ACRONYMS

ABS

access and benefit sharing

BCP

biocultural protocols

CBD

Convention on Biological Diversity

CGIAR

Consultative Group on International Agricultural Research

CNA

competent national authority

GPL

general public license

IGC

WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

ILC

indigenous and local community

IP

intellectual property

IPR

intellectual property rights

ITPGRFA

International Treaty on Plant Genetic Resources for Food and Agriculture

KC

knowledge commons

PIC

prior informed consent

REDD

United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries; reduced emissions from deforestation and degradation

SNP

single nucleotide polymorphism

TC

traditional commons

TK

traditional knowledge

TKC

traditional knowledge commons

TRIPS

Trade-Related Aspects of Intellectual Property Rights

WIPO

World Intellectual Property Organization

WTO

World Trade Organization

CONVENTION ON BIOLOGICAL DIVERSITY, ACCESS AND BENEFIT SHARING, TRADITIONAL KNOWLEDGE AND INDIGENOUS COMMUNITIES

The Convention on Biological Diversity (CBD) signed in 1992 recognized the rights of indigenous communities under Article 8(j).Footnote ¹ CBD also paved the way for establishing access and benefit-sharing (ABS) regimes, underscoring the importance of prior informed consent (PIC), and recognizing the sovereign rights of the states over genetic resources. The CBD was a compromise between the Global North (developed nations) and Global South (developing nations) as it was perceived that the Global South is rich in terms of genetic resources to which the Global North needed access and that access had to be based on some principles instead of treating genetic resources as common heritage of humankind that is free for all to access and benefit from. Bioprospecting has been defined as “the exploration of biodiversity for potentially valuable genetic and biochemical resources.”Footnote ² Facilitating access to genetic resources in return for a fair and equitable share of the benefits derived from their use is the core objective of ABS.

The indigenous communities, however, were not among the parties that negotiated the CBD; their rights were recognized by CBD, but that recognition did not override the sovereign rights of nation states. Thus in ABS regimes, while indigenous communities might be involved as providers of traditional knowledge (TK) with access to genetic resources, it was left to the national governments to devise appropriate regimes taking into account the principle of PIC and Article 8(j) of CBD. In CBD and the related discourse, the term “indigenous and local community” (ILC) is used, although in the literature, “indigenous communities/indigenous people(s)” is the preferred term, as in many countries there are traditional communities who are not indigenous communities and clubbing both under the category of ILC is not correct as the interests of indigenous communities and other communities who also hold TK are not necessarily the same. But there is an overlap in some instances. For example, farming communities that are not necessarily indigenous communities have a stake in access to plant genetic resources and their conservation. Although many states enacted laws for creating ABS regimes, the Bonn Guidelines of 2002, though voluntary, had elements that respected the letter and spirit of CBD Article 8(j).Footnote ³ The Nagoya Protocol of 2010 has further reinforced the claims of the indigenous communities and is certainly a significant step forward in terms of recognizing rights of communities and establishing mechanisms for protecting them.Footnote ⁴ While CBD and its provisions are certainly important measures in recognizing the rights of indigenous communities and in developing regimes that prevent misappropriation of genetic resources and the associated TK, CBD as a convention has some weaknesses. For example, it lacks an effective mechanism for dispute settlement, and some of the terms, such as “fair and equitable,” can be interpreted in many ways.Footnote ⁵ But because of many developments since 1992, the global regime for biodiversity and TK has become very complex.Footnote ⁶ Some of the important developments are the formation of the World Trade Organization (WTO) and the coming into force of the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, the signing and ratification of International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) process under the auspices of the World Intellectual Property Organization (WIPO) in which countries are discussing proposals for an international framework for protecting TK.

As a result, negotiations and debates on protecting TK and rights of indigenous communities are being conducted at different forums, while the provisions of TRIPS and ITPGRFA are important in terms of establishing a global intellectual property rights (IPR) regime and in establishing a multilateral framework for accessing plant genetic resources with provisions for ABS respectively. At the national levels this period also witnessed the proliferation of ABS regimes, harmonization of national laws with TRIPS, establishment of sui generis regimes for TK, and initiatives at the regional level to develop a common framework, while at the WTO, efforts to bring in disclosure of origin as a step to prevent misappropriation was debated. There were instances of biopiracy and efforts by communities and nations to prevent the same through legal mechanisms, creating databases on TK and by challenging patents at the respective patent offices such as the U.S. Patent and Trademark Office and the European Patent Office. Although ABS regimes were established in many countries, the expectations expressed in the early 1990s did not materialize, and for many reasons, ABS regimes were not effective.Footnote ⁷

According to Wynberg and Laird, the ABS policy process for bioprospecting sprung up from a largely unrealistic and overtly optimistic foundation. As a result “no grand bargain” has actually been possible, and the billion-dollar drug cures from biodiversity have been few and far apart. Despite the early rationale that bioprospecting would enable biodiversity conservation to “pay its way,” the reality is that high-technology industries engaging in this field are not interested in supporting biodiversity conservation as a way of protecting their research interests. Nor, unfortunately, do bioprospecting law and policy affect those companies that cause rampant biodiversity loss—such as logging, mining, and industrial agriculture.Footnote ⁸

Thus while ABS regimes have not met expectations of those who expected that ABS would result in significant revenue to developing nations that could be used for conservation, and indigenous communities too would benefit from ABS, there was not much to gain from ABS regimes or the CBD process.Footnote ⁹ There are many reasons for this, ranging from failure to implement the PIC norms to nonrecognition of rights and claims of indigenous communities. But this does not mean that bioprospecting or CBD as such should be dismissed as colossal failures or as irrelevant for indigenous communities. Rather, the need is to ensure that CBD provisions are implemented in letter and spirit and that principles like PIC be implemented as the mandatory norm in the ABS regime.

PIC has its origins in bioethics and has been incorporated in many fields including environmental law. Free consent means that PIC has been given without any duress and coercion and out of free will and due understanding. In the context of ABS, while PIC as a principle has been accepted in CBD, the Bonn Guidelines and Nagoya Protocol give more importance to PIC. In the field of medicine, informed consent is both a principle and a process. While as a principle its objective is to minimize risk and avoid exploitation and unfairness, in practice a key goal is to protect patients and subjects rights of autonomy, particularly the right to give consent with free will and agency and without any compulsion, coercion, or duress. As a process it involves (requires?) competence, disclosure, understanding, voluntariness, and consent.Footnote ¹⁰

In international environmental law, PIC has been incorporated in, inter alia, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (also known as Basel Convention on Toxic Wastes) and in Cartagena Protocol on Biosafety (Cartagena Protocol). While the Basel Convention mandates export of hazardous waste only with written consent from the importing state, in the Cartagena Protocol, transboundary movement of living modified organisms is subject to advance informed agreement.Footnote ¹¹ PIC has also been used in human genetic research.Footnote ¹²

In the context of TK, Schroeder points out, “It is encouraging that the belief in the ethical foundations of patient autonomy led to reliable and legally binding legislation on informed consent over time. The belief in the autonomy of and right of self-determination of indigenous communities will, one hopes, achieve the same for (free) prior, informed consent in the accessing of traditional knowledge.”Footnote ¹³

But in reality, PIC has not worked well, even when the plans were made with good intentions. According to Dutfield, while much needs to be done in developing workable PIC procedures, applying PIC—a principle developed in the context of doctor–patient relationships—to bioprospecting for TK and resources wherein the parties are the indigenous groups and corporations and research teams has been done without “much theoretical reflection and without the necessary consideration of political economy.”Footnote ¹⁴

With respect to indigenous communities, issues of PIC are applicable in the context of academic research, collecting samples and use of cultural artifacts and heritage. Hence PIC as a principle has been incorporated in guidelines and best practices standards. In recent years, the role of PIC in reduced emissions from deforestation and degradation (REDD) projects in areas where indigenous people live or access forest resources has emerged as an important issue.Footnote ¹⁵

Projects under the International Cooperative Biodiversity Group, which incorporated PIC in all its projects, ended with mixed results; one of the reasons for this was the unequal bargaining powers of the parties along with the lack of experience and expertise among the indigenous groups in negotiating access and licensing agreements.Footnote ¹⁶ In one of the projects, legal uncertainties regarding the status of the indigenous communities and their rights over the resources was a major factor in the abandonment of the project despite best efforts to obtain PIC.Footnote ¹⁷

The CBD did not provide a clear definition of the term PIC, nor did it provide the details of requirements under PIC. The Bonn Guidelines, although not defining PIC, did specify some basic principles and elements of a PIC system. But the crucial question left unaddressed was who would be responsible for designing and enforcing the PIC in ABS at the national level. As per the Bonn Guidelines, the competent national authorities (CNA) are the primary entities for ABS and for granting consent to access genetic resources. Although the Bonn Guidelines mention the role of indigenous and local communities in the consent process, the authority of CNA will reign supreme as the Guidelines qualify this with the phrase “as appropriate to the circumstances and domestic law” and the right to grant access by indigenous communities is not recognized in many of the national laws or ABS regimes.Footnote ¹⁸ In fact, the case studies of national laws on ABS and PIC indicate that CNA should help the indigenous communities in playing a meaningful role in the PIC process. Also, there are discrepancies in implementing PIC at the national level, and monopolization of PIC by states directly or indirectly is not desirable.Footnote ¹⁹ Another fundamental problem is that while CBD does recognize the rights and claims of indigenous peoples, these are not strengthened with provisions that would provide entitlements to their land and resources.

With a view to bring in more clarity and certainty in ABS regimes and to respond to many of the criticisms on implementation of ABS regimes, the parties to CBD adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization in 2010.Footnote ²⁰ The Nagoya Protocol, if implemented by national governments, can redress some of the grievances of indigenous communities regarding PIC as it has provisions that can enable them to exercise PIC and use customary laws and community protocols in ABS.Footnote ²¹

Although in terms of PIC Nagoya Protocol is a step forward, it still leaves much to be desired from the perspective of indigenous communities. It does address many of the concerns raised by indigenous communities, but ultimately its text is a compromise between various parties to CBD. As a result, state sovereignty is given more importance than the rights of indigenous communities.Footnote ²² The Protocol has provisions on PIC that would benefit indigenous communities, but they are qualified by clauses such as “in accordance with” and “as appropriate.” As pointed out earlier, national ABS laws vary widely in using PIC as well as in recognizing the right to grant access. A study of national laws on ABS and implementation of the Nagoya Protocol pointed out that while some countries have mandated PIC of the indigenous communities for access to genetic resources on land owned or managed by them, some other countries do not have such provisions.Footnote ²³ Hence it is obvious that implementation of national ABS laws and their interpretation would make a difference in giving effect to provisions of the Nagoya Protocol. So while there is a possibility that the provisions including PIC in ABS and the respective processes will be strengthened if countries modify laws on ABS after ratification of the Protocol, it is subject to the overall framework of the ABS law and policy and its recognition of the rights of indigenous communities.

From the point view of indigenous communities, although there are other declarations, principles, and guidelines that recognize their rights and stakes in TK, CBD is very important because it is the only Convention that has been ratified by most of the countries and the CBD process is ongoing, providing opportunities for indigenous groups to voice their concerns and views. The IGC process is not over, and the efforts to amend TRIPS by incorporating “disclosure of origin” are not moving forward on account of strong opposition from countries like the United States and Japan.Footnote ²⁴ In the last decade or so, many scholars have called for community control over resources, community rights, and recognition of communities' traditional rights over land and other resources, suggesting that these are necessary to ensure that TK holders' rights are protected and upheld. For example, while Dutfield and Posey put forth the concept of traditional resource rights, Gibson proposed an idea, “community resources,” and suggested claims embodied in TK should be recognized and community management of resources should be facilitated while customary law will be used to self-govern resources.Footnote ²⁵ But concerns have been expressed about assigning ownership to culture or treating the community as an ideal community and the potential problems with communities' exclusive control over resources.Footnote ²⁶

The leaders of indigenous communities and academics have been concerned about the values of the communities and stressed the fact that while ABS encourages commercialization of knowledge and genetic resources, due respect should be given to the values held by indigenous peoples. These should not be subordinated to commercial gains and benefits that could accrue from ABS and other arrangements such as technology transfer. For example Posey highlighted the noneconomic values of TK, and he and Dutfield advocated a broad range of solutions including customary law and traditional resource rights so that the material and nonmaterial interests of indigenous communities are respected and protected.Footnote ²⁷ Of course, all this is closely linked to the debates on the use of IPR to protect TK and whether the IPR system is adequate to do justice to the interests of TK holders and ensure that misappropriation is prevented.Footnote ²⁸

In the literature, the ethical and environmental justice dimensions of ABS have been discussed, and it has been pointed out that these cannot be ignored or overridden by the commercial nature of ABS.Footnote ²⁹ There are additional issues relating to justice and equity that need to be addressed in ABS, as a concept and as a regime.Footnote ³⁰ In recent years, a group of academics, civil society organizations, and communities have proposed that in addition to ABS regimes TK commons (TKC) and biocultural protocols (BCP) should be established as solutions that go beyond economic interests of communities and other stakeholders to ensure that the values, including spiritual values, that are held dear by communities are respected.Footnote ³¹

By TKC, advocates do not mean free access to all without any obligations, nor do they suggest TKC should be considered as part of the public domain. This turn toward commons approaches is interesting because for the past two decades or so there has been an explosion in the literature on commons, common pool resources, common property resources and global commons. New concepts like information commons and knowledge commons were expounded. In recent years, there have been many initiatives to develop commons in diverse areas like plant genetic resources; biotechnology; artistic creations, including audiovisual recordings; and data related to genomes. Various strategies have been suggested and formulated to ensure that access to and utilization of resources available in these commons are regulated.

Often this has been combined with the use of licenses like the general public license (GPL) or its derivatives or use of creative commons licenses. Hence the proposals for development of TKC and protocols have to be understood in a broader context, particularly in the context of constructed commons, different types of knowledge commons, and pooled resources like the genetic resources available under ITPGRFA.

CREATING COMMONS AND PROTECTING THEM

According to Hess and Ostrom,

There are different types of commons such as natural resource commons, social commons, species commons, and intellectual and cultural commons. Although intellectual and cultural commons are finite, they are nonrival goods, and participation, interaction, and social exchange enriches rather than diminishes their quantity, availability, or value.Footnote ³³ But mechanisms like IPR can restrict the exchange and use of intellectual commons, while natural resource commons and the communities and users that depend on them often face challenges from states, regimes that restrict access and misappropriation, and overuse and exploitation by states and other actors. For example, overexploitation of marine resources and pollution affect the interests of communities that depend on seas for fish, while enclosures and reservation of areas as protected areas affect the access to the forest and the products from the forest and the rights of forest-dwelling communities. In short, while commons may appear to be free for all and open, in reality, they can be sites for contested claims and struggles against appropriation.

Comparing and contrasting “traditional” commons (TC) and “knowledge” commons (KC), Coriat points out that KC are composed of nonrival goods (e.g., information, knowledge, data); in KC, the right to addition, besides the right to use, is important. One of the objectives of the right of addition is to encourage enrichment of KC by such contributions. According to Coriat, in TC, the key objective is to promote orderly use and long-term conservation of resources whereas in KC, use and enrichment of the pool of resources based on procedures of use and information sharing is the key objective.Footnote ³⁴

In TK, it is a question of knowledge and intellectual commons as well as natural resources commons. In this sense, TKC is a commons that has two components that are closely linked, and often access to one (knowledge) is related to access to another (resources). If we consider TK as an evolving domain of knowledge, then it is obvious that TK can be enriched through contributions to TKC. The contributors to TKC need not be from the indigenous communities that developed and regulate access to TKC. But the primary objective of TKC would be different from that of KC as described by Coriat because TKC are created with the objective of regulating access, respecting the values of indigenous communities, and linking ABS with noncommercial values held by the community. In fact Coriat pointed out, “nevertheless, there exists a wide variety of knowledge commons, as there was for natural resource commons. And as we did for natural-resource commons, we can imagine a spectrum ranging from knowledge commons that form a ‘public domain’ to pools and clubs of private partners. Between these two extremes there are a large number of different forms.”Footnote ³⁵

TKC would obviously lie between these two extremes. Boyle noted that there has been a “second enclosure of the commons” in areas of intellectual protection and creativity in the last two decades. According to Boyle, “the expansion of intellectual property rights has been remarkable—from business method to patents, to the Digital Millennium Copyright Act, to trademark antidilution rulings, to the European Database Protection Directive … Both overtly and covertly the commons of facts and ideas is being enclosed”Footnote ³⁶

This enclosure has not been left unchallenged, and the challenge has come from many quarters and in many ways, such as creating commons, developing alternative modes of production and distribution that give more importance to innovation and sharing than IPR, strengthening public domains, and developing new common rights.Footnote ³⁷ For indigenous communities, this enclosure is not new and biopiracy is a major issue.Footnote ³⁸ Hence indigenous communities have a stake in the debates on commons and initiatives to strengthen public domain and to develop alternative modes of production and distribution of ideas and knowledge. But some scholars have cautioned against the romancing of the public domain and have argued that strengthening the public domain may not necessarily be in the interest of indigenous communities.Footnote ³⁹

This is true because indigenous communities cannot afford to place their knowledge in the public domain and provide unrestricted access to both knowledge and genetic resources. At the same time, choosing IPR to protect their interests and using commercialization as a strategy to prevent misappropriation may result in disregard for their values and result in commodification. So developing commons and protocols may help in avoiding both extremes and ensure that while their rights are protected, their values are respected and recognized without commodification. Having said this, let me now discuss some of the important commons developments in the last decade and a half and illustrate how different types of commons have been developed with institutional mechanisms to guard and nurture them.

COMMONS IN PLANT GENETIC RESOURCES

The CBD chose to designate biodiversity as a common concern of humankind rather than as a common heritage of humankind. This was the outcome of the Global North–Global South divide over the nature of global genetic resources and accessing these resources.Footnote ⁴⁰ The Bonn Guidelines came much later, and although CBD is a convention on biodiversity on a global scale, it ultimately left the important issues of ABS and rights of indigenous communities to the national governments. In other words, it did not envisage development of a global commons of biodiversity. But as it did not recognize the idea of common heritage that enabled free and unconditional access, it was a step forward, although ABS was a move toward commercialization of knowledge and genetic resources. In the case of plant genetic resources, TRIPS and protection of plant breeders' rights through national laws or laws modeled after the International Union for the Protection of New Varieties of Plants conventions have altered the boundaries of what can be appropriated through IPR, rights of plant breeders, and rights of farmers. As a result, the property domains in the case of plant genetic resources are many, including private, state, common, and public.Footnote ⁴¹

The shifts in the boundaries and the corresponding changes in regulatory frameworks have resulted in diminishing the space of the commons while the space under state sovereignty and private control has increased. But ITPGRFA reverses this in some ways, as it has created a protected commons with access to this commons regulated by the provisions and rules framed under ITPGRFA, implementation of which is overseen by an intergovernmental governing body. ITPGRFA enables benefit sharing with farming communities. I am not arguing that ITPGRFA is an ideal solution. Rather, the point here is that it creates a protected commons, however limited it is, and this commons is useful for both farming communities and public-sector plant-breeding activities. Genetic resources held by institutions under the Consultative Group on International Agricultural Research (CGIAR) are managed by the United Nations Food and Agriculture Organization as a trustee and are held as resources available for all countries. Many important research centers, such as the International Rice Research Institute, are part of the network of institutions governed by CGIAR. CGIAR centers benefit from the free flow of germplasm and genetic resources and are also major repositories of germplasm of important crops.Footnote ⁴² According to Roa-Rodriguez and van Dooren, “[intellectual property] IP and sovereignty-based spaces are expanding at the expense of positive and inclusive and common open spaces. Both the sovereign and private-IP domains are exclusionary in character often fencing off resources for the use of a privileged few.”Footnote ⁴³

Does this mean that there are no good options for those who want to develop commons from the resources still available for farmers and indigenous communities? Do farming communities have any rights over varieties that were collected by the plant breeders and others and are now stored in various collections at research centers and universities? With respect to the second question, the provisions of the CBD are not applicable for genetic resources collected prior to the signing of the Convention, and hence farmers cannot claim any special rights over them nor will the provisions on ABS be applicable to them. But farmers, farming communities, and indigenous communities can create commons on their own, with their own resources and manage them. Some proposals have been made in this regard.

Salazar, Louwars, and Visser proposed a protective measure called “origin recognition rights” to ensure that new farmers' varieties are recognized and protected. They want to ensure that deriving and developing such varieties from public or private varieties is legally protected, and new forms of protection may be introduced to promote their continuing contribution to maintain genetic diversity. IPR legislation should be reinterpreted to facilitate these, that is, protecting farmer-developed varieties and facilitating their continuous contributions for maintaining genetic diversity.Footnote ⁴⁴ In an earlier work I proposed a BioLinux model for plant varieties and seeds linking participatory plant breeding with development of new varieties and suggested that a commons be developed, based on open-source models.Footnote ⁴⁵ The late Prof. Aoki, after examining these proposals, pointed out their strengths and potential pitfalls and argued that such open-source plant genetic resources models should explicitly include farmers in the Global South.Footnote ⁴⁶ Moreover he suggested that the limited commons proposed by Rose and Ostrom is a useful model.Footnote ⁴⁷ According to Aoki, the 64 crops and forages listed in Annex 1 of ITPGRFA can be considered as part of such a commons as the treaty imposes license conditions on the recipients through material transfer agreements.Footnote ⁴⁸ Kloppenburg who wrote the pioneering work, First the Seed: The Political Economy of Plant Biotechnology,Footnote ⁴⁹ on IPR and seeds is in favor of these open-source models as strategies that would help in recovering sovereignty over seeds by farmers.Footnote ⁵⁰ Thus in the case of plant genetic resources and seeds, there are proposals to develop commons so that farmers' rights and innovations are protected. However, these proposals have not been developed into working models, nor have they been tested with farmers and farming communities.Footnote ⁵¹

Conversely, ITPGRFA is in operation, and although its coverage is limited, it is working well. Hence it can be argued that TKC in plant genetic resources is a workable proposition that needs to be tested, and depending upon the needs and contexts, different types of commons can be developed with benefit-sharing schemes. While tweaking ITPGRFA as suggested by Aoki is one option, there can be other options. In fact the idea of TKC with BCP can be used to develop a commons in plant genetic resources by indigenous communities in association with farming communities so that there is mutual exchange of germplasm and genetic resources and sharing and exchanging of new varieties developed by farmers.

CONSTRUCTED COMMONS IN POSTGENOME LIFE SCIENCES AND MEDICAL INNOVATIONS

The data generated by sequencing the human genome was placed in the public domain to preempt any attempt to “enclose” it. Subsequently the SNP Consortium and HapMap Project formed as a collaborative initiative to share and provide access to data and information and to ensure that IPR are used for defensive purposes rather than to claim monopoly rights to block others from engaging in research and development. Both the SNP Consortium and the HapMap Project were founded on the principle that data and information can be held as a common resource for the benefit of all members without giving up IPR.Footnote ⁵² There have been initiatives to construct commons or to form cooperative arrangements to provide access to data and information and to share them as they are held as a common resource available to the members of a consortium or alliance.

A study of 39 open-source initiatives in biopharmaceutical innovation shows that companies form consortiums to share, allow conditional access to members, and opt for the joint management of knowledge assets so that all members can benefit and take advantage of knowledge and technology outside the firm—and such accesses are regulated by rules agreed by all.Footnote ⁵³ Sage Bionetworks is another initiative to establish commons and enable access to it in the context of disease models and integrative bionetwork models.Footnote ⁵⁴ Such commons are constructed through such rules and institutional mechanisms. These are similar to limited common property as proposed by Rose. The major advantage in such arrangements is that everyone benefits by cooperating, and access facilitated by rules that are common to all does not become a contentious issue.

These rules and governance mechanisms ensure that IPR are respected, and further research and development is not hindered because of IPR. IPR are sought for and obtained for defensive purposes while access is provided on licenses modeled after GPL or its derivatives. A “nonexclusive” grant-back license permits the licensor to practice the improvement, and still the licensee retains title and all other rights made available through the original licensing agreement. Nonexclusive grant-back license may be with or without royalty.

GPL or its derivatives are suited for creating commons, as nonexclusive grant-back provisions enable formation of a commons by ensuring that access is provided on similar terms, and no single party is able to misappropriate the contribution of others or block further development. Eisenberg points out that nonexclusive grant-back provisions can be used to create a commons that can be shared among institutions.Footnote ⁵⁵

In recent years there have been initiatives like the Patent Commons Project and Eco-Patent Commons, which enable access, subject to some conditions, to patents donated to the commons. These commons are independent entities, and they are formed with specific objectives, for example, to promote and develop open-source software environmentally friendly technologies.Footnote ⁵⁶ Commons thus can be developed or constructed to meet some objectives, particularly to overcome enclosure through IPR or to facilitate access and to share resources for common benefit. But such commons cannot be considered as a panacea to prevent enclosures, nor may be suitable in all contexts. For such a commons to function well and meet the objectives, a combination of factors (formal legal rules, institutional mechanisms, contracts, and informal rules such as ethical guidelines) are necessary.Footnote ⁵⁷

To conclude, it is possible to construct commons and to develop institutional mechanisms to manage them. But constructed commons are the outcomes of human endeavor and hence availability of resources per se for constructing a commons cannot guarantee that the commons will be successful.

A CRITICAL EXAMINATION OF TRADITIONAL KNOWLEDGE COMMONS AND BIOCULTURAL PROTOCOLS

The available literature on TKC and BCP is limited, and these have been in vogue for less than two years or so.Footnote ⁵⁸ Hence, it is too early to conclude that they are viable solutions. Moreover, whatever has been published as assessments of BCP and TKC are from the organizations and academics involved in promoting them. As indicated elsewhere in this article, these studies have claimed that BCP has been successful in some instances. But there are not many case studies on TKC, even from those who support them. So as far as I know, there has been no independent and rigorous review of BCP and TKC. I will examine the idea as such as expounded by the promoters of these and then examine a case study of each.

The ideas have some merits as they complement the ABS and ensure that the values held by the communities are recognized and respected. They provide a mechanism to facilitate this. As it has been made clear that TKC is not a public domain, it is obvious that it will be a commons, access to which is regulated or restricted. The promoters of the TKC idea envisage the use of open-source approach for licensing and are keen to promote the use of TKC for further development and to facilitate innovation. In my view, this is an important development as it recognizes TK not as an end in itself, but as a source of further development. In contrast to ABS, which designates one party as users and the other party as providers, this approach can facilitate closer collaboration and pursuit of activities in mutual interest. This, in turn, can result in innovations needed by these communities who have the resources but lack the technology to make the best use of them. Using the Internet to track the use of licenses and to check whether TK has been enclosed is a good idea. The only issue is that unless these are tested, the shortcomings will not be known. The use of BCP as tools to ensure that the noncommercial values held by the communities are respected is an important step. In short the TKC proposal supplemented by BCP, licenses, and other arrangements is a significant proposal that can be used to supplement the ABS contracts.

BCP can be useful in the effective implementation of the Nagoya Protocol, as Article 12.3a mentions community protocols for access to TK and equitable benefit sharing. Similarly, Article 6.3f requires parties to set out criteria and/or processes for obtaining PIC or approval and involvement of ILCs for access to genetic resources. Indigenous communities can demand that BCP can be made part of this process, and conceding to BCP can be a condition for access, and/or PIC process should recognize the BCP as a binding agreement between the bioprospector and indigenous communities.

Article 12.1 of the Protocol requires parties to take into consideration ILC's customary laws, community protocols, and procedures in implementing their obligations on TK. Indigenous communities can take the stand that BCP is based on customary law or is compatible with customary law and hence should be taken into consideration in designing ABS regimes. This will be particularly useful when customary law is not recognized by the formal legal system or the noncodification of customary law is cited as a reason to accept it as a valid legal framework. This calls for developing BCP that draw upon customary law principles and can integrate them into model agreements, contracts, licensing terms, and conditions for access.

There are several shortcomings in the BCP TKC approach, and they range from lack of clarity on the institutional structure to use of GPL in contexts where it has not been tested in the courts of law. The shortcomings can be divided as either shortcomings in theory and concept or shortcomings in putting the concepts into practice. The second category depends on the national regimes and contexts, and only a case-by-case analysis will help us to understand them better.

I would like to point out five major shortcomings under the first category:

1. 1. There is a lack of clarity on the nature of the TKC: Although the literature produced by the proponents of this idea discusses the relevant literature, it is not clear what the nature of TKC is—Is it semicommons or is it similar to common property resources/common pool resources or is it a limited common property?Footnote ⁵⁹ This aspect is not clear, although it is clear that TKC is not a part of an open-access public domain but rather a regulated access commons. Of course there can be more than one category of TKC modeled after different types of commons.Footnote ⁶⁰

2. 2. A major shortcoming is that the idea of TKC presupposes the existence of a community with shared values and objectives whose members are willing to accept that their knowledge and resources can be used to develop such a commons. Collective action problems can arise in such situations as members may be willing to free ride but not willing to contribute or share. Some holders, particularly families that have held some knowledge as secret for generations, may refuse to participate in such commons as disclosure will not be in their interests. Another issue is that although the community may agree to develop and maintain a commons and manage it, users who enter into ABS contracts or outsiders who need access may prefer to deal with individuals who possess the requisite knowledge and who can facilitate access to resources as it may be economical to do so without any binding BCP or licensing arrangements.

3. 3. There exists ambiguity about the contents of TKC: What the contents of TKC are is not clear. It is obvious that it is not just genetic resources, and TK is also involved. But how both material and nonmaterial resources (knowledge) will form this commons has not been explained. A commons created or carved out of material resources (i.e., tangible resources) can stand on its own as a commons, but knowledge commons as an idea in the context of TKC has not been elaborated adequately.

4. 4. What subcategories of TK will form part of this commons and what will not has not been clearly stated. For example, will traditional cultural expressions be part of TKC or will they be excluded and will cultural knowledge and intangible cultural heritage be also part of this commons? These are some of the questions that have to be addressed.

5. 5. How will this commons be formed? In the earlier sections I have discussed development and construction of commons and have shown that they are the outcomes of efforts having been created or constructed with certain objectives. In the case of TK, while documenting, cataloging, and digitizing can create databases and other collections, they themselves do not come under the category of constructed commons. Hence, creating a TKC or constructing a TKC is not an easy task. Conversely, as a portion of the TK is either known or in public domain, segregating what is in public domain and what is in TKC is not an easy task.

A successful example that is cited is the deal entered with the International Potato Center (CIP) in Peru. This enabled the farming communities to “reclaim” their traditional varieties, release them to others, and construct a commons. This has been a success because of many factors such as the policy of CIP, the institutional framework that enabled such a deal, and the specific nature of the resource (i.e., potato germplasm). Here too the commons could be developed because the resources were readily available and the community was closely knit or was dependent on a single resource.

Having said this, let me examine a case study involving traditional healers of the Malayali tribes, an indigenous community in Tamil Nadu, a state in south India.Footnote ⁶¹ They practice a mixture of folk medicine and Siddha medicine (which is one of the traditional medical systems of southern India) and ethno-veterinary medicine. They claim that they adhere to principles of sustainable harvesting and give importance to spiritual values. It is clear that the healers are confined to few villages and belong to Malayali tribe, which is a small tribe in terms of numbers.

A perusal of their demands indicate that they want the provisions and rules of the Biological Diversity Act to be implemented and the rights available to them under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 to be made available to them in full without any exception. Their demands are justified as they are asking for implementation of laws and regulations. But mere implementation of these laws and rules need not necessarily result in development of TKC or use of BCP by the community.

From the literature provided, it is clear that while their TK is valuable and useful in the local context, it may not have much significance in terms of ABS or commercialization. It is also clear that their clientele is limited to a specific area. Developing a TKC or use of BCP may not be useful to them as their clientele are not the typical users who buy raw materials or need access to knowledge and resources. Rather, their main concern is with the nonimplementation of laws and issues in accessing medicinal plant resources. These problems will not be solved even if they form a TKC and use BCP. What may be more useful to them is to form a cooperative to prepare medicines, provide treatment, and serve their clientele this way. Regarding access to medicinal plants, they may want to consider taking land on lease from the government for cultivation.

This case study demonstrates that the major problems faced by indigenous communities arise not out of CBD per se but out of the lack of implementation of rules and regulations and disregard for their rights as indigenous communities and forest dwellers. This is not just a local issue, as other communities at the state level and national level may be facing the very same problems. In such cases, concerns about ABS or commercialization are secondary or nonexistent, while the primary concern is that of access to resources and rights. Thus, while this close knit and small community can be an ideal community to test the effectiveness of TKC and BCP, the ground reality is very different. It calls for a different set of solutions that would include recognition of their rights as indigenous communities and resolving issues of access to forest resources.