” as an objective. Any protection 1. The Bill’s Preamble highlights “protection” as an objective. Any protection regime is based on the concept of intellectual property rightsregime is based on the concept of intellectual property rights

2. Protection model is also paradoxical since 32. Protection model is also paradoxical since 3rdrd world countries opposed IP world countries opposed IP rights to begin with. rights to begin with. Sui generis models Sui generis models seem to follow IP seem to follow IP

Note that Regulatory & implementation costs in an IP based model Note that Regulatory & implementation costs in an IP based model reduces efficiency (Art. 40 argument).reduces efficiency (Art. 40 argument).

Q 1: How does the Bill provide for “protection?” – what happens when someone does not “protect” TK?

Whether the legislation creates economic Whether the legislation creates economic benefits, if so, for whom?benefits, if so, for whom?

The TK Bill is unclear on what it seeks to The TK Bill is unclear on what it seeks to “protect/ regulate”“protect/ regulate”

TraditionalTraditional KnowledgeKnowledge refers to the collective refers to the collective knowledge of a traditional community or a knowledge of a traditional community or a family related to a particular subject or a skill family related to a particular subject or a skill passed down from generation to generation for passed down from generation to generation for at least 3 generations including but not limited at least 3 generations including but not limited to …to …

Whether the legislation creates economic Whether the legislation creates economic benefits, if so, for whom?benefits, if so, for whom?

The TK Bill is unclear on what it seeks to The TK Bill is unclear on what it seeks to “protect/ regulate”“protect/ regulate”

TraditionalTraditional KnowledgeKnowledge refers to the refers to the collective knowledge collective knowledge of a of a traditional traditional community or a family related to a particular community or a family related to a particular subject or a skill passed down from generation subject or a skill passed down from generation to generation for at least 3 generations to generation for at least 3 generations including but not limited to …including but not limited to …

Q 2: What is “collective” – or, what is not “collective”

Q 3: What is the difference between “collective knowledge” and “public knowledge”?- Rather, at what stage will “collective knowledge” become “public knowledge”?

Q 4: What is the test to determine whether a knowledge is “traditional” as opposed to “modern”

What should be protected?What should be protected?

Definition of “traditional” remains important Definition of “traditional” remains important to ensure that there is no taking from to ensure that there is no taking from public domainpublic domain

Any legislation on TK has to provide Any legislation on TK has to provide effective means for delineating public from effective means for delineating public from private domain. private domain. Or, does it create a new quasi-private domain Or, does it create a new quasi-private domain

(given the nature of the information?(given the nature of the information?

How has other countries adopted How has other countries adopted it?it?

Model 1 - ARIPO: Model 1 - ARIPO: Clearly defines Clearly defines “community rights” and “community “community rights” and “community knowledge” knowledge” Ties the definition with bio-diversity protection Ties the definition with bio-diversity protection

along with a anthropological standard. along with a anthropological standard.

The entire legislation is tied with biological The entire legislation is tied with biological diversity – something that the TK Bill in diversity – something that the TK Bill in India is lacking India is lacking

Tying with biological diversity makes the Tying with biological diversity makes the model more economically efficient model more economically efficient because:because:

1.1. TK interacts closely with biodiversityTK interacts closely with biodiversity2.2. India already has an regulatory India already has an regulatory

establishment under the National establishment under the National Biodiversity Act. Easier to add TK along Biodiversity Act. Easier to add TK along with that framework. with that framework.

3.3. In practice, it is very hard to delineate In practice, it is very hard to delineate biodiversity with TK. Confusion between biodiversity with TK. Confusion between 2 sets of government authorities. 2 sets of government authorities.

Q 5: Lack of adequate co-relation between biodiversity & TK

Model 2: Costa RicanModel 2: Costa Rican

Uses a clear license based model. Uses a clear license based model.

Does not get into delineating private and public domain. Does not get into delineating private and public domain.

Instead, uses a simpler but more effective licensing Instead, uses a simpler but more effective licensing structure. structure.

Interestingly, the recent trend, even in the US, is to Interestingly, the recent trend, even in the US, is to create efficient protection structures using licensing (and create efficient protection structures using licensing (and not IP) models – even patent owners rely on this. not IP) models – even patent owners rely on this.

This model also creates close nexus between TK and This model also creates close nexus between TK and biodiversity. biodiversity.

Advantages of this model:Advantages of this model:1.1. In associating with biodiversity, the Costa In associating with biodiversity, the Costa

Rican model bridges some of the gaps Rican model bridges some of the gaps from TRIPSfrom TRIPS

• Local workingLocal working• Local trainingLocal training• Licensing for local use – all of this is done Licensing for local use – all of this is done

outside the purview of TRIPS.outside the purview of TRIPS.2.2. In dissociating with IP, this model In dissociating with IP, this model

provides broader scope for protection provides broader scope for protection with less implementation costs and more with less implementation costs and more scope for improving returns in the future. scope for improving returns in the future.

• InBio a classic example InBio a classic example

Scenario 1Scenario 1 Developed NationsDeveloped Nations

Access – for Access – for biotechnology assets biotechnology assets that are protected as that are protected as IPIP

Developing Developing CountriesCountries

Return for local Return for local resourcesresources

Problem area

Not addressed by the Bill

Issues for Developing Countries Issues for Developing Countries

1.1. Generating value from TK and Generating value from TK and biodiversity assetsbiodiversity assets Most of these agreements are Most of these agreements are

dependent on dependent on mutual agreement mutual agreement to to generating valuegenerating value

Bargaining positions are central to Bargaining positions are central to determining equities. determining equities.

NoteNote: Qualifying by-products of bio-: Qualifying by-products of bio-prospecting immediately generates a prospecting immediately generates a market value. market value.

Q 6: Bill does not generate a mechanism for generating value of TK

Why valuation?Why valuation?

ObjectiveObjective: generating a value that : generating a value that distributes the risks and benefits of distributes the risks and benefits of biodiversity assets proportional to several biodiversity assets proportional to several factors:factors:Holding status; Potential market value; Need Holding status; Potential market value; Need

for access, etcfor access, etcCrux for solving issues from bio-Crux for solving issues from bio-

prospecting and TK acquisitionprospecting and TK acquisition

Market Value

Bio Value

Benefits disproportionately enjoyed byaccessor

Risk disproportionately borne byholder

Risk of capital (biodiversity) should be differentiated from risk of investment

Models for valuing biodiversityModels for valuing biodiversityProspect ModelProspect Model

Built on the need of biodiversity to prospectorBuilt on the need of biodiversity to prospectorBase Compensation+ future value depending on Base Compensation+ future value depending on

disclosuresdisclosuresDisclosure mechanisms need to be built into the Disclosure mechanisms need to be built into the

agreementagreement Information ModelInformation Model

Prospector negotiates an initial rate based on Prospector negotiates an initial rate based on prediction of successprediction of success

Each further test would be like purchasing an option Each further test would be like purchasing an option based on rate of successbased on rate of success

Contract Based ModelContract Based Model Assumes any value determined before a Assumes any value determined before a

product comes to market is bound to be lowproduct comes to market is bound to be low Hence, the model creates a pre-determined Hence, the model creates a pre-determined

risk v. need paradigm for every stage of risk v. need paradigm for every stage of research based on which further use of research based on which further use of resource is negotiated. resource is negotiated.

The original contract precludes use of The original contract precludes use of material and its by-products under some material and its by-products under some reasonable circumstances. reasonable circumstances.

A footnote on TK & IPA footnote on TK & IP Objective should be maximization of returns using Objective should be maximization of returns using

carefully sorted legal toolscarefully sorted legal tools

Any legislation needs a framework – TK Bill’s framework Any legislation needs a framework – TK Bill’s framework is unclear. is unclear.

The current Bill is so broad that the scope for misuse is The current Bill is so broad that the scope for misuse is higher than its ability to generate meaningful returnshigher than its ability to generate meaningful returns

Cautionary Note: Biggest issue with the IP regime is Cautionary Note: Biggest issue with the IP regime is over-protection over-protection French Wines serve as a classic exampleFrench Wines serve as a classic example Implementation issuesImplementation issues Hence, the need to be more careful with TK.Hence, the need to be more careful with TK.

Thank you. Thank you.