Can India draw red lines to protect traditional health knowledge systems from bio piracy?

In fighting off attempts to patents on neem, basmati and turmeric, India has had some experience in safeguarding its traditional knowledge systems against patent authorities in western countries and pharmaceutical corporations. Now, as the World Intellectual Property Organisation prepares to draft an international document on traditional health systems, India has an opportunity to draw firm boundaries to protect indigenous health knowledge.

There has been an increasing demand for traditional health knowledge in high-income countries and sections within low-and-middle-income countries, not the least because of its significance in the prevention and treatment of chronic diseases. On the one hand, this growing demand has spurred a boom in the products of traditional medicine, while on the other, the pharmaceutical industry’s aggressive bio-prospecting aims at milking knowledge repositories in developing countries, to rake in profits from mass production of new allopathic medicines.

In a time of expanding patent regimes in medicine, the rights of ownership and innovation using traditional health knowledge and its raw materials are therefore strongly contested. Traditional health knowledge is also being viewed as a potential resource for development of healthcare within a framework oriented to sustainable development.

India’s major role

India is home both for formal codified traditional systems like Ayurveda, Homeopathy, Unani, Siddha and Sowa Rigpa and semi-codified, often oral, traditions of folk medicine and home remedies. Their continuing use provides for easier access to preventive care and curative interventions for a range of acute and chronic conditions to populations in both urban and rural areas. The diversity of traditional health knowledge resources enables choice at the local level, accessibility and more affordable options. This could also be potentially valuable for achieving "primary healthcare for all", a major goal laid out by the World Health Organisation and the Indian government.

Given the different approaches to traditional health knowledge, it has come to be an area rife with contestations and long-drawn international negotiations about intellectual property. WIPO’s inter-governmental committee on genetic resources, traditional knowledge and folklore is scheduled to hold its 31st session in the last week of September. Its deliberations will have long-lasting implications for the survival of diversity and for context-specificity in healthcare. The session’s agenda is to undertake negotiations on a draft international legal instrument governing issues of ownership and rights to use traditional health knowledge for further research and commercial benefit.

The WIPO draft document makes proposals on the roles of beneficiaries and users of traditional health knowledge in the context of intellectual property rights. The contestations to the proposals are recorded in brackets and as alternative statements. In this form, the document is a stark reflection of the two ends of this debate. Traditional health knowledge holders, called “beneficiaries” in the document, emphasize the need to protect communities that have generated, used, conserved and innovated on such knowledge over generations. Pharmaceutical companies and incumbents of research and development wings, designated as “users” in the draft, approach the issue from the angle of commercial gain.

The contestants 

This divide is one between the low- and middle-income countries rich in bio-diversity and the high-income countries where the pharmaceutical companies are located. Countries like the USA, Japan and Canada are negotiating in favour of the pharmaceutical industry engaging in bio prospecting. India, Indonesia, Thailand and Bolivia among others have been arguing to protect genetic resources and the rights of traditional health knowledge holders. India needs to negotiate from a position of strength that comes from being the holders of knowledge and natural resources and not as recipients of “transfer of technology”.

The key questions up for debate are:

• What is to be protected and for how long should the protections be applicable?
• Will the origin of knowledge be acknowledged by the “innovator-users”, and if so how?
• What extent and form of benefits should be shared with the original holders when traditional health knowledge is commercially exploited?
• What are the ethical and legal requirements governing the user-innovators’ access to traditional health knowledge?
• What are the sanctions or punishments for violations? 

But there are still critical gaps in the current debate. For instance, once a local traditional practice is scaled-up to mass production the original plant resource faces extinction. The original traditional health knowledge holders, small-scale practitioner-manufacturers and local populations benefiting from the knowledge lose access to the raw material and then whole system soon dies out. Traditional health knowledge holders include poor communities practicing folk medicine and households across all sections that are then forced to depend increasingly on unaffordable and distant medical services.

WIPO, as a United Nations agency, views nation states as mediating actors, respecting their sovereignty while expecting them to defend the right of their communities and enforce protective mechanisms when commercial use is made of traditional health knowledge by others. The Government of India is therefore mandated to evolve its own approach and to negotiate for it in WIPO discussions.

Can India stand strong?

It is heartening that as of now the senior officials at the Ministry of AYUSH are keen to open these issues to public debate and to searching for out-of-the-box strategies to protect India’s interests. How we resolve these issues at the state, national and international levels; what space is allowed to traditional health knowledge holders who are constantly innovating in their changing context; how these mechanisms promote the principles and worldview of traditional health knowledge and not merely its products, will decide how this knowledge meets its potential to create a sustainable world. What we need to remember is that India is in this position of strength internationally because of those we have so far relegated to the margins, and so, protecting their rights is the critical issue. This certainly warrants India taking a hawkish position at the WIPO negotiations.

Ritu Priya is a professor and Chris Mary Kurian is a research scholar at the Centre of Social Medicine and Community Health, Jawaharlal Nehru University, New Delhi.