THE PROTECTION OF TRADITIONAL KNOWLEDGE IN CONTEXT OF IPR
Author: Mansi Gaba. LL.B. from Asian Law College
Traditional knowledge which is often abbreviated as TK is the basic component of all the communities across the world. It has a strong historical relevance. All these communities have developed a set of knowledge and skills over the centuries that contributes to teaching the different methods of surviving and living life more progressively. Traditional knowledge has been passed on from generation to generation. It manifests in three major forms which are knowledge, innovations, and practice. Traditional Knowledge systems extend into the present, and are alive and constantly adapted to remain relevant to contemporary indigenous life. TK represents the powerful link to any community’s past, present, and future. It informs about the community’s identity; how they have lived, how they procured and processed resources and their relationships to other communities. These age-old learnings are still relevant in this highly technologically advanced modern society. Modern western science acknowledges the TK as a valuable source of information.
Understanding Traditional knowledge
Traditional knowledge of the communities is to be found in various fields of learning such as food articles, plant properties, spice uses, yoga practices, and so on. Some eminent examples of TK are Thai traditional healers who use plao-noi to treat ulcers; Indigenous healers in the western Amazon use the Ayahuasca vine to prepare various medicines, imbued with sacred properties; the San people use hoodia cactus to suppress the appetite while out hunting. Traditional healers in Samoa a share the benefits from a new AIDS drug drawing on their knowledge of the mamala tree. The Kani tribe of South India is to share in the benefits from a new sports drug that is based on their knowledge of the medicinal plant arogyapacha.
The challenge emerges in the protection of TK. There are two methods through which TK can be protected: -
(i) positive protection
(ii) 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.
Why does traditional knowledge need protection?
TK is important for sustainable human development as well as social justice. It expands the base of global knowledge and contributes to people’s well-being. Hence it is requisite to protect the traditional knowledge through a legal mechanism as it acts as self-identification and a condition for the continued existence of indigenous people. It is also a central element of cultural heritage. Every community across the cultures would like to pursue a stronger self-identity that distinguishes them from others and inflict a sense of pride in their history. Most of the cultures have gone extinct in world history as they were not well protected legally and politically. But by vesting legally recognized ownership of traditional knowledge through IPR, will encourage respect for it both inside and outside knowledge holding communities. The modern scientist and businessmen are in an attempt to exploit the traditional knowledge without giving any due credit and share profits to these traditional communities. The problem seems to arise at the research and commercialization stage. Many have concluded that traditional knowledge is res nullius – the property of nobody- until it is discovered by explorers, corporate scientists, governments, and so on. They justify the TK being open for public use without any ownership to attain the further common good for the well-being of societies.
However, the people who are the original holder of the traditional knowledge feel that they have been exploited by the corporate scientists, whereas the members of the scientific communities claim that the materialisation of that knowledge into a commercial venture was entirely their contribution and they are not required to share a percentage of the commercial benefits with the holders of such traditional knowledge. The issue of traditional knowledge and its protection under the IPRs regime has been addressed by international organizations and countries.
International Overview on the protection of TK
The United Nations Conference on Trade and Development (UNCTAD) was held on 30 October-1 November 2000, an “Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations, and Practices”. The meeting negotiated and agreed on some recommendations to governments, the international community, and UNCTAD. Some recommendations to governments included:
(i) to raise awareness about the protection of traditional knowledge
(ii) to support the innovation potential of local and indigenous communities
(iii) to facilitate the documentation of traditional knowledge and to promote the commercialization of traditional knowledge-based products.
The Council of TRIPS is also an important international forum for the discussion of IPRs, biodiversity, and the protection of traditional knowledge. Another international treaty i.e. Convention on biological diversity recognizes the sovereign right of states over their genetic resources and stipulates that access to genetic resources can occur only on mutually agreed terms and with ‘prior informed consent of States. This convention also mandates equitable sharing of benefits arising from the commercial use of a country’s biological resources and stresses on protection and promotion of rights of communities, farmers, and indigenous people. Article 8 (j) and 17 of this convention also ensure the protection of the rights of traditional knowledge holders to some extent while exchanging the information and promoting the broader application of TK based on fair and equitable benefit-sharing.
Indian approach towards the protection of traditional knowledge
India is known for its cultural heritage and rich traditional knowledge. With only 2.5% of the land area, India already accounts for 7.8% of the recorded species of the world. India is also equally rich in a vast ancient pool of traditional knowledge, both coded and informal, which forms its rich agricultural biodiversity and therefore, is an easy target for accessing valuable traditional knowledge and genetic resources. Unregulated access to these may lead to endangering the culture of indigenous people as well as their traditional forms of livelihood practised by traditional communities thus impacting the ecosystem and the socio-economic- cultural fabric of the country.
India took a major initiative in the year 2001 and developed a Traditional Knowledge Digital Library (TKDL). It is a database that contains 34 million pages of formatted information on some 2,260,000 (0.226 million) medicinal formulations in multiple languages. In the year 2014, TKDL has achieved success in preventing the grant of wrong patents in 24 cases without any cost. It also intends to give legitimacy to existing Ayurvedic and related traditional knowledge and enable protection of such information from getting patented by the third party in acquiring patents on Indian traditional knowledge.
The Indian government has successfully challenged the USPTO when they registered a patent in favour of the University of Mississippi turmeric for wound healing properties of turmeric. Turmeric is a standard ingredient in every Indian household for centuries. India had also filed the legal opposition to the patent for neem in another case. The said patent was filed by W.R. Grace and the Department of Agriculture, the USA in the European Patent Office. This patent is a method of controlling fungi on plants consisting of contacting the fungi with a Neem oil formulation. The origin of the use of neem can be traced back to ancient ayurvedic texts that have described the hydrophobic extracts of neem seeds that were known and used for centuries in India, both in curing dermatological diseases in humans and in protecting agricultural plants from fungal infections. Another infamous case was of basmati rice that created much havoc. A patent was granted by the USPTO to an American company called RiceTec for “Basmati rice lines and grains”. The grant of this patent created a multitude of IP issues since Basmati rice is a traditionally grown aromatic variety of rice, in India and Pakistan. However, India currently does not have any exclusive legislation for the protection of the traditional knowledge of its community. But other intellectual property acts contain provisions specifically for traditional knowledge. Section 25 and Section 64 of the Patents Act, 1970 gives one of the grounds for revocation of a patent application based on traditional knowledge.
It can be concluded that traditional knowledge is not yet well protected in either the Indian legislative framework or internationally. Weak 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. To protect the interest of TK holders is as important as the modern-day technology holders. These communities also hold intellectual vitality and shall not be exploited for commercial benefits. New legislation and guidelines need to come in place for the protection and ethical use of traditional knowledge.
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