A STUDY OF THE LEGAL FRAMEWORK FOR THE PROTECTION OF MEDICO-SPIRITUAL PRACTICES IN SIKKIM AS INDIGENOUS KNOWLEDGE UNDER INTELLECTUAL PROPERTY LAW A THESIS SUBMITTED TO THE UNIVERSITY OF NORTH BENGAL FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW SUPERVISOR Dr. Sujit Kumar Biswas Assistant Professor Department of Law University of North Bengal Submitted by: Karma Dorjee Denzongpa Registration No: - 740036 University of North Bengal Raja Rammohanpur Dist. Darjeeling Aug. 2018 ABSTRACT Indigenous knowledge has been used since ages by indigenous and local communities in Sikkim and has been the foundation of their existence specially in the key sectors of health. Western science has lately begun looking at Indigenous Knowledge as a basis of new drugs specially since the expenditure of putting new drugs on the market is sky-scraping. The budding phenomenon of bio-piracy makes it evident the somewhat hypocritical outlook of western science to Indigenous Knowledge. Scavenging it on the one hand and claiming patents on all kinds of goods derived from Indigenous Knowledge (neem, turmeric, etc) yet refusing to acknowledge its economic significance and ownership. Despite the growing recognition of Indigenous Knowledge as a valuable source of knowledge, Medico-spiritual healing practice in Sikkim is an acronym in terms of health care service that hardly needs to be expanded nowadays. Sikkim doctrines the indigenous spiritual practice, indigenous traditions related with religion and belief based healing treatment and is a natural centre of traditional healing practice. Medico-spiritual healers and occupational traditional healing therapy acts as alchemists. In this pristine virgin and scenic land of blooming orchids, the majority of the State population are directly dependent upon the traditional medications prescribed by the Medico-spiritual healers for their basic health services and facilities. The understanding of medicinal herbs or floras among the healers is part of their indigenous knowledge which has been snowballed from generation since time immemorial. However, lack of legal knowledge and awareness among the Medico-spiritual healers, due to lack of legal frame within the State is creating problems in the implementation of the Medico-spiritual healing practice. The healing practice has not found a place under Traditional Knowledge Digital Library, despite it being on the verge of extinction as the next generation of healers do not want to follow it and the availability of the medicinal flora is on decline. With a cooperative and positive attitude the concerned authorities of the Government should discharge their respective functions properly in order to curb the problems faced by the Medico-spiritual healers of Sikkim. Much paper work has been done but effective implementation of the same is still at sea. A legal framework for the protection and promotion of Medico-spiritual healing practice is the need of the hour. PREFACE The propagation of Indigenous Knowledge through the mechanism of Intellectual property law shows how urgent the need is for a better understanding of the relationship between Medico-spiritual healers and the concerned authorities in Sikkim, and illustrates some of the dilemmas in which the Sikkimese people find themselves as the need to build some measure of understanding between these two is necessary. It also explains the perspectives of the researcher as they embark on writing this thesis. Medico-spiritual healing practice is considered a pivotal health care service for the treatment of patients from various diseases. It is ironical that Medico-spiritual healer’s who provides health care service to the needy, at the same time is considered vulnerable to the Sikkimese society. This is primarily due to lack of a legal framework both in terms of State and National level to promote and protect this form of traditional healing practice. Therefore, introduction of a proper balanced legal frame work by the concerned authorities to promote and protect the healers would be the foremost criteria for creating a healthy healing environment. What is required is a positive attitude towards the proper implementation of the rules and guidelines, and then only successful management of Medico-spiritual healing practice would be possible. Study of Medico-spiritual healing practice in Sikkim as traditional management of human aliments indicates that the study area is rich in its medicinal plants composition and the associated indigenous knowledge possessed by the healers. The extensive uses of these medicinal plants specify that there is good harmony on the efficiency of their medicinal properties. The traditional medicinal floras are fundamental to the rural cultures. The healers are conversant about the plant life, their distribution, application and conservation. This is further promoted and safeguarded by cultural and spiritual practices. The issues associated with protecting Medico-spiritual healing practice in Sikkim are deeply concerned with the structural inability of State and National law to give the Sikkimese people control of their healing practice, heritage and communities. The absence of legal protection of these healers and there beneficiaries in State and National level is disturbing. As Medico-spiritual healers, they have had more than their share of adversity and tragedy because of the denial of the manifestation of legal protection. The State and National law should embrace and celebrate this universal healing culture and intellectual diversity for the richness and depth this Medico-spiritual healing practice brings to life on earth from a small State of Sikkim. The establishment of concrete legislations and appropriate databases of National recognition for addressing the burning concern of the Medico-spiritual healers in Sikkim for protection of their Traditional Knowledge Intellectual Property rights are some of the steps which are yet to be taken. The grant of Traditional Knowledge Digital Library registrations to Medico-spiritual healing practice prevalent in Sikkim, establishment of patent rights and benefit sharing models are stepping stones towards Traditional Knowledge protection. The modalities for protecting Medico-spiritual healing practice are still emerging and evolving and therefore the measures for doing so is at a flexible stage. The Medico-spiritual healers and there beneficiaries in Sikkim should be aware of Intellectual property right issues because traditional healing medication is a national wealth, which prompted the researcher to undertake the research work with a view to understand the present scenario of Medico- spiritual healing practice in Sikkim. CONTENTS Page No. List of Tables i-iii List of Cases iv-vii Acknowledgement viii-ix CHAPTER I INTRODUCTION 1-18 CHAPTER II INDIGENOUS KNOWLEDGE 19-64 2. I. Concept of Indigenous Knowledge a) Knowledge b) Knowledge is a social construct c) Knowledge is power20 d) Role of knowledge in traditional societies e) Indigenous Knowledge f) Indigenous Knowledge and the purpose of its protection g) Limitations in Intellectual Property laws to protect Indigenous Knowledge 2. II. Indigenous Knowledge as a source for innovation a) Traditional Knowledge innovation with Traditional Knowledge system b) Traditional Knowledge innovation beyond the local context i. Access and benefit sharing legislation c) Intellectual property rights and Traditional Knowledge based innovation i. use of Intellectual Property Rights for innovations with Traditional Knowledge systems 2. III. Connecting Indigenous Knowledge and Intellectual Property through Biological Resources and Benefit Sharing a) Defining resources b) The significance of benefit sharing c) Taking into account all rights d) Medicinal knowledge e) Bio-patents or Bio-piracy? f) Does the Convention on Biological Diversity provide a way forward? CHAPTER III INTERNATIONAL INSTRUMENTS RELATING TO THE PROTECTION OF INDIGENOUS KNOWLEDGE 65-121 3. I. United nations Human Rights Conventions and Covenants 3. II. The International Intellectual Property Regime a) Copyright of literary and Artistic works i. The Berne convention for the protection of literary and artistic works, 1986 ii. The International convention for the protection of performers, producers of phonograms and broadcasting organizations (Rome Convention, 1961) iii. The world intellectual property organization, 1967 iv. Issues paper prepared by the Australian law reform commission, 1993 b) Patent protection and scientific discoveries i. The Paris convention for the protection of industrial property, 1884 ii. The International convention for the protection of new varieties of plants, 1961 iii. The Budapest treaty on the international recognition of the deposit of micro organisms for the purpose of patent procedure, 1977 iv. The Geneva Treaty on the international recording of scientific discoveries, 1978 v. Protection of inventions in the field of biotechnology, 1987 vi. The United Nations convention on biological diversity, 1992 vii. United nations food and agricultural organization and farmer’s rights 3. III. Technology know-how and Trade secrets a) Trade and Industrial design protection 3. IV. International Trade and Aid measures a) The agreement on trade related Intellectual Property, 1994 b) United States bills c) Resolutions of the European parliament d) United nations educational, scientific and cultural organization machinery for recovering cultural property 3. V. Protection of Folklore a) The Tunisian literary and Artistic property