Introduction

In this study, we will deliberate about indigenous peoples (of India) and their natural conservation practices through the lens of Intellectual Property Rights (IPR). The paper is divided into seven parts. The first, describes in brief, the role indigenous peoples have played in the conservation of natural resources and ecosystem services amidst the crisis. The complexity and misconceptions involved in TK and the difficulties in bringing it under IPR has been dealt with in the second. The third and fourth part unravels the challenges of biopiracy and the successful measures taken by India in protecting TK. The fifth and sixth part discusses the existing laws and proposes a policy that may be adopted by India in formulating the relevant policy and law concerning benefit sharing that could help India to be a leader in the Global South. The seventh part concludes the paper with a prelude to the beneficiaries of this strategic endeavour.

The methodology adopted in this paper incorporates drawing of conclusion using cross-country analysis for solutions to address the challenges brought forth by this complicated position.

The paper is based on primary and secondary sources in this genre of study.

Crisis in India's Natural Resources: The gift of Neo-Colonialism

It is estimated that over 75% of global biological resources are found in the Global South and in traditional or ancestral habitats utilized by Indigenous Peoples and Local Communities (IPLC). See, for example, Oguamanam (2013).Footnote 1 According to a recent study,Footnote 2 it was found that the world has lost over 90% of large fish species.Footnote 3 The primary reason identified behind this was its consistent demand leading to uninterrupted predatory fishing, irrespective of breeding seasons.Footnote 4 Lack of ecological ethics in the realm of the new world order of economic dominance by the Global North has played a significant role in this and similar others.

India has been blessed with fertile grounds, but modern scientific interventions like High Yielding Varieties (HYVs) and Genetically Modified Organisms (GMOs) have resulted in an imbalance in environmental sustainability. Studies have shown the adverse impact of the Green Revolution on the farmers and their farming lands.Footnote 5 Mono-cropping patterns have resulted in increased salinity of soils decreasing its fertility.Footnote 6 Such agricultural practices have attracted exponential use of pesticides by the farmers, and consequentially there has been deterioration. Punjab, which was the nucleus of the Green Revolution, now is a nucleus of agricultural distress. Kisan is the true nation-builders, but due to lopsided agrarian practices, they are being burdened with increasing debts and out-of-pocket expenditures on health, sinking them deeper into the vicious circle of poverty and vulnerability.Footnote 7 There have been thousands of recorded and unrecorded suicide deaths of farmers in India during the last two decades,Footnote 8 especially after introducing and implementing World Trade Organisation (WTO) and Trade Related Aspects of Intellectual Property Rights (TRIPS) in India.Footnote 9“According to the National Crime Record Bureau’s report, in the 20 years from 1996 to 2016, more than 30 lakh (0.3 million) farmers have committed suicide all over India. A good part of this is due to the impact of WTO and Free Trade Agreements (FTAs). Regional Comprehensive Economic Partnership (RCEP) would be yet another monster that would eat our farmers.”Footnote 10 Phase wise reintroduction of indigenous agricultural practices to arrest agrarian distress to both the farmer and the land, is the key for India's progress in the next few decades.Footnote 11 The ecological ethics and ethos are the critical parameters to sustainability inherent in TK, and it is elusive in modern scientific education. Mono-crops needs to be phased out along with GMOs. To give the readers a brief idea of the stark difference between the two sets of agricultural practices, reference to Table 1 is given below.

Table 1 Contrasts between Traditional and modern agricultural practices
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Navdanya,Footnote 12 an Indian based NGO, (like some others, e.g., Vrihi) has actively advocated for the cause of traditional knowledge in agricultural practices.Footnote 13 It believes in the philosophy of living soil, living seed and living earth, which has enabled partnered small farmers with sustainable agricultural practices. Traditional food production systems offer a possible solution for food security and sovereignty.Footnote 14 Mono-crop cultivation has forced the farmers to buy genetically modified seedsFootnote 15 at the cost of innumerable indigenous varieties. This consequently destroyed the TK of production of such varieties as well as their unique ways of conservation.Footnote 16 Odhiambo states that,

Indigenous knowledge can reveal missing ecological keys, which may help scientists develop alternative agricultural technologies less dependent on non-renewable resources (e.g. fossil energy) and environmentally damaging inputs (e.g. chemical pesticides) than conventional technologies.Footnote 17

Deep Rooted Misconceptions Regarding Traditional Knowledge

Recent lifestyle trends (such as increased use of organic products like cosmetics, food etc.) and health care through the AYUSH knowledge systemFootnote 18 indulges the consumers at large, in a fascination towards ancient and traditional knowledge which have been the basis and backbone of human civilization. As more information unearths in this area of environmental and ethical discourse, multiple biopiracy cases have buoyed up and exposed the nexus between TK on the one hand and modern scientific inventions on the other. The hypocrisy involved in bluntly pirating this knowledge, coupled with creating strategies to nomenclate a discovery as an invention without giving due credit (forget benefit sharing) to the people who carried such information for centuries. Parallel to this, by declaring TK as obsolete and superstitious, demystifies the truth behind such claims.Footnote 19 The fact that more than 75% of medicines used by modern science have a natural indigenous origin can no longer be ignored.Footnote 20 More so, the scientists are exploring further on ancient chemicals like aspirin etc.Footnote 21 to make new medicines. Before indulging too much on the relevance of TK, it shall be prudent to identify the significant contrasts between modern and traditional knowledge (Table 2).

Table 2 Contrasts between TK and modern knowledge system
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TKFootnote 22 or indigenous knowledge (often used interchangeably) has been arrogated with various derogatory descriptions like primitive, backward, rural, savage, unscientific, etc.Footnote 23 The reason behind such misadventure is cultural heterogeneity coupled with European perception of superior bloodline which led to devastating torture and murder of millions of Jews in the Second World War and millions more in colonies like India where people died of hunger and famine irrespective of bumper crop production. A notion of absolute superiority has always played a dominant role in both the cases of German annihilation of Jews and modern scientific ideas over indigenous knowledge, especially during the colonial period and beyond in some jurisdictions. It is till recent decades the notion has been challenged in global platforms.Footnote 24 The knowledge that indigenous peoples have inherited and practised since time immemorial have been referred to as superstitious and based on unscientific claims.Footnote 25 Their self-identification with an isolated culture, which is territorial in nature, is intrinsic to their 'way-of-life and with the environment.Footnote 26 But being isolated puts them at a disadvantageous position with little bargaining power when it comes to their right on TK.Footnote 27 Apart from this, TK unlike, modern scientific knowledge, are transmitted through traditional folklores and through imitation amongst certain clans through centuries.Footnote 28 It generally has a spiritual essence which creates a sacred consciousness to it.Footnote 29 It behaves in an integrative and holistic fashion with the view of the world as interrelated. Another interesting, distinctive feature of TK is the emotionalFootnote 30 involvement which has been criticised by many modern scientists as baseless.Footnote 31 In practice, the participation by subjective parameters in certain TK has confused even the advocates of TK as a weakness.Footnote 32 However, the strength of TK lies in the long period of the human and ecological interface. Modern scientific knowledge is based on mathematical and quantitative calculations.Footnote 33 It is desirable that the two systems work in tandem to develop knowledge and education.

Innovations from Traditional Knowledge: Biopiracy

The interface “between TK and innovations in the realms of pharmaceuticals, cosmetics, agriculture, chemicals and environmental conservation, which constitute the core of the ‘biopiracy’ phenomenon, provide pivotal sites in which IP, specifically the patent regime, directly engages TK in contestation over the utilization of Genetic Resources (GRs) across different knowledge frameworks.”Footnote 34 Notwithstanding these examples, “the interfaces between IP and TK/TCEs generally tend to be difficult to pin down. In the patent regime, ‘newness’ or ‘novelty’ of TK,Footnote 35 analogous to an invention, is a consistently problematic issue.”Footnote 36 It is literally impossible to go back to the pages of the past to identify the ancestral inventor or discoverer of a particular clan or tribe, of a specific practice. “In the area of copyrights, fixation and publication, especially of TCEs, are perennial hurdles.”Footnote 37 As the majority of such expressions practice within communities closely knitted and carefully segregated from the outside world, it remains technically unpublished. “In respect of trademarks and designs, claims of sacredness—as a basis of exclusion of specific marks, symbols, insignias, or systems from commercial exploitation—remain a source of tension amongst stakeholders (Coombe 1998).”Footnote 38,Footnote 39 In most of the cases involving such violation, the marks are allegedly pirated and used derogatorily by western countries.Footnote 40

Case Study: Neem

Neem (Azadirachta indica), a very common tree species of India with medicinal value,Footnote 41 has been the subject of numerous patents. (At least 40 in the US alone and 150 worldwide) All the inventions that relate to neem virtually used public domain traditional knowledge as their basis.Footnote 42 This led to a huge uproar amongst the Indian users who refused to accept this and leading to a challenge of two patents (1) “to a European Patent Office (EPO) patent for the fungicidal effects of neem oil (Patent No. 436 257 B1) owned by W. R. Grace & Co., and (2) to the US patent for a storage-stable azadirachtin formulation (Patent No. 5124349) also owned by W. R. Grace.”Footnote 43 In the year 2000, the patent described above was revoked by EPO due to the lack of novelty and invented step.Footnote 44 Patenting Neem, name of every household, had a substantial socio-economic impact. Almost all rural and semi-urban communities are aware of neem as having a plethora of health benefits. Indian heterogeneous communities were equivocal in opposing the patenting of neem by an American company. They feared the tyranny that looms large which the patent holder may unravel once obtained from the IP rights.Footnote 45

Case Study: Rosy Periwinkle

Rosy Periwinkle (case) is another well-known instance where biopiracy was exposed against an American company Eli Lilly, a pharma-giant in Arizona established in 1876.Footnote 46 Rosy Periwinkle is a naturally grown plant found in abundance in Madagascar. (Fig. 1) During the 1950s, the researchers of the company heard about the medicinal value of the plant Rosy Periwinkle and collected samples from India as well as Madagascar. They isolated the samples and tested the two components, vincristine and vinblastine, as unearthed from the indigenous experts of the region. During the process of testing, they identified alkaloids which later became very effective in treating childhood leukaemia with a success rate of over 90 per cent. During the late 1950s, the company started marketing it and especially vincristine earned a substantial profit for Eli Lilly. The natives of Madagascar, who originally identified the medicinal qualities and values involved in Rosy Periwinkle, never got any share of profit gained by Eli Lilly because of the absence of benefit-sharing laws, both internationally and locally.Footnote 47,Footnote 48,Footnote 49

Fig. 1
figure 1

World Map showing the sample of neem taken from India to USA and EPO (Maps of World 2020)

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Laws Protecting Traditional Knowledge

National and regional laws protect TK within a limited space, but the impact of this knowledge system is global. TK, irrespective of its local applicability (generally limited to a clan or at times only within a family in a community), TK across the globe has been found to be based on certain ethical and moral precepts.Footnote 50 This homogenous behaviour of TK renders an impact that is beyond national boundaries. Practices like prohibition to the fishing of certain species during their breeding season could be seen as a standard practice amongst all indigenous fishing communities.Footnote 51 Same could be found in protecting coral reefs by indigenous communities by application of similar techniques in different parts of the world. International customary law has been flouted in almost all jurisdictions, and the impact is quite visible today.Footnote 52 Nearly ninety per cent of large fishes of the world have got extinct in the last six decades.Footnote 53 Therefore, international participation and cooperation to facilitate such laws at both, international and national level is required. Shared policy objectives would ensure protection, expansion and recognition of TK (Fig. 2).

Fig. 2
figure 2

taken from Madagascar and India to Arizona, USA (Maps of World 2020)

World Map showing the sample of Rosy Periwinkle

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Indigenous communities represent the social and unified ethos of our country. The sheer expansive nature of the existing TK has been inadequately represented in the prevailing laws and legislations. Some jurisdiction has succeeded in incorporating protective laws for their fading TK while some others are losing their valuable knowledge at a very fast rate due to non-protective or inadequate measures. However, a sui generis system to promote the TK has been proposed. This development owes greatly to the Nagoya Protocol, where India is a signatory.Footnote 54

The major limitations that are inherent in the Indian legal system are multidimensional. Primarily, the government do not recognize the term indigenous per se, irrespective of using the word aboriginal once, in a document before the international community.Footnote 55 This position of India in the international forum reinstated that tribals survive but not as indigenous communities.Footnote 56 However, this distinction took place at a later stage as India was a party to the ILO Convention of 1957 on Indigenous and Tribal Population. India supported the document at the early stages when it only used the term Indigenous. In several Government publications, the term Adivasis and aboriginal have been used interchangeably. The current rejection of the term indigenous was developed in the context of the Working Group in 1984 and later in 1992.Footnote 57 Secondly, India still follows ILO 107, which has already been replaced by ILO 169. There are innumerable issues to be depicted at this juncture. ILO 107 was discarded and was replaced with ILO 169. Thirdly, there are no positive protection parameters of these peoples towards their land and culture.Footnote 58 As a matter of fact, there are many indigenous communities in India which are not recognized under the purview of Scheduled Tribes, making the process 'more of politics than of law'. In submitting the Universal Periodic Review reports, India has suppressed the atrocities that these peoples have undergone in the hand of non-tribal peoples and the state.Footnote 59 Millions of these peoples have been ousted from their habitat, forcing them to change their way of life and contributed to the loss of traditional knowledge, their ancestral cultural expressions, language and traditional indigenous farming practices amongst others.Footnote 60 In the absence of any uniform legal framework proposed by WIPO (like other IPRs), TK has not been protected positively in India,Footnote 61 unlike that of MalaysiaFootnote 62 or Kenya.Footnote 63

Sui generis Legislation to Combat Biopiracy: Position in India

Sui generis means something unique and exclusive to a specific jurisdiction. Sui generis legislation is passed with specific objectives in mind. To achieve certain protection for TK within the IPR domain, some sui generis legislation came into force to address the issue.

TK and its incorporation in IPR were not simple. To make this happen, two concepts evolved;

  1. i)

    Amending the existing laws of IPR and making necessary changes to accommodate TK and its derivatives, and

  2. ii)

    To make comprehensive legislation to promote and protect TK within IPR.

Many jurisdictions within WTO have made necessary changes in their legal system to accommodate TK within IPR. India accommodated TK both by amending existing IPR statutes and creating new ones. As a matter of practice, the onus for protection of TK/TCEs globally vests upon WIPO of WTOFootnote 64 who are responsible for TRIPS to make a strategic alteration to accommodate TK and TCE. Some of the recent legislation that came up to protect TK in India is “The Biological Diversity Act, 2002”,Footnote 65 the “Protection of Plant Varieties and Farmer's Rights Act, 2001”Footnote 66 and the “Geographical Indications of Goods (Registration and Protection) Act, 1999”.Footnote 67 There has been significant development in various existing IPR legislations in India like the Patent Act, Copyright Act and the Trademark Act (Table 3).

Table 3 Indicating the various legislations pertaining to the protection of TK in existing IPR legislations
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Sui generis systems per se have played the most significant role so far in protecting TK and TCEs in almost all jurisdictions. However, the actual organization that was required to be made to provide worldwide protection of TK and TCEs is that of WIPO. After the formation of WTO and the establishment of WIPO, all intellectual properties along with its derivatives have been regulated by WIPO. The absence of a specific law with regard to TK & TCEs (from WIPO) has been felt largely by countries across continents rich in tradition and culture. WIPO of late has shown interest to investigate newer avenues in framing a unified regulation to regulate TK/TCE as it has done with other IPRs.Footnote 68 Initially, WIPO worked upon various complex and puzzling positions, but no scientific conclusion could be made in this regard.Footnote 69,Footnote 70

Paris, as well as the Berne Convention, highlights the axiomatic principle that IP rights are typically territorial. “The extraterritorial application of this public domain would also attract the same rules that relate to the extraterritorial application of IP and similar other laws.”Footnote 71

Sui generis Strategies Developed in India to Protect TK

India witnessed significant activism to protect traditional expertise from being patented in Europe and America. The basmati and neem controversy created enormous pressureFootnote 72 leading to some simple yet significant sui generis protection of TK.

Traditional Knowledge Digital Library (TKDL)

With biopiracy being rampant and the cost of fighting litigation to combat such white-collar pirates running into millions of dollars, a strategy was developed by the Government of India (GOI), which took around eight years to materialize and be effective. Traditional Knowledge Digital Library or TKDL was established with the objective of incorporating a list of codified TK practices of India. This dynamic list includes more than thirty thousand medicinal formulations and is made available online to provide relevant information to patent and trademark examiners in offices of respective jurisdictions, refraining from a grant. The data is made available in five UN languages, viz., French, German, English, Spanish and Japanese for convenience irrespective of the fact that data originated in languages like Sanskrit, Urdu, Persian and Hindi.

After this development, there has been a significant decline in biopiracy cases and frivolous filing of patent applications related to Indian Systems of Medicines (ISM). Amidst this positive development abroad, a significant loophole was detected. It was found that the Indian Patent Office has granted innumerable patents on ISM, turning a blind eye on TKDL.Footnote 73 After a review of such cases dating back to 2005, it revoked patents granted, violating TK. Later an agreement was signed by TKDL with IPO on similar lines of EPO and Patent offices of UK, USA, Canada, Germany, Australia etc. Consequently, there has also been a significant economic impact that was felt in the local pharma industry in India.

This popularity of TKDL, along with its success, prompted changes by WIPO. The International Patent Classification (IPC) of WIPO adopted the Traditional Knowledge Resource Classification System (TKRC), a novel classification system of TKDL. “The International Patent Classification (IPC), established by the Strasbourg Agreement 1971, provides for a hierarchical structure of independent language symbols for the classification of patents and utility models according to the different areas of technologyFootnote 74 to which they pertain. A new version of the IPC enters into force each year on January 1.”Footnote 75 Another significant success was the identification of 1155 biopiracy claims at various IPOs by the TKDL Team.Footnote 76 Consequently, a lot of them were legally restrained from similar malpractice. Thus, TKDL has turned out to be a very successful defensive mechanism to stop biopiracy, as they carry on their effort to improve the database of 150 books inter alia, on areas like Yoga, Unani, Siddha and Ayurveda.

India's successful attempt at collaborating with TKDL inspired various countries to protect their own TK (see Table 4). To quote Piaroa Elder, an indigenous community of Venezuela, “When a seed is removed from its environment, it dies halfway to its destination, and the same thing could happen to indigenous knowledge”.Footnote 77

Table 4 Protection of TK by various countries (selected)
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National Innovation Foundation (NIF)

Alongside TKDL, NIF is another pioneering contribution from India to protect and promote TK.Footnote 78,Footnote 79 The main objective of NIF is to encourage and assist in the protection of TK. It is a team of experts which engages in facilitating the knowledge holders to protect their innovations in accordance with the existing IPR regime. They provide, inter alia, substantial support in conducting prior art searches, filing of patents to the people who are mostly unaware of legal intricacies that their TK may possess along with their miraculous knowledge.

The Department of Science and Technology, GOI, established NIF in the year 2000 for preventing biopiracy on the one hand and IPR protection of TK and Ancestral Knowledge on the other. This ensures, consequently, retainment of the rich knowledge the land is famous for.

Credit must be given to the relentless effort that was put into by the eminent Professor Anil Gupta of IIM, AMD and his team to formulate the Honey Comb Network, which started its journey during the 1980s. In 1993, a discussion network called Society for Research and Initiatives for Sustainable Technologies and Institutions (SRISTI) was framed to assist unearthing TKs from various parts of India.Footnote 80

The following table (Table 5) identifies the significant functions of NIF, which facilitates TK.

Table 5 Functions of NIF with appropriate initiatives (selective)
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NIF has also helped substantially in the last two decades from its establishment, protecting TK. The following list (Table. 6) is a few remarkable achievements of NIF worth cherishing.

Table 6 Few remarkable achievements of NIF with proper nomenclature
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Proposed Protection Parameters

Traditional knowledge and traditional cultural expressions are integrally related and inherent to the way of life of indigenous and tribal peoples. The doctrine of discoveryFootnote 81 coupled with coercion and deceptionFootnote 82 caused irretrievable loss and suffering to the indigenous and tribal communities across continents. Similar instances were recorded in the US where tribes were dispossessed of their cultural, historical and religious resources giving the United States “ ‘the exclusive right…to extinguish’ Indian title…whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.”Footnote 83 India is also not an exception where the Europeans coerced the tribal communities to participate in the Christian mode of worship, as they did in the US.Footnote 84

This divestiture of tribal land by the government implied complete loss of control over sacred sites once possessed by the tribal and indigenous communities. Unfortunately, the government has never been respectful of these sacred places. Culturally Modified Trees (CMTs) of the indigenous people of the United States and Canada are also threatened with the loss of possession. These CMTs are living Native American cultural artefacts which were used for navigational, medicinal, storytelling, burial and ceremonial purposes. Ute community is widely known for making a clock, calendar or even a compass through CMTs. In one case, they have combined two trees with a single slit in between and the only time sunlight passed through this slit was on the winter solstice. Instances of traditional knowledge pieces have been found in India as well, where few monuments use similar technology of using sunlight inter alia for determining time. Gavi Gangadhareshwara temple in Bengaluru, India, is a rock-cut architecture where the sun-rays fall on the shrine only on a specific day of the year.Footnote 85

Irrespective of the difficulty in finding the intercepting point of the knowledge systems of the various native peoples of the United States or Canada, or India, it is not very difficult to anticipate the commonality and richness of the two. One of the living examples of CMT is the living roots in Meghalaya, which demonstrates the uniqueness of India's traditional knowledge systems. Khasi community of this state twisted around the aerated roots to form them into a bridge.Footnote 86 These structures/trees hold sacred value to the community, which highlight their ingenuity and uniqueness.Footnote 87

This loss of ethnicity and cultural rights has significantly damaged indigenous and tribal peoples' rights. Cultural practices play an ideal role to make life meaningful, useful and valuable. Indigenous cultural life enshrines intangible aspects like sanctity, sacredness with tangible things attached to them. Abuse of such elements infringes community sensitivity which acts as an impediment to the universality of cultural rights.

Consequently, assimilation at a staggering pace with a significant compromise on moral and cultural ethos followed. On certain critical junctions, ethical and legal conflicts ensued, which were eliminated with the rod of office. Cultural symbols, patterns or marks created once used for religious and sacred practices were used otherwise (e.g., commercial use or using derogatory to the purpose of such symbol or mark). Culturally modified trees, like other cultural symbols of a community, also suffered a similar fate.

The Ray of Hope

At the end of the Second World War, decolonisation and protection of human rights evolved to be the two major forces to control the state of affairs.Footnote 88 Cultural rights emerged to be an integral part of human rights which promotes the right to follow any cultural practices on the one hand and refraining from harming others on the other. It is essential to contrast universality and homogeneity. Culture is the synthesis of the productivity of any society which is threatened by cultural relativism. History unravels forced attempts of assimilation, a practice contrary to the universality of human rights, in general, and cultural rights, in particular.Footnote 89 Emphasis is required to be given to protect one's culture and cultural choices. Any use of others' cultural practice, which may have an impact, should only be permitted through free, prior and informed consent. Respect for cultural diversity under international standards is also a critical part of respecting human rights. Plural mono-culturism,Footnote 90 which promotes respecting everyone's right, must be acknowledged.

Community sensitivity is an integral part of the universality of cultural rights.Footnote 91 Cultural sensitivity within the penumbra of community sensitivity includes an openness to know and acknowledge the diversity of cultural practices.Footnote 92 Various measures have been taken to create awareness programs, mandatory workplace ethics training, amongst others.Footnote 93

The people who are behind the preservation and procurement of such knowledge should be acknowledged and rewarded. As a matter of fact, they are even bereft of any benefit for what they or their ancestors have done at the enrichment of a selected few. This deprivation, coupled with non-recognition of their knowledge (generally termed as superstition) and their right over such property, has led to the extinction of TK & TCEs from the planet.Footnote 94 The concept of community ownership that exists among the indigenous and tribal communities is quite different from the western notion of ownership.Footnote 95 However, a better understanding may be achieved between the two when it comes to its management, knowledge practice, communicating values and the values we hold in general through engaging with one another with the objective of creating a safe and sustainable world.Footnote 96

In order to explore the ways and methods to identify indigenous communities, it is imperative to explore the conventional method of compensation for past exploitation, which some countries have invoked to restorative justice and the other method being access and benefit-sharing.Footnote 97 The latter has been far and few amongst jurisdictions, with the former predominating with affirmative action.

Significant development has taken place to protect the cultural rights of distinct communities. Still, violation seems to be never-ending, with regular cases of misappropriation being done inter alia, by leading fashion brands.

Case Study—Kente Cloth

Africa has housed some of the oldest people that the modern world is aware of. Their life and culture have survived thousands of years amidst challenges. Their cultural expression has played a significant role in the formation of what they are today. Amongst the various groups prevalent in this area, the Ewe and Ashanti of Togo and Ghana use certain clothes with specific geometric pattern and colour in West Africa. The said patterns, which is meant to be (in the dress) of the kings of the said community, were found to be worn by a growing number of African Americans in ceremonies like university convocations in the USA. Later it was found to be worn in a more casual context. This was contradictory to the permissible use of the said culture.

More and more blacks are dressing in whole or in part in African garb as an expression of their identity and racial solidarity or their adherence to the ideology of Afro centricity.Footnote 98

A stark distinction can be noticed in a series of cases where the appropriation has been done by fashion brands, unlike that of independent individuals, as in the case of Kente Cloth designs discussed above. Misappropriation of an Inuit Parka design by KTZ, a UK fashion brand; Mola Pattern originating in Guna Culture of Panama attributed as Puerto Rican Culture by sports brand Nike in its “Air Force 1 Puerto Rico” model of the shoe; Louis Vuitton’s Basotho blanket from traditional native designs of the people of Lesotho, to name a few.

The absence of an internationally recognised regulatory framework has badly been felt, with the rise in such cases reflecting the vacuum and the inability to protect culturally rich communities' intellectual property by existing IPRs. This emerging danger of the loss of biodiversity coupled with various facets of distinctive cultural identity cannot be avoided.

Losing cultural heritage can be mitigated with positive efforts to restore such tangible or intangible articles or artefacts. This can be made possible with strategic research coupled with the intervention of the elderly people of the community. Various culturally extinct objects can be reconstructed with museum employees' assistance having experience and expertise and activists involved in protecting traditional culture. Compensation or benefits received may also be used for the said purpose. It would also be prudent to invest in documenting the indigenous languages as well. Protecting indigenous language can be the key to the reconstruction and rehabilitation of lost TK and TCEs. Efforts are required to protect the language of various indigenous communities from extinction for sustaining these communities' cultural heritage. Loss of language contributes significantly to the loss of TK & TCEs. More and more young peoples of the clan are required to learn them from their elderly members. The majority of traditional practices have moved on from generations only through folklore and seldom by documentation. With many modern-day indigenous members living far away from their ancestral lands and their family members in such territories, it has become challenging for the art forms to be secured and safe for transmission. Information technology can certainly help in this endeavour, if used judiciously.Footnote 99

One of the recent developments to bring equality amongst the stakeholder and certainty in the law of benefit-sharing concerning TK and TCEs, the tiered or differentiated concept, has emerged, which was articulated in the Draft IGC documents (in Article 3 prepared for the 27th Session of WIPO, 2014b; 2014c). This unique approach intends to structure a framework to delineate the various kinds of TK and TCEs, primarily based on their degrees of diffusion (Refer to Fig. 3). This, consequently, tries to identify the extent of exclusive rights that the custodians of such TK and TCEs would be entitled to receive. On the basis of this parameter, the exclusive right may lead to conferring licence on clans or communities to explore such TK. Irrespective of the fact that this approach is not collectively accepted amongst the IGC members. The major challenges being the lack of uniformity amongst the indigenous leaders, scientific clarity of the facts beyond certain period time in the past, reinstate retrospective position prior to the colonial era and impact assessment of knowledge piracy thereof. “The ‘tiered and differentiated’ approach has been received with mixed feelings, including scepticism and trepidation, especially in the rank of demandeur countries and even the Indigenous Caucus.”Footnote 100 It is none the less a fluid concept, and it is crystallizing around the following categories: (See Fig. 3).

Fig. 3
figure 3

The four-element of the tiered or diffused concept (Ibid.)

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Secrecy and sacredness are associated with strong or exclusive rights, whereas weaker forms of rights are attached to narrowly diffused and widely diffused Traditional Knowledge and Traditional Cultural Expressions (TCEs) since they are available in the public domain.Footnote 101

The benefit-sharing mechanism in place in India is based on traceability of origin. The benefit is shared where the tribal community can be traced. Some of the immediate benefits that India may enjoy by implementing this model are as follows:

  1. 1.

    A specific positive mechanism would be adopted for the first time in India to act as a standard for subsequent issues,

  2. 2.

    Uniformity in accessing benefit sharing amongst the stakeholders,

  3. 3.

    The element of clarity would be introduced effectively,

  4. 4.

    As identified in this article, India has shown the way to protect TK indirectly by adopting a sui generis system of TKDL. Similarly, it can introduce this system in this part of the world which may act as a model to be adapted and acted upon in similar circumstances.

  5. 5.

    This would also avoid a multiplicity of benefit-sharing laws and regulations.

  6. 6.

    This would also enable the indigenous peoples to exercise their rights over their culture, communities and ancestral practices, which upholds the promises under-taken to achieve in the UNSDGs.

The primary objective of the classification mentioned above is to differentiate the weaker forms of rights for the widely available TK and TCEs. This, consequently, would attach an exclusive right (strong right) to the indigenous community, which has kept it secret and outside the public domain. Generally, the indigenous elderly refrain from disclosing TK. Once assured of protection, voluntary documentation of such practices and knowledge be expected. This incentive would encourage the younger members of the community to carry on with their ancestral knowledge as their forefathers. In other words, weaker forms of rights may be attached to widely diffused or publicly available TK and TCEs.Footnote 102 By incorporating this process, access and benefit-sharing aspects could be assessed and be acted accordingly. Once the policy is incorporated, the mechanism would assure stratified benefit sharing amongst the stakeholders. The method has been discussed and accepted to some extent in the Global North but has not been done in the Global South. Countries like Canada and Australia have, to some extent, invoked this method of benefit sharing and have got success.Footnote 103 India, by adhering to this policy, would position itself to be the trendsetter and a leader in this part of the globe. It is imperative to state that the limited TK and TCEs still left amongst the people, mostly the elderly, requires urgent protection and documentation. The young must be assured of the economic viability of their ancestral knowledge. Special measures should be taken to promote these TK and TCEs and retrospectively protect the rights of these peoples with a robust legal framework to implement benefit sharing, adhering to the principles laid down in the Nagoya Protocol, where India has been a signatory.

To address the complicated issue of bringing TK within the purview of IPR on the one hand and protecting and preserving TK and creating an adequate benefit-sharing mechanism for the indigenous communities on the other would be the key. Given the unique nature of TK, this could be done in two ways:

  1. 1.

    By a law framed by WIPO, or

  2. 2.

    By sui generis legislation in India, as has been in some jurisdictions

The Beneficiaries

Application of laws systematically would not only help to preserve the rich TK & TCEs of the world but would be able to benefit approximately four hundred and seventy-six million Indigenous Peoples worldwide,Footnote 104 in over ninety countries which makes up over 6 per cent of the global population, and would be able to contribute to alleviating about fifteen per cent of the extreme poor.Footnote 105 The establishment of their rights would also act as an assurance for the continuance of traditional practices associated with that land which is a major untapped source of sustainable agriculture. What could follow is ubi jus ibi remedium, where the question of justice for forest-dwelling communities which have faced the brunt at the cost of 'development' could also be achieved. A systematic re-transfer of land to the displaced indigenous communities with the reintroduction of indigenous species would also help in sustainable development. International practices of community ownership should also be ensured in line with ILO 169 and directions laid down in Samatha v. State of Andhra Pradesh.Footnote 106 The growing movement of these peoples in the modern world has got its momentum from the judiciary itself. For instance, in the famous Australian case of QueenslandFootnote 107 the Australian Supreme Court rightfully restored the entire land area back to the aboriginal peoples of Australia. The Indian counterpart to this, SamathaFootnote 108 where the Hon’ble Supreme Court of India acknowledges the right to land and natural resources of the tribal peoples in India.Footnote 109

Conclusion

It is imperative to state that the limited TK and TCEs still left amongst the people, mostly the elderly requires urgent protection and documentation. The young must be assured of the economic viability of their ancestral knowledge. Special measures should be taken to promote these TK and TCEs and retrospectively protect the rights of these peoples with a robust legal framework to implement benefit sharing. Millions of people within the indigenous and tribal communities across the world are facing survival-related challenges, where the adult-youth populace have been geographically displaced, away from their homeland in search of survival and social inclusion. Only those, who are old and not otherwise able to move or work, remain in their village. They take care of the children whose parents have migrated in search of their daily wages. Poverty, discouragement and indifference are social prejudices that label their daily lives. ‘Footnote 110’ Why should this be permitted?Footnote 111 The indigenous communities, however, do not accept the labels that blemish their origin and traditional consciousness. Some recurring questions need to be addressed by the people in authority and decision-makers.Footnote 112 Is it too late today to reinstate the affairs? Would it be possible in India to protect the cultural, social and economic rights of these dying communities? Could India create opportunities for the young adults who immigrate for better lives?Footnote 113 Or would we indulge in cheap politics at the cost of our rich cultural and social heritage? Would we remain silent with the steady loss of diversity, forests and TK & TCEs? Or would we not reclaim our lost glory and help the vulnerable from their extinction. Would we not fight for their cause and help them to be compensated like their Australian and Canadian brothers and sisters? Why the modern legal minds not set up a strategy to combat the evils of policymakers and reinstate the right to life of millions of Indian indigenous peoples.

The significant limitations that are inherent in the Indian legal system are multidimensional. Primarily, the government do not recognize the term indigenous per se irrespective of them once using the word aboriginal in a document before the international community. Secondly, India still follows ILO 107, which has already been replaced by ILO 169. If Nepal can ratify ILO 169, why should India not do so to protect the rights of indigenous and tribal peoples in her jurisdiction? Thirdly, there is no positive protection parameters of these peoples possess towards their land and culture. As a matter of fact, there are many indigenous communities in India that are not recognized under the purview of Scheduled Tribes, making the process 'more of politics than of law'. In submitting the Universal Periodic Review reports, India has suppressed the atrocities these peoples have undergone in the hand of the state and non-tribal peoples. Millions of these peoples have been ousted from their habitat, forcing them to change their profession and contributed to the loss of traditional knowledge, their ancestral cultural expressions, their languages and traditional indigenous farming practices, amongst others. In the absence of any uniform legal framework proposed by WIPO, unlike other IPRs, TK has not been protected positively in India, unlike that of Malaysia or Kenya. In the said backdrop, efforts must be made at the international level to push WIPO to take this area of discourse more positively. In the meantime, India must take all reasonable measures to protect the TK that the country still possesses or may retain with corrective actions and decisions today. Thus sui generis efforts and legislations would be the key to provide adequate benefit to the people who have protected and carried on with these rich traditional practices. The tried and diffused concept of benefit sharing can be the best step forward in India to assist in these communities the right impetus to retain our lost art. This would also assist the country in fulfilling the promise and commitment made towards the UNSDGs.

Within the edifice of cultural diversity, a new global ethic needs to be incorporated, as has been reiterated by UNESCO, which would include human rights perspectives, where there should be a proper retrospection of the alternatives available amidst the atmosphere of tolerance mutual respect and democratic debate.Footnote 114 In consequence, we would be able to achieve, in building the tower of Babel, where humanity, per se, would reign supreme.