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PRESERVING TRADITIONAL KNOWLEDGE: INTERNATIONAL AND NATIONAL PERSPECTIVES WITHIN INTELLECTUAL PROPERTY LAW
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PRESERVING
TRADITIONAL KNOWLEDGE: INTERNATIONAL AND NATIONAL PERSPECTIVES WITHIN
INTELLECTUAL PROPERTY LAW
AUTHORED BY
- ANILA K,
ASHIQUE MUHAMMED BIN KAMAL & SUBHAMASTU
PANDA
INTRODUCTION
Traditional knowledge can be broadly
defined as the knowledge that an indigenous community or simply a group of
people has access to and relies on for their survival. Since such knowledge
forms part of the culture and traditions of such communities or persons, it
needs to be preserved and maintained. The contributions of people of a specific
society over time lead to the evolution of traditional knowledge. It was
expanded upon, improved upon, and modified until it was useful information for
the particular community and endured the test of time.
Traditional Knowledge (TK),
indigenous knowledge (IK), traditional environmental knowledge (TEK) and local
knowledge commonly understood as matured long-standing traditions and practices
of some regional, indigenous, or local communities. Traditional knowledge also
includes the wisdom, knowledge, and teachings of such communities.[1]
The knowledge, skills, and practises
that are created, maintained, and passed down from generation to generation
within a community—often serving as an integral element of its cultural or
spiritual identity—are referred to as traditional knowledge (TK). Traditional
knowledge can be found in areas including agriculture, science, technology,
ecology, medicine, and knowledge pertaining to biodiversity. The term
"traditional knowledge" refers to any type of information that has
been used by a particular group over a long period of time and for many
generations.
It is difficult to define the term
Traditional Knowledge but there are some definitions. Traditional knowledge is “a
body of knowledge built by a group of people through generations living in
close contact with nature. It includes a system of classification, a set of
empirical observations about the local environment, and a system of
self-management that governs resource use."[2]The
WIPO has given a definition to Traditional knowledge “knowledge, skills,
practices, and know-how that are developed, perpetuated, and passed down from
generation to generation within a community, frequently as part of the
community’s cultural or spiritual identity”.
Daniel Gervais has noted the following elements of
traditional knowledge to mean knowledge:[3]
a)
which
is traditionally only to the extent that its creation and use are part of the
cultural tradition of a community- traditional; therefore traditional, does not
necessarily mean that the knowledge is ancient or static;
b)
is
representative of the cultural values of people and, thus is held collectively;
c)
is
not limited to any specific field technologies or the arts;
d)
Traditional
knowledge is important both for humans and the environment. It makes the people
self-sufficient, is a preserver of biodiversity, and can provide a source of
income.
Over a period of time various persons
have defined traditional knowledge. In the words of Berkes “Traditional
Knowledge” is a cumulative body of knowledge and beliefs handed down through
generations by cultural transmission, about the relationship of living beings
(including humans) with one another and with their environment. Four categories
of creative works are typically considered to be within traditional knowledge:
Stories, epics, legends, folktales, poetry, riddles, etc. Verbal expressions;
musical expressions; folk songs and instrumental music; corporeal expressions;
dances, games, ceremonies paintings, sculptures, ceramics, mosaics, jewellery,
tiles, fabrics, carpets, costumes, musical instruments, etc. Traditional vision
contains convictions, outlooks, behaviours, adjustments, arts, spirituality,
and additional forms of traditional expression and experience that fit in with
the original communities' conceptions of the world.
FEATURES OF TRADITIONAL KNOWLEDGE
1)
HOLISTIC IN NATURE:The heavenly health, culture, arts,
crafts, dancing, and peoples' languages all reflect traditional knowledge. It
is integral to traditional people's way of life and cannot be dissociated from
them. Any division, in the eyes of the traditional people, is disrespectful to
their spiritual values and beliefs. Additionally, it is intricately related to
geography, resources, culture, and tradition. Indigenous legacy consists of all
its elements like knowledge, cultural expressions, biodiversity, and customary
lands and they are all interconnected and interdependent.
2)
UNDOCUMENTED: The majority of traditional knowledge is
undocumented and is often transmitted from generation to generation orally. The
majority of traditional information, whether it is knowledge about songs,
agriculture, medicine, or other topics is passed down verbally without any
attempt to document it. Because it is sometimes undocumented, it can be quite
challenging to determine the exact date of origin. Because traditional knowledge
has been passed down orally from generation to generation, it can be
challenging for those who possess it to distinguish between aspects that are
self-evident and non-obvious inventions. The traditional knowledge system is
also unsystematic; they contained a vast treasure house of knowledge in simple
poetry on agriculture, horticulture, soil science, climate meteorology, mines,
minerals, astronomy, hydrology, mathematics, plants and herbs, Ayurveda, sports
and games, ethics and principles. This undocumented body of knowledge is also a
part of the great heritage of humankind.
3)
DYNAMIC: Traditional Knowledge, which serves as the
foundation for daily decision-making, is dynamic and constantly being moulded
and altered by invention and practise as well as accepted to local
circumstances. Every day, it is being developed and constructed. Traditional
knowledge's methods and expertise are dynamic and evolving. It is not just
taught using a straightforward manner and passed down from one generation to
the next; rather, it is dynamic by nature and is constantly being verified and
adjusted.
4)
INFLUENCED BY ECONOMIC AND CULTURAL CONDITIONS:
Traditional or indigenous knowledge always influenced by the economic and
cultural factor of the community. It varies between two communities because of
these reasons. Traditional people, since they are economically weak, do not go
for scientific medicine. This condition invariably influences them to go for
searching for new medicine available in the biodiversity.
5)
HELD COLLECTIVELY: Traditional knowledge is a broad
notion that includes a number of different elements. It is typically created in
response to and in interaction with the creator's interaction with their
cultural context. The majority of traditional knowledge is typically regarded
as being representative of cultural ideals.
PROTECTION OF TRADITIONAL KNOWLEDGE – INTERNATIONAL
Several initiatives were taken at the
international level for the protection of traditional knowledge. For the Recognition of Indigenous People on an
International Level, the first attempt internationally to protect the rights of
the indigenous people began when the International Labor Organization (ILO)
convened a Conference Concerning the Protection of Indigenous and Other Tribal
and Semi-Tribal Populations in Independent Countries, 1957.[4]
This was the first conference to attempt to promote better social and economic
conditions for the indigenous populations. But it “does not envisage a place in
the long term for robust, politically significant cultural and association
patterns of indigenous groups. They are considered very secondary and as a mere
beneficiary of rights and protections. The ILO Convention No. 169, Concerning
Indigenous and Tribal Peoples in Independent Countries, 1989, revised this Convention.
The revised Convention is the first to define ‘indigenous people’. It defined
the indigenous people as those who inhabited a country or area within a country
at the time of conquest, colonization, or the establishment of present state
boundaries, and who, “irrespective of their legal status, retain some or all of
their own social, economic, cultural and political institutions.” [5]It
asserts that they have the right to take part in this decision-making process,
and that their contribution will be valuable to the country in which they live.
There was a Campaign jointly
conducted by UNESCO and WIPO in 1980 to put in place a set of norms for
protection of expressions of folklore against illicit exploitation and other
prejudicial actions. Attempt was to create an international treaty but it could
achieve only enunciation of general principles in wide and ambiguous terms for
guidance of national legal system. It was known to be The Model Provision for
National Laws on Protection of Expression of Folklore against illicit
Exploitation and other Prejudical Actions, 1985. It defined Folklore as it
generally consist of Traditional knowledge. the limitation of this document is
that the definition of expression of folklore include only verbal expression,
musical expression, expression by action an tangible expression but in the case
of Folk medicines, agriculture, techniques of manufacture, designs etc were
unprotected. This is one of the reason for the non-implementation of these
norms by the nations. There are also attempts taken for the protection of
traditional knowledge international. The first convention that include the
protection of TK is the Convention on Biological Diversity,1992.
Convention
On Biological Diversity, 1992
Important issues relating to the
indigenous people and preservation of property was taken up in the Convention
on Biological Diversity, 1992 which desired to enhance and complement existing
international arrangements for the conservation of biological diversity.
In the preamble of the Convention, it
states that “Recognizing the close and traditional dependence of many
indigenous and local communities embodying traditional lifestyles on biological
resources, and the desirability of sharing equitably benefits arising from the
use of traditional knowledge, innovations and practices relevant to the
conservation of biological diversity and the sustainable use of its
components”. It gives an impression that the subject mater is not only
“knowledge” but also “innovation and practices” that are traditional in nature.
Also, in the Bonn Guidelines on Access to Genetic Resources and Benefit
Sharing, In 2002, State parties to the Convention on Biological Diversity (the
CBD) formally adopted the Bonn Guidelines on Access to Genetic Resources and
Fair and Equitable Sharing of the Benefits Arising out of their Utilization
(the Bonn Guidelines). The Sixth Session of the CBD Conference of the Parties
(COP-6) at The Hague in April 2002 was attended by some 2000 government and
non-government officials from 166 countries. The objectives of the CBD are to
conserve biological diversity, sustainably use its components, and fairly and
equitably share the benefits arising from the utilization of genetic resources,
including through the access and transfer of technology and taking into account
all resource and technological rights and funding.[6]
Article 8(j) emphasizes the approval
and the involvement of the tribes. The Convention mandates the acknowledgement
of the rights of the holders of the knowledge in case of its use. The
obligations include:
·
to respect, preserve and maintain the knowledge,
innovations and practices of indigenous and local communities;
·
to promote the wider application of it with the
approval and involvement of the holders of such knowledge, innovations and
practices; and
·
to
encourage equitable sharing of benefits arising from the utihzation of such
knowledge, innovations and practices.
Though not specific, the requirement
of their involvement and approval before the use of their knowledge and the
obligation to share the benefits make it clear that the Convention recognizes
the ownership of this knowledge base by the community. The Convention, of
course, gives the indwidual nations the freedom to decide the mechanism through
which this can be achieved.[7]
The issue here is the ownership of
traditional knowledge, that from the above Article it state that “knowledge,
innovation and practices” that are protected must be belong to the communities.
By this provision it gives an impression that the provision recognizes the
communities as the owners of knowledge system. The word Holder instead of owner
shows confusion. The Nagoya Protocol on access to genetic resources and fair
and equitable sharing of benefits arising from their utilization to the Convention
on Biological Diversity clarifies that “holder” means “owner” and the ownership
of TK is with relevant communities.
Article 15 specifies that prior informed consent of the indigenous
people is mandatory, and Article 17 mandates the States to facilitate exchange
of information. This Convention established that the resources that were
concentrated with one or more societies ought to be used for the benefit of
mankind.
The convention -- Critiques:
1)
Reverse Determination
It is interesting to note that CBD’s
objective to share the resources of the world arises at a time when these
resources have become valuable. The Convention does not address the benefits to
either the Community or the individual holders respectively. The technology
transfer clause in the CBD is incomplete for want of modus. The cost to the
community in having to share such information has not been detailed. The
benefit the community would derive, if at all, from such sharing is unclear
from Articles 15 and 16. This Convention does not incorporate the reverse
determination, which is a mandatory declaration that the indigenous people
should be compensated by vesting intellectual property or its equivalent rights
over the knowledge acquired from them. Strangely, the CBD expects that resources
are to be shared for the benefit of ‘mankind’ and that the most downtrodden
societies of the world should enable the benefit.
2)
Prior Informed Consent
Prior informed consent is a concept detailed
in the CBD to ensure that the consent of the indigenous people is received
before the resources are shared. It is unclear whether the indigenous people
should be informed about the possibility of taking a monopoly intellectual
property right over their resource before the resources are accessed. The
indigenous people may not give consent so easily if they are aware of the
monetary benefits received from taking their resources. ‘Prior informed
consent’ has not been defined under the CBD.
3)
Right to Withhold Information
The CBD on the one hand speaks about
mandatory sharing of information. On the other hand, the Convention discusses
prior informed consent. It is not clear which prevails over the other. If the
holders of the knowledge were to refuse consent after understanding the
consequences, it is unclear whether the use of the knowledge would amount to a
violation of the CBD.
4)
Right Not to Disclose
The issue whether the right to
privacy includes the right not to disclose knowledge in possession has to be
clarified. This also raises the question as to whether one’s right to privacy
can be considered violated where the knowledge was acquired and used without
consent or by indirect sources.
5)
Trade Secrets and CBD
Further clarification of the right to privacy
becomes all the more important if traditional knowledge is sought to be
protected as a trade secret.
6)
Ownership Factors
None of the Conventions address the ownership
factor, which is important to ensure fairness in benefit sharing. Issues on
benefit sharing are bound to arise where members of a community are scattered.
TRADE
RELATED ASPECTS OF INTELLECTUAL PROPERTY (TRIPS)
TRIPS has some provisions having
limited application to the protection of traditional knowledge. The obligation
to protect geographical indications can be used to protect traditional
knowledge if associated with the indication used for production and sale of
goods. It is made clear that a given quality, reputation or other
characteristics of the goods essentially attributable to their geographical
origin are to be considered in identifying the geographical indications for
protection.[8] Thus it
may be possible to protect through geographical indications the traditional
knowledge associated with goods. It is well accepted that it is the collective
right of use that is recognized in geographical indications. Many valuable
knowledge bases of indigenous and local communities are still kept as secrets.
TRIPS mandates the protection of undisclosed information of commercial value.
The undisclosed information is treated as the private property of the person or
group of persons holding it secret. These provisions can equally be extended to
traditionally undisclosed information as well. But the protection will be to
the person or group of persons who are keeping it secret rather than to the
community as a whole. The increasing demand to expressly recognize and protect
traditional knowledge under TRIPS led to the World Trade Organization
Ministerial Declaration at Doha instructing the Council for TRIPS to examine
and report on the interrelationship between the TRIPS Agreement, the Convention
on Biological Diversity and the protection of traditional knowledge and
folklore. Thus, it is clear that there is a general agreement in the
international community that there is a need to recognize traditional
knowledge. It is also evident that, wherever possible, it must be identified
with the community, treating the members thereof as the holders of such
knowledge if it is confined to the community. It is the notion of collective
enjoyment of property by the members of the community that is reflected in
these norms. The concern is to recognize it and to take measures to ensure that
communities are involved in the preservation and development of it and that
proper benefits are open to them in case of commercial exploitation by others.
There are no uniform norms regarding the protection of different types of
traditional knowledge owned by local communities. The reason for this state of
affairs is that the international community has never had the occasion to look
at the protection of traditional knowledge in its entirety.
Article 27(3) (b) provides that
members shall provide for the protection of plant varieties either by patents
or by effective sui generis system or by any combination thereof. In relation
to this, the member states can make a sui generis system to protect their traditional
knowledge. TRIPs have given the member countries the discretion either to
implement a patent system for the protection of plant varieties or to adopt
their own sui generis system. A sui generis system would allow WTO members to
adopt their own system of protection for plant varieties.
UNITED
NATIONS DECLARATION ON THE RIGHTS OF PEASANTS AND OTHER PEOPLE WORKING IN RURAL
AREAS
• In Article 18(3), with respect to the
international obligation to combat climate change, Peasants and other working
in rural areas have the right to contribute to design and implementation of
national and local climate change adaptation and mitigation policies, including
through the use of practices and traditional knowledge. in Article 19 (1) (a),
in accordance with Article 28 of the present statement, it states that peasants
and other individuals employed in rural regions have a right to seeds,
including a right to the protection of traditional knowledge pertaining to
plant genetic resources for food and agriculture.
• Article 26, it provides the freedom
to enjoy one's own culture and to pursue it freely without hindrance or any
form of prejudice is guaranteed to peasants and other workers in rural areas.
Additionally, they have the right to uphold, express, control, safeguard, and
develop their traditional knowledge, which includes their way of life, their
means of production or technology, as well as their traditions and customs.
• The state shall respect, and take
measures to recognize and protect the rights of peasants and other working in
rural areas relating to their traditional knowledge and eliminate
discrimination against the traditional knowledge, practices and technologies of
peasants and others working in rural areas.[9]
UN
DECLARATION ON THE RIGHTS OF
INDIGENOUS
PERSONS
UN declaration on Rights of
Indigenous persons was adopted by UN general assembly during its 62 session on
13th September 2007.Though a General assembly declaration is not a legally
binding instrument, this declaration can be regarded as a dynamic development
for setting a standard for protection of rights of indigenous persons. General
assembly recognized the urgent need to respect and promote the inherent rights
of indigenous peoples which they derived from their social structures. The
declaration emphasizes on the rights of indigenous persons to maintain and
strengthen their own institutions, cultures and tradition so as to foster their
development. It urges the parties to make mechanism for prevention and redress
of any action which has the effect of depriving indigenous people of their
integrity or their cultural values or identities. Art 24 recognizes the right
to their traditional medicines and provides for conservation of their vital
medicinal plants animals and minerals. Art 31 is an important attempt to
protect TK. It asks the states to take all effective measure to recognize and
protect the cultural heritage, traditional knowledge, traditional cultural
expression as well as the manifestations of their sciences, technology, and
cultures. This declaration is indeed a dynamic measure of international legal
norms regarding the protection of TK and also it necessitates the need for an
international treaty for the protection
of TK.
PROTECTION
OF TRADITIONAL KNOWLEDGE – NATIONAL
The protection afforded to the
traditional knowledge may be of various types depending upon various factors
like the notion, values and respect the holding communities have for their
traditional knowledge: whether the communities want to reap the benefits from
the knowledge or they simply want to prevent others from expropriating it
1) Positive protection: Through this type of protection TK
holder can acquire an IPR or any other alternative rights provided under
sui-generis system. They can take action against misuse of TK. This form of
protection focuses on the empowerment of traditional knowledge holders and
caters to actual needs of TK holders. This form of protection promotes Prior
Informed Consent; equitable benefit sharing from the use of traditional
knowledge and repress misappropriation of traditional knowledge.
·
Prior Informed Consent (PIC):
PIC is
the permission taken from original holders of biological resources and related
traditional knowledge to access and commercial exploitation of resource and
associated knowledge. PIC would helpful in combating the problem of biological
resource management. Any company or any individual who want to use biological
resources for commercial purpose has to obtain the prior informed consent of
all communities and all members of each community who have used and contributed
collectively to the innovation in biodiversity related knowledge prior to
physically accessing the resource. PIC would lead to equitable benefit sharing
and prevent the misuse of TK.
·
Benefit Sharing:
Benefit sharing refers to an agreement of
sharing benefits (both monetary and nonmonetary) resulting from commercially
exploiting the biological resources and associated knowledge of a traditional
community with that community. These monetary and nonmonetary benefits include
setting of a trust fund for a particular group of beneficiaries, technology
transfer, providing employment opportunities, developing local infrastructure,
capacity building and scientific collaboration.
Equitable
benefit sharing agreements are promising in giving full recognition and
protection to the rights of indigenous and local communities to their knowledge
and genetic resources. To check bio-piracy and to protect the rights of
indigenous people, effective PIC and equitable benefit-sharing agreements
should be enforced.
2)
Defensive Protection: This kind of system
provides safeguards against illegitimate intellectual property rights acquired
by third parties over traditional knowledge. These safeguards are:
·
Requirement of disclosure of origin of genetic
resources and associated TK relevant to the invention in the patent
application.
·
Preparing a database containing complete
information about traditional knowledge in a scientific and technical form and
accessible to patent examiners. Such a database will be helpful in determining
novelty of the invention in question.
BIOLOGICAL
DIVERSITY ACT, 2002
It was enacted to meet obligations
under CBD for the preservation of biological diversity in India, and provides a
mechanism for equitable sharing of benefits arising out of the use of
traditional biological resources and knowledge. Also, to secure sharing of
benefits with local people as conservers of biological resources and holders of
knowledge and information relating to the use of biological resources. The legislation addresses the basic concerns
of;
• access to biological resources
• collection and utilization of
biological resources
• sharing of benefits arising out of
such access
• protection from biopiracy
The measures to be taken for the
protection of the knowledge of the local community are mentioned in section 36
of the Act.
The legislation provides for the
establishment of the National Biodiversity Authority (NBA) under section 8,
State Biodiversity Board (SBB) under section 22 of the act and Biodiversity
Management Committees (BMCs) at local community level. The legislation also
provides for promotion of conservation, sustainable use and documentation of
biodiversity through biodiversity registers. Information and data from research
cannot be transferred without the approval of the NBA.
PATENT
(AMENDMENT) ACT,2005
Section 3 of Patent Act deals with
subject matters that are not patentable. In 2005 amendment, sub-clause (p) was
added into section 3 which depicts an invention which in effect, is traditional
knowledge or which is an aggregation or duplication of known properties of
traditionally known component or components are not patentable.This will not
prevent patent protection for new products and process based on traditional
knowledge- eg- express provision on patentability of micro organisms. For
example, the patent application for a process for preparing an improved
Chyawanprash discloses the process which involves cutting, roasting and mixing
of dry fruits and then adding it to the Chyawanprash, which under Section 3(p)
of Patents Act 1970 (as amended in 2005) is not an invention. This invention is
based on traditional knowledge so not patentable under the Act.
The Patent Act 1970 has provisions
that require disclosure of TK which is the basis of invention in question.
Section 10 (contents of specification) of the Act provides for the disclosure
of source and geographical origin of any biological material used for the
invention in the specification. Section 10 (4) (d)- provided (ii) (D)-
“disclose the source and geographical origin of the biological material in the
specification, when used in an invention”.In section 251(k), 2(k) and 64 1(q)of
the Act, have been incorporated to include anticipation of invention by
available local knowledge including oral knowledge as one of the grounds for
both pre-grant and post-grant opposition.Also, revocation of patent under
section the clause (j) of subsection 1 and 2 of section 25 of the Act and
641(p), it has been mentioned to consider non-disclosure or wrongful disclosure
of source and geographical origin of biological material used for the invention
as a ground for opposition and revocation of patent.
BIO- PIRACY
In recent years patenting of
traditional knowledge based products have been a great concern. TK based
products were given patent even ignoring the novelty and inventive step when
compared with relevant prior art. This use of TK as a basis for making products
of commercial value, which are then patented without sharing any benefit with
the source of the TK is termed as „bio-piracy?. It is the appropriation of the
knowledge and genetic resources of farming and indigenous communities by
individuals or institutions seeking exclusive monopoly over these resources and
knowledge.
Bio piracy can be described as grant
of wrong patents to invention that are neither novel nor inventive having
regard to traditional knowledge already in public domain. Such patents may be
granted due to the lack of documentation or recognition of TK as a prior art.
Bio piracy may also happen in cases where patents are granted according to the
existing national legislations which does not recognize certain form of public
disclosure as prior art. There are some cases related to bio-piracy.
CASE LAWS:
In the year 1995, US awarded patent
on turmeric to University of Mississippi medical center for “Wound Healing
Property”. The Indian Council of
Scientific and Industtrial Research (CSIR) requested the US Patent and
Trademark Office to re-examine the patent. CSIR also argued that Turmeric has
been used for thousands of years for healing wounds and rashes and therefore
its medical use was not novel. This claim was supported with documentary
evidence of TK, including an ancient Sanskrit text and a paper published in
1953 in the Journal of Indian Medical Association. USPTO upheld the CSIR
objection and revoked the patent.
2)
THE NEEM CASE[11]
The patent for neem was first filed by W
R Grace and the Department of Agriculture, USA in European Patent office. The
said patent is a method of controlling fungi on plants comprising of contacting
the fungi with a neem oil formulation. India filed a legal opposition against
the grant of patent by New Delhi based research foundation for science,
technology and ecology, in co-operation with the international federation of
oraganic agriculture movements. India argued that- the barks, leaves, flowers,
seeds is used to treat a variety of diseases ranging from leprosy to diabetes,
skin disorders and ulcers. Also neem twigs are used as antiseptic tooth brushes
since time immemorial- submitted documentary evidences from ayurvedic text. The
EPO identified the lack of novelty, inventive step and possibly form a relevant
prior art and revoked the patent.
US patent office granted a patent to
RICETEC for a strain of Basmati rice, an aromatic rice grown in india and
Pakistan for centuaries. In 1997, in its patent application- RICETEC also
acknowledged that “good quality basmati rice traditionally come from northern
india and Pakistan” n that company went on claiming that it had invented
certain NOVEL. Basmati lines and grains which make possible the production of
high quality, higher yielding Basmati rice worldwide. US allowed patent
application. Three strains development by RICETEC are allowed patent protection
and they are eligible to label its strain as “Superior Basmati Rice”.
VARIOUS
INITIATIVES TAKEN BY GOVERNMENT OF INDIA TO DOCUMENT TRADITIONAL KNOWLEDGE
1)
TRADITIONAL KNOWLEDGE DIGITAL LIBRARY
(TKDL)-2006
It is a pioneer initiative of the
Indian Government to protect Indian traditional medicinal knowledge and prevent
its misappropriation at international patent offices. The Grant of Turmeric
patent by US ,1995 , Neem 1994 etc. The problem related to Indian TK is that
india’s traditional medicinal knowledge exist in languages such as Sanskrit,
hindi, Arabic, urdu, tamiletc that too in ancient dialects that are no more in
practice. Thus the published Indian TK literature is neither accessible nor
understood by patent examiners at international patent offcies. TKDL has
overcome the language barrier by systematically and scientifically converting
and structuring the available contents of the ancient text on Indian systems of
medicines; Ayurveda, Siddha, unani and sowarigpa as well as yoga into 5
international languages, namely, English, Japanese, French, german and Spanish.
Now more than 3.6lakh formulations/practices have been transcribed into TKDL
Database. TKDL has proved boon to
protection of TK from bio-piracy. Some examples are:
• India foiled Chinese bid to patent
'pudina’ – mint
India has foiled a major Chinese
bio-piracy bid to patent the use of medicinal plants 'pudina' (Mint, Family
–Lamiaceae) and 'kalamegha' (Andrographis,-family Acanthaceae,) for the
treatment of H5N1 avian influenza or bird flu. A Chinese pharmaceutical
company- LIVZON - a patent application (no.EP1849473) with EPO in 2007
undertitle- “'Chinese
traditional medicine composition for treatment of avian influenza, method for
preparation, and application” using pudina and kalamegha.
The CSIR with the help of Traditional
Knowledge Digital Library (TKDL),searched out formulations from ancient
Ayurveda and Unani texts, that contain 'pudina' and 'kalamegha' as ingredients.
These formulations have been widely used to cure influenza and epidemic fevers
since ages in India. EPO after scrutinizing the evidence upheld the rejection
patent application in 2010.
• India foiled bio piracy bid by
Natreon Inc, America
American multinational company Natreon Inc,
filed patent application (no.EP1906980) in the EPO under the title ‘method of
treatment or management of stress’ in 2006. In this application the applicant
claimed the treatment of anxiety induced stress, depression induced stress,
sleep deprivation induced stress, thermic change induced stress and gastric
ulcer induced stress with Ashwagandha (Withaniasomnifera) as novel. In 2009 the
Director, TKDL informed and submitted documented proof to EPO that threw light
on the fact that Withaniasomnifera has been used for treatment of depression,
insomnia, gastritis, gastric ulcer and convulsions since ages. In 2010 EPO
upheld the decision of rejection of patent application.
2)
People’s Biodiversity Register:The
Registers document comprehensive information on availability and knowledge of
local biological resources, their medicinal or any other use or any other
traditional knowledge associated with them. Preparation of these registers
includes activities like identifying local resource user groups, field visits,
mapping the landscape and discussion on biodiversity management with local
people. Biodiversity registers are prepared at block, district or state level by
local people with help of NGO educational institute or researchers. The
Biodiversity Act 2002 recognizes these registers as a valid and authentic way
to establish prior art and as a basis for evaluating IPR applications.
3)
National Innovation Foundation (NIF): NIF
was set up by the Department of Science and Technology, Government of India, in
February 2000 at Ahmadabad and collaborates with Honey Bee network. The
objective of NIF is to provide institutional support in scouting, spawning,
sustaining and scaling up grassroots green innovations as well as outstanding
traditional knowledge and helping their transition to self supporting
activities. It provides a platform to foster innovators who have solved a
technological problem through their own intellect without or with little
government or industry help.
4)
Honey bee Network: Honey Bee Network has
world’s largest database on grass root innovations. This network is run by
SRISTI (Society for Research and Initiatives for Sustainable Technologies &
Institutions, Ahmedabad). Its objective is to encourage grassroot innovations,
secure IPRs for small innovators and to ensure benefit sharing to original
innovators and knowledge providers.
CONCLUSION
The existing international
intellectual property system does not fully protect traditional knowledge and
traditional cultural expressions, many communities and governments have called
for an international legal instrument providing sui generis protection.An
international legal instrument would define what is meant by traditional
knowledge and traditional cultural expressions, what the rights holders would
be, how competing claims by communities would be resolved, and what rights and
exceptions ought to apply. One reason for lack of clarity about the rationale
for protection systems is the different meanings given to the concept of
protection. Some understand this concept in the contest of IPRs, where
protection essentially means to exclude unauthorized use by third parties.
Others regard protection as a tool to preserve TK from uses that may erode it
or negatively affect the life or culture of the communities that have developed
and applied it.
The limitation of IP system is that
there are essentially two main concerns with regard to the protection and
commercialization of TK in India using the intellectual property system: The
current IP system allows individuals to protect their inventions and IPRs, but
does not allow communities to collectively protect their knowledge in all
areas; and in those areas where collective IP registration is possible,
communities are not exercising their rights. As a result, in both India and
International, TK is not generally protected using the IP system.
REFERENCES:
1)
“Protection of Traditional Knowledge”, SrividhyaRagavan
, Minnesota Intellectual Property Review.
2)
N.S. Gopalakrishnan, Diversity-Related Intellectual
Property Rights-C.4~~ Final Art, The Convention on Biological Diversify and the
Challenges, XVIII Academy Law Review, 281, 1994.
3)
N. S. Gopalakrishnan, Protection of Traditional Knowledge
TheNeedfor a Sui Generis Law in India.
4)
N.S. Gopalakrishnan, Protection of Traditional
Knowledge, KULAR, CUSAT
5)
information note on traditional knowledge prepared by
International Bureau of WIPO available @WIPO/IPTK/MCT/02//INF/3
6)
Paper on “Protection of Traditional Knowledge:
International and National Initiatives and Possible Ways Ahead” by Nithin V.
Kumar, University of law, Hyderabad.
7)
“TRIPS-Related Aspects of Traditional Knowledge” by
Graham Dutfield, Case Western Reserve Journal of International Law, vol 2,
issue 2.
8)
“Traditional Knowledge and Intellectual Property
Rights: An Indian Perspective”, Anu Bala, Women Scientist, TIFAC, Department of
Science and Technology, New Delhi, India.
[2]Martha
Johnson of the Dene Cultural Institute in Canada.
[4]Conference
No.107 of the ILO.
[6]N.S.
Gopalakrishnan, Protection
of Traditional Knowledge The Needfor a Sui Generis Law in India,(2005)
[7]N.S. Gopalakrishnan,
Diversity-Related Intellectual Property Rights-C.4~~ Final Art, The Convention
on Biological Diversify and the Challenges, XVIII Academy Law Review, 281,
1994.
[8]Article
22(1) of TRIPS Agreement.
[9]Article
26(3),United Nations Declaration on the Rights of Peasants and Other People
Working in Rural Areas,2018
[10]US Patent
no: 5401504, 5135796,5047100
[12]US
5663484.
Article Information
PRESERVING TRADITIONAL KNOWLEDGE: INTERNATIONAL AND NATIONAL PERSPECTIVES WITHIN INTELLECTUAL PROPERTY LAW
Authors: ANILA K, ASHIQUE MUHAMMED BIN KAMAL, SUBHAMASTU PANDA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/04
- Issue 7
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International Journal for Legal Research and Analysis
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