Codified Traditional Knowledge and the First Schedule

In one line

A 2002 Act defines one of its key terms by pointing at a schedule to an Act of 1940, and this chapter follows the pointer.

In exam wording: section 2(ea) of the Biological Diversity Act 2002 defines codified traditional knowledge as the knowledge derived from authoritative books specified in the First Schedule to the Drugs and Cosmetics Act 1940; section 2(aa) defines benefit claimers as the conservers of biological resources, their by-products, creators or holders of traditional knowledge associated with them, excluding codified traditional knowledge only for Indians, and information relating to the use of such biological resources, innovations and practices associated with such use and application; the proviso to section 7 excludes codified traditional knowledge from the requirement of prior intimation to the State Biodiversity Board; and section 3(a) of the Act of 1940 defines an Ayurvedic, Siddha or Unani drug as including all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine specified in the First Schedule.

Following the pointer

Step one. Section 2(ea) of the Act of 2002 says: knowledge derived from authoritative books specified in the First Schedule to the Drugs and Cosmetics Act 1940.

Step two. The First Schedule to the Act of 1940 is a list of classical treatises of the Ayurvedic, Siddha and Unani systems.

Step three. Section 3(a) of the Act of 1940 uses the same First Schedule to define an Ayurvedic, Siddha or Unani drug, by reference to medicines manufactured exclusively in accordance with the formulae described in those books.

So the same list of books does two jobs. It tells the drug regulator what counts as a classical formulation, and it tells the biodiversity regulator what knowledge is in the public domain.

Note on the source. The copy of the Act of 1940 used for this book carries the sections and not the Schedules. This book therefore names the First Schedule and does not reproduce its list of books. A student should do the same.

Why the definition exists

The Act of 2002 gives a community a claim to a share of the benefit when its knowledge is used. That claim needs a boundary, because otherwise every use of every Indian medicinal tradition would carry a benefit sharing obligation to nobody in particular.

The boundary chosen is publication in a classical text. Knowledge that appears in a book in the First Schedule is treated as belonging to the tradition rather than to a particular community.

The consequence in section 2(aa). Benefit claimers exclude holders of codified traditional knowledge, only for Indians. So an Indian who uses a classical formulation owes no benefit share on account of the knowledge.