Ø What is Traditional Knowledge?
Traditional Knowledge as known as local or indigenous knowledge refers to the knowledge systems embedded in the cultural or social traditions of religious or local communities. Traditional knowledge is the one that has been preserved and passed from generation to generation, locals to locals as a way to protect the culture which becomes a part of its identity. It is usually spread by word of mouth i.e. orally.
Traditional Knowledge can be found in a variety of concepts like calculation of time, yoga practices, tools and techniques for agriculture, use of spices, plant properties, etc. These kinds of knowledge are important for subsistence and survival which are generally accumulated from empirical observations and interactions with the nature.
Ø Why should Traditional Knowledge be protected?
The need to protect Traditional Knowledge has been gaining more and more importance in the recent times in order to stop the unauthorized and commercial misuse of such knowledge.
· Firstly, it is a question of identity and hence it is important for the indigenous people to preserve their ancient practices and to ensure the future generations can learn to be the members of their community.
· Secondly, traditional knowledge is under a threat and is disappearing. With the modern trends and technology, people are resorting to other methods and traditional knowledge is losing its existence.
· Thirdly, a number of researchers show up unannounced with government licenses claiming the practices to be used for their benefit without any prior consultation from local communities. This kills the morale of the community[1].
· Fourthly, in order to avoid bio piracy. Bio piracy occurs when there is unauthorized commercialization of the indigenous knowledge of the local people who are associated with such knowledge.
Ø How to protect Traditional Knowledge?
Traditional Knowledge should be afforded effective protection especially in the underdeveloped and developing countries. Such protection should be with respect to firstly, giving recognition to the original holders of such traditional knowledge and secondly, preventing unauthorized acquisition of rights by the third parties over traditional knowledge. Due to the increasing trends in globalization, a great degree of international co ordination and co operation is required and implementation of plans and protective strategies to consider the community, national, regional and international dimensions. The most important point is that such protection should be affordable, understandable, accessible and beneficial to the traditional knowledge holders.
There are two forms of intellectual property related protection systems with regards to traditional knowledge. They are:
1. Positive Protection– Protection of traditional knowledge by way of laws, rules and regulations, access and benefit sharing provisions, royalties, etc.
2. Defensive Protection– Steps taken to prevent acquisition of intellectual property rights over traditional knowledge[2].
Ø Role of IP in Traditional Knowledge
Unlike other categories of Intellectual Property Rights, there is no substantive act or law in India with regards to traditional knowledge. Although, other IP Acts contain provisions with respect to protection of traditional knowledge which is mentioned as follows:
1. Protection of TK through Patent Act 1970:
The patent system can be used as a defensive measure against the misuse of traditional knowledge. To protect Traditional knowledge from being patented, provisions under section 25[1(k), 2(k)] and 64 [1(q)] of the Act, have been incorporated that provides one of the grounds for revocation of a patent application on the basis of traditional knowledge.
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.
Inventions that are not patentable are provided under the Section 3 of the Patent Act 1970. Plant varieties or essentially biological processes are non-patentable under section 3 of the Act.
The Section 6 of the Act specifically mentions that if any person applies for a patent within or outside India for an invention based on any research or information on a biological resource obtained from India, such a person will have to obtain approval from the National Biodiversity Authority for making such an application[3].
2. Protection of TK through Copyright Act 1957:
Copyright protects the form of expression and not the ideas itself. Under Section 14 of the Copyright Act, 1957 copyright holders are authorized to do any of the acts mentioned under. Copyright can be used to protect the artistic manifestations of the TK holders and especially artists who belong to indigenous and native communities, against unauthorized reproduction and exploitation of those manifestations.
Also, Section 31A of the act provided for protection of unpublished Indian work. There is not much scope for protection of TK under copyrights as a lot of criteria has to be fulfilled and there is no clear provision for its protection in the act.
3. Protection of TK through Trademark Act 1999.
Through Trademark Act 1999, indigenous products even agricultural and biological products can be protected. Through awareness programs indigenous communities can be made aware of the fact that Trademark can be used by them to extract financial gains from their TK and protect it from unfair commercial exploitation by outsiders.
4. Protection of TK through Geographical Indications of goods
TK is held collectively by the indigenous communities and GI is the most suited form of protection pertaining to TK. GIs give recognition to the efforts of indigenous communities and prohibits others from free-riding on that reputation. As long as natural and cultural characteristics of the given product in the relevant place of cultivation are maintained, the GI is protected. As the rights under GI are community rights so these cannot be transferred freely from one owner to another.
Ø Important TK related International Conventions
1. The Convention on Biological Diversity (CBD)
The Convention on Biological Diversity was signed in the year 1993 at the United Nations Conference on Environment and Development (UNCED). This was the first international environment convention to develop measures for the protection and use of traditional knowledge relating to conservation and sustainable use of biodiversity.
2. The 2010 Nagoya Protocol
The Nagoya Protocol was adopted on 29 October 2010 and came into effect on 12th October 2014. The Nagoya Protocol applies to the genetic resources which are covered under CBD, and to the benefits that arise from their utilization. The Nagoya Protocol also covers traditional knowledge (TK) associated with genetic resources that are covered by the CBD and the benefits arising from its utilization.[4]
Ø Case Studies
1. Neem Biopiracy Case
The Neem tree has many uses thanks to its chemical constituents. The neem tree provides contraceptives, laxatives, toothpaste and pesticides and has been used by indigenous populations for thousands of years.
In 1994, European Patent Office (EPO) granted a patent (EPO patent No.436257) to the US Corporation W.R. Grace Company and US Department of Agriculture.
Many Indian Associations felt that the patent granted was a violation of them confiscating their ancestral knowledge as well as their knowledge accumulated by farmers and Indian researchers over a hundred years, depriving populations of a traditional plant material.
In 2000 EPO revoked patent following an appeal by India. Vandana Shiva of the Research Foundation for Science, Technology and Ecology (RFSTE) said “It was pure and simple piracy. The oil from neem has been used traditionally by farmers to prevent fungus. It was neither a novel idea nor was it invented”.
This received a lot of international support as well. EPO agreed that the process for which the patent has been granted had actually been used in India since many years.
Calling the EPO decision an historic one, Shiva said: “Patenting is one of the ways through which traditional users can be threatened. The free tree will stay free.
The neem tree case is now part of the European patent regime jurisprudence[5].
2. Turmeric Patent Dispute
Turmeric can be used as a dye, a cooking ingredient, and a litmus in a chemical test, and has medicinal uses.
In the mid-1990s, turmeric became the subject of a patent dispute. A U.S. patent (no.5, 401,504) on turmeric was awarded to the University of Mississippi Medical Centre in 1995, specifically for the “use of turmeric in wound healing.”
Two years later, the Director general of India’s Council of Scientific and Industrial Research (CSIR), Dr. R. A. Mashelkar, filed a complaint against the same.
Turmeric has been medicinally used in India for thousands of years but the concerns grew about the economically and socially damaging impact of this legal biopiracy.
CSIR argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention. This claim was also backed by documentary evidence of traditional knowledge including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association.
United States Patent and Trademark Office (US PTO) investigated the validity of this patent. In 1997, despite an appeal by the patent holders, the US PTO upheld the CSIR objections and cancelled the patent.
This was a landmark judgement as for the first time, a patent based on the traditional knowledge of a developing country was successfully challenged[6].
Ø Conclusion
Globalization has caused the depletion of traditional knowledge for monopolistic rights and obtaining profit from its sales. So, there is a strict need for implementation of policies and generating awareness for preserving traditional procedures and knowledge. Various measures have been taken by developing countries like India like documentation activities which are worth the recognition. In order to prevent the misuse of such unauthorized parties of traditional knowledge and promotion of its use for their development, it is thus necessary to for the protection, conservation and preservation of the traditional knowledge and its practice and culture to be of a major concern.
Shivani Patki
