ROLE OF VARIOUS CONVENTIONS IN PROTECTION OF

TRADITIONAL KNOWLEDGE

What is traditional knowledge?

Traditional knowledge refers to the knowledge, innovations and practices

of indigenous and local communities around the world. Developed from
experience gained over centuries and adapted to the local culture and
environment, it is transmitted orally from generation to generation. It
tends to be collectively owned and takes the form of songs, stories,
cultural values, community laws and agricultural practices, including the
development of plant species and animal breeds. Traditional knowledge is
mainly of a practical nature, particularly in fields as agriculture, fisheries,
health, horticulture, forestry and environmental management.

Its role and value

There is a growing appreciation of the value of traditional knowledge. It is

valuable not only to those who depend on it in their daily lives, but to
modern industry and agriculture as well. Many widely used products, such
as plant-based medicines, health products and cosmetics, are derived
from it.
It can make a significant contribution to sustainable development as well.
Most indigenous and local communities are situated in areas where the
vast majority of the world's genetic resources are found. Many of them
have cultivated and used biological diversity in a sustainable way for
thousands of years. Some of their practices have been proven to enhance
and promote biodiversity at the local level and aid in maintaining healthy
ecosystems. However, the contribution of indigenous and local
communities to the conservation and sustainable use of biological
diversity goes far beyond their role as natural resource managers. Their
skills and techniques provide valuable information to the global
community and a useful model for biodiversity policies. Furthermore, as
on-site communities with extensive knowledge of local environments,
indigenous and local communities are most directly involved with
conservation and sustainable use.

Characteristics of traditional knowledge 

1. It must be transferred over various generations.

 2. Antiquity must be orally established.
3. It is a distinguishing factor that sets one community apart from
the others.
4. It is impossible to determine the origin of such knowledge.
5. It is learned through observation and practice.

International Forums 

There are a number of international forums working to protect Traditional

Knowledge such as Conservation of Biological Diversity, United Nations
Commission on Human Rights, World Intellectual Property Organisation,
World Health Organisation, etc. 

Convention on biological diversity 

The Convention on Biological Diversity was signed by 150 leaders of the

government in the Rio Summit. It is mainly dedicated to promoting
sustainable development. This Convention refers to Traditional Knowledge
as knowledge, innovations, and practice of the indigenous community and
the local community that embodies the traditional lifestyle for
conservation and use of biological diversity.

Article 8(j) of the Convention requires parties to respect and maintain

knowledge held by indigenous communities and promote the broader
application based on fair and equitable benefit sharing. A wider
application of such practices shall take place with approval and
involvement of the holders of traditional knowledge.  

Article 10(c) provides for the protection and encouraging customary use

of biological resources with respect to traditional cultural practices
compatible with conservation and sustainable use requirements. 
Article 15 refers to prior informed consent for access to genetic resources.
Access and benefit-sharing of genetic resources cannot be separated from
traditional knowledge of indigenous and local communities. 

Article 17 refers to the exchange of information. Under this Article, the

parties are obliged to exchange information based on indigenous and
traditional knowledge. It also talks about the return of information that is
important to indigenous and local communities which is relevant for
conservation and sustainable use of biodiversity. 

Article 16 of the Convention recognises traditional knowledge as a key

tech for effective practices of conservation and sustainable use of
biodiversity with procedural requirements established in Article 15 for
access to genetic resources including those based on informed prior
consent and mutually agreed with terms. 

The Nagoya Protocol

The Convention on Biological Diversity and 2010 Nagoya Protocol on

Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization (ABS) is a supplementary agreement
to the Convention on Biological Diversity (CBD) and it introduced
recognition and protection of traditional knowledge at international level.

The Nagoya Protocol was adopted in Nagoya, Japan on 29 October 2010

and entered into force on 12 October 2014. It broadens the Convention
on Biological Diversity provisions related to access and benefit-sharing.
The Contracting parties are required to take measures to ensure prior
informed consent of the communities, fair and equitable benefit sharing,
community laws and procedures and customary use and exchange.
The International Treaty on Plant Genetic Resources for Food and

Agriculture

The Commission on Genetic Resources for Food and Agriculture, the FAO
Conference adopted the International Treaty on Plant Genetic Resources
for Food and Agriculture in November 2001. It was ratified by 40
governments and was entered into force in 2004. Its aim is to guarantee
food security by conserving, exchanging and sustainable use of plant
genetic resources for food and agriculture and the benefit-sharing that
arises from its use.

Article 9.2(a) provides for the protection of traditional knowledge with

respect to plant genetic resources for food and agriculture. 

This treaty is legally binding and is in harmony with the CBD. It is

necessary to have international cooperation and exchange of genetic
resources for food security. Through this treaty, the parties have created
a multilateral system for facilitating access to plant genetic resources for
food and agriculture and benefit sharing in a fair and equitable way. 

World International Property Organisation

The WIPO seeks close cooperation with other international agencies to

take into account consideration for the protection of traditional
knowledge. The Inter-governmental Committee on Intellectual Property
and Genetic Resources conducts text-based negotiation for this purpose.

It is important to patent, trademark such innovations or protect it in the

form of geographical indication, trade secrets or confidential information.
They can be provided with two kinds of protection in the intellectual
property system:

Positive protection
It refers to enacting laws, rules and regulations, royalties’ access and
benefit-sharing provisions etc. 

Sui generis legislation: In some countries, sui generis legislation is there

to ensure positive protection of traditional knowledge. As IP protection
has its own downsides and loopholes, there has been an increasing
demand for sui generis legislation. It provides a legal framework of
traditional knowledge’s protection, enforcement of rights of indigenous
communities, provisions of access and benefit-sharing system etc. 

Defensive protection

It refers to preventing acquisition of IP over Traditional Knowledge so that

any third parties don’t get illegitimate intellectual property rights over.
These also include amendments under the WIPO administered patent
systems. These are International Patent Classification and Patent
Cooperation Treaty Minimum Documentation. 

World Trade Organisation 

The WTO does not confront the implications of its TRIPS Agreement for
the protection and use of traditional knowledge. The TRIPS Agreement
does not expressly provide for protection for the traditional knowledge or
innovations of indigenous or local communities however it creates
flexibility for establishing measures which are alternative and non-
conventional for their protection.

Article 1 of the TRIPS Agreement provides that members may implement
more extensive protection in their domestic law than is required provided
it does not contravene the provisions of the Agreement. As per Dutfield,
this provision can be used by parties to protect traditional knowledge and
absence of mention of traditional knowledge does not prevent any party
of the Agreement from enacting the legislation to protect traditional
knowledge. 
United Nations Conference on Trade and Development

The United Nations Conference on Trade and Development (UNCTAD) in

2000 held an Expert Meeting on National Experiences and Systems for the
Protection of Traditional Knowledge, Innovations and Practices. The
member states requested for this meeting and a report was formulated
that expressed views of the experts. In February 2001 the Commission
adopted recommendations based on this Report. According to the report,
the protection is being discussed on various platforms. Moreover,
coordination and cooperation between intergovernmental organisations
working for the protection should be promoted. They made some
recommendations to be taken at the international level like:

1. Promoting training and capacity building for the implementation

of protection in developing countries and especially least
developed countries. 
2. Promoting fair and equitable sharing of benefits that favours the
local and traditional communities. 
3. Explore standards for the sui generis system which is
internationally organised

United Nations Educational, Scientific Cultural Organisation

The LINKS interdisciplinary initiative (The Local and Indigenous

Knowledge Systems programme) by UNESCO promotes local and
indigenous knowledge as well as its inclusion in the global climate science
and policy processes. 

Local and indigenous knowledge refers to skills developed by societies

with elaborate interactions with their natural surroundings. This local
knowledge refers to the fundamental aspects of day-to-day life of rural
and indigenous people. This knowledge is an integral part of a culture
which includes language, classification systems, practice, spirituality etc.
They are important aspects of global cultural diversity and provide a
foundation for sustainable development. 
LINKS has been influential in ensuring that local and indigenous
knowledge holders are included in contemporary policies to deal with
issues such as biological diversity assessment and management,
adaptation and assessment of climate change, preparation for natural
disasters and sustainable development.               

International Labour Organisation

The first agency of the United Nations to address issues of indigenous

people was the ILO. It established an expert committee in 1926 for
developing international standards for the protection of native workers.
This was the basis of adoption of the Convention Concerning the
Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries in 1957. It is often referred to as
the Convention 107. It deals with measures to integrate indigenous
people within modern production systems. 

The Convention 169 Concerning Indigenous and Tribal Peoples in

Independent Countries was the revised version produced in June 1989.
This version shuns the approach of promoting the assimilation of
indigenous as well as tribal people and promotes their protection as
distinct and separate groups. 

Article 2.2(b) of the Convention says that the government should develop
measures for promoting full realisation of the social, economic and
cultural rights of people in order to protect their social and cultural
identity along with their customs, traditions and institutions. 

Article 5(a) says that the social, cultural, religious and spiritual values and
practices of the indigenous and tribal people must be recognised and
protected. Moreover, a due account of the nature of the problems faced
by these people as groups and individuals should be taken. 

These provisions should be read in a manner so as to include recognition

and protection of traditional knowledge of the peoples.
International Union for protection of new varieties of plants

(UPOV)

The International Convention for the Protection of New Varieties of Plants

came into existence on 2 December 1961. The International Union for the
Protection of New Plant Varieties headquarters is in Geneva, Switzerland.
The UPOV system is a sui generis system with its mission to provide and
promote an effective system of plant variety protection and encourage the
development of new plant varieties for the benefit of the society. These
varieties must be distinct from existing and common varieties, sufficiently
uniform, stable and novel. In a way, this system ensures protection to the
traditional knowledge related to plant varieties and benefits arising
thereof.  

World Health Organisation

The World Health Organisation’s efforts in the protection of traditional

knowledge are based on its work on traditional medicine in cooperation
with other international organisations. Their work focuses on supporting
countries in spreading awareness, protection of knowledge of traditional
medicine and medicinal plants and securing fair and equitable benefit
sharing. In December 2000, WHO held an Inter-regional Workshop on IP
Rights in the Context of Traditional Medicine. The recommendations of
this workshop were to devise ways and means for the protection of
traditional medical knowledge of the community and biopiracy. It also
recommended strengthening customary laws for the same.

Conclusion 

Traditional Knowledge is the root of every country and thus their greatest
strength. It is a valuable source of knowledge that is exclusive to a nation
and what makes it stand out. It may help to find out solutions to various
problems. It is the centre and inseparable part of communities and is
inherited by their ancestors. Therefore, there is a strong need to protect
traditional knowledge. Steps must be taken at both the national and
international level. However, there is a pressing need to take steps at an
international level as every country is not capable of ensuring such
protection themselves. The need of the hour is to inculcate informal
norms which can provide effective implementation to the protection of
traditional knowledge.