Nearly 8% of the country’s forest dependent people are also the growers and traditional conservators of India’s complex but rich biological diversity. They possess the invaluable traditional knowledge relating to biological diversity that needs enhanced protection under a legal regime. So far, the Biological Diversity Act, 2002 enacted for the purpose has been able to achieve very little on this front. The Forest Rights Act, 2006 paves the way for rights based approach for the protection of traditional knowledge of forest dependent communities. Given the complex nature of this community right under the FRA, there seems to be a difficult road ahead due to various issues that emerge in the current legal regime on biological diversity.

The legal position

In India, traditional knowledge relating to biodiversity is protected under the Biological Diversity Act, 2002 (the Act). The Act provides that the state shall endeavour to protect the traditional knowledge of local people relating to biodiversity (Section 36 (5), the Biological Diversity Act, 2002). Access to biodiversity and its use by the local people or benefit claimers is treated differently under the Act. The Act also has differential treatment for citizens of India and foreign nationals.

Under the Act, the benefit claimers (growers, conservers of BD) have the locus to approach the High Court regarding any dispute that arises regarding access and use of biodiversity. For the access and use of BD, citizens of India have to give prior intimation to the State Biodiversity Board (SBB) which is the state level nodal agency for carrying out the objectives of the Biodiversity Act. Practitioners of traditional medicinal knowledge such as vaids, hakims etc are exempt from mandatory condition of giving prior intimation for accessing the biological resource to the SBB.

However, ‘no person’ under the Act is allowed to have intellectual property over any resource or knowledge associated with the biological resource, except with the prior permission of the National Biodiversity Authority (NBA), the national level authority for carrying out the objectives of conservation, sustainable use and fair and equitable benefit sharing as envisaged under the Biodiversity Act and Convention on Biological Diversity. Further, the benefit sharing mechanism has also to be decided by the NBA in consultation with the local body at the district level (Biodiversity Management Committee). The Biodiversity Rules provide a detailed procedure for making the application for intellectual property relating to traditional knowledge and otherwise.

Limitations

Given this framework on intellectual property and traditional knowledge within the specific law for regulating the access, use and benefit sharing arising out of biological resources, the local communities do not have a right to protect their traditional knowledge by way of having intellectual property rights over the same, except with the permission of NBA. Further, even the benefits that might come to them by way of benefit sharing mechanisms under the BD Act have be to be decided by the NBA. In this way, the intellectual property regime relating to traditional knowledge is much more centralized in India and there is very little that local people, communities and traditional growers and conservers of biodiversity could do to protect their traditional knowledge which permeates through all aspects of their life – social, religious and cultural.

Community Right to Intellectual Property under FRA

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter the Forest Rights Act) provides altogether a different dimension to the protection of community traditional knowledge relating to biodiversity. The Forest Rights Act, enacted essentially to recognize and vest the forest rights of forest dependent communities provides that such communities have a set of individual and community rights that need to be claimed by the individuals or community under the claim process provided under the Act and then these rights have to be recognized and vested by a series of local level institutions such as Gram Sabha (Village Assembly) under the Panchayat Law, the Sub-divisional level Committee (SDLC) at the Block level and then finally the District Level Committee (DLC) at the District level - both constituted under the Forest Rights Act.

One of the community rights under the FRA is the Community Right to Intellectual Property relating to traditional knowledge. Under the FRA, the forest dependent communities living on forest land have a community right to claim intellectual property right over traditional knowledge relating to biodiversity. As per the claim process for community rights under the FRA, the community right to intellectual property relating to traditional knowledge can be claimed through a Gram Sabha process and can be recognized and vested by the SDLC or DLC.

Issues that emerge

The current legal position of intellectual property right under two different legislations as illustrated above leaves certain pertinent questions that need to be explored further-

• Whether there is a need to revisit the community right to claim intellectual property at the district level as provided under the FRA as it is in conflict with the provisions of Biodiversity Act under which no person shall be granted the intellectual property permission except with the permission if the National Biodiversity Authority created under the BD Act?
• Whether there is an apparent conflict between the Intellectual Property regime relating to Traditional Knowledge under the BD Act and FRA and whether the provisions of FRA (being a recent law) will prevail over BD Act which is a rather subject matter special law?
• Whether the intellectual property regime relating to traditional knowledge of communities envisaged under the Forest Rights Act replaces the mechanism envisaged under the Biodiversity Act? If yes,
• Whether there is a need for bringing institutional changes for the grant of intellectual property at the district level as per the Forest Rights Act? If yes, what framework is required to support these institutional changes?
• Whether there is a need to explore a mechanism that would lead to institutional synergies that are required between the Biological Diversity Act, 2002 and Forest Rights Act, 2006?