TRADITIONAL KNOWLEDGE:An Integrated & International Perspective
Srividhya Ragavan
Professor, University of Oklahoma
College of Law

At the Hong Kong Ministerial of the WTO,
a discussion on GI generated the following
comment:
“intellectual property rights are instruments
of industrial policy and that states express
preferences not based on moral
philosophy, but rather on whether they
believe their national interests are
maximized by granting or denying rights.”

Any protection regime, whether IP based
or sui generis should have an objective –
hence it generates two questions:
1.
Why do we need this protection?
How is our national interest maximized?
2.
Why Protect?

Two reasons why countries seek protection
for TK:
1.
Get even with the developed world for
imposing (IP) patents on the rest of the
world
2.
For generating economic benefits
(maximizing national economic interest)
Getting even …

I do not think that we are trying to get even because of the following
reasons:
1.
A WTO based solution would be preferred for generating crosssubject reciprocity
2.
Post – 1994, India has most successful when we worked with the
WTO system rather than against it
3. If we want to get even, it does not explain national TK legislations
4. The current exercise is a self-imposition of regulatory and
implementation burdens nationally and hence, we cannot be
getting even.
Maximizing National Economic
Interest

I find that the TK Bill has chosen an IP model despite India’s staunch
stand against IP in international organizations.

This is an IP based model because:
1. The Bill’s Preamble highlights “protection” as an objective. Any protection
regime is based on the concept of intellectual property rights
2. Protection model is also paradoxical since 3rd world countries opposed IP
rights to begin with.


Sui generis models seem to follow IP
Note that Regulatory & implementation costs in an IP based model
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
benefits, if so, for whom?

The TK Bill is unclear on what it seeks to
“protect/ regulate”
Traditional Knowledge refers to the collective
knowledge of a traditional community or a
family related to a particular subject or a skill
passed down from generation to generation for
at least 3 generations including but not limited
to …

Whether the legislation creates economic
Qbenefits,
2: What isif“collective”
– or, what is not “collective”
so, for whom?
Q 3: What
the difference
“collectiveon
knowledge”
“public knowledge”?
 isThe
TK Billbetween
is unclear
what itandseeks
to
- Rather, at what stage will “collective knowledge” become “public knowledge”?
“protect/ regulate”
Q 4:
What is the test to
determine whether
a knowledge
is “traditional”
Traditional
Knowledge
refers
to the
as opposed to “modern”
collective knowledge of a traditional
community or a family related to a particular
subject or a skill passed down from generation
to generation for at least 3 generations
including but not limited to …
What should be protected?

Definition of “traditional” remains important
to ensure that there is no taking from
public domain

Any legislation on TK has to provide
effective means for delineating public from
private domain.

Or, does it create a new quasi-private domain
(given the nature of the information?
How has other countries adopted
it?

Model 1 - ARIPO: Clearly defines
“community rights” and “community
knowledge”


Ties the definition with bio-diversity protection
along with a anthropological standard.
The entire legislation is tied with biological
diversity – something that the TK Bill in
India is lacking

1.
2.
3.
Tying with biological diversity makes the
model more economically efficient
because:
TK interacts closely with biodiversity
India already has an regulatory
establishment under the National
Biodiversity Act. Easier to add TK along
Q 5: Lack of adequate co-relation between biodiversity & TK
with that framework.
In practice, it is very hard to delineate
biodiversity with TK. Confusion between
2 sets of government authorities.

Model 2: Costa Rican

Uses a clear license based model.

Does not get into delineating private and public domain.

Instead, uses a simpler but more effective licensing
structure.

Interestingly, the recent trend, even in the US, is to
create efficient protection structures using licensing (and
not IP) models – even patent owners rely on this.

This model also creates close nexus between TK and
biodiversity.
Advantages of this model:
In associating with biodiversity, the Costa
Rican model bridges some of the gaps
from TRIPS

1.
•
•
•
Local working
Local training
Licensing for local use – all of this is done
outside the purview of TRIPS.
In dissociating with IP, this model
provides broader scope for protection
with less implementation costs and more
scope for improving returns in the future.
2.
•
InBio a classic example
Scenario 1

Developed Nations
Access – for
biotechnology assets
that are protected as
IP

Developing
Countries
Return for local
resources
Problem area
Not addressed by the Bill
Issues for Developing Countries
1.
Generating value from TK and
biodiversity assets



Most of these agreements are
dependent on mutual agreement to
generating value
Bargaining positions are central to
determining equities.
Note: Qualifying by-products of bioprospecting immediately generates a
market value.
Q 6: Bill does not generate a mechanism for
generating value of TK
Why valuation?

Objective: generating a value that
distributes the risks and benefits of
biodiversity assets proportional to several
factors:


Holding status; Potential market value; Need
for access, etc
Crux for solving issues from bioprospecting and TK acquisition
Risk disproportionately borne by
holder
Bio Value
Risk of capital (biodiversity) should be differentiated
from risk of investment
Market Value
Benefits disproportionately enjoyed by
accessor
Models for valuing biodiversity

Prospect Model
Built on the need of biodiversity to prospector
 Base Compensation+ future value depending on
disclosures
 Disclosure mechanisms need to be built into the
agreement


Information Model
Prospector negotiates an initial rate based on
prediction of success
 Each further test would be like purchasing an option
based on rate of success


Contract Based Model



Assumes any value determined before a
product comes to market is bound to be low
Hence, the model creates a pre-determined
risk v. need paradigm for every stage of
research based on which further use of
resource is negotiated.
The original contract precludes use of
material and its by-products under some
reasonable circumstances.
A footnote on TK & IP

Objective should be maximization of returns using
carefully sorted legal tools

Any legislation needs a framework – TK Bill’s framework
is unclear.

The current Bill is so broad that the scope for misuse is
higher than its ability to generate meaningful returns

Cautionary Note: Biggest issue with the IP regime is
over-protection



French Wines serve as a classic example
Implementation issues
Hence, the need to be more careful with TK.
Thank you.