Mismatch between TK (traditional knowledge) and IPR means it cannot sufficiently provide protection

A number of arguments have been offered for the imperative of extending IPR protection to TK of biodiversity. The main advantages of protection would be preventing the misappropriation of knowledge by unauthorised parties without prior informed consent and ensuring that the holders of TK benefit. It is also assumed that this would help promote the use of TK in development, help preserve traditional practices and culture, and lead to the conservation of biodiversity. Also, considerations of justice and equity demand that the knowledge created by local and Indigenous communities in fields and forests must be recognized as the property of its creators just as the knowledge created in the laboratories is acknowledged as the property of the innovators (Sahai & Barpujari, 2006). Article 8(j) of the Convention on Biological Diversity (CBD, 1992) provides the primary legal basis internationally for ensuring protection of this knowledge by explicitly stating that, Each contracting Party shall, as far as possible and as appropriate: Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices. (p. 6). A number of issues and challenges, however, get in the way of extending effective protection to TK of biodiversity and the TK holders themselves. One main problem is believed to be the inherent mismatch between the nature of intellectual property (IP) and that of TK. As observed by the Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity (Working Group, 2007) TK at the community level works under customary rules and this context is lost when the knowledge escapes into foreign systems. It observes that, while IPR aim to commodify or commercialize certain pieces of knowledge, this is generally not the purpose behind customary rights in TK. Further, the idea of ‘exclusivity’ of rights under the IP system may conflict with customary law concepts of how knowledge and resources should be treated (Working Group, 2007). However, as discussed later in the paper, it would be presumptuous to assume that Indigenous communities do not have the concept of individual ownership of knowledge. Many countries have sought to address this gap by enacting sui generis IP regimes. The term sui generis is used in IP law to describe a regime designed to protect rights that fall outside the traditional patent, trademark, copyright, and trade secret doctrines (Black, 1968). It is, thus, a special system adapted to a particular subject matter, as opposed to protection offered by one of the main systems of IP protection. Sui generis regimes, like the Indian Biological Diversity Act (2002), recognize the need for equitable sharing of benefits arising out of the commercialisation of biological diversity and associated knowledge, and try to provide an institutional framework for regulating access and according IP protection. The Act is, however, largely silent on the issue of IPR of the TK holders over their knowledge. Sui generis regimes, like Peru’s Law No. 27,811, 2002, Philippines’ Indigenous Peoples Rights Act, 1997, Thailand’s Act on Protection and Promotion of Traditional Thai Medicinal Intelligence, B.E. 2542, 1999 have opted to go a step further by recognizing the IP of the TK holders over their knowledge and right to withhold access. Some regimes, like the case in the Philippines, have sought to accord recognition to the pre-eminence of customary law in these matters. In fact, the Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity (2007) recommend the use of the principles of customary law as the basis for developing a range of sui generis mechanisms, which could provide a means to strengthen and maintain core traditional values, while allowing communities the flexibility of responding and adapting to changing circumstances, opportunities, and threats. This, is, however, not easily reflected in most legislation of this kind.