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, 2002:241-286). 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 and

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.

140

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

Bangladesh

System in India and

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 10-30 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

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

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

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

the market with their hybrid seeds. Large scale use of hybrids began in 1996. 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 2006.

'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

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

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.

4.2.2 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

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.

4.2.3 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

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

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

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 Committees23 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).

00

-- 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

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

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

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

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

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

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

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