Authors: Rohan Bangia and Kunal Agarwal, IV year of B.Com.LL.B (Hons.) from Institute of Law, Nirma University, Ahmedabad
INTRODUCTION
The sincerity of Intellectual Property Rights may well be found in a precarious situation right now, considering its lack of ability at the international level to protect the Traditional Knowledge (TK). As the TK is the know-how knowledge, the skills or the practice which the people or a community have been developing, and passing on to their generations since time immemorial and are so often is recognizable as the part of the culture and the spirituality of the community.[1]Since there is no perfectly formulated definition about what is TK, there have been instances where it has been defined by the World Intellectual Property Organization as the knowledge which in sense is inclusive of any knowledge which has been transmitted through generations in a family or community that can be referred to as tradition-based knowledge, it refers to the creations, innovations cultural expressions portrayed throughout the years, etc. People follow this knowledge throughout their life and then pass on this knowledge to their young ones as well keeping the tradition on. This knowledge generally perceives to a particular person or community in a territory, any knowledge used by a person cannot be regarded as traditional knowledge if it is not used in a community or by particular people for over some time. Also, this knowledge does not necessarily need to be old, but it needs to be evolving while in utilization with the change in the environment.[2]
So, as we have known that the TK is not just any knowledge, but it is the subsisting knowledge that has sustained, developed, and has been passed on from generations in a community. THE existing IPR protection system has been such that the protection granted by it only is for a limited time and the creativity and inventions, whereas the TK not being defined clearly can therefore persist a problem for not being granted protection.[3]
NEED FOR PROTECTION OF TRADITIONAL KNOWLEDGE
The protection of TK is the need of the hour in present time as looking towards the precedent developments in the field of IPR for providing protection, the source of the norms and laws have been derived from the national level protection given by any nation towards that IP. Hence, applying those norms and laws at the international dimension will help lay out the protection laws beyond just the national borders of a nation[4].
The most sought solution for protecting TK at the international dimension can be through the sui generis system, which has been discussed by some of the major forums such as the UN Permanent Forum on Indigenous Issue (UNPFII), UNESCO, various other UN Forums and WTO. There have been two paradigms which are looked into while looking towards the protection of Traditional Knowledge at the international level, WIPO has described these in its discussions among countries. The first paradigm is about the prevention approach according to which the IP knowledge is protected from the other people from using it to their advantage. The perfect example to explain this can be the traditional knowledge databases that a country has created for the protection of its TK, one such existing database is India’s Traditional Knowledge Digital Library (TKDL) which the government created for the protection of its existing TK and its cultural aspects from the misuse and exploitation by other countries.[5] The second paradigm state the positive protection approach for the TK, according to which the legal rights are imposed upon the TK which is protected either by the existing laws at the international level or treaties or by the legislative methods such as the sui generis system. Thus, the work of these international conventions, treaties between countries, international forums, etc. are for the protection of IP and to develop and strengthen the national and international system for the protection of TK which in turn is important for the protection of Human Rights of indigenous people of a community or a nation.
PREVAILING PROTECTION OF TRADITIONAL KNOWLEDGE IN INDIA
Presently, there is no dedicated legislation in the Indian Intellectual Property Law regime for the protection of Traditional Knowledge. However, there have been references provided under a few acts, such as the Biodiversity Act, 2002, Patent (Amendment Act, 2005) and the Protection of Plant Variety and Farmers Right Act, 2001. These provisions have been added instead of the international obligation imposed by the TRIPS agreement, Convention on Biological Diversity and the International Treaty on Plant Genetic Resources for Food and Agriculture 2004, since India is a signatory to the abovementioned treaties and conventions. Moreover, few states have undertaken the preparation of special Community Biodiversity Registers (CBR) for the documentation of the practices, innovations and traditional knowledge. In furtherance, a Traditional Knowledge Digital Library (TKDL) has been formulated to keep a track of the Traditional Knowledge related to the use of medicinal and other plants.
Under The Biological Diversity Act, 2002, Section 22-26 provides for approval of the National Biodiversity Authority to gain access to Traditional Knowledge for Foreign nationals and NRIs. For the Indian Citizens, they have to provide prior intimation to the State Biodiversity Board. The exemption is allowed to the local people and communities for using such Traditional Knowledge and carrying out research for personal use and purposes by Indian citizens only. Also, The Biodiversity Rules have been created for the procedural aspects of gaining access to Traditional Knowledge.[6] The Protection of Plant Varieties and Farmers Rights Act, 2001 and Rules, 2003 describe the protection of informal traditional knowledge systems and plant varieties of the farmers. The act had been drafted to provide a model for an effective sweet generous system as a mode of protection of traditional knowledge in consonance with the TRIPS agreement. Such indirect protection in a limited range does not resolve the issue of the need for the protection of traditional knowledge under separate legislation like the trademark and copyright act is necessary.[7]
PROTECTION OF TRADITIONAL KNOWLEDGE AROUND THE WORLD
Under international law, the need for the protection of PK has been recognised by some of the municipal states including Kenya, Costa Rica, Zambia and Peru already have enacted laws for the protection of TK. Some countries have specifically focused on the protection of genetic resources and others have joined international organisations at the regional level to resolve the issue of protection of TK. 19 member states of the African Regional Intellectual Property Organization (ARIPO) adopted the Swakopmund Protocol on the Protection of Traditional Knowledge and Traditional Cultural Expressions was adopted in 2010.[8]
Albeit these advancements are a significant positive development, such fragmented protection doesn't offer the overseers of traditional knowledge a sufficient degree of protection in the present globalized world. Conversations on courses of action to safeguard, advance and ensure traditional knowledge at the international level are continuous in various international gatherings. At WIPO, negotiations on IP types of protection have been occurring inside the Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore since 2011 (the Committee started its work in 2001, however officially started "negotiations" in 2010). While WIPO directs numerous international IP-related treaties, none of them explicitly addresses the issue of traditional knowledge (albeit some give protection to the comparable to spaces of traditional social articulations and exhibitions of them).[9]
There is a requirement of a balance between the protection for the TK and the promotion of the same for its beneficial use, because it is like a double-edged sword, as there would not be enough compensation to the holders for the using of knowledge if there is no protection provided and the other side possibility is such that providing the IPR protection to TK might cut off its access to some people and as it is already known that TK is an important part in a developing country. [10]
CONCLUSION AND SUGGESTIONS
The plausible path forward for international TK assurance appears to lie in finding some kind of harmony between giving adaptabilities to homegrown locales to create homegrown laws dependent on a nation's requirements and abilities, and guaranteeing that there is an adequate international obligation that would empower the codification and divulgence of TK. Such a structure should start with the base agreement among key partners, including major source countries and jurisdictions in which most users interested in access to TK reside. Endeavours for TK security at the worldwide level ought to, consequently, be equipped towards recognizing various systems dependent on the nature and utilization of the information in the separate classification. In this sense, IP-based assurance through such instruments as topographical signs (GIs) might be utilized to oblige parts of TK-based "inventiveness" in horticultural creation. The Sui Generis System offers the best alternative for the protection of traditional knowledge from unauthorised use, as the majority of currently available systems of intellectual property protection are focused on an individual basis and have been offered on an international ground, which has been adopted by the national states in their respective legislations. Developing generic protection on the international front shall guarantee the protection of intellectual property of the traditional knowledge, which has been passed on to them by the various generations through centuries which hold a special economic as well as social and cultural value in the eyes of the community as well as the state. The Sui Generis System shall ensure that the traditional knowledge of the community as a whole is offered protection, unlike the other forms of Intellectual Property Rights available, which are individualistic. The essence of the TK shall truly preserve and hold a value in the community as well as create a reputation for the state.
[1] WIPO, Traditional Knowledge, available at <Traditional Knowledge (WIPO.int)>, last visited on 25-03-2021.
[2]WIPO IGC, Traditional Knowledge—OperationalTerms and Definitions 11, WIPO Doc. WIPO/GRTKF/IC/13/9 (2002).
[3] WIPO, Traditional Knowledge and Intellectual Property, available at <Traditional Knowledge and Intellectual Property – Background Brief (WIPO.int)>, last visited on 25-03-2021.
[4] Ibid.
[5] V.K. Gupta, An Approach for Establishing a Traditional Knowledge Digital Library, 5 JIPR 307 (2000), available at <http://nopr.niscair.res.in/bitstream/123456789/26010/1/JIPR%205%286%29%20307319.pdf>, last visited on 2-03-2021.
[6] The Biological Diversity Act, 2002, https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf.
[7]The Protection of Plant Varieties and Farmers Rights Act, 2001 https://www.indiacode.nic.in/handle/123456789/1909?sam_handle=123456789/1362.
[9]The Global Protection of Traditional Knowledge: Searching for the Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017)https://repository.law.uic.edu/ripl/vol17/iss1/3/.
[10]Dua Pradeep “Use of Intellectual property Rights Law for the Protection and Promotion of Ayurveda” Proceedings of the 4th World Ayurveda Congress held at Bengaluru in December;2010.https://www.imedpub.com/articles/intellectual-property-rights-need-for-a-suigeneris-regime-for-noncodified-traditionalmedicine-in-india.pdf.