Open Access Research Article
PRESERVING HERITAGE: STRATEGIES FOR PROTECTING TRADITIONAL KNOWLEDGE IN IP LAW
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“PRESERVING HERITAGE: STRATEGIES FOR PROTECTING TRADITIONAL
KNOWLEDGE IN IP LAW”
AUTHORED BY
- ANKITA SRIVASTAVA
Abstract
Traditional Knowledge constitutes skills, and practices that are created,
maintained, and transmitted from generation to generation within a society and
frequently constitute a component of its cultural or spiritual identity.
Traditional knowledge is a
significant characteristic of the most native cultural identities.It is
composed of most needed and vital elements required to achieve sustainable
development of the environment. There have been endless efforts to exploit the
nature of traditional knowledge in pursuance of financial and commercial gains
therefore misappropriating the authentic holders of their recognition .Hence
preservation of the social and physical environment of the traditional knowledge
is of utmost importance. The community that has amassed the information throughout time is the rightful
owner of collective knowledge. It is made up of customs, guidelines, and
knowledge that have been transmitted within an indigenous society from one generation
to the next. The Indian government’s Council for Scientific and Industrial
Research took the initiative to record traditional knowledge (TK) in the
Traditional Information Digital Library (TKDL) in order to safeguard TK, which
has since shown to be beneficial for the preservation of traditional knowledge
The paper discusses
many strategies that have been used to secure TK through positive and
defensive protection. The paper lists the feature of the traditional knowledge , rationale behind
its protection and significance of intellectual property law in protection of
traditional knowledge. The paper also discusses the role of international
organisations in safeguarding traditional knowledge. Pertaining to specific
flaws in the current IPR system, bio pirates exploit intellectual property
rights (IPR) as a weapon to misuse biological resources and steal conventional
knowledge. The conclusions of this paper bring out gaps in the current IPR system with reasonable and
possible suggestions.
INTRODUCTION
India is a country of culture , traditions
and invaluable heritage. India ranks 12th[1]under
super biodiversity countries. It is known for its rich biological diversity
heritage and has recorded over 91200 animal species and 45500 plant species in its
10 bio geographic regions. It is a hub of crop and wild varieties. This
reassuring environment makes India rich in traditional knowledge of the
properties and uses of this various biological assets. The indigenous and local
population have their habitat in this natural bounty area and they possess
conventional environmental information and sustainable importance. Traditional
knowledge is hard to achieve and open to vulnerabilities. The invaluable
traditional knowledge is a treasure for sustainable future hence vulnerable to
misappropriation therefore demands protection.
Traditional knowledge refers to the Knowledge
that has been transmitted orally via experience and teachings from one
generation to the next. There are very few written accounts of these customs;
instead, this kind of information is stored in a community’s collective memory
and is always changing. Many ancient tribes’ senses of cultural and spiritual
identity is deeply ingrained in their traditional wisdom, which is sometimes
even revered.
The fact that TK has no proprietors
and that the identity of its original creator(s) is unknown is one of its main
characteristics. Rather, every generation has custodians who protect it for the
good of the entire community The extensive collection of knowledge known as
traditional knowledge (TK) encompasses a wide range of topics, including the
properties of various plants, animals, minerals, and soils; combinations of
organic and inorganic materials; medical knowledge; and folklore expressed
through crafts, music, dance, poetry, and other artistic mediums.
Traditional knowledge also safeguards
all intellectual creations made by ancestors and progressively improved by
succeeding generations in a traditional community, including science,
technology, ecology, medicine, agriculture, and biodiversity. TK is utilized to
maintain the necessary genetic capital for the community's continuous survival
as well as the population and its culture. The need for an efficient defence of
traditional information has grown, either as a result of the establishment of
the conventional IPR framework or through a modern sui generis system[2],
such as the traditional rights of the group or the rights of group land. There is also a need to encourage societies
to leverage traditional perception for their progression and improvement.
FEATURES OF TRADITIONAL KNOWLEDGE
Peoples with long histories of
interacting with the natural environment have retained and produced a
cumulative body of information, know-how, practices, and representations that
is collectively known as traditional knowledge. These intricate webs of
knowledge, interpretations, and meanings are a component of a larger cultural
complex that includes worldviews, language, naming and classification schemes,
rituals, and the utilization of resources.
1- Embedded with context-Indigenous
knowledge is transmitted by “doing” and observation. The skills and information
required for survival are part of the knowledge that is inherent in the natural
world.
2- Holistic knowledge -Every piece of
knowledge is related. Indigenous knowledge is crafted from myths, tales,
customs, abilities, and values that collectively paint a complete picture of
how interdependent humans and their environment are.
3- Living Interdependence -Native
Americans are aware of the unbreakable bond between humanity and the land. The
traditional wisdom of Indigenous people views “all my relations” as including
all species and the planet, preserving sacrosanct, respectful, and long-lasting
relationships with the ground.
4- Long term perspective – Indigenous
people circle time with “a long-term sustainable viewpoint and a
multigenerational perspective for decisions”.
5- Dynamic culture -While preserving
their connection to the land, indigenous cultures have been fast to adopt new
technology, work to better their lot in life, and change and adapt colonial
systems to suit their needs.
RATIONALE TO PROTECT TRADITIONAL
KNOWLEDGE
Indigenous people provide the
rationale for maintaining traditional centres of expertise on social justice
issues and the right to preserve, manage, and control one’s cultural heritage.
Additionally, those communities have a right to a just reward for their
development. Furthermore, because TK has so much to offer contemporary society,
even non-Indigenous people are deeply motivated to see to it that it is used
equally. It is being utilized more and more to support decision-making in a
number of areas, including food and diversity, health, commerce, and economic
expansion. On this basis, TK should be safeguarded for five reasons.
a-Equity
b-Conservation of biodiversity
c-Preservation of established practices
d-Prevention of bio piracy, and
e-TK’s significance in development
Equity
Interest generated by traditional
knowledge is not appropriately recognized or compensated for. For instance, by
consistently choosing the best kinds that are suited to their needs,
traditional[3] farmers
have enhanced the value of plant genetic resources by caring for, using, and
enhancing both plants and animals. At this point, seed businesses gather the
varieties, prepare them, and market them for purchase. They are also allowed to
protect the varieties and profit from them while the farmers are left out
thanks to Plant Breeders Rights. Hence, the genetic diversity found in
agricultural plants—variants that have amassed, documented, selected,
multiplied, traded, and preserved over hundreds of generations—is what farmers
and scientists rely on. The paradox is that although scientists may defend and
profit from their discoveries, conventional farmers’ efforts are Ignored.
Conservation of biodiversity
Indigenous peoples and local
societies showcase their cultures via innovative applications of their
knowledge and customs. Thus, preserving the relationship between humans and
other members of the natural world, such as plants and animals, is essential to
the preservation of human civilization. Thus, the preservation of TK will
promote food security, sustainable agriculture, and environmental preservation.
Preservation of established practices
The foundation for maintaining
traditional living habits and awareness will be provided by TK security. Preserving
traditional knowledge can ensure the survival of indigenous and traditional
people as well as aid safeguard people’s right to self[4]-identification.
This function undoubtedly extends beyond the protection of intellectual
property rights (IPRs) afforded by TRIPS or any other international agreement.
When TK is protected by the right kinds of intellectual property rights, its
value and desirability rise, earning it additional recognition and preservation
value.
Prevention of biopiracy
Numerous patents on genetic resources
and knowledge obtained from poor nations in Africa and elsewhere have been
granted. The application of patent number 5, 401, 5041, which was awarded for
the ability of turmeric acid to heal wounds, is one instance of this. Before
the USA licensed the patent, the invention was in use for centuries in India.
The repeal application was successfully filed by the Indian Council for Science
and Industrial Research (CSIR). The Japanese patent for Kenya’s kiondo was not
revoked, nor were the patents for the microorganism that prevents jeans from
fading or the energy-saving jiko, to mention a few other.
Traditional knowledge in development
It Is necessary to safeguard TK from
theft and unauthorized use. Local groups may share their TK and genetic
resources as a means of defence. Additionally, information owners will be
incentivized to make their TK easily accessible if they get payment. They might
also be urged to keep it up to date so that access and use can continue in the
future. In terms of traditional medicine, the application of intellectual
property rights (IPRs) for protection may limit access to goods and services
that are crucial to a society. Additionally, the government must to think about
promoting TK use in order to prevent misappropriation.
ROLE OF INTELLECTUAL PROPERTY RIGHTS
IN PROTECTION
Intellectual property rights are
meant to safeguard investments made in research and development (R&D) and
to encourage invention by giving inventors incentive. However, the
interpretation and creation of IPR has prioritized altering other people’s
willingness to participate. Private companies use intellectual property rights
to profit from our natural resources and use conventional knowledge. Biopiracy
deprives tribal communities and rural farmers of their natural resources and
related expertise. Conventional knowledge-based commodities are too expensive
for bio-pirating enterprises because they are charging exorbitant prices for
these goods. Many disagreements about the protection of indigenous people’s
rights, the sustainability of the region’s flora and fauna, the state of the
world’s climate, and even the nation's capacity to produce food are brought
about by biopiracy. The World Trade Organization’s (WTO) TRIPS agreement
emphasizes patent rights, while also disregards the rights of traditional
knowledge holders. IPRs can be utilized as TK security tools if they can be
improved and interpreted in a legitimate and just manner. Despite numerous
flaws in the current IPR regime, there are still some essential principles that
can be used either way, i.e., as a defensive or constructive security mechanism
to protect conventional information. National intellectual property rights laws
and international treaties should be pursued in order to safeguard the rights
of indigenous peoples, their biological resources, and related knowledge.
·
PATENT ACT ,1970
The patent statute Is relevant for
the protection of technological solutions that are uniformly new,
scientifically significant, and need a creative stage. Patents on genetic
resources and traditional knowledge (TK) related to inaccessible, synthesized,
or created items derived from genetic structures, microorganisms, plants,
animals, or species living in their natural environments, for instance, may be
withdrawn. Processes related to the use and exercise of those assets are
accorded patent protection, as are procedures that are well-known to indigenous
communities and satisfy the same standards. Section 3(p) of the Indian Patent
Act, 1970 prohibits the protection of traditional knowledge under Indian patent
laws. A combination or replication of known properties of traditionally known
components, or an innovation that is effectively traditional knowledge, is not
an invention and is not subject to patent protection. For instance, the method
of preparing an improved herbal product described in the patent application comprises
chopping, roasting, and combining dry fruits with the product; nevertheless,
this procedure does not qualify as an invention under Section 3(p) of the
Patents Act 1970 (as amended in 2005). Since this invention relies on
conventional knowledge, it cannot be patented under the Act.
2005 Amendment
The purpose of the 2005 Patents
(Amendment) Act was to defend the rights of indigenous people. It requires
patent applicants to reveal where the biological resources used in their ideas
came from. The patent office may decline to award the patent if the information
relates to TK.
·
COPYRIGHT ACT ,1957
The means of speech and expression
are protected by copyright, not the ideas themselves. Any of the activities
listed in section 14 of the Copyright Act, 1957, are authorized to be carried
out by the copyright holder. Copyright can be utilized to protect the creative
expression of TK holders, particularly artists who are members of indigenous
and indigenous groups, against unauthorized use and illicit replication. Moral
rights govern the connection between authors, artists, and creators and their
works[5].
The expression form—rather than the
ideas themselves—is protected by copyright. Any action permitted by Section 14
of the 1957 Copyright Act may be taken by holders of a copyright. Copyright can
be used to protect the artistic expressions of TK holders from misuse and
unauthorised copying, especially for artists from migrant and indigenous
cultures. The link between creators, artists, and authors and their work is the
subject of moral rights. These rights might offer a crucial means of defending
the rights of indigenous peoples to works that are produced using their
knowledge.
·
THE PROTECTION OF PLANT VARIETIES AND FARMER’S RIGHTS ACT, 2001
The Act became operative in September
of 2001. This sui generis law was created in accordance with the WTO’s TRIPS
agreement. The following criteria apply to plant varieties that are eligible
for preservation: cultivator’s variety, unique variety, contemporary variety,
and primarily derived variety. Conventional farming techniques are employed by
farmers and tribal communities to cultivate and conserve a variety of
traditional crops. The main element of the legislation is outlined by the
concept of an effective profit-sharing agreement between the provider and the
recipient of plant genetic resources. If a new variety satisfies the critical
requirements of being distinct, stable, uniform, and novel, the plant breeder
can get the plant breeder’s right (PBR) for that variety. PBR is now available
for traditional plant diversity[6].
·
GEOGRAPHICAL INDICATIONS OF GOODS (Registration and Protection) Act, 1999
Locals have traditional knowledge
cooperatively, and the best format for preserving it is geographic indications
(GI). The Geographical Indications of Products (Regulations and Preservation)
Act governs a community in a certain locality. While GI security is good for
ten years, it can be extended indefinitely to protect GI for an indefinite
amount of time. The processes used in product manufacturing are changing with
time to produce goods of higher quality. Traditional medicinal medicines can
also be protected by GIs.
GIs recognize and compensate farmers
for their long-standing cultural dedication to social networking, conservation,
lateral learning, and survival by placing a premium value on their products. By
recognizing the cultural values and inventiveness of TK holders, GIs will aid
in the survival and advancement of civilization.
·
INDUSTRIAL DESIGN AND TRADITIONAL KNOWLEDGE
One sort of intellectual property is
an industrial design, where the aesthetic function of the object is emphasized
by its visual appearance. Industrial designs might include the shape and style
of traditionally created items prepared by indigenous people or associations on
their behalf, such as clothing, furniture, receptacles, wooden objects, leather
pottery, etc. For safety reasons, traditional handcrafted goods like cotton bed
linens and carpets that are woven by hand may also be categorized as industrial
design. India’s rich cultural legacy is ingrained in a plethora of traditional
patterns.
·
GLOBAL PROTECTION OF TRADITIONAL KNOWLEDGE
Global recognition of the importance
of preserving knowledge, uniqueness, and customs of indigenous and local groups
is growing. The first attempt to protect traditional knowledge under the IP
regime was made in 1978 through a joint initiative by WIPO and the United
Nations Educational, Scientific, and Cultural Organization (UNESCO). This
effort led to the further fortification of folklore expressions against illegal
exploitation and other detrimental conducts in 1982. Since the Convention on Biological
Diversity (CBD) was ratified in 1992, there has been an increasing focus on the
safeguarding of conventional information
i.
WORLD HEALTH ORGANIZATION (WHO)
The World Health Organization—a
specialized body of the United Nations—was established on April 7, 1948. The
WHO’s work in traditional medicine is informed by its contribution to
traditional knowledge. As the economic and commercial value of traditional
knowledge, particularly the knowledge of traditional medicine and medicinal
plants, has become increasingly recognized, more and more WHO member states are
becoming concerned about the need to protect it and the organization’s
constitutional goal of achieving the highest standard of health for all
citizens
ii.
CONVENTION ON BIOLOGICAL DIVERSITY (CBD)
The Convention on Biological
Diversity (CBD) was finalized on June 5, 1992. It was the outcome of
discussions held in Rio de Janeiro in 1992 under the auspices of the United
Nations Environment Programme (UNEP). Under the direction of the United Nations
Environment Programme (UNEP), the CBD creates guidelines for environmental
preservation that also support ongoing economic expansion, biodiversity
awareness, sustainable usage, and equitable distribution of the proceeds from
the use of inherited resources. The CBD also recognizes the importance of the
traditional use of genetic resources in the long-term preservation of
biological variety. It confirms the right to exploit biological transfer from
developing nations and highlights the fact that intellectual property rights
(IPRs) should not impede biodiversity conservation and sustainable usage. Likewise, clauses pertaining to creation,
promotion.
iii.
WORLD INTELLECTUAL PROPERTY ORGANISATION (WIPO)
In 1978, WIPO and UNESCO collaborated
to develop the Sui generic model for national folklore protection, marking the
beginning of WIPO’s work on traditional knowledge and folklore. A fresh
proposal from WIPO was launched in 1998. It included a fact-finding contact
mission to 28 countries in both IP and TK, which formed the basis of an
international research on the goals of TK holders and the demands of IP. The
IGC was established by the WIPO General Assembly during its 26th
meeting. It has also done a commendable job of producing an impressive array of
documents, such as the Conventional Information Security documentation toolkit,
model clauses for contracts pertaining to genetic resources, and an effort to
establish the foundations of a potential sui generis scheme for the security of
traditional knowledge.
TRADITIONAL KNOWLEDGE PROTECTION
Traditional knowledge in IPR is
usually protected through two methods – positive protection and defensive
mechanism.
·
POSITIVE PROTECTION
Giving holders of traditional
knowledge the legal authority to take appropriate action and pursue redress in
the event that their knowledge base is misused is known as protection. It
entails the adoption of particular laws, rules, and regulations in addition to
having access to benefit-sharing plans, royalties, etc. Typical knowledge
holders who obtain intellectual property rights directly through patents or
other forms of protection are considered to be beneficiaries of positive
protection. In this regard, states have adopted a variety of actions. Certain
states consider that using the current IP laws is a suitable means of
protecting traditional knowledge. Others think that because traditional
knowledge is unique, we need a new system that works in tandem with the current
intellectual property system. The “sui-generis” processes are what are used to
protect conventional knowledge. Additionally, states have occasionally modified
or increased new intellectual property rights in light of general awareness.
·
DEFENSIVE PROTECTION
Conversely, defensive mechanism describes the
actions traditional knowledge holders take to stop others from obtaining their
intellectual property rights. This technique of knowledge protection aids those
who possess traditional knowledge in defending their illegally obtained
intellectual property rights. This approach guards against third parties
obtaining unauthorized intellectual property rights on traditional knowledge.
The privileges are: Provision in the patent application for disclosure of the
source of genetic resources and associated traditional knowledge relevant to
the innovation. Creation of a database that is available to patent reviewers
and includes all available information on conventional knowledge in a
scientific and technological way. A database like this will make it easier to
assess how original the invention in question is.
RECOMMENDATIONS
a. It Is important to fully establish
and employ national and international intellectual property enforcement tools
that guarantee lawful access to genetic resources and traditional knowledge.
b. It is important to preserve and
strengthen the political and legal flexibility in the current international
agreements and talks to create and put into place defensive and protective
structures to safeguard traditional knowledge.
c. Widespread and productive involvement
of native communities and other nearby groups in all talks and agreements about
genetic resources and traditional knowledge.
d. According to the People’s
Biodiversity Registers, the Botanical Survey of India (BSI) and Zoological
Survey of India (ZSI) should ascertain the validity of the plants and animals
that are used by their respective societies.
e. It should be permitted for the
traditional communities to create a database containing their TK. The TK would
thus be considered “prior art” in light of these data.
LANDMARK JUDGMENTS OF TRADITIONAL KNOWLEDGE IN IPR
The Turmeric case
East India is home to the
cultivation of the tropical plant turmeric. Turmeric powder is extensively
utilized in India for a variety of purposes, including food additive,
medication, and colouring. For instance, it is used as an antiparasitic for
numerous skin infections and as a blood purifier in the treatment of the common
cold. It is a crucial component of many Indian dishes as well. The University
of Mississippi Medical Center received a patent for the use of turmeric in
wound healing from the United States in 1995. The use of “turmeric powder and
its administration” for topical and oral wound healing was the claimed subject
matter. It was granted the sole authority to market and distribute.
The Indian
Council for Science and Industrial Research (CSIR) filed a written protest with
the USPTO challenging the issued patent and supplying evidence of prior art.
Although the use of turmeric has long been acknowledged in Indian households,
it has proven to be an arduous task to locate written information regarding the
application of turmeric powder topically and orally for wound healing. As a
result of thorough investigation, 32 references—in Sanskrit, Urdu, and
Hindi—were found in different languages. Consequently, the USPTO revoked the
patent, ruling that the claims made in it were clear and expected,
acknowledging that using turmeric to cure wounds was an age-old practice.
Consequently, the Indian-owned TK was protected in the turmeric case.
The Basmati rice case
A US patent was awarded to the American company “RiceTec.”
For basmati rice .the corporation asserted that it’s their unique innovation
that makes this rice. India threatened to take the case to the WTO on the
grounds that it violated TRIPS, stating that the invention they are claiming is
untrue. Later, RiceTec retracted the patent’s claims. RiceTec was granted
permission to patent their innovation in the form of a basmati rice variety.
CONCLUSION
Conventional wisdom possesses a
remarkable capacity to address the new issues facing humanity. Although using
this information is very Important, it must be balanced with security,
advertising, and benefit sharing. One could refer to traditional knowledge as
the newest IP member. However, in addition to the (un)will of nations,
judgments about how to handle this child must take into account a number of
issues. Put more accurately, traditional knowledge, or the informal sector
information network, is primarily oral, poorly documented, and thus not
defendable. Although India has made progress and established a repository of
its ancient knowledge, the necessity for a legal instrument is become more
pressing on a global scale.
By reducing the likelihood of bio
piracy, traditional knowledge documentation shields it from exploitation and
theft by outside parties. The Traditional Knowledge Digital Library (TKDL),
which should be maintained by a team from the federal government or the state
government, should be updated on a regular basis as the preventive measure
outlined above. TKDL contributes to protection through current systems. WIPO
members seek to compel resource origin disclosures, proof of prior informed
permission, and benefit-sharing agreements to be included in patent
applications. India is a developing nation, hence efforts to further its growth
should also focus on preserving its innate knowledge.
REFRENCES
[2] T Cottier and M. Panizzon, “Legal
Perspectives on Traditional Knowledge,” Journal of International Economic Law,
Vol. 7, 2004, p. 387.
[3] Carlos Correa, “Traditional
Knowledge and Intellectual Property: Issues and options surrounding the
protection of traditional knowledge”, 35 (3rd Ed., November 2001).
[4] Ibid
[5] The Copyright Act, Section 57.
[6]
PPV& FR Act, Section 2(j).
Article Information
PRESERVING HERITAGE: STRATEGIES FOR PROTECTING TRADITIONAL KNOWLEDGE IN IP LAW
Authors: ANKITA SRIVASTAVA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/20
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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