TRADITIONAL KNOWLEDGE PROTECTION THROUGH EXISTING COPYRIGHT REGIME-EXPERIENCE IN U.S.AUSTRALIA,India
Author: Ms. Kunjal Jawaria, LL.M.
Introduction to Traditional Knowledge
Since the advancement of technology, ‘Knowledge’ has been the most aspired possession of the humankind. After the World War, the importance of intellectual knowledge gained importance due to industrial boom and in current times, the knowledge which is there in the public domain and not protected has come into question.
The term ‘Traditional Knowledge’ does not have any internationally accepted definition but as defined by WIPO it means, “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”
In general, traditional knowledge includes the knowledge relating to the traditional cultural expressions as well as it’s various signs and symbols. Knowledge relating to science, ecology, agriculture, medicine and bio-diversity are all examples of traditional knowledge. Now the world is aware of the importance of traditional knowledge which is possessed by the indigenous communities and the fact that it needs to be protected so that its misappropriation is prevented.
Patent, trademark and geographical indication or trade secret might be able to give protection to innovations done out of traditional knowledge but due to ancient roots and its oral nature, it is very difficult to be protected under the conventional intellectual property regime.
Extensive discussions and deliberations have taken place at the WTO and other international conferences in relation to the protection of traditional knowledge in recent years. In these deliberations, few nations have endorsed legitimate protection of traditional knowledge must be done and they have criticized the current framework of IPR for failing to provide adequate protection from misappropriation.
The viability of the global IPR regime is in grey due to its failure to provide symmetrical possibilities for the holders of traditional knowledge in contrast to the protection it provides to the innovators and developers in the formal sector.
This knowledge is now not only part of the developed society but it has gained a lot of attention in the past few years materially because of its value but there is a distinction when it comes to the usage of this knowledge by the indigenous people who actually possess this knowledge and the corporates who are interested in using it. This distinction has led to a gap between the source of the knowledge and the end producer and it can be seen that only the corporates are rewarded for it which threatens the practicability of the knowledge which has been possessed and protected by the local communities from generations.
Traditional knowledge has been protected by employing two protective models using the intellectual property tools. The aim of the first model is to stop other people from utilizing or acquiring IP rights over traditional knowledge. For instance, certain communities have developed a database for their traditional knowledge to prevent misappropriation like that of biopiracy. But the problem with database is that it is available to public and therefore, the disclosure of this knowledge may violate the customs of these communities as they like to keep this knowledge inside their community and they also have their own traditional laws to regulate this which are very different from the international or national laws.
The second model is also called the positive protection and it aims to secure traditional knowledge with legal rights and this is done by enacting the sui generis laws or the already existing laws. But several critics has raised utilitarian concern about this. For instance, some communities have traditional knowledge of curing a disease and it can be used to help people but if they are protected and given exclusive rights then such knowledge might be upheld.
To these problems raised by the legislators and critics, the indigenous communities have countered by saying that they do not use this knowledge to generate profit or incentive. There knowledge and its usage is guided culturally and spiritually and therefore, its misappropriation violates customary laws and hurts their cultural identity. Hence, claims made by public in their traditional knowledge without their consent is hurting their identity, heritage and is also a violation of their fundamental as well as human rights
In India, the traditional knowledge can be considered to be its legacy as it is evidence of our belief in cultural, ethical, moral systems as our heritage is a combination of various forms of arts, languages, dances, symbols, architecture, craftsmanship and scientific knowledge. Further, India largely being an agricultural economy is a repository of agrarian knowledge and possess traditional knowledge relating to it. India is home of many indigenous communities whose lifestyle has been shaped by their ancestors. These communities have unique culture and do not enjoy interference in it.
Following the neem patent controversy, the need to protect India's traditional knowledge has become more important. The granting of a patent to a corporation, specifically W.R. Grace, sparked a debate that can be regarded as a first for India and raised worries about the stringent patent system.The corporation received a patent in the United States and the European Union for a formula that kept the main chemical in the neem plant in stable azadirachtin storage and was intended to be utilized for pesticidal qualities.The applicant recognized that the pesticidal properties of neem were well known, and he noted that preserving azadirachtin for a longer duration is problematic without the usage of neem.The US patent issued only comprised a restricted invention, granting the applicant the exclusive right to employ azadirachtin in the storage method stated in the patent.
Another case, which is famous as the Turmeric patent caseis a landmark case in protection of Indian traditional knowledge. Suman K. Das and Hari Har P. Cohly, two Indians living in the United States, were conferred a US Patent 5,40,504 over the use of turmeric in healing process on March 28, 1995. The patent was granted to the University of Mississippi Medical Centre in the United States of America.This patent asserted an unique discovery: the introduction of an effective amount of turmeric via direct and oral routes to improve healing of wounds. Before a patent may be approved, it must satisfy the minimum criteria of invention, non-obviousness, and usefulness.As a result, if the assertions are addressed by the available literature knowledge, the patent is rendered invalid. The CSIR found 32 references (some of which were over 100 years old and written in Sanskrit, Urdu, and Hindi), indicating that this discovery was well-known in India previous to the application of this patent.On October 28, 1996, CSIR submitted an official application for re-examination of the patent with the USPTO. On November 20, 1997, the examiner dismissed all of the allegations once more as obvious and clear.
India has gone the extra mile through the TKDL, a collaborative project of the Council of Scientific and Industrial Research (CSIR) and the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH), to assist patent authorities in searching for any details relating substance or practice while awarding patents, and to reject the award of patent if the component or practice is already listed in the TKDL as Indian traditional knowledge.
With the increased need to safeguard Traditional Knowledge and combat its theft, the most important question to be answered is whether IP can protect Traditional Knowledge. The fundamental critique of using IPR to safeguard traditional knowledge is that it leads to the commercialization of knowledge; it treats knowledge as a product with monetary worth, which is a long cry from Indigenous Peoples' perspective, which regards their knowledge as spiritual and sacred.
A. Protecting Traditional Knowledge with Indian Copyright Law
Although Indian Copyright Law does not explicitly safeguard expressions of folklore or indigenous people's traditional knowledge, Section 31A of the Indian Copyright Law, which safeguards unpublished Indian works, can be used to infer this.
The following are some of the primary disadvantages of using copyright to safeguard traditional knowledge:
1. Authorship: The creator or owner of the work is protected under Indian Copyright Law. Traditional knowledge is information that is shared by a community and is passed down through generations. In this scenario, identifying the source of traditional knowledge is not just difficult, but close to impossible.
2. Limited Time Protection: Indian copyright law is related to time, since it is awarded for a period of 60 years. Traditional knowledge is essential, and it should be protected indefinitely rather than temporarily.
3. Fixed form: Under Indian Copyright Law, every creation with Copyright must be represented in a physical form in order to be protected. Traditional knowledge in a physical format is difficult to come by. Traditional knowledge is usually transmitted orally in the form of stories in a community.
Traditional knowledge, according to Indian copyright law, does not meet the prerequisites for copyright protection. As a result, traditional knowledge might easily lose its copyright protection if it fails to meet the basic standards for copyright protection.
B. Protecting Traditional Knowledge with Indian Patent Law
1. Patents are granted to individuals in India for their inventions. Traditional knowledge is community-owned rather than individual-owned. Furthermore, analysts argued that because traditional knowledge is natively possessed knowledge rather than an innovation, it cannot be protected by a patent.
2. Traditional knowledge evolves and develops across generations, whilst patents are issued to inventions that are created in a single act of invention.
3. Indian patents are expensive, and their registration and upkeep are too expensive for indigenous peoples who lack economic means.
4. Furthermore, indigenous people find it difficult to become involved in the complex legal aspects of patents.
The foregoing assertions make it evident that patent law will not suffice for traditional knowledge.
C. Protecting Traditional Knowledge with Trade Secrets
Traditional knowledge can be protected as a trade secret at no expense to indigenous people. All they need to do is make a concerted effort to keep their knowledge hidden. Traditional knowledge is usually exclusively shared among community members and hence can be safeguarded as a trade secret.
The IP laws of United States are majorly focused on the protection of the financial interest of people who are the authors and developers of any invention or work. In this sense, in US regime also it is believed that protection of traditional knowledge cannot run parallel to the protection provided under the copyright law, the main reason being there is no definite source of traditional knowledge. Like, for the herbal recipe which is Native to the American tribal community, which helps in reducing headaches, no author can be traced.
However, in the past decade, many corporations have come into light for exploiting traditional knowledge in a manner which is non-beneficial for the community. This has been possible because of the presence of knowledge in the public domain and the belief that traditional knowledge does not fall under the protection of IP laws and therefore, commercialization of the same is possible. Several cases of bioprospecting (using natural resources for deriving products) in US have been seen.
For instance, a red-flowered tree which is also called bitter root and is a natural healer for malaria is indigenously found in South and Central America and is being used by local communities for treating malaria. So, the IRD patented the ingredient in this which is known to have antimalaria activity without even providing due credit and access to the medicine to the local and indigenous people who helped in isolating the ingredient. After much arguments in the court, IRD agreed to share the benefits of the patent with the local community and also agreed to provide the drug at a reasonable price to them.
Though the indigenous community was able to derive benefit but they had to struggle through the complex legal process in order to take back what was rightfully theirs and all of this was because of the failure of IP laws to provide adequate protection to traditional knowledge.
However, due to international advancements and awareness about the protection of traditional knowledge, US has also taken certain initiatives at national level, like, a cultural property policy has been framed by the US department of State and it has also strengthened its Native American Graves Protection and Repatriation Act. Moreover, a Cultural Property Advisory Committee has also been formed to look into requests from countries which would endanger or harm the heritage of the country. 
WIPO has stated that Australia’s artistic and cultural expression is more than 75,000 years old and this uniqueness is not only recognized in the continent but also at the international level. However, as discussed above, it also faces a gap, like India and Australia, when it comes to providing legal protection to traditional knowledge and culture. Like the above discussed IPR regimes, Australian copyright law also, only protects the work of individuals and artists with no law to protect the indigenous culture and heritage which is communally owned. For instance, the indigenous music of Australia is a collection of various stories, styles and songs and forms of dancing which comes from the local communities like Arnhem land to Tiwi island or the Kimberley region or Tasmania, but there is very limited protection provided to these ancient styles of expression.
Nevertheless, in the past few years, a change has come and protecting the indigenous traditional knowledge has become crucial. Government is inclined to ensure and provide protection to their knowledge so that the rich heritage of the country is maintained. Now, the rights of ownership and management of indigenous people of Australia has been recognized in more than half of the continent and their system keeps them connected to their culture and country. Indigenous people have been acting as custodians and managers of their knowledge and are applying it for the growth of the country and are also deriving benefit out of it. The complex environmental challenges which are faced by the continent are also being solved by the knowledge of indigenous people as claimed by policy makers and researchers.
However, there are challenges which are being faced by the indigenous people and the people with whom they are sharing their knowledge as misuse and misappropriation of knowledge is a very common phenomenon. There are many instances where their knowledge has been exploited by the commercializing it and sabotaging the benefits of the community. Further, their knowledge has been used without their consent and in manners which are against their traditional custodians.
For strengthening indigenous led practices, guidelines were issued by the government names as ‘Our Knowledge Our Way’ which is a tool for providing the people of local communities and indigenous land with their voices so that a partnership can be build by which their knowledge is shared for the growth and benefit of the country.These guidelines are led by indigenous people and is based on a transparent process. These guidelines are the result of 23 case studies of Australia which were submitted by indigenous people themselves.
The Queensland government also introduced the Biodiscovery and Other Legislation Amendment Act 2020 in September 2020, which included provisions for obtaining and applying traditional knowledge of First Nations peoples in biodiscovery.
Hence, modern Australia has understood that indigenous knowledge is very crucial in fixing the issues which are being currently faced by the island continent as these local communities and people are at the best position to provide advice and guidance because they are connected with the value and water of this country for generations and they know the way to protect the land.
Initiatives at Global Level
For a few years now, The World Intellectual Property Organization (WIPO) has been looking into concerns relating to and arising out of ‘traditional knowledge.’ The discussions at the international level have defined it as practices and innovations which needs to be conserved for equitable use of biological resources like, ancient medicinal knowledge, folklore, popular culture, cultural heritage and such. WIPO has set out a number of objectives for the development of an international framework that would safeguard traditional knowledge while also providing a platform for the ethnic communities linked with it to profit from any appropriation by other cultures.These objectives are to avoid the degradation and unlawful appropriation of traditions, to foster creativeness based on traditional knowledge, to preserve traditional knowledge from abuse and distortion, and to safeguard traditional innovators' identity and moral rights.
To confront the issues that traditional knowledge poses, the international community and state governments have also devised certain institutional remedies.Indigenous people have intrinsic rights to "religions and philosophies, customs, and ideologies habitats, territories, and endowments," according to the United Nations Declaration on the Rights of Indigenous Peoples.Governments around the world are establishing more laws protecting traditional knowledge as well. Kenya, for example, approved the Traditional Knowledge and Cultural Expressions Act in 2016, which protects and preserves traditional knowledge of cultural expressions from third-party use.In addition, India, the Philippines, and Peru have enacted legislation establishing IP regimes specific to traditional knowledge.
Inspite of this development, governments around the world and Indigenous organizations continue to disagree about the best ways to safeguard traditional knowledge and the circumstances in which it should be protected. Existing legal systems also pose practical and ethical issues.
Traditional knowledge offers immense potential for solving man's growing difficulties. Leveraging this data is tremendously beneficial, but it must be tempered with safety, awareness, and profit sharing. Traditional knowledge is the latest member to the IP category. However, additional to the (un)will of governments, considerations on how to deal with it must be made while taking into account a number of variables. To put it another way, the informal sector information network, i.e. traditional knowledge, is primarily verbal and poorly documented, making it indefensible.
India has taken a huge step further by creating a database for its ancient data, which is updated on a regular basis, but the need for a statutory provision is becoming extremely important on a global scale. The fusion of traditional information structures with a contemporary IPR system is a focus of discussion.A completely novel law is frequently proposed as a way to better conserve traditional knowledge, but ideas and policies like the National IP Policy, Digital India, and Startup India might save the rapidly disintegrating traditional knowledge structure until a legislation is established.
Therefore, in order to safeguard the future of civilization and mankind, it would not be erroneous to suggest that the current generation will be required to assist in the preservation of the vital information of a passing civilization.
Tradtional Knowledge, WIPO, available at: https://www.wipo.int/tk/en/tk/ (visited on May 12, 2022). Rukma Lavania, Traditional Knowledge in India: A Legislative Analysis, ILI Law Review available at: https://ili.ac.in/pdf/rlava.pdf Srividhya Ragavan, Protection of Traditional Knowledge, Minnesota Intellectual Property Review available at: https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1371&context=mjlst Rukma Lavania, Supra note 2. Rukma Lavania, Supra note 2. Rukma Lavania, Supra note 2. Achal Gupta, Intellectual Property Rights and Protection of Traditional Knowledge: a General Indian Perspective, SCC Blog available at: https://www.scconline.com/blog/post/2020/06/22/intellectual-property-rights-and-protection-of-traditional-knowledge-a-general-indian-perspective/ Id at 7. Srividhya Ragavan, Supra note 3. Achal Gupta, Supra note 7. Ugonma Nwankwo and Charles Kenny, Their Knowledge, Their Rights: Using Traditional Knowledge and Intellectual Property to Protect Communities, Center and Global Development available at:https://www.cgdev.org/blog/their-knowledge-their-rights-using-traditional-knowledge-and-intellectual-property Molly Torsen, Cultural Property Protection: International and U.S. Current Affairs, U Washington School of Law available at: https://cyber.harvard.edu/bold/devel03/torsentk.html Patricia Adjei, Working Ethically with Indigenous Cultutal and Intellectual Property: Australia Launches new Protocols , WIPO Magazine available at: https://www.wipo.int/wipo_magazine/en/2020/04/article_0006.html Our Knowledge, Our Way Guidelines, CSIRO available at: https://www.csiro.au/en/research/indigenous-science/Indigenous-knowledge/Our-Knowledge-Our-Way Id at 14. Molly Torsen, Supra note 12. Ugonma Nwankwo and Charles Kenny, Supra note 11.