By Dr. P. PushpangadanDirector, National Botanical Research InstituteEmail: pushpangadan@satyam.net.inWebsite: http://www.nbri-lko.orgTel./ Fax: 91-522-2205839

Indigenous people and

IPR Issues – A Case Study

National Workshop on “Intellectual Property Rights Issues: Education, Awareness and Execution

Jiwaji University, Gwalior

1st March 2004

Delivered at

Community-based functional knowledge

developed, preserved and maintained

over many generations by the local and

indigenous communities through their

continuous interaction, observations and

experimentation with their surrounding

environment.

Traditional Knowledge System (TKS) OR Indigenous Knowledge System (IKS)

Unique to a given culture or society.

Result of co-evolution and co-

existence of indigenous cultures and

their traditional resource use.

TKS/ IKS is:

1. Recognizes sovereign rights of nations

over biological diversity.

2. Binds the parties to respect, preserve

and maintain Traditional Knowledge

(TK)

3. Stipulates just and equitable sharing of

benefits arising from sustainable use of

TK and traditional resources.

UN Convention on the Biological Diversity (CBD)

1. Do not recognize any informal

knowledge/ innovations of traditional

communities for intellectual property

rights.

2. Do not insulate TK from intellectual

piracy.

World Intellectual Property Organization (WIPO) / World Trade Organization (WTO)

The fundamental conflicts between CBD and TRIPS

1. CBD recognizes the sovereign rights of nations over their biological resources.

2. TRIPS tries to introduce private individual rights over the same within the country, the state’s sovereignty take precedence, and the CBD framework may prevail. But between a foreign IPR holder and sovereign state, the state’s jurisdiction is limited and cannot countervail the IPR holder.

TKS & IPR

1. IPR: The prime driving force behind

industrial growth and development in

the 19th & 20th centuries.

2. Do not recognize the informal system

of innovation of indigenous people.

3. Do not provide mechanism for

compensation or benefit sharing with

indigenous people.

IPR laws in general ignore the interest

of traditional/local communities-

– because their concept of

intellectual property and resource

rights are different from those of

the advanced societies of

developing countries and the

developed North countries.

TKS & IPR

Tribal Settings in India

India has over 70 million tribals belonging to over 550 communities inhabiting in 5000 villages located in and around forests region of the country.

About 116 different dialects are spoken by tribal communities in India.

Population of the individual tribe is as large as about 5 million in Madhya Pradesh and as small as 21 like Onges of Andaman Islands.

Tribal Settings in India

The tribals in the country occupy about 18.74% of the total area of the country, mainly in the hilly and forest areas of 19 states and union territories.

INDIAN TRIBALS

1. Primitive Hunter gather type

2. Primitive Agriculturists

3. Plain Agriculturists

4. Simple Artisans

5. Pastoral and Cattle Breeders

6. Industrial –Urban type

1. Primitive Hunter gather type

Most primitive,

nomadic,

Socially better organized and have some interaction with outsiders.

2. Primitive Agriculturists

Practice a very

primitive type of

shifting

cultivation.

3. Plain Agriculturists

Maintain a large number of land races of rice, sorghum, yams, lentils, pulses, cucurbits, citrus, etc.

4. Simple Artisans

Not well organized.

5% to 7% of tribal population in India

5. Pastoral and Cattle Breeders

Cattle farming hill tribes living in high

altitudes of Himalayas and Western

Ghats (Nilgiris) in South India.

Work as bonded laborers.

5% to 10% of tribal population in India

6. Industrial – Urban type

10000 plant species are used by tribes of India

Total 10000 specie

s

8000 Medicinal

3500

Edib

le

1000

Oth

er

s

550

Fib

r ePesticides

Gums, Resins & Dyes

425

325

TH

E IN

DIA

N F

LO

RA

(ca

175

00 s

pec

ies)

Medicin

al Pla

nts

are

use

d b

y Tr

ib

al Communities (oral)

8000 species

Ayurveda900 sp.

Unani700 sp.

Siddha600 sp.

Amchi250 sp.

IND

IAN

SY

ST

EM

S O

F M

ED

ICIN

E

Modern30 sp.

Benefit Sharing Experiment

with an Indigenous

community (Kani)

The Kani experiment

During the course of an ethnobotanical

exploration, Pushpangadan and co-

workers (1987) came across an

interesting use (anti-fatigue) of a lesser

known wild plant while conducting the

study on the forest dwelling Kani Tribe

of South Western Ghat mountains.

In December 1987, a team of scientists led by Dr. Pushpangadan was conducting an ethno-botanical survey and exploration in the Agasthya hills, of the Western Ghats in South India with the help of two young Kani men as guides.

During this visit, the author and his colleagues noticed that the Kani men were not taking any food and were eating only some small dry fruits. But they were quite energetic and agile.

First observation by Dr. P. Pushpangadan

After a strenuous mountain trek, the author (Pushpangadan) and colleagues got exhausted and were taking rest. Then the Kani men accompanying them offered those dry fruits saying that when consumed they would reduce fatigue and provide energy.

First observation by Dr. P. Pushpangadan

The author and his colleague Dr.

Rajasekharan accepted the dry fruits

and ate them. On consuming 30 to 50

of them, to their surprise the scientists

felt a sudden flush of energy, within 10-

15 minutes.

First observation by Dr. P. Pushpangadan

They tried it again during the next two days and experienced the same magical effect. When asked about the source of the fruits, the Kani men were very reluctant to reveal, saying that it was a sacred information, not to be revealed to outsiders.

First observation by Dr. P. Pushpangadan

The scientists assured them that they would not misuse this information, but would carry out scientific investigation and if any positive results were obtained the Kanis would be rewarded appropriately. It was after a great deal of persuasion that they showed the plant from which they collected the fruits.

Assurance of credit to the informants

The plant was growing in that very forest where the scientists were trekking. The author assured the Kani men that if the scientific investigation of this plant led to the development of any marketable product, the benefits derived from the same would be shared equally with them. The Kani men, however, did not have any idea of product development and its marketing.

Assurance of credit to the informants

The Kanis named this plant ‘Arogyapacha’

(meaning the plant that can provide ever

green health), which was later identified as

Trichopus zeylanicus spp. travancoricus.

(Trichopodaceae). Although this species

was documented and described earlier, its

traditional use and special properties were

not known to the scientific world.

The plant – ‘Arogyapacha’

The author collected adequate samples of this plant for detailed investigations at Regional Research Laboratory, (RRL), Jammu. Soon after reaching back at RRL, Jammu, Pushpangadan conducted the first scientific test to validate the Kani’s claim on the anti-fatigue property of Arogyapacha.

Scientific Investigations

He conducted the standard ‘swimming performance’ on Swiss mice under three different conditions. The mice were given swimming test in tubs of water under (1) Control mice fed with normal diet. (2) Experiment 1 (mice fed with synthetic steroidal drug – Amphetamine – to boost stamina), and (3) Experiment 2 (mice ingested with macerated Kernels of the fruits of Arogyapacha).

Scientific Investigations

The ‘Kani’ people were kept informed of

the progress of this interesting results

and re-assured that if any marketable

products were developed out of this

plant, benefits derived from the products

would be shared equally with them.

Reassurance of credit to the informants

The author very soon realized that the

classical pharmacological approach to study

the traditional remedies of medicinal plants

by isolating single compounds may not be

satisfactory and an ethno-pharmacological

approach was adopted to evaluate this plant.

By this time the author got the offer of the

Directorship of Tropical Botanic Garden &

Research Institute (TBGRI), Trivandrum and

he accepted the same and joined there in

November 1999.

Dr. P. Pushpangadan assumed the charge of Director of TBGRI

At TBGRI, the author soon established

a full-fledged Ethno-pharmacology

Division and recruited scientists from

disciplines of Botany, Pharmacology,

Phytochemistry, Biochemistry,

Pharmacy and Ayurveda.

Strengthened the scientific investigations

Within a period of two years a

scientifically validated, standardized

herbal formulation ‘Jeevani’ was

formulated with ‘Trichopus zeylanicus’

and three other medicinal plants as its

ingredients. Evaluations related to toxicity

efficacy, shelf life and clinical properties

were carried out by TBGRI, and the drug

was ready by the end of 1994.

Drug “Jeevani” was ready

Indian experiment of Benefit

Sharing with tribal communities

demonstrated the fact that IPR

system can help tribal

communities in many ways:

Thus IPR can help in many ways:

Traditional Communities (TC) (rather

than individuals) can protect their

rights by legally registering their

innovations/ Traditional Knowledge

(TK) on the specific use of local

resources or process of making

certain products by filing petty

patents or idea patents/ utility patents.

Thus IPR can help in many ways:

Appropriate applications of S&T to the traditional knowledge can lead to the development of value added marketable and patentable products, from which the TC can get immense benefits (license fee and royalty).

The knowledge of the tribal communities can thus be converted into economic wealth and bring prosperity to these communities.

Thus IPR can help in many ways:

Survey, inventory & documentation of the indigenous knowledge system and preparation of community

registers

Preparation of Electronic Database(Access to Patent Office)

Access to Database with prior informed consent

Negotiation and signing of agreement(s)

Commercialization of the products

Benefit sharing with the indigenous/ local communities

Development of marketable product/s (with S&T intervention)

Safeguarding IPRs of indigenous/ local communities and Benefit-

sharing

Medicinal Preparation

Medicinal Preparation

Medicinal Preparation