This article has been written by Rashmi Bagri pursuing Diploma in US Intellectual Property Law and Paralegal Studies and has been edited by Oishika Banerji (Team Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
In a world where startups are popping up in every corner, content creators rule the internet and artisans are finally getting the attention they need. The significance of intellectual property rights (IPR) in this regard must be taken earnestly. IPR forms the sole framework for the protection of creations of the mind, giving the creator an exclusive right over the use of his/her creation for a certain period. However, as the global intellectual property regime developed in accordance with the needs of the western world, it failed to encompass protective measures for traditional knowledge that have been passed down among indigenous people from generation to generation and have been stolen, manipulated, and monetized by Western elements, without any credit to the country of its origin or the people who are gatekeepers of that knowledge. Traditional knowledge protection is not served under IP regime for the creator remains unknown for the same. Further, the disparity between availability of the same in its member nations has made TRIPS not include traditional knowledge under the IP regime. This article explores flexibilities and alternatives to protect traditional knowledge and genetic resources.
IP and traditional knowledge : friends or foes
Using turmeric for healing wounds, or neem for fungal infections are well-recorded practices among Indians. It was the United States of America who once tried to patent the same to monetize it by depriving Indian indigenous communities of the economic benefit of such traditional knowledge. This reference is one of the prime reasons why protection is called for in regards to traditional knowledge.
IPR typically uses two strategies to protect traditional knowledge, namely, positive protection and defensive mechanisms. Positive protection gives traditional knowledge holders the freedom to take the appropriate precautions and seek redress in the event that their knowledge base is misused. Conversely, defensive mechanisms relate to the measures taken by holders of traditional knowledge to restrict the appropriation of their intellectual property rights. This type of knowledge protection aids traditional knowledge owners in defending their IP rights against unauthorised third-party acquisition.
Although the above para reflect on the friendship, the reasons why traditional knowledge has long been neglected by the umbrella of protection, listed hereunder, must be known:
- The primary reason lies in traditional knowledge itself. You see, it’s a living body of ancient knowledge, mostly passed down orally, preserved within the local communities, and can take a variety of expressions. This distinctness and variation make it almost impossible to formulate a single piece of legislation to deal with the woes of traditional knowledge.
- Currently, India relies on multiple provisions contained in different IP legislations, such as Section 25 of the Patents Act 1970 which talks about pre-grant oppositions to the invention seeking patent. Clause (k) of the provision mandates a party to notify the controller if the patent uses traditional knowledge.
- Further, Section 64 (2) of the Patent Act, 1970, which explicitly lays down that if “an invention is not new and, has been publicly used or published in India before the priority date or it is foreseen in the light of the knowledge available within any local or native community in India or elsewhere”, shall warrant revocation of the patent granted. Traditional knowledge impliedly falls under this category.
- The other problem is that the present laws all have their limitations. For instance, the Indian Patent Act, 1970, will only protect an invention in India, and ‘biopiracy’ has clawed its roots in the traditional knowledge and genetic resources of the country. Considering this, the Council for Science and Industrial Research, a Central Government agency, had set up a database called Traditional Knowledge Digital Library which lists 4.24 lakh practices and potions from Ayurveda, Siddha, Unani, and Yoga for proactive protection of traditional knowledge.
- This, in addition to the provisions in the Biodiversity Act, 2002, that specifically prohibit patenting traditional knowledge, aids in curbing the menace of misappropriating indigenous knowledge and commercial exploitation of genetic resources. However, this mechanism has its shortcomings. TKDL is mired with translation problems and public disclosure can lead to fishing expeditions, making even that traditional knowledge susceptible to misuse that wasn’t in the public arena before.
What is in positive store for traditional knowledge
The Geographical Indications of Goods (Registration and Protection) Act, 1999 which protects products that have a specific geographical origin and possess qualities, or a reputation credited to their origin, has been an effective tool in protecting traditional knowledge and genetic resources. “Darjeeling tea”, “Kashmiri pashmina”, “Bydagi chili” or even “Mysore Pak” and several other products that are attributed to certain geographical places are protected from misappropriation through GI tags that also help in cultural preservation in addition to economic advantages.
However, the individual urge to monetize everything and monopolise collective property has prompted the Indian courts to step in and recognize that traditional knowledge is not up for private ownership. Cases like Basmati Rice Export Development Foundation v. KRBL Ltd. (which ruled that “Basmati” rice was a GI that could not be monopolised by any one company) only necessitated the need for a coherent IP framework to protect traditional knowledge and genetic resources.
International conventions and generic resources : an insight
Talking about genetic resources, although they do not qualify as traditional knowledge, their usage to create new patentable inventions is well-documented. The problem however remains that most of the patents using genetic resources do not qualify for the ‘novelty’ pre-requisite of patents and thus are either not granted or are revoked once this becomes common knowledge. To deal with this issue of misusing genetic resources and depriving indigenous communities of their economic benefits, the Nagoya Protocol on Access and Benefit Sharing of genetic resources was implemented in 2014.
The protocol is an efficacious arm of the Convention on Biological Diversity (CBD) that has over 137 signatories which obligate countries to “establish clear rules and procedures for prior informed consent and mutually agreed terms”, to “provide for the fair and equitable sharing of benefits arising from the utilisation of genetic resources” with the contracting party and to, “take measures to monitor the utilisation of genetic resources after they leave a country including by designating effective checkpoints at any stage of value-chain, research, development, innovation, pre-commercialization or commercialization”, among other things.
Article 8(j) of CBD mandates parties to respect the knowledge and practices of indigenous communities, while simultaneously supporting the wider application of traditional knowledge based on fair and equitable benefit-sharing. Furthermore, while Article 15 of CBD, lists procedural requirements for accessing genetic resources, Article 16 acknowledges traditional knowledge as ‘key technology’ for efficient practices about conservation and sustainably using biodiversity.
FAO’s International Treaty on Genetic Resources from Food and Agriculture also works in tandem with CBD’s Nagoya protocol and aims to “establish a global system to provide farmers, plant breeders and scientists with access to plant genetic materials” and ensure that “recipients share benefits they derive from the use of these genetic materials with the countries where they have been originated”.
Conclusion
On a global scale, although relentless efforts continue to protect traditional knowledge and genetic resources, the absence of a comprehensive coherent framework to deal with their manipulation and misuse is still missing. Governments are demanding defensive protection of genetic resources to prevent biopiracy and misappropriation of genetic resources and have enacted legislation to comply with the prior informed consent requirements of the Convention on Biodiversity. For many members of the World Intellectual property Organisation, it’s now non-negotiable to exhibit the original source of genetic resources. That purpose is served by GIs in India. The merit of the Indian Geographical Indications Act must also be mentioned here, as it does not restrict itself to food and drinks, but also includes handicrafts and textiles unlike the European GI system. Some countries have also called for sui generis protection considering the inadequacy of current IP laws in protecting Traditional knowledge and Genetic resources. Although when these systems are put in place and how efficient they’ll be in governing, protecting and incentivizing traditional knowledge and genetic resources remains to be seen.
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