PROTECTING INDIGENOUS TRADITIONAL KNOWLEDGE:

ADDRESSING LEGAL GAPS AND GENDER DISPARITIES IN INDIA

Abstract
Since time immemorial, there have been various inventions made. These ‘inventions’ have
been passed from generation to generation. Any such invention created out of traditionally
known components is said to be transferred as traditional knowledge. Interestingly, the
traditional knowledge is fraught with conflicts relating to its protection. It faces issues with
legal recognition. These problems tend to assess the role of Intellectual Property Rights for a
deeper comprehension and enhanced insight. The Intellectual Property Rights do not consider
the unauthorized or third parties for the patent rights. It attends to the people who have abundant
material assets and overlook the ones lacking such assets. Women in India lack these resources,
both in terms of capital and land. India has been a male dominated society since the very
beginning and these gaps intensify reasons for gender inequality resulting in women losing
their 'ownership' over this traditional knowledge and innovation, as their knowledge cannot be
patented due to the narrow existing legal system over Intellectual Property Rights. This lapse
in Intellectual Property protection restricts the women's rights hindering their social and
economic status as their work could not be patentable. This paper extensively analyses
complications regarding the absence of the legal protection of the traditional knowledge of the
indigenous communities, especially in terms of socio-economic strata of women, who are the
shields of traditional knowledge. On top of this, the authors of the paper further deal with the
facets of globalization and capitalisation which are interlinked with the issue including the
concept of benefit sharing. Further, it is observed that India may require some comprehensive
national legislation to safeguard the interests of these Indigenous communities.

Keywords: Gender Inequality, Indigenous communities, Intellectual Property Rights,

Traditional Knowledge, Women Empowerment

This paper is co-authored by Aishani Rautaray (Third-year B.A.LL. B (Hons.) student) at New Law College,
Bharati Vidyapeeth (Deemed University), Pune & Abhay Gupta (Third-year B.A.LL. B (Hons.) student) at
Dharmashastra National Law University, Jabalpur.

1
 Chapter 1
Introduction
“When an elder dies, a library burns”
~ Amadou Hampâté Bâ1
When an old person dies, he takes away with him all the hereditary knowledge he had. This
intellect extinguishes and can never be brought back. Traditional Knowledge is usually
“communicated and transferred orally and is also informal.”2 Consequently, it is subject to
misuse and therefore it is essential to protect it in some or the other way. At the outset, the
central issue is that ancestrally gained knowledge requires safeguarding3 and must be protected
before it vanishes totally. This ancestral knowledge which passes from generation to generation
is also known as Traditional Knowledge. Most of the traditional knowledge is rooted in
pioneering new concepts and developing them as new inventions.4
When considering the issue of traditional knowledge and protection of the Indigenous
communities, it is “important to remember the role of Indigenous women”5 as they are the
shields (of protecting) traditional knowledge. Since India has always been a male-dominated
society, there have been various gender-prejudiced impacts, encompassing the implications on
indigenous communities and their traditional knowledge. Delving into the position of women
in India, they consistently lag in every aspect. From ownership to education, women fall behind
men in Indian society and have always been subject to biases. These socio-cultural
environments “relegates women to a subjugated position.”6 The issue with the IP rights patent
laws is that they are prone to advantage the ones who have plentiful material assets,
disregarding the ones lacking these assets. This hinders the social strata of the women and lacks
in their economic well-being. There exists a connection between the empowerment of women
and the enhancement of trade.
There have been various exchanges of dialogues between scholars for the protection of

1
A Malian writer and historian.
2
Sonal Sodhani, ‘Traditional Knowledge and Patents’ (Mondaq, 30 May 2019)
<www.mondaq.com/india/patent/810280/traditional-knowledge-and-patents> accessed 28 May 2024
3
UNESCO, ‘Living Heritage: safeguarding without freezing’ (2023) CPE-2023/WS/10
4
Daniel Gervais, (ed), Intellectual Property, Trade and Development (3rd edn, OUP 2014) 314
5
Quebec Native Women Inc, ‘The Role of Indigenous Women in the Protection of Traditional Knowledge’
(Convention on Biological Diversity) <https://www.cbd.int/abs/side-events/id1670-qc-native-women.pdf>
accessed 2 June 2024
6
Tanvi Tanvi and Sharmila Narayana, ‘The challenge of gender stereotyping in Indian courts’ 2022 8(1) Cogent
Social Sciences <www.tandfonline.com/doi/full/10.1080/23311886.2022.2116815> accessed 3 June 2024

2
traditional knowledge through the IPR laws.7 Many scholars have contended that prevalent
systems of IPRs are “inadequate” to protect rights related to indigenous intellectual8 as the
range of the IPR laws is very much restricted. Because of this limited scope, the demand has
been steadily rising for a distinctive system, so that traditional knowledge could be protected.
The demand shall provide a “legal framework of protection of TK”, “enforcement of rights of
indigenous communities”, “prevent misuse and control of TK”, provisions of ABS (access and
benefit sharing) system etc.9
Since, it is mentioned above that Traditional Knowledge is subject to misuse, they must be
warranted protection in some other way also, other than IPR rights. So, if IPR is not the
solution, what are the measures by which legal protection of traditional knowledge can be
achieved, protecting the rights of indigenous communities at the same time?
As indicated, the paper will firstly address the issues regarding traditional knowledge, then
heading towards the role and importance of women in protecting this knowledge. The structure
will further proceed to expand on the ongoing debates between various scholars. To sum up,
certain suggestions and recommendations will be provided to preserve the traditional
knowledge.

7
Elaborated upon in the chapter on debates
8
David Downes, ‘Using Intellectual Property as a Tool to Protect Traditional Knowledge: Recommendations for
Next Steps’ (1997) Center for International Environmental Law Discussion Paper (Discussion draft)
<https://ciel.org/Publications/UsingIPtoProtectTraditionalKnowledge.pdf > accessed 01 June 2024
9
Vatsala Singh, ‘IPR Vis- à- Vis Traditional Knowledge’ <www.khuranaandkhurana.com/2018/10/05/ipr-vis-a-
vis-traditional-knowledge> (Khurana & Khurana, 08 October 2018) accessed 02 June 2024

3
 Chapter 2
Understanding Traditional Knowledge and its Issues
"It is important for us to maintain the knowledge of our ancestors and pass it on to
future generations. This is the only way we can ensure the continuity of our culture and
identity."
~Rigoberta Menchú Tum10
World Intellectual Property Organisation in its book has defined traditional knowledge as a
“living body of knowledge that is developed, sustained and passed on from generation to
generation within a community, often forming part of its cultural or spiritual identity.”11 It is
“inherently dynamic” and “a continuous process of verification, adaptation and creation” which
adapts its form and substance in response to shifting environmental and social situations.12 In
India, the cultural heritage and traditional knowledge is rooted in the Vedas.13
For centuries, Traditional knowledge has always been an evolving knowledge, thus, is root of
developing new inventions. With the growing levels of globalisation and social transformation,
the world is aligning towards capitalism, consequently giving rise to profit driven motives.14
However, the Indian way of life is structured in a way that not all people can grapple with the
acceptance of globalisation, hence, rural inhabitants continue to be dependent on Traditional
knowledge for various reasons. Therefore, the failure to preserve this knowledge will lead to
the diminution of ‘cultural identity’ and ‘community innovation’.
The significance of traditional knowledge resides in various facets, largely in the form of
stories, songs, artistic expressions, cultural events, beliefs, rituals, laws, languages, agricultural
practices and know-how relating to architecture, textile-making, fishery, health, and forest
management.15 For example, the knowledge has facilitated in making way for medical progress
and various disease management.16 The traditional knowledge intends to shield the medicinal

10
Rigoberta Menchú Tum, an indigenous rights activist and Nobel Peace Prize recipient
11
World Intellectual Property Organisation, Intellectual Property and Genetic Resources, Traditional Knowledge
and Traditional Cultural Expressions (1st edn, World Intellectual Property Organization 2020)
12
Douglas Nakashima, ‘Conceptualizing Nature: The Cultural Context of Resource Management’ 1998 34(2)
Nature and Resources 8
13
Madhavi Sunder, ‘The Invention of Traditional Knowledge’ 2007 70(2) L and Contemporary Problems
<www.jstor.org/stable/27592181> accessed 3 June 2024
14
Jigmee Wangchuk Bhutia, ‘Social Transformation and Its Impact on Traditional Knowledge’ 2020 11(1) Indian
Journal of Law and Justice <http://ir.nbu.ac.in/handle/123456789/4005> accessed June 3 2024
15
Javier Garcia, ‘Fighting Biopiracy: The Legislative Protection of Traditional Knowledge’ 2007 18(2) Berkeley
La Raza Law Journal < https://lawcat.berkeley.edu/record/1121059?ln=en&v=pdf> accessed 2 June 2024
16
Bhutia (n 14)

4
plants, thereby contributing to the “conservation and sustainable use” of biodiversity.17
Having signed the CBD, India, made it necessary to bring it into effect through the Biological
Diversity Act, 2002. However, regardless of its application of the patents, there are some
notable gaps, which are undeniable. Firstly, there is no external oversight for intellectual
property rights abroad18, which is believed to be a restrictive approach. It lacks jurisdiction and
does not monitor the applications of Indian nationals living abroad. Secondly, there is “no legal
protection”19 against the misuse and misappropriation of traditional knowledge.
The introduction of the Nagoya Protocol is a key milestone for the local and indigenous
communities. It emphasizes the concept of benefit sharing. Since traditional knowledge is a
cross-cutting issue in global discussions, this protocol is the first “international instrument” to
prioritize fair and equitable sharing. There have been various protocols furnished aiming to
work for their development and better future.
As stipulated in “Article 27(3)(b)” of the TRIPS Agreement,20 The Protection of Plant Varieties
and Farmers’ Rights Act, 2001 was enacted as a sui generis legislation. The Act talks about the
“farmers’ rights”21 as well as the “rights of the communities”,22 which also brings in the concept
of benefit sharing within the same context.
The above-mentioned acts and agreements may approach indirectly for the sustenance of
traditional knowledge, but lack comprehensive coverage and leave out certain elements,
thereby increasing the need for actual legal recourse to protect and preserve traditional
knowledge in this accepting world of globalisation.
Another aspect traditional knowledge is that this indigenous knowledge is susceptible to misuse
and misappropriation, officially referring to it as Biopiracy. Though, not a legal concept but is
dubbed as a “socio-political device”.23 For example, alluding to a significant issue “The Neem
Case”, where the “international harmonisation of property rights legislation” was queried by
the Indian cultivators, resultingly, forming them into throngs against this proposed pact of

17
‘Article 8(J) - Traditional Knowledge, Innovations and Practices’ (Convention on Biological Diversity, 19
September 2021) <www.cbd.int/traditional/intro.shtml> accessed 3 June 2024
18
Anu Bala, ‘Traditional Knowledge and Intellectual Property Rights: An Indian Perspective’ (SSRN, 5 November
2011) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1954924> accessed 3 June 2024
19
ibid 29
20
Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, (adopted 15 April 1994, entered into
force 1 January 1995) 1869 UNTS 299 (TRIPs Agreement) Preamble
21
The Protection of Plant Varieties and Farmers’ Rights Act 2001, s 39
22
ibid s 41
23
Tarun Khurana and Tanya Saraswat, ‘The Neem Patent Case’ (Mondaq 23 February 2023)
<www.mondaq.com/india/patent/1286020/the-neem-patent-case> accessed 4 June 2024

5
GATT Uruguay Round.24 Numerous withdrawals of Neem, patented by the US companies, got
the farmers agitated which they called it as violation of their intellect also known as Biopiracy.
Citing another instance, the famous case of “Basmati Rice”. An aromatic rice, named Basmati,
traditionally has its origin in India and Pakistan, where the farmhands, over the ages have
“developed, nurtured, and conserved” it.25 However, the RiceTec Company sought for the
patent protection of the Basmati rice, which was a step for unauthorised exploitation and
tantamount to biopiracy.
Nonetheless, there has been a bright spot of shielding, which has been “pioneering initiative”26,
Traditional Knowledge Digital Library (TKDL), in unified effort with the Council of Scientific
and Industrial Research (CSIR) has been a successful and positive tool in India, striving to
protect the indigenous traditional knowledge, including the medicinal knowledge, by
cataloguing (the) knowledge publicly which includes the traditional medicine experts
(Ayurveda, Unani, Siddha, and Yoga).27
Today creativity and innovation are important factors for the growth of the world economy.
But traditional knowledge faces serious levels of erosion, one of the reasons being that the
youthful cohort is not interested in protecting traditional knowledge, conversely looking for
individual benefit in this cutthroat environment. This exemplifies how the personal gains of the
people are over powering the community knowledge and community innovation, due to the
rise of capitalism in the Indian society.

24
Vandana Shiva, ‘The Neem Tree - a Case History of Biopiracy’ (Third World Network Berhad)
<https://twn.my/title/pir-ch.htm> accessed 5 June 2024
25
Saipriya Balasubramaniam, ‘Traditional Knowledge And Patent Issues: An Overview Of Turmeric, Basmati,
Neem Cases’ (Mondaq 18 April 2017) <www.mondaq.com/india/patent/586384/traditional-knowledge-and-
patent-issues-an-overview-of-turmeric-basmati-neem-cases> accessed 5 June 2024
26
‘Traditional Knowledge Digital Library Unit (TKDL)’ (Council of Scientific & Industrial Research)
<www.csir.res.in/documents/tkdl> accessed 5 June 2024
27
‘About the Traditional Knowledge Digital Library’ (WIPO)
<www.wipo.int/meetings/en/2011/wipo_tkdl_del_11/about_tkdl.html> accessed 6 June 2024

6
 Chapter 3
Traditional Knowledge and Role of Women
“There is no tool for development more effective than the empowerment of women.”
~Kofi Annan
It is important, not to apply a broad brush of information for traditional knowledge as several
studies scrutinize that there are gender-distinct behaviours and gender-differentiated roles.
Women are a major driving force in preserving traditional knowledge since they transmit the
indigenous knowledge which is traditionally oriented and culturally based.
Indeed, women have been the custodians of knowledge inherited from generations, holding
“fundamental roles”28 in their generational transmission and preservation. As evidence shown
from the Socio-economic data collected from Lençóis community in South Africa that Women
(from the Lençóis community) knew a higher percentage of medicinal plant conventional
names (48.2% vs. 36.7% for males) and medicinal applications of the species (27.4% vs. 17.7%
for men).29 A similar pattern has been observed in Blouberg area, where the traditional healing
business has been dominated (80%) by women.30 Shehanaz, through her research, has
discovered that numerous Bengali folk songs “carry traditional agricultural knowledge on
cropping sequence, intercultural operation, plant protection, planting times”31, help the
knowledge to preserve and transfer safely to the next generation.
Women’s crucial involvement in the imperative work of the rural households has a valuable
contribution in making them the custodians of traditional knowledge. They decide on the meals
for their family and are mindful of the “seasonal variations and traditional dietary practices”.
Womenfolk are also ‘hero’ of ecological conservation, which is done by keeping the seeds
stored and sustaining them for future use, consequently, seen as "the selectors and preservers
of the seeds”.32 Women, in various ways have preserved biodiversity and have developed

28
Dr. Anita Tzec and Maya Yucatec, ‘Celebrating and Upholding Indigenous Women – Keepers of Indigenous
Scientific Knowledge’ (IUCN, 09 August 2022) <www.iucn.org/blog/202208/celebrating-and-upholding-
indigenous-women-keepers-indigenous-scientific-knowledge> accessed 14 June 2024
29
Robert Voeks, ‘Are Women Reservoirs of Traditional Plant Knowledge? Gender, Ethnobotany and
Globalization in Northeast Brazil’ (2007) 28 Singapore Journal of Tropical Geography 7
30
Malehu K Mathibela and others, ‘Socio-Cultural Profile of Bapedi Traditional Healers as Indigenous
Knowledge Custodians and Conservation Partners in the Blouberg Area, Limpopo Province, South Africa’ (2015)
11 Journal of Ethnobiology and Ethnomedicine 1
<https://ethnobiomed.biomedcentral.com/articles/10.1186/s13002-015-0025-3> accessed 7 June 2024
31
Alam Shehanaz and Debabrata Basu and Shuvam Gorai, ‘Traditional Knowledge of Agriculture in Bengali Folk
Songs’ (2024) 23 Indian Journal of Traditional Knowledge 346
32
Vandana Shiva, ‘Women’s Indigenous Knowledge and Biodiversity Conservation’ (1992) 19 India
International Centre Quarterly 205 <www.jstor.org/stable/23002230> accessed 7 June 2024

7
knowledge from generation to generation. For instance, they play an important role in
“selection, improvement and storage of seeds”, and manage the small livestock in regions like,
Colombia, Bolivia, Vietnam, Peru, India and Indonesia.33
Although aware that women have a critical role to carry out as "users and managers of
biological resources”34, yet, both nationally and internationally their inclusion is profoundly
constrained, highlighting the gender-based disparity. A constructive interpretation of Principles
20 and 22 of the Rio Declaration on Environment and Development (1992) highlights that
women play a “vital role” in managing and developing environment “because of their
knowledge and traditional practices.”35 Principle 20 of the declaration independently advocates
for the “full participation” of women in management and development as it is “essential to
achieve sustainable development.”36 Women can hand their support in “[providing] valuable
information to the global community about conservation and sustainable use.”37
Despite major contribution by women in the conservation of biodiversity their work is
considered as “non-work” and “non-knowledge”38. The knowledge of men is considered as
work and is mainly payable whereas, the same knowledge of women is considered as “non
work”. Though defined into nature, their labour and knowledge are primarily overlooked on
“sophisticated” scientific and cultural practice basis.39
This indicates how the society works predominantly and how gender prejudice permeates
throughout the society. Disregarding the indigenous knowledge of the women, they also face
repercussions regarding their social strata, and diminishing socio-economic development as
well. Women's marginalisation results in the marginalisation of the information they conserve,
which is critical for ensuring livelihood security.40
India so far has been a male driven society, and therefore the efforts, knowledge, and
proficiency of women are mostly overlooked. This unacknowledged work of the women
because of the gender stereotyping society, keeps them socially disadvantaged and stunts their

33
Paola Deda and Renata Rubian, ‘Women and Biodiversity: The Long Journey from Users to Policy‐makers’
(2004) 28 Natural Resources Forum 201
34
ibid 201
35
Rio Declaration on Environment and Development (adopted in June 1992) A/CONF151/26/Rev.l (Vol l) (Rio
Declaration) Principle 20 and 22
36
ibid principle 20
37
CBD, ‘The Role of Indigenous Women in the Transmission of Traditional Knowledge’ (Convention on
Biological Diversity, 28 July 2022) <www.cbd.int/article/role-indigenous-women-transmission-traditional-
knowledge-IDWIP2022> accessed 8 June 2024
38
Shiva, ‘Women’s Indigenous Knowledge and Biodiversity Conservation’ (n 32) 210
39
ibid 210
40
Deda (n 33), 202

8
development and establishes a proportional relationship between women marginalisation and
biodiversity destruction.41
Hakki Pikki, one of Karnataka's major tribal clans, was previously known as bird-catchers and
has been producing hair oil based on their traditional expertise for several decades.42 They offer
their products in both national and international markets, with African nations playing a
prominent role. Women's standing in the community is very gloomy, as they are considered
simple "second rate citizens"43 because they predominantly beg. Not withstand anything, the
majority of traditional items are created by women in the community44, and safeguarding this
indigenous expertise would provide the community more rights over their products, as well as
boost their commerce on a worldwide scale.
The linked advantage is an improvement in the socioeconomic standing of women in the
community. More money from their goods will help them achieve financial independence and
improve their standing in the community.
In a society like India, the socio-economic development of indigenous women is obstructed
due to various reasons. Not having an equal representation in the public domain also has a
substantial impact, constraining their development. They also do not have any say in the
decision-making structures. The lack of acknowledgement of the inheritance rights of the
indigenous women is also an example of the “erosion of community ownership”.45
Since years, women have been transmitting their knowledge from generation to generation and
even today are known as the keepers of local knowledge. Being the guardians of indigenous
wisdom, they can bring a “paradigm shift”46 towards the economic growth, which can
eventually also help in achieving sustainable development goals.

41
Vandana Shiva, ‘Women’s Indigenous Knowledge and Biodiversity Conservation’ (n 32), 205
42
Darshan Devaiah B P, ‘Hakki Pikkis — Bird Catchers to Entrepreneurs of Traditional Medicine’ The Hindu
(11 May 2023) <www.thehindu.com/news/national/karnataka/hakki-pikkis-bird-catchers-to-entrepreneurs-of-
traditional-medicine/article66804393.ece> accessed 15 June 2023
43
Vinod H Naik, ‘A Socio Economic Study of Hakkipikki a Scheduled Tribe of Karnataka with Special Reference
to Shimoga District’ (thesis, Karnataka University 2002) 1
<https://shodhganga.inflibnet.ac.in:8443/jspui/handle/10603/96251#> accessed 15 June 2024
44
Shrinivasa M, ‘Mysuru: Hakki Pikki Community to Get Govt Help to Certify Their Products’ Times of India
(Mysuru, 11 November 2020) <https://timesofindia.indiatimes.com/city/mysuru/hakki-pikki-community-to-get-
govt-help-to-certify-their-products/articleshow/79159502.cms> accessed 15 June 2024
45
Secretariat of the Permanent Forum on Indigenous Issues, ‘Gender and Indigenous Peoples’ Economic and
Social Development’ <www.un.org/esa/socdev/unpfii/documents/BriefingNote2_GREY.pdf> accessed 15 June
2024)
46
Neelam Patel and Tanu Sethi, ‘Rural Women: Key to New India’s Agrarian Revolution’ (Niti Aayog, 3 March
2022) <www.niti.gov.in/rural-women-key-new-indias-agrarian-revolution> accessed 09 June 2024

9
 Chapter 4
Debates
“Indigenous peoples are the original scientists, engineers, and architects of the land. Their
knowledge systems have sustained them for millennia and must be safeguarded and
respected.”
~Dr. Gregory Cajete47
The debate to protect traditional knowledge is long in the tooth and still on its way to reaching
a definite conclusion. Affiliated countries at numerous multilateral stages have established
relations between traditional knowledge and intellectual property.48 The debate is rather
multifaced including conservation of resources, human rights, intellectual property rights,
sustainable development and benefit sharing mechanism49. The very first dimension of
arguments, as posited by the Commission of IPRs, focuses on the “confusion”50 that has been
prevalent in deriving the meaning of the word ‘protection’ in the context of Traditional
Knowledge.
The wider scope of the meaning of traditional knowledge and folklore, as these bits of
knowledge are not restricted to a particular context but have extended to “agricultural,
scientific, technical, ecological and medicinal knowledge as well as biodiversity-related
knowledge,”51 has perplexed the debates internationally. This broader interpretation has made
it more difficult to establish a consensus on these issues.
The sense of traditional knowledge has been bisected by the World Intellectual Property
Organisation (WIPO) in a General & Narrow sense. The general sense deals with the content
of such knowledge and the narrow sense refers to that knowledge including various traditional
activities (agricultural, scientific, ecological, medicinal, etc).52

Protection under TRIPs

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) which

47
A Tewa author and professor
48
Susy Frankel, ‘Attempts to Protect Indigenous Culture through Free Trade Agreements’, International Trade
in Indigenous Cultural Heritage (Edward Elgar Publishing 2012)
49
Saba, ‘Protecting Traditional Knowledge – the India Story till Date’
<www.scconline.com/blog/post/2018/04/23/protecting-traditional-knowledge-the-india-story-till-date/>
accessed 11 June 2024
50
Commission on Intellectual Property Rights, ‘Report of the Commission on Intellectual Property Rights’
<http://www.iprcommission.org/papers/pdfs/final_report/ciprfullfinal.pdf> accessed 12 June 2024
51
‘Traditional Knowledge’ (WIPO) <www.wipo.int/tk/en/tk/> accessed 14 June 2024
52
ibid

10
predominantly relates to “Desiring to reduce” contortions and obstructions to international
trade and to advocate “effective and adequate protection” of IPRs”, is an artful to stratagem to
promote Intellectual Property Rights and it binds the member countries to implement it.53 Since
its inception, the agreement was a pioneering instrument that an international treaty came up
with, consequently being, a basis of protection in significant fields of IPR and a restriction on
anti-IPR measures.54 This treaty can be termed as “the most controversial area of the WTO
system”55 particularly for promoting the interests of Northern part of the Globe i.e., the IP
exporting countries and limiting the interest of Southern part of the globe in context to their
local interest. Interestingly, traditional knowledge of local and Indigenous communities has
ascendancy in global South on which TRIPs agreement has a “profound silence” on the
protection traditional knowledge of indigenous people.56
Article 1(1) of this agreement provides flexibility to the members of the agreement in framing
protection related national laws that may provide “more extensive protection”57 than mandated
by the Agreement, provided that they are in conformity with the provisions of the agreement.
Thus, if traditional knowledge has to be protected under the “extensive protection” laws at
national level, then the national laws must not be restricted and confined to the agreement of
international level.
WTO Doha Ministerial Declaration of 2001 examined the possibility of connection between
protecting traditional knowledge under the CBD and TRIPs agreement. Paragraph 19 of the
Declaration58 “changed the TRIPS council” with examination but “no clear harmonization of
the two agreements has been completed.”59 The debate on issues were majorly based on two
points; firstly, by positive protection in TRIPs agreement by integrating a new intellectual
property protection category of sui generis60, and, secondly, by negative protection by
discounting traditional knowledge from patentability by the way of amendment under Article

53
TRIPs Agreement (n 20)
54
Curtis M Horton, 'Protection Biodiversity and Cultural Diversity under Intellectual Property Law: Toward a
New International System' (1995) 10 Journal of Environmental Law and Litigation 1
55
Aman Gebru, ‘the global protection of traditional knowledge: searching for the Minimum consensus’ (2017)
17 UIC Review of Intellectual Property Law 41
56
Jane Anderson, ‘Indigenous/ Traditional Knowledge & Intellectual Property’
<https://web.law.duke.edu/cspd/itkpaper/> accessed 16 June 2024
57
TRIPs Agreement (n 20) art 1(1)
58
World Trade Organisation, ‘Ministerial Declaration’ (14 November 2001) WT/MIN(01)/DEC/1
59
Mitsuo Matsushita and others, The World Trade Organization: Law, Practice, and Policy (3rd edn, Oxford
University Press 2015)
60
Sui Generis is a Latin word meaning ‘of its own kind’, a special form of protection regime outside the known
framework of IPRs

11
27 of the TRIPs agreement. The first idea was supported by India, Brazil & African group
countries including several other developing countries by adding a new clause which requires
patent applications to disclose the country of origin of genetic resources and traditional
knowledge used in inventions of which the patent has been sought.
Article 27(1) of the agreement makes available patent for any such “inventions, whether
products or processes, in all fields of technology, provided that they are new, involve an
inventive step and are capable of industrial application.”61 Interestingly, the term “inventive
step” and “non-obvious” shall have the same meaning as “capable of industrial application”
and “useful” respectively, as provided in the agreement itself. Traditional knowledge and
folklore are known to community(s) since a timeline. Thus, products of traditional knowledge
“fail the test for patenting”62 on inventive step also.
The condition laid down for patenting under Article 29(1) mandates to disclose every detail
regarding the invention for a person “skilled in the art” to reproduce the invention.63 These
mandates are the “standard patent law condition”64 hence, it is safe to point out by the
opponents, advocating patenting traditional knowledge, that “disclosing the invention” shall
have the negative impact on the rights of Indigenous people in safeguarding their traditional
knowledge as this knowledge will be accessible to the public domain for commercial entities.

Traditional knowledge and the aspect of Human Rights

The continuous cycle of debates over the protection of traditional knowledge has shifted to the
paradigm of the Human Rights owing to several reasons including exploitation of knowledge
by scientists and businesses in industrialised nations without providing just compensation to
Indigenous people65 The aspect of Human Rights added to the debate of protection is owing to
breach of fundamental morals in the result of appropriation of knowledge by industries.
National and International laws have failed to explicitly recognise these rights to protect
traditional knowledge in the context of Human Rights. Such rights of Indigenous people are

61
TRIPs agreement (n 20) art 27(1)
62 John Mugabe, Patricia Kameri-Mbote & D. Mutta, ‘Traditional Knowledge, Genetic Resources and Intellectual
Property Protection: Towards a New International Regime’ (2001-5) International Environment Law Research
Centre <www.ielrc.org/content/w0105.pdf> accessed 16 June 2024
63
TRIPs agreement (n 20) art 29(1)
64
John Mugabe, ‘Traditional Knowledge, Genetic Resources and Intellectual Property Protection: Towards a New
International Regime’ (n 62) 5
65
John Mugabe, ‘Intellectual Property Protection and Traditional Knowledge: An Exploration in International
Policy Discourse’ <www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.pdf>
accessed 17 June 2024

12
“ill-defined”.66
This shifting of argumentations has earned a transition in conceptualizing the arena of debates
including the rights of Indigenous people to control, use and able to derive benefits out of such
use of traditional knowledge.67 U.N. Committee on the Elimination of Racial Discrimination
(CERD) has emphasized that:
“[I]n many regions of the world indigenous peoples have been, and are
still being, discriminated against and deprived of their human rights
and fundamental freedoms and in particular that they have lost their
land and resources to colonists, commercial companies and State
enterprises. Consequently, the preservation of their culture and their
historical identity has been and still is jeopardized.”68
Issues with traditional ways to protect traditional knowledge are grappled with the unknowing
origin of knowledge and the scope of protecting these IPR laws encompass. Besides this, the
reasons of safeguarding “seem to be rooted in Human Rights.”69
It’s not the case that, the elements of traditional knowledge cannot be protected through patents,
copyrights, and trade secrets, but that the exploitation of traditional peoples and communities,
including holders of traditional knowledge, is fundamentally due to a widespread failure to
respect their basic rights, and not due to the inadequacies of IPRs to protect traditional
knowledge.70 United Nations Declaration on the Rights of Indigenous Peoples respects for
“indigenous knowledge, cultures and traditional practices” and recognizes the “urgent need” to
foster the rights of indigenous peoples recognised by treaties, accords, and other beneficial
partnerships with States.71 Article 31 of the Declaration incorporates the right of Indigenous
people to “maintain, control, protect and develop their cultural heritage, traditional knowledge
and traditional cultural expressions”. The Second part of the article imposes a need of taking

66
John Mugabe, ‘Intellectual Property, Traditional Knowledge and Genetic Resources Policy Options for
Developing Countries’ (International Conference on Intellectual Property, The Internet, Electronic Commerce
and Traditional Knowledge, Sofia, 29-31 May, 2001)
<www.wipo.int/edocs/mdocs/innovation/en/wipo_ectk_sof_01/wipo_ectk_sof_01_3_1.pdf> accessed 17 June
2024
67
Anderson (n 56) 39
68
U.N. Committee on the Elimination of Racial Discrimination, ‘General recommendation No 23 on the rights of
indigenous peoples’ in ‘Fifty-first session of’ (18 August 1997) UN Doc A/52/18
69
Matsushita (n 59) 647
70
Graham Dutfield, ‘TRIPS-Related Aspects of Traditional Knowledge’ (2001) 33 Case Western Reserve Journal
of International Law 233
71
United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007 UNGA Res
A/61/295

13
“effective measures” by the states to “recognize and protect the exercise of these rights” as
mentioned in first part. India is yet to receive a direct incorporation of voice of this article.72
The Constitution of India has stood for the rights of Indigenous people. Article 29(1) of the
Constitution endows a right to minorities for the conservation of any “distinct language, script
or culture of its own”.73 Similarly, Article 338A establishes the National Commission for
Schedule Tribes,74 tasked to safeguard all measures provided for the STs under the
Constitution.75 There are several other laws advocating rights of indigenous people overall, but
India has failed to bring on the table any comprehensive legislation upholding rights of
Indigenous people in context of Human Rights.

Gender bias in preserving traditional knowledge

Social status, especially in rural communities, is defined by the ownership of land which
invariably defines who has access to resources.76 Such ownership is looked at as “more than
just an economic resource”77 and it is an indicator of gender hierarchy in exurban communities.
Women’s subordinated position on this parameter “creates a structural dependence on men for
access to resources”.78 Prevalence of such bias is a severe “limitation” for their familial and
societal status and their independency on financial and professional choices.79 National Family
Health Surveys-5 II (NFHS-II) data shows that the proportion of women land/house owners in
rural India is just 45.7 per cent in 2019–21.80
Additionally, Geographical Indication (GI) system, one of the kinds of IPR, is an indication
which is placed on items with a distinct geographical origin and characteristics or a history that
are unique to that origin.81 It can aid in granting monetary benefits to creators and protect

72
ibid art 31
73
India Consti art 29(1)
74
ibid 338A(1)
75
‘Frequently Asked Questions: National Commission for Scheduled Tribes’ (National Commission for
Scheduled Tribes, 16 March 2023) <https://ncst.nic.in/content/frequently-asked-questions> accessed 18 June
2024
76
UN Office of the High Commissioner for Human Rights (OHCHR), Women's Rights are Human Rights, (2014)
HR/PUB/14/2
77
Tsegaye Moreda, ‘The Social Dynamics of Access to Land, Livelihoods and the Rural Youth in an Era of Rapid
Rural Change: Evidence from Ethiopia’ (2023) 128 Land Use Policy 1
78
OHCHR (n 76) 63
79
Harold Glenn and others, ‘Women’s land title ownership and empowerment: evidence from India’ (September
2018), 559 <www.adb.org/sites/default/files/publication/453696/ewp-559-women-land-title-ownership-
empowerment.pdf> accessed on 18 June 2024
80
Government of India, National Family Health Survey-5 phase-II (MOHFW, 2021)
81
‘Geographical Indications’ (WIPO) <www.wipo.int/geo_indications/en/> accessed 18 June 2024

14
associated traditional knowledge.82 One example of such benefit is giving GI indication to
Darjeeling tea, safeguarding their regional identification and the tea produced in Darjeeling
region to be only classified as Darjeeling tea. Such protection and recognition invariably help
women, associated with the production and harvesting of tea in Darjeeling region, in
empowering them83 also “allow local artisans to stay in their communities”84 without having to
abandon their traditional occupations for life in the congested cities. This kind of indirect
protection shall confer women with the ‘tag’ of economically active members of a society,
strengthening their status in society.
The Indian law which governs the Geographical Indication is Geographical Indications
(Registration and Protection) Act, 1999 is determined to provide “protection of geographical
indications relating to goods.”85 It protects various forms of traditional products which have
their roots in specific geographical locations. Yet, every standpoint has some or the other
contrasting sides, therefore this is not the best mechanism, as it leaves out the scope of
traditional technologies.86 A country like India, needs legislations that are not just based on
particular territorial areas and particular products, but comprehensive characteristics as the
country needs a strong hold in protecting regional interest of traditional knowledge via GI.
The debate economic empowerment of the women lies in the concept of ‘benefit sharing’
meaning to give due share. We have analysed this perspective also to take measurement of the
debates over the economic status of the women in community and its outcomes.

Benefit sharing and aspect of gender

Although the fundamental moral principle says that a person should get the credit or share or
compensation for what he has done, contribute or achieved, yet, such principles, in form of right
“have consistently been paid much less attention than financial interests” in laws relating to
Intellectual Property Rights.87
The benefit-sharing system is a protective mechanism for the indigenous people securing share
of the commercial benefit arising out of the uses of genetic resources, originating from their
traditional knowledge, specifically by developed countries. Access and benefit sharing has been

82
Pankaj Kumar, ‘Traditional Knowledge Related Intellectual Property Rights: Empowering Women’
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2914862> accessed 19 June 2024
83
ibid 3
84
Sunder (n 13) 99
85
The Geographical Indications of Goods (Registration and Protection) Act 1999, Preamble
86
Bala (n 18)
87
Lorie Graham and Stephen McJohn, ‘Indigenous Peoples and Intellectual Property’ (2009) 19 Washington
University Journal of Law & Policy 313

15
the “[area] of controversy, while commercialising [traditional knowledge].”88 The in-support
debate is that, for sharing the benefits getting out of invention or uses of genetic resource(s)
arising from the contribution of traditional knowledge “should receive a fair share”.89
Benefit sharing, between users and providers, can be monetary and non-monetary both.
Monetary sharing includes royalties of the commercial use of resources and non-monetary
sharing includes development of R&D. Point 13 of the Bonn Guidelines tends to “designate” a
“national focal point”90 to give details to the user about the contact details and processes and
requirements for accessing the information.91
The CBD is a “collective commitment” of various countries to “conserve and sustainably use”
the biological diversity92, and therefore, the commencement of the Nagoya Protocol, is an
essential attainment for “access and benefit sharing” in a “fair and equitable way” 93. It is an
inaugural instrumentation that is ensuring the protection of indigenous people and their local
knowledge, by a balanced and just distribution of resources arising from the “utilization of
genetic resources”94.
The concept of Benefit sharing system, not known to gender discrimination, was first
internationally established under Convention on Biological Diversity, 199395 (CBD), it holds
“equitable sharing of benefits”96 as one of its objectives in the Preamble of the convention
recognising the system, give powers to signatory nations, as in accordance with the Article 8(j)
of the convention, that such “equitable sharing of the benefits” is “[s]ubject to its national

88
Anurag Verma and Akanksha Singh, ‘Biopiracy: A Threat to the Protection of Traditional Knowledge in the
Reign of Intellectual Property Rights and a Need to Look Beyond IPR’s’ (2016) 45 KIIT Student Law Review 47
89
Shusneha Sarkar and Manu Singh, ‘Critical Analysis on Protection of Traditional Knowledge Bill, 2022’ (2023)
12 European Chemical Bulletin 836
<www.eurchembull.com/uploads/paper/36350730db48fd838deb259a59ff6610.pdf> accessed 19 June 2024
90
Secretariat of the Convention on Biological Diversity ‘Bonn Guidelines on Access to Genetic Resources and
Fair and Equitable Sharing of the Benefits Arising out of their Utilization’ April 2002 COP 6 Decision VI/24
91
‘Access and Benefit-Sharing Information Kit’ (Convention on Biological Diversity, 2011)
<www.cbd.int/abs/infokit/brochure-en.pdf> accessed 19 June 2024
92
National Biodiversity Authority (NBA), ‘Implementation of Nagoya Protocol on Access and Benefit Sharing:
India’s Experience’
<http://nbaindia.org/uploaded/pdf/Implementation%20of%20Nagoya%20Protocol%20in%20India.pdf>
accessed 3 June 2024
93
The Nagoya Protocol on Access and Benefit-Sharing (adopted 29 October 2010, entered into force 12 October
2014) 3008 UNTS 3 (Nagoya Protocol) art 5
94
NBA (n 92) 2
95
Convention on Biological Diversity (adopted 05 June 1992, entered into force 29 December 1993) 1760 UNTS
79 (CBD)
96
ibid art 1

16
legislation”.97 Such sharing shall be result of “Access to and Transfer of technology”98 and
“Exchange of Information”99 of genetic resources by the nation of origin and such nation “shall
take legislative, administrative or policy measure upon mutually agreed terms.”100
The Convention on Biological Diversity, 1992 concede the role of women in “conservation
and sustainable use of biological diversity” and affirms the Urge for “full participation” of
women at every stage of policy-making and its implementation for conserving biological
diversity in its Preamble101 but at the later stages in the Convention fails to deliver the
recognition in absence of any mechanism about it. Bonn guidelines also failed to restore the
equilibrium in subsequent time period.
Although the Convention failed to establish a mechanism for advocating gender inclusivity of
benefit sharing, yet, the minimum is to say is that the Convention recognize the role of women
in its Preamble opens the door for the advocates to “use the Preamble to fight for women’s
rights in decision-making and subsequent implementation of policies with regard to biological
diversity.”102
Kani tribe, lives in the Thiruvananthapuram’s forests, Kerala, traditionally a nomadic
community.103 The tribe won the negotiation for 50% of license fee and 50% of the royalty
obtained on the sale of Jeevani, a drug, obtained from a secret knowledge of tribe from a plant
Aarogyappacha.104 Later on, a trust, the Kerala Kani Samudaya Kshema Trust, was founded
with numerous objectives on which the benefits (license fee) shall be invested including
“insurance schemes for pregnant women”105. The benefits deriving by the women of the
conserver of the traditional knowledge are enough to alleviate their socio and economic
standards in the community.106
Although there are numerous efforts on how gender related issues in context of biological
diversity and how participation of women can be ensured to make benefit-sharing gender

97
CBD (n 95) art 8(j)
98
CBD (n 95) art 16
99
CBD (n 95) art 17
100
CBD (n 95) art15(7)
101
CBD (n 95) Preamble
102
Fatima Alvarez-Castillo and Dafna Feinholz, ‘Women in Developing Countries and Benefit Sharing’ (2006) 6
Developing World Bioethics 113
103
R V Anuradha, ‘Sharing with the Kanis a Case Study from Kerala, India’
<www.cbd.int/financial/bensharing/india-kanis.pdf> accessed 20 June 2024
104
ibid 5
105
‘Study Takes Critical Look at Benefit Sharing of Genetic Resources and Traditional Knowledge’ (WIPO)
<www.wipo.int/pressroom/en/prdocs/2004/wipo_pr_2004_373.html> accessed 20 June 2024
106
Has also been discussed in chapter 3

17
inclusive, yet, “very little attention [has been] paid” to the idea of importance of women in
“[influencing] the distribution of benefits”.107

107
Alvarez-Castillo (n 102) 115

18
 Chapter 5
Conclusion
The preservation and use of traditional knowledge must be guaranteed. Keeping this in mind,
the paper concludes the respect and awe that people have for this knowledge in great detail
while highlighting the insights of indigenous knowledge that have a wide range of uses in many
contexts. India falls short of maintaining gender inclusivity, an urgent need in the modern
world. Several examples have been provided of how traditional women safeguard and retain
this knowledge. Although the nation has several laws to preserve traditional knowledge, there
are certain flaws and oversights.
The debates over safeguarding traditional knowledge are persistent and advancing with time,
including resource conservation, human rights, intellectual property rights, sustainable
development, and benefit sharing.
The TRIPs agreement that has worked in mitigating the trade imbalances and affirming IP
protection has proved to be disputatious for the traditional knowledge, neglecting it altogether.
Article 1(1) allows member countries to exceed TRIPs' protection levels, enabling national
laws to protect traditional knowledge more extensively. The Doha Ministerial Declaration of
2001 has explored harmonizing TRIPs with the Convention on Biological Diversity (CBD) but
failed to reach a clear resolution.
The human rights considerations highlight the exploitation of traditional knowledge by
industrialized nations without fair compensation. Regardless of the fact that the UN Declaration
on the Rights of Indigenous Peoples and India’s Constitution are the proponents for indigenous
rights, India stipulates a requirement for comprehensive legislation, lacking currently. The
gender-based disparity with respect to the preservation of traditional knowledge restraints the
womenfolk in their socioeconomic position as the control of resources specifies the social
reputation.
Another component of IPR, Geographical Indication (GI), which is intrinsically based on origin
can also strengthen and uplift women in preserving their traditional roles, yielding economic
profits as well. Furthermore, the concept of benefit sharing under the CBD and Nagoya
Protocol aims to equitably distribute profits from traditional knowledge, acknowledging
women’s crucial role in biodiversity conservation and sustainable use.
Nevertheless, a new agreement that the WIPO member nations have approved appears to be a
"historic breakthrough." By creating rules that would benefit indigenous people and their patent
applications on their indigenous ideas, it is the first endeavour to address the crossroad of

19
intellectual property and indigenous knowledge.108

Suggestions
A few recommendations need to be made to fill up the gaps left by the eroding traditional
knowledge. Firstly, IPR typically has a predisposition towards a restrictive approach. It has
established its standards, but they don't encompass all facets or the complete picture of
traditional knowledge. Therefore, India must develop a comprehensive strategy, which calls
for broad-based laws that adequately safeguard traditional knowledge. The Indian Patent Act,
1970, section 3(p) does not permit the preservation or protection of traditional knowledge.109
The current IP system has several constraints that prevent communities from protecting their
traditional knowledge, allowing only individual entities to secure and preserve their indigenous
concepts. The comprehensive approach that patent laws must take would safeguard traditional
knowledge, which is now under significant threat, by issuing patents to entire communities.
Secondly, the field of education is vital to preserving traditional knowledge.
Particularly indigenous women need to be educated because most rural women are unaware of
their rights. By doing this, they could protect their indigenous and local knowledge, which,
with the support of some comprehensive legislation, may eventually be commercialised and
benefit the community as a whole. Promoting women's education increases their participation
in the workforce and economy, which in turn boosts productivity and stimulates innovation to
maximise international trade. In Hakki Pikki110 and other similar communities, women have
an equal role in raising their families as men do, but they also confront a significant income
gap that has been formed globally and is about 20% in developing countries where "informal
self-employment is prevalent."111 The concealed contribution of women to the unpaid
workforce has been acknowledged on a worldwide scale, but mere recognition is
ineffectual because the underpaid culture coexists with the unpaid culture, weakening the
contribution of women in the global GDP.
Thirdly, various initiatives for public awareness need to be initiated. Institutions, organisations,
and people as a whole need to work collectively to raise public awareness of traditional
knowledge and the need to maintain these ancient practices. Media coverage is among the finest

108
‘WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated
Traditional Knowledge’ <www.wipo.int/pressroom/en/articles/2024/article_0007.html> accessed 2 June 2024
109
Indian Patent Act 1970, s 3(p)
110
Read more in Ch 3
111
‘Facts and Figures: Economic Empowerment’ (UN Women, February 2024) <www.unwomen.org/en/what-we-
do/economic-empowerment/facts-and-figures> accessed 22 June 2024

20
illustrations for this outreach.112
Also, an excellent initiative titled The Protection of Traditional Knowledge Bill, 2022113,
tabled by Mr Shashi Tharoor, a member of parliament, has a number of recommendations and
ideas that are now missing from Indian legislation. When these recommendations are
implemented, the indigenous communities will feel safer. Section 2(iii) of the bill proposes to
establish a "knowledge society," which is a "separate group" within society that has an
"exclusive association" with various forms of traditional knowledge114 and is entitled to
many significant rights, such as maintenance, protection, and benefit-sharing.115 By unifying
their voices to counter the negative effects of globalisation and commercialization, such a body
constitution would aid in the structuring of the communities.

112
Sarkar (n 89) 840
<www.eurchembull.com/uploads/paper/36350730db48fd838deb259a59ff6610.pdf> accessed 19 June 2024
113
Tharoor S, ‘The Protection of Traditional Knowledge Bill, 2022’ (Digital Sansad, 1 April 2022)
<https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/87 of 2022 AS.pdf> accessed 17 June 2024
114
The Protection of Traditional Knowledge Bill 2022, s 2(iii)
115
ibid s 4

21