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Traditional knowledge in IPR

February 20, 2024

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This article is written by Gautam Badlani. It explains the concept of traditional knowledge and how this knowledge is accorded protection under the IPR regime. The article also sheds light on the importance of traditional knowledge. It gives a detailed analysis of how the various IPR laws protect and govern traditional knowledge.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

India is one of the world’s 12 megadiverse countries. India is known for its rich and diverse biological heritage and has recorded over 91,200 animal species and 45,500 plant species in its ten bio-geographic regions. India is a recognized centre of crop diversity and contains many wild varieties of related crops. India is also one of the twelve main centres of plant production and is rich in agricultural biodiversity. India is rich in traditional knowledge because of its exceptional biodiversity and natural bounty. Traditional knowledge is the foundation of cultural patrimony. The majority of indigenous and local communities are found in most bio-rich and diverse regions. This natural world is a way of life for them and is part of their cultural existence. Indigenous groups provide a repository of traditional information about conservation and sustainable use. It has always been a readily available gem and was thus vulnerable to misuse.

Traditional knowledge is a part of most native cultural identities. A crucial element in achieving sustainable development is the information structures that compose traditional knowledge. In addition, the preservation of the social and physical environment in which traditional knowledge is an integral part is significant. Attempts to exploit traditional expertise for industrial or commercial advantages can result in its rightful holders being misappropriated of the same. It is therefore important to develop ways and means of preserving and maintaining traditional knowledge so that sustainable development is consistent with traditional knowledge interests.

Understanding traditional knowledge in IPR

Traditional knowledge (hereinafter referred to as TK) is considered to be the collective property owned by the entire community. It is res communis (owned by the entire society). TK is shaped by the contributions of several people over a long period of time. It is deeply entrenched in the lives of the people, and TK cannot be severed from the lives of the traditional people.

The TK is a collective right that belongs to the community that has developed this knowledge over time. It consists of practices, instructions, and knowledge that have been passed on from generation to generation within an indigenous community.

However, it is pertinent to note that TK is not always in the public domain. A part of the TK might be in the public domain, but the remaining might be conserved by a particular community as secret or sacred. There has been consistent debate and discussions regarding the scope of TK.

Article 8(j) of the Convention on Biological Diversity puts forth that traditional knowledge refers to the awareness, inventions, and traditions of local and indigenous cultures worldwide. Traditional knowledge, acquired from experience gained over the centuries and adapted to the local culture and environment, is transmitted orally from generation to generation. It tends to belong collectively and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, traditions, community rules, the local language, and agricultural practices, including plant species and animal breed growth. It is often referred to as an oral tradition because it is taught, sung, danced, drawn, sculpted, sung, and performed for thousands of years. Traditional knowledge is primarily of a practical nature, particularly in fields such as agriculture, fisheries, safety, horticulture, forestry, and overall environmental management.

WIPO (World Intellectual Property Organisation) defines traditional knowledge as the knowledge, skills, practices, and know-how that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. Although there is not yet an internationally accepted definition of TK, it can be said that:

In a general sense, TK accepts the substance of information itself as well as common cultural expressions, including distinctive TK-related signs and symbols.
In the narrow sense, TK refers to knowledge as such, in particular the knowledge arising from conventional intellectual activity, which involves know-how, habits, skills, inventions.

The most important element of TK is that it has an ancient origin and is mostly oral. However, knowledge is not made traditional because of antiquity, but because it has been created, preserved, and transmitted within a traditional culture, and is passed on between generations, often through unique, customary knowledge transmission systems. Hence it is the knowledge-to-community relationship that makes it traditional. TK is culture-specific, context-specific, dynamic, and adaptive.

As a matter of example “Mola” is a traditional hand-crafted textile work created by cutting and stitching several layers of fabric to form a multicolored product. The “molas” were traditionally produced by the communities of Panama’s native Kuna. While imitations were created in Taiwan, “mola” is clearly a result of traditional knowledge established by Kuna as an expression of its own culture.

Indigenous people

The Indigenous and Tribal Peoples Convention, 1989 defines indigenous people as:

Tribal people who are distinguished from the other national groups by virtue of their economic, social and cultural conditions and governed, partially or completely, by their own customs and traditions
Such people who are regarded as indigenous by virtue of their descent

The knowledge that is developed, conserved, and nurtured by the indigenous communities is known as ‘traditional knowledge’. The TK is dynamic in nature, and it changes with geography, climate, and social factors. Some of the features of TK are:

TK is transmitted across generations
The transmission usually takes place through oral means, and in rare cases, the transmission is done through written means
TK is held by the community as a whole. The TK cannot be subjected to individual proprietorship.
It is very difficult to track the origin of TK

IPR protection of traditional knowledge in India

Traditional knowledge, particularly in developing and underdeveloped countries, should be afforded effective security. Such security would concern the recognition of the rights of original traditional knowledge holders and the unauthorized acquisition by third parties of rights over traditional knowledge. Because of the current trends of globalization, a large degree of international collaboration and cooperation is required to effectively protect and grow traditional information, and any such protective strategy needs to take into account the dimensions of the society, national, regional, and foreign. Furthermore, the frameworks pursued in respect of traditional knowledge must give subjective consideration to the original knowledge holders. These mechanisms must tackle the economic aspects of protection. Such protection should most importantly be affordable, understandable, and accessible to traditional knowledge holders.

Traditional information in the present IPR regime can be protected by two means: Positive Protection and Defensive Protection. Discrepancies between protective and constructive protection of intellectual property are not watertight. Therefore both strategies should be used successfully to safeguard conventional information.

Defensive protection: This system provides protection against unauthorized intellectual property rights gained over traditional knowledge by third parties. The rights are:

Provision for disclosure of origin of genetic resources and related traditional knowledge relevant to the invention in the application for the patent.
Preparation of a database that contains full information on traditional knowledge in a scientific and technical form and is accessible to patent reviewers. Such a database will help to determine the novelty of the invention at issue.

For example, India has developed a searchable database of traditional medicine which can be used by patent examiners as proof of prior art when reviewing patent applications. This followed a well-known case in which the US Patent and Trademark Office issued a patent (later revoked) for the use of turmeric for the treatment of wounds, a property well known to traditional Indian cultures, and recorded in ancient Sanskrit texts. Defensive strategies could also be used to protect sacred cultural manifestations, such as sacred symbols or words from trademark registration.

Positive protection: Positive protection includes typical holders of knowledge gaining intellectual property rights directly through patents or alternate forms of protection. States have taken various steps in this respect. Some states rely on existing IP measures as an appropriate way to safeguard traditional knowledge. Others believe the distinct nature of traditional knowledge requires a new system designed to complement the existing IP system. It is known as the “sui-generis” steps to preserve conventional knowledge. States have also in some cases adapted or expanded new IP privileges in relation to common knowledge.

Some of the examples of positive protection would be:

Prior information consent: 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.
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.

Like other categories of intellectual property, there is no specific act or law to protect traditional knowledge in India. But there are certain provisions related to TK in other IP Acts.

Patents and traditional knowledge

Indian patent laws do not permit the protection of traditional knowledge under Section 3 (p) of the Indian Patent Act, 1970. An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components is not an invention and cannot be patented. 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 which is therefore not patentable under the Act.

However, if there is a significant change in the current TK that allows the innovation to satisfy the Indian IP law requirements, then IP protection can be pursued.

Indian law provides for appropriate provisions to protect TK. By its very nature, conventional knowledge is in the public domain, and hence any application for a patent relating to TK does not qualify as an invention pursuant to Section 2(1)(j) of the Patents Act, 1970, which specifies that ‘invention means a new product or method requiring an innovative phase and capable of industrial use.’ Furthermore, pursuant to Section 3(e) of the Patents Act, “a substance obtained through a mere admixture which results only in the aggregation of the properties of the components thereof or process for producing such substances” is not an invention and hence, not patentable.

Patent applications based on TK which contravene the provisions of law may be denied pursuant to Section 15 or in pre-grant opposition pursuant to clauses (d), (f), and (k) of section 25(1), and patents granted may be revoked in opposition pursuant to clauses (d), (f) and (k) of section 25(2) of the Patents Act, 1970.

The Patent Act 1970 includes provisions requiring TK to be disclosed and is the origin of the invention in question. Section 10(4)(ii)(D) of the Act provides for the disclosure in the specification of the source and geographical origin of all biological material used for the invention.

Various facets of TK may be secured by the patent scheme. Technical issues found in the prior art with novel and innovative steps worldwide can be secured by a patent application. For instance, the trademark, which contains contemporary subject matter, may be covered by patents. Patents can protect processes for the preparation of products isolated from biological resources such as microorganisms, plants, and animals. Under Patents, the codified TM cannot be covered, because it does not meet novelty requirements. Yet we will keep anyone from having patents by using codified knowledge about TM as prior art.

2005 Amendment

The Patents (Amendment) Act, 2005, aimed at protecting the rights of indigenous communities. It casts an obligation on the patent applicants to disclose the origin of the biological resources involved in their inventions. If the information is related to TK, then the patent office may refuse to grant the patent. Similarly,

As per the 2005 Amendment, the following can be the grounds for the refusal of a patent application or the revocation of a patent:

The patent may also be revoked if it is discovered that it was obtained by providing false and misleading information about the geographical origin of the biological resources of the patent.
If the patent is merely an aggregation of several properties that are part of the TK, then it would not be patentable.
If the patent, in view of the knowledge available to the indigenous communities, it can be regarded as anticipated.

Traditional Knowledge Digital Library (TDKL)

Traditional Knowledge Digital Library is a joint project of the Government of India through the Council for Scientific and Industrial Research (CSIR) and the Ministry of AYUSH to collect information on traditional knowledge existing in India as a single repository, in different languages and formats. TKDL acts as a guide for patent examiners prior to art at International Patent Offices (IPOs).

TKDL’s two principal features are simplicity and availability. TKDL lends language, format, and classification accessibility. Traditional Indian information exists in local languages such as Sanskrit, Urdu, Arabic, Persian, Tamil, etc., TKDL translates this common information into the patent examiner’s native languages and into five world languages- English, French, Spanish, German, and Japanese. The TKDL format is both special and identical to the patent application format, making it readily comprehensible to patent examiners. For each TK, the complete listing contains a bibliography of traditional Indian documents, which in turn contains links to scanned images in the original language of those documents. TKDL has developed a new traditional knowledge classification scheme, known as the Traditional Knowledge Resource Classification (TKRC), based on the International Patent Classification (IPC) framework. Each TKDL collection includes TKRC codes, as well as IPC codes. Another main feature of TKDL is its availability. TKDL in full form is only available for use by patent examiners at certain regional patent offices. A representative edition of the database is however available on the TKDL website. There are 1,200 representative listings to this site.

The Traditional Knowledge Digital Library had a significant impact on protecting India’s traditional knowledge. The library, which serves as a repository for Indian traditional knowledge, helped the patent offices scrutinize the patent application for potential TK components. The library contains the TK documents in multiple languages and thus bridges the linguistic gap between the traditional communities and the patent offices. With the help of the TK Digital Library, India was able to counter 36 patent applications in Europe alone.

Traditional Knowledge Resource Classification (TKRC)

Traditional Knowledge Resource Classification (TKRC) is an advanced TKDL classification system. The Indian traditional medicine system was organized and graded by TKRC into approximately 25,000 subgroups for Ayurveda, Unani, Siddha, and Yoga. TKRC has permitted the inclusion of approximately 200 sub-groups under A61 K 36/00 as described in the International Patent Classification rather than a few previously available sub-groups on medicinal plants under A61K 35/00, thereby enhancing the standard of the quest and review of prior art in respect of patent applications in the field of traditional knowledge.

In 2011, the World Intellectual Property Organization (WIPO) organized an International Conference in New Delhi, in partnership with CSIR on ‘Use of Virtual Knowledge Digital Library as a Model for the Security of Virtual Knowledge.’ Accordingly, WIPO organized an ‘International Study Visit to TKDL’ in collaboration with CSIR and DIPP (Ministry of Commerce and Industry) for 19 countries interested in the replication of TKDL.

TKDL has proved to be a powerful tool in defending illegitimate rights over existing TK information and exclusive IP rights over these TK. It also shows the constructive steps taken over the years to preserve such information for current and future generations. The aim is not to limit the use of traditional knowledge but rather to ensure that incorrect patent rights are not issued for patent examiners due to a lack of access to the prior art.

Copyrights and traditional knowledge

Copyright may be used for the protection of TK holders’ artistic manifestations, in specific artists belonging to the indigenous and migrant peoples, against illegal development and abuse. This may include literary works such as stories, legends, and myths, customs, poems; theoretical works; pictorial works; textile works such as fabrics, clothes, textile compositions, tapestries, and carpets; musical works; three-dimensional works such as pottery and ceramics, paintings, wood and stone carvings, and different kinds of objects. Public rights may be used to secure the participation of singers and dancers and performances of theatrical works, puppet shows, and other related performances. In addition, the WIPO recognizes the indigenous and local community performances as common knowledge. Copyright law covers performance by way of adjacent rights or privileges of the artist. In general, therefore, the performance of traditional, indigenous, and local communities can be protected within the scope of copyright and more specifically within the category of performer rights.

Copyright protects the expression form, and not the ideas themselves. Copyright holders are authorized to do any of the acts provided under Section 14 of the 1957 Copyright Act. Copyright may be used to shield TK holders’ artistic manifestations, in particular artists belonging to indigenous and migrant cultures, from unauthorized reproduction and abuse of these manifestations. Moral rights deal with the creators/artists/authors’ relationship with their work. Such rights may provide an important way to secure indigenous peoples’ interests in works derived from indigenous knowledge.

Also, Section 31A of the Copyright Act, 1957 deals with the compulsory license in case of unpublished Indian work. Under this section, if the author of a work is dead, unknown or cannot be traced or the owner of the copyright cannot be found, any person can apply to the Copyright Board for a license to publish such work or a translation thereof in any language. Before making an application the applicant shall publish his proposal in one issue of a daily newspaper in the English language having circulation in the major part of the country and where the application is for the publication of a translation in any language, also in one issue of any daily newspaper in that language, so that if the original author of the work exists he can claim his ownership.

Trade secrets and traditional knowledge

Under Article 39 of the TRIPS agreement,(Trade-Related Aspects of Intellectual Property Rights) confidential knowledge is an IPR subject matter. This section of law safeguards unrevealed information by confidentiality and access agreements, which may also include paying fees to information holders for accessing and using their knowledge. For knowledge to be classified as a trade secret, three elements are required: knowledge must be of commercial value, knowledge must not be in the public domain and knowledge is subject to reasonable efforts to maintain secrecy. A trade secret can only be implemented if it remains a secret. The aim is to legally prohibit information under a person’s control from being exposed to, obtained, or used without permission by others in a manner contrary to fair business practices. But once the knowledge is made available to the public, that option no longer exists.

Trade secret law is probably the best form of security for traditional knowledge among the predominant intellectual property regimes, according to Srividhya Ragavan. For example, trade secrets may mean a duty of a photographer not to sell or show copies of a photograph without the photographer’s permission. This is the best form of intellectual property to secure any sort of knowledge that is not revealed. The first step towards secret trade protection of indigenous knowledge is the realization of its value by the holders: they must be aware of their rights and the long-term benefits they will gain from the TK if they are protected as trade secrets. The incentives provided by the secrecy regime for monitoring the distribution and use of TK must be made public to the sectors and communities concerned. TK holders can also retain the right to determine whether to reveal the information or not. TK’s security and its various representations by trade secrets has many advantages over other types of IPRs. Delivery is cheaper, quicker, and easier. The legislative conditions to prove a trade secret are versatile. Under trade secrets, information that is not susceptible to patent or copyright protection may be protected. The cases of unauthorized use of the information without the permission of the community can be effectively prevented by suing for misappropriation of trade secrets.

For example, Only a few traditional families in the Aranmula-a rural area in the Pathanamthitta district of the State of Kerala, India, know the manufacturing method of a peculiar metal mirror type called “Aranmula kannadi.” Knowledge relating to goods registered under the Geographical Indications of Goods (Registration and Protection) Act, 1999 can be effectively covered if it is preserved by TK holders as a closely guarded secret.

However, India has no clear regulations to safeguard trade secrets and sensitive information. In India, trade secrets are secured either by contract law or by the equal confidentiality infringement doctrine.

Trademarks and traditional knowledge

Trademarks are based on two principles: distinguishability and avoid confusion. Being distinct means that the mark does not resemble any other word, phrase, symbol, design related to a similar product. It is necessary for customers to purchase such goods to prevent confusion as to the source of a drug. Marks differentiate goods so as not to confuse customers into believing that a product is something that it is not or that it originates from a particular source

Under the Trademark Act 1999, even agricultural and biological products can be protected from indigenous products. All kinds of products manufactured and serviced by producers, practitioners, craftsmen, and traders in native and indigenous communities, or by the bodies representing them or under which they are organized (cooperatives, guilds, etc.), can be differentiated from the same kinds of goods and services rendered by others, by the use of trademarks and service marks.

Collective marks can be used to secure artisanal and cultural products. Certification marks may be used to distinguish a wide variety of products and services, from traditional art and artwork to food, clothes, and tourism services. Indigenous groups may get trademark registration and market their products using this symbol to differentiate their brand and to guarantee their unique quality. Therefore the prestige of conventional knowledge can be safeguarded by the trademark scheme to some degree, but it will not shield the content of such knowledge. It will ensure defensive protection against actions in which non-real goods or services are passed off.

Such use of the trademark can certainly establish product fidelity and protect against reputation loss resulting from the use of traditional knowledge designation for derivative products. It is very similar to the use of trademarks to prolong product fidelity even after patents expire, especially in the case of pharmaceutical patents.

In the event, if a patent prohibits the indigenous community from selling the product, they could register the trademark and subsequently license the use of the trademark in order to ensure authenticity for the companies. Existing procedures on products could be carried out and approved by a community as a method of adding value to a product that has the potential to collect royalties on the products sold.

Geographical Indications and traditional knowledge

As per the (Indian) Geographical Indications of Goods (Registration and Protection) Act, 1999, “Geographical Indication”, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or another characteristic of such goods is essentially attributable to its geographical origin and in the case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be. Like trademarks, it positively attributes a known quality to the product associated with a specific geographical location when associated with a product. The use of geographical indication in respect of products manufactured in a region other than that specific geographical area is not allowed. Examples of GI: Darjeeling Tea Kanchipuram Silk, Alphanso Mango, Nagpur Orange, Kolhapuri Chappal, Bikaneri Bhujia, Agra Petha, Goa Feni, etc.

The indigenous communities hold TK collectively, and GI is the most effective form of TK protection. The Geographic Indications of Goods Act (Regulations and Protection) rewards a group at a specific site. GI protection is valid for 10 years but can be renewed several times so that it can be protected for an infinite period of time. Over time the methods of producing products improve to give the product a better quality. Through several years or decades, the goodwill and prestige of the products are won. GIs reward this prestige of the given product and are not limited to a particular manufacturing system of a given product but also allow for evolution. Over the years, the indigenous cultures have preserved and refined their traditional methods of imparting unique features to items. GIs appreciate their efforts and forbid anyone to free-ride on that prestige. The GI is preserved so long as the natural and cultural characteristics of the given commodity are retained at the appropriate place of cultivation. Since GI rights are collective rights, they can not be freely passed from one person to another.

GIs may be used to protect conventional medicinal products – in particular where features of these products containing botanicals (i.e. fiber, water, oil, pulp, tissue, or other plant-derived components) are due to the geographical origin of the products.

GIs identify and reward farmers with a premium value applied to their goods for their age-long cultural commitment to survival, lateral learning, conservation, and social networking. GIs will contribute to the survival and evolution of society by acknowledging the cultural values and ingenuity of TK holders.

Industrial designs and traditional knowledge

An industrial design is one type of intellectual property where the design method focuses on an article’s aesthetic function, derived from its visual appearance. The style and shape of traditionally made furniture, garments, receptacles, wooden objects, leather ceramics, etc. prepared by indigenous people or association on behalf of indigenous people may be classified as industrial designs. Traditional craft products such as hand-woven articles such as carpets, cotton bed covers may also be classified as industrial design for safety. Countless types of traditional designs are deeply rooted in India’s rich cultural heritage. For example, the “chicken kadhai” of Lucknow is a famous traditional design of India.

The Protection Of Plant Varieties And Farmers’ Rights (PPVFR) Act, 2001

The PPVFR Act 2001 and the PPVFR Rules 2003 primarily deals with the protection of the rights of plant breeders over the new varieties that they have produced and the right of farmers to register new varieties and also to conserve, breed, use, trade, share or sell the varieties of plants that they have produced, improved and preserved over several generations. The Act is a deviation from the UPOV Model of 1991 and can be regarded as an alternative ‘sui generis’ system which also grants protection to the farmers of the rights of formal innovations of a plant breeder and informal knowledge system and traditional plant varieties. The essential provisions found in this Act applicable to ABS are those relating to the preservation of farmers’ interests, and the mechanisms imply compensation or benefit-sharing for local communities or farmers’ contributions to the production of a new variety.

The Indian PPVFR law is a rare effort by a developing country to give effect to the principle of the rights of farmers as provided for in the international treaty on Plant Genetic Resources for Food and Agriculture. While this Act has many shortcomings, it also provides a blueprint for an efficient sui generis program for the safety of plant varieties to be placed in place by WTO members in fulfillment of their commitment to the Agreement on TRIPS.

The 2002 Biodiversity Act explicitly discusses access by international persons, organizations, or corporations to genetic resources and related information in order to ensure an equal share of profits from the use of these resources.

The Act stipulated three-way requirements for access to biological and conventional knowledge:

Access to biological resources and conventional expertise to foreign citizens, businesses, and NRI based on “National Biodiversity Authority’s prior approval,”
Access to Indian citizens, businesses, associations, and organizations registered in India under “Prior intimation to the State Biodiversity Board”
Exemption from prior approval or intimation of indigenous medicines for local people and groups, including farmers and biodiversity cultivations, vaids and hakims, who have been studying.

There is no requirement under the legislation for seeking permission of the National Biodiversity Authority for carrying out research if it is carried out in India by Indians, as well as under the collaborative research projects that have been drawn within the overall policy guidelines formulated by the Central Government. The only situation that would require the permission of the NBA is:

(i) when the results of any research which has made use of the country’s biodiversity are sought to be commercialized

(ii) when the results of the research are shared with a foreign institution or individual who wants access to the country’s biodiversity for undertaking research.

Biological Diversity Act, 2002

The Biological Diversity Act, 2002, was enacted to fulfill India’s obligations under the Convention on Biodiversity, 1992. The Act provided for the establishment of the National Biodiversity Authority (NBA) and mandated the prior approval of the NBA before the registration of any IPR related to biodiversity. Moreover, any person intending to access the biological resources of India has to give prior intimation to the State Biodiversity Board established under the Act.

The Act mandates that the monetary as well as non-monetary benefits arising out of the use of biological resources must be shared with those who hold traditional knowledge and conserve biodiversity.

2023 Amendment

The Biological Diversity (Amendment) Bill, 2021, was passed in the year 2023. Through the Amendment, it was clarified that the approval of the NBA has to be obtained before the grant of the IPR and not during the application procedure. Moreover, the Amendment provided exemption to persons bearing traditional knowledge from giving prior intimation to the State Biodiversity Boards before accessing the biological resources.

Reasons to protect traditional knowledge in IPR

The justification for preserving traditional centers of expertise on matters of social justice and the right to retain, maintain, and regulate one’s cultural heritage is for indigenous people. There’s also the right to get a fair return on what those communities have developed.

Also, even non-indigenous people have a strong desire to ensure that TK is used equally because it has a lot to bring to modern society. In several ways, it is increasingly being used to assist decision making: food and diversity; health, commerce, and economic growth. There are five reasons why TK should be protected on this basis. They are:

Equity,
biodiversity conservation,
preservation of traditional practices,
prevention of biopiracy, and
TK’s significance in development.

Equity

Traditional knowledge produces interest that is not properly acknowledged and paid for. For example, traditional farmers have nurtured, maintained, and used plants and animals alike, they have improved the value of plant genetic resources by continuously selecting the best varieties adapted to them. This is then that seed companies collect the varieties, process, and sell for sale. Via Plant Breeders Rights, they are also permitted to preserve the varieties and can benefit from them while the farmers are left out. Farmers and scientists, therefore, rely on the genetic diversity present in crop plants that have accumulated, recorded, picked, multiplied, exchanged, and maintained variants in hundreds of generations. The irony is that scientists may defend and benefit from their inventions while the efforts of conventional farmers are ignored. Farmers do not bill for the samples the scientists and seed companies take, hence the inherent disparity in the existing system of intellectual property rights.

Conservation of biodiversity

Innovations of knowledge and traditions of indigenous peoples and local societies are a demonstration of their cultures. Therefore, the preservation of human culture includes maintaining the link between people and natural existence like plants and animals. So TK protection will help conserve the environment and encourage sustainable agriculture and food security.

Preservation of traditional practices

TK security will provide a basis for the preservation of conventional lifestyle practices and awareness. Preserving TK helps protect people’s self-identification and can guarantee the continued life of indigenous and traditional people. This role certainly goes beyond the scope of protection of IPRs provided for in TRIPS or any other multilateral instruments. Protecting TK by the appropriate type of IPRs will increase the profile of the information and make it more desirable and worthy of preservation.

Prevention of biopiracy

A large number of patents on genetic resources and expertise acquired from Africa and other developing countries have been issued. One example of this is the use of patent number 5, 401, 5041 which was granted for the healing properties of turmeric acid in wounds. The invention had been used for centuries in India before the USA licensed the patent. The Indian Council for Science and Industrial Research ( CSIR) successfully applied for its repeal. Kenya’s kiondo was patented in Japan but this was not withdrawn, the same was true of the micro-organism for fading jeans, and the energy-saving jiko just to name a few examples.

One big concern is how to prevent TK from being misappropriated. Three recommendations were advanced: TK documentation with a view to building a digital TK library. This will allow states to:

Check the potential misuse;
The requirement of proof of origin for patenting materials; and
Prior informed consent.

The use and importance of TK in development

TK needs to be protected from loss and misappropriation. Some form of protection can cause local communities to share their TK and genetic resources. And if information owners are paid, they will be encouraged to make their TK easy to access. They may also be encouraged to maintain it and to ensure future use and access. As far as traditional medicine is concerned, when IPRs are used for protection, they can reduce access to products and services that are important for a community. The government should also consider encouraging the use of TK and therefore, seeking to avoid misappropriation

Traditional Knowledge and sustainable development

Sustainable development refers to a development that is capable of satisfying the needs of the current generation without compromising the capacity of subsequent generations to fulfill their needs.

The indigenous communities have been passing down traditional knowledge across generations. They have been developing and conserving TK for future generations. Thus, indigenous communities are capable of promoting intergenerational equity.

The United Nations Declaration on the Rights of Indigenous People was adopted in 2007. It expressly states that the knowledge, culture, and practices of the indigenous people contribute to equitable and sustainable development and are instrumental in the proper management of environmental resources.

Traditional knowledge and international IPR conventions

The concept of traditional knowledge is recognized in the IPR jurisprudence of most nations. Effective enforcement of IPR rights requires a coordinated and cooperative global approach. Thus, it becomes important to analyze how the global conventions seek to protect traditional knowledge. Most of the major international conventions do not contemplate IPR protection for TK.

WIPO

The World Intellectual Property Organization (1967) was established with the object of fostering international cooperation for the protection of intellectual property (IP) rights. It is one of the United Nations’ 15 specialized agencies. It frames global intellectual property-based rules and regulations and provides technical assistance to IP offices across the globe.

Convention on Biodiversity

The Convention on Biodiversity, 1992, aims at preserving biological resources and sharing the benefits derived from genes. The Convention also recognizes that genetic information is often exploited for commercial purposes, and this exploitation can be prevented by building a strong IPR regime.

TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1995, commonly known as the TRIPS Agreement, is one of the most comprehensive international agreements in history. This legally binding document provides certain minimum standards to which the domestic IPR laws of the member-states must conform. As per its preamble, its primary objective is to promote effective enforcement of IPR rights.

The TRIPS agreement provides that the member-states should provide patent protection to those inventions that are new, involve an inventive step, and are capable of being put to any industrial application. However, TK does not fulfill the requirements of being ‘new’ or having an ‘inventive step’. In some cases, it might not even have industrial applications.

Thus, we can conclude that, so far as the international IPR regime is concerned, TK and the contributions of the indigenous people are not considered to be deserving of IPR protection, while the innovations of science are considered to be relevant subjects for IPR safeguards.

Human Rights and IPR protection for traditional knowledge

In recent times, human rights forums have also witnessed discussions and debates on IPR protection for traditional knowledge. The analogy behind the human rights angle for TK protection is that large corporations are exploiting the TK of local and indigenous communities for profit without providing adequate compensation to the local communities.

While the international human rights conventions do not expressly recognize the rights of the indigenous communities over the TK, this right can be considered to have been implicitly recognized by some of the provisions of the 1948 Universal Declaration of Human Rights. For example, Article 27 of the UDHR states that everyone has an equal right to participate in the community’s cultural life and to share in the advantages of scientific benefits. This Article can be invoked to entertain the liability of the corporations that exploit TK for business gains and to provide some benefits to the community in return.

Furthermore, Article 27 provides that the author’s material and moral interests in any scientific, artistic, or literary work should be protected. The indigenous community is the owner of TK and has material and moral interests in it. Thus, the law ought to protect these interests.

However, there are a number of difficulties in enforcing IPR rights for TK through the human rights regime. Firstly, the enforcement of the UDHR vests with the states, and the states are usually reluctant to enforce the provisions of the UDHR. Secondly, TK is considered to be a collective right, while human rights in general are concerned with individual rights. For example, UDHR also deals with the rights of individuals and the rights of the community.

Issues and challenges with traditional knowledge in IPR

Traditional knowledge refers to some regional, indigenous, or local communities’ long-standing traditions and practices. In many cases, traditional wisdom has been passed from person to person orally for centuries. Many types of cultural knowledge express themselves through myths, legends, folklore, practices, songs, and even rules. “Traditional knowledge” is not recognized by all who study it as “knowledge,” since it includes beliefs, values, and practices. Traditional knowledge includes information about the use of medical care and agriculture of organic and other materials, manufacturing methods, designs, literature, music, rituals, and other techniques and arts. This large range includes knowledge of a practical and aesthetic nature, i.e. processes and products that can be used in agriculture or manufacturing, as well as cultures which are abstract. Traditional knowledge is not static, it changes as a result of developments or adjustments to evolving conditions and creates new information.

Several proposals have been made in the current IPR system, to protect traditional knowledge. Such proposals are not sufficiently clear on the protection issue because of the diversity of traditional knowledge itself. Therefore, a fundamental question, before considering how traditional knowledge may be protected, is to define in a form of a need for the protection of traditional knowledge which may include various reasons including equity considerations, conservation concerns, preservation of traditional practices and culture, prevention of appropriation by unauthorized parties of components of traditional knowledge, and promotion of its use and its importance in the development. Few experts agree to protect traditional knowledge under the patent regime, but in the case of traditional knowledge, the Novelty and Inventive Step requirements will not be removed. Trade secret approaches for securing conventional information would also fail because trade secret related law is unavailable in India. In these situations, it is clear that the current intellectual property structure is not well suited to defend conventional knowledge. India, however, does take some steps to preserve traditional knowledge.

The estimated market value of pharmaceutical products from the traditional medicine of indigenous people was 43 billion US dollars worldwide in 1995. Under existing intellectual property law, there is no requirement for businesses using traditional medicine-related expertise held by indigenous peoples to offer compensation for acknowledging their interest in the commercial application of this knowledge.

For an invention to be patentable, it must be novel, involving an addition to the current state of relevant technology. A comparison to the prior art is used to determine novelty. Novelty is lost by a previous publication. A concern with indigenous peoples ‘patent claims in relation to traditional knowledge and treatments is that the custom of ethnobotanists and ethno pharmacologists has been to write accounts of indigenous peoples’ uses of plants. Another obstacle to the recognition of indigenous people’s contribution to the development of new drugs is the fairly stringent rules that apply to the concept of a joint invention. Traditionally, joint inventorship demands that the joint inventors contribute to the creative work towards the same end, and create and innovate by their combined efforts. It is not necessary that they worked together physically at the same time, and each made the same contribution form or number. All must, however, work on the same subject matter and make some contribution to the inventive thinking and to the final outcome. The economic factor has been instrumental in the agitation to protect traditional cultural works.

Another challenge in protecting TK is that most of the traditional knowledge and data is available in local languages. This makes it difficult for the patent offices to discover this information as prior art when they are scrutinizing the patent applications. The language barrier enables private entities and individuals to get IPR protection on inventions based on TK.

Third world countries are unable to defend their traditional knowledge from being exploited by multinational corporations. In most cases, their knowledge is not documented. Even where the knowledge has been documented, it is unable to survive the scrutiny of the patent offices. Rich countries resist denying patents to their domestic companies on the grounds of pre-existing TK in some foreign countries.

Moreover, private entities are not hesitant to rely on traditional practices since most of them have been practiced for centuries and have been time-tested in their effectiveness. For example, most of the medicines based on TK have been used by the traditional and indigenous communities for generations. These medicines have proven to be effective. Thus, private entities can conveniently trust the TK.

Thus, private corporations endeavor to get IPR over TK-based inventions since they get reliable products without incurring huge costs on research and development and laboratory tests.

The primary reason why TK is not being protected under the present legal frameworks is that the IPR regimes do not generally allow communities to register and protect their knowledge. Inventions can be registered only in the name of an individual or a certain group of people. But an entire community cannot be legally said to be the proprietor of some knowledge. Moreover, even if community proprietorship is allowed, there would be difficulties in defining and identifying the limits of the community.

Critical analysis and recommendations for traditional knowledge

The awards of patents on non-original inventions, which are produced using the traditional knowledge of the developing world, have caused the developing countries considerable concern. The concerns of the developing world are the unequal exploitation of biological resources and related traditional knowledge. TRIPS is the most important agreement as it is the component of the WTO that has the ability to implement member countries’ commitments. In order to monitor bio-piracy, it is imperative to bring about a thorough reform in the framework of intellectual property worldwide, by necessary changes to the TRIPS Agreement, which codifies the rules for the international security of intellectual property. TRIPS should include three principles which are necessary to prevent bio-piracy. Such principles are:

Disclosure of the geographical roots or associated traditional knowledge used in the creation of biological tools.
To seek the prior informed consent of the local population concerned.
Ensuring equal provisions for the allocation of benefits.

The definition of prior art in different countries is different, the Patent Act of India provides that if an invention is, in fact, a conventional knowledge or an arrangement or replication of known properties of traditionally known components or elements, it is not patentable. Such a law will avoid bio-piracy within the jurisdiction of India but can not secure traditional knowledge outside India, for instance in the USA such subject matter is considered patentable, and only scientifically validated printed publications are considered prior art. The universal definition of prior art needs to be harmonized.

There are some inadequacies in the traditional IPR program that make it difficult to give TK and its holders full security. If anyone develops a part of traditional knowledge and creates innovation within a limited range, innovation will be fulfilled and there would be no legal duty on the owner of the intellectual property to share any portion of the benefit earned with the original holders of that traditional knowledge. Despite these constraints, traditional knowledge-including traditional medicine-is difficult to provide overall protection by current intellectual property rights. The incorporation of sui generis elements in modern IPRs for the defense of traditional knowledge is a pressing requirement. To ensure fair recognition and preservation of rights, such a structure should serve as a link between the indigenous community and the national as well as international legal system. It can provide versatility in the creation of a knowledge-control framework; the use of biological resources and the sharing of benefits derived from resource exploitation.

The fundamental policy aim of the IPR system should be ‘protecting indigenous rights.’ Only then can IPRs be used as tools for safeguarding the country’s cultural heritage and traditional knowledge. Indigenous populations are unaware of their biological ability and associated scientific rights with The level of literacy, time, and money needed to register IPRs, it is highly unlikely that these indigenous people will go through this process, leaving the field open to third parties to gain rights over their land and related knowledge. In order to make the IPR program affordable and open to traditional cultures, therefore, the registration process for intellectual property rights and expense and litigation should be streamlined. There should be some law-appointed bodies that take particular care of the indigenous communities’ registration, prosecution of IPRs, creation of trademarks, and marketing of registered products such as GI goods. Awareness initiatives should be introduced to raise awareness of the IPRs, bio-piracy, profit sharing, and security of TK among conventional communities.

The Botanical Survey of India (BSI) and Zoological Survey of India (ZSI) should determine the validity of the plants and animals reported in the People’s Biodiversity Registers and used by society. The legal right to defend these Registers should be given to the BMCs.

Proper quality assurance systems for maintaining the integrity of GI products should be adopted. Clear protective measures should be introduced to protect the economic and cultural interest of traditional medical knowledge and to safeguard against those who receive subject protection topics that they have no rights in. Incentives for biodiversity conservation and sustainable use would need to be versatile and broad enough to allow for the growth and advancement of traditional as well as contemporary expertise possessed by individuals and groups.

Until now, there has been no general consensus about how to defend biodiversity and related knowledge from the threats it faces under the traditional IPR system. Efforts should be made at the national and international levels to prevent the misappropriation of biological resources and the interests of indigenous peoples.

The traditional communities should be allowed to make a database of their TK. This data would thus make the TK qualify as ‘prior art’. Thus, corporations and private entities will not be able to obtain IPR over inventions and works based on TK.

Moreover, TRIPS should be amended to include an obligation to disclose the origin of the products. This obligation should be complemented by recognizing the right of nations to exercise sovereignty over their generic resources. This would make the patent system more transparent. Due to the disclosure of origin, developing countries would be able to monitor if their domestic indigenous knowledge is being used by the inventions registered in developed countries.

Sui generis system

The absence of proper legislation governing the preservation and conservation of TK can be compensated by establishing a sui generis system aimed exclusively at safeguarding the interests of indigenous communities and TK.

Sui generis system means a special and unique system having the protection of TK at its core. Such a system should lay down a comprehensive framework for safeguarding TK from private exploitation and should ensure that TK is only used for the public good. However, the system must not be too harsh or strict, as it will impede research and development and act as a hindrance to innovation.

The system should ensure that the benefits derived from TK are equitably distributed among all the concerned stakeholders. It should also identify the beneficiaries who are to receive the benefits of commercial exploitation.

Landmark judgments surrounding traditional knowledge in IPR

The neem case

The neem case raised a controversy that could be tagged as the “first” for India, and that raised doubts about an allegedly “strict” patent system, was patent granting to a company W.R.Grace. In the United States and the European Union, the company was awarded a patent for a formulation that kept the active ingredient in the neem plant in the safe storage of azadirachtin; it decided to use azadirachtin for its pesticidal properties. Traditional medicine systems, such as Ayurveda and Unani, recognize neem tree antiviral and antibacterial properties also known as the “curer of all ailments” in Sanskrit and recommend the same for the treatment of skin diseases and as a natural pesticide. In the patent application, the applicant acknowledged how the pesticide uses of neem were established and pointed out that it is difficult to store azadirachtin for a longer time. The granted US patent covered a restricted invention by which the applicant was only given the exclusive right to use azadirachtin in the unique storage solution mentioned in the patent.

The patent grant was followed by an outcry and questioned by re-examination and post-grant opposition proceedings before, respectively, the United States Patent and Trademark Office (USPTO) and the European Patent Office (EPO). While the USPTO did not succeed, the European Patent Office ruled in favor of the opposition stating the issued patent, lacking innovation and imaginative move.

The turmeric case

Turmeric is a tropical herb cultivated in eastern India. In India, turmeric powder is widely used as a medicine, a food ingredient, and a dye to name just a few of its uses. It is used as a blood purifier, for example, in the treatment of the common cold, and as an antiparasitic for many skin infections. It is also used as an important ingredient in many Indian cuisines. In 1995, the United States issued a patent for wound healing rights on turmeric to the University of Mississippi medical center. The asserted subject matter was the use of “turmeric powder and its administration” for wound healing, both oral and topical. It received an exclusive right to sell and distribute.

The Indian Council for Science and Industrial Research ( CSIR) had objected to the granted patent and had provided USPTO with written proof of the prior art. While it was a well-established reality that turmeric usage has been recognized in every household in India for ages, finding documented knowledge on the use of turmeric powder through oral as well as topical routes for wound healing has been a herculean job. Because of extensive research, there were 32 references in various languages namely Sanskrit, Urdu, and Hindi. The USPTO, therefore, revoked the patent, stating that the claims in the patent were obvious and anticipated, agreed that the use of turmeric was an ancient art of healing wounds. Therefore, the TK that belonged to India was safeguarded in the Turmeric case.

The Basmati rice case

In the Basmati rice case, RiceTec Inc., USA, was granted a US Patent (No. 5663484) entitled “Basmati Rice Lines and Grains” in 1997. New rice lines were produced by crossing semi-dwarf varieties from India and Pakistan, with 22 traditional basmati varieties. The patent application includes 20 arguments covering not only novel lines of rice grown from rice germplasm but also different varieties based on traditional farmers-bred varieties. In addition, Rice Tec also grabbed the name ‘Basmati’ and thus assumed exclusive control of new varieties based on traditional rice varieties nurtured by farmers’ generations. The specific characteristics such as fragrant aroma, long and slender grain, and distinct taste of Basmati are attributable to the geographic area (larger Punjab area divided between India and Pakistan) where it grows in.

This business was thus misleading the public against different and inferior goods, and thus adversely affected India and Pakistan’s export market. Under pressure from Non-Governmental Organizations (NGOs), the Government of India filed an application for re-examination in the year 2000 on the ground that the rice lines in question lacked inventiveness and innovation. In the year 2001, in response to the request, USPTO only allowed 5 claims (three independent claims 8, 9, 11 and their dependent claims 12 & 13) out of 20, and the title of the invention was also changed from “Basmati Rice Lines and Grains”10 to “Rice Lines Bas 867, RT1117, RT1121.”

Conclusion

Traditional knowledge has the tremendous ability to solve the emerging problems of man. Exploiting this information is extremely valuable but must be balanced with security, promotion, and sharing of benefits. Traditional knowledge can be called the newest member of the IP family. However, decisions on tackling this child must be taken into consideration several factors, in addition to the (un)will of nations. Correctly put, the informal sector information network, i.e. traditional knowledge, is mostly oral and not well recorded, and therefore not defensible. India has taken a step forward and built a repository of its age-old information which is that periodically but the need for a legal instrument is becoming increasingly urgent on an international level. The question of interest is the integration of conventional information structures with a modern IPR system.

A sui generis law is often put in as a possible solution to better protect traditional knowledge, but before a law is enacted, policies and proposals such as the National IP Policy, Digital India, and Startup India will save the increasingly deteriorating traditional knowledge structure. This would not be incorrect to say that the present generation will have to help preserve the precious information of a dying generation in order to ensure the future of species and humanity.

Frequently Asked Questions (FAQs)

What is biopiracy?

Biopiracy refers to the unauthorized use of biological and genetic resources of indigenous communities by private entities for profit-earning purposes. The entities seek to gain monopoly rights over these resources and knowledge but do not provide any compensation to the indigenous communities.

What is bioprospecting?

Bioprospecting refers to the process of discovering valuable genetic and biological resources from nature. This process involves conducting surveys and documenting natural resources. It involves the commercial and appropriate use of natural biological resources. Bioprospecting, as a principle, also aims at respecting the rights of the indigenous people while using traditional knowledge.

While bioprospecting is an established and moral practice, it often gets transformed into biopiracy, which results in the infringement of the rights of the indigenous people.

What is intergenerational equity?

Inter-generational equity implies that each generation is entitled to receive the natural and cultural resources that were available to the previous generation. At the same time, this principle imposes a duty on each generation to conserve and preserve natural resources and pass them on to the next generation. The earth and its resources are treated as trust property, and each generation has a duty to pass on this trust to the next generation.

References (Some more to be added)