A Comparative Study of Protection of Traditional Knowledge in India and Bangladesh

Transcription

1 Chapter 6 A Comparative Study of Protection of Traditional Knowledge in India and Bangladesh 1. Introduction Knowledge based, value- added product development and its commercialization has become one of the fastest economic activities in the world. (Pushpangadan, Nair, 2005:441). Biogenetic resources being the primary source of valuable genes, pharmaceuticals of economic importance account for over US $ 500 billion worth of products developed in the world market (Laird and Kate, 2002: ). Biodiversity rich countries such as India and Bangladesh have generated immensely valuable knowledge systems on the use of biological and genetic resources. However, use of this knowledge for subsequent commercialization has not resulted in a reciprocal IPR protection for the holders of this knowledge. The liberalization of global trade policies and other economic reforms evolving currently with the emergence of the CBD and WTO have led to greater vulnerability of misappropriation of traditional knowledge on the one hand and awareness of the need to seek protection of the knowledge holders in a more sustainable way on the other. India has responded to the threat of biopiracy and related cases of misappropriation of traditional knowledge by enacting domestic ABS legislations, plant varieties and farmers rights legislations and patent reforms documentation of traditional knowledge as prior art apart from calling for amendment of TRIPS to' include disclosure of origin provisions. Bangladesh too has drafted biodiversity and community knowledge protection and plant varieties and farmers rights protection legislations. None have been enacted though. The chapter compares efforts by the two countries which share similar agricultural and traditional medicinal systems. and 140

2 2. Traditional Knowledge of Agriculture in India and Bangladesh India like other developing countries is notable for agriculture as the major or only source of income for majority of its population, and for its wealth of genetic diversity present in the form of large number of farmer selected varieties. 'With more than 60% of the population employed in agriculture, seed supply in India fundamentally relies on decentralized local systems of seed production. (Sahai,2003: 166). 'As one of the 12 mega diverse regions of the world, India has over 45,000 wild species of plants and 77,000 wild species of animals recorded'.(tiwari,2006:49-62) Similarly, Bangladesh possesses a rich heritage of traditional knowledge through which people try to manage their production system on the floodplain, exploiting land, fisheries, livestock and forests, to earn their livelihood. The country has been the abode of some 5000 species of higher plants (angiosperms) There were some 8500 cultivars of rice alone in the early 1960s, which has been reduced to a few dozen of rice cultivars to be found in a farmers' fields. 3. Traditional Medicine System in India and Bangladesh Traditional medicine system in India prevails at two levels-the classical and folk system. Indian Systems of Medicine(lSM) having a central place in the official Indian healthcare system are derived from traditional knowledge based on codified systems such as Ayurveda, Siddha and Unani medicines is referred to as the classical system of medicine. These are characterized by institutionally trained practitioners, a budy of texts originating since ancient times, and highly developed theories to support the practices. 'There exists an estimated million manuscripts in Sanskrit alone, many of them relating to medicine'.(balasubramaniam,2003:40) In addition, innumerable manuscripts exist with individuals and families of vaidyas or traditional healers. The traditional system of medicine in Bangladesh too includes Ayurvedic and Unani medicines for which a national policy exists. In Bangladesh there are 5000 plants, of which 1500 to 2000 plants are covered through different ethnobotanical and ethnomedical surveys. Conservatively a 141

3 mlmmum of 1000 plants have medicinal value.(khan, Choudhury,2004:277) Consequently the traditional knowledge associated with is also large. 4. Comparative Study of Legislations to Protect Traditional Knowledge in India and Bangladesh The Convention on Biological Diversity (CBD) has established the framework rules for access to biological resources providing that states are the legitimate owners of biodiversity and thus have sovereign rights to exploit their own resources pursuant to their distinctive environmental policies ( Article3, CBD) It vests sovereignty over natural resources and the right to grant access to genetic resources in the particular national governments--thereby according the state authority and jurisdiction to determine the relevant rules and guidelines for accessing to its biological resources. According to Article 15(4) of the CBD, access can only occur on mutually agreed terms and with PIC (PIC) of the source state. As parties to the CBD, the countries of the South Asian region are required to adopt and implement certain measures to develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity in their own countries. (Kariyawasam, 2007:328) India and Bangladesh have responded to the CBD by incorporating its provisions in their own biodiversity legislations. 4.1 Biological Diversity Act 2002 of India and the Draft Biodiversity and Community Knowledge Protection Act 1998 of Bangladesh India's Parliament passed the Biological Diversity Act in February 2003 to address India's obligations under CBD (Venkataraman, 2005). Hence it is defined as "An Act to provide for the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto".(biological Diversity Act,2002) While the Act mandates the scope of the CBD, the most important measures adopted by the Act focus mostly on access to biological resources and related issues. This is partly a response to the 142

4 concerns over biopiracy in the second part of 1990s and partly in response to other developments such as the adoption of the TRIPS Agreement. Bangladesh too has drafted the Biodiversity and Community Knowledge Protection Act 1998 in response to obligations under the CBD. This Act aims to "ensure the conservation and sustainable use of biological and genetic resources and related knowledge,...". (Art.2(a) Biodiversity and Community Knowledge Protection Act 1998 of Bangladesh) The Act provides a holistic approach to the protection of traditional knowledge including cultural aspects related to the knowledge of biodiversity. Innovation is not merely that which is related to industrial applicability. It includes "any alteration, modification, improvement of collective and cumulative knowledge or technology... in the composition of biological extracts used by the communities"(article 4, Draft Biodiversity and Community Knowledge Protection Act 1998 of Bangladesh) It thus seeks to recognize traditional knowledge and biodiversity of Bangladesh not merely in relation to its commercial value but also its "Real Value" as "the intrinsic, unknown, undisclosed, non-apparent value of biodiversity, biological and genetic resources and the knowledge and culture related to it"(article6(8), Draft Biodiversity and community Knowledge Protection Act,1998 Bangladesh) Unlike the Biological Diversity Act 2002 of India, which provides for IPRs as a form of benefit sharing (Section 21, Biological Diversity Act, 2002, India) in Bangladesh, the Biodiversity Act provides that patenting of the life forms is against the moral, intellectual and cultural values of the people of Bangladesh (Article5 (3), Draft Biodiversity and community Knowledge Protection Act, 1998 Bangladesh) 143

5 4.2 India's Plant Varieties and Farmers' Rights Act, 2001 and Draft Plant Varieties and Farmers' Rights Act of Bangladesh, 1998 (as Amended in 2002,2003 and 2006) India's and Bangladesh's policy on IPR protection in agriculture has largely been governed by factors that include "common heritage", or the principle of free exchange based on the view that the major food plants of the world are not owned by anyone and are a part of our human heritage (Kloppenburg 1998, p. 152). India's seed policy until the 1980s restricted the role of private sector in agriculture'.(ramanna,2003:7) These factors promoted a system where India did not provide for Plant Breeders Rights (PBRs) as there was no real demand for such a system for decades. The absence of PBRs also meant that there was no requirement for farmers and other indigenous knowledge holder's rights as a counter to IPRs. (Ram anna, 2003:7). Farmers were free to use, share and exchange seeds and since breeders could not acquire PBRs, there was no system of benefit sharing or compensation. Commercialization of agriculture, increasing use of high yielding varieties and hybrid seeds leading to decline in the use of traditional crop varieties and the subsequent entry of multinational seed companies required a review of agricultural policies to protect the rich base of plant varieties that India had. The issue of farmers' rights within the FAO and other forums was another factor that shaped the debate in favor of a PPVFR Act. Similarly, in Bangladesh, introduction of chemical fertilizers instead of natural manures, modem varieties of crops often introduced by MNCs have brought about a change in the agricultural patterns of fanners leading to loss of traditional varieties. Introduction of hybrids to improve yields and the consequent effects have raised questions on the feasibility of such efforts on the one hand and the need protect traditional knowledge associated with rice cultivation as a more sustainable option. Agricultural sector has gone, through substantial changes in ~he 1980s to reduce the yield gap.later in the 1980s, the governments control over the market was reduced markedly to promote open market.( Hasan, Abamad(I),2005:1) A number of MNCs exploited this opportunity and entered 144

6 the market with their hybrid seeds. Large scale use of hybrids began in Since then 68% of the rice yield comes from hybrid seeds (ibid:2) Today, Bangladesh and India are members of TRIPS and obligations under the treaty require the countries to protect their plant varieties/plant genetic resources through patents or by an effective sui generis system. The TRIPS has raised stakes in the debate over protection of traditional knowledge in relation to PGRs, by posting the grant of IPRs over biological diversity. While India has sought to provide IPR protection to its plant varieties, Bangladesh is yet to develop strategies to cope with the implications of the TRIPS Agreement. Even then it has framed drafts on plant varieties and farmers' rights protection since 1998 that has been revised in 2002, 2003 and finally in 'Protection' under the draft Plant Varieties Act,1998 of Bangladesh means defined and specific commercial privileges, whether explicitly mentioned or not, approved and granted to an innovator by the NBA. Such a protection shall not constitute any generalized IPR and may vary from applicant to applicant on the basis of the nature of innovation. India on the other hand explicitly recognizes the motive behind enactment of the Plant Varieties and Farmers' Rights Act 2001, as its obligations under TRIPS. The PPVFR Act, 2001, the first legislation of its kind in the world that simultaneously recognizes and rewards the contribution of breeders and farmers to the development of new crop varieties. It features a combination of provisions from UPOV 1978 and UPOV 1991 versions(kochar,2004: 348) as compared to Bangladesh whose draft plant vareties legislations reflect more of the UPOV 1991 versions. The Indian legislation goes further to provide protection of traditional knowledge or farmers' rights to share of benefits from the commercialization of their crop varieties, through grant of patent or effective sui generis IPR. The implementation of this Act is vested with two national apex bodies, one administrative and other jurisprudential The administrative apex body is the Protection of Plant Varieties and Farmers' Rights Authority. 145

7 4.2.1 Definition of Farmers and Breeders The legal definition of key words in legislative documents is important in order to keep the legislative goal in focus. Like the plant variety, the farmer has the central place in the Act. Therefore how a farmer is defined assumes importance. The PPVFR Act of India therefore defines a farmer as 'a person who... conserves and prepares, severally or jointly with any person any wild species or traditional varieties, or adds value to such wild species or additional varieties through selection and identification of their useful properties. In other words the Act identifies the farmer as the cultivator, the conserver and breeder. This definition embraces all farmers- landed, landless, male female. Indian farmers usually cultivate many different crops and more than one variety of each crop. The breeder is defined as 'a person or group of persons or a farmer or group of farmers or any institution which has bred, evolved or developed a new variety'. The use of the term "evolved", thus gives recognition to farmer breeders who have experimented on the crop varieties over a long period of time while at the same time protecting rights of commercial breeders as well. Bangladesh's draft 1998 legislation defines a farmer as "an individual who practices farming, whether subsistence or commercial, excluding a juristic person"(article 4, Draft Plant Varieties Act of Bangladesh, 1998 ) The draft after modifications as evolved in 2006 defines farmer as one who 'conserves and preserves, or adds value to, separately or jointly with any person, any wild species or community variety, through selection and identification of their useful properties'(section2(h)(3), Draft Plant Variety and Farmer's Rights Protection Act, 2006 ). This an improvement over the 1998 version, though still not as inclusive as the Indian one. It defines a breeder as one who 'bred, or developed a plant variety in Bangladesh which was new at that time'(section 2(c), Draft Plant Variety and Farmer's Rights Protection 146

8 Act, 2006, Bangladesh) the role of the fanners breeder who has 'evolved' a plant variety has not been acknowledged. However, unlike the draft Plant Varieties Act 1998, the new drafts on plant varieties and fanners rights as amended upto 2006 seek to fulfill the obligations of Bangladesh under TRIPS that requires countries to give protection to their plant varieties and thus the knowledge of fanners associated with it either by patents or sui generis systems or a combination of both Registration of Varieties The Indian PPVFR Act allows four types of varieties to be registered, reflecting the interests of various acfors: New variety, Extant Variety, Essentially Derived Variety and Fanners' Variety. It is guided by the distinctness, unifonnity and stability ( DUS) criteria. The PPVFR Act is unique in this respect because plant variety protection laws of many other countries including Bangladesh, allow only protection of new varieties bred by professional breeders. However the Rules of the Act are not explicit in stating the eligibility of farmers' varieties. 'Extant variety' refers to Indian varieties bred by the public and private research system and officially released for cultivation by the state or Central government and have not completed 15 years from the date of release and also farmers' varieties and varieties about which there is common knowledge or any other variety which is in the public domain. Protection of extant varieties is a new criteria not found anywhere in the world. The extant variety need not show novelty and the criteria of distinctness, unifonnity and stability (DDS) will be detennined as specified under the regulations made by the Plant Variety Authority in India (Gopalakrishnan,2001) 147

9 The attempt to protect extant varieties and farmers varieties is more of an attempt to conserve existing varieties and thus contribute to the protection of traditional knowledge by India. In Bangladesh, registration of plant varieties is guided by the UPOV criteria of new, distinct, uniform and stable. This criterion thus favours commercial plant breeders and promotes monoculture of crops The Authorities Overseeing the Implementation of the Plant Varieties Legislations In Bangladesh, under the 1998 draft, it was the National Biodiversity Authority that grants the breeders right. However, this has changed since the 2002 draft, which proposes the formation of a statutory authority to be called the Plant Variety Protection Authority to grant either new variety certificates or citations of awards. (Article 4) (Kabir, 2005: 17). Unlike the NBA, this Authority is envisaged to consist of 11 members with apparently no representation from the civil society or farmers (Kabir,2005: 17). This has been retained in 2006 draft Plant Varieties and farmers Rights Protection Act of Bangladesh, though the name of the Authority has been changed to represent a more inclusive character that is, Plant varieties and farmers Rights Protection Authority. India however, has made efforts to ensure the representative character of the Plant Varieties and farmers' Rights Protection Authority. The Authority, set up under the Act in 2005 is the main body that oversees the implementation of the Act and has a broad based composition of 15 members from ex officio government functionaries at various functional/sectoral levels, and one representative each from farmers, tribal and women organizations (Section 3.5). The Chairman appoints a Standing Committee consisting of five members, one of who has to be a member from a farming organization to advise the authority on all issues including farmers rights (Section 3.7). An important component of this Authority is, therefore, representation of farming and indigenous communities. 148

10 4.2.4 Farmers' Rights Bala Ravi (2004) has enlisted nine rights accorded to farmers under the PPVFR Act of India. These include the right to seed, rights to register varieties,rights to reward and recognition, right to benefit sharing, right to infonnation and compensation incase of crop failure, right to compensation for undisclosed use of traditional varieties, right to adequate availability of registered material, right to free services and protection from legal infringement in case of lack of awareness. These rights enumerate the recognition of farmers as responsible for evolving, conserving and diversifying of plant varieties and consequently of traditional knowledge whose rights need to be protected as much as those of commercial plant breeders. Plant variety legislation in Bangladesh too has enumerated fanners' rights. In the latest draft of2006, farmers' rights are enumerated in Section 19 as: 1. The rights of farmers and their communities to protect their traditional knowledge relevant to plant genetic resources for food and agriculture. 2. The right to equitably participate in the sharing of benefits ansmg from the utilization of plant genetic resources. 3. The right to participate in making decisions on matters related to the conservation and sustainable use of plant genetic resources. 4. The right of fanners to seek cancellation and! or retribution, as the case may be, for appropriation by fonnal sector breeders of denominations traditionally in use for their varieties. 5. The right that farmers have to grow, save, use, exchange, and sell farm-saved seed of any variety except selling of seed of a protected variety for the purpose of reproduction under commercial marketing arrangements. Commercial marketing arrangements include the sale or offering for sale of seed that is: Labeled or sealed in any fonn; Packed in containers with any signs of the producer or trader; or Advertised for selling or marketing. 149

11 6. The right to have access to all information relevant to the exercise of their rights with respect to plant varieties. Though the Act enumerates the right to protect traditional knowledge of agricultural biodiversity, other details have not been enumerated. Besides, unlike India, registration of farmers' varieties has not been provided. As the following sections demonstrate, the procedures of fanners to be paid compensation for undisclosed use of their varieties and to benefit sharing have not been laid down in the draft legislations of Bangladesh even though they have been enumerated as part of farmers' rights. Over all, the plant variety legislations in Bangladesh appear to be tilted towards commercial breeders. 5. Access Mechanisms in India and Bangladesh Concerning access to biological resources, the Biological Diversity Act of India focuses mainly on access by foreigners, thus reasserting its sovereignty over its knowledge and resources as per the principle of permanent sovereignty over natural resources embodied in the CBD. The route of access to Indian biological resources and associated knowledge provided in the Biological Diversity Act differs depending on whether the party accessing is (l) a non-indian or non-resident Indian citizen, or a body corporate/association/organization not incorporated or registered in India or such bodies having non-indian participation in capital or management; (2) Indian citizen or a body corporate/association/organization registered in India, and (3) local people and communities inhabiting an area, including traditional medicine practitioners. (Bala Ravi,2006:14) -- Bangladesh makes no such distinction. The general provisions of the Act provides for enabling the 'people of Bangladesh to exercise their sovereign and inalienable rights... over the biological and genetic resources and related intellectual and cultural knowledge' ( Article5(4) Draft Biodiversity and community Knowledge Protection Act,1998 Bangladesh) and ensuring that 'that no citizen of Bangladesh is prohibited from access and use of biological and genetic resources and the related knowledge,... as long as such access and use do not fall outside the cultural, traditional, customary 150

12 practices and/or do not constitute activity to make economic profit'(article 5(6) Draft Biodiversity and Community Knowledge Protection Act, 1998 Bangladesh). However, unlike India which does not provide for specific PIC of the communities to access the biological resources and associated knowledge, Bangladesh provides for express PIC in Article 7. Article 7(4), says that the 'biological and genetic resources and the intellectual and cultural knowledge and practices as well as any innovations arising from these shall not be sold, assigned transferred or dealt in any manner without explicit PIC and effective participation of the communities concerned'. Also 'the Communities will always have the right to refuse transaction based on gainful intent or any commercial utilization, exploitation and exchange'. In India, The National Biodiversity Authority is the sole determining agency as far as access to resources is concerned. Biological Diversity Act 2002, of India has provided a 3 tier institutional structure - the National Biodiversity Authority(NBA)22, State Biodiversity Boards(SBB) in every state and Biodiversity management Committees 23 at the municipallpanchayat levels. The Ministry of environment and Forests is the nodal agency through which the Act is implemented. Access to traditional knowledge to foreign citizens, companies and NRIs based on 'prior approval ofnba'(section3) Access permits to Indian Citizens, companies, associations and other organizations registered in India is based on the 'prior information to the SSB' concerned.(section 7) However, any kind of approval or intimation is exempted for local people and communities, including growers and cultivators of biodiversity, and vaids and hakims, who have been practicing indigenous medicine.(section 7) National Biodiversity Authority is the apex national institution headed by Chairperson, vested with authority to regulate access to biodiversity, associated knowledge and database, to issue and implement guidelines for ABS in accordance with the Act and directions of Government of India. 23 Biodiversity Management Committee constituted under BD Act functions at every Panchayat and is vested with the responsibility of documentation, conservation and sustainable use of local biodiversity, and assisting the State Biodiversity Board in ABS decisions 151

13 Though the Act asserts India's sovereignty over its biological resources, it gives not give local holders of such resources and knowledge control over access at their level. The Act, however, provides for the involvement of Biodiversity Management Committee, which is instituted at each Panchayat, in the process of decision making on ABS issues related to local biodiversity and associated knowledge. Like India, Bangladesh too has sought to establish a National Biodiversity Authority(Articlell) which among others will be represented by members from 'different communities composed of relevant representatives from the public sector, scientific and professional organizations, people's organizations, women's organizations, development and environmental organizations, and representatives of local and indigenous communities'(articlell(l) Draft Biodiversity and community Knowledge Protection Act, 1998 Bangladesh ). Compared to this, the National Biodiversity Authority of India is not represented by members of local communities. 6. Benefit Sharing under the Biodiversity Legislations in India and Bangladesh. The Indian benefit sharing mechanism under the Indian Biodiversity legislation is more inclusive than that of Bangladesh. Besides, it makes a conscious effort to ensure various kinds of benefit sharing mechanisms so that traditional knowledge holders get a share in the benefits that are accrued from the utilization of their knowledge. Section 21 of the Biological Diversity Act of India provides for "determination of equitable benefit sharing by National Biodiversity Authority". The benefit-sharing system provided in the Biological Diversity Act is largely in conformity with the Bonn Guidelines on ABS, with case-to-case variation. It includes provisions of various kinds such as transfer of technology, monetary returns, joint R&D, venture capital funds and joint IPR ownership.(section 21, Biological Diversity Act,2002) 152

14 While India leaves the amount of benefit sharing to be detennined by the NBA, Bangladesh however provides for a defined percentage of benefits, 'not less than 50 percent of the net monetary gain, obtained from a direct or indirect commercial use of biological and genetic resources in which the communities are the common owners, sole custodian and stewards be paid to the concerned local community or the group constituted as a Community.' (Artic1e7(5), Draft Biodiversity and Community Knowledge Protection Act,1998 Bangladesh )Apart from this, the draft is not clear in specifying the procedures for benefit sharing. Even the NBA has not been specifically assigned the task of implementing benefit sharing except to 'take decisions and measures as well as draft and implement rules, regulations and administrative procedures that are required by the Act'. This defined percentage of benefit is considered better than leaving the decision at the discretion of authorities as this would lead to chances of manipulation of shares of benefits often to the disadvantage of traditional knowledge holders. In India's case, even when the benefit claimers are identified, monetary compensation is not provided directly, since it is for the NBA to decide whether to pay money to the claimants directly or to the Biodiversity Fund. However, Indian legislation has recognized IPRs as a form of benefit sharing. Where the benefit claimers can be identified, the NBA can provide for joint ownership of IPRs. The NBA can allocate itself as the joint owner of the IPR if the benefit claimers cannot be identified.(section 21 (2)(a) Biological Diversity Act, 2002) Thus the Act makes special reference to IPR in an indirect acknowledgement of their increasing importance in the TRIPS era. From a conceptual point of view, one of its most significant contributions is to also recognize that benefit sharing can also include sharing ofiprs. (Cullet,2004) Meanwhile the NBA in India has held 10 meetings (the last known meeting was in November 2007). As on November 2007, the NBA has received and approved 15 applications for access to biological resources for research and commercial purposes. It 153

15 has approved 232 applications for IPRs and 12 applications for collaborative research (Venataraman, 2007) Out of these applications approved for IPRs, 203 were from CSIR, while 27 were from industries and 13 from individuals. 7. Benefit Sharing under Plant Variety and Farmers' Rights Legislations in India and Bangladesh India and Bangladesh have included benefit sharing as a part of farmers' rights in their plant variety legislations. Rights such as right to compensation for use of traditional varieties reflects the recognition of farmers as traditional knowledge holders and their right to benefit sharing from any income made from use of their varieties. In the case of India it is also an effort to devise ways to enable traditional knowledge holders to a right full share in the benefits derived from IPRs on varieties that have traditionally been evolved by them. The Indian Act provides for equitable sharing of benefits earned from a new variety with farming or tribal communities that have contributed varieties used as parents(section 26(5))Normally, all applicants who seek to register new varieties are required to declare the sources of the varieties used as parents for breeding new varieties (section 18 (e),(h)). Claims for benefit share is made when the breeder discloses the use of specific varieties conserved by farmers of a region or on the basis of strong grounds which may substantiate undisclosed use of specific farmers' variety by the breeder. Farmers are given opportunity to submit claims for benefit share, when their variety is used as parents (section 26(2)) within six months from the date of advertisement inviting such claims by the Authority. On examination of such claims by the Authority, applicants eligible for benefit sharing and the quantum of benefit to be shared are decided. The PBR holder of the variety is required to remit the awarded benefit share in the National Gene Fund (section 26(6)). The benefit share may be disbursed by the Fund to the eligible individual, community or institution. (section 45(2)(a». 154

16 In case of Bangladesh, though benefit sharing has been declared as one of the farmers' rights enumerated, lack of specificity with procedures makes it ambiguous. Also, since the legislations have failed to provide for registration of extant varieties like in the case of India, the scope of benefit sharing has narrowed. India has an added provision for compensation Incase of undisclosed use of traditional varieties (section 41).There could be situations when the breeder may not disclose the correct identity of parental variety or knowledge due to ignorance or dishonest suppression of identity. Section 41 provides for compensation claim based on contribution to the evolution of that variety. Under such circumstances any one or even a third party who has a reasonable knowledge on the possible identity of the traditional varieties or knowledge used in the breeding of the new variety, is eligible to prefer a claim for compensation on behalf of the concerned local or tribal community.{section 41(I))The third party could be an NGO, an individual, a government or a private institution. Such compensations claims are to be submitted to the Plant Variety Authority by such third party. The Authority after verification decides on the compensation to be awarded. The awarded compensation is to be remitted to the National Gene Fund by the PBR holder.{bala Ravi,2004:23). 8. Farmers' Right to Reward and Recognition The efforts to reward for contribution to development of plant varieties also are reflected in the plant variety legislations in India and Bangladesh. However, the similarity between the two legislations ends here. While India seeks to reward for conservation of varieties Bangladesh provides recognition developing new varieties. The PPVFR Act has provisions to reward and recoglllze individual farmers or farming and tribal communities for on-farm and ex-situ conservation.(section 39 (1) (iii) PPVFA,2001). According to the Act, a National Gene Fund is to be created to reward and recognize individual farmers and communities.{ section 45, 155

17 PPVFA,2001). The main objective of the Gene Fund is to promote on farm and ex-citu conservation by individuals, communities, panchayats and institutions. This is provided as an incentive to encourage conservation undertaken by farming and tribal communities. Farmers conserving traditional varieties and wild species of crop plants are deemed eligible to receive reward and recognition. The fund shall be constituted by all receipts from the PPVFR Authority including benefit shares, registration and annual maintenance fees, compensation payments and other grants from national international organizations (Bala Ravi, 2004:22). The obvious advantage of rewarding conservation efforts is the conservation of traditional knowledge of crops existing among farmers. Bangladesh, as far as the latest draft of 2006 is concerned, provides a 'Citation of Recognition' in the form of a certificate to encourage and recognize the contribution of individuals, communities, or agencies in the development of a 'new Plant Variety'.(Section 20, Draft Plant Variety and Farmers' Rights Protection Act,2006). It does not provide for conservation of plant varieties that already exist. These and other features reflect the growing tilt towards breeders' rights in Bangladesh. Though a Gene Fund (section 21) has been provided for, the functions of the fund do not entail provision of rewarding farmers for their contribution to varietal conservation like that in India. 9. Role of NGOs in Traditional Knowledge Protection in India and Bangladesh One common ground in both India and Bangladesh is the active role of civil society organizations in protection of TK. In India NGOs and others have been promoting various drafts of bills such as the Community Intellectual Rights Act (Shiva), Convention of Farmers and Breeders (Sahai and Gene Campaign) and some experts have been trying to formulate a traditional knowledge bill. While none of these drafts have been 156

18 introduced in Parliament or any policy making body, it is important to note that NGOs are active in designing and advocating such bills. Other NGOs involved in India are the MS Swaminathan Research Foundation, Green Foundation, Kalpavriksh and Deccan Development Society to name afew. The activities of NGOs in India have ranged from influencing the drafting of Biodiversity and Farmers Rights and Plant varieties legislations to documenting of traditional knowledge at the grassroot level. Though Bangladesh too has some prominent NGOs such as UBING, Bangladesh Seed Foundation and BARCIK working towards conservation of traditional knowledge and community and farmers' rights, their role in influencing the drafting of bills on biodiversity and community rights and plant varieties and farmers' rights is not clear. 10. Documentation of Traditional Knowledge in India - Lessons for Bangladesh India has also been at the forefront as far as documentation of traditional knowledge is concerned. India has been one of the most important testing grounds for registers and databases- be it in the form of institutional database such as the TKDL initiated by CSIR or NGO co-operative databases such as FRIS and Honey Bee Network database or even the local biodiversity registers in the form of PBRs mandated by Biodiversity Act 2002 legislations. These have had impact not merely at the South Asian regional level but also globally. Databases and registers have been considered important to prove prior art existence of traditional. knowledge at the international patent offices and thus for the prevention of 'bad' patents. While the utility and safety of such an initiative is still being questioned given that no international consensus has been achieved regarding the misappropriation of the data available to patent offices, the effort is nevertheless noteworthy in the face of demands by developed states for a database on traditional knowledge to prevent bad patents. \ 11. Conclusion As members of developing countries with a rich resource of traditional knowledge related to biodiversity, India and Bangladesh have similar interests in terms of protection of 157

19 traditional knowledge. 'India's PPVFR Act legislations have been noticed for various reasons: First, it highlights the complexity of farming in the developing world which requires the balancing of interests of a variety of actors in agricultural trade. With regard to farmers' rights this includes the traditional farming community and the commercial breeders. Secondly, even though there may be drawbacks, the PPVFR Act has presented an alternative model to UPOV for developing nations' (Raghavan, 2007). Though Bangladesh has come up with drafts favourable to traditional knowledge protection as early as 1998, it has eventually not enacted them. Besides, with each new draft especially in the Plant varieties legislations the balance seems to tilt more in favor of commercial breeders at the cost of farmers' rights. The Indian legislations could well serve as an example to Bangladesh, India having enacted and implemented its Biodiversity and PPVFR Act, even though the implementation is in early stages. The role of NGOs in protection and conservation of traditional knowledge in India and Bangladesh is important. NGOs have served as pressure groups in framing of policies favourable to local and indigenous communities. Where they have not been so successful, in this case, Bangladesh, the draft legislations have subsequently reflected the rights of commercial plant breeders. The biggest advantage of India is that it has implemented the Biological Diversity Act and PPVFR Act, though their impact is yet to be ascertained. 158