TRADITIONAL KNOWLEDGE AS INTELLECTUAL PROPERTY: EXPLORING SUI GENERIS SYSTEM IN INDIA AND THEIR APPLICABILITIES IN INDIA BY - TAMANNA DWIVEDI
TRADITIONAL
KNOWLEDGE AS INTELLECTUAL PROPERTY: EXPLORING SUI GENERIS SYSTEM IN INDIA AND THEIR APPLICABILITIES IN INDIA
AUTHORED BY
- TAMANNA DWIVEDI
ABSTRACT
Traditional knowledge within particular regional, indigenous, or local communities, and it is also
referred to as indigenous knowledge or folk knowledge embodies a rich and
varied body of knowledge, skills, practices, wisdom, customs, and expertise
that have flourished and been passed down through the generations. It represents
an extensive body of information, abilities, and customs that are firmly
ingrained in regional and cultural traditions. It differs from Western
scientific knowledge in that it is collaborative, dynamic, and community-based,
which makes it a vital resource for sustainable development, cultural
preservation, and a comprehensive understanding of the world. Due to lack of intangible nature
, collective ownership , biopiracy, misappropriation , lack of awareness
, weak framework it is difficult to register the traditional knowledge in
existing Intellectual property.
So, in this paper it has explained the importance of the sui generis
system for recognition of community
based ownership rights,
prevention of misappropriation and regulation of access and benefit sharing mechanisms, prior
informed consent, documentation and registration and dispute resolution
mechanisms.
This research adds to the conversation about how to safeguard traditional knowledge in India,
provide equitable acknowledgement for knowledge bearers, and encourage the
sustainable use of this priceless resource by examining the idea of sui generis
systems by exploring the area of:
1. How is the sui generis
system specifically designed
to protect the traditional
knowledge?
2. Limitations of the conventional intellectual property in safeguarding traditional knowledge?
3. Also discuss
the bill present
in indian parliament,the draft protection of traditional
knowledge bill,2016 , that aim to establish a sui generis framework for
traditional knowledge and
4. Traditional knowledge digital library
The aim of writing this paper is to contribute to the ongoing
discussion on safeguarding and effective protection of
traditional knowledge as a valuable intangible asset for indigenous communities
in india.
KEYWORDS
Traditional knowledge,Intellectual property,
Sui generis, India, indigenous communities, Misappropriation, biopiracy
LISTS OF ABBREVIATION
|
S.NO.
|
ABBREVIATION
|
FULL FORM
|
|
1.
|
TK
|
Traditional Knowledge
|
|
2.
|
IP
|
Intellectual property
|
|
3.
|
IPR
|
Intellectual property rights
|
|
4.
|
GI
|
Geographical indications
|
|
5.
|
WIPO
|
World intellectual property organization
|
|
6.
|
IGC
|
Intergovernmental committee
|
|
7.
|
TCEs
|
Traditional cultural expression
|
|
8.
|
GRs
|
Genetics resources
|
|
9.
|
CBD
|
Convention on biological diversity
|
|
10
|
PIC
|
Prior informed consent
|
|
11
|
FPIC
|
Free and prior informed consent
|
|
12
|
IPRA
|
The Philippines’ indigenous people rights Act
|
|
13
|
ICC/IPs
|
Rights of indigenous culture community/Indigenous peoples
|
|
14
|
ABSP
|
The Navajo nation’s access and benefit-sharing policy
|
|
15
|
CSIR
|
Council of scientific and industrial research
|
|
16
|
USPTO
|
United states patent
and Trademark Office
|
|
17
|
TKDL
|
Traditional knowledge digital library
|
LIST OF CASES
|
S.NO.
|
CASE
|
PAGE NO.
|
|
1
|
Turmeric case (1997)
|
35
|
|
2
|
Neem case (1995)
|
35
|
|
3
|
Basmati rice case
|
35
|
LISTS OF FIGURE
|
S.NO.
|
EXPLANATION
|
|
Fig 1
|
Highest level of education
|
|
Fig 2
|
Familiar with concept of traditional knowledge
|
|
Fig 3
|
Existing intellectual property framework adequate for protection
|
|
Fig 4
|
Concern about protecting traditional knowledge
|
|
Fig 5
|
Sui Generis system protection for traditional knowledge
|
|
Fig 6
|
Sui Generis system is important to protect intellectual knowledge
|
|
Fig 7
|
Potential challenges in implementing Sui Generis for protection
|
|
Fig 8
|
Responsible for managing and enforcing Sui Generis protection
|
|
Fig 9
|
Importance of protection traditional knowledge and cultural
expression
|
CONTENT
|
CHAPTER
|
TOPIC
|
PAGE NO.
|
|
1
|
INTRODUCTION
|
8
|
|
1.1
|
LITERATURE REVIEW
|
8
|
|
1.2
|
STATEMENT OF PROBLEM
|
9
|
|
1.3
|
HYPOTHESIS
|
9 - 10
|
|
1.4
|
RESEARCH OBJECTIVE
|
11
|
|
1.5
|
RESEARCH METHODOLOGY
|
11
|
|
1.6
|
BRIEF INTRODUCE THE CONCEPT OF TRADITIONAL
KNOWLEDGE AND ITS SIGNIFICANCE FOR
COMMUNITIES AND THE WORLD
|
12
|
|
1.7
|
HIGHLIGHT THE CHALLENGES FACED BY TK DUE TO MISAPPROPRIATION AND LACK OF ADEQUATE
PROTECTION
|
13 - 14
|
|
1.8
|
INTRODUCTION THE CONCEPT
OF SUI GENERIS SYSTEM AS POTENTIAL SOLUTION FOR
TK
PROTECTION
|
14 - 15
|
|
2
|
TRADITIONAL KNOWLEDGE AND ITS UNIQUENESS
|
16
|
|
2.1
|
DEFINE TK AND
ITS CHARACTERISTICS , EMPHASIZING
ITS COLLECTIVE , DYNAMIC AND COMMUNITY - BASED NATURE
|
16
|
|
2.2
|
ILLUSTRATE DIFFERENT TYPES OF TK IN INDIA , COVERING AREA LIKE MEDICINE , AGRICULTURE , BIODIVERSITY AND CULTURAL EXPRESSION
|
17 - 18
|
|
2.3
|
DISCUSS THE CULTURAL AND SPIRITUAL
SIGNIFICANCE OF TK FOR TRADITIONAL COMMUNITIES
|
18 - 19
|
|
3
|
WHAT IS THE ROLE OF WIPO IN PROTECTING
TRADITIONAL KNOWLEDGE
|
20 - 21
|
|
4
|
CHALLENGES IN PROTECTING TRADITIONAL
|
22
|
|
|
KNOWLEDGE
|
|
|
4.1
|
EXPLAIN THE LIMITATION OF EXISTING IP SYSTEM LIKE PATENT AND COPYRIGHT IN PROTECTING
TK
|
23
|
|
4.2
|
ANALYZE THE ETHICAL
CONCERN SURROUNDING THE COMMERCIALIZATION OF TK WITHOUT FAIR
COMPENSATION OR BENEFIT
- SHARING
|
24
|
|
5
|
SUI GENERIS SYSTEM
FOR TRADITIONAL KNOWLEDGE PROTECTION
|
25
|
|
5.1
|
DEFINE THE CONCEPT
OF SUI GENERIS
SYSTEM AND THEIR FLEXIBILITY
IN ADDRESSING THE UNIQUE
NEEDS OF TK
|
25 - 26
|
|
5.2
|
SHOWCASE SUCCESSFUL EXAMPLES OF SUI GENERIS SYSTEMS FROM AROUND THE WORLD ,
LIKE THE
PHILIPPINES’ INDIGENOUS PEOPLES
RIGHTS ACT AND THE NAVAJO NATION’S ACCESS AND
BENEFIT - SHARING POLICY
|
27 - 28
|
|
6
|
APPLICABILITY OF SUI GENERIS SYSTEM IN INDIA
|
29
|
|
6.1
|
ANALYZE THE CURRENT
LEGAL FRAMEWORK FOR TK
PROTECTION IN INDIA
, INCLUDING THE
PROTECTION OF PLANT VARIETIES AND FARMERS’ RIGHTS ACT , GEOGRAPHICAL
INDICATIONS ACT AND THE DRAFT TRADITIONAL KNOWLEDGE BILL
|
29 - 30
|
|
6.2
|
EVALUATE THE STRENGTHS AND WEAKNESSES OF THESE EXISTING MEASURES IN ADDRESSING
THE SPECIFIC NEEDS OF TK PROTECTION
|
30 - 31
|
|
6.3
|
ASSESS THE PROTECTION AND CHALLENGES OF ADAPTING AND IMPLEMENTING A SUI
GENERIS SYSTEM FOR TK PROTECTION IN THE INDIAN CONTEXT
|
31- 33
|
|
6.4
|
CONSIDER RELEVANT CASE STUDIES
|
34 - 35
|
|
7
|
THE NEED FOR SUI GENERIS PROTECTION
|
36 - 42
|
|
|
CONCLUSION
|
43
|
|
|
RECOMMENDATION
|
43 - 44
|
|
|
BIBLIOGRAPHY
|
44
|
CHAPTER 1 INTRODUCTION
1.1
Literature Review
The Challenge of Protecting TK
·
Collective Ownership
·
Oral Traditions
These limitations create vulnerabilities:
·
Biopiracy
·
Erosion of Cultural Heritage
The WIPO provides resources outlining
elements of a Sui Generis system, including:
·
Existing Legal Frameworks
·
Potential for Adaptation
Implementing Sui Generis systems presents
challenges that need to be addressed:
·
Administrative Burdens
·
Community Ownership Disputes
Despite these challenges, Sui Generis systems offer opportunities:
·
Preservation of TK
·
Fair Compensation and Development
By exploring these areas, research
can contribute to a comprehensive understanding of how
Sui Generis systems can best serve the protection and promotion of TK in India.
1.2
Statement of Problem
Existing IP frameworks like patents and copyrights struggle
to adequately protect
TK due to its:
1. Collective
Ownership
2. Oral Traditions and Documentation lack
of protection creates vulnerabilities:
3. Biopiracy
4. Erosion
of Cultural Heritage
Therefore,
the core problem
lies in finding a legal framework that effectively protects
TK in India, ensuring:
1. Fair
compensation
2. Preservation
and documentation of Tk
How Sui Generis
systems can be effectively implemented in the Indian context,
considering:
1. Adaptability:
2. Challenges
By tackling these problems, this study hopes to strengthen the legal foundation that protects India's wealth of traditional knowledge and
promotes its development and preservation.
1.3
Hypothesis
1. Brief introduce
the concept of traditional knowledge and its significance for communities and
the world
2. Highlight the
challenges faced by tk due to misappropriation and lack of adequate protection
3. Introduction
the concept of sui generis system as potential solution for tk protection
4. Define tk and
its characteristics , emphasizing its collective , dynamic and community -
based nature
5. Illustrate different
types of tk in india , covering areas like medicine , agriculture , biodiversity
and cultural expression.
6. Discuss the
cultural and spiritual significance of tk for traditional communities
7. What is the
role of wipo in protecting traditional knowledge
8. Challenges
in protecting traditional knowledge
9. Explain the
limitation of existing ip system like patent and copyright in protecting TK
10. Analyze the
ethical concern surrounding the commercialization of tk without fair
compensation or benefit - sharing
11. Define the concept
of sui generis system and their flexibility in addressing the unique needs of
tk
12. Showcase
successful examples of sui generis systems from around the world , like the philippines’
indigenous peoples rights act and the navajo nation’s access and benefit -
sharing policy
13. Discuss the
key features and functionalities of these system , emphasizing aspects like community
involvement , knowledge documentation and benefit - sharing mechanism
14. Applicability
of sui generis system in india
15. Analyze the
current legal framework for tk protection in india , including the protection of
plant varieties and farmers’ rights act , geographical indications act and the
draft traditional knowledge bill
16. Evaluate the
strengths and weaknesses of these existing measures in addressing the specific
needs of tk protection
17. Assess the protection
and challenges of adapting and implementing a sui generis system for tk
protection in the indian context
18. Consider
relevant case studies
19. The need
for sui generis protection
1.4
Research Objective
"Traditional Knowledge as Intellectual Property: Exploring Sui
Generis Systems and their Applicability in India" is a research
project whose primary
goal is to determine the most effective ways to safeguard and
administer the IPR related to traditional knowledge in the Indian context.
Below is a summary of the essential components:
1.
TK is
the term for the skills
and information that have been passed down through
communities' generations.
2.
IP refers to the legal structure that safeguards mental works, including innovations, literary
compositions, designs, and symbols.
3.
Sui Generis
Systems are legal frameworks that, unlike current
IP regimes like patents or copyrights, are expressly
intended to accommodate the special qualities of traditional knowledge.
These topics would probably be covered by the study:
1. Limitations of Traditional IP for TK
2. Sui Generis Options for TK Protection
3. Sui generis systems' applicability in India
4. Possibilities and Challenges
The overall goal of the research would be to offer perspectives and
suggestions for a strong legislative framework
that safeguards TK in India and promotes
its development, preservation,
and fair use and also apply sui generis system.
1.5
Research Methodology
Qualitative method
·
Primary Data : Collected through
structured surveys/ questionnaires administered to Youths.
·
Secondary Data : Review of existing literature, published research paper ,
articles on internet
Research Instrument: Structured questionnaires designed to gather data on
performance metrics.
1.6
Brief Introduce the Concept of Traditional Knowledge and its Significance
for Communities and the World
TK includes those knowledge in which skills and practices that are
sustained , developed and passed
on from generation to generation within
a community. TK, also
identified as indigenous knowledge or folk knowledge, pertains to the collective
knowledge,skills and practices transferred across generations within distinct
communities.
It includes the substance of knowledge and subsistence practice,
healthcare and traditional cultural expression, such as unique signs and
symbols.
Traditional knowledge is present in diverse fields
like agriculture, science,
technology, ecology, medicine and biodiversity.[1]
This knowledge encompasses various aspects, including:
·
Subsistence practices: Tools
and techniques for hunting, agriculture, and resource management.
·
Healthcare: Traditional medicine,
midwifery, and ethnobotany (knowledge of plants).
·
Environment: Ecological understanding, weather forecasting, and celestial
navigation.
·
Culture:
Language, stories, songs, rituals, and traditional crafts.
Significance for communities:
·
Cultural identity:
TK is deeply intertwined with a community's cultural identity and
provides a sense of belonging and continuity.
·
Sustainability: It offers practical solutions
for sustainable living,
fostering harmony with the environment.
·
Resilience: TK equips communities with the skills and knowledge
to adapt to changing environments and challenges.
Significance for the world:
·
Biodiversity conservation: Indigenous communities often hold vast knowledge about local ecosystems and their
sustainable management.
·
Scientific discovery: TK has contributed significantly to scientific advancements in medicine, agriculture, and other fields.
·
Cultural diversity: It enriches the world by offering diverse
perspectives and solutions to
various challenges.
1.7
Highlight the Challenges Faced
by TK due to Misappropriation and Lack of Adequate Protection
Misappropriation and lack of adequate protection is one of the main
significant challenges for TK . These
challenges present a peril to the communities that safeguard this
knowledge and to the broader global community that take its benefits.
Here are some challenges faced by traditional
knowledge :
1.
Misappropriation:
·
Biopiracy:
Biopiracy refers to the unethical exploitation of TK without providing fair compensation or ensuring
equitable benefit-sharing with the indigenous communities possessing it.
Examples: patenting in traditional medicines or agricultural practices without acknowledging their source.
One instance of purported biopiracy is the hoodia
cactus plant. It is not possible
to secure the knowledge that the San people of southern Africa possess
regarding the appetite suppressing properties of hoodia cactus. However, a
patent was obtained for an innovation based
on this knowledge, and Pfizer was granted a license to use it. The San
people of southern Africa have utilized this plant as a hunger-prevention for many years. Pfizer, the largest pharmaceutical company, was awarded a
license to use an extract from the plant that was patented for its ability to
combat hunger. In contrast to the instance involving turmeric, the patent for
the plant extract remained valid. If the pharmaceutical company's weight-loss
medication using Hoodia is effective, it might make money while the San people
continue to live in poverty. Regretfully, even if medical knowledge
concerning the applications of hoodia or turmeric has some
social or commercial worth, it cannot be protected under the current system.
·
Cultural Appropriation:
Cultural appropriation involves the inappropriate or
disrespectful utilization of cultural expressions linked to TK, typically for the purpose
of commercial gain or
entertainment, without granting due recognition or seeking permission from the
communities associated with it.
2.
Lack of Adequate Protection:
·
Inapplicability of
existing IP laws:
The unique nature of traditional knowledge often does not
defines easy categorization within existing
IP frameworks such as patents
or copyrights, posing
challenges in obtaining adequate legal protection
·
Difficulty in documenting
and registering TK:
Due to lack of awareness in the communities might face
difficulties in formally documenting and registering their knowledge due to
limited resources or expertise. This can create challenges in establishing ownership and preventing the
misappropriation of their TK.
·
Unequal power dynamics:
Indigenous communities frequently possess fewer resources
and wield less power in comparison to corporations or individuals who may seek to exploit
their knowledge.
Consequences of these challenges:
·
Loss of cultural
heritage: The
erosion of traditional practices and cultural identity can occur as a result of
misappropriation and inadequate protection, leading to a weakened
connection between communities and their knowledge.
·
Unequal benefit
sharing: The
lack of opportunity for communities to benefit from the commercialization of their knowledge hampers their development and perpetuates historical injustices.
Ongoing efforts
are being made to establish sui generis legal
framework and international agreements that provide better protection for traditional knowledge
TK and promote ethical and
respectful engagement with indigenous knowledge holders.
1.8
Introduction the Concept of SUI Generis
System as Potential Solution for TK Protection
Sui generis, when translated, means
"of its own kind." It refers to a legal
framework that is
specifically crafted to cater to the distinct characteristics and requirements
of TK protection. Instead of attempting to fit TK within existing intellectual
property IP frameworks, a sui generis system strives to provide a customized
solution that recognizes the cultural, communal, and non-commercial aspects
associated with this knowledge.
The greater social benefit that results from safeguarding traditional knowledge as a new
type of intellectual property must be made abundantly evident if a sui generis
traditional knowledge right is to be established.
Key features of a sui generis system for TK protection:
·
Community-based ownership: Recognizing communities as the collective holders of TK and granting
them control over its use and access.
·
Benefit-sharing mechanisms: Ensuring fair and equitable distribution of benefits arising from the commercialization of TK.
·
Prior informed
consent (PIC): Establishing
procedures for obtaining
the consent of communities before using or commercializing their
knowledge.
·
Documentation and registration: Providing systems for communities to document and register their knowledge, although
respecting their cultural sensitivities and avoiding rigid
formalities.
·
Dispute resolution mechanisms: Establishing fair and accessible frameworks for resolving disputes related to TK ownership and
use.
Potential benefits of a sui generis system:
·
Empowering indigenous
communities: Providing them with greater control over their knowledge and a stronger
voice in negotiations with potential users.
·
Promoting fair and
ethical use: Encouraging responsible research and development practices
that respect the rights and interests of TK holders.
·
Enhancing knowledge sharing:
Encouraging
communities to share their knowledge openly when they are assured of fair treatment
and potential benefits.
The idea of establishing a sui generis system
to protect TK presents an opportunity to tackle the obstacles encountered by
this invaluable resource.The concept of a sui generis system for TK protection
recognizes the need for a unique and tailored approach to address the
challenges faced by TK. Unlike conventional IP frameworks, a sui generis system
acknowledges the distinctive nature of TK, which often encompasses traditional practices, cultural expressions, and community knowledge that have been passed down through generations.
To ensure the effectiveness of a sui generis system,
continuous monitoring, evaluation, and adaptation are necessary.
Regular review and assessment of the system's implementation can help identify
gaps, challenges, and areas for improvement. This process allows for the
refinement of policies, legal frameworks, and mechanisms to better align with
the evolving needs and aspirations of the TK-holding community.
CHAPTER 2
TRADITIONAL KNOWLEDGE AND ITS UNIQUENESS
2.1
Define TK and its Characteristics, Emphasizing its Collective,
Dynamic and Community - Based Nature
Traditional knowledge is often reffered
to as indigenous knowledge or folk knowledge embodies a diverse collection
of body of knowledge, skills, practices developed, wisdom, customs, and
expertise that has flourished and been passed down through generations within
specific regional, indigenous, or local communities. It embodies
a rich repository of knowledge, skills, and practices that are deeply
rooted in cultural heritage and local contexts.
Key characteristics emphasizing its collective, dynamic, and community-based nature:
·
Collective Ownership: TK is not owned by individuals but rather by entire communities. This collective ownership reflects the collaborative nature of knowledge
creation and transmission within the community.
·
Dynamic and Evolving: TK is not static, but rather constantly evolving and adapting
through experimentation, innovation, and interaction with the environment.
Communities continuously refine and improve their knowledge based on experience
and changing conditions.
·
Community-Based
Transmission: TK is primarily transmitted orally from generation
to generation through
storytelling, rituals, songs,
and demonstrations.
Communities play a vital role in preserving and transmitting this knowledge
through their cultural practices and social interactions.
Examples of TK:
·
Subsistence practices: Traditional methods for hunting,
fishing, agriculture, and resource management passed down
through generations.
·
Healthcare: Knowledge of medicinal plants,
traditional healing practices, and midwifery skills.
·
Environmental knowledge: Understanding of local ecosystems, weather prediction, and sustainable resource utilization
practices.
·
Craft skills:
Traditional
techniques for weaving,
pottery, carving, and other crafts, often embedded with cultural
stories and symbolism.
2.2
Illustrate different
types of TK in India , Covering
Area like Medicine ,
Agriculture , Biodiversity and Cultural Expression
Diverse Expressions
of TK in India
India is home to a diverse and vibrant tapestry
of TK systems that span a wide range of aspects in life. India proudly
showcases a rich and vibrant array of TK systems, which encompass a wide
spectrum of life's facets and hold deep roots within its diverse communities.
These TK systems are deeply ingrained within the cultural fabric of the country
and are nurtured by its diverse communities.
Here's a glimpse
into some of the distinct
types of TK practiced in India, showcasing their application in medicine,
agriculture, biodiversity, and cultural expression:
1.
Medicine:
·
Ayurveda: An ancient
holistic medical system that emphasizes preventive care, using
herbal remedies, dietary modifications, and lifestyle practices to promote
overall well-being.
·
Ayurveda herbs.
·
Siddha:
A traditional medical system originating from South India,
focusing on balancing the body's humors (vata, pitta, and kapha) through
herbal concoctions, diet, and
yoga.
·
Unani:
A system of medicine developed in the Greco-Arab world, using
·
plant-based and mineral-based remedies
alongside dietary and lifestyle practices for healing.
2.
Agriculture:
·
Crop rotation:
The practice of planting different
crops in sequence
on the same land to maintain soil fertility and pest control.
·
Indigenous
seed varieties: Farmers have preserved a diverse range
of indigenous seed varieties, well-adapted to local conditions and resistant to pests
and diseases.
3.
Biodiversity:
·
Indigenous knowledge
of medicinal plants:
Communities possess extensive knowledge about the medicinal
properties of various plants, used for treating various ailments.
·
Traditional
water harvesting techniques: Communities have
developed ingenious methods like rainwater harvesting and water conservation practices to adapt
to diverse climatic conditions.
·
Ethnoveterinary practices: Utilizing plants and traditional remedies for treating animal diseases, ensuring the well-being of livestock and maintaining ecological balance.
4.
Cultural Expression:
·
Ikat
weaving: A traditional weaving technique using
resist-dyeing to create intricate patterns, practiced
in various regions
of India with distinct style and
motifs
·
Warli art: An indigenous art form from Maharashtra depicting scenes from daily life, nature, and mythology using
simple geometric shapes and earthy tones.
·
Yaan: Folk songs and ballads passed down through
generations, often carrying historical narratives, cultural
values, and social commentary.
By understanding and appreciating the diverse expressions of TK in India, we can foster a more inclusive and sustainable
future, where these valuable knowledge systems continue to thrive and
contribute to the well-being of communities and the planet.
2.3
Discuss the Cultural and Spiritual Significance of TK for Traditional Communities
Cultural and Spiritual Significance of TK for Traditional Communities
TK intertwines profoundly with the very
essence of cultural identities, becoming an intrinsic component of a
comprehensive worldview for countless communities. It becomes inseparable from their ways of life, values, spiritual
beliefs, and customary legal systems, forming an
unbreakable bond that shapes their cultural identity.TK transcends its
practical applications and holds immense cultural
and spiritual significance for the communities that hold and practice it.
Here's a deeper exploration of this significance:
1.
Embodiment of Cultural Identity:
·
Shared
history and heritage: TK serves as a repository of a
community's history, traditions, and values, passed down from ancestors and reflecting their unique way of life.
·
Sense
of belonging and continuity: Engaging with TK
practices fosters a sense of belonging and connection to past generations, strengthening communal
identity and social cohesion.
2.
Spiritual Connection:
·
Harmony with nature: Many TK systems are deeply rooted
in a spiritual belief in the interconnectedness of all living
things, promoting respectful interactions with the environment.
·
Rituals
and ceremonies: TK often manifests in rituals and
ceremonies, connecting communities to their spiritual
beliefs and practices, offering a sense of
purpose and meaning.
·
Healing practices: Traditional medicine and healing
practices often incorporate spiritual elements, using
plants, chants, and rituals to restore balance and well-being.
By recognizing the cultural and spiritual significance of TK, we can contribute to a future where these invaluable knowledge
systems are valued, protected, and continue to enrich the cultural tapestry of
our world.
CHAPTER 3
WHAT IS THE ROLE OF WIPO IN PROTECTING TRADITIONAL KNOWLEDGE
The WIPO General
Assembly formed the WIPO Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore ("IGC") in October 2000 to investigate the connections between
intellectual property and these related fields. In order to
create an international legal instrument or instruments specifically addressing
the protection of TK, traditional cultural expressions, and genetic resources.
The WIPO Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge, and Folklore (IGC) is a specialized forum
within the WIPO. Its purpose is to
address the protection of TK, traditional cultural expressions (TCEs), and
genetic resources (GRs) on an international level.
The WIPO plays
a multifaceted role in promoting the protection of TK, though
it doesn't directly offer legal protection itself.
Here's an overview of its key activities:
·
International Negotiations: WIPO facilitates discussions for an international legal instrument that would define TK and
establish how it should be protected. This agreement would address ownership,
access rights, and benefit sharing.
·
Policy
and Legislative Assistance: WIPO helps countries develop national laws and policies that better safeguard
TK within their borders.
·
Supporting Communities: WIPO works with
indigenous peoples and local communities to empower them in managing and
protecting their traditional knowledge. This can involve capacity
building workshops and raising awareness about TK rights.
·
Encouraging TK Entrepreneurship: WIPO
supports initiatives that help communities leverage their traditional knowledge
for economic benefit. This could involve commercialization strategies or intellectual property management training.
·
Documentation and Best Practices: WIPO promotes the documentation of TK to prevent its loss and create a record of
ownership. They also share successful strategies for TK protection from around
the world.
Challenges and limitations:
While WIPO plays a significant role in promoting
TK protection, it's important to acknowledge the challenges:
·
Lack of an international legal instrument: Negotiations at the IGC have yet to
reach an agreement on a legally binding international instrument specifically
for TK protection.
·
Balancing diverse
interests: Finding a solution that balances the interests of communities, governments, and potential
users of TK remains a complex and ongoing challenge.
In spite of its limitations, WIPO's
multifaceted approach plays a significant role in establishing a supportive and enabling environment for the protection and sustainable
utilization of traditional knowledge.
CHAPTER 4
CHALLENGES IN PROTECTING TRADITIONAL KNOWLEDGE
A comprehensive mechanism for communities to jointly secure their TK
across all fields is lacking in the current IP system, which allows people to
protect their inventions and IPRs. Communities frequently fail to exercise
their rights to collective IP registration, even in situations where
it is practical. As a result, TK is typically not protected by the IP system in India or elsewhere in the
world. It is noteworthy, nonetheless, that the IP system has protected
traditional knowledge TK through geographical indicators with some degree of
success, especially when it comes to wines and spirits.[2]
Despite WIPO's
efforts, protecting TK remains complex due to several challenges:
·
Intangible Nature:
Unlike inventions or designs, TK is often passed down orally
or through practice, making it difficult to document and prove ownership.
·
Collective Ownership: Traditional knowledge frequently belongs
to a community rather than a single individual.
·
Biopiracy:
Biopiracy refers to the unauthorized appropriation of
genetic resources or associated TK by researchers or companies, often without fair compensation to indigenous
communities.
·
Misappropriation: Traditional knowledge can be misappropriated and exploited
commercially without the knowledge or consent of its holders.
·
Lack of Awareness: Many indigenous communities lack awareness of their rights
regarding traditional knowledge and how to protect them.
·
Weak Legal
Frameworks: National and international laws may not adequately
address the unique characteristics of traditional knowledge.
4.1
Explain the Limitation of Existing IP System like Patent and Copyright in Protecting TK
Limitations of Patents:
·
Novelty Requirement: Patents
typically require an invention to be novel, meaning new and unique.
·
Inventive Step: Patents often require an inventive step– the invention
shouldn't be an obvious solution to a problem. Many TK-based practices,
though innovative, may be seen as lacking this step due to their incremental
and community-based development.
·
Individual
Ownership: Patents privilege individual inventors. TK is
inherently collective and intergenerational, rendering it unsuitable for individual ownership.
·
Focus on Products: Patents tend to focus on tangible
products, which may not
easily align with intangible TK systems such as traditional medicines or
cultural practices.
Limitations of Copyrights:
·
Originality Requirement: Copyrights usually require a fixed and original form of
expression. Much TK is orally transmitted, dynamic, and collectively developed,
potentially hindering its eligibility.
·
Limited Duration:
Copyrights have a limited term of protection. However, TK may have
significance that communities seek to protect in perpetuity for the
preservation of their heritage.
·
Focus on Individual Creators: Copyrights emphasize individual authorship, not aligning with the collective nature of authorship and
transmission of TK.
The current IP frameworks primarily cater to
Western concepts of innovation and ownership, which leads to a fundamental
disregard for the distinctive attributes of TK. These frameworks fail to
recognize and adapt to the collective nature, evolutionary essence, intangible aspects, and profound
spiritual and cultural
values inherent in TK.
As a result of this mismatch, TK is left vulnerable to misappropriation and exploitation,
lacking adequate protection within existing IP systems.
4.2
Analyze the Ethical Concern
Surrounding the Commercialization of TK Without Fair
Compensation or Benefit - Sharing
Ethical Concerns of Commercializing TK Without Fair Compensation or Benefit-Sharing
The commercialization of TK without
fair compensation or benefit-sharing raises significant ethical concerns that
deserve critical analysis.
Here's a breakdown of these concerns:
1.
Injustice
and Exploitation:
·
Communities that have developed and sustained TK over
generations are excluded from the economic benefits derived from its
commercialization. This creates an unjust
situation where communities are not adequately compensated for their intellectual contributions.
·
This lack of compensation can further marginalize and disadvantage already vulnerable communities,
exacerbating existing inequalities and perpetuating historical injustices.
2.
Lack
of Informed Consent:
·
Communities may not be fully informed
about the potential
uses and commercial value of their TK before it is
appropriated. This lack of informed consent raises ethical questions
about the exploitation of communities who may not fully
understand the implications of sharing their knowledge.
3.
Cultural
Appropriation and Disrespect:
·
Commercialization without fair compensation can be seen
as a form of cultural appropriation, where the intangible cultural heritage of
a community is exploited for commercial gain without proper acknowledgment or respect. This can lead to
the trivialization and commodification of cultural practices and beliefs.
4.
Loss
of Control and Cultural Erosion:
·
When communities lose control over their TK due to
lack of proper recognition and protection, it can lead to cultural
erosion and the loss of valuable knowledge.
This can have a devastating impact on the cultural identity,
traditions, and spiritual
connection of communities.
CHAPTER 5
SUI GENERIS SYSTEM FOR TRADITIONAL KNOWLEDGE PROTECTION
5.1
Define the Concept of SUI Generis
System and their Flexibility in Addressing the Unique needs of TK
A sui generis system (Latin
for "of its own kind") refers to a legal framework specifically designed to address the unique characteristics and needs of a
particular subject matter.
A new intangible property right known as a
sui generis regime may be created, which would
prevent anybody but the right holders from using this intergenerational knowledge without their permission.
Perpetual protection, the preservation of historical collective
cultural works, and the preservation of
knowledge that might be valuable but isn't, by intellectual property
law's definition, inventive
or creative are all possible
features of a traditional knowledge right.
In the context of TK,
a sui generis system aims to offer a tailor-made
solution that acknowledges the cultural,
communal, and non-commercial aspects of such knowledge. Compared
to attempting to fit TK into existing
IP frameworks, which often
struggle to accommodate its unique nature, a sui generis system offers greater flexibility in several ways:
1.
Addressing the shortcomings of existing IP:
·
Existing IP systems like patents and
copyrights emphasize individual
ownership, novelty, and commercialization, which often contradict the collective, dynamic, and non-commercial nature of TK.
·
A sui generis
system can offer flexibility in defining protected
subject matter, allowing for
the inclusion of:
?
Cultural
expressions like traditional music, stories, and rituals.
?
Ecological knowledge associated with biodiversity and resource
management.
?
Traditional practices alongside potentially patentable elements.
2.
Key features of a sui generis system for TK protection:
·
Community-based
ownership: Recognizing communities as the collective
holders of TK and granting
them control over its use and access,
unlike individual ownership
in traditional IP.
·
Benefit-sharing
mechanisms: Ensuring fair
and equitable distribution of benefits arising from the commercialization of TK, addressing the concerns of exploitation and lack of compensation.
·
Prior
informed consent (PIC): Establishing procedures for obtaining
the consent of communities before using or commercializing their knowledge,
ensuring their voice is heard and addressing ethical concerns.
·
Documentation
and registration: Providing flexible and culturally sensitive systems for communities to document and register their
knowledge, respecting their
traditions and avoiding rigid formalities.
·
Dispute
resolution mechanisms: Establishing fair and accessible frameworks for resolving
disputes related to TK ownership
and use, addressing potential conflicts surrounding
knowledge transmission and sharing.
3.
Benefits of flexibility:
·
Empowering
indigenous communities: Providing them with greater control over their
knowledge, fostering participation in decision-making processes, and ensuring their voices are heard.
·
Promoting
fair and ethical use: Encouraging responsible research and
development practices that respect the rights and interests of TK holders, addressing concerns around
exploitation and misappropriation.
·
Enhancing
knowledge sharing: Encouraging communities to share their
knowledge openly when they are assured of fair treatment
and potential benefits, fostering collaboration and
scientific advancement.
It's important to
note that developing and implementing a sui generis
system effectively requires ongoing
dialogue, collaboration, and respect
for the diverse
cultural contexts surrounding traditional
knowledge. While a sui generis system offers promising flexibility in addressing the unique needs of TK, its
successful implementation relies on continued efforts
to ensure fairness, equity,
and respect for indigenous communities and their
invaluable knowledge.
5.2
Showcase
Successful examples of SUI Generis Systems from Around the World , like the Philippines’ Indigenous peoples rights act and the Navajo Nation’s Access and
Benefit - Sharing Policy
While there is no single, universally adopted
sui generis system for protecting TK worldwide, several countries and communities have implemented innovative legal and policy
frameworks that demonstrate the potential of this approach.
Here are two successful examples:
1.
The Philippines' Indigenous Peoples Rights Act (IPRA) of 1997:
·
Focus:
IPRA recognizes the rights
of indigenous cultural communities/indigenous
peoples (ICC/IPs) to
their ancestral domains
and the collective ownership
of their traditional knowledge, cultural
practices, and intellectual property.
·
Key Features:
?
Community-based protection: IPRA acknowledges collective ownership of TK by ICC/IPs and grants them the right to control
its access, use, and commercialization.
?
Free and Prior Informed
Consent (FPIC): Requires obtaining informed consent from ICC/IPs before any research or
development activities involving their TK are undertaken.
?
Benefit-sharing mechanisms: Establishes mechanisms for ensuring
fair and equitable benefits are shared with ICC/IPs if their TK is
commercially utilized.
·
Success: IPRA has been recognized for its progressive approach
to protecting TK and
promoting the rights of indigenous communities. However, challenges remain in
implementing the law effectively, including limited resources and capacity
building for ICC/IPs to fully exercise their rights.
2.
The Navajo Nation's Access and Benefit-Sharing Policy (ABSP) of 2003:
·
Focus:
The ABSP establishes a framework for ethical research and development involving the biological
resources and traditional knowledge of the
Navajo Nation.
·
Key Features:
?
Community
consent and participation: Requires researchers to obtain informed consent
from the Navajo
Nation and relevant
communities before conducting
research and ensures their participation throughout the process.
?
Benefit-sharing:
Establishes a mechanism for equitable sharing of benefits arising
from commercialization of research and development
activities using Navajo resources and knowledge.
?
Protection
of knowledge and cultural integrity: Aims to protect the confidentiality and intellectual property
rights of the Navajo Nation associated with their TK and
cultural resources.
·
Success: The ABSP has been lauded for its comprehensive approach
to addressing ethical concerns and ensuring equitable benefits for
the Navajo Nation. It serves as a model for other indigenous communities
seeking to manage access to their resources and knowledge.
These examples showcase the potential of sui generis systems in
addressing the unique challenges of protecting TK and empowering communities to control their knowledge, share it ethically, and
benefit from its potential applications.
CHAPTER 6
APPLICABILITY OF SUI GENERIS
SYSTEM IN INDIA
6.1
Analyze the
Current Legal Framework for TK Protection in India , Including the Protection
of Plant Varieties and Farmers’ Rights Act, Geographical Indications Act and the Draft Traditional Knowledge
Bill
While India lacks
a single, comprehensive law dedicated solely
to TK protection, it has adopted a multifaceted approach through various existing legislations and
proposed bills.
Here's an analysis of three key components:
1.
Protection of Plant Varieties and Farmers' Rights Act (2001):
·
Focus: Protects the rights of plant breeders and
farmers by providing a sui generis system for the registration
of plant varieties.
·
Key Features:
o Farmers' Rights: Recognizes
the rights of farmers to save, use,
exchange, sell, and commercially exploit
their farm-saved seeds of protected varieties.
o Benefit-sharing: Requires benefit-sharing between breeders and farmers
when protected varieties are commercially exploited.
o Community rights: Recognizes the contributions of communities in conserving and developing plant
varieties, though specifics are not well-defined.
2.
Geographical Indications (GI) Act (1999):
·
Focus: Protects geographical indications (GIs), which are products associated with a specific geographical
location and possessing specific qualities or reputation due to that origin.
·
Relevance
to TK: Many GI-protected
products often rely on traditional
knowledge and skills associated with their production. Protecting GIs helps indirectly protect the associated TK.
·
Limitations: GIs only offer limited protection for the knowledge itself, focusing primarily on product origin and characteristics.
3.
Draft Traditional Knowledge Bill (2016):
·
Status:
Currently a draft
bill, not yet enacted into law.
·
Focus: Aims to establish a sui generis system for the protection of India's traditional knowledge from misappropriation and unfair commercialization.
·
Key Features:
o Community ownership: Recognizes communities as
the collective owners of their traditional knowledge.
o Documentation and registration: Aims to establish an optional
system for documenting and registering TK.
o Benefit-sharing: Provides
a framework for fair and equitable
o benefit-sharing when
TK is commercially utilized.
o Biopiracy prevention: Aims
to address the issue of biopiracy by
establishing mechanisms to prevent the unauthorized access
and use of TK.
6.2
Evaluate the Strengths and Weaknesses of these Existing Measures in Addressing the
Specific Needs of TK Protection
Strengths:
·
Multifaceted approach: India
acknowledges the complexity of TK protection by employing various legislative tools, each catering to
specific aspects.
·
Recognition of farmers' rights:
The Protection of Plant Varieties
and Farmers' Rights Act offers
a unique model by recognizing and protecting the rights of farmers, who are
crucial custodians of TK related to agriculture.
·
Geographical Indications Act: This act indirectly protects
certain aspects of TK
by safeguarding the reputation and origin of products linked to traditional
knowledge and skills.
·
Draft
Traditional Knowledge Bill: This proposed
legislation, if implemented effectively, can address crucial gaps by
recognizing community ownership, establishing
optional documentation and registration, and providing a framework
for benefit-sharing and biopiracy prevention.
Weaknesses:
·
Fragmentation:
The current framework lacks a unified and cohesive approach, making it complex and potentially challenging to navigate for both
communities and potential users.
·
Limited scope: Existing laws like the Protection of Plant Varieties
and Farmers' Rights Act
primarily address specific aspects like plant varieties, leaving other domains of TK, such as medicinal knowledge or cultural
expressions, inadequately addressed.
·
Challenges
in implementation: The effectiveness of existing laws,
particularly the GIs Act, in directly
protecting the underlying TK associated with GI-protected
products remains a concern.
·
Draft
Bill's uncertainties: The Draft Traditional Knowledge Bill,
while a positive step, faces uncertainties regarding its potential for creating bureaucratic burdens for communities and the effectiveness of its proposed
mechanisms in addressing complex issues like
benefit-sharing and biopiracy prevention.
6.3
Assess The
Protection And Challenges of Adapting and Implementing a SUI Generis
System For TK Protection in the Indian Context
The merits of a sui generis IP style TK right are dubious because of two
primary challenges with TK, in my opinion. First,
it is extremely difficult to define the boundaries
of the right's application due to the lack of a clear agreement on what an
indigenous or local person is. I do admit that there might be a number of good reasons
for this lack of
agreement, such as political and historical ones that are outside the purview
of this paper's discussion. Secondly, the imbalances brought about by the
abuses of the existing system are not addressed by the suggested traditional
knowledge right. The approach aims to tackle the issues by broadening the scope
of intellectual property instead of trying to fix the current shortcomings
through contracting the regime the effects of preserving information or
artistic creations that represent the combined brainpower of multiple
generations within a distinct group, whether or not they are indigenous.
Potential benefits
of a sui generis system for TK protection in India:
Problems include the diversity of the subject
matter, identifying the owner of the rights, procedures and formalities for the acquisition and maintenance of the rights conferred,
and time limits conferred on the right[3].
·
Comprehensive
approach: A single, dedicated law could address the
limitations of the current fragmented framework, offering a more holistic
approach to TK protection.
·
Community
empowerment: Recognizing collective ownership and establishing control mechanisms can empower communities to manage their TK effectively and prevent
misappropriation.
·
Fair and equitable
benefit-sharing: A well-defined framework for
benefit-sharing can
ensure communities receive
fair compensation when their
TK is commercially utilized, addressing concerns of exploitation.
·
Biopiracy prevention: Robust
mechanisms can be established to prevent unauthorized access and use of
TK, addressing biopiracy concerns.
·
Respect
for cultural heritage: Implementing a sui generis system can
demonstrate respect for India's
unique cultural heritage
and the invaluable knowledge embedded within its
diverse communities.
·
Recognition and Ownership: Communities may be granted
official status and ownership rights under a sui generis
system. This can give communities more control over how their information is
used and help prevent outsiders from misappropriating it.
·
Documentation and Preservation: Since TK is frequently transmitted orally, the system can promote its written
record. This can assist in protecting this priceless knowledge for upcoming
generations.
Challenges of
adapting and implementing a sui generis system in India:
·
Identification
of Holders: Since TK is frequently owned collectively, it
can be challenging to pinpoint specific owners who are qualified to receive
benefits. Determining decision-making procedures and community representation is also difficult.
·
Documentation Methods:
It's critical to strike a balance between
the necessity of documentation
and the requirement to respect cultural sensitivity and safeguard confidential
information. It might be difficult to standardize documentation procedures
while taking into account different cultures.
·
Enforcement mechanism: Sturdy
legislative and administrative frameworks are
necessary for the development of efficient enforcement tools to monitor theft
and protect TK rights.
·
Costs
& Bureaucracy: Putting in place a new system may result
in administrative expenses and bureaucratic roadblocks for the government as well as local
communities. It is critical to streamline procedures and provide accessibility
for communities with minimal resources.
·
Alignment with Existing: The sui generis system must support
current IP rules without adding to their complexity
or duplication. It's critical to strike a balance between promoting innovation
and community rights.
The traditional knowledge narrative suggests
that intellectual property law is under inclusive because it fails to protect
much of the knowledge and creations of traditional knowledge generating communities. However, intellectual property may be a poor tool
for addressing traditional knowledge concerns, except to the extent that
intellectual property law encroaches on indigenous and local communities. A sui
generis system incorporating all TK is inadvisable.
Criticisms include:
·
Subject matter is too diverse.
·
Why create a new law when existing laws
and norms suffice?
·
Difficulty with establishing ownership
of right – also exists with benefit
sharing agreements.
·
Difficulties with applying for right and maintaining it.
·
Difficult to place a time
limit on TK.
·
Constraints placed on existing
laws that might make them non-compliant with International Agreements.
·
Defining
and delineating TK: Defining the scope and boundaries of what constitutes TK can be challenging, considering the diverse nature of knowledge and potential overlaps with
existing IP frameworks.
·
Documentation
and registration: Establishing an optional and culturally sensitive system for documenting and registering TK, while avoiding
excessive bureaucratic burdens on communities, is crucial.
·
Benefit-sharing mechanisms: Designing equitable and effective benefit-sharing mechanisms that are adaptable to diverse contexts
and types of TK utilization
requires careful consideration.
·
Enforcement
and dispute resolution: Developing robust mechanisms for enforcement and dispute resolution related to TK protection is essential for the
system's effectiveness.
·
Capacity building: Equipping communities with the necessary resources and skills to navigate the system,
participate in decision-making processes, and effectively manage their TK is
crucial.
6.4
CONSIDER RELEVANT
CASE STUDIES
With only 2.4% of the world's surface area, India is a massively diverse
nation that is home to 7 - 8% of all known species,
including approximately 45,000
plant species and 91,000 animal species. Four of the 34
global hotspots for biodiversity—the Himalaya, the Western Ghats, the
Northeast, and the Nicobar Islands—are located in India. In addition, India is
the world's top producer of medicinal herbs, and the concepts behind the
traditional medical systems Ayurveda, Siddha, and Unani originated there
between 2500 and 500 BC. It is acknowledged that India is a biologically varied country and that
its TK of many resources, particularly the medical
system, makes it a wealthier country; yet, the knowledge of these resources needs to be both
conserved and promoted.[4]
Case Studies:
Yoga is an example of subject matter that has
been described as TK and which is partially protected through intellectual
property law. Although it has become popular throughout the world, yoga is a
traditional practice that originated in India several generations ago. While
yoga per se is not protectable, yoga poses have been copyrighted in the United
States, leading to debates about whether yoga is in the public domain. Other
well-known examples of TK include the medicinal uses of spices such as turmeric
and plants like the hoodia cactus, or neem. The patenting of turmeric is an
example of alleged misappropriation. Although the traditional knowledge about
the uses of turmeric is not protectable, two Indian expatriates based in the
United States obtained an American
patent on the use of turmeric in wound healing. Turmeric is a spice used in
Indian cooking. It has also been used in traditional medicinal practices to
heal wounds and rashes. The Council of Scientific and Industrial Research
(“CSIR”) in India challenged the validity of the patent,
arguing that the use of turmeric was not novel because it had been used
medicinally in India for thousands of years. The CSIR supported its claim with
a printed publication from an Indian medical association and was successful in
having the patent revoked. However, if the traditional medicinal knowledge had
not been documented, the patent may not have been invalidated. An American
patent covers the application of turmeric for wound healing. Indian cuisine makes
use of the spice turmeric. Additionally, it has been utilized to treat rashes
and wounds in conventional medical procedures. Since turmeric has been used
medicinally in India for thousands of years, the Council of Scientific and
Industrial Research ("CSIR") in that country contested the patent's validity. The Indian Medical
Association's printed publication, which the CSIR used to bolster its
claim, was successful in getting the patent invalidated. Nevertheless, the
patent might not have been void if the conventional medical knowledge had not
been recorded.
Turmeric
case: In 1997, the US Patent and
Trademark Office granted a patent to the University of Mississippi for a process
using turmeric to heal wounds.
This sparked outrage in India, as the use of turmeric for healing has
been documented in traditional Ayurvedic medicine for centuries. The patent was
eventually revoked due to lack of novelty, highlighting the importance of
recognizing prior traditional knowledge.
·
Neem case: In 1995, the US Patent and Trademark Office granted a patent to the US Department of Agriculture for a
neem-based pesticide. The Indian government challenged the patent, arguing that
the knowledge of neem's pesticidal properties was already well-established in India and belonged to the
public domain. The patent was eventually abandoned, demonstrating the potential
for legal challenges against misappropriation.
·
Basmati
rice: Another instance that caused a lot of chaos
included a patent for "Basmati rice lines and grains" that the USPTO
issued to RiceTec, an American corporation. In India and Pakistan, basmati rice
is a traditionally cultivated aromatic kind of rice. A plethora of intellectual
property (IP) concerns, including those pertaining to trade marks and
geographical indications, were raised by the patent's issuance. Due to the
lower quality of Basmati rice grown in the US compared to the higher quality Basmati
rice being cultivated in northern India and
Pakistan, RiceTec was granted a patent for the invention of hybrid rice lines,
which combined desirable grain traits of Basmati rice with desirable plant
traits. This would aid in growing a better crop of Basmati rice In the western
hemisphere, basmati rice is most popular in the US. A request for reexamination
was submitted, accompanied by affidavits from two scientists, multiple
publications on Basmati rice, and research on rice in India, one of which led
the USPTO to conclude that RiceTec's central claims were not immediately apparent. As a result, RiceTec's twenty claims were reduced to
three and it decided not to contest the USPTO's ruling.
CHAPTER 7
THE NEED FOR SUI GENERIS PROTECTION
Some communities and nations have determined that modifications to the
current IPR frameworks are not enough to address the comprehensive and distinct
nature of TK subject matter. As a result, it was decided to use sui generis
rights to defend TK. An IP system becomes sui generis when certain of its properties are changed to appropriately
handle the unique features of its subject matter and the particular policy
requirements that gave rise to the creation of a unique system.
Here are some examples from different countries of the use of sui generis IP rights to safeguard TK:
1. Law No. 27,
811 of 2002 established the sui generis regime in Peru, with the goals of
safeguarding TK, to ensure that the knowledge is used with the prior informed agreement
of the Indigenous peoples, to encourage a fair and equitable
sharing of benefits, and to prevent theft. Indigenous peoples' collective
knowledge pertaining to biological resources is protected. Indigenous peoples
have the legal right to approve the use of Traditional Knowledge. In addition,
the law stipulates that fair compensation for the usage of specific TK types
must be paid to TK holders directly or into a national fund for indigenous
development.
2. The goal of
Costa Rica's Biodiversity Law No. 7788 is to control access to TK. It
stipulates that the advantages resulting from the use of TK will be fairly
distributed to TK holders. The Law defines
two scopes of subject matter:
first, TK, to which it
governs access, and second, TK, to which it grants exclusive rights. The
National Commission for the Management of Biodiversity will define the terms
and boundaries of sui generis community intellectual rights, as well as who
will hold the title, through a participatory process with indigenous and small
farmer communities.
To know more about the sui generis protection in India. There was a small
survey conducted on 60 people who have different
educational backgrounds. The purpose of conducting this small survey is to get
the information regarding knowledge among the people regarding traditional
knowledge.
This data show thought of people regarding many question in context of sui generis system :
1. How many people are aware of traditional knowledge
in regard to intellectual
property?
2. Is the present intellectual property framework adequate
to protect the traditional
knowledge?
3. What would
be the biggest concern regarding protection of traditional knowledge?
4. How many
people know about the sui generis ?
5. Is sui
generis important to protect traditional knowledge?
6. What can be
the potential challenges in implementing sui generis?
7. Who should
be responsible for managing and enforcing sui generis?
8. Is it
important to protect traditional
knowledge and cultural experience?
Fig 1
The first data show the educational background of the people who have
been involved in the test conduct . The data was collected from the background
of the people who are young and pursuing their degree which are considered high
in our society . Because If they will identify the problem and suggest for
better solution then it will be not more challenges for the people that have
less knowledge about it but if youngster have not knowledge that how can we expected
from that people who have less knowledge about it . As we all known
that the youngster is the future
of developing country
so it should be needed
that first youngster should know the things then the importance of protection
of traditional knowledge possible at the some extent.
Fig 2
From the above
data we easily
calculate interference, a large number
of the people still don't
know the importance of traditional knowledge.
Fig 3
56.7% of the people answer to this question that existing intellectual
property frameworks are adequate
for protecting traditional knowledge whereas the 25% of the
people don't know it protection can be possible
under these intellectual property or not and the 18.3% of the people is
clueless regarding the protection of traditional knowledge.
Fig 4
Lack of benefit-sharing with the communities is also called a biggest
concern by the people because it is that when TK is accessed and
commercialized, a framework can be developed to guarantee benefit sharing that
is just and equal. Communities may receive financial rewards
for sharing their expertise and making contributions to R&D as a result.
Fig 5
51% of the people have the knowledge of the concept of sui generis
protection of traditional knowledge
whereas 48.3% of the people have not heard that term. It shows that 48% of the people only heard about
traditional knowledge but they didn't
know that there was a system
to protect this knowledge.
Fig 6
Here the percentage of people who agree or disagree is 48.3% . 48.3% of
the people who agree think
that there should
be a system like sui generis to protect the traditional
knowledge where the 48.3% of the people who disagree with the system and the
remaining people are clueless over it .
Fig 7
Lack of Identification of knowledge holders is one the main concern for
protecting the traditional knowledge because
if we don't know the true owner
or the true owner don't know they can protect their
knowledge then how we can resolve the problem and the mechanism was the concern
for protecting although it is one of the reason because if there was proper law on it or any enforcement mechanism regarding it then it will be the beneficiary for the people to
identify and people take it on serious note .
Fig 8
53% of the people think
that the government is responsible for managing and enforcing
sui generis protections for the traditional knowledge, 33.3% of the people
think that indigenous communities are responsible and 13.3% of the people think
that international organizations .
Fig 9
68.3% of the people strongly agree that it is important to protect the
traditional knowledge and cultural
expression whereas 23.3% of the people just accept the fact
that it is important to be protected whereas 8.3% have neutral opinion on it.
These data not only show the knowledge
of people regarding
traditional knowledge or cultural expression but it also shows
that everyone is concerned with protecting the cultural heritage. Here the government can play a very vital
role through implementing some law regarding this and
strict punishment for the people who misuse the other
traditional knowledge practice in his own name . It should be important
that proper functioning and management for this otherwise will create a very major
issue in the future.
Traditional Knowledge
Digital Library (TKDL)
The Central Government's Planning Commission
established a "Task Force on Conservation and Sustainable Use of Medicinal
Plants" in June 1999. Finding ways to make the "patent rights and IPR
of medicinal plants" easier to defend was one of its goals. The Task Force recommended, among other things,
the establishment of a library to guarantee the collection of
traditional knowledge on a single platform. This library will be digitally
accessible and aid in demonstrating to the rest of the world that traditional medicinal knowledge
associated with India is prior art, meaning
that patent applications based on such knowledge will
not meet the requirements for novelty. As a result, an archive of traditional
knowledge in India was created.
A database containing more than 2,50,000
formulas used in Indian traditional medicine systems, such as Ayurveda, Siddha, Unani, and Yoga, is
called the Traditional Knowledge Digital Library (TKDL). TKDL is an innovative
attempt by India to stop the theft of the nation's traditional medical
knowledge at foreign patent offices, which is essential for millions of
people's livelihood and to meet the healthcare needs of over 70% of the population. The world has taken notice of India's
efforts to prepare a digital library as a defensive measure
against biopiracy and the theft
of traditional knowledge. But acknowledgment alone is insufficient; what is required
is the establishment of a fair
benefit-sharing structure.
The TKDL expert group estimated in 2005 that
approximately 2000 incorrect patents pertaining to Indian medical
systems were being granted annually
at the international level. This was primarily because Indian
traditional medical knowledge, which is available in regional languages like
Sanskrit, Hindi, Arabic, Urdu, Tamil, etc., is inaccessible and difficult for
patent examiners at international patent offices to understand.
CONCLUSION
With an emphasis on current IP laws and rules, the suitability of
intellectual property protection to protect traditional knowledge in India is
examined. It is stressed that a sui generis mechanism that is especially
designed to safeguard TK is necessary. The objectives of sui generis
instruments are to protect traditional knowledge, safeguard the rights of indigenous peoples, guard
against abuse, and control access and benefit distribution. A notable
"mismatch" exists between traditional knowledge and traditional
cultural expressions on one side and the intellectual property
system on the other. While TK
and cultural expressions have existed long before the development of the intellectual property system, they were
generally not regarded as protectable subject matter due to their inability to
meet certain criteria for protection. For instance, they may not fulfill
requirements such as originality, fixation, and identifiable author
for copyright protection, or novelty and inventive step
for patent protection. While there are certain gaps in the ability of IP to
safeguard traditional knowledge and traditional cultural expressions, existing
intellectual property laws can still be valuable in protecting and promoting
the contemporary creations and innovations of indigenous peoples and local
communities. By effectively addressing challenges
and pursuing further research, India can harness the potential of Sui Generis
systems to create a legal framework that fosters the protection, preservation,
and development of its rich traditional knowledge. This will ensure that TK
continues to serve not just as a legacy of the past, but as a cornerstone for a
sustainable and equitable future.
RECOMMENDATION
It was recognised early enough that an IPR sui generis system was
necessary. Biopiracy and misuse are probable consequences of any delays in this
field. Also, the idea of conservation and sustainable use of plant genetic
resources is being buried by such delays. It is also untrue to say that many
groups are denied access to their tradition
and knowledge because
there is no sui generis
system in place.
This has a lot
to do with the fact that the nations lose considerable amounts of income that
they can rightfully need for their own development. Therefore, it is advised
that states establish sui generis IPR regimes as soon as possible. Restoring
some of the benefits of
traditional knowledge to communities, protecting biodiversity, and ensuring
the sustainable use of resources need to be the main objectives.
The link between knowledge that is and is not protected by intellectual
property legislation seems to be the main focus of the conventional knowledge
discourse. Essentially, one of the main causes of the issue is the way the intellectual property
laws interact with traditional knowledge and enable what is considered
to be unjust use of it.
It is important
to create independent indicators to protect
biodiversity of communities but there are many ways to do this. On the international level,
declarations, treaties and the Convention of Biological Diversity and at the
national level through consultative committees, watchdog bodies, amendments to
existing legislation and best practice guidelines.
When legislators work to create
a sui generis framework to safeguard TK, In general, they must take into account the
following important issues:
1. What
is the ideological goal behind the protection?
2. What
kind of content or subject matter needs to be safeguarded?
3. What
requirements does this material need to fulfill in order to be protected?
4. What
kind of people benefit from protection?
5. What
are the rights?
6. How
are the rights obtained?
7. How
are the rights enforced and exercised ?
BIBLIOGRAPHY
8. J.Janewa OseiTutu,Emerging Scholars Series: A Sui Generis
Regime for Traditional
Knowledge: The Cultural Divide in Intellectual Property Law, Vol 15.
[1] World intellectual property
organization(WIPO),Intellectual property and traditional knowledge https://www.wipo.int/tk/en/tk/
[2] Ishita chatterjee,intellectual property rights and
traditional knowledge - indian perspective https://www.manupatra.com/roundup/363/articles/ipr%20and%20traditional%20knowledge.pdf
[3] IPTF Luncheon, january 14,2004, New york city,
international intellectual property institute https://iipi.org/wp-content/uploads/2010/07/NewYork011404.pdf