This article has been written by Neena Teresa Varghese.

Introduction

When an elder dies, a library burns. This proverb is especially true in the case of indigenous groups who pass on vast amounts of knowledge from generation to generation. Traditional knowledge refers, to resources or knowledge in the medical field, in the agricultural or ecological fields, a knowledge that has been preserved for a long time in local, indigenous communities, has been used there and, considered to have been developed by those communities, and which are being discovered by industries that have may be interested in them for commercial reasons, such as production of pharmaceuticals or cosmetics. Recognition of traditional knowledge as the protectable intellectual property may allow indigenous and local communities and governments to ensure that they are not unscrupulously exploited. 

Patent, copyright and traditional knowledge

Disputes in respect of traditional knowledge typically arise when an industry obtains huge benefit off of such knowledge, without the permission of indigenous communities, which has been described as “unauthorised appropriation of their knowledge,” and the process of taking indigenous peoples’ knowledge without compensation is referred to as biopiracy. 

For instance, in the famous turmeric dispute, the US Patent Office granted a patent for turmeric, which is used for its cooking and healing properties by most households in India. The Indian Council for Scientific and Industrial Research claimed prior cart citing “ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association,” which served as proof that turmeric had been in use for thousands of years, which finally culminated in the patent being rejected. 

This example clearly illustrates the underlying problem involved in granting patents for traditional knowledge. Further, patent protection would necessitate the complete disclosure of knowledge, a substantial part of which may be considered sacred by indigenous groups. In India, traditional knowledge has been expressly stated to be not patentable. The reason for such exclusion is that traditional knowledge can be considered as prior art and therefore, it does not fulfil the requirement of novelty, an essential condition for the grant of patent. The legislature has acted rightly by providing such an exclusion. It is an accepted tenet of patent law that information in the public domain cannot be considered novel and can only be claimed as prior art. 

Even if traditional knowledge that is passed down from generation to generation or proliferated only within a particular community cannot be considered as information in the public domain, since it has existed for an amount of time sufficient enough to qualify as ‘traditional’, it would be against the basic tenet of intellectual property law to grant a patent for the same. At the most, such traditional knowledge presented as new inventions can only be considered discoveries of knowledge that was absent from mainstream society for a significant period of time. 

Certain countries like the United States have been criticized for granting patents when the applications’ contents are considered public domain in other countries. Since the Patents Act, 1970 states in unambiguous language that traditional knowledge cannot be patented, it can be safely assumed that this applies to such knowledge regardless of its source or origin and hence, disputes involving traditional knowledge of other countries can be avoided as indigenous groups can claim that the subject matter is traditional knowledge even if not widely known in India. 

However, it is to be noted that the provision does not prevent patent protection for new products and processes based on traditional knowledge. Another trend that is on the rise is remixing of traditional songs or “restrung” versions of folk music. One will find that such remixed versions are eligible for copyright protection since it involves some degree of the original expression of the author, whereas the original folk song which was remade cannot claim so as it is considered to be in the public domain. In such a sense, copyright has also proved its inadequacy to protect traditional knowledge. 

Protection of traditional knowledge as trade secrets

Trade secrets may be considered to be the best form of protection for traditional knowledge. The reason for the same being that indigenous groups that are otherwise unwilling to share information may do so if they are guaranteed a certain degree of control over the use of such information and a share in the profits derived from it. Also, other forms of IP protection such as patents involve huge financial onus on indigenous groups which they may not be able to afford. 

Indigenous communities can protect their traditional knowledge in the form of a trade secret as the requirements of secrecy, commercial value because of such secrecy and conscious effort to keep it that way as stipulated by the TRIPS Agreement, and thereby prevent unfair appropriation by industrialists. A noteworthy example in this regard is the case of a Peruvian tribe that demanded that they enter into an agreement with Shaman Pharmaceuticals Inc., a California based pharmaceutical company, to get short and long-term benefits for providing resources. Therefore, trade secrets may help to: 

(1) sustain indigenous peoples’ way of life, 

(2) provide protection from further colonization and exploitation, 

(3) conserve biodiversity, 

(4) retain the possibility that indigenous peoples may seek economic benefit in the future if they so choose. 

Other forms of IP protection of traditional knowledge

Trademarks and Geographical Indications help consumers to identify goods. They can go a long way in the protection of traditional knowledge. For instance, they can be used as a mechanism for the protection of some forms of indigenous art. The Protection of Plant Varieties and Farmers’ Rights Act, 2001, has laid down certain provisions that provide for the protection of traditional knowledge that forms part of the genetic materials used for developing new plant varieties. 

The Biological Diversity Act, 2002, aims to provide for fair and equitable benefit- sharing of traditional knowledge and biological resources. The Geographical Indications of Goods (Registration and Protection) Act, 1999 is another legislation that can protect traditional knowledge. Since the Act permits any association of persons or producers or any organization or authority established by law representing the interests of the producers of goods to register a geographical indication, the holders of the traditional knowledge in goods produced and sold using geographical indications can register and protect their traditional knowledge under this law. 

However, the many inadequacies in the present law have resulted in experts calling for a sui generis legislation for the protection of traditional knowledge. Sui generis legislation in this context refers to custom-built legislation rather than amendments to existing intellectual property regimes.

Certain institutional actions have also been fruitful in prevention of wrongful appropriation of traditional knowledge. India developed the Traditional Knowledge Digital Library (TKDL), a database containing 34 million pages of formatted information on over 2,260,000 medicinal formulations in multiple languages. 

Designed with the aim of aiding prior art searches, the TKDL has played a significant role in India successfully bringing about the cancellation or withdrawal of numerous applications to patent traditionally known medicines abroad.

Conclusion

The principal justifications for intellectual property protection of traditional knowledge are many but it has been opined that the free flow of ideas and information has numerous economic and cultural benefits and such benefits should not be sacrificed without a sufficient cause. One such justification is that according to indigenous groups enhanced protection for their traditional knowledge is necessary to compensate them, even if only partially, for the injustice with which those groups have been treated during the period of colonial conquest and exploitation. 

This justification lingers on the lines of corrective justice. Another justification is that they stimulate socially beneficial innovation that otherwise would not occur. It has also been opined that legal protection for bodies of knowledge developed and constantly modified by indigenous groups can improve the economic position of the global poor. However, the most commonly accepted justification for the inclusion of traditional knowledge in the intellectual property regime is that indigenous groups and communities should have some say over how the knowledge that they passed on for generation is being used, and at the same time, the law should not equip industrialists to unfairly exploit such knowledge.


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