The application of IPRs over TRM may facilitate sharing in the benefits derived from the commercial exploitation of such knowledge. However, if the protection of knowledge is through IPRs held by third parties (as opposed to healers/communities who have developed such knowledge), legally binding mechanisms to ensure benefit sharing need to be established. Otherwise such a sharing would be exclusively based on the will of the IPRs owner. Mechanisms of that kind may be incorporated in IPRs law.

For instance, the Indian Plant Variety Protection law, passed in August 2001, has established that in order to ensure equitable sharing of benefits, the use of farmers’ varieties to breed new varieties will have to be paid for. Revenue is to flow into a National Gene Fund. This money is to be collectively, rather than individually, accessed by farming communities (exceptions can be made where individuals are clearly identified as breeders of specific varieties). Further, sections 19 and 21 of the Indian Biodiversity Bill mandate the approval of the National Biodiversity Authority (NBA) before access to genetic resources takes place. While granting approval, the NBA could impose terms and conditions to secure equitable sharing of benefits. Section 6 provides that anybody seeking any kind of intellectual property rights on research based upon biological resource or knowledge obtained from India, needs to obtain the prior approval of the NBA.

A benefit-sharing regime needs not to be grounded on the existence and enforcement of IPRs. It may rather operate according to the model established by the CBD with regard to the access and use of biological resources¹⁷⁶, or to other specific arrangements. An example of benefit sharing carried out outside IPRs is provided by the AICRPE project in India, in relation to a plant identified as Trichopus zeylanicus travancoricus (and called ‘Arogyapacha’, or “evergreener of health”). This plant has been, traditionally used by the Kanis tribe¹⁷⁷, with antifatigue and immuno-enhancing properties. Based on the lead from the Kani tribe, a scientifically validated and stadardised herbal formulation (‘Jeevani’) was developed. The technology was transferred to a pharmaceutical company for commercial production. The Kani tribe will receive 50 per cent of the royalties paid by the company (Pushpangadan, 2002).

¹⁷⁶ It should be noted, however that, in principle, benefits under the CBD accrue to the States supplying genetic resources, not communities.

¹⁷⁷ The Kanis are a semi nomadic tribal people who inhabit the forests of the southern part of the Western Ghats in Kerala, India.