Nlsiu TK Bill Draft

TheProposedTraditionalKnowledgeLegislation2010IPRChair,CIPRANLSIU
THE TRADITIONAL KNOWLEDGE (Protection and Management) ACT 2010 THE TRADTIONAL KNOWLEDGE (Protection and Management) ACT 2010 Preliminary: An Act (Act presently) to provide for protection, conservation and effective management of traditional knowledge and for matters connected therewith or incidental thereto, Objectives of the Act: (Preamble) : WHEREAS India is rich in traditional knowledge systems and that the traditional knowledge represents an important part of the living heritage of India, developed and maintained by communities within the Indian territories or by individuals reflecting the expectations of those communities, AND WHEREAS the forms of traditional knowledge have the potential of wealth creation for communities and the nation and the traditional knowledge needs to be conserved, protected and promoted for the cultural enjoyment of all peoples and commercial gain for the knowledge holders, AND WHEREAS there is a need for the protection of traditional knowledge and the rights of the traditional communities to practice, use, share and sell the products of the use of traditional knowledge as per their customary practice AND WHEREAS there exists a need to protect the integrity and sentiments of communities against distortions and disrespectful representations of forms of traditional knowledge and that the improper commercial exploitation of forms of traditional knowledge is prejudicial to the interests of communities and the nation,
AND WHEREAS there is a need for sustainability of resources on which the traditional knowledge are based, as well as to ensure the continuum of the customary practices of the traditional knowledge, and to have a regulated and responsible access to the traditional knowledge of India by assessors other than traditional communities, AND WHEREAS there is need to ensure that the traditional knowledge or the components thereof are accessed only with the consent of the traditional communities and to regulate third parties wishes to research, access or utilize traditional knowledges; there is sustenance of life and livelihood of traditional practitioners AND WHEREAS India is a party to the United Nations Convention on Biological Diversity and the Convention requires members to respect, preserve and maintain knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles, promote their wider application and encourage equitable sharing of the benefits arising from utilization of such knowledge, innovation and practices. AND WHEREAS it is necessary to provide for a regulatory authority to function as a watch dog for better resource management and effective implementation and there is a need for non-centralized community decision making system AND WHEREAS there is need for a comprehensive legal framework for conserving, protecting and promoting the Traditional knowledge and safeguarding the interest of traditional knowledge holders Be it enacted this by the Parliament this sixtieth year of Republic of India, as follows.
Chapter 1
Short Title, Commencement, Applicability:
1. Short title, extent and commencement : (1) This Act may be called the Traditional Knowledge (Protection and Management) Act 2010 (2) It extends to the whole of India (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of Act shall be construed as a reference to the coming into force of that provision. Chapter 2 Definition and interpretation 2. Definitions (1) Abuse means use or application of the traditional knowledge or one or more of its components, by any person, including a member of the traditional community or a traditional practitioner, in a manner that is in contravention of their traditional beliefs and (a) against public order and morality, health, environment and ethics, or (b) against the interests of the traditional communities or, (c) any action in contravention to the provisions of this Act. (2) Access: means acquisition of information pertaining to Traditional knowledge for commercial gain or purposes of scientific research, technological development or biological prospection, with a view to commercial gain (3) Accessor means a person who accesses traditional knowledge for commercial gain and /or for research, and includes members of traditional communities who access
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traditional knowledge of any other community for commercial gain and /or research (4) Benefit means gains that can be monetary, nonmonetary, welfare-based and any other form that comes out of an agreement between the accessor and the TC and / or Traditional Knowledge Authority upon access of TK or a component thereof. (5) Benefit sharing fee means any benefit, financial or otherwise, that may accrue to the Traditional Community or to the Traditional Knowledge Fund, as the case may be out of efforts at commercialization of one or more components of traditional knowledge and may include royalty. (6) Biopiracy means the commercial utilization of naturally occurring biological materials, such as plant substances or genetic cell lines, by a person(s) without due benefits to the traditional community(ies) or nations frpm where the materials were obtained. (7) Chairperson means the Chairperson of the Traditional Knowledge Authority (8) Collective rights mean the rights which the traditional community as a group has been holding over the particular traditional knowledge for generations; (9) Commercial gain means commercialization of a component or components of traditional knowledge or derivatives thereof, in a way that is not being practiced for livelihood by the community which owns the said knowledge; (10) Commissioner means the commissioner of the State TK Authority. (11) Informed consent means to consent to be obtained from the traditional community in case where the traditional knowledge is already under access and use before the notification of this Act.
(12) Intellectual Property Rights (IPR) means to intellectual properties including patents, copyrights, trademarks and designs. (13) License of Use means to the permission granted by way of an agreement to the Accessor by the TK Authority for accessing the TK. (14) License of Use Agreement means to the agreement detailing of the access fee, terms and conditions of access, benefits and the benefit sharing fee (15) Misappropriation of traditional knowledge means any form of appropriation, monopolisation, including claims of private ownership and/or intellectual property rights, and such other acts which deprive the traditional community whose traditional knowledge it is, from using, conserving and protecting the said knowledge, and from equitable benefit sharing arising out of any commercial utilization of said traditional knowledge and /or derivatives thereof, and also unsustainable utilisation of the genetic resources relating to that traditional knowledge (16) Livelihood means to the financial and/or other traditional / customary means for subsistence. (17) Person includes any natural or legal entity, and Government. (18) Prescribed means the proceedings prescribed by the Rules and Regulations under this Act (19) Prior-informed Consent means to consent to be
obtained from the traditional community for access by way of license to use the said Traditional Knowledge under Chapter ., sections
(20) Traditional Community includes a group of people or family sharing common language, customs, traditions and other distinctive traits and who have, since time immemorial occupied, possessed and utilized a territory except when such possession is either prevented or interrupted by war, force majeure, displacement or force, deceit or stealth or other usurpation. The Traditional community includes tribes mentioned under the Consitutiion of India as scheduled tribes (21) Traditional Knowledge means the collective knowledge of a traditional community of a family related to a particular subject or a skill passed down from generation to generation and includes, but not limited to
Cultural products and practices from Traditional communities such as weaving patterns, pottery, painting, poetry, folklore, music,woodworks,handicraft,jewellery,metal wares,musical instrumentsandthelike;
Genetic
material
discovered,
selected,
cultivated,
domesticated, developed or conserved by Traditional Communities, regardless of of whether they used or can be used in the development of new plant varieties or animal breedsorwhichcanbeharnessedforotherpotentialuses;
agricultural practices and devices developed from the indigenousortraditionalmaterial,customsand medicinal products and processes developed from indigenous or traditional material, customs and knowledge by Traditional Communities;
allotherproductsorprocessesnotmadebypersonwhichwas discoveredthroughacommunityprocess,orwhentheperson making the innovation does not claim the knowledge as his ownorwhenthepersonhasdiscoveredittobeusedopenlyfor commonpurposes
Discoveries,
innovations
and
technologies
made
by
communitiesthatareusuallynotrecordedinwrittenformand aretransmittedorallyfromgenerationtogeneration,
Methodofprotectionofenvironmentsuchassoilconservation, crop rotation, food grain storage, water preservation and the like
(18) Traditional Knowledge Authority: means the National Traditional Knowledge Authority established under Section .. . (19) Traditional practitioner means persons who are members of a traditional community and have been practising traditional knowledge including healing and/or rendering medical service based on traditional knowledge and customary practice.
Rights and Duties of the Traditional Communities: Chapter 3

3. Rights and duties of Traditional Communities : (1) Every member of a Traditional Community shall have the right to practice their own traditional knowledge (2) Every member of a traditional community shall have a right to use, modify or derive benefits from their own traditional knowledge for their livelihood Provided the use modified or otherwise is carried out in a sustainable manner; (3) Collective Traditional knowledge forming part of cultural heritage of traditional community shall be inalienable. (4) No member of any traditional community shall be barred from accessing or practicing the traditional knowledge of another traditional community for earning their livelihood. (5) Where the Traditional Community as a whole, or a member of the Traditional Community has provided an informed consent to an Accessor and/or entered into a License to Use Agreement with the said
Accessor, the said Traditional Community or a member thereof has a duty to inform the Traditional Knowledge Authority along with the details of the said agreement (6) Every member of the community shall ensure the continuum of the practice of TK and the conservation of associated resources from undue exploitation and its possible extinction. Chapter 4 Establishment of Traditional Knowledge Authority
4. Traditional Knowledge Authority and offices thereof: (1) For the purpose of this Act there shall be established a Authority which shall be known as the Traditional Knowledge Authority. (2) The Head Office of the TK Authority shall be at such place as the Central Government may, by notification in the official Gazette specify. (3) There shall be a seal of the TK Authority. (4) The central Government may, as a transitional measure, designate any existing Authority to function as TK Authority.
5.
composition of the TK Authority: (1) The TK Authority shall consist of the following Members, namely (a) A Chairperson, who shall be an eminent person having adequate knowledge and experience in the matters related to traditional communities, conservation and sustainable use of traditional knowledge and , to be appointed by the Central Government; (b) A Member Secretary who will be the Registrar of TK (c) Ex-officio members to be appointed by the Central
Government, one each are representing the Ministry of Tribal Affairs, the Ministry of Environment and forest, Ministry of Health and Family Welfare, Ministry of Culture, Ministry of Agriculture, Ministry of Tourism and Ministry of Water Resources. (d) Appropriate numbers of non-official members to be appointed from amongst members of various communities representing the TK sectors, experts and civil society representatives having special knowledge of, or experience in matters relating to traditional communities, and conservation and sustainable use of traditional knowledge.
6.
Conditions of service of Chairperson and Members: The term of office and conditions of service of the Chairperson and the other members other than ex officio members of the Traditional Knowledge Authority shall be such as may be prescribed by the Central Government.
7.
Chairperson to be chief executive of TK Authority: The Chairperson shall be the Chief Executive of the Traditional Knowledge Authority and shall exercise such powers and perform such duties, as may be prescribed.
9. Removal of Members: The Central Government may remove from the Traditional Knowledge Authority, any member who, in its opinion, has (1) been adjudged as an insolvent; or (2) been convicted of an offence which involves moral turpitude; or (3) become physically or mentally incapable of acting as a member; or
(4) so abused his position as to render his continuance in office detrimental to the public interest; or (5) acquired such financial or other interest as is likely to affect prejudicially his functions as a member.
10. Meetings of TKA : (1) The Traditional Knowledge Authority shall meet at least four times in a fiscal year at such time and place and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be prescribed. (2) The Chairperson of the Traditional Knowledge Authority shall preside at the meetings of the Traditional Knowledge Authority. (3) If for any reason the Chairperson is unable to attend any meeting of the Traditional Knowledge Authority, any member of the Traditional Knowledge Authority chosen by the members present at the meeting shall preside at the meeting. (4) No act or proceeding of the Traditional Knowledge Authority shall be invalidated merely by reason of (a) any vacancy in, or any defect in the constitution of, the Traditional Knowledge Authority; or (b) any vacancy in, or any defect in the constitution of, any defect in the appointment of a person acting as a member; or (c) any irregularity in the procedure of the Traditional Knowledge Authority not affecting the merits of the case.
11. Committees of the TK Authority: (1) The Traditional Knowledge Authority may constitute a
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committee to deal with any matter under this Act (2) Without prejudice to sub-section (1) the Traditional Knowledge Authority may constitute such number of committees as it deems fit for the discharge of its duties and performance or its functions under this Act or upon the taking up of any proceeding under this Act, including matters taken into account suo moto by the State TK Authority or the TK Authority. (3) The Chairperson shall constitute a Standing Committee, where required from within the Traditional Knowledge Authority along with representatives from the traditional community concerned with the matter and any other organization or authority or persons well versed in the matter of the proceedings. (4) The Standing Committee Meetings shall be chaired by the Chairperson, or in his absence the person presiding. (5) The Standing Committee shall submit a report on the proceedings within the prescribed period from the date of reference of a proceeding or matter to the Committee. 12. Officers and Employees of Traditional Knowledge Authority: (1) The Traditional Knowledge Authority may appoint such officers and other employees as it considers necessary for the efficient discharge of its functions under this Act. (2) The terms and conditions of service of such officers and other employees of the Traditional Knowledge Authority shall be as prescribed. 13. Functions of the Traditional Knowledge Authority : It shall be the duty of the TK Authority to : (1) prepare a National Policy, Strategy and Action Plan every five years, to be implemented with the Five Year Plan programme for ensuring the protection, continuum of use and practice of traditional knowledge and to ensure the sustainability of the resources, including human resources on which the TK is dependent. prevent
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biopiracy and other misuse of traditional knowledge and take preventive and / or punitive action where applicable as per the law (2) ensure that any access to traditional knowledge is brought under the purview of the Authority and is fair by way of non-exclusive informed consent of the traditional communities; (3) ensure through required instruments and proceedings that no Traditional Knowledge in the country is subject to any IPR application. (4) provide the informed consent or prior informed consent, as the case may be, to the accesor, in cases where a traditional community is not identifiable (5) collate and maintain an updated National TK Register (6) receive applications for access to the traditional knowledge in the prescribed format along with informed / prior informed consent and other prescribed documents (7) evaluate the environmental and social impact assessments and the Traditional knowledge and resource management plans submitted by the accesor before approving access and license to use (8) help and facilitate the traditional communities to negotiate the terms and conditions of benefit sharing upon access to use the traditional knowledge (9) set up a watch cell to monitor the applications and /or use of traditional knowledge, both in the country and any part of the world, and to take appropriate corrective action if there is a violation of any provision under this Act, including taking measure on behalf of the Central Government for the opposition / revocation of grant of IPR on Traditional Knowledge in any part of the world. (10) administer the traditional knowledge Fund for protection of traditional communities and ensuring the continuum and sustainable use of TK by the traditional
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communities, (11) Coordinate activities of State TK Board. (12) provide technical assistance and guidance to the State Traditional Knowledge Board, (13) commission studies and research on Traditional Communities (14)publish technical and statistical data, manuals and guides related to TK (15)examine IPR applications for misappropriation of TK (16)issuance and revocation of a license of use to the Accessor after assessing and approving the recommendation of the State TK Authority through the relevant Standing Committee (17) In consultation with the concerned State Authority, may from time to time notify any traditional knowledge or resource which is on the verge of extinction or likely to become extinct in the near future, notify them as endangered in the National Traditional Knowledge Register; and Traditional Knowledge and Resources thus notified shall be strictly regulated, including prohibition of access, initiating special conservation measures and any other appropriate steps to preserve the same. 14. Authentication of Orders and Decisions of the TKA: All orders and decisions of the Traditional Knowledge Authority shall be authenticated by the signature of the Chairperson or any other Member authorized by the Traditional Knowledge Authority in this behalf. 15. State Traditional Knowledge Board: Composition and functions: (1) Each State and Union Territory shall have a Traditonal Knowledge Board to be known as the ... name of the State or UT.... TK Board. (2) The State TK Board shall be established by the State Government with effect from the date of
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notification in the official gazette. (3) The State Government may designate as a transitional measure, any existing Board to function as State TK Board. (4) The State TK Board shall comprise of (1) A Commissioner of the State TK Board appointed by the State Government in consultation with the National TK Authority. (2) Members representing the Department of Handicrafts, Department of Ayush / Health, Department of Animal Husbandry, Department of Culture, Department of Tribal Affairs, Department of Environment and Forests, Dept of Commerce & Industry, State Industrial Corporation, State Agriculture Department, Department of Panchayati Raj, Zila Parishad heads, District Magistrates (3) Members representing the civil society including a renowned handicraft practitioner, a traditional medicinal practitioner, a farmers movement representative, a representative of a CSO, a practitioner of fine arts, an environmentalist, members of the traditional communities (4) The State Government may also constitute the TK Management Committees at the Districts for effective supervision of the Access and benefit sharing processes. Chapter 5 Regulation of access to traditional knowledge and informed consent: 16. Access to TK based activity and informed consent: (1) Accessor as defined under section 2(3) may access any TK with informed consent, Provided that member of a Traditional community may access any TK without informed consent for earning their livelihood.
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(2) No person referred to sub-section (3) shall without previous approval of the traditional community access any traditional knowledge occurring in India or resources relating thereto for research or for commercial utilization. (3) Persons who shall be required to obtain informed consent / prior informed consent of the traditional community include: (a) all accessors as described in Section 16(1), (b) a person who is not a citizen of India; (c) a citizen of India, who is a non-resident as defined in clause 30 of section 2 of the Income Tax Act 1961; (d) a body corporate, association or organization (i) not incorporated or registered in India; or (ii) incorporated or registered in india under any law for the time being in force which has any non-Indian participation in its share, capital or management (e) Traditional practitioners using TK for commercial utilisation Provided that where a traditional community is not identifiable or accessible such consent shall be sought from the Traditional Knowledge Authority. 17. Regulation of access to traditional knowledge and informed consent: (1) Any person desirous of accessing traditional knowledge or any component thereof shall apply to the Authority i.e. TKA in the prescribed form with the prescribed fee. (2) On receiving the application for access, the Authority i.e. TKA shall examine the application for compliance of formalities and whereupon said authority shall examine the application to check for registration of the traditional knowledge in the Traditional Knowledge Register. Provided that the TK Authority shall transfer the application relating to the Traditional knowledge associated with genetic resources to the National Bio-diversity Authority
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(3) Where the traditional knowledge is found to be registered in the Traditional Knowledge Register, then the TKA shall refer the said application to the appropriate State TK Board (s); Provided that if the traditional knowledge is registered in the name of one more traditional communities from at least three different states, then the process for obtaining informed consent and negotiation shall be initiated by the Authority, in consultations with all the State TK Boards concerned. (4) Where there are no State TK Boards and / or TK Management Committee, the Authority shall direct the State(s) concerned to set up the State TK Board(s) and / or TK Management Committee(s) within 6 months from the date of such direction; Provided that where the state fails to comply within the stipulated time, the State may request an additional time of a period no greater than 6 months to set up the State TK Board and / or the TK Management Committee; Provided further that where the State fails to comply altogether, the TKA shall facilitate the consultation between the traditional community(ies) and the applicant for issuance of the prior informed consent and negotiations for the access and benefit sharing agreement i.e. Mutual Agreed Terms. (5) On receiving the application, the State TK Boards shall refer the said application to the appropriate TK Management Committees and traditional communities. (6) On receiving the application the traditional communities shall inform the State TK Board of their willingness or unwillingness to participate in consultation on prior informed consent. (7) Where the traditional communities communicates their unwillingness to participate in consultation on prior informed consent to the State TK Board the said Board shall communicate the same to the TKA; whereupon the TKA shall communicate denial of access to the applicant. (8) Where the traditional communities communicate their willingness to participate in consultation on prior informed consent to the State TK Boards, the State TK Board concerned
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shall refer the application to the TK Management Committee. (9) The TK Management Committee shall in consultation with the said traditional community conduct a comprehensive assessment including assessment on sustainability of the resources, social and environmental implications and potential value of the traditional knowledge, and produce a report along with recommendations and a resource management plan; Provided that where the TK Management Committee requires any further information, it may require the applicant to provide further details regarding the proposed use of the traditional knowledge. (10) On receiving the comprehensive assessment report of the TKMC, the State TK Board shall facilitate consultation(s) among the applicant, the traditional community(ies) and the TK Management Committee(s) at the location(s). (11) Where there is no agreement on granting access to the applicant, the same shall be communicated by State TK Board to the TKA, who shall then communicate the denial of the access to the applicant. (12) Where there is a consensus on the granting of access to Traditional Knowledge(s), the State TK Board shall initiate the process for negotiating the terms and conditions of the access, use and benefit sharing of the Traditional Knowledge(s), taking into account the recommendations of the TK Management Committee; Provided that if there are more than one State TK Board, the same shall be communicated to the TKA and the process for negotiating shall be initiated by the TKA in consultation with all the concerned State TK Boards. (13) On agreement between the applicant and the traditional community, the latter shall affix their signatures on the prior informed consent form, and thereafter both parties shall affix their signatures on the agreement for access and benefit sharing. (14) Copies of the prior informed consent, agreement on access and benefit sharing and the Report of the TK Management
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Committee shall be submitted to the State TK Board. (15) On receiving the prior informed consent, the access and benefit sharing agreement and the report of the TK Management Committee, if any, the State TKA shall refer the same to the TKA with appropriate recommendations for issuance of the licence of use incorporating the prior informed consent and the terms and conditions of the access and benefit sharing agreement. (16) The TKA shall issue the License of Use after being satisfied that due processes under the law have been complied with, and the issuance of said License of Use shall not be against the national interest. 18. Regulation of access to traditional knowledge in the public domain not owned by any specific traditional community or owned by traditional community(ies) in more than three states (1) Where the traditional knowledge is already in the public domain and is not specifically owned by any particular traditional community or if the traditional community(ies) is/are spread in more than three states, then the willingness to issue a prior informed consent and negotiating an access and benefit sharing agreement shall be done by the TKA in consultation with the respective State TK Boards, TK Management Committee and traditional communities, wherever possible and recommendations made to the TKA. (2) The TKA shall, in consultation with the respective State TK Boards, TK Management Committee and traditional communities, wherever possible, conduct a comprehensive assessment including assessment on sustainability of the resources, social and environmental implications and potential value of the traditional knowledge, and produce a report along with recommendations, resource management plan along with an access and benefit sharing plan; Provided that where the TKA requires any further information, it may require the applicant to provide further details regarding the proposed use of the traditional knowledge. (3) The TKA shall exercise its discretionary powers with regard
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to the allowance of access to particular traditional knowledge on the basis of report(s) submitted by the State TKA. (4) Where allowance of access to said traditional knowledge is granted by the Authority, the prior informed consent along with access and benefit sharing agreement shall be signed between the TKA and the applicant; whereupon the TKA shall issue the license of use. (5) Where allowance of access to said traditional knowledge is refused by the TKA, the same shall be communicated to the applicant within reasonable time.
19. Regulation of knowledge -
access
to
non-registered
traditional
(1) Where an application is received under section 17(2), and the traditional knowledge is not registered, the TKA shall evaluate the traditional knowledge for its availability in public domain. (2) Where the said traditional knowledge is found to be in public domain, the State TKA shall conduct an assessment of the said traditional knowledge including sustainability of the resources, social and environmental implications and the current and potential value of the traditional knowledge, and recommend the said traditional knowledge to the TKA for registration in the Traditional Knowledge Register as PUBLIC traditional knowledge, along with the said assessment report; Provided that if the said traditional knowledge is not in public domain, the TKA shall refer the application to all / relevant State TK Board(s). (3) On receiving the recommendation for registration of traditional knowledge in public domain and the assessment report under Section 19(2) the TKA shall register the said traditional knowledge in the Traditional Knowledge Register and commence negotiations as specified in section 18 (4) On receiving the referral from the TKA under 19(2) the State TK Board(s) shall identify the appropriate traditional community(ies)
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practising the said traditional knowledge through the TK Management Committee(s) and communicate the same to the TKA for registration of the traditional knowledge as either PUBLIC or CONFIDENTIAL; Provided that such information shall be registered only with the consent of the traditional community. (5) Where the traditional knowledge is PUBLIC and is identified with one or more traditional community(ies) of more than three states, the State TKA shall conduct an assessment as stated in 19(2) and refer the application to the TKA along with the assessment report, whereupon the TKA shall start proceedings as in section 18(2); Provided that where the traditional knowledge is CONFIDENTIAL, the State TKA shall recommend to the TKA to register the said traditional knowledge as CONFIDENTAL in the Traditional Knowledge Register, and shall refer the application back to the concerned State TK Board for obtaining prior informed consent and access and benefit sharing agreement under section 18(2) (6) Any third party including a civil rights group may approach the chairperson with information of a traditional knowledge or a component thereof which may include information about its abuse and /or misuse and /or misappropriation, whereupon the Chairperson shall refer the matter to the State TKA to investigate the accuracy of such information, evaluate the so identified traditional knowledge and register the same, after obtaining the required consent from the traditional community concerned if so identifiable, and after appropriate classification as PUBLIC, CONFIDENTIAL and/or recommend action in case of abuse and/or misuse and/or misappropriation. 20. Licence to Use -(1) The TKA may issue a non assignable and nontransferable licence to use to an applicant, in response to a written application only and after following the prescribed procedures, to access a specified traditional knowledge, subject to the conditions stipulated in the said licence for a period not less than 1 year and not greater than 3 years, the said licence may be renewed for a further period not
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exceeding 3 years. (2) The Licence to Use issued to an accessor shall be published in the Official Gazette as well as in the vernacular press and along with the supporting documents, including the prior informed consent, various assessment reports and the agreement between the parties concerned shall be published on the website of the TKA as soon as possible. 21. Opposition and Revocation: (1) Any person who has an interest in the traditional knowledge concerned may, within six months of the issuance of License to Use or the publication of the agreement on the website of the TKA, make an application for opposition or revocation of the agreement and the licence to use, to the TKA in the prescribed manner. (2) On receipt of such notice of opposition / revocation, the TKA shall refer the matter to the State TKA for reexamination of the Agreement and the grant of licence. (3) The State TKA shall re-examine the agreement taking into consideration all information made available to it by both parties, in writing and orally, and after detailed hearing of both parties, submit a report with recommendations to the TKA. (4) On receipt of the re-examination report of the State TKA and after giving the accessor and the opponent an opportunity of being heard, the Chairperson shall pass an order to maintain or amend or revoke the agreement and / or the licence to use. 22. Duties of Accessor after issue of License to Use: (1) The accessor has the responsibility to inform the TKB of any change in address and/or in his legal status, if any, within two weeks of such an event. (2) In case of misuse of Traditional Knowledge, the Licence to Use shall be revoked by the TKB and the
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accessor shall be liable under Rule 18 herein. 23. Sharing of Benefits (1) Sharing of all benefits arising out of the access to the traditional knowledge and /or its consequential commercial use shall be as negotiated between the traditional community and the applicant and facilitated by the State TK Board through the TK Management Committee (s). (2) All benefit share shall directly be paid to the traditional community by the applicant and shall be reported annually to the State TK Board, concerned and the TKB by both the applicant and the traditional community; Provided such benefits that arise from an agreement between the TKA and the applicant shall accrue to the Traditional Knowledge Fund. (3) Details of all the reported benefits shall be published in the Gazette and website of the TKA as soon as possible. 24. Access Fee (1) The TKA shall, at the time of approving the license to use, impose an access fee based on the negotiations between the traditional community and the accessor. (2) The access fee shall be deposited by the accessor at the Traditional Knowledge Fund established under rule 11.
25. Traditional Knowledge Register (1) The Traditional Knowledge Authority shall maintain a Traditional Knowledge Register to register traditional knowledge and shall accordingly mark such knowledge as either Public or Confidential. (2) The Traditional Knowledge register shall be based on the
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(3)
(4)
(5)
(6)
(7)
(8)
sectoral classification of the Traditional knowledge like Traditional medicine, traditional agricultural practices, traditional cultural expressions and the like as notified by the central government from time to time. The components of traditional knowledge marked Confidential are of confidential nature and may be so marked on request of the community that applies for registration, or if the TKA deems so The TKA shall register information including the name, location, description of the traditional knowledge, as is revealed by the Traditional Community or in the already documented system, along with the names of the practicing traditional community or communities in the prescribed format as and when such information regarding the concerned traditional knowledge is intimated to the TKA by the TC or Accessor or by the suo moto efforts of the TKA or any of the Regional Offices. The TKA shall also register the names, address(es) of the Accessor(s) along with the nature of use(s) of the accessed traditional knowledge and shall update such information from time to time The TK Register may be maintained in a form wholly or partly in written or digital form or in any other form that captures the essence of the traditional knowledge. All databases pertaining to traditional knowledge existing at the time the enactment of this law shall form a part of the TK Register. Subject to the superintendence and direction of the Central Government the Register shall be kept under the control and management of the Chairperson.
(9) Additonally, the State TK Office may maintain a state traditional knowledge register containing local information on the traditional knowledge or community rights of the concerned state only,
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Provided that, such information shall be intimated to the National TK Authority for entry into the main Traditional Knowledge Register.
26. Procedure of registration of Traditional Knowledge. (1) A traditional community desirous of registering their traditional knowledge may approach any office of the Traditional Knowledge Authority/Board either at the National, State level for registration of their traditional knowledge; whereupon the office of the Traditional Knowledge Authority so approached shall apply its resources to register those components of the said traditional knowledge, as has been desired by them, in whatever manner of recordal that is best feasible and forward the collated information under confidentiality to the Chairperson of the Traditional Knowledge Authority. (2) The Chairperson shall, on receiving the said confidential information under sub-section (1), institute a suitable Standing Committee in the prescribed manner which shall evaluate the components of the traditional knowledge, examine all components of the said traditional knowledge including the verbal, non-verbal and written components and designate them as public or confidential as is applied by the TC, for appropriate entry into the Traditional Knowledge Register. (3) Any third party including a civil rights group may approach the Chairperson with information of a traditional knowledge or a component thereof which may include information about its abuse, whereupon the Chairperson shall institute a Standing committee empowered to investigate the accuracy of such information, evaluate the so identified traditional
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knowledge and register the same after appropriate classification and/or recommend action in case of misuse. (4) The State Traditional Knowledge Board may suo moto take up the exercise of identifying, evaluating and registering a hitherto unregistered traditional knowledge, the associated traditional community(ies) and the practitioners thereof, under intimation to the Chairperson of the Traditional Knowledge Authority (5) Existing and proposed databases including Traditional Knowledge Digital Library and the Geographical Indications registered in the Register under the Geographical Indications of Goods (Registration and Protection) Act 1999 shall form a part of the Traditional Knowledge Register subject to the existing conditions imposed on their access and benefit sharing. (6) The decision of the Traditional Knowledge Authority on the license of use shall be published in the Official Journal Gazette. 27. Constitution of Traditional Knowledge Fund -(1) There shall be constituted a fund to be called the Traditional Knowledge Fund and there shall be credited thereto (a) any grants and loans made to the TKB for specific needs of the implementation of the Rules; (b) all charges and access fees received by the TKB; (c) all monetary benefits that accrue to the TKB upon an agreement signed for access between TKB and the applicant; and (d) all sums received by the TKB from such other sources as may be decided upon by the Central Government. (2) The Fund shall be used for the protection, conservation and development of traditional knowledge and the traditional communities which shall include
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(a) channeling benefits to the benefit claimers; (b) conservation and sustainability of traditional resources, welfare and livelihood support for communities and traditional traditional practitioners; (c) ecological and cultural restoration programmes specifically related to traditional knowledge practices and such regions / sectors such as traditional medicine, health and educational practices, farming and other traditional livelihoods; (d) socio-economic, ecological and cultural development in consultation with the State TK Board(s), TK Management Committee(s) and traditional community (ies) concerned; (e) recognition and accreditation of traditional practitioners; and (f) promoting the use and practice of common public domain traditional knowledge such as home remedies, customary healing and agricultural practices etc especially in formal and non-formal educational systems and among traditional communities. 28. National Strategies, Plans, etc., for Conservation, Development, etc., of Traditional Knowledge and Resources (1) The TKA shall develop national strategies, plans, programmes for the conservation, development and sustainable use of traditional knowledge including (a) measures for identification and monitoring of areas rich in traditional knowledge, (b) incentives and support systems for traditional communities and traditional practitioners, and (c) incentives for training and public education to increase awareness with respect to traditional knowledge. (2) Where the TKA has reason to believe that any area or traditional community rich in traditional knowledge and resources is being threatened by overuse, abuse or neglect, it shall issue directives to the State Government
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concerned to take immediate ameliorative measures and also offer the State Government concerned technical and other assistance that is possible to be provided. (3) The TKA shall recommend, as far as practicable wherever it deems appropriate, the integration, conservation, promotion and sustainable use of traditional knowledge and resources into relevant sectoral or cross-sectoral plans, programmes and policies. (4) The TKA shall undertake measures wherever necessary, (a) for assessment of socio-cultural, economic and environmental impact of that project which is likely to impact or have adverse effect on traditional knowledge and traditional practices, with a view to avoiding or minimizing such effects and provide for public participation in such assessment; and (b) to prevent the risks associated with the use of any technology or process that is likely to impact the conservation and continuum of the use and practice of traditional knowledge.
29. Traditional Knowledge Facing Extinction -(1) Without prejudice to the provisions of any other law for the time being in force, the TKB, in consultation with the State TK Board(s) concerned, may from time to time notify any traditional knowledge or resource which is on the verge of extinction or likely to become extinct in the near future on account of (a) depletion of resources to sustain the traditional knowledge, (b) unwillingness of the traditional community to practice the traditional knowledge due to lack of opportunities, and (c) usurpation of the traditional knowledge for commercial gains, and prohibit or regulate access thereto for any purpose and take appropriate steps to preserve and ensure continuum of the same. (2) The TKB shall facilitate development of plans in
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consultation with traditional communities to protect, regenerate and propagate the traditional knowledge facing extinction, along with detailed conservation measures. The TKB will also earmark dedicated funds to ensure the continued practice of the traditional knowledge facing extinction. 30. Traditional Knowledge Heritage Zones -(1) Without prejudice to any other law for the time being in force, the TKB, in consultation with the State TK Board concerned, and on application from a TK Management Committee, notify in the Official Gazette, areas of importance as traditional knowledge heritage zones under the Act. (2) The TKB, in consultation with the State TK Board concerned, shall prescribe regulations and guidelines for the management and conservation of all the traditional knowledge heritage zones.
Chapter 6
Finance accounts and audits of TKB 31. Grants or loans by the Central Government: The Central Government may, after due appropriation made by Parliament by law in this behalf, pay to the Traditional Knowledge Authority by way of grants or loans such sums of money as the Central Government may think fit for being utilised for the purposes of this Act. 32. Grants or loans by the State Government: The respective State Government may, after due appropriation made by Parliament by law in this behalf, pay to the Traditional Knowledge Authority by way of grants or loans such sums of money as the Central Government may think fit for being utilised for the purposes of this Act. 33. Budgets Accounts and Audit: (1) The Traditional Knowledge Authority shall prepare a
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budget, maintain proper accounts and other relevant records (including the accounts and other relevant records of the Traditional Knowledge Fund) and prepare an annual statement of account in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India. (2) The accounts of the Traditional Knowledge Authority shall be audited by the Comptroller and AuditorGeneral of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Traditional Knowledge Authority to the Comptroller and AuditorGeneral of India. (3) The Comptroller and Auditor-General of India and any other person appointed by him in connection with the audit of the accounts of the Traditional Knowledge Authority shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of the Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Traditional Knowledge Authority. (4) The accounts of the Traditional Knowledge Authority as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government. Chapter 7 Duties of Central and State Governments 34. Central Government To Develop National Strategies, plans, etc., for conservation etc., of traditional knowledge and resources: (1) The Central Government shall develop national strategies, plans, programmes for the conservation, (promotion?) and sustainable use of traditional
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knowledge including measures for identification and monitoring of areas rich in indigenous knowledge, incentives and support systems for traditional and indigenous communities and traditional practioners, incentives for, training and public education to increase awareness with respect to traditional knowledge. (2) Where the Central Government has reason to believe that any area or traditional community rich in traditional knowledge and resources is being threatened by overuse, abuse or neglect, it shall issue directives to the concerned State Government to take immediate ameliorative measures; offering such State Government any technical and other assistance that is possible to be provided or needed. (3) The Central Government shall, as far as practicable wherever it deems appropriate, integrate the conservation, promotion and sustainable use of traditional knowledge and resources into relevant sectoral or cross-sectoral plans, programmes and policies. (4) Without prejudice to the provisions of any other law for the time being in force the Central Government in consultation with the concerned State Government, may from time to time notify any traditional knowledge or resource which is on the verge of extinction or likely to become extinct in the near future and prohibit or regulate access thereto for any purpose and take appropriate steps to preserve the same. (5) The Central Government shall undertake measures, (i) wherever necessary, for assessment of environmental impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimize such effects and where appropriate provide for public participation in such assessment; (ii) to prevent the risks associated with the use and release of genetically modified organisms resulting
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from biotechnology likely to have adverse impact on the conservation and sustainable use of biological diversity and human health. (6) The Central Government shall endeavour to respect and protect the knowledge of local people relating to biological diversity, as recommended by the Traditional Knowledge Authority through such measures, which may include registration of such knowledge at the local, State or national levels, and other measures for protection, including sui generic system. Chapter 8 35. Offences, Penalties and Procedure (1) Offences : For the purposes of this Act the following shall be considered as offences: (a) Whoever contravenes or attempts to contravene or abets the contravention of any of the provisions of this Act shall be deemed to have committed an offence and shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the damage caused exceeds ten lakh rupees such fine may commensurate with the damage caused, or with both. (b) Penalty for contravention of directions or orders of Central Government , State Government, Traditional Knowledge Authority: If any person contravenes any direction given or order made by the Central Government, the State Government or the Traditional Knowledge Authority for which no punishment has been separately provided under this Act, he shall be punished with a fine which may extend to one lakh rupees and in case of a second subsequent offence, with fine which may extend to two lakh rupees and in the case of continuous
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contravention with additional fine may extend to two lakh rupees everyday during which the default continues. (c) Offences to be non-cognizable and non-bailable: The offences under this Act shall be cognizable and nonbailable. (d) Offences by companies: (1) Where an offence or contravention under this Act has been committed by a company, every person who at the time the offence or contravention was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence or contravention was committed without the knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. (2) Notwithstanding anything contained in this subsection (1), where an offence or contravention under this Act has been committed by a company and it is proved that the offence or contravention has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence or contravention and shall be liable to be proceeded against and punished accordingly. Explanation For the purposes of this section, (a) company means any body corporate and includes a firm or other association of individuals: and (b) director in relation to a firm, means a partner in the firm
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36. Protection of action taken in good faith: No suit, prosecution or other legal proceedings shall lie against any authority in respect of anything which is in good faith done or intended to be done under this Act or the rules or regulations made there under. 37. Cognizance of offences: No Court shall take cognizance of any offence under this Act except on a complaint made by (a) the Central Government or any authority or officer authorized in this behalf by that Government; or (b) any benefit claimer who has given notice of not less than thirty days in the prescribed manner, of such offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid. Chapter 9 Miscellaneous 38. Documents open to public inspection: (1) The following documents, subject to such conditions as may be prescribed, be open to public inspection at the Traditional Knowledge Authority, namely:(a) the register and any document upon which a public entry in the register is based; provided, the entries marked in the Register as confidential such as traditional knowledge of an indigenous community and those marked for limited access such as TKDL shall not be made available to the public; (b) every notice of opposition to the registration of a traditional knowledge, application for rectification before the Chairperson, counterstatement thereto, and any affidavit or document filed by the parties in any proceedings before the Chairperson;
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(c) such other documents as the Central Government may, by notification in the Official Gazette, specify. (2) Any person may, subject to such conditions as may be prescribed, on an application to the Chairperson and on payment of such fee as may be prescribed, obtain a certified copy of any entry in the register or any document referred to in sub-section (1).
39. Annual Report of Traditional Knowledge Authority: (1) The Traditional Knowledge Authority shall prepare, in such form and at such time each financial year as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and furnish, to the Central Government, before such date as may be prescribed, its audited copy of accounts together with auditors report thereon. (2) The Central Government shall cause the annual report and auditors report to be laid, as soon as may be after they are received, before each House of Parliament. 40. The TK Authority to be bound by the directions of the Central Government: (1) Without prejudice to the foregoing provisions of this Act, the Traditional Knowledge Authority shall, in the discharge of its functions and duties under this Act, be bound by the policy of the Central Government communicated in writing to it from time to time: Provided that the Traditional Knowledge Authority shall, as far as practicable, be given opportunity to express its views before any direction is given under this sub-section. (2) The decision of the Central Government whether a question is one of policy or not shall be final.
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41. Settlement of issues between State TK Offices: (1) If a dispute arises between the one or more State Traditional Knowledge Authority the matter shall adjudicated upon by the Chairperson of the Traditional Knowledge Authority 42. Powers of the Traditional Knowledge Authority: (1) The Traditional Knowledge Authority shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of the following matters, namely:(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witness or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application or any order passed by it ex parte; (h) any other matter which may be prescribed. (2) Every proceeding before the Traditional Knowledge Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code and the Traditional Knowledge Authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. 43. Members of the TK Authority to be deemed as Public Servants:
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All members, officers and other employees of the Traditional Knowledge Authority shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code. 44. Appeal: 1. Any person, aggrieved by any proceeding or order of the Traditional Knowledge Authority under this Act, may file an appeal to the Intellectual Property Appellate Board constituted under the Patents Act 1970. 2. Any person aggrieved by the decision of the IPAB, may file an appeal against that decision to the Supreme Court within thirty days from the date of communication to him, of the proceeding or order of the Traditional Knowledge Authority, as the case may be: Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. (1) Execution of Proceeding or Order: Every proceeding or order made by the Traditional Knowledge Authority under this Act or the order made by the IPAB or Supreme Court in any appeal against any proceeding or order of the Traditional Knowledge Authority shall, on a certificate issued by any officer of the Traditional Knowledge Authority or the Registrar of the Supreme Court, in the same manner as a decree of that court. 45. Power of Central Government to make rules: (1) The Central Government may, by notification in the
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Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:(a) terms and conditions of service of the Chairperson and members under section ....; (b) powers and duties of the Chairperson under section .........; (c) procedure under ..in regard to transaction of business at meetings; (d) form of application and payment of fees for undertaking certain activities under section .....; (e) the form and manner of making an application under of section ...; (f) form of application and the manner for transfer of traditional resource or knowledge under section ....; (g) form in which, and the time of each financial year at which, the annual report of the Traditional Knowledge Authority shall be prepared and the date before which its audited copy of accounts together with auditors report thereon shall be furnished under section ......; (h) form in which the annual statement of account shall be prepared under section ....; (i) the time within which and the form in which, an appeal may be preferred, the procedure for disposing of an appeal and the procedure for adjudication, under section ....; (j) the additional matter in which the Traditional Knowledge Authority may exercise powers of the civil court....; (k) the manner of giving notice under section .....; (l) any other matter which is to be, or may be, prescribed, or in respect of which provision is to be made, by
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rules. (3) Every rule made under this section and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation. 46. Power to make regulations: The Traditional Knowledge Authority shall, with the previous approval of the Central Government, by notification in the Official Gazette, make regulations for carrying out the purposes of this Act. 47. Power to remove difficulties: (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, not inconsistent with the provisions of this Act, remove the difficulty; (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
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Nlsiu TK Bill Draft

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TheProposedTraditionalKnowledgeLegislation2010IPRChair,CIPRANLSIU

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Rights and Duties of the Traditional Communities: Chapter 3

19. Regulation of knowledge -

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