DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY

Law and Agriculture

“PROTECTION OF TRADITIONAL KNOWLEDGE IN

THE AGRICULTURAL SECTOR IN INDIA"
FINAL DRAFT

SUBMITTED BY: UNDER THE GUIDANCE OF:

ANIKET SACHAN Mr. BHANU PRATAP SINGH

ENROLMENT NUMBER: 170101028 ASSISTANT PROFESSOR (LAW)

SECTION: ‘A’ DR. RAM MANOHAR LOHIYA

B.A. LLB (Hons.), SEMESTER VIII NATIONAL LAW UNIVERSITY

 ACKNOWLEDGEMENT

On the very outset of this research, I would like to extend my sincere and heartfelt obligation
towards all the personages who have helped me in this endeavor. Without their active guidance,
help, cooperation and encouragement, I would not have made headway in the project.

I am ineffably indebted to Mr. Bhanu Pratap Singh, Assistant Professor (Law) for conscientious
guidance and encouragement to accomplish this assignment.

I also acknowledge with a deep sense of reverence, my gratitude towards my seniors who have
constantly been a support and a guide and without whose help it would not have been possible
to continue the research.

Special thanks to Madhu Limaye Library whose constant help, support and guidance helped
me in the completion of the research.

ANIKET SACHAN

ENROLMENT NUMBER: 170101028

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 INTRODUCTION

In both developed and developing countries all over the world, farmers, indigenous and local
communities have traditional knowledge, expertise, skills and practices relating to food
security and to food and agricultural production and diversity. Traditional farming, fishing,
herding, foraging and forestry are based on long established knowledge and practices that help
to ensure food and agricultural diversity, valuable landscape and seascape features, livelihoods
and food security. In recent years, the protection of traditional knowledge has received
increased attention in various international forums, including the Convention on Biological
Diversity (CBD), the World Intellectual Property Organization (WIPO), the International
Labour Organization (ILO), the Food and Agriculture Organization (FAO), the World Health
Organization (WHO), the UN Educational, Scientific and Cultural Organization (UNESCO)
and the UN Commission on Human Rights.

The use of traditional knowledge (TK) related to biological resources is not restricted to the
lives and livelihoods of agrarian, rural and indigenous societies. In the modern day, there is an
ever-growing demand for natural, herbal and organic products globally, especially in urban
markets. The herbal medicine, cosmetics and personal care industries are the major users of
these resources. The increased market demand for biological resources and associated
Traditional knowledge could offer new opportunities for generating benefits and enhanced
incomes for indigenous and local people. However, the current reality seems to be quite far
from achieving this. There are very few experiences globally of local communities or
traditional knowledge holders gaining substantially from the commercial use of their
knowledge.

On the contrary, cases of bio piracy and misappropriation of traditional knowledge are
becoming more apparent. This is also because more bio piracy cases have been highlighted
since the Convention on Biological Diversity (CBD) was signed, and national legislation has
been introduced in member countries. One of the primary reasons for this misappropriation is
that traditional knowledge is available freely from local communities and these knowledge
holders are not aware of the need to protect their intellectual property rights. The fact that this
knowledge is often spread across several families and communities covering a large
geographical area and sometimes even across country borders, makes protection even more
challenging and misappropriation easier and more likely to occur. Misappropriation is

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exacerbated by the lack of effective tools for protecting the intellectual property of the holders
and ensuring that they receive benefits from the commercial use of their knowledge..

ROLE OF TRADITIONAL KNOWLEDGE IN AGRICULTURE

Traditional knowledge plays an important role in the field of agriculture in the developing
countries. Agriculture is mostly related to food security of a country. Traditional Knowledge
includes the knowledge, innovations and practices of indigenous and local communities
around the world which is derived from experience gained over the centuries. It can be
derived from diverse and unusual sources like stories, songs, folklores, proverbs, cultural
values, beliefs, rituals, community laws, local language, and agricultural practices, including
the development of plant species and animal breeds.

Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture,

fisheries, health, horticulture, and forestry. This knowledge 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 and cosmetics, are derived from traditional
knowledge. Other valuable products based on traditional knowledge include agricultural and
non-wood forest products as well as handicrafts. Traditional Knowledge plays an important
role in resource management which includes agricultural and environmental manipulation.

Now a days it has been largely focused on indigenous peoples and their rights, broadening the
scope to agriculture, food security, renders Traditional Knowledge an issue of interest to
farming communities around the globe. It therefore fosters diversity and contributes to the
preservation of natural resources.

REASON FOR PROTECTION OF TRADITIONAL KNOWLEDGE IN INDIA

1) To protect traditional agriculture and food security of Indigenous and local

communities- They have an intimate knowledge of many aspects of their surroundings and
their daily lives. Over centuries people have learnt how to grow food and preserve and to
survive in difficult environments. They know what varieties of crops to plant, when to sow
and weed, which plants are poisonous, which can be used for control of diseases in plants,
livestock and human beings. So protection of Traditional Knowledge is needed for the
development of agriculture and food production system.

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2) To improve the livelihoods of Traditional Knowledge holders and communities-
Traditional Knowledge is valuable to indigenous and local communities that depend on
Traditional Knowledge for their livelihoods and well-being, as well as for enabling them
to sustainably manage and exploit their local ecosystems e.g. through sustainable low-input
agriculture. The World Health Organization (WHO) has stated that 80 per cent of the
world‟s population depends on traditional medicine for its primary health care and that
Traditional Knowledge is indispensable for its survival. It is increasingly accepted as an
important source of information useful for achieving sustainable development and
alleviating poverty.
3) To benefit national economies- Traditional Knowledge benefits national economies and
has the potential to benefit them. Traditional Knowledge based products as handicrafts,
medicinal plants, agricultural products, and non-wood forest products are traded in both
domestic and international markets and can provide substantial benefits for exporter
countries. In the long term, this will reduce industrial interest in natural product research
for food, agriculture and health, as well as associated Traditional Knowledge.
4) To conserve the environment- Several academic studies on traditional communities
provide sufficient evidence that the protection of Traditional Knowledge can provide
significant environmental benefits. The traditional communities maintain the centre of crop
genetic diversity, which include the traditional cultivars, that constitute an essential part of
the world‟s crop genetic heritage and non-domesticated plant and animal species.1
5) To prevent biopiracy- the issue of biopiracy has become highly contentious and seems to
have played a catalyzing role in the introduction of access legislation in some developing
countries. The term “biopiracy” was coined by the North American advocacy group „Rural
Advancement Foundation International‟ as part of a counterattack strategy on behalf of
developing countries that had been accused by developed countries, particularly the United
States, of “intellectual piracy”. It normally refers either to the unauthorized extraction of
biological resources or associated Traditional Knowledge from developing countries, or to
the patenting, without compensation, of spurious “inventions” based on such knowledge.

GENERAL ISSUES REGARDING TRADITIONAL KNOWLEDGE

1
Ruchi Pant, Protecting and promoting traditional knowledge in India, (Mar 03, 2021, 10:49
PM), https://pubs.iied.org/pdfs/16576IIED.pdf

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Agricultural extension and research would need to accept the need TK‟s for innovative
capacity and farming activities with modern scientific knowledge to help increase the
effectiveness of TK-based farming and food production systems for the food security of the
developing countries. However, the value of this material completely undercut by the
expansion of industrialized approaches to farming and developments in biotechnology. The
introduction of patent system in agriculture raises many controversial issues. The objection
against the patent is that if the patents are allowed to stand then the indigenous populations
around the world will be excluded from freely using many of the natural resources that have
been carefully developed and nurtured by them for over hundreds of years.

Patenting seed‟ is one of the controversial issues in the field of agriculture and food security.
As we know seed is firstly linked with food and food crisis has its roots in changes in the seed
supply system, and the erosion of seed diversity and seed sovereignty. This seed sovereignty
includes the farmer‟s rights to save, breed and exchange seeds, to have access to diverse open
source seeds which can be saved and which are not patented, genetically modified, owned or
controlled by emerging seed giants. The patent protection for seed is difficult for developing
countries as the livelihood of the farmers will be at stake and also fatal to them. It is because
the price of patented seed will increase and the farmers could never use that seed for agriculture
purpose.

INTERNATIONAL EFFORTS FOR PROTECTION OF TRADITIONAL

KNOWLEDGE

A number of international treaties were negotiated for access to Biological Diversity and
Traditional Knowledge namely, the Convention on Biological Diversity3 (CBD) in 1992 and
the International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) in 1994 with the principles of Prior Informed Consent (PIC), and Access and
Benefit Sharing (ABS) arising from the utilization of genetic resources and associated
traditional knowledge.

Convention on Biological Diversity uses the expression “innovations and practices of

indigenous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity”. Biodiversity and Traditional
Knowledge provide knowledge goods that can be aligned in a chain of innovation ending with
a product. The CBD entered into force on 29 December 1993 with three main objectives of
conservation of biological diversity, sustainable use of the components of biological

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diversity, fair and equitable sharing of the benefits arising out of the utilization of genetic
resources. CBD forms the most important convention on sustainable use of biodiversity and
provides measures upon which bioprospecting could be regulated. The most notable provisions
of the Convention are Articles 8(j), 15, and 16. Article 8(j) provides the basis for the
establishment of rights of the local communities over the biological resources of which they
are custodians and the knowledge systems they have developed with regard to these resources.

"Article 15 recognizes the sovereign rights of States over their natural resources and their
authority to determine access to genetic resources and provides that access, where granted,
shall be on mutually agreed terms and subject to prior informed consent of the provider party.”

Article 16, on access to and transfer of technology, requires parties to the Convention to
undertake to provide and facilitate access and transfer of technologies to other parties under
fair and most favourable terms. Article 16.5 is more controversial, requiring the parties to co-
operate to ensure that patents and other IPRs "are supportive of and do not run counter to" the
CBD's objectives.

Conference of the Parties (CoP-6) at The Hague in 2002, the Bonn Guidelines4 on Access to
Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their
Utilization were officially adopted to develop and implement effective and innovative
mechanisms for access and benefit sharing. The Guidelines comprised a set of voluntary rules
for drafting and progress of national biodiversity legislation and provided a framework to
facilitate access and ensure benefit-sharing at national or regional levels

EFFORTS TO PROTECT TRADITIONAL KNOWLEDGE IN INDIA

The Protection of Plant Varieties and Farmers’ Rights Act, 2001

The Protection of Plant Varieties and Farmers’ Rights Act, 2001, (PPVFRA) was enacted to
fulfil India’s obligations under Article 27 (3)(b) of the TRIPS Agreement. It recognizes the
role of farmers as cultivators and conservers, and the contribution of traditional, rural and tribal
communities in the country’s agro-biodiversity by making provisions for benefit sharing and
compensation and also protecting the traditional rights of the farmers, including protection for
the rights of the producers of new varieties of plants in the traditional way of breeding.2 it
stipulates benefit sharing, recognition and reward (through the Gene Fund) for farmers..

2
Sections 39 and 41, Protection of Plant Varieties and Farmers Rights Act (India), 2001
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Protection of Plant Varieties and farmers Rights’ Authority: The Protection of Plant Varieties
and Farmers’ Rights Authority (PPVFRA) is also an agency concerned with protection of
TK. The main functions of the Authority with relevance to protection of TK are:

 Documentation, indexing and cataloguing of farmers’ varieties.

 Registration of extant varieties.
 Maintenance of the National Register of Plant Varieties and Maintenance of the
National Gene Bank.3
 Recognizing and rewarding farmers, community of farmers, particularly tribal
and rural community engaged in conservation, improvement, preservation of
plant genetic resources of economic plants and their wild relatives

The Biological Diversity Act 2002

The Biological Diversity Act (BDA), 2002 was enacted to fulfil India’s obligations towards
CBD and is one of the important legislations on protection of TK. The BDA, along with the
Biological Diversity Rules, 2004 (BDR) and the Guidelines on Access to Biological Resources
and Associated Knowledge and Benefits Sharing Regulations, 2014, provides the main access
related legislation in India. It does not refer to TK per se; the provisions refer to TK as one
‘associated with biological resource (BR) which is derived from India’.

The BDA also contains elaborate provisions for benefit sharing arising out of utilisation of the
biological resources. The National Biodiversity Authority (NBA) is vested with regulating
activities and issuing guidelines for benefit sharing. Benefit claimers are defined as “conservers
of biological resources, their by-products, creators and holders of knowledge relating to the use
of such biological resources, innovations and practices associated with such use and
application”4. The BDA with BDR and Guidelines on Access to Biological Resources and
Associated Knowledge and Benefit Sharing Regulations 2014, provides for both monetary and
non-monetary benefit sharing along with national, state and local biodiversity funds for
channelizing benefits for local communities conserving the knowledge of the resources.5

3
Protection of Plant Varieties & Farmers’ Rights Authority Results-Framework Document
(RFD) For 2014-15
4
Section 2(a), BDA
5
Ruchi Pant, Protecting and promoting traditional knowledge in India, (Mar 03, 2021, 10:49
PM), https://pubs.iied.org/pdfs/16576IIED.pdf
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The National Biodiversity Authority formed under the mandate of the BDA is the main body
for granting approval for access to biological resources, for applying for IPRs on any invention
based on any research or information on a BR obtained from India and for transferring the
results of any such research. It can oppose IPRs in India and any country on claims based on
BR obtained in India. It ensures equitable benefit sharing of biological resources accessed in
India and advises Central and state governments on matters of biodiversity conservation and
benefit sharing. The BDA enables the NBA to provide for fair and equitable benefit sharing on
the access to biological resources and associated Traditional Knowledge. As of 31st August
2018, the NBA has granted 838 approvals for access, transfer of research, filing of IPRs, etc.6

IPR PROVISIONS

Reforms in India's Patent system

India has had a much longer experience with patents systems than some European countries
because of its colonial past. The Patent Act of 1970 brought about significant changes. It
excluded patentability of life forms and specifically the patenting of methods of agriculture and
horticulture (Section 3, Patents Act, 1970) The Act specifically mentioned that the general
principles governing the use of patents were that:

(a) patents are granted to encourage inventions and to secure that the inventions are worked in
India on a commercial scale; and

(b) they are not granted merely to enable patentees to enjoy a monopoly for the importation of
the patented article(Section 83, Patents Act 1970) The Act was different from the western
model as it sought to control monopoly on one hand and provide for the health and food needs
of India on the other. In the 1990s the national policy developments in the field of patents were
influenced by international developments such as the adoption of TRIPS Agreement.
Subsequently, the Patent Amendment Act 2002, also provided for changes in lieu of protection
of traditional knowledge.

A new section 3(j) in the Act rejects patentability of seeds and plant varieties. In response to
growing international debate on traditional knowledge in CBD and lack of any recognition of
IPR protection for it in TRIPS, the Patent Amendment Act 2002 has sought to address the
problem of biopiracy and protection of Traditional Knowledge, though partially. Firstly,

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http://nbaindia.org/content/683/61/1/approvals. html
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section 3(p) says that' an invention which in effect is traditional knowledge or which is an
aggregate or duplication of known properties of traditionally known component or components'
- are not inventions for grant of patents. Patent applicants also have an obligation to disclose
the source and geographical origin of the biological material used, with complete specification.

REGISTERS AND LIBRARY

India undertook defensive protection of TK through the development of a digital database in

the form of the Traditional Knowledge Digital Library (TKDL) in 2001, the earliest and most
comprehensive database globally. The Biological Diversity Rules, 2004 stipulate that “the
main function of the Biodiversity Management Committee is to prepare People’s Biodiversity
Register (PBR) in consultation with local people. The Register shall contain comprehensive
information on availability and knowledge of local biological resources, their medicinal or any
other use or any other traditional knowledge associated with them.

PEPSICO FARMERS CONTROVERSY7

In the PPVFRA, India introduced a chapter on Farmers’ Rights, which has three legs: one,
farmers are recognised as plant breeders and they can register their varieties; two, farmers
engaged in the conservation of genetic resources of land races and wild relatives of economic
plants and their improvement through selection and preservation are recognised and rewarded;
and, three, protecting the traditional practices of the farmers of saving seeds from one harvest
and using the saved seeds either for sowing for their next harvest or sharing them with their
farm neighbours.

Article 39(1)(iv), which sanctifies the last-mentioned rights, states that farmers are “entitled to
save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety
protected under this Act in the same manner as he was entitled before the coming into force of
this Act” (emphasis added).

PepsiCo’s law suit against the farmers raised a number of critical issues, which the court
appeared to have glossed over in its proceedings. The first issue is that planting a registered
variety by the farmers is per se not an offence since the Act allows the farmers to re-use such
varieties and to also share them with their neighbours, provided two conditions are met.

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PepsiCo India Holdings Pvt. Ltd. versus Bipin Patel
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The first is that the farmers cannot sell “branded” seeds, which, according to PPVFRA, means
“any seed put in a package or any other container and labelled in a manner indicating that such
seed is of a variety protected” under the Act. The company claimed before the court that FC-5
was licensed to farmers “firstly (emphasis added) in Punjab to bring potatoes of the said variety
on the buyback system”. The FC-5 variety could have been made available and distributed
anywhere, and without the law being violated. The second issue is that FC-5 has been registered
as an “Extant Variety”, which is also a “Variety of Common Knowledge”. This, in other words,
implies that the said variety of potato was already available in the country before it was
registered and that there was “common knowledge” about this variety in the country. It may,
therefore, be assumed that PepsiCo’s variety would surely have been produced in the country
before it was registered.

Further, from the order of the judge on April 8, 2019, in PepsiCo India Holdings Pvt. Ltd.
versus Bipin Patel, it can be gleaned that the company may have given incorrect information
that FC-5 is a “new” variety instead of an “extant” variety. Registration of extant varieties was
allowed in the PPVFRA despite opposition from several experts, and the justification used was
that farmers’ varieties can be registered under this provision. The benefits that the farmers are
deriving are not clear, but what can easily be understood is that companies like PepsiCo that
got the opportunity to register their older varieties can now sue the farmers for using known
plant varieties

CONCLUSION

In Agriculture, the traditional knowledge is associated with almost all agricultural operations
and these are being practiced by farmers in the developing country to ensure food security and
livelihood. In this project, I discuss the importance of traditional agriculture knowledge for
food production and different critical issues regarding seed as well as food security. One of
important issue is patenting seed which has an affect on the farmers as the price of patented
seed will increase and the farmers could never use that seed for agriculture purpose. This will
cause food crisis in the developing countries. As we know that the farmers of the developing
countries have started adopting modern agriculture due to the influence of outsiders but they
still follow the traditional methods and systems.

The issue protection of TK has been on the international agenda for long, but is yet to arrive at
a comprehensive solution. Academic studies and jurisprudential developments that impact
protection of TK continue. Regular monitoring of international negotiations is needed to put

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forward cogent arguments by national negotiators. At present, there is an absence of studies
that focus on international negotiations. All these bring out the need for in-depth examination
of the TK protection measures domestically and internationally to facilitate India’s national
efforts as well as at international negotiations, particularly at the WIPO IGC.

BIBLIOGRAPHY

Articles

 https://pubs.iied.org/pdfs/16576IIED.pdf
 http://ndl.iitkgp.ac.in/document/MU5weTVONGdRYURuVDRCSmt0NGQvckhuND
BaSDRFbkxLN1RSMitlaWYyOD0

Websites

 https://www.thehindubusinessline.com/opinion/points-of-law-in-the-pepsico-potato-
case/article27060326.ece
 https://www.cnbctv18.com/agriculture/how-pepsico-exploited-the-law-in-its-potato-
fight-against-gujarat-farmers-3133951.htm

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