India’s Traditional Knowledge & IP

Contributor: Akarshan Indora

The Intellectual Property Rights-though help in bridging the gap between patent rights and traditional knowledge owners, have failed to deliver a proper balance to create equity between the two. In IPR, the life of patent owners is given importance and amply protected, whereas the rights of traditional knowledge holders remain untouched. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) under WTO has promoted the strong patent protection, enhancing technological as well as scientific innovations. TRIPS has many times neglected the collective, community-based nature of traditional knowledge and mainly tried to have a stronghold in isolating rights of global intellectual property frameworks.

Ironically, it is the traditional knowledge that 80% of the world population depends upon the most important aspects of life, such as medicine and healthcare. Local communities worldwide have accumulated humongous volumes of information on plant treatments, agriculture, and ecosystem management. Unfortunately, such knowledge is the least recognized or protected in the new IPRs, which leave them vulnerable to exploitation by large corporations. Addressing such a disparity between traditional knowledge and patents is important to provide fairness in the global system of IP.

Defining Traditional Knowledge and Biodiversity

Traditional knowledge refers to the practices, skills, innovations, and knowledge developed and transferred from generation to generation through communities. Such traditions are common in the exploitation of natural resources and biodiversity. It reportedly exists in numerous areas of medicine, agriculture, environmental management, and cultural practice. For example, indigenous communities can come up with much information regarding medicinal plants, seed types, and other behaviors by the animals, aiding in the sustainable use of the ecosystem.

Biodiversity is the variety of life forms, including plants, animals, and microorganisms in all their habitats on earth. Biodiversity is critical to the maintenance of ecological balance and environmental sustainability. Traditional knowledge is particularly important in biodiversity conservation and utilization. More often than not, indigenous peoples and local communities live in harmony with their environment through their knowledge in maintaining natural resources and, ultimately, in the sustainable management of ecosystems.

Because of interdependence, the preservation of biodiversity and traditional knowledge is closely related. Traditionally, communities in such areas utilise such knowledge for managing and conserving biodiversity; thus, both are important under international and domestic IP laws to be preserved.

International Frameworks

Over the years, numerous international frameworks have recognized the importance of protecting traditional knowledge, biodiversity, and cultural expressions. Some of the most significant initiatives are:

  1. Convention on Biological Diversity (CBD)

The CBD is a multilateral agreement adopted at the Earth Summit in Rio de Janeiro in 1992, which aims to conserve biodiversity, utilize it in a sound manner, and share fair and equitable benefits arising from the use of genetic resources. The CBD acknowledges the importance of indigenous and local communities in biodiversity conservation and their respective traditional knowledge, which should be respected. Article 8(j) of the CBD specifically obligates signatories to preserve and maintain TK related to biodiversity and to promote the equitable sharing of benefits arising from its use.

  1. WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)

The IGC is pushing forward the development of international law frameworks on the protection of TK, genetic resources, and TCEs. Model Provisions for folklore protection, the IGC put forward four broad categories of TCEs;

  • Words – traditional stories or myths
  • Musical Sounds – traditional music or songs
  • Actions of the Human Body – dance or rituals
  • Tangible Expressions – artifacts, traditional handicrafts

The provision does allow the community to have control over its culture while allowing elements such as commercialization that may be desirable.

  1. UPOV (International Union for the Protection of New Varieties of Plants)

It aims to protect the rights of breeders of new plant varieties. The system, however, does not consider the indigenous community’s traditional agricultural practices whereby most are based on communal ownership and sharing of plant varieties. Whereas UPOV attempts to facilitate innovation in plant breeding, its implementation might undermine the traditional knowledge of farmers who were long practicing seed saving and sharing.

  1. FAO (Food and Agriculture Organization)

The FAO has addressed the issue of safeguarding traditional agricultural knowledge. It welcomes the further use of traditional food systems, as these have conserved biodiversity for many years. It also backs efforts towards ensuring more equitable distribution of benefits derived from genetic resources and traditional agricultural knowledge with local communities.

  1. APEC (Asia-Pacific Economic Cooperation)

APEC has emphasized regional frameworks in the protection of traditional knowledge and its commercialization. APEC supports collaborations of member countries in the protection of traditional knowledge, but at the same time, it promotes innovation and economic growth in these regions.

Domestic Laws and Policies

India has implemented several legal frameworks to protect traditional knowledge, particularly in the areas of biodiversity, plant varieties, and indigenous rights. Key legislation includes:

  1. Patent (Second Amendment) Act, 2002

The Patent (Second Amendment) Act lays down that traditional knowledge cannot be patented unless such knowledge incorporates a significant inventive step. Such legislation clarifies that knowledge or any element of it falling within the existing public domain or a community’s traditional practices cannot be patented and, therefore, rules out biopiracy from the realm of indigenous knowledge.

  1. Protection of Plant Varieties and Farmers’ Rights Act, 2001

It safeguards the rights of farmers and local communities to save, use, and exchange seeds and plant varieties. It recognizes the efforts of the farmers in conserving biodiversity as well as giving intellectual property protection to the breeding of new plant varieties.

  1. Biological Diversity Act, 2002

The Biological Diversity Act ensures conservation of biological diversity in India along with promoting the sustainable use of its components. It mandates the benefit-sharing mechanism with local communities which can be granted access to biological resources along with related traditional knowledge.

  1. Kerala Tribal Intellectual Property Rights Act, 1996 and Karnataka Community Intellectual Rights Act, 1994

State-level laws were developed to safeguard the intellectual property rights of the tribal communities. It stretches out to protect the traditional practices and knowledge from exploitation, making the communities eligible for legal recognition and control of their traditional culture.

Patenting Traditional Knowledge: Challenges

Following are the unique characteristics of traditional knowledge that pose challenges in patent protection:

  1. Collective Ownership

Traditional knowledge is usually owned collectively by communities. Patent rights can hardly be assigned to any individual, whereas in the case of an invention, a personality may be there or a corporation. In the case of traditional knowledge, it grows as the result of collective experience from centuries.

  1. Geographical Diffusion

Some types of traditional knowledge overlap with regions and communities, hence making it hard to point out ownership in one group. For instance, medicinal plants use may span a large area of the geographic region, hence complicated issues over who owns the right over that knowledge.

  1. Cultural Concepts of Ownership

Many indigenous communities hold plants and associated knowledge as common property intended for sharing. This view often clashes with the system of modern intellectual property, which revolves around private ownership and exclusivity.

  1. Novelty and Inventiveness

Patents demand that subject matter is new and not obvious. Traditional knowledge has often been around for generations and thus cannot meet these criteria. How, therefore, should knowledge that is not “new” by the standards of current practice, but is highly valued in cultural and economic terms, be protected?

  1. Prohibitive Costs

In this respect, obtaining and enforcing patents is an expensive process; hence, indigenous communities may not have the necessary resources to pursue. The high costs associated with filing and maintaining patents and the court cost of defending all combine to make patent protection inaccessible to the indigenous.

TKDL and TKRC

India has taken a very serious step toward the prevention of misappropriation of its traditional knowledge by two important initiatives:

  1. Traditional Knowledge Digital Library (TKDL)

The TKDL was established as a database that documents, through digitization, traditional medicinal knowledge such as knowledge with regard to the use of plants and natural remedies. This knowledge is catalogued in databases and presented before patent examiners to prevent erroneous grants of patents on knowledge already in public domain. The TKDL has played a vital role in challenging the practice of biopiracy, particularly where foreign companies tried to patent traditional Indian medicines.

  1. Traditional Knowledge Resource Classification (TKRC)

The TKRC categorizes the various types of traditional knowledge so that they may be tailored to match the international patent classification system. This can make it simpler for patent offices to easily locate and evaluate traditional knowledge when assessing patent applications. In this regard, the TKRC avoids “unjustified patenting of traditional knowledge” by documenting and recording prior knowledge.

Monitoring Traditional Knowledge

There is a need for governments, local communities, and the international arena to cooperate effectively in monitoring traditional knowledge. An example of how this cooperation could take place is to empower indigenous communities to govern their knowledge and resources through participatory models such as community-based governance structures, benefit-sharing agreements, and collaboration with external researchers who would ensure that these communities receive proper recognition and compensation.

The generation of national databases, an indispensable role that accompanies the creation and awareness process, is a perfect example of which the TKDL in India is a great example. Databases of traditional practices would ensure that knowledge is not patented without proper attribution and permission from the original holders.

Reclaiming Traditional Knowledge

India has had several significant successes in retrieving patent rights to traditional knowledge earlier patented by foreign entities. Two landmark cases stand out in emphasizing the importance of TK protection:

  1. Neem Patent:

In the 1990s, a European company was granted patent for a fungicidal use of neem – used in India as an herbal for thousands of years. India pressed objections and provided ancient texts and traditional practices evidence that prove neem’s medicinal properties were well known. The European Patent Office revoked the patent. India gained a significant victory against biopiracy as a result.

  1. Turmeric Patent:

 In a similar case, researchers at a U.S. university patented the use of turmeric for healing wounds. However, since the knowledge of using turmeric in medical treatments has been known in India for centuries, India successfully challenged the patent and proved that such knowledge is part of the public domain and therefore cannot be patented. These cases place proper perspectives to the issues of preservation of traditional knowledge as well as the need for strong legal mechanisms against biopiracy.

Conclusion

Protecting traditional knowledge in the intellectual property framework is an important measure to protect cultural heritage and prevent exploitation. Modern patent systems often forget to consider traditional knowledge as having a collective character; however, initiatives such as India’s Traditional Knowledge Digital Library (TKDL) and laws like the Biological Diversity Act have set a precedent for protecting indigenous practices. However, true equity requires that this global IP regime evolve to recognize and protect the rights of traditional knowledge holders so that these valuable wealth-generating “saplings” can enjoy the fruits of their heritage and be equitably shared in a globalized world.

©2023. SatyakiLegal. All Rights Reserved.

Scroll to Top