Traditional Knowledge as Intellectual Property
“Indigenous cultural knowledge has always been an open treasure box for the unfettered appropriation of items of value to Western civilization. While we assiduously protect rights to valuable knowledge among ourselves, indigenous people have never been accorded similar rights over their cultural knowledge. Existing Western intellectual property laws support, promote, and excuse the wholesale, uninvited appropriation of whatever indigenous item strikes our fancy or promises profit, with no obligation or expectation to allow the originators of the knowledge a say or a share in the proceeds.”
What is Traditional Knowledge?
Knowledgebase which is developed by the indigenous, local, or native community has been preserved and passed on to generations, so much so, that it becomes the identity of such community. Traditional knowledge can be found in a variety of concepts such as calculation of time, food article, plant properties, spice uses, yoga practices, etc. The most essential factor of Traditional Knowledge is that it has ancient roots and it is often oral.
Why Traditional Knowledge must be protected?
Need to protect traditional knowledge has increased with changing time, especially in order to stop unauthorized and commercial misuse of such knowledge. It is important to protect the indigenous people from such loss and also help them to preserve such ancient practices. Protection to TK shall also promote its wider and efficient use.
The most difficult aspect of traditional knowledge is in its protection. There has been a lot of debate to protect traditional knowledge under IP regime but that in itself faces a lot of challenges such as; a) under which IP under which traditional knowledge can be protected, b) since every IP protection is provided for a limited period of time then how will traditional knowledge have continuous protection. The protection of traditional knowledge is rooted in the problem of Bio-piracy. Bio-piracy occurs when there is commercial utilization of traditional knowledge without proper authorization of the indigenous or local people associated with such knowledge.
How to Protect Traditional Knowledge?
There are methods through which TK can be protected: a) Positive Protection, and b) Defensive Mechanism. Positive protection means protecting TK by way of enacting laws, rules, and regulations, access, and benefit-sharing provisions, royalties, etc. Defensive Mechanism means steps taken to prevent the acquisition of intellectual property rights over traditional knowledge.
India, for example, followed by the well-known case of USPTO, wherein patent was granted on healing properties of turmeric and with much difficulty, CSIR proved the prior existing knowledge of such properties of turmeric with help of numerous ancient scriptures and documents, has adopted a Defensive mechanism to protect its traditional knowledge by way of setting up a Traditional Knowledge Digital Library (TKDL) in 2001, in collaboration between Ministry of Ayush and CSIR.
But is TKDL adequate? The digital library, although comprising of voluminous documents and work of Indian traditional knowledge, has its own shortcomings such as; translation problems, disclosure of traditional knowledge as prior art is un-advantageous since it leads to public disclosure of entire traditional knowledge which simultaneously results to fishing expeditions, further one of the major aspects of traditional knowledge is that it is mostly passed by generations in an oral manner, therefore, a lot of TK has no documentary record and TKDL maintains no record of oral traditional knowledge.
The Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property, 1883 is an international legally binding agreement concerning property rights in patents, utility models, industrial designs, service marks, indications of source or appellations of origin, and trademarks. The Convention had, as of December 1998, 151 Member States. Article 1 of the Convention defines the scope of industrial property. It states in Article 1(3) that “industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.
Protection of traditional knowledge under TRIPS
The negotiation and adoption of the TRIPS Agreement as part of the Uruguay Round in 1994 have added new dimensions to the debate on intellectual property rights in traditional knowledge. The TRIPS Agreement sets minimum standards for countries to follow in protecting intellectual property. Its objective is stated in the preamble as “to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade.”31 Countries that ratify the Agreement are expected to establish comprehensive intellectual property protection systems covering patents, copyright, geographical indications, industrial designs, trademarks, and trade secrets.
Adequacy of IP protection to Traditional Knowledge in India
Unlike other categories of intellectual property rights, India has no substantive act or law to protect traditional knowledge but other IP acts contain provisions with respect to traditional knowledge such as the Patents Act, 1970, Section 25 and Section 64, gives one of the grounds for revocation of a patent application on the basis of traditional knowledge. Under the Copyright Act, 1957, has no specific mention of protecting traditional cultural, literary or artistic work or folklore but Section 31A provides for the protection of unpublished Indian work, nonetheless Copyright protection in for a limited time period and also demands certain criteria to be fulfilled, therefore under this IP as well protection of traditional knowledge doesn’t have much scope.
Past few years it has been seen that India has actively participated in TK conventions and has made efforts to protect its TK at the international level. Access to Indian TK is available at USPTO and EPO and CSIR are day by day improving the efficiency of the TK database.
Important International TK related conventions
The CBD and the 2010 Nagoya Protocol introduces the recognition and protection of TK at the international level. Article 8(j) of the CBD, requires parties are required to respect and maintain knowledge held by indigenous communities and promote the broader application of TK based on fair and equitable benefit-sharing. Article 16 recognizes TK as a ‘key technology’ for effective practices of conservation and sustainable use of biodiversity, with procedural requirements established in Article 15 for access to genetic resources, including those based on prior informed consent and mutually agreed terms. The Nagoya Protocol broadens the CBD provisions relating to access and benefit-sharing.
Call for Sui Generis Protection and its Awareness
There has been an increasing demand for the Sui Generis system of Protection for traditional knowledge since IP protection has its own downside and loopholes. Sui Generis is a Latin word meaning ‘of its own kind’. Sui generis instrument shall provide the legal framework of protection of TK, enforcement of the right of indigenous communities, prevent misuse and control of TK, provisions of ABS (access and benefit-sharing) system, etc.
In addition to the TKDL system, India can work towards a more active approach, foremost to create awareness and understanding among people who are to date completely unaware or have very limited knowledge on Intellectual Property Rights as well as the term ‘traditional knowledge’.