In this article, P. Mohan Chandran discusses the need for protecting Traditional Knowledge and why India needs a unique legislation on it.
WHAT IS TRADITIONAL KNOWLEDGE (TK)?
TK is a body of knowledge, pertaining to innovations and practices of a group of local people, extracted and developed through their close contact with nature for generations, which is later shared with the successive generations. TK encompasses development from one generation to another, tangible and intangible knowledge, and innovations of both potential and actual value. TK has continued to play a critical role in significant areas such as food security, agricultural development and medical treatment.
THE NEED TO PROTECT TK
The protection of indigenous and TK under intellectual property rights (IPRs) has received increasing attention since the adoption of the Convention on Biological Diversity (CBD) in 1992. Empowerment of local and indigenous communities (LICs) through recognition of community rights and protocols creates an impetus for preservation and restrained disclosure of TK in a culturally enlightened manner.
TK plays an indispensable role in supporting sustainable development (SD) practices, and facilitates SD in LICs through recognition of IPRs. The application of IPRs to TK held by LICs can enable SD. SD does not compromise the needs of future generations to satisfy the desires of the present, and establishes a realistic equilibrium between socio-economic development and environmental protection. SD must be established on reciprocally beneficial pillars of mutual respect and legal exactitude, with the active participation of LICs, and must be aimed at protective, practical and aggressive measures designed to eliminate poverty and inequality. Recognition of IPRs in TK held by LICs through a specialized globally-binding mechanism could work to harmonize lack of trust, positively stimulate preservation, and act as a fair enabler of SD. Recognition of IPRs held by LICs, especially TK associated with biodiversity and genetic resources, is an important step in realizing SD. TK plays a unique role, as it is inherently established in the doctrine of conservation and sustainable use of biodiversity. The ‘2030 Agenda for Sustainable Development’, comprising the 17 SD Goals (SDGs) and 169 goal-specific targets, was approved in September 2015, and represents the most recent declaration of an integral approach to define and realize SD.
The primary arguments for granting protection to TK include:
- Equity
The prime concept for the protection of TK is based on equity. TK generates value that is not adequately recognized and compensated due to the currently erroneous system of funding and reward. The protection of TK, therefore, assumes significance to bring equity to primarily unjust and unequal relations.
- Conservation
Another prime factor for the protection of TK is the importance of such knowledge for conservation. Maintenance of biological diversity in farming generates value for the global community. IPRs could be used to generate income to sustain the otherwise abandoned activities. Under this approach, the protection of TK helps fulfill society’s macro objectives for the conservation of environment, sustainable agriculture and food security.
- Preservation of Traditional Practices & Culture
The protection of TK is a framework that encourages the maintenance of traditional practices, culture and knowledge. In this sense, the concept of ‘protection’ is quite different from the concept applied under IPRs. The preservation of TK is not only a key element of the right to self-identification and a pre-requisite for the continuous existence of traditional people and indigenous communities, but also a vital element of the cultural heritage of humanity. The crisis impacting the world’s diverse cultures and languages is much deeper than the biodiversity crisis. About 90% of the 6000-odd languages currently spoken – and their corresponding cultures – may face extinction in the next century.
- Promotion of Use of TK & Its Significance in Development
The promotion of the use of TK is a vital objective. Article 8 (j) of the CBD requires the promotion of ‘wider application’ of TK. Protecting TK against loss and misuse, or ensuring compensation to TK-holders are pre-requisites to boost the wider use of such knowledge. Protection may serve as an instrument for facilitating access to TK. Protection of some kind may create the basis for trust required for the LICs to share their knowledge and enhance their position to extract value from it. If certain rights are recognized, knowledge-holders will be more willing and prepared to provide access to their knowledge. Besides, compensating them adequately will encourage them to have more incentives to conserve it for future access. Promoting the development of TK may also be a prime motivation behind protecting TK from extinction and loss.
PROTECTING TK IN INDIA
Food security of the country is linked to protection of TK. Protection of TK of the LICs seem to be one of the most controversial and complex issues. Technology developments in the new millennium poses serious challenges to the global legal community to establish new global legal standards for encountering the problem of IP protection. The incorporation of IPRs in TK offers the most pragmatic route to providing both protection and fair access to TK held by LICs, with the identified drawbacks addressed through common but separate domestic legislation, capacity-building, and mutually-supportive compliance systems.
IP protection for TK can provide a fundamental system, established on transparency and recognition of rights of LICs, which will enable the collection, documentation and preservation of TK under a cloak of inalienable rights. Application of specific IPRs relating to TK assumes the nature of both a defensive posture preserving TK in a sui generis international legal mechanism, and of a proactive system to promote SD through codification of community protocols and effective benefit-sharing. SD must be viewed comprehensively, and not individually, requiring involvement with LICs based on a relationship of trust and mutual respect.
GLOBAL LEGAL FORA FOR INCREASING PROTECTION OF INDIAN TK
Indian TK is now available to the United States Patent and Trademark Office (USPTO) and European Patent Office (EPO), who can access the database of TK, courtesy the Indian Government’s permission. India’s Council of Scientific and Industrial Research (CSIR), and the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy developed the TK Digital Library (TKDL), a 30-million page searchable database of TK translated from several languages such as Hindi, Sanskrit, Arabic, Persian, Urdu and Tamil into English, Japanese, French, German and Spanish.
There are several other international legal platforms and mechanisms that currently address IP protection relating to TK, including the following:
- The UN Draft Declaration on Rights of Indigenous Peoples (UNDRIP): Article 29 of this UN Draft Declaration specifically states that people from LICs are authorized to the recognition of the complete ownership, control and protection of their cultural and IP. They have the special rights to control, develop and protect their sciences, technologies and cultural expressions, including human and other genetic resources, seeds, medicines, wisdom of the characteristics of flora and fauna, oral traditions, literature, designs and, visual and performing arts.
- Global Guidelines: Another positive initiative is the inclusion of a set of draft corporate guidelines for businesses that want to use native plants and TK from LICs to make commercial drugs.
The CBD and the 2010 Nagoya Protocol establish the dominant international system for the recognition and protection of TK. Under Article 8(j) of the CBD, parties are required to respect and maintain knowledge held by LICs, and promote broader application of TK based on fair and equitable benefit-sharing. TK is further recognized in Article 16 as a ‘key technology’ for effective practices of conservation and sustainable use of biodiversity, with procedural requirements established in Article 15(4–5) for access to genetic resources, including those based on prior informed consent and mutually agreed terms. The Nagoya Protocol, which became effective from 2014, broadens the CBD provisions establishing a concrete system determining access and benefit-sharing. Other relevant developments relating to TK that evolved simultaneously to progress in the CBD leading up to the Protocol include the establishment of:
- the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) passed by the Food and Agriculture Organization Conference in 2001, effective from June 29, 2004. This treaty provides for protections relating to ‘farmers’ rights’ including TK and traditional breeding practices.
- the Inter-Governmental Committee (IGC) on IP and Genetic Resources, TK and Folklore, established under the World Intellectual Property Organization (WIPO) in 2000, which provides a forum for negotiations on issues related to development of a binding international mechanism on TK.
NEED FOR A ‘SUI GENERIS’ LEGISLATION IN INDIA
The protection of TK raises several policy issues, prominently the objectives and methods of such protection, and its impact and ramifications for intended beneficiaries. Such issues are extremely complex, since there are broad differences about the definition of the subject matter, the justification for protection, and the means for achieving its purposes. The issues pertinent to TK should be addressed in a comprehensive manner, including ethical, environmental and socio-economic concerns. Moreover, there are still several unresolved technical issues such as the problem of collective ownership and the modes of enforcement of rights.
The conviction that TK has helped the industry generate gargantuan profits has proved to be relentless. Of course, much of the international law governing access to genetic resources and benefit-sharing has been woven around this idea. TK should be protected on both human rights and utilitarian grounds, but the political strategy adopted by India for the past two decades needs to be seriously reconsidered. In terms of legal benchmark, this strategy has been dichotomous. The first is the access and benefit-sharing path via the CBD and its Nagoya Protocol. The second is based on IP law and comprises:
(i) reforms aimed to reduce misuse of genetic resources and TK, such as by enhancing patent prior art searching, restricting the scope of the subject matter claims in patent law to biological, biochemical and genetic issues, and necessitating patent applicants to disclose the origin of genetic resources and TK that were useful or essential to an invention; and
(ii) the enactment of sui generis TK protection laws, based partly on current forms of IPRs, but with some modern features.
TK cannot flourish when decisions affecting LICs continue to be made by urban educated elites. We need to give up political space to allow LICs to formulate the rules of involvement. The 2007 UNDRIP affirms territorial rights and self-determination, and these must be essential elements of strategies, activities, laws and regulations.
The development of any system for the protection of TK should be established on a logical definition of the objectives sought, and on the propriety of the mechanism selected to accomplish them. IPRs may be one of the devices to be used, but their limits and ramifications should be clearly gauged. A balance should be struck between the protection and promotion of the use of such knowledge. The extent to which the myriad proposals made for the protection of TK convey the aims and cultural values of the LICs they intend to serve should not be ambiguous. There is a risk of transferring concepts and models unsuited to their realities to such communities, or which may prove ineffective in solving the issues they are supposed to address. The protection of TK should not outweigh the fact that its preservation and use requires ensuring the survival and improvement of living conditions in the ambiance and cultural setting of such LICs.
THE WAY AHEAD
The following actions could be taken in future in this field:
- A comprehensive national level development strategy boosting the protection of TK, including the settlement of prime issues such as land rights and the need to respect and maintain the lifestyles of LICs.
- Recognizing the varying needs for the protection and promotion of TK in several areas such as TM and plant genetic resources.
- Administering farmers’ rights at the national level.
- Progressing towards the enactment of a misappropriation regime in the short-run.
- Expediting the work in WIPO, UNCTAD, WTO and other fora to clarify the possible role, scope, and content of protection mechanisms for TK.
- Guarantying a wide and effective participation of representatives from LICs in the definition and implementation of any protection system for TK.
REFERENCES & BIBLIOGRAPHY
- Freedom-Kai Phillips, Intellectual Property Rights in Traditional Knowledge: Enabler of Sustainable Development, (Sept. 29, 2016), http://www.utrechtjournal.org/articles/10.5334/ujiel.283/.
- Navin Anand, International Development Relating to Protection of Traditional Knowledge, (Apr. 6, 2015), http://www.lawctopus.com/academike/international-developments-relating-protection-traditional-knowledge/.
- Graham Dutfield, Traditional Knowledge, Intellectual Property and Pharmaceutical Innovation: What’s Left to Discuss? (2014), http://www.academia.edu/10427115/Traditional_Knowledge_Intellectual_Property_and_Pharmaceutical_Innovation_Whats_Left_to_Discuss.
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