Defining an Intellectual Property Right on Traditional Medicinal Knowledge: A Process-Oriented Perspective

The focus of this paper is to find an operative definition of traditional knowledge for purposes of drug research and development. Starting out with the international debate on Art. 8(j) of the Convention on Biological Diversity, 1993 and the Agreement on Trade Related Aspects of Intellectual Property Rights, 1995, it argues that the critical elements of any sui generis system should be rights' definitions that clearly identify the nature of information that is to be protected as traditional knowledge and the set of beneficiaries that are to exercise the right. Using the theory of cumulative innovation in biotechnology-based pharmaceutical research, the paper derives a justification for an intellectual property right for traditional medicinal knowledge that is based on its actual/ potential contribution to pharmaceutical research. Such a right, apart from clearly giving us the basis for demarcating communities/ groups of people who ought to exercise it, also helps achieve three incentive effects - the incentive to reveal information that is useful for the society at large, the incentive to keep such knowledge pools intact and lastly, the incentive to conserve biodiversity. These incentive effects provide us with a more robust basis to argue for a sui generis right over traditional medicinal knowledge