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Beyond Intellectual Property Rights: State Ownership Versus Community Rights over Traditional Knowledge of the Tribal Communities in India
One school of statutory state environmental laws argue that the indigenous and local communities are alienated from their traditional knowledge on bio-resources, access to genetic resources and the fair and equitable sharing of benefits arising from their utilization under the Intellectual Property and Access to Benefit Sharing (ABS) paradigm. These are designed to protect commercial inventions and mostly grant individual and exclusive rights, reflects western laws, there are gaps in their alignment with indigenous peoples’ perspectives, needs and aspirations. Contrary to this approach, the present paper is based on an anthropological fieldwork among the Munda and Oraon tribal communities in the state of Jharkhand, India to prove that the customary principles of reciprocity, duality and equilibrium is seriously lacking in protecting traditional knowledge on forest, plant verities and genetic resources. Secondly, it critically examines the process of privatization of community knowledge due to present state laws in India and how the sovereign rights of the state over natural and genetic resources contradicts rights of the indigenous communities. Finally it argues for customary sui generis system consistent with indigenous and local communities, determining rights over resources, procedures for PIC and equitable sharing. Rather than advocating for state ownership over natural resources as seen by the IPR and ABS paradigm, customary laws often have a strong spiritual character, being closely interlinked with belief systems associated with natural resources and landscapes. They are often based on fundamental values of respect for nature, social equity and harmony, and serving the common good.