India is one of the mega-diverse countries with different combinations of biodiversity in the world. The livelihoods of most of the indigenous people depend on conserving and protecting traditional knowledge of the use and functioning of biological and natural resources. In recent times the increasing importance of traditional knowledge has attracted the uncompensated use of such knowledge by multinational companies and various research organisations for commercial purposes. This endangers the protection of the Traditional Knowledge of the local and indigenous communities which seems to be one of the most contentious and complicated issue. Even Indian intellectualproperty rights and dominant paradigms of access and benefit-sharing fail to adequately protect TK because they reflect westernnormsand laws, and focus narrowly on protecting communities’ intellectual rights. India has witnessed numerous cases of Biopiracy which necessitate more holistic approaches for protecting the community’s rights, TK and bio-genetic resources from such misappropriation. There is the need of necessary steps to protect the TK and bio-diversity by citing instances from various Biopiracy cases.
For a Country like India, which is rich in biodiversity and Traditional Knowledge, prohibition of biopiracy and protection of TK is an issue of prime concern. Since a long time, India has been battling to provide protection for its traditional knowledge and to establish an IP regime capable enough to control the commercial exploitation of TK. This protection aims at preventing the unwanted, culturally offensive and demeaning use. Steps have been taken to ensure Access and Benefit Sharing (ABS) techniques so that the profit from using TK is equitably distributed to the original TK holders. Provisions are being included so that the patent applicants obtain Prior Informed Consent (PIC) of the community to which the knowledge originally belongs. However, while placing TK under the IP regime, there is a constant fear of exposing the TCEs to third parties who might use them against the will of the communities who have legitimate control over them. Further, the attributes of the IP system, such as document intensive techniques and the costs involved in challenging a granted patent, make the system inaccessible to the TK holders. Also, there is a constant tussle between the formal and informal IP regimes. Hence, the option of providing legal IPR on TK in accordance with the existing IPR regime seems rather complex. Even the distribution of TK is too complex and clustered to be protected under the IP regime. The development of sui generis rights, perhaps, is the best option for a developing country like India. To bring about the intended protection, there is a need to develop a national sui-generis legislation. The appreciable initiatives carried out by India, if coupled with the sought legislation, can produce the intended consequences and thus enable the TK holders to claim their rights on their knowledge.
