tk_rules2009

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  THE PROTECTION, CONSERVATION AND EFFECTIVE MANAGEMENT OFTRADITIONAL KNOWLEDGE RELATING TO BIOLOGICAL DIVERSITYRULES, 2009 In exercise of the powers conferred under sections 36(5) and 62 of the BiologicalDiversity Act, 2002 and on the recommendations of the National Biodiversity Authority,the Central Government, hereby, makes the following rules, namely:-- 1. Short Title and Commencement.-- (1)   These rules may be called the Rules for Protection, Conservation and EffectiveManagement of Traditional Knowledge Relating to Biological Diversity, 2009.(2)   They shall come into force on such date as the Central Government may, bynotification in the Official Gazette, appoint. 2. Definitions. – In these rules, unless the context otherwise requires, --(a)   “Abuse”   means use or application of the traditional knowledge or one or more of its components, by any person, including a member of the traditional communityor a traditional practitioner, in a manner that is in contravention of theirtraditional beliefs and practices, or which is against public order and morality, oragainst the interests of the traditional communities or, any action in contraventionto these Rules;(b)   “ Accessor ” means a person who accesses traditional knowledge for commercialgain and /or for research, and includes members of traditional communities whoaccess traditional knowledge of any other community for commercial gain and /orresearch;(c)   “Act” means the Biological Diversity Act, 2002 (18 of 2003)(d)   “Authority” means the National Biodiversity Authority established undersubsection (1) of section 8 of the Act;(e)   “Benefit” means gains that can be monetary, non-monetary, welfare-based andany other form that comes out of an agreement between the accessor and thetraditional community and / or National Biodiversity Authority, as the case maybe, upon access of traditional knowledge or a component thereof and shall includei.   access fee determined by the National Biodiversity Authority or theState Biodiversity Board as the case may be, in consultation with the    2 traditional community at the time of accessing the traditionalknowledge;ii.   benefits as described under section 27(2) of the Act; andiii.   milestone payments where applicable.(f)   “Biodiversity Management Committee” means a Biodiversity ManagementCommittee established by a local body under sub-section (1) of section 41 of theAct;(g)   “Chairperson” means the chairperson of the National Biodiversity Authority;(h)   “Collective rights” mean the rights which the traditional community as a grouphas been enjoying over the particular traditional knowledge for generations;(i)   “Commercial gain” means commercialization of a component or components of traditional knowledge or derivatives thereof, in a way that is not being practisedby the community which owns the said knowledge;(j)   “Fee” means any fee stipulated in the Schedule;(k)   “Informed consent ” means consent to be obtained from the traditional communityor the National Biodiversity Authority, as the case may be, in case where thetraditional knowledge is already under access and use before the notification of this Act;(l)   “Intellectual Property Rights”   mean intellectual property rights including,copyrights, designs, geographical indications, patents and trademarks;(m)   “License of Use ” means the permission granted to the applicant by the NationalBiodiversity Authority for accessing the traditional knowledge;(n)   “Livelihood” means the financial and/or other traditional / customary means forsubsistence;   (o)   “Milestone payments” means periodic payments made to the traditionalknowledge fund by the accessor which shall not be less than 10% of the grossrevenue realized from the commercialization of products using traditionalknowledge or derivatives thereof;   (p)   “Misappropriation of traditional knowledge” means any form of appropriation,monopolisation, including claims of private ownership and/or intellectualproperty rights, and such other acts which deprive the traditional communitywhose traditional knowledge it is, from using, conserving and protecting the saidknowledge, and from equitable benefit sharing arising out of any commercialutilization of said traditional knowledge and /or derivatives thereof, and alsounsustainable utilisation of the genetic resources relating to that traditionalknowledge;      3 (q)   “Misuse of traditional knowledge” means access to and/or use of traditionalknowledge by persons not belonging to the traditional community whosetraditional knowledge it is, without License to Use or against the terms andconditions of License to Use;(r)   “National Standing Committee” means a committee set up by the Authority toexamine and advise the Authority on applications for access to traditionalknowledge;(s)   “Prior-informed Consent”   means a written authorisation given by the traditionalcommunity to an applicant in the prescribed manner, in consultation with theBiodiversity Management Committee and facilitated by the State BiodiversityBoard, for the conduct of a particular activity that entails access to and use of thesaid traditional knowledge, based on an access application submitted in theprescribed manner containing complete and accurate access information on thepurposes, risk, implications and environmental impact of the said activity,including any use that might be made of the said knowledge, and, whereverapplicable, on its commercial value;(t)   “State Standing Committee” means a committee set up by the State BiodiversityBoard to examine and advise the Board on applications for access to traditionalknowledge;(u)   “Traditional community ” means a community holding traditional knowledgeincluding families, people belonging to Scheduled Tribes as per Article 342 of theConstitution of India, and other notified tribal groups including nomadic tribes,and shall be represented by their representative bodies;(v)   “Traditional Knowledge” means the collective knowledge of a traditionalcommunity including of a group of families, on a particular subject or a skill andpassed down from generation to generation, either orally or in written form,relating to properties, uses and characteristics of plant and animal geneticresources; agricultural and healthcare practices, food preservation and processingtechniques and devices developed from traditional materials; culturalexpressions, products and practices such as weaving patterns, colors, dyes,pottery, painting, poetry, folklore, dance and music; and all other products orprocesses discovered through a community process including by a member of thecommunity individually but for the common use of the community; and   (w)   “Traditional Practitioner” means person(s) who are members of a traditionalcommunity and have been practising traditional knowledge including healing    4 and/or rendering medical service based on traditional knowledge and customarypractice. 3. Measures to be taken by National Biodiversity Authority for protection andpromotion of traditional knowledge.-- (1)   The National Biodiversity Authority shall recognize existing traditional forms of representative organizations of the traditional community, including family / communitybased organisations; Provided  that, where there are no representative bodies representing the saidtraditional community, the National Biodiversity Authority shall, through StateBiodiversity Boards and Biodiversity Management Committee enable traditionalcommunities to set up representative bodies keeping in view their customarypractices and traditional forms of organization; Provided  also that where there is more than one representative organizationrepresenting a traditional community, the National Biodiversity Authority shallrefer the matter to the Biodiversity Management Committee through the StateBiodiversity Board for identifying the representative organization(s).(2)   A traditional community shall, for the implementation of these Rules, berepresented by its traditional representative body and that body shall be the authorisedbody for all matters pertaining to the implementation of these rules with reference to thatcommunity.(3)   National Biodiversity Authority shall facilitate the traditional communities toexercise their collective rights to their own access and use, and to regulate access byothers including fair and equitable benefit sharing for such access and relief on abuseand/or misuse and/or misappropriation and/or infringement of the traditional knowledge.(4)   National Biodiversity Authority shall ensure that members of any traditionalcommunity shall be allowed to access or practice the traditional knowledge of anothertraditional community for the purpose of earning their livelihood and not for commercialgain.(5)   The National Biodiversity Authority shall take steps to prevent abuse and/ormisuse and/or misappropriation of traditional knowledge; and where such abuse, misuse
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