This article is written by Meenal Sharma, a student of Vivekananda Institute of Professional Studies. In this article, the author has discussed the role of the various international forums in the protection of traditional knowledge.
India is a biologically diverse country that harbours about 7-8% of species with about 45,000 species of plants and 91,000 species of animals. 4 out of 34 global biological diversity hotspots are present in India, i.e. the Himalaya, the Western Ghats, the North East and Andaman and the Nicobar Islands. All this and India has only 2.4% area of the world’s land. Various concepts such as the Ayurveda, Siddha and Unani were developed between 2500 and 500 BC India and therefore, India is the largest producer of such traditional medicinal systems as well as medicinal plants. Thus, the traditional knowledge possessed by India with respect to various resources such as the medicinal system is vast. Hence, it is necessary to promote as well as protect such knowledge. There have been many cases in which patents have been granted to corporations for the legacy which belonged to India. For example, India has had to battle against various patents granted to foreign corporations for Neem, Turmeric and Basmati which are undoubtedly an Indian legacy.
Another example of the exploitation of traditional knowledge is from Taiwan. Biatz Niahosa is a resident of a mountain village in Taiwan where only about 4000 people are left. Out of these people, not even 1000 are able to speak their native language, Tsou, as they were prohibited from speaking their language for hundreds of years. The people are still reluctant in speaking their language as they are recovering from the trauma. They are working very hard for the protection of their traditional knowledge that includes their local language. Their traditional knowledge is entirely oral. They do not have systems of a school of any other system through which they can protect their language. They are working hard for the protection of their traditional knowledge and advocating for a law that mandates researchers and other interested groups to sign contracts before exploiting their traditional knowledge.
Protection of traditional knowledge is a matter of growing concern and the role of international forums is indispensable to ensure such protection. In this article, we will discuss the measures international forums have taken for the protection of traditional knowledge.
What is traditional knowledge
Traditional Knowledge refers to the knowledge, know-how, the skills or the practice developed, sustained and passed through generations within a community which is a form of the cultural and spiritual identity of the community. In a general sense, traditional knowledge refers to the content of the knowledge such as traditional cultural expressions like signs and symbols associated with traditional knowledge. In particular, it refers to the knowledge that comes from traditional intellectual activity such as skills, practice and innovations. It could be developed by indigenous people, local or the native community, conserved and passed on to generations so much that it has become the identity of these people.
Traditional Knowledge can be found in areas such as agriculture, science, technology, ecology, biodiversity as well as medicine. The most common feature of traditional knowledge is that it is ancient and has been passed through generations orally. It has been developed by groups of people who have spent their lives close to nature and built their traditions and their way of life which results in innovating that are exclusive to their community.
Characteristics of traditional knowledge
Some important characteristics of traditional knowledge are:
- It must be transferred over various generations.
- Antiquity must be orally established.
- It does not refer to private property.
- It is a distinguishing factor that sets one community apart from the others.
- It is impossible to determine the origin of such knowledge.
- It is learned through observation and practice.
- It is inseparable from the community.
- It is often associated with biological resources.
Why should traditional knowledge be protected
Traditional knowledge is essential in every aspect however there is a lack of legal measures to ensure their protection. Commercial interests often exploit traditional and indigenous knowledge. There is a need to protect the traditional knowledge so that its unauthorised and commercial misuse can be stopped. Technically, these exploitations do not amount to any legal violation as at the international level, rights of indigenous people are not acknowledged. However, they are still accountable to the customary laws. It is important to protect such indigenous people from loss and pressure that is put on their ancient practices.
Moreover, underlying principles to ensure protection to traditional knowledge include equity consideration, preservation of traditional practices and culture, conservation needs, promotion of traditional knowledge in modern developments, prevention of exploitation by unauthorised entities, access and benefit-sharing of traditional knowledge.
Protection of traditional knowledge
There are various issues that arise in the protection of Traditional Knowledge such as
- Whether protection can be given under intellectual property law
- How can one ensure the protection of Traditional Knowledge
- Biopiracy- commercial authorisation of Traditional Knowledge without proper authority of local or indigenous people related to such a piece of knowledge.
Protection of traditional knowledge can be done in two ways, i.e. positive protection as well as defensive protection. The International forums have adopted various modalities for ensuring protection to traditional knowledge. They are:
- Access and Benefit Sharing System
- Sui Generis protection to traditional knowledge
- Legal protection through Intellectual Property Rights
- Public domain approach
There are a number of international forums working to protect Traditional Knowledge such as Conservation of Biological Diversity, United Nations Commission on Human Rights, World Intellectual Property Organisation, World Health Organisation, etc.
Convention on biological diversity
The Convention on Biological Diversity was signed by 150 leaders of the government in the Rio Summit. It is mainly dedicated to promoting sustainable development. The Convention on Biological Diversity (hereinafter CBD) refers to Traditional Knowledge as knowledge, innovations, and practice of the indigenous community and the local community that embodies the traditional lifestyle for conservation and use of biological diversity.
Article 8(j) of the Convention requires parties to respect and maintain knowledge held by indigenous communities and promote the broader application of Traditional Knowledge-based on fair and equitable benefit sharing. A wider application of such practices shall take place with approval and involvement of the holders of traditional knowledge.
Article 10(c) provides for the protection and encouraging customary use of biological resources with respect to traditional cultural practices compatible with conservation and sustainable use requirements.
Article 15.5 refers to prior informed consent for access to genetic resources. Access and benefit-sharing of genetic resources cannot be separated from traditional knowledge of indigenous and local communities.
Article 17 refers to the exchange of information. Under this Article, the parties are obliged to exchange information based on indigenous and traditional knowledge. It also talks about the return of information that is important to indigenous and local communities which is relevant for conservation and sustainable use of biodiversity.
Article 18.4 provides that Parties shall encourage and develop methods for the development and use of technologies to pursue the objectives of this Convention.
Article 16 of the Convention recognises traditional knowledge as a key tech for effective practices of conservation and sustainable use of biodiversity with procedural requirements established in Article 15 for access to genetic resources including those based on informed prior consent and mutually agreed with terms.
The Nagoya Protocol
The Convention on Biological Diversity and 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) which is a supplementary agreement to the Convention on Biological Diversity introduced recognition and protection of traditional knowledge at international level. The Nagoya Protocol was adopted in Nagoya, Japan on 29 October 2010 and entered into force on 12 October 2014. The Nagoya Protocol broadens the Convention on Biological Diversity provisions related to access and benefit-sharing. The Contracting parties are required to take measures to ensure prior informed consent of the communities, fair and equitable benefit sharing, community laws and procedures and customary use and exchange.
Food and Agriculture Organisation of the United Nations: The International Treaty on Plant Genetic Resources for Food and Agriculture
The Commission on Genetic Resources for Food and Agriculture, the FAO Conference adopted the International Treaty on Plant Genetic Resources for Food and Agriculture in November 2001. It was ratified by 40 governments and was entered into force in 2004. Its aim is to guarantee food security by conserving, exchanging and sustainable use of plant genetic resources for food and agriculture and the benefit-sharing that arises from its use. It also protects Farmer’s Rights subject to national laws which:
- Protect traditional knowledge relating to plant genetic resources for food and agriculture;
- Right to equitable participation in benefit-sharing from the use of plant genetic resources for food and agriculture, and
- Right to participate in decision making at the national level with respect to sustainable use and conservation of plant genetic resources for food and agriculture.
Article 9.2(a) provides for the protection of traditional knowledge with respect to plant genetic resources for food and agriculture.
Article 9.2(b) provides for the right to equitable share benefits arising from the utilisation of plant genetic resources for food and agriculture. This is crucial to avoid misappropriation of genetic resources that are associated with traditional knowledge and facilitating the implementation of prior informed consent and benefit-sharing from the utilisation of such resources and knowledge.
This treaty is legally binding and is in harmony with the CBD. It is necessary to have international cooperation and exchange of genetic resources for food security. Through this treaty, the parties have created a multilateral system for facilitating access to plant genetic resources for food and agriculture and benefit sharing in a fair and equitable way.
The World International Property Organisation seeks close cooperation with other international agencies to take into account consideration for the protection of traditional knowledge. The Intergovernmental Committee on Intellectual Property and Genetic Resources conducts text-based negotiations to ensure the protection of traditional knowledge.
It is important to patent, trademark such innovations resulting from traditional knowledge or protect it in the form of geographical indication, trade secrets or confidential information. However, traditional knowledge is often not protected by intellectual property systems. They can be provided with two kinds of protection in the intellectual property system. They are:
It refers to enacting laws, rules and regulations, royalties access and benefit-sharing provisions etc.
Sui generis legislation
In some countries, sui generis legislation is there to ensure positive protection of traditional knowledge. As IP protection has its own downsides and loopholes, there has been an increasing demand for sui generis legislation. It provides a legal framework of traditional knowledge’s protection, enforcement of rights of indigenous communities, provisions of access and benefit-sharing system etc.
It refers to preventing acquisition of IP over Traditional Knowledge so that any third parties don’t get illegitimate intellectual property rights over Traditional Knowledge. These also include amendments under the WIPO administered patent systems. These are International Patent Classification and Patent Cooperation Treaty Minimum Documentation.
The International Patent classification
The International Patent Classification was established by the 1971 Strasbourg Agreement and provides a hierarchy of language-independent symbols for classifying patents and utility models as per different areas of technology. Various countries have also developed traditional knowledge databases to be used as prior art to defeat patent claims on such traditional knowledge. Moreover, WIPO has developed a toolkit to assist traditional knowledge holders on documenting traditional knowledge.
Negotiations are ongoing in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore for an international legal instrument which will ensure effective protection of traditional knowledge, traditional cultural expressions as well as genetic resources.
World Trade Organisation
The World Trade Organization (WTO) does not confront the implications of its Agreement on Trade-Related Aspects of Intellectual Property Rights or the TRIPS Agreement for the protection and use of traditional knowledge. The TRIPS Agreement does not expressly provide for protection for the traditional knowledge or innovations of indigenous or local communities however it creates flexibility for establishing measures which are alternative and non-conventional for their protection.
Article 1 of the TRIPS Agreement provides that members may implement more extensive protection in their domestic law than is required provided it does not contravene the provisions of the Agreement. As per Dutfield, this provision can be used by parties to protect traditional knowledge and absence of mention of traditional knowledge does not prevent any party of the Agreement from enacting the legislation to protect traditional knowledge.
Moreover, the TRIPS Agreement requires Article 27.3(b) to be reviewed. Presently the Article deals with patentability and non-patentability of plant and animal inventions as well as protection of plant varieties. The Doha Declaration 2001 in paragraph 19 broadens this discussion and provides that the TRIPS Council should consider the relationship between the TRIPS Agreement and the UN Convention on Biological Diversity for the protection of traditional knowledge and folklore. The work of the Council should take into account Articles 7 and 8 which are the objectives and principles of the TRIPS Agreement.
The United Nations Conference on Trade and Development (UNCTAD) in 2000 held an Expert Meeting on National Experiences and Systems for the Protection of Traditional Knowledge, Innovations and Practices. The member states requested for this meeting and a report was formulated that expressed views of the experts. In February 2001 the Commission adopted recommendations based on this Report. According to the report, the protection of traditional knowledge is being discussed on various platforms. Moreover, coordination and cooperation between intergovernmental organisations working for the protection of traditional knowledge should be promoted. The following recommendations were also made to be taken at the international level:
- Promoting training and capacity building for the implementation of protection of traditional knowledge in developing countries and especially least developed countries.
- Promoting fair and equitable sharing of benefits from traditional knowledge that favours the local and traditional communities.
- Encouraging the WTO to continue discussions with respect to traditional knowledge.
- Encouraging the exchange of information with respect to the protection of traditional knowledge on a national level.
- Explore standards for the sui generis system which is internationally organised for the protection of traditional knowledge.
Minorities exist in various situations all around the world because of which there is no single, universally accepted definition for what is a minority. But, the United Nations Human Rights Commission defines a ‘minority’ as any religious, ethnic or linguistic group, which is fewer than that of the other populations, the members of which share a single identity. Likewise, no accepted definition of the term ‘indigenous people’ has been accepted.
Reason for special attention to indigenous people and minorities
Indigenous people and minorities are often the victims either economically, politically, socially or culturally. Being few in numbers, they are faced with violence, genocide, human rights violations, religious and ethnic persecution. So, it is fair that they end up seeking international protection rather than face domestic prosecution.
Also, there exist certain rights, both regional and international, which grant specific rights to the minorities and indigenous people. This provides them with the right to be included, right to participate, right to enjoy their own culture, right to use their own language as well as practice their separate religion.
In any emergency response, the inclusion of indigenous people and the minorities is a must. The response teams should be able to dedicate resources to their support and protection as well as plan and implement activities which must ensure that:
- All the aspects of response are taken into consideration as well as the capacity and the specific needs of the indigenous people and the minorities.
- The indigenous people and the minorities have a safe space to practice their traditions and religion as well as receive the information in their own specific knowledge.
- The indigenous people and the minorities participate and do not suffer any discrimination as well as fully participate in the decisions affecting them.
In August of 2000, the ‘Intellectual Property Rights and Human Rights Resolution’ was adopted by the Sub Commission on the Promotion and Protection on the Human Rights of the United Nations Commission on Human Rights. Even though the resolution does not have legal status, it has been attracting a great amount of attention to it. The resolution made references to quite a number of potential and actual conflicts faced between the human rights and intellectual property rights, such as patenting the GMO (Genetically Modified Organisms) and the rights of the plant breeder for the enjoyment of the basic right to food and reducing the control the communities (mainly the indigenous communities) have over their own natural and genetic resources, which lead to them being accused of ‘biopiracy’. It was specifically requested that the WTO take into account fully the member state obligations to which they are parties under the international human rights conventions when TRIPS was conducting its ongoing review.
In August of 2001, the Sub Commission considered two reports upon the impact TRIPS had over human rights and the relationship between human rights and intellectual property rights. In response to this, another resolution was taken which mainly restated the view of the Sub Commission that potential or actual conflicts do subsist among the realization of the social, economic and cultural rights and the implementation of TRIPS Agreement. The resolution further emphasized over the need for proper protection of the cultural values and the traditional knowledge of the indigenous people and stressed over the concern of the Sub Commission for the protection of the indigenous people and their heritage.
United Nations Educational, Scientific Cultural Organisation
The Local and Indigenous Knowledge Systems programme or the LINKS interdisciplinary initiative by UNESCO promotes local and indigenous knowledge as well as its inclusion in the global climate science and policy processes.
Local and indigenous knowledge refers to skills developed by societies with elaborate interactions with their natural surroundings. This local knowledge refers to the fundamental aspects of day to day life of rural and indigenous people. This knowledge is an integral part of a culture which includes language, classification systems, practice, social interaction, ritual, spirituality etc. They are important aspects of global cultural diversity and provide a foundation for sustainable development.
LINKS has been influential in ensuring that local and indigenous knowledge holders are included in contemporary policies to deal with issues such as biological diversity assessment and management, adaptation and assessment of climate change, preparation for natural disasters and sustainable development. The LINKS programme operated at local, national and global levels. It strives for an understanding of climate change impacts, adaptation and mitigation by strengthening indigenous people and local communities, fostering transdisciplinary engagements with scientists, policymakers and pilot novel methodologies.
International Labour Organisation
The first agency of the United Nations to address issues of indigenous people was the International Labour Organisation (ILO). The ILO established an expert committee in 1926 for developing international standards for the protection of native workers. This was the basis of adoption of the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries in 1957. It is often referred to as the Convention 107. It deals with measures to integrate indigenous people within modern production systems.
The Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries was the revised version produced in June 1989. This version shuns the approach of promoting the assimilation of indigenous as well as tribal people and promotes their protection as distinct and separate groups.
Article 2.2(b) of the Convention says that the government should develop measures for promoting full realisation of the social, economic and cultural rights of people in order to protect their social and cultural identity along with their customs, traditions and institutions.
Article 5(a) says that the social, cultural, religious and spiritual values and practices of the indigenous and tribal people must be recognised and protected. Moreover, a due account of the nature of the problems faced by these people as groups and individuals should be taken.
These provisions should be read in a manner so as to include recognition and protection of traditional knowledge of the peoples.
International Union for protection of new varieties of plants (UPOV)
The International Convention for the Protection of New Varieties of Plants came into existence on 2 December 1961. UPOV is a French acronym for Union Internationale pour la protection des obtentions végétales or the International Union for the Protection of New Plant Varieties. Its headquarters are in Geneva, Switzerland. The UPOV system is a sui generis system with its mission is to provide and promote an effective system of plant variety protection and encourage the development of new plant varieties for the benefit of the society. These varieties must be distinct from existing and common varieties, sufficiently uniform, stable and novel. In a way, this system ensures protection to the traditional knowledge related to plant varieties and benefits arising thereof.
World Health Organisation
The World Health Organisation’s efforts in the protection of traditional knowledge are based on its work on traditional medicine in cooperation with WIPO, UNCTAD and other international organisations. Their work focuses on supporting countries in spreading awareness, protection of knowledge of traditional medicine and medicinal plants and securing fair and equitable benefit sharing December 2000, WHO held an Inter-regional Workshop on IP Rights in the Context of Traditional Medicine. The recommendations of this workshop were to devise ways and means for the protection of traditional medical knowledge of the community and biopiracy. It also recommended strengthening customary laws for the same. Traditional knowledge which is in the public domain should be documented in traditional knowledge digital libraries in different countries with the help of WIPO’s work in the area. It is also important to exchange and disseminate this information through IP systems. Sui generis models for the protection and benefit-sharing of traditional medicine should also be established. The countries are recommended to develop guidelines and ensure them in a manner to ensure protection and benefit-sharing through commercial use. There is the flexibility provided by the TRIPS Agreement which should be fully utilised to ensure easy access to this traditional medicine and health care needs of developing countries.
Matshona Dhliwayo, a philosopher and an entrepreneur said: “It is in the roots, not the branches, that a tree’s greatest strength lies.”
Traditional Knowledge is the root of every country and thus their greatest strength. It is a valuable source of knowledge that is exclusive to a nation and what makes it stand out. It may help to find out solutions to various problems. It is the centre and inseparable part of communities and is inherited by their ancestors. Therefore, there is a strong need to protect traditional knowledge. Steps must be taken at both the national and international level. However, there is a pressing need to take steps at an international level as every country is not capable of ensuring such protection themselves. Efforts have been made at the international level by inculcating access and benefit-sharing system, sui generis system for legal protection, legal protection under intellectual property law, and public domain. However, international forums are not successful in implementing effective protection for traditional knowledge. The system is unbalanced and there is a need for it reformation to ensure protection to such traditional knowledge. The need of the hour is to inculcate informal norms which can provide effective implementation to the protection of traditional knowledge.
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