Rewarding Traditional Knowledge and Contemporary Grassroots Creativity:

:The Role of Intellectual Property Protection

1. Communication Digital Analogue

system

2. Pooling of Very low Very high

resources

3. Reliance on Low Very high

common

properties

4. Settling of Very short Long term

books of term

account

5. The proportion of

women headed or Very low Very high

managed

households

6. Women‘s Very low Very high

participation

rates

7. Reciprocities Specific Generalized

Source: Gupta, 1992, 1995

One particular dimension of this contrast between nature-dependent communities and market-dependent communities is like comparing analogue and digital systems. Analogic communication implies metaphorical communication. While digital implies very precise ways of communication suggesting what it is and what it is not. The redundancies are low in the latter while high in the former. Many local experts have a symbolic language through which they communicate their understanding of a problem. Many scientists and policymakers do not appreciate this basis of communications and jump to the conclusion that such expertise involves more ‘mumbo jumbo’ than actual skills. In some cases, this might be so, but to generalize this over entire bodies of traditional knowledge in contemporary institution contexts is quite inadequate. The persistent neglect of traditional ecological and technological knowledge as well as contemporary creativity of local communities and individuals needs to be avoided. Bridges built between knowledge that has evolved through generations of interaction between humans and nature on the one hand and the western scientific scholarship evolved over few centuries on the other only will enrich both. The fair trial of contemporary creativity by formal scientists will enlarge the repertoire of those institution builders who want farmers and fisherfolks to have low-cost, nature-friendly technologies, coupled with institutional structures restraining greed and maintaining respect for the rights of the unknown and unknowable (that is, perfect strangers like the future generations of a community). Many times the motivations for even a contemporary innovation are not entirely utilitarian from human point of view though the invention may be extremely useful for human beings. Amrutbhai Agravat, a farmer-artisan of village Pikhor, District Junagadh, Gujarat innovated a tilting bullock cart (see figure No..) in which the burden on the bullocks was reduced considerably because of the four wheels instead of conventional two wheel cart. The advantage of tilting mechanism was that one could pour the manure directly into furrows instead of putting it in one place. And then distribute the manure manually through baskets. Here the concern for the wellbeing of the bullocks may not be captured in the incentives for the cart per se and yet, this concern has been an important driver of the invention.

Communities and individuals who have long conserved biodiversity have not done so entirely on the basis of utilitarian logic. The efficiency of ethics may sometimes be tempered by the inefficiency of technology which local communities use. That is, while the local communities may not like natural resources to be exploited beyond their sustainable limits, they may use non-sustainable and inefficient technologies. Use of such technologies in the wake of unfair competition with well equipped market forces may lead them, for example, to use unsustainable technologies for catching fish, such as fishing by the use of dynamite. Extractive uses of biodiversity could be sometimes less conducive to the long-term conservation of a species, even though the norms and values guiding the extraction may be very noble. This happens when poachers combined with impoverished local communities may bring a species to near extinction even though local extraction by the communities may be much less than that by outsiders. Once ethical values, cultural norms and belief systems become weak, the inefficiencies of extraction methods may start generating negative feedback effects. That is, the restraint for extracting diverse resources within their sustainable limits becomes weaker. The important point to note is that improvement in technical methods may not necessarily lead to evolution or restoration of ethical norms. The challenge thus is to devise incentives that fulfill four conditions of sustainability: (1) access to biodiversity for local communities, so as to ensure their sustainable livelihood systems, should take priority over access for outside institutions or individuals; (2) assurance to individual healers or other local experts, communities, and other stake holders of sustained access to the resources and viable collective responsibility for using biodiversity; (3) blending traditional skills/abilities to convert biodiversity resources into investments with or without value addition; and (4) conservation of cultural lifestyles and value systems in such a manner that basic needs are met without impairing the life support systems of local communities.

Unless arrangements are made for sharing value added knowledge and benefits from value added gains (made possible by converting local knowledge into economically profitable investments or enterprises) the collectors have no ethical right to collect more of such knowledge. A second requirement should be that research results and lessons learned in the process of value addition should be shared with the knowledge providers in the local languages and in an easily understandable manner. Codes of conduct for genebank managers, researchers, funding agencies, and other development managers should provide for such sharing in an unequivocal manner. Local communities have already paid a heavy price because the designers of dams, hydropower projects, waterways, commercial prospectors of biological resources, and landfill programs that have damaged wetlands have ignored their knowledge and institutions. These communities must not be dispossessed of the only resource left with them; i.e., their knowledge.

The Honey Bee Database (1990-1999) was established ten years ago to scout, develop, sustain, disseminate and reward grassroots innovators and experts in traditional ecological, technological, educational and institutional knowledge which was developed by local communities and individuals without any outside help. This database can be accessed by innovators and others who aim to empower them by adding value to their innovations and by sharing benefits with the knowledge providers and innovators in a fair and equitable manner. Members of the Society for Research into Sustainable Technologies and Institutions (SRISTI) and the Honey Bee Network have been involved in the documentation, experimentation, and dissemination of indigenous knowledge, innovations and practices in the agricultural and animal husbandry sectors for 16 years, working closely with farmers, and using a variety of methods to document about 7,500 innovations and practices from 3200 villages in Gujarat (SRISTI, 1996) and in other parts of India. In addition, innovations have been documented from local communities in many countries in Africa, Asia and Latin America. Through the Honey Bee Newsletter, grassroots innovations have been disseminated to more than 75 countries. This has produced probably the world’s largest database on grassroots innovations having now about ten thousand innovations an doutstanding examples of traditional knowledge, with names and addresses of the innovators (individuals or communities) and communicators in most cases.

For example, this database has seventy one entries on the traditional use of fish and fish products, wastewater etc., for curing animal diseases, improving crop productivity (grape vines are supposed to particularly benefit from fish compost) etc. Such local knowledge about aquatic diversity and its uses has not been adequately appreciated and there is a strong case for launching a global drive to strengthen efforts in this direction.

Biodiversity cannot be conserved by keeping people poor even if, historically biodiversity survived largely under such conditions (Gupta, 1990). Our studies (Gupta, 1989, 1991, 1997) have shown that many communities which conserve diversity have remained poor because of their superior ethical values. This happens when many healers refuse to demand or accept any compensation or payment for their services provided to individuals within and outside their community. Further, when they decide not to pluck more plants than are necessary for immediate use they forego an opportunity of accumulating wealth by processing the herbal diversity in larger quantities and selling or dispensing it to others for consideration. There are others at the same time (including local people as well as large corporations - national as well as international) who have no hesitation in extracting biodiversity without taking care of regenerating the same. One of the challenges is to modify ethical positions that threaten biodiversity and, at the same time, to ensure improvements in livelihood prospects for indigenous peoples, through the implementation of the CBD and relevant IP conventions. These communities will then continue to conserve biodiversity along with their associated ethical and cultural values.

The rate of erosion of local knowledge about biodiversity has never been so high as it is in the current generation in areas which did not go through large scale annihilation of local tribal communities as happened in many Latin American and African countries through the influx of missionaries. There are several factors which explain this: the changing family structure from extended to nuclear families, consequently weakening links between the grandparent generation (which holds much of this knowledge) and the grand children generation (the parents’ generation is alienated from these knowledge systems already, due to the heavy influence of modernity), lesser esteem for this knowledge in primary school curricula, the transition from oral to written culture, and the inability or unwillingness of many older healers and herbalists to share their knowledge or agree to its transcription, or to transcribe it themselves. This unwillingness arises in many cases because outsiders (such as ethnobiologists) have extracted the local knowledge, commercialized it or published it without any attribution, reciprocity, or benefit sharing and thus have offended local communities. Knowledge erosion is a threat as serious as resource erosion itself. The reasons are obvious. If there is no knowledge about given resources, plants become weeds. It becomes not only difficult to locate what is useful or known, but also the incentives for conserving what is not known is much reduced. In ecological economic terms, the option values decline if the probability of finding something useful in the current generation is lower because of the loss of knowledge about the resources. Conserving biodiversity without conserving associated knowledge systems is thus like building and maintaining a library without a catalog. It is true that users of such a library might in fact develop a catalog over a long period of time but meanwhile the users would suffer. By analogy, biodiversity users, who are without a knowledge base, will not benefit from centuries of experimentation and knowledge accumulation by local communities and indigenous peoples. It is true that formal scientific knowledge of plants and animals is diverse and rich. However, the bases upon which different communities have classified and organized their knowledge as well as practices are similarly complex and dynamic.

There are three crucial assumptions underlying this perspective. First, not all knowledge, innovations and practices prevalent in a community are communal in nature. There are individuals who have great expertise in various aspects of local knowledge that is not known at all or known only partly to the local community. Second, not all the knowledge in use by a community is traditional in nature. There are many examples of contemporary innovations by local communities, developed collectively or individually. Third, local knowledge can be conserved perhaps in a more sustainable and dynamic manner if the associated cultural values and ethical institutions contributing to conservation of biodiversity are also conserved and/or strengthened. Sustainable and dynamic conservation would mean conservation in a manner that the knowledge grows through constant experimentation and innovation rather than just being maintained as a fossilized form of historical knowledge, produced at one point in time and carried forward by succeeding generations. The implications are obvious. Incentives for the conservation and sustainable use of biodiversity will have to be sufficiently flexible and diverse so as to provide for the growth and development of the traditional as well as the contemporary knowledge that is held by individuals as well as groups. The same or similar incentive structures or philosophical assumptions cannot provide adequate motivation to conserve what exists and restore what is lacking. Devising appropriate incentives is challenging because many local communities lack access to resources for some basic needs and are impoverished. Factors that have contributed to this linkage between high biodiversity and poverty are discussed by Gupta (1989, 1991a, 1993). SRISTI (1993) has noted the following factors (see also Gupta, 1990, 1992). These factors include:

(a) Biodiversity is high in rain forests, mountains, some arid and semi arid areas, humid areas, primarily due to diversity in soil, climate and other physical and social structures.

(b) Poverty is high because markets are often unable to generate demand for diverse colors, tastes, shapes and qualities of natural products. Products of mass consumption particularly when processed by machines, have low variability because throughput by machines has to be of uniform quality and maturity level (for instance for processing tomatoes to make ketchup, local varieties will not be suitable because these are not synchronous in maturity, have uneven ripening status and thus, taste, color and flavour can not be standardized). The cost of inventory, transportation, display in shelves of large varieties of, for example, tomatos is obviously quite high compared to that of only one variety. Consumers who do not demand larger varieties either because they have not been exposed to the same or are unwilling to pay the extra costs also contribute to lower demand of biodiverse products.

(c) The regions of high diversity also have very poor public infrastructure (in tandem with weak private market forces), because the people have limited surplus to attract public servants and they are less articulate and organized to create political pressure (except through insurgent movements as is becoming evident in different parts of the world).

(d) The low demand for the ecological and technological skills of these communities characterizes them as ‘unskilled’ labor, fit for being a part of the urban slums, squatters, or other similar work force. Once the knowledge system is devalued, cultural and social decline follows. The tenuous relationship with nature is ruptured. Ecological degradation spurred by various external resource extractors is aided and abetted by many poor as well as not so poor people for whom survival in the short term seems possible only through eco-degrading strategies. Thus when the demand for local biodiverse products (main items for the communities to dispose off) is low, exchange value will drop, consequent purchasing power will decrease, and poverty is bound to follow. Supplies for basic needs also get constrained due to administrative and political apathy towards people in these regions where population density is low and thus the number of votes and other kinds of political pressures are lower.

To overcome many of these constraints, four kinds of incentives have been proposed (Gupta, 1991, 1995, 1997):

The matrix resulting from the interaction of two variables a) nature of benefit, whether material or non-material and b) target of benefit, whether individual (including group of individuals) or community provides the framework for designing these four incentives for rewarding innovations.

Forms of Benefit

Material Non-material

Individual

Collective

I INDIVIDUAL -MATERIAL

These rewards are in material form such as royalties from patents, copyrights or trademarks, biodiversity user fees, monetary rewards, fellowships, land assignment or equipments, etc., to individuals. These could arise from those who license technologies of herbal- or animal-based recipes by local individuals or educational or research grants etc.

 

II INDIVIDUAL - NON-MATERIAL

 

Documentation, press coverage, TV and other media, public felicitation, invitation to lecture in schools, centres of learning and research. Invitation to conferences, workshops attaching the name of the innovator to the innovation (an incentive frequently used by the local communities themselves), photographs being placed in village or district councils, access to new skills. For example, SRISTI has been giving the SRISTI Sanman (honour) for the last five years to outstanding innovators at grassroots level.

 

 

 

III COMMUNITY - MATERIAL:

These are quite relatively important. The rewards in material form to communities or groups of people help to generate the right signals for mobilizing the collective action which is so important for conservation. The instruments of such rewards could include risk funds, trust funds, priority in the development or allotment of infrastructure such as schools, health care system, access roads etc. free or easy access to data banks, access to external expertise, community awards, community grants/ risk funds, external aid in developing common property assets, marketing intervention for organic produce, etc.

 

IV COMMUNITY - NON-MATERIAL

These are rather difficult to implement but may have quite an endurable impact particularly when the rewards change the values of the communities positively. Rewards include policy changes to ensure greater control over local natural resources, removal of perverse incentives (that is indications which encourage non-sustainable use of resources) for conservation, favourable policy environments for eco-friendly products, conservation practices, media attention, community awards, capacity building through transfer of technology, building up of negotiation skills, pedagogy changes, inclusion in the curriculum of lessons which raise social esteem for local, eco-friendly practices and innovations, etc.

 

The magnitude, manner and form of incentives or benefits may influence the degree of involvement of the local communities or individual innovators in future projects of biodiversity conservation.

• Incentives could be in cash or kind, conditional (linked to research) or unconditional.

• Community incentives could be of a direct nature or they could be indirect. They could be provided at one point in time or over an extended period of time.

• Incentives could be provided by external agencies or by the local communities themselves. The improved status of the innovators on account of social recognition may or may not be associated with a greater say in decision making at the societal level.

• Incentives may focus on empowerment of local communities so that they may have better negotiating skills and better knowledge for conservation of local resources. Alternatively, the incentives may be targeted directly at conservation. Incentives targeted at the community may lead to action either at the community level or even at the individual level.

The concern for local knowledge has been there for a long time. As early as 1969, Verma and Singh raised questions about the continued relevance of indigenous knowledge in the context of animal husbandry. The modern health system for human beings was quite weak. For animals it was even weaker. Local communities in many parts of the tropical developing world rely on local knowledge of animal husbandry even today. This is indicative of the fact that mainstream education and public policy still do not give due attention to the peoples’ knowledge system. One implication of this is the downgrading of those knowledge systems in the eyes of young people of the same communities. Once the esteem for local knowledge goes down, there are less incentives for young people to acquire that knowledge and to experiment and rejuvenate the same. This leads to serious discontinuities in the intergenerational flow of knowledge. Once the "local experts," the older generation, are gone and there are no successors, the knowledge held in trust by those individuals for future generations is lost forever. Young people are not acquiring the skills of local experts because of a lack of incentives. However, some of these skills might lead to new career options; for instance, the skills of restoring the health of degraded lands, water bodies or forests are becoming increasingly valuable as international conventions and their implementation gain momentum.

Access to biodiversity can be looked upon from the perspective of its uses as well as the methods of access.

• Access Framework

Access

Extractive Non extractive

Non commercial 1 2

Returns

Commercial 3 4

1) Non-commercial / Extractive: The samples are extracted for taxonomic or ecological analysis without any commercial purpose in mind, e.g. for academic research and studies by different individuals, institutions, and public & government organizations. Recent examples of such studies include the Department of Plant Science, Oxford, UK, request to the Ministry of Environment & Forest for conducting field studies and collection of specimen Flora from South India. A similar request was made by the Royal Botanical Garden, Edinburgh, Scotland, conduct field studies and collect flora from Sikkim, India.

2) Non-commercial / Non-extractive: Access to biodiversity in order to describe eco-systems or local institutions. For instance, studies carried out by the Zoological Survey and Botanical Survey of India in order to document the biodiversity can be termed as examples of such access. The ethnobotanical studies documenting knowledge of ethnic communities about plants are another example of access to biodiversity and associated knowledge systems. It is true that this information may be put to commercial use or the sites described may become sites for economic extraction or eco-tourism later, but if, at the time of documentation, the intention was of a non-commercial nature, then the case will fall within this category.

3) Commercial / Non-extractive: The extraction of local knowledge systems of the local community about the biodiversity, rather than the diversity itself, falls in this category. This knowledge is later utilized for commercial gains in collaboration with pharmaceutical firms and other commercial prospectors. The access does not involve actual physical extraction of biodiversity. The use of the knowledge possessed by the Kani tribe to screen a therapeutic drug by Tropical Botanical Garden Research Institute (TBGRI) with benefit sharing agreements is a well known example in India. Databases, such as the Natural Products Alert Database (NAPRALERT), which contain a range of information including ethnobotanical data on selected plants, are accessed by different companies on payment as the data can help at several stages of medicinal development. However the service is provided free of cost to developing countries.

4) Commercial / extractive: The form of access where the commercial organization, local communities or cooperatives extract components of biodiversity for commercial purposes. This involves physical extraction of biodiversity to produce value added products or for direct use of the resource. The extraction of medicinal plants by firms to produce medicines, the working of bamboo forests by the paper industry for use in pulp production, are examples of this category. The Merck-INBio deal in Costa Rica is a classical example. Merck, a pharmaceutical company, received screened natural samples from INBio, National Institute of Biodiversity of Costa Rica, for further research and development. Similarly, the use of medicinal herbs and plants by an individual herbalist to treat patients may also be termed as an extractive and commercial access. Here the scale, purpose, and location of the user may make a further difference to the obligation of the extractors.

The commercial/extractive and commerical/non-extractive access (No. 3 & 4) can be pursued for different proposes by various extractors. The location of the user and the extractor may influence the respective entitlements and obligations.

The term , `local’ refers to geographical limitation such that resources are extracted or used by the communities living around the resource. They may or may not have formal property rights on the resource. The external user or location would mean distant, farther and beyond the access and control of local communities. Thus local context would be a tribal community living in or around a forest and dependent on the locally available resources for its survival. The external agents could include companies or scientists or others located in the cities nearby or even outside the country. The difference is in scale and spatial distance. It is true that local communities may have institutional arrangement whereby the control, the mechanism of using a resource outside. For instance, a local cooperative unit for managing biodiversity resource may have a plant or trading centre in far off place. In such a case, the local user is only implying the relationship of the user with the resource. Obviously, the user may have external connections. The scheme presented here should be seen as a way of looking at contrasting situations to understand the underlying tensions.

 

User Location

Local External

Local 1 2

Extractor Location

External 3 4

The use of diversity by the communities residing near the site, or having property rights over it, for their own consumption, may constitute category 1. Collection of leaf litter from social forestry to be used as fuel by tribal communities in Orissa, India, or the use of bamboo available in the forest for construction of houses by local and indigenous communities are examples of such modes of access. An Exim Bank occasional paper estimates the local extraction and consumption of herbal plants to the tune of Indian Rupees (Rs.) 600 million every year.

The economic significance of Indian biodiversity can be gauged by the fact that the domestic trade in medicinal herbs and its extracts is to the tune of Rs. 3 billion and is increasing. (Source: Exim Bank Occasional Paper No.54) The medicinal herbs are extracted by the local people and reach the industry, through middle men, to be utilized for production of value added natural products.

A recent World Bank study pointed out the poor returns on natural resources to India and its local extractors by citing the example of "Tetu Lakda" twigs. These twigs are available in India at Rs. 9/Kg ($0.26/Kg) while its extracts are sold in the international markets at Rs 500,000/Kg ($15,000/Kg).

The policy guidelines and protocols should look into these disparities in benefit sharing and enthuse and motivate the private sector to bridge these gaps. In some cases, if motivation does not work, sanctions may have to be called for. The current demand for medicinal plants is being met from cultivated and wild sources, however the wild remains the major source of medicinal herbs. The world trade in medicinal plants and related products is estimated at US $ 5 trillion by the year AD 2050. To meet the increased demand, cultivation of these species and use of tissue culture or cell culture techniques need to be promoted. This is a must, as even the current level of extraction from the wild is not sustainable. The private sector has to take the lead in this area and policy measures for biodiversity conservation should include incentives for such investments.

A paper mill may collect and use "sabai" and "bhabar" grass for pulp making in India. The grass that is found fit for rope making is sold to the local people. The collection of long bamboo by paper mills operating inside the forest for sale to the local people via the forest corporation is another example of such interactions.

An external extractor, such as a paper mill or a non-timber forest produce contractor uses labor from outside the local communities to prospect biodiversity which is then transported to an external location for value addition or processing. The local communities have minimal or no role to play in such extraction though they may suffer the consequences of resource depletion and degradation.

A regulatory regime cannot be designed uniformly for different kinds of extraction options at varying scales for various commercial and non-commercial purposes. The tables below define the interaction of various types of biodiversity with different access regimes and governed under various property right laws.

Biodiversity Extractors Fauna Floral Microbial Genetic biochemical

Foreign commercial

non commercial

Domestic commercial

non commercial

Access to biodiversity per se should be distinguished from access to genetic resources, despite the difficulty to draw the line between both categories. This is because genetic access has never been regulated and genetic resources had been considered the common heritage available to everybody before the CBD came into being. Secondly, the monetary gains arising out of genetic resource use are significantly higher than those arising from physical access.

Glowka (1998) reviews various proposed legislations, agreements or executive orders (for example, in Philippines) on the subject of access determination processes. In the Indian Pact, Art. 37 provides framework for gene banks to enter into contracts with other partners and Art.36 provides access contracts with universities and recognized investigators. Philippines legislation is also quite flexible for institutional researchers in which case prior informed consent is taken only at local level. However, National Commission on Indigenous People (Administrative order No.1, 1998, Philippines) provides several specific guidelines for Protection and Promotion of Indigenous Systems and Practices (IKSPs). The guidelines are:

1. The ICCs/IPs have the right to regulate the entry of researchers into their ancestral domains/lands or territories. Researchers, research institutions, institutions of learning, laboratories, their agents or representatives and other like entities shall secure the free and prior informed consent of the ICCs/IPs before access to indigenous peoples and resources could be allowed.
1. A Written agreement shall be entered into with the ICCs/IPs concerned regarding the research, including its purpose, design and expected outputs;
1. All data provided by the indigenous peoples shall be acknowledged in whatever wrings, publications, or journals authored or produced as a result of such research. The indigenous peoples will be definitively named as sources in all such papers;
1. Copies of the outputs of all such researches shall be freely provided the ICC/IP community; and
1. The ICC/IP community concerned shall be entitled to royalty from the income derived from any of the researches conducted and resulting publications.

These guidelines do not seem to distinguish among national researchers and international researchers, as is the case in proposed legislation by Indian government. The issue of course is, as mentioned above earlier, whether similar constraints should operate on researchers with non-commercial and non extractive motives vis-à-vis researchers having commercial extractive or commercial –non extractive motives. In the absence of proper research and generation of preliminary data base how will external or internal prospectors assign values and enter into contracts assuring reasonable returns to local communities and other stakeholders.

Different kind of biodiversity occur on land and water governed by different kinds of property right regimes. The regulating authority has to differentiate the application rules and regulations depending upon the source and the extractors of the resource. (Table II)

Source regime

Terrestrial Aquatic

Extractors Private Public Common Private Public Common

Foreign Non-commercial

Commercial

Domestic Non-commercial

Commercial

The property right regime governing a resource influences not only the constellation of stakeholders but also the possibility of disadvantaged communities and individuals benefiting from a resource-centered benefit sharing mechanism. Further, benefit sharing need not be seen only among international users of resources and knowledge but among by the domestic users. After all a tribal community or individual healer gets no respite from the fact that the exploiter is from within the community or country and not from abroad. In most developing countries, the greatest damage to the biodiversity and greatest exploitation of local communities has been caused by domestic interest groups in relative terms, exceptions apart.

The need for a low transaction cost system of intellectual property protection for TK is obvious and yet most global dialogues on intellectual property rights have not yet embarked upon such a system. Article 23.4 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides for negotiations to be undertaken in the Council for TRIPS of the World Trade Organization (WTO) on the establishment of a multilateral system of notification and registration of geographical indications in the context of wines. There is no reason why such negotiations should be restricted only to wines and not include traditional knowledge as well as contemporary innovations of local communities and individuals.

There are many other policy and institutional modifications that are called for in existing IPR laws. It is not my argument that removing the imperfections of IPR regimes will by itself generate economic rewards and social esteem for local, knowledge-rich, but economically poor people. I realize that the role of non-monetary incentives may be sometimes more important. However, the biotechnology, drug, and other value adding industries have not yet shown any explicit interest as a stakeholder in generating models of voluntary benefit-sharing. Does this imply that they believe that future gains in biotechnological products may be made only on the basis of public domain biodiversity?

Machlup, (1958) provides a succinct historical review of the debate on patents in the late 19^th century in Europe and America. The anti patent movement collapsed after 1873 following the depression, the rise of protectionism and nationalism and the "willingness of patent advocates to accept a compromise". The rise of free enterprise and trade was accompanied by the acceptance of principal of compulsory licensing so that inventions could be used by getting them licensed to others at reasonable compensation. The idea of compulsory license evolved way back 1790 but became part of patent wisdom at the Patent Congress held at Vienna World’s Fair in 1873. Machlup (1958) provides various arguments that were used to oppose patents among the developed countries including the ethical considerations.

The discussion on registration systems has taken place for about a hundred years now. Machlup reviews this debate and summarizes various considerations that were brought into the discussion. He observes:

Under the registration system, the validity of a registered patent is examined only if an interested party attacks it in the court and asks that the patent be invalidated. Under the examination system, the patent is issued only after the patent office has carefully examined the patentability of invention. This examination may include so-called "interference proceedings", when the Office finds that two or more pending applications seem to claim, "partly or wholly" the same invention so that the priority of one inventions has to be established. The so-called "Aufgebotssystem", examination-opposition-system provides for an interval of time after publication of the specifications examined and accepted by the official examiner and before the issuance of the patent, in order to enable interested persons to oppose the patent grant……..The registration system administratively is the cheapest. But may burden the economy with the cost of exclusive rights being exercised for many inventions which, upon examination, would have been found non-patentable. In favour of the examination systems, it has been said that it avoid a mass of worthless, conflicting, and probably invalid patents, onerous to the public as well as bona fide owners of valid patents; that it prevents the fraudulent practice of registering and selling patents similar to the claims being patented by others; and that it drastically reduces the extent of court litigation (1958:8).

We will revisit the issue of registration system in the light of recent experience later. Machlup has reviewed several suggestions for reform of the patent system about four decades ago, some of which are still relevant, such as:

1. Rewards to the patentees of a sufficiently high level to give general satisfaction to the inventors and those who have invested in their inventions financially in lieu of making inventions freely accessible to all. The rewards will have to be fixed according to the "assessed values created by the invention" (Michael Polanyi, 1944).
1. In this scheme "instead of making annual "participation payment" to the licensers (in addition to the reasonable royalties received by them from licensees) the government would buy the patents outright and open them to all, free of royalty (Hamilton, 1957) Another variant of this suggestion was the option to government to purchase any patent at a reasonable price if it was interested in making it available for general use.
1. The proposals for giving prices, bonuses are said to be as old as the patent system itself (it is important to mention that opposition to the monopolistic features of patents have not come from socialists but mainly from economists believing in free enterprise and free trade).
1. Government should finance the research and development work so that if society wants some innovations it must pay for them in the first place.

In different countries, combinations of incentives system have been followed. Even countries having strong patent systems have recognized the importance of government’s investment in research, national awards and in occasional cases option of compulsory licenses. The examination system has been for disclosure rather than for invention or novelty as in the case of Switzerland. Their experience has been that percentage of patent which worked in the national system was not very different from the international patent system. Machlup quotes the famous analogy of the automobile brakes. These permit the motorists to drive it with greater speed. Unlike the real brakes in the motor, the patents put brakes on others regardless of "how fast or cautiously they proceed". He concludes that based on the evidence available till then, the implications for strengthening or weakening different features of patent law will not be same for a non-industrialized country or a newly industrialized country or US. In the post GATT phase, the consensus has veered towards harmonization of patent laws across the countries though some exemptions and more lead time has been given to the developing countries. The history only shows that the debate being witnessed now is not new and has never provided unambiguous answers.

Coombe (1998) reviews the interface between intellectual property, human rights and sovereignty in the context of indigenous knowledge and conservation of biodiversity. She reviews the universal declaration of human rights, International Covenant On Civil And Political Rights (CCPR) 1966, and International Covenant on Economic, Social and Cultural Rights (CESCR) 1966. In the context of IP, CESCR provides that an author can benefit from the protection of moral and material interest resulting from any scientific, literary or artistic production. Historically the civil and political rights, she observes, were believed to be absolute and immediate whereas the economic, social and cultural rights were thought to be more "programmatic" in nature such that these could be realized gradually. The former were considered justiciable while the latter were considered more political in nature. She quotes Scott Luckie who argues about the permeable nature of many of the human rights that, "should have long ago laid to rest sentiments divorcing, rather than merging, civil, cultural, economic, political and social human rights" (Luckie 1998). Despite the fact that most countries who are party to CESCR do not view the intellectual property rights same way as other rights enshrined in CESCR. When reporting to the committee on the realization of rights under Art. 15, the state is asked, she adds, to describe the steps it has taken to realize, "the right of everyone to take part in the cultural life which he or she considers pertinent and to manifest his or her own culture. All the 130 states, she adds, "are party to the CESCR have international human rights obligations to ensure that the intellectual property rights recognized in their jurisdictions are established, granted, exercised, enforced, licensed, and otherwise used in a fashion that does not infringe upon the human rights recognized in the two international Covenants." Despite the fact that about 130 countries have ratified the convention of biological diversity, which mandates under Art.8j the use of local knowledge, innovations and practices through involvement and approval of local communities, the tensions on this account remain.

The application of IPR laws to traditional knowledge and innovations hinges on the conceptualization of the traditional or indigenous knowledge itself. Brush includes all folk of popular knowledge preserved in local and traditional practices as indigenous knowledge (Brush, 1996). Agrawal (1995) decries the tendency to view indigenous knowledge as a counterpoint to western or scientific knowledge. This has been very obvious to the readers of Honey Bee newsletter for over ten years. Honey Bee Network has questioned this dichotomy and has always argued for building bridges between formal and informal science. The assumption is that science is a post-industrial revolution western construction. Studies by Needham on the evolution of science and technology in China and the research work on plant science by Mazumdar (1925), and Singh and Verma (1969) clearly demonstrates that the localization of knowledge takes place through practice in different parts of the world. Likewise, the scientific principle of refutability, generalizability and falsifiability have been at the core of scientific knowledge produced by local communities. Mere abstraction or lack of it does not confer on a practice, a label of a superstition or a conjecture. Lack of causality, likewise, is not a limitation just of local knowledge. The use of aspirin for headache has been a modern scientific knowledge for a long time without our knowing till recently, how did aspirin actually reduce or remove the headache. So far as abstraction is concerned, there is much of agronomy and other plant sciences in which empirical knowledge is generalized without providing the entire rationale of a given practice. Farmers have produced such knowledge for ages. So long as this knowledge produced predictable, functional and context specific results (some of which were also context free), the scientific basis of the knowledge remained only to be articulated. This became essentially an issue of logic and language. Boiling milk at least three times till it comes to brim without spilling over by alternate heating and cooling has been an old practice for extending the life of milk. By doing that at frequent intervals of few hours, one could keep milk fresh for days without using refrigerator. Women farmers and the villagers who developed this method of keeping milk fresh for long did not articulate the underlying principle or the theory, as was done by Louise Pasture (adding a condition of pressure as well). The practice did not become unscientific because the underlying rationale was not articulated in the modern scientific language. Thus the issue is of generating vocabulary which helps connecting different knowledge systems recognizing in the process, the limitation and strengths of each. There is no question about peculiarities of method, some of which dissolve on careful scrutiny. For instance, many good breeders considered breeding as much an art as science in the sense that they always looked for plant/s that matched their selection criteria – a function that many traditional farmers also performed while selecting their varieties. Some methods of developing scientific information are common among local communities as well as formal scientific institutions. Grafting to improve the horticultural plants, selection to improve self-pollinated crops as well as some of the cross-pollinated crops, selection followed by bulking and again selection iteratively are also common methods of plant breeding, crossing has also been attempted by farmers, plant protection methods, agronomic practices, etc., share a great deal of commonality in approaches in the two knowledge systems. The criteria of evaluation of course differ quite significantly. Local communities may evaluate any technology on multiple parameters which may include concern for soil, water, long term sustainability, etc. However, in some cases, the shortsightedness of formal scientific systems is also seen in the local knowledge systems.

The issue is not that one is independent of other. After all, chilly, tomato, tobacco, potato and many other crops were introduced in Asia only about half a millennium ago. The local knowledge evolved around these crops in due course and with great cultural, socio-economic and socio-ecological variability. The point is that a local community whether settled from outside or evolved indigenously in a given region does not have any compulsion to test its technologies over a wide region. Therefore, given the closer fit between local technologies and the specific ecological conditions, generalizability across large spatial units may be poor by design. This does not make the specific practices any less scientific.

Coombe (1998) acknowledges, "that opposition between dominant and indigenous culture are often over-simplified, blurring the actual fluidity and permeability of knowledge and cultural boundaries. Just as dominant cultures appropriate knowledge from indigenous ones, indigenous knowledge itself contains knowledge shared between cultures, as well as information brought by colonists, settlers, and traders." This view, as I said before, has been the basis of our movement in Honey Bee network but also that of a few other attempts (Warren (1989), Varma and Singh, 1969). Dr. Y.P. Singh who guided some of the earliest post-graduate theses on indigenous knowledge in mid-60s had raised the issue, 'whether indigenous animal husbandry knowledge was relevant today (Ibid, 1969)’. He has guided another doctoral thesis( bu Dr Hira Nand) on indigenous dryland agriculture knowledge in mid-70s. The tradition of building bridges between different knowledge systems is quite old. Gaya Prasad Singh, (1915) had drawn attention to the practice of storing potato seed on the heep of coal in Frankfurt, Germany and compared that with the local practice of storing seeds under the cot in a diffused light and relatively cold environment. This concept was later popularized globally by International Potato Research Centre (CIP, Rhoades, 1984). There are many other researchers such as Mauris Iwu (1989), Atte, Paul Richards(1985), Hiranand(1979), etc., who have tried to pursue the same line of thinking.

DeWalt (1994) reinforces the notion that "those who use and develop indigenous knowledge systems (mutables immobiles) and those who develop and apply scientific knowledge system (immutable mobiles) are constrained by the way in which they have been trained to think and contexts in which they live. The key is to provide both knowledge systems with more opportunities in which they can inform and stimulate one another" (1994:128). Thurston (1992) has demonstrated the potential of doing so in the case of plant diseases. The TAPP database developed by him traces the local and ancient knowledge on plant diseases documented over last 500 years. Richards (1985) showed similar potential in case of rice, pests and many other agricultural practices. Warren (1991a, b) has also argued for similar need of complimentarity among formal and informal knowledge systems.

The tension on the issue of applying intellectual property right laws to local knowledge, innovations and practices also stems from the conceptualization of the local knowledge as essentially cultural and community construction. Posey and Dutfield (1996) conclude after a review of various IPR instruments and their applicability to different kinds of local knowledge that, "IPR laws are generally inappropriate and inadequate for defending the rights and resources of local communities. IPR protection is purely economic, whereas the interests of the peoples are only partly economic and linked to self-determination. Furthermore, cultural incompatibilities exist in that traditional knowledge is generally shared and, even when it is not, the holders of restricted knowledge probably still do not have the right to commercialize it for personal gain". They suggest instead a concept of Traditional Resource Right (TRR) which recognizes, "the inextricable link between cultural and biological diversity and sees no contradiction between the human rights of indigenous and local communities, including the right to development and environmental conservation" (1996:95). It is obvious that intellectual property right systems never evolved to deal with various other rights that are included in the bundle of TRR. The contributions specifically dealing with intellectual capital are covered by the intellectual property rights. So far as the rights of the communities are concerned which are collective and deal with knowledge produced in past, these may have to be dealt with new instruments. The Community Intellectual Property Rights (CIPR) were articulated by Crucible Group (1994) to enable local communities to assert their "rights to seed" such that no outside company or institution could use their knowledge or resources without their permission – a proposition which is in line with Article 8J and some aspects of FAO’s Farmers Right Concept. The Crucible Group also suggested a need for national legislation, an international database for tracing germplasm possibly through CGIAR system and appointing a `public defender’ to mediate or act as ombudsman (1994). The Third World Network (Nijar, 1994) suggested a model Community Intellectual Right aimed at preventing the privitisation and usurpation of the rights and knowledge of the communities to be called as, "Community Intellectual Rights" (CIR). It was further proposed that local community leaders who would act as trustee of the community and the farmers rights would be held in perpetuity because knowledge and practice evolved over long period of time as the community evolved. A `registry of invention’ was also suggested with which the community biodiversity register (Kothari, Ashish, Pathak, N, Anuradha, R.V., and Taneja, B., 1998, Gadgil, Ghate and Rao, 1999) could be linked. This knowledge would lie in public domain. Subsequently, Ghate, Gadgil, Rao (1999) have modified the concept to include only public domain knowledge in the community registers and mentioning the name of local experts (but not their knowledge or innovations) in the register. This was in response to the suggestion by Gupta (1998) that by recording the knowledge of experts in the public domain register, the intellectual property rights of the experts will be exhausted. So far as CIRs are concerned, the purpose of preventing others from patenting will be achieved by publishing the local knowledge and making such publications available to the patent offices.

Stephen Gudeman believes that IPR are another form of market forces which would further erode an already endangered commons (1996). He does not believe that technical essence of a local knowledge can be abstracted from the context of its use and tested in laboratory to develop something of common use. He argues, only partly correctly, that if scientists could not validate a particular knowledge, they might consider it faulty. He observes, "The scientists draw a distinction between res cogitans (thinking being without spatial extension) and res extensa (material things as extended substance) – between the mental and the material, intellect and emotion, knowledge and context (1996:112-13). Undoubtedly, what Stephen has argued has an element of truth. Large number of scientists (in fact majority of them) have treated local knowledge in such a manner. At the same time, the fact that 74 percent of the plant derived human medicines are used for the same purpose for which local communities discovered their use (Fransworth, 1981) proves that scientists have not hesitated in drawing upon the useful, valid, and abstractable local knowledge when it was appropriate. Obviously the evidence only shows how much great the potential is of using local knowledge even out of its strict socio-cultural context. To what extent the users of traditional and local knowledge have contributed to the growth of the very knowledge system which generated tremendous commercial returns, is a valid issue and we will revert to it later.

WIPO – UNESCO (1985), Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, was supposed to help national governments in enacting laws to provide protection to folk knowledge and also folk varieties. However, the only reason one can speculate, may have been responsible for widespread neglect of these provisions even by the developing countries is the lack of willingness of most developing country governments to check the domestic exploitation of folk culture, art and varieties. In the post-CBD phase, many countries are trying to correct this distortion.

Coombs (1998:107) agrees with the proposal of Gupta (1997) that "every patent office in a Western country should insist that the patent applicant declare that the knowledge and resources used in a patent have been obtained lawfully and rightfully". The lawful acquisition will imply that the prior informed consent and approval and involvement of local communities and creative individuals have been ensured, assuming that the donor country has laws requiring such consent and approval. The rightful acquisition involves ethical enquiries into the corporation’s compensation practices. She feels that Western governments who are party to the major human rights Covenants should ensure that "private parties subject to their jurisdiction do not violate the human rights of others, such a premise is congruent with commitments to rights of subsistence, to enjoy the fruits of one’s labour, privacy, environmental sustainability, and cultural integrity (although not all of these rights are necessarily implicated in every such taking)". She feels that the lawful and rightful disclosure requirements may be awkward, if not politically impossible, to enforce particularly if it was to be imposed as an absolute barrier to the patent protection. She suggests that in the shorter term this requirement need not include any minimum criteria. For instance, she suggests, "a corporate applicant might simply disclose that the source country impose no legal consent requirements, and that it has made no arrangements for compensation. To the extent that this information is made part of the public record and published by member State governments, it would provide leverage for indigenous peoples, NGOs, concerned consumers, interested citizens, and the media to put political pressure on patentholders to improve their research and development practices congruent with developing human rights norms. Over time, some corporations might recognize the publicity values and goodwill to be accrued by greater transparency and might set increasingly higher standards to develop market distinctions" (1998:108).

Dutfield (2000) in an extensive review of various initiatives including peoples biodiversity registers, community intellectual rights, SRISTI’s local innovation databases, concludes that the relevance of international IPR regime to the CBD is beyond doubt (2000:125). The questions which he feels are unresolved include:

(1) It is not certain that increased availability of IPR protection will automatically lead to greater levels of innovation in society. Innovation and creativity flourish in many parts of the world without any (western) IPR laws. On the other hand, allegations are increasingly made that too much IPR protection of basic research is stifling innovation (see Heller and Eisenberg 1998); (2) The role of intellectual property rights in the erosion of agro-biodiversity has been the subject of some polemical debates, yet we still do not know how far biodiversity is affected by intellectual property rights for seeds, plant varieties and/or agrochemicals. But it can be argued that we cannot afford to wait for conclusive proof one way or another before making decisions on the design of environmentally-sound intellectual property rights. It is vital to consider whether and how the precautionary principle may be applied in the IPR context to minimize the risks; (3) Some evidence suggests that most technologies supportive of biodiversity conservation are in the public domain. However, with respect to those which are not, it is unclear whether intellectual property rights hinder or encourage their transfer to developing countries; (4) It is widely accepted that the application of traditional knowledge and technologies can add value to genetic resources. While patents are clearly unsuitable mechanisms to protect the rights of traditional knowledge holders, the use of other intellectual property rights may in some circumstances be feasible.

So far as the issue of erosion of agro-biodiversity as a consequence of use of IPR is concerned, the evidence in the post-green revolution era in most developing countries is quite unequivocal. The erosion has been caused primarily by the public sector induced high yielding varieties, none of which have been protected by either the patents or plant variety acts since the same have not been applicable. In the Western societies, this supposition may have been valid. It is also true that large number of private seed companies and traders have used advanced lines as well as new varieties developed by public sector R&D labs without any reciprocity of compensation or payment of royalty. The result has been that public sector R&D institutions have had to depend primarily on government for resources and thus their creativity and autonomy have been adversely affected. The application of different kinds of intellectual property rights would have made these institutions recover returns on their investment in R&D and in due course have more dynamic and vibrant organizational culture. Obviously, so far as the right of communities and local farmer breeders is concerned, it would require specific institutional innovations to reduce transaction costs and at the same time enhance incentives for contributing their know-how and resources to the public and private R&D institutions where applicable. In many cases, farmer bred varieties can generate incentives for the individual farmer breeders provided they can protect their intellectual property and use it for commercializing their innovation or disseminating it without any cost to others. The response to other questions requires adaptation of the current IPR regime which CBD and WIPO are currently exploring.

Blakeney (1999) reviews various mechanisms for the protection of indigenous knowledge and seems to endorse the suggestion of Gollin (1993) to make it obligatory for any user of biodiversity to pay a fees to the personal group that discovered or traditionally used a particular specie through access legislation. Lesser (1998) suggested that a registry of traditional uses of genetic material be maintained in sufficient detail to permit their identification. Koon (1998) regrets that the current patent act of Malaysia does not have any special provision for protecting traditional knowledge, method of treatment in traditional medicine, products and processes. He has suggested a proposal to introduce a special provision in the patents act to protect the end-products of traditional medicine and treatment. However, he favours a sui generis system which should ensure that larger public interest must have precedence over commercial interests. He also suggests that traditional medicine and treatments should be available to society as these have been available for generations. In Brazil, Wolff (1998) describes, the bioprospecting legislation no.1235 of July, 1997 of the state of Acre and law no.0388/97 of the state of Amapa. In the law of the state of Acre the bioprospecting was allowed subject to an Agreement of Access including the state, the applicant for access and the furnisher of traditional knowledge or the domesticated agricultural crop. The state was represented by the Department of Environment of the state of Acre. The law also provides that "no individual rights of intellectual property registered inside or outside the state which are universal knowledge held by local communities or which have been acquired without certificate of access and the state exit licence will be recognized" (1998:178). The state law of Amapa forbids the utilization of genetic resources for research, conservation, or commercial or industrial applications that do not have the access certificate. Bill No.306/95 dealing with the recognition of the rights of indigenous person to intellectual property rights arising from bioprospecting activities was introduced by senator Silva. It was approved by the Senate on November 4, 1998 and is currently under evaluation by the National Congress. The Bill creates a Commission for Genetic Resources and provides for fair compensation among applicant, access agency, furnisher of traditional knowledge and other parties to access contract. Article 36 provides that a contribution would be made to a special fund from the compensation amount for strengthening conservation, research, and inventory of genetic resources. An interim ministry group offered a substitute bill in August 1998 which provided, "less stringent regulation so as to allow an exchange of information. It acknowledges the right of traditional knowledge holder in deciding upon access of third parties to the information regarding such knowledge, and assures the local indigenous communities’ right of participation in the distribution of benefits arising out of the use of such knowledge" (1998:180). Williams (1998) reviews the issues in New Zealand with particular reference to Wai 262 claim presented by multiple tribals about Maori knowledge systems and their protection of sacred wisdom. The Waitangi Tribunal established by an act of Parliament is hearing the claim and no decision reportedly as yet has been taken. Blakeney, while reviewing the position in Australia, cites two recent cases Yumbulul v. Reserve Bank of Australia and Milpurrurru v. Indofurn Pty. Ltd., in which intellectual property law failed to recognize the communal interests. In the first case concerning Yumbulul, the representatives of the Galpu Clan located in north-east Australia tried to prevent Reserve Bank from reproducing the design of Morning Star Pole on a commemorative bank note. The Pole reportedly had been created by one of the member of the Clan, "who had obtained his authority and knowledge to create the Pole through initiation and revelatory ceremonies. In view of the Galpu, the individual artist was obliged to the community and thus the Clan could prevent the use of the design of the pole in a culturally offensive manner. The trial judge felt that the artist who had created the pole was within his rights to dispose off his intellectual property rights through a legally binding agreement. He lamented that, "Austrialia’s copyright law does not provide adequate recognition of aboriginal community claims to regulate the reproduction and use of verbs which are essentially communal in origin".

In Milpurrurru the damages were awarded by the court to a number of Aboriginal artists for breach of copyright by those who wrongfully reproduced their designs on carpets. The major problem in this context is that many indigenous communities do not view their heritage in terms of property but consider it as a community and individual responsibility. Further the ethnobiologists have put lot of knowledge of indigenous people in the public domain – a position which we have criticized separately. He views that collaboration of indigenous people with ethnopharmacologists may not qualify to be called as joint invention – a position which is not true in many cases.

David Downes, Senior Attorney at Center for International Environmental Law (CIEL) recently communicated to the author for possible endorsement an appeal submitted to USPTO, December, 1999 which made several suggestions for reform at USPTO such as,

(1) the PTO procedure should be amended to make clear that each patent applicant must disclose any knowledge they obtained from an oral tradition, as part of the general requirement that an applicant disclose any knowledge that is materially relevant to patentability; (2) In addition, the PTO should require patent applicants to carry out their own search of prior art embodied in traditional knowledge systems, and provide the results in their application. They should also disclose the country and exact geographical location from which the knowledge or resources were acquired, and certify that the knowledge or resources were acquired in full compliance with local laws of the source country; (3) Under the current rules, a patent examiner evaluating an application must perform a search of all the available prior art in the form of journal articles, databases or other publications in the relevant field of technology. Examiners should review all public sources likely to contain such information, such as databases and registries of traditional knowledge, to ensure that each aspect of an applicant's claims represents a truly inventive step. The comments will give examples of publicly accessible databases and journals that could help the PTO identify patents that claim to be new inventions but in fact are part of the prior art found in traditional or informal knowledge systems; (4) The United States is a party to the Patent Cooperation Treaty (PCT). The PCT gives more liberal treatment to traditional knowledge that is eventually recorded in written format than does the current practice of the PTO. Accordingly, we suggest that examiners more fully integrate PCT guidelines governing international and international-type searches into the normal examination process for domestic patents; and (5) CIEL, COICA, and the Amazon Coalition have successfully argued in their challenge of the ayahuasca (Banisteriopsis caapi) patent that the mounted plant specimens in herbaria of United States museums and universities accessible to researchers constitute "printed publications" and thus are prior art that can bar a patent. For plant patents based on specimens that originated in developing countries, examiners should routinely consult expert institutions to determine if herbarium specimens exist that may be materially relevant to the novelty of the claimed plant variety.

Many of these suggestions are in line with the earlier suggestion by us (Gupta, 1995,1998,1999) in terms of (a) requirement of patent offices to ask every applicant to certify that application for patent includes claims based on ‘lawful and rightful’ access to local /traditional knowledge and resources, and (b) non patent prior art available in data bases like Honey Bee or Biodiversity Registers or other forms of national registers is taken into account.

Sadjo (1992) suggests, drawing upon the work of property rights theorist Demsetz (1967) and Coase (1960) that the externalities generated through the inefficient market outcomes of access to genetic resources may be "corrected" through negotiations among the affected parties particularly if transaction costs are not very high. The contractual arrangements may be able to specify various concerns that each of the party to the transaction may have as distinct from the approach of deriving these concerns through property right laws. Swanson (1998) looks at the property right issues in the same context and observes, "existing IPR system creates incentives to invest in R&D at the end of the industry (the plant breeding sector), but is not generating investments in the earlier parts of the industry (the genetic resource providers)". This happens, Swanson suggests, because (a) farmers in developing countries do not have property rights on their genetic resources and have no direct incentive to invest in diversity and (b) plant breeding industry located primarily in the developed world did not feel it necessary to justify their own independent investments in conservation of in-situ diversity in developing countries because of lack of control or rights over this diversity in developing countries. In an earlier study, he found that around 55 per cent of breeders felt that having an in-house collection of germplasm was better and gave more stability than investment in in-situ conservation. The remaining breeders considered cost to be important factor. And he considers lack of incentives for seed industry in developed country to invest in developing countries as a case of "property right failure". This formulation has obvious limitations because lack of property rights need not be the major barrier to investment in conservation of in-situ diversity. The contractual arrangements, as suggested by Sadjo above could to some extent achieve the same results, so long as the developing country governments provide legitimacy to these contracts and help in their enforcement. The argument that efficiency needs ownership, is valid but it can not be the argument that efficiency needs private ownership in each case. After all there is enough literature to show that common property right institutions can generate very efficient and viable outcome given three sets of appropriate rules that is dealing with (a) boundaries, (b) resource allocation and when conflict arise in implementation of both kinds of rules, then (c) rules for conflict resolution (Gupta, 1984, 1998). Ostrom (1993) elaborates this system of rules in much greater detail and considers clear demarcation of boundaries in addition of eight kinds of rules to be necessary concomitants of sustainable CPRs institutions. The point still remains that seed industry need to learn ways of dealing with local institutions having customary rights rather than well defined property rights. It is true that recognition of community rights in the national legislation will be a prior condition for legitimizing the contractual mode of agreements and possible investments by seed and other biotech industries in the in-situ conservation. For the sake of argument, one can even suggest that the users of biodiversity need to deal with current diffused status of property rights in developi