Here the topic is to understand the ownership of genetic resources and Associated traditional knowledge which is mentioned in the CBD and Nagoya protocol , if it is mentioned then in what provision it is defined .Here also discuss about the main provisions which are included under the CBD and Nagoya protocol related to the ownership basis.Here the main problem is no one is to find out the issue related to ownership regarding GR and TK.

What is the Nagoya protocol?

The protocol is under the United Nations Convention on Biological Diversity (CBD) ,which is an international agreement focused on protecting biodiversity . it is adopted in 2010 .

Article 1 of the protocol defines the objective of the protocol.

The objective of this Protocol is the fair and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.

Main goal of the protocol as per the Article 1 is to ensure that the benefits derived from using genetic resources are shared in a fair and equitable manner. Profits gained from using genetic resources should be distributed justly among all parties involved and sharing the technologies needed to utilize genetic resources effectively in a way that is fair and just.

What are genetic resources?

Article 2 of CBD defines Genetic resources means Genetic material of actual or potential value .

Traditional knowledge

TK is a living body of knowledge that is developed ,sustained and passed on from generation to generation within a community , often forming part of its cultural or spiritual identity . eg plao noi plant to treat ulcers ,hoodia plant to stave off hunger while out hunting.

TK in simple words it is the knowledge, know how , skills innovations or practices , that are passed between generations in a traditional context and that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or custodian

TK is created and maintained over time within communities and is transmitted through generations.This knowledge is specific to particular groups of people.TK is closely linked to the cultural and spiritual life of the community, helping to define their identity.

Examples: there are so many traditional healers there , one of them is palonoi, which is used for treating ulcers , and people use the hoodie plant to stave off hunger while hunting .

Prior informed consent (PIC)
Is permission given by the Competent National Authority (CNA) of a country to an individual or institution seeking to obtain access to genetic resources, in line with an appropriate legal and institutional framework

Mutually agreed terms (MAT)
Is an agreement reached between the providers of genetic resources and users on the conditions of access and use of the resources, and the benefits to be shared between both parties .

The Convention on Biological Diversity (CBD)

Introduction to the Convention and its objectives.
The biological resources are important for humanity's economic and social development.Biodiversity is needed for everyone.There is a huge threat faced by biodiversity ,which leads to species extinction . In response to these threats, the United Nations Environment Programme (UNEP) initiated efforts to explore the need for an international agreement on biodiversity. In November 1988, UNEP convened a group of experts to discuss this need.In May 1989, it established the Ad Hoc Working Group of Technical and Legal Experts to prepare an international legal instrument for the conservation and sustainable use of biological diversity.

This framework was to consider the equitable sharing of costs and benefits between developed and developing countries, as well as support for local innovations.By February 1991, the working group had evolved into the Intergovernmental Negotiating Committee. This committee's efforts led to the Nairobi Conference on 22 May 1992, where the agreed text of the Convention on Biological Diversity was adopted.

The Convention was opened for signature on 5 June 1992 at the Rio Earth Summit. It remained open for signatures until 4 June 1993, during which 168 countries signed the Convention. It officially came into force on 29 December 1993, 90 days after the 30th country ratified it.The CBD represents a significant global commitment to sustainable development. It aims to conserve biological diversity, promote the sustainable use of its components, and ensure the fair and equitable sharing of benefits from the use of genetic resources.

The Convention on Biological Diversity (CBD) entered into force on 29 December 1993. It has 3 main objectives in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

Nagoya Protocol
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity is a supplementary agreement to the Convention on Biological Diversity. It provides a transparent legal framework for the effective implementation of one of the three objectives of the CBD is the fair and equitable sharing of benefits arising out of the utilization of genetic resources.

Main Purpose of the Nagoya Protocol is To prevent biopiracy, when people take genetic resources from communities without their consent or without fairly compensating them and To promote conservation and sustainable use of biodiversity .

The Nagoya Protocol applies to genetic resources that are covered by the CBD, and to the benefits arising from their utilization. The Nagoya Protocol also covers traditional knowledge (TK) associated with genetic resources that are covered by the CBD and the benefits arising from its utilization.

"Utilization of genetic resources" as defined in Article 2 of the Nagoya Protocol means any research and development activities focused on the genetic and biochemical aspects of genetic resources, particularly through the use of biotechnological methods. This definition is crucial for ensuring that such activities are conducted in accordance with the Protocol's objectives of fair and equitable benefit-sharing.

Scope of the protocol defined in Article 3 and This Protocol shall apply to genetic resources within the scope of Article 15 of the Convention and to the benefits arising from the utilization of such resources. This Protocol shall also apply to traditional knowledge associated with genetic resources within the scope of the Convention and to the benefits arising from the utilization of such knowledge.

The Nagoya protocol extends to traditional knowledge that is relevant to genetic resources and is held by indigenous and local communities. This traditional knowledge must be utilized in accordance with the CBD.

The Nagoya Protocol applies to all genetic resources that fall under the purview of Article 15 of the CBD. This means any genetic material of actual or potential value found within a country's jurisdiction and accessed with that country's consent.

The provisions related to GR and TK under CBD:
The CBD recognizes the importance of traditional knowledge held by indigenous and local communities, especially as it pertains to the conservation and sustainable use of biological diversity. but in the CBD few articles only mentioned about the indigenous and local communities that are Article 8(j) and Article 10( c) .

Article 15 of the Convention on Biological Diversity (CBD) deals with access to genetic resources. It states that genetic resources are subject to the sovereignty of the countries where they are found and that access to these resources should be granted on mutually agreed terms and subject to prior informed consent of the country providing the resources.

Here this Article is defined about sovereign rights over natural resources and those countries who have power to access resources should be subject to the prior informed consent of the country and mutually agreed terms.The benefits arising from the utilization of genetic resources should be shared in a fair and equitable way with the country providing these resources and also facilitate access to genetic resources for environmentally sound uses and to promoting and facilitating access for research purposes.

Article 10 of the CBD focuses on the sustainable use of biological diversity components. It encourages parties to integrate biodiversity considerations into national decision-making, adopt measures to reduce adverse impacts, support traditional practices of local communities, foster cooperation between various sectors, and implement incentive measures for conservation and sustainable use.

Article 10(c)-Support Local Populations -Contracting party should protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements and also recognizes the role of local communities in conserving biological diversity through their traditional practices .

Here it says that each country wants to ensure about use of biological resources in accordance with local communities.

Article 8 (j) of the CBD defines Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices;

This article addresses the importance of traditional knowledge, innovations, and practices of indigenous and local communities in the conservation and sustainable use of biological diversity. It outlines the responsibilities of parties to respect, preserve, and maintain this knowledge and ensure that it is appropriately shared and utilized. It also Emphasizes the importance of respecting, preserving, and maintaining knowledge, innovations, and practices of indigenous and local communities.Promotes wider application of traditional knowledge with the approval and involvement of the knowledge holders.Ensures equitable sharing of benefits arising from the utilization of such knowledge

This is the only article which discussed about TK and how to use the resources in correct manner also those who are giving such resources make sure that giving respect for them.

The provisions related to GR and TK under Nagoya Protocol:
Main issue is whether reporting any of the article related to TK , here the Articles 6,5,7,12 are important articles.

Article 7 and 12 mentioned about TK .

Article 6 Of Protocol
Access to Genetic Resources : Countries have sovereign rights over their natural resources, including genetic resources. Access to genetic resources must comply with the domestic laws and regulations of the provider country. Before accessing genetic resources, the user must obtain explicit permission from the provider country, unless the country has established different provisions.

Para 2 mentioned about indigenous and local communities- Each contracting party shall take measures to make sure that, when someone wants to access genetic resources that belong to indigenous or local communities, they must first get permission from those communities

Article 5: Fair And Equitable Benefit Sharing
Para 1 : Fair and Equitable Benefit-Sharing with Provider Countries -The provisions of the Convention on Biological Diversity (CBD) that address access to genetic resources and benefit-sharing.,Utilization of genetic Resources ,The sharing is with the country that provided the genetic resources, which can be the country of origin or a country that acquired the resources in compliance with the CBD.The terms of benefit-sharing must be negotiated and agreed upon by both the provider and user parties.

Para 2: Benefit-Sharing with Indigenous and Local Communities - Benefits must be shared with communities that hold genetic resources, respecting their established rights under domestic law.Terms of benefit-sharing with communities must be negotiated and agreed upon.

Para 3: Implementation of Paragraph 1- To implement paragraph 1 above, each Party shall take legislative, administrative or policy measures, as appropriate.

Para 4: Types of Benefits -Benefits may include monetary and non-monetary benefits, including but not limited to those listed in the Annex.(The Annex of the Nagoya Protocol provides a non-exhaustive list of possible benefits.)

Para 5: Benefit-Sharing for Traditional Knowledge-Countries must adopt measures to ensure benefit-sharing for traditional knowledge. Benefits arising from the use of traditional knowledge linked to genetic resources must be shared with the communities that hold this knowledge.Ensures that the sharing of benefits is just and equitable. Terms of benefit-sharing must be negotiated and agreed upon with the knowledge-holding communities.

Article 7: Access to Traditional Knowledge Associated with Genetic Resources: Each Party (country) must take appropriate measures, in line with its domestic laws, to ensure that traditional knowledge associated with genetic resources, which is held by indigenous and local communities, is accessed only with the prior and informed consent or approval and involvement of these communities. Additionally, it requires that mutually agreed terms be established between the parties involved.

Article 12: Traditional Knowledge Associated with Genetic Resources:
Para 1:When fulfilling their obligations under the Protocol, countries must consider and respect the customary laws, community protocols, and procedures of indigenous and local communities regarding traditional knowledge associated with genetic resources. This consideration should be in accordance with domestic laws .

Para 2: Countries, with the relevant indigenous and local communities, must set up systems to inform potential users of traditional knowledge associated with genetic resources about their responsibilities. This includes using resources like the Access and Benefit-sharing Clearing-House to provide information on how to access traditional knowledge and ensure the fair and equitable sharing of benefits from its use.

Para 3: Parties shall endeavor to support, as appropriate, the development by indigenous and local communities, including women within these communities, of:

• Community Protocols: Guidelines for how traditional knowledge associated with genetic resources should be accessed and how benefits should be shared.
• Minimum Requirements for Mutually Agreed Terms: Basic standards to ensure fair and equitable sharing of benefits from the use of traditional knowledge.
• Model Contractual Clauses: Model contractual clauses for benefit-sharing arising from the utilization of traditional knowledge associated with genetic resources.

Holders of TK
The central issue over the protection of TK is the identity of owners . Generally the protection should primarily benefit TK holders in particular the indigenous peoples and local communities that develop, maintain and identify culturally with them and seek to pass them on between generations.

TK/TCEs are generally regarded as collectively originated and held, so that any rights and interests in this material should vest in communities rather than in individuals, including in cases where TKTCEs are developed by an individual member of a community. In some instances though, beneficiaries may also include recognized individuals within the communities, such as certain traditional healers or individual farmers working within the community. Typically, this recognition arises through customary understandings, protocols, laws or practices.

According to WHO , up 80 per cent of the world's population depends on traditional medicine for its primary health needs. While the high cost of pharmaceuticals is a factor in this, for many treatment traditional medicine is preferred, even by urban populations.Some traditional medicines are used in biomedical research, suggesting that they may constitute a source of income not just as drugs in themselves but as the sources of chemical substances that may form the basis of new pharmaceuticals.

Pharmaceutical companies and research institute are using these resources to increase economical value not for the benefits of society.while using these resources none of them give compensation to the real owners of indigenous and local communities. Because no one is respecting their knowledge .

Another concern regarding GR and TK Are whether they are comes under IP or IP protection or under collective property?
In my perspective ,Ip is accepting new invention,new things,they not accept old knowledge because it is already in public domain.
Here it is very clear by the above provisions which we discussed , GR and TK are existing natural resources they are already in public.so it will not comes under IP

May be the invention or any new things make by using the resources might be comes under IP protection in case of patent work or other works .

According to section 3 of patents act 1970 ,what are not inventions ; section 3(p) of patents Act ; an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components or components.

Conclusion
GR and TK are collective property , so we should give collective ownership. It should not come to private ownership.